[Congressional Record Volume 144, Number 130 (Friday, September 25, 1998)]
[Senate]
[Pages S10972-S10975]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        PATIENTS' BILL OF RIGHTS

  Mr. KENNEDY. Mr. President, here we are, Friday at 11 o'clock. Most 
Americans are out working the fifth day of the week, and the Senate is 
in a quorum call while we have important business to attend to. None is 
more important, I think, than the consideration of the Patients' Bill 
of Rights. I took time yesterday on the floor of the Senate when we had 
a long quorum call, asking why we weren't debating the Patients' Bill 
of Rights, as I did the day before. And here we are midmorning on a 
Friday--a workday for most Americans--just going through the motions 
before recessing, with a cloture vote scheduled late Monday afternoon.
  We could debate this issue all day today, could debate the issue all 
day on Monday, and we could have some resolution to the kinds of 
protections that we are talking about in the Patients' Bill of Rights. 
We have written these protections into legislation and we have 
described these protections on the floor. We have challenged our 
friends on the other side, the Republican leadership, to permit us an 
opportunity to debate and vote on the kind of protections that are 
outlined in the legislation introduced by Senator Daschle.
  However, we have been denied the opportunity to bring up this 
legislation, and to debate these various protections. Instead, we have 
continued in the Senate to move forward on other pieces of legislation 
which, as important as they are, don't measure up to what I think most 
families are concerned with--and that is ensuring the protection of the 
health of themselves, their children, and their parents.
  Endorsements of various groups and individuals are important in some 
instances, less so in other instances. But I daresay that in this 
particular instance virtually all of the leaders in the health debate--
certainly the doctors, nurses, and patient coalitions--have endorsed 
our proposal. We have been asking the Republican leadership for the 
names of the organizations that endorse their program. And we are still 
waiting to hear from the other side which medical professional groups 
have endorsed or supported the Republicans in this debate. I do not 
think there are any leading groups that support their plan, while 
virtually all support our legislation. Still, we are denied the 
opportunity to debate these issues.
  Now, yesterday Senator Gramm took the floor for an extended period of 
time to attack our plan. He said that the Republican solution was a new 
kind of insurance policy called medical savings accounts. The fact is 
that our bill takes medical decisionmaking out of the hands of the 
insurance company accountants and puts it back where it belongs, with 
the patients and the doctors. The Republican program is a sham and it 
gives the appearance of reform without the reality.
  I was struck by the fact that my friend, Senator Gramm, accuses the 
American people of wanting something for nothing, of wanting a ``free 
lunch.'' I object to this characterization of the patients who want 
protections from the health insurance company abuses. That is what we 
are basically talking about. What is at the heart of the legislation 
that we support is ensuring that medical professionals--doctors, 
nurses, and the trained medical professionals--make medical decisions. 
Those who are opposed want to maintain the status quo. They want to 
permit, in too many instances, insurance company accountants to make 
medical decisions.
  Now, a number of HMOs work well. Managed care in its best form can be 
good for patients. There are even a number of HMOs that support our 
particular proposal. And portions of our legislation are drawn from 
standards adopted voluntarily by some plans. But the problem is the bad 
apples that reach their medical decisions not on the basis of what is 
necessary from a medical point of view, but what is necessary from a 
bottom line point of view or the profit point of view of the HMO. That 
is the fundamental, basic issue. That is it.
  The good HMOs are complying with the kinds of protections that we 
have here. But a great many of other HMOs are not. We want to make sure 
that the patients are going to get what they pay for and what they are 
entitled to, and that their medical decisions are made by medical 
personnel and not accountants for insurance companies.
  Now, that fact is not understood by the Senator from Texas. What he 
has basically done in his presentation yesterday is accuse the American 
people of wanting something for nothing--I use his words: ``a free 
lunch.'' Those are the words the Senator used. Mr. President, I object 
to the characterization of patients who want protection from health 
insurance company abuse as patients who want a free lunch.
  I don't think a cancer patient who needs access to a specialist or a 
cancer treatment center wants a free lunch. I don't think that a family 
with a child experiencing seizures is asking for a

[[Page S10973]]

free lunch when they want to rush their child to the nearest emergency 
room, and their HMO, in an emergency, requires instead that they go all 
the way across town to another emergency room. That type of response 
can risk the life and the health of that particular child. I don't 
think those parents who are saying, ``Why can't I take my child to the 
nearest emergency room?'' are asking for a free lunch. I don't think a 
woman whose doctors say she needs to stay in the hospital after a 
mastectomy, even though her insurance company wants to send her home in 
pain, with tubes still dangling from her body, is asking for a free 
lunch.
  All of these examples I am using are examples we have presented to 
the U.S. Senate day in and day out over the period of the past many 
months. All of those particular situations are addressed in our 
Patients' Bill of Rights.
  I would have hoped that the Senator from Texas at least would have 
urged the Republican leadership to permit us to debate this and let the 
Senate resolve these particular issues. That is where we would have the 
opportunity to make our respective presentations and call the roll on 
these matters, as to whether these requests amount to ``free lunches.'' 
Let him make his presentation, and those of us who are strong 
supporters of the Patients' Bill of Rights can respond and make a 
presentation to the Senate. Then let the Senate make a decision as to 
whether those individuals are trying to have a free lunch.
  I don't think a doctor who is penalized for telling patients about 
the best available treatment is asking for a free lunch. In too many 
HMOs, when doctors make that kind of judgment and tell that patient 
they ought to have a treatment that is not on the plan's list, is that 
they are effectively fired, or they are not rehired at the end of the 
year. The insurance companies and Republicans can say this isn't a gag 
rule. But the fact that they are not hired back when they are dismissed 
is effectively a gag rule. That is what is happening in too many 
circumstances. I don't think that the patient who is getting the best 
advice from that doctor, at the risk of that doctor's employment, is 
asking for a free lunch.
  I don't think an individual suffering from terrible mental illness, 
like schizophrenia or clinical depression, who wants effective 
pharmaceutical products to treat the illness rather than the older, 
ineffective, but cheaper medication that happened to be on the plan 
listing, is asking for a free lunch. That is happening in America today 
and will continue today and tomorrow, and it will continue day after 
day in the future unless we address that issue here.
  This isn't just my opinion or the opinion of our cosponsors. We have 
the strong support of the leaders of the medical organizations, 
doctors, psychiatrists, psychologists, social workers, nurses, and 
others who know firsthand that the various HMOs are doing these things. 
We have heard from countless patients who have been told, ``You can't 
get the good kind of medications that are necessary to meet your 
particular health care needs until you use these other ones and 
demonstrate to us, not just once, but twice, that they just don't 
work.'' This puts a patient's health at risk. That is happening today. 
Look right here on the chart, Mr. President--``access to the doctor 
prescribed drugs.'' But the Senator from Texas says, well, that 
particular patient is just looking for a free lunch. These Americans 
don't want something for nothing, and it is insulting of the Senator 
from Texas to suggest that they do. They have faithfully paid their 
premiums and they deserve quality care.
  These companies don't mind going out and representing that they have 
a whole range of different quality programs to get individuals into 
their HMO. But, too often, insurance companies then deny the 
individuals the kind of health quality protections they need when they 
get ill. That is what is happening.
  That is where there is bureaucracy; the bureaucracy is in that HMO 
that refuses to give the best in terms of health care to the patient. 
All we are requiring is that they just give the patient what they paid 
for, what HMO represented in terms of quality health care. They are not 
doing it. They are not doing it in the ways listed on this chart, Mr. 
President.
  These are not just made up categories of care; these have been 
recommended by the President's nonpartisan commission, and by Congress 
for the Medicare program. These are recommendations that have come from 
State insurance commissioners. These are recommendations that have been 
made by the health plans themselves. They are the ones who made these 
recommendations. We didn't just pull this out of the blue.
  These are protections that those who know the condition of what is 
happening in America have recommended to us. That is what this debate 
ought to be about.
  Mr. President, the American consumer has faithfully paid for their 
premiums. They deserve quality care. The characterization of it by the 
Senator from Texas is typical of the attitude that the Republican 
leadership has taken toward this issue. They want to allow insurance 
companies to continue to put the profits first and patients last--all 
driven by the bottom line.
  You can solve these issues and problems by having the decisions 
affecting the quality made by the doctors. There is not a great mystery 
about what the solution is.
  But no. We do not hear that from the opponents. They want to allow 
the insurance companies to continue to put the profits first. That is 
why they have offered a sham bill. That is why they won't allow the 
Senate to have a chance to debate and vote on this issue. That is why 
they are trying to change the subject to medical savings accounts. They 
don't want to debate this issue. They refuse to debate this issue. They 
want to debate another issue and divert attention away from the real 
issues in this discussion.
  They do not want to talk about clinical trials and their importance 
for women with breast cancer. They do not want to talk about the 
ability to have the pediatric specialist for children with dread 
diseases. They don't want to debate those issues. They don't want to 
debate the question about giving the family the right to be able to go 
to the nearest emergency room rather than across town. They don't want 
to debate that issue. Which of these do they not want to debate? We 
challenge the Republican leadership to tell us.
  But day after day we go on with the charade of trying to get cloture 
to prohibit any kind of amendments and any kind of debate on these 
issues--day after day, issue after issue. That is wrong. It is 
absolutely categorically wrong.
  We are committed to trying to have this kind of debate and discussion 
on, as Senator Daschle has said on many occasions, a reasonable way to 
proceed. But, quite frankly, we see day in and day out the Republican 
leadership attempting to do to the U.S. Senate what many of these HMOs 
are doing to their patients--gagging their doctors so they can't give 
them the right kind of health advice. The Republican leadership is 
gagging the Senate by saying: We will only permit you to bring this up 
if we have one vote--one vote--and do it now with no debate.
  Why aren t we debating this on Friday at 11 o'clock this morning, or 
this afternoon, or on Monday when millions of Americans are going back 
to work? Why aren't we debating these issues? Why aren't we, Mr. 
President? It is silence on the other side. It is silence on the other 
side. They are trying to gag us from debating these issues. They are 
trying to protect the profits of those HMOs that refuse to provide the 
right kind of treatment by refusing us the opportunity to address these 
issues. They are basically protecting those various special interests 
and denying to virtually every major consumer group, and every major 
medical professional group their voice here in the Senate on these 
points. They refuse to let us even debate these issues. And the 
American people understand it.
  The American people want Congress to pass strong and effective 
legislation to end the abuses of HMOs, managed care plans, and health 
insurance companies. They want us to pass the Patients' Bill of Rights, 
which was introduced by Senator Daschle and Senate Democrats, to 
provide the needed and long overdue antidote to these festering and 
growing abuses.
  Our goal is to protect the patients and to see that insurance plans 
provide the quality plan they promise but, too

[[Page S10974]]

often, fail to deliver. Our bill has been on the Senate calendar since 
March. An earlier version of the legislation was introduced more than a 
year and a half ago, but the Senate has taken no action because the 
Republican leadership has been compounding the HMO abuses by abusing 
the rules of the Senate to block meaningful reform. This record of 
abuse should be unacceptable to the Senate. It is certainly 
unacceptable to the American people.
  We held a forum Wednesday in which a letter was released from 36 
groups representing patients, families, psychiatrists, psychologists, 
social workers, and others concerned about quality health care for 
people with mental illness. As I discussed in a floor statement 
yesterday, these groups begged the Senate to act to pass a patients' 
bill of rights, because with every day that passes, patients and their 
families suffer needlessly because of abuses by managed care plans.
  The stories they told were tragic--they involved suicide, spousal 
abuse, anxiety attacks inflicted on a Vietnam veteran, successful 
courses of treatment cruelly interrupted--all because insurance 
companies are putting the bottom line first and their obligations to 
patients last.
  This forum was just the most recent one in which we have heard 
patients and doctors and nurses pleading with the Republican leadership 
to act on real managed care reform. In my statement yesterday, I 
reported on an earlier forum in which we heard from Dr. Charlotte Yeh, 
an emergency room doctor representing the American College of Emergency 
Physicians. Dr. Yeh described tragic cases in which patients had been 
denied the care they needed because of managed care penny-pinching.
  On behalf of the college, she endorsed our legislation, and she 
denounced the Republican leadership alternative as worse than 
inadequate. Only with a full and fair floor debate can we pass real 
protection for patients who need emergency care or who should be 
allowed to go to the nearest emergency room when the symptoms of 
serious illness strike.
  On July 24, we heard from cancer patients and their doctors who 
explained how critical the provision of the Patients' Bill of Rights 
was in assuring patients access to quality clinical trials. These trial 
are often the only hope for patients with incurable cancer or other 
diseases where conventional treatments are ineffective. They are the 
best hope for learning to cure these dread diseases. Insurance used to 
routinely pay the doctor and hospital costs associated with clinical 
trials--but managed care plans are refusing to allow their patients to 
participate or to pay these costs.
  We understand. When patients are in a clinical trial there isn't a 
significant increase in terms of the costs to the HMO. It is just the 
routine doctor costs and hospital costs that they would pay anyway. The 
trial itself pays for the kinds of additional attention and 
prescription drugs that are given to these patients. But the insurance 
companies won't even cover the minimal payments.
  Our bill requires them to respond to this need--but the Republican 
bill does not, and the Senate leadership does not want a debate on this 
issue.
  Fourteen leading organizations of cancer patients, representing the 
eight million Americans surviving with cancer and the 1.5 million 
Americans who will be newly diagnosed with cancer this year, have 
spoken out strongly on the need for this amendment. These are 
organizations that patients and physicians alike look to for guidance 
on cancer issues. They include the National Coalition for Cancer 
Survivorship, Cancer Care, Incorporated, the Candle- 
lighters Childhood Cancer Foundation, the Susan G. Komen Breast Cancer 
Foundation, the National Alliance of Breast Cancer Organizations, the 
North American Brain Tumor Coalition, US TOO International, the Y-ME 
National Breast Cancer Society, the American Society of Clinical 
Oncology, the Alliance for Lung Cancer Advocacy, Support and Education, 
the Friends of Cancer Research, the Leukemia Society of America, and 
the Oncology Nursing Society--all groups that speak out for patients 
who have cancer. They have made their recommendations. They support our 
legislation. But we are being refused and denied the opportunity to 
even debate it.
  Here is what the combined cancer groups say about this:

       Clinical trials represent the standard of care for cancer 
     patients. Patient care in clinical trials is no more 
     important than standard therapy. Cancer will strike roughly 
     one in three Americans during their lifetimes. Even those who 
     escape the diagnosis will have friends and family touched by 
     the disease. Any patient rights or quality care legislation 
     will be a shallow promise for people with cancer if it does 
     not include provisions ensuring access to clinical trials.

  That is what we are talking about--clinical trials for individuals 
who have cancer. Why can't we debate that on the floor of the U.S. 
Senate on a Friday at noontime? Why can't we call the roll for those 
who believe, as the cancer organizations do, that clinical trials are a 
critical aspect of treatment, and that most Americans believe when they 
sign those HMO contracts that they are going to get the best in terms 
of American health care? And they do with a better HMO. But there are 
too many that are denying that care. Too many that are risking their 
lives because they are being denied the opportunity for clinical trials 
that may offer new hope and opportunity of survival for an individual 
member of a family. That is unbelievable. But that is happening--
denial. Too often the insurance companies offer a shallow promise. But 
our program ensures these protections. The Republican plan does not.
  Mr. President, we see that not one, not a single group that is 
concerned about the survival of cancer has supported the Republican 
program. But virtually every major cancer group supports our 
legislation and believes it is essential to protect American families.
  Why can't we debate that on the floor of the U.S. Senate? What is it 
about? Hard-working Americans--more than 160 million working Americans 
who are going to work today on Friday at noontime.
  Why aren't we debating that in the Senate? Why aren't we debating it 
at 2 o'clock or 5 o'clock or on this coming Monday morning or 
afternoon? We are prepared to debate these issues. But, no, the 
Republican leadership refuses to debate them. We are effectively seeing 
the manipulation of the Senate rules in such a way as to deny the 
opportunity for full consideration of something that is of core concern 
and importance to every American family, and that is the quality of 
their health care.
  So, Mr. President, I just want to again reiterate my strong support 
for our Democratic leader, Senator Daschle, who has indicated that we 
are going to still, even in the final days of this session, continue to 
pursue this. There are those who say, well, we haven't got enough time. 
But our Republican friends must think we do have enough time because 
they are continuing to resist our efforts. They must assume we do have 
enough time. It is amazing how quickly this body can act when we want 
to act on important pieces of legislation, and we do have time. So, Mr. 
President, we will continue to press these issues forward.
  I see other of my friends and colleagues in this Chamber. I will 
continue to address this issue at another time, but it is important to 
note that we have seen one more week go by and a denial of the request 
of our Democratic leader to at least have a reasonable period of time 
to debate these issues and resolve them in a way that would respond to 
the central concerns of every major medical professional group and 
society in our country. I am not aware of a single medical society or 
patient group that supports the Republican plan--not one. We have been 
waiting to hear one. They can't come up with one. In contrast, more 
than 180 groups support our particular proposal.
  Now, we may not have it all right, and we are interested in 
discussing adjustments that we may have to make. But 187 groups in our 
country, representing the cancer societies, the medical professionals, 
the nurses, the patient groups, working families, and others 
effectively support our proposal.
  Every major children's health organization in our society has 
endorsed this proposal because they know how important this is for 
children. Every major breast cancer group in our society that cares 
about women and understands the enormous possibilities of breakthroughs 
in terms of the new

[[Page S10975]]

modern miracle drugs supports our proposal. Every major group that 
represents persons with disabilities in our country--individuals who 
are challenged mentally and physically every single day--supports our 
proposal. And still, because of the manipulation of the Senate rules, 
we are denied a full debate and discussion and ultimate resolution as 
to what this body would say to families of this country on such a 
matter. It is wrong, and we are going to continue to press our case.
  I yield the floor.
  Mr. BYRD. Mr. President, will the Senator yield?
  Mr. KENNEDY. I am glad to yield.
  Mr. BYRD. Mr. President, the distinguished Senator from Massachusetts 
can always be counted upon to stand up for the things in which he 
believes. He is constantly supporting legislation that is calculated 
and dedicated to bring better health care to the American people. I 
support his Patients' Bill of Rights. ``Constancy, thou art the 
jewel.'' He is always constant in this efforts.
  I have been hearing some ads on the radio, and these ads are talking 
about the ``Kennedy Bill of Rights.'' I don't recall their ever telling 
us what is wrong with it. They may have been doing it; I have missed 
that. But I continually see these ads on the television: ``Write your 
Congressman, write your Senator, write your representative, and urge 
them to defeat the Kennedy Bill of Rights, the health care bill of 
rights.''
  Tell me, has the Senator seen those ads, and what are we talking 
about?
  Mr. KENNEDY. Mr. President, it is very interesting. I have seen those 
ads, but I believe they are going to be pulled very soon because what 
has happened, according to the most recent study by Bob Blendon at 
Harvard and the Kaiser Family Foundation, is that support for our bill 
has gone up, quite in conflict with the intentions of those who 
sponsored the ads that have been critical of the Patients' Bill of 
Rights. And so now the insurance companies and corporations that oppose 
the Patients' Bill of Rights are reviewing their television strategy 
because their campaign has had the reverse effect. They are sort of 
going back to the drawing board.
  But quite clearly, as the Senator implies, their ads certainly were 
not a fair representation of the legislation that we have introduced. 
As I mentioned, virtually every one of these proposals in our bill has 
either been suggested by the President's commission--which was 
bipartisan and reported its recommendations unanimously--as important 
for all patients, or included in Medicare at the present time and used 
in protecting our seniors, or have been embraced by the state insurance 
commissioners--which are the 50 commissioners around this country, 
Republicans and Democrats--or adopted voluntarily by the HMOs 
themselves through their trade association.
  This legislation reflects the best judgment of those groups that know 
this issue best. That is why we have a sense of confidence in this 
legislation. It has the strong support of those professionals who treat 
families and understand the kinds of protections that are necessary to 
give the best of health care to American families.
  Mr. BYRD. Mr. President, I thank the Senator for enlightening this 
Senator in response to the question I asked. I again commend him for 
his unceasing effort in behalf of this legislation, the Patients' Bill 
of Rights.
  Mr. KENNEDY. I thank the Senator.

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