[Congressional Record Volume 144, Number 100 (Thursday, July 23, 1998)]
[Senate]
[Pages S8881-S8886]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        PATIENTS' BILL OF RIGHTS

  Mr. KENNEDY. Mr. President, on February 25, 1997, a number of us 
introduced the Patients' Bill of Rights. Since that time, the 
Republican leadership has sought to delay and deny action. The 
leadership and Senator Gramm have made it very clear that they are not 
yet willing to allow a free and fair debate.
  Mr. LOTT. Mr. President, will the Senator yield?
  Mr. KENNEDY. I yield without losing my right to the floor.
  Mr. LOTT. I would like to say to the Senator that we would be glad to 
agree to have this debate and go forward with the Patients' Bill of 
Rights issue. I would like to begin thinking in terms of what we could 
work out as a unanimous consent agreement. Going back to June 18, 
originally it was suggested that Senator Kennedy's bill be up and we 
have an alternative, and that we have a good debate and vote. That is 
fine. Let's do that. Then I suggested, well, if we could get some time 
agreements on when we could complete it, with some limited amount of 
amendments, we could do that. I don't think 40 would be considered 
reasonable.
  But I am saying to the Senator that I would like to work something 
out. I am hoping that next week, Wednesday or Thursday, we are going to 
get to this and get it done before we go home for the August recess 
period.
  I just want to say that we are ready. We would like to do this. 
Beginning next week, I am going to start asking unanimous consent 
requests to actually get it done, because we are ready to go to a vote. 
But we also have other things. And Senator Kennedy has been 
cooperative. We have been working to get issues done. We need to try to 
do that and allow time for a full and fair debate on this issue. We 
would be glad to do that.
  I just wanted to make sure he was aware that we are willing to do 
that.
  Mr. KENNEDY. Mr. President, I have heard that same explanation, with 
all respect, by the majority leader for some period of time.
  I want to just review, since the majority leader is on the floor at 
the present time--we had the budget resolution. We had 7 days of 
debate. We had 105 amendments. Defense authorization, we had 6 days of 
debate, 150 amendments; Internal Revenue Service restructuring, 8 days 
of debate, 13 amendments. We had tobacco, 17 days and scores of 
amendments; agriculture, 5 days of debate and 55 amendments. The 
Senator now is saying, Well, we will bring it up next week, just before 
we get out, and have a vote on your amendment or the Daschle bill and/
or the Republican proposal.
  Mr. President, I just wonder why we can't have a full debate on the 
comparison between the emergency room provisions of the Republican 
guarantees and those in the Patients' Bill of Rights.
  I intend to talk about those--now I have the floor. I have the floor. 
I am glad to yield--but when I inquired of the leader on other 
occasions, he gave us that other little answer about, ``We are going to 
come to this sometime when we are ready to come to it, some other time, 
next week, and maybe Wednesday, or Thursday, just before we go out we 
will have some proposal.'' We are just spelling out now what has been 
included in these different bills and why it is important to have a 
full and fair debate on them.
  We have seen and we know what the leadership's position has been 
until the very recent days, and that has been to refuse to permit us to 
have a markup in our committee, refused us to be able to even have 
scheduling. I have seen the list of the Republican leadership, and it 
never was on the list of the Republican leadership in terms of 
priorities.
  Now we are glad that last Friday there was the publication of the 
``Republican Bill of Rights.'' That was last Friday. But I want to just 
review, since the leader mentioned the proposal that was put forward by 
the leader. This was, I believe, the June proposal that was put forward 
by the majority leader.

       I ask unanimous consent that prior to the August recess 
     [June 18, that was 4 weeks before, June 18] prior to the 
     August recess, the majority leader, after notification to the 
     minority leader, shall turn to the consideration of a bill to 
     be introduced by the majority leader [no information about 
     what that is] or his designee, regarding health care [and 
     further] I ask the Senate to proceed to its immediate 
     consideration; and that, following the reporting . . . by the 
     clerk, Senator Daschle, or his designee, be recognized to 
     offer a substitute to the text of S. 1891 as introduced on 
     March 31.
  That isn't our bill.
  Now, it goes on. It does not include the right to hold the plans 
accountable. It does not include protecting people who buy their own 
insurance policy.
  Let me just go on.

       I further ask that during the consideration of the health 
     care issue it be in order for Members to offer health care 
     amendments in

[[Page S8882]]

     the first and second degree. I further ask unanimous consent 
     that the Chair not entertain a motion to adjourn or recess 
     for the August recess prior to a vote on or in relation to 
     the majority leader's bill and the minority leader's 
     amendment, and that following those votes it be in order for 
     the majority leader to return the legislation to the 
     calendar.

  Even if we win the vote, the majority leader has the ability to send 
it to the calendar--not send it over to the House of Representatives, 
send it to the calendar, even if we win that proposal.
  Now, it continues.

       Finally, I ask unanimous consent that it not be in order to 
     offer any legislation, motion or amendment relative to health 
     care prior to the initiation of the agreement and following 
     the execution of the agreement.

  Not be in order to offer any legislation, motion or amendment to 
health care.
  Well, there it is, Mr. President. We are scared in the Senate. After 
we have some vote, even if we survive, the majority leader can put it 
back on the calendar, and under the consent agreement we can't even 
talk about health care for the rest of the session; for the rest of the 
session. That is what it says here, the rest of the session.
  Now, that is the consent agreement that is referred to. ``I want to 
remind the Senator from Massachusetts we keep asking the Democrats for 
proposals on it.''
  I don't know how long it took to reject that particular proposal, but 
there it is. In all the time I have been in the Senate, this is really 
the most preposterous proposal, consent agreement I have ever heard, 
that if you are going to be successful and win, instead of sending the 
bill over to the House, you put it right back on the calendar, and you 
cannot have a vote on the legislation. And then after that, you can't 
bring up any issue relating to health for the rest of the session--
nothing on privacy, nothing on expanding the whole Medicare system in 
terms of purchasing, the possibility for elderly citizens to buy into 
the Medicare system, no way. Nothing dealing with any of the issues 
dealing with health care. That is the proposal and that is what we are 
supposed to say, ``Oh, what a fair proposal this is.''
  And so we have the Republican proposal that was introduced last 
Friday. Now, we have no interest in delay of the legislation. We have 
been asking for action for 18 months. We insist on a fair debate on 
accountability. That is what we are asking, fair debate on 
accountability. We have had scores of amendments and days of debate on 
other legislation, and we are entitled to fair debate on accountability 
on these measures.
  There are dramatic differences on these measures. I will take a few 
moments to get into some of those.
  Senator Daschle made a series of formal offers on July 16th, asking 
for a debate beginning on July 21 with 20 amendments on a side. It is 
almost a week later and all we have is that maybe sometime Wednesday or 
Thursday next week we may have time to have a debate on an issue which 
is of paramount importance for the parents and families of the people 
of this country.
  So this is not an unreasonable request given the importance of this 
bill and the large number of loopholes in the Republican proposal which 
will be the bill in the Chamber.
  We had, as I mentioned, days of debate on the budget resolution, 6 
days of debate on defense authorization, 150 amendments. We had 8 days 
of debate on the Internal Revenue bill, just concluded 5 days of debate 
and 55 amendments on the agricultural appropriations bill.
  This is the most important health care bill that this Congress will 
consider, and we are now told by the majority leader that maybe 
sometime next week he will make a request that we deal with this in 2 
days. We had 8 days, as I mentioned, on the Internal Revenue bill, and 
5 days of debate, as I mentioned, on agriculture. Now, the majority 
leader and Senator Gramm are insisting the only way they will debate 
the issue is up or down on their bill and one vote and that is it.
  The American people deserve to know where their Members stand on a 
number of critical issues that are essential to patient protection. The 
Senate deserves an opportunity to amend and improve the Republican 
bill. It is not unreasonable to ask Members where they stand on whether 
protections should apply to all 161 million privately ensured Americans 
or leave 100 million out. The Republican proposal leaves out more than 
100 million Americans. Now, maybe they have good reason to do so. Their 
answer is the States are doing it. Well, we ought to have an 
opportunity to find out and discuss what the States are doing and how 
much they are doing and how effective it is, given the kinds of 
concerns that patients have. Let's have a debate on that. But, oh, no. 
No, no, we don't have time to get into the fact of whether their 
measure will just cover 48 million and exclude 110 million, or cover 
all of them. It is a pretty important issue, it seems to me, Mr. 
President.

  Is it unreasonable to ask Members where they stand on allowing a sick 
child with rare cancer access to a specialist to treat that particular 
disease?
  We had very powerful testimony this morning from a very outstanding 
oncologist, a specialist who has been operating primarily on women with 
breast cancer, and she was, with tears in her eyes, talking about the 
various patients she is treating now who come to her with these various 
tumors in their breasts. And she looks at the first part of the chart 
and finds out what the size of that particular tumor was when it was 
first diagnosed and then what it is on the day that she is there called 
upon to operate.
  She says the time that lapses between the first discovery of those 
biopsies, which demonstrate that the tumors are cancerous, to the time 
she gets to see them is often the difference between life and death and 
more often than not, as she looks over the various files that she gets 
of various women, the ones with the largest gaps are the ones who are 
part of HMOs and the procedures that have been denied.
  Or listen to the doctor who was talking today about a particular 
procedure that was going to be necessary for a child who was having 
constant headaches, and the doctor said, ``What we need is an MRI,'' 
and the HMO turned that down. Under the Republican bill, since the cost 
of that MRI was $750, that decision would not be able to be appealed. 
It was less than $1,000. This was a family of five, income of $30,000. 
The difficulty of that family was having the $750.
  And do you know what the family did? They went down to the county 
hospital--the county hospital. After a period of time, they were able 
to get that MRI in the county hospital to find out about the needs of 
that particular child. You know something. The taxpayers picked up the 
tab for that. And the bottom line of that HMO looked better and better 
because they didn't have to pay for that important service which the 
subscriber had effectively paid for when they signed on for the health 
care coverage.
  Mr. President, we ought to be able to talk and debate about what is 
going to happen, what kind of protections are we going to give doctors 
when they speak out for their patients in the HMO system. Are they 
going to be under the Republican program which still permits doctors to 
be fired if they object to prescribing certain procedures to patients 
that are not desired or approved by an HMO? Shouldn't we provide 
protections for doctors that are looking out for their patients? It is 
not in the Republican bill. Shouldn't we have a time to debate that 
issue out here to find out about it?
  What about the independent and timely third party review? Do the 
Members know that on the independent review, under the Republican 
program, those who are going to be paid to review the various 
procedures which are being reviewed and appealed are going to be paid 
for by the HMO, the same HMO? Do they know the restrictions in the 
Republican proposal in terms of the limitations for the types of 
procedures that can be appealed? We don't want to debate that?
  I can understand why the Republican leadership doesn't want to debate 
it. Because it is indefensible. It is indefensible. We ought to debate 
it.
  And access to clinical trials, an enormously important issue, 
particularly for individuals who have some of the most serious 
illnesses in our society, we are going to say or give assurance to 
those who may have breast cancer--are we going to exclude them from 
participation in those clinical trials? It is an important distinction 
between the

[[Page S8883]]

Republican proposal and our Patients' Bill of Rights.
  We have the continuity of care. When a family has a doctor they are 
seeing and that doctor is dropped from a particular program, under our 
proposal we provide that there is going to be a continuity of care. 
Perhaps it is an expectant mother who is going to deliver and, for one 
reason or another, that doctor is dropped from the particular plan. We 
give assurances.
  So does the Republican program. Listen to this. If the employer, 
however, makes a judgment to change the plans in the middle of the 
year, and that doctor is treating this same patient, under the 
Republican program there is no longer continuity of care. Both programs 
show continuity of care. You have to read the small print; you have to 
understand what the small print says. Shouldn't we have an opportunity 
to debate that issue?
  The whole question of accountability is something that demands an 
opportunity to debate that issue. We are talking about the protection 
that is given to 23 million Americans, county and State employees; 11 
million Americans who have private insurance companies. There is no 
indication there is any escalation of their costs in their program, 
nothing showing that has been introduced here in the Senate. Some have 
tried to represent these as extraordinary escalations of cost, but 
there is no indication, nothing has been put in the Record. What has 
been put in the Record is these 23 million Americans. In CalPERS, in 
California, they have this system with accountability and liability 
built in so they can hold the HMOs accountable, and there is no 
apparent increase in the cost of those programs.
  Basically, what we are saying is very simple, a very simple concept 
at the heart of our proposals and which I believe the Republicans have 
to be able to defend, because it is lacking in their proposal and it is 
worthy of debate. That issue alone is worth hours of debate here in the 
U.S. Senate, with the American people watching, because we believe that 
ultimately the judgment and decision on medical decisions ought to be 
made by the doctors and the patients, and not by accountants of 
insurance companies for the profits of those particular insurance 
companies. That is a basic and fundamental core difference. We ensure 
that is going to be the case with a number of different protections in 
our bill. That kind of assurance is lacking in the Republican bill.
  There will be those who say, ``No, it is not lacking.'' We ought to 
have a chance to debate, so the American people can make up their own 
minds and find out whether it is lacking. We can get the legislation 
out and show where it is lacking. But that is something basic and 
fundamental.
  We also believe we ought to be able to leave it up to the States to 
make those judgments and decisions on calling the tune on the issues of 
accountability and liability. We hear a great deal around this body 
about ``one size does not fit all,'' that all knowledge is not in 
Washington, DC, or on the floor of the U.S. Senate; that the States 
have some awareness and understanding about these issues and problems. 
How many times have we heard that speech? You have heard the speech, 
but you will not hear it when we are debating the Patients' Bill of 
Rights. You will not hear it because our proposal leaves it up to the 
States to be able to enforce the issues of accountability. We leave it 
up to the States to be able to do so. Not the Republican leadership 
program. They effectively preclude the States from having any voice--
shut them out, shut out the States.
  I hope we don't hear that argument about the importance of all 
knowledge failing to be in the U.S. Congress and Senate, so let the 
States decide. That is not going to be an argument you will hear, 
because under the Republican proposal they will not let the States 
decide.
  What is the issue we are talking about? We are talking about a 
medical decision that is made by the doctor and the patient, which is 
overruled by the HMO and causes grievous injury to that individual--
maybe life or serious illness; maybe a mother or father, trying to make 
sure those children and the members of the family are not just going to 
be left homeless, without any kind of compensation for the decision 
that is being made for the profits of that particular industry 
overriding the clear medical decisions. There has to be accountability. 
There has to be accountability.
  We have seen effective programs which we have built into programs on 
appeals, internal appeals and external appeals, that also have 
accountability. It works. We improve and strengthen the quality of 
those programs. We have 11 million Americans--11 million Americans--who 
have independent insurance programs that have this kind of 
accountability. It works for them.
  So we have 34 million Americans who have this kind of protection, but 
we are asked to exclude it, to deny the States from even letting those 
citizens who live in that State who want it from having it. That is 
part of the Republican program. Don't we think that is worthy of a 
debate? Do you want to muzzle us from having some kind of debate and 
discussion on that particular issue? That just does not make sense.
  Mr. President, when the leadership wants to go ahead on these 
appropriations, I am glad to yield the floor so the Senate can move 
ahead on Senate business. But I want to just make a final few comments.
  Mr. President, I believe the Republicans have abandoned their 16-
month-long pattern of stonewalling our Patients' Bill of Rights. Now 
they have produced a plan that borrows the name of our legislation and 
nothing else. The Senate Republican plan is not a bill of rights, it is 
a bill of wrongs. The Senate Republican plan is even weaker than the 
House Republican plan. It is a ``Gingrich lite.'' It protects industry 
profits instead of protecting patients, and it is so riddled with 
loopholes, it is a license for continued abuse. It allows insurance 
company accountants to continue to make medical decisions, and not 
doctors and patients.
  It is very interesting that 170 organizations that represent doctors, 
patients, and nurses support our program. And who supports the 
Republican program? The insurance industry and the HMOs. Does that tell 
you something? Does that tell you something? Mr. President, on this 
issue it tells us a great deal. This is not a question where we have 
some ideas, and half the doctors in the country and half the patients' 
organizations say this is a better idea, and our colleagues on the 
other side have half of them, and people can say, ``Why don't you get 
together?''
  They don't have them. They don't have them. They don't have the 
principal organizations. I will be glad to hear any organizations 
representing health professionals or patients groups that they have.
  We still haven't heard. I can't believe if you didn't have them, they 
wouldn't have them out there. We have them. They support our program. 
They support the real Patients' Bill of Rights.
  But they do have the health insurance industry and they have the HMO 
organizations, the trade organizations that represent HMOs--they 
support their program.
  Mr. President, we believe that patients with cancer and heart disease 
and other serious illnesses will not have timely access to specialists 
and the treatment they need. It immunizes managed care plans from 
liability for abuses that injure or even kill a patient. No other 
industry in America has this immunity from any liability which the 
health insurance industry has and which is protected in the Republican 
program, and the managed care industry doesn't deserve it either.
  Most of the minimal protections in the Republican leadership plan do 
not even apply, as I mentioned, to the majority of Americans. Two-
thirds of the people with private insurance, more than 100 million 
Americans, will not benefit from the Senate Republican plan. The HMOs 
are effectively exempt from regulation under their plan because most of 
their standards apply only to employer-based, self-funded plans. Let me 
repeat that. Most of the standards in the legislation do not even apply 
to the HMOs, only to employer-based, self-funded plans covering about a 
third of privately insured Americans.
  Even if the Senate Republican leadership plan was passed, 100 million 
Americans would be left out. This is unacceptable to the American 
people and should be unacceptable to the Senate.
  The Senate leadership introduced their legislation on Friday. I 
reviewed

[[Page S8884]]

the print over the weekend, and the sum total of what is not in their 
plan at all is staggering. The fact that these minimal protections only 
apply to a third of the people who need help is shocking. But the 
disinformation campaign does not end there. Even the protections they 
claim to have provided turn out, in most cases, to be less than half a 
loaf.
  In my time, I have seen special interest protection programs 
masquerading as consumer protection programs many times, but I have 
never seen anything as indefensible as this. The Republican plan does 
not include many key protections.
  There is no provision to prevent health plans from arbitrarily 
interfering with the decisions of the doctors.
  There is no provision to guarantee access to necessary speciality 
care.
  There is no provision to allow individuals killed or injured by plan 
abuse to hold the plans liable.
  There is no provision to allow participation in clinical trials.
  There is no provision to allow access to prescription drugs not on a 
plan formulary.
  There is no provision for continuity of care when an employer 
switches plans.
  There is no effective ban on plan practices which gag physicians; no 
limits on improper incentive arrangements.
  We were looking to address this issue of gagging the physician. They 
say, ``Oh, yes, we have that; we have a provision that says we will not 
gag physicians.'' The problem is, unless you address the firing clauses 
of the HMOs that permit the heads of the HMOs to fire doctors whenever 
they want, then the gag provisions are meaningless, because they can 
say, ``OK, you can go out and talk all you like, but you're not coming 
in to work tomorrow.'' Let's get real on this, Mr. President. That is 
effectively what the Republican program does.
  It has no prohibitions against these financial incentives for 
doctors. It won't publish financial incentives for doctors so that the 
public, in reviewing a plan, can find out if a doctor has financial 
incentives for providing certain kinds of treatment and not providing 
others, which is happening today. We have given examples of those types 
of procedures. There are no protections for that.
  It does not include a requirement for comparative plan quality 
information. You cannot find out about the consumers', the patients', 
satisfaction. You can't find that out. If you ask to find that out, 
they say, ``Well, that's going to be too bureaucratic; that is going to 
require too much paperwork; that is going to be a rule or regulation, 
it is going to be a Federal Government rule or regulation, that is 
going to raise costs for these particular programs.''
  What we are talking about is patient satisfaction, patients staying 
in these programs: Are they satisfied with these programs? Good ones 
provide that, Mr. President. These are the elements that are left out 
of the Republican plan entirely, but even those essentially included 
are full of loopholes.
  The Republicans say they protect you if you need emergency room care, 
but they have included less than half of the protections provided by 
the Democratic plan or even the protections that are already included 
in Medicare. I wonder how many of our colleagues know that the 
protection that they have indicated on the prudent layperson, prudent 
layman standard is an entirely different one from the one that is in 
Medicare. Who would have known that?
  Mr. BIDEN. Will the Senator yield for a question?
  Mr. KENNEDY. I will be glad to yield.
  Mr. BIDEN. I know the Senator knows a great deal about this, but I 
watched the press conference our Republican colleagues held hailing 
their Patients' Bill of Rights. You just went through and will continue 
to go through all the things they left out. I find it very curious the 
things they say are in their bill, which, in fact, are not in their 
bill.
  One, they say that a woman can pick as a primary care physician an 
ob/gyn. Second, they advertise that this means you have access to the 
emergency room. Third, they talk about continuity of doctors so they 
say you can choose your doctor. And fourth, they say no gag rule. This 
is the party of gag rule, and now they say no gag rule. I kind of 
respected them when they were just flat out saying they were just 
against any of this.
  Does the Senator have an explanation as to why they would pick the 
four most often stated complaints of the American public and suggest 
that their bill covers those things? It just seems strange to me that 
the party of the gag rule says they want an antigag rule, and yet there 
still is no antigag rule; that the party that said when they were going 
after Clinton's health plan, you should be able to choose your own 
doctor, will not allow you to choose a specialist or choose the doctor 
you need; that the party that suggested the costs of the Clinton plan 
were too high and everyone could just go to the emergency room are not, 
in fact, providing access to emergency room care the way in which the 
American public is looking at it. Why did they pick these four things 
to say they were for and not any of the rest? Is there some strategy 
here I am missing?
  Mr. KENNEDY. Those happen to be the ones that have shown the highest 
in the polls. I am not saying that is the reason they selected them 
necessarily. As the Senator was going over them, I was writing them 
down. Those are the ones that are the top in terms of the polls.
  I say to the Senator, what I would like to ask him is, here the 
Republicans talk about the market forces, that we ought to let people, 
consumers, make judgments on the basis of information. Under our 
proposal, we have tried to have information so that people can make the 
judgment and decisions with regard to their health care plan. Patient 
satisfaction, for example. Patient satisfaction--not very difficult. 
Most of the good ones show that in any event.
  Absolutely not, they point out, and say: We are not going to provide 
or support any of that additional information because that is a 
bureaucratic ruling; it is going to cost the HMO more to require that; 
therefore, we cannot support even that particular proposal.
  But the Senator is quite right. They use these words, ``speciality 
care,'' ``emergency room,'' and the ``gag rule.''
  The spokesperson for the College of Emergency Physicians visited with 
us today. I think the Senator was there at the time. She reviewed 
instance after instance after instance where just the words, ``the 
protections of access to the emergency room,'' were vacant and empty 
and without the protections that are included in the Patients' Bill of 
Rights and resulted, in one instance, in the loss of a leg of a young 
child, the horrific condition of a young girl who had a serious 
dislocation and her vital signs dropped dramatically and was in real 
danger of death, and other instances that were taking place in the 
emergency room.
  Mr. BIDEN. Well, let me say to the Senator that I, quite frankly, 
admired--disagreed, but admired--my Republican colleagues when they 
made no bones about the fact that they did not want any interference in 
any way by the Government to do anything about HMOs. At least theirs 
was a principled stand. They said, ``Look, the insurance companies, in 
driving down costs, are more important than all these other factors. 
We're not going to do anything.''
  What bothers me--and this is me; you are not saying this, I know it, 
but I am saying it--what bothers me is the apparent cynicism of picking 
four items which most often my constituency speaks to, to say they are 
covered, and nothing else. And even when you look into those four 
items, they are not really covered.
  They are going to be going around--and the insurance companies are 
spending tens of millions of dollars in ads--saying, ``We want you to 
have the right to choose a doctor.''
  Wait a minute. That is what they said before. But under the 
Republican bill, the American people can't choose their doctor, if the 
doctor they happen to need is a specialist, if the doctor they happen 
to need is in an emergency room and they don't meet the standard that 
the HMO sets.
  I have not been nearly as involved in this debate as my friend from 
Massachusetts. And as the old joke goes: He has forgotten more about 
health care than I am going to learn. But I would

[[Page S8885]]

feel better about what is going on here if the Republicans said what 
they truly believe, ``Hey, look, we're not changing our position. We 
don't think you should be able to choose your own doctor. We don't 
think there should be an antigag rule. We don't think you should change 
the requirements to get emergency room access. We don't think that a 
woman should be able to choose her gynecologist as her primary 
physician.''
  Let me tell you what I think they figured out. I know of no wrath 
like that of the wrath of a woman who says, ``I can't go to the doctor 
that I need and trust the most.'' And so they seem to be yielding only 
in places--and only in part--where the loudest cries are coming from. 
But, there are so many, many, many, many loopholes in what they say 
they are doing, and so much they leave out.
  I kind of yearn for the day when they just stood up on the floor like 
they do on guns and say, ``Hey, look, guns are not bad. You know, guns 
don't kill people. People kill people.'' I kind of like that. I admire 
it. But this, I don't know.
  There will be a multimillion-dollar campaign we are all going to 
endure, and you do not have to be a rocket scientist to figure out 
where this is going before this is all over. And I expect I am going to 
hear your name mentioned a couple hundred thousand times before this is 
over, too. But at any rate, I thank you for answering my question.
  Mr. KENNEDY. I thank the Senator for his interest and also his strong 
advocacy in terms of the people in his State on this issue. We want you 
to know that we are still committed to trying to get something worked 
out. This matter is too important for the reasons that the Senator has 
outlined. We still want to try and get something worked out. We had 
been taking a long time before we could get even the recognition of a 
bill on the other side. Now we ought to go about what is in the best 
interest of the patients in this country.
  I just mention, finally, to the Senator, what I was just talking 
about: Every doctors organization, every nurses organization, every 
health professional and patients organization supports our proposal. We 
have not got a single one on the other side except the health insurance 
companies and the HMO plans on it. So we want to try and work this out. 
We are going to do the best that we can. But we are not going to yield 
in terms of protecting the interests of the consumers.
  I thank the Senator.
  Mr. BIDEN. I thank the Senator.
  Mr. KENNEDY. I want to take just a few moments to review this very 
moving testimony in terms of the emergency rooms. These are comments 
made by Dr. Charlotte Yeh, who is the Chair of the Federal Government 
Affairs Committee for the American College of Emergency Physicians. And 
these are comments that she made.

       In Boston, a boy's leg was seriously injured in an auto 
     accident. At a nearby hospital, emergency doctors told the 
     parents he would need vascular surgery to save his leg and a 
     surgeon was ready and available in the hospital.
       Unfortunately, for this young man, his insurer insisted he 
     be transferred to an ``in-network'' hospital for the surgery. 
     His parents were told if they allowed the operation to be 
     done anywhere else, they would be responsible for the bill. 
     They agreed to the move. Surgery was performed three hours 
     after the accident. But by then, it was too late to save his 
     leg.
       These are not episodes from the TV program, ``ER.'' These 
     are not anecdotes. They are real people with real lives.
       A bipartisan majority in the Congress has called for 
     enactment of standards that will put an end to episodes like 
     the ones I just described. Last year, the Congress adopted 
     the prudent layperson standard and other protections for 
     Medicare and Medicaid patients seeking emergency care. We 
     thought there was a consensus on this issue!

  There was consensus on this issue, Mr. President.

       Just a few weeks ago, we were delighted to see that 
     Republican Task Forces in both the House and Senate had 
     decided to include the ``prudent layperson'' standard in 
     their respective protection measures.
       But we are very disturbed about the way in which the 
     emergency services protections were drafted in the Republican 
     ``Patient Protection Act.'' As a physician, it seems that a 
     little unnecessary surgery was performed on the ``prudent 
     layperson'' standard to the point where it is barely 
     recognizable as the consumer protection we envisioned.
       What is the difference between the real ``prudent 
     layperson'' standard included in the ``Balanced Budget Act'' 
     and the Democratic ``Patients' Bill of Rights'' and the 
     ``imposture'' that has been included in the GOP ``Patient 
     Protection Act''?
       The GOP Patient Protection Act would establish a weaker 
     coverage standard for privately insured patients than what 
     exists for Medicare and Medicaid patients.

  It gets back to what they are talking about. The name of the 
legislation--Senator Daschle--they take the various code words going 
down the line. They took the ``prudent layperson'' definition, and then 
they altered and changed it. These are the emergency physicians that I 
am reading from.
  The GOP Patient Protection Act establishes a weaker coverage standard 
for privately insured patients than for the Medicare and Medicaid 
patients. The Democratic bill will provide the same protections for all 
patients.

       The GOP Patient Protection Act establishes a two-tiered 
     test for coverage of emergency services and guarantees 
     coverage only for a ``screening examination.''
       The Democratic bill would require that health plans cover 
     all services necessary to evaluate and stabilize the patient 
     to anyone who meets the prudent layperson standard--no 
     questions asked!
       The GOP Patient Protection Act sets no limits on the amount 
     of cost-sharing the managed care plans would be allowed to 
     charge patients who seek emergency services from a non-
     network provider.

  You get it? They have a prudent layperson. They further define it to 
mean less in terms of health care protections. And then they include 
copays. So if they go there, they are going to have to pay up through 
the nose for it.
  Don't you think we ought to be able to discuss that on the floor of 
the U.S. Senate, to see which way this body wants to go on that 
particular protection for emergency rooms, for consumers of this 
country? No. We can't--evidently, no. No. We haven't got time. We 
haven't got time to be able to ask our Republican friends, Why did you 
do it this way? Why did you change it? Why did you change it?
  Well, I think it is quite clear why they changed it, because the 
insurance industry wanted them to change it. The GOP Patient Protection 
Act sets no limits on the cost-sharing.
  The Democratic bill would protect patients who reasonably seek 
emergency services to protect their health from being charged 
unreasonable copays and deductibles.
  We protect the consumer.
  The GOP Patient Protection Act sets no guidelines for the 
coordination of poststabilization care, making it possible for 
emergency physicians to coordinate and obtain authorization for 
necessary follow-up care with the managed care plans.

       The Democratic bill would require the health plans to 
     adhere to new Federal guidelines that require managed care 
     plans to be available to coordinate poststabilization care, 
     instead of just permitting the managed plan to turn off the 
     phone at 5 o'clock.
       Obviously--

  And I continue now with her statement:

     we are very troubled by the changes to the ``prudent 
     layperson'' standard in the ``Patient Protection Act.''
       Our assessment is that this legislation--

  Now, these are the emergency room physicians. There isn't a family in 
this country that does not have some concern--they have children or 
parents; loved ones--about the importance of having an emergency room 
that is going to look after an emergency, that is going to affect the 
family. And there isn't a person that is listening to this program, 
watching it, that has not had to spend time in an emergency room 
themselves or their loved ones in a family.
  It is very important. And what is happening out there with regard to 
HMOs, in too many instances, is that they are putting the interests of 
the insurance industry ahead of the emergency needs of the 
patient. That isn't what I am saying, although it is what the emergency 
room doctors are saying.

  This is their final assessment:

       Our assessment is that this legislation--
       [1.] Will provide less protection for privately insured 
     patients than for Medicare and Medicaid patients.
       [2.] Will lead to more coverage disputes, not less. [Do we 
     hear that--will lead to more coverage disputes, not less.]
       [3.] Will create even more barriers, not fewer.
       [4.] Will create new loopholes for managed care plans to 
     deny coverage of emergency services.

  These are the doctors who are dedicated and committed to providing

[[Page S8886]]

emergency services to the people. That is their assessment, and we are 
not going to be permitted to debate and discuss the impact of the 
Republican bill on the patients of this country as compared to our 
Patients' Bill of Rights. We are going to be denied that opportunity, 
Mr. President?

       In four years, we have come so far, but we cannot support 
     these provisions in their current form. We will do everything 
     in our power to ensure the ``prudent layperson'' standard 
     that is enacted will be consistent with the meaningful 
     protections that Congress enacted for Medicare and Medicaid 
     beneficiaries. Hard-working Americans who pay their premiums 
     deserve no less.

  Now, Mr. President, I will conclude in just a moment. I want to sum 
up where I think we are in this whole experience. During recent years, 
we have seen a very dramatic shift from the indemnity health care 
provisions to the HMOs. We have seen the ERISA provisions that were 
developed in the early 1970s which exclude liability protections for 
American consumers. Those particular provisions were developed to 
protect pensions--it wasn't really thought about in terms of the 
application of these provisions of the law in terms of health care 
plans. If you go back and read the discussion and the debate, it wasn't 
really considered. It was there to protect pensions, and it has worked 
reasonably well to protect pensions.
  It hasn't worked to protect the patients in these programs. 
Nonetheless, we have seen the growth of the HMOs. And we have some 
outstanding health maintenance organizations. We have some of the best 
in my own State of Massachusetts. The basic concept behind the HMOs was 
to try to create the financial incentive for keeping people healthier 
so that the various health organizations would encourage the preventive 
health care measures, and by keeping people healthier, on what we call 
a ``capitation'' program--that is, that the HMO gets a certain payment 
for an individual; if they keep them healthier, then the HMO's 
financial situation improves. That made a good deal of sense.
  In the better HMOs it works, and it works effectively. The problem is 
you have many at the lower end that are reflecting the kinds of abuses 
we have talked about here today. They have to be corrected. They should 
be corrected.
  Legislation has been introduced, and we have been excluded from the 
opportunity of having it scheduled. Now we have, finally, the 
Republican leadership's provisions, which were introduced in the Senate 
last Friday, and we still have no time that has been set aside.
  When you look over the range of different provisions in this 
legislation and the importance of this, we need to have a reasonable 
opportunity to debate and discuss these measures. The best we were able 
to get out of the Republican leadership initially was that, ``We are 
not going to schedule what we don't want to schedule.'' That is what I 
heard on the floor of the U.S. Senate about 2 weeks ago. Then we heard 
that, ``We are developing a program and will schedule this when we want 
to schedule it.'' Then we see the legislation that has been introduced. 
Now we are told, ``We may or may not get to that in the day or two 
before the designated recess.''
  There is not a measure that affects families in this country that is 
more important than the Patients' Bill of Rights. It deserves full 
debate and discussion and thoughtful consideration. It deserves the 
best judgment of all of the Members, and it deserves a bipartisan 
resolution at the end to try to see that we do something that is 
meaningful to provide protections for families. What will be 
unacceptable is some kind of a toothless piece of legislation that 
picks up the buzzwords but fails to provide the protections for the 
American people.
  I hope we can get about the business of having this debate and having 
this result. Every day we delay, we fail to protect our fellow 
citizens. This issue is not one that is getting better; it is one which 
cries out for action. It cries out for action now. The earlier, the 
better.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. NICKLES. Will the Senator yield?
  Mr. SHELBY. I yield to the distinguished Senator from Oklahoma.

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