[Congressional Record Volume 145, Number 97 (Monday, July 12, 1999)]
[Senate]
[Pages S8209-S8251]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  PATIENTS' BILL OF RIGHTS ACT OF 1999

  The PRESIDING OFFICER. Under the previous order, the Senate will now 
proceed to the consideration of S. 1344, which the clerk will report.
  The legislative clerk read as follows:

       A bill (S. 1344) to amend the Public Health Service Act, 
     the Employee Retirement Income Security Act of 1974, and the 
     Internal Revenue Code of 1986 to protect consumers in managed 
     care plans and other health coverage.

  The Senate proceeded to consider the bill.
  Ms. COLLINS. Mr. President, I yield myself such time as I may consume 
from general debate on the bill under the unanimous consent agreement.
  I am pleased that the Senate has begun debate on the Patients' Bill 
of Rights and the Patients' Bill of Rights Plus. There is a growing 
unease across this Nation about changes in how we receive our health 
care. People worry that if they or their loved ones become ill, their 
HMO may deny them coverage and force them to accept either inadequate 
care or financial ruin, or perhaps even both. They believe that vital 
decisions affecting their lives will be made not by a supportive family 
doctor but, rather, by an unfeeling bureaucracy.
  Our goal this week should be to join together to work in a bipartisan 
way to enact legislation that accomplishes three major purposes.
  First, it should protect patients' rights and hold HMOs accountable 
for the care they promise.
  Second, it should expand, not contract, Americans' access to 
affordable health care.
  And, third, it should improve health care quality and outcomes.
  I believe all of us should be able to agree that medically necessary 
patient care should not be sacrificed to the bottom line and that 
health care decisions should be in the hands of medical professionals, 
not insurance accountants or trial lawyers.
  We do face an extremely delicate balancing act as we attempt to 
respond to concerns about managed care without resorting to unduly 
burdensome Federal controls and mandates that will further drive up the 
cost of insurance and cause some people to lose their health insurance 
altogether.
  That is the crux of the debate we are undertaking this week. The crux 
of this debate is how can we make sure that we address those critical 
concerns we all have about managed care without so driving up the cost 
of the health insurance people have--as the Kennedy bill would do--that 
we jeopardize coverage for thousands, indeed millions, of Americans.
  As the President's Advisory Commission on Consumer Protection and 
Quality noted in its report, ``costs matter . . . the Commission has 
sought to balance the need for stronger consumer rights with the need 
to keep coverage affordable. . . Health coverage is the best consumer 
protection.''
  I think President Clinton's quality commission hit it right. I 
believe they have stated exactly what the debate is before us. I, 
therefore, have been alarmed by recent reports that American employers 
everywhere, from giant multinational corporations to the tiny corner 
store, are facing huge hikes in medical insurance averaging 8 percent 
and sometimes soaring to 20 percent or more.
  This is a remarkable contrast to the past few years when premiums 
rose less than 3 percent, if at all. I am particularly concerned about 
the impact these rising costs are having on small businesses and their 
employees.
  A survey of small employers conducted by the United States Chamber of 
Commerce earlier this year found that, on average, small businesses 
were hit with a 20-percent premium hike last year. More important, of 
the small employers surveyed, 10 percent were forced to discontinue 
health care coverage for their employees because of these premium 
increases. Over half of the employers surveyed indicated that they 
switched to a lower cost plan, while an overwhelming majority indicated 
that they had passed the additional costs of these premium hikes on to 
their employees through increased deductibles, higher copays, or 
premium hikes.

  This, too, is very troubling since it will induce many more 
employees, especially lower wage workers and their families, who are 
disproportionately affected by increased costs, to turn down coverage 
when it is offered to them. Indeed, in the HELP Committee, on which I 
serve, we saw a GAO report which indicated that an increasing number of 
American employees are turning down the health insurance offered by 
their employers because they simply cannot afford to pay their share of 
the costs.
  It is no wonder that the ranks of uninsured Americans increased 
dramatically last year to 43 million people--the highest percentage in 
a decade. This is happening at a time when our economy is thriving. 
Imagine what could happen in an economic downturn.
  We know that increasing health insurance premiums cause significant 
losses in coverage. That is the primary reason that I am so opposed to 
the Kennedy bill. According to the Congressional Budget Office, the 
Kennedy bill, that has been laid down before us, will increase health 
insurance premiums by an additional 6.1 percent over and above the 
premium increases we have already experienced or are likely to 
experience as a result of a resurgent increase in health care 
inflation.
  The CBO report goes on to note that:

       Employers could respond to premium increases in a variety 
     of ways. They could drop health insurance [coverage] 
     entirely, reduce the generosity of the benefit package [in 
     other words, cut back on the benefits that are provided], 
     increase cost-sharing by [their employees], or increase the 
     employee's share of the premium.

  CBO assumed that employers would deflect about 60 percent of the 
increase in premiums through these strategies. In other words, 60 
percent of this increased cost is going to go right to American 
workers. The remaining increase in premiums would be passed on to 
workers in the form of lower wages. In short, it is the workers of 
America, it is the employees, who will be paying this increased cost.
  Lewin Associates, a well-respected health consulting firm, in a study 
for

[[Page S8210]]

the AFL-CIO, has estimated that for every 1 percent increase in 
premiums, 300,000 Americans have their health insurance jeopardized. 
Based on these projections, passage of the Kennedy bill would result in 
the loss of coverage for more than 1.8 million Americans. That is more 
than the entire population of my home State of Maine.
  The Kennedy bill should be more aptly titled the ``Patients Bill of 
Costs'' because ultimately it will be the patient who will get hit with 
higher health care costs if the Kennedy bill is approved.
  Our legislation, by contrast, provides the key protections that 
consumers want without causing costs to soar. It responsibly applies 
these protections where they are needed. The legislation does not 
preempt but, rather, builds upon the good work that States have done in 
the area of patients' rights and protections. States have had the 
primary responsibility for the regulation of health insurance since the 
1940s.
  I spent 5 years in State government as a member of the Governor's 
cabinet and was responsible for the Bureau of Insurance. I know State 
insurance regulators have done a good job in protecting the rights and 
needs of their consumers in their State. In fact, they have been far 
ahead of the Federal Government in responding to concerns about managed 
care.

  For example, 47 States have passed laws prohibiting ``gag clauses'' 
that restrict communications between patients and their doctors. As a 
consequence, as the CBO notes in its report on the Kennedy bill, 
``Several studies have shown that few plans impose such restrictions 
today.''
  Forty States have requirements for emergency care. All 50 States have 
requirements for grievance procedures. And 36 States require direct 
access to an OB/GYN.
  States have acted without any mandate from Washington, without any 
prod from Washington, to protect their consumers. Moreover, one size 
does not fit all; what might be appropriate for one State may not fit 
for the consumers in another.
  Florida, for example, provides for direct access to a dermatologist, 
which is understandable given the high rate of skin cancer in that 
State. In the State of Maine, another kind of mandate may be more 
appropriate. Similarly, what may be appropriate for California, which 
has a high penetration of HMOs, may simply not be necessary in a rural 
State such as Wyoming where there is little or no managed care. In such 
States, a new blanket of heavyhanded Federal mandates in coverage 
requirements will simply drive up costs and impede, not enhance, health 
care. That is why the National Association of Insurance Commissioners 
supports the approach we have taken in our bill.
  Currently, Federal law prohibits States from regulating the self-
funded, employer-sponsored health plans that cover 48 million 
Americans. Our bill, which is intended to protect the unprotected 
consumer, extends many of the same rights and protections to these 
individuals and their families that those in State-regulated health 
plans already enjoy.
  For the first time, people in self-funded plans will be guaranteed 
the right to talk freely and openly with their doctors about treatment 
options without being subjected to any kind of ``gag clauses'' that 
limit their communications. They will be guaranteed coverage for 
emergency room care that a ``prudent layperson'' would consider 
medically necessary without having to get prior authorization from 
their health plan. They will be able to see their OB/GYN or 
pediatrician without a referral from their plan's ``gatekeeper.'' They 
will have the option of seeing a doctor who is outside the HMO's 
network. They will also be guaranteed access to nonformulary drugs when 
it is medically necessary, and they will have an assurance of 
continuity of care if their health care plan terminates its contract 
with their doctor or hospital.
  The opponents of our legislation contend that the Federal Government 
should preempt the States' patient protection laws unless they have 
already enacted identical protections. However, the States' approaches 
vary widely--for good reasons. Moreover, if we start adopting a 
Washington-knows-best approach to health care, we will have HCFA 
deciding whether a State has met the test of a Federal regulation. Our 
experience with other laws should show that is not a good idea.
  Other provisions of our bill provide new protections for additional 
millions of other Americans. These are the procedural protections that 
are in our bill. A key provision of our bill builds upon the existing 
regulatory framework under ERISA to give all 124 million Americans in 
employer-sponsored plans the assurance that they will get the care they 
need when they need it.
  The legislation will enhance and improve current ERISA information 
disclosure requirements and penalties and strengthen existing 
requirements for coverage determinations, grievances and appeals, 
including--and this is the most important provision of our bill--the 
addition of a new requirement for strong, independent, external review 
that is available at no cost to the patient.
  All 124 million Americans in employer-sponsored plans will be 
entitled to clear and complete information about their health plan--
about what it covers and what it does not cover, about any cost-sharing 
requirements, and about the plan's providers. Helping patients 
understand their coverage before they need to use it will help to avoid 
disputes about coverage later.
  The goal of any patients' rights legislation should be to resolve 
disputes about coverage up front when the care is needed, not months or 
even years later in a courtroom, as the Kennedy bill proposes. Our 
legislation would accomplish this goal by creating a strong internal 
and external review process. Both appeals processes are available at no 
cost to the patient.

  Here is how it would work. First, patients or doctors who are unhappy 
with an HMO's decision could appeal it internally through a review 
conducted by individuals with appropriate expertise who are not 
involved in the initial decision. Moreover, this review would have to 
be conducted by a physician, if the denial is based on a determination 
that the service is not medically necessary or that it was experimental 
treatment. Patients would expect results from this review within 30 
days, or 72 hours, in cases where delay poses a serious risk to the 
patient's health.
  Let's say that after this internal review process is completed, the 
patient or the physician is still unhappy with the decision; let's say 
that the internal review upheld the HMO's decision. There is still 
another protection in our bill. Patients turned down by this internal 
review would then have the right to a free, independent, external 
review conducted by medical experts who are completely independent of 
the insurance plan.
  This review must be completed within 30 days, and even faster, if 
there is a medical emergency or a risk to the patient's life or health. 
Moreover, the decision of these outside reviewers is binding on the 
health plan. It is not binding on the patient.
  If you have been denied care you think you need, you can apply for an 
internal review. If you are not happy with that review, you can go on 
to an independent external review, and the decision of the physician, 
who has to have expertise in the condition at issue, is binding on the 
health plan, but it is not binding on you, if you are still unhappy. If 
you are still unhappy with the decision made, the patient would still 
have the right, would retain the right to sue in Federal or State court 
for attorney's fees, for court costs, for the value of the benefit, and 
injunctive relief. Really, it is a three-stage appeals process: First, 
an internal review, an external appeal, and then you can still go to 
court to sue for the benefit and for your attorney's fees and court 
costs.
  The purpose of our legislation is to place treatment decisions in the 
hands of doctors, not insurance company accountants, and not in the 
hands of trial lawyers. If your HMO denies treatment that your 
physician believes is medically necessary, you should not have to 
resort to a costly and lengthy court battle to get the care you need. 
You should not have to hire a lawyer. You should not have to file an 
expensive lawsuit to get the treatment.
  Our approach contrasts with the approach taken in the Kennedy bill, 
which encourages patients to sue their health plans. I simply do not 
believe you can sue your way to quality health care. We should solve 
problems about

[[Page S8211]]

health care coverage upfront, when the care is needed, not months or 
even years later, after the harm has occurred.
  Let's look at the experience with medical malpractice cases. 
According to the GAO, it takes an average of 33 months to resolve 
malpractice cases. This does nothing to ensure a patient's right to 
timely and appropriate care. Moreover, patients receive only 43 cents 
out of every dollar awarded in malpractice cases. Exposing health plans 
and employers to greater liability would force plans to cover 
unnecessary services that do not benefit patients in order to avoid 
costly litigation and to make decisions based not on the best practice 
protocols but, rather, on the latest jury verdicts and court decisions 
or out of fear of being sued.

  The noted Princeton health economist Uwe Reinhardt was quoted in this 
Sunday's Washington Post as saying that he believes the financial 
impact of the Kennedy bill's liability provisions would be profound. He 
noted:

       In the end, we're back again to basically the open-ended 
     deal where the individual physician makes a judgment and no 
     one dares question it.

  Mr. President, all of us treasure the relationships we have with our 
physicians. We are also well aware of studies that have shown there 
have been unnecessary hysterectomies, for example, or the use of 
mastectomy when removal of a lump from a breast would suffice. That is 
why we need to have reviews based on the best medical evidence and 
decisionmaking possible.
  The President's Advisory Commission on Consumer Protection and 
Quality specifically rejected expanded lawsuits for health plans 
because the commission believed it would have serious consequences for 
the entire health care industry. I agree with that assessment. The last 
thing we need is to introduce more costly litigation into our health 
care system.
  At a time when the tort system of the United States has been 
criticized as inefficient, expensive, and of little benefit to the 
injured, the Kennedy bill would be bad medicine for American families, 
workers, and employers, driving up the cost of health insurance and 
jeopardizing coverage for some who need it most.
  Our concern is not just theoretical. I met with a group, a very good 
group of Maine employers who care deeply about their employees. They 
expressed to me their serious concerns about the Kennedy proposal to 
expand liability for health plans and employers. For example, the 
representative from Bowdoin College in Maine talked about how moving to 
a self-funded ERISA plan had enabled the college to greatly improve the 
coverage it provided to Bowdoin's employees and to offer affordable 
coverage to them.
  Since the college is self-funded, it has actually been able to lower 
premiums for its employees while at the same time providing an enhanced 
benefit package with such features as well baby care, free annual 
physicals, and prescription drug cards with low copayments. The people 
at Bowdoin College told me that the Kennedy proposal to expand 
liability would seriously jeopardize their ability to offer affordable 
coverage for their employees. In fact, they told me they would probably 
abandon their self-funded plan and go back into the insurance market 
and, thus, buy a plan that would have fewer benefits for their 
employees in order to avoid this increased risk of liability and 
litigation.
  Similar concerns were expressed to me by the Maine Municipal 
Association, which represents cities and towns throughout Maine, L.L. 
Bean, Bath Iron Works, and many other responsible Maine employers.
  Unlike the Kennedy bill, the Republican bill contains key provisions 
that will help hold down the cost of health care while improving health 
care quality and holding HMOs accountable.
  For example, I am particularly pleased that our bill contains a 
proposal, introduced by my colleague, the senior Senator from Maine, 
that prohibits insurers from discriminating on the basis of predictive 
genetic information. Genetic testing holds tremendous promise for 
individuals who have a genetic predisposition to breast cancer and 
other diseases and conditions with a genetic link. However, this 
promise is significantly threatened when insurance companies use the 
results of such testing to deny or limit coverage to consumers on the 
basis of genetic information.
  Our legislation also establishes the agency for health care research 
and quality, an initiative of our physician in the Senate, Mr. Frist 
from Tennessee. The purpose of these provisions is to foster an overall 
improvement in health care quality, to bridge the gap between what we 
know and what we do in health care today.
  Most important, the Republican bill will expand access to health 
insurance for millions more Americans by making it more affordable. 
This is the key difference between the two alternatives before the 
Senate. Our bill would expand access to health care, a critical issue 
at a time when we have 43 million uninsured Americans. The Kennedy bill 
would constrict access and jeopardize coverage for many Americans. The 
biggest obstacle to health care in the United States today is simply 
cost. This is due, in part, to the Tax Code's inequitable treatment of 
people who do not receive health insurance through their employers. 
Some 25 million Americans are in families headed by self-employed 
individuals, and, of these, 5 million are uninsured. The Republican 
bill will make health insurance more affordable for these Americans by 
allowing self-employed individuals to deduct the full amount of their 
health care premiums.

  I have never understood the policy behind our Tax Code that allows a 
large corporation to deduct 100 percent of the cost of the health 
insurance premiums that it is providing to its employees but restricts 
a self-employed individual to a deduction of only 45 percent. Our bill 
would move that to 100 percent immediately. This would help reduce the 
number of uninsured working Americans. It would help make health 
insurance more affordable to the 82,000 people in Maine who are self-
employed. They include our lobster men, our hair dressers, our 
electricians, our plumbers, and the owners of our gift shops, which we 
hope all of you will visit this summer along the coast of Maine. It 
includes so many hard-working Mainers for whom the cost of health 
insurance is simply out of reach.
  Mr. President, I believe that the Republican approach strikes the 
right balance, as we effectively address concerns about quality and 
choice without resorting to unduly burdensome Federal controls and 
expensive, bureaucratic, new Federal mandates that will further drive 
up costs and cause some Americans to lose their health insurance 
altogether.
  I urge my colleagues to join in supporting the Republican health task 
force legislation.
  I reserve the remainder of our time.
  Mr. DASCHLE addressed the Chair.
  The PRESIDING OFFICER. The distinguished minority leader is 
recognized.
  Mr. DASCHLE. Mr. President, this is truly a historic day. My 
Democratic colleagues and I have been trying for nearly 2 years to 
bring this debate to the floor of the Senate.
  For the past 2 years, I have listened to people and their complaints 
about the health care system. I have come to the conclusion that the 
reason the insurance companies call them HMOs is that H-M-O sums up 
their patient philosophy: Having Minimal Options.
  I thank the majority leader. It is no secret that Senator Lott faced 
considerable pressure to prevent this debate. On behalf of the 161 
million Americans who need the protections in our bill, we thank him 
for agreeing, finally, to bring this debate to the floor.
  Most of all, I want to acknowledge my Democratic colleagues. We would 
not be having this debate were it not for their steadfast determination 
and hard work. That is particularly true of the senior Senator from 
Massachusetts, Mr. Kennedy. They have each taken considerable risks to 
demand that this Senate listen to and deal with the real problems 
America's families are having with their HMOs. Every one of them 
deserves recognition.
  The general debate on this bill is supposed to last 3 hours--which, 
according to an HMO, is enough time for a woman to check into a 
hospital, deliver a baby, and be sent home. Senator Kennedy and I and 
others intend to use these 3 hours to talk about the extraordinary 
difference in approach between the Democratic and the Republican plans.

[[Page S8212]]

  There are no bills pending in this Congress that will have a greater 
impact on the lives and health of America's families than this bill. 
There are no decisions we will make that will have a more profound 
effect than the decisions we make this week.
  The issues we will debate these next 4 days are literally life-and-
death issues.
  The insurance industry has spent tens of millions of dollars to try 
to prevent us from ever having this debate. Many of our Republican 
colleagues responded and worked with them. The Republicans seem to 
protect insurance companies the way Briana Scurry protects a soccer 
goal. The insurance industry has spent millions of dollars on ads 
designed to confuse and frighten the American people, and intimidate 
us. They hope that by repeating untruths often enough they will be able 
to kill this bill and keep their license to practice bad medicine.
  The truth is, this whole debate comes down to one critically 
important question: Who should make medical decisions, doctors or 
insurance company accountants?
  We have all heard the horror stories.
  In Georgia, a 6-month-old boy was burning up with a 105-degree fever. 
His mother called her HMO twice and begged to be allowed to take her 
son to the emergency room. Both times the HMO refused. She finally 
decided to take him to the hospital anyway. By the time they arrived, 
the infection that was causing the fever had destroyed the circulation 
in the baby's extremities. Both his hands and feet had to be amputated.
  In Washington, DC, a 12-year-old boy was diagnosed with a cancerous 
tumor in his leg. His oncologist recommended a treatment that could 
save the leg. But when the doctor's office called the boy's HMO, they 
were told the only treatment the HMO would pay for was amputation. Four 
months and several appeals later, the HMO finally agreed to pay for the 
treatment the doctor ordered. But by then, the cancer had spread; the 
leg had to be amputated.
  In Kentucky, a man with prostate cancer needed one chemotherapy 
injection a month. The injections cost $500 each. His insurance company 
policy said they were fully covered. But when the HMO changed 
administrators, the man was told he would have to pay $180 a month out 
of his own pocket. He didn't have $180 a month, so he had to go with 
the only other treatment his doctor said could control his cancer. He 
was castrated. The day he returned from the hospital, he got a letter 
from his HMO saying they had made a mistake; the HMO would now pay the 
$500 after all.

  Three different people, three different parts of the country, but 
they all have one thing in common: They were all powerless against 
their insurance companies.
  Unfortunately, I could go on and on.
  Two years ago, 130 million Americans said they or someone they knew 
had a problem with a health insurance company. Last year, that number 
had grown to 154 million Americans.
  When we first introduced our bill, nearly 2 years ago, a lot of our 
Republican friends said we didn't need a Patients' Bill of Rights. 
Today, they have a bill of their own. We consider that progress. But we 
still have big differences of opinion about what a Patients' Bill of 
Rights should do.
  Our bill covers 161 million Americans. Their bill covers 48 million 
people; it leaves out more than 100 million Americans.
  Our bill lets health care professionals make medical decisions about 
your health. Their bill lets insurance company accountants make those 
decisions.
  Our bill guarantees you the right to see a qualified medical 
specialist, including pediatric specialists for your children. The 
Republican bill doesn't guarantee that either you or your children will 
be able to see qualified medical specialists.
  If your HMO refuses to pay for care your doctor says you need, our 
bill allows you to appeal that decision to an independent review board. 
Their bill contains an appeal process, too--except they let the HMO 
decide what decisions can be appealed. They also let HMOs handpick and 
pay the people who hear the cases.
  Finally, our Patients' Bill of Rights is enforceable. Theirs isn't.
  CBO estimates that the most our Patients' Bill of Rights would 
increase premiums is 4.8 percent over 5 years--less than 1 percent a 
year. That comes out to less than $2 per beneficiary --less than $2 a 
month to guarantee that your health insurance will be there when you 
need it.
  Last month, when we offered our Patients' Bill of Rights, a 
Republican colleagues voted to kill it, without discussing its specific 
pieces. Yet, they claim they support nearly all the protections in our 
plan.
  So this week, we intend to offer our plan again, piece by piece. 
Let's debate each of the protections in our plan. Maybe when our 
colleagues really look at our proposals, they will decide they can 
support some of the protections in our bill. The American people 
deserve to know exactly where each of us stands on each of these 
protections.

  Let me just say a word at this point about the kind of debate we 
expect this week. By agreeing to this debate, we are assuming our 
Republican colleagues intend to allow a real, honest debate. That means 
debating and voting on each of the major protections in our Patients' 
Bill of Rights. If we have that sort of debate, then, whether we win or 
lose, we will certainly agree not to bring the Patients' Bill of Rights 
up again this year. Up or down, win or lose, if the debate this week is 
fair and honest, we will not offer our Patients' Bill of Rights again 
this year.
  But, if we are not able to do that, if we don't have a real debate, 
if we are not permitted to offer our protections as amendments so that 
the Senate can discuss and vote on each of them, if there are those who 
try to prevent an honest debate by using parliamentary tricks, we are 
putting them on notice now: This debate will certainly not end on 
Thursday. We will continue to offer the protections in our plan as 
amendments for as long as we have to until we finally have that honest 
debate.
  We know from experience that we can pass bills that protect the 
health of American families when we want. Together, Republicans and 
Democrats passed a bill allowing people to take their health care with 
them when they change jobs. Together, we passed a bill to help working 
parents purchase private, affordable health insurance for their kids. 
Together we can pass a real, meaningful Patients' Bill of Rights this 
week.


                           Amendment No. 1232

 (Purpose: To provide the text of Senate Bill 326 (106th Congress), as 
reported by the Committee on Health, Education, Labor, and Pensions of 
                 the Senate, as a complete substitute)

  Mr. DASCHLE. Mr. President, I send an amendment to the desk.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from South Dakota (Mr. Daschle) proposes an 
     amendment numbered 1232.

  Mr. DASCHLE. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The text of the amendment is printed in today's Record under 
``Amendments Submitted.'')
  Mr. DASCHLE. Mr. President, let me explain the amendment I have just 
offered. This amendment is the Republican HMO reform bill. We are 
offering it as a substitute to the Democratic bill for one reason.
  Senator Lott has been very candid and open about his intentions. His 
intention, of course, is to offer at the end of this debate a 
Republican bill that has not been debated or amended or scrutinized in 
any way.
  By offering as our first amendment the Republican substitute, we now 
lay down a dual track for the week--their bill and our bill. Both bills 
are subject to amendments. Both are subject to consideration. Both are 
subject to the debate that we had anticipated when we reached this 
agreement.
  We will be offering amendments to the Republican bill. We would love 
nothing more than for our bill to pass without amendment. But 
certainly, if that is not to be, we will at least do what we can to 
make sure the Senate deals honestly with this issue.
  By offering the Republican bill, we hope to make sure the Senate at 
least has an honest debate, and we have the opportunity to try to make 
the Republican bill what it should have been in

[[Page S8213]]

the first place--a good bill that deals with each of the issues and 
offers real protections.
  I retain the remainder of our time both under the amendment as well 
as the general debate.
  The PRESIDING OFFICER (Mr. Voinovich). The Senator from Texas.
  Mr. GRAMM. Mr. President, let me begin by explaining how we came to 
be here. Then I want to take a little walk down memory lane, as Ronald 
Reagan used to say, and talk about the real Democrat health care bill--
the bill offered in 1993. I then want to talk about the difference 
between the two bills--the Democratic Kennedy bill, and our bill--and 
why that difference is relevant to every working American family.
  Then I would like to conclude by explaining why our bill is a good 
bill and why I am confident that if Senator Kennedy and I could go into 
every house in America and sit down with people at their kitchen table, 
and if he could explain his bill and what he is trying to do, and if I 
could explain our bill and what we are trying to do, I am confident 
that 90 percent of the people in America would choose our bill.
  We are going to have 4 days of debate. But the outcome of the debate, 
I think, is clear. We are going to win when the votes are cast, and we 
are going to win this debate because we have a better program. Our 
program benefits the people who do the work and pay the taxes and pull 
the wagon in America.
  I think when the week is over that we will have discredited the 
approach of this bill as we discredited the bill in 1993. But, of 
greater importance, we will have passed a real bill that gives 
Americans real freedoms.
  Our colleagues have lamented that we have waited this long to deal 
with this issue. I want to remind everyone that last year throughout 
the year the majority leader offered to bring this bill up, and he 
offered to bring it up in two different forms.
  I thought the most reasonable offer was to let the Democrats write 
the best bill they could write that does the most that they can provide 
to help people with health insurance and to impose whatever 
restrictions they want to write. Then let Republicans put together the 
best bill they can put together, and bring the two bills to the floor 
of the Senate and let the Senate choose between one. We could then 
choose one or the other. That was rejected by the minority.
  We then offered them the ability to bring the two bills up and each 
side have five amendments. That was rejected by the minority.
  Not to waste a lot of time to get into a debate with the minority 
leader, or with other Democrats, I simply submit that we have been 2 
years getting to this point because the Democrats have wanted it to be 
2 years getting to this point. We could have brought up bills and voted 
under an orderly process 2 years ago. But, in reality, the Democrats 
thought they had a political issue. That is why we are only getting to 
this bill now. I think we are going to prove this week they don't have 
much of a political issue, and I think when the debate is over they are 
going to be glad it is over. And I think the American people are going 
to be glad it is over.
  Let me remind my colleagues, and anybody who is watching this debate 
in America, that this is not the first time Bill Clinton and Ted 
Kennedy have wanted to rewrite the health care system of this country. 
I have here on this desk the Clinton health care bills, and the version 
of it that was sponsored by Senator Kennedy.
  Let me remind those who followed that debate in 1993--their memories 
might have gotten a little clouded--what this bill did. This bill said 
that the problem in America was that we had 43 million Americans who 
didn't have health insurance, and that in trying to deal with health 
insurance and make it available, we needed to get rid of the current 
health care system, and we needed to set up on a regional basis in 
America health care collectives that people would be forced to join. 
And these collectives would be run by the Government. The whole idea 
behind the Kennedy bill in 1993 was give up freedom to control cost.
  Obviously, I wouldn't have enough time in the day or the week to go 
through all of these provisions. But let me just remind you of a couple 
of them.
  In 1993, Senator Kennedy, Senator Daschle, and President Clinton 
said: We are going to have the Government take over the health care 
system in your hometown--in Phoenix, AZ. There would be one health care 
collective run by the Government, and if you refused to join that 
collective, you would be fined $5,000.
  That is what they wanted in 1993. That was their concept of freedom 
when they last asked us to let them run the health care system in 
America.
  Then they said, if this plan did not provide the kind of health care 
you needed and you sought to get that health care through your 
physician and the health care was not allowed under this plan, the 
physician could be fined $50,000.
  If you needed health care for your child, their concept of freedom, 
in 1993, in the Clinton-Kennedy health care bill, was: We know what 
kind of health care you need. They said: We are going to provide it in 
this bill, and, if you want health care outside this bill and a 
physician provides it for you, we are going to fine them $50,000.
  That was their concept of freedom in 1993. In 1993 they said, What 
about the circumstance where your baby is really sick? So you go to a 
doctor and say, I need health care, and they, under the Clinton-Kennedy 
plan, say, We are not allowed to provide this kind of treatment. You 
say, forget about the plan, I'll pay for it out of my own pocket. In 
1993, Senator Kennedy and Senator Daschle and President Clinton thought 
so much of freedom that they said, If you pay the doctor out of your 
pocket for a treatment that we do not provide for, and the doctor takes 
the money, he can be sent to prison for 15 years. That was their 
concept of patients' rights in 1993. That is what they thought freedom 
consisted of in 1993.

  I submit, this is what they still want. The bill that is before us, 
their bill, is step 1 toward government running the health care system, 
so when my mama needs to go see a doctor, she first has to talk to a 
government bureaucrat. We defeated that in 1993, and we are going to 
defeat it this week in the Senate.
  What is the plan today? Unlike 1993, when our colleagues were very 
concerned about the cost of health care, now they are not concerned 
about health care cost, they are concerned about rights. So all of a 
sudden they have put together a bill that imposes a whole lot of 
government restrictions, that expands liability, so 60 percent of the 
premiums that go to provide insurance against medical liability will 
end up going to lawyers instead of to doctors and hospitals and 
clinics.
  They have put together a bill that the Congressional Budget Office 
has said, when you take into account all the bureaucracy and all the 
legal liability, will drive up the cost of health care by 6.1 percent. 
That is equivalent to taking 6.1 percent right out of the paycheck of 
working Americans in order for them to be able to keep their insurance. 
Only a lot of Americans will not be able to keep their insurance. In 
fact, a study funded by the AFL-CIO has concluded, if you take the 
increase in health care costs under the Kennedy plan, 1.8 million 
Americans will lose their health insurance.
  Mr. President, 1.8 million Americans will lose their health insurance 
if we should adopt the bill that the Democrats have proposed. For those 
who are lucky enough not to be one of the 1.8 million people who would 
lose their health insurance, they would pay $72.7 billion over a 5-year 
period more for health insurance and health costs than they are paying 
now.
  This is not just about dollars, this is about real people and real 
health care. By 1.8 million people losing their health insurance, that 
means you would have 188,595 fewer breast examinations every year for 
Americans, because the Kennedy bill would take away their health 
insurance. It means 52,973 American women would not have mammograms who 
would have them under current law, because the increase in cost under 
this bill would take away their health insurance. It means that 135,122 
Pap tests would not be undertaken, because people would have lost their 
health insurance and therefore lost access to that coverage. Mr. 
President, 23,135 American men, mostly elderly men, would lose their 
prostate

[[Page S8214]]

screening exam as a result of the health care cost increase that would 
be dictated by the Kennedy plan.
  So what do they offer us in the name of health care rights? They 
offer us a bill that would drive up health insurance costs by 6.1 
percent, costing 1.8 million Americans their health insurance, and for 
those who are lucky enough to be able to afford to keep their health 
insurance, they would pay $72.7 billion more for their health insurance 
over a 5-year period.
  In return for all of these costs, what do people get? Rather than 
going into the details, I am going to reduce it down to a very simple 
example. I want to define the problem Senator Kennedy sees--and we 
agree on the problem. Then I am going to explain what he provides in 
the name of rights that drives up costs by 6.1 percent, costs 1.8 
million people their health insurance, and those who keep their health 
insurance pay $72.7 billion more for it.
  Here is the problem. The innovation--which, by the way, has been 
championed by the people who are offering this amendment--is HMOs. They 
thought so much of them they wanted to force everybody in America into 
a government-run HMO. But, under HMO, there is a problem. The problem 
is that people lose the control they want and need over their health 
care. Let me reduce it down to a simple example.
  When people with an HMO go into the examining room, too often, in 
addition to their doctor in the examining room, they have, either 
literally or figuratively, the HMO gatekeeper in the examining room. So 
they are going into the examining room--obviously, that often entails 
taking your clothes off. People are often a little nervous about that. 
They want privacy. They like to be in the examining room with their 
doctor, but with an HMO they find themselves with this gatekeeper 
virtually looking over the doctor's shoulder. They would like to be in 
the examining room alone with the doctor. We agree. We think they 
should have the right to make that choice.
  But how does Senator Kennedy fix the problem? How Senator Kennedy 
fixes the problem--and you will be able to tell why it is so expensive 
when you look at it--the way Senator Kennedy fixes the problem is 
demonstrated by this stethoscope. What people want is the doctor in the 
examining room with the stethoscope up against their heart, but right 
now they have an HMO listening in, double-checking their doctor. They 
would like to get this HMO gatekeeper out of the examining room. So 
what does Senator Kennedy do? He says: We can fix your problem. It will 
cost 1.8 million of you your health insurance; those who keep the 
health insurance, it will cost $72.7 billion more. But look at what you 
get.
  What you get under Senator Kennedy's plan is this. He doesn't get rid 
of the HMO, that guy is still there listening in, but he brings a 
government bureaucrat into the examining room who will be there to keep 
an eye on the HMO, and to keep an eye on the doctor, and to regulate. 
Then, in addition to the bureaucrat, he brings the lawyer into the 
examining room who will be there keeping an eye on the bureaucrat and 
HMO and the doctor, so that he can be there to sue the doctor or the 
HMO.
  The reason Senator Kennedy's plan drives up health care costs by 6.1 
percent and costs 1.8 million Americans their health insurance and 
drives up the cost for those who can afford to keep it by $72.7 billion 
is it costs a lot of money to bring all these bureaucrats and all these 
lawyers into the process.
  But the point is, what people are unhappy about is the HMO 
gatekeepers being in the examining room. They wanted to get them out of 
the examining room. They do not want to bring the bureaucrats in and 
bring lawyers in. What they want is a health care system that looks 
like this: They want a health care system where you have two people in 
the examining room and one of them is you. You are on this end of the 
stethoscope, and your doctor is on the other end of the stethoscope, 
and there is nobody else in the room. That is what they want.
  The difference between the Kennedy bill and our bill is, under his 
bill, he brings in the bureaucrat and the lawyer. So now you have four 
people in the examining room. What we do is we get rid of the HMO 
gatekeeper and give people real freedom.
  This is such a critically important point. Our Democrat colleagues 
have gotten caught up in this deal about how they are going to give 
people rights. I think it is wonderful that it is so easy for somebody 
to see what they mean by ``rights'' and what we mean by ``freedom'' are 
two totally different things.
  Under the Democrat bill, you are not free to fire the HMO your boss 
picks for you, but you are free to have the Government regulate it.
  Under the Kennedy plan, you are not free to fire your doctor, but you 
can sue him.
  Under the Kennedy plan, you are not free to control your health care 
cost, but you can share that control with a lawyer and with the 
Government.
  What we do is give people freedom. It is an interesting paradox that 
the Kennedy bill debases the very term ``choice.'' It debases the very 
term of ``rights'' because it contains no rights; that is, no rights 
that are really meaningful to somebody who has a child who is sick or 
whose mama is ill.
  We give people real rights. We give people the right to fire their 
HMO by guaranteeing them an alternative, which I will talk about in a 
minute.
  We give people the right to fire their doctor.
  We give people the right to take their health care money and spend it 
as they choose on their own family.
  We give people the right to pick the protections they believe are 
important to their family, not those basic benefits the Government 
might decide in Washington would be useful.
  And finally, we give people the right to control their own health 
care, something the Democrats do not do.
  The Democrat plan means more Government, more lawyers, more rules, 
more uninsured and more Government control, but the one thing it does 
not mean, the one thing it does not provide is more freedom. Our bill 
provides more freedom. Let me explain two ways it does.
  First of all, under the current tax system, we have a terrible 
inequity. If General Motors buys your health insurance for you as their 
employee, it is tax deductible. But if you buy it for yourself as 
either a small businessperson who does not have health insurance or a 
self-employed who does not have health insurance or somebody who works 
for a company that does not provide health insurance, or if you would 
rather buy your own health insurance rather than General Motors 
choosing for you, it is not fully tax deductible. The first thing our 
bill does is it treats you as well as current tax law treats General 
Motors. Under our bill, if you buy your own health insurance--let's say 
you are self-employed. You will get the right to the same tax treatment 
that General Motors does, so your health insurance is tax free.
  The second and most important choice we give to people is a totally 
new program, a new choice. We do not force anybody to take it, but we 
give people the ability to buy, in addition to all the choices we 
provide with everything from an HMO to private practice of medicine 
through a medical savings account, we expand people's freedom. One of 
the choices we provide, which I am very excited about, is the right to 
buy a medical savings account. Here is how it would work.
  A medical savings account is a device that really is aimed at helping 
people who want health care coverage but who often do not have a lot of 
money. The way it would work is, in addition to joining the health plan 
your company might try to impose on you, you have the right to take 
your money and buy a high-deductible insurance policy and then join 
with your company in setting aside money to pay the deductibles in what 
we call the medical savings account. Those medical savings accounts are 
fully tax free, just like conventional health insurance. Here is 
basically how it would work.

  You might buy a health insurance policy with a $3,000 deductible. 
Normally, that policy would cost less than half as much as a first-
dollar-coverage policy. Then you and your employer would begin to build 
up a savings account up to $3,000, which would belong to you, to cover 
the deductible.
  Then how it works is you make the decision, when your child needs to 
see a doctor, which doctor your child needs to see. You are empowered 
to make the decision.

[[Page S8215]]

  It is true that under the Kennedy plan, if your baby has a 104-degree 
fever, you could get out the phonebook and you could look under the 
blue pages for the U.S. Government and you could find the Health Care 
Financing Administration, or HCFA as they are called, and at 2 o'clock 
in the morning you could call up HCFA. You would, in all probability, 
get an answering machine if you were lucky. Maybe you would not. I do 
not think you are going to find the Director of HCFA at work at 2 
o'clock in the morning. You can call up and leave a message, and then 
they, under the Kennedy plan, will set up a meeting. Maybe next Tuesday 
at 4:52 in the afternoon they might meet with you or talk to you on the 
phone.
  You also could call up a lawyer. You could look under ``attorney'' in 
the phone page and you can pick--one thing about Senator Kennedy's 
health care rights bill is it gives you no freedom with regard to 
doctors, but it gives you complete freedom with regard to attorneys.
  Senator Kennedy's bill is unlike the bill he put together in 1993 
with President Clinton. Remember, their health care bill in 1993 did 
not let you sue. They have had a change in heart, it seems, so now he 
says you can pick up the Yellow Pages and you can look under 
``attorney'' and you can pick any attorney. You have your car wrecks. 
Maybe you want another attorney. This one deals with car wrecks. You 
have injury. You have family law, criminal law, jail release, traffic 
tickets, bankruptcy, will and trust, personal injury, board-certified 
personal attorney. Anyway, you find the one who suits you. You hire 
that attorney, and you go to court. Eighteen months from now, you might 
be able to collect some money from some doctor or from some HMO.
  Our bill does not work that way. Under our bill, if your baby has a 
temperature, you pick up the Yellow Pages. I have the Yellow Pages from 
Arlington and Mansfield, TX. This Yellow Pages lists all the physicians 
who practice medicine in that area.
  Under our plan, you pick up the phone and you call up the physician 
you might pick. Let's say I pick Louis W. Adams, pediatric 
ophthalmologist, and I call him up. Under the Kennedy bill, I would 
have to ask him some questions. I would have to say: Are you a 
preferred provider? In fact, we did an experiment on that in 
Washington, DC. Let me show it to you.
  In Washington, DC, we took a page out of the phonebook. It was page 
1017. These are the physicians who were listed. The first one is 
Ginsberg, Susan M., M.D., and the last one is Robert O. Gordon.
  Let's say you are in an HMO or you are in a PPO, and you call up--
let's say you pick Philip W. Gold. You call him up and say: Dr. Gold, I 
need health care. I have a child who has a 103-degree temperature. Are 
you in the Kaiser HMO, or are you part of the Blue Cross PPO?

  We found that out of the 28 doctors, 10 accepted the Kaiser HMO, 17 
accepted the Blue Cross PPO. But let me tell you the amazing revelation 
we made. With a medical savings account, which any American could set 
up, under the Republican plan, you would get a checking account. This 
is from Golden Rule Insurance Company in Indiana. This is a medical 
savings account checking account. Then this is for a medical savings 
account that is operated by Mellon Bank, and this is a MasterCard. Then 
this is an American Health Value medical savings account, and this is 
operated through Visa.
  Under the Republican plan, you would have the right to opt for a 
medical savings account where you would make the decision about health 
care for your family. We empower you--not some lawyer, not some 
bureaucrat--but we empower you as a parent.
  So then we called up everybody on page 1017 of the Yellow Pages and 
we asked them three questions:
  Do you take a check?
  Yes. Every one of them took a check.
  Do you take Visa?
  Every one of them took Visa.
  Do you take MasterCard?
  Every one of them, all 28 of them, took MasterCard.
  So the real freedom in the Republican bill is the right for you to 
choose--not to choose a lawyer to sue somebody 18 months from now, not 
to call up a government bureaucrat and fill out a form and register a 
protest. What kind of freedom is that? The freedom we give is the 
freedom to act, the freedom to hire, the freedom to fire, the freedom 
to say yes, the freedom to say no. That is what freedom is about.
  Our Democrat colleagues believe freedom is about being able to talk 
to a bureaucrat. They think freedom is about the right to sue.
  Under the Republican plan, freedom is the right to say to your HMO: 
You're fired. I don't like the way I'm being treated here. I'm leaving 
your HMO. I'm opting for another option. The example I gave is a 
medical savings account.
  Freedom, under the Republican plan, is the freedom to pick up the 
phonebook and let your fingers do the walking. You pick the doctor: I 
want John V. Golding, Jr. I don't want anybody else. He is the doctor I 
want. I got his telephone number. I called him up and said: My mama is 
sick, Dr. Golding, and I would like her to come see you. Do you take a 
check or MasterCard or Visa? He says: Yes. I am in.
  As this debate goes on, you are going to hear Senator Kennedy, and 
others, say: The world will come to an end if you have medical savings 
accounts. They are going to use the interesting charge they use any 
time they are against something, and that is it is for rich people. If 
Democrats are not for something, they claim it is for rich people. Tax 
cuts are for rich people. Choice, freedom, is for rich people. They are 
going to say: Oh, the medical savings accounts, rich people will get 
medical savings accounts and poor people will not have them; it will 
just be terrible.
  The facts are that even though we have a limited number of medical 
savings accounts that can be sold, even though in the year 2000 they 
lose this option and have to go back into the old system unless we 
change the law, the people who are buying medical savings accounts are 
primarily modest-income people. But we are going to repeal those 
limitations and we are going to do it this week. Uninsured people are 
buying medical savings accounts because it allows them to buy an 
affordable high-deductible policy that covers them against terrible 
things happening and then lets them build up savings accounts with 
their employer to pay the deductible.
  So those who are going to criticize medical savings accounts are 
going to say it is for rich people, but they really do not like it 
because it is freedom. What they want is this. They want the old 
Clinton health care bill. They know that if we ever give people the 
right to choose, they will never nationalize health care. So medical 
savings accounts are, to our dear colleague from Massachusetts, like a 
crucifix is to a vampire. They cower, they are struck with fear at the 
idea that some parent would actually have the ability to fire an HMO 
and do it without having to call a bureaucrat or without having to hire 
a lawyer.

  Why do they fear freedom? Because they are not for it. They want the 
Government to take over and run the health care system--always have, 
always will.
  The basic question is, Who should manage care? Should it be an 
insurance company? Should it be the Government? Or should it be you? We 
believe it ought to be you. We believe that parents ought to be 
empowered to control health care. We believe that parents can make 
better decisions.
  That is what this debate is about. This debate is about whether 
freedom means getting access to a bureaucrat or firing your HMO, 
whether freedom in health care means hiring a lawyer or being able to 
hire your own doctor. That is what the debate is about.
  A final point I would like to make--and I think it is a significant 
point; some people would say it is a reach, but I do not think so--why, 
all of a sudden, are our same colleagues who in 1993 wanted the 
Government to take over and run the health care system and make 
everybody be in one big Government-run HMO--why, all of a sudden, do 
they want to drive up costs in the name of expanding bureaucracy and 
lawsuits?
  Part of it is, they like bureaucracy and they like lawsuits. But that 
is not, in my opinion, the real story. The real story is, if, God 
forbid--and He is going to forbid, because we clearly have the votes to 
stop him but if, God forbid,

[[Page S8216]]

the Kennedy plan should be adopted, and health insurance went up by 6.1 
percent and 1.8 million people lost their health insurance, does 
anybody doubt that next year Senator Kennedy would be back with the 
Clinton health care bill saying: Now 1.8 million people have lost their 
health insurance, and we have no choice except to let the Government 
take over the health care system? I think that is what he would say. In 
fact, I think that is basically what we are debating here: Destroy the 
private health care system so the only alternative would be Government.
  Our answer is: Let's make the current health care system better; 
let's have a meaningful, timely internal and external appeal if you 
want to stay in an HMO; let's empower people to fire HMOs and go to the 
private practice of medicine again if they choose; let's expand freedom 
as a solution to making our current system work better to make it more 
efficient and to empower families to make more choices.
  The alternative the Democrats have is: Destroy the current system and 
then let's let Government take over and run the health care system.
  Our answer is: Expand freedom and choice within the current system, 
empower families to decide, and let's forever and ever keep Government 
out of health care.
  That is really the choice. Our Democrat colleagues believe that 
somehow they are going to benefit by Americans knowing they are unhappy 
about HMOs and they want to expand your access to bureaucrats and 
lawyers. We do not think that solves the problem. We think what solves 
the problem is to make HMOs give you an effective internal and external 
appeal; but we go one step further, and that is, we empower people to 
fire the HMO and to hire their own doctor.
  We believe in freedom. We believe freedom works. It built America in 
every other era. Can you imagine if we had a Clinton-Kennedy car 
insurance bill or car repair bill so that if you are unhappy with your 
assigned repairman to fix your car, and if you are unhappy with what he 
does, you contact a bureaucrat and then, if you are unhappy with what 
he does, you contact a lawyer? I submit that the cost of repairing our 
cars would be astronomical.
  We have a different system. It is one we would like in health care. 
That is, you pick where you go to get your car repaired, and if you do 
not like the work they are doing, you say to them, in a traditional 
American fashion: You are not doing a good job. You have not lived up 
to our trust. You have not done what you said you would do. And you're 
fired.
  That is freedom. That is freedom. That is what we want. We want the 
right of people to choose. We don't want this substitute for the right 
to choose, the right to pile up costs in lawsuits or the right to deal 
with bureaucrats. What kind of right is that? How many wrongs do 
bureaucrats right? About one-tenth as many as they create.

  We give you freedom. The Democrats give you bureaucracy. We help 
lower the cost of health care by expanding choices and expanding tax 
deductibility. They drive up the cost of health care by 6.1 percent. 
Their bill would deny health insurance to 1.8 million Americans. Their 
bill would drive up health care costs by $72.7 billion. Senator Kennedy 
likes to claim, well, it is just a hamburger a day for however long. 
Well, with $72.7 billion, you could buy every McDonald's franchise in 
America for the 5-year cost that this will drive up health insurance.
  Senator Kennedy doesn't understand that if the company you are 
working for is paying your health insurance and the cost is driven up, 
you are still paying it. It is part of your wages. What is going to 
happen, according to estimates that were undertaken by the AFL-CIO--in 
support of this bill, by the way--is that 1.8 million people will lose 
their health insurance. We don't want that to happen, and we are going 
to stop it from happening.
  This is going to be a very meaningful debate. I look forward to it. I 
think people will learn from it. I think in the end they are going to 
have two different choices about what freedom is.
  If freedom to you is access to a bureaucrat and a lawyer, then you 
are with Senator Kennedy. If freedom to you is the right to choose your 
own health care, your own doctor, the right to hire and the right to 
fire, the right to say what you want and people either do it or you get 
somebody else, if that is what freedom means in your hometown, if you 
would rather be able to pick up the Arlington-Mansfield phonebook when 
your baby is sick and look up ``physician'' rather than look up 
``attorney'' or, rather than look in the Blue Pages for HCFA, if that 
is what you would like to have, you are with us. On the other hand, if 
you think your answer is at HCFA in the Blue Pages or with an attorney, 
then you want to be with Senator Kennedy. It is about as clear a choice 
as you could possibly have.
  When the debate is over this week, not only will we have won the 
vote, but I think, more importantly, we will have won the debate. We 
will have ended, hopefully forever, any dream of ever getting back to 
the Clinton health care bill, where every American is forced into a 
health care collective and, when your momma gets sick, she talks to a 
bureaucrat instead of a doctor. They tried that in 1993. Eighty-two 
percent of the American people thought this might be a good idea. 
Finally, when a few of us stood up and fought it, it was like sticking 
a great big inflated balloon with a pin. Suddenly, once people 
understood it, they were against it. They understood that what was at 
stake wasn't just health care, but what was at stake was freedom.
  That is what this is about--the right to choose. Don't get confused 
about it, as we go through the debate.
  I thank the Chair for its indulgence. I yield the floor and reserve 
the remainder of our time.
  Mr. KENNEDY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I am very hopeful we will be able to get 
into the substance of the differences between the approaches taken in 
the two bills. We heard a great deal of rhetoric, of course, earlier in 
the afternoon. We have had a brief presentation by the Democratic 
leader, Senator Daschle.
  At the outset, one point worth highlighting, as we begin this debate, 
is that there isn't a single health or medical organization in the 
United States that supports the position being advanced by that side of 
the aisle--not one.
  This really isn't or shouldn't be a Democratic or Republican debate. 
Republicans are members of HMOs as well as Democrats. Children are 
Republicans as well as Democrats. Women who need clinical trials are 
Republicans and Democrats. Those who have been in the vanguard of 
protecting women's health issues have been Republicans as well as 
Democrats. On children's issues, disabled issues, there have been 
Republicans as well as Democrats.

  I cannot remember a single piece of legislation that has been 
considered on the floor of the Senate in the time that I have been here 
where you have such overwhelming support for one side and virtually no 
support for the opposition side--in this case, the Republicans--not a 
single instance. I made that statement during one of the brief times we 
had a chance to talk about the Patients' Bill of Rights debate and 
discussion. It has never been rebutted.
  We heard earlier, in the course of the afternoon, about how the 
Republican proposal is really going to provide for necessary specialty 
care. Why is it then that every specialty organization in the country 
supports our bill? We heard over on the other side: Look, we are really 
giving the consumers a great deal of protection in our bill. Why is it 
that every consumer organization in the country supports our bill and 
opposes theirs? Every one, make no mistake about it.
  We are in a situation where, as so many of us have seen, special 
interest groups can pay for and buy just about any statistic they want 
to buy, and they have done so. They have put out misrepresentations and 
distortions about our bill. These misrepresentations and distortions 
about cost are all over the airwaves. We will have a chance later in 
the course of this debate to address the issue of costs. We will have a 
chance to make a presentation about what independent studies have 
concluded about the cost of our particular proposal. Despite the fact 
that we will introduce and present

[[Page S8217]]

these independent studies, do you think that will than alter and change 
people's minds? Absolutely not. You are going to hear distortions and 
misrepresentations. You have already heard them over the course of this 
afternoon.
  I was sitting here when our good friend from the State of Maine was 
speaking about the importance of the types of protections included in 
their Patients' Bill of Rights. The interesting fact is, their proposal 
doesn't cover any members of HMOs. Isn't that amazing? Listen to this: 
It doesn't cover any of the patients of HMOs. That is what brought 
about all of this concern. We can ask ourselves: Is there a concern 
today? The answer is yes, and not just because we say so.
  I heard talk about the importance of the State insurance 
commissioners. I ask our colleagues on the other side of the aisle to 
call their State commissioners and hear about the complaints that we 
are hearing. Call them this afternoon; call them tomorrow. Call them 
before we finish this debate and find out: There are two and three and 
four times more complaints today than there were a year ago or 2 years 
ago. Those are the facts. You would not know these facts from the 
earlier debate.
  This is a very interesting chart. We know there are 160 million 
Americans who are covered by private health insurance. On this 
particular chart, the ``Republican Plan Excludes More Than 100 Million 
People,'' there are 48 million people covered through self-funded 
employer plans. That is the total group that is covered by the 
Republican plan.
  There are 75 million people whose employers provide coverage through 
insurance policies or an HMO--that is what I thought this debate was 
really all about. They are not protected in the Republican plan. We 
listened this afternoon to assertions about all the protections 
included in the Republican plan. But these 75 million people are not 
protected under the Republican plan. They are not phased in next year 
or in 2 years. They are out; the Republican bill doesn't apply to them.
  State and local government workers, they are left out of the 
Republican bill. People buying individual policies, some 15 million, 
are left out. Who are they, Mr. President? They are the small 
shopkeepers.
  They are the farmers and the mom-and-pop stores that have to go out 
and buy these health plans. They are the one of the most vulnerable 
groups in our society.
  Do you know what was missing in the other side's presentation? The 
fact that the top 10 HMOs in this country, last year, made $1.5 
billion. Isn't that interesting? We see crocodile tears coming from the 
other side of the aisle about the cost of protecting patients. Then we 
find out the profits of the major HMOs and the multimillion dollar 
salaries paid to their CEOs. We hear about the $100 million being spent 
by the insurance companies to defeat our proposal.
  How much is that going to add? Why don't you address that, I say to 
our friends on the other side. Over $100 million. You know, generally 
around here--and the American people understand it--you can look at who 
is for a piece of legislation and who is against it in terms of who 
will benefit and who will lose out. It is not a bad way of looking at 
it. Sometimes issues are so complex that the balance is not completely 
clear. But on this issue, all the health care groups that favor 
adequate protections are in favor of our Patients' Bill of Rights. On 
the other side is the insurance industry--one industry, the insurance 
industry. That is it.
  Can we have some explanation by the other side, as we start this 
debate, about how they justify that? That is the bottom line. It is one 
industry. The Republican program is the profit protection program for 
the insurance industry. It is a bill of goods. It is a bill of wrongs. 
The Democratic proposal is the Patients' Bill of Rights.
  So as we start off on this issue, it is our hope, as we have 
mentioned before, to review for this body and the American people 
exactly what we intend to do. We have commonsense protections which 
have been developed over the last decade. What we want to ensure is 
that any bill passed will at least provide these commonsense 
protections. Perhaps legislation isn't going to be so all-inclusive as 
to include every commonsense protection. I hope it will.
  These are commonsense protections. You can ask where they all come 
from? Where did these patient protections that are included in the 
Daschle proposal come from? That is a fair question. We say they come 
from at least one of four different evolutions. You have the insurance 
commissioner's recommendations; Insurance commissioners, representing 
Republicans and Democrats, making recommendations. The President's 
bipartisan commission made what they call, not majority recommendations 
but unanimous recommendations. Do we understand that? Unanimously, 
Republicans and Democrats have said: Here are five or six protections 
we recommend, and we have included those recommendations.
  The only difference is that the bipartisan commission recommended 
that the protections be voluntary. Well, if every one of the companies 
complied with that recommendation, we would probably not be here today. 
They have not complied, and they will not comply. We also include 
protections included in Medicare and Medicaid, and protections 
recommendations by the health plans themselves. Those four groups have 
made the recommendations that are included in our proposal. That is why 
our bill has the unanimous support of the health professions.
  I will not take further time this afternoon. But I will point out, as 
we start this debate, that no health care debate this year is more 
important to every family. Yes, Medicare is enormously important. Yes, 
the issue of medical records privacy is important. Yes, home health 
care for our elderly is enormously important. There are other important 
issues concerning basic medical research.
  But the issue of health care quality is most important. The issue of 
whether your child, your wife, your loved one, your family member, 
receives the kind of health care that well-trained, committed medical 
professionals, doctors and nurses, who are trained and dedicated to try 
to provide the best in health care, want to provide, is most important.
  This legislation belongs to the nurses of this country, the doctors 
of this Nation, the cancer researchers, the children's advocates, and 
to the disabled organizations. Every one of those organizations 
supports our bill. Over the course of this week we will have an 
opportunity to address each and every one of these items. Hopefully, 
the American people will speak through their representatives and the 
result will be sound patients' protection legislation.
  Mr. WELLSTONE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. WELLSTONE. Mr. President, I will be very brief because we are 
anxious to get on with this debate. I want to add to the words of 
Senator Kennedy.
  This debate is a very personal debate for many of us, for both 
Democrats and Republicans. It is really heartbreaking to sit down with 
a family and talk to a father whose son was denied experimental 
treatment for cancer and wonders whether or not his son might have 
lived if he had been able to obtain that treatment. It is really 
disheartening to meet with a railroad worker whose wife talks to you 
about her husband and how he is fighting cancer but how every day she 
is on the phone battling these insurance companies to find out whether 
or not they will provide coverage for the treatment.
  That is what this debate is really all about. I think that, by the 
end of the week, it is going to be really clear what the differences 
are between the two proposals. This Republican bill that is on the 
floor--the Daschle amendment--altogether covers 48 million people. But 
for those citizens who aren't working for a Fortune 500 company, who 
are small businesspeople, family farmers, and others, there is no 
patient protection. That is a huge difference. There is a huge 
difference between the 2 proposals of 115 million Americans. The 
Republican plan doesn't cover the 115 million Americans that the 
Democratic plan does. Quite often, I don't talk in terms of Democrat or 
Republican, but here it makes a difference.
  Second of all, people are so desperate to make sure that if their 
child needs to see a pediatric oncologist, or a parent with Parkinson's 
needs to see a

[[Page S8218]]

neurologist, they will have access to that specialty care. The 
Republican plan does not guarantee that that will be the case. The 
Democratic plan makes it crystal clear to these managed care plans: 
Make sure you have those specialists available for people, and make 
sure that if it is not in your network, they will have access to 
whoever can provide the best care for their child or their parent.
  Third is the question of consumer choice and continuity of care.
  This Republican bill on the floor of the Senate, does not guarantee 
the continuity of care and doesn't give you the right, really even if 
you have to pay a little bit more in premium, to go outside the network 
of the managed care plan and take your child or your parents to the 
best expert or make sure your family members see the best specialist. 
This is called the point-of-service option.
  I will have an amendment that deals with that.
  Fourth, I heard my colleague from Maine speak about the appeals 
process. But, in all due respect, if people are not able to go to an 
independent, external appeal from these managed care plans dominated by 
these insurance companies and make sure that those independent panels 
are not picked by the companies, I don't call that independence.
  The Republican plan has the external appeals process controlled and 
dominated by the very companies that you have a grievance against.
  The Democratic plan provides for an independent appeals process 
backed by an ombudsman program that can help families.
  I will conclude because there are other Senators who want to speak.
  I think that this debate is all about representative democracy.
  I think this debate goes far beyond the issues at hand, although I 
agree with my colleague from Massachusetts; I think this is the most 
important debate of our session.
  This debate is all about whether or not the Senate belongs to the 
insurance companies of America or belongs to the people of Minnesota or 
Nevada or Massachusetts or North Dakota--the people around the country. 
That is what this debate is all about.
  I look forward to debating into these specific amendments. I hope 
that people in the country will be engaged.
  I say to all of my colleagues that I believe people will hold us 
accountable.
  This is an opportunity to do well for people. This is an opportunity 
to provide families with some protection. This is an opportunity to be 
willing to stand up against some powerful economic interests--the 
insurance companies of America that dominate so many of these managed 
care plans--and be advocates for the people we represent back in our 
States.
  Republicans, no matter what you call your plan--no matter what the 
acronym is--it is swiss cheese. You have too many loopholes in this 
plan. You don't provide protection for consumers. The people in 
Minnesota are not going to be in favor of an insurance company 
protection plan. They want it to be a Minnesota family protection plan.
  That is what I am going to fight for all week.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I yield 5 minutes to the Senator from 
North Dakota on the substitute.
  The PRESIDING OFFICER. The Senator from North Dakota is recognized 
for 5 minutes.
  Mr. DORGAN. Mr. President, we are finally going to have a debate on 
the issue of the Patients' Bill of Rights. It will not be a debate 
about theory. It will not be a debate about past proposals for health 
care reform. It will be a debate about real protections for real people 
in this country.
  We have two plans before us.
  One is a patients' protection act that we have offered that has the 
support of virtually every health care organization in this country.
  The other is a piece of paper with a name--just a name, just an empty 
vessel--that pretends that it provides protection but in fact it 
doesn't.
  Let me describe, if I might, some of the details of these plans. I 
want to be very brief, but I want to do it by talking about protections 
for people.
  This young boy's name is Ethan. Ethan was born in 1992 after a 
difficult birth. During his delivery, oxygen was cut off from Ethan, so 
he was born with significant problems that required special therapy. 
But the HMO denied the special therapy for Ethan because they said the 
probability of him being able to walk by age 5--a 50-percent potential 
of being able to walk by age 5--was insignificant. They called a 50-
percent chance of being able to walk insignificant.
  So corporate profits take precedence over patients' protection, and 
Ethan does not get the therapy he needs.
  Or let me show you another example. Dr. Ganske, a Republican in the 
U.S. House, used this chart to show a young child with a serious facial 
birth defect, a cleft lip. No one looking into the face of that young 
child could say that correcting this birth defect should not be done.
  Yet Dr. Ganske did a survey of reconstructive surgeons and found that 
50 percent of the doctors who had patients like this have had the 
corrective surgery denied by HMOs. These HMOs said this procedure was 
not ``medically necessary.''
  Would any parent in the world believe that this is not ``medically 
necessary''?
  Dr. Ganske, a Republican Congressman from the U.S. House, certainly 
doesn't believe that. He has been a champion for this kind of patients' 
protection act.
  Here is an example of what a young child with that deformity can look 
like after reconstructive surgery.
  Isn't that wonderful? Is that a ``medical necessity''? You bet it is. 
Of course, it is. But health insurance only works if patients get what 
they pay for.
  Dr. Ganske sent something around the other day that I pulled out in 
preparation for this debate. I want to describe this just briefly 
because I think it illustrates the difference between an empty vessel 
with the same title and a patients' protection bill that gives real 
protection to real people.

       At 3:30 in the morning, Lamona Adams found her six-month 
     infant boy, Jimmy, panting, sweaty, and moaning. He had a 
     temperature of 104. So she phoned her HMO to ask for 
     permission to go to the emergency room.

  You have to do that, by the way--get permission to go.

       The voice at the other end of the 1-800 number told her to 
     go to Scottish Rite Hospital. ``Where is it?'' asked Lamona. 
     ``I don't know--find a map,'' came the reply. It turns out 
     that the Adams family lived south of Atlanta, Georgia, and 
     Scottish Rite was an hour away on the other side of the 
     Atlanta metro area.
       Lamona held little Jimmy while his dad drove as fast as he 
     could. Twenty miles into the trip while driving through 
     Atlanta, they passed Emory University Hospital's ER, then 
     Georgia Baptist's ER, then Grady Memorial's ER. But they 
     pushed on to Scottish Rite Medical Center--still 22 miles 
     away, because they knew that if they stopped at an 
     unauthorized hospital, their HMO would deny treatment and 
     they would be left with the bill.
       They knew Jimmy was sick, but they didn't know how sick. 
     After all, they weren't trained professionals.

  They pushed on to where the HMO said they could stop.

       With miles yet to go, Jimmy's eyes fell shut and wouldn't 
     open.
       Lamona frantically called out to him. But he didn't awaken. 
     His heart had stopped.

  Imagine Jimmy's dad driving as fast as he could to the ER while his 
mother is desperately trying to keep him alive.
  They finally pulled into the emergency room entrance. Jimmy's mother 
leaped out of the car and raced into the ER with Jimmy in her arms 
calling, ``Help my baby! Help my baby!"
  They gave him mouth-to-mouth resuscitation while a pediatric ``crash 
cart'' was rushed to the room. Doctors and nurses raced to see if the 
miracles of modern medicine could save his life.
  He was intubated and intravenous medicines were given and he was 
cardiopulmonary resuscitated again. He was a tough little guy. He 
survived despite the delay in treatment by his HMO. But he didn't 
survive whole.
  He ended up with gangrene in both his hands and feet, and the doctors 
had to amputate both of Jimmy's hands and feet.
  This is a picture of little Jimmy before his illness, and then 
afterward. His folks drove past three hospital emergency rooms because 
the HMO said he had to go to the fourth one miles and miles and miles 
away. And this young boy has no hands and no feet now because of that.

[[Page S8219]]

  We have two plans on the floor.
  One of the plans, our bill, says that families have a right to the 
emergency care they need at the nearest hospital.
  The other plan says they offer such a right--until you read the fine 
print. The other side will tell you they have a good plan, but they 
have an empty vessel.
  On the issue of emergency care, little Jimmy, his parents, and others 
across this country will understand that it doesn't improve care when 
HMOs are allowed to determine which emergency rooms they will allow 
patients to stop at to get emergency treatment for these children.
  My point is this: We are going to debate theory all week. But it is 
not theory that is important. What is important is children like Jimmy, 
children like Ethan, or children like this little boy who has a severe 
birth defect of the face and was told by an HMO that this deformity 
need not be fixed.
  We know that is not right.
  This debate is about profits, patient care, insurance companies, and 
the rights of patients who are sick.
  I think at the end of the day and at the end of this week all of us 
will see that there are two plans. One is supported by virtually every 
medical and consumer group in the country because they know it allows 
real protections to allow doctors to practice medicine--not an 
insurance accountant thousands of miles away making decisions about 
patients' health care.
  The PRESIDING OFFICER (Ms. Collins). The Senator from Oklahoma is 
recognized.
  Mr. NICKLES. Madam President, what is the time situation on the 
amendment?
  The PRESIDING OFFICER. On the amendment, there are 10 minutes 
remaining for the Senator from Oklahoma and 23 minutes for the Senator 
from Massachusetts.
  Mr. NICKLES. What about the remaining time on the bill?
  The PRESIDING OFFICER. On the underlying bill, there are 63 minutes 
for the Senator from Oklahoma and 80 minutes for the minority.
  Mr. NICKLES. I yield to my colleague from Wyoming 10 minutes on the 
amendment, and if he desires additional time on the bill, I will yield 
that as well.
  The PRESIDING OFFICER. The Senator from Wyoming is recognized.
  Mr. ENZI. Madam President, during the last few months I have 
patiently watched the minority come to the Senate floor and threaten to 
hold up the legislative process until they received a full debate and 
amendment process on the President's Patients' Bill of Rights. On May 
25, leaders of the minority put that request in writing by sending a 
letter to the distinguished majority leader asking for a debate on 
their bill. That time has arrived. No tricks, no gimmicks. This debate 
will allow us to determine if the President's bill is everything they 
say it is.
  Last Friday, the President, while in Los Angeles, suggested that by 
debating his bill the Republicans are trying to hide their plan from 
the voters. This comment begs the question: Why wouldn't the Democrats 
want to debate their own bill? Aren't they getting exactly what they 
asked for?
  They asked for it by holding up the agriculture bill. They asked for 
it by holding up appropriations. Now they have what they asked for. 
Perhaps they would rather have an issue to talk about--not legislation.
  Our presence today and throughout this week clearly illustrates we 
are not hiding anything from the voters. Who is hiding? My mom can 
watch this on her television in Sheridan, WY--and she probably is.
  We have every intention of offering our bill during this debate. Be 
assured, the Senate will vote on our bill. We are not interested in 
hiding. We are interested in showing that we have a better bill. If 
anyone should be nervous, it is the President. If I had to defend his 
bill, I would be pretty nervous too.
  I am glad we are debating his legislation. Perhaps all the rhetoric 
we have heard during the last few weeks, and even today, will be 
replaced with some substance. Sound policy conquers rhetoric. We are 
confident of this as the debate unfolds. The bill left standing will be 
our Patients' Bill of Rights Plus.
  I commend our leadership for the work they have done to put together 
our Patients' Bill of Rights. On January 13, 1998, the majority leader 
created the Republican health care task force, pouring the foundation 
for a comprehensive piece of legislation to enhance quality of care 
without increasing the number of uninsured Americans. During the last 
18 months, the task force in the Senate Committee on Health, Education, 
Labor, and Pensions has worked together to make our bill live up to its 
title--a Patients' Bill of Rights our Nation's consumers and patients 
can be proud of.

  Aside from the title, the scope of the President's bill and our bill 
is quite different. I agree it is important we explain the difference 
between the two measures. The amendments Senators offer this week will 
clearly show those differences. I am proud of our bill's scope. It 
respects State's jurisdiction. The President's would apply across the 
board--a nationalized bureaucracy, budget busting, a one-size-fits-all 
national approach.
  I remember the last time this administration pushed a health care 
package of this size and scope. It was back in 1993 when the President 
and Mrs. Clinton launched an aggressive campaign to nationalize the 
delivery of health care under the guise of ``modest reform.'' The sales 
pitch back then wasn't any different from what it is now, backed with 
scores of anecdotes illustrated from Presidential podiums across the 
country. These stories will pull on the heart strings of all Americans 
and are intentionally aimed at injecting fear and paranoia into all 
persons covered or not covered by private health insurance.
  I am in Wyoming almost every weekend. I am quick to ask my 
constituency interested in the President's bill to look at the fine 
print. It is no surprise to me that most of them already have. The 
American people aren't easily fooled. They haven't forgotten the last 
time the President and Mrs. Clinton tried to slip nationalized health 
care past their noses. Anyone can put lipstick on a pig, give it a 
Hollywood-style debate, and hope for a political slam dunk. Expecting 
the public to close its eye and kiss this pig, however, is an entirely 
different matter.
  I remember the reaction Wyoming residents had to the 1993 ``Clinton 
Care'' plan. I was a State senator at the time. I recall how the 
President and Mrs. Clinton rode a bus across America, promoting their 
plan to federalize our Nation's health care system. The people of 
Wyoming also remember the detour they took when they got to the Wyoming 
border. Instead of entering our home State, they chose a more populated 
route through Colorado. That was an unfortunate choice. They missed 
their chance to receive an education on what rural health care is 
about. Had they driven all 400 miles across southern Wyoming, they 
would have seen for themselves why federalized national bureaucracy, 
one-size-fits-all legislation doesn't work in rural, underserved 
States.
  Wyoming has 480,000 people scattered over 98,000 square miles. My 
hometown of Gillette has 22,000 people--fourth largest in the State. It 
is 145 miles to another town of equal or greater size, and it isn't 
even in our State. Many of the people in my State have to drive up to 
125 miles one way just to receive basic health care. More important is 
the difficulty we face in enticing doctors and health care 
professionals to live and practice medicine in rural areas. I am very 
proud of Wyoming's health care professionals. They practice with their 
hearts, not with their wallets.
  In a rural, underserved State such as Wyoming, only three managed 
care health plans are available, and that covers just six counties of 
our State. Once again, this is partly due to my State's small 
population. Managed care plans generally profit from high enrollment, 
and, as a result, the majority of plans in Wyoming are traditional 
indemnity plans commonly known as fee-for-service. In fact, the vast 
majority of regulated health insurance in Wyoming is handled by the 
State.
  Some folks might wonder why I am so concerned about the scope of the 
President's bill if it doesn't affect Wyoming that much. I am worried 
because a number of Wyoming insurers offer managed care plans 
elsewhere. Any premium hike spurred by a federalized bureaucracy, 
national one-size-fits-all bill would be distributed across the board. 
We would get an increase when

[[Page S8220]]

we didn't receive a benefit, thereby causing increases in the fee-for-
service premiums in Wyoming. Simply put, my constituents could easily 
end up paying for services they will never get.
  Expecting my constituents to pay more dues to the President's 
national health care system poses a potential threat to exclude them 
from health insurance coverage altogether. That is entirely 
unacceptable. Moreover, it further hinders our ability to keep 
physicians in Wyoming. If the President's bill passes, it will actually 
drive down the number of health care professionals we have in our 
State.
  Our Patients' Bill of Rights is not a federalized, national health 
care system. It stays within the traditional, regulatory boundaries 
established and already built in by the Employee Retirement Income 
Security Act, ERISA, of 1974. ERISA applies to self-insured plans, 
meaning employers who fund their own insurance plans for their own 
employees--all 48 million. These plans lie outside the regulatory 
jurisdiction of the States. Since it is the responsibility of the 
federal government to regulate ERISA plans, our bill stays within that 
scope.

  The President and the Senate minority, however, argue that our bill 
should apply to all plans and all persons--including those already 
regulated by the states. Our bill's goal is to improve health care 
quality through better information and improved procedures as well as 
rights for consumers and patients, without significantly increasing the 
cost of health coverage and the number of uninsured Americans. By 
legislating within the federal jurisdiction of ERISA only--and not 
usurping state jurisdiction--we accomplish our goal.
  Unfortunately, that hasn't silenced the claims made by the President 
and the Senate minority. These claims are no different than those made 
by the President and Mrs. Clinton back in 1993. He wants nationalized 
healthcare--plain and simple. Americans have been down this road 
before. The states, however, have been in the business of regulating 
the health insurance industry far longer than Congress or any 
President. The President wants all regulatory decisions about a 
person's health insurance plan to be made from Washington. The reason 
this won't work is that it fails to take into account the unique type 
of health care provided in states like Wyoming.
  While serving in the Wyoming Legislature for 10 years, I gained 
tremendous respect for our state insurance commissioner's ability to 
administer quality guidelines and insurance regulations that cater to 
our state's consumers and patients. State regulation and respect for 
their jurisdiction is absolutely, unequivocally essential. I firmly 
believe that decisions which impact my constituents' state regulated 
health insurance should continue to be made in Cheyenne--not 
Washington.
  You can call Cheyenne and talk to the same person each day, if you 
need to. But since you can talk to the same person, you do not have to 
make as many calls. Here you have to spend half of your time explaining 
to the person the problem that didn't get followed-up on the last time 
you called. The President and the Senate minority want to crate that 
all up and ship those decisions back here to Washington.
  By advocating federalized, national one-size-fits-all health care, 
done through a bureaucracy, the President's bill would increase the 
number of uninsured. Perhaps that's something he wants. We know that 
the President and Mrs. Clinton prefer a national, Federal health care 
system in lieu of private health insurance. Their 1993 plan is evidence 
of that. By increasing the number of uninsured, maybe he hopes that 
these folks will join him in his campaign for a Washington-based health 
care system. I sure hope that is not the case, but as long as the 
President continues to dodge that issue, I am forced to assume that 
this is his position.
  By keeping the scope of this bill in perspective, we also control 
that cost which directly impacts access. Affordable access to health 
care is an even higher priority than quality. If it is not affordable, 
quality does not exist. By issuing federalized, national one-size-fits-
all mandates and setting the stage for endless litigation, the 
President's bill could dramatically raise the price of premiums--
barring people from purchasing insurance. That is the bottom line for 
American families--the cost. We all want as much consumer and patient 
protection as the system can support. There is not a member in the 
Senate who does not support consumer and patient protection. But if 
Americans are expected to pay for the premium hikes spurred by the 
President's bill, they'll most often go without insurance. That is why 
we must keep the scope of this bill in perspective.

  The President has repeatedly accused the Senate majority of being in 
the pocket of the insurance industry. I take great offense to that 
charge. That same blanket claim was also made during the tobacco debate 
last summer, even though I never took a dime from the tobacco industry. 
Just last Friday, the President said that we are being captive to the 
``raw political interest of health insurers'' and said that our party's 
leaders had resorted to delaying debate on his plan for cynical 
political reasons. How does the President respond to claims that his 
plan was written on behalf of special interests like organized labor 
and trial lawyers? I'd sure like to get his thoughts on that.
  The President's bill would allow a patient to sue their own health 
plan and tie up state courts with litigation for months or years. The 
only people that benefit from this would be trial lawyers. The patient, 
however, would be lucky to get a decision about their plan before their 
ailment advanced or even took their life. A big settlement does not do 
you much good if you win because you died while the trial lawyers 
fiddled with the facts. Folks are not interested in suing their health 
plan. They watch enough court-TV shows to know how expensive that 
process is and how long it takes to get a decision made. This is not 
L.A. Law--it is reality. Our Patients' Bill of Rights avoids all this 
by incorporating an expedited external appeals process that does not 
exceed 72 hours. Getting quick decisions saves lives. We insist on a 
decision before the patient dies!
  The President apparently has no problem expanding the scope of 
federal jurisdiction, but he is silent when it comes to increasing 
access for the uninsured. Our Patients' Bill of Rights delivers on 
access. It would increase access to coverage by removing the 750,000 
cap on medical savings accounts (MSA's). MSA's are a success and should 
be made available to anyone who wishes to control his or her own health 
care costs. Moreover, persons who pay for their own health insurance 
would be able to deduct 100 percent of the cost if our bill becomes 
law--equalizing the taxes, making coverage more affordable. This would 
have a dramatic impact on folks in Wyoming. These provisions would, 
without a doubt, pave the way for quality health care to millions of 
Americans without dismantling access and affordability due to federally 
captured state jurisdiction.
  While the President's bill has been pitched as being essential to 
enhancing the quality of care Americans receive, I hope that my 
colleagues will carefully evaluate the impact that any federalized, 
national one-size-fits-all approach would have on our nation's health 
care system. As I have encouraged my constituents to read the fine 
print, I also ask them to listen carefully to this week's debate. I 
hope they'll see for themselves how the President's legislation effects 
their home state. Rural states deserve a voice, too. Only our Patients' 
Bill of Rights would provide them that podium from which they can be 
heard.
  Madam President, I yield the floor and reserve the remainder of our 
time.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. I yield 5 minutes to the Senator from New Mexico.
  The PRESIDING OFFICER. The Senator from New Mexico is recognized.


                         Privilege of the Floor

  Mr. BINGAMAN. Madam President, I ask unanimous consent that Robert 
Mendoza, a fellow on my staff, and Matt Maddox on my staff be granted 
the privilege of the floor during the pendency of this bill, and also 
that same privilege be granted to Ellen Gadbois and Arlan Fuller, 
fellows from Senator Kennedy's office.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BINGAMAN. Madam President, I rise to discuss managed care reform, 
an extremely important issue which we are finally getting to a debate 
this week. We have an opportunity this week to substantially improve 
the

[[Page S8221]]

quality of life for 161 million Americans, including 900,000 New 
Mexicans, many of whom have contacted me through letters and phone 
calls and faxes, telling about their desire for some reform of the 
managed care system.
  Our goal this week seems to me very clear. The American people--and I 
believe every family who spends their hard-earned dollars on health 
insurance--need to receive nothing less than the finest of medical care 
available. We are trying to ensure that through this legislation. That 
is the task we have set, to guarantee the people of this country 
critical patient protections.
  It is clear the reasons are valid, why we should do this. First, 
survey after survey reports the American people are demanding the 
passage of patient protections such as those contained in the 
Democratic bill that I supported, which Senator Kennedy offered in the 
committee. In my State, there are 350,000 New Mexicans who will not 
have critical patient protections if the bill we pass at the end of 
this week leaves medical decisions up to non-medical insurance 
personnel. There are 200 patient groups and health care provider 
organizations, physicians, workers' unions, and employee groups, that 
stand behind the need for these patient protections. There are 30 
million Americans who have had trouble seeing a specialist, women and 
children with special needs who either had critical care delayed or, 
worse, had that care denied. I heard my colleague from Wyoming just now 
say providing this access to specialized care will dramatically 
increase premiums.
  The statistics are clear. The Congressional Budget Office did an 
analysis and determined that the increase in premium costs would be, at 
the most, 4.8 percent over a 10-year period. Providing this specialized 
care or access to specialists would be a one-tenth-of-1-percent 
increase in cost, less than $2 per patient per month for the entire 
array of patient protections about which we are talking. This is a very 
modest amount which Americans are willing to pay.
  Americans who live in rural areas, such as my State and the Senator 
from Wyoming was talking about his State, have to travel an hour or 
more to get to a doctor when there is an appropriate health care 
provider just down the road. We are trying to ensure those other 
appropriate health care providers also be made available to those 
patients.
  Even if you put aside all of these particular reasons for passing the 
bill, clearly the main reason we should pass it is that it is the fair 
thing to do.
  There was a very good editorial in this morning's Washington Post 
which I believe all Members should read. Let me refer to it for a 
moment. It talks about the managed care debate coming up in the Senate 
this week. It says:

       The objective is, or ought to be, to legitimize the 
     containment of these costs by giving the public a greater 
     guarantee that the process will be fair. Republicans resist 
     the increased regulation this would entail. In the past they 
     have tried to deflect the bill; now they offer weak 
     legislation that is mainly a shell.

  My colleague from North Dakota said the Republican proposal is an 
empty vessel. The Washington Post says it is ``mainly a shell.''
  It goes on to say:

       The stronger Democratic bill is itself fairly modest. Much 
     of it is ordinary consumer protection. Patients would have to 
     be fully informed about the costs and limits of coverage, 
     including any arrangements a plan might have with physicians 
     or other providers that might give them an economic incentive 
     to cut costs. No gag orders could be imposed on physicians to 
     keep them from disclosing the range of possible treatment, 
     without regard to cost. A plan would be required to have 
     enough doctors to meet the likely needs of the enrollees. 
     Patients could not be unfairly denied access to emergency 
     care or specialists. . . .

  It goes on:

       The Republican bill professes to provide many of the same 
     protections, but the fine print often belies the claim.

  Madam President, the debate is going to be very constructive this 
week. The distinctions between the Democratic bill, which contains real 
protections, and the Republican bill, which the Washington Post refers 
to as ``mainly a shell,'' will be made clear to the American people. I 
hope very much we will step up to the challenge and pass something that 
contains some substantive protections for the people of my State. We 
will have other opportunities to debate specific amendments in the 
future.
  I see the Democratic leader is ready to speak. I yield the floor, and 
I appreciate the chance to speak.
  The PRESIDING OFFICER. Who yields time? The minority leader is 
recognized.
  Mr. DASCHLE. Madam President, I commend the distinguished Senator 
from New Mexico for his excellent statement and for his leadership on 
this issue. He has been very much a part of the effort from the very 
beginning and has lent the caucus and the Senate an extraordinary 
amount of his expertise on this issue, and we are deeply grateful to 
him.


                Amendment No. 1233 To Amendment No. 1232

(Purpose: To ensure that the protections provided for in the Patient's 
  Bill of Rights apply to all patients with private health insurance)

  Mr. DASCHLE. Madam President, we yield back the remainder of the time 
on the substitute, and I send an amendment to the desk on behalf of the 
distinguished Senator from Massachusetts, Mr. Kennedy.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The legislative clerk read as follows:

       The Senator from South Dakota [Mr. Daschle], for Mr. 
     Kennedy, for himself, Mr. Reid, Mr. Durbin, Mr. Wellstone, 
     Mr. Wyden, Mr. Reed, Mrs. Murray, Mr. Daschle, and Mr. 
     Chafee, proposes an amendment numbered 1233 to amendment No. 
     1232.

  Mr. DASCHLE. Madam President, I ask unanimous consent that the 
reading of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The text of the amendment is printed in today's Record under 
``Amendments Submitted.'')
  Mr. DASCHLE. Madam President, I yield the floor.
  The PRESIDING OFFICER. Who yields time? Does the Democratic leader 
yield time?
  Mr. DASCHLE. Madam President, I yield the remainder of the time to 
the distinguished Senator from Massachusetts for him to manage.
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
  Mr. KENNEDY. Madam President, there are several of my colleagues on 
the floor. As I understand, we have 50 minutes; is that correct?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. KENNEDY. I yield myself 7 minutes.


                         Privilege Of The Floor

  Madam President, I ask unanimous consent that David Doleski from 
Senator Wellstone's office and Steven Snortland from Senator Dorgan's 
office be granted the privilege of the floor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KENNEDY. Madam President, as we start this debate, there are a 
series of issues before us. One of the most important and most 
significant is who is covered under the two different approaches before 
the Senate. One approach has been advanced by Senator Daschle, of which 
many of us are cosponsors, and the other approach on the other side has 
been reported out of the Health, Education, Labor, and Pensions 
Committee. Senator Frist and the Republican leadership are cosponsors.
  In our proposal, we provide that virtually every individual who has 
health insurance will have the protections included in our bill. Under 
the Republican proposal, we are finding out that the total numbers 
covered are only those in what they call ERISA plans. There are 163 
million total individuals who have health insurance covered under our 
bill. The other side covers only 48 million, and excludes 113 million. 
They are only covering a third of all Americans.
  We can ask ourselves: If their proposal is so solid and makes so much 
sense, why don't they cover all Americans? We heard the principal 
advocates for the Republicans go on about what good things their 
particular proposal is going to do. Then why not cover all the people 
in the country instead of only a third?
  They will find out that under their proposed legislation, they do not 
cover anyone who receives their health care through health maintenance 
organizations. Isn't it extraordinary that this

[[Page S8222]]

whole development, the need for patient protections, is a result of 
insurance companies making medical decisions in the interest of the 
company profitability rather than the health interests of the patient? 
That is the basic reason this whole issue has developed.
  Their solution is to advance a program that does not even cover all 
Americans. I am still waiting to hear why. If their program is so 
wonderful, as has been stated in the Senate, I still wonder why they 
are not covering everyone. Can they explain how they justify to people, 
living side by side, that one will be covered and the other one will 
not be covered under the Republican plan? They certainly are not 
covering the 15 million people who are buying individual policies. 
These are generally small business men and women, farmers, and 
individuals who are buying individual policies. They are excluded under 
the Republican plan. State and local government workers are excluded, 
and the 75 million whose employer provides fully funded coverage, the 
largest category, are all excluded. Only 48 million are covered under 
the Republican plan.
  I tried to read through every explanation to understand. Then I 
started to read the proposals advanced in the House of Representatives.
  There are five different Republican House proposals. But all the 
Republican proposals in the House of Representatives cover all 
Americans. Why is it that the Republican bills in the House of 
Representatives cover all Americans and over here in the Senate the 
Republicans only cover a third of Americans? I thought there might be 
some explanation.
  The Democrats cover all Americans. When we say ``all,'' we mean all. 
When we say ``protections,'' we mean protections. That is what this 
legislation is all about. We want to make sure we will have the 
opportunity, over the course of this week, when we are talking about 
protections for the type of specialty care that a child might need--
such as a child who has cancer--that they are guaranteed they will be 
covered by the protections we have included in our bill.
  We want to ensure that all women are going to be guaranteed the 
protections we have included. We want to make sure that all of those 
with some type of physical or mental challenge are going to be 
guaranteed the protections we have included--not just a quarter, not 
just a third, not just a half, not just three-quarters but all of them.
  So I find that on the most basic and fundamental issue, the plans 
differ greatly. We are all asked: Well, look, Senator, the Republican 
proposal has emergency protections and you have emergency protections. 
Can you tell us what the differences are?
  The fact is that virtually two-thirds are excluded from the 
Republican proposal, before we even discuss the loopholes they have 
written so that their legislation does not provide adequate protections 
that have the support of the emergency room physicians.
  We heard this afternoon how the Republican bill provides protections 
for emergency room care and specialty care. The fact is that none of 
those professional groups that are dealing with children every single 
day and none of the specialists that are dealing with the most 
complicated cases are supporting their plan. All are supporting our 
plan.
  It is for this reason I would have thought we would be able to bring 
Republicans and Democrats together. Let's decide whether we really want 
to deal with the issue. Let's start off this debate on the first day, 
on Monday, and say: OK, let's go ahead and make sure whatever we are 
going to do is all inclusive in protecting the children, not only those 
covered by self-funded employer plans. I do not know how many children 
in this country know whether they are getting their health care as a 
result of a self-funded employer plan or whether it is the employer 
providing the services through insurance programs.
  I say, let's deal with children. Let's deal with all the children. 
That is what our bill does. And that, I believe, is fundamental.
  The PRESIDING OFFICER. The time has expired.
  Mr. REID. I ask the Senator from Massachusetts to yield me 10 minutes 
from the bill.
  Mr. KENNEDY. I yield that time.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. I can remember the first time I went to New York as a young 
man. My wife and I, of course, traveled the streets of New York. We 
walked, and there were a lot of fascinating things. But one of the 
things I will never forget is the people on the streets who were 
involved in shell games. I did not participate in any of them, but they 
would try to get people to come. They would move these little markers 
around. You could never win. No one ever won. None of the people they 
got to participate in these shell games ever won. I had had enough 
experience from going to carnivals as a young man not to participate in 
those games because there are certain games you can never win.

  What is happening with the majority is they have a shell game going 
on. They are here today pronouncing what is so good about their bill. 
But the fact of the matter is, it is a shell game. Because you pick it 
up, and what they talk about is never there. The important part of what 
they are talking about is never there. Pick it up, and it is gone.
  What am I talking about? The Senator from Massachusetts has talked 
about the bill of the Republicans covering only about one-fourth, about 
25 to 30 percent, of the people that our bill covers. That is part of 
the shell game. You pick it up and 75 percent of it is missing.
  We are talking about passing a real patient protection act, a bill 
that covers 161 million Americans, not 25 percent of 161 million 
Americans who receive health care through some form of managed care.
  Our bill is not a bill that omits 113 million Americans. Our bill 
ensures access to the closest emergency room without prior 
authorization and without higher costs.
  There have been lots of stories told about people wanting to go to an 
emergency room but having to check first. I participated in an event 
this afternoon where an emergency room physician talked about what is 
happening with managed care and how an emergency room physician never 
has the opportunity, under managed care, to really do what they need to 
do because of: How did that patient get there? Did they come on their 
own? Did they get prior approval?
  Our bill is not a shell game. As to emergency care, you pick up the 
shell and under it the Republicans give you nothing. Our bill ensures 
access to qualified specialists, including pediatric specialists, 
unlike the Republican bill, a bill that limits access to specialists 
and does not guarantee that children may see a pediatric specialist.
  We live in a world of specialization. When your child is sick, you 
want your child to go to someone who is a pediatric specialist. Whether 
it is a pediatric oncologist specialist, whether it is a pediatric 
orthopedic specialist, you need to be able to take your child to the 
person who can render the best care. But when you pick up this 
Republican shell where they talk about ``they get everything,'' and you 
want a pediatric specialist, it is empty; you cannot get it.
  Our bill, the minority bill, guarantees that women may designate 
their obstetrician/gynecologist as a primary care provider. Why is 
that? Because that is, in fact, the reality in America. Women go to 
their gynecologists. That person treats them when they have a cold, 
when they are sick from something dealing with whatever the cause might 
be. They look to their gynecologist as their primary care physician.
  Under our legislation, it guarantees that women may designate their 
OB/GYN as a primary care provider. But what happens under the 
Republican bill? It makes no guarantees and limits this to only a few 
select women.
  Again, you look up and you see this shell game and you see all these 
promises. You think you are going to score big. You pick up this shell, 
and there is nothing there for women that guarantees their OB/GYN as a 
primary care provider.
  The junior Senator from Wyoming came to the floor and again tried to 
move this shell around. What was his shell game? The junior Senator 
from Wyoming said that this was national health insurance--those bad 
words: national health insurance. Of course, this

[[Page S8223]]

has nothing to do with national health insurance, absolutely nothing. 
But, of course, this is part of the shell game: We want to frighten 
people; we want to frighten and confuse people, as the health insurance 
industry is doing as we speak by spending millions of dollars with 
false and misleading advertisements.
  The insurance industry, as the Senator from Massachusetts pointed 
out, opposes this legislation. Hundreds of groups support this 
legislation--hundreds of groups.
  I ask unanimous consent to have printed in the Record a partial list 
of those organizations that support this legislation.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Groups Supporting the Democratic Patients' Bill of Rights

       ABC for Health, Inc.
       Access Living.
       AIDS Action.
       AIDS Law Project of Pennsylvania.
       Alamo Breast Cancer Foundation and Coalition.
       Alcohol/Drug Council of North Carolina.
       Alliance for Lung Cancer Advocacy, Support, and Education 
     (ALCASE).
       Alliance for Rehabilitation Counseling.
       Alzheimer's Association--Greater Richmond Chapter.
       Alzheimer's Association--New York City Chapter.
       American Academy of Child and Adolescent Psychiatry.
       American Academy of Emergency Medicine.
       American Academy of Neurology (AAN).
       American Academy of Pediatrics.
       American Academy of Physical Medicine and Rehabilitation.
       American Association for Marriage and Family Therapy.
       American Association for Psychosocial Rehabilitation.
       American Association for Respiratory Care.
       American Association of Children's Residential Centers.
       American Association of Nurse Anesthetists.
       American Association of Pastoral Counselors.
       American Association of Private Practice Psychiatrists.
       American Association of University Women (AAUW).
       American Association on Mental Retardation (AAMR).
       American Autoimmune Related Diseases Association (AARDA).
       American Board of Examiners in Clinical Social Work.
       American Cancer Society.
       American Chiropractic Association.
       American College of Emergency Physicians (ACEP).
       American College of Obstetricians and Gynecologists (ACOG).
       American College of Physicians (ACP).
       American Counseling Association.
       American Federation for Medical Research.
       American Federation of Home Health Agencies.
       American Federation of Labor & Congress of Industrial 
     Organizations (AFL-CIO).
       American Federation of State, County and Municipal 
     Employees (AFSCME).
       American Federation of Teachers.
       American Gastroenterological Association.
       American Group Psychotherapy Association.
       American Heart Association.
       American Lung Association.
       American Medical Association (AMA).
       American Medical Rehabilitation Providers Association.
       American Music Therapy Association.
       American Network of Community Options and Resources.
       American Nurses Association (ANA).
       American Occupational Therapy Association.
       American Optometric Association.
       American Orthopsychiatric Association.
       American Physical Therapy Association.
       American Podiatric Medical Association.
       American Psychiatric Nurses Association.
       American Psychoanalytic Association.
       American Psychological Association (APA).
       American Public Health Association.
       American Society of Clinical Oncology.
       American Speech-Language-Hearing Association.
       American Therapeutic Recreation Association.
       Anxiety Disorders Association of America.
       The Arc.
       Arc of Washington State.
       Asian and Pacific Islander American Health Forum.
       Association for the Advancement of Psychology.
       Association for Ambulatory Behavioral Healthcare.
       Association of Behavioral Healthcare Management.
       Association of Women's Health, Obstetric and Neonatal 
     Nurses (AWHONN).
       Bazelon Center for Mental Health Law.
       Brain Injury Association.
       California Advocates for Nursing Home Reform.
       California Breast Cancer Organizations.
       Cancer Care, Inc.
       Candlelighters Childhood Cancer Foundation.
       Catholic Charities of the Southern Tier.
       Center for Patient Advocacy.
       Center for Women Policy Studies.
       Center on Disability and Health.
       Children and Adults with Attention Deficit Disorder.
       Child Welfare League of America.
       Children's Defense Fund.
       Clinical Social Work Federation.
       Coalition of Wisconsin Aging Groups.
       Colorado Ombudsman Program--The Legal Center.
       Communication Workers of America--Local 1039.
       Consortium for Citizens with Disabilities Health Task 
     Force.
       Consumer Federation of America (CFA).
       Consumers Union.
       Corporation for the Advancement of Psychiatry.
       Crater District Area Agency on Aging.
       Council of Vermont Elders.
       Dekalb Development Disabilities Council.
       Delta Center for Independent Living.
       Disabled Rights Action Committee.
       Eastern Shore Area Agency on Aging/Community Action Agency.
       Epilepsy Foundation.
       Families USA Foundation.
       Family Service America.
       Family Voices.
       Federation for Children with Special Needs.
       Florida Breast Cancer Coalition.
       Friends Committee on National Legislation.
       Friends of Cancer Research.
       Gay Men's Health Crisis.
       Gazette International Networking Institute (GINI).
       General Clinical Research Center Program Directors 
     Association.
       Genzyme.
       Glaucoma Research Foundation.
       Goddard Riverside Community Center.
       Health and Medicine Policy Research Group.
       Human Rights Campaign.
       Independent Chiropractic Physicians.
       International Association of Psychosocial Rehabilitation 
     Services.
       League of Women Voters.
       Lukemia Society of America.
       Managed Care Liability Project.
       Mary Mahoney Memorial Health Center.
       Massachusetts Association of Older Americans.
       Massachusetts Breast Cancer Coalition.
       Meals on Wheels of Lexington, Inc.
       Mental Health Association in Illinois.
       Mental Health Net.
       Minnesota Breast Cancer Coalition.
       NAACP.
       National Abortion and Reproductive Rights Action League.
       National Alliance for the Mentally Ill (NAMI).
       National Alliance of Breast Cancer Organizations.
       National Association for Rural Mental Health.
       National Association for the Advancement of Orthotics and 
     Prosthetics.
       National Association of Childrens Hospitals (NACH).
       National Association of Developmental Disabilities 
     Councils.
       National Association of Homes and Services for Children.
       National Association of Nurse Practitioners in Reproductive 
     Health.
       National Association of People With AIDS (NAPWA).
       National Association of Protection and Advocacy Systems.
       National Association of Psychiatric Treatment Centers for 
     Children.
       National Association of Public Hospitals.
       National Association of School Psychologists.
       National Association of Social Workers.
       National Black Women's Health Project.
       National Breast Cancer Coalition (NBCC).
       National Caucus and Center on Black Aged, Inc.
       National Coalition for Cancer Survivorship.
       National Community Pharmacists Association.
       National Consumers League.
       National Council for Community Behavioral Healthcare.
       National Council of Senior Citizens.
       National Hispanic Council on Aging.
       National Marfan Foundation (NMF).
       National Mental Health Association (NMHA).
       National Multiple Sclerosis Society.
       National Parent Network on Disabilities.
       National Partnership for Women & Families.
       National Patient Advocate Foundation.
       National Therapeutic Recreation Society.
       NETWORK: A National Catholic Social Justice Lobby.
       Nevada Council on Developmental Disabilities.
       Nevada Council on Independent Living.
       Nevada Forum on Disability.
       Nevada Health Care Reform Project.
       New York City Coalition Against Hunger.
       New York Immigration Coalition.
       New York State Nurses Association.
       North American Brain Tumor Coalition.
       North Carolina State AFL-CIO.
       North Dakota Public Employees Association--AFT 4660.
       Oklahomans for Improvement of Nursing Care Homes.

[[Page S8224]]

       Older Women's League (OWL).
       Ombudservice.
       Opticians Association of America.
       Oregon Advocacy Center.
       Paralyzed Veterans of America.
       Pregnancy Planning Services, Inc.
       Physicians for Reproductive Choice and Health.
       President Clinton.
       Reform Organization of Welfare (ROWEL).
       RESOLVE.
       Rhode Island Breast Cancer Coalition.
       Rockland County Senior Health Care Coalition.
       San Diego Federation of Retired Union Members (FORUM).
       San Francisco Peakers Senior Citizens.
       Service Employees International Union (SEIU).
       Service Employees International Union (SEIU)--Local 205.
       Service Employees International Union (SEIU)--Local 585, 
     AFL-CO CLC.
       South Central Connecticut Agency on Aging.
       Southern Neighborhoods Network.
       Susan G. Koman Breast Cancer Foundation.
       Tourette Syndrome Association, Inc.
       United Automobile, Aerospace and Agricultural Implement 
     Workers of America (UAW).
       United Cerebral Palsy Association.
       United Church of Christ, Office for Church in Society.
       United Senior Action of Indiana.
       University Health Professionals Union--Local 3837, CFEPE/
     AFT/AFL-CIO.
       US TOO International.
       Vermont Public Interest Research Group.
       Voice of Seniors.
       Voluntary Action Center.
       Volunteer Trustees of Not-For-Profit Hospitals.
       West Side Chapter NCSC.
       Western Kansas Association on Concerns of the Disabled.
       Women in Touch.
       Y-ME National Breast Cancer Organization.

  Mr. REID. This isn't national health insurance. This is something 
that the junior Senator from Wyoming and others would like you to think 
is. You can follow these shells. You pick one up, and, of course, again 
it is misleading. Our legislation ensures access to needed drugs and 
clinical trials. It is not a bill that imposes financial penalties for 
needed drugs. Of course, their bill does not guarantee access to 
clinical trials for cancer patients, among others.
  What does this mean? Again, not speculation but facts. We were at an 
event at 2 o'clock today, and there was a man there whose 12-year-old 
son last August got cancer. It was a rare form of cancer. During his 
chemotherapy, the managed care entity suddenly said: We don't cover 
you. What was he going to do? He wrote numerous letters and called 
numerous people. In short, by the time the managed care entity finally 
agreed to cover it and that it was certainly something which was 
necessary, and by the time his family and friends gathered together to 
help pay for this, the boy was almost dead, and he died in February, 
just a few months ago.
  Our bill ensures access to needed drugs and clinical trials, not this 
shell game where you say: Here, my 12-year-old son is sick; I have been 
told this will cover me. You pick up the shell. It is empty. There is 
nothing under there. You lose again.

  Our legislation prohibits arbitrary interference of HMO bureaucrats. 
What does that mean? It means that insurers cannot overrule doctors' 
medical decisions. What we need is a bill that reestablishes the 
patient-doctor relationship, not one that allows clerks in Minneapolis 
or Baltimore or Sacramento to make decisions for my friends, relatives, 
and constituents in the State of Nevada. We want the doctors making 
those decisions. Our legislation does that. The Republican version does 
not do that. It is a part of the shell game that shuffles these shells 
around. People think they have won, but they pick up the shell and, 
again, they have lost.
  The minority legislation prohibits gag clauses and improper financial 
incentives to withhold care. What does this mean? There are many 
organizations around the country that give incentives to keep people 
out of hospitals, incentives to keep people from having certain types 
of care rendered. Why? Because if they do that, they get bonuses.
  Our legislation also prevents HMOs from prohibiting doctors and other 
medical care specialists from telling patients what is really wrong. 
They can't be fired if they do so. Again, our legislation is not a 
shell game. It is not a shell game, as the majority legislation is a 
shell game. The majority would like you to believe that under every one 
of those shells you have a winner, but the fact of the matter is, every 
shell you pick up under the Republican version is empty; you lose 
again.
  The minority bill holds HMOs accountable when their decisions lead to 
injury or death. There have been people who have talked about how this 
bill is going to be overtaken by the lawyers. Let me give you a little 
statistic about medical malpractice cases. In the State of Nevada, 
since we have become a State, there have been fewer than 40 medical 
malpractice cases tried by a jury. We became a State in 1864.
  I say that HMOs should be treated like everyone else. I went to 
dinner in Reno a couple weeks ago with a woman who is a manager of a 
managed care entity. She said: Harry, I like your bill except for the 
lawyers. I said: Why should you be any different from anybody else in 
America? We all have to deal with lawyers. You should, too.
  This legislation will not increase costs more than the cost of a 
cheeseburger and a very small order of fries every month. We can go 
through a list of people who have indicated that that, in fact, is the 
case, contrary to what the junior Senator from Wyoming and others have 
said today.
  Madam President, I ask unanimous consent for 3 additional minutes, 
since the manager is not here. I will take that off the bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Madam President, the fact that lawyers are involved will 
make managed care entities do better work. The history of this is 
certainly adequate. In the State of Texas, as an example, where they 
have a Patients' Bill of Rights, it doesn't cover enough people, but it 
covers some people. By the way, it is a Patients' Bill of Rights that 
George W. Bush vetoed. They came back and passed another one, and he 
refused to sign that. He is going around talking, in his Presidential 
run, about what a great Patients' Bill of Rights they have in Texas. 
Everyone should understand, he vetoed the bill and refused to sign the 
second one. The fact of the matter is, the Texas experience indicates 
that it doesn't increase cost; it just makes the health care entity, 
the managed care entity, do a better job.

  Our bill holds HMOs accountable when the decisions lead to injury or 
death. This is not a bill, as the Republican bill, that maintains 
protections for HMOs that injure or kill patients. I was startled today 
to hear one of the majority talk about how their bill would reimburse 
costs for somebody who has been aggrieved, whatever the medical care 
would have been. That is what happens now under HMOs. That is why it 
makes it so bad.
  We want a bill that takes care of patients, a bill that takes care of 
patients based on doctors' decisions, not clerks' decisions. We want a 
bill that is more concerned about patients than about profits.
  I yield the floor.
  Mr. NICKLES addressed the Chair.
  The PRESIDING OFFICER. The Senator from Oklahoma is recognized.
  Mr. NICKLES. Madam President, I will speak in general on the bill, 
but I am on amendment time.
  Mr. REID. Will the Senator yield for a unanimous consent request?
  Mr. NICKLES. Surely.
  Mr. REID. On behalf of Senator Kennedy, the manager of the bill, I 
ask unanimous consent that the time I used, so there is no 
misunderstanding, be charged to the amendment and not the underlying 
bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. I express my appreciation to the Senator from Oklahoma.


                         Privilege Of The Floor

  Mr. NICKLES. Madam President, I ask unanimous consent that the list 
of staff I now send to the desk be granted the privilege of the floor 
during consideration of S. 1344, the Kennedy-Daschle health care bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The list is as follows:

                         HEALTH CARE TASK FORCE
------------------------------------------------------------------------
             Senate office                           Staffer
------------------------------------------------------------------------
Brownback.............................  Rob Wassinger
Collins...............................  Priscilla Hanley
DeWine................................  Helen Rhee
Enzi..................................  Chris Spear
                                        Raissa Geary

[[Page S8225]]

 
Frist.................................  Anne Phelps
                                        Sue Ramthun
Gramm.................................  Don Dempsey
                                        Mike Solon
Gregg.................................  Alan GIlbert
Hagel.................................  Steve Irizarry
Hutchinson............................  Kate Hull
Jeffords..............................  Paul Harrington
                                        Kim Monk
                                        Tom Valuck (fellow)
                                        Carole Vannier (fellow)
Lott..................................  Sharon Soderstrom
                                        Keith Hennessy
Nickles...............................  Stacey Hughes
                                        Meg Hauck
Mack..................................  Mark Smith
RPC/Craig.............................  Michael Cannon
Roth..................................  Kathy Means
                                        Bill Sweetnam
                                        Dede Spitznagel
Santorum..............................  Peter Stein
Sessions..............................  Libby Rolfe
------------------------------------------------------------------------

  Mr. NICKLES. Madam President, I will speak in general about the bill 
and maybe correct some statements that I believe are factually 
incorrect. I think it is important to deal with facts.
  I have heard a lot of opinions. I heard that the Republican bill that 
many of us worked together on was a shell. I am kind of offended by 
that, I mention to my colleague.
  First, let me say, when we are considering health care, we should 
make sure we don't do any damage. We should do no harm. Maybe we should 
repeat the physicians' Hippocratic oath: Do no harm.
  When I look at the proposal of Senator Kennedy, the Democrats' bill, 
I see it doing a lot of harm. If that bill was enacted, a lot of people 
would become uninsured. That is harm. As a matter of fact, it is 
estimated as many as 1.8 million, almost 2 million, people would become 
uninsured if we passed his bill. We already have 43 million uninsured 
Americans. Let's not add to it. Let's not make it worse. Unfortunately, 
I think that is what would happen.
  We shouldn't be dramatically increasing health care costs. That is 
not going to help solve the problem. Cost is a big problem. We had a 
little press conference today. We had several self-employed people who 
said: I can't afford health insurance. One said they didn't have it. 
One said they barely had it and, if the cost went way up, they would 
lose it. They would have to cancel it for themselves and their 
employees. We don't want to do that. That is doing harm. That is doing 
damage. That is doing damage, frankly, to the best health care system 
in the world. I am not saying the health care system we have in the 
country today is perfect. Does it make mistakes? You bet. Can we make 
it better? Sure we can. Let's do that.
  But I don't think we make it better by coming up with a whole laundry 
list of Federal mandates stacked on top, duplicating State mandates, 
saying: The Federal Government knows best. Yes, this is going to cost 
you a lot of money. Oh, yes, Mr. Employer, you can be sued. The 
employer saying: Thank you very much, but I don't have to provide this 
benefit in the first place and, if you are going to sue me for it, I 
will just drop it. I hope my employees take care of their health care 
needs on their own. I will give them a little money. I hope they do it.
  You and I know, in many cases they won't do it. We shouldn't do harm; 
we shouldn't do damage to the system.
  I heard my colleagues, from Massachusetts and from Nevada, say: Well, 
our bill doesn't cost much. It costs about the cost of a cheeseburger, 
maybe a cheeseburger and fries.
  Let's look at the reality. The Congressional Budget Office says the 
Kennedy bill would increase health care costs by 6.1 percent. I 
understand they may amend it to make it 4.8 percent. What people 
haven't caught onto is, that is in addition to health care inflation 
that is already in the system. The cost of health care is going up. It 
is estimated to go up 9 percent, by a national survey of plans by 
William Mercer. So health care costs are going up 8 or 9 percent. You 
add another 5 or 6 percent on top of it, that means if we pass the 
Kennedy bill, health care costs will be up by 15 percent. What if it is 
14 percent? I think that is too high. I think if health care costs go 
up that percentage, you are going to have a lot more people uninsured.
  Then what about: Well, it only costs as much as a Big Mac. I have the 
greatest respect for Senator Kennedy, but I do not know how good his 
math is. Let me use some people who are pretty good at math, the 
Congressional Budget Office. They are not Democrats. They are not 
Republicans. They're not people who say: Let's come up with some bad 
information on the Kennedy bill.
  They said, Senate bill 6, the Kennedy Patients' Bill of Rights, will 
increase health care premiums by 6.1 percent, resulting in an $8 
billion reduction in Social Security payroll taxes over the next 10 
years, an $8 billion reduction in Social Security payroll taxes. The 
total reduction in payroll over that period of time is $64 billion over 
the next 10 years. Now, $64 billion in lost wages is a lot more than a 
Big Mac. As a matter of fact, I think it equates to $355 more per 
family per year. That is not a Big Mac. That is about $30 a month. That 
is not $3 a month, or $2 a month, as Senator Kennedy alluded to. That 
is about $30 a month. That is a big hit. That means that is $30 less 
that an employer will have to compensate his employees. Where does that 
money come from? That is real money. According to CBO, $64 billion over 
the next 10 years is the cost of the Kennedy bill. Where does that come 
from? From lost wages of employees. A whole lot of employees say: Thank 
you very much, Senator Kennedy, but I want the money. Thank you, but I 
want to keep my health insurance. Don't price it out.

  So I think it is funny, in a way, that I hear it will only cost $2 a 
month. That is not accurate. CBO says it would cost $355 per year per 
family. So I mention that, and I think it is important that we use 
facts. I think everybody is entitled to their own opinion, but they are 
not entitled to their own facts. The fact is that the Kennedy bill 
would cost families hundreds of dollars per year and would increase the 
number of uninsured in the millions.
  Right now, there are 43 million uninsured Americans. That equals the 
population of 9 States--the population of the States that I have in 
yellow on the chart. If we pass the Kennedy bill, we can add 3 more 
States, North Dakota, South Dakota, and Wyoming. The entire population 
of those States would be uninsured. We should not be doing that. 
Democrats and Republicans, from the outset, should not do any harm and 
we should not increase the number of uninsured.
  Another thing we should not do is increase the complexity of plans. 
My friend and colleague, Senator Daschle sent that to the desk for 
Senator Kennedy. He said we need to expand the scope, that the 
Republican plan only covers 48 million Americans, and we cover 161 
million Americans, and those other 100 million Americans have no 
protections whatsoever.
  Well, this chart, compliments of Senator Gregg from New Hampshire, 
shows you the complexity of the Kennedy plan. Now, this is very 
graphic, and I am sure anybody looking at it closely would say that 
looks like a mess. And it is, because what it does it, it says: States, 
we don't care what you have done. We know better. The Federal 
Government knows best.
  Again, I have great affection and admiration for my colleague, 
Senator Kennedy. He has always thought the Federal Government knows 
best when it comes to health care. He has always supported national 
health care and thought the Federal Government should write the plan 
and insist on the benefits. We know best, so States get out of the way. 
The Federal Government will tell you how to run your health care 
business. We don't care if you have had experience over the last 50 
years in administering insurance, health care, having insurance 
commissioners, and having quality inspectors. We don't care if you have 
that. We know better. The Federal Government, HCFA, Health Care Finance 
Administration, knows better and should be making these decisions.
  Under the Kennedy bill, we are going to overlay on top of all the 
State regulations a Federal-Government-knows-best plan. We are going to 
dictate that you have all these things. This little chart kind of shows 
the complexity of it. Health care is fairly complex anyway with State 
administrations. But this says we are going to overlay, on top of what 
the States do, complex Federal mandates. States, you must do as the 
Federal Government decided.
  What if there is competition? What if the State has an emergency room 
provision for their State-regulated plans? We are going to say: We are 
sorry, but we know better, so you have to comply

[[Page S8226]]

with ours. The State says: We think ours is better. But we are going to 
have to have a Government bureaucrat who knows best. Senator Kennedy 
knows best, HCFA know best, the Government knows best.

  That is the problem with the Kennedy bill. Unfortunately, in many 
cases, the Government doesn't know best. There are lots and lots of 
State mandates, and I pulled out a few on this chart. Forty-two States 
have a Bill of Rights. My colleague from Nevada said the Texas Governor 
vetoed a Bill of Rights. I see on the list that Texas has a Bill of 
Rights. I happen to see that Texas has a total of 42 mandates. Probably 
many of them--the Senator from Texas says it may be too many. It is 
probably increasing the cost of health care, but the State of Texas is 
doing it.
  Maybe we are the source of all wisdom. I don't know what the State of 
Texas has, but is it really in our prerogative and our right to say: 
Texas, you don't know what you are doing; we know what is best. So 
whatever you have in your mandates, we are going to mandate something 
more, something more expensive. We are going to dictate to you. I think 
that is a mistake.
  There is a basic difference in philosophy between Senator Kennedy and 
Dr. Frist, who will be here shortly to discuss this. I might mention, I 
think the plan we proposed, as far as scope is concerned--we said, 
let's regulate the unregulated and protect the unprotected. There were 
a lot of plans that aren't covered by State insurance, and we said 
those plans should have some basic protections, so we put them in. 
Those plans weren't covered by the State mandates. That is the reason 
we put them in there. My Democrat colleagues said they are unprotected, 
out of luck, as if the States have no role whatsoever. The States don't 
know what they are doing. HCFA knows better. HCFA is not a cure-all for 
health care.
  Here is an example. On a bill that we passed last year, I have a 
couple comments. This was in a bill we passed:

       HCFA, as a regulatory authority to enforce consumer 
     protections, stands by the Health Insurance Portability and 
     Accounting Act of 1996. In States that failed to enact these 
     provisions, according to the General Accounting Office, HCFA 
     admits that it has ``pursued a Band-Aid or minimalist 
     approach'' to enforcing these consumer protections. The 
     General Accounting Office also found that HCFA lacks 
     ``appropriate experience'' in regulating private health 
     insurance.

  So GAO said HCFA is not doing a very good job. The Kennedy bill says 
turn it all over to HCFA. We don't think the States are good enough. We 
are going to turn it over to HCFA and let them do it better. GAO also 
said that HCFA is doing a crummy job. They should not be trying to 
regulate insurance throughout the country. They have a big job. What 
about the health insurance portability bill, the Kennedy-Kassebaum 
bill? People have been bragging on it. It is interesting to find out 
that the State of Massachusetts has not yet complied. Five States have 
not complied. I doubt that that means the State of Massachusetts 
doesn't care about insurance portability. My guess is that it is 
probably just as portable in Massachusetts as it is in other States. 
But they have not met congressional criteria. Therefore, HCFA is 
supposed to administer their plans. Guess what? They are not doing it. 
They have not done it. I don't want them to do it; I will be frank. 
Even though that is a law we have already passed, I don't think Federal 
regulation of health care in Massachusetts is going to make it any 
better. As a matter of fact, it might make it worse. I think that might 
be a mistake.
  Look at the number of health care mandates on this chart. My State of 
Oklahoma has 26. The State of Texas has 42. Florida has 44. States have 
an average, I think, of 30-some or 40. Again, is it really necessary 
for us to come in and say: States, thank you very much, we are sure you 
are well-intended, but we know better. We have decided this, and we 
have had hearings. Our emergency room provision has to be better than 
yours. Our access to specialists has to be better than yours. We don't 
know what yours is, but we know ours is better. A colleague showed 
pictures and said: Look at this child; he was denied the health care. 
The plan said it was not medically necessary; therefore, the child 
didn't get the health care. So we are going to change all the laws of 
all the States because somebody finds some horror stories.
  I have said in the past that there have been mistakes. There always 
will be. There will be some mistakes. We have to decide what is the 
best way to solve the problem. Is the solution to the problem coming up 
with more Government mandates--a Federal Government takeover of health 
care, which is really, in effect, what the Kennedy Patients' Bill of 
Rights is. Is that the solution? Or will it make it worse? Look at 
other countries that have really tried socialized medicine, government-
controlled medicine, government dictates from A to Z. Is their health 
care better or worse than in the United States? It is worse. It is much 
worse. All you need for evidence of that is people in their states 
continue to come to the United States for quality health care, 
including their leaders, and including their top officials. They want 
to have health care in the United States because we have the best 
quality health care system in the world.

  We need to make sure that we do no harm to that system. We absolutely 
need to make sure that if we can make improvements on the system, let's 
do so, but let's not make it worse.
  Let's not pass this government-knows-best, one-size-fits-all, 
Washington, DC, HCFA, you are going to run it, and that we have 
confidence in the government bureaucrats that we are going to hire, and 
solve all the problems.
  Mr. GRAMM. Will the Senator yield before he gets off this point?
  Mr. NICKLES. I am happy to yield to my friend from Texas.
  Mr. GRAMM. This is very important.
  Senator Kennedy keeps standing up and really setting up the straw man 
and knocking him down, it seems to me.
  I want to pose this as a question.
  He is saying this bill covers 160 million people, whereas our bill 
covers only 48 million people.
  But isn't it true that under our bill we cover those that are in 
self-funded plans where the Federal Government has jurisdiction and 
where the States don't have the freedom to legislate patients' rights? 
So we deal with the Federal jurisdiction and allow the individual 
States to set up their own program. But Senator Kennedy wants to do the 
same thing that he did in the Clinton-Kennedy health bill of 1993, and 
that is to have the Federal Government set mandates even though 43 
States have passed their own laws.
  Is that not the distinction we are talking about? Senator Kennedy 
believes that only he knows anything about this and that the State 
legislature in Texas does not know anything about health care and 
doesn't care anything about Texas. But Senator Kennedy knows about it. 
In fact, he helped President Clinton do the 1993 bill, which would have 
put everybody into a health care collective run by the Federal 
Government--one big HMO very much similar to and with all the 
compassion of the IRS. But now he says that States aren't competent, 
even though 43 of them have passed patients' bills of rights. He is 
trying to preempt those States, whereas I understand our bill simply 
goes to the people who can't, because of Federal law, be covered by 
State patients' rights.
  Is that correct?
  Mr. NICKLES. That is correct. I appreciate my colleague making that 
distinction.
  I have a list of all of the mandates that the State of Texas has. I 
have a list that says 42 States have a State bill of rights.
  I might say that those States might have a more far-reaching bill of 
rights than the proposal that Senator Kennedy offers. They may; I don't 
know. But I happen to think they are probably a lot closer to the 
people in that State. I happen to think if there are complaints, they 
are more likely to be resolved favorably by the State regulators than 
they would be by bureaucrats in HCFA that have no idea of how to 
regulate health care plans.
  That quote that I just read from GAO said that HCFA pursued a Band-
Aid or minimus approach to enforcing consumer protections, and that 
HCFA lacks appropriate experience in regulating private health 
insurance.
  The GAO has already studied HCFA's results, and they have failed. Yet 
Senator Kennedy's bill says to States: We want HCFA to regulate their 
insurance.

[[Page S8227]]

  I just disagree with that. I disagree with that very strongly.
  When I see the pictures of the health care catastrophes where 
somebody was denied care, or somebody didn't get care, I am 
very sympathetic to the families. But I don't think they are going to 
get more protection by turning it over to the Federal Government. I 
think, frankly, they get less.

  Mr. GRAMM. If the Senator will yield further, does the Senator 
believe that HCFA cares more about the people of Oklahoma than the 
State representatives--the State senator and the Governor--who may not 
know the Oklahoma needs the way Senator Kennedy and HCFA know them?
  Mr. NICKLES. I will answer the Senator's question. No, I don't. I 
don't think HCFA knows the State of Oklahoma. I think HCFA is an 
organization that has a lot of responsibilities, and most of which are 
not doing a very good job--most of which haven't done a very good job, 
frankly, regulating Medicare. They have caused a lot of problems, as 
the Senator from Maine can attest to, whether you are talking about 
home health care, or whether you are talking about information to 
seniors. I know for a fact they haven't given information to seniors 
which was mandated by law under the Medicare changes in 1997.
  I am looking at HCFA. I am sure there are some very good quality 
people who are very concerned about health care in general. But I don't 
want to turn over all insurance regulation to them, because GAO says 
they don't have appropriate experience. Frankly, I don't think they can 
do it as well. I know they shouldn't be doing it. I think that is a 
responsibility that can and should be left to the States. The States 
may make mistakes. Individuals may make mistakes. I want to make sure 
that I point this out before we see--I am sure--dozens more charts of 
somebody who was denied care.
  Ms. COLLINS. Mr. President, will the Senator yield for a question?
  Mr. NICKLES. Let me finish this point. I haven't made this point just 
yet. It is important.
  We will have countless charts showing somebody who needs a cleft 
pallet replaced, or somebody who has lost an arm by mistake, or 
somebody was not treated. Obviously, any lay person would say, Why 
didn't that person get health care?
  If you pass our plan, we were going to see them and make sure they 
get health care.
  The distinction that I want to make is that the bill that we have 
before us on the Republican proposal is that every health care plan in 
America has an internal appeal done by a doctor. The internal appeal is 
done by a doctor. It is done by a physician. If for some reason that 
physician still determines that it wasn't medical necessary, that 
physician can appeal it to an outside, independent expert to make the 
determination of whether or not it was medically necessary, or whether 
or not the treatment should go forward.
  Hopefully that would solve the pictures, or the horror stores that we 
have seen.
  It wouldn't be decided by politicians. It would be decided by an 
independent expert in that field who has no financial incentive 
whatsoever and no connection to the health insurance industry--as I 
heard one of my colleagues say, Oh. Yes. They are bought and paid for. 
That is not correct.
  What we are offering instead of a lot of litigation and the 
probability that people will be dropping plans like crazy is the chance 
for people who need health care to get. If they are denied health care 
coverage, they get an appeal. If their life is threatened, or if it is 
dangerous, they can get it immediately, and they can get it done by an 
independent review board. So they get the health care they need--not 
get a lot of litigation, and not in the process uninsured millions of 
Americans.
  Ms. COLLINS. Will the Senator yield for a question?
  Mr. NICKLES. Sure.
  Ms. COLLINS. Will the Senator agree that it is absolutely 
irresponsible to be proposing a vast expansion of HCFA's authority in 
regulating the private insurance market given HCFA's record, which 
includes missing 25 percent of the implementation deadlines in the 
balanced budget amendment of 1997; of taking 10 years to implement a 
1987 law establishing nursing home standards; of yet to have updated 
1985 fire safety standards for hospitals; when it is utilizing 1976 
health and safety standards for the treatment of end-stage kidney 
disease; when it is shown that it has been unable to handle the 
responsibilities that Congress gave it under the Health Insurance 
Portability and Accountability Act?

  Is that part of the Senator's concern about taking away the authority 
from State governments that are doing an excellent job in providing 
patient protections, and instead relying on the Federal Government and 
the agency of HCFA to do that job?
  Mr. NICKLES. I certain concur with my colleague from Maine that 
turning the responsibility over to HCFA won't make any improvement. It 
will make it worse.
  I might qualify part of the Senator's statement. I am not sure that 
States are doing an excellent job in every area. I think they will do a 
much better job than they would be if it is turned it over to the 
Federal Government. I think they would be much closer to fixing the 
problem, and they could fix the problem of the absence of quality. I 
think they can fix that much, much better than we can by dictating it 
from Washington, DC.
  Ms. COLLINS. If the Senator will yield on one further point for a 
question, would the Senator agree that the health committee legislation 
is an attempt to protect the unprotected consumers, to reach out to 
those health care consumers that the States are prohibited from 
protecting, and that, indeed, the assertions we are hearing from 
Senator Kennedy, our colleague, and others, and that we are leaving 
more than 100 million Americans completely unprotected is absolutely 
false because they are protected under State laws that the States 
enacted without any prompt from Washington, without any encouragement 
from Washington, and in fact the States are far ahead of Washington in 
this debate?
  Mr. NICKLES. To answer my colleague from Maine, the Senator is 
exactly right--although I say we protect the unprotected. Even in the 
State-regulated plans, we make sure all those plans have an appeals 
process.
  ERISA, which is a national law that does deal with fiduciary 
standards, deals with reporting standards. We make sure there is also 
an appeals process that covers 124 million people. Maybe our colleagues 
on the other side forget that. That is a basic process which we think 
is much better than saying, let's go to court; you were denied 
coverage, let's go to court and sue. It may be 3 or 4 years and the 
plaintiff may eventually get something--or the trial lawyer may get 
most of the money. We say, instead of going that way, let's go through 
an appeals process. We formulate an excellent internal and external 
appeals process for 124 million Americans, broad based, for any 
employer-based plan.
  That is a fundamental asset in our plan that will improve quality 
health care throughout the country.
  Ms. COLLINS. I thank the Senator. I certainly agree with his 
analysis.
  Mr. NICKLES. I yield the floor.
  Mr. KENNEDY. Mr. President, how much time do we have?
  The PRESIDING OFFICER (Mr. Hutchinson). The Democrats have half an 
hour on the amendment.
  Mr. KENNEDY. I yield 10 minutes to the Senator from Illinois.
  Mr. DURBIN. There was a historic event that just occurred on the 
floor of the Senate. Those who look through the Congressional Record 
are going to find something truly amazing has just occurred. This 
debate on health insurance reform started at 1:10 p.m. It wasn't until 
3:59 p.m., almost 3 hours later, that the first Republican Senator 
referred to our amendment as ``socialized'' medicine. Almost 3 hours 
passed on the Senate floor before the Republicans turned to that old, 
beat up shibboleth--socialized medicine. That may show there has been 
some progress. In years gone by, that would have been raised in the 
first 5 minutes.
  However, I think it is important my friends on the Republican side of 
the aisle, who were supporting the approach favored by the insurance 
industry, stop and consider for a moment that the world has changed 
dramatically since we used to simplify debate into terms of socialized 
medicine and the medical practice that most Americans want.

[[Page S8228]]

  I say to Senators on the floor for the Republican side, do the 
Senators not consider it odd, if State regulation--which you are 
lauding--is so effective, that the American Medical Association is 
suggesting they may have to unionize across America to deal with these 
health insurance companies? Isn't it strange, if State regulation and 
State bills of right for patients are so effective, that over 200 
medical organizations and others support the Democratic approach for a 
national standard of protection for all American citizens? If the 
States are doing such a great job protecting so many people, why are so 
many medical professionals unhappy? Why are so many families across 
America calling our office, writing letters, telling these horror 
stories which we have recounted on the floor of the Senate and will 
recount during the course of this week?
  There may not be a more important debate on the floor of the Senate 
this year for America's families. We are going to decide this week 
whether or not you can count on your health insurance. A lot of people 
across America can't count on it. When it comes down to the tough time, 
a 12-year-old boy with cancer, as Mr. and Mrs. Ray Cerniglia discussed 
this afternoon, they had to fight their HMO. A couple, facing the 
tragedy of a 12-year-old with a rare, dangerous cancer, summons the 
courage to deal with it. They go for the best medical help they can 
find. That isn't enough. Now they have to worry about fighting the 
insurance company.
  The Republican approach is: So what. That's business. That is the way 
things are.
  We on this side of the aisle disagree. We believe, along with the 
medical professionals in America, that American families deserve 
better. The Republican approach is an approach supported by one group: 
the insurance industry. The insurance industry is spending millions of 
dollars on television ads distorting what this debate is all about.
  I heard my Republican colleagues talk about States rights; we should 
leave it to the States to decide whether or not America's families 
should have good health insurance protection.
  Take a look at what the States have already done:
  Twelve States haven't done a thing about access to emergency 
services. If you have a serious accident in your backyard, you can take 
that little boy who fell out of the tree and broke his arm to the 
nearest emergency room and not fumble around looking at your insurance 
policy, wondering if you will be covered.
  Thirty-one States have not enacted laws for independent appeals. If 
an insurance company denies coverage, you have an opportunity for an 
independent appeal. The Republican approach is an in-house appeal by 
the insurance company.
  Thirty-eight States have not protected families that want to make 
certain they have access to the right medical specialists. But the 
Republican bill is one that doesn't guarantee that right to literally 
over 100 million Americans.
  The list goes on and on.
  Many of the Republicans who oppose this plan to protect America's 
families and their health insurance argue ``States rights.'' It is an 
old argument.
  Senator Kennedy, Senator Daschle, and others have said: Yes, if you 
bring these new protections into law, as we would like to have for 
every American regardless of where they live, the cost of health 
insurance will go up--$2 a month.
  I see crocodile tears on the floor of the Senate as they bemoan the 
increased costs of health insurance policies if we pass our bill--$2 a 
month. Isn't it worth $2 a month to have access to a specialist when 
you need it? Isn't it worth $2 a month to know your doctor is giving 
you the best medical advice and his decision is not being overridden by 
some health insurance clerk? I think it is worth that and more.
  They on the other side argue that our approach is too much 
government. It isn't empowering government. We are empowering families 
across America to have negotiable rights with the insurance companies, 
that they can stand up and say these are our rights, this is for what 
we stand.
  This isn't a right for government. It is a right for families--
families in the most precarious situations in their lives, facing the 
most serious illnesses. That is what we are doing here. We are 
empowering families and individuals to stand up to these health 
insurance companies.
  We have seen from the letters--I have seen them from Illinois; every 
Senator has--how helpless people feel when they have someone in their 
family who is near death and they are sitting there fighting with some 
faceless clerk at an insurance company, begging for the care their 
doctor says their little boy or their little girl needs.
  We give these families power with this Patients' Bill of Rights. Why 
the Republicans oppose this, I don't know. I can understand why the 
insurance industry opposes it. They have a pretty good thing going on. 
They make the decisions and they can't even be sued when they are 
wrong. You can't even take them to court.
  I had an interview the other day in Chicago. One of the reporters 
afterwards said: Let me get this straight. We can't sue these health 
insurance companies when they make the wrong decision? I said: That is 
right. It is the only business in America that can't be held 
accountable for its wrongdoing.
  Think about their wrongdoing. It is a matter of life and death. A 
health insurance company denies a basic treatment and someone can die 
as a result and they wouldn't be held accountable.
  The thing that troubles me, too, is the Republicans leave so many 
people behind. What they call ``our Patients' Bill of Rights'' is an 
empty promise. Mr. President, 113 million Americans without health 
insurance--no protection in the Republican bill; no protection in a 
bill supported by the insurance industry.
  Look what it means in some of the States of the Senators who have 
been on the floor today. I say to the Senator from Oklahoma, 1,574,000 
people in Oklahoma are not protected by the Republican bill; 79 percent 
of privately insured are not protected under the Republican plan. Who 
are these people? They are farmers. They are self-employed people, 
wheat growers in Oklahoma.
  Look at the State of Maine, the potato growers. Farmers there, 
557,000 of them, are not protected by the Republican bill; 70 percent 
of the privately insured are not protected by the Republican 
bill. State of Texas: We have heard a lot about big government there, 
haven't we? Over 6 million residents of Texas are not protected by the 
Republican bill, 59 percent of them.

  Yes, it is true. There is a State Bill of Rights in Texas. Governor 
George W. Bush vetoed it, and it was overridden by the State 
legislature. It is on the books. But basically we say everybody in 
America--Texas, Illinois, you name it--deserves the same kind of 
protection. If the Republicans had their way, in my home State of 
Illinois, almost 5 million people would not be protected, would not 
receive the benefit of the reforms we are talking about in health 
insurance; 59 percent of those privately insured not protected by the 
Republican plan.
  Who are those folks? Let me show you a picture of some of them. This 
is my home State, farmers left unprotected by the Republican 
``Patients' Bill of Wrongs.'' This is a gentleman I know by the name of 
Tom Logsdon. His 24-year-old daughter was diagnosed with breast cancer. 
She has gone through a lot. The Republicans would not protect her, 
would not protect her family because they are self-employed people. 
They are farmers. They do not believe there should be this kind of 
protection for those folks. I disagree. I think these families and 
families across America deserve the same continuity of care, the same 
protection. I think, frankly, when you look at the choice in this bill, 
you can understand why the insurance companies support the Republican 
bill and oppose the Democratic bill.
  Here is the only way we are going to get this bill passed. We have to 
hope that five or six Republican Senators will break ranks and decide 
to join us in a bipartisan effort to really provide coverage and 
protection for people across America. If that does not happen, if this 
breaks down along partisan lines, we will spend a week in debate and 
the American people will say: What happened? Nothing will have 
happened. I hope before this debate is concluded we have that 
bipartisan support.

[[Page S8229]]

  I yield the remainder of my time.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Nevada.
  Mr. REID. On behalf of Senator Kennedy, I yield the Senator from 
North Dakota 5 minutes.
  The PRESIDING OFFICER. The Senator from North Dakota is recognized 
for 5 minutes.
  Mr. DORGAN. Mr. President, I have sat and listened quietly and 
patiently to the debate over this amendment. I was thinking to myself 
that, if ever there were an Olympic sport for sidestepping, I surely 
have seen some gold medal winners this afternoon. The issue in this 
amendment is, whom does this piece of legislation protect? Whom does 
the Patients' Bill of Rights protect?
  Some people view this debate as a debate between a bunch of wind 
generators in blue suits, and they do not know whom to believe. So here 
is an editorial from USA Today--not from Republicans, not from 
Democrats. The headline of this USA Today editorial reads: ``100 
Million Reasons GOP's Health Plan Fails. That's How Many People 
Proposal Will Leave Unprotected.'' Let me read what it says:

       Judging from the health insurance reform package announced 
     this week by Senate Republicans, at least the title is 
     correct. The proposal is called the Patients' Bill of Rights. 
     If you are waiting for this perfunctory plan to protect you, 
     you'll need to be patient indeed, many of the plan's key 
     protections are restricted to the 51 million Americans who 
     get their insurance through self-insured employer-sponsored 
     plans subject to direct Federal regulation. But another 100 
     million or so whose health plans are subject to state 
     regulation are excluded.

  Again, USA Today says this plan is an empty shell. This plan does not 
match the needs the American people ought to expect will be met.
  I have heard debate this afternoon I would have expected 100 years 
ago in this Chamber. Back in the years when suspenders and spittoons 
adorned this Chamber, you would have heard exactly the same debate on 
every issue. Meat inspection? Let the States do it. The Federal 
Government should not be involved. Pollution control? Let the States do 
it. Nursing home regulation? Let the States do it. Minimum wage? The 
Federal Government should not be involved. That is a debate a century 
old, and it is old and tired.
  The question here is, What kind of legislation are we going to pass 
that protects American families? Are we going to pass a bill that 
includes the 100 million people their side leaves out? You were told to 
be careful of stories about children who tug at your heart because 
somehow that is not reflective of the whole issue. Jimmy, here, is 
never going to stroke his mother's face, may never be able to shoot a 
basket. He has no arms and no legs. Why? Because in the middle of the 
night when 6-month-old Jimmy was desperately ill, his dad had to drive 
past the first hospital, drive past the second hospital, drive past the 
third hospital, in order to get to the hospital they approved for this 
little boy to get emergency treatment. As a result, he lost his hands 
and his feet. Our opponents bill does not provide a guarantee that this 
young boy would have gotten emergency treatment at the first, second, 
or third hospital. No such guarantee exists in their plan. If it did, 
it would not apply to 100 million Americans.
  They say don't let these stories affect you. That is what this is 
about. It is about patient care. It is about real people. It is about 
Jimmy, it is about Ethan, it is about the people I have talked about on 
the floor of the Senate.
  Let me conclude just by pointing out the differences in titles. They 
brought a bill to the floor of the Senate with the title the Patients' 
Bill of Rights. That is the same name as the piece of legislation we 
authored. Ours contains real protections; theirs does not.
  Abe Lincoln was debating Douglas, and he could not get Douglas to 
understand his point. Finally he said to Douglas: Let me ask it this 
way. He said:

       Tell me, how many legs does a horse have?

  And Douglas said,

       Four, of course.

  Abe said,

       Now if a horse's tail were called a leg, how many legs 
     would a horse have?

  And Douglas said,

       Five.

  And Abe Lincoln said,

       No, that's where you are wrong. Simply calling a tail a leg 
     doesn't make it a leg at all.

  You can call this proposal that has been offered by the majority 
party whatever you like, but it does not make it a patients' protection 
act. As USA Today says in its editorial, if you think you are going to 
get protection from the Republican patient protection plan, you had 
better be patient, because it leaves out 100 million Americans. There 
is a lot of misinformation that has been given on the floor of the 
Senate today and a lot of sidestepping on the important issues. But I 
say when this debate is over, do not, as the Senator from Oklahoma 
suggests, dismiss the concerns and stories that are raised about 
individual people. After all, the only question really important in 
this debate is how it affects the individual patients, the men, women, 
and children who seek treatment in our health care system.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Several Senators addressed the Chair.
  Mr. NICKLES. I yield to the Senator from Maine such time as she 
desires.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Mr. President, we have heard it again. Once again we 
have heard the myth that is being perpetrated on the other side of the 
aisle that the bill approved by the health committee leaves millions of 
Americans unprotected, completely unprotected. You heard it again. That 
is simply not true. These Americans live in States that have enacted 
patient protections very similar to the ones included in the health 
committee bill to apply to those plans where people truly are 
unprotected. Those are the ERISA plans, the self-funded plans that the 
States cannot regulate because of a Federal preemption.
  According to the CBO, 80 percent of the U.S. population lives in 
States with laws guaranteeing access to emergency care; 77 percent of 
Americans work in organizations offering employee health plans with a 
point-of-service option. The Kennedy mandates, with direct access to 
OB/GYN, already exist in States containing almost 70 percent of the 
population. We know that 47 States have enacted laws to prohibit gag 
clauses, something we all agree need to be prohibited. Why do we need 
to duplicate and preempt the good work of the States? Why not build on 
the good work of the States?
  The State of Maine has enacted 35 mandates--35 patient protections. 
Now, who is to say the emergency access protection of the State of 
Maine is somehow inferior to the one in Senator Kennedy's bill, just 
because it differs from Senator Kennedy's bill? Who is going to make 
these determinations? Are they going to end up in court? Is HCFA, by 
the Federal Government, by fiat, going to decide that Maine's was not 
quite right, that it should be knocked out, replaced by the Kennedy 
standard, because Washington knows best? Washington is the source of 
all wisdom in this?
  The opponents of our legislation contend that the Federal Government 
should preempt the States' patient protection laws unless they are 
identical to the ones in Senator Kennedy's legislation. However, the 
States' approaches to the same types of patient protection can vary 
widely.
  States may have emergency requirements but not the exact same 
standards as in the Kennedy bill. That is the case with the State of 
Maine.
  Moreover, what if the State has made an affirmative decision not to 
act in one of these areas because the market in their State does not 
require it and they are concerned about costs? What if the bill has 
failed in the legislature or has been vetoed by the Governor? Let me 
give a recent example from my home State of Maine.
  Maine law requires insurance plans to allow direct access to OB/GYN 
care without a referral from a primary care physician but only for an 
annual visit. Maine's law also requires plans to allow OB/GYNs to serve 
as the primary care provider.
  Our State legislature recently decided that those current laws, which 
Maine was the head of the Nation in enacting, provided sufficient 
access, that they corrected a problem in the

[[Page S8230]]

marketplace. The legislature rejected a bill that would have expanded 
the direct access provision primarily out of concern that it would 
drive up premium costs.
  I note for my colleague from Massachusetts, this decision was made by 
a legislature controlled by the Democratic Party. This was not some 
Republican legislature that made this decision, but rather the 
legislators in Maine were satisfied with the current law and decided 
not to expand it because they were concerned about the additional costs 
that would be incurred.
  In cases such as this, the Kennedy proposal for a one-size-fits-all 
model would just simply preempt the decision made by the State 
legislature. That is why the National Association of Insurance 
Commissioners supports the approach that was taken in the legislation 
reported by the Health Committee.
  In a March letter to the committee, the NAIC pointed out:

       The states have already adopted statutory and regulatory 
     protections for consumers in fully insured plans and have 
     tailored these protections to fit the needs of their states' 
     consumers and health care marketplaces. In addition, many 
     states are supplementing their existing protections during 
     the current legislative session based upon particular 
     circumstances within their own states. We do not want states 
     to be preempted by Congressional . . . actions.

  The letter continues:

       It is our belief that states should and will continue the 
     efforts to develop creative, flexible, market-sensitive 
     protections for health care consumers in fully insured plans, 
     and Congress should focus attention on those consumers who 
     have no protections in self-funded ERISA plans.

  That is exactly what our plan would do. I ask unanimous consent that 
the letter from the National Association of Insurance Commissioners be 
printed in the Record at the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See Exhibit 1.)
  Ms. COLLINS. Mr. President, current Federal law prohibits the States 
from regulating the self-funded, employer-sponsored health plans that 
cover 48 million Americans. Our legislation, which is intended to 
protect the unprotected, to reach those consumers in self-funded plans 
that the States are prohibited from regulating, would extend many of 
the same rights and protections to the Americans covered by these plans 
that are already enjoyed by Americans who are under the State-regulated 
plans.
  The States have been ahead of the Federal Government in this area. 
They have acted over the past 10 years to correct problems in the 
managed care marketplace by enacting specific consumer protections. Our 
bill extends those kinds of protections to those plans that the States 
cannot reach. We go beyond that, though, when it comes to the 
procedural protections, the all-important internal and external appeal 
procedures that are in our legislation. We provide that to all plans 
across the board. Again, another myth perpetuated by those on the other 
side of the aisle that somehow our appeals process does not cover these 
Americans.
  We have produced a good bill. It builds on, but does not preempt, the 
good work of the States. It provides protections to those 48 million 
Americans whom the States cannot protect. It balances carefully the 
need to have reforms that ensure that essential care is provided, that 
no one is denied care that an HMO has promised. It holds HMOs 
accountable for their decisions. It puts decisions in the hands of 
physicians, not insurance company executives or accountants and not 
trial lawyers. It carefully strikes a balance of providing important 
consumer protections without driving up the costs, as the Kennedy bill 
would do, in a way that would jeopardize, that would undermine health 
insurance coverage for millions of Americans.
  Mr. President, I reserve the remainder of our time.

                               Exhibit 1

                                           National Association of


                                      Insurance Commissioners,

                                   Washington, DC, March 16, 1999.
     Hon. James Jeffords,
     Chair, Senate Health, Education, Labor, and Pensions 
         Committee, Washington, DC.
       Dear Senator Jeffords: We are writing this letter in 
     response to some concerns raised by your office regarding the 
     testimony of the National Association of Insurance 
     Commissioners (NAIC) Special Committee on Health Insurance 
     (``Special Committee'') before the Senate Health, Education, 
     Labor, and Pensions (HELP) Committee on March 11, 1999. The 
     hearing focused on the rule of the states and the federal 
     government in enacting patient protections for consumers in 
     group health plans. Specifically, concerns have been raised 
     over the Special Committee's testimony and whether the 
     Special Committee now supports a federal floor.
       We understand why the members of the Senate HELP Committee 
     would get the impression from our oral testimony that the 
     members of the Special Committee are supportive of a federal 
     floor. During our testimony we may have implied that the 
     members of the Special Committee would accept a federal floor 
     in any federal patient protection legislation. The members of 
     the Special Committee have not made a determination that a 
     federal floor is acceptable. It is our belief that states 
     should and will continue the efforts to develop creative, 
     flexible, market-sensitive protections for health consumers 
     in fully insured plans, and Congress should focus attention 
     on those consumers who have no protections in self-funded 
     ERISA plans.
       Rather, the members of the Special Committee are interested 
     in strengthening the distinction between self-funded ERISA 
     plans, which are clearly outside the purview of state law, 
     and fully insured plans. State insurance departments want to 
     ensure that citizens in their states who are covered by fully 
     insured ERISA plans can still rely on the state to address 
     their questions, complaints and grievances and can still 
     expect the same level of protections already established by 
     the states. The states have already adopted statutory and 
     regulatory protections for consumers in fully insured plans 
     and have tailored these protections to fit the needs of their 
     states' consumers and health care marketplaces. In addition, 
     many states are supplementing their existing protections 
     during the current legislative session based upon particular 
     circumstances within their own states. We do not want states 
     to be preempted by Congressional or administrative actions.
       During our testimony, we highlighted our Statement of 
     Principles on Patient Protections (``Statement of 
     Principles''), which were created to assist Congress in 
     developing patient protection legislation. The Statement of 
     Principles highlights the elements that we believe must be 
     included in any patient protection legislation and reflects 
     the NAIC's commitment to consumer protection. We suggested 
     that these principles be used as guidelines in drafting any 
     federal legislation.
       The principles are as follows:
       Principle 1: Federal legislation establishing patient 
     protection laws should reinforce the ERISA saving clause and 
     not preempt existing state health care consumer protection 
     laws, particularly as these protections apply to fully 
     insured health plans.
       Principle 2: Federal legislation establishing patient 
     protection laws should ensure a basic level of protections 
     for all health care consumers, focusing particular attention 
     on those consumers in self-funded ERISA plans who do not 
     currently have such protections.
       Principle 3: Federal legislation establishing patient 
     protection laws should preserve the state infrastructure 
     already in place.
       Principle 4: Federal legislation establishing patient 
     protection laws should ensure that all health care consumers, 
     whether under fully insured or self-funded plans, have access 
     to an appropriate regulatory body for answers to their 
     questions, complaints and grievances.
       Principle 5: Federal legislation establishing patient 
     protection laws should establish an appeals process to 
     resolve disputes and enforce decisions for those consumers, 
     such as those in self-funded plans, without access to such a 
     process.
       The members of the Special Committee appreciate the efforts 
     of Congress to provide patient protections to all consumers, 
     and we offer the above principles as guidelines in developing 
     such legislation. In doing so, we urge Congress to focus its 
     legislative activity on consumers in self-funded ERISA plans, 
     which are under the federal government's exclusive 
     jurisdiction, and to preserve the state protections that 
     already exist for consumers in fully insured ERISA plans. 
     Again, we have not endorsed the concept of a federal floor 
     with regard to patient protections.
       On behalf of the members of the Special Committee, we would 
     like to thank you for the opportunity to testify before the 
     Senate HELP Committee and for the opportunity to clarify our 
     position. If any members of the NAIC can be of further 
     assistance, please feel free to contact Jon Lawniczak at 
     (202) 624-7790.
           Sincerely,
     George Reider, Jr.
                                                  President, NAIC.
     Kathleen Sebelius,
                                        Secretary-Treasurer, NAIC.

  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, we have 15 minutes left; is that true?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. REID. I yield 7\1/2\ minutes to the junior Senator from North 
Carolina and 7\1/2\ minutes to the senior Senator from Rhode Island.

[[Page S8231]]

  The PRESIDING OFFICER. The Senator from North Carolina.
  Mr. EDWARDS. I thank the Chair.
  Mr. President, I will briefly respond to the remarks by Senator 
Collins from Maine, for whom I have tremendous respect. She and I have 
worked together on a number of issues. I know she believes deeply in 
the cause she advocates this afternoon. I have great professional and 
personal respect for her. This is an issue on which I happen to 
disagree with her for a number of reasons.
  First, she suggests their plan--the plan she is referring to I assume 
is the Republican plan--is one that adequately protects patients' 
rights because of laws enacted in States across the country. If that is 
so, why is there such an enormous public outcry for reform? The 
American people believe deeply that patient protection legislation is 
desperately needed across this country. If these laws already exist and 
are already in place and are working, why in the world does anybody 
need to do anything? The reality is that these laws are not in place 
and they are not working. Let me give a few examples.
  For example, access to clinical trials, which is a critical component 
of our bill: 47 States of the 50 have no provision for access to 
clinical trials.
  External appeals, which are absolutely essential: 32 States have no 
provision for independent external appeals.
  Access to specialists: 39 States have no provision allowing people to 
designate a specialist as their primary care provider, and 36 States 
have no provision for standing referrals to specialists.
  Continuity of care: 30 States have no continuity of care provisions.
  This list goes on and on.
  The reality is, No. 1, that the majority of States have none of the 
protections we are talking about in the Democratic Patients' Bill of 
Rights. That is the reason there is an enormous public outcry. That is 
the reason we have a health care crisis in this country today, and it 
is the reason I respectfully disagree with my colleague, the Senator 
from Maine.
  The second reason is, to the extent a State has passed any kind of 
patient protection legislation and that legislation conflicts in any 
way with ERISA, it is preempted. It is absolutely preempted, under 
existing law, if we never pass anything. Even the laws that have been 
passed, to the extent those laws conflict in any way with the existing 
ERISA statutes, are preempted by ERISA.
  The bottom line is this: No. 1, if State laws adequately dealt with 
this problem, we would not have the public outcry, the horror stories 
which we have heard and will continue to hear in this Senate over the 
course of the next week.
  No. 2, the fact of the matter is, to the extent those laws exist--and 
they do not exist in the majority of States on the critical issues--to 
the extent they do exist, they are preempted by ERISA.
  I do want to mention one other thing on the issue of cost because 
there has been a lot of discussion about cost from the Senator from 
Oklahoma and the Senator from Maine.
  First of all, it is critically important to recognize that to the 
extent we get a patient to a specialist soon, and we do that in our 
bill, to the extent we allow women to go directly to an OB/GYN as their 
primary care provider, to the extent we allow patients who are in a 
critical emergency to go the nearest hospital and be seen by an 
emergency room department or physician and thereby save that patient's 
life or reduce the amount of long-term care that patient receives--in 
every one of those instances we are reducing long-term health care 
costs in this country.

  So I want us to recognize, first, that to the extent we are talking 
about increased costs, they are only talking about short-term costs, 
not long-term costs. The truth of the matter is that long-term costs 
will be reduced by passage of the Patients' Bill of Rights for the very 
same reason that preventive medicine reduces health care costs in this 
country, because we are going to get folks to the doctor they need to 
see sooner; they are going to get the care they need quicker.
  The net result of that is that they do not need the ongoing, chronic, 
long-term care that many patients, unfortunately, have to get because 
they do not see the physician they need to see as quickly as they need 
to see them. That is what the external review process does. That is 
what the internal review process does.
  I might add, those two things work in concert with the fact that, 
under our bill, an HMO can be held accountable in court for what they 
do. I want the American people to recognize what happens when an HMO 
cannot be held accountable, when they are treated as a privileged 
entity. And under existing law they are a privileged entity. They, 
among all the businesses and corporations and individuals in this 
country, get special treatment, treatment that none of our families or 
our children or our small businesses get. They are all held completely 
responsible. But HMOs, for some reason, are above the rest of us. They 
are a cut above the rest of us. They get special treatment. They cannot 
be held accountable in court.
  So what happens when an HMO makes an arbitrary and capricious 
decision and a child suffers a serious injury as a result and has a 
lifetime of medical care in front of them--for example, a 7-year-old 
child? If the HMO can be held responsible, the HMO bears that cost, as 
well they should bear that cost because they are responsible for it.
  But what happens if the HMO does not bear the cost? We know where the 
cost goes. It goes to us. It goes to the American taxpayer. Because 
those kids do not have the money to pay for chronic, long-term care 
over the course of their lives. They are paid out of Medicaid. They are 
paid with taxpayer dollars. The net result of that is that the cost an 
HMO or a health insurance company would bear has been shifted to the 
American taxpayer. That is wrong. We know it is wrong. That is one of 
the things we are trying to do something about in this bill.
  I have to add one other thing. The Senator from Oklahoma said over 
and over during the course of his argument that what our bill proposes 
is that the Government knows the answer, that the Government has the 
solution. My response to that, with all due respect, is existing law 
and the bill of the other side would say the HMO has the answer, the 
health insurance company has the answer.
  I say to the American people, and to my colleagues, we have tried 
that. We have tried leaving this in the hands of the HMO. We have tried 
leaving it in the hands of the health insurance industry. And it has 
not worked.
  With that, I conclude by saying I think it is critically important 
that we cover all Americans, that all Americans are covered by health 
insurance plans. That is done under the Democratic bill.
  The PRESIDING OFFICER. The time has expired.
  Mr. EDWARDS. Thank you, Mr. President.
  Mr. CHAFEE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
  Mr. CHAFEE. Mr. President, one of the key issues in this debate is 
the scope of the provisions; that is, should patient protections we are 
debating apply solely to those 48 million Americans enrolled in the 
self-insured ERISA plans or should they apply to all privately insured 
Americans? Obviously, there can be varied views on this subject, as we 
heard from the Senator from Maine, the Senator from Oklahoma, and 
otherwise on the floor today.
  In 1996, through the Kassebaum-Kennedy law, Congress passed reforms 
to the private health insurance marketplace with respect to 
portability. In my opinion, we should use the same framework used then 
with respect to scope and effect on State law. Thus, we should 
establish, I believe, a minimum floor of Federal protection for all 164 
million privately insured Americans, not just those 48 million enrolled 
in self-insured ERISA plans.
  I see no reason for narrowing the scope of the patient protections in 
this next and far more consequential area of reform. Protections as 
critical to patients as the right to a specialist when needed should 
apply to all Americans, I believe.
  Some of my colleagues argue that it is the individuals only in the 
self-insured plans--those completely out of State reach--who should 
benefit from these Federal protections. While it is true that States do 
have the authority

[[Page S8232]]

to legislate patient protections for these other plans, that alone, I 
believe, is insufficient reason to deny these basic quality 
improvements and safeguards to all 164 million Americans in privately 
insured plans. Such a system would, in my judgment, create many 
unnecessary and inequitable circumstances for consumers and exacerbate 
the already unlevel playing field which exists in the health insurance 
marketplace.
  Congress has recognized the need for minimal Federal guarantees 
regarding health insurance in several instances. I think this is very 
important to note. For example, in addition to the portability 
protections included in the Kassebaum-Kennedy bill, all Americans have 
been granted protections for continuation of care under the so-called 
COBRA, the Consolidated Omnibus Budget Reconciliation Act of 1985. They 
have been given this protection in mental health parity. They have been 
given this protection in maternity lengths of stay. They have been 
given this protection just last fall when we passed the breast 
reconstructive surgery protections. And we extended that to all 
Americans; we did not restrict it just to the self-insured under the 
ERISA plans.
  Republicans and Democrats alike continue to recognize the need for 
Federal protections that apply to the entire health insurance market. 
The generic nondiscrimination provisions of S. 326 would apply to plans 
beyond the self-insured ERISA plans.
  Where is the logic in creating Federal protections applying to the 
entire health insurance market regarding these aspects of health 
insurance but not patient protections as fundamental as access to 
external appeal or emergency services?
  Furthermore, as with many other limited preemption laws on the books, 
this approach would not preempt equal or stronger patient protections 
which have been adopted by the States.
  Look at this list. These are not health matters. These are 
environmental matters. They are consumer and other statutes. They start 
with the Clean Air Act. All of these statutes provide a floor of 
Federal protections that the States can and, in some instances, do go 
beyond.

  The Federal Government has come in, in all these instances, and said: 
This is a floor--Toxic Substances Control Act, Safe Drinking Water Act. 
If you in the State want to go further, fine, go ahead, but these are 
the minimals you have to do. That is what we are suggesting presents a 
real problem in the legislation that has been reported and then 
discussed by the Senator from Maine and the Senator from Oklahoma.
  It is critical that the protections we adopt this week in the Senate 
apply to all Americans, including those with plans regulated by the 
States because State protection is extremely spotty. One justification 
for applying privacy protections to the entire health insurance market 
is that there is not a complete body of State law on privacy. For 
example, it is likewise true with respect to patient protections. 
Considering only a few of the most important patient protections, only 
15 States have adopted an external review procedure and only 13 States 
have adopted standing referrals to specialists.
  It is important to note that by not covering all Americans, many of 
the most vulnerable insurance customers will be left with no 
protection. You go out to buy a policy. You do not have employee 
benefit managers; you do not have somebody to look after you like that; 
and you are at the mercy of the insurers making decisions based solely 
or primarily on cost considerations.
  To summarize, all Americans, I believe, should have these basic 
protections regardless of whether the plan they are in is regulated at 
the State or Federal level. In fact, most Americans probably do not 
know who is responsible for regulating their plan and should not have 
to worry when they are sick as to who is the regulator and what 
protections they have as a result. They should have the assurance that 
however their plan is regulated, it will provide them the care they 
need according to the most basic and commonsense principles.
  I thank the Chair.
  Mr. FRIST addressed the Chair.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. FRIST. Mr. President, how much time do we have on this side?
  The PRESIDING OFFICER. Fifteen and a half minutes.
  Mr. FRIST. Mr. President, I yield myself 10 minutes.
  The PRESIDING OFFICER. The Senator from Tennessee is recognized.
  Mr. FRIST. Let me just say at the outset that I, for one, am very 
glad that we are on this bill, the Patients' Bill of Rights. It is a 
bill that is terribly important to the American people. All of us know, 
as we conduct our town meetings around our various States, that we have 
a real problem today in that today's problem is reflected in the 
feeling of helplessness by patients, helplessness by physicians, 
helplessness by other providers when it comes to managed care. There 
are reasons for that.
  As my colleagues know, I am a physician and was involved in the 
practice of medicine and training for about 20 years where every day--
before coming to this body--I took care of many patients, thousands of 
patients, well over 10,000 patients, and the changes have been 
tremendous over the last 20 years as we look at how health care is 
delivered and the reasons for it.

  Right now our society, our country is caught up in a rapidly changing 
health care system. In all those changes and in that evolution, many 
challenges have been introduced. Part of our responsibility as 
Senators, as trustees to the American people, is to make sure that we 
very gently, but in many ways very firmly, make sure these challenges 
are faced in a systematic way, such that a patient--again, I come back 
to patients. We are going to hear about cost and about managed care 
companies and health maintenance organizations and trial lawyers and 
costs going up and big budgets. I hope throughout this week we will 
come back again and again to patients. Patients have to be at the 
center of this debate.
  When we talk about patients, we are talking about a Patients' Bill of 
Rights, a bill of rights that patients can expect when they are dealing 
with the health care system and with managed care and with HMOs. We 
also need to be talking about the quality of care that is delivered. We 
need to be talking about access and not ever forget about the 43 
million people who don't have health insurance.
  For the most part, people say: Well, let's deal with the people who 
have insurance, group health insurance with managed care plans. Let's 
make sure their rights are protected. In doing that, let's not forget 
that there is a whole group of people over here, 43 million people--too 
many people, inexcusable, I feel--who don't have any health insurance 
at all, making sure that when we fight for the rights of the people who 
do have health insurance, we don't want to drive more people to the 
ranks of the uninsured, who don't even have insurance in the first 
place.
  When we talk about the Patients' Bill of Rights, whether it is the 
gag clause or access to specialists or scope of the plan, let's not 
forget that we are talking about individual patients. In trying to get 
rights to one segment, let's not go so far or too far in all the anger 
that we feel against managed care that it drives up the ranks of the 
uninsured.
  Why is this access issue important? We know--studies document it 
again and again--that in America, if you have some health care 
insurance, the health care system does open up to you broadly. If you 
have no health care insurance at all, it is less likely that that 
health care system will open up to you broadly. So the last thing I 
think we want to do in this body is take rights to such an extreme that 
we drive up the number of uninsured, recognizing that access is a huge 
problem, a huge challenge for our country.
  When I first started 20 years ago in the field of medicine, it was 
very different. The practice of medicine was basically straight out fee 
for service. Very few physicians were in groups. They were practicing 
by themselves. They had full autonomy. They were making a very good 
living, basically went to medical school and worked very hard. They had 
professional ethics of ``do no harm,'' all of which continues today, 
except the system around them has changed dramatically. Managed care 20 
years ago was tiny. Today, managed care, coordinated care, health 
maintenance organizations, if you look

[[Page S8233]]

at the overall, nongovernment coverage is the majority of care that we 
give. And as a product of that, we have this pendulum which has swung 
back and forth over time. It is true--that is why we are debating this 
bill today--there is no question that that pendulum has swung way over 
towards managed care and away from individual patients, individual 
people who need that care, who will go to bed tonight worried that if 
they have a heart attack tomorrow, will they be taken care of 
appropriately, will they have access to the emergency room, will they 
have access to the appropriate specialist. That is where this whole 
Patients' Bill of Rights comes in because over the last 5 years or 10 
years that pendulum has swung way in the favor of managed care.

  Now, I believe we are going to hear a discussion over the next week 
of how we can best get that pendulum back to the middle and have that 
balance between patients and physicians on the one hand and managed 
care on the other.
  One of the objectives I would like to see as we go forward in a very 
rational way, after we cut away all the rhetoric, going at each other 
and the hot debate, is to come back and say: Let's keep our eye on the 
ball. The ball is the patient who is in this system of managed care, 
and not physicians and trial lawyers and lawsuits, and make sure we say 
that they are going to get the very best care. If anything is going to 
happen to them, they know they will have certain rights in this 
evolving, changing world.
  It has gotten to the point that it is not just anecdotal, but some 
managed care, some health maintenance organizations have garnered so 
much power, so much control that they have abused the system. The whole 
accusation that some HMOs are in the business of practicing medicine is 
hard to argue against. I think one of our objectives needs to be to 
make sure that we don't have insurance companies or managed care 
companies or HMOs practicing medicine. In other words, get that 
pendulum back to that patient, to that decisionmaking through that 
doctor-patient relationship.
  On the other hand, I think it is irrational to assume that we will go 
back 20 years and not have managed care, not have coordinated care, not 
have health maintenance organizations. That being the reality, we want 
to have a strong Patients' Bill of Rights that looks to those patient 
protections that empower the patient, empower the American citizen, 
empower the physician and bring that pendulum back over to that doctor-
patient relationship, to keep the patient in charge.
  We have on the floor now a Democratic bill, a Republican leadership 
bill, and we have one amendment talking about the scope. We will need 
to come back to talk a little bit more about scope because it is one of 
the important issues where there is a sharp dividing line. We will hear 
words like ``medical necessity,'' the issue of scope, of medical 
specialists, but amidst all of that, let's come back to the patient.
  Let me speak to what is in the Bill of Rights Plus Act, which is the 
Republican bill which is now on the floor, in terms of scope. Scope 
really means who is being covered. Does this bill cover just a targeted 
population, the whole population, a part of the population? You can 
almost look at it as a pie chart in your mind.
  There are a number of provisions in each of these bills. You have to 
go through each of the provisions when you are talking about scope.

  When we talk about the issue of comparative information in the 
Republican leadership bill, all group health plans would be required to 
provide a wide range of comparative information about health insurance 
coverage so that the individual patient knows what is covered and what 
is not covered, what that relationship is, what they have actually 
signed, what that contract is about, what the network descriptions are, 
what the cost-sharing information is. The scope is complete, all 124 
million people in the Republican bill are covered by that particular 
provision, the information.
  When we look at what I think is fundamentally the most important 
mechanism by which we are fixing the system, getting that pendulum back 
over in the middle between managed care and the patients and the 
physicians, it is the whole process of accountability, the grievance 
and appeals process, the internal review process, the external review 
process. Over the next 4 days, we will be talking a lot about how these 
appeal processes work.
  If you look at the way health care is delivered, I do believe this is 
one of most important provisions in the Patients' Bill of Rights. Both 
bills address grievance and appeals, but I want to make it very clear, 
in terms of the Republican bill, that the scope is complete, with all 
124 million Americans covered. The scope is complete. All group health 
plans would be required to have written grievance procedures and have 
an internal review process. So if you have a patient who disagrees with 
the coverage from the plan, or a doctor and a patient who disagree with 
a plan, they will have someplace to go in an internal review process. 
If they don't like what the internal review process says, if there is 
disagreement on coverage between the doctor, the patient, and the plan, 
they can go outside the system to an external review process.
  Now, what I like very much about our plan, which I think is very 
important, is that our external review process has a physician in 
charge. It is not an insurance company; it is not a trial lawyer; it is 
not a bureaucrat. It is a medical--I will use the word--``specialist,'' 
if necessary, in that field who is independent of the doctor, the 
patient, and the plan.
  Remember, that external appeals process all started with a 
disagreement on coverage; you have gone through the internal appeals 
process, and now you are outside. You go through an external appeals 
process and that person also is independent.
  So we have an internal appeals process, and then we have an external 
appeals process, where you have an independent physician reviewing the 
coverage and making the decision. In addition, that independent medical 
expert makes the final decision on coverage--not a trial lawyer 
somewhere, not a court, not a lawsuit, but an independent medical 
specialist makes the final decision on coverage. That decision is 
binding; it is binding on the plan.
  Therefore, we aim at the heart of what I think is broken today; that 
is, if there is some sort of disagreement, if the managed care is 
taking advantage in some shape or form of an individual patient or 
individual physician, we have an independent medical expert making the 
final decision, not some statute written here in the Congress, not some 
definition that we try to give it if we try to define ``medical 
necessity'' in statute, but somebody who is independent and outside of 
the system.

  I mention that because when we are talking about scope, all 124 
million people in plans are covered, not a segment. It has nothing to 
do with ERISA, and non-ERISA, and State-regulated, and Federal-
regulated. All 124 million Americans are covered by both self-insured 
and fully insured group health plans. All 124 million Americans are in 
there.
  Again, when we talk of scope and about the information components of 
our bill, everybody is covered. What I think is much of the heart and 
guts of this bill is the accountability provisions, the accountability 
of managed care, the accountability of coordinated care. Everybody is 
covered, all 124 million people.
  Now, in our bill, we also have an important component on genetic 
information. As we all know, the human genome project has been 
tremendously successful. We have 2 billion bits of information coming 
out in the next several years and, with that, we raise the potential 
for insurance companies, or managed care companies, to use that 
information to discriminate against a patient. In other words, if a 
patient had a test, and there was an 80-percent chance that a patient 
would develop cancer, and that information were to get out, an 
insurance company might say: We are not going to insure you. That is 
interesting information so we are going to raise your rates.
  We are not going to let that happen. That provision in our bill--
which is not in the Democrats' bill--basically covers everybody. Scope 
is complete.
  Now, the one area where scope is targeted in a particular area is 
what we call the consumer protections, patient protections. That is the 
gag clause, the access to specialists, the prudent layperson access to 
emergency rooms, and the continuity of care.

[[Page S8234]]

  Mr. President, do we have 1 minute remaining?
  The PRESIDING OFFICER (Mr. Brownback). That is correct.
  Mr. FRIST. Mr. President, I will yield 30 seconds to my colleague, 
Senator Enzi. Let me notify my colleague that he will have more time 
than that. Instead of yielding now, I will yield to him in about a 
minute.
  Mr. President, do we have 30 seconds left on the amendment?
  The PRESIDING OFFICER. The chairman will be recognized for 30 
seconds.
  Mr. FRIST. Mr. President, the last area, in terms of focus, where the 
scope narrows down, is that for the specific patient protections we 
cover the 48 million people. Why? Because they are not covered. They 
are not regulated by the States, and that is why we target that 
population.
  The PRESIDING OFFICER. The Senator from Tennessee has 30 seconds 
remaining.
  Mr. FRIST. Mr. President, I yield the floor.
  Mr. KENNEDY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
  Mr. KENNEDY. Mr. President, I yield myself 3 minutes on the bill.
  The PRESIDING OFFICER. The Senator is recognized for 3 minutes on the 
bill.
  Mr. KENNEDY. Mr. President, I am not going to take the time right 
now. I was waiting for my good friend, Dr. Frist, to be able to get 
into the questions of scope. I was waiting for Dr. Frist to and answer 
why the protections included in our legislation--for example, the 
guarantees for emergency room care, the access to specialists who might 
be necessary to care for a sick child, the formulary protections that 
were included in our legislation, should not apply to all Americans. I 
was waiting to ask Dr. Frist why the Republican House of 
Representatives bills protect 124 million Americans, while the Senate 
Republican legislation falls woefully short on those particular 
protections.
  I hope in these next few days we come back to what this whole debate 
is about, the commonsense protections that are included in this bill. 
That is what is important. Are we really going to have the protections 
necessary to guarantee the prudent layperson's judgment is used in 
determining whether emergency room treatment is covered? Are we going 
to have that? Are there going to be real protections, or are we going 
to have in the fine print something that effectively creates a 
loophole? Let's get to addressing that issue.
  Let's start talking about guaranteeing access to clinical trials, 
which are so important to women who have cancer. Clinical trials may be 
the only option for saving their lives--yet their medical doctor says 
this is in your best interest but the HMO says no. That is what this 
legislation is about.
  The information that the Senator talked about is all very valuable, 
but what this is about is clinical trials. Their particular proposal 
requires a study of this particular provision. There isn't a clinical 
researcher out there, or I daresay a member of the National Cancer 
Institute at the NIH, who does not support the importance of clinical 
trials. That is what is at the heart of this. Those are the kinds of 
protections we are talking about here. Are we going to make sure we 
will finally have the accountability that is so important to assure 
that plans are really going to be serious in guaranteeing good quality 
health care?
  Mr. President, on behalf of my colleagues, Senators Graham and 
others, is it in order for me to send an amendment to the desk?
  The PRESIDING OFFICER. Until the time has been used or yielded back 
on the first-degree amendment, a second-degree amendment is not in 
order.
  Mr. KENNEDY. Mr. President, how much time remains on the first-degree 
amendment?
  The PRESIDING OFFICER. There are 30 seconds on the Republican side 
and a minute and a half on the Democrat side.
  Mr. KENNEDY. Mr. President, I yield our time.
  Mr. FRIST. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. There is not sufficient time to suggest the 
absence of a quorum.
  Mr. FRIST. Mr. President, I yield 10 minutes to Senator Enzi to speak 
on the general debate time.
  The PRESIDING OFFICER. The Senator from Wyoming is recognized for 10 
minutes on the general debate time.
  Mr. ENZI. Mr. President, I am sorry that in my absence from the floor 
for a few minutes there was some exception taken to the comments that I 
made about the Democrats' proposal for this one-size-fits-all, budget-
busting Federal bureaucracy bill.
  I am pleased now to return to be able to talk a little bit more about 
States rights and to support the scope of the Republican amendment.
  Among the handful of principles that are fundamental to any true 
protection for health care consumers, probably the most important one 
is allowing States to continue in their role as the primary regulator 
of health insurance--not a Federal bureaucracy.
  This is a principle which has been recognized--and respected--for 
more than 50 years. In 1945, Congress passed the McCarran-Ferguson Act, 
a clear acknowledgment by the federal government that states are indeed 
the most appropriate regulators of health insurance. It was 
acknowledged that states are better able to understand their consumers' 
needs and concerns. It was determined that states are more responsive, 
more effective enforcers of consumer protections. And, as if we need to 
re-learn this lesson yet again, it is usually for the best when we let 
each state respond to the needs of its own consumers.
  As recently as this year, this matter of fact was reaffirmed by the 
General Accounting Office. GAO testified before the Health, Education, 
Labor, and Pensions Committee, saying, ``In brief, we found that many 
states have responded to managed care consumers' concerns about access 
to health care and information disclosure. However, they often differ 
in their specific approaches, in scope and in form.''
  Wyoming has its own unique set of health care needs and concerns. 
But, despite our elevation, we don't need the mandate regarding skin 
cancer that Florida has on the books. My favorite illustration of just 
how crazy a nationalized system of health care mandates would be comes 
from my own time in the Wyoming Legislature. It's about a mandate that 
I voted for and still support today. You see, unlike in Massachusetts 
or California, for example, in Wyoming we have few health care 
providers; and their numbers virtually dry up as you head out of town. 
So, we passed an any willing provider law that requires health plans to 
contract with any provider in Wyoming who's willing to do so. While 
that idea may sound strange to my ears in any other context, it was the 
right thing to do for Wyoming. But I know it's not the right thing to 
do for Massachusetts or California, so I wouldn't dream of asking them 
to shoulder that kind of mandate for our sake when we can simply, 
responsibly, apply it within our borders.
  An extra, unnecessary layer of mandates, whether they be for certain 
kinds of coverage or for a protection that not everybody needs or 
wants, are so-called ``protections'' we simply shouldn't force people 
to pay for. If we were all paying for skin cancer screenings that only 
a few of us need or want, or if we were all paying for any willing 
provider mandates that only some of us need to assure access, then we'd 
all be one of two things--either over-charged, not-so-savvy consumers, 
or we'd be uninsured.
  As consumers, we should be downright angry at how some of our elected 
officials are responding to our concerns about the quality of our 
health care and the alarming problem of the uninsured in this country. 
It is being suggested that all of our local needs will be magically met 
by stomping on the good work of the states through the imposition of an 
expanded, unenforceable federal bureaucracy. It is being suggested that 
the American consumer would prefer to dial a 1-800-number to nowhere 
versus calling their State Insurance Commissioner, a real person whom 
they're likely to see in the grocery store after church on Sundays.
  As for the uninsured population in this country, carelessly slapping 
down a massive new bureaucracy on our states does nothing more than 
squelch their efforts to create innovative and flexible ways to get 
more people insured. We should be doing everything

[[Page S8235]]

we can to encourage and support these efforts by states. We certainly 
shouldn't be throwing up roadblocks.
  And how about enforcement of the minority's proposal?
  One of the findings of the amendment reads as follows, ``It would be 
inappropriate to set federal health insurance standards that not only 
duplicate the responsibility of the 50 State insurance departments but 
that also would have to be enforced by the Health Care Financing 
Administration (HCFA) if a State fails to enact the standard.'' In 
other words, not only is it being suggested that we trample the 
traditional, overwhelmingly appropriate authority of the states with a 
three-fold expansion of the federal reach into our nation's health 
care, they want HCFA to be in charge. HCFA, the agency that leaves 
patients screaming, has doctors quitting Medicare, and, lest we not 
forget, is the agency in charge as the Medicare program plunges towards 
bankruptcy.
  I could go on at length about the very real dangers of empowering 
HCFA to swoop into the private market with its embarrassing record of 
patient protection and enforcement of quality standards. For example, 
it took ten years for HCFA to implement a 1987 law establishing new 
nursing home standards intended to improve the quality of care for some 
of our most vulnerable patients. According to the General Accounting 
Office, HCFA missed 25 percent of its implementation deadlines for the 
consumer and quality improvements to the Medicare program which were 
required under the Balanced Budget Act of 1977--10 years.
  Even more alarming is that HCFA is still using health and safety 
standards for the treatment of end-stage kidney disease that are 23 
years old! Equally astonishing is that HCFA has yet to update its 1985 
fire safety standards for hospitals. HCFA is a federal bureaucracy at 
its worst, making it the last place to which we want our consumer 
protection responsibilities to revert.
  The message is pretty clear to me. Expanding the role of the federal 
government well beyond its lawful authority would be a big mistake. The 
scope of federal authority under the Employee Retirement Income 
Security Act (ERISA) with regard to the regulation of health care is 
well understood. Duplicating, complicating and ultimately unraveling 50 
years of state experience and subsequent action makes no sense. For 
those of my colleagues who think no one is bothered by that, I, and the 
117 million Americans currently protected by State health insurance 
standards, beg to differ.
  Our federal responsibility lies with the 48 million consumers who 
fall outside the jurisdiction of state regulation. That's our scope; 
that's our charge. That's what the states are politely reminding us of 
right now.
  In March of this year, the National Association of Insurance 
Commissioners implored us not to make a mess of what they've done for 
health care consumers, saying, ``The states have already adopted 
statutory and regulatory protections for consumers in fully insured 
plans and have tailored these protections to fit the needs of their 
states' consumers and health care marketplaces. In addition, many 
states are supplementing their existing protections during the current 
legislative session based upon particular circumstances with their own 
states. We do not want states to be preempted by Congressional or 
administrative actions.'' I'm stunned that their plea is so easy for 
some to ignore.
  I will not undo what's good in Wyoming only to offer my constituents 
what's good for Washington. That's my mandate from them.
  When we balk at the minority's ``one-size-fits-all'' proposal, it 
sounds like such a cliche, but the health care needs and wants in this 
country are a living, breathing example of why a singular approach is a 
bad prescription for American consumers. No one should be forced to 
swallow this poison pill.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. NICKLES. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. On whose time?
  Mr. NICKLES. On my time equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. NICKLES. 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. NICKLES. Mr. President, I ask unanimous consent to yield back the 
remainder of our time on the last amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                amendment no. 1234 to amendment no. 1233

 (Purpose: To do no harm to Americans' Health Care Coverage and expand 
                    health care coverage in America)

  Mr. NICKLES. I send an amendment to the desk and ask for its 
immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Oklahoma [Mr. Nickles], for Mr. Santorum 
     for himself, Mr. Bond, Mr. Nickles, Mr. Hutchinson, and Mr. 
     Craig, proposes an amendment numbered 1234 to Amendment No. 
     1233.

  Mr. NICKLES. Mr. President, I ask unanimous consent reading of the 
amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       Strike all after the first word in line three and insert 
     the following:

     SENSE OF THE SENATE CONCERNING THE SCOPE OF A PATIENTS' BILL 
                   OF RIGHTS.

       (a) Findings.--The Senate makes the following findings:
       (1) Congress agreed that States should have primary 
     responsibility for the regulation of health insurance when it 
     passed the McCarran-Ferguson Act in 1945.
       (2) The States have done a good job in responding to the 
     consumer concerns associated with a rapidly evolving health 
     care delivery system and have already adopted statutory and 
     regulatory protections for consumers in fully-insured health 
     plans and have tailored these protections to fit the needs of 
     their States' consumers and health care marketplaces.
       (3) 117,000,000 Americans who are enrolled in fully insured 
     plans, governmental plans and individual policies are 
     protected by State patient protections.
       (4) Forty-two States have already enacted a Patient's Bill 
     of Rights.
       (5) Forty-seven States already enforce consumer protections 
     regarding gag clauses on doctor-patient communications.
       (6) Forty States already enforce consumer protections for 
     access to emergency care services.
       (7) Thirty-one States already enforce consumer protections 
     requiring a prudent layperson standard for emergency care.
       (8) The Employee Retirement Income Security Act of 1974 
     (referred to in this section as ``ERISA'') expressly 
     prohibits States from regulating the self-funded employer 
     sponsored plans that currently cover 48,000,000 Americans.
       (9) The National Association of Insurance Commissioners has 
     recommended that Congress should focus its legislative 
     activities on consumers in self-funded ERISA plans, which are 
     under the Federal Government's exclusive jurisdiction, and 
     preserve the State protections that already exist for 
     consumers in fully insured ERISA plans.
       (10) The National Association of Insurance Commissioners 
     has expressly stated that they do not endorse the concept of 
     a Federal floor with regard to patient protections.
       (11) Senate bill 6 (106th Congress) would greatly expand 
     the Federal regulatory role over private health insurance.
       (12) It would be inappropriate to set Federal health 
     insurance standards that not only duplicate the 
     responsibility of the 50 State insurance departments but that 
     also would have to be enforced by the Health Care Financing 
     Administration if a State fails to enact the standard.
       (13) One size does not fit all, and what may be appropriate 
     for one State may not be necessary in another.
       (14) It is irresponsible to propose vastly expanding the 
     Federal Government's role in regulating private health 
     insurance at a time when the Health Care Financing 
     Administration is having such a difficult time fulfilling its 
     current and primary responsibilities for Medicare.
       (15) In August, 1998, the United States Court of Appeals 
     affirmed a district court ruling that the Health Care 
     Financing Administration failed to enforce due process 
     requirements and monitor health maintenance organization 
     denials of medical service to medicare beneficiaries.
       (16) On April 13, 1999, the General Accounting Office 
     testified that the Health Care Financing Administration 
     failed to use its authority to ensure that medicare 
     beneficiaries were informed of their appeals rights under 
     managed care plans.
       (17) The General Accounting Office testified at a July, 
     1998 hearing in the Ways and Means Committee of the House of 
     Representatives that the Health Care Financing Administration 
     missed 25 percent of the implementation deadlines for the 
     consumer and quality improvements to the Medicare program 
     under the Balanced Budget Act of 1997.

[[Page S8236]]

       (18) The Health Care Financing Administration should not be 
     given new, broad regulatory authority as they have not 
     adequately met their current responsibilities.
       (19) The Health Care Financing Administration took 10 years 
     to implement a 1987 law establishing new nursing home 
     standards.
       (20) The Health Care Financing Administration has yet to 
     update its 1985 fire safety standards for hospitals.
       (21) The Health Care Financing Administration is utilizing 
     1976 health and safety standards for the treatment of end-
     stage kidney disease.
       (22) ERISA preempts State requirements relating to coverage 
     determinations, grievances and appeals, and requirements 
     relating to independent external review.
       (23) In a recent judicial decision in Texas (Corporate 
     Health Insurance, Inc. V. The Texas Department of Insurance), 
     the lower court held that ERISA does preempt the State's 
     external review law as it relates to group health plans.
       (b) Deduction for Health Insurance Costs of Self-Employed 
     Individuals Increased.--In General.--Section 162(l)(1) of the 
     Internal Revenue Code of 1986 (relating to special rules for 
     health insurance costs of self-employed individuals) is 
     amended to read as follows:
       ``(1) Allowance of deduction.--In the case of an individual 
     who is an employee within the meaning of section 401(c)(1), 
     there shall be allowed as a deduction under this section an 
     amount equal to the amount paid during the taxable year for 
     insurance which constitutes medical care for the taxpayer, 
     the taxpayer's spouse, and dependents.''
       (c) Clarification of Limitations on Other Coverage.--The 
     first sentence of section 162(l)(2)(B) of the Internal 
     Revenue Code of 1986 is amended to read as follows: 
     ``Paragraph (1) shall not apply to any taxpayer for any 
     calendar month for which the taxpayer participates in any 
     subsidized health plan maintained by any employer (other than 
     an employer described in section 401(c)(4)) of the taxpayer 
     or the spouse of the taxpayer.''
       (d) Effective Date.--The amendments made by this section 
     shall apply to taxable years beginning after December 31, 
     1998.

  Mr. NICKLES. Mr. President, for the information of our colleagues, 
let me outline where we are procedurally. We notified Members under the 
unanimous consent request that we would lay down S. 6, the so-called 
Kennedy bill, to mark up. The Democrats offered a substitute to that, 
the Republican bill that passed out of the Labor Committee, S. 326.
  The Democrats then offered a first-degree perfecting amendment to the 
substitute, to the Republican bill. Their amendment dealt with scope. 
Their amendment says: We want the Federal Government to have far-
ranging scope to overrule all State plans. All State plans must do such 
and such under their first-degree amendment.
  I am offering a second-degree amendment on behalf of my colleagues. 
The amendment would do two things. One, it is the sense of the Senate 
that the States are the primary providers of health care, for good 
reasons. States have hundreds of mandates. We don't think the Federal 
Government should come in and say: We know best; Senator Kennedy knows 
what is best; HCFA knows what is best; the Health Care Financing 
Administration should regulate all health care plans.
  We think that would be a mistake. We don't think that, many times, 
the Federal Government knows best. That doesn't mean all State plans 
are administered perfectly. It doesn't mean that they are not without 
problems. We just don't think HCFA--the Health Care Financing 
Administration--overruling States, dictating to the States, or this 
Congress, or Senator Kennedy, should be saying: States, here is what we 
know should be in your plan.
  We state that in the sense of the Senate.
  We also state some other things that come not just from Republicans 
but from the GAO. The Health Care Financing Administration has, in 
paragraph 16, stated:

       On April 13, 1999, the GAO office testified the Health Care 
     Financing Administration failed to use its authority to 
     ensure that Medicare beneficiaries were informed of their 
     appeals rights under managed care plans.

  HCFA failed, according to the GAO. Yet Senator Kennedy's bill says: 
We want to give HCFA more power.
  Section 17 says the GAO testified in a July 1998 hearing in the Ways 
and Means Committee, House of Representatives, that the Health Care 
Financing Administration missed 25 percent of the implementation 
deadlines for consumer and quality improvements to the Medicare Program 
under the Balanced Budget Amendment of 1997.
  Senator Collins alluded to that earlier.
  Section 18 states the Health Care Financing Administration should not 
be given new, broad authority as they have not adequately met their 
current responsibilities.
  I could go on.
  Section 1 of this amendment states the States should maintain primary 
regulatory authority over health care.
  Section 2 states that self-employed individuals should be able to 
deduct 100 percent of their health care premiums.
  It is ironic that when we talk about health care we have such 
inadequate, inequitable treatment under the present Tax Code. 
Corporations deduct 100 percent of their health care costs; self-
employed individuals deduct 45 percent. I personally am offended by 
that provision. I used to be self-employed, and I used to run a 
corporation. I wanted health care for my family in both circumstances. 
When I was self-employed, you could deduct almost nothing. Any person 
self-employed today can deduct 45 percent. Under the present Tax Code, 
in another 8 years they finally get to deduct 100 percent. That is a 
mistake. It needs to be remedied. We remedy it in this amendment. We 
provide 100 percent deductibility, beginning December 31, 1998--it 
would be effective immediately--100 percent deductibility for the self-
employed.
  I want my colleagues to understand that under this provision we are 
correcting the fact that the self-employed can only deduct 45 percent 
of their health care costs. We are expanding access. We are making it 
possible for more people to buy health insurance. I hope we will have 
strong bipartisan support for this provision.
  This amendment is a second-degree amendment to the underlying 
amendment offered by Senator Kennedy and Senator Daschle that tries to 
expand the scope that says the Federal Government knows best. We say 
no, the States should be the primary regulator over health insurance, 
and self-employed individuals should be entitled to deduct 100 percent 
of their health care premium.
  I yield to my colleague from Arkansas such time as he desires.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mr. HUTCHINSON. Mr. President, I rise in very strong support of the 
second-degree amendment of the Senator from Oklahoma, the sense of the 
Senate regarding the State being the primary regulator of health 
insurance plans, as well as the provision supporting 100 percent 
deductibility for the self-employed.
  We talk about scope. We talk about increasing the number of people in 
this country who have health insurance. This is one of the most 
important steps we could possibly take.
  Over the next 3 days, the Senate will debate legislation that will 
impact the lives of every American in terms of health care benefits 
they receive. The Kennedy bill that we will talk a lot about in the 
next few days, while called the Patients' Bill of Rights, is certainly 
not as simple as it sounds. It involves decreased access; it involves 
higher costs; and it involves the quality of our Nation's health care.
  In 1997, the percentage of uninsured individuals under the age of 65 
in my home State of Arkansas was 28.2 percent. Arkansas ranks the 
lowest in the country in terms of the percentage of individuals covered 
by private insurance and is second to dead last in terms of the 
percentage of workers covered by employment-based health insurance.
  An even more alarming figure is that Arkansas has the highest rate of 
uninsured children in the Nation. I applaud the efforts of our Governor 
in Arkansas and the State legislature in trying to change that, but 
still it is a very alarming figure.
  Any legislation this body passes will have a direct impact on 
Arkansas workers and families. The bill introduced by Senator Kennedy 
and his colleagues would increase premiums by as much as 6.1 percent 
according to the Congressional Budget Office. If we pass the Kennedy 
bill and were it signed into law, over 1.8 million people would lose 
their health insurance coverage.
  We see heartrending portrayals of those who have been denied care 
under managed care plans, and we ought to be concerned about that. That 
is why we have a bill that is going to provide protections for 48 
million Americans

[[Page S8237]]

under self-insured ERISA plans. But as Senator Frist from Tennessee 
well pointed out, let's not forget the millions, over 40 million 
Americans, who are without any health insurance at all and whose 
numbers are going up by the day.
  The Kennedy bill, by increasing premiums over 6 percent, will result 
in over 1 million, nearly 2 million more Americans being added to the 
ranks of the uninsured. Let's not forget those. Those are the ones who 
are most vulnerable. If we could only put up their portraits, 
portrayals of those millions of Americans who, day in and day out, are 
living without the protection that most Americans take for granted in 
their health insurance plans, I think we would see the Kennedy bill, 
the so-called Bill of Rights, in a different light altogether.
  If we pass the Kennedy bill, 1.8 million people will lose health 
insurance coverage they now have. That is demonstrated by a Lewin study 
commissioned by the AFL-CIO which shows that for every 1 percent 
increase in premiums an additional 300,000 people will become 
uninsured.
  My colleague, Senator Kennedy, during the markup of the Republicans' 
Patients' Bill of Rights Plus Act, stated that this premium increase 
would be spread out over several years; therefore somehow that made it 
acceptable. I suspect that the 6-plus percent increase in premiums 
being spread out over several years and the additional 1.8 million 
people added to the ranks of the uninsured which occurs over several 
years is of little comfort to those who will lose their insurance as a 
result of this bill. No matter how you slice it, the total number of 
people impacted, the 1.8 million people impacted, remains the same. 
That is simply unacceptable.
  Last year, 98 Members of the Senate voted for an amendment expressing 
their belief that Congress should not increase the number of uninsured. 
Clearly, the Kennedy health care bill violates this statement of 
belief. The uninsured population in the United States grew from 32 
million to, most recently, 43 million in 1997. It is certain the 
Kennedy legislation will only make this growing problem even worse.
  The result of passing the Kennedy health care bill is more hard-
working Arkansas families, more American families will go without 
health care insurance. The Kennedy bill gives quality health care only 
to those who can afford it. On average, the Kennedy bill would cost 
employees an additional $183 per year according to the Congressional 
Budget Office, and the cost for families under the Kennedy bill is 
estimated to be an additional $275 per year. Whether it is $183 or $275 
per year, the Kennedy bill places a huge additional expense on American 
families which many simply cannot afford. What the Democrats give with 
one hand, they take away with the other. How can you say you are 
protecting people when you are taking their insurance away from them?
  By contrast, the Republican Patients' Bill of Rights Plus Act, I 
believe, is both rational and responsible. It protects those who are 
not covered by State regulations. It ensures that health insurance 
premiums will not rise more than a fraction of a percent according to 
CBO. It also provides important tax incentives to increase access to 
health insurance for the current uninsured population, including the 
100 percent deductibility of health insurance premiums for the self-
employed and the expansion of medical savings accounts.
  There are few more effective things we could do in the area of 
patients' rights to expand access than to include the self-employed and 
give them that 100-percent deductibility that they so deserve. 
According to one recent poll by Public Opinion Strategies, 82 percent 
of the public want Congress to make health care more affordable. The 
Republican Patients' Bill of Rights Plus Act responds to that need and 
that overwhelming desire of the American people.
  Does the Kennedy bill do anything for the 43 million uninsured 
Americans in this country? The answer to that is very simple, it is 
very plain, and I think it is absolutely undisputed. The Kennedy bill 
does nothing to assist 43 million Americans who do not currently have 
health insurance get that insurance they so desperately need. It does 
nothing. So while we hear from bleeding hearts, while we hear emotional 
stories, I ask my colleagues to remember, I ask the American people to 
remember, the 43 million who currently do not have insurance need to 
have it more accessible. The Republican bill does that while providing 
greatly enhanced protections for the 43 million Americans who are in 
self-insured plans under ERISA. Not only does the Kennedy bill increase 
cost and decrease access, it creates a whole new system of Government-
run health care. The Kennedy bill would create 359 new Federal 
mandates, 59 new sets of Federal regulations, and would require 3,828 
new Federal bureaucrats to enforce the legislation at a cost to 
taxpayers of $155 million per year. The question begs to be asked: Who 
will benefit from this new bureaucracy and maze of Government 
regulation? Patients? Or the bureaucrats? I think we know the answer.

  It is illustrated by a chart we have already seen today. The bottom 
of this chart, a summary of the effects of the Kennedy bill, are all of 
the new mandates that would be imposed as a result of the Kennedy 
legislation. Flowing from these mandates are the arrows and all of the 
various bureaucratic agencies required to enforce the Kennedy health 
care bill.
  It is simply a one-size-fits-all approach to regulating health care 
in this country. It disregards the good work that has already been done 
by the States in this area, as opposed to what the Republican bill 
does, building upon the good works the States have already done in 
patient protections.
  Mr. President, 42 States have already enacted a Patients' Bill of 
Rights; 47 States already enforce consumer protections regarding gag 
clauses on doctor-patient communications; 40 States already enforce 
consumer protections for access to emergency care services; 50 States, 
every State already has requirements for grievance procedures; and 36 
States already require direct access to an OB/GYN.
  The Kennedy bill imposes a blanket of heavy-handed Federal mandates 
on States and throws away the States' hard work to tailor patient 
protections for their populations' specific needs. One size does not 
fit all. What may be appropriate for California may not be appropriate 
for a rural State such as Arkansas.
  When the Congress passed the McCarran-Ferguson Act in 1945, it agreed 
that States should have primary responsibility for the regulation of 
insurance. The National Association of Insurance Commissioners has also 
spoken on this issue. We have heard about this on the floor of the 
Senate today. In a March 16, 1999, letter to members of the Health and 
Education Committee, the commissioners stated their concern. They said:

       It is our belief that states should and will continue the 
     efforts to develop creative, flexible, market-sensitive 
     protections for health consumers in fully insured plans, and 
     Congress should focus attention on those consumers who have 
     no protections in self-funded ERISA plans.

  That is precisely what the Republican bill does. Congress needs to 
act to protect the 48 million Americans covered by self-insured ERISA 
plans. It should not override the States in the area that they have 
primary responsibility.
  My colleague, Mr. Kennedy, says the Republican bill leaves millions 
of Americans without any protection. That is false. If you are not 
covered by an ERISA self-insured plan, you fall under the protections 
enacted by your State legislature, a group in which most Americans have 
greater confidence, I daresay, than in their Federal officials hundreds 
of miles away. This is why the Republican bill applies patient 
protections to the 48 million Americans who currently do not have any 
protections. It is sound policy and it makes good sense.
  The Republican bill also creates new rights for millions more 
Americans. For instance, all 124 million Americans in employer-
sponsored health plans will have an improved internal appeals process 
available to them as well as a new, independent, external review 
process. These 124 million Americans will also be entitled to clear and 
complete information about their health plan, about what their health 
plan does

[[Page S8238]]

and what it does not cover, about copayments, and about other plan 
procedures and policies. Our bill also improves existing Federal law on 
insurance underwriting with regard to preexisting conditions by 
ensuring that all 140 million Americans' group and individual plans 
will not be discriminated against by health insurers on the basis of 
predicted genetic information. Ironically, Senator Kennedy's bill 
includes several provisions that were specifically rejected by the 
President's Advisory Commission on health care quality.

  For example, State-run ombudsman programs were rejected by the 
Commission. Yet they are included in the Kennedy bill. This is the 
President's Advisory Commission on health care quality.
  The Kennedy bill also includes 12 other Federal mandates that were 
not specifically recommended by the President's Advisory Commission.
  In its report, the Commission states that it sought to ``balance the 
need for stronger consumer rights with the need to keep coverage 
affordable.''
  That is the balance we have sought to maintain in our Republican 
bill. It is rejected by the Democrats in the Kennedy bill; it is 
embodied in the Republican Patients' Bill of Rights Plus Act.
  The bottom line is that cost does matter because cost is directly 
related to access and the number of uninsured in our country. If cost 
was not such a factor, why have the Democrats tried to reduce CBO's 
scoring of their own bill? It is a factor. It is a big factor. It is an 
important factor because it affects who can buy insurance and how many 
millions of Americans are going to go without insurance protection.
  Guess how the Democrats thought about trying to reduce that CBO 
scoring. They sought to reduce the CBO scoring by taking away legal 
remedies currently available to those in ERISA health plans.
  A Patients' Bill of Rights should not be about taking away existing 
rights. The fact of the matter is, the Kennedy bill would put health 
care out of reach for close to 2 million Americans. It is not in this 
country's best interest to pass the kind of legislation that will make 
insurance less affordable and less accessible to those who need it 
most.
  I thank the Chair, and I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I rise to address the amendment.
  Mr. REID. Mr. President, if the Senator will yield, I yield the 
Senator 3 minutes on the amendment.
  Mr. DURBIN. Mr. President, the amendment proposed in the second-
degree amendment by the Republican side states a principle which is 
universally popular in the Senate. It is this: If you are a self-
employed person buying health insurance, you should be able to deduct 
the cost of that health insurance from your taxes like other Americans 
do.
  I introduced legislation along these lines more than 10 years ago in 
the House. I introduced it in the Senate with Senator Bond of Missouri 
and Senator Collins of Maine. It is bipartisan. It is universal. It 
will easily pass. And it is a diversion from the debate. It is a 
diversion.
  The Republicans want to talk about access to health insurance, which 
is important; the Democrats believe it is equally important to talk 
about the quality of the health insurance that you are buying.
  It is ironic as well that the Republicans offer this amendment so 
that the self-employed people in America can buy insurance. When I take 
a look at their underlying bill, which you might find surprising, it 
says those same people who will now be able to buy insurance will enjoy 
none of the protections of the Republican bill. On the one hand they 
say: Buy the insurance. But on the other hand they say: We can't 
guarantee that it is worth buying.
  The Democratic approach is consistent: Help families buy insurance, 
make sure the insurance policy is worth owning, make sure that in time 
of family crisis you are protected.
  The Republican approach is: We will help you buy it, but we cannot 
tell you whether it is worth buying or not.
  They argue it is a matter of States rights. This is such a weak 
argument when you consider the 200 different organizations--the 
American Nurses Association, the American Medical Association, all of 
the different groups for medical professionals--have said that State 
regulation is not enough; we do not have a consistent national standard 
of protection for American families. That is what the Democratic side 
is offering: a consistent national standard.
  It bothers those on the Republican side. They do not want to see this 
consistency. They think people who live in Oklahoma deserve perhaps 
more rights than those who live in Maine. They think people who live in 
Nevada should be treated differently than people in Illinois. I 
disagree. Wherever you live in America, if you buy health insurance, 
you ought to know that it protects your family. To leave it to State 
legislatures and to leave over 113 million Americans behind, as the 
Republicans have done with their approach, is not fair.
  This second-degree amendment, which allows self-employed people like 
farmers and businesspeople to buy health insurance, is so universally 
popular we can accept it with a voice vote. But let it not divert us 
from our mission at hand: to make sure the insurance that every 
American buys is worth owning.
  I yield back the remainder of my time.
  The PRESIDING OFFICER. Who yields time? The Senator from Oklahoma.
  Mr. NICKLES. Mr. President, I was a little disappointed when I heard 
my colleague say the Republican amendment is a diversion. The 
Republican amendment is an effort to increase access to quality health 
care for the self-employed. We have 43 million Americans who are 
uninsured today. We want to help them get insurance.
  A large number of the people who are uninsured are self-employed. 
They are in small businesses. Small businesspeople who are just 
starting their businesses sometimes have a hard time getting quality 
fringe benefit packages. Almost all of the larger corporations have 
health insurance and pension benefits. But most job growth is in small 
businesses, and a lot of small businesses have not had time yet to 
develop and expand a fringe benefit program, including access to 
quality health care.
  When they find out they can deduct 100 percent of their wages but 
they cannot deduct but 45 percent of their health insurance cost, what 
do you think most self-employed people are going to do? They might tell 
their employees: I will just give you the money and you buy the 
insurance yourself; I cannot deduct it so why spend it? I want to spend 
my money in my business operations. Everything I spend should be 
deductible.
  It is not. We are trying to remedy that.
  I am glad my colleague from Illinois says we have bipartisan support. 
I know we passed a provision a year or two ago that phased it in 
gradually, but that is too long. We want to make it effective now. We 
want to make it where the self-employed get to deduct 100 percent of 
their health care costs just like corporations. Why not do it now? That 
is not a diversion.
  When we promote our bill, we say Patients' Bill of Rights Plus. What 
is the plus? We want to increase access. That is in stark contrast to 
the Kennedy bill which will decrease access. Their bill dramatically 
increases health care costs, and when you increase health care costs, 
you are going to be driving a lot of people into the ranks of the 
uninsured. We do not want to do that. That is not a diversion. It just 
happens to be a fact.
  We want to make health insurance more affordable. The people who 
cannot afford it, in many cases, are self-employed, and they get the 
short end of the stick in the Tax Code. They are not treated fairly in 
the Tax Code. We are trying to remedy that. That is what we have in our 
amendment.
  Also, we have in our amendment a finding of the Senate that, frankly, 
HCFA does not do a very good job in many cases. Despite what our 
colleagues say--we want all these people to have assurances and we want 
them to have all these guarantees. They are basically saying: We want 
the Health Care Financing Administration of the Federal Government to 
regulate insurance--we are saying no, that really

[[Page S8239]]

should not be the prerogative of the Federal Government to duplicate, 
override, overrule State regulation of insurance plans.
  There is a difference. I am amazed that people keep making the 
comment: The Republican plan leaves all these people unprotected, as if 
the States are not doing anything. Every State has a regulatory regimen 
set up to regulate health insurance under their plans, and our 
colleagues evidently on Senator Kennedy's side seem to think whatever 
the States are doing is not good enough; we know better, in spite of 
the fact, if you look at HIPAA, the Health Insurance Portability and 
Accountability Act that Congress passed in 1996, there are five States 
that are not complying. HCFA is supposed to be regulating those plans, 
and they are not. They are not complying with the law that we passed 3 
years ago. The State of Massachusetts is one of the States that is not 
complying. Maybe I have too much faith in the States, but I cannot help 
but think the State of Massachusetts is still interested in making sure 
employees have portability and continuity of coverage, so I am not 
really faulting the State. I just find it ironic that some people seem 
to think: Whatever the States are doing, it's not good enough. We know 
better. And HCFA, this grand almighty bureaucracy of the Federal 
Government, can do better than the States. I disagree with that.

  So the second-degree amendment that we have states two things: One, 
findings that the primary regulatory authority of insurance should be 
done and handled by the States, not the Federal Government; and, two, 
we should help the self-insured be able to have equitable tax treatment 
comparable to corporations; they should be able to deduct 100 percent 
of their health care costs.
  I just hope that our colleagues, if they agree in the primacy of 
States, if they believe in State regulation, if they believe in the 
10th amendment to the Constitution that says all other rights and 
powers are reserved to the States and to the people, respectively, will 
adopt this amendment. I hope we will when we vote on this. For the 
information of our colleagues, I expect the vote will occur sometime 
tomorrow, most likely after the policy lunches.
  Mr. President, I yield the floor.
  Mr. GRAHAM addressed the Chair.
  The PRESIDING OFFICER. The Senator from Florida.
  Who yields time?
  Mr. NICKLES. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative assistant proceeded to call the roll.
  Mr. GRAHAM. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded for purposes of a parliamentary inquiry.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRAHAM. Mr. President, I had thought that the Senator from 
Oklahoma was yielding back the remainder of the time on that amendment.
  Mr. NICKLES. No.
  Mr. GRAHAM. Therefore, I was going to offer the next in order second-
degree amendment.
  Mr. NICKLES. To clarify, I did not yield back the remainder of the 
time. I yielded the floor, just for the information of my colleagues.
  Mr. GRAHAM. Mr. President, parliamentary inquiry. How much time is 
remaining on this amendment?
  The PRESIDING OFFICER. The Democrat side controls 47 minutes; the 
Republican side controls 26 minutes.
  Mr. GRAHAM. Is the time running during the quorum call?
  The PRESIDING OFFICER. It was.
  Mr. GRAHAM. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative assistant proceeded to call the roll.
  Ms. COLLINS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. COLLINS. Mr. President, I yield myself such time as I may consume 
on the amendment.
  The PRESIDING OFFICER. The Senator from Maine is recognized for such 
time as she may consume.
  Ms. COLLINS. Mr. President, I regret that my colleague and friend 
from Illinois, Senator Durbin, has temporarily left the floor because I 
wanted him to hear my comments.
  I want to start by commending the Senator from Illinois who has, 
indeed, been a leader in the effort to provide 100 percent tax-
deductibility for health insurance purchased by self-employed 
individuals. I have been proud to be a cosponsor of the legislation he 
has introduced, as well as an identical bill introduced by Senator 
Bond, the chairman of the Senate Small Business Committee.
  This issue has been an important one to me. I believe it will help 
many of our small business men and women throughout this Nation, 
including the 82,000 Mainers who are self-employed. They include, as 
you might suspect, many of our farmers, our fishermen, our lobstermen, 
our hairdressers, our electricians, our plumbers, our small shop 
owners. They are the ones who find it very difficult to afford the 
costs of health insurance.
  Indeed, the part of Maine's population that has the most difficulty 
in affording health insurance is our self-employed individuals. By 
providing 100 percent deductibility for health insurance, we can assist 
these individuals in affording health insurance coverage. We thus will 
be taking a very important step toward reducing the number, the growing 
number, of uninsured Americans.
  But this provision is important for another reason. It is important 
as a matter of equity. Right now a multinational corporation can deduct 
100 percent of the cost of health insurance premiums for its employees, 
and yet the Tax Code discriminates against self-employed individuals. 
It allows self-employed individuals to deduct only 45 percent of the 
cost of the health insurance they purchase. That is simply unfair. So 
this corrects an inequity in our Tax Code, and it is important in terms 
of expanding access to health insurance.
  I disagree with those on the other side of the aisle who contend, 
however, that somehow this very important provision does not belong on 
this bill, that it is a diversion of some sort. That statement tells me 
that my friends on the other side of the aisle still do not understand 
the crux of this debate. The crux of this debate is, are we going to 
pass legislation which will drive up the cost of health insurance to 
the point where we jeopardize coverage for 1.8 million Americans? That 
is the crux of this debate.
  This debate is not only about holding HMOs accountable for the care 
that they promise; it is not only about improving the quality of care; 
it is not only about ensuring that people who are denied care that they 
need have the remedies to give them that care to ensure that care is 
provided before harm is done, but also this debate is about ensuring 
access to health insurance.
  The single most important determining factor about whether or not 
people have health insurance is its cost. We face a growing problem 
with uninsured Americans in this country. It has gone to a record high 
43 million Americans who lack health insurance. That is a terrible 
situation.
  We should not be passing any legislation that is going to exacerbate 
that problem. Yet that is exactly what the Kennedy bill would do, by 
driving up the cost of health insurance to the point where it would 
jeopardize coverage for 1.8 million Americans. That is more than the 
population of the entire State of Maine. The last thing we need to do 
is to increase the pressure to drive up the cost and jeopardize 
insurance for working Americans.
  The second part of Senator Nickles' amendment is also important. It 
affirms the Federal policy that was passed back in the 1940s when 
Congress passed the McCarran-Ferguson Act giving the States primary 
responsibility for insurance regulation. Some on this side of the aisle 
apparently believe that we need a debate on the McCarran-Ferguson Act. 
Fine. Let's have a debate on that. But we should recognize that until 
we repeal or change the McCarran-Ferguson Act, it is the policy of this 
country and the law of the land that the States, not the Federal 
Government, have the primary responsibility for the regulation of 
insurance. It is a system that has worked well for more than 50 years.
  As someone who was responsible for the Bureau of Insurance in the 
State of

[[Page S8240]]

Maine for 5 years, I know firsthand what a good job our State 
regulators do and how seriously they take their responsibility of 
protecting consumers. Indeed, in my capacity as commissioner of the 
Department of Professional and Financial Regulation, I worked hard to 
strengthen the consumer division of our Bureau of Insurance.  We took 
enforcement actions against insurance companies that did not live up to 
the letter and the spirit of Maine's law. I can tell you that I know 
the people of Maine would much rather make a phone call to Augusta to 
the Bureau of Insurance and to ask for help--it has actually moved to 
Gardiner now--but to ask for help from the Bureau of Insurance's 
Consumer Division than to try to figure out the maze of Federal 
regulation and call the ERISA office in Boston for assistance. I don't 
think that is serving our consumers well.

  I urge my colleagues to support Senator Nickles' amendment. It is an 
important amendment that will help expand access to health care while 
reaffirming the wisdom of the policy adopted more than 50 years ago 
when the Federal Government gave responsibility to the States to be the 
primary regulator of insurance.
  Mr. President, I yield the floor and reserve the remainder of the 
time on our side.
  The PRESIDING OFFICER. The Senator from Florida.


                         Privilege Of The Floor

  Mr. GRAHAM. Mr. President, I ask unanimous consent that two members 
of my staff, Mr. Matt Barry and Ms. Melanie Nathanson, be granted the 
privilege of the floor for the balance of consideration of this 
legislation.
  The PRESIDING OFFICER (Mr. Fitzgerald). Without objection, it is so 
ordered.
  Mr. NICKLES. Mr. President, will the Senator mind repeating the 
request?
  The PRESIDING OFFICER. It was floor privileges.
  Mr. NICKLES. No objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. NICKLES. Mr. President, how much time remains on both sides on 
the amendment?
  The PRESIDING OFFICER. The Republican side holds 19 minutes, and the 
Democrat side controls 47 minutes.
  Mr. NICKLES. I yield 5 minutes to our colleague from Alabama, Senator 
Sessions.
  The PRESIDING OFFICER. The Senator from Alabama is recognized for 5 
minutes on the amendment.
   Mr. SESSIONS. I thank the Chair.
  Mr. President, I appreciate very much the outstanding remarks of the 
distinguished Senator from Maine on her experiences dealing with 
insurance issues in that State.
  I served as attorney general of the State of Alabama until a little 
over 2 years ago. I worked with the State insurance commissioner on a 
number of important issues. Each State in our Nation has an insurance 
commissioner. They have for many years worked to develop specific 
regulations of insurance plans within their own States.
  The reason we are here--and, in my opinion, it is for a legitimate 
reason --is because under the Federal law known as ERISA, certain state 
policies are preempted. That is what this Congress should concern 
itself with: the kind of health care plans that cannot be regulated by 
the States. States have set up policies regarding health care. They 
have passed regulations. The insurance departments have promulgated 
their own regulations to address managed care concerns in their own 
states, and I think it is healthy that that happens.
  Therefore, it is appropriate that we in Congress focus only on the 
policies and insurance programs that fall under the federal law ERISA.
  Many have attempted to create an aura of fear by saying that health 
care in America is failing and in great danger, and that people can't 
count on their health care anymore. That is not what the people of 
America are saying. I am not hearing them say that to me when I travel 
my State. When I have town hall meetings, they are not lining up and 
complaining about that issue. They are, in most instances, well 
satisfied. We can, and we will, help and improve health care in certain 
areas, but I am just not hearing really outrageous cries of widespread 
abuse.
  In fact, in March of this year, March 14 to be exact, the Mobile 
Press Register-University of South Alabama reported a poll of 
Alabamians concerning their views of health care. This is the question 
that was asked:

       I would like to ask you a few questions about health care. 
     Which of the following statements best describes your 
     family's health insurance coverage?

  A number of potential answers was listed. The one that received the 
highest vote: We have sufficient health insurance coverage. Sixty-nine 
percent of the people in Alabama said: We have sufficient health 
insurance coverage for our family.
  The second answer, which was the second highest vote getter at 7 
percent, was: We probably have more coverage than we need: We have 
insurance, but we don't have sufficient coverage: 16 percent. We do not 
have health insurance at all: 6 percent.
  Therefore, I suggest that what we in Congress need to do is recognize 
the fact that we have a good health care system in the United States. 
The first thing we should want to do is do no harm and not destroy it. 
When you have 76 percent of the people satisfied with their health 
care, then you have to conclude the system is doing well. In fact, we 
have the greatest health care system in the world.
  I will make one more point. I know the Senator from Missouri would 
like to make some comments, and I would like to yield the floor to him.
  The National Association of Insurance Commissioners has testified 
before our Health, Education, Labor, and Pensions Committee and on 
March 16, 1999, they sent a letter stating the official position of 
their association on the matter as to whether or not the federal 
government ought to have control over every plan in America.
  They said this:

       It is our belief that states should and will continue 
     efforts to develop creative, flexible, market-sensitive 
     protections for health consumers in fully-insured 
     plans. Those are the plans that the States can regulate 
     and do regulate data.
       Congress should focus attention on those consumers who have 
     no protections under the self-funded ERISA plans.

  Now, that is exactly what this bill does. It focuses on those plans.
  My time is up, and I yield the floor. I believe the legislation as 
proposed is precisely the course we should take.
  The PRESIDING OFFICER. Who yields time?
  Mr. NICKLES. Mr. President, I yield to the Senator from Missouri, who 
has been one of the principal sponsors of deductibility for the self-
employed in the Senate. How much time do we have remaining?
  The PRESIDING OFFICER. The majority side controls 14 minutes.
  Mr. NICKLES. I yield the Senator 13 minutes and 30 seconds, reserving 
30 seconds for myself.
  The PRESIDING OFFICER. The Senator from Missouri is recognized for 13 
minutes 30 seconds.
  Mr. BOND. Mr. President, I thank the Chair and I thank my 
distinguished colleague from Oklahoma. In a gesture of goodwill, I ask 
that the Chair notify me when 13 minutes is up because I would like to 
hear a full minute from the Senator from Oklahoma. I very much 
appreciate the opportunity to discuss the amendment that the Senator 
from Oklahoma has addressed and sent to the floor.
  First, let me put into context some of my views about the competing 
Patients' Bill of Rights. I happen to be very proud to be a supporter 
of the majority or Republican Patients' Bill of Rights Plus. I am proud 
to be one of 50 Senators who cosponsored the majority bill, and I will 
be proud to vote for the legislation.
  As with anything we do up here, there are probably some ways you 
could say it is not perfect. But I believe it is the best approach we 
have before us that places reasonable controls on managed care 
companies, while also helping rather than hurting access and coverage 
problems.
  That is something that is extremely important to many Americans--
having access and getting the coverage they need.
  When we look at the competing proposals, I think it is good to drop 
back to the first rule of medicine, which is do no harm. I am stunned 
that with the bill offered on the other side, described as helping 
patients, we are faced with the fact, according to the Congressional 
Budget Office and others, that

[[Page S8241]]

over a million people who have health insurance today probably can't 
afford it tomorrow, and that thousands more who were thinking they 
would be able to get insurance would see that opportunity snatched away 
if their bill, which would drive up costs, were to pass.
  I wonder how anyone can support such a backwards proposition that we 
are willing to price people out of health care in the name of helping 
them. That is a fatal flaw, as I see it, in the Kennedy plan: too much 
cost; too little gain.
  In contrast, our Patients' Bill of Rights Plus contains basic, 
reasonable, commonsense patient protections; access to emergency room 
care for which their health plan will pay. Americans shouldn't have to 
worry that their insurance won't pay for necessary emergency room care. 
Our bill guarantees that patients have information on treatment 
options. Doctors and patients need to be able to discuss openly all 
possible treatment options without gag rules.
  Our bill provides access to a quick, independent, expert appeals 
process. Patients should get the care they need when they need it. 
There has been a lot of talk on the other side about how we need to 
open up the courts for more costly litigation. Well, frankly, we don't 
want to see widows or orphans having to sue because their breadwinner 
did not get the health care he or she needed. We want to make sure they 
get that care promptly, efficiently, and effectively.
  I am very pleased that the Patients' Bill of Rights Plus contains 
important pediatric and maternal health care protections, which I 
introduced earlier this year in what we call the Healthy Kids 2000 
legislation, which had broad support from major health care supporters, 
including children's hospitals and pediatricians, who are concerned 
about care for children.
  The Patients' Bill of Rights Plus gives the right for a child to go 
see a pediatrician without going through a gatekeeper. It gives the 
right for a child to see a specialist with pediatric expertise, 
including going to children's hospitals when necessary. It gives the 
right to a woman to have direct access to an obstetrician or 
gynecologist without having to go through some gatekeeper. It gives the 
right to have a pediatric expert review a child's case when appealing 
an HMO decision. In other words, somebody who treats kids will be the 
one who will oversee the decision and be able to participate in the 
external review as to whether the kind of care the HMO proposes for a 
child is appropriate for that child.
  But just as important as what is in our Republican bill, the 
Patients' Bill of Rights Plus, is what isn't in it. It doesn't contain 
the same costly bureaucratic provisions the Democratic bill has. One 
would have thought they would have learned something when we had the 
health care debates of 1993 and 1994, the Clinton plan, which had the 
Federal Government and its bureaucracy controlling health care. When 
people took a look at that dog and found out how mangy it was, it 
failed, not because the Republicans beat it, but because nobody was 
willing to get out and support it--and with good reason. The more 
people looked at it, the worse it looked.
  Well, the Congressional Budget Office has given estimates that the 
Democratic bill could raise health care premiums anywhere from 5 to 6 
percent, depending on which version of the bill we are discussing. I 
have heard people on talk shows saying that is one Big Mac a month. 
Five percent of basic family health insurance at $3,600 a year--my math 
suggests that is a whole lot more than a Big Mac a month. We are 
talking in the neighborhood of $180 a year.
  CBO and others have told us that for every 1 percent increase in 
costs, a couple hundred thousand people will lose health care 
insurance. Under this bill, that means, under the Democratic version, 
over a million Americans or more could lose their health care coverage.
  I speak as chairman of the Committee on Small Business because cost 
increases for small businesses and small business employees is a No. 1 
concern. We have listened to small businesses, and we have heard from 
small businesses. They say: Please don't do us any more favors. Don't 
burden us with more costly health care plans. Small businesses are 
fighting to try to get economical, caring, compassionate, effective 
health care for their employees and for the business owners themselves. 
Small business owners are particularly sensitive to the issue of cost. 
Small businesses--the owners and their families, the employees and 
their families--would be the ones who would pay for an extravagant 
bill.

  Nearly 40 years ago, President Kennedy told the Nation that a rising 
tide would lift all boats. Unfortunately, the bill before us turns that 
concept on its head, and perhaps a new doctrine is that rising costs 
will sink health care hopes. To me, that is a major concern.
  As an alternative to this heavyhanded bureaucratic approach, the 
Patients' Bill of Rights Plus, offered by the Republicans, tries to 
increase access and coverage. Now, it is extraordinary and 
unconscionable that the bill we are debating, the Democratic bill, 
doesn't do anything to improve access to health care. It seems that the 
only thing our colleagues on the other side of the aisle can think of 
to improve access is to have Government-run care, like the Clinton 
health care plan of 1993 and 1994. Since that fell on its face a few 
years ago, they seem not to have had any good ideas about how to get 
more people health insurance.
  We need to increase access. Perhaps the most important part of our 
bill is the acceleration of the full deduction of insurance costs for 
the self-employed. I am very pleased that our distinguished majority 
whip, the Senator from Oklahoma, has introduced an amendment that 
achieves, for this year, full deductibility of health care costs. That 
means there is hope that the health care premiums paid this year will 
be fully deductible.
  Now, my colleagues, the Senator from Maine and the Senator from 
Alabama, have already discussed the importance of keeping insurance 
regulation at the State level. As a former Governor, I can tell you 
that government insurance regulation, run at the State level, is 
readily accessible, it is more professional, and it is more responsive 
to the needs of the citizens. That is why I agree with the portion of 
the amendment introduced by Senator Nickles which talks about moving 
away from Federal Government takeover of health care regulation.
  But I am particularly pleased that Senator Nickles has introduced 
full deductibility based on the Self-Employed Health Insurance Fairness 
Act of 1999, which I introduced on February 3 of this year. I am very 
proud to have 30 bipartisan cosponsors. We are making progress when we 
work on a bipartisan basis to assure full deductibility of health care 
costs for the self-employed. I am proud to work with my colleagues on 
both sides of the aisle.
  According to the Employment Benefit Research Institute's estimates of 
the March 1998 current population survey, there are 21.3 million 
Americans in families headed by a self-employed entrepreneur. Nearly a 
quarter--23.9 percent--of them have no health insurance. That is 5.1 
million uninsured Americans. Even more troubling, that means that the 
21.1 percent of the children in self-employed American families are 
uninsured; 1.3 million children have no coverage for annual checkups, 
let alone any major health care needs.
  This amendment would address these alarming statistics by providing 
an immediate--I mean right now, in real time--100 percent deductibility 
in order to make health insurance more affordable and accessible to 
hard-working entrepreneurs and their families.
  Let me add an additional perspective on the importance of this 
amendment. Today, one of the fastest growing segments of the small 
business community is the woman-owned business. Women are opening 
businesses at a very rapid rate. They are the ones with the 
entrepreneurial spirit. They may be operating out of their homes, they 
may be moving from another full-time job, or they may just have a good 
idea. But women are now seeing an opportunity to start up their own 
businesses, and we are very proud of the significant contributions they 
are making to our economy.

  According to statistics from the National Foundation for Women 
Businessowners, there are now 9.1 million women-owned businesses in the 
United States, which compromise almost 38 percent of all U.S. 
businesses.

[[Page S8242]]

In addition, between 1987 and 1999, the number of women-owned firms 
increased by 103 percent nationwide--more than double. The reasons for 
this explosive growth are manifold. Topping the list is greater 
flexibility in meeting the demands of family life, and the ability to 
spend more time with children.
  Even more impressive, the National Foundation for Women Business 
Owners reports that women-owned businesses employ more than 27\1/2\ 
million people, and that employment rate has increased by 320 percent 
over the past 12 years.
  Today, while self-employed woman business owners can deduct 60 
percent of their health care costs thanks to the strides that we made 
in previous years, that is still not on a level playing field with a 
large business which can deduct 100 percent. While the self-employed 
are slated to have full deductibility in 2003, what woman business 
owner or her family members can wait 4 more years to get sick?

  By making health-care insurance fully deductible now, the added tax 
savings will enable many women business owners to cover their health-
care needs and those of their children. In addition, it will encourage 
these women entrepreneurs to provide health insurance for their 
employees and their families.
  And we're not talking about a tax break for ``the rich'' when it 
comes to the health-insurance deduction for the self-employed. Recent 
estimates based on the March 1998 Current Population Survey indicate 
that 68.7 percent of families headed by a self-employed individual with 
no health insurance earn less than $50,000 per year.
  These are the people who we are trying to get health coverage. These 
are the people who need the benefit of full deductibility.
  Coverage of these entrepreneurs and their children through the self-
employed health-insurance deduction will enable the private sector to 
address the health-care needs of these individuals rather an expensive 
and intrusive government program.
  Currently, S. 343, from which my amendment is derived, has the 
bipartisan support of 30 cosponsors. It also enjoys overwhelming 
support of small business organizations including the National 
Association for the Self-Employed, the National Federation of 
Independent Business, the Small Business Legislative Council, the 
National Small Business United, and the Health Tax Deduction Alliance, 
to name just a few.
  I have also added a provision to the amendment to correct a disparity 
under current law that bars a self-employed individual from deducting 
any of her health-insurance costs if she is eligible to participate in 
another health-insurance plan. This provision unfairly affects 
entrepreneurs who are eligible for, but do not participate in, a 
health-insurance plan offered through a second job or through a 
spouse's employer. The bill ends this disparity by clarifying that a 
self-employed person loses the deduction only if she actually 
participates in another health-insurance plan.
  It has long been my goal that the self-employed have immediate 100 
percent deductibility of health-insurance costs. I have sought every 
opportunity to achieve that goal, and I will keep coming back until we 
get this job done. I commend the Senator from Oklahoma for pushing for 
this amendment on the bill so that we can have bipartisan, unanimous 
support for the effort to ensure that all Americans who are self-
employed will have the same kind of benefits in terms of taxes that a 
large corporation or its employees do; and that is 100 percent 
deductibility.

  I am very proud to be a cosponsor of this amendment. I ask all of my 
colleagues to join in supporting a very forward-looking amendment which 
deals with some of the significant problems in the underlying bill 
offered by our colleagues on the other side and makes significant 
changes to assure access to fair and equitable health care insurance 
for all Americans.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. NICKLES. Mr. President, I thank Senator Bond for cosponsoring 
this amendment, in addition to Senator Santorum, who is also a 
principal sponsor of this amendment, and Senators Hutchinson, Craig, 
and myself who are original sponsors.
  Mr. President, I inquire of my colleague from Nevada, is he prepared 
to yield the remainder of time on this amendment?
  Mr. REID. Yes. We are.
  Mr. NICKLES. Mr. President, if my colleague from Nevada is yielding 
back the remainder of time on the amendment, we likewise yield the 
remainder of time on the amendment.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative assistant proceeded to call the roll.
  Mr. NICKLES. 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. NICKLES. Mr. President, I ask unanimous consent that the 
Republican manager of the bill be allotted an additional 40 minutes on 
the bill itself.
  The PRESIDING OFFICER. Is there objection?
  Mr. REID. Reserving the right to object, on second thought, I tell my 
friend, the majority whip, we also want 40 minutes.
  Mr. NICKLES. Mr. President, I ask unanimous consent that both sides 
be allotted an additional 40 minutes on the underlying bill.
  The PRESIDING OFFICER. Is there objection?  Without objection, it is 
so ordered.

  Mr. NICKLES. Mr. President, I ask unanimous consent that the second-
degree amendment proposed by myself and Senator Bond and others be 
temporarily set aside.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The PRESIDING OFFICER. The Senator from Florida.


                Amendment No. 1235 to Amendment No. 1233

      (Purpose: To provide for coverage of emergency medical care)

  Mr. GRAHAM. I send an amendment to the desk.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Florida (Mr. Graham), for himself, Mr. 
     Reid, Mr. Chafee, Mrs. Murray, Mr. Durbin, Ms. Mikulski, Mr. 
     Schumer, Mr. Kennedy, Mr. Daschle, Mr. Baucus, Mr. Feingold, 
     and Mr. Dorgan, proposes an amendment numbered 1235.

  Mr. GRAHAM. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The text of the amendment is printed in today's Record under 
``Amendments Submitted.'')
  Mr. GRAHAM. Mr. President, on behalf of the Senators listed, I offer 
an amendment relative to emergency care services.
  This is a particularly critical issue because so many of the 
conflicts between beneficiaries and their health maintenance 
organizations occur in an emergency room setting.
  When the Senate in 1997 adopted provisions that extended to Medicare 
and Medicaid beneficiaries--the same rights that this amendment will 
now provide to all Americans--we discussed the fact that 40 percent--40 
percent--of the conflicts between Medicare beneficiaries and HMOs 
occurred in an emergency room setting.
  Questions of coverage, type of coverage, and what would happen after 
the patient was stabilized was the cauldron in which many of the 
disagreements between HMOs and beneficiaries were fought out.
  Just as the Medicare and Medicaid provisions which were adopted by 
the Congress and signed into law by the President have helped to 
relieve that tension for 70 million Americans, this amendment will 
attempt to do the same for the rest of Americans.
  This amendment also raises a couple of other important issues.
  One of those is what I call the ``big monster argument''--that 
anything that we do is going to inevitably lead to an escalation of 
cost and an escalation of Federal regulation and bureaucracy and an 
overwhelming of the patients' ability to get affordable health care.
  I would like to point out the first sentence of this amendment. The 
first sentence is essentially, if the health care plan offers emergency 
services, then these are the standards that will have to be met.

[[Page S8243]]

  The clear implication of that is that no HMO under this amendment is 
required to offer emergency room services. If the HMO wishes to go to 
its beneficiaries and say, Now, look, you are not covered if you go to 
the emergency room--you understand that--and the fee that you are going 
to pay for your HMO contract is predicated on the fact that emergency 
room services are not covered, the HMO has the prerogative of so doing. 
If the HMO gives the appearance that it is offering emergency room 
services, then it is required to offer credible emergency room services 
that comport to what the average American thinks they are going to get 
in an emergency room.
  So the ``big monster argument'' that this is going to have all of 
these adverse effects is irrelevant as long as the HMO plays by the 
rules. It cannot offer emergency room services at all. But once it 
purports to do so, it can't bait and switch and say, Yes, you thought 
you were getting comprehensive emergency room coverage, but in fact you 
are getting something much, much less.
  The second argument is what I call the ``checking off the boxes'' 
argument. We have heard it already. We will say, well, the plan of the 
Republicans offers an external appeal provision, and the Democratic 
plan offers an external appeal provision. So we check both of them with 
an equally large mark. We have an emergency room provision. You have an 
emergency room provision. Check, check--both get the same large mark.
  The problem is that it is not just a matter of checking off the 
boxes. It is a matter of seeing what inside the box. What are the 
actual words? What is the detail? Words make a difference. Details 
matter. We are not talking about semantics or legalisms. We are talking 
about whether in the final analysis the beneficiary--the American 
family--gets the kind of protection that they think they paid for.
  There will be other colleagues who will discuss important 
distinctions between the two bills. I want to focus on two of those 
differences.
  I look forward to a debate with my Republican colleagues on these two 
differences, whether they are meaningful, and whether they have 
properly stated what the Republican provisions are. The first of those 
distinctions is hidden in the Republican bill in language which 
effectively eviscerates the ``prudent layperson standard'' that is at 
the heart of the emergency care provision.

  What is the prudent layperson standard? This is a standard which is 
now in the Medicare law and the Medicaid law by action of Congress. It 
essentially says if a prudent layperson--a layperson of normal 
intelligence and knowledge of health and medical matters--thinks 
symptoms occurring require urgent attention, that prudent layperson can 
then seek the attention of the most available emergency room, and the 
HMO will be responsible for paying the costs of that emergency room 
service.
  How does the Republican bill eviscerate that basic principle, which 
now protects 70 million Americans on Medicare and Medicaid? The 
Republican bill allows for the imposition of ``any form of cost-sharing 
applicable to any participant or beneficiary (including copayments, 
deductibles, and any other [form of] charges . . . if such form of 
cost-sharing is uniformly applied under such plan with respect to 
similarly situated beneficiaries.''
  Now, what does that mean? It means that a patient who goes to a 
hospital that is not part of the network of the HMO will have to pay, 
according to the HMO's plans, for additional deductibles, coinsurance, 
and other charges, while a person who is in the same position of an 
emergency medical crisis, who goes to the in-network hospital will not 
be required to pay those additional out-of-network charges.
  The practical effect of that distinction is to create a strong 
economic incentive for the prudent layperson who thinks they have 
symptoms requiring emergency attention. If they understand they could 
go to the emergency room which is 5 minutes away but which is not part 
of their HMO's network or they could go to the emergency room that is 
30 minutes away and be within the network of the HMO, and that there 
will be a significant economic differential as to what that choice is, 
then you have a prudent layperson making a critical decision. Will I go 
to the emergency room that offers the most immediate attention to my 
condition, or will I go to the emergency room where the cost will be 
less?
  How do we know this is what was meant in the Republican version of 
the emergency room provisions in the Patients' Bill of Rights? Because 
they said it in very clear language in the committee's report of this 
section, which appears on page 29. I will read from that report:

       The Committee believes that it would be acceptable to have 
     a differential cost-sharing for in-network emergency coverage 
     and out-of-network emergency coverage, so long as such cost-
     sharing is uniformly applied across a category (i.e. [across 
     all] in-network, out-of-network). . .[beneficiaries and 
     providers.]

  I suggest there goes the prudent layperson definition, or the 
rationale for the prudent layperson definition, right out the window.
  The Democratic plan provides explicitly that there will be parity 
payment between in-network and out-of-network emergency room services; 
that is, the prudent layperson would have the right to go to what is 
the most prudently accessible emergency room to get that service.
  I suggest what is good for 70 million Medicare and Medicaid 
beneficiaries should be good for all Americans. Patients should not be 
required to call an insurance bureaucrat to see if they can get 
emergency room care approved before they go to the emergency room. They 
shouldn't have to call their HMO before they call 911. That is the very 
thing we are trying to prevent. Patients should be able to seek the 
treatment wherever it can be provided--inside or outside the network--
and not be subject to economic compulsion.

  That is one important differential between the Republican and the 
Democratic bill. That little devil was in the details.
  Another provision called poststabilization is a crucial component of 
emergency room care. This provision relates to what happens after a 
person has gone to the emergency room, had that immediate treatment, 
and their condition is now stabilized; what happens next?
  Let me give an example. A person goes to an emergency room on a 
Friday night with shortness of breath, high fever, pain in the left 
side of their chest. They are diagnosed by the emergency room as having 
not a heart attack but acute pneumonia. The emergency room treats the 
patient with intravenous antibiotics and oxygen. The emergency 
department then calls the HMO to request one of two things be done: 
that the plan take responsibility for the patient by having the patient 
transferred to one of their in-network hospitals, or the plan authorize 
the admission of the patient to the treating hospital.
  Unfortunately, this is a Friday night, about 10 or 11 o'clock, and no 
one picks up the phone at the other end of the line. The hospital is 
stuck; the party is stuck. The hospital cannot transfer the patient to 
another facility but it can't get authorization to admit the patient to 
its own facility. As a result, the emergency room does admit the 
individual for treatment. On Monday, the patient goes home.
  The health care plan has not authorized the treatment. It now denies 
the claim, retroactively, after the hospital services have been 
provided. Under the Republican bill, the patient is responsible for the 
noncovered hospital bill, potentially for several thousand dollars for 
that weekend institutionalization.
  Under our amendment, the nonresponsive HMO would be financially 
responsible for that bill. Better yet, we see a different scenario. 
Under our amendment, we see the health plan with a positive incentive 
to coordinate the patient's care with the emergency department. The 
patient was transferred to a network facility, which in turn has saved 
all overall health costs both for the patient and the health plan--a 
win-win scenario.
  Let me give an example of this coordination. A parent brings their 
young child into an emergency room with a high fever. The emergency 
physician rules out a life-threatening illness. She brings the fever 
under control, thereby stabilizing the patient. However, follow-up care 
is necessary to determine the cause of the high fever and the extent 
and nature of the illness. The emergency room calls the

[[Page S8244]]

plan to get the plan to refer the child to a primary care doctor. The 
plan doesn't call back. What is the result? The child is admitted to 
the hospital overnight, potentially costing the family thousands of 
dollars of unnecessary hospitalization and emotionally traumatizing the 
child.
  Under the Republican proposal, the plan gets a double windfall. 
First, the plan saves the money of having to staff ``response 
capability,'' particularly on the weekend, and by not having personnel 
to respond to that emergency room call and to make treatment decisions. 
That is not all. The HMO also saves; when the emergency room treats the 
patient without prior authorization, the health plan can then go back 
and claim the care was unnecessary and refuse to pay.
  What the Democratic poststabilization provision is all about is 
simply requiring the health plan to take responsibility for the patient 
by answering the phone when the emergency room calls, and then either 
authorizing treatment, referring follow-up primary care, or 
transferring the individual.
  There are those who say this provision places an unwarranted burden 
on the HMO. But let's give an example of one of the Nation's oldest and 
largest health maintenance organizations, Kaiser-Permanente. Kaiser-
Permanente endorses this position and has implemented the 
poststabilization requirement voluntarily. Guess what. After all the 
discussion about cost and the desire to maintain affordable and 
accessible health care, this provision has saved Kaiser-Permanente 
money. How could it do that? Because Kaiser has found that by 
coordinating care with the emergency room, it has been able to avoid 
unnecessary admissions through providing followup care at an outpatient 
facility.

  I will quote from a letter signed by Mr. Don Parsons, the associate 
executive director for health policy development for Kaiser-Permanente. 
I ask unanimous consent the entire letter be printed in the Record 
immediately after my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See Exhibit 1.)
  Mr. GRAHAM. Mr. Parsons states:

       By assuring immediate response to telephone inquiries from 
     non-participating emergency facilities, we have been able to 
     provide substantial assistance to the emergency doctor who 
     otherwise is practicing in an isolated environment without 
     access to the patient's medical record.
       Our own emergency physicians on the telephone have offered 
     peer consultations, personally approved coverage for urgently 
     needed tests and treatment, arranged for the coordination of 
     follow up care, and implemented critical care transportation 
     of patients back to our own facilities. Of over 2,000 
     patients transported in this fashion, one third have been 
     discharged to their homes. Without this coordination of care, 
     these patients would have been hospitalized at needless 
     expense.

  For example, to go back to my hypothetical of the child with the high 
fever without signs of a bacterial infection, they could have been sent 
home if there were arrangements made for the child to see a doctor the 
next day. But absent the communication between the plan and the 
emergency room, the emergency room admits the child. If the insurance 
company plays by the rules, as Kaiser-Permanente, it will now be only 
out the $50 for a routine primary care visit rather than the $1,000 or 
more that it might be out if the child is admitted to the hospital.
  So why are companies such as Kaiser coordinating poststabilization 
care with emergency departments? They are doing it because it is good 
health care and it is good business. I point out again, this is the 
same provision that the Congress passed in 1997 as it relates to 
Medicare and Medicaid beneficiaries who currently have this 
poststabilization coordination of care coverage.
  So how the amendment is drafted, what the amendment says, what the 
details are, makes all the difference. This is not just a matter of 
checking off the box. It is a matter of looking inside that box to see 
if the prudent layperson provision, which both versions purport to 
offer--is it meaningful? The person who exercises prudence by going to 
the nearest emergency room, not necessarily the nearest emergency room 
that happens to be part of the network of the HMO, will they be 
financially protected?
  The person who has been stabilized--and now the question is what 
needs to be done to deal with the underlying cause of their symptoms--
will they be financially protected when the HMO fails to respond to the 
request for specific authorization? Those are the types of real 
differences that make the difference between the two alternative 
versions of emergency room care that are before the Senate.
  I urge my colleagues to study these differences and to be mindful of 
the other differences that will be articulated by the other cosponsors 
of this amendment. I urge their support for this amendment that makes 
emergency room care real for the families of America.
  I ask unanimous consent that two letters be printed in the Record: 
One from the American College of Emergency Physicians supporting the 
amendment that has been offered, and the letter from the American Heart 
Association supporting the emergency room provision that I and 
colleagues have offered.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:

                                                  American College


                                      of Emergency Physicians,

                                    Washington, DC, July 12, 1999.
     Hon. Bob Graham,
     Hon. John H. Chafee,
     U.S. Senate,
     Washington, DC.
       Dear Senators Graham and Chafee: The American College of 
     Emergency Physicians (ACEP), on behalf of its more than 
     20,000 physicians and the patients we serve, is pleased to 
     support your amendment, which will protect people with health 
     insurance who make reasonable decisions to seek emergency 
     care from claims denials by managed care plans. Today's 
     health care market warrants establishment of basic consumer 
     protections to ensure coverage for emergency services, and 
     ACEP believes that your amendment would provide such 
     safeguards.
       As emergency physicians, we applaud your efforts to prevent 
     health plans from denying patients coverage for emergency 
     services. Prior authorizations requirement for emergency care 
     and ``after-the-fact'' claims denials create barriers that 
     can place a patient's health at serious risk. Your amendment 
     provides those covered by private managed care plans with the 
     same ``prudent layperson'' standard that Congress provided 
     Medicare and Medicaid patients as a part of the ``Balanced 
     Budget Act of 1997.''
       Again, ACEP is pleased to offer its support of your 
     amendment, and we commend your leadership in proposing a 
     bipartisan solution.
           Sincerely,
                                      John C. Moorhead, MD, FACEP,
     President.
                                  ____

         American Heart Association, Office of Communications and 
           Advocacy,
                                    Washington, DC, July 13, 1999.
     Hon. Bob Graham,
     Washington, DC.
       Dear Senator Graham: The American Heart Association 
     strongly supports your amendment, to be offered today to the 
     patient protection legislation, which will ensure prompt 
     emergency room access. This important amendment is essential 
     to our mission of reducing death and disability from 
     cardiovascular diseases, the leading cause of death in 
     America.
       To reduce the devastation caused by cardiovascular 
     diseases, the American Heart Association is committed to 
     educating the public about the warning signs and the symptoms 
     of heart attack and stroke. Acting on this knowledge is often 
     the key to survival. In fact, every minute that passes before 
     returning the heart to a normal rhythm after a cardiac arrest 
     causes the chance of survival to fall by as much as 10 
     percent. Our consistent message to the public, therefore, is 
     both to know the signs and symptoms of heart attack and 
     stroke and to get emergency care as quickly as possible.
       However, unnecessary and burdensome obstacles often stand 
     between the patient and the emergency room door. Insurer 
     ``pre-approval'' processes for emergency care can impede 
     prompt treatment of heart attack and stroke. Delays in 
     treatment can significantly increase mortality and morbidity. 
     Our efforts to educate the public about the importance of 
     getting prompt treatment are severely hindered by these 
     ``pre-approval'' barriers.
       The American Heart Association applauds your efforts to 
     address these obstacles by ensuring the ``prudent layperson'' 
     definition of emergency. Any managed care reform proposal 
     that seeks to protect patients' rights must include this 
     prudent layperson standard.
       Thank you for your leadership on this important issue.
           Sincerely,
                                               Diane Canova, Esq.,
                                         Vice President, Advocacy.

  Mr. GRAHAM. And so, Mr. President, as I stated early in my remarks, 
how the amendment is drafted, and what the amendment says, makes all 
the difference.

[[Page S8245]]

  It's not good enough just to check off the boxes. That's why I urge 
the adoption of our amendment.

                               Exhibit 1


                                            Kaiser Permanente,

                                     Washington, DC, July 7, 1999.
     Hon. Bob Graham,
     U.S. Senate,
     Washington, DC.
       Dear Senator Graham: Since 1996, Kaiser Permanente has 
     supported the passage of federal legislation embracing the 
     Prudent Lay Person concept, which requires insurance coverage 
     of emergency services provided to people who reasonably 
     expect they have a life or limb threatening emergency. In 
     connection with this, we support a requirement that the 
     emergency physician or provider communicate with the health 
     plan at the point where the patient becomes stabilized. This 
     will allow for coordination of post-stabilization care for 
     the patient, including further tests and necessary follow-up 
     care. These concepts are contained in several bills currently 
     pending before Congress. I should note, however, that our 
     favoring of this language should not imply endorsement in its 
     entirety of any specific bill that deals with other issues.
       As a result of the Balanced Budget Act of 1997 with its 
     ensuing regulations applicable to Medicare + Choice and 
     Medicaid enrollees and the Executive Order applying the 
     President's Advisory Commission's Bill of Rights to all 
     federal employees, approximately 30 million Americans are now 
     the beneficiaries of a financial incentive to emergency 
     departments to communicate with the patient's health plan 
     after the patient is stabilized. This helps to ensure that 
     the patient's care is appropriate, coordinated and 
     continuous. It is important that emergency departments have 
     the same incentive to coordinate post-stabilization and 
     follow up care for patients who are not federal employees or 
     beneficiaries of Medicare or Medicaid. We have heard of 
     minimal problems implementing this standard in those health 
     plans participating in FEHBP and Medicare + Choice programs. 
     Since a federal standard is in place and working, it is good 
     policy to extend that standard to the general population.
       For the past ten years, we have implemented on a voluntary 
     basis a program that embraces these concepts of honoring 
     payment for the care our members receive in non-participating 
     hospital emergency departments up to the point of 
     stabilization. Our Emergency Prospective Review Program has 
     encouraged the treating physicians in such settings to 
     contact our physicians at the earliest opportunity to discuss 
     the need for further care. This has allowed us to make 
     available elements of the patient's medical record pertinent 
     to the problem at hand and to coordinate on-going care as 
     well as the transfer of the patient back to his/her own 
     medical team at one of our facilities. We have found this 
     program to be considerate of the patients' needs, emphasizing 
     both the urgency of treatment for the immediate problem as 
     well as the continuity of high quality care.
       This has been a cost-effective practice, affording the 
     patient the highest quality of care in the most appropriate 
     setting. By assuring immediate response to telephone 
     inquiries from non-participating emergency facilities, we 
     have been able to provide substantial assistance to the 
     emergency doctor who otherwise is practicing in an isolated 
     environment without access to the patient's medical record. 
     Our own emergency physicians on the telephone have offered 
     peer consultations, provisionally approved coverage for 
     urgently needed tests and treatment, arranged for the 
     coordination of follow up care, and implemented critical care 
     transport of patients back to our own facilities. Of over two 
     thousand patients transported in this fashion, one third have 
     been discharged to their homes. Without this coordination of 
     care, these patients would have been hospitalized at needless 
     expense.
       In summary, this program has served the needs of our 
     patients, the treating emergency physicians, and our own 
     medical care teams, while providing substantial savings in 
     both clinical expense and in administrative hassle over 
     retrospective approval of payment for services provisionally 
     approved through the telephone call. We are strongly in favor 
     of the post-stabilization coordination provision as an 
     essential element of the emergency access provision of the 
     Patients Bill of Rights.
           Sincerely,
                                            Donald W. Parsons, MD,
                                     Associate Executive Director.


  The PRESIDING OFFICER. Who yields time?
  Mr. REID. Mr. President, I yield myself such time as I may consume on 
the amendment.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, just briefly, the Senator from Alabama 
stated the State of Alabama had this great health insurance by some 
poll that he had conducted by, I think, South Alabama University.
  First of all, regarding coverage of emergency care, the State of 
Alabama is one of 12 States that does not use the prudent layperson or 
similar standard for emergency room treatment. In addition to that, 
with drug formularies, 36 States have no procedures for obtaining 
nonformulary drugs; Alabama is one of those. Access to clinical trials, 
47 States have no access to clinical trials; Alabama is one of those. 
Continuity of care, 29 States have no continuity of care provisions; 
Alabama is one of those. Bans on financial incentives, 28 States have 
no ban on financial incentives to providers; Alabama is one of those. 
Provider protections, 21 States have no protections for providers who 
are terminated; Alabama is one of those. Point-of-service options, 30 
States do not require that point-of-service plans be offered; Alabama 
is one of those. Coverage of emergency care, I have already stated 12 
States do not use a prudent layperson or similar standard; Alabama is 
one of those.
  The State of Alabama has 1,617,000 State residents who are not 
protected under the Republican plan; 62 percent of privately insured in 
Alabama are not protected under the Republican plan. So I do not know 
about the poll in South Alabama, but I know what the facts are. The 
facts are that State is similar to many States. That is why groups 
support our Democratic Patients' Bill of Rights.
  Why do I say groups? Hundreds of groups. They are already on the 
record, the groups that support us, a listing of some of the groups 
that support us. Alliance for Lung Cancer Advocacy, Alzheimer 
Association, American Academy of Child and Adolescent Psychiatry, 
American Academy of Emergency Medicine, American Academy of 
Neurologists, American Academy of Pediatrics, American Academy of 
Physical Medicine and Rehabilitation--over 200 groups support this 
legislation, over 200.
  In addition to that, we have a unique situation. The doctors and the 
nurses have joined with the lawyers to support this legislation. It is 
a unique day in American legislation when we can say not only do the 
doctors support this--the American Medical Association does, all the 
specialty groups--but in addition to that the lawyers support it.
  I suggest people coming in, bragging about the other bill, the 
majority's bill, they are talking about--the junior Senator from Maine 
said all we want to do is ensure access. I respectfully submit they 
want to ensure the insurance companies continue to rip off the American 
public. That is what that legislation is about. That is what they are 
trying to ensure, and this legislation is meant to stop that.
  The PRESIDING OFFICER. Who yields time? The Senator from Tennessee.
  Mr. FRIST. Mr. President, I yield myself 10 minutes on the amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FRIST. Mr. President, we have a number of issues on the floor 
today--the underlying bill that has been introduced and a substitute 
bill. We have talked some about scope today. Now we are talking about 
emergency services. I think it is important that people understand that 
both of the underlying bills do have parts which address this access to 
emergency medical care. It is absolutely critical that over the course 
of today and on future amendments on emergency care we appropriately 
address a bill of rights that does have a real impact because there is 
no way we can responsibly leave this debate without addressing the 
fear, the fear which is supported by anecdote--I do not know how big of 
a problem it is, but it is a fear and that means we have to deal with 
it and we should deal with it--of having a heart attack or chest pain 
or laceration or broken arm or a sick child and going to an emergency 
room, and in some way, for some reason, having that care denied or be 
channeled to emergency rooms that are across town, all of the sorts of 
things that are truly frightening and are really unconscionable. 
Therefore, it needs to be addressed and needs to be addressed well.
  The amendment today brings up an issue of poststabilization, which I 
think needs to be addressed, and I will carefully look at the 
amendment.
  Poststabilization is a point after which you have gone to the 
emergency room, gone through screening, and gone through treatment. 
Then what happens? Again, it looks at a more complete picture, and we 
need to make sure what we ultimately pass several days from now 
addresses that adequately and appropriately, given the

[[Page S8246]]

realities of the managed care, coordinated care, and fee-for-service 
system.
  Let me briefly comment on what is in our Republican bill. This was 
discussed in the Health, Education, Labor, and Pensions Committee. We 
talked about emergency access, and we talked about some of the other 
issues as it went through the committee.
  What passed out of committee, and is before this body, is as follows: 
We require group health plans that are covered by the scope of the 
bill--and the issue of scope has come forward--to pay, without any sort 
of prior authorization, for an emergency medical screening exam. If you 
go to the emergency room, that exam, using a prudent layperson 
standard, which has just been discussed--meaning, if you are at a 
restaurant and you have chest pain, you think it might be a heart 
attack, you know it is an emergency or you feel it is an emergency, and 
you go to the emergency room. They say it is indigestion, not a heart 
attack; therefore, they are not going to cover it. The prudent 
layperson --that is, the average person in terms of medical knowledge 
in America today--says there is no way I am going to know if it is an 
emergency or not, if it is serious or not. We reach out, using the 
prudent layperson standard, and cover that individual.
  You would not have to have prior authorization. That would be for an 
emergency medical screening exam and any additional emergency care that 
is required to stabilize that condition.
  Stabilization is difficult. As a physician, when I think of 
stabilization, because I am a heart surgeon, I think of heart failure 
and blood pressure, going into shock, and all sorts of bad things 
happening overall. Stabilization might also mean if you have a broken 
arm or if you have a laceration. The definitions are important as we go 
forward.
  Mr. GRAHAM. Mr. President, will the Senator from Tennessee yield for 
a question?
  Mr. FRIST. Let me finish walking through what is in the Republican 
proposal first.
  The stabilization end of it is important. I mention that because we 
are talking about a period of poststabilization--after you are 
stabilized. Again, the Republican bill covers, through the screening 
and stabilization process, using that prudent layperson standard.
  We define in our bill what a prudent layperson is, and that is an 
individual who possesses an average knowledge of health and medicine. I 
think that is as good a definition as one can generate, and the concept 
of prudent layperson I believe is accepted by both sides.
  As to the cost-sharing aspect, again looking at what is in the 
Republican bill which was introduced earlier today, plans may impose 
cost sharing on emergency services, but the cost-sharing requirement 
cannot be greater for out-of-network or out-of-plan emergency services 
than for in-network services. That is very important, because I have 
heard several people allege, no, you can charge anything, you can 
charge much higher than what in-network cost sharing is, and that is 
simply not true in the Republican bill.
  An individual who has sought emergency services from a 
nonparticipating provider or nonparticipating hospital or 
nonparticipating emergency physician cannot be held liable for charges 
beyond that which the individual would have had to pay if that 
physician were a member of that particular coordinated care plan or 
managed care plan or health maintenance organization.
  The important points are basically that you do not need prior 
authorization. It does not matter whether or not that facility is part 
of that plan or that HMO's network itself. So you can go to the nearest 
hospital if, using that prudent layperson standard, you have a concern 
that you have something that does need to be treated and treated very 
quickly.
  The prudent layperson would expect the absence of immediate medical 
attention to result in some sort of jeopardy to the individual's health 
or serious impairment--again referring back to that standard--or 
serious dysfunction of their body. Again, it is very difficult in terms 
of covering the overall realm.
  The poststabilization period: What happens after you go to the 
nearest emergency room, using that prudent layperson standard, not 
having to pay anything beyond what you would have to pay if you had 
gone to a facility in that network, you have had the screening exam and 
you have had that stabilization or that initial treatment.
  Poststabilization introduces: What if you are there and you had this 
chest pain and you found out it was just indigestion, but while you 
were there in that poststabilization period, the physicians find a spot 
on the chest x-ray that you need to rule out as lung cancer, or you 
have cholecystitis or right quadrant pain, and with a quick exam it is 
pretty clear another medical problem has been picked up. Does that fall 
into that poststabilization period? And, if so, does that treatment 
continue over time?

  Those are the questions we need to debate, we need to look at. We 
need to make sure we do not open the door so broadly that somebody 
basically goes to an emergency room with a complaint and it is taken 
care of, but 10 other complaints are found and that is an excuse to get 
all your care outside of that network simply because that might 
potentially circumvent the whole point of having care coordinated and 
to have a management aspect of coordinated care.
  Over the debate, as it continues tonight and in the morning, the 
poststabilization period is an important period we need to address. We 
do not want to create any huge loopholes through which people can 
slide. I am going to keep coming back to again and again that we have 
to do what is best for the individual patient, and we have to keep our 
focus on the patient, and we do not want to do anything that 
exorbitantly increases cost if it is unnecessary, if it is wasteful, 
because if we do that, we increasingly, by an increase in premiums--
somebody is going to have to pay for it--drive people to the ranks of 
the uninsured.
  I reserve the remainder of my time.
  Mr. GRAHAM. Will the Senator yield for a question?
  Mr. FRIST. I will be happy to yield.
  Mr. GRAHAM. First, on the question of prudent layperson, you are 
correct; both bills have essentially the same language on a prudent 
layperson, but there is a very sharp difference in terms of the 
economic exposure of that prudent layperson, whether they are in a 
hospital as part of the HMO's network or in a hospital that is not part 
of the network.
  The Democratic plan clearly states there must be parity of treatment; 
that is, if you are in an out-of-network hospital, you cannot be 
charged more than if you are in an in-network hospital.
  The Republican bill--and I will quote from the committee report, 
which is on our desks, on page 29. This is the committee that reported 
the Republican bill, the Labor Committee. The first full paragraph 
states:

       The committee believes that it would be acceptable to have 
     a differential cost-sharing for in-network emergency coverage 
     and out-of-network emergency coverage, so long as such cost-
     sharing is applied consistently across a category (i.e., in-
     network, out-of-network) and uniformly to similarly situated 
     individuals and communicated in advance to participants and 
     beneficiaries. . . .

  What that language seems to say to me is that under the Republican 
proposal, if you have a standard copay, let's say, of 20 percent if you 
are inside the HMO network but it is a 50-percent copay if you are out 
of the network, and you end up in the emergency room that is out of the 
network because it was the one closest to where you were when you had 
that chest pain, you may end up having to pay 50 percent of the 
emergency room bill rather than 20 percent that you would have had to 
pay in your in-network emergency room, which is what the Democratic 
bill would provide, that you would pay whatever emergency room from 
which you ended up receiving that emergency service.
  Mr. FRIST. The question is, in essence, what I said earlier about the 
differential cost sharing; if you go back and look at the committee 
report, if you go to an emergency room, you can be charged out-of-
network rates instead of in-network cost sharing. I do not have that 
report language before me right now, but if that is what is in the 
committee report, that is unacceptable to me. That is something that I 
am willing to work on in terms of the amendment process over the next 
several days because there is no question

[[Page S8247]]

in my mind as to the cost-sharing requirement, when you go into an 
emergency room, that you have to remove all barriers, that you can go 
to the closest emergency room, and that that cost-sharing requirement 
cannot be exaggerated or elevated to an out-of-network rate as we go 
forward.
  I will work with you in terms of this whole issue that the cost-
sharing requirement cannot be greater for out-of-network emergency 
services than for in-network services. That is a barrier that should 
not be there.
  Mr. GRAHAM. Mr. President, that response was so satisfactory and 
indicated the kind of spirit which I hope this debate over the next 
3\1/2\ days will sustain; that we are all trying to do what is best for 
patients and that we will work together to get to that end.
  I have no further questions.
  Mr. FRIST. Mr. President, let me just respond that I hope in my 
earlier comments in what I was saying about poststa-bilization--
although I have not seen the wording of the amendment, but I know from 
committee that the Senator is committed to this--in the 
poststabilization end of things, in terms of how far in the process of 
prudent layperson recognition, the presentation to the emergency room 
of your choice, the cost-sharing arrangement we talked about, the 
medical screening, the stabilization, the poststabilization period, I, 
again, want to work with the Senator as we go forward.
  I have to say it is a very complex issue as to how you trade back 
into the network, how you do that notification process. I worked in 
emergency rooms. I have been there. I worked for years in emergency 
rooms.
  When somebody comes in, the last thing you want to be thinking about 
is a lot of phone calls and calling networks--should we or should we 
not take care of that individual patient? On the other hand, after 
things settle down and you take care of the emergency in the emergency 
room, you have the heart going, you have resuscitated them, then at 
some point in time they have to make their entrance back into the 
coordinated care plan.
  So we have to be careful about poststabilization--at an appropriate 
time--but, again, doing what is right for the patient. So those two 
issues--the cost sharing and the poststabilization--I am committed to 
working with the Senator over the next several days.
  I reserve the remainder of my time and yield the floor.
  Mr. REID addressed the Chair.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. I say to my friend from Florida that was an excellent 
question. It does appear the Senator from Tennessee has indicated that 
the Republican version of the emergency care aspect of that bill is 
lacking and that he would support the provisions you have indicated, 
having parity in charging from one emergency room to the other. It was 
an excellent question.
  Mr. President, I yield 5 minutes to the Senator from Montana.
  Mr. BAUCUS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Montana.


                         Privilege Of The Floor

  Mr. BAUCUS. I first ask unanimous consent that my assistant, Brent 
Asplin, be allowed floor privileges during the remainder of this bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BAUCUS. Mr. President, I want to follow up on the dialogue we had 
between Senator Graham from Florida and Senator Frist from Tennessee. I 
think we are finally getting to the heart of the matter as to on why 
the amendment offered by the Senator from Florida really does make 
sense and why it saves money and at the same time helps the patients.
  I point out that this amendment contains identical language that this 
Senate has already passed 2 years ago with respect to Medicare and 
Medicaid--the same language. I frankly think it would not be wise--in 
fact, I think it would be a mistake--if the Senate were now to turn 
around and adopt a lower standard of care for Americans with private 
health insurance plans. It just does not make any sense.
  I must also say that both bills appear to provide coverage for 
emergency services using the prudent layperson standard. At least that 
is how it appears on the surface. The prudent layperson standard is the 
standard that guarantees emergency care without prior authorization in 
any case that a prudent layperson would regard as an emergency. Both 
bills appear to have that same standard.
  The question here is something that is a little bit different. The 
difference comes down to poststabilization services. The amendment 
before us today does offer coverage for poststabilization services. The 
Republican bill does not.
  What are poststabilization services? They are those services needed 
when a patient has been stabilized after a medical emergency. That is 
afterwards.
  Really, the debate about poststabilization comes down to two basic 
questions: First, is poststabilization care going to be coordinated 
with the patient's health plan or is it going to be uncoordinated and 
therefore inefficient?
  The second question is: Are decisions about poststabilization care 
going to be made in a timely fashion; that is, when they are needed, or 
are we going to allow delays in the decisionmaking process that will 
compromise patient care and also lead to overcrowding in our Nation's 
emergency rooms?
  Those are the two basic questions. Again, are the poststabilization 
services going to be coordinated with the health care plan or not; and, 
second, are these decisions going to be made in a timely fashion?
  We have heard a lot of rhetoric about how poststabilization services 
amount to nothing more than a ``blank check'' for providers. That is 
the major argument against this amendment. Is it going to provide for a 
``blank check'' for doctors, for hospitals, and for emergency care 
providers? If these provisions are a ``blank check,'' I might ask, 
then, why did one of the oldest, largest, and most successful managed 
care organizations in the country, Kaiser-Permanente, help create them 
in the first place?
  Kaiser-Permanente likes this because it knows it makes sense. It 
helps patient care and it helps reduce costs. Kaiser-Permanente is a 
strong supporter of the poststabilization provisions in our bill; that 
is, the provisions offered by the Senator from Florida.
  Why does Kaiser-Permanente support this? One simple reason. They 
realize that coordinating care after a patient is stabilized not only 
leads to better patient care but--guess what--it also saves money.
  Let me give you an example of how the poststabilization services in 
this amendment can actually save money.
  Just last week, while the Senate was in recess, I learned of a 40-
year-old woman who went to an emergency room complaining of numbness on 
the right side of her body. The symptoms began to improve in the 
emergency room, and she was diagnosed with what her physicians referred 
to as a ``mini-stroke'' or a ``TIA.'' This condition is a warning sign 
for the possibility of a more serious, debilitating stroke.
  The patient was stabilized in the emergency room, and the emergency 
physician attempted to contact the patient's physician but was unable 
to do so. The emergency doc tried to contact the patient's physician 
but could not. If the poststabilization provisions in our bill had been 
in place, it may have been possible to send this woman home to continue 
her tests as an outpatient. It would have been possible. It would have 
been probable because of the way she was stabilized.
  But because the plan and the private physician were not available to 
provide coordinated and timely followup care, the emergency physician 
had to admit the patient to the hospital. Now, I am confused. Why don't 
some of my colleagues support this provision? Why don't they support a 
provision that provides a pathway to more efficient medical care?

  Mr. President, I ask consent to speak for an additional 3 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BAUCUS. In this case, the outcome is very simple. A patient could 
have been discharged to home with follow-up care as an outpatient. 
Instead, she was admitted to the hospital because timely follow-up care 
couldn't be guaranteed through the health plan. Her hospitalization 
costs were much higher than the care she would have received as an 
outpatient.

[[Page S8248]]

  Now, I must say, too, we have heard many stories about the 
retrospective denial of coverage for poststabilization services. These 
services are not optional medical care. That is not what we are talking 
about. That is a red herring. We are not talking about optional medical 
care. We are talking about the situation where the emergency doc has 
time only to make sure the patient is taken care of, either admitted to 
a hospital poststabilization or coordinate a plan with the patient's 
doctor, some similar thing, not unrelated or just tangentially related 
optional medical care. That is a red herring. That is not what we are 
talking about.
  If my colleagues support the Graham-Chafee amendment, it is clear 
they will be voting for more efficient and more timely medical care. I 
hope the Republicans will join us to pass the real prudent layperson 
standard for emergencies. This standard has bipartisan support. It is 
endorsed by many professional organizations and consumer groups 
throughout the country.
  For example, just this afternoon I received an endorsement by the 
American Heart Association of the prudent layperson amendment offered 
by Senators Graham and Chafee. The American Heart Association states 
that the prudent layperson standard is ``essential to their mission of 
reducing death and disability from cardiovascular disease, the leading 
cause of death in America.''
  The American Heart Association wants this amendment because they know 
it is right. Kaiser-Permanente wants this amendment because they know 
it is right. There is no reason why this amendment should not pass, 
particularly when the same standard applies today because of a law 
passed by this Congress 2 years ago, to Medicare and Medicaid.
  I think it is common sense. I can't believe the objections to this 
amendment. I hope that after the other side thinks about it a little 
bit, they will realize that it does make sense and support it.
  Mr. President, I ask unanimous consent to have printed in the Record 
a letter to me from the American Heart Association endorsing this 
amendment.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                   American Heart Association,

                                    Washington, DC, July 13, 1999.
     Hon. Max Baucus,
     U.S. Senate,
     Washington, DC.
       Dear Senator Baucus: On behalf of the 4.2 million 
     volunteers of the American Heart Association, I urge you to 
     support Senator Bob Graham's amendment, to be offered today 
     to the patient protection legislation, which will ensure 
     prompt emergency room access. This amendment is essential to 
     our mission of reducing death and disability from 
     cardiovascular diseases, the leading cause of death in 
     America.
       To reduce the devastation caused by cardiovascular 
     diseases, the American Heart Association is committed to 
     educating the public about the warning signs and the symptoms 
     of heart attack and stroke. Acting on this knowledge is often 
     the key to survival. In fact, every minute that passes before 
     returning the heart to a normal rhythm after a cardiac arrest 
     causes the chance of survival to fall by as much as 10 
     percent. Our consistent message to the public, therefore, is 
     both to know the signs and symptoms of heart attack and 
     stroke and to get emergency care as quickly as possible.
       However, unnecessary and burdensome obstacles often stand 
     between the patient and the emergency room door. Insurer 
     ``pre-approval'' processes for emergency care can impede 
     prompt treatment of heart attack and stroke. Delays in 
     treatment can significantly increase mortality and morbidity. 
     Our efforts to educate the public about the importance of 
     getting prompt treatment are severely hindered by these 
     ``pre-approval'' barriers.
       The American Heart Association strongly supports Senator 
     Graham's efforts to address these obstacles by ensuring the 
     ``prudent layperson'' definition of emergency.
       Thank you for your consideration of this issue. We look 
     forward to your strong support for the Graham amendment.
           Sincerely,
                                               Diane Canova, Esq.,
                                         Vice President, Advocacy.

  Mr. KENNEDY. Mr. President, HMO's across the country are denying 
coverage for emergency care, and patients are suffering.
  A child has a severe fever, but his parents are forced to drive past 
the nearest emergency room to a distant facility that participates in 
the HMO's network. The child's hands and feet are amputated as a result 
of the delay in getting care.
  A middle-aged man has severe chest pain and believes he is having a 
heart attack, but finds out at the emergency room that it was merely 
indigestion. His HMO denies payment for the visit, leaving him with an 
expensive bill for tests to rule out his symptoms.
  A woman fractures her skull and is knocked out during a 40-foot fall 
while hiking. She is airlifted to a local hospital, but her HMO later 
denies coverage because she did not seek ``pre-authorization'' for 
emergency treatment.
  A teenager dislocates his shoulder in an after-school sports program 
in Massachusetts. Another student's mother--who happens to be a 
physician--saves his arm by performing an emergency procedure while 
waiting for his HMO to send an ambulance to take him to the hospital.
  Each case is unique, but all share a common theme. Patients are 
injured or stuck with the bill because their HMO tries to avoid 
responsibility for care that should be covered. According to a 
September, 1998, survey by Harvard University and the Kaiser Family 
Foundation, one in seven HMO patients report that their plan refused to 
pay for an emergency room visit, and one in ten say they have 
difficulty getting emergency care.
  Two years ago, Congress passed legislation with strong bipartisan 
support in the Balanced Budget Act that put a stop to these abuses for 
Medicare and Medicaid patients. As a result, America's elderly, 
disabled and low-income citizens can seek care at the nearest 
hospital--without financial penalty--when they believe they are facing 
a medical emergency.
  The Graham amendment and the Democratic Patients' Bill of Rights, 
which are strongly supported by the American College of Emergency 
Physicians, would extend those protections to all 161 million Americans 
with private health insurance.
  The Republican leadership claims to do the same in their proposal, 
but their so-called protections are missing key parts or are riddled 
with loopholes. They apply to fewer than one-third of privately insured 
Americans. According to the American College of Emergency Physicians in 
a letter dated June 22, 1999, S. 326, as reported out of Committee, 
``fails to achieve the promise of its section name. As drafted, [it] 
calls into serious question the underlying intent of the provision.''
  First, the prudent layperson standard applies only if the HMO happens 
to define emergency medical care exactly as the act does. Thus, plans 
may be able to avoid the standard simply by changing their definition 
of emergency care.
  Second, even if the prudent layperson standard were to apply, the 
Republican bill allows plans to charge patients more for going to the 
nearest emergency department, instead of the HMO's hospital. An 
amendment was offered in the committee to try to limit cost-sharing for 
patients who seek care at an out-of-network provider, but conflicting 
language in the legislation and accompanying Committee Report calls 
into question the true effect and intent of the amendment. The American 
College of Emergency Physicians calls the situation ``vague and 
confusing.'' Clearly, without this assurance, the protections offered 
by using a prudent layperson standard and removing prior authorization 
restrictions are moot. Patients will still feel pressured to seek care 
only at network hospitals--even if it means risking life or limb to get 
there--because they will fear the financial repercussions that may 
occur if they go to the nearest emergency room.
  Third, the Republican leadership bill does not ensure coverage and 
coordination of the care that is provided after a patient is stabilized 
in the emergency room. This is a critically important gap, and an area 
in which coverage can be confusing and disputes frequent. That is why 
Congress included coverage for post-stabilization care in the Balanced 
Budget Act's protections for Medicare patients. Senator Hutchinson 
included it in the legislation he cosponsored with Senator Graham last 
year. This year, however, Republican support for this important 
protection has disappeared, leaving millions of patients out in the 
cold.
  Coverage of post-stabilization care will not significally undermine 
an

[[Page S8249]]

HMO's relationships with particular facilities or become a vehicle for 
a hospital or patient to manipulate the system after care is provided 
at a non-participating hospital. It simply ensures that patients 
receive all necessary care before being transferred or discharged, and 
that they are not left with the bill simply because the HMO turns off 
its phones at 5 p.m. or refuses to coordinate with the hospital.
  Our plan would create a system to ensure that the treating provider 
and the plan begin a conversation to coordinate care as soon as 
practical once the patient arrives at the emergency room.
  I have heard my Republican colleagues argue that this protection is 
unnecessary because no hospital will discharge a patient until that 
patient is sufficiently stabilized. That may be true, but the problem 
we seek to address here deals with coverage, not treatment. Thanks to 
the anti-dumping Emergency Medical Treatment and Labor Act, under 
current law patients should received the care they need when they 
present with symptoms in an emergency room.
  But HMOs do not need to abide by this act--hospitals and doctors do. 
So, when the hospitals and doctors do their job and provide the care 
they think is necessary, the insurance company can later deny coverage 
for the care and patients are stuck with the bill.
  The Graham amendment, which I strongly support, would put a stop to 
this abuse by ensuring that all parties begin discussing proper 
treatment and coverage options at the earliest possible moment. This 
amendment is based on Medicare's provisions. It says that insurance 
companies must use a prudent layperson standard if they cover emergency 
services. It says patients should not be charged more for going to the 
closest, but non-participating hospital. And it says that coverage 
should extend for necessary post-stabilization care, too. Millions of 
families deserve this protection, and they are waiting for its passage.
  Mr. CHAFEE. Mr. President, today I urge my colleagues to join me in 
supporting meaningful emergency services protection for patients in 
managed care plans. I am happy to cosponsor this amendment with my good 
friend, Senator Bob Graham.
  This is one area where we should have little difficulty in coming to 
agreement--we have already extended this critical protection to 
Medicare and Medicaid beneficiaries as part of the Balanced Budget Act 
of 1997. Now it is time for the federal government to finish the job 
and provide all Americans with a single and consistent standard for 
emergency room coverage. What's good for our Medicare and Medicaid 
patients should be good for patients in private plans; there is no 
earthly justification for not extending this basic protection to all 
Americans. If a plan says it covers emergency medical services, then it 
ought to do just that--cover legitimate emergencies.
  Simply put, this provision establishes reasonable standards to 
guarantee that patients will have their emergency services covered by 
their insurance company--regardless of when or where they happen to be 
faced with the emergency. This question of where the emergency occurs 
is an important one--the very nature of an emergency situation suggests 
that the patient will not always have the luxury of going to an 
emergency room that is part of the plan's network. It is important for 
patients who reasonably believe they need emergency medical care to 
receive it without delay.
  There are several aspects to this provision that must be included to 
make it a meaningful protection for patients. I will quickly run 
through just a few of the most important:
  First, protection from higher cost-sharing must apply to emergency 
services received without prior authorization. When time is of the 
essence, the patient should not be held to prior authorization 
requirements.
  Second, if the patient is faced with an emergency, he or she should 
not be charged higher cost-sharing for going to an out-of-network 
hospital.
  Third, the patient must have the assurance that his or her plan will 
arrange for necessary post-stabilization care--either at the facility 
where the patient is being treated for the emergency, or at an in-
network facility--in a timely fashion. The best way to achieve this is 
through a reference to the post-stabilization guidelines already 
established in the Social Security Act.
  This so-called ``post-stabilization'' requirement has been widely 
mischaracterized as requiring plans to pay for a whole host of services 
unrelated to the emergency condition at hand. However, I want to make 
clear that the requirement is really one for coordination--that is, the 
plan must simply communicate with the emergency facility in order to 
coordinate the patient's post-stabilization care. If the plan fails to 
communicate with the treating emergency facility, then, and only then, 
could the plan be held responsible for payment of post-stabilization 
services. Furthermore, the services must be related to the emergency 
condition.
  Lest anyone doubt the importance of this coordination requirement--
for patients and plans alike--all we have to do is look at the 
experience of Kaiser-Permanente, one of our nation's largest and oldest 
health insurers. They have found the provision easy to implement, and a 
money-saver. In a letter to Senator Baucus dated June 24, 1999 they 
write ``Of over two thousand patients transported in this fashion, one 
third have been discharged to their homes. Without this coordination of 
care, these patients would have been hospitalized at needless 
expense.''
  All of these features are a part of the current law for Medicare and 
Medicaid beneficiaries, and have been extended to Federal employees by 
Executive Order. Patients in private health insurance plans deserve no 
less protection.
  In sum, with passage of this provision, patients will no longer be in 
the unreasonable position of fearing that payment for emergency room 
visits will be denied even when these emergency conditions appear to 
both the patient and emergency room personnel to require urgent 
treatment. Patients will be assured prompt access to emergency care 
regardless of whether the emergency happens to occur out of range of an 
in-network provider.
  I thank the Chair.
  Mr. GRAHAM. Mr. President, how much time remains on this amendment?
  The PRESIDING OFFICER. The Senator from Florida has 17 minutes 11 
seconds.
  Mr. GRAHAM. Mr. President, I yield myself such time as is necessary 
and ask to be notified when there are 5 minutes remaining for the 
proponents of the amendment.
  When I spoke earlier, I said the devil was in the details, and I took 
some time to talk about two of those details, which were the question 
of cost sharing, whether you went to an emergency room that was inside 
the HMO's network or outside the network and, therefore, created an 
economic incentive under the Republican plan to not go to the emergency 
room that might be closest and most appropriate and, in instances, the 
life-saving emergency room. Then we talked about poststabilization 
care, whether the HMO could, by just not answering the telephone, not 
giving authorization, put the hospital and the patient in the situation 
where they had to take either a medical risk or an economic risk.
  Let me mention two other specific areas which I think deserve the 
attention of the Senate where there are differences between the 
Republican and the Democratic proposal.
  First is the issue of what is the kind of initial care that one will 
receive when they go into the emergency room as a prudent layperson. 
That is, they have exercised common sense as a layperson, that they 
have a symptom that could be emergent in character and, therefore, they 
should go to an emergency room.
  In the Democratic plan, the definition of the services that will be 
provided are: A medical screening examination that is within the 
capability of the emergency department of a hospital, including 
ancillary services routinely available to the emergency department to 
evaluate an emergency medical condition. That is the definition of the 
services to which you are entitled.
  In the Republican bill, here is the definition: The plan shall 
provide coverage for benefits without requiring prior preauthorization 
for appropriate emergency medical screening examinations.
  Now, are we going to get into the situation a week, a month, a year 
after

[[Page S8250]]

the emergency services have been provided that there will be a raging 
debate between the emergency room physician and the HMO as to whether 
the services that were provided were appropriate? Or should we not use 
the language that is in the Democratic provision which clearly states 
that it will be those services that are within the capability of the 
emergency department of the hospital?
  The second concern is: What is the responsibility of the prudent 
layperson while you are lying there on the gurney having emergency 
diagnosis? Under the Republican plan, it states that to the extent that 
a prudent layperson who possesses an average knowledge of health and 
medicine would determine such examinations to be necessary to determine 
whether emergency medical care is necessary.
  Do they really mean to say that here is this person who is having 
symptoms of a heart attack, is stretched out, is attached to all kinds 
of medical equipment, is obviously in a very distressed physical 
condition and probably in a very distressed emotional condition, that 
now this prudent layperson has to be so prudent as to second-guess 
whether the examinations that the emergency room physician is providing 
are the kind of examinations that should be provided? Presumably, if 
the prudent layperson in that almost comatose state doesn't make the 
right judgment as to what examination the emergency room physician 
should be rendering, those services won't be covered by the HMO.
  That provision is so extreme as to shock the conscience of a prudent 
layperson who is just reading the language in the Republican bill. I am 
hopeful that the kind of spirit of common sense that our colleague, Dr. 
Frist, the Senator from Tennessee, expressed would apply to focusing on 
these provisions.
  The fortunate aspect of this proposal is that we don't have to 
totally operate in an environment of hope and guess. As the Senator 
from Montana stated, it has now been almost 3 years since this Senate 
and our colleagues in the House of Representatives, and the President 
of the United States, joined hands to adopt an emergency room provision 
for Medicare and for Medicaid covering almost 70 million Americans. We 
have had 3 years of experience under virtually the identical language 
that is now in the amendment before us.
  My exploration with emergency room physicians, who strongly support 
this amendment, with HCFA, the Federal agency with the responsibility 
for the administration of the Medicare program in conjunction with the 
States, of the Medicaid program, have not pointed out that there have 
been this parade of horribles as a result of that legislation. If 
someone has other evidence they would like to offer, I urge them to do 
so.
  I do not believe such testimony was given before the Labor Committee, 
when it considered this legislation, that indicated there had been a 
cratering of health care services in the emergency room for Medicare or 
Medicaid beneficiaries, or an escalation of cost as a result of the 
actions of the Congress and the President just some 3 years ago.

  So I suggest that the prudent senatorial course of action on this 
matter would be to adopt the amendment that is before us. It is an 
amendment that we have already voted on in previous years as it relates 
to Medicare and Medicaid. We have a positive track record. We don't 
need to take chances with the emergency room treatment of the other 
almost 190 million Americans who are not under Medicare or Medicaid.
  So in the spirit of the good will expressed by our colleague from 
Tennessee, I look forward to a close examination, and I hope that at 
the conclusion of that examination we will support and reaffirm the 
wisdom and judgment that we made in 1997.
  The PRESIDING OFFICER. Who yields time?
  Mr. GRAHAM. Mr. President, I suggest the absence of a quorum and ask 
unanimous consent that the time be charged to the opponents of the 
amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. 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. REID. Mr. President, I ask unanimous consent that the time during 
the quorum call run against both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. 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. REID. Mr. President, I ask unanimous consent that the time not be 
charged against either side on this quorum call that I am going to 
suggest.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. NICKLES. 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. HARKIN. Mr. President, today I stand in support of a strong 
Patients' Bill of Rights. S. 6, the Democratic leadership bill, is of 
immense importance to the American people.
  Some may ask, is such a bill necessary? Without question, it is. 
Currently, over 160 million of our family, friends, neighbors and 
children, are paying good money for health care with no guarantee of 
proper and appropriate treatment.
  We don't have to look too hard to see that there are too many cases 
where appropriate care is not being provided. We have all heard horror 
stories of individuals unable to see their doctor in a timely manner * 
* * of patients unable to access the specialist they need * * * of 
individuals unable to get coverage for the type of care they believed 
and expected was covered under their plan.
  It's very simple. Insurance either fulfills its promises or it 
doesn't. And we've heard enough to know that in too many cases it 
doesn't. Employers and patients pay good money for health care 
coverage, only to find that they're not getting the coverage they 
expected. In too many cases, the coverage they expected disappears when 
the need arises. I didn't have to look very hard to find such 
situations in my own state of Iowa.
  Let me tell you a story about Eric, from Cedar Falls, Iowa, who has 
health insurance through his employer. Eric is 28 years old, with a 
wife and two children. He suffered cardiac arrest while helping out at 
a wrestling clinic. He was rushed to the hospital, where he was 
resuscitated.
  Tragically, while in cardiac arrest, Eric's brain was deprived of 
oxygen. He fell into a coma and was placed on life support. The 
neurosurgeon on call recommended that Eric's parents get Eric into 
rehab.
  It was then the problems began. Although Eric's policy covered 
rehabilitation, his insurance company refused to cover his care at a 
facility that specialized in patients with brain injury.
  Thankfully, Eric's parents were able to find another rehab facility 
in Iowa. And Eric began to improve. His heart pump was removed, his 
respirator was removed, and his lungs are now working fine.
  But, even with this progress, Eric's family received a call from his 
insurance company saying they would no longer cover the cost of his 
rehab, because he is not progressing fast enough.
  Eric's mother wrote to me, saying, ``This is when we found out we had 
absolutely no recourse. They can deny any treatment and even cause 
death, and they are not responsible.''
  This week, here on the Senate floor, we have a critical choice before 
us. A choice for Eric and his family. A choice between real or 
illusionary protections. A choice between ensuring care for millions of 
Americans or for perpetuating the already burgeoning profit margins of 
the Managed Care industry.

[[Page S8251]]

  The Republicans have offered a bill that leaves out 115 million 
people because most of the patient protections in the plan apply only 
to self-funded employer plans. This would protect only 48 million of 
the 161 million with private insurance.
  Our bill establishes a minimum level of patient protections by which 
managed care plans must abide. States can--and it's my hope that states 
will--provide even greater protections, as necessary, for the 
individuals in such plans in their states. As a starting point, 
however, we need to pass a strong and substantive managed care reform 
bill.
  The American people want real patient protections.
  Our bill, the real Patients' Bill of Rights Act, delivers on what 
Americans want and need, real protection against insurance company 
abuse. The bill provides basic protections for Americans, such as:
  Access to needed specialists, including access to pediatric 
specialists;
  the guarantee that a patient can see a doctor who is not on their 
HMO's list if the list does not include a provider qualified to treat 
their illness;
  access to the closest emergency room and coverage of needed emergency 
care;
  the guarantee that patients with ongoing serious conditions like 
cancer, arthritis, or heart disease can see their oncologist, 
rheumatologist, or cardiologist without asking permission from their 
HMO or primary care doctor each time;
  the guarantee that patients can continue to see their doctor through 
a course of treatment or a pregnancy, even if their HMO drops their 
doctor from its list or their employer changes HMOs;
  the guarantee that patients can get the prescription drug their 
doctor says they need, not an inferior substitute the HMO chooses 
because it's cheaper;
  access to quality clinical trials for those with no other hope;
  the ability to appeal an HMO's decision to deny or delay care to an 
independent entity and receive timely, binding decisions;
  and, finally, the right to hold HMOs accountable when their decisions 
to deny or delay care lead to injury or death. Most situations will be 
resolved through our appeals mechanism. However, I believe that HMOs 
and insurers should not have special immunity when they harm patients.
  No one can argue with the need to ensure access and quality of care 
for Americans. Over 200 organizations representing patients, consumers, 
doctors, nurses, women, children, people with disabilities, small 
businesses, and people of faith support the Democrats' Patients' Bill 
of Rights.
  The Majority pretends that their bill offers real patient 
protections, but when you read everything below the title, it reads 
more like an insurers' bill of rights.
  We have a chance to pass real and responsible legislation. The time 
for real reform is now. The American people have been in the waiting 
room for too long.

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