[Congressional Record Volume 145, Number 91 (Thursday, June 24, 1999)]
[Senate]
[Pages S7580-S7582]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           FINDING A SOLUTION

  Mr. DASCHLE. Mr. President, I just want to reiterate our desire to 
see if we can find a way with which to address this issue.
  I will reiterate that, if we have the opportunity to present 20 
amendments up or down, I will be prepared to go to my colleagues and 
say: Look, we can live with that. I want you to cooperate and find a 
way in which we can have a good debate with 20 amendments freestanding 
with up-or-down votes. We can live with that. We could even live with a 
time certain so long as we have a good debate on those amendments with 
a vote on those amendments prior to the time we reach the end date. But 
that is a simple request. It is a simple desire to find some 
resolution.
  Our colleagues have been more than willing to cooperate in that 
regard. I hope we can do it. Our door is still open. We will work to 
see if we can't find a way to accomplish that.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I thought we would be going back to the 
amendment of the Senator from California. I hope those Americans who 
have been watching the Senate for the last few minutes--and also for 
the past few days--have no doubt in their minds what this is all about. 
This hasn't got anything to do with the Senate rules at all or Senate 
procedure. It is about a very fundamental and basic issue; it's about 
whether the Senate of the United States is willing to take up the 
Patients' Bill of Rights, the core of which states that decisions 
affecting the medical treatment of an individual are going to be 
decided by the doctors and trained medical professionals and not by 
gatekeepers or insurance adjusters or insurance accountants. That is 
the basic issue.
  We can talk about 2-hour amendments, 4 days, a week, we can talk 
about four cloture motions, but the bottom line is that the Republican 
majority is refusing to permit the Senate to go about the people's 
business and schedule a Patients' Bill of Rights and permit the kind of 
orderly procedure that has been a part of this body for almost 200 
years. That is what is going on here. Then they have the effrontery to 
talk about how they are going to change the rules in order to try and 
deny any opportunity to have a measure of this kind brought before the 
Senate.
  Let's be very clear what this is about. This is about something which 
is basic and fundamental to the families in this country. For 2 days, 
the Senator from California has been trying to bring up her amendment 
and get action on it. She has been precluded from doing so. The last 
action this evening--morning business at 5:10 on Thursday evening--has 
again precluded a debate and vote on her amendment. She was here 
yesterday at 9:30 in the morning. It doesn't take a Member of the 
Senate to understand what is going on. She is being denied a vote on 
the key issue of this whole debate, and that is whether insurance 
companies which cover American families are going to have to use a 
definition of what is ``medically necessary'' that will reflect the 
best medical training, judgment, and skill in the United States. That 
is what her amendment is.
  I have seen a lot of actions taken in order to preclude a Member of 
the Senate from getting a vote, but to go through the process of having 
four cloture votes next Monday, all in an attempt to deny the Senator 
from California an opportunity to get an up-or-down vote on her 
amendment, is a very clear indication of what is going on.
  This isn't about process. This is about substance. What kind of 
quality health care programs are we going to have in the United States 
of America?
  We are being denied the opportunity to make that decision. We were 
denied it last year and we are denied it again this year. We can listen 
to all the other bills left to do this year, and the Patients' Bill of 
Rights should be one of them. We tried to get it up last year, but we 
couldn't get it up under regular order. We have tried to get it up this 
year, but, again, we can't get it up under regular order.
  Earlier today, we heard reference to the process and procedure that 
was followed during Kassebaum-Kennedy. Let me remind my colleagues that 
the consent agreement to consider the Kassebaum-Kennedy legislation was 
reached on February 6 of that year. It said the bill must be brought up 
no earlier than April 15 and no later than May 3, with no time 
agreements or limitations on amendments. And we passed it, unanimously, 
under those terms.
  It seems to me that the last two days provide a very clear example of 
the majority effectively, I believe, abusing the process and procedures 
of the Senate, to deny the debate, discussion and the vote on an 
important issue in order to protect themselves on the issue of health 
care. We should be protecting the American people. They are going to 
understand it. There can be no other interpretation of what is 
happening on the floor of the Senate.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Smith of Oregon). The Senator from 
Oklahoma.
  Mr. NICKLES. Mr. President, I hate to see my colleague and friend 
from Massachusetts get so exercised--and he happens to be incorrect.
  He has to know the rules of the Senate very well. The proposal the 
majority leader was propounding is very fair. The Senator from 
California wants a vote on her amendment. I will be very frank. The way 
she can get a vote on her amendment is to move forward and accept the 
offer already made. She could offer her amendment, for example, as a 
second-degree amendment. The Senator can get a vote on her amendment.
  The way to do this is not on an appropriations bill. The Senator from 
Idaho is correct. We shouldn't be doing this on an appropriations bill. 
Everyone in the Senate knows it. This is not the way to legislate.
  We ought to be able to manage the Nation's business in an appropriate 
manner, not coming up with the Patients' Bill of Rights saying: We will 
do this piece by piece; we have 40 pieces and we will do it on various 
bills, bills that are going to go to conferees.
  Conferees know absolutely nothing about this issue. They have never 
had a hearing on this issue, never dealt with this issue. Asking them 
to legislate on it is wrong. It is not going to happen. It will not 
pass; it will not become law. We are wasting our time.
  It is not anybody's intention on this side to filibuster, to deny the 
opportunity to offer amendments. The Senator can have the opportunity. 
Yes, it is quite likely there will be amendments offered in the second-
degree, but a lot of amendments wouldn't be offered in the second-
degree. Likewise, second-degree amendments are available to Members on 
both sides. That should be very apparent.
  The point is I am a little frustrated by people saying we are not 
being treated fairly. The Senator has been offered a most generous 
proposal where Senators could offer lots and lots of amendments and get 
votes on those amendments. It doesn't take a legislative genius to make 
that happen.
  I encourage our colleagues to see if we can't work together and make 
this happen instead of offering this piece by

[[Page S7581]]

piece on an agriculture appropriations bill, even though we know it 
will not become law.
  I think there is a right way to legislate. This is not the right way 
to legislate. I hope we will work together to come up with something 
acceptable. I think there has been put off a more than generous 
proposal from on our side. We have been amending it for the last 2 
days, trying to accommodate legitimate concerns. Somebody said 
originally it was 3 hours on each amendment. Some people say we 
shouldn't have any debate limit on amendments. I happen to think that 
is probably closer to correct when considering the magnitude and the 
scope of some of these amendments.
  I urge our colleagues to step back and lower the rhetoric, not get so 
exercised, and see if we can't come up with an appropriate legislative 
way to solve this problem, see if we can't come up with a legitimate, 
positive, legislative approach that will help solve some of the 
problems that have been acknowledged, without dramatic increases in 
consumer costs and increases in the number of people who are uninsured. 
That is what I prefer. The hotter the rhetoric gets, the less likely 
that is to happen.
  We need to work together in order to make positive legislation 
happen. The Democrats alone will not pass legislation; the Republicans 
alone will not pass legislation. Nothing will become law if it is 
strictly partisan.
  I urge my colleagues to step back a little bit and look at some of 
these unanimous consent requests and see if we can find an appropriate 
vehicle and manner to legislate on this important issue.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I will take this opportunity to 
respond to the distinguished--I was going to say the difficult Senator, 
but I mean the distinguished Senator from Oklahoma.
  I feel caught on the horns of a dilemma. On one hand, what I am 
seeing is this is never going to happen on an agriculture 
appropriations bill. On the other hand, what I am hearing is, you have 
an offer to offer your amendment; it will be second-degreed; it will be 
defeated; there won't be a real opportunity to have an up-or-down vote 
on the amendment.
  Our leader, I believe, is willing to come to a reasonable agreement 
whereby the main points of the Patients' Bill of Rights can be debated 
on the floor with an agreement that amendments be voted up or down 
within a certain period of time. But he is very astute. I do not think 
he wants us to find out that someone comes on the floor, takes up all 
the time, there is no opportunity for an up-or-down vote on the 
amendments, there is one vote en bloc, and then the majority leader can 
come on the floor and undo it all after it is over.

  What we are asking for, and maybe now is as good a time as any--I 
have learned there are times when you go to the wall and there are 
times when you do not go to the wall, and it is important to know the 
difference in the timing.
  Let me share with the Senator one story that happened at UCLA, which 
is why I feel so strongly about this Senate passing legislation that 
prevents arbitrary interference with the physician's treatment and the 
setting of that treatment, in other words, the hospital length of stay. 
If the Senator wants, I can give him the doctor's name and he can 
verify it.
  This is about a neurosurgeon who performed surgery at the UCLA 
Medical Center to remove a brain tumor. The patient's managed care plan 
covered 1 day in the intensive care unit. After that day, the patient 
had uneven breathing and fluctuating blood pressure and heart rate. The 
doctor wanted her to stay in the hospital another day for monitoring. 
The HMO utilization reviewer consulted the guidebook that said only 1 
day was allowed in the ICU, so she was denied the extra day. The doctor 
thought it would be medically unethical to move the patient out of the 
ICU, so he kept her there. The next day, the HMO called again and said 
the cost of the second day would be deducted from the surgeon's fee.
  That is the kind of thing that is happening. We have to put an end to 
it because the result is going to be terrible for the practice of 
medicine. There are now doctors voting to unionize, to collectively 
bargain. I know some people have said with some disdain: Oh well, 
that's just over their wages. I am here to say it is not.
  My own doctor at Great Mount Zion Medical Center, now part of the 
University of California, after 30 years of practice, says he has never 
been so disillusioned, never been so disappointed. He said the morale 
of doctors is so low from being countermanded all the time by medical 
plans and having to hassle to get a drug approved. Using this kind of 
disincentive of, if you believe a patient belongs in ICU after brain 
surgery for an additional day, we are going to deduct it from your 
fee--what kind of a practice of medicine is that?
  These are big issues, I say to the Senator from Oklahoma, because, in 
my view, they are life-or-death issues. We have a chance to address it. 
I do not want to legislate on an agriculture appropriations bill, but, 
on the other hand, I believe to the depth and breadth and height of me 
in this amendment. Other colleagues have other amendments.
  The time has come to have a debate on the issue. Our leader will 
negotiate a fair agreement. I really think it is in your hands. We want 
an up-or-down vote on these amendments.
  This is not an amendment that has been just quickly put together for 
what someone might say is a political purpose. This amendment has been 
worked on, it has been vetted, and it is supported by 200 organizations 
and supported by every single medical organization in this country--
nurses, the American Cancer Society, the American Heart Association, 
the American Lung Association--across the board.
  No one should be afraid to keep a patient, following brain surgery, 
in intensive care for an extra day. The gall of the health insurance 
plan to say, OK, we are deducting it from the doctor's fee. I hope the 
Senator will have some reaction to this, because I know that is not the 
way he wants to see medicine practiced in this country.

  I can go on and on. Perhaps because my State is such a big managed 
care State, there are so many examples. They need to be stopped, and 
there is no better time than right now. All we need is an agreement 
that will allow some amendments--leave it up to our leaders--up-or-down 
vote, and prevent the opportunity from sidetracking that up-or-down 
vote. At the end of this, we will have something.
  Senator Kennedy was absolutely right. I remember all the wrangling 
over the Kennedy-Kassebaum bill, and then finally, bingo, it just got 
done. That is what we are asking for now. That is what the people of 
America are asking for now as well.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. NICKLES. Mr. President, I appreciate the comments of my colleague 
from California. She mentioned timing. I do not think the time is now. 
I do not think it should be on the appropriations bill. We have been 
pretty straightforward in saying we will give you a few days after the 
Fourth of July break. Basically, that means next week we will be 
working on other appropriations bills, and that means the following 
week we will be working on the Patients' Bill of Rights.
  I will tell my colleague--I can easily tell her, and anybody else--
the Senator can orchestrate a way to get a vote on her amendment. It 
can be done. Her amendment can be a second-degree amendment, I tell my 
colleague. I have already stated we can limit the agreement to one 
second-degree amendment instead of two. There are many of us willing to 
do that. The way not to do it, in my opinion, is piecemeal on 20 
different legislative items--some on this appropriations bill, some on 
that appropriations bill--knowing those appropriators are going to 
conference and will say: What in the world are we going to do with 
medical necessity? We don't know what that is.
  I appreciate the fact she mentioned a brain surgeon who said a 
patient should stay in a day longer and some managed care idiot, or 
bureaucrat, said no. I do not happen to think the legislative solution 
proposed in the Senator's legislation is the right fix. I happen to 
think the better idea is to give an internal appeal that can be done 
immediately. It can be appealed. If it is

[[Page S7582]]

not overturned--the example the Senator cited I think would be 
overturned immediately, and, if not done immediately, it could be done 
by an external appeal done by outside peer review experts. They do not 
have to go to court, they do not have to sue, and they have immediate 
change. That is the better process.

  My point is, as far as process is concerned now, we should not be 
debating this on an appropriations bill. Offering a few days beginning 
on July 12 is more than generous. I will try to be flexible in further 
negotiations, but the give is just about given when, if the Senator 
looks, we have just about 8 weeks to legislate before the end of the 
fiscal year.
  I think the majority leader has been very, very generous. I will work 
with my colleague to see if we cannot come to a constructive 
conclusion. I appreciate her willingness to do so.
  Mr. President, I yield the floor.
  Mr. SCHUMER. Will the Senator yield for a question?
  Mr. NICKLES. I will be happy to yield.
  Mr. SCHUMER. I thank the Senator and appreciate everything he said 
and the graciousness with which he said it.
  I will make two points in terms of my question. I am a freshman 
Senator. I am well familiar with the process of the House. That is 
something I wished to escape. It is one of the reasons I ran for the 
Senate. The reason was that we could not debate at any time 
appropriations bills or authorization bills without really the consent 
of the Rules Committee, which was controlled by the Speaker 11 to 5. We 
could not get anything done.
  From what I understand in listening to my colleagues and being here 
myself, this has been like a pressure cooker. On bill after bill, bills 
that we have done, instead of being given the chance to offer 
amendments--we did some authorizing bills, but then on a good number of 
them--Y2K, for instance--the tree was filled. In other words, the 
majority leader offered an amendment and then put on a second-degree 
amendment, and then another amendment and put on a second-degree 
amendment. We were not permitted to, say, add a Feinstein amendment or 
an amendment that I hoped to offer about scope or other amendments as 
well.
  The frustration on our side--I began to hear my colleagues, who have 
been here many years longer than I have been, start saying that this is 
just like the House, that in the past the right of the majority was to 
sort of set the agenda--chair the committees, call the hearings--but in 
the Senate, in its grand traditions, the minority always had the right 
to offer some amendments.

  As we moved through the process this year, through a bunch of 
legislative maneuvers--all within the rules but maybe not within the 
previous traditions of the Senate--we were not allowed to do that.
  So we came to the conclusion that, on something as important to so 
many of us as the Patients' Bill of Rights, we would not have the 
opportunity, under any circumstance, to offer those amendments.
  My guess is that the kind of offer that was made, which our minority 
leader has outlined why we think it is inadequate, we never would have 
gotten to that point if there had been an open process and we had been 
allowed to offer amendments as we went through that process.
  I just ask the majority whip, who is a Senator I have a great deal of 
respect for--and I understand we have different views on the Patients' 
Bill of Rights, but he is coming at this and trying to be very fair--
what can be done to avoid the kinds of frustration that my colleagues 
on this side of the aisle are genuinely feeling on the Patients' Bill 
of Rights or on so many other issues, that we will not have any 
opportunity, any time, to offer amendments on issues important to us, 
unless we sort of force the issue, as we have done this week?
  I yield. That is my question to the majority whip.
  Mr. NICKLES. I tell my friend, and colleagues, there is a lot of work 
to be done. I think it is in the interest of all Senators to work 
together. I do not think that necessarily it is really constructive to 
say we are going to shut down the Senate for a week, as has actually 
happened the last couple days, unless we get our will. I would like us 
to work maybe a little more off the floor and a little more behind the 
scenes and say: What can we do?
  That will take cooperation. It will take saying, We are willing to 
take up this bill and finish it by tomorrow. Then you do not have to 
get into a whole lot of extended discussion and maybe a lack of trust. 
Because I heard some people say, well, wait a minute. Under this 
agreement that we proposed, somebody could filibuster the bill, and you 
could only have one or two amendments.
  That was not our intention. I can tell my colleagues that was not my 
intention. Do we want to have 25 really tough votes? No. But votes go 
both ways.
  But my point being, there is no one I know of who was saying we are 
going to have somebody come in and filibuster this bill. Nobody was 
talking about doing that. Maybe we need to have a little more faith and 
a little more collegiality and willingness to work together.
  This is an item of interest to a lot of people. There are a lot of 
people on this side who would like us to pass a positive bill.
  I have also stated my very sincere conviction that we should not pass 
a bill that is going to increase health care costs a total of about 13 
or 14 percent, after you add in inflation. I really mean that. I am 
very sincere about that.
  So we may have some differences, but, I have not totally given up on 
the idea of us working something out.
  I will suggest the absence of a quorum. Maybe something else can be 
done to accomplish that.

  Mr. President, I suggest the absence of a quorum.
  Mrs. FEINSTEIN. I ask the Senator, before you do, may I respond to 
one quick thing you said on ``medical necessity''?
  You made the comment: Nobody really knows what ``medical necessity'' 
is. Let me just very briefly read you the definition because it is a 
standard definition. The term ``medical necessity'' or 
``appropriateness'' means, with respect to a service or benefit, ``a 
service or benefit which is consistent with generally accepted 
principles of professional medical practice.'' That is the definition 
of ``medical necessity'' or ``appropriateness'' in this bill.
  Mr. NICKLES. Thank you.
  Mrs. FEINSTEIN. Thank you very much.
  Mr. NICKLES. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SCHUMER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SCHUMER. In morning business, I ask unanimous consent I be given 
10 minutes to address the Senate.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SCHUMER. Thank you, Mr. President.

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