Congressional Record, Volume 144 Issue 89 (Wednesday, July 8, 1998)

[Congressional Record Volume 144, Number 89 (Wednesday, July 8, 1998)]
[Senate]
[Pages S7700-S7704]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

MANAGED CARE

Mr. KENNEDY. Mr. President, the unholy alliance between the
Republican leadership in Congress and the health insurance industry is
working overtime to prevent enactment of meaningful patient protections
to end the abuses of HMOs and managed care health plans. The tactics of
the Republican leadership yesterday made that crystal clear--and
continue the obstruction that has been taking place since the beginning
of this Congress.
Yesterday, the Democratic leader, Senator Daschle, offered our
Patients' Bill of Rights as an amendment to an appropriations bill, to
address the worst abuses of managed care. The Republican leadership
didn't want to debate our amendment in the Senate, because they know
that they cannot sustain a position that protects insurance industry
profits at the expense of patients.
So what did they do? They pulled down the important appropriations
bill in order to avoid a vote on the Patient's Bill of Rights. Then
they filed an immediate cloture petition on the Product Liability Bill,
to avoid having to debate the Patient's Bill of Rights on that
legislation. And I have no doubt that they will continue to engage in
any other parliamentary maneuver they can devise--in an attempt to
avoid debating and voting on the Patient's Bill of Rights. They are
ready to impose a gag rule on the United States Senate, if that is
necessary to prevent us from ending gag rules on the Nation's doctors.
It is long past time for Congress to act on the issue of reforming
managed care. Individuals and families are increasingly apprehensive
about how they will be treated when they are sick. A survey last year
found that an astonishing 80 percent of Americans believe that their
quality of care is often compromised by their insurance plan to save
money. And, too often, their belief is well-founded.
Our Patients' Bill of Rights will end abuses of HMOs and managed care
plans across the country. Too often today, managed care is mis-managed
care. Decisions on health care should be made by doctors and their
patients, not by insurance industry accountants bent on protecting
profits instead of patients.
For more than a year, the Republican leadership has been delaying
action. I introduced patient protection legislation with Congressman
John Dingell nearly a year and a half ago. Since that time, the
President's non-partisan blue ribbon commission has recommended nearly
identical protections. Under Senator Daschle's leadership, we have
introduced the Patients' Bill of Rights legislation in both the House
and Senate--and it is supported not only by Democrats but by
Republicans as well.
More than 170 organizations have endorsed it. These groups represent
tens of millions of patients, doctors, nurses, persons with
disabilities or chronic illnesses, those in the mental health
community, workers and families, consumers, small businesses, religious
organizations, non-physician providers and many others.
Yet, despite this support and the obvious need for action, the Senate
leadership continues to delay. The special interests that profit from
the status quo have designed a campaign of misinformation to obscure
the real issues and prevent action.
There is no mystery about what is going on. The Republican
leadership's position is to protect the insurance industry instead of
protecting patients. They know they can't do that in the light of day.
So their strategy has been to work behind closed doors to kill the
bill. Keep it bottled up in committee. Prevent any debate or vote by
the full Senate.
Willis Gradison, the head of the Health Insurance Association of
America, was asked in an interview published in the Rocky Mountain News
to sum up their strategy. According to the article, Mr. Gradison
replied ``There's a lot to be said for `Just say no.''' The author of
the article goes on to report that

At a strategy session . . . called by a top aide to Senator
Don Nickles, Gradison advised Republicans to avoid taking
public positions that could draw fire during the election
campaign. Opponents will rely on Republican leaders in both
chambers to keep managed care legislation bottled up in
committee.

Instead of participating in a productive debate on how to give
patients the protections they need, insurance companies and their
allies in the business community have heeded the call of the

[[Page S7701]]

Republican leadership, in the words of a leadership aide acting on
behalf of Senator Lott, to ``get off their butts and get off their
wallets.'' They are contributing hundreds of thousands of dollars to
GOP candidates who toe their line, while simultaneously preparing to
spend millions of dollars on TV ads to defeat the Patients' Bill of
Rights.
But before we swallow their phony charges of excessive increases in
costs and in the number of the uninsured, let's examine their
credibility on this issue.
Insurers say it is too costly to guarantee that treatment decisions
are made by doctors and patients. Yet, they pay their CEOs and high-
ranking executives multi-million dollar compensation packages and spend
millions of dollars on luxury accommodations for corporate
headquarters.
How can the insurance industry tell the American people with a
straight face that this legislation will raise costs, when it is
spending millions of dollars--derived from premiums paid by hard
working families--on a scare campaign to intimidate patients and deny
them the protections they need, deserve, and thought they had paid for?
Mr. President, we have, and I will include in the Record, a summary
of the various protections that are included in this legislation. But
before I do, I think it is interesting to know where we are with regard
to the scheduling of this particular provision.
The Patient's Bill of Rights was offered last evening by the Senator
from South Dakota, Senator Daschle, and was sent back to the desk. We
have been denied an opportunity for a markup on this legislation in the
Labor and Human Resources Committee. The Republican leadership has
refused to schedule this legislation on the floor of the U.S. Senate,
with the exception of the phony unanimous consent request. The consent
request indicated that when we had the debate on this legislation, and
after a vote on or in relation to this legislation, it would be in
order for the majority leader to return the legislation to the
calendar. That means that after we voted on the legislation, even if we
voted for good legislation that protects the consumers in this country,
under this consent request, the Republican leader would have been able
to send it back to the calendar. The Republican leader would not send
it to the House of Representatives for action. The Republican leader
would not even take legislation if it was sent over from the House of
Representatives and we acted upon it. The Republican leader would not
send it to the President of the United States: instead, the Republican
leader would put the legislation back on the calendar.
This is a phony initiative by the Republican leadership. There isn't
a Member of this body who wouldn't read it and understand how phony it
is. It is insulting to the millions of patients in this country who
have suffered to say that if we take action to try to protect you, and
we have a positive vote in the Senate of the United States, the leader
of the Republican Party can put it back on the calendar and frustrate
every other Member in the Senate.
This is the first time in 36 years I have ever seen a consent request
like this. Last night, the Republican leaders said, ``But, oh, wasn't
the Senator from Massachusetts here when there was objection to the
leader's request?''
Here is the consent request. I will put it all in the Record, Mr.
President: ``it be in order for the majority leader to return the
legislation to the calendar,'' effectively killing it. To add insult to
injury, Mr. President, it points out that we will not be in order to
offer any other health care measures for the rest of the session.

Isn't that a beauty? We will not be able to offer any other health
measures for the rest of the session. We will not be able to deal with
medical records confidentiality issues; we will not be able to deal
with Medicare issues. We will not be able to deal with any other health
care issue for the remainder of this session.
Why? What is it about debating the health care issues which are of
such fundamental importance to families in this country that we cannot
get a debate on it? What is it, Mr. President? What does the Republican
leadership fear about debating these issues on the floor of the U.S.
Senate that are of central concern to every family in America? That is
the question we ask.
And you know what our answer is? You know what our answer is, Mr.
President? Our answer is that tomorrow at 10 o'clock we are going to
vote on the IRS conference report. We are going to vote on cloture of
the product liability bill. Are we then going to proceed to health
care? No. We are instead going to have a 2-hour debate on agricultural
sanctions. Then are we going to proceed to health care? No. We are
instead going to the higher education reauthorization. With the higher
education reauthorization, by prior agreement that was made many weeks
ago, we are prohibited from offering any amendments. And then this week
is finished. It is gone. Starting tomorrow, thirty-five more days are
left in this session. This week is gone without any opportunity to
debate this important issue.
I see members of the Republican leadership here. Maybe the Senator
from Oklahoma can explain why we cannot debate health care issues on
the floor of the U.S. Senate. We had the opportunity to have health
care raised yesterday by the Senator from South Dakota. And here we
have the Republican leadership agenda. The vote on the IRS conference
report is important and we are going to vote on it.
But is the conference report on the IRS more important than the fact
that tonight, across this country, insurance company agents are making
decisions on health care that will imperil the health of families? Can
we say that the IRS is more important? What about the vote on the
product liability bill? Is that more important than this debate? The
Republican leadership says that we're going to have a 2-hour debate on
agricultural sanctions. And it goes on and on.
Mr. NICKLES. Will the Senator yield?
Mr. KENNEDY. Just let me make a brief comment because I was denied
the opportunity last evening by the Republicans to have a conversation
or ask questions last night. I will make a brief statement, and then I
will yield.
Last night, my friend from the State of Washington said:
``Republicans will decide whether this great body is going to debate
health care. I want to say that to the Senator from Massachusetts.
Republicans will. They'll make the decision. Democrats won't. And we
decided that because the Senator from South Dakota has raised this
issue we are not going to permit a debate on this issue on the floor of
the U.S. Senate.'' That is what they have said.
Mr. NICKLES. Will the Senator yield?
Mr. KENNEDY. The Republican leadership, in issuing their list of
priorities about what we are going to consider during July and during
September, has denied us the opportunity to debate the health care
issue.
Mr. NICKLES. Will the Senator yield?
Mr. KENNEDY. In 1 more minute I will yield. It has been the
Republican leadership who has denied us the opportunity to mark up this
legislation in committee, to move it to the calendar, and to permit any
certainty about when we would debate it. That is the record.
I will be glad to yield for a question to the Senator from Oklahoma.
Mr. NICKLES. Will the Senator yield? I appreciate----
Mr. KENNEDY. For a question.
Mr. NICKLES. I would like to rebut some of the things the Senator
said.
Mr. KENNEDY. The Senator will have an opportunity to do so. I waited
last night until after the Senator finished. But I will be glad to
yield to respond to a question, if you have one, or I will continue.
Mr. NICKLES. Please continue. I will make the statement afterwards.
Mr. KENNEDY. Mr. President, in the area of the Patients' Bill of
Rights, we have provisions supported by four different groups. One
group is the President's Quality Commission. The Commission is made up
of a number of extraordinary individuals from the insurance industry,
from HMOs, from consumer groups. This is a bipartisan group that is
universally respected.
Another group is the NAIC, which is the National Association of
Insurance Commissioners. The NAIC includes both Republicans and
Democrats alike across the country. A third group is the American
Association of Health Plans, which is the trade organization of HMOs.

[[Page S7702]]

The PRESIDING OFFICER. The Senator's 15 minutes have expired.
Mr. KENNEDY. I ask unanimous consent for 10 more minutes.
The PRESIDING OFFICER. Is there objection?
Mr. NICKLES. Reserving the right to object, and I will not object. I
would like to modify the Senator's request, that following his
additional 10 minutes, I have 10 minutes to respond.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. KENNEDY. Thank you. And I yield 8 minutes to myself of the 10
minutes.
So we have provisions supported by these four organizations:
Medicare; the National Association of Insurance Commissioners; the
President's Quality Commission; and the American Association of Health
Plans.
Now, we come to the provision regarding access to emergency care to
permit individuals to go to the nearest emergency room. All four
organizations agree with this. My time tonight is going to be short, so
I will get back to this issue at another time when we debate it.
Another provision is access to specialty care, for example when a
child has cancer and ought to be able to go to an oncologist. Oh this
provision, we have support from three out of the four organizations.
The President's Quality Commission, the HMO trade association, and
Medicare all say yes.
For the direct access by women to OB-GYNs, the President's Quality
Commission says yes.
Continuity of care allows an individual to be able to continue to get
treatment by their doctor if the doctor is dropped from an HMO. This
provision is effectively favored by all of the various groups.
What in these particular areas can our Republican friends complain
about? Let us go on.
Coverage of an individual to participate in clinical trials is
absolutely essential if we are going to get breakthroughs, particularly
in breast cancer, and allow patients to take advantage of cutting-edge
new technology. Access to clinical trials is supported by the American
Association of Health Plans.
Provider networks need to ensure adequacy. If you are going to
represent yourself as an HMO, all of these groups say you ought to have
a balanced number of participating professionals and hospitals.
Nondiscrimination in delivery of services. You cannot discriminate
against sick people and cannot discriminate in the delivery of health
care by race or religion. Three out of the four groups agree with this
provision.
Patients need information about copays, deductibles and standard
information so they can make comparisons between different groups. Who
can complain about this? All four groups support this provision.
Prohibition on gag rules. All four groups agreed with us on this
position. You should not prevent doctors from being able to tell you
what is in the best interest of your health.
Prohibition of improper incentive arrangements. Can you imagine we
have to put legislate to prevent HMOs from putting the kind of improper
incentives into their arrangements with the medical profession? It is
extraordinary that we have to do this, but it is necessary.
Internal appeals to have a fair appeal in cases. All four groups
agree on that.
The external appeals, to have a third party group. The President's
Quality Commission recommends it and Medicare has been doing it for
years.
And finally, to hold plans accountable in State courts. We had a vote
here in the U.S. Senate the other day not to give blanket freedom of
any kind of liability for the tobacco industry, and it passed by two-
thirds to three-quarters of the U.S. Senate. We want to give the same
kind of protections and accountability on the issues of health care. We
will have a chance to debate that. If the Republicans don't want us to
do that, then let's have a rollcall vote on that.
These are the essential aspects of the Patients' Bill of Rights. They
have been taken from these four different organizations. Most of these
items are supported by two, three, in many instances all four, of the
different groups. This is a commonsense protection for the patients of
this country. If Republicans differ with those kind of protections, let
us stand up and debate them. Let us hear their alternative.
We have heard in the last few days that the right to hold plans
accountable is going to drive the health care costs through the roof.
Read in the Wall Street Journal today an article on a study by Coopers
& Lybrand that showed it will only cost pennies a day for this
protection. Don't just read the Journal article, but also look at what
has happened to the 23 million Americans--most of them State and county
officials--who have those kinds of protections, and look at the cost of
their premiums. Their premiums are not any higher. This result is
better than any study that can be done by the Chamber of Commerce or
other group that is wholeheartedly opposed to this legislation.
These are the essential elements of the Patients' Bill of Rights,
introduced by Senator Daschle. Perhaps they have to be altered, or
maybe they ought to be strengthened, or maybe others in this body have
better ideas to achieve these kinds of protections. But let us hear the
opposition and the reasons for it. Let us hear the reasons. Let them
advance those causes. But the silence is deafening. The American public
deserve better.
The Republican leadership will have a chance to debate the issue,
because Senator Daschle and others will continue to press it until we
get a time to debate it. If that is wrong, so be it. Some of us are
committed to protecting the American family, to make sure that doctors
and nurses and patients are going to be making the health care
decisions and not the insurance companies. That is the issue, plain and
simple. We will challenge the Republican leadership tonight, tomorrow,
and every other day for the 35 days remaining in this session, to give
us a time to debate this issue.
It is interesting that the essence of this legislation is supported
by Republicans in the House of Representatives, including Congressman
Ganske, who is a doctor and was at our press conference. Congressman
Ganske didn't believe this ought to be a partisan issue. Dr. Norwood, a
Republican, didn't believe this ought to be a partisan issue. But here
in the U.S. Senate, the Republicans are making this a partisan issue.
Here in the U.S. Senate we are told: No, not only you won't have any
one of us support it, but we won't even give you the time to debate it.
That is wrong.
How much time remains?
The PRESIDING OFFICER (Mr. Brownback). The Senator has used his 8
minutes.
Mr. KENNEDY. I yield myself the last 2 minutes.
In summary, the Patients' Bill of Rights guarantees the access to
specialists, emergency rooms, and other needed care. It expands
choices. It ensures independent appeals. It holds plans accountable for
the medical decisions, restores doctor-patient relationship,
establishes quality and information standards.
The American people are entitled to these rights in their health
care. Children in this country are entitled to them. Senior citizens in
the country are entitled to them. Hard-working men and women in this
country are entitled to them. Doctors are entitled to the kind of
protections we provide. The major insurance companies and HMOs should
be held to a standard like every other industry in this country.
If that is wrong, let's call the roll and find out who believes in it
and who does not.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. NICKLES. I will respond to a couple of comments made by my
colleague and friend from Massachusetts.
One, he is absolutely, totally, completely wrong on many of the
statements that he made, particularly in saying the Republican
leadership wouldn't allow this bill to come to the floor, allow a
debate to happen on the floor of the Senate on health care. As the
Senator should be aware, we have already made a couple of offers that
we would try to accommodate some type of time agreement to bring up
this issue this month. We are still working on it.

My colleague was absolutely incorrect when he said the Republicans
were insisting that, if we win, we can still put this bill back on the
calendar. That wasn't our request. That wasn't our statement. It is not
our last request.

[[Page S7703]]

I am reading the unanimous consent request given on June 25 or 26
which said votes held on final passage--if read the third time, the
Senate votes on passage of the bill without any intervening action or
debate. The Senate will request a conference with the House, the chair
will be authorized to appoint conferees, and the Senate-House care bill
will be placed on the calendar.
I make those points. We are willing to have debate on the bill. We
are willing to consider different options--both the House and the
Senate, the proposal by my friend and colleague from Massachusetts, as
well as the substitute that I am working on with some of our other
colleagues.
We will have a debate on the floor. We are willing to work out a time
agreement to where we will have it this month. We don't intend to spend
2 months on this bill or even 1 month on this bill, but we are willing
to have a debate on health care legislation. It goes under the title of
Patients' Bill of Rights. I happen to think that is a very good title.
I might also mention that the President's Commission on Health Care
Quality came up with a lot of recommendations. They have several things
that they recommend be included in all health care plans, but they said
they should be included voluntarily. I might mention that the bill that
our colleague from Massachusetts is promoting mandates; it doesn't have
voluntary compliance. It mandates a lot of things that aren't included
in the President's Commission--many things. And many of those things
have a lot of cost. We have asked the Congressional Budget Office to
give us cost estimates of Senator Kennedy's bill, the Patients' Bill of
Rights, and we don't have that. I hope we can get it before we commence
debate.
We have stated, and I just want to repeat to all of our colleagues,
we are willing to discuss this issue. We are willing to have time on
the Democrats' alternative. I might mention, the Democrats'
alternative, I believe, to my knowledge, no Republican in the Senate
has cosponsored, nor should they, because I think it is a bad bill. I
think it definitely would increase consumer cost, drive up the cost of
health care insurance, the cost of health care, period, and the net
result would be, fewer people would have health care. I don't think
that is a result that we want to have. I am willing to say that I am
willing to work to try to come up with a package that we can support.
I see my friend and colleague from Florida. Maybe we can come up with
a bipartisan package. I am willing to do that. I know the Senator from
Florida has met with other Senators in a bipartisan way to see if we
can come up with items that will make sense, that will not have
dramatic increases in consumer cost, in health care cost, but try to
see if we can't work out some things to help cover some of the problems
that have arisen with managed care. I am willing to do that. I am not
one who says we don't need any legislation whatever. Some people have
taken that position. That is not this Senator's position. I am willing
to try to legislate responsibly in health care. I don't want to do
something we will find out will do damage, like how significant health
care cost increases affect our consumers. I don't think they are asking
for increased health care costs. I don't think that would be helpful.
So I will repeat to my colleague from Massachusetts and other
Senators on the floor--and I know, because I have talked to the
majority leader day in and day out--we are working on trying to come up
with an arrangement where we will have adequate time, but not an
unlimited amount of time, to consider health care legislation--maybe
under the guise of the Patients' Bill of Rights--and to allow a couple
different alternatives. My colleague from Massachusetts has an
alternative; he has a proposal. Some of us are working on a different
proposal. There may be some of those things in common. But certainly
there will be very significant differences--big differences,
philosophically, in cost, in premium increases, and so we need to
discuss those.
We need to have an adequate time to discuss those and to consider the
different alternatives and then to have a vote. We expect to do so. We
don't expect to change the rules of the Senate. We don't expect to
guarantee that one side or the other side will have a victory in the
process, but we have stated--and, again, as assistant majority leader,
I am telling our colleagues on the Democrat side of the aisle that we
are willing to try to work out an arrangement, and we will have
adequate time to discuss this issue on the floor this month. I think
that is fair enough.
The majority leader has been fair. What we are not willing to do is
stop the Senate from doing any work. So, yes, we are going to pass IRS
reform and we are going to pass it tomorrow. I think it is a giant step
in the right direction. Yes, we are going to take up higher education
reform, and we need to do that. It is very important to colleges,
universities, and students all across the country. That needs to
happen. Yes, we need to pass appropriations bills. I think it was very
unfortunate that the minority leader of the Senate introduced the
Patients' Bill of Rights on the VA-HUD bill, the veterans and housing
appropriations bill. It doesn't belong there. He knows that. We have
already indicated a willingness and a commitment to bring up the so-
called Patients' Bill of Rights this month. Someone might say, wait a
minute, you have not passed the tobacco bill. We spent 4 weeks on the
tobacco bill. They didn't win. I believe they are not going to win on
the Patients' Bill of Rights.
Senator Kennedy said, ``We are going to bring up minimum wage.'' They
have that right. But they don't have a right to have their agenda
totally dominate the Senate. The Senate needs to do its work. We will
consider some of their issues and some of ours, like IRS reform. We are
going to take that up, and, hopefully, we will pass that tomorrow.
So I mention to all of our colleagues that I want them to be aware of
the fact that we are trying to be fair, we will be fair, and we will
consider this issue. We will have different alternatives--I think
significantly different alternatives. I believe the alternative that
the Republicans will be offering will be in stark contrast to the
Democrats'. Maybe some things will be in common. We are going to offer
greater choice and opportunity and competition. Hopefully, that will
help change buyer behavior and get health care costs down, instead of
the increases that would be achieved by Senator Kennedy's proposal.
So there will be differences. But that is fine, that is good, that is
legitimate. We will have that debate, and we will have adequate time
for that. But it can't consume 2 months. It will probably consume 2 or
3 days. The Senate needs to decide what it wants to do. I expect that
we will.

So I make that commitment to our colleagues. This is going to be a
busy month. We need to pass a lot of appropriations bills. We have a
couple appropriations bills we are working on right now that,
unfortunately, people have tried to load up with bills that are
extraneous, like the tobacco amendment on the agriculture
appropriations bill or the Patients' Bill of Rights on the VA-HUD bill.
That is not acceptable. It is not going anywhere. It may be good for
political posturing, but it is not going to help pass their
legislation. We have committed to bring up the legislation in due time
this month, have adequate debate and consideration of a couple of
different alternatives, and go from there. So I make that commitment to
our colleagues. I think we should lower the rhetoric and the volume it
has had and see if we can't work together in a bipartisan way to make
some positive improvements in health care legislation.
Mr. President, I thank my colleague from Florida. I know he had a
unanimous consent request to speak. I didn't mean to delay him. I
apologize for interjecting, but I did think it was important to respond
to the Senator from Massachusetts for his comments. I appreciate the
accommodation.
I yield the floor.
Mr. GRAHAM addressed the Chair.
The PRESIDING OFFICER. The Senator from Florida is recognized.
Mr. GRAHAM. Mr. President, I thank my colleague from Oklahoma and my
colleague from Massachusetts for a very interesting, exciting debate
which, from the comments of the Senator from Oklahoma, will be a teaser
to a future debate that we will look forward to having on these issues
in the next few days.

[[Page S7704]]

Mr. NICKLES. I thank my colleague.
(The remarks of Mr. Graham pertaining to the introduction of S. 2278
are located in today's Record under ``Statements on Introduced Bills
and Joint Resolutions.'')
Mr. GORTON addressed the Chair.
The PRESIDING OFFICER. The Senator from Washington.

____________________