[Congressional Record Volume 144, Number 113 (Tuesday, September 1, 1998)]
[Senate]
[Pages S9733-S9739]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          UNANIMOUS-CONSENT REQUESTS--PATIENTS' BILL OF RIGHTS

  Mr. DASCHLE. Mr. President, I will not take long. I know that there 
are discussions ongoing.
  Before we left for the August recess, Democrats made it very clear 
that it is essential that we not leave here before the end of the year 
without having taken up and passed the Patients' Bill of Rights. I 
think it is very clear, given the extraordinary degree of interest in 
the issue on both sides of the aisle, that there is an opportunity for 
us to complete our work on that bill. I hope we can do it sooner rather 
than later. I see no reason why we cannot do it within the course of 
the next couple of weeks.
  I will propound a unanimous consent request that would allow us to do 
that. The request, very simply, would allow the Senate to take up the 
House-passed HMO reform bill, begin the debate, allow relevant 
amendments, and set the bill aside at the request of the majority 
leader to take up appropriations bills when they are ready to be 
considered. It takes into account the need for us to complete our work 
on appropriations bills, and it takes into account the high priority 
that both parties have put on dealing with this issue.
  But I must say, for Democrats, that there cannot be a more important 
issue than the complete and successful conclusion of the debate on 
managed care and the Patients' Bill of Rights. We now have over 170 
different organizations that have said they join us in supporting this 
legislation and recognize the importance of passing it before we leave. 
All we have left is 6 weeks. Mr. President, it is critical that we 
complete our work, that we get this job done, that we do so in the 
remaining time we have, and that we allow a full debate given the 
differences we have on how we might approach this issue.
  Mr. President, I ask unanimous consent that upon disposition of the 
foreign operations appropriations bill, the Senate proceed to 
consideration of Calendar No. 505, H.R. 4250, the House-passed health 
care reform bill; that only relevant amendments be in order; that the 
bill be the regular order, but that the majority leader may lay it 
aside for any appropriations bill or appropriations conference report 
which he deems necessary to consider between now and the end of this 
session of Congress.
  The PRESIDING OFFICER. Is there objection?
  Mr. McCONNELL addressed the Chair.
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. McCONNELL. I object.
  Mr. DASCHLE addressed the Chair.
  The PRESIDING OFFICER. The Democratic leader.
  Mr. DASCHLE. Mr. President, I am very deeply disappointed that the 
Senator from Kentucky has seen fit to object to this.
  We will continue to press this matter. We will look for other 
opportunities. I would much rather do it in an orderly fashion using 
the regular order to allow this to come up and be debated. But if we 
cannot do it that way, we will offer it in the form of amendments. One 
way or the other we will press for this issue. We will see it resolved, 
and see it resolved successfully, because I don't believe there is 
another issue out there this year that is of greater importance to the 
American people.
  I would be happy to yield to the Senator.
  Mr. KENNEDY. Mr. President, if the Senator will yield, as I 
understand it, the proposal that was made by the minority leader would 
have only permitted amendments that were relevant to the underlying 
measure, which would be the Patients' Bill of Rights, and that would 
have still granted to the majority leader the opportunity to move 
ahead, as we must, with the various appropriations bills, and 
appropriations conference reports.
  As I understand, if the leader's proposal had been accepted, we would 
then have had the opportunity to consider this very important piece of 
legislation in an orderly way that would ensure adequate debate and 
discussion. The proposal would have ensured, if the Senator would 
agree, an opportunity to debate relevant amendments on critically 
important issues. It would have allowed the Senate to debate amendments 
that would ensure: that health care decisions are being decided by 
doctors rather than insurance company accountants; that all women have 
access to appropriate specialists for the gynecological and 
obstetrician care that they need; that patients with life-threatening 
conditions have access to clinical trials; an effective end to gag 
practices that inhibit doctors from making medical recommendations and 
suggestions based on their patients' needs; that all patients have 
access to a meaningful and timely internal and external appeal, similar 
to what we have in Medicare, for example; and that the States 
themselves, if they so choose, to find further accountability for those 
who are going to practice medicine.
  Am I correct that these elements were included in the legislation 
which the minority leader introduced, and that these are measures--
along with others, that the minority leader thinks the Senate ought to 
have an opportunity to debate, discuss and vote upon--were based in 
part on the comments that have been made to the minority leader, I am 
sure, from people in his own State, and from representatives of the 170 
leading patient and medical organizations in this country?
  These are the groups that are supporting the leader's legislation, 
and they are supporting this action as well. And I understand that now 
the Republican leadership has just objected to our request to move 
forward to debate on health care legislation, on the Patients' Bill of 
Rights? Is that what we have just seen on the floor of the Senate?
  Mr. DASCHLE. The Senator from Massachusetts is absolutely correct. 
First, to the point he made about relevancy, what our unanimous consent 
request would have done is simply allowed what we have attempted to 
negotiate with our Republican colleagues now for months, which is to 
allow a good debate about this issue and allow the opportunity for the 
Senate to decide on relevant amendments.
  This may be one of the most comprehensive and most complicated 
medical issues that the Senate will address for a long period of time. 
It is impossible for us to address it in the way that has been 
suggested by some on the other side, that we have an up-or-down vote on 
two simple bills. There is nothing simple about them. These are very 
serious questions about holding health insurance companies accountable, 
about making sure that when a woman has a mastectomy she can be 
protected, about making absolutely certain that when you go into a 
pharmacy you have a drug that the doctor prescribed and not something 
that the health care company prescribed.
  Those are the kinds of issues that we ought to have the opportunity 
to decide in a very careful way. So we offered a unanimous consent 
request that would have allowed for relevant amendments.
  The Senator is absolutely right, as well, about the 170 
organizations. In my time in the Senate on an issue of

[[Page S9734]]

any magnitude, I don't remember a time when over 170 organizations of 
all philosophical stripes were on board and said, yes, we want to pass 
this bill. That is phenomenal. That is historic. And so the Senator is 
right. I hope, regardless of whether it is today or tomorrow or 
sometime soon, we can have the kind of debate the Senator from 
Massachusetts and others have called for for a long period of time. We 
need time to do it.
  Mr. KENNEDY. Will the Senator further yield?
  Mr. DASCHLE. I would be happy to yield.
  Mr. KENNEDY. I welcome the opportunity for those who support the 
Republican position to provide the Senate with the names of the medical 
organizations and the patient organizations that support their 
proposal. Yet I think this may not be possible, because I believe they 
do not exist.
  But let me ask the Senator if I state this correctly. We debated the 
defense authorization bill for eight days and 124 amendments were 
offered; in fact, 10 were cosponsored by the majority leader and the 
assistant majority leader. We spent five days on agricultural 
appropriations with 55 amendments offered; seven days on the most 
recent budget resolution with 105 amendments; nineteen days on the 
highway bill with 100 amendments offered.
  Does the Senator agree with me that we ought to be able to deal with 
patient protection legislation in a timely way that might not even come 
close to the time spent on other pieces of legislation that we have had 
here earlier in the year? Does the Senator think, given the fact we had 
spent 19 days on the highway bill, that we ought to be able to spend at 
least a few days on relevant amendments on something that affects every 
family in this country, affects their children, affects husbands and 
wives, affects grandparents in a very, very special and personal way? 
Does the Senator agree that this would not be a wasted period of time 
in terms of the remaining several weeks for debate? And would not the 
Senate minority leader be willing to work out a satisfactory kind of 
time frame so that we could have this debate?
  Mr. DASCHLE. The Senator from Massachusetts is absolutely right. When 
you think about it, we spent a lot of good time on the highway bill, 
time we needed to spend on a bill that I supported. We all know that 
the highway bill has many complicated aspects to it; there wasn't any 
objection from the other side in that regard. The highway bill was 
complicated, and because it was, we offered, as the Senator noted, over 
100 amendments. Now what they are saying on this particular bill is 
that even though it is every bit as complicated, they are only willing 
to provide three slots for amendments--not 100, not 75, not 50, but 
three slots on a bill that affects personally more people than even the 
highway bill.
  That is what we are up against. That is the motivation in offering 
the unanimous consent request this afternoon.
  I would be happy to yield to the Senator from North Dakota.
  Mr. DORGAN. I wanted to ask the Senator to yield for a question. This 
is a critically important issue that affects tens and tens of millions 
of Americans. It deals with the question of whether, when they show up 
and are ill and need health care treatment, they are going to be told 
by their attending physician who is working for a managed care 
organization all of their options for medical treatment or just the 
cheapest. We have talked day after day in this Chamber about how these 
issues deal with the life and death of patients.
  We had one story here about a managed care organization that 
evaluated a young boy and determined that because he had only a 50 
percent chance of being able to walk by age 5, it was determined 
insignificant and he shall not therefore be eligible for the therapy--a 
50 percent chance of walking by age 5 is insignificant so don't help 
him. These are important issues.
  Now, the question I ask the Senator from South Dakota, we have put 
together legislation, we have developed legislation that I think is 
very important and we have been working very hard to try to get it to 
the floor of the Senate. We spent days debating the renaming of an 
airport, but apparently we don't have time to deal with the issue of 
managed care reform and a Patients' Bill of Rights. How many months 
have we been trying to get a time to get this issue to the floor of the 
Senate so that we can debate it and deal with this issue? I ask the 
minority leader, how many months have we worked to try to get this 
issue to the floor of the Senate for debate?
  Mr. DASCHLE. I think the Senator from North Dakota raises a very 
important point. This particular bill has been pending now for over 6 
months. And as the Senator from Massachusetts noted, over that period 
of time, more and more groups from all over the country, the doctors, 
the nurses, people in health care delivery from virtually every facet 
and every walk of life, every one of them have said you put your finger 
on a problem that you have to solve. It is getting worse out there. And 
unless we address the situation meaningfully in public policy, it will 
continue to get worse. How long must we wait? Must we wait until next 
year or the year after? And how many millions of people will be 
adversely affected if we do not act? They are telling us to act. And I 
hope we will do it before the end of this session of Congress.
  Mr. DORGAN. If the Senator will yield further, just another point. I 
regret that there is opposition to the request. It seems to me the 
request is appropriate. Do the appropriations bills, do the conference 
reports, but make time at least to do this issue. We have talked about 
in this Chamber the stories of someone whose neck was broken, taken to 
an emergency room, and told you can't get this covered because you 
didn't have prior approval, brought to the emergency room with a broken 
neck, unconscious. So I mean these issues go on and on and on, the 
stories go on forever, and the question is, Is the Congress going to 
address it? Is Congress going to deal with it? Does the Congress think 
it is an important issue? If it thinks it is an important issue, then 
we ought to be debating it on the floor of the Senate; we ought to make 
time and allow for discussion. That is what the Senate is about. I 
hope, I say to the Senator from South Dakota, the Democratic leader, I 
hope very much that we continue to push and continue to press, and we 
will not take no for an answer. We want this piece of legislation on 
the floor of the Senate for full and open debate so we can resolve this 
issue on behalf of all Americans.
  I thank the Senator for yielding.
  Mrs. BOXER. Will the Senator yield?
  Mr. DASCHLE. I thank the Senator for his contribution.
  I would be happy to yield to the Senator from California.
  Mrs. BOXER. I thank my leader for making what I think is a very 
rational request, that we take up a Patients' Bill of Rights and we 
have the option of amending such a bill so that we can in fact help the 
majority of the American people who are telling us pretty unequivocally 
here they want quality health care. I have a brief comment and then a 
question for my colleague and my leader.
  Mr. Leader, I want you to know about a story in my State. There are 
so many of them, and I have told many of them on the floor. This 
particular story, I think, is quite poignant because it has a good 
ending to it. But it makes a very important point and I think our 
Presiding Officer who is sitting in the Chair, our President of the 
day, would be interested in this as a physician.
  A little girl named Carly Christie got a very rare type of cancer 
many years ago, about 9 years ago. It required some very delicate 
surgery that only a couple of specialists had ever really performed 
before. It was a cancerous tumor on her kidney. Her dad went to the HMO 
and said, ``Look, I know the doctors who know how to do this and I am 
going to go and have this operation done.''
  The HMO said, ``No, you are not. We have a general surgeon, and the 
general surgeon can do this operation.''
  ``Well, has the general surgeon ever done such an operation before?''
  ``No.''
  And Mr. Christie said, ``This is my flesh and blood. This is my 
child. I want her to live. I need to go to someone, a specialist, who 
knows how to do this operation.''
  They said, ``No.''
  He got the money, $50,000, I tell my leader, and she got the surgery. 
And

[[Page S9735]]

now, many years later--she was 9 at the time; she is 14--she is cancer 
free.
  What would have happened to that little girl if she hadn't had an 
experienced specialist? I ask my leader, the bill we want to bring 
before this body, wouldn't that ensure that any little Carly or any 
other child, or any man or woman, would be able to get that specialist? 
I ask my colleague on that point.
  Mr. DASCHLE. The Senator from California is right on the mark. That 
is exactly the essence of our legislation. We talk so often in 
statistical terms here on the Senate floor. Sometimes we have to put it 
in personal terms, in real terms. The Senator from California has just 
done so, so eloquently. In real terms, this bill would allow an 
individual, whether it is somebody in this Chamber today or anybody who 
may be watching, that they will have an opportunity to choose and be 
treated by a qualified specialist. They would have an opportunity to 
make sure that the specialist is competent, so they will get the best 
care for their personal set of circumstances, like young Carly.
  That is what our bill is all about. That is why it is important to 
pass it this year. That is why we cannot wait until next year. I thank 
the Senator from California.
  Mrs. BOXER. On behalf of all the Carlys, thank you, Mr. Leader. We 
will stand with you until we get this up before the American people.
  Mr. KERRY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KERRY. Will the leader yield for a question?
  Mr. DASCHLE. Before I yield to the Senator from Massachusetts, let me 
say the unanimous consent request that we made took into account the 
fact that the House has already acted on this issue. The House has 
passed a health care bill, not one that I would necessarily be excited 
about, but it passed a bill. What we are suggesting here is that we 
want to amend the House-passed bill. We want to complete the job. We 
want to put a Democratic imprint on a comprehensive health care bill 
that will do the job and get that bill signed.
  There is another piece of legislation the House has now passed, 
campaign finance reform. That bill has also passed out of the House. 
The Shays-Meehan bill has passed, and that, too, is pending now in this 
Chamber. That, also, ought to be on our agenda. When can we take up the 
Shays-Meehan bill? It passed in the House. Let's pass it in the Senate.
  I yield to the Senator from Massachusetts.
  Mr. KERRY. Mr. President, I ask the leader just to clarify for the 
record precisely the full measure of the request that he made.
  It is my understanding the leader requested, not that we would not 
proceed to other legislation, but that we would simply create an 
opportunity, a fixed opportunity within the next 6 weeks during which 
time we would be able to debate the issue of health maintenance 
organization reform. Is that correct?
  Mr. DASCHLE. The Senator from Massachusetts is correct. Basically, 
our unanimous consent request simply would have made as regular order, 
as the next bill to be considered, H.R. 4250, the House-passed health 
care reform bill. We would then offer, in the form of amendments, our 
bill and other relevant amendments that would be considered. We would 
give the majority leader, certainly, the authority to set that bill 
aside so long as other appropriations bills or conference reports on 
appropriations bills need to be considered. We would complete our work 
on patient protections, and it would be my expectation, following the 
successful conclusion of that debate, to offer a similar unanimous 
consent request on campaign finance reform. It seems to me, those two 
key issues are critical to the agenda of this country and critical to 
the business of the Senate--particularly given the fact, as I have just 
noted, that they both now have passed in the House of Representatives. 
I can't think of anything more important than to complete the work of 
this Congress on those two bills. That would be my intention.
  Mr. KERRY. Mr. President, with respect to the campaign finance reform 
bill the leader mentions, it is clear, is it not, that bill ultimately 
passed after the repeated efforts of the membership of the House to 
make it clear that they would not accept leadership efforts to stop it? 
In other words, there were repeated efforts by the leadership, the 
Speaker of the House, to sidetrack campaign finance reform. But, for 
one of those rare instances where it happens, the popular will, the 
will of the American people to have the vote on campaign finance reform 
and to put into effect a reform that for years people have known we 
need--that won in the House of Representatives. Is that not correct?
  Mr. DASCHLE. The Senator from Massachusetts is absolutely correct.
  Mr. KERRY. So the only thing standing in the way of a similar 
expression of what we know to be a majority of the U.S. Senate prepared 
to vote for campaign finance reform, the only thing that stands in the 
way is the leadership of the Republican Party, that wants to say no, we 
are not going to give you this opportunity. Is that correct?
  Mr. DASCHLE. To date, that is correct.
  Mr. KERRY. With respect to the problem of the Patients' Bill of 
Rights, is that not the No. 1 issue of concern of Americans--young, 
old, middle aged, of all walks of life--that is the one thing most on 
the minds of the American people that they want the U.S. Congress to 
address?
  Mr. DASCHLE. Mr. President, the Senator from Massachusetts is 
absolutely correct. The issue, as we have noted now several times, has 
probably the most elaborate array of support by health care 
organizations, organizations that deal with this every day. 
Organizations on the front line of health care delivery have said this 
must be our highest priority--not just in health care, but in the array 
of issues that are confronting this Congress. They say there is nothing 
more important than passing this legislation this year. I think they 
are right.
  This is what the American people want. I might note, we just received 
a faxed letter from the President, from Moscow, on this very issue. I 
might just read one short paragraph.

       As I mentioned in my radio address this past Saturday, 
     ensuring basic patient protections is not and should not be a 
     political issue. I was therefore disappointed by the partisan 
     manner in which the Senate Republican Leadership bill was 
     developed. The lack of consultation with the White House or 
     any Democrats during the drafting of your legislation 
     contributed to its serious shortcomings and the fact it has 
     failed to receive the support of either patients or doctors. 
     The bill leaves millions of Americans without critical 
     patient protections, contains provisions that are more 
     rhetorical than substantive, completely omits patient 
     protections that virtually every expert in the field believes 
     are basic and essential, and includes ``poison pill'' 
     provisions that have nothing to do with a patients' bill of 
     rights.

  I ask unanimous consent the letter be printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                                       Moscow,

                                                September 1, 1998.
     Hon. Trent Lott,
     Majority Leader, U.S. Senate,
     Washington, DC.
       Dear Senator Lott: Thank you for your letter regarding the 
     patients' bill of rights. I am pleased to reiterate my 
     commitment to working with you--and all Republicans and 
     Democrats in the Congress--to pass long overdue legislation 
     this year.
       Since last November, I have called on the Congress to pass 
     a strong, enforceable, and bipartisan patients' bill of 
     rights. During this time, I signed an Executive Memorandum to 
     ensure that the 85 million Americans in federal health plans 
     receive the patient protections they need, and I have 
     indicated my support for bipartisan legislation that would 
     extend these protections to all Americans. With precious few 
     weeks remaining before the Congress adjourns, we must work 
     together to respond to the nation's call for us to improve 
     the quality of health care Americans are receiving.
       As I mentioned in my radio address this past Saturday, 
     ensuring basic patient protections is not and should not be a 
     political issue. I was therefore disappointed by the partisan 
     manner in which the Senate Republican Leadership bill was 
     developed. The lack of consultation with the White House or 
     any Democrats during the drafting of your legislation 
     contributed to its serious shortcomings and the fact it has 
     failed to receive the support of either patients or doctors. 
     The bill leaves millions of Americans without critical 
     patient protections, contains provisions that are more 
     rhetorical than substantive, completely omits patient 
     protections that virtually every expert in the field believes 
     are basic and essential, and includes ``poison pill'' 
     provisions that have nothing to

[[Page S9736]]

     do with a patients' bill of rights. More specifically, the 
     bill:
       Does not cover all health plans and leaves more than 100 
     million Americans completely unprotected. The provisions in 
     the Senate Republican Leadership bill apply only to self-
     insured plans. As a consequence, the bill leaves out more 
     than 100 million Americans, including millions of workers in 
     small businesses. This approach contrasts with the bipartisan 
     Kassebaum-Kennedy insurance reform law, which provided a set 
     of basic protections for all Americans.
       Lets HMOs, not health professionals, define medical 
     necessity. The external appeals process provision in the 
     Senate Republican Leadership bill makes the appeals process 
     meaningless by allowing the HMOs themselves, rather than 
     informed health professionals, to define what services are 
     medically necessary. This loophole will make it very 
     difficult for patients to prevail on appeals to get the 
     treatment doctors believe they need.
       Fails to guarantee direct access to specialists. The Senate 
     Republican Leadership proposal fails to ensure that patients 
     with serious health problems have direct access to the 
     specialists they need. We believe that patients with 
     conditions like cancer or heart disease should not be denied 
     access to the doctors they need to treat their conditions.
       Fails to protect patients from abrupt changes in care in 
     the middle of treatment. The Senate Republican Leadership 
     bill fails to assure continuity-of-care protections when an 
     employer changes health plans. This deficiency means that, 
     for example, pregnant women or individuals undergoing care 
     for a chronic illness may have their care suddenly altered 
     mid course, potentially causing serious health consequences.
       Reverses course on emergency room protections. The Senate 
     Republican Leadership bill backs away from the emergency room 
     protections that Congress implemented in a bipartisan manner 
     for Medicare and Medicaid beneficiaries in the Balanced 
     Budget Act of 1997. The bill includes a watered-down 
     provision that does not require health plans to cover 
     patients who go to an emergency room outside their network 
     and does not ensure coverage for any treatment beyond an 
     initial screening. Those provisions put patients at risk for 
     the huge costs associated with critical emergency treatment.
       Allows financial incentives to threaten critical patient 
     care. The Senate Republican Leadership bill fail to prohibit 
     secret financial incentives to providers. This would leave 
     patients vulnerable to financial incentives that limit 
     patient care.
       Fails to hold health plans accountable when their actions 
     cause patients serious harm. The proposed per-day penalties 
     in the Senate Republican Leadership bill fail to hold health 
     plans accountable when patients suffer serious harm or even 
     death because of a plan's wrongful action. For example, if a 
     health plan improperly denies a lifesaving cancer treatment 
     to a child, it will incur a penalty only for the number of 
     days it takes to reverse its decision; it will not have to 
     pay the family for all damages the family will suffer as the 
     result of having a child with a now untreatable disease. And 
     because the plan will not have to pay for all the harm it 
     causes, it will have insufficient incentive to change its 
     health care practices in the future.
       Includes ``poison pill'' provisions that have nothing to do 
     with a patients' bill of rights. For example, expanding 
     Medical Savings Accounts (MSAs) before studying the current 
     demonstration is premature, at best, and could undermine an 
     already unstable insurance market.
       As I have said before, I would veto a bill that does not 
     address these serious flaws. I could not sanction presenting 
     a bill to the American people that is nothing more than an 
     empty promise.
       At the same time, as I have repeatedly made clear, I remain 
     fully committed to working with you, as well as the 
     Democratic Leadership, to pass a meaningful patients' bill of 
     rights before the Congress adjourns. We can make progress in 
     this area if, and only if, we work together to provide needed 
     health care protections to ensure Americans have much needed 
     confidence in their health care system.
       Producing a patients' bill of rights that can attract 
     bipartisan support and receive my signature will require a 
     full and open debate on the Senate floor. There must be 
     adequate time and a sufficient number of amendments to ensure 
     that the bill gives patients the basic protections they need 
     and deserve. I am confident that you and Senator Daschle can 
     work out a process that accommodates the scheduling needs of 
     the Senate and allows you to address fully the health care 
     needs of the American public.
       Last year, we worked together in a bipartisan manner to 
     pass a balanced budget including historic Medicare reforms 
     and the largest investment in children's health care since 
     the enactment of Medicaid. This year, we have another 
     opportunity to work together to improve health care for 
     millions of Americans.
       I urge you to make the patients' bill of rights the first 
     order of business for the Senate. Further delay threatens the 
     ability of the Congress to pass a bill that I can sign into 
     law this year. I stand ready to work with you and Senator 
     Daschle to ensure that patients--not politics--are our first 
     priority.
           Sincerely,
                                                     Bill Clinton.

  Mr. KERRY. Mr. President, I ask further of the leader.
  Mr. McCONNELL addressed the Chair.
  Mr. DASCHLE. I yield further to the Senator from Massachusetts.
  Mr. KERRY. As we all know, the cynicism of the American people is, 
regrettably, growing with respect to their view as to how politics 
works in their own country. Increasingly, that is reflected in their 
attitude about campaigns and voting. And many, many people are aware of 
the enormous influence of money in American politics.
  Regrettably, there appears, now, to already be a question arising 
within this Congress about the link of tobacco to some of the events 
that have taken place here. I wonder if the leader would not share with 
me the sense that the entire tobacco debate and the now-early 
investigative efforts taking place with respect to tobacco expenditures 
don't make even more compelling the notion that the U.S. Senate ought 
to deal with campaign finance reform as rapidly as possible?
  Mr. DASCHLE. The Senator from Massachusetts is absolutely correct. 
There are so many areas that I believe ought to be clarified and ought 
to be rectified. I don't think there is any greater need than for 
clarification on the role of independent expenditures and what may 
happen, now, with regard to tobacco.
  Passing Shays-Meehan would allow us to do that. We ought to let that 
happen. We ought to make that happen in the next 6 weeks.
  Mr. KERRY. Let me just say, Mr. President, to the leader--and I know 
he shares this view--there are many of us prepared to adopt the same 
measure of militancy that was found in the House of Representatives in 
order to guarantee that the Senate has an opportunity to deal with 
campaign finance reform.
  I hope the leadership on the other side will take note of the need to 
do the business of this Nation and to do the business of the Senate in 
a timely and orderly fashion, but that there is an absolute 
determination by a number of us to guarantee that we make the best 
possible effort to try to pass the Shays-Meehan bill in this body.
  Mr. DURBIN. Will the Senator yield?
  Mr. DASCHLE. I yield to the Senator from Illinois.
  Mr. DURBIN. I thank the Senator for taking the floor this afternoon 
and making his unanimous consent request. I sincerely regret there was 
an objection to it. I would like to ask the minority leader a question, 
but first I would like to note that over this last break, I made a tour 
of my State, and I did an interesting thing I never had done before. I 
visited community hospitals, and I invited the professional nursing and 
medical staffs to come down and meet with me and talk about this issue. 
I wanted to find out if my impression of the importance of this issue--
what I had seen in the mail, what I had heard from my colleagues--was 
felt in downstate Illinois, in a small town, in a community hospital.
  I found it very interesting that many doctors came into the room to 
meet with me. They brought their beepers along. Some of them were 
called off to emergency calls and others with like requirements, but 
they met there because they wanted to take the time to tell me what 
they thought.
  The stories they told me were amazing. I thought I heard it all on 
the floor of the Senate about what the insurance companies were doing 
to American families, how health care was being compromised and why 
this legislation, which the Senator from South Dakota has suggested, is 
so important. But when a doctor comes before me and says, ``I had to 
call the insurance company for approval to admit a patient and they 
said, `No, we won't go along with your suggestion, your medical advice, 
send the patient home,' '' this one doctor in Joliet said, ``I finally 
asked the person on the other end of the line, `Are you a doctor?' ''
  He said, ``No.''
  He said, ``Are you a nurse?''
  He said, ``No.''
  He said, ``Do you have a college degree?''
  The man said, ``Well, no.''
  He said, ``Well, what is your training?''
  He said, ``Well, I have a high-school diploma, and I have the 
insurance company manual that I'm reading from.''
  That is what it came down to, and a patient was sent home because 
this man, with literally no medical education, made a decision based on 
the insurance manual.

[[Page S9737]]

  Another doctor told a story, which was just amazing and frightening 
to any parent, about how a mother brought a son in who had been 
complaining of chronic headaches on the left side of his head. The 
doctor examined him and said clearly, ``This is a situation where a CAT 
scan is warranted, because there may be a tumor present and let's 
decide very early if that is the case.''
  He left the room and called the insurance company. The insurance 
company said, ``Under no circumstances does that policy allow a CAT 
scan of that little boy,'' who had been complaining of these headaches 
for such a long period of time.
  The doctor said, ``Not only did they overrule me, but under my 
contract, when I went back in the room and faced the mother, I couldn't 
tell that mother that I had just been overruled by an insurance company 
clerk. I had to act as if it were my decision not to go forward with 
the CAT scan.''
  That is what the gag rule is all about. We are restraining doctors 
from being honest with their patients, doctors from their honest 
relationship with parents bringing in children for care.
  So when the Senator from South Dakota suggests this unanimous consent 
request to bring this issue up, I say that my experience in the last 
few weeks suggests this is a timely issue, an important issue, much 
more important in many ways than a lot of the things that we have 
discussed on the floor of the Senate.
  My question of the Senator from South Dakota is this: I understand 
that he has said we must pass the appropriations bills. That is the 
responsible thing to do. That takes precedence. But he has also said 
let's move to this bill and allow amendments to it.
  We have seen repeatedly here--the Republican leadership has stopped 
an effort to pass a tobacco bill. The Republican leadership has stopped 
an effort to pass campaign finance reform. And now it appears the 
Republican leadership is going to stop an effort to have a Patients' 
Bill of Rights and do something about managed care.
  Can the Senator from South Dakota tell me what is it that is so 
pressing on this Senate agenda in the next 4 weeks that we cannot set 
aside even 1 day's time to discuss managed care reform? Is there 
something that perhaps the majority leader has told the Senator from 
South Dakota which we missed in the newspapers?
  Mr. DASCHLE. The Senator from Illinois has made a very eloquent and 
poignant statement about circumstances that are very real, that are 
happening as we speak in Illinois, South Dakota, Massachusetts, and 
California. In every State, there are illustrations of how the system 
is broken, just as the Senator from Illinois has described.
  But he really needs to direct his question to the majority leader. I 
don't know what could be more pressing than this issue. Obviously, by 
law, we have to address appropriations bills. Obviously, by law, we 
should be addressing the budget, but I am told the Republicans now may 
overlook the fact that the law requires a budget resolution by April 
15. They are overlooking that. So we have already violated--they have 
violated the law with regard to the budget. But I would hope we can 
adhere to the law with regard to appropriations, because we know the 
consequences if we don't. We have already gone through that. I think 
they have learned their lesson on that. We don't want to shut the 
Government down, but I would direct your question to the majority 
leader when you have the opportunity.
  Mr. DURBIN. I will be coming to the floor and taking that opportunity 
when I can. I ask one other question of the minority leader.
  Is it not a fact that the Republican approach on this--should they 
call their legislation--on Patients' Bill of Rights--if you can 
characterize it as such--only protects 29 percent of all the American 
population from managed care abuses? Is it not true that the Republican 
approach, sponsored by Senator Nickles, in fact, does not provide 
protection for those who are self-employed, employees in small 
companies, State and local government employees; it leaves out a wide 
swath of Americans who deserve the same kind of basic protection when 
it comes to health insurance? Is this not one of the reasons why we 
would like to offer amendments so that we can cover the vast majority 
of Americans rather than exclude the majority, as the Republican bill 
does in its current form?
  Mr. DASCHLE. The Senator is absolutely right. They leave out over 100 
million people; 100 million people won't be touched.
  Mr. NICKLES. Will the Senator yield?
  Mr. DASCHLE. So it is a sham. It is not a piece of legislation that 
can give confidence to any American today, not when the problems are as 
great as the ones suggested by the Senator from Illinois.
  Mr. DURBIN. I say to the Senator from South Dakota----
  Mr. NICKLES. Will the Senator yield?
  Mr. DURBIN. If he will yield for one final question. What is it that 
is so--if the Senator knows--what is it that is so frightening to the 
majority that they will not allow this issue to come to the floor? We 
know it is timely. We know it is important. The Republican Senators 
have put forth a bill that they think should be considered. Why is it 
that this particular issue, involving massive insurance companies and 
health care across America, is so frightening to the Republican 
majority that they will not allow your unanimous consent request? Can 
the Senator from South Dakota give us some insight as to why this issue 
should be so frightening to the Republican majority?
  Mr. DASCHLE. I wish I could. I appreciate the question offered by the 
Senator from Illinois. I have no clue. All I know is that the American 
people are expecting us to act responsibly and comprehensively on this 
issue. I hope we will, and we will be back, either in the form of 
amendments or additional unanimous consent requests, to give them the 
opportunity to change their mind.
  Mr. President, I yield the floor.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, the distinguished assistant majority 
leader is here and would like to say a few things about the issue that 
has just been before us.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. NICKLES. Mr. President, first, I will make a couple comments 
concerning those made by some of our Democratic colleagues who said 
they want to bring up the Patients' Bill of Rights. We have offered 
throughout the month of July to bring up the Patients' Bill of Rights. 
I will make a unanimous consent request to do it again. Unfortunately, 
our Democratic colleagues haven't been able to take yes for an answer. 
In other words, I think they want to debate an issue, discuss an issue, 
have unlimited amendments, and we are not going to give them that.
  We only have 22 days left in this legislative session. We tried to 
get this up and considered and done in July. They wouldn't accept that 
request.
  In just a moment, I am going to make a unanimous consent request to 
bring it up with limited amendments. I will tell my colleagues, it will 
be three amendments a side. You can design any amendment any way you 
want. You can offer your proposal in any way that you want. We are 
going to give you an up-or-down vote on your proposal; we are going to 
have an up-or-down vote on our proposal. That is going to be in my 
request. You would have the right to do three amendments; we would have 
the right to do three amendments. It is the same request that we made 
in July. If you want this issue to be considered and passed, that is 
the way to do it. If you want to say we want to have this issue on the 
floor all month, as was the unanimous consent request made by the 
minority leader, that is not going to happen. Or to say that we are 
going to take up the House bill and work off the House bill, that is 
not going to happen.

  So, again, I tell my colleagues, if you want to consider the bill, 
and if you want it passed, the Patients' Bill of Rights, we are willing 
to do it. What I hear our friends on the Democratic side say is, ``We 
know we don't have the votes so we want to talk about it.'' And 
sometimes I think it is important if you are going to talk about the 
issue

[[Page S9738]]

that you speak truthfully. Unfortunately, I do not think the President 
did that in his radio address.
  The President, in his radio address on Saturday, frankly--I am going 
to come back to that issue shortly because I know my friend from 
Kentucky wants to go back to the bill. I am going to come back later to 
the floor and analyze the President's speech or his radio address where 
he talked about the Patients' Bill of Rights, and he characterized what 
the Republican bill did. And he was flat wrong. I think he should know 
the truth. And maybe his staff should do better work or they should 
quit trying to politicize this issue and he should speak factually what 
is in our bill and what is in his bill. Unfortunately, that did not 
happen on Saturday.
  Mr. KENNEDY. Would the Senator yield?
  Mr. NICKLES. No, I will not yield. I will yield in a moment.
  Another thing that galls this Senator is if and when the President 
thinks he can legislate by radio address. The President is the Chief 
Executive Officer in the country, but under the Constitution he does 
not have legislative powers to legislate by Executive order or to 
legislate by radio address. I think, frankly, he crossed that line 
again on Saturday. That is unfortunate.
  If he wants legislation, we are willing to consider legislation. The 
President talked about having internal appeals and so on. We have 
internal appeals in our bill. We have external appeals in our bill. So 
if the President likes that provision, he can take it up. And he should 
urge our colleagues on the Democratic side of the aisle to take this 
legislation up and pass it. We are giving a reasonable unanimous 
consent request to bring it up. So I just hope that, again, common 
sense would prevail and that we would take the legislation up under a 
reasonable time limit.
  I mention that the counteroffer that we received in July was not 
three amendments a side; it was 20 amendments a side. That would be 40 
amendments. That is ridiculous. That is not going to happen. I want to 
pass this legislation. Frankly, I have invested a lot of time in this 
legislation, as well as Senator Frist and Senator Collins, Senator 
Jeffords, Senator Gramm--many of our colleagues--Senator Santorum. We 
worked for months on this legislation.
  I also want to take just a little issue with our friend from 
Illinois. He said, ``Isn't it true that the Republican bill left out 
millions of Americans?'' That is false. We gave every single American 
that has an employer-sponsored plan an internal appeal and external 
appeal. And that is not in current law. We believe it should be 
legislated, not deemed by Executive order. And so to say, ``Well, they 
don't have protections under the Republican bill'' is absolutely false.
  We do not have 300-some mandates as proposed by the Democrat bill. We 
do not have 56 new causes of action where really it would say it would 
be health care by litigation. We have health care to be determined by 
physicians, not by trial attorneys.
  So, yes, there is a difference between the bills. We are saying: 
Fine. You have a legislative proposal. We will let you offer it. We 
will find out where the votes are. We have a legislative proposal. We 
will offer it and find out where the votes are, and maybe offer a 
couple of amendments. And we can dispose of the bill. We can pass the 
bill. We can go to conference with the House, hopefully work out the 
differences with the House.
  Mr. President, at this time I ask unanimous consent that the majority 
leader, after notification of the Democratic leader, shall turn to 
Senate bill S. 2330 regarding health care. I further ask that 
immediately upon its reporting, Senator Nickles be recognized to offer 
a substitute amendment making technical changes to the bill, and 
immediately following the reporting by the clerk, Senator Kennedy be 
recognized to offer his Patients' Bill of Rights amendment, with votes 
occurring on each amendment, with all points of order having been 
waived. I further ask that three other amendments be in order to be 
offered by each leader or their designee regarding health care, and 
following the conclusion of debate and following the votes with respect 
to the listed amendments, the bill be advanced to third reading, and 
the Senate proceed to H.R. 4250, the House companion bill, that all 
after the enacting clause be stricken, and the text of S. 2330, as 
amended, be inserted, and the Senate proceed to a vote. I further ask 
that following the vote, the Senate bill be returned to the calendar.
  The PRESIDING OFFICER (Mr. Kempthorne). Is there objection?
  Mr. KENNEDY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Reserving the right to object, I think if I heard 
correctly, under the Senator from Oklahoma's proposal the Senate is 
going to return the bill to the calendar following the vote? Did the 
Senator say that?
  Mr. NICKLES. Only the Senate version. What we would do is strike the 
House language and insert the Senate language--what we always do when 
we consider legislation. To respond to my colleague, the text of the 
Senate language would be sent over to the House under the H.R. number.
  Mr. KENNEDY. Mr. President, further reserving the right to object, 
would this unanimous consent request permit debate and discussion on 
the principal concerns outlined in the President's letter to the 
majority leader? Would this request permit a full discussion and debate 
on each of these? They all appear to be relevant. And could we have the 
assurance that the minority leader would have the opportunity to 
formulate amendments and have a debate and discussion of at least these 
particular proposals?
  Mr. NICKLES. I am happy to respond.
  It would be very easy for my colleague to address those 
considerations in the letter, which I have not seen yet. You could put 
those in your amendment. You could put those in your substitute. You 
could have that in any combination and consider everything addressed in 
that letter.
  Mr. KENNEDY. Do I understand further that the Senator would be 
willing to agree that we would have separate amendments on each of 
these measures that have been included in today's letter from the 
President to the majority leader on the Patients' Bill of Rights?
  Mr. NICKLES. Again, to answer my colleague's question, I said you 
would have a substitute amendment. You could have three amendments, and 
certainly with your skillful legislative prowess, you could have all 10 
things in that format.
  Mr. KENNEDY. I appreciate, I am sure, what you intended to be a 
compliment, but I would like to know whether the leader or other 
Members would be able to at least raise for debate and discussion each 
of the rather thoughtful observations that have been made by the 
President of the United States to the majority leader. And I understand 
that the majority leader, or his spokesman, the Senator from Oklahoma, 
is not prepared to permit the observations and shortcomings of the 
Republican proposal to be considered, if I am not wrong, to be made 
individually.
  Let me ask further, in the appeals procedures in the Republican 
proposal, you have put a strict limitation on the circumstances under 
which patients can appeal health plan decisions. It has to reach $1,000 
in order to qualify for appeal. That would effectively rule out any 
child, for example, that might have had a bicycle accident or a hockey 
accident or football accident from being able to be guaranteed a right 
to an appeal under the Republican proposal.
  Would we have an opportunity to debate this limitation and others in 
the appeals section of the Republican proposal?
  Mr. NICKLES. Mr. President, one, I have a unanimous consent request 
pending at the table.
  Mr. KENNEDY. I am reserving the right to object. I would like to find 
out if we are able to have a debate and discussion about the wisdom of 
putting dollar thresholds on the appeals that are in the Republican 
proposal.
  Would we have an opportunity for the Senate to express itself on 
whether it wants a $1,000 threshold to exclude----
  Mr. NICKLES. Regular order.
  Mr. KENNEDY. Reserving the right to object. What is the regular 
order?
  The PRESIDING OFFICER. We have a unanimous consent request.
  Mr. KENNEDY. Reserving the right to object, Mr. President----

[[Page S9739]]

  The PRESIDING OFFICER. Once the regular order has been called for, 
the Senator cannot reserve the right to object. The Senator must either 
object or not.
  Mr. KENNEDY. For those reasons, I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. NICKLES. Mr. President, I regret that my colleague from 
Massachusetts has objected to our unanimous consent request to bring 
this bill up. Obviously, he has some concerns, but he does not have the 
votes.
  We have offered to vote on his proposal. He can draft his proposal 
any way he wants. We have drafted our proposal. We want to vote on our 
proposal. We want to pass our proposal. We will give him an up-or-down 
vote on his proposal. We will offer and have offered that he can have 
two or three amendments, and we can have two or three amendments. We 
can finish this bill. He can draft those amendments in any way, shape 
or form he wants to and address any and all issues he has addressed 
today that might be in this letter or another letter. I hope he will do 
better work in the letter than the President did in his radio address. 
He was factually incorrect in that. I happen to be offended by that. I 
just make that comment.

  To reiterate, we offered to bring this up in July. My colleague from 
Tennessee and I and others wanted to finish it in July because we know 
we have a difficult conference with the House. This is not the easiest 
legislation to consider. So it is important to move sooner rather than 
later, as I think I heard my colleague from South Dakota mention. So I 
hope we will bring it up. But we are going to have to have cooperation 
from our colleagues. If they continue to insist on unlimited 
amendments, to where they can debate this issue all month, that is not 
going to happen. They will be successful in killing this bill, not the 
Republicans.
  I yield to my colleague from Tennessee.
  Mr. FRIST. As I understand the unanimous consent request, there would 
be the opportunity for either side to put into the bill they brought to 
the floor anything they wanted to. Is it correct, then, that whatever 
documents have been put forward or requested by the President could be 
brought forward to the floor in the original bill that the Democratic 
leader or the Senator from Massachusetts brought forward?
  Mr. NICKLES. They could have it in the original bill or they could 
offer it in the form of an amendment.
  Mr. FRIST. The unanimous consent would allow consideration of a bill 
presented by the Democratic leader and a bill that is presented by the 
Republican leader?
  Mr. NICKLES. The Senator is correct.
  Mr. FRIST. In the unanimous consent, you gave the opportunity for 
amendments to come forward. How many amendments on either side?
  Mr. NICKLES. Three.
  Mr. FRIST. In saying there could be only three amendments, you did 
not restrict what was in the original underlying bill so that any issue 
could be put forward--a bill of rights, or a recommendation by the 
President--is that correct?
  Mr. NICKLES. That's correct.
  Mr. FRIST. That has been denied.
  Mr. NICKLES. Yes. It is unfortunate because my Democratic colleagues 
are not able to take yes for an answer. I regret that.
  Mr. FRIST. One final question. The issue of the Patients' Bill of 
Rights is very important to me. As my colleague from Oklahoma has 
pointed out, we have collectively, as the U.S. Senate, spent a lot of 
time on this particular issue. Given the fact that we do have a number 
of bills--and I know we are anxious to get to the underlying bill right 
now--isn't it reasonable, given the opportunity, that we can put into 
these bills a Patients' Bill of Rights, or anything we want to, based 
on the unanimous consent right now? Isn't it reasonable to limit that 
discussion so that we can conduct the Senate's business, since we can 
put as much as we want into these bills right now and also allow them 
to be subjected to the amendments of the unanimous consent?
  Mr. NICKLES. I agree. Particularly, if you want to see something 
become law, it is going to have to be this kind of structure, or it 
will never happen. We would still be talking toward the end of 
September. We might have a good debate or a political issue, but we 
won't have any legislative change. I happen to be interested in trying 
to make a significant legislative improvement that becomes law.
  Mr. FRIST. I just hope we can come to agreement and a time agreement 
on this important issue, and that we can address this Patients' Bill of 
Rights.
  Mr. NICKLES. I appreciate the leadership the Senator has shown in 
putting this bill together.

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