[Congressional Record Volume 145, Number 84 (Tuesday, June 15, 1999)]
[Senate]
[Pages S7011-S7017]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    LEGISLATIVE ACTION IN THE SENATE

  Mr. DURBIN. Mr. President, I think most of those who are following 
the activities on Capitol Hill understand that we are awaiting action 
in the other body, the House of Representatives, on a measure that was 
passed here several weeks ago concerning gun safety. This is a measure 
which received a bipartisan vote, a tie vote on the floor of the 
Senate, a tie that was broken by Vice President Gore. That issue, which 
reached, I guess, the highest level of national consciousness, came in 
the wake of the Littleton, CO, tragedy.
  I think most Members of Congress thought we on Capitol Hill had to 
listen to the families across America who were asking us to do 
something to make life safer for our school children. The Senate 
responded. After a week-long debate, we passed legislation and sent it 
to the House of Representatives--modest steps but important steps in 
sensible gun control.
  It is our hope that the House meets its obligation, passes 
legislation, and we can achieve something this year on the important 
issue of safety in our schools. This respite that we currently enjoy, 
because of summer vacation, should not lull us into a false sense of 
security about school safety.
  Sadly, the names of towns across America remind us that we have a 
national problem: Conyers, GA; Littleton, CO; Jonesboro, AR; West 
Paducah, KY; Pearl, MS; Springfield, OR. The list goes on, sadly, to 
include too many towns, many of which I am sure we would never have 
guessed would be the site or scene of violence in a school. It has 
become a national problem.
  I hope this Congress, which has done precious little in the last few 
months, can respond to this issue of school safety and do it quickly. 
We would be remiss to believe the response to that issue satisfies the 
needs of the American people as they look to Congress for leadership.
  There is an area which most Americans understand and appreciate that, 
frankly, we have failed to address over the last several years. I 
refer, of course, to the whole question of the Patients' Bill of Rights 
and whether or not we, as a Congress, will respond to the need to do 
something about the state of health insurance in America.
  We all know what has happened. There was a debate several years ago, 
when the Clinton administration first came in, over whether we would do 
health care reform. That debate broke down on Capitol Hill when the 
insurance industry spent literally millions of dollars in advertising 
against any kind of reform. We stopped in place. We did nothing on 
Capitol Hill.
  Families across America, as they look at the changing landscape of 
health insurance, might assume we passed some sweeping Federal 
legislation. We did not. What happened was, there were dramatic changes 
in the private sector without any impetus from legislation on Capitol 
Hill. Those changes started moving more and more Americans into what is 
now euphemistically called managed care. Managed care, of course, is a 
health insurance approach that is designed to bring down costs. I do 
not argue with the fact that it has brought down costs in some areas. 
What I argue with is whether or not we have paid too high a price for 
those costs to be brought down and whether there is a more sensible way 
to address it.
  It is estimated that by 1996, 75 percent of employees with employer-
provided health insurance were covered by managed care.
  I have traveled around Illinois. I will bet Senators visiting their 
home States would find the same thing that I did. I visited hospitals 
in cities and rural areas. I invited doctors and medical professionals 
to come to the cafeteria and sit around a table and talk about health 
insurance. I didn't know if any doctors would take time out of their 
busy day for that purpose, but they did.
  In fact, in one hospital, as we were sitting in a cafeteria 
discussing the issue, all of the doctors' beepers went off. There was a 
crisis in the emergency room, and they all left. They returned about 45 
minutes later, still anxious to carry on the conversation. What these 
doctors talked to me about was the changing environment in medical care 
in this country and their concern as to whether or not they could do 
the right job professionally.
  And it wasn't just the doctor's concern. I have heard the same thing 
from families all across Illinois, and we have heard it across the 
Nation.
  Too many people worry that when they go into a doctor's office with a 
medical problem, or with a member of their family who is ill, they 
aren't getting straight talk. They expect doctors to tell them honestly 
what the options are, the best course of treatment, the best hospital, 
the best specialist. Unfortunately, because of managed care, there is 
another party involved in this conversation. It is no longer just the 
doctor and the patient, or the doctor and the parent of an ailing 
child; there is also some clerk at an insurance company who is party to 
that conversation. They might not be sitting at the examining table, 
but most doctors, before they can recommend anything for a patient, 
have to get on a phone and call some invisible clerk hundreds, if not 
thousands, of miles away for approval.
  Let me tell you a real life story by a doctor. The doctor said that a 
mother came in with a young boy and said, ``My son has complained of 
headaches

[[Page S7012]]

for months.'' The doctor said, ``Are they in one particular part of his 
head?'' She said, ``Yes; on the left side. He always complains about 
headaches on the left side of his head.''
  The doctor thought to himself that there was a possibility that this 
could be a tumor if the child continued to complain about headaches on 
one side of his head. So he thought that perhaps he needed some 
diagnostic treatment--an MRI, CAT scan, or something to tell him 
whether or not there was the presence of a tumor.
  Before he said those words to the mother, he excused himself. He took 
a copy of her chart and looked up the insurance company and had his 
secretary call so he could ask the clerk at the insurance company 
whether or not he could tell this mother they could go ahead with this 
diagnostic treatment to determine the nature of the child's problem.
  The clerk on the other side of the telephone said, ``No, it is not 
covered; you can't do that.'' The doctor said to the clerk, ``What am I 
supposed to do?'' The clerk said, ``Tell the mother to go home and wait 
and come back at a later time if the problem is still there.''
  That doctor walked back into the room with the mother present and 
said, ``I think you should go home and wait and call me in a few weeks 
if things have not changed.'' He could not, under his contract with the 
insurance company, even tell the mother why he had been overruled on 
his course of treatment. That is what is known as a ``physician's gag 
rule.''
  What that means for too many Americans is that when you sit across 
the table from a doctor, you are never certain whether that doctor is 
telling you everything you ought to know. When we erode the basic 
confidence in the relationship between a doctor and a patient, we have 
gone a long way in this country in undermining quality health care, 
which has been one of the hallmarks of America. The physician-patient 
relationship is so sacred under the law that it is recognized in court 
as a special, confidential relationship. Yet that very relationship is 
being undermined because of this fact.
  Managed care restricts a doctor's right to decide and his or her 
right to even tell you why he has made a certain decision.
  That is not the end of it by a long shot. In addition, many managed 
care policies restrict the hospitals to which patients can go. I belong 
to a managed care plan in Springfield, IL. We have two excellent 
hospitals, but my plan really focuses on one hospital and says, you 
will go to this hospital to the exclusion of the other hospital, or it 
will cost you. It is not a big problem where I live, because the 
hospitals are a few blocks from one another. But in some areas of urban 
America, and in rural America, it can be a problem.
  In what way? Well, consider this. You are in your backyard at a 
family picnic for the Fourth of July, and the kids are playing around, 
as I just went through with Memorial Day at a family get-together. They 
are climbing trees, and a child falls out of a tree and starts crying, 
and there is fear that he might have broken his arm, or worse. They 
take off for the emergency room.
  But wait. Before you take off for the nearest emergency room, you had 
better ask yourself: Does my health insurance policy cover emergency 
care at that hospital? Do I have to drive across town or to some other 
hospital under the terms of my policy? It makes no sense. If there is a 
situation of medical necessity to protect your child or a member of 
your family, you should not have to fumble around and try to remember 
which hospital is covered by your plan. Instead, you should do what is 
right for your family. That is one of the elements I think many people 
are concerned about when it comes to this whole question of managed 
care.
  There is also a question about the cost of this managed care and the 
accessibility of this care for many employees. It is a fact of life in 
America that each year fewer and fewer working families in America have 
the benefit of health insurance protection. Fewer and fewer employers 
are offering it. We are drifting away from our goal of universal health 
coverage and leaving more and more Americans vulnerable. That is a 
classic example of what is wrong with our system today, an instance of 
what we need to do in order to make certain that every American has the 
peace of mind to know they have health insurance coverage.

  (Mr. BROWNBACK assumed the Chair.)
  Mr. SCHUMER. Will the Senator yield for a question?
  Mr. DURBIN. Yes.
  Mr. SCHUMER. I thank the Senator from Illinois. I am in complete 
sympathy with the remarks he has made.
  Everywhere I have gone in my State, people have brought up one horror 
story after the next, whereby, say, accountants are making medical 
decisions instead of doctors. I would like to relate to the Senator an 
instance that I heard about, which was really frightening to me, and 
see if the kind of proposal we are talking about might deal with that 
issue.
  There was a young woman on Long Island, 24 years old and beautiful, 
who had just got out of nursing school. She was an athletic individual. 
She went to a physician because her upper leg was hurting. She went to 
the physician, who determined that she had a tumor on the bone. The 
physician recommended and told her privately that she ought to go to an 
orthopedic oncologist because they had to take the tumor off. She went 
to her HMO. The HMO said: No, no, no. All you need is a regular 
orthopedic surgeon.
  Well, this was not a well-to-do family. She had her health plan 
because her father had retired as a lineman for the phone company. She 
figured she would go along. She went to where the HMO recommended--to a 
regular orthopedic surgeon. The operation was had, and he said it was a 
success.
  Two months later, the tumor grew back. She called the HMO and said, 
``I really need an orthopedic oncologist.'' They said no. She then paid 
something like $45,000 or $50,000; she went into hock with loans to get 
the operation done, which was a success. A day after the operation 
occurred, the HMO wrote her a letter saying, ``All right, you are 
right; we will give you an orthopedic oncologist.'' But it was too 
late. She said, ``Why don't you reimburse me?'' They said no way. After 
a lot of intervention from my office and others, they have finally 
reimbursed her.
  One of the things that has been mentioned as part of the Patients' 
Bill of Rights is guaranteed access to appropriate specialists. I was 
just wondering if the Senator from Illinois could enlighten us as to--
in that type of situation, which I am sure is repeated time and time 
again--how the Patients' Bill of Rights might rectify that situation.
  Mr. DURBIN. I thank the Senator for that question.
  Sadly, the Senator's experience can be repeated in almost every State 
under managed care plans. What we are trying to provide in the 
Patients' Bill of Rights, supported by the Democratic side, is a 
continuity of care and access to specialists when needed. I think that 
just makes common sense. I can't imagine anyone, such as this lady the 
Senator mentioned, or others, who would want to compromise the best 
care possible to make sure they are taken care of.
  Here is another example you are probably aware of. Many times, 
companies will change managed care plans. Someone who, for example, is 
going through cancer therapy and believes they have good, quality care 
that is very promising in terms of full recovery may find a change in 
managed care plans which makes that doctor, that clinic, or that 
hospital ineligible. So that is another area where, frankly, we want to 
restore peace of mind among the people across America--that they would 
have this kind of access, access with continuity--even if a change in 
plan has taken place through the employer.
  This access to needed specialists becomes equally important, because 
most managed care plans have what they call gatekeepers. These 
gatekeepers are general practitioners, family internists, and the like 
who try to decide whether or not you need a specialist. Many 
specialists have come to me and said they have limited training, but 
they have specialized training. And they are encouraged to pass them 
along the chain to a specialist who might be initially more expensive 
but, frankly, might save that patient a lot of worry, perhaps 
suffering, and perhaps provide a cure that might not otherwise be 
available.

[[Page S7013]]

  That is the kind of thing that I think families across America are 
concerned about.
  They look at Capitol Hill and say: Do you get it up there? Do you 
understand? These are things our families worry about when we think we 
have the protection of health insurance, and, yet, we are so 
vulnerable. What are you doing about it in Washington?
  The honest answer is, we have done nothing.
  The question is, before we leave town this year, perhaps even this 
month, whether or not we can bring up this bill, the Patients' Bill of 
Rights, and address some of the real family concerns we have run into.
  Mr. SCHUMER. Will the Senator yield for a question?
  Mr. DURBIN. I am happy to yield.
  Mr. SCHUMER. Again, I couldn't agree more with the Senator. These are 
the kinds of things, it seems to me, that our constituents sent us to 
Washington to do--not to spend all day debating all sorts of things 
that have very little relevance to their lives but to try to solve the 
problems that families face.
  I find families from one end of my State to the other are just 
totally frightened about the ability to pay for health care and are 
frightened that the HMO that they have is really not giving them good 
medical care, that it is putting dollars above health care.
  There is nothing wrong with HMOs. In fact, a lot of them have done a 
good job in terms of reducing costs. But the pendulum has swung, it 
seems to me, too far.
  When physicians who spend years and years of training, and whom this 
country subsidizes to train, are no longer making the decision, it 
seems to me the Senator has made a great point: It not only hurts 
health care but it actually costs more money. The example I gave is an 
example where the operation has to be gone through twice because it was 
done so poorly the first time.
  My issue is, from what I understand, oftentimes, in access to 
specialists as well as access to procedures, the gatekeeper is not even 
a physician; some HMO is the gatekeeper. Someone who is an actuary is 
looking at tables and statistics, and things like that, and overrules 
the actual decisions of the medical doctor or the specialist.
  Is that true in the Senator's State as well?
  Mr. DURBIN. It is. I was in Joliet, IL, at a hospital cafeteria, 
sitting at a table full of doctors. One of the doctors was so angry 
because he kept getting this clerk on the phone: No, that patient can't 
be admitted. He finally said to the voice on the other end of the 
phone: Are you a doctor? The employee of the insurance company said no. 
Well, are you a nurse? No. Well, are you a college graduate? No. How 
can you possibly overrule my decision on treating a patient? She said: 
I am going by the book.
  She had a book in front of her that had the complaints that a person 
might register and whether or not a treatment was warranted.
  That medical care has now been reduced to the level that we have 
people who are reading books and overruling doctors who have been 
trained gives everyone concern.
  One of the reasons we need to bring up this Patients' Bill of Rights 
is to make sure that doctors and medical care personnel across the 
country can make the best professional decision for the people they 
treat--a decision based on a person's health and their well-being as 
opposed to the bottom line profit margin of the insurance company that 
is involved in it.
  Mr. SCHUMER. If the Senator will yield, I have one final question. 
This is not a new issue. In other words, I think we have heard about 
the Patients' Bill of Rights for at least a year or two. I am new to 
this body.
  Have there be any attempts to deal with this issue in the past? What 
has happened? What is stopping us from just voting on this right now? I 
am sure it is a measure that the American people in every one of our 
States want us to discuss. What has been the history of this 
legislation?
  Mr. DURBIN. I thank the Senator from New York. The history of the 
legislation has been frustrating, because we came close to debating it 
last year, then it fell apart.
  There are two different points of view: The Republican side of the 
aisle, not exclusively but by and large, has their own approach. The 
Democratic side of the aisle has its own approach on the Patients' Bill 
of Rights.

  We would like to bring this out for a debate. Let's have a debate. 
Let's act as a legislative body, as we did during the gun debate. Let's 
let the American people in on it. Let's let them hear arguments over 
the amendments on one side and then the other, and let them join us in 
this decision-making process. Unfortunately, that broke down last year 
and there has been no evidence of an effort to revive it this year.
  We need to remember that in a few weeks, literally, we will all be 
heading home for the 4th of July recess, then for the August recess, 
and many people will say to us: Incidentally, what have you done? What 
is happening in Washington? If we can't point to real-life issues that 
families care about, they have a right to be upset and wonder if we are 
doing our job.
  So I say to the Senator from New York, precious little has been done 
on this subject. But we are prepared to go forward with debate. I think 
that is what this body is supposed to be all about--the world's most 
deliberative body, the Senate.
  Let's not be afraid of amendments. Let's not be afraid of votes. I 
invite the Members on the other side of the aisle to join us. Let's put 
the issue on the floor. Let's come to some conclusion, send the bill on 
to the House and challenge them to do the same thing, bring the 
President into the conversation, and say to the American people that we 
are doing what you sent us to Washington to do--to respond to things 
that people really care about.
  Mr. SCHUMER. If the Senator will yield once more, it seems to me 
that, again, if there is anything we should be doing, it is things such 
as this. There are lots of important issues. This is a big country. We 
debate all sorts of things.
  But, again, I go around my State. I can't think of anything that 
people care more about, that we can do something concrete about, that 
is not a radical solution. This is not something that says scrap the 
whole system and start from the beginning; this is simply something 
that redresses the balances so people can have faith in their 
physician.
  This is an amazing thing to me. I don't know if the Senator has found 
this. But as I go around the State, perhaps the most frustrated group 
is the doctors themselves. They are hardly a group of wide-eyed crazy 
radicals. The doctors come to me in place after place with anguish in 
their eyes, and they say: You know, I have spent so many years, I went 
to college and took all of the courses, I went to medical school, I 
performed a residency, and I practiced medicine in the way I chose, in 
the best I way I know how, for 30 years, and now, all of a sudden, 
because of these changes in health care, I can't deliver the quality 
health care that I want for my patients, whom I care about, many of 
whom have been my patients for decades.
  I would join my colleague in urging that we in this body debate and 
debate rather quickly a Patients' Bill of Rights. We don't have the 
only approach. Let every approach be aired. Let us have a real debate 
on the issue. But let's not walk away from here before the July 4th 
break without having a Patients' Bill of Rights.
  I am wondering if the Senator thinks that is within the timeframe of 
possibility that we could get such a Patients' Bill of Rights.
  Mr. DURBIN. I thank the Senator from New York.
  We just spent 5 days debating whether or not certain computer 
companies should be protected from liability on Y2K problems. That is a 
serious issue. It is a bill that we passed today. We spent 5 days 
debating it. I think we owe the American people to spend at least 5 
days, if not more, debating the Patients' Bill of Rights. We have the 
time to do it. We don't have an overload of activity in the Senate, but 
we have an overload of responsibility when it comes to the health care 
issue.
  The last point I will make before giving up the floor is on the 
question of liability. Remember the example I used earlier about the 
doctor who couldn't tell the mother that it wasn't his decision that 
her son couldn't have an MRI or CAT scan. He couldn't tell her. It was 
the insurance company's decision.
  Let's assume for a minute that something terrible occurred, and that 
child

[[Page S7014]]

didn't have a brain tumor, and in fact suffered some long illness, or 
recuperation, or maybe worse. Do you know that under current law, as 
written, in many of these managed care plans, even though the insurance 
company made the bad decision, the insurance company overruled the 
doctor, the insurance company could not be held accountable for its 
wrongdoing in America?
  There are very few groups that are immune from liability. I think 
foreign diplomats are one. When it comes to this issue of managed care 
and insurance companies, many doctors are saying: That is not fair; we 
want to make the right medical decision, and we are overruled by the 
insurance company. The doctors get sued. The insurance companies are 
off the hook.
  That is not what this system or what this Government is all about. It 
is about accountability. I am held accountable for my actions as the 
driver of a car, as the owner of a home--all sorts of different things. 
Why should we exempt health insurance companies and say they are not 
going to be held liable for bad decisions--decisions not to refer you 
to the right specialist, decisions not to allow you to stay in a 
hospital, decisions not to allow you the kind of care you need? That, 
to me, is the bottom line in this debate.

  I see Senator Kennedy on the floor. He has been a leader on this 
issue. I thank him for joining in this discussion. I hope he can give 
Members some instruction.
  I yield to the Senator for a question.
  Mr. KENNEDY. Mr. President, I want to join my friend, the Senator 
from Illinois, in his presentation, as well as the Senator from New 
York, and urge that Members in this body begin debate on one of the 
most important pieces of legislation that we, hopefully, will have an 
opportunity to consider; that is, how we will ensure that medical 
decisions are made by those in the medical profession, rather than the 
accountants and the insurance companies.
  The Senator has made that case with an excellent example this 
afternoon. I wonder whether the Senator realizes it has been over 2 
years we have had legislation pending before the Senate. The Human 
Resources Committee has the jurisdiction, and we were effectively 
denied--I know the people who are watching or listening are not really 
interested in these kinds of activities. We have to have the hearings 
in the committee. Then we have to try to work the will of the committee 
and report it out to the Senate.
  This legislation has been before the Senate for 2 years, but we were 
not even permitted to have a hearing under the leadership of our 
friends on the other side, the Republican leadership. We were denied 
the opportunity to debate these questions when we tried to bring this 
up in the last Congress.
  I gather from what both Senators have said, they believe, as I do, 
that this is one of the fundamental and basic issues of central concern 
to families all over this country. If we can spend 5 days dealing with 
the Y2K issue, we can certainly afford to spend a few days--perhaps not 
even the 5 days, 4 days--on an issue that is so important to families, 
families who may have an emergency, families who may want to have 
clinical trials for the mother, the grandmother, or the daughter, to 
deal with problems of cancer. Or the whole issue of specialty care, to 
make sure those who need the kinds of prescription drugs necessary to 
deal with a particular illness and sickness would be able to get them.
  I wonder if the Senator would agree with me that included in Senator 
Daschle's legislation is a series of recommendations that were made by 
a bipartisan panel to the President, with Members who were nominated by 
the leaders of both parties and by the President of the United States. 
It had to be unanimous. They made a series of recommendations. Those 
recommendations have been included in Senator Daschle's Patients' Bill 
of Rights. The only difference was the panel recommended they be 
voluntarily accepted. We have seen that the companies are unwilling to 
accept those. The leader has said if they are not going to accept them 
voluntarily, we will include them, but they reflect a bipartisan panel.
  Secondly, they include some other recommendations that have been 
recommended by the insurance commissioners. They are not a notorious 
group favoring the Democrats or Republicans. I imagine, if you looked 
over the field, most of them are actually Republicans. They made some 
recommendations. Those effectively have been included.
  Finally, there are the kinds of protections that have been included 
in the Medicare and Medicaid programs. We don't hear a murmur from the 
other side about those protections not being effective.

  If that is the basis of this legislation, and it has the support of 
130 groups that have responsibility for treating the American families 
in this country, why in the world shouldn't we have an opportunity to 
debate it?
  On the other hand, our Republican friends haven't a single group, not 
one, that represents parents, children, women, or disabled that support 
their program. Can the Senator explain to me why, if that is the case, 
we are being denied? Does the Senator agree it is completely 
irresponsible to deny the Senate the full opportunity to debate these 
measures?
  Mr. DURBIN. I am happy to respond.
  I think the Senator's question is rhetorical. But if we can spend 5 
days debating protection for computer companies, can't we spend 5 days 
debating protection for America's families concerned about the quality 
of the health care available to them and their children?
  I think that is obvious. I think the Senator has clearly made the 
point about the number of groups that endorse the Democratic approach 
to that, that they could and should have that kind of debate.
  I see the minority leader on the floor, and I am happy to yield.
  Mr. DASCHLE. I congratulate the Senator from Illinois and the Senator 
from New York for beginning this colloquy this afternoon. Certainly, 
the Senator from Massachusetts is a leader on health issues. This is, 
without a doubt, the single most important health issue facing this 
Congress this year, next year, and for however long it takes to pass.
  Senator Kennedy's question is right on the mark: Why is it, with all 
of these groups that are urging the Senate to act, that are waiting for 
the Senate to act, that cannot understand why we have not acted, why is 
it we cannot schedule legislation this week to get this bill passed?
  If we can do Y2K, if we can do the array of other matters that have 
come before this Congress this year, for heaven's sake, why, with 115 
million people already detrimentally affected, can't we do it this 
week? There isn't an answer to that question.
  I ask the Senator from Illinois if, from the experiences he has had 
in his own State, he has heard any other issue having the resonance, 
having the depth of feeling and meaning to the families of America that 
this issue does; whether or not he ever had the kind of experience I 
have had where people come up and volunteer that there is no more 
important question facing this Congress than this issue, and they want 
Members to solve it; has the Senator had a similar experience?
  Mr. DURBIN. I have had a similar experience. Not only is this an 
important issue, the human side is compelling. We hear the stories from 
the Senators from New York and Massachusetts, and we have run into 
these real-life stories. These are not the kinds of stories you dream 
up or see on television.
  People worry on a day-to-day basis whether they can protect 
themselves and their own families under this managed care Patients' 
Bill of Rights, on which Senator Daschle is the lead sponsor. It gives 
a framework to give assurance to these people so they can have 
confidence that not only good health care will be there but quality 
health care that will help respond to a lot of the family tragedies 
which we hear over and over as we travel about our States.
  The other side of the aisle makes a serious mistake if they do not 
understand this is a very bipartisan issue. I am just not hearing from 
Democrats or Independents; I am hearing from Republicans and Democrats 
and Independents alike. All families are in the same predicament. All 
families look to the Senate to focus on this issue, which means so much 
to the future of this country.

[[Page S7015]]

  Mr. DASCHLE. I thank the Senator for his leadership and comments he 
has made.
  Obviously, time is running out. We have 6 weeks left before the 
summer recess begins in August. We have a few weeks left in September 
and October, and then we are at the end of the session already.
  We have very little time to address an issue of this importance. That 
is why we have indicated we will find a way to ensure this issue is 
addressed in June. We cannot wait any longer. We waited last Congress. 
We waited and came up with as many different ways with which to 
approach this issue procedurally as we knew how. We failed to convince 
our Republican colleagues to join this side of the aisle in passing it 
last year. We will not fail this year. We will get this legislation 
passed. It has to happen this month.
  I thank the Senator for his leadership and for cooperating and making 
this a part of our schedule this afternoon.
  Mr. KENNEDY. Will the Senator yield?
  Mr. DURBIN. I am happy to yield to the Senator.
  Mr. KENNEDY. I express appreciation for the very excellent commitment 
of our leader on this issue. He has been tireless in the pursuit of the 
protections of our fellow citizens in the health area.
  I see the Senator from New York on his feet. I will ask one or two 
questions and then I will yield. Is one of the points the Senator from 
Illinois thinks worth debating, with the approach that has been taken 
by our Republican friends, the limited number of people who are 
actually being covered? As one who was the author of the HMO 
legislation in the 1970s, we passed it five times here in the Senate 
before we finally got the House to pass it.

  Then it was passed and it was on a pilot program. But the concept at 
that time was we were going to change the financial incentives from 
having more and more tests and more and more treatment to having a 
capitation payment that said to the health delivery system you have 
this amount of money to take care of this patient, so they have an 
incentive to work for preventive health care, keep the person healthy. 
They get more resources the healthier the person is and the longer the 
person stays healthy. But we have seen abuses where they have cut back 
on more and more of the coverage. That has stimulated this whole 
program.
  The fact remains, under the Republican proposal we find out that 
somewhere above a quarter, about 30 percent of all of those who are 
covered, and even a lesser percent of HMOs, which is really the 
problem, are actually covered. Would this not be an issue that ought to 
be debated out here, that the Members of this body ought to be able to 
make some call about? I do not think that is a very complex issue. Do 
we want to cover 30 percent or do we want to cover 100 percent? How 
long do you think that issue would really take, for people to 
understand it and be able to express a view? It does not seem to me 
that would take a very long time. People can make that judgment. People 
ought to be able to make that judgment. Does the Senator agree?
  Mr. DURBIN. I agree with the Senator from Massachusetts. Isn't it an 
interesting analogy to the debate we had on guns, where we had 
amendments coming before us, and when the public had a chance to take a 
look at it they were satisfied that amendment does not achieve the 
result we want, keeping schools safer and guns out of the hands of 
children and criminals? The debate ensued for the week we were on it, 
and when it was all over the public prevailed. They passed a real 
sensible gun control bill as opposed to one that did not do the job.
  I think what the Senator from Massachusetts says is let's let the 
American public in on this debate, too. Do they think covering one out 
of three families is enough, or do we want to make sure we have a bill 
similar to the Democrats' Patients' Bill of Rights which really 
provides protection and assurance of quality health care for the vast 
majority of families under managed care plans? I think the Senator is 
right. That deserves to be debated on the floor of the Senate.
  Mr. KENNEDY. Just a final point. Does the Senator agree with me that 
now the insurance industry has spent somewhere around $15 million to 
misrepresent and distort the Patients' Bill of Rights, which has been 
introduced by our leader, Senator Daschle, and of which many of us are 
cosponsors? They have spent that last year doing that, when people 
thought we were supposed to take it up. If you ask across the spectrum 
of America about the importance of this issue, the American people 
still want action taken. They still want to have these protections for 
themselves and for their families. I think this is a clear indication.
  I think our friends on the other side ought to understand that 
Americans understand this issue. I think parents understand it. I think 
mothers and grandparents understand it best. Those who are opposed to 
it can distort and misrepresent and advertise, as they have done in the 
past, but American people know what this issue is all about.
  Does the Senator not agree with me on that, and that the American 
people want action by this body?
  Mr. DURBIN. I agree and I think we have precious little time left to 
respond.
  I yield to the Senator from New York.
  Mr. SCHUMER. Just one final question to the Senator. I first thank 
the Senator from Massachusetts for the eloquence and passion and 
intelligence that he brings to these issues, and our leader, Senator 
Daschle, for sponsoring this legislation and leading us in this regard.
  When you walk into an emergency room, the first question you should 
be asked is not: What is your coverage? It should be: Where does it 
hurt? Yet, these days, the way our system is working, the first 
question that often has to be asked is: What is your coverage? That is 
so totally wrong.
  One of the reasons I ran for the Senate was so I would have the 
opportunity to debate these bills, because the procedures in the Senate 
allow the American people, through their elected Representatives, to 
debate in a much wider way than the process in the House. Yet we are 
not being allowed to debate this, even though we have wished to do it.
  I ask my senior colleague, what holds us back? I mean, why can we not 
debate this issue? Not everyone is going to have the same view, but I 
think everyone would agree this is an issue on the very top of the list 
of things that most Americans care about. What can hold us back? What 
is holding us back from debating an issue as important as the Patients' 
Bill of Rights?
  Mr. DURBIN. I think it is a matter of political will and it is a 
question of whether the leadership on both sides of the aisle can agree 
on a schedule.
  I see on the floor the majority leader, Senator Lott. For the purpose 
of answering a question, I yield to the majority leader. Will he tell 
us whether or not we plan on scheduling this Patients' Bill of Rights 
for consideration in the next several weeks?
  Mr. LOTT. Mr. President, the Senator asked a question and yielded to 
me for a response. First of all, I am standing so we can make an 
announcement about what the schedule will be for the remainder of the 
night and to get an agreement about how we will proceed during the day 
tomorrow. As soon as this 15-minute block of time that was agreed to is 
exhausted, I will be prepared to go to this.
  In answer to the Senator's question, I will be delighted to go to 
this Patients' Bill of Rights very soon. We could even do it next week 
if we could get an agreement that we will vote on your version of the 
Patients' Bill of Rights and we will vote on our version of the 
Patients' Bill of Rights. We have a good bill. We are ready to go. We 
think there are important things that need to be done in this area, and 
we are prepared to debate the issue and vote on the two different 
approaches. So we can do that.
  Or we can work together and see if there would be a limited number of 
amendments that could be agreed to that would be offered on both sides. 
The problem we ran into last year is somebody said we will need 100 
amendments. Please. We have lots of other work. If the Senator has a 
perfect product and we have a perfect product, why do we need 100 
amendments? Then it got down to 20 amendments on each side.

[[Page S7016]]

  But I have designated Senator Nickles to work with the designee from 
the Democratic side of the aisle. I believe Senator Daschle has 
indicated Senator Kennedy will do that. They are going to try to get 
some agreement on exactly how to proceed. We will be glad to vote on 
the two versions any time Senators are ready, because we think this is 
important. We have a bill that was developed by a task force that had 
broad involvement. Senator Jeffords was involved, as were Senator 
Collins, Senator Gramm, Senator Nickles, Senator Santorum--really a 
good group. So we are ready to go. It is just a question of getting an 
agreement on how the procedure will be worked out.
  Mr. DURBIN. If I might, without yielding the floor, say first to the 
majority leader, I was told Senator Domenici was going to come forward 
to urge a vote or something of that nature. I have not seen him at his 
desk, but I am happy to yield the floor.
  But I ask the Senate majority leader one last question: If we could 
reach an agreement that we would limit the length of debate on 
Patients' Bill of Rights to the same period of time, the 5 days we 
spent on the Y2K, would that be a sound basis for agreeing that next 
week we would take up the Patients' Bill of Rights?
  Mr. LOTT. I would have to take a look at that. First of all, I think 
5 days is probably excessive. There was no need to take up 5 days on 
the Y2K bill. We could have done that in 2 days very easily, but there 
were a lot of obstruction tactics and delays--having to vote on 
cloture. Finally, we came to a conclusion and 62 Senators voted for it. 
I am not prepared now to say we want to go that long or limit it. I 
think we need to look at what we need, have a fair debate, and get 
votes on the substitute. We do not have a list of the amendments. We 
have asked for a list of the amendments so we are in the process of 
trying to get an understanding of what is going on here.
  I want to reemphasize we are aware that there needs to be some things 
done in terms of patients' rights. We have a good bill. We do not think 
the solution to the problem is lawsuits. Some people seem to think what 
we need to solve the problems of managed care is more lawsuits. No. If 
I have a problem with a HMO in my family, I would prefer to have a 
process to solve the problem, either internally or an external appeal. 
I would prefer not to be the beneficiary of inheritance as a result of 
a lawsuit 3 years later. So that is kind of the crux of it.
  We have Dr. Bill Frist who has worked on this, I mean a doctor, 
somebody who understands what it is like to have your heart replaced, 
someone who understands the need for managed care. We want to do this, 
so we will be glad to work with all the Senators who are interested. We 
would like to get a list of amendments. I think it would be fair for 
the other side, Senator Kennedy, to want to look at our amendments. I 
hope that process is underway.
  Senator Nickles has been designated to work on this issue on our 
behalf, and he might want to respond to your question, if you would 
yield to him for that.
  Mr. DURBIN. I ask you or Senator Nickles one last question, brought 
on by what you just said.
  Can we then agree we will bring this up for debate before we break 
for the Fourth of July recess so we can say to the American people we 
understand the importance of this issue? We have a difference of 
opinion on liability and other questions. Before we leave for the 
Fourth of July recess, we will have a vote on final passage on the 
Patients' Bill of Rights?
  Mr. LOTT. As soon as we get agreement on how to proceed, we will take 
it up. We will be glad to vote on your substitute and our substitute. 
We could do that this week, but if it is going to be that you have some 
amendments or you want more debate, then we have to work through when 
that is going to be. I was ready to do this bill last year, and we 
could not get a reasonable agreement on how to handle it. If we get 
that worked out, we will be glad to do it.
  Mr. NICKLES. Will the leader yield?
  Mr. LOTT. I do not have the floor.
  Mr. DURBIN. I will be happy to yield to the Senator from Oklahoma.
  Mr. NICKLES. I will make a couple comments. The leader said we would 
be happy to vote on the Democrat bill, and we would be happy to vote on 
our bill. We made that offer last year, I might mention. We asked 
unanimous consent to do that on two or three occasions last year. We 
also made a unanimous consent request last year a couple of times to 
have a limited number of amendments. That was not agreed upon.
  I will inform my colleagues, I did discuss this last Wednesday with 
Senator Daschle and Senator Kennedy. They expressed a desire to bring 
it forward. I said I think we have to have some kind of time 
constraints and limit on amendments. I did request that. They said they 
would be forthcoming in giving me that list. We have yet to receive it. 
Our staff requested it from them as late as Friday. We have yet to 
receive that list. Once we receive that list, we will try to see if we 
cannot negotiate some reasonable time agreement to get this thing 
resolved.
  Mr. DURBIN. I say, reclaiming my time, one of my colleagues and 
friends from the home State of the Senator from Oklahoma, the late 
Congressman Mike Synar, used to say: If you don't want to fight fires, 
don't be a fireman. If you don't want to cast tough votes, don't be a 
Member of Congress.
  I think we ought to welcome the possibility of having some tough 
votes on amendments. Let the Democrats squirm, let the Republicans 
squirm, and let the body work its will. Don't be afraid of some 
amendments. Let's bring out the best ideas on both sides and see if we 
can craft it together in a bipartisan bill.
  If we limit this debate to a few days or a certain number of 
amendments, there is no reason why we should not be able to accomplish 
this in the next week or two. Insulating Members from casting a tough 
vote on what might be a difficult amendment really should not be our 
goal. The goal should be the very best legislation and the body working 
its will. If we have an up-or-down vote, take it or leave it, that is 
an odd way for the Senate to view this issue.
  Mr. DASCHLE. Will the Senator yield?
  Mr. DURBIN. I yield to the Democratic leader.
  Mr. DASCHLE. We still have not seen the text of whatever it is we are 
supposed to be amending. The Senator from Oklahoma and I talked about 
that last week. He indicated it is going to be roughly the bill that 
passed out of the Labor Committee with some changes, as I understand 
it, but we have not seen the changes.
  I must say, it would not be in keeping with the traditions in the 
Senate that we need approval from the majority with regard to 
amendments before we can move to a bill. We are determined to be as 
cooperative as we can, but at the same time, we certainly do not seek 
our Republican colleagues' approval on a list of amendments. That 
should not be our requirement.
  We want to offer amendments that we expect to be debated and 
considered and hopefully voted on. As the Senator from Illinois has 
said, there are going to be tough votes on all sides on this issue, but 
they are issues that have to be addressed. If we are going to deal with 
a Republican bill that was passed out of the committee with an 
expectation that, obviously, that may be the bill that passes, we are 
going to have to try to amend it.
  We do not have any expectation necessarily that our bill can pass 
without some Republican support. We hope it will be, and we will work 
with our Republican colleagues to support the Democratic bill. But we 
have to have an opportunity to offer amendments, and we will protect 
our Senators' rights to offer those amendments, and hopefully we can 
work through this.
  We are prepared to come up with a reasonable list. I have suggested 
20 amendments, which is probably a third of what our colleagues would 
like to offer on this side alone. But we will come up with a list. I 
certainly do not expect that we will need to seek approval, however, 
from our Republican colleagues before we offer them.

  I thank the Senator from Illinois.
  Mr. DURBIN. I yield to the Senator from New York, and then I will 
yield the floor.
  Mr. SCHUMER. Briefly, because I know we want to move on.
  Just as an example, I ask the Senator this question: Our bill, it is 
correct, has the right to sue, and I respect the view of many on the 
other side. Our bill, for instance, has a far more ample

[[Page S7017]]

provision about having access to specialists. There might be a good 
number of Members in this body who want to see greater access to 
specialists but not support the right to sue, and conversely. Giving us 
the right to do some amendments might perfect a bill that can pass. I 
ask the Senator, my being new here, if that would be sort of an ideal 
way that could work?
  Mr. DURBIN. That is the way a deliberative body works. It deliberates 
and makes choices. It is important to make our views known on the 
Patients' Bill of Rights and helping millions of American families 
concerned about the adequacy of their health insurance and whether they 
have guarantees to quality care.
  I yield the floor.

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