[Congressional Record Volume 142, Number 117 (Friday, August 2, 1996)]
[Senate]
[Pages S9499-S9500]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996--CONFERENCE 
                                 REPORT

  Mr. WELLSTONE. Mr. President, what is the regular order?
  The PRESIDING OFFICER. The clerk will report the conference report.
  The bill clerk read as follows:

       The committee on conference on the disagreeing votes of the 
     two Houses on the amendment of the Senate to the bill (H.R. 
     3103) to amend the Internal Revenue Code of 1986 to improve 
     portability and continuity of health insurance coverage in 
     the group and individual markets, to combat waste, fraud, and 
     abuse in health insurance and health care delivery, to 
     promote the use of medical savings accounts, to improve 
     access to long-term care services and coverage, to simplify 
     the administration of health insurance, and for other 
     purposes, having met, after full and free conference, have 
     agreed to recommend and do recommend to their respective 
     Houses this report, signed by a majority of the conferees.

  The Senate proceeded to consider the conference report.
  (The conference report is printed in the House proceedings of the 
Record of July 31, 1991.)


                             Point of Order

  Mr. WELLSTONE. Mr. President, I raise a point of order against the 
conference report under rule XXVIII, paragraph 2, because provisions 
contained in section 281 of the report were inserted by the conferees, 
and such provisions constitute ``matter not committed to them by either 
House.''
  They have, therefore, exceeded their authority, in violation of rule 
XXVIII, paragraph 2.
  The PRESIDING OFFICER. The Chair will examine the language of the 
conference report and needs to do that before it can issue a ruling. 
The Chair will withhold so that examination can be made.
  The Chair announces that the point of order is not sustained.
  Mr. WELLSTONE. Mr. President, I appeal the ruling of the Chair.
  The PRESIDING OFFICER. Under the previous order, 10 minutes are to be 
equally divided.
  The Senator from Minnesota is recognized.
  Mr. WELLSTONE. Mr. President, let me explain my challenge. I have to 
thank Senator Pryor from Arkansas, who has been so diligent on these 
issues, and also Senator Kennedy from Massachusetts.
  Mr. President, in the dark of night, in this conference committee for 
this bill, the insurance reform bill, there was a provision that was 
put in, which was a 2-year patent extension for a prescription drug 
called Lodine. I think the effect of this would be that for 5 years it 
would be impossible for consumers to purchase a generic drug. My 
understanding is that the manufacturer is paying the Federal Government 
$10 million each year, or $20 million, because this would be additional 
costs, since the Medicaid assistance would go up more than it would if 
in fact consumers had access to the generic drug. In addition, the 
company will be providing reimbursements to some of the States because 
of the additional Medicaid costs.
  The problem, Mr. President, is that this is a gigantic ripoff for the 
rest of the consumers because the generic drug would give consumers 
access to affordable treatment, those who are suffering from arthritis. 
So that, I think, is egregious. Clearly, I think it is the wrong thing 
for us to do.
  The point of this challenge, however, has to do with the process. 
There was an attempt to stick this provision into the Senate 
Appropriations Subcommittee, and there was a very strong letter from 
Senator Pryor and Senator Chafee saying, don't do that. But this was 
stuck into the committee late at night, not known to very many Members. 
It had never really passed out of

[[Page S9500]]

any committee. It hadn't passed out of any committee in either House, 
certainly not the two committees with jurisdiction over this 
legislation. Therefore, it was not within the scope of this conference 
committee to stick this provision in.
  So, Mr. President, my point and the reason that I raise this point of 
order is that I think what was done really was a violation of the way 
the process is supposed to operate. On a very legal, technical point, 
it was a violation. This had not been dealt with by committee in either 
House.
  Mr. President, I have to say, I was a college professor and used to 
teach political science courses, and I knew conference committees were 
called the third House of the Congress, but I had no idea that this 
kind of action could be taken, really, in the dark of night, not an 
open process, not accountable to the citizens of the country. It was 
the wrong thing to do, and it is for this reason that I raise this 
point of order and that I appeal the ruling of the Chair.
  Mr. SANTORUM. Will the Senator yield for a question?
  Mr. WELLSTONE. I reserve the remainder of my time, and I will yield 
on your time.
  Mr. SANTORUM. In that case, I will yield to the senior Senator from 
Pennsylvania.
  Mr. SPECTER. Mr. President, contrary to the statement by the Senator 
from Minnesota, this matter has been considered in the Judiciary 
Committee as part of the markup on the drug patent bill. It was on the 
floor as a part of the Hatch amendment, which was a part of the defense 
authorization bill.
  This measure was also considered by the House, which passed a 2-year 
patent extension for this drug on separate occasions; in 1992 and again 
in 1996. It has been so considered as a matter of basic fairness. The 
FDA delayed action on this matter for some 97 months, contrasted with 
27 months on the average.
  This matter has been considered extensively. I raised it in open 
session in the Agriculture Subcommittee of the Appropriations Committee 
earlier this week. It had been in the House Agriculture appropriations 
bill and was dropped in conference. I do not vouch for the provision 
where it was added to the health care bill after conference. I do not 
know about that and was not a party to that.
  But we have a very basic problem in America about research 
expenditures for drugs that benefit sick people. These drugs benefit 
everybody including the elderly, the young, and those not in either 
category. If we are going to expend a very substantial sum of money on 
research, there is going to have to be a reasonable return. We have a 
patent period, and the patent period was not honored in this case. The 
manufacturer here, Wyeth-Ayerst, is a major Pennsylvania constituent of 
Senator Santorum's and mine, employing thousands of people in the 
Philadelphia suburbs. If they are to be able to continue, they are 
going to have to have a reasonable return.
  Those who added it to this bill did so because this is a health bill. 
One way or another, these sorts of matters must be considered. I am 
very sympathetic to generic manufacturers, and I have a very strong 
voting record for senior citizens on issues like this. But if we are to 
have the kind of research, productivity and the great miraculous 
advances, we are simply going to have to have a reasonable rate of 
return on the patent period that is realistic. That is why on the 
merits and as a matter of fairness, I have advocated this position 
publicly and do so today, because I think it is an appropriate and 
sound position.
  I yield to my colleague from Pennsylvania.
  Mr. SANTORUM. I think the Senator has articulated the arguments on 
the merits very well. This is an appropriate remedy. I just ask the 
Senator from Minnesota if he has ever heard of the drug Daypro. It is a 
competing drug that had the same problems going through the FDA as 
Lodine, the same problems, the same delay. But in the 1996 omnibus 
appropriations bill, Daypro got an extension. I don't recall the 
Senator from Minnesota objecting to that extension, asking for that to 
be removed. But they got one, too.
  So what we have now is a competitive disadvantage. We have one 
company with a similar drug, a similar prescription, getting an 
extension and another drug with the same FDA problem not getting an 
extension. This is a health care bill. The Chair has ruled that it is 
within the scope of this bill. So I think what is going on here is, 
frankly, not a special interest, but simply a matter of fairness that 
we are trying to address. I think what has gone on here is really a lot 
of actions that--as the Senator said, this bill passed here in the 
Senate, passed in the House. It is not a new provision. It has had 
committee discussion. This thing is not anything new to any Member of 
this floor. We should have left it alone and created the fairness that 
this Senate acted on and the House acted on in the past.
  Again, I agree with the Senator from Minnesota, and I don't agree 
with sticking things in conference that weren't originally there. I 
understand that objection. But this is not a red herring proposal. This 
is a sound proposal. This is a fair approach, and I think we are going 
to see either this or, frankly, the repeal of the Daypro. One or the 
other is going to happen again sometime in the next couple of months.
  Mr. WELLSTONE. Mr. President, I appreciate working with both of my 
colleagues. For all I know that other provision was stuck in conference 
committee in the dark of night. I did not catch it. I really appreciate 
what you have said. I think we would probably disagree maybe on the 
substance because I think by postponing the time that this can be 
generic. We really provide more cost to the consumers. But it seems 
like what you have said--and hopefully we can all agree on this--this 
should not have been stuck in the conference committee the way it was. 
It was not appropriate, and that is why I challenged the ruling of the 
Chair.
  I think from the point of view of the way our process operates it is 
a huge mistake to legislate this way. That is why I hope that I will 
receive strong support on this challenge. And my understanding is that, 
if we prevail on the voice vote, this will become a successful 
concurrent resolution which will be a technical correction resolution 
that I introduced on behalf of myself, and also Senator Kennedy from 
Massachusetts.
  Again, I thank especially Senator David Pryor for really bringing 
this to my attention.
  Mr. SPECTER. Mr. President, I would take strong exception to any 
language if it refers to anything which my distinguished colleague, I, 
or others in the advocacy of this position have done. We have spoken of 
it directly. I did so earlier this week in the conference, and we do so 
on the floor today.
  We need medical research. We need these wonder drugs to be produced. 
It is a matter of fairness as to how we are going to compensate those 
who produce them. If we are to have them for the consumers, we will 
have to be able to pay for them. And I think ultimately we will have to 
take this matter up on the merits, and I think at that time we will see 
that it is an appropriate position which Senator Santorum, I, and 
others have advocated.
  Mr. WELLSTONE. Mr. President, how much time remains on our side?
  The PRESIDING OFFICER. The Senator has 36 seconds.
  Mr. WELLSTONE. I say to my both my colleagues from Pennsylvania that 
they clearly are two Senators who are always more than willing to be 
strong and determined and honest in their positions in public.
  This amendment is not at all aimed at the Senator from Pennsylvania. 
It is aimed at something that I think is wrong with this process.
  I yield the floor.
  The PRESIDING OFFICER. The question is, Should the decision of the 
Chair stand as the judgment of the Senate?
  The ruling of the Chair was not sustained.

                          ____________________