[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

[[Page S11106]]

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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