[Congressional Record Volume 144, Number 133 (Tuesday, September 29, 1998)]
[Senate]
[Pages S11103-S11108]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PATIENTS' BILL OF RIGHTS
Mr. KENNEDY. I want to address the Senate this afternoon because of
my continued concern that we are not addressing one of the most
important areas of concern for American families, and that is the
legislation which is known as the Patients' Bill of Rights. I and a
number of our colleagues have cosponsored Senator Daschle's
legislation. I had hoped that we could debate and reach conclusion on
this legislation. I believe the overwhelming majority of our colleagues
on this side of the aisle are in support of this legislation and, if we
had an opportunity to debate this issue, I think we would have support
as well from Members on the other side.
Basically, it is a fundamental issue that I think all Americans can
understand. This issue centers around whether doctors are going to make
decisions with regard to the treatment of patients in our country, or
whether we are going to have those decisions made by accountants--whose
primary interest is enhancing the profits of the HMOs rather than the
health of its patients. That is really at the heart of the Patients'
Bill of Rights. There are other important protections, but that is at
the heart of it.
This issue affects about 160 million American policy holders. Our
legislation is supported by more than 180 leading health care
organizations--virtually all of the major doctors' organizations,
nursing organizations, and consumer organizations.
I have read the comments of some of our colleagues on the other side
of the aisle. They distort the provisions of this legislation and talk
about it as legislation which is unnecessary and legislation that will
complicate the current practice of medicine. But, listen to the
doctors. They say it will simplify the practice of medicine.
It does seem to me valuable to consider what the doctors say about
this, what the nurses say about this, and what the overwhelming,
virtually unanimous sense of the health professionals is about it, and
they say that they strongly support our legislation. They are opposed
to the Republican legislation. But all of them are asking when will the
Republican leadership yield and permit us--permit us meaning the
Senate--to take up this legislation and debate it and reach a
resolution on these various issues. That is the matter I am addressing
here this afternoon.
Over the period of the last 2 weeks in the Senate we have had votes
on the salting legislation. I bet if we asked the Americans who are
listening or watching this afternoon what the salting legislation is
really all about and where it fits on their list of priorities, many of
them would not know what it is all about. It is basically a technique
which is used--and used effectively and legitimately according to the
Supreme Court with its unanimous vote--to permit the organization of
workers in
[[Page S11104]]
sites across this country. But some of our Republican friends desired
to repeal that legislation. So we had votes on that.
We have had votes on the bankruptcy legislation which affects about
1,200,000 of our fellow citizens. We have had votes on the so-called
Child Custody Protection Act. We have now been debating in the last day
or two the Vacancies Act. We are also considering the Internet tax
provision. The majority leader has talked about financial services
legislation. And then we are going to come into a situation, perhaps
next week, where we are going to have the opportunity to address the
tax cut proposal of our Republican friends in the House of
Representatives. They want to use tax revenues which have been paid
into the Treasury, which are Social Security revenues, to provide tax
breaks for the wealthiest individuals in our country.
But we understand the surplus this year and in future years is the
result of funds that have been paid in by workers to fund Social
Security benefits. When you exclude these Social Security benefits, you
see that we really do not have a surplus. What we have is money raised
by working families to pay for Social Security. Our Republican friends
want to take some $80 billion of that and use it for tax breaks that
would primarily benefit the wealthiest individuals in our society.
I see one provision in their plan will decrease the estate tax for
millionaires. Let me tell every taxpayer who might be watching that you
will have an interest in this provision only if you intend to leave
more than $600,000 to one of your children. This Republican-sponsored
provision will permit you to leave $1 million. It affects only 2
percent of the taxpayers, but it will cost some $18 billion--$18
billion out of funds that are paid in by workers to pay for Social
Security. The majority plans to take that money out and use the $18
billion to offset the revenue losses that will result if the
Republicans pass their particular proposal to expand the estate tax. We
will have a chance to debate that issue.
But, Mr. President, where in this agenda is the issue of the
Patients' Bill of Rights, something that is of fundamental concern to
virtually every working family? Are we trying to suggest that the
salting legislation or the Vacancies Act or even the Internet tax issue
is of nearly the consequence or importance of the Patients' Bill of
Rights? Not so. But still the majority leader refuses to permit us to
debate and discuss it in the Senate.
The Republican leadership didn't permit it last Friday when most
Americans were out working and the Senate effectively closed down at
about 11 o'clock. There were Members who spoke after 11 o clock,
including myself, and we pointed out that we could have been debating
HMO reform on Friday afternoon. We could have been debating it on
Monday--when most of the afternoon was taken up in quorum calls before
the vote in the late afternoon--or even debated it on Monday evening.
Mr. President, I am not going to take the time to review with the
Senate the amount of hours we have spent in quorum calls over the
period of the last 2 weeks. We could have debated this, taken votes on
these measures, and resolved these matters in a way that I think would
have yielded some very important and basic protections for families.
I think we would have resolved this in favor of protecting children
in our country. I think we would have carried overwhelmingly in the
Senate the provisions that would have permitted families with a sick
child to bring that child to the nearest emergency room. I think we
would have won that in the Senate. I can understand why our Republican
friends do not want to vote on that issue, and show the American people
where they stand. I hope that at least a majority of them would have
supported our provision, if they were given the opportunity.
I think they would have supported our provision to guarantee
specialty care for children who have dread diseases like cancer. I
think they would have supported ensuring that a child with cancer
should have access to an oncologist who is trained to work with
children and with the cancer of the particular child. I think we would
have done that, just as I think we would have provided additional
specialty care protections for adults who have certain medical needs,
whether it is physical or mental disabilities or challenges or chronic
conditions like arthritis or diabetes. I think we would have won those.
I think we would have been successful in debating and reaching a
successful conclusion in ensuring access to clinical trials for women
who have breast cancer and other patients with life-threatening
diseases. With all the possibilities that are out there for
breakthrough therapies, why are we continuing to deny women the
opportunity to go into clinical trials? We guarantee that in our
Patients' Bill of Rights. The other side does not. Why aren't we
debating whether we are going to increase access to clinical trials for
women or children who have cancer, or patients with other diseases that
do not respond to conventional therapies? I think we should be able to
debate that issue.
I think we ought to be able to debate the issues around having access
to the kind of prescription drugs that are recommended by doctors,
instead of being limited to the medications preferred by the plan. We
have had heard testimony from the mental health community that
indicates that many of the individuals who need certain kinds of
prescription drugs are required to take older, less effective drugs
that are on the HMO's list. Before the plan will even consider giving
them access to the drugs that the doctor knows is best, the accountant
in that HMO says, No, you can't use that one until you have shown that
the previous two failed to work. Mr. President, these patients are only
given access to the drugs that the doctor knows are best after they
have shown that the plan s drugs failed to work at least two times. I
think we could have debated that. And I think we could have been
successful in that debate as well.
And the list goes on, Mr. President, including whether patients
should have the right to a timely and independent review, if an HMO
denies care. I think we could have won that particular measure, too.
We also should address whether we are going to say that HMOs should
be held accountable if their actions, as a result of negligence, result
in the loss of life or grievous bodily injury.
Who else is going to be the breadwinner for a family if an insurance
company's negligent actions result in the loss of life of that
individual? Why is the Republican leadership allowing the insurance
industry to remain the only particular protected industry in the United
States of America? If these companies are going to take certain action
that is going to result in the death or serious disability to an
individual, why should they be free from accountability? They should
not be. We ought to be able to debate that in the U.S. Senate.
These are just some of the points that are in the Daschle legislation
which we wanted to debate. But, no. Instead, we are debating salting
legislation, we are debating the Vacancies Act, the Internet tax, and
we will soon be debating financial services legislation, but not the
issues that affect the quality of life of our children, our parents,
our loved ones, our families. Why? Because the Republican leadership
refuses to do it. Why? Because evidently they think we may have the
votes to pass it.
We are still asked, is there enough time to pass this? Absolutely.
Evidently our Republican leaders think there must be, too, because they
continue to refuse to let us have the chance to debate this.
Senator Daschle has requested time and time again the opportunity to
debate these issues. ``No way,'' says the Republican leadership. ``No
way.'' They even closed the Senate down a little over a week ago when
they refused to let Members speak on the floor of the U.S. Senate.
``No,'' the Republican leader said, ``We set the calendar, we set the
schedule, and you are not even going to have the time-honored process
that is guaranteed under the rules of the Senate of being able to amend
a piece of legislation, because if you are not going to behave
yourselves''--in other words, ``if you are not going to accept our
gagging you,'' as so many of the HMOs are doing in terms of gagging
doctors from making recommendations about what is the appropriate kind
of health treatment for
[[Page S11105]]
the illness and sickness of the patients they are dealing with--``we
are not going to even debate that bill. We are going to pull the bill.
We are going to take it off the floor, and we are going to put it back
on the calendar,'' as he has done.
That is what is happening in the U.S. Senate these days. We were
fortunate to have just had an opportunity to debate raising the minimum
wage. We said that working men and women in this country, who work 40
hours a week and 52 weeks a year, ought to have a livable wage. We were
not successful on the issue. We lost on that, but we had the
opportunity to debate and go on record with our positions. What we are
saying now is: Let us have a debate; let us have the debate on the
questions of health care quality. This is something which is of
enormous importance.
Mr. President, as I mentioned, this isn't just something a number of
us have been in strong support of. I want to mention an editorial in
Sunday's Washington Post that cut through the Republican leadership's
smokescreen of evasion and distortion on managed care. The editorial
was entitled ``Double Loss on Managed Care.'' The author says:
Mr. Clinton . . . took the lead months ago in proposing
that Congress pass a ``Patients' Bill of Rights'' to limit
how far managed care companies and other insurers can go in
denying care in order to cut costs. Democrats in both Houses
built on his proposals. The initial reaction of House
Republican leaders was to say no bill was necessary. By July,
that had ceased to be a comfortable position and, to give
their members more cover, they allowed a mostly token bill to
pass.
In the Senate, the leadership also produced a token bill
but refused to bring it to the floor unless the Democrats
agreed to limit themselves to a handful of amendments, which
the Democrats said would make a shell of the proceedings.
To thwart the Democrats when they have tried to bring up
their own bill, the Republicans have all but shut the
Senate down.
There it is, Mr. President. That isn't Senator Daschle saying that or
myself saying that or any number of my colleagues--Senator Boxer,
Senator Murray, Senator Durbin. You can call the roll on so many of our
colleagues. That isn't any individual Member saying that. Here it is in
a Washington Post editorial, which has captured in two paragraphs
exactly what we have been saying day after day after day, week after
week after week, month after month after month. They understand it, Mr.
President, and the American people understand.
The editorial goes on to say that it disagrees with some provisions
of the Democratic bill but, in its words:
That could be dealt with in the normal legislative process,
if only the Republicans would allow the process to occur. For
a combination of political and doctrinal reasons, they won't,
anymore than earlier in the year, they allowed tobacco or
campaign reform legislation to pass. They ought to be made to
answer for their record, but so far they have not.
There it is, Mr. President, clear as can be for all to see, and the
American people are increasingly aware of the current situation. That
editorial captures it. It is clear what is going on here. It is clear
to the Washington Post. It is clear to every Member of the Senate. It
should be clear to the American people.
The American people want Congress to pass strong, effective
legislation to end the abuses by HMOs, managed care plans and health
insurance companies. The Patients' Bill of Rights, sponsored by Senator
Daschle and other Senate Democrats, provides the needed and long
overdue antidote to these festering and growing abuses. Our goal is to
protect patients and see that insurance plans provide the quality care
they promise in brochures but too often fail to deliver.
Our bill has been on the Senate calendar since March. Earlier
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, and,
certainly, unacceptable to the American people. One of the most
indefensible gaps in the Republican plan is its failure to cover public
employees. The GOP plan offers no protection for the 23 million people
who serve the public by working for State and local governments. The
Republican leadership is saying ``No'' to the police officers and the
firefighters who put their lives on the line every day to safeguard the
public; ``No'' to the schoolteachers who educate our children; no to
nurses; ``No'' to social workers, doctors, and others who spend their
days caring for people in public health agencies and State and county
hospitals; and ``No'' to countless other professionals who serve the
public through State and local governments.
I will take just a few moments of the Senate's time to refer to three
excellent commentaries that we heard today. I will have the full
statements printed in the Record. First, we will hear from Jerry Flynn:
My name is Jerry Flynn. I am a police officer with the City
of Lowell, Massachusetts Police Department. I am also the
National Vice-President of the International Brotherhood of
Police Officers. . .
. . . Unlike the sham being proposed by the Republican
Leadership, [the Democratic leadership plan] is the only
legislation that would actually protect patients and address
the abuses of managed care.
. . . Of particular concern to me, is the fact that the
Senate Republican Leadership bill does not apply to public
employees. This means all state and local government
employees in Lowell, as well as millions of other public
workers who are covered under managed care plans, would not
be protected under the limited provisions of the Republican
version of the bill.
The fact is that the Republican bill leaves out more than 100 million
Americans with private insurance. Of that group, we have some 23
million who are public employees.
Let me continue with Jerry Flynn's comments:
Don't public employees deserve the same protections as
other Americans? Don't public employees deserve the same
medical treatment as other Americans? It's high time Senate
Majority Leader Trent Lott and the rest of the Republican
Leadership stop treating public employees as second class
citizens.
As police officers, we know the importance of comprehensive
medical coverage.
Whether the injury is slight or life threatening, whether
it involves a civilian or fellow officer, whether it involves
an elderly person or a small child, the single most important
factor is that we get the best medical treatment possible--
and that the quality of care be determined by need, not by
cost.
Mr. President, listen to Tom McEachin:
. . . I am a fire fighter in Prince George's County,
Maryland. Fire fighters and paramedics are the first
responders to the overwhelming majority of acute medical
incidents in this nation. Every day we see the faces of those
Americans that the Patients' Bill of Rights Act would
protect. We see the look of fear on their faces as they react
to the emergency situations their loved ones face. They're
not only afraid for the lives of those they love, they're
also afraid about what the accountants at their HMOs will say
about the decisions they have just made. They're afraid
they'll be denied coverage and have to find a way to pay
astronomical bills or face long-term indebtedness. The way
the system's set up now, they sometimes end up hoping that
there's something seriously wrong with their loved ones,
because they're afraid of what the bean counters will say if
they decide it wasn't a true emergency.
Listen to these last few lines, Mr. President.
Fire fighters work in the worst of conditions. We go where
the danger is the greatest, during careers that can last more
than 20 years. Each year, more than half of us are injured on
the job, and the environmental hazards we face have been
proven to cause various forms of cancer, heart disease and
other life-threatening diseases. All we ask in return for the
risks we take is the simple guarantee that our health
coverage will protect us and our loved ones when we need it.
The Patients' Bill of Rights will do just that.
The 23 million state and local public employees who are not
covered by the Republican leadership's bill deserve better.
The citizens we serve deserve better. The American public
deserves better. As a fire fighter, all I'm asking for is
that my elected leaders treat me as I would treat them or
their family members if I had to rescue them in an emergency
situation. It's only fair.
Listen to that, Mr. President. This is from a firefighter. He is left
out of the Republican bill, but protected in our bill. Let's debate
whether he and his colleagues should be included or excluded. That is
what we are saying to the Republican leadership. And we have silence
over there. This is what Thomas McEachin said:
The citizens we serve deserve better. The American public
deserves better. As a fire fighter, all I'm asking for is
that my elected leaders treat me as I would treat them or
their family members if I had to rescue them in an emergency
situation. It's only fair.
Why can't we debate that? That is true with every firefighter in this
country. It is true about every police
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officer in this country. It is true about every teacher in this
country--all of them are excluded under the Republican bill. Can't we
debate that? Twenty-three million Americans left out, left behind. We
are not discussing this in the Senate--no, no. We have to debate the
Vacancies Act. We have to debate Internet tax. We have to debate
salting. We have to debate child custody. We have to debate all of
those issues. We have to debate all of those issues, but we cannot
debate the concerns raised by Thomas McEachin. We cannot seem to make
every Member in this body accountable for their vote. I can understand
why the Republicans do not want to go on record with their position. I
can understand why they do not want to. But that is not a good enough
answer.
Mr. President, the statements keep coming. Here is one from Doris
Brightful, a registered nurse, now retired after 32 years with the
Baltimore City Health Department. And I will include, as I mentioned,
in the Record all of these statements.
. . . I am not just here today as a health care
professional. Nurses are also health care consumers. Nursing
is a dangerous profession, and nurses are often injured on
the job or exposed to dangerous infectious diseases. We
know that, sooner or later, we will need medical care. My
family members and my loved ones also will one day need
health care. Therefore, I am outraged that Senator Lott
and other Republicans would exclude me, my family and some
23 million other state and local public employees from
even those few protections that are offered in their
health care proposal. School teachers, firefighters,
public safety officers--and, yes, doctors and nurses
working in public health facilities--work hard every day
looking out for the well-being of our communities. Yet,
the Republican bill would deny us many of the same
protections that our patients would have under this plan.
All they want are the same protections--``the same protections that
our patients would have under this plan.'' Nurse Brightful concludes:
In closing, I would just like to point out that the first
guiding principle in the Health Care Consumer Bill of Rights,
as set forth by the President's Advisory Commission on
Consumer Protection and Quality in the Health Care Industry
was this: All consumers are created equal. The Republican
bill violates this principle, and should be rejected.
Instead, the Senate should pass S. 1890, the Patients Bill
of Rights, so that all Americans are protected.
Here it is, Mr. President. These are the real stories of what is
happening out across America. These are the comments of three of our
fellow citizens--a firefighter, a police officer, a nurse--talking
about the kinds of inequities that exist out there. There are 23
million Americans in their situation, and still we cannot get this
legislation up on the floor.
The Republican leadership says we have too many bills to debate but,
Mr. President, the American families know what is going on here. The
doctors know what is going on. The nurses understand what is going on.
The newspapers around this country know what is going on. We are being
denied the opportunity to have a debate of this bill and to try to pass
something that would be worthy of the Senate's actions.
Mr. President, this is just one aspect of the differences between the
Democratic and Republican health programs. We have tried, over the
period of recent weeks, to bring examples of those that would be
affected by either the inclusion or exclusion of the various
protections in the proposals, and to bring those examples to the
attention of the Senate over the period of recent days and weeks. We
will continue to do so.
How much time, Mr. President?
The PRESIDING OFFICER. Thirty minutes.
Mr. KENNEDY. Mr. President, at other forums we heard about the need
for access to specialty care--one of the most important ways in which
managed care plans shortchange patients. This is a right guaranteed in
our Patients' Bill of Rights but not in our Republican plan.
Dr. Mirtha Casimir, a distinguished oncologist from Houston, Texas,
outlined the tragedy she sees every single day because HMOs unduly
restrict access to specialists. This is what Dr. Casimir's statement
was:
Cancer patients today are facing a painful irony. At a time
of unprecedented progress in the understanding of the genetic
and cellular origins of cancer, as well as parallel advances
in drug development and design, the insurance industry is
exposing new cost containment.
Many medical oncologists are concerned about timely access
to cancer care and how the significant delays and referrals
are impacting early diagnosis and the outcome of therapies in
the first and subsequent courses of treatment. Not
uncommonly, I now see in my practice delays of 2 to 4 months
in a diagnosis of a new primary cancer or the detection of a
recurrence.
And what the doctor continues to point out is that when she finally
sees these cases, it is often too late. For example, she sees women in
her practice who have started out with a very, very small tumor in
their breast, and then they have been delayed access to a specialist
and denied various kinds of treatment. Their appeals go on and on
through the HMOs, and finally, when they get to a skilled oncologist,
after weeks and months, often it is too late--often it is too late. The
tumor has spread too far.
And Dr. Casimir said that more often than not when she flips to the
front part of the chart, she will see that the patient is covered by an
HMO. She will see that the initial request was denied for the kind of
treatment that she could provide. And more often than not, she
believes, as a skilled physician, that she could have saved the life of
that individual if they had been able to get the prompt kind of a
treatment and care. She wraps up in her statement by saying:
Poor quality of care is always more expensive, both in
human terms as well as in the resources expended to try to
right the wrong. If the Patients' Bill of Rights is not
passed, patients will continue to experience the hostility
of this turbulent health care environment in which care is
constrained, physicians are controlled, needs of cancer
patients are not addressed, and critically important
quality of life interventions are viewed as dispensable.
That is the statement from one of the top oncologists in the country,
and the rest of the testimony spells out additional reasons in support
of those points.
On September 15, we heard from the past president of the American
Academy of Neurology, Dr. Ken Viste from Wisconsin:
This country needs fair and compassionate legislation
establishing the national standard for all health plans in
order to help not harm people with chronic conditions or
disabilities.
The American Academy of Neurology said:
The House Republican leadership's bill, which passed the
House, fails to protect the rights and address the needs of
patients.
There it is, Mr. President, from the American Academy of Neurology.
Dr. Viste continued:
It is critical for people who need a medical specialist's
care to be able to seek the treatment from them directly,
immediately, and without penalty. The Daschle-Kennedy bill
answers this need by assuring that people with complex,
chronic conditions have direct access to specialists within a
health plan. And, if no specialist exists in the plan,
consumers have a right at no cost to seek a specialist
outside of the plan. We believe any adequate patient
protection legislation must include these provisions.
Willis Lester, one of the speakers at the rally, explained
when his employer switched to a managed care plan, his new
primary care doctor took him off his blood pressure and
cholesterol medications. Consequently, Lester suffered a
stroke. According to Dr. Nancy Futrell . . . the stroke is a
direct result of high blood pressure and high cholesterol,
which would have been controlled by his medications.
Dr. Futrell added that Lester's plan has limited his
physical therapy, ``essentially impairing his recovery.''
Explains Dr. Viste:
With the rise of managed care, we've seen many patients
with chronic conditions denied access to quality, specialized
medical care that they need. As a result, some of these
patients suffer long-term effects and end up on disability,
driving up costs to employers. Patients need a law with
``teeth'' that guarantees they will be able to see a
specialist, appeal to obtain a medically necessary drug when
denied such under a prescription plan, and appeal denial of
care to an independent decison-making body.
Not only will the patient benefit, but in the end, the
employers, as well.
The Epilepsy Foundation, the National Multiple Sclerosis
Society, United Cerebral Palsy, the American Parkinson's
Disease Foundation, the Brain Injury Association, the
Consortium for Citizens with Disabilities joined the
[American Academy of Neurology] leaders and members . . . in
advocating the passage of S. 1890.
The Epilepsy Foundation, National Multiple Sclerosis Society, United
Cerebral Palsy, Parkinson's Disease Foundation, Brain Injury
Association--
[[Page S11107]]
every one of these groups say that our legislation provides the
protections which are necessary for our families, and the GOP bill does
not.
We don't even have an opportunity to debate or discuss this. The
majority refuses to debate. We are still waiting to hear the name of
that first major medical society that supports the Republican proposal.
We are still waiting. They haven't been able to come up with one, not
one. Virtually every major health care group supports our program. They
all do.
We will make adjustments and changes in any legislation to try and
move the legislation forward, but we are not going to compromise on
vital protections. Every major medical professional group supports
ours. None, not one, support theirs.
The list goes on. This is from a statement of Jeanne Carpenter, the
president of the Epilepsy Foundation, in support of the Patients Bill
of Rights:
The Epilepsy Foundation historically has been a strong
advocate for patients rights. We support affordable and
quality health care for all Americans. And that begins with
giving consumers the choice of health plans, a feature we are
pleased to see included in the proposed legislation.
We especially support several key provisions [in the
legislation]--access to specialists and provider choice,
detailed patient information, independent internal and
external review of service denials, and coverage for
nonformulary prescriptions where medically necessary.
Many patients and families tell us they are deeply
frustrated being denied referrals to specialists and the full
range of treatment options that specialized treatment centers
can provide. Not only is patient quality of life adversely
affected, but denial of services is a false economy. It
produces added cost for unnecessary emergency room and dental
services, lost productivity and other seizure-related
expenses.
Seizure control for many epilepsy patients is a complex
matter with important subtleties not always recognized in the
primary care setting. Families whose children continue to
have seizures need and deserve the opportunity to have their
cases reviewed by third parties with full knowledge of the
disorder and rapid progress is now being made in its
treatment.
Patients' rights legislation is long overdue. Each day of
delay, there are children whose chances in life are being
jeopardized because of ongoing seizures. We strongly urge
passage of these protections during the current session of
Congress and at the earliest possible moment.
Do we hear that? Every day of delayed debate and inaction we are
putting at risk children whose lives are being jeopardized because of
ongoing seizures. How many are being jeopardized if we don't complete
the Vacancies Act? Or the salting act or the Internet tax or the
financial services legislation? How many? Here, Mr. President, are the
real issues. This is what is really important in our remaining time
this year.
It is very clear why all of these organizations support this
proposal. We have built into it not only the guarantee of specialty
care, but real internal and external appeals.
I will make a brief comment about the appeal procedures under the
Republican proposal. Under their plan, the decision to allow a patient
to proceed to a so-called independent appeal will be made by the HMO
itself, in consultation with their lawyers. Talk about having the fox
guard the hen house, this is putting the fox in there. Do you know what
will happen under the Republican House plan? Even if the patient wins
on the appeal, the plan doesn't have to accept it. If they choose, they
don't have to follow it. So they can show a brochure to anybody buying
insurance, look you have an appeal. But they probably don't explain
that it is decided by the plan and that the plan doesn t have to follow
the ruling if it benefits the patient.
Our Republican friends say yes, we have an appeal provision. They say
yes, we have it in our proposal. But this is the appeal they have. It
doesn't work in quite the same way as ours.
I see two of my good friends and colleagues here, so I will wind up.
It is important to understand that this issue is not going to go away.
As I have mentioned many times, the provisions listed on this chart
and included in our legislation have either been recommended by the
President's bipartisan commission--which required unanimous support by
its members-- or were put in Medicare by the Congress or have been
endorsed by the National Association of Insurance Commissioners or
recommended by the American Association of Health Plans, which
represents HMOs across the country.
And, while the President's Commission did not specifically draft
legislation, they did not rule out legislation either. They simply said
that all Americans should have these protections. Most of our bill
reflects the Commission's recommendations. Many of these provisions
currently protect our seniors in Medicare. There is a lot of overlap
here. The HMO trade group and the State insurance commissioners--again,
Republicans and Democrats alike--have said these are important
protections. Virtually all of our proposals have been recommended or
adopted by other health care programs or experts. Talk about a modest
proposal.
This is really a reflection of the best of those who understand this
issue and have studied it for some period of time--probably for 8 to 10
years.
That is what this is all about. It is sensible. It is responsible. It
is common sense. It is common sense to take a sick child to the nearest
emergency room and not across town. It is common sense to get a
specialist to take care of a particular kind of need. That makes sense.
It is common sense to give the best medical prescription drug to
somebody who is ill. It is common sense, with the breakthrough
technologies and unprecedented progress that we are making in medicine,
to allow people who can benefit from clinical trials to be able to
participate in those clinical trials. It doesn't cost the HMOs very
much more because they are going to have to pay for the basic routine
care in any event, and that care will continue. The clinical trial pays
for the additional treatment. So the cost isn't that great. But too
many patients don't have this right, and those who think they do are
increasingly denied it.
The list goes on. These are common sense proposals, Mr. President. It
is common sense to hold people accountable for their actions. When you
hold them accountable, you get better performance. The best testimony
on the issues of appeals and accountability that we heard was when
Senator Specter had his excellent hearing. We learned that court cases
rarely occur, even when patients can hold their plans accountable. The
23 million employees of state and local governments can take their
plans to court, as can the 15 million patients with individual health
insurance. We know how that works. It is rarely used. Why? Because it
is there. In most cases, the internal and external appeals resolve it
before it needs to go to court. In the end, with few exceptions, it
doesn't involve a court case. But what is clear--and the testimony is
overwhelming because it is there--is that you get better quality. These
plans can be held accountable for their actions, but we see that there
is not as great a need when that right exists for patients.
That is what we are interested in. We are interested in the best
quality. We believe the American people should be entitled to it.
These are some of the stories that we have heard in recent times. We
can go right down the list of protections in our bill and in every one
of these areas on this chart, you can find compelling stories. We just
ask to debate and vote on these issues.
All we ask is that we cut back on some of the quorum calls that we
have had here lately. All we ask is that we follow Senator Daschle's
suggestion that we may debate these in the course of the evenings, at
the end of this week and part of next week, and have some resolution of
these issues. All we ask is that we give the American people at least
an understanding that this institution is addressing something that is
fundamentally important to their lives and the lives of their loved
ones.
I yield the floor.
Mr. GRAHAM addressed the Chair.
The PRESIDING OFFICER. The Senator from Florida is recognized.
Mr. GRAHAM. Mr. President, I concur with the sense of urgency that
our colleague from Massachusetts just presented on this issue. With
every day that goes by, another American family is at risk because they
do not have these guaranteed protections; another American family is in
a quandary because they do not have the kind of information that this
would assure.
The Senator from Massachusetts has spoken in great detail--and the
Senator from Rhode Island will shortly do
[[Page S11108]]
likewise--on this. If I could just focus on two items. The most
contentious area between patients and their health maintenance
organization is the emergency room. That is where the greatest number
of disputes as to the appropriateness of service and responsibility for
payment of service occurs.
Recognizing that fact, last year, this Congress passed a very strong
provision for the 35 million Americans who receive their health care
financing through Medicare, to protect them relative to their HMO in an
emergency room setting. Basically, the standard is, if you are a
reasonable lay person and you are suffering from symptoms that a
reasonable lay person would feel appropriate for emergency room
treatment--say, you have a pain in your left chest--you can go to the
emergency room, receive treatment, and not be faced a month later with
an enormous bill from that same emergency room because the HMO denied
coverage. The HMO is required to provide coverage.
If you will notice on the chart, I believe it will indicate that both
bills--the GOP's and the Democratic--have emergency room access. But
that is not the end of the matter. It is not just a matter of getting
into the emergency room and having assurance that somebody is going to
look at you and determine whether your pain is angina or a heart
attack. Then, after that decision is made, there is another critical
period. That is what is called the postdiagnostic stabilization period,
where something is done to you to bring you back to a level of health
that will allow you to return home.
There is a significant difference, because the Democratic bill
provides that that postdiagnostic stabilization period is also
guaranteed to be covered. That is not the case with the Republican
bill. So you can't just look at a chart with three or four words behind
the number and assume that we are talking about parity protections.
That is what we ought to be debating. Is there a rational reason to
have emergency room access covered, as it is in Medicare, but not to
have, as it is in Medicare, the postdiagnostic stabilization covered?
We could have a good debate on that issue, and we ought to have that
debate.
Secondly, the issue of informed judgment. Many citizens now have the
opportunity to select from a variety of HMOs. They may be with an
employer plan that provides multiple HMOs, or if they are purchasing
from their own resources from the marketplace, what typically is absent
is the means by which even the most concerned and conscientious citizen
can make an informed judgment among this variety of plans.
So we have a provision for information to be made available on the
quality of the plan: What kind of things might we anticipate would come
from that information about performance outcomes? How many of the
patients under one particular plan who, for instance, have a particular
type of surgical procedure have a successful outcome? If you are about
to have surgery, you would be pretty interested in knowing what the
prospects were of your having a positive result.
Another provision that is likely to be included is information about
what will this plan do to help you maintain your state of good health?
Will this plan, for instance, provide for screening tests and periodic
examinations? Those kinds of things, we know, have the greatest
potential of spotting a problem before it becomes a fatal condition,
giving you the opportunity to do something to maintain the quality of
your health. That provision is in the Democratic plan, but it is not in
the Republican plan. I think that is a critical matter for Americans
attempting to use their own best efforts to select a plan that will
best protect the health of their family.
So, Mr. President, this is an urgent and critical issue. We are
taking up a lot of matters in this last couple of weeks, and I would
let the American people make a judgment as to our sense of priorities.
Is it more important to be considering the Judicial Vacancies Act
during the last 6 or 7 days of this Congress, or to be considering the
Bill of Rights for 161 million Americans, in terms of their health
care? That is a judgment that the American people should make. I think
it is a judgment about which we in the Congress should feel a sense of
responsibility to the citizens of this country--to prioritize our
efforts on their behalf.
Mr. President, I am certain we will have more to say on this issue.
Mr. KENNEDY. Mr. President, I thank the Senator.
Mr. GRAHAM. Mr. President, I ask unanimous consent that my following
remarks be included in the Record when the energy and water
appropriations conference report is considered by the Senate.
The PRESIDING OFFICER. The Senator is informed that the energy and
water appropriations bill is not on the calendar. It is scheduled to be
on the calendar. The acting President does not believe the remarks
today can be put in tomorrow's Record.
Mr. GRAHAM. Mr. President, in light of that comment, I will therefore
defer my comments until the appropriate day when this matter will be
considered. I would like to alert the Senate that it will be my
intention at the appropriate time to provide such a statement and a
colloquy among Senators Domenici, Reid, Mack, and myself on the issue
of funding for the Kissimmee River Restoration Project as part of the
Everglades Restoration Project as it relates to that item within the
energy and water appropriations conference committee.
Mr. President, in light of the comments of the Chair, the uncertainty
as to whether this bill will be before us today, I will conclude my
comments with that information to the Senate and look forward to
participating when this matter is before the Senate.
Mr. HARKIN addressed the Chair.
The PRESIDING OFFICER. The Senator from Iowa.
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