[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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