[Congressional Record Volume 145, Number 99 (Wednesday, July 14, 1999)]
[Senate]
[Pages S8429-S8504]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  PATIENTS' BILL OF RIGHTS ACT OF 1999

  The PRESIDING OFFICER. The Senate will now resume 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.

  Pending:

       Daschle amendment No. 1232, in the nature of a substitute.
       Dodd amendment No. 1239 (to amendment No. 1232), to provide 
     coverage for individuals participating in approved clinical 
     trials and for approved drugs and medical devices.

  The PRESIDING OFFICER. Who yields time on the pending amendment?
  Mr. REID. Mr. President, I yield the Senator from California 7 
minutes.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. I thank the Chair, and I thank the Democratic whip for 
yielding me this time.
  Mr. President, I rise in favor of the Dodd amendment, which deals 
with access to clinical trials and access to prescription drugs. I 
think this is a very important amendment, and I am very proud to speak 
in favor of it.
  Yesterday, as I left the floor of the Senate, I realized what the 
score was for the people: Zero. In very close votes in each case, this 
Republican majority voted, with rare exception, for the HMOs and 
against the patients of this country. It is stunning to me to see that, 
a most amazing thing.
  As I discussed some of what happened yesterday with my Democratic 
friends, who happened to be women, we were all stunned at the vote 
against a very straightforward amendment by Senator Robb which 
basically said, after a mastectomy, a doctor should determine the 
length of stay. It is stunning to me that that couldn't pass the 
Senate. The hold and the grip of the HMOs is extraordinary.
  There is a cartoon in today's Washington Post that I find very 
interesting. It pictures huge campaign contributions. The Senator from 
Wisconsin talks about that all the time. I am not surprised people are 
cynical. All I hope is that they wake up and listen to this debate. 
This amendment on clinical trials is one they ought to listen to.
  What is a clinical trial? A clinical trial occurs when there is a 
promising new therapy for a condition, a disease for which traditional 
therapies are not working for everyone. So what happens is people will 
enroll in these clinical trials; usually, they are pretty desperate at 
that point because their disease is not responding well to the 
traditional therapies. They want to get into this trial, and they want 
to see if they have a chance at surviving. The good news about this for 
society is not only will this individual have a chance of surviving, 
but we learn about the therapy, and, of course, it is the way we have 
seen therapies move into the mainstream of treatment.
  Well, what is happening now with the HMOs--because they are so 
interested in their profits and paying their CEOs $30 million, in one 
case, and $50 million a year in another case--is they are cutting back 
on costs. So where they used to pay the costs associated with a 
clinical trial, not for the experimental therapy itself, because that 
is paid by the company that invented it, but by the associated costs, 
if there are reactions to the therapy, et cetera, they are cutting back 
on this treatment. So by their refusal to pay for the patient cost, 
many research institutions--particularly cancer centers--are cutting 
back on the clinical trials because there is a lack of payment by the 
HMOs, and we are running into a real serious problem.
  When you continually put profit before patient care, when you 
continually put dollar signs ahead of vital signs, what happens is we 
are losing the opportunity to test these promising treatments for 
cancer, for Alzheimer's, for Parkinson's, for diabetes, for AIDS--you 
name the disease. By the way, if you ask the average American what they 
fear most, they will tell you it is illness; it is cancer; it is heart 
disease; it is stroke; it is the loss of a loved one.
  So what we have is a situation where HMOs are refusing to pay the 
patient costs in clinical trials, and clinical trials are being cut 
back at the very time when we are making tremendous strides in learning 
more about therapies. This is a sad day.
  So what we do in this amendment is essentially say let's go back to 
the way it always was, where the HMOs pay for the costs associated with 
these clinical trials for their patients. If we don't pass this 
amendment and this trend continues, we will reverse the trend of 
finding better cures for disease.
  The other thing this amendment does, which is really important, is it 
deals with access to prescription drugs. Nearly all the HMOs have 
developed what is called a formulary, which is a limited list of 
prescription drugs for which the HMO will pay. They do this to receive 
discounts from drug companies and to limit the number of medications 
for which they pay. This is a cost-saving measure. I don't have a 
problem with this--except when the formulary drug isn't right for the 
patient, except when a doctor says the drug his patient needs is not in 
the formulary. What this amendment says is that the HMO must pay for 
the drug that a doctor determines his patient needs, even if it isn't 
in the list that the HMO provided.
  It also says in this amendment that HMOs cannot classify a drug that 
is approved by the FDA as experimental, which is one of the ways they 
get around having to pay for a drug. They say to a patient: Well, I 
know your doctor wants you to use this drug, but it is experimental.
  Well, if a drug is approved by the FDA, the Food and Drug 
Administration, then it is clear that the drug has been approved and 
ought to be available.
  So this is a very important measure. This will ensure we keep making 
progress on clinical trials. This will ensure people get access to the 
needed drugs. I hope we will stand up, not as we did yesterday, because 
this Senate sat down for the people and stood up for the big money 
interests in this society, the HMOs and their bottom line. Let's stand 
up for the people and let's support this Dodd amendment.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. FRIST. Mr. President, very quickly, let me state where we are, 
and then I will yield to the Senator from Florida.
  We are presently considering an underlying amendment on clinical 
trials which was put forth by Senator Dodd. It is an issue we have 
discussed a great deal in committee. It deserves discussion and it 
deserves a great deal of debate because it is important. As one who has 
been a principal investigator in clinical trials and has been involved 
in clinical investigations and trials for pharmaceutical agents and the 
application of medical devices, such as cardiac valves and stints, all 
of which I am familiar, it allows me to say it is critically important 
we debate and address

[[Page S8430]]

this issue, that we make sure we do move forward in a direction to 
capture and support the great benefits which are available in clinical 
trials.
  A clinical trial is fairly straightforward in patient care. It is to 
figure out whether or not something works or whether it is harmful or 
not harmful. It is necessary to use and investigate patient populations 
where one group of the population receives it and one group does not 
receive it, to see what the adverse effects are, what works and what 
does not work. It is the accepted way of making and capturing the great 
advances which we all know are both being realized, but even more 
exciting--whether it is in the field of cancer or heart disease or bone 
disease or stroke--is that we are going to make our great 
breakthroughs.
  In the underlying bill we are considering, we have a study by the 
Institute of Medicine to look at the factors which might hinder patient 
participation in those trials and also to figure out what the cost of 
these trials are, because you have one population that is not getting 
either a specific device or pharmaceutical agent and one population 
that does. But to compare these two populations, you need to do more 
testing, more examinations. If you have side effects or an adverse 
reaction from a medication, maybe you have to have a longer 
hospitalization or new treatments.
  Well, the challenge we have as a nation is to figure out what that 
additional cost is. There have been only three good studies completed 
to date to determine the difference between those incremental costs to 
carry out that investigation. What we are considering is a new mandate 
and whether or not that new mandate should be placed on the HMOs' 
backs, or the private sector's back, in order to make the great 
advances in which we all want to participate. If we open that door--and 
I think we can go further than what is in the underlying bill--we have 
to be very careful not to impose a huge, very expensive mandate on our 
private health insurance system--something we haven't been able to do 
in Medicare, the public system. We have struggled with it, and we 
haven't been able to figure it out with the public dollars. So before 
we put in a huge mandate, we have to be careful not to dump on the 
private sector something we haven't been able to do in the public 
sector. That is the essence of the bill we will be passing over the 
next 48 hours.
  I think we can make great strides. Probably the first thing to do is 
to look at the clinical trials. In this body, no Member has spent as 
much--or more--time looking at this issue of clinical trials than the 
Senator from Florida.
  I yield 10 minutes to the Senator from Florida.
  The PRESIDING OFFICER (Mr. Roberts). The Senator from Florida.
  Mr. MACK. Thank you, Mr. President. I thank Senator Frist for 
yielding me time. I also appreciate greatly the comments made with 
respect to the clinical trials. Again, I look forward to continuing to 
work with him in the future on this issue.
  Mr. President, I want to respond to one provision of the amendment 
offered last night by my friend from Connecticut, Senator Dodd. This 
provision goes to a concern that has been raised by patients throughout 
our country--the issue of health coverage for patients who are 
participating in clinical trials.
  As Members of the United States Senate, we must seek legislative 
solutions to a wide array of public policy issues. These issues include 
health policy, as we are doing today. They include tax policy, economic 
policy, foreign policy, and education policy. The list is quite 
expansive. Frequently, we find ourselves divided on issues of the day.
  However, I can think of no issue which better unites Republicans and 
Democrats, conservatives and liberals, as the issue of biomedical 
research.
  In addition to Senator Dodd, we are fortunate to have many, many 
leaders in the Senate on this important issue. Senator Specter and 
Senator Harkin are leading the historic bipartisan effort to double 
funding for the National Institutes of Health. Senator Jeffords, 
Senator First, Senator Kennedy, and Senator Mikulski have worked hard 
in their committee to authorize and oversee the activities of the HIH. 
Any many more of my colleagues have each contributed in their own way 
to help make funding for HIH the national priority it is today. As I 
said, few issues unite the Senate like medical research.
  One of the highlights during my 17 years as a Member of the Senate 
and House of Representatives has been to meet the scientists who are 
revolutionizing the way man fights disease, and to improve our quality 
of life. It doesn't matter if they are a young bench scientist or a 
Nobel Laureate, their mission remains the same--to find ways to detect 
and treat diseases. Today, there is a level of commitment and 
enthusiasm to this monumental endeavor that I've never seen before. 
Today, researchers dare to use the word, ``cure.'' That wasn't the case 
very long ago.
  As we work to make sure that scientists have the necessary resources 
to continue their remarkable progress, we must also address the 
ethical, legal and social implications of biomedical research. Science 
is moving faster than public policy can keep pace. It's as though 
science is on the Concorde, and Congress stalled at Kitty Hawk trying 
to get off the ground.
  There are very difficult, complex scientific issues which require 
Congressional action, but these issues also require thoughtful and 
careful deliberation. For example, Congress has been working for many 
years to ensure that health plans do not discriminate against people 
because of their genetic information. As a cancer survivor, I know how 
important it is to have confidence in knowing that a genetic test will 
be used for information, not discrimination. I've been part of a 
bipartisan effort to resolve this issue, starting with legislation 
introduced by our former colleague, Senator Mark Hatfield.
  Genetic nondiscrimination is a very complex issue with wide-ranging 
ramifications. There have been many questions to answer. Congress has 
struggled with how best to define medical and scientific terms. We have 
examined the impact of our actions on the cost and availability of 
health insurance. Frequently, we have determined that much more 
information was needed before deciding the best approach.
  We have addressed the issue of genetic nondiscrimination with 
thoughtful deliberation, and I believe the Congress must take the same 
thoughtful, deliberative approach when it comes to coverage of clinical 
trials.
  There are many questions to be answered. What are the cost 
implications? How will this new benefit impact the availability of 
health insurance? What impact will coverage of clinical trials have on 
health insurance premiums? How will it impact small business owners, 
who are struggling to provide health insurance for their employees? 
What is the best approach to defining medical and scientific terms, 
such as ``routine patient costs''?--becasue that definition will 
determine what the underlying costs of this effort will be.
  These are very important questions, involving very complex issues, 
with very significant implications.
  Mr. President, I support comprehensive coverage of clinical trials. 
But, as this time, we need more information before we go that far.
  Later today, or tomorrow, I will be introducing an amendment, along 
with Senator Frist, Senator Jeffords, Senator Collins, and others, 
which will help provide patients, scientists, lawmakers, employers, 
health plans and others with answers to the many questions associated 
with health insurance coverage for clinical trials. I will outline our 
approach at that time.
  Mr. President, medical research is a bipartisan issue. We all agree 
that the basic scientific research funded by the National Institutes of 
Health must be translated into new forms of treatment through well-
designed clinical trials. Earlier this year, Senator Rockfeller and I 
introduced legislation to provide Medicare coverage for cancer clinical 
trials. I am pleased to say that a bipartisan group of 36 Senators have 
cosponsored this bill. Senator Snowe and others have introduced 
legislation to provide coverage through private health plans. We may 
approach the issue in different ways, but we all agree that the Senate 
must address the issue of clinical trial coverage, and we must do so 
now.

[[Page S8431]]

  Mr. President, I look forward to discussing my amendment later in the 
debate.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Tennessee.
  Mr. FRIST. Mr. President, I yield 20 minutes to the Senator from 
Idaho.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, let me, first, thank one of the true 
leaders in the Senate on the issue of health care for yielding me time, 
and to say how much I have appreciated his work in the last month and 
in the last few days during this critical debate on the Patients' Bill 
of Rights.
  I am pleased the Senate is, once again, debating the issue of health 
care reform. I am pleased because here we have an opportunity, I think, 
to reclaim for the American people their right to control their health 
care. I am excited we have this opportunity to talk about medical 
savings accounts, restoring patients rights, and making health care 
insurance affordable--or at least this should be the essence of the 
debate.
  I must tell you that I am disappointed to see only one side is 
interested in truly talking about patients' rights instead of more 
regulation, more government, and, somehow, more control. While 
Republicans are talking about giving all Americans access to health 
care insurance and letting them control their medical health care, our 
Democrat friends are talking about driving up costs, canceling health 
care coverage for millions of Americans, and putting American health 
care under the control of more Federal Government.
  I am aware my friend, the Senator from Connecticut, has an amendment 
on the floor. I will speak to that amendment in just a few moments. But 
I think it is important to set that amendment in the context of the 
debate on the bill yesterday, today, and the balance of the week.
  First, I want to look at what it is our Democrat friends on the floor 
of the Senate are asking us to swallow. I believe this will help us 
better understand the amendment offered by the distinguished Senator 
from Connecticut.
  We have heard a lot of talk about the cost of the Kennedy bill--some 
of it on this floor. Yesterday we even saw our colleagues parade out 
the President of the United States to downplay the cost of the Kennedy 
bill. Our Democrat colleagues have a mantra when it comes to the cost 
of the bill. Over and over again, they say, well, it is less than a Big 
Mac; it is less than $2 a month.
  Let me look at this chart for a moment, and maybe you will join with 
me in it. It is ``less than a Big Mac.'' That is what Senator Kennedy 
said. They even say the nonpartisan Congressional Budget Office says 
this bill will cost less than a Big Mac.
  If you look at the Congressional Budget Office report--and I 
recommend you read it in its entirety--you will see it says nothing 
about a Big Mac. But this is what it does say: According to the 
Congressional Budget Office, the Kennedy bill will increase premiums an 
average of 6.1 percent over and above the normal inflationary costs of 
health care.
  For instance, let's read from the CBO report because an awful lot of 
my colleagues on the other side of the aisle seem to be confused about 
what the Congressional Budget Office has said about this bill.
  I am quoting the CBO report:

       Most of the provisions would reach their full effect within 
     the first 3 years of its enactment. The CBO estimates the 
     premiums for an employer-sponsored health plan would rise by 
     an average of 6.1 percent in the absence of any compensating 
     changes on the part of the employer.

  What are the ``compensating changes''? There is a clear history in 
health care that, as costs go up, people either leave or are dropped 
from the system.
  The CBO says of the Kennedy bill on compensating changes:

       Employers could respond to premium increases in a variety 
     of ways to reduce their impact. They could drop health care 
     insurance entirely.

  Yes, that is an option. CBO says it is.
  ``Reduce the generosity of the benefit package.''
  That is quite typically what happens. They keep narrowing the scope 
of the coverage.
  ``Increase cost sharing by beneficiaries.''
  We know what that means--the consumer pays more of the bill.
  Or ``increase the employee's share of the premium.''
  If my colleagues on the other side of the aisle think the CBO had a 
nice thing to say about their bill, I suggest they read the entire 
report. ``They could drop health insurance entirely'' is a quote. This 
is perhaps the most frightening part of the Kennedy bill to any 
American family. So many families across America are struggling to get 
by--we know that--even in prosperous times. There is a very large chunk 
of America that does not share totally in that prosperity. They depend 
on their health insurance to protect them when things go wrong.
  Yet every Democrat Member of this Chamber has thrown their support 
behind a bill that would take protection away from an estimated 1.9 
million Americans. That is one estimate. Here is another estimate 
commissioned by our friends at the AFL-CIO. They indicate that the 
Kennedy bill could cancel health care coverage for approximately 1.8 
million Americans.
  I suggest a new slogan for my colleagues when they talk about the 
bill. I am talking now about ``golden arches.'' Over 1.8 million 
Americans are uninsured by the Kennedy bill. That is a Big Mac attack 
directly at the American consumer and directly at the American family.
  A few weeks ago when I made the same comment on the floor of the 
Senate, my colleague from North Dakota--who happens to be on the floor 
now, Senator Dorgan--made a very remarkable statement. I don't think I 
have heard it yet in the debate. My friend said the Kennedy bill might 
actually increase coverage because it would make health care so 
attractive that people who are now uninsured would sign up to get its 
coverage. I say this is a remarkable statement for a very obvious 
reason. First, my friend seems to think we in the Senate can repeal the 
law of supply and demand. Raise the price, and more people are going to 
come and get it? I doubt it. History shows quite the opposite.
  So instead of demand decreasing as price goes up, consumers will buy 
more of the product because it is more pricey and, yes, it does have 
more benefits or possibly more? I don't think so.
  Divide the dollars each family spends. They have to put food on the 
table; they have to take the risk when it comes to health insurance.
  While 14 percent of the public want Congress to reform medical care 
or to reform managed care, a whopping 82 percent of America wants 
Congress to make health care more affordable. That is what we ought to 
be about: Extending coverage, protecting the patient, and while doing 
it, certainly not raising costs but hopefully making it more 
affordable.

  That hardly fits my friend's description of a ``public clamor'' for a 
more expensive health insurance program.
  Finally, if my colleagues know so much about health care insurance 
and how attractive they can make it to the consumers, I suggest they 
resign from the Senate and go run a health care insurance company 
because obviously they know a new formula and they could make a 
killing.
  Enough about Big Mac attacks. That is what the Kennedy bill ought to 
be called--a Big Mac attack. We have seen the number of uninsured 
Americans rise from 32 million to 43 million in just 10 years. Since 
1995, the uninsured in my home State of Idaho has risen from 15 to 18 
percent of the population. That is higher than the national average. 
Every year we add 1 million Americans to the ranks of the uninsured. 
The Kennedy bill would speed up that process instead of slow it down. 
What the Senate ought to be about right now and what our Government 
ought to be about is trying to slow it down and make it more 
affordable.
  My colleague from Connecticut has offered an amendment that he says 
will improve access to cancer treatment. Before we vote on this 
amendment, I will discuss the impact of the Kennedy bill and what it 
would do in the context of this amendment in our fight against cancer.
  We have heard from my colleague from Florida who, thank goodness, 
survived cancer. Most Members have not

[[Page S8432]]

had to go through that trauma. What he said was critically important. 
The 1.9 million Americans who would lose their health care coverage 
under the Kennedy bill represent more than 1 out of every 100 Americans 
with private coverage. Private health care insurance in this country 
pays for millions of Americans to undergo cancer screening meant to 
catch the deadly illness quickly, when it can be treated and defeated.
  The Centers for Disease Control say every year private health 
insurance pays for 33 million American women to undergo exams meant to 
detect breast cancer. The Kennedy bill would cancel coverage for, it is 
now estimated, 189,000 such breast exams every year. I don't really 
believe that is what they intend, but that is the unintended 
consequence of this kind of legislation. Mr. President, 189,000 women 
could go without breast exams if the Kennedy bill became law.
  The Centers for Disease Control say each year private health 
insurance pays for 9 million American women to have a mammogram. The 
Kennedy bill would cancel coverage for 53,000 of those mammograms on an 
annual basis. Run the statistics, run the percentages, run the figures. 
If you are going to take 1.8 or 1.9 million Americans out from under 
coverage, statistically I am accurate.
  Yesterday my colleague from California, Senator Boxer, said, 
``Republicans are turning their backs on America's women.'' She was on 
the floor just a few moments ago repeating that. I want to know how 
Senator Boxer and all sponsors of the Kennedy bill reconcile their 
commitment to women and women's health with the fact that they are 
supporting a bill that could cause thousands of malignant lumps to go 
undiagnosed every year.
  The Centers for Disease Control says each year private health 
insurance pays for 41 million women to have pelvic exams and 24 million 
Pap smears. These tests are meant to detect ovarian, uterine, and 
cervical cancers. Yet the Kennedy bill would cancel coverage for 
238,000 pelvic exams and 135,000 Pap smears. That is every year, 
according to the statistics, according to CBO, and according to the 
examination and study by the AFL-CIO.
  I want to hear the Kennedy bill supporters begin to reconcile these 
numbers, if their mantra is to fight cancer. We are talking about 
access to the system. We want people to have these tests. We want them 
protected. Yet if you shoot the cost up, people will take the risk. 
There are only so many fungible dollars in every citizen's life. They 
have to make real choices. My friends, that is the marketplace. I am 
afraid that is the unintended consequence of the Kennedy bill.
  It does not harm just women. The Kennedy bill could and would 
cancel--if you run the statistics, there it is again--23,000 prostate 
exams every year.
  As a final example, the Kennedy bill could cancel coverage for 
439,000 skin cancer exams every year. I say this is a final example 
because the list is not exhaustive. It would be impossible to track all 
the ways the Kennedy bill threatens the health of 1.9 million Americans 
who it would leave without protection from the life-threatening 
diseases they will face.

  When my Republican colleagues raised the cost issue yesterday, I 
believe my colleague from Massachusetts called it a red herring. If 
this passes, I wonder what he will say to the women and the men who 
will lose their fight against cancer because they did not get the early 
detection. Because they did not have the money, they did not have the 
coverage to walk through the door and get the exam.
  Mr. HARKIN. Will the Senator yield on that point?
  Mr. CRAIG. I will not yield.
  I find it astounding that this is what my colleagues have contributed 
to the debate on patients' rights. How can a patient have a right if a 
patient cannot have access? Every study shows a 6.1-percent increase in 
premiums above inflation will drive 1.9 million Americans out of health 
care.
  My Republican colleagues and I support a different approach, a 
substantially different approach. We have a bill that puts patients in 
control of their own health care and that makes health care simply more 
affordable. Our bill achieves it by giving all Americans access to 
medical savings accounts, along with all of the other kinds of health 
care insurances that are now available.
  Since we introduced the limited MSA, or the Medical Savings Pilot 
Program, something really very wonderful in health care has happened. I 
know the other side does not want to recognize it. I am so frustrated, 
trying to understand why they would ignore that the General Accounting 
Office estimates that 37 percent of medical savings account buyers 
previously had no coverage whatsoever, and 82 percent of the American 
public rate the high cost of medical health care coverage their chief 
concern. Medical savings accounts meet that concern. Our bill has that 
in it. That is not driving people out of the system. That is reaching 
out, bringing people into the system, into the system for their Pap 
smears, into the system for their pelvic exams, into the system for 
early detection of cancer. There is the difference, driving people out 
or encouraging people to come in, making health care more affordable.
  A medical savings account gives you 100-percent coverage, 100 percent 
of doctors to choose from. My Democratic colleagues have gone to great 
lengths to say our bill does not generate direct access to specialists; 
that our bill does not generate direct access to OB/GYNs; that we do 
not guarantee access to pediatricians; that we do not let patients 
choose their doctors; that we do not ensure that medical decisions will 
be made by a patient and that patient's doctor. They could not be more 
wrong.
  If you own a medical savings account and you own insurance, you 
choose your own doctor, always. If you feel you need a specialist, then 
you go to the specialist. If you need direct access to an OB/GYN, you 
have it. If you need direct access to a pediatrician, nobody is sitting 
there as the gatekeeper they like to talk about; you are the person in 
power. You have the direct access.
  Once again, for mandatory referral, you are in control of your 
destiny and the destiny that comes in cooperation with your primary 
care physician. That is what we are talking about, about personalizing 
health care and taking the Federal Government out of it. That is why 
Republicans have always supported MSAs. We are not saying everybody 
ought to have them. We are simply saying open up the option. Make it 
available as a matter of choice so you can choose between what you can 
afford and what has now become even more affordable. So we are not 
thrusting the Federal bureaucracy on the system and shoving up the cost 
by every legitimate estimator's estimation. We are, in fact, 
potentially driving those costs down.

  A program that decreases the number of uninsured and gives patients 
direct access to their doctors is what this Senate ought to be about. 
If my Democrat colleagues truly want Americans to have affordable 
medical care that patients control, they should be clamoring for a 
medical savings account.
  How can my colleagues stand up for a patient's right to greater 
access to cancer treatment when they are supporting a bill that leaves 
millions without health care coverage? I quoted the statistics, and 
they are very easy to extrapolate out of those figures. We are talking 
about hundreds of thousands fewer exams for potential cancer under what 
is now being proposed.
  The answer is they really have not thought their bill through. They 
do not think the marketplace works, that somehow you can reform it and 
change it and control it by simply enacting a Federal regulation. Will 
costs not go up? We know they will go up. We know every time we have 
tampered with health care for the better benefit or for the less, we 
have had the direct impact on the marketplace that has driven health 
care costs up. Every time it is driven up, it is driven beyond the 
point of access by some Americans.
  Why would they do this? I am not sure why they do this. I guess I 
could quote President Clinton at the defeat of health care last time, 
when he said:

       Now what I tried before won't work, maybe we can do it 
     another way. That's what we've tried to do, a step at a time, 
     until eventually we finish this.

  I think that is the essence of what the Kennedy bill does, one step 
at a time, toward a greater sense of Federal control driving the cost 
up so the American consumer says, OK, give me

[[Page S8433]]

Federal health care; I can't afford it any other way.
  Mr. ROCKEFELLER. Mr. President, regular order.
  The PRESIDING OFFICER. The Senator's time has expired. The Senator 
from Nevada is recognized.
  Mr. REID. Mr. President, pursuant to the agreement with the Senator 
from Tennessee, I yield 3 minutes to the Senator from Illinois; 
following that, 3 minutes to the Senator from West Virginia; then 3 
minutes to the distinguished Senator from Iowa.
  The PRESIDING OFFICER. The distinguished Senator from Illinois is 
recognized.
  Mr. DURBIN. Mr. President, yesterday was a banner day on the floor of 
the Senate for the insurance industry. Three different amendments were 
considered, amendments which the insurance industry of America opposed. 
The first of those amendments said a woman could keep her OB/GYN as her 
primary physician no matter what the HMO said. The Republican majority 
and the insurance industry defeated that.
  The second said you should have access to the emergency room closest 
to your home when you have a family emergency. That amendment was 
defeated by the insurance industry and the Republican majority.
  The third amendment said if you have a dispute with your insurance 
company about coverage, we are truly going to have an independent panel 
decide who is right and who is wrong. That amendment was defeated by 
the insurance industry and the Republican majority.
  They may be dancing in the board rooms and the canyons of K Street, 
but I can tell you the people of America understand this debate, and 
they know they lost on the floor of the Senate yesterday.
  We are now debating an issue of equal importance. If you have a 
health insurance plan and your doctor says: You have a serious 
condition; we need to try a new drug; it has been approved by the FDA; 
it may work and it may not; in that situation many health insurance 
companies say: No, we will not pay for it because it is 
``experimental.''
  Have you walked into a convenience store in your hometown and seen 
those little canisters on the counter asking you to leave 50 cents or a 
dollar to help that local family pay for a medical bill they cannot 
afford? Many of these same people are paying for drugs, reimbursement 
for which was turned down by health insurance companies because the 
treatment was experimental. People literally on the brink of life or 
death, following doctors' orders, using FDA-approved drugs, have been 
turned down by these insurance companies.
  Senator Dodd offers an amendment to protect our rights to use these 
drugs as doctors call for them to save our lives. The Republican 
majority and the insurance industry oppose it. We will face another 
vote today and another question as to whether American families will 
win or lose.
  Last Sunday in Chicago, I met this little fellow in this picture. His 
name is Rob Cortez. He will melt your heart. He is about a year old. He 
suffers from spinal muscular atrophy. For a year, his family has been 
fighting to keep him alive, trying to keep their own courage together, 
trying to fight his disease, and every day fighting another insurance 
company decision that would turn off the ventilator which would be the 
end of his life. Imagine what that family goes through.
  They had a drug that was prescribed by a doctor to fight infection in 
this poor little guy, and the insurance company said: No, it is 
experimental. We will not pay for it.
  The battle goes on day after day in households across America. The 
Republicans can come to the floor with their cartoons and their 
slogans, but America's families understand this debate. What is at 
stake is our health and our health insurance. If people across America 
do not wake up to the reality of this debate, we are going to lose an 
opportunity to give piece of mind to families all across Illinois, all 
across the Nation, and to protect the lives of other vulnerable little 
kids. That is what the debate is all about.

  I also want to make it clear that this clinical trial approach is 
cost-effective. Sloan-Kettering and M.D. Anderson have made it clear it 
is money saved.
  I yield the floor.
  The PRESIDING OFFICER. The Senator's time has expired. The Senator 
from West Virginia is recognized for 3 minutes.
  Mr. ROCKEFELLER. I thank the Chair.
  Mr. President, this is an extraordinary discussion, and it is one of 
those things where I believe we ill serve the American people because 
points are made too extremely.
  The Senator from Idaho was making the point about driving people out 
of health care because of rising costs, and that is just flat out 
undeterminable. GAO says so. CBO says so. He quotes things that say 
they do. I say they do not. I will be happy to show him the language if 
he is interested in seeing it.
  I do not know if this is about ideology or not or if it is about 
preaching. I have no idea. But I do know this, Mr. President: Clinical 
trials are incredibly important. This has been a battle a number of us, 
cancer groups and others, have been fighting for many years. My friend, 
the Senator from the State of Iowa, will expand on this more 
eloquently.
  It is a terribly important fight. It is a question of, can people 
have access to clinical trials? Insurance companies used to pay for 
them. Insurance companies now do not pay for them. Some people have 
come to a point where they have exhausted--and they might be in their 
thirties and forties; we are not talking necessarily about people in 
their eighties or nineties but people in their thirties, forties, and 
fifties--every possible approach trying to do something about their 
very dreadful disease, which could be any number of things, not just 
cancer but any number of things.
  The insurance companies used to pay for that. Now the HMOs will not, 
and they will not for a very good reason: because those things tend to 
be costly sometimes.
  It comes down to the classic choice: Does the HMO get the advantage 
at the bottom line or does the patient get the advantage? That is the 
basic decision and the difference between Members on the two sides of 
the aisle who are otherwise informed and are trying to do the right 
thing on this subject. All of us are trying to do our best.
  We have to have clinical trials. The usual and ordinary expenses 
associated with that have to be paid; otherwise, people will not be 
able to afford it; they will not get clinical trials; therefore, they 
will die or they have a chance of dying. Finally, of course, clinical 
trials often are the best experiment and research that can possibly be 
done because they lead to new discoveries and new opportunities.
  I hope very much the Dodd amendment can be adopted. It is an 
extremely important amendment. When people hear ``clinical trials,'' 
they are not sure what we are talking about. There are hundreds of 
thousands of Americans at this point who have given up on regular 
therapies, but there is something out there on the cutting edge and 
they are ready to use it, but now the insurance companies will not pay 
for it, and the Democratic Patients' Bill of Rights will do that.
  The PRESIDING OFFICER (Mr. Hutchinson). The time of the Senator from 
West Virginia has expired. The Senator from Iowa is recognized for 3 
minutes.


                         Privilege Of The Floor

  Mr. HARKIN. Mr. President, I ask unanimous consent that the privilege 
of the floor be granted to the following members of my staff during the 
pendency of S. 1344: Ann Procter and Bryan Johnson.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HARKIN. Mr. President, first I will address the issue that was 
brought up by the Senator from Idaho who stated that women are going to 
be driven out of cancer care because of this legislation. I could not 
believe what I was hearing. I asked the Senator from Idaho to yield for 
a question, but he would not yield to me. Therefore, I will bring it up 
now.
  The Senator from Idaho stated that, because of this bill, thousands 
of people with breast cancer and lung cancer will be denied coverage. 
Why then, I ask, do the following organizations support our bill: The 
Alamo Breast Cancer Foundation, the Alliance for Lung Cancer, Advocacy 
Support and Education, the American Cancer Society supports this bill, 
the California Breast Cancer organization, Cancer Care, Inc., Minnesota

[[Page S8434]]

Breast Cancer Coalition, National Alliance of Breast Cancer 
Organizations, the National Breast Cancer Coalition, the National 
Coalition for Cancer Survivorship, the North American Brain Tumor 
Coalition, the Rhode Island Breast Cancer Coalition, the Susan G. Komen 
Breast Cancer Foundation, the YME National Breast Cancer Organization--
on and on. Why do all these cancer organizations support our bill?

  If you listen to the Senator from Idaho, it is because they do not 
want anyone treated for cancer. How ridiculous. It just shows the 
ridiculous nature of the arguments made on the Republican side on this 
bill. What absolute, total nonsense.
  That brings me to another ridiculous assertion made earlier. Someone 
on the other side of the aisle stated that to have people in clinical 
trials is going to be very expensive.
  Sloan-Kettering did a study of the costs associated with clinical 
trials. They looked at a number of people over 3 years, and here is 
what they found: Hospital stays, 24 percent lower for clinical trials; 
radiation therapy, 25 percent lower cost; drugs and supplies, 25 
percent lower cost; operating room, 8 percent lower cost. These are for 
clinical trials.
  That was backed up by another study done by M.D. Anderson in Houston, 
and this was done on 3,000 patients enrolled in clinical trials. They 
found costs for ovarian cancer patients were 35 percent less. They 
found lung cancer costs 36 percent less. In prostate cancer trials, 
there was a negligible difference between research and standard care 
patients.
  The PRESIDING OFFICER. The time of the Senator has expired. The 
Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, of all the votes we will have and have 
had in the Senate yesterday, today and tomorrow, this ought to be the 
easiest. This ought to be the easiest if you are interested in 
research, if you are interested in the protection of patients.
  If we look at what has happened historically, insurance companies 
have paid for routine care associated with clinical trials. The reason 
they have paid for it because they knew it was right. Secondly, as the 
Senator from Iowa has pointed out, covering routine costs associated 
with clinical trials actually provided savings to the insurance 
companies. But we now see a dramatic decline in clinical trial 
enrollment.
  What are clinical trials? What do they represent? This is what they 
represent: A woman has cancer--it can be ovarian cancer, breast cancer, 
cervical cancer--and is told the ordinary treatments for cancer will 
not cure her disease. Her prospects are extremely grim. Her doctor 
advises that her only chance of survival is a treatment under study in 
a clinical trial. We should not permit the insurance companies or their 
bureaucrats to deny her access to that clinical trial. That is what 
this amendment is all about--access to the only treatment that may give 
her a chance of survival.
  The greatest progress in cancer treatment has been made in childhood 
cancer, and it is no coincidence that the greatest number of clinical 
trials performed in this country have been in children's cancer. The 
reason, as most researchers and most cancer centers recognize, is the 
types of clinical trials that are taking place.
  Congress is doubling the NIH budget to take advantage of what I like 
to think will be the life science century. Progress in making 
breakthroughs in so many different areas of disease--whether it be 
Alzheimer's or cancer or Parkinson's disease--potentially emptying 
nursing homes around this country and improving the health of Americans 
demonstrate the importance of clinical trials. Clinical trials are the 
critical aspect in finding effective treatment and cures for diseases. 
That is why this amendment is so important. All HMOs have to do is 
continue what insurance companies have historically done and that is 
cover the routine costs associated with clinical trials. The clinical 
trial sponsors pay the remaining costs.
  The Republican proposal to study the importance of clinical trials is 
poppycock. The choice is: Will we maintain what every researcher, every 
patient organization, every doctor who works in the areas of these 
critical diseases recognizes as absolutely vital for medical progress, 
or will we study this issue some more?
  The Republican proposal says let's do another study and let's get a 
report to the committee. We are saying that if the doctor says there 
are sound medical reasons for this type of treatment, access should not 
be denied by a bureaucrat or an insurance company. That is the issue 
this amendment addresses.

  This amendment should receive overwhelming support. It is ridiculous 
that we are spending so much time debating the issue of whether 
clinical trials are important. Every single country in the world envies 
the progress the United States has made in the area of 
pharmaceuticals--every single country. Why? Because we have 
breakthrough drugs. Why? Because we move these breakthrough drugs from 
the laboratory to the bedside. How is that done? It is through clinical 
trials. We cannot move breakthrough drugs from the laboratory to the 
bedside without clinical trials.
  That is what this issue is about. That is why we have such strong 
support from the cancer societies and organizations concerned about 
diseases like Alzheimer's and Parkinson's Disease. That is why we have 
the support of the disability community. That is why we have support 
from so many children's disease organizations.
  That is why I hope the Dodd amendment will be accepted.
  Mr. REID addressed the Chair.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Would the Chair state how much time the minority has?
  The PRESIDING OFFICER. The minority has 7 minutes 10 seconds.
  Mr. REID. I yield 4 minutes to the Senator from Washington.
  The PRESIDING OFFICER. The Senator from Washington has 4 minutes.
  Mrs. MURRAY. Thank you, Mr. President.
  I thank my colleagues who have been on the floor talking about an 
issue this morning that I think is becoming more and more critical, and 
that is access to clinical trials, the amendment by Senator Dodd.
  It seems to me that in the Senate we have talked, in a bipartisan 
way, about making sure we have increased funding for NIH so we can have 
access to the best new research for diseases such as cancer, diabetes, 
and multiple sclerosis.
  A lot of great research is occurring right now at NIH. Members have 
said many times that needs to be increased. In fact, the Labor 
Committee has worked very hard, and I am very proud of the fact we have 
increased funding to NIH by almost 40 percent.
  However, today, citizens, taxpayers, who are paying the dollars for 
that increased research at NIH, are being routinely denied access to 
that new research when their HMO says they will not pay for a new 
clinical trial--these are new medications, new medical devices that 
have been researched and we have paid for the research through our own 
taxpayer dollars.

  But when it comes to our constituents, who have paid for this 
research, having access to the clinical trials, having access to this 
new research, they are not allowed because their HMO denies it. That is 
why I think this amendment is so important to the taxpayers of this 
country.
  I met recently with a number of cancer survivors in my own home State 
of Washington. Some of them were patients at the Fred Hutchinson Cancer 
Center, a very well known cancer research facility, one of the premiere 
centers in this country. The doctors and the patients told me about how 
they were routinely being denied access to these clinical trials--these 
people who have no other recourse, who may have MS or cancer or another 
severe illness, who have no other hope out there except for access to a 
clinical trial. It is their last chance at life and their doctors 
recommended it. The doctors at the Fred Hutchinson Cancer Center said: 
This is their chance at life, and their insurance company, their HMO, 
said: No, sorry; we're not going to pay for it.
  One of the things the doctors said, which made an impression on me, 
was that a patient was going to receive some kind of care with some 
kind of cost that their insurance company was going to have to pay for, 
and, in fact, the clinical trials, for the most part,

[[Page S8435]]

cost less than the treatment this person was going to have. So they did 
not understand why the insurance company was going to decide which 
treatment they were going to have. They felt very strongly the doctors 
ought to be the ones deciding what kind of medical treatment this 
patient should be having. And the clinical trials were their best 
chance at recovery and hope for life.
  I hope the Members of the Senate will agree with Senator Dodd and the 
other sponsors of this amendment and allow people to have access to the 
research they have paid for by taxpayers when they need it, when they 
are victims of cancer, when they have MS, when they have diabetes, and 
allow them to have access to clinical trials.
  We will all win in the end because, without these clinical trials, we 
will not have the research we need to make sure these kinds of medical 
devices or these prescription drugs are then available to the general 
public as routine care that is paid for by HMOs.
  I commend my colleagues for their debate on this issue. I urge all of 
us who have said we are for increased funding at NIH and increased 
funding for research to now allow our constituents in this country 
access to that care.
  I thank the Senator.
  Mr. KENNEDY. Will the Senator yield for a question?
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. KENNEDY. I yield 2 minutes to the Senator from Washington.
  The PRESIDING OFFICER. The Senator from Washington is recognized for 
2 minutes.
  Mr. KENNEDY. If I could ask a question, through the Chair, of the 
Senator. You have one of the great cancer research centers in 
Washington--the Fred Hutchinson Cancer Center--that is world renowned. 
It is known throughout the United States as having the very best 
expertise in treating cancer.
  I would be interested, as would the American people--we have one of 
the great children's research center--recognized recently as the No. 1 
children's center doing great research--what does that center do for 
the citizens of Washington and the citizens of this country in terms of 
research programs, clinical trials?
  Mrs. MURRAY. In response to the Senator from Massachusetts, the 
doctors at the Fred Hutchinson Cancer Center are very concerned about 
their patients who are being denied access to medical care because they 
say these trials are what will not only help patients but will help 
them give the best care to all of their patients. They are not able to 
do the job we expect them to do any longer, not because of medical 
decisions they make but because of the decisions made by HMOs.

  Mr. KENNEDY. The doctors at that world-class cancer research are 
recommending clinical trials because they think those clinical trials 
can perhaps save the life of an individual who may have breast or 
cervical or ovarian cancer. You are finding in your State that managed 
care plans are denying access to clinical trials for their members?
  Mrs. MURRAY. The Senator from Massachusetts is absolutely correct. 
These are world-class physicians, top physicians in cancer research, 
who think the best thing they can do for this patient is the clinical 
trial; and they are being told no.
  Mr. KENNEDY. Would the Senator be surprised that the head of the 
Lombardi Cancer Research Center, one of the great research centers in 
Washington, DC, testified they had to hire eight individuals to deal 
with the insurance companies just on the issue of enrolling persons in 
clinical trials. Doctors were referring women to the Lombardi Center 
for lifesaving cancer treatment--for clinical trials--and the HMOs were 
denying coverage? These eight individuals were trying to deal with the 
HMOs so that these patients could receive potentially lifesaving 
treatments.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. KENNEDY. All our amendment is trying to say is: if there is a 
clinical trial available, the value of the clinical trial is 
established, and if a doctor believes his patient can benefit from that 
clinical trial, the HMO ought to allow access. That is what this 
amendment is about. Without this amendment, there will be an increase 
in the number of clinical trials that are terminated.
  Mrs. MURRAY. The Senator is absolutely correct. Not only will it hurt 
the health of the woman who has been denied access to the clinical 
trial who has ovarian cancer or breast cancer, but it also denies us, 
all the rest of us, access to good health care because we will never 
know whether or not that clinical trial works, which could then be 
available to the rest of us.
  Mr. KENNEDY. In other words, the benefits of the research from the 
clinical trial will benefit people whether they live in the State of 
Nevada or the State of Massachusetts?
  Mrs. MURRAY. That is correct.
  The PRESIDING OFFICER. All the Senator's time has expired.
  Mrs. FEINSTEIN. Mr. President, I support the amendment offered by 
Senator Dodd to increase patient access to life-saving clinical trials. 
This amendment could assist in prolonging the lives of millions of 
patients with life-threatening or serious illnesses, for which no 
standard treatment is effective, by offering them access to new 
experimental therapies.
  Clinical trials are the primary means of testing new therapies for 
deadly diseases such as cancer, congestive heart failure, Alzheimer's, 
and diabetes. Many health insurance plans cover the patient's routine 
costs associated with clinical trials. Recently, however, research 
institutions--particularly cancer centers--are finding that managed 
care plans will not pay for the costs associated with clinical trials. 
For many patients whose conditions have not responded to conventional 
therapies, clinical trials may be the only viable treatment option 
available.
  The Dodd amendment requires health plans to cover the routine patient 
costs associated with these trials. Eligible patients are those with 
life-threatening or serious illnesses for which no standard treatment 
is effective, and those for whom participation offers meaningful 
potential for significant clinical benefit. Trials are limited to those 
approved and funded by one or more of the following: the National 
Institutes of Health (NIH); a cooperative group or center of the NIH; 
or, certain trials through the Department of Defense or the Veterans 
Administration.
  The Republican bill does not provide for coverage of any routine 
costs related to clinical trials. Instead, they require only a study on 
the issue. The Republican bill does not offer hope to patients who have 
exhausted all other options except the promise of experimental 
treatment. We should not have to tell the thousands of desperate women 
with terminal breast cancer that we need to study this issue some more 
before we can offer them access to clinical treatment that might save 
their lives.
  Republicans claim that we do not have enough information about the 
costs of clinical trials. They say we need, once again, yet another 
study. Every day we delay, with conversations about the need for 
another study which will undoubtedly demonstrate the continue 
importance of clinical trials, another patient suffers; another patient 
dies. The Republicans' claim that clinical trials are more expensive 
than conventional therapies is unjustified. The fact is that the cost 
of conventional therapies is not known with any precision. The cost 
varies case-by-case.
  Republicans claim that covering the cost of patient care in clinical 
trials would be too expensive. The Congressional Budget Office found 
that 90 percent of health plans already cover routine patient costs in 
clinical trials. In an attempt to block patient access to clinical 
trials, insurance companies try to claim that a clinical trial is more 
expensive than conventional therapy. However, at Memorial Sloan-
Kettering Cancer Center in New York, the cost of treating pancreas, 
breast, colon, lung, and ovarian cancer pursuant to a clinical trial 
were compared to the costs of treating the same cancers with standard 
therapies. Utilizing Medicare patients for this comparison, the average 
cost per patient was actually lower for those patients enrolled in 
clinical trials.
  Let me explain who pays for trials. There are three categories of 
costs associated with a clinical trial:
  First, the cost of the investigational drug is provided free of 
charge by the pharmaceutical sponsor.
  Second, the costs associated with collecting and analyzing the data 
from

[[Page S8436]]

the trial is covered by the trial sponsor through a federal research 
grant or other funding source (i.e., National Institutes of Medicine, 
Food and Drug Administration).
  Third, routine patient care costs--physician charges, hospital fees 
and routine diagnostic tests--are the only costs that managed care 
plans would be asked to cover for patients participating in clinical 
trials. And as I mentioned earlier, over 90 percent of health plans 
already cover routine patient costs in clinical trials.
  By early in the next century, Hispanics, African-Americans, and 
Native Americans will comprise nearly one-half of our nation's. In 
fact, Hispanics are the fastest-growing ethnic group in America today. 
This is alarming since heart disease, cancer, tuberculosis, HIV/AIDS 
and diabetes are disproportionally affecting minority communities.
  Some specific forms of cancer affect ethnic minority communities at 
rates up to several times higher than national averages. African-
American males develop cancer 15 percent more frequently than white 
males. Although the rate of breast cancer among African-American women 
is not as high as that among white women, African-American women are 
more likely to die from the disease once it is detected. Cervical 
cancer is nearly five times more likely among Vietnamese American women 
than white women, and it disproportionally affects Hispanics. Liver 
cancer is more than 11 times higher among Vietnamese Americans than 
among whites. Colon and rectal cancer is higher among Alaska Natives 
than other ethnic groups. Lastly, American Indians experience the 
lowest cancer survival rate of any U.S. ethnic group.
  However, access to clinical trials is especially limited for racial 
and ethnic minorities. Of the people participating in clinical cancer 
trials, only 2-3 percent are minorities. The September Cancer March's 
Research Task Force said that one way of encouraging more participation 
is to require public and private insurers to cover the routine medical 
costs associated with clinical trials. Senator Dodd's amendment to the 
Patients' Bill of Rights does just that.
  In addition, women, the elderly, ethnic and racial minorities, and 
cancer patients are not participating in clinical trials proportional 
to the population. The September Cancer March's Research Task Force 
testified before the Senate Cancer Coalition that only 2 percent of 
cancer patients are enrolled in clinical trials. Of those 
participating, only 25 percent are elderly, even though the elderly 
represented some 63% of the cancer patient population during the mid-
1990s.
  Breast cancer is one of many diseases that cause more deaths among 
minorities than among white women. Researchers and patient advocates 
agree that understanding differences in disease progression requires 
the recruitment of a representative number of minorities to clinical 
trials. So why don't more ethnic/racial minorities participate in 
clinical trials? There are several reasons. Lack of access to health 
care and lack of insurance coverage are major reasons; 43 million 
Americans are uninsured. This number does not include the millions who 
are under-insured.
  In closing, real improvements in health care, advancements in medical 
knowledge, are possible only through increased scientific clinical 
research and development. We cannot lose sight of the fact that without 
continued clinical research and access to clinical trials, life 
threatening diseases such as cancer will continue to ravage 
communities. Encouraging participation in clinical trials is essential, 
if not crucial, to the millions of Americans who live daily with life-
threatening diseases. The unrelenting focus by HMOs on cutting rather 
than focusing on the long-term quality of our health care system is 
harming the American people, and we are not gaining scientific 
knowledge.
  As our nation continues to move to a managed care based health 
system, patient enrollment in clinical trials is dropping. One of the 
reasons for this decline is the unwillingness of many health plans to 
cover routine patient care costs associated with participation in a 
clinical trial. This amendment to the Patients' Bill of Rights is the 
first step to ensuring access to clinical trials. We cannot continue to 
let HMOs put profits before patients.
  Mr. FRIST. Mr. President, how much time remains on each side?
  The PRESIDING OFFICER. The Senator has 18 minutes 24 seconds 
remaining.
  Mr. FRIST. And the other side?
  The PRESIDING OFFICER. All time has expired.
  Mr. FRIST. Mr. President, we are currently debating an amendment on 
clinical trials. It is something that is very close to my heart 
because, as I said earlier, I have been involved in clinical trials. I 
have seen the great advantages of having such clinical trials in that 
it allows us, through that final stage, to determine whether or not a 
particular intervention, whether it be a new medicine that might 
potentially cure prostate cancer or a medical device that might be used 
to hold open the coronary artery after a heart attack, a heart attack 
which results in a squeezing down or atherosclerosis or blockage of a 
coronary artery, put a little stint in that, opens it up, how do you 
take that to the clinical setting? How do you take that to where it can 
be distributed broadly across America and across the world, if it is 
beneficial?
  I should mention that the United States is the leading Nation in 
taking such innovation and such creativity, capturing it, studying it 
carefully, putting it in appropriate clinical trials, and then having 
it applied, if it is safe, if it is effective, to people around the 
country and the world. It should give all of us in this body and in the 
country a great deal of pride that we are the leaders in medical 
technology, medical innovation, whether it be the use of pharmaceutical 
agents; that is, medicines, whether it is treatment of chemotherapy; 
that is, using medicines to treat cancer, or the application of medical 
devices.
  Just a few days ago I was in Boston and visited some of the great, 
young, aggressive research people who, by hand, make those little 
stints, the stints that look like little springs, that keep thousands 
and thousands of people's coronary arteries open. They come in with an 
acute heart attack, a little balloon blows up in a vessel, a stint is 
placed. Twelve years ago those stints were not around. They had never 
been placed into a coronary artery. How do you get to that point to 
where it is used in just about every hospital, every cardiology 
hospital in the United States of America? Well, the last phase of 
development is clinical trials.
  That is why it is so important to me. And it is, in a very direct but 
also an indirect way, important to every single American, no matter 
what age you are because everybody at some point in their lives will be 
sick or will be ill. Anything that we can do as a Nation to lower the 
barriers between whether it is industry or our investigators or medical 
science and the delivery, the effective delivery of safe and effective 
procedures is something we need to work on. We started much of that 
work 3 or 4 years ago in modernization of the FDA.
  I spent some time explaining this aspect of clinical trials to 
reinforce how critical it is that we do everything we can to lower the 
barriers to participation in clinical trials.
  One thing we have to be aware of in terms of clinical trials is that 
we don't fully know what--I use the word ``incremental''--the increased 
cost, the incremental cost is when someone goes in to a clinical trial. 
As I mentioned earlier, usually you have one group of patients who did 
not get an intervention, one group of patients who did get an 
intervention, get that additional drug. You need to follow them over 
time and see what the incremental costs are of that clinical trial.
  Mrs. MURRAY. Will the Senator yield for a question?
  Mr. FRIST. I am happy to yield briefly for a question. My answer will 
be very short because I don't have enough time to finish.
  Mrs. MURRAY. Mr. President, I appreciate the Senator yielding for 
just a quick question. Isn't it true that insurance companies, until 
recently, did pay for clinical trials, and it wasn't until we moved to 
the HMO era that we are now in that we are being denied access to 
those?
  Mr. FRIST. Yes. I really appreciate the question because it shows why 
we are addressing this today. In part, it is

[[Page S8437]]

because we are just beginning to understand the real importance of 
clinical trials. We are just figuring out the cost. The other dynamic 
is just that.
  We have insurance companies and managed care companies and private 
payers today who basically say: We are in the insurance business. Our 
job is to deliver health insurance. If an individual comes in and they 
are sick, my obligation, as a managed care company or as an HMO or a 
health insurance company, is to take that patient and cover them by the 
definitions of that contract.
  The question they are asking us today, and need to ask us on the 
floor, is shouldn't that be the responsibility of the Federal 
Government? Why should I, an HMO, an indemnity plan, a private health 
insurance plan, be paying for research that has potentially nothing to 
do with that particular patient? Because this is a mandate, the 
underlying Dodd amendment is a new mandate.
  What Senator Mack and I will propose is also a mandate. So both sides 
are going to be hearing it. They are basically asking: Why are you all 
of a sudden thrusting on me the responsibility that is yours, the 
Senate, the Federal Government, the NIH? Why aren't you using Federal 
money, taxpayer money to subsidize this research, which is very 
beneficial? Why are you putting that mandate on my shoulders, the 
private insurance company?
  Now, the answer to that is twofold. We probably need to do a little 
of both. We need to have more appropriate public investment in the 
clinical trials and at the same time have the private health insurance 
company in some way subsidized.
  The problem with that is, if we put this new mandate on the managed 
care companies and the HMOs, somebody has to pay for it. The Federal 
Government is not going to pay for it. Unfortunately, I think we need 
to go back and address this same issue in Medicare. The Federal 
Government has basically said that we, except through the NIH, are not 
going to. For example, in the Medicare system, the health care delivery 
system for seniors, we have not approached the issue of how we 
subsidize these clinical trials.
  So the private sector is saying: Why are you making us pay for it, 
while you in the Federal Government, at least in Medicare, have not yet 
addressed that?
  The response to that is, yes, but we have the National Institutes of 
Health. We need to continue investing in that, and they oversee, along 
with other public agencies, clinical trials.
  The private sector says: Why us? What the private sector is going to 
do is say: I am in the business of taking care of the heart attack that 
I cover under contract. Why am I having to, under your mandate, to have 
this clinical trial on prostate surgery or prostate cancer treatment? 
Why are you forcing me to subsidize that?

  We need to answer that question. The general public good and the 
great advances are the answer to that question, but then somebody has 
to pay for it.
  The health insurance companies, what are they going to do? Whatever 
that incremental cost is, they are going to charge their very next 
person that they cover. So they are going to pass it back to the 
patients.
  Then all of a sudden you have the patient come forward basically 
saying: I came in because of a heart attack. Why are you increasing my 
premiums and making me pay more every year to do general research that 
benefits everybody across the world? I just want a health care plan 
that pays for my own insurance.
  We have to be able to determine what that additional cost of this 
mandate is, and that is very unclear today. We have to determine what 
that is. Then we have to explain to people why that is going to result 
in increased premiums that are passed on to the individual patients. 
That is sort of the big picture.
  Let me go back to the Senator's question because it was a good 
question. Twenty years ago we didn't have many HMOs. Twenty-five years 
ago, we didn't have coordinated care plans, HMOs, PPOs, provider-
sponsored organizations. All these are new entities. It used to be that 
private health insurance would be able to subsidize or cross-subsidize 
some of these clinical investigations--not a lot but some. That was at 
a time where there was more room to maneuver.
  Now, with the scarcity of the health care dollar, they have been 
squeezed down, physicians have been squeezed down. You hear it all the 
time. People who are in our reception room and here to lobby us all the 
time say: We are being squeezed down. Managed care companies say: We 
are being squeezed down. Everybody recognizes that in terms of health 
care dollars, the demand is so huge.
  Technology allows us such a great opportunity to deliver heart 
transplants, which I was able to do every week, or putting in heart 
valves or hip replacements in 95-year-olds, things that we couldn't do 
30 years ago. The overall expense has caused a squeezing down on 
everybody. You hear private health insurance companies saying: No 
longer can we subsidize; no longer can we take a little money from here 
and subsidize this research out of the goodness of our heart because we 
are squeezed so far. And thus we come in with some sort of mandate 
which is going to end up being in this bill, and some say performed to 
encourage and promote the private sector. We need to address it in the 
public sector in Medicare where we haven't addressed it for the private 
sector in some way to participate in clinical trials.

  Mrs. MURRAY. If the Senator will further yield, I understand that the 
Senator is a surgeon and has seen clinical trials and knows the benefit 
of them. I listened with respect to his arguments.
  But in this amendment, we are simply assuring that the patients will 
get the best care. And if the best care for their particular condition 
is a clinical trial that will not only benefit themselves but the rest 
of the people with that condition as well--and NIH has paid for the 
vast majority of this. I understand from CBO that 90 percent of 
insurance companies have been paying for clinical trials. The amendment 
ensures that won't go away. We are seeing more and more HMOs look at 
their bottom line and that benefit is being taken away. We want to make 
sure the insurance companies continue to pay their part. Certainly, a 
patient who goes in cannot afford to pay for that clinical trial, but 
they have been paying premiums for years. Shouldn't that be part of 
what they expect when they pay a premium to an HMO?
  Mr. FRIST. I will respond, through the Chair, to my colleague that 
the gist of her question is, shouldn't we allow what used to be done to 
continue to be done, and we should encourage that. The models of health 
care are changing rapidly. I hate to look back and say that because 
something used to be done, it should be done today. In this case, I am 
one who wants to promote the expansion of clinical trials as much as 
possible.
  How much time do we have?
  The PRESIDING OFFICER. The Senator has 6 minutes 38 seconds 
remaining.
  Mr. FRIST. I yield myself 6 minutes. Please notify me when we have 30 
seconds remaining.
  The real issue--and the reason why I urge my colleagues to defeat 
this amendment, as written--is the following:
  I have explained the difference between overall cost and incremental 
costs, and the cost of the clinical trial. Let me say that the data 
presented by Senator Harkin is good data, but it always asks for what 
the end number is in science, how many cases the data is on. I didn't 
hear that; I didn't know how many. One of the charts was around 100, 
maybe 130 patients. You are looking at small statistical differences. 
We need more patients if we are going to be making policy on studies. 
That involved very few patients.
  We had the opportunity in committee to look at a number of studies. 
There have been three completed studies--not ongoing but completed--all 
of which had some limitations. All three included just cancer patients, 
which is a very important group. We don't want to extrapolate cancer 
patients to artificial heart patients where they are putting in 
artificial hearts, cardiac valves, or stints. We have to be careful 
with that. The overall sample and size of the studies is very small.
  On the other hand, the charts, in essence, are right. If you get into 
a clinical study, the medicine continues to be very good. Why? Because 
you have outside people watching what every move is, making sure every 
lab test is

[[Page S8438]]

justified. If you are going to do a lab test, it gives you the result; 
that is right. But there is an incremental increase in cost.
  If you take two patients and you are studying them, you end up doing 
more testing. The side effect of the drug might be that it lowers one's 
blood test count, so then you have to test the hemateikon more. That 
increased cost is passed on to the patients in the private sector--not 
through Federal taxation going through Medicare and the subsidy coming 
down, but it is passed on by increased premiums.
  We have to be able to explain to the patients, for the great public 
good, why they are having to pay more. I am saying basically that the 
science of knowing exactly what that cost is very young; it is in 
development. We should have 100 studies, not just 3, to be able to 
cite.
  I think it is very important for us to continue as a body to 
encourage the gathering of that information and the academic study, 
careful study, through carefully controlled perspective trials, to 
determine what that cost is before we open the door broadly and pass 
that cost on to managed care companies, which on the very next day are 
going to put it on the backs of everybody who is listening to me speak 
today; that is, the patient--the patient who may have appendicitis 30 
days from now, or a heart attack 60 days from now. Every day you are 
going to say tomorrow you are going to pay for this mandate we put on 
your managed care company.
  In Medicare, which insures 36 million senior citizens and individuals 
with disabilities, we try to address it, and we are going to address 
it. But the reason we have not is we don't know what the cost will be. 
Where you have Medicare, you have a system going bankrupt over the next 
15 years. We can't get together in this body, working with the 
President of the United States, to reform that in a sensible, 
modernized way. We just can't do it. We are not going to be throwing 
new mandates out there either--or we should not--which furthers that 
bankruptcy.
  The question is, Where do we go from here? I think my objective is 
exactly the same as the principal sponsors of this amendment. There is 
one huge, gaping door there that I am most concerned about. I think the 
populations you have drawn from are probably appropriate, so we can get 
the data, the information to do this right. But basically the 
indication is that qualified individuals to whom this new mandate will 
apply in health care broadly--the indication is life-threatening or a 
serious illness. Now, having a category that broad in putting this 
mandate out on managed care, which is going to be passed on to 
patients--it has to be; there is nowhere else to pass it to; we are not 
taking it out of the Federal Treasury--before we do that, shouldn't we 
get a little more information and narrow the scope so we can learn and 
not make what could be a tragic mistake?
  Saying that the people who are qualified is anybody who walks in and 
says they have a life-threatening illness, or anybody who has a serious 
illness, is very dangerous. If you are a patient and have appendicitis, 
that is a routine procedure and that is serious. Is it a life-
threatening illness? No, but it is serious. As I go in as a patient 
under this new mandate, I might be able to say I want to be in a 
clinical trial.
  Mr. DODD. Will my colleague yield?
  Mr. FRIST. Let me finish my statement. What does that actually set 
into motion? I am not quite certain because we don't know exactly what 
the overall expense or cost range of those trials would be. So what I 
would like to see first would be an approach like the one of the 
Senator from Florida--to use the same overall indications but have the 
scope of a particular entity, instead of anybody who comes in and falls 
into the category of life-threatening or a serious illness because to a 
patient every illness is serious.

  How much time remains?
  The PRESIDING OFFICER. Thirty seconds remain.
  Mr. DODD. Mr. President, I ask unanimous consent to have 1 minute to 
ask a question.
  Mr. FRIST. The Senator would have to take it off the time of the 
bill.
  Mr. DODD. Mr. President, I ask unanimous consent for 1 additional 
minute.
  Mr. FRIST. On the time of the bill?
  Mr. DODD. On our time, yes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DODD. My question to my colleague and good friend from Tennessee 
is this: As we have written this amendment, there are two other 
conditions. It isn't just life-threatening or serious illness. There 
has to be no other standard, no other option available to the person 
other than the clinical trials. So that is one. And, two, there has to 
be a limited time. For instance, it can't just be someone who has 
cancer but in certain stages of cancer.
  So I appreciate his point that it can be pretty broad. But what we 
have done with our amendment is say that nothing else exists out there 
to possibly treat you, No. 1; and No. 2, it has to be done in a limited 
amount of time. He may want to respond to that.
  Mr. FRIST. Mr. President, I yield myself 3 minutes on the bill--not 
on the amendment.
  The PRESIDING OFFICER. The Senator is recognized.
  Mr. FRIST. Mr. President, I appreciate the Senator's clarification of 
that because it is important. The concept is basically that we can't 
create a door that is so broad that anybody can come in. If I need a 
heart transplant, is there any other therapy available? Probably not. 
Does that automatically qualify me for arranging a clinical trial? That 
can be dangerous. I can tell you that putting an artificial heart in 
can cost $100,000 or $150,000. I have put in these devices before.
  We have to be very careful because to put a $150,000 expense into a 
policy that is translated directly down to the shoulders of patients--
not the patient who needs the artificial heart but somebody else--can 
be dangerous.
  I want us to work together. We can do that in the underlying 
amendment. We may not be able to go as broadly as we all would like to 
go until we get the appropriate information on the incremental cost and 
how much of a burden we are placing on society.
  Again, I think our goals are very similar. I will refuse to move as 
far as the Senator on that concept in terms of life-threatening or 
serious illness, such as the example I just gave of the artificial 
heart, but I look forward to working with the Senator.
  I again urge my colleagues to vote against this amendment with the 
understanding that the outline Senator Mack put forward as an amendment 
hits right at the principles of a mandate where we will support 
clinical trials without an undue burden on the backs of patients. That 
will be to the benefit of all Americans.
  I yield 30 seconds initially to my colleague from Maine so that she 
may submit her amendment, and I yield the remainder of the time if that 
is appropriate.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Maine is recognized.


                Amendment No. 1241 To Amendment No. 1239

             (Purpose: To enhance breast cancer treatment)

  Ms. SNOWE. Mr. President, I have an amendment at the desk.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Maine (Ms. Snowe), for herself, and Mr. 
     Abraham, Mr. Fitzgerald, Mr. Crapo, Ms. Collins, Mr. 
     Jeffords, and Mrs. Hutchison, proposes an amendment numbered 
     1241 to amendment No. 1239.

  Ms. SNOWE. 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. FRIST. Mr. President, I yield 20 minutes, or whatever time is 
necessary, to the Senator from Maine.
  The PRESIDING OFFICER. The Senator from Maine is recognized.
  Ms. SNOWE. Thank you.
  I thank Senator Frist for his leadership on obviously what is a very 
challenging and very difficult issue.
  I think even in spite of the debate that has occurred on some of 
these issues where there may be apparent differences on how to approach 
this problem, there is no disagreement on the fact that we need to 
bring much needed reform to the managed care system in America today.
  Mr. President, I rise today to submit an amendment to the Patients' 
Bill of

[[Page S8439]]

Rights that will ensure that appropriate medical care--not a 
bureaucrat's bottom line--will dictate how long a woman stays in the 
hospital after undergoing a mastectomy.
  This amendment that I am introducing, along with my colleague from 
Michigan, Senator Abraham, and Senators Fitzgerald, Crapo, Collins, 
Jeffords, and Hutchison, is based on bipartisan legislation that I was 
pleased to introduce at the beginning of this year with bipartisan 
cosponsors.
  I have been in Congress for 20 years--10 of those years in the House 
when I served as cochairman of the Congressional Caucus on Women, which 
addressed issues that affected women and families in America on a 
bipartisan basis. Throughout that time, I fought long and hard to 
advance women's health issues, women's health research, and protection 
for patients who are facing life-threatening diagnoses of breast 
cancer.
  I feel justified in saying that I come to this debate not only with 
strong feelings about the issue but with a long history of involvement 
and close familiarity with the problem. It is in that light, I believe, 
that the amendment I am submitting today, along with Senator Abraham 
and my other colleagues, is the most effective approach to address the 
issue of those individuals who are faced with breast cancer.
  Our amendment is straightforward. First, it says that the inpatient 
coverage with respect to the treatment of a mastectomy, regardless of 
whether the patient's plan is regulated by ERISA or State regulations--
in other words, all plans will be provided for a period of time--will 
be determined by the attending physician in consultation with the 
patient as medically necessary and appropriate.
  Second, it allows any person facing a cancer diagnosis of any type to 
get a second opinion on their course of treatment.
  Imagine having a life-threatening disease and not having access to 
the best possible advice. A diagnosis of breast cancer is something 
that every woman dreads. But for an estimated 175,000 American women, 
this is certainly the fear that they have to realize. The fact is that 
one in nine women will develop this terrible disease during their 
lifetime, and for women between the ages of 35 and 54, there is no 
other disease which claims more lives.
  So it is not hard to understand why the words, ``You have breast 
cancer,'' are some of the most frightening words in the English 
language, because for the woman who hears them, everything changes from 
that moment. No wonder the diagnosis is not only accompanied by fear 
but also by uncertainty:
  What will become of me?
  What will they have to do to me?
  What will I have to endure?
  What is the next step?
  For many women, the answer to that question is mastectomy or 
lumpectomy.
  Despite the medical and scientific advances made, despite advances in 
early detection technology, and more and more often the need for 
radical surgery, it still remains a fact of life that at the end of the 
20th century these procedures can be the most prudent options in 
attacking and eradicating cancer found in a woman's breast.
  These are the kinds of decisions that come with the breast cancer 
diagnosis. These are the kinds of questions women must answer. And they 
must endure some of the most difficult and stressful circumstances 
imaginable.
  The last question a woman should have to worry about at a time like 
this is whether or not her health insurance plan will pay for 
appropriate care after a mastectomy. A woman diagnosed with breast 
cancer in many ways already feels she has lost control of her life. She 
should not feel as though she has also lost control of her own 
treatment. All too often that is exactly what happens.
  Imagine a patient who just had one or both of her breasts removed in 
the wake of a cancer diagnosis, and she agrees in consultation with her 
physician that it would be best if she stayed in the hospital for 
another day or so. Maybe it is because she still needs to learn how to 
take care of herself. Maybe there are concerns about the possible 
complications, like infections or uncontrolled bleeding.
  Let's remember that this is a very complicated surgical procedure we 
are talking about. What other reason is the decision based on than 
medical advice from doctors who are likely involved with hundreds of 
thousands of these kinds of operations? Yet in many instances, because 
of the decisions made by accountants and insurance actuaries--none of 
whom have ever witnessed such operations, let alone go to medical 
school--that same woman cannot afford to follow her doctor's advice. 
She is not covered by her plan because whoever wrote her plan already 
decided that she didn't need inpatient care. Instead, that charge for 
that extra day in the hospital will come out of her own pocket, and 
unless it is an awfully deep pocket, she is just as likely to take her 
chances at home. That is just plain unacceptable.
  If we are talking about patients' rights, I can't think of a more 
appropriate place to start than right here. That is why I appreciate 
that my Democratic colleagues raised this vital issue. As I have said, 
no one is more concerned about this issue than I am.
  I looked carefully at the amendment and watched the debate very 
closely. But when all was said and done on this issue, and despite the 
good intentions of the amendment, I could not support the amendment 
that was offered yesterday by our colleague, Senator Robb. Let me tell 
you why.
  The Robb amendment relied on the phrase ``generally accepted" medical 
standard to instruct insurance companies as to what constitutes a 
``medical necessity'' that requires coverage. What exactly does that 
mean, ``generally accepted'' medical standard? That is a good question.
  The fact is that we are not exactly sure what it means. In fact, the 
problem is that it means different things in different places. 
Moreover, there has never been a consensus concerning the definition of 
``medical necessity,'' though it has not been for lack of trying.
  The most recent Federal attempt, as a matter of fact, was in 1993 
when the Clinton health care working group tried and failed. But they 
didn't give up. Instead, they decided to leave the definition of this 
crucial term not to physicians and their patients but to a national 
administrative board.

  Perhaps that working group would have been better served if they 
looked to 1989 when Medicare tried to define ``medical necessity'' and 
Medicare failed. Medicare failed. Why did it fail? Because terms like 
``medical necessity'' and ``appropriateness'' cannot be defined for an 
entire nation, and they certainly can't be defined by Congress.
  The standards change with time, they change with individual patients, 
they change depending on the illness or disease, and they should change 
because medicine is marching forward.
  Likewise, trying to define ``generally accepted medical standard'' is 
like hitting a moving target, and a low target at that. ``Generally 
accepted medical practices'' will vary tremendously among communities, 
hospitals, and even among doctors.
  Just look at the chart behind me that was used yesterday by my 
colleague, Senator Frist. It is a good chart because I think it 
illustrates the point on the very treatment prescribed for breast 
cancer patients. In some cases they use ``lumpectomy'' more sparingly 
than they do ``mastectomy.'' It obviously varies across regions and 
States.
  Looking at the percentages using lumpectomy versus mastectomy 
treatments, very few were performed in South Dakota; but in the 
Northeast, including parts of New York, there is a higher degree of the 
use of lumpectomy versus mastectomy.
  Obviously, the treatment varies. Obviously, the treatment is 
complicated. It is a very complicated treatment and set of options for 
a woman facing a mastectomy. As the chart shows, in the United States 
of America, the treatments vary all across the land. We cannot 
prescribe the status quo; we cannot prescribe uniformity. We have to 
allow the doctors and patients to have the latitude to determine what 
is best for the individual patient. We hear over and over again that 
the patient has choices. Let the patient have choices. This is allowing 
the patient to have choices as to what is in her best interest.
  This chart illustrates very graphically the differences and the 
variations across the country in mastectomy and

[[Page S8440]]

lumpectomy surgeries. What is generally accepted in one area is not 
generally accepted or performed in another area. That is the way it 
should be. Should we be telling a woman who can be treated with a 
smaller, less invasive and less traumatic lumpectomy, Sorry, in your 
community, the generally accepted medical standard is a mastectomy? Of 
course not.
  And the reverse is true. Should a woman have a mastectomy without 
knowing that she can have a lumpectomy first, to determine whether or 
not it is necessary to go to the more invasive surgery?
  How can we say what is generally acceptable for a 31-year-old athlete 
in Oregon is generally acceptable for a 78-year-old grandmother in 
Maine?
  The phrase ``generally accepted medical standard,'' far 
from representing the cutting edge of medicine, is nothing more than 
the medical community status quo, a status quo that simply cannot keep 
up with the pace of medical science and new technologies.

  What we are talking about in this amendment is offering the best 
practice, the best standards, the best quality care. Think how far we 
have come in the past decade. Mastectomies were once virtually the only 
option. Today, we have a whole host of alternatives available, 
depending on the woman's circumstance. If a mastectomy is a generally 
accepted medical standard, there are other options a woman may be 
missing out on in making her decision.
  The web site of NIH shows a variety of options available to a woman 
to determine for herself, with her doctors, what is best, depending on 
the progress of her cancer. She could have a lumpectomy; she could have 
a segmental mastectomy, a modified radical mastectomy, or, if 
necessary, even a radical mastectomy.
  The fact is, hardly a day passes when we don't hear of a promising 
new treatment or a research breakthrough. Parties need to be able to 
take advantage of these advancements now. They can't wait for generally 
accepted medical standards to catch up with the times. Under this 
amendment, they will not have to.
  In contrast, my amendment dictates coverage in terms of medical 
standards. If a doctor and a patient agree on a course of treatment of 
care and an insurance plan refuses to allow that treatment, the patient 
has a right to appeal to an independent medical expert in that field of 
medicine. In turn, that expert can take into account all pertinent 
information in determining what is medically necessary and appropriate 
based on the relevant scientific and clinical evidence. That includes 
evidence offered by the patient and her doctor, expert consensus of 
peer review literature.
  Not only does this put the patient first, but it also ensures we are 
not lowering the bar of coverage by handcuffing the physicians in their 
ability to employ the best strategy, the latest medical technology, 
with respect to their specific patient. If anything, this amendment 
raises the bar precisely because the ultimate decisions will be driven 
by physicians and patients, not lawyers and regulators.
  Let me add another point. I heard over and over again that the 
language offered in the amendment yesterday was the language offered in 
my bill and the bill offered by Senator D'Amato in the last Congress. 
Let me state for the record, the D'Amato-Feinstein-Snowe legislation 
offered in the last Congress was legislation that said it was medically 
appropriate--medically appropriate. It did not use the definition of 
generally acceptable medical standards and practices. The legislation 
offered by myself and Senator Feinstein uses the word ``medically 
appropriate.''
  The point I am making is, all of the bills that have been addressed 
in recent years on the issue of breast cancer treatment and whether or 
not the length of stay is to be determined by the doctor and patient 
have been using the words ``medically necessary,'' ``medically 
appropriate,'' not defining ``medical necessity.'' This would be the 
first time we are dealing with a definition of ``medical necessity'' 
which heretofore has not been practiced by Medicare, by the President's 
health care group, when developing a health care plan, not by CHAMPUS, 
not by the VA, not by Medicaid, not by legislation introduced on a 
bipartisan basis over the last few years.

  Finally, my amendment will also include the ability to provide full 
coverage for secondary consultations with a specialist whenever any 
type of cancer has been diagnosed or a treatment recommended. Imagine 
being given a life-threatening diagnosis and not being able to get 
another doctor's opinion. Patients cannot afford to forgo second 
opinions when it comes to cancer of any kind--from lung cancer, to 
leukemia, to breast cancer, to prostate cancer. Under this amendment, 
they will not have to. That is important because we all know, when it 
comes to cancer, time is of the essence and making the right decision 
in terms of treatment is paramount.
  So often there are no second chances when it comes to taking the best 
course of action. Our amendment will allow the possibility of having 
that second opinion and making sure people are getting the right 
treatment so we can reduce senseless deaths resulting from false 
diagnosis, empowering individuals to seek the most appropriate 
treatment available.
  The evidence for the need of this amendment is especially important 
when it comes to the so-called drive-through mastectomies. It is more 
than just allegorical, more than symbolism. We have heard time and time 
again antecdotal evidence that speaks for itself. Between 1986 and 
1995, the average length of stay for mastectomies dropped from about 6 
days to 2 to 3 days. Thousands of women across the country undergo 
radical mastectomies on an outpatient basis and are being forced out of 
hospitals before they or their doctors think is reasonable or prudent.
  I recall the story of one woman from the State of Washington named 
Linda Schrier. Linda was a registered nurse who worked in the 
postoperative recovery room for 18 years before she underwent a 
mastectomy. Linda was doing well after the operation. The pain was 
under control. She opted to go home instead of staying overnight. 
Today, she believes that was a big mistake. When Linda woke up at home 
the next day without the benefit of the IV pain medication she had in 
the hospital, she was in excrutiating pain. She also had tremendous 
difficulty caring for her wound.
  Keep in mind, this is someone who worked in the medical profession. 
Today, she feels, very strongly, based on her own experience as a nurse 
and as a patient, that no one should go home the day of their 
mastectomy. She also believes that no insurance company should tell a 
woman how long her hospital stay should be. It should be up to a woman 
and her doctor.
  I could not agree more. I know we all could not agree more. This 
decision must be returned to physicians and their patients. All 
Americans who face the possibility of a cancer diagnosis must be able 
to make informed decisions about the appropriate and necessary medical 
care.
  As we debate the Patients' Bill of Rights this week, let us not 
forget the women and men across the country who are battling cancer. 
Let's do the right thing for all of them.
  I yield back my time.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. Mr. President, I have a great deal of admiration for the 
Senator from Maine, Ms. Snowe, who, in my time with her over the last 
several years in the Senate, has worked long and hard on behalf of 
women's health issues. I appreciate she is offering an amendment that 
we offered yesterday on this side which deals with the issue of drive-
through mastectomies. The language is very similar to the language 
offered by Senator Robb from Virginia, along with myself, Senator 
Mikulski, Senator Boxer, Senator Landrieu, and Senator Lincoln. It was 
defeated on a 52-to-48 vote yesterday.
  We would have been delighted to work with our colleagues if they 
wanted to talk with us about a word or two about which they were 
concerned. We were not given that opportunity. The amendment was simply 
defeated.
  We stand very strong on this side that we need to make changes in the 
health care delivery system in this country so that the woman from the 
State of Washington the Senator from Maine talked about is not sent 
home after a radical surgery, a mastectomy,

[[Page S8441]]

to care for herself when she is unable to do so. The doctor and the 
woman should make the decision based on the best medical judgment, not 
based on the bottom line from an HMO. I agree entirely with the Senator 
from Maine.
  Unfortunately, because it is offered in this way, what this amendment 
does is it gives us a Hobson's choice regarding women who have had a 
mastectomy because this amendment wipes out the amendment by Senator 
Dodd on clinical trials that we have debated for the last several hours 
on this floor, where we have talked about the need for women with 
breast cancer or ovarian cancer, or the gentleman with multiple 
sclerosis or the man with heart disease, or the young child with 
diabetes, to have access to clinical trials so they can get the best 
medical research possible.
  Organizations such as the National Coalition for Cancer Survivorship, 
Cancer Care Incorporated, Candlelighters, Childhood Cancer Foundation, 
Susan G. Koman Breast Cancer Foundation, National Alliance of Breast 
Cancer Organizations--and the list goes on--want the access to clinical 
trials that Senator Dodd's amendment offers because those are the 
clinical trials that will assure that women, maybe, in the future, will 
not have to have a mastectomy.
  I agree with the Senator from Maine. We want to make sure HMOs are 
not having drive-by mastectomies, where a woman is sent home. I commend 
her for the language of her amendment, except for the very first line, 
which cynically wipes out the clinical trials that Senator Dodd has 
offered.
  Mr. DODD. Will my colleague yield?
  Mrs. MURRAY. I will be happy to yield.
  Mr. DODD. Mr. President, if I may inquire of my colleague from 
Maine--I appreciate immensely what the Senator from Washington just 
said. It sounds to me what the Senator from Maine has offered is 
something with which I could certainly agree. I would add it to my 
amendment. There is no reason we ought to ask people to make a choice 
between a proposal dealing with breast cancer and a proposal dealing 
with clinical trials and prescription drugs.
  So I make a request that this be added to the clinical trials 
amendment so we could achieve the goals of both dealing with the 
clinical trials issue and the issue the Senator from Maine has raised.
  If it is appropriate, I ask unanimous consent the amendment by the 
Senator from Maine be added to the underlying Dodd amendment on 
clinical trials.
  Mr. JEFFORDS. Reserving the right to object.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mrs. MURRAY. Mr. President, I am reclaiming my time.
  The PRESIDING OFFICER. Is there objection?
  Mr. JEFFORDS. Reserving the right to object, I would like to point 
out----
  Mrs. MURRAY. Mr. President, is this on my time? I do have the floor.
  The PRESIDING OFFICER. The regular order is to object or not object. 
Is there objection?
  Mr. JEFFORDS. Objection.
  The PRESIDING OFFICER. Objection is heard.
  Mrs. MURRAY. Mr. President, I am extremely concerned, as I am sure my 
colleague from Connecticut is as well, that an objection was heard and 
we were not able to just add this language directly to the underlying 
amendment on clinical trials, because what the Senator from Maine has 
now done is forced us into a vote where we would be voting against 
clinical trials in order for women not to have drive-through 
mastectomies. That is not a choice Senators ought to be having.
  In addition, what it says to women across this country is you have a 
choice, a mastectomy or a clinical trial. That is not a choice we 
should be offering.
  I really hope our colleagues on the other side of the aisle will 
reconsider their objection to this and we can work this out. The people 
of this country are watching this debate, asking whether or not we are 
going to move forward and give patients the ability to have the best 
care possible. If we can work out this amendment and add it to the 
clinical trials, we will have done the people of this country a 
service.
  Mr. President, I reserve the remainder of our time, and I yield.
  Mr. JEFFORDS. Mr. President, I yield myself 5 minutes off the bill 
time.
  The PRESIDING OFFICER. The Senator is recognized for 5 minutes.
  Mr. JEFFORDS. Mr. President, I want to explain where we are right 
now. This monstrosity, whatever you want to call it, of a procedure 
which was set up by the leaders in negotiating back and forth leads us 
into these kinds of situations. We, on the Republican side, are trying 
to end up with the best bill, and we are intending to do that. This 
provision, which is offered by Senator Snowe, is responding, to the 
extent that we desire to do so, to the question which has been raised 
about mastectomies.
  If anybody would try to explain, even to our colleagues, as to this 
chart we use on the parliamentary procedure, we could spend the rest of 
the week just talking about that. What we are doing now is taking care 
of the issue raised with respect to women's health and mastectomies. We 
have a good provision. That is recognized by the other side. It is a 
fine position. Everybody ought to adopt it. We hope you do. I hope we 
get 100 votes on this amendment. We are going to take up and the other 
side will have an opportunity to reinstitute clinical trials at some 
point. This is the process that has been set up. We are trying to 
improve our bill, and by doing that we are going to make sure we have 
the best provision possible dealing with women with breast cancer. That 
is what we are doing.
  The fact we attached it to a provision on clinical trials is the way 
the game is working back and forth. But we all, each of us, want to end 
up with the best possible bill for our side. Right now I point out we 
will have an amendment on clinical trials. That will end up eventually 
being in our bill which will be voted on at the end. People may 
disagree with what we end up with on clinical trials. They may have 
their own version. We will have a good provision. What we are trying to 
do right now is to make sure the best possible policy is established 
for women with breast cancer. So I hope people will try to understand 
this somewhat convoluted process is going to confuse you all the way 
along. You have to wait until the end to see what the final product is.

  I reemphasize what the Senator from Maine said, as to what the 
Republican bill is across the board, the whole bill. It is different 
with respect to the protections people receive. For the first time, the 
Republican bill will provide to this Nation a standard which is the 
``best medicine'' standard. It does away with the multiple standards 
across this Nation, about what is generally practiced in the area. This 
will give us the opportunity for every woman and every man to be able 
to get the advice as to what the experts, by analysis of all the 
processes that have been used, is the best medicine.
  That is why this bill does a job in an area which has not been 
discussed much but we should concentrate on, which is AHCPR. That is 
the acronym for the agency which has been set up to learn what all of 
those interested in health care from the beginning of these great 
discussions starting in 1994 say we need to determine: How do you 
determine what the best results are?
  How do you determine what the best results are? You set up a system 
where you can get outcomes research throughout this country, reporting 
of what was tried and what worked and what did not work.
  As a result of that, we now will be able to help physicians across 
this Nation, under certain circumstances when problems occur, to know, 
about these following systems and methods, whatever was used to try to 
cure this disease or whatever, that these are the ones that worked. So 
that individual, trying to find out what kind of care they ought to 
get, will have the ability to first appeal it internally. If the doctor 
will say, ``I do not believe what the HMO tells me I should do is the 
best medicine,'' they could do that review internally. If they are not 
happy with the internal review, then they ask for an external review. 
This external review person must be an expert in the area, an 
independent person, one who can be relied upon to give an independent 
judgment. If that individual says, ``No we think the best care would be 
this process which across the Nation

[[Page S8442]]

has worked the best,'' then the decision can be made. If the patient 
desires it, ``I want the one that has been best across the Nation,'' 
they can get it. That is what we are talking about.
  Right now we are in a convoluted process where people are going to be 
knocking amendments out with an amendment that may even be in a 
different area, but in the final analysis when we get to it tomorrow 
night, we expect to have a bill which will provide the best possible 
health care to all Americans. It is a little confusing.

  The PRESIDING OFFICER. The Senator's 5 minutes have expired.
  Mr. JEFFORDS. I yield 5 minutes to the Senator from Maine off the 
bill time.
  Mr. REID. I am sorry, I did not understand that, Mr. President. The 
Senator is yielding 5 minutes off what?
  The PRESIDING OFFICER. Off the bill time. The Senator from Maine is 
recognized.
  Ms. SNOWE. Mr. President, I thank Senator Jeffords for his comment 
and for yielding time.
  I want to clarify a few points that were made earlier because I do 
think it is important it does not get lost in the debate.
  The amendment I am offering is not the amendment that was offered 
yesterday. The language is not identical. I thought I had made that 
abundantly clear. It is different from the D'Amato-Feinstein-Snowe 
legislation passed in the last Congress. It is different from the 
Snowe-Feinstein legislation offered in this Congress. It is different 
from the Feinstein-Snowe legislation because medical necessity is not 
defined, and that is the issue.
  Secondly, the Robb amendment did not have a second opinion for cancer 
patients. That is included in this legislation.
  This amendment is offered to the Republican legislation; that is, the 
substitute that was offered by the minority leader. That is the process 
that has been developed on a bipartisan basis and on unanimous 
agreement. The Republican substitute does not have this language. The 
option was to offer this amendment at this point in time.
  I should also make it clear the amendment that was offered yesterday 
by the Senator from Virginia was restated in the language that was 
already included in the Democratic legislation. So it is just restating 
a fact. We are in a position to offer this legislation to the 
Republican substitute, language that has not been included in the 
Republican substitute.
  This is the process that has been agreed to. Therefore, that is why 
this amendment is being offered at this time. I had hoped we could have 
worked on it yesterday, but the Robb amendment was offered to the 
Democratic plan yesterday, and that was a second-degree amendment. We 
had no ability to perfect that amendment.
  Mr. DODD. I ask my colleague----
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, I yield such time as the Senator may need.
  Mr. DODD. Mr. President, before my colleague from Maine sits down, I 
know she cares about the clinical trials issue. She has one of the best 
bills on clinical trials, of which I am a supporter. What I have 
offered incorporates some of her ideas, some of Senator Mack's, and 
Senator Rockefeller's ideas with the clinical trials.
  I also agree with what my colleague from Maine is doing on 
mastectomies, on the breast cancer issue. I am perplexed a bit. We have 
a chance right now by taking the amendment of the Senator from Maine, 
of which I am supportive, and adding it to the clinical trials 
amendment, and we might just do something no one expects. We might 
actually do something in a bipartisan way on the Patients' Bill of 
Rights.
  I do not understand why there is such objection to that. If we agree 
with Senator Snowe and her amendment, if, by and large, we all agree on 
clinical trials, why does the Republican majority object to adding the 
Snowe amendment to the Dodd amendment, adopting both of them and moving 
on to the next amendment?
  Mr. REID. Will the Senator yield for a question?
  Mr. DODD. I will be happy to yield.
  Mr. REID. It is true, is it not, I say to my friend from Connecticut, 
yesterday we had a drive-through mastectomy provision in the Robb 
amendment?
  Mr. DODD. That is true.
  Mr. REID. What I understand you are saying is, why don't we take 
that, which is in keeping with the amendment of the Senator from Maine, 
and----
  Mr. DODD. I would take the amendment of the Senator from Maine, with 
all due respect to my colleague from Virginia.
  Mr. REID. They are basically the same.
  Mr. DODD. We agree on the clinical trials. We can put them together 
and move on to the next issue. That is what I recommend.
  Mr. REID. Is it not true that the Senator from Connecticut asked 
unanimous consent that the clinical trials, which are so badly needed 
and on which we understand there is agreement, be accepted with the 
drive-through mastectomy?
  Mr. DODD. I asked for that and objection was noted by the Republican 
majority.
  Ms. SNOWE. I appreciate and applaud the leadership of Senator Dodd on 
clinical trials, and I wholeheartedly agree----
  Mr. JEFFORDS. I yield the Senator from Maine 5 minutes on the 
amendment.
  Ms. SNOWE. I thank the Senator. It does obviously represent the 
legislation that I introduced on this issue. I appreciate the Senator's 
forceful advocacy. Obviously, the issue is concerning scope at this 
point in time. I might agree with him on what he is attempting to do, 
but obviously there is a big difference in our legislative approaches 
with respect to scope. There are differences. Perhaps that ultimately 
can be worked out on the whole issue of clinical trials, and I hope it 
is. I believe it is that important. We were left in the position, given 
the scenario that has been developed on both sides, because I think 
this is so important, of having to offer it at this point in time or I 
lost the opportunity. We think it is important to add this language to 
the Republican substitute. We lost an opportunity yesterday, to be 
honest with you, with the amendment that was offered to the Democrat's 
plan. We are left in this parliamentary process at this point in time.
  Mr. DODD. If my colleague will yield, I gather it is not just her 
voice but obviously other voices here--the leadership. May I interpret 
that to mean that if I were to offer my clinical trials amendment as a 
freestanding proposal, I would then have her support of that proposal 
so we are not asking ourselves to make a choice between two items we 
like, and instead of adding one to another, we are substituting one for 
another; therefore, being put in a terrible parliamentary situation, 
unnecessarily, in my view. I am fearful if I offer my clinical trials 
amendment freestanding as to whether or not I will be able to have the 
Senator's support on that, maybe even as a cosponsor.
  Ms. SNOWE. I will look at the language. I would certainly want to 
support it. I know it does not include FDA-sponsored trials. I cannot 
speak for everybody in this conference or in this Senate, but certainly 
it is something I could support and obviously do support, given the 
legislation I have introduced in this Congress. I will be more than 
happy to do that.
  At this point, we have to address the issue of mastectomies. It is 
that important to this legislation. We lost an opportunity to improve 
upon the Robb amendment, because that was a second-degree amendment 
offered yesterday, and, obviously, that created another Hobson's 
choice.

  Mr. DODD. Parliamentary inquiry.
  The PRESIDING OFFICER (Mr. Burns). Who yields time?
  Mr. DODD. Parliamentary inquiry.
  Mr. KENNEDY. I yield the time necessary for the parliamentary 
inquiry.
  Mr. DODD. Mr. President, am I allowed to withdraw my amendment?
  The PRESIDING OFFICER. It would take unanimous consent.
  Mr. DODD. To withdraw my amendment.
  The PRESIDING OFFICER. That is correct.
  Mr. DODD. I thank the Chair.
  Mr. ROBB. Mr. President, will the Senator from Maine yield for a 
question with respect to the process?
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. SNOWE. Do I still have the time?
  Mr. JEFFORDS. Mr. President, I yielded the Senator from Maine 5 
minutes.

[[Page S8443]]

  The PRESIDING OFFICER. The Senator from Maine is recognized for 5 
minutes.
  Mr. ROBB. I thank the Chair, and I thank the Senator from Maine.
  Yesterday, when we were debating the amendment I had the privilege of 
offering on behalf of myself and Senators Murray, Mikulski, Boxer, and 
others, we had no one from the other side of the aisle here to debate 
or discuss that during the entire period we were discussing that 
particular amendment. In a few minutes I am going to address the merits 
of what was said, but nothing was said, no engagement on the merits of 
the amendment that we offered was offered by anyone from the other side 
of the aisle. Was there a decision not to engage this side? Does the 
Senator know how to respond to that?
  Ms. SNOWE. I was not aware of that. I was certainly not aware what 
was taking place on the floor. We were aware the Senator from Virginia 
was offering an amendment. I was aware, in fact, he was offering an 
amendment, but there was no strategy on this side to suggest we would 
not engage in that debate. I think there was some discussion on this 
side about the debate. I do not see that is a valid objection at all.
  Mr. ROBB. I am only responding to the concern there was not adequate 
time for discussion. We were actively seeking engagement on this 
question, and it did not occur. I look forward to talking about the 
merits on my own time.

  I thank you and I yield the floor.
  Ms. SNOWE. Mr. President, I still have some remaining time.
  I would like to make a point. I think the point is, there are 
substantial differences between the legislation offered by the Senator 
from Virginia yesterday and the legislation we are offering in this 
amendment. We are not defining ``medical necessity.'' As I indicated 
previously, there has been no other legislation on this issue that 
defines ``medical necessity,'' legislation that has been introduced on 
a bipartisan basis over the last few years.
  That is going to take away from women the variety of treatments and 
prescriptions for breast cancer, as you can see what is illustrated on 
this chart. I think we ought to opt for the best treatment, the best 
practice, the best standard, and the best principles. No one else, no 
professional, no government agency, no private association with medical 
credentials has defined ``medical necessity'' because you can't.
  Leave it up to the doctor and the patient. That is what we are asking 
with respect to women who have breast cancer. That is a huge difference 
between this amendment and the one that was offered yesterday. By the 
way, the language offered yesterday was already included in the 
minority's plan, so it did not have to be restated. I think we could 
have worked something out that we could have agreed to on a bipartisan 
basis, as we already have in legislation that has been introduced on 
this very issue.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. JEFFORDS. I yield 7 minutes to the Senator from Michigan.
  The PRESIDING OFFICER. The Senator from Michigan is recognized for 7 
minutes.
  Mr. ABRAHAM. I thank the Senator from Vermont. I think I will be 
finished in that time frame.
  Mr. President, I would like to speak to the Snowe amendment 
substantively at this point. As I have a number of times over the past 
few years, I rise to join her in sponsoring an amendment to address the 
incidence of breast cancer in this Nation.

  This year alone, 180,000 women will be diagnosed with breast cancer. 
Yet, in this Nation of vast medical resources a number of those women 
are being denied the best health care available. It is time we did 
something about it.
  I have made increasing awareness and funding for breast cancer 
research a central part of my agenda since coming to the US Senate.
  That is why I have fully supported the efforts of Breast Cancer 
Awareness Month, the Race for the Cure, and WeCan. This last 
organization, which stands for ``We Encourage Cancer Awareness 
Network,'' brings together people we are interested in cancer control 
and prevention in Michigan, with a focus on breast and cervical cancer.
  Awarness is important. Breast cancer survival rates are much higher 
when the disease is diagnosed early.
  That is why I have participated in a number of campaigns aimed at 
encouraging women to have regular mammograms. It also is why I fought 
the National Cancer Institute's short-lived recommendation against all 
women in their forties getting mammograms.
  As I said, awareness is critical. But it is not enough. Research also 
is desperately needed to fight this deadly disease. That is why I have 
supported Defense Department research in this area and cosponsored an 
amendment to the Treasury-General Government appropriations bill in 
1997 to authorize creation of a new stamp to fund breast cancer 
research.
  Like awareness, research is critical. And like awareness, research is 
not enough. Women must be empowered to make the best use possible of 
existing research and technologies in fighting breast cancer. And that 
means putting health care decisions in the hands of patients and their 
doctors.
  The Women's Health and Cancer Rights Act, which my colleague and I 
are offering as an amendment to the underlying bill, would empower 
women; it would help them take charge of their own medical care during 
the time of crisis surrounding a breast cancer diagnosis.
  Our amendment would require all--and I mean every--group health plan 
to cover inpatient care following a mastectomy, lumpectomy, or lymph 
node dissection for the treatment of breast cancer.
  The length of stay would be determined by the physician, in 
consultation with the patient, and would be based solely on what is 
necessary and appropriate for that patient.
  There would be no minimum stay required, and outpatient treatment 
would also be covered if the patient and her doctor agree that that is 
the best course.
  Under current law, insurers may have guidelines recommending that 
mastectomies be performed on an outpatient basis. But a mastectomy is, 
in fact, a complicated surgical procedure, one from which significant 
complications can arise.
  Under these circumstances, sending a woman home immediately after a 
mastectomy may not be the right thing to do. The woman may not have the 
information she needs, or even the care she needs during this critical 
time.
  We must see to it that doctors are not pressured by health plans to 
release mastectomy patients before it is medically appropriate.
  Women suffer immense emotional trauma from mastectomies. They also 
suffer from scarring and may suffer from significant and even dangerous 
complications hours after surgery.
  It simply is not appropriate, then, to have anyone other than the 
patient and her physician deciding when it is safe and proper for her 
to go home.
  Our amendment does just that. It allows patients and their physicians 
to make the critical, life-changing decisions concerning how to treat 
breast cancer.
  In addition to these provisions, our amendment would help patients 
diagnosed with cancers of all kinds by empowering them to seek second 
opinions.
  Under the language of this amendment, patients diagnosed with any 
form of cancer by their primary care physician would be able to get a 
secondary consultation with a specialist. Group health plans would be 
required to include coverage for these visits.
  Even if the specialist finds no cancer, the health plan would be 
required to cover that visit. And members of HMOs will still be covered 
if they go outside the HMO for their secondary consultation.
  These provisions will defend a patient's right to a second opinion in 
addressing a cancer diagnosis. In a nation with the vast health care 
resources of our country, there simply is no excuse for not allowing 
patients to seek an independent second opinion when dealing with a 
cancer diagnosis.
  This amendment would place these key health care decisions in the 
hands of patients and their physicians. It will put the priority back 
on patient care, where it belongs. It is an important element of our 
ongoing fight against cancer, and breast cancer in particular.
  I urge my colleagues to lend their support for this important 
amendment.

[[Page S8444]]

  I yield the floor.
  Mr. KENNEDY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. I would like to yield myself 3 minutes.
  Could I have the attention of the Senator from Michigan just for a 
moment?
  I notice on page 3 of the amendment, talking about ``Inpatient 
Care,'' under the title ``In General'' it states:

       . . . the treatment of breast cancer is provided for a 
     period of time as is determined by the attending physician, 
     in consultation with the patient, to be medically necessary 
     and appropriate. . . .

  This is going to be universal. Why does the Senator from Michigan 
think we should protect a woman who has breast cancer and needs a 
mastectomy but not provide the same protection for a woman who has 
ovarian cancer and needs a hysterectomy. Why shouldn't we provide the 
same protection for someone who has brain cancer? Why do you believe 
this should be applicable to all HMO members--that a decision should be 
made by the doctor and the patient, using the best health guidelines--
but not provide the same protections for these other diseases? What is 
the justification for this different treatment? Our bill does provide 
those protections.
  These are in the findings, on page 3, under the ``Inpatient Care,'' 
``In General.'' You provide:

       . . . is determined by the attending physician, in 
     consultation with the patient, to be medically necessary and 
     appropriate. . . .

  You do it for a mastectomy, a lumpectomy, and for a lymph node. Why 
do it universally for all HMOs for these three procedures yet not 
provide the same protection for women with ovarian cancer, brain 
cancer, or other illnesses? That is what we would like to know. Because 
our bill would provide protection for all of these illnesses; yours for 
just one. What is possibly the rationale and justification for that?
  Mr. ABRAHAM. Mr. President, I will answer with respect to this--would 
it be on your time?
  Mr. KENNEDY. Yes.
  Mr. ABRAHAM. Obviously, a number of people have worked in this area 
of breast cancer treatment. I believe Senator Snowe, who has been the 
foremost leader on this in the Senate on working on this issue, will 
probably comment on this as well. We are attempting to work on getting 
legislation which she has spearheaded in the Senate into this bill.
  I have no idea what other Senators may come to this floor with, with 
regard to other forms of cancer or other types of diseases or other 
types of treatment. They may well come here with such areas that are 
specialty areas and offer similar amendments. I would defer to them to 
do that. This is an area we are working on which we think, in fact, is 
justified in this respect and which is consistent with last year's 
amendment on reconstructive surgery.
  The PRESIDING OFFICER. The Senator's 3 minutes have expired.
  Mr. KENNEDY. Mr. President, I yield myself 2 more minutes.
  It isn't a question of the particular process or procedure. The 
amendment says ``as determined by the attending physician, in 
consultation with the patient, to be medically necessary.'' Why not use 
that standard on any of the other kinds of health care needs? Why apply 
this standard nationwide on the question of mastectomy and not provide 
it for protection of other areas health needs?
  Mr. ABRAHAM. Which standard is that?
  Mr. KENNEDY. As is determined by the attending physician, in 
consultation with the patient, to be medically necessary and 
appropriate following a mastectomy, lumpectomy, or a lymph node 
dissection.
  I am asking you, why can't you use that same protection: by the 
attending physician, in consultation with the patient, to be medically 
necessary, leaving it up to the doctor? That is what you do for these 
three procedures. You leave it up to the doctor.
  Mr. ABRAHAM. Perhaps the Senator could direct the question to 
somebody who voted on the other side of that issue yesterday.
  Mr. KENNEDY. That is what I am asking.
  Mr. ABRAHAM. I voted yesterday, when we had the issue of medical 
necessity.
  Mr. KENNEDY. Does the Senator agree----
  Mr. ABRAHAM. That is how I voted yesterday. So perhaps the Senator 
should ask somebody who voted against it yesterday.
  Mr. KENNEDY. Good. So if I understand--the Senator can obviously 
answer any way he wants to--you believe that decisions with regard to 
health care ought to be decided by the doctors and their patients?
  Mr. ABRAHAM. That is how I voted yesterday.
  Mr. KENNEDY. When we came to the scope amendment, would you agree 
then that we ought to apply whatever we are going to do with the 48 
million self-insured to the other \2/3\ of Americans left out under the 
Republican plan?
  Mr. ABRAHAM. In general principle, I believe that these areas in 
which the Federal Government has not chosen to oversee, where the scope 
has already been provided to States to address--in my State, very 
aggressively--that we shouldn't preempt the significant progress that 
has been made in Michigan. I don't want to come to the floor to wipe 
out what I consider to be very effective patients' rights laws that my 
State has passed, which a scope amendment that would cover every single 
plan in every setting would have done in my State. There may be Members 
who have States that are in various ways deficient and ineffective. 
They may want to supersede what they have done. But this Senator chose 
not to, at least with respect to my State.
  The PRESIDING OFFICER. The Senator's 2 minutes have expired.
  Mr. KENNEDY. I yield myself 15 seconds.
  There isn't a single State in the country that has that kind of 
protection. I know my friend from Vermont keeps insisting the State of 
Vermont does. We will give him that. But there isn't a single other 
State, if Vermont complies with those kinds of protections.
  I yield 5 minutes to the Senator from California.
  The PRESIDING OFFICER. The Senator from California is recognized for 
5 minutes.
  Mrs. BOXER. I thank the Chair.
  Mr. President, I feel really bad about what is happening here. Every 
single amendment, the people lose and the HMOs win.
  There is a cruel irony in the Snowe amendment, which the Senator from 
Connecticut tried to repair and could not. Let me tell my colleagues 
about the cruel irony of the Snowe amendment.
  That amendment treats women who need mastectomies with dignity, and I 
am for that. That is why I supported the Robb amendment yesterday, and 
that is why I agree with the Snowe amendment. But let me tell my 
colleagues what else the Senator from Maine does that makes this a real 
cruel irony. At the same time she gives dignity to women who have to 
undergo mastectomies and gives them bed care, she strikes the Dodd 
amendment which would allow those same women to choose another option 
other than mastectomy by getting into a clinical trial.
  To explain that specifically, I have a dear friend who I have known 
for many years. She was diagnosed with breast cancer. The doctor said: 
You have three alternatives: One, you can get into a clinical trial on 
tamoxifen; two, you can get into a clinical trial on a new drug called 
reluxifen; three, you can have a double mastectomy. My friend wanted to 
avoid the mastectomy. She is doing everything she can to get into a 
clinical trial, and she is reaching obstacle after obstacle after 
obstacle.
  The Dodd amendment says, if someone is in need of a different type of 
therapy--and it is very tightly drawn--they have a right to get into 
that therapy.
  What the Snowe amendment says to women is: Yes, my dear, if you need 
a mastectomy, we will treat you fairly. That is good. But, no, my dear, 
we cannot guarantee you the right to get into a clinical trial to avoid 
that amputation, as my friend from Maryland called it yesterday.
  That is just one example, a personal example of someone I know. There 
is no reason we can't get around the parliamentary hurdles. We are good 
at

[[Page S8445]]

that. We know how to do it. As a matter of fact, I am going to make a 
unanimous consent request at the end of my remarks, I alert the Senator 
from Vermont, to solve our problem and to put the two together, the 
Snowe amendment and the Dodd amendment.
  The Dodd amendment ensures that if your doctor says you need a 
certain type of drug to solve your health problem, your HMO cannot keep 
that prescription drug away from you by claiming it is not in their 
formula.
  Here we have the Snowe amendment, which takes a giant step forward in 
the treatment of women with mastectomies but, at the same time, strikes 
the opportunity for women to get into clinical trials to get the drugs 
they need that are necessary to give them their health. This is a sad 
day.
  What is the response from the Senator from Maine? Gee, I am sorry 
about this; it is parliamentary.
  I am very sad. I have never seen the Senate be as partisan as it is 
on this issue. This is a sad, sad day. What happened to the days of 
Kennedy-Kassebaum? It wasn't that long ago that we worked together when 
we could agree. I think the American people are the losers, and women 
are the losers.
  Yesterday, we had a situation on this floor--I have handed out on 
each desk an example of this--where Senator Robb offered an amendment. 
Senator Robb said that OB/GYNs want the right to be primary care 
providers. Senator Frist stands up and says: They don't want to be 
primary care providers. He quoted a particular doctor and said this 
doctor, an OB/GYN, doesn't want to be a primary care provider.
  That was false. That was false. I have the proof right on your desk. 
This doctor says:

       Senator Frist's misuse of my statement in support of 
     his position that OB/GYNs could not act as primary care 
     physicians . . . is, to say the least, misleading and does 
     an injustice to the true intent of my statements.

  He supports OB/GYNs being designated as primary care providers.
  Then a letter from the organization that says it is imperative that 
doctors who are OB/GYNs be primary care providers.
  Let's stop the misstatements, and let's put together the Dodd 
amendment and the Snowe amendment.
  As a matter of fact, I ask unanimous consent that S. 1344 and the 
Daschle substitute amendment be modified with language from the Snowe 
amendment No. 1241 prohibiting drive-by mastectomies and requiring 
coverage for second opinions, and this will keep the clinical trials 
and the drive-by mastectomies provision.
  The PRESIDING OFFICER. Is there objection?
  Mr. JEFFORDS. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. KENNEDY. Mr. President, I yield myself 20 seconds.
  Under the Senate rules generally, as the Senator from California 
knows, if we were not forced into this agreement, the Senator from 
Connecticut could modify his amendment to include that. We have tried 
to get this legislation to the floor so that we could follow the 
historic rules of the Senate and were precluded from that, basically 
forced into this time element, voting Thursday evening. But we are 
getting very close to the point where we will not have the opportunity 
for having a full airing of these issues. We are getting very close to 
where some of us will believe that there has not been the full, 
complete fulfillment of the agreement. These issues may very well be 
left outstanding for future considerations.

  We are getting very close to the point, Mr. President, where you have 
such a basic corruption of the rules. By denying what has historically 
been the rule--that would have permitted a Senator to modify an 
amendment prior to the time they get the yeas and nays--we are close to 
having a basic corruption of the rules. We had an agreement, and we are 
sticking with that agreement. Nonetheless, it will delay the Senate and 
frustrate, obviously, the opportunity for the good debate.
  I yield 5 minutes to the Senator from Maryland.
  Ms. MIKULSKI. Mr. President, we are at a fork in the road today. We 
are at a fork in the road to show whether we really are engaged in a 
debate over partisan politics or whether we are engaged in a debate 
over how we can best help patients in the United States of America.
  I urge my colleagues, in the situation we now find ourselves, to put 
partisan politics aside and reach out to what is in the best interests 
of patients, what is in the best interests of the people of the United 
States of America. That is why I think the suggestion of taking the 
Snowe amendment and attaching it to the Dodd amendment would show the 
American people that in this debate, at this time, at this moment, we 
are willing to put patients above politics. That is what I hope we can 
do.
  There is much to be commended in the Snowe amendment. It is a very 
good amendment. I congratulate the Senator from Maine on this 
amendment. I would so like to support it. Unfortunately, it knocks out 
the Dodd amendment providing patients with access to clinical trials.
  The Senator from Maine has had a longstanding reputation of really 
being an advocate for providing access to clinical trials. I recall 
with great fondness our battles, going back to the days in the House of 
Representatives, when she and Congresswoman Schroeder cochaired the 
women's caucus. We fought to get women included in the clinical trials 
at NIH. The Senator from Maine and all others will recall when we were 
systematically excluded. We worked together on a bipartisan basis when 
she came to the Senate. Working with her, Congresswoman Morella, and 
Congresswoman Schroeder, we were able to literally call NIH's bluff on 
their shallow and unscientific reasons for not including women in 
clinical trials.
  When President Bush appointed Bernadine Healy as head of NIH, Senator 
Kennedy and I worked to establish the Office of Women's Health at NIH, 
and now women are included in the clinical trials. What a hollow 
victory it will be today if we deny them the access to the very 
clinical trials we fought so hard to open up for women.
  I am sorry we have come to this. At this fork in the road, let's not 
make another fork in the road over partisan politics. We can show the 
American people that we really want to be concerned about patients. We 
have done it before. We have done it with the people in this room. Some 
of the greatest pleasures and joys of my life have been working on a 
bipartisan basis, opening up clinical trials and establishing quality 
standards for mammograms.
  So I am going to offer one more opportunity, and I plead with my 
colleagues to allow this to happen. I want to have the Snowe amendment 
attached to the Dodd amendment.
  Therefore, I ask unanimous consent that S. 1344, the Daschle 
substitute amendment, be modified with language from the Snowe 
amendment, No. 1241, prohibiting drive-through mastectomies and 
requiring coverage for second opinions.
  The PRESIDING OFFICER. Is there objection?
  Mr. JEFFORDS. Objection.
  The PRESIDING OFFICER. Objection is heard.
  Mr. JEFFORDS. Mr. President, I yield 1 minute to the Senator from 
Texas.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. GRAMM. Mr. President, I have to take exception to the comments 
that Senator Kennedy made. I am not trying to get into an argument, but 
as anyone who has followed this debate knows, for 2 years we have 
offered the Democrats the ability to bring up their bill. Then we would 
bring up our bill and let the Senate choose. The Democrats dictated the 
format we are debating under, and they would not allow us to pass an 
appropriations bill until they got exactly the procedure they have 
today. Now that they have exactly the procedure that they dictated by 
holding the Senate up, they are unhappy with the procedure.
  Might I also say, with all of these cries of partisanship, not one 
Democrat voted for any amendment offered by any Republican yesterday or 
Monday. Now, I don't understand bipartisanship as existing when 
Republicans vote to let the Government take over the health care system 
and to bring lawyers into the system rather than doctors but it is 
somehow not bipartisan when Democrats refuse to vote for our proposals. 
You can't have it both ways.
  Mr. KENNEDY. I will use 30 seconds, Mr. President. The Senator had 
better get his facts straight. We have just offered to accept the 
amendment of the

[[Page S8446]]

Senator from Maine. Yesterday the Democratic leader offered to accept 
the Nickles amendment on deductibility. So the Senator is fundamentally 
and actually wrong.
  I yield 5 minutes to the Senator from California.
  The PRESIDING OFFICER. The Senator from California is recognized.
  Mrs. FEINSTEIN. Mr. President, my heart is heavy because, as I 
believe the Senator from Vermont knows, I was the lead Democratic 
sponsor of the D'Amato bill on mastectomy and cancer rights in the last 
Congress. Then Senator Snowe became the lead Republican author on it 
when Senator D'Amato left the Senate and I am the lead Democratic 
sponsor in this Congress. So I feel very strongly about this bill and 
the amendment before us.
  But what I see in the tactics being used is of very deep concern to 
me. Yesterday, we saw the Frist language on medical necessity 
essentially wiping out the Democratic language requiring that medical 
necessity be based on generally accepted principles of medicine. Our 
amendment would have covered a hospital stay for mastectomy as well any 
other hospital stay, by simply giving the physician the responsibility 
to make the call on how long a patient should stay in the hospital.
  Now we have these individual cases like hospitalization for 
mastectomy. It is a very strong case that the Senator from Vermont 
makes. I myself saw, in 1996, where a major HMO in California was doing 
a same-day mastectomy and women who had surgery at 7:30 in the morning 
were being pushed out on the street in the afternoon, not recovered 
from anesthetic, with drains in their body, not knowing where they were 
or how to care for themselves. That simply is not the good practice of 
medicine.
  So I think all of us have resolved that we want to do something about 
this situation. But at the same time, you give us a Hobson's choice, 
and that is unfortunate because Senator Dodd's amendment, requiring 
plans to cover the routine costs of clinical trials, is a good 
amendment.
  I am the vice chairman of a national cancer dialogue initiated by the 
American Cancer Society. President George Bush is the chairman. Not too 
long ago I had the pleasure of spending the day with President Bush on 
one side of me and Mrs. Bush on the other while I chaired a meeting of 
the cancer dialogue. One of the outstanding results of that particular 
day was strong support for more access to clinical research trials. The 
entire clinical trial research effort is not going to be successful 
unless there is more access to these trials, and particularly by the 
minority population where participation is very small, largely because 
managed care plans do not cover the non-research, routine costs of 
care.
  Therefore, Senator Dodd's amendment is timely, it is necessary, it is 
scientifically correct, it will help us speed these trials, add more 
trials, and it will mean a quicker cures for diseases if we pass the 
Dodd amendment.
  The Hobson's choice, for those of us who have worked on this now for 
over 3 years, is that by voting for Senator Snowe's amendment, we 
negate the Dodd amendment. That is not right. It is not good medicine. 
It is not good politics.
  I, too, join in complimenting my colleague and friend from California 
and the Senator from Maryland, both of whom spoke eloquently on this. 
Please, please, please don't do this.
  Senator Dodd asked that his amendment be modified to include the 
Snowe amendment in his amendment. Twice I heard the Senator from 
California and the Senator from Maryland propound a unanimous consent 
request. I am also going to do the same thing. Don't present this body 
with this kind of Hobson's choice. Both amendments are necessary. Don't 
wipe out the clinical trials coverage amendment while attempting to put 
in patient protections for cancer patients. The American public 
deserves to be able to participate in clinical trials which, after all, 
could save your life, save the lives of the women of America, and men, 
because breast cancer affects men too. My father-in-law died of breast 
cancer when my husband was 10 years old.
  Please, don't do this.
  I, too, propound a unanimous consent request. I ask unanimous consent 
that S. 1344, the Daschle substitute, be modified with language from 
the Snowe amendment No. 1241 prohibiting drive-through mastectomies and 
coverage for second opinions.
  The PRESIDING OFFICER. Is there objection?
  Mr. FRIST. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. JEFFORDS. Mr. President, I yield the Senator from Tennessee 5 
minutes.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. FRIST. Mr. President, very briefly--I will not take 5 minutes--a 
number of issues have been discussed. Let me comment on a couple of 
issues.
  The first has to do with some statements made by my colleague from 
California about obstetricians and primary care specialists; second, 
about clinical trials; and, third, scope.
  I know my colleague from Texas has been waiting. I will conclude my 
remarks in 2 minutes, and then, hopefully, we can turn to her.
  No. 1, do obstetricians want to be designated by their managed care 
companies to be primary care physicians? It sounds as if they do.
  I have to say that if you are a primary care physician--that means if 
you are responsible for that managed care company, insurance, group, 
plan, or HMO--you are responsible really to become the gatekeeper. That 
means you have a specialist, obstetrician or gynecologist, who wants to 
be able to take care of the woman as a whole but doesn't necessarily 
want to take care of her ingrown toenails, appendicitis, headaches, or 
laryngitis.
  That is the danger. It sounds good to say the OB/GYN is the primary 
care specialist for the patient. They are the primary care physician, 
the gatekeeper. That means the OB/GYN is going to be doing things that 
they are simply not trained nor want to do.
  What women want in this country is to at any time be able to go to 
their obstetrician or gynecologist, whether it is an emergency or not, 
for routine care. That is what our bill does. That is what the American 
people want--to remove the barriers that exist today.
  Yes, we need legislation. That is what our bill does. It drops that 
barrier so at any time a woman can go to, and be taken care of by, 
their obstetrician and gynecologist. It is in our bill.
  The designation of ``primary specialist'' sounds benign. In truth, 
they are dangerous to the system. Obstetricians as a group may want it, 
and some may not.
  I quote on behalf of 100 patients and provider groups, The Patient 
Access Coalition. They talk about these specialist amendments. They 
write to us very specifically:

       We do, however, wish to express concern about specialists 
     being defined as primary-care providers.

  It is very important that people do not come in and legislate and 
make them primary care providers. We want to remove the barriers to 
access to specialists. That is what we do.
  No. 2, clinical trials. Again and again, the Dodd bill has some very 
good points in it. We are for clinical trials. We believe clinical 
trials should be part of the system, and I have spent most of the 
morning talking about that. But we don't know the overall cost. Before 
we know that cost, a managed care company is going to take care of that 
mandate from here, and they will put it on sick people who are getting 
sick and paying the tax. We don't have any idea what it is.
  The amendment that will be offered tomorrow by Senator Mack looks at 
the cost issues. It has a mandate to cover clinical trials in an 
appropriate setting and in an appropriate way, but not in an 
irresponsible way.
  We remove the Dodd language. We take what is very good in his 
amendment, and we will build on it and have a better amendment for the 
American people.
  On the issue of scope in the underlying amendment about breast 
disease and cancer, the reason this scope is different from the other 
things is, they wanted to make this particular amendment consistent 
with the D'Amato approach from last year that had this with mastectomy 
and reconstruction of a breast--a procedure. What we did--and what was 
done by the Senator from Maine--was very specifically match that scope 
for this type of disease in a way that is consistent. That is why

[[Page S8447]]

that scope is different. They are exactly right. There is some 
difference there.
  Those are the three points I wanted to make on that.
  I yield the floor.
  Mr. KENNEDY. Will the Senator yield for a question on my time?
  Mr. FRIST. I would be happy to.
  Mr. KENNEDY. Last year the Republican proposal had this measure. Most 
of us who followed the Patients' Bill of Rights understood the reason 
for this measure. It was to get the Senator from New York, who felt so 
strongly about this provision, to support the overall Patients' Bill of 
Rights. When the Republicans introduced their bill this year, the 
provision was kept out. Now they are trying to put the provision back 
in.
  Mr. FRIST. Does the Senator have a question?
  Mr. KENNEDY. I am asking, is that not correct?
  Mr. FRIST. That is incorrect.
  Does the Senator have another question?
  Mr. KENNEDY. No.
  Mr. FRIST. I yield the floor.
  Mr. KENNEDY. I will take 1 minute.
  The fact is, that is exactly what happened. That is exactly what 
happened. I will put in the Record within the next hour this bill that 
showed that they took the provision out of this year's bill. I will put 
in the Record the bill that had the provision, and then the bill that 
took out the provision. Now the Republicans are trying to put the 
provision back in again after they voted against the Robb amendment. 
They now have the willingness of the principal sponsor of the amendment 
to accept it.
  Who is playing games around here?
  Mr. President, I yield 5 minutes to the Senator from Virginia.
  The PRESIDING OFFICER. The Senator from Virginia is recognized for 5 
minutes.
  Mr. ROBB. Thank you, Mr. President. I thank my distinguished 
colleague from Massachusetts.
  I am pleased that the Senator from Tennessee is on the floor.
  First, let me observe that I see a disturbing trend as we consider 
the basic proposal to grant patients' rights, however defined. Every 
time we have a Democratic amendment, we find some small objection to 
it, technical or otherwise, causing everyone on the other side to have 
to vote against it with the promise that tomorrow we will resubmit it 
with a word or two changed so it will be acceptable to our side.
  If my observation is incorrect, I look forward to being corrected.
  Yesterday the Senator from Tennessee, Senator Frist, took the floor 
to say that he supported 98 percent of the amendment I offered on 
behalf of myself and Senators Murray, Mikulski, Boxer, and others, but 
he had just a couple of objections to it. He stated that the problems 
with our amendment were such that he had to urge all Members to vote 
against it and it could only be fixed with the alternative that Senator 
Snowe and Senator Abraham would cover today.
  At the time my friend from Tennessee was speaking, I asked if he 
would yield for a question. He declined to do so. That is, of course, 
his right. But since my friend from Tennessee would not yield during 
yesterday's debate for a question on his claims, I want to take just a 
minute to correct the Record.
  First of all, Senator Frist said he had spoken with the chairman of 
the American College of Obstetricians and Gynecologists' Primary Care 
Committee, Dr. Robert Yelverton. My colleague said Dr. Yelverton told 
him that OB/GYNs would not qualify as primary care physicians. A number 
of OB/GYNs took exception to the claim of the Senator from Tennessee 
that Dr. Yelverton told him OB/GYNs are unqualified, including Dr. 
Yelverton.
  I received a fax this morning from Dr. Yelverton which clarified 
these comments for me and for our colleagues. Let me read part of what 
he said.
  He said:

       I have never spoken directly to Senator Bill Frist (R-TN) 
     or any member of his staff on the subject of OB/GYNs as 
     primary care physicians or on any other subject. The quote 
     that Senator Frist attributed to me on the floor of the 
     Senate today came from an article in the June 13, 1999, 
     edition of the New York Times.)

  He goes on to say:

       Senator Frist's misuse of my statement in support of his 
     position that OB/GYNs could not act as primary care 
     physicians because of the ``high standards'' that managed 
     care organizations set for primary care physicians, is 
     regrettably misleading to say the least, and does an 
     injustice to the true intent of my statements.

  Again, I am quoting Dr. Yelverton. He went on to say:

       I personally supported then and I support now the amendment 
     sponsored by ACOG to allow OB/GYNs to act as primary care 
     physicians and to allow direct access for women's healthcare 
     and did, in fact, spend a portion of this very afternoon e-
     mailing my senators and encouraging them to vote in support 
     of the amendment.

  Mr. President, I ask unanimous consent to have the doctor's letter be 
printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

     To Lucia DiVenere, ACOG Government Relations.
     From Robert W. Yelverton, M.D., Chairman, Primary Care 
         Committee.
       I received your fax tonight and offer the following in 
     response.
       I have never spoken directly to Senator Bill Frist (R-TN) 
     or any member of his staff on the subject of OB/GYNs as 
     primary care physicians or on any other subject. The quote 
     that Senator Frist attributed to me on the floor of the 
     Senate today came from an article in the June 13, 1999, 
     edition of the New York Times. The article may be viewed on 
     the New York Times website (go to www.nytimes.com, then click 
     on Health and Science). I was contacted by the article's 
     author, Larry Katzenstein, and asked to comment on the impact 
     of managed care on women's healthcare in this country. In my 
     interview with Mr. Katzenstein, I discussed ``barriers'' that 
     managed care organizations have raised against the efforts of 
     OB/GYNs to become primary care physicians. The quote 
     attributed to me by Senator Frist was from a non-quote in 
     this article. I told Mr. Katzenstein that some managed care 
     organizations have placed barriers consisting of such 
     stringent (not ``high'' as Senator Frist stated) standards 
     for their qualifications as primary care physicians that most 
     OB/GYNs would not be able to meet them without further 
     training.
       One objective of my comments was to demonstrate that the 
     College's interests were to allow OB/GYNs to provide women's 
     healthcare to their patients unimpeded by the cumbersome 
     requirements of managed care referral systems. Mr. 
     Katzenstein's article did not emphasize to the degree it 
     should have that these were barriers to OB/GYNs being 
     designated primary care physicians--not ``high standards''--
     as has been discussed repeatedly in meetings of the Primary 
     Care Committee. I went on to say to Mr. Katzenstein that the 
     qualification requirements that some managed care 
     organizations impose on OB/GYNs in certain instances exceed 
     even those required of family physicians. He chose not to 
     include that statement in his article.
       Senator Frist's misuse of my statement in support of his 
     position that OB/GYNs could not act as primary care 
     physicians because of the ``high standards'' that managed 
     care organizations set for primary care physicians, is 
     regrettably misleading, to say the least, and does an 
     injustice to the true intent of my statements.
       I personally supported then and I support now the amendment 
     sponsored by ACOG to allow OB/GYNs to act as primary care 
     physicians and to allow direct access for women's healthcare 
     and did, in fact, spend a portion of this very afternoon e-
     mailing my senators and encouraging them to vote in support 
     of the amendment.
       Please contact me at (813) 269-7752 after 9:00 a.m. 
     tomorrow (Wednesday). I will be glad to discuss this matter 
     with you at that time and will support any effort that you 
     want to undertake to clarify this issue now on the floor of 
     the Senate.

  Mr. ROBB. Mr. President, the same doctor my colleague quoted said the 
Republican arguments against our amendment are off base. Contrary to 
the comments of the Senator from Tennessee yesterday, the American 
College of Obstetricians and Gynecologists endorses our amendment.
  I ask unanimous consent to have printed their letter on this issue.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

         The American College of Obstetricians and Gynecologists,
                                    Washington, DC, July 12, 1999.
     Hon. Charles S. Robb,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator Robb: On behalf of the American College of 
     Obstetricians and Gynecologists (ACOG), an organization 
     representing 40,000 physicians dedicated to improving the 
     health care of women, I am pleased to offer ACOG's strong 
     endorsement of the Robb-Murray Amendment to be offered during 
     Senate consideration of managed care reform legislation this 
     week. This amendment assures women access to obstetrician-
     gynecologists and the critical services they provide.

[[Page S8448]]

       The Robb-Murray amendment allows women access to their ob-
     gyns in two important ways. First, it allows women to select 
     a participating obstetrician-gynecologist as her primary care 
     physician. Second, if a woman chooses a primary care 
     physician of another speciality, this amendment allows her to 
     have direct access to her ob-gyn provider without having to 
     secure prior authorization or a referral from her primary 
     care physician.
       It is imperative that women's direct access to their ob-
     gyns not be limited by Congress' failure to classify ob-gyns 
     as primary care physicians. Ob-gyns are often the only 
     physicians many women regularly see during their reproductive 
     years. Insurers often put barriers between women and their 
     ob-gyns. The Robb-Murray amendment would allow them to choose 
     the type of physician they want.
       In addition, the Robb-Murray amendment makes clear that 
     direct access to ob-gyn care is not at a managed care plan's 
     option but rather a guarantee for women. The amendment also 
     provides women access to all ob-gyn services covered by their 
     health care plans, not just a subset of those services 
     designated by the plan as routine. Ob-gyn providers would 
     also be able to order appropriate covered follow-up ob-gyn 
     care, including referrals for related care, without prior 
     authorization.
       Thirty-seven states have acted to address these issues, but 
     these laws do not protect the many women enrolled in self-
     insured plans. The Robb-Murray amendment extends meaningful 
     direct access to ob-gyn care to women in federally regulated 
     plans. ACOG applauds your efforts in offering this important 
     amendment for America's women.
           Sincerely,
                                                Ralph W. Hale, MD,
                                         Executive Vice President.

  Mr. ROBB. I ask my Republican friends: What are their objections to 
the proposal to allow women access to care that they want and need? How 
do those who voted against our amendment yesterday, which is so 
important to American women, justify doing so?
  I want to clarify something my colleague from Tennessee said about 
our proposal to guarantee that doctors and patients--not insurance 
companies--decide how long a woman stays in a hospital after a 
mastectomy. Senator Frist criticized a provision in our amendment that 
said physicians shall make decisions about the length of stay in a 
hospital in accordance with ``generally accepted medical standards,'' 
arguing this standard would be used in determining whether a woman has 
a mastectomy, a lumpectomy, or a lymph node dissection.
  I want the record to reflect that our amendment said nothing of the 
sort. The Robb-Murray amendment simply said that after a woman has had 
one of these procedures, a doctor and patient can then decide how long 
a woman stays in the hospital. That is what the amendment actually 
said. Our Republican colleagues are simply wrong when they say that the 
amendment would somehow apply to the decision of the kind of surgical 
procedure a woman undergoes.
  Mr. President, I know there is a broader issue being debated over the 
definition of ``medical necessity'' and whether or not this definition 
is problematic. But that debate has nothing to do with the amendment we 
offered yesterday. Our amendment specifically said that physicians 
would be empowered to overrule insurance companies only when deciding 
how long a woman stays in the hospital after a woman has had a 
mastectomy, a lumpectomy, or lymph node dissection. Their argument that 
our amendment had a broader application is simply without merit.
  The Republican arguments in this case against the mastectomy portion 
of our amendment were off base. Their argument against guaranteeing 
better care by an OB/GYN has been discredited by the doctor whom they 
quoted yesterday.
  I hope we can come to some truly bipartisan resolution of these 
issues. They are important. They are important to women. They are 
important to all of the people in this country who are not currently 
covered. To restrict the scope of this amendment in such a way that 
specifically excludes women from having direct access to the type of 
health professionals with whom they are most comfortable is 
unconscionable.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas is recognized for 5 
minutes.
  Mrs. HUTCHISON. Mr. President, it seems to me in watching the debate 
yesterday and today, both sides of the aisle want access to better care 
for every American who is in some form of an HMO or managed care plan. 
I think we should acknowledge that we do have different approaches on 
how to get there.
  We can summarize the differences in three ways:
  No. 1, we are looking at the costs. Many Members are concerned that 
if we raise the cost of a premium, a family has worse than a Hobson's 
choice as our colleagues have complained we are giving them with regard 
to floor debate. If the cost of health care rises too much, millions of 
Americans will have no choice at all when they lose their coverage. 
That has to be a consideration.
  No. 2, on the issue of who defines the standards, our amendments and 
our underlying bill put the emphasis on the patient and the physician. 
They give the patient the right to have an internal appeal and then an 
external appeal to make sure they get the quality of care the physician 
believes is best for that patient.
  No. 3, it is a matter of access to lawsuits. We have to make a 
fundamental choice: Do you want good care or do you want good lawsuits? 
That is going to make a big difference in the longevity of the HMOs and 
their ability to continue to give health care service.
  Do we need better service? Absolutely. I don't know anyone who hasn't 
had a complaint about an HMO. That is why I think our approach of an 
internal review with a time limit, an external, binding review process, 
again with strict time limits, by medical experts outside of the HMO is 
far preferable to costly litigation that can take years to resolve.
  This has been tested. It has been tested in my home State of Texas. 
We passed an internal and external review process in Texas that has 
worked for over a year. Part of it has been struck down by a Federal 
court because they said it was a Federal law that takes precedence over 
the State law. Some of it has been knocked out. But it was working, 
and, on a voluntary basis, still is. People were satisfied they had the 
right to a quick appeal to get the care they needed. About half of the 
appeals were won by patients and about half by the health insurance 
companies, which tells me it was probably a pretty fair system. Most 
people want to have the quality care and a fair, quick system to 
redress their complaints rather than the ability to sue. Our bill would 
establish a national system very similar to that passed in Texas, but 
without creating new incentives to sue.
  Quality care is prospective; a lawsuit is retrospective. If a person 
wants good care, they are not as interested in a lawsuit later. They 
are interested in getting the access that the patient and the physician 
is seeking.
  The Snowe-Abraham amendment is a good amendment. It does add to the 
Robb amendment from yesterday. I think it is a better approach. Our 
approach, saying we are not going to have any arbitrary time limits on 
how long a woman can stay in the hospital if she has a mastectomy or a 
lumpectomy, is a good approach. Everything I have read says the quicker 
a patient can go home and be cared for at home, the better off they are 
and the more likely they are to have a quick recovery. However, if you 
have a problem, a complication in your surgery, we don't want an 
artificial time limit on the length of the hospital. That is what the 
amendment of Senator Snowe and Senator Abraham provides.
  Secondly, we have heard a lot of discussion this week about whether 
an OB/GYN would be primary care physician designee for a woman. The 
underlying Republican bill provides that both OB/GYNs and pediatricians 
will have direct access to a woman, in the case of the OB/GYN, or for 
the parent and the child, in the case of a pediatrician. That is very 
important.
  We have direct access. It is unnecessary to go through a gatekeeper 
in the Republican bill to see an OB/GYN physician for an OB/GYN 
problem; nor does a child who needs to see a pediatrician have to go 
through a gatekeeper. I think that is very important.
  I do know a number of women who only go to an OB/GYN and don't have 
regular checkups, although I have tried to talk my friends into getting 
regular physical exams. I think it is important to have a full checkup. 
Nevertheless, many women don't do it. So at the very least, our bill 
assures that they will have direct access to their OB/

[[Page S8449]]

GYN, without going through a gatekeeper.
  We are approaching this from different standards, there is no 
question about that. I think our approach is better. They think their 
approach is better. But I think we need to argue these points based on 
the merits. I think the Snowe amendment is a good amendment.
  The issue of clinical trials will come up again. I believe there 
should be access to clinical trials to be paid for by HMOs, I really 
do. There is going to be an amendment on that. It will be somewhat 
different in approach. Again, the difference is going to be on who 
defines and what the standards are, and I think Senator Mack will have 
a good amendment that will be better than the Dodd amendment. Just as 
Senator Snowe's amendment and Senator Robb's amendment are very 
similar, but the differences are real, I think people will be able to 
make a choice. I think we are going to provide a very strong women's 
health care amendment with the Snowe amendment that will strengthen 
women's ability to have direct access to their OB/GYN and have the care 
they need based on consultations with their physicians, not a Federal 
rule that would have a one-size-fits-all approach.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. KENNEDY. How much time remains, Mr. President?
  The PRESIDING OFFICER. The Senator from Massachusetts has 11 minutes 
2 seconds.
  Mr. KENNEDY. I yield 9 minutes to the Senator from Connecticut.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. DODD. Mr. President, let's make that 8 minutes; let me know in 8 
minutes so my colleague from Nevada and anyone else can be heard on 
this. I don't think I need that much time.
  Regarding this issue of clinical trials and the issue that has been 
raised by Senator Snowe dealing with breast cancer, I guess you could 
divide the country into two groups. There are those who have had to 
deal with someone in their family who was dying or was threatened with 
death because of a serious illness, and those who have not been through 
it yet. You will; whether it is someone in your own family or a 
neighbor, someone you feel deeply about. Then you will understand, if 
you are not in the latter category, what my amendment tries to do. That 
is why I think it is so outrageous that on five different occasions in 
the last 2 hours, an effort to join together the Snowe amendment with 
the Dodd amendment has been objected to.
  It is incredible to me that we are in the Senate dealing with two 
issues that cry out for a solution dealing with breast cancer and how 
women are treated by HMOs and hospitals and the right to get a clinical 
trial if you are dying. On five occasions in the last hour, a unanimous 
consent request has been made that would allow these two amendments to 
be joined, and I suggest be agreed to unanimously. And on five 
different occasions objection has been heard.
  Someone may think they are scoring a political point here. Try to 
explain that to the people in the waiting room at a hospital in any 
State in the country at this very hour. Try to explain that to a family 
member who is looking at someone in a bed who is plugged into about 50 
tubes. The doctors said: Look, there is only one way your husband, your 
wife, your child is going to survive and that is if you get into a 
clinical trial. That is it. And at 1:05 on this day, the 14th of July, 
we have a chance to do something about it and we are not going to do it 
because of gamesmanship, because someone may score a point. Instead of 
taking these two amendments and doing what any reasonable American 
would ask us to do--not Democrat, Republican, conservative, or 
liberal--we are not going to do it. Explain it to someone who says my 
family member needs clinical trials; my family member needs to get that 
breast cancer treated.
  I have listened today to the most incredible arguments against this 
clinical trial amendment. I wouldn't mind if there were questions about 
facts, but it is just not factual. We limit clinical trials. Let me 
tell you how we do it. There are five conditions you must meet before 
you can qualify for a clinical trial.
  Only those clinical trials sponsored by NIH, the Department of 
Defense, and the Veterans' Administration qualify. That is No. 1.
  No. 2, there is no other standard treatment available anywhere in 
America for you. If there is, you do not get into the clinical trial. I 
am glad my colleague from Tennessee is here because he raised these 
issues earlier. If there is another standard procedure available to 
you, you do not get the clinical trial under my amendment.
  No. 3, you have to be suffering from a life-threatening or serious 
illness.
  No. 4, you have to have the potential to benefit from the trial that 
would be covered.
  Last, you only get routine costs. My colleague from Tennessee said if 
you are going to get a heart, it is going to cost you a lot more 
because that is expensive. This amendment says no, no, no; only the 
routine costs are compensated by the HMO, not the device, not the 
prescription drugs--only the routine costs, under my amendment.

  I beg the leadership on the majority side, let us take the Snowe 
amendment and take the Dodd amendment, if you will, on clinical trials, 
and let's move on to the next issue and say to the American public on 
this question we agree. Ironically, the trade association for the HMOs 
agrees. They have sent out bulletins saying to their own HMOs: We think 
you ought to have clinical trials and make them available to people. 
How ironic that we are about to vote down the right to have clinical 
trials which the HMOs think they ought to have.
  I gather an amendment will be offered. ``Wait until tomorrow. There 
will be an amendment tomorrow.'' Let me predict what the amendment will 
do. It will provide clinical trials for cancer. You tell that to 
someone who has AIDS or someone who has Alzheimer's or Parkinson's 
disease. You tell that family: I am sorry, we think clinical trials are 
OK for cancer but not OK for the other illnesses. What is the logic in 
that?
  I think we have narrowed this pretty well. You limit it to NIH, 
Department of Defense, Veterans'; no other standard treatment is 
available in the country; you have to be dying; and it has to be able 
to treat the covered problem you have, and you only pay for routine 
costs, not for the devices or the equipment.
  I am preaching to the choir when I talk to my colleague from Maine. 
She has written a good bill. I mentioned it earlier. Senator Mack has 
been on this bill, Senator Rockefeller, others have been involved on a 
bipartisan basis. So my appeal in the last remaining minutes of this 
debate on this amendment is that we drop the objections, the five 
objections that have been raised. The costs on this are negligible. The 
estimates are 12 cents per covered patient per month--12 cents.
  In fact, Sloan-Kettering Cancer Institute and the M.D. Anderson 
Center, two of the finest in the world, in their report stated that 
they believe the costs are lower for the clinical trials than for the 
other procedures--actually a lower cost. So you have Sloan-Kettering 
and M.D. Anderson lowering costs of clinical trials on their analysis 
of our amendment. Lower costs, 12 cents a month, you pick it.
  We have narrowed it tightly so you limit it, as limited as I know how 
to make it, to life threatening, no other standard procedure available 
to you. You have to use one of the only three, clinical trials 
sponsored by NIH, Department of Defense, Veterans'. How much more 
narrow can we get? There is only one of three or four ways that we get 
new products out to people. You test it in a lab first. Then you give 
it to animals. Then you have to have clinical trials. You have to have 
them. If you do not have the clinical trials, then you cannot get the 
product to people. So it is not just the patient today who needs it, 
who is lying somewhere wondering whether or not they can get their HMO 
to include a clinical trial, but future patients. If we do not have the 
clinical trials today, that future patient will not get that medicine 
or may be delayed in getting it.
  Mr. President, there may be other issues which divide us. This one 
should not. This one should not divide us. Can we not, for 5 minutes--
--
  The PRESIDING OFFICER. The Senator has 5 minutes.

[[Page S8450]]

  Mr. DODD. I will take 30 additional seconds. Can't we find 5 minutes 
this week to come to an agreement on the Snowe amendment and the Dodd 
amendment and move on to the next issue? Do we really have to make this 
a huge battle and fight, where we go through a battle to say, no to 
one, yes to another, maybe tomorrow. This is not fair to the American 
public. They expect I think a little more from us than this.
  Mr. President, I will try one more time--one more time, the sixth 
time.
  The PRESIDING OFFICER. The Senator's 30 seconds have expired.
  Mr. DODD. I ask for 30 additional seconds. I ask unanimous consent--
this is the sixth time this will be made in the last hour--that S. 
1344, the Daschle substitute amendment, be modified with language from 
the Snowe amendment No. 1241 prohibiting drive-through mastectomies and 
requiring coverage for second opinions be included in the Dodd 
amendment.
  The PRESIDING OFFICER. Is there objection?
  Mr. JEFFORDS. Objection.
  The PRESIDING OFFICER. Objection is heard.
  Mr. DODD. Mr. President, I am saddened by this objection. The 
American people ought to be deeply saddened by what they have heard on 
this issue in the last hour and half.
  I yield the floor.
  Mr. MURKOWSKI. Mr. President, I rise in strong support of the Snowe 
Amendment--an amendment to rid the tragic practice of drive-through'' 
mastectomies.
  Mr. President, one out of nine American women will suffer the tragedy 
of breast cancer. It is today the leading cause of death for women 
between the ages of 35 to 54.
  Alaskan women are particularly vulnerable to this disease. We have 
the second highest rate of breast cancer in the nation.
  1 in 7 Alaska women will get breast cancer and tragically it is the 
Number One cause of death among Native Alaskan women.
  We know that these deaths are preventable--and the key to prevention 
is early detection. It is estimated that breast cancer deaths can be 
reduced by 30 percent if all women avail themselves of regular clinical 
breast examination and mammography. I'm proud of the work that this 
body has done in the recent past to expand Medicare and Medicaid 
coverage for mammographies.
  I am also proud of the efforts that my wife Nancy has done in 
expanding early detection efforts throughout Alaska. You see, Mr. 
President, for many Alaska women, especially native women living in one 
of our 230 remote villages, regular screening and early detection are 
often hopeless dreams.
  For 25 years, my wife Nancy has recognized this problem and did 
something about it. In 1974, she and a group of Fairbanks' women 
created the Breast Cancer Detection Center, for the purpose of offering 
mammographies to women in remote areas of Alaska--regardless of a 
woman's ability to pay.
  Now, the Center uses a small portable mammography unit which can be 
flown to remote areas of Alaska, offering women in the most rural of 
areas easy access to mammographies at no cost.
  Additionally, the Center uses a 43-foot long, 14 foot high and 26,000 
pound mobile mammography van to travel through rural areas of Alaska. 
The van makes regular trips, usually by river barge, to remote areas in 
Interior Alaska such as Tanana.
  Julie Roberts, a 42-year-old woman of Tanana, who receives regular 
mammographies from the mobile mammography van, knows the importance of 
early screening:
  There's a lot of cancer here (in Tanana)--a lot of cancer. That's why 
it's important to have the mobile van here . . . I know that if I get 
checked, I can catch it early and can probably save my life. I have 
three children and I want to see my grandchildren.
  I am proud to say that the Fairbanks Center now serves about 2,200 
women a year and has provided screenings to more than 25,000 Alaska 
women in 81 villages throughout the states. To help fund the efforts of 
the Fairbanks Center, each year Nancy and I sponsor a fishing 
tournament to raise money for the operation of the van and mobile 
mammography unit. After just three years, donations from the tournament 
have totalled over $1 million.
  Mr. President, Nancy and I are committed to raising more funds for 
this important program so that every women in Alaska can benefit from 
the advances of modern technology and reduce their risk of facing this 
killer disease.
  But, Mr. President, the fight against breast cancer does not end with 
detection of the disease. That is why I stand in strong support of 
Senator Snowe's amendment. Her amendment will once and for all put an 
end to the practices of so-called drive-through'' mastectomies.
  In too many cases women who survive the trauma of a mastectomy are 
being forced to get out of the hospital only hours after their surgery. 
How can medical care professionals allow this? Simply because many 
insurance companies demand that the procedure of a mastectomy be 
considered an out-patient service.''
  Here's the horror that many insurance companies cause:
  Nancy Couchot, a 60 year old woman had a radical mastectomy at 11:30 
a.m. She was released from the hospital five hours --even though she 
was not able to walk or use the rest room without assistance.
  Victoria Berck, had a mastectomy and lymph node removal at 7:30 a.m. 
Seven hours later, she was given instructions on how to empty two 
drains attached to her body and sent home. Ms. Berck concludes, No 
civilized country in the world has a mastectomy as an out-patient 
service.''
  Mr. President, it's for these very reasons that I am in strong 
support of Senator Snowe's amendment. Specifically, the amendment will 
require health insurance companies to allow physicians to determine the 
length of a mastectomy patient's hospital stay according to medical 
necessity. In other words, the bill makes it illegal to punish a doctor 
for following good medical judgment and sound medical treatment.
  This amendment is important follow-up to legislation that I and many 
in this Body worked on worked on to ensure that mastectomy patients 
have access to reconstructive surgery. Prior to our efforts in last 
year's Omnibus bill, scores of women were denied reconstructive surgery 
following mastectomies because insurers have deemed the procedure to be 
cosmetic'' and, therefore, not medically necessary.
  Mr. President, far too often breast cancer victims, who believe that 
they have adequate health care coverage, are horrified when they learn 
basic and sound medical practices are not covered in their health plan.
  Mr. President, these issues are not partisan issues. We may have our 
differences regarding managing and financing health reform, but I think 
we all endorse accessible and affordable health care that preserves 
patient choice and physician discretion. Cancer does not look to see 
the politics of its victims.
  Mr. KENNEDY. Mr. President, earlier I said that I would enter into 
the Record the fact that last Congress, the majority's version of the 
Patient's Bill of Rights included a mastectomy provision that was quite 
similar to the provision offered by Senator Robb yesterday and by 
Senator Snowe today. Yet, this mastectomy provision was conspicuously 
absent from the majority's bill this year. Drive-through mastectomies 
were discussed during committee markup but were not added back. In 
fact, the majority rejected an amendment by Senator Murphy to end 
drive-through mastectomies. Now, in response to popular pressure, the 
majority is offering the Snowe amendment on mastectomies as a way of 
undermining our attempt to provide coverage for patients in clinical 
trials. I ask unanimous consent that the table of contents and relevant 
pages of the Republican bills from the last Congress and from this 
Congress be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

S. 2330, July 20, 1998

                           *   *   *   *   *


[[Page S8451]]

              Subtitle C--Women's Health and Cancer Rights

       Sec. 531. Short title.
       Sec. 532. Findings.
       Sec. 533. Amendments to the Employee Retirement Income 
           Security Act of 1974.
       Sec. 534. Amendments to the Public Health Service Act 
           relating to the group market.
       Sec. 535. Amendment to the Public Health Service Act 
           relating to the individual market.
       Sec. 536. Amendments to the Internal Revenue Code of 1986.
       Sec. 537. Research study on the management of breast 
           cancer.

              Subtitle C--Women's Health and Cancer Rights

     SEC. 531. SHORT TITLE.

       This subtitle may be cited as the ``Women's Health and 
     Cancer Rights Act of 1998''.

     SEC. 532. FINDINGS.

       Congress finds that--
       (1) the offering and operation of health plans affect 
     commerce among the States;
       (2) health care providers located in a State serve patients 
     who reside in the State and patients who reside in other 
     States; and
       (3) in order to provide for uniform treatment of health 
     care providers and patients among the States, it is necessary 
     to cover health plans operating in 1 State as well as health 
     plans operating among the several States.

     SEC. 533. AMENDMENTS TO THE EMPLOYEE RETIREMENT INCOME 
                   SECURITY ACT OF 1974.

       (a) In General.--Subpart B of part 7 of subtitle B of title 
     I of the Employee Retirement Income Security Act of 1974 (29 
     U.S.C. 1185 et seq.), as amended by sections 111 and 302, is 
     further amended by adding at the end the following new 
     section:

     ``SEC. 715. REQUIRED COVERAGE FOR MINIMUM HOSPITAL STAY FOR 
                   MASTECTOMIES AND LYMPH NODE DISSECTIONS FOR THE 
                   TREATMENT OF BREAST CANCER AND COVERAGE FOR 
                   RECONSTRUCTIVE SURGERY FOLLOWING MASTECTOMIES.

       ``(a) Inpatient Care.--
       ``(1) In general.--A group health plan, and a health 
     insurance issuer providing health insurance coverage in 
     connection with a group health plan, that provides medical 
     and surgical benefits shall ensure that inpatient coverage 
     with respect to the surgical treatment of breast cancer 
     (including a mastectomy, lumpectomy, or lymph node dissection 
     for the treatment of breast cancer) is provided for a period 
     of time as is determined by the attending physician, in his 
     or her professional judgment consistent with scientific 
     evidence-based practices or guidelines, in consultation with 
     the patient, to be medically appropriate.
       ``(2) Exception.--Nothing in this section shall be 
     construed as requiring the provision of inpatient coverage if 
     the attending physician in consultation with the patient 
     determine that a shorter period of hospital stay is medically 
     appropriate.
       ``(b) Reconstructive Surgery.--A group health plan, and a 
     health insurance issuer providing health insurance coverage 
     in connection with a group health plan, that provides medical 
     and surgical benefits with respect to a mastectomy shall 
     ensure that, in a case in which a mastectomy patient elects 
     breast reconstruction, coverage is provided for--
       ``(1) all stages of reconstruction of the breast on which 
     the mastectomy has been performed;
       ``(2) surgery and reconstruction of the other breast to 
     produce a symmetrical appearance; and
       ``(3) the costs of prostheses and complications of 
     mastectomy including lymphedemas;

     in the manner determined by the attending physician and the 
     patient to be appropriate. Such coverage may be subject to 
     annual deductibles and coinsurance provisions as may be 
     deemed appropriate and as are consistent with those 
     established for other benefits under the plan or coverage. 
     Written notice of the availability of such coverage shall be 
     delivered to the participant upon enrollment and annually 
     thereafter.
       ``(c) Notice.--A group health plan, and a health insurance 
     issuer providing health insurance coverage in connection with 
     a group health plan shall provide notice to each participant 
     and beneficiary under such plan regarding the coverage 
     required by this section in accordance with regulations 
     promulgated by the Secretary. Such notice shall be in writing 
     and prominently positioned in any literature or 
     correspondence made available or distributed by the plan or 
     issuer and shall be transmitted--
       ``(1) in the next mailing made by the plan or issuer to the 
     participant or beneficiary;
       ``(2) as part of any yearly informational packet sent to 
     the participant or beneficiary; or
       ``(3) not later than January 1, 1999;
     whichever is earlier.
       ``(d) No Authorization Required.--
       ``(1) In general.--An attending physician shall not be 
     required to obtain authorization from the plan or issuer for 
     prescribing any length of stay in connection with a 
     mastectomy, a lumpectomy, or a lymph node dissection for the 
     treatment of breast cancer.
       ``(2) Prenotification.--Nothing in this section shall be 
     construed as preventing a group health plan from requiring 
     prenotification of an inpatient stay referred to in this 
     section if such requirement is consistent with terms and 
     conditions applicable to other inpatient benefits under the 
     plan, except that the provision of such inpatient stay 
     benefits shall not be contingent upon such notification.
       ``(e) Prohibitions.--A group health plan, and a health 
     insurance issuer offering group health insurance coverage in 
     connection with a group health plan, may not--
       ``(1) deny to a patient eligibility, or continued 
     eligibility, to enroll or to renew coverage under the terms 
     of the plan, solely for the purpose of avoiding the 
     requirements of this section;
       ``(2) provide monetary payments or rebates to individuals 
     to encourage such individuals to accept less than the minimum 
     protections available under this section;
       ``(3) penalize or otherwise reduce or limit the 
     reimbursement of an attending provider because such provider 
     provided care to an individual participant or beneficiary in 
     accordance with this section;
       ``(4) provide incentives (monetary or otherwise) to an 
     attending provider to induce such provider to provide care to 
     an individual participant or beneficiary in a manner 
     inconsistent with this section; and
       ``(5) subject to subsection (f)(2), restrict benefits for 
     any portion of a period within a hospital length of stay 
     required under subsection (a) in a manner which is less 
     favorable than the benefits provided for any preceding 
     portion of such stay.
       ``(f) Rules of Construction.--
       ``(1) In general.--Nothing in this section shall be 
     construed to require a patient who is a participant or 
     beneficiary--
       ``(A) to undergo a mastectomy or lymph node dissection in a 
     hospital; or
       ``(B) to stay in the hospital for a fixed period of time 
     following a mastectomy or lymph node dissection.
       ``(2) Cost sharing.--Nothing in this section shall be 
     construed as preventing a group health plan or issuer from 
     imposing deductibles, coinsurance, or other cost-sharing in 
     relation to benefits for hospital lengths of stay in 
     connection with a mastectomy or lymph node dissection for the 
     treatment of breast cancer under the plan (or under health 
     insurance coverage offered in connection with a group health 
     plan), except that such coinsurance or other cost-sharing for 
     any portion of a period within a hospital length of stay 
     required under subsection (a) may not be greater than such 
     coinsurance or cost-sharing for any preceding portion of such 
     stay.
       ``(3) Level and type of reimbursements.--Nothing in this 
     section shall be construed to prevent a group health plan or 
     a health insurance issuer offering group health insurance 
     coverage from negotiating the level and type of reimbursement 
     with a provider for care provided in accordance with this 
     section.
       ``(g) Preemption, Relation to State Laws.--
       ``(1) In general.--Nothing in this section shall be 
     construed to preempt any State law with respect to health 
     insurance coverage that--
       ``(A) relates to hospital length of stays after a 
     mastectomy, lumpectomy, or lymph node dissection;
       ``(B) relates to coverage of reconstructive breast surgery 
     after a mastectomy, lumpectomy, of lymph node dissection; or
       ``(C) requires coverage for breast cancer treatments 
     (including breast reconstruction) in accordance with 
     scientific evidence-based practices or guidelines recommended 
     by established medical associations.
       ``(2) Application of section.--With respect to a State 
     law--
       ``(A) described in paragraph (1)(A), the provisions of this 
     section relating to breast reconstruction shall apply in such 
     State; and
       ``(B) described in paragraph (1)(B), the provisions of this 
     section relating to length of stays for surgical breast 
     treatment shall apply in such State.
       ``(3) ERISA.--Nothing in this section shall be construed to 
     affect or modify the provisions of section 514 with respect 
     to group health plans.''.
       (b) Clerical Amendment.--The table of contents in section 1 
     of the Employee Retirement Income Security Act of 1974 (29 
     U.S.C. 1001 note) is amended by inserting after the item 
     relating to section 714 the following new item:

``Sec. 715. Required coverage for minimum hospital stay for 
              mastectomies and lymph node dissections for the treatment 
              of breast cancer and coverage for reconstructive surgery 
              following mastectomies.''.
       (c) Effective Dates.--The amendments made by this section 
     shall apply with respect to plan years beginning on or after 
     the date of enactment of this Act.

     SEC. 534. AMENDMENTS TO THE PUBLIC HEALTH SERVICE ACT 
                   RELATING TO THE GROUP MARKET.

       (a) In General.--Subpart 2 of part A of title XXVII of the 
     Public Health Service Act (42 U.S.C. 300gg-4 et seq.), as 
     amended by section 303(a), is further amended by adding at 
     the end the following new section:

     ``SEC. 2707. REQUIRED COVERAGE FOR MINIMUM HOSPITAL STAY FOR 
                   MASTECTOMIES AND LYMPH NODE DISSECTIONS FOR THE 
                   TREATMENT OF BREAST CANCER AND COVERAGE FOR 
                   RECONSTRUCTIVE SURGERY FOLLOWING MASTECTOMIES.

       ``(a) Inpatient Care.--
       ``(1) In general.--A group health plan, and a health 
     insurance issuer providing health insurance coverage in 
     connection with a

[[Page S8452]]

     group health plan, that provides medical and surgical 
     benefits shall ensure that inpatient coverage with respect to 
     the surgical treatment of breast cancer (including a 
     mastectomy, lumpectomy, or lymph node dissection for the 
     treatment of breast cancer) is provided for a period of time 
     as is determined by the attending physician, in his or her 
     professional judgment consistent with scientific evidence-
     based practices or guidelines, in consultation with the 
     patient, to be medically appropriate.
       ``(2) Exception.--Nothing in this section shall be 
     construed as requiring the provision of inpatient coverage if 
     the attending physician in consultation with the patient 
     determine that a shorter period of hospital stay is medically 
     appropriate.
       ``(b) Reconstructive Surgery.--A group health plan, and a 
     health insurance issuer providing health insurance coverage 
     in connection with a group health plan, that provides medical 
     and surgical benefits with respect to a mastectomy shall 
     ensure that, in a case in which a mastectomy patient elects 
     breast reconstruction, coverage is provided for--
       ``(1) all stages of reconstruction of the breast on which 
     the mastectomy has been performed;
       ``(2) surgery and reconstruction of the other breast to 
     produce a symmetrical appearance; and
       ``(3) the costs of prostheses and complications of 
     mastectomy including lymphedemas;

     in the manner determined by the attending physician and the 
     patient to be appropriate. Such coverage may be subject to 
     annual deductibles and coinsurance provisions as may be 
     deemed appropriate and as are consistent with those 
     established for other benefits under the plan or coverage. 
     Written notice of the availability of such coverage shall be 
     delivered to the enrollee upon enrollment and annually 
     thereafter.
       ``(c) Notice.--A group health plan, and a health insurance 
     issuer providing health insurance coverage in connection with 
     a group health plan shall provide notice to each participant 
     and beneficiary under such plan regarding the coverage 
     required by this section in accordance with regulations 
     promulgated by the Secretary. Such notice shall be in writing 
     and prominently positioned in any literature or 
     correspondence made available or distributed by the plan or 
     issuer and shall be transmitted--
       ``(1) in the next mailing made by the plan or issuer to the 
     participant or beneficiary;
       ``(2) as part of any yearly informational packet sent to 
     the participant or beneficiary; or
       ``(3) not later than January 1, 1999;
     whichever is earlier.
       ``(d) No Authorization Required.--
       ``(1) In general.--An attending physician shall not be 
     required to obtain authorization from the plan or issuer for 
     prescribing any length of stay in connection with a 
     mastectomy, a lumpectomy, or a lymph node dissection for the 
     treatment of breast cancer.
       ``(2) Prenotification.--Nothing in this section shall be 
     construed as preventing a plan or issuer from requiring 
     prenotification of an inpatient stay referred to in this 
     section if such requirement is consistent with terms and 
     conditions applicable to other inpatient benefits under the 
     plan, except that the provision of such inpatient stay 
     benefits shall not be contingent upon such notification.
       ``(e) Prohibitions.--A group health plan, and a health 
     insurance issuer offering group health insurance coverage in 
     connection with a group health plan, may not--
       ``(1) deny to a patient eligibility, or continued 
     eligibility, to enroll or to renew coverage under the terms 
     of the plan, solely for the purpose of avoiding the 
     requirements of this section;
       ``(2) provide monetary payments or rebates to individuals 
     to encourage such individuals to accept less than the minimum 
     protections available under this section;
       ``(3) penalize or otherwise reduce or limit the 
     reimbursement of an attending provider because such provider 
     provided care to an individual participant or beneficiary in 
     accordance with this section;
       ``(4) provide incentives (monetary or otherwise) to an 
     attending provider to induce such provider to provide care to 
     an individual participant or beneficiary in a manner 
     inconsistent with this section; and
       ``(5) subject to subsection (f)(2), restrict benefits for 
     any portion of a period within a hospital length of stay 
     required under subsection (a) in a manner which is less 
     favorable than the benefits provided for any preceding 
     portion of such stay.
       ``(f) Rules of Construction.--
       ``(1) In general.--Nothing in this section shall be 
     construed to require a patient who is a participant or 
     beneficiary--
       ``(A) to undergo a mastectomy or lymph node dissection in a 
     hospital; or
       ``(B) to stay in the hospital for a fixed period of time 
     following a mastectomy or lymph node dissection.
       ``(2) Cost sharing.--Nothing in this section shall be 
     construed as preventing a group health plan or issuer from 
     imposing deductibles, coinsurance, or other cost-sharing in 
     relation to benefits for hospital lengths of stay in 
     connection with a mastectomy or lymph node dissection for the 
     treatment of breast cancer under the plan (or under health 
     insurance coverage offered in connection with a group health 
     plan), except that such coinsurance or other cost-sharing for 
     any portion of a period within a hospital length of stay 
     required under subsection (a) may not be greater than such 
     coinsurance or cost-sharing for any preceding portion of such 
     stay.
       ``(3) Level and type of reimbursements.--Nothing in this 
     section shall be construed to prevent a group health plan or 
     a health insurance issuer offering group health insurance 
     coverage from negotiating the level and type of reimbursement 
     with a provider for care provided in accordance with this 
     section.
       ``(g) Preemption, Relation to State Laws.--
       ``(1) In general.--Nothing in this section shall be 
     construed to preempt any State law with respect to health 
     insurance coverage that--
       ``(A) relates to a hospital length of stay after a 
     mastectomy, lumpectomy, or lymph node dissection;
       ``(B) relates to coverage of reconstructive breast surgery 
     after a mastectomy, lumpectomy, or lymph node dissection; or
       ``(C) requires coverage for breast cancer treatments 
     (including breast reconstruction) in accordance with 
     scientific evidence-based practices or guidelines recommended 
     by established medical associations.
       ``(2) Application of section.--With respect to a State 
     law--
       ``(A) described in paragraph (1)(A), the provisions of this 
     section relating to breast reconstruction shall apply in such 
     State; and
       ``(B) described in paragraph (1)(B), the provisions of this 
     section relating to length of stays for surgical breast 
     treatment shall apply in such State.
       ``(3) ERISA.--Nothing in this section shall be construed to 
     affect or modify the provisions of section 514 with respect 
     to group health plans.''.
       (b) Effective Dates.--The amendments made by this section 
     shall apply to group health plans for plan years beginning on 
     or after the date of enactment of this Act.

     SEC. 535. AMENDMENT TO THE PUBLIC HEALTH SERVICE ACT RELATING 
                   TO THE INDIVIDUAL MARKET.

       (a) In General.--Subpart 3 of part B of title XXVII of the 
     Public Health Service Act (42 U.S.C. 300gg-51 et seq.), as 
     amended by section 303(b), is further amended by adding at 
     the end the following new section:

     ``SEC. 2753. REQUIRED COVERAGE FOR MINIMUM HOSPITAL STAY FOR 
                   MASTECTOMIES AND LYMPH NODE DISSECTIONS FOR THE 
                   TREATMENT OF BREAST CANCER.

       ``The provisions of section 2707 shall apply to health 
     insurance coverage offered by a health insurance issuer in 
     the individual market in the same manner as they apply to 
     health insurance coverage offered by a health insurance 
     issuer in connection with a group health plan in the small or 
     large group market.''.
       (b) Effective Date.--The amendment made by this section 
     shall apply with respect to health insurance coverage 
     offered, sold, issued, renewed, in effect, or operated in the 
     individual market on or after the date of enactment of this 
     Act.

     SEC. 536. AMENDMENTS TO THE INTERNAL REVENUE CODE OF 1986.

       (a) In General.--Subchapter A of chapter 100 of the 
     Internal Revenue Code of 1986 (relating to group health plan 
     portability, access, and renewability requirements) is 
     amended by inserting after section 9803 the following new 
     section:

     ``SEC. 9804. REQUIRED COVERAGE FOR MINIMUM HOSPITAL STAY FOR 
                   MASTECTOMIES AND LYMPH NODE DISSECTIONS FOR THE 
                   TREATMENT OF BREAST CANCER AND COVERAGE FOR 
                   RECONSTRUCTIVE SURGERY FOLLOWING MASTECTOMIES.

       ``(a) Inpatient Care.--
       ``(1) In general.--A group health plan, and a health 
     insurance issuer providing health insurance coverage in 
     connection with a group health plan, that provides medical 
     and surgical benefits shall ensure that inpatient coverage 
     with respect to the surgical treatment of breast cancer 
     (including a mastectomy, lumpectomy, or lymph node dissection 
     for the treatment of breast cancer) is provided for a period 
     of time as is determined by the attending physician, in his 
     or her professional judgment consistent with scientific 
     evidence-based practices or guidelines, in consultation with 
     the patient, to be medically appropriate.
       ``(2) Exception.--Nothing in this section shall be 
     construed as requiring the provision of inpatient coverage if 
     the attending physician in consultation with the patient 
     determine that a shorter period of hospital stay is medically 
     appropriate.
       ``(b) Reconstructive Surgery.--A group health plan, and a 
     health insurance issuer providing health insurance coverage 
     in connection with a group health plan, that provides medical 
     and surgical benefits with respect to a mastectomy shall 
     ensure that, in a case in which a mastectomy patient elects 
     breast reconstruction, coverage is provided for--
       ``(1) all stages of reconstruction of the breast on which 
     the mastectomy has been performed;
       ``(2) surgery and reconstruction of the other breast to 
     produce a symmetrical appearance; and
       ``(3) the costs of prostheses and complications of 
     mastectomy including lymphedemas;
     in the manner determined by the attending physician and the 
     patient to be appropriate. Such coverage may be subject to 
     annual deductibles and coinsurance provisions as

[[Page S8453]]

     may be deemed appropriate and as are consistent with those 
     established for other benefits under the plan or coverage. 
     Written notice of the availability of such coverage shall be 
     delivered to the participant upon enrollment and annually 
     thereafter.
       ``(c) Notice.--A group health plan, and a health insurance 
     issuer providing health insurance coverage in connection with 
     a group health plan shall provide notice to each participant 
     and beneficiary under such plan regarding the coverage 
     required by this section in accordance with regulations 
     promulgated by the Secretary. Such notice shall be in writing 
     and prominently positioned in any literature or 
     correspondence made available or distributed by the plan or 
     issuer and shall be transmitted--
       ``(1) in the next mailing made by the plan or issuer to the 
     participant or beneficiary;
       ``(2) as part of any yearly informational packet sent to 
     the participant or beneficiary; or
       ``(3) not later than January 1, 1999;
     whichever is earlier.
       ``(d) No Authorization Required.--
       ``(1) In general.--A, attending physician shall not be 
     required to obtain authorization from the plan or issuer for 
     prescribing any length of stay in connection with a 
     mastectomy, a lumpectomy, or a lymph node dissection for the 
     treatment of breast cancer.
       ``(2) Prenotification.--Nothing in this section shall be 
     construed as preventing a plan or issuer from requiring 
     prenotification of an inpatient stay referred to in this 
     section if such requirement is consistent with terms and 
     conditions applicable to other inpatient benefits under the 
     plan, except that the provision of such inpatient stay 
     benefits shall not be contingent upon such notification.
       ``(e) Prohibitions.--A group health plan, and a health 
     insurance issuer offering group health insurance coverage in 
     connection with a group health plan, may not--
       ``(1) deny to a patient eligibility, or continued 
     eligibility, to enroll or to renew coverage under the terms 
     of the plan, solely for the purpose of avoiding the 
     requirements of this section;
       ``(2) provide monetary payments or rebates to individuals 
     to encourage such individuals to accept less than the minimum 
     protections available under this section;
       ``(3) penalize or otherwise reduce or limit the 
     reimbursement of an attending provider because such provider 
     provided care to an individual participant or beneficiary in 
     accordance with this section;
       ``(4) provide incentives (monetary or otherwise) to an 
     attending provider to induce such provider to provide care to 
     an individual participant or beneficiary in a manner 
     inconsistent with this section; and
       ``(5) subject to subsection (f)(2), restrict benefits for 
     any portion of a period within a hospital length of stay 
     required under subsection (a) in a manner which is less 
     favorable than the benefits provided for any preceding 
     portion of such stay.
       ``(f) Rules of Construction.--
       ``(1) In general.--Nothing in this section shall be 
     construed to require a patient who is a participant or 
     beneficiary--
       ``(A) to undergo a mastectomy or lymph node dissection in a 
     hospital; or
       ``(B) to stay in the hospital for a fixed period of time 
     following a mastectomy or lymph node dissection.
       ``(2) Cost sharing.--Nothing in this section shall be 
     construed as preventing a group health plan or issuer from 
     imposing deductibles, coinsurance, or other cost-sharing in 
     relation to benefits for hospital lengths of stay in 
     connection with a mastectomy or lymph node dissection for the 
     treatment of breast cancer under the plan (or under health 
     insurance coverage offered in connection with a group health 
     plan), except that such coinsurance or other cost-sharing for 
     any portion of a period within a hospital length of stay 
     required under subsection (a) may not be greater than such 
     coinsurance or cost-sharing for any preceding portion of such 
     stay.
       ``(3) Level and type of reimbursements.--Nothing in this 
     section shall be construed to prevent a group health plan or 
     a health insurance issuer offering group health insurance 
     coverage from negotiating the level and type of reimbursement 
     with a provider for care provided in accordance with this 
     section.
       ``(g) Preemption, Relation to State Laws.--
       ``(1) In general.--Nothing in this section shall be 
     construed to preempt any State law with respect to health 
     insurance coverage that--
       ``(A) relates to a hospital length of stay after a 
     mastectomy, lumpectomy, or lymph node dissection;
       ``(B) relates to coverage of reconstructive breast surgery 
     after a mastectomy, lumpectomy, or lymph node dissection; or
       ``(C) requires coverage for breast cancer treatments 
     (including breast reconstruction) in accordance with 
     scientific evidence-based practices or guidelines recommended 
     by established medical associations.
       ``(2) Application of section.--With respect to a State 
     law--
       ``(A) described in paragraph (1)(A), the provisions of this 
     section relating to breast reconstruction shall apply in such 
     State; and
       ``(B) described in paragraph (1)(B), the provisions of this 
     section relating to length of stays for surgical breast 
     treatment shall apply in such State.
       ``(3) ERISA.--Nothing in this section shall be construed to 
     affect or modify the provisions of section 514 with respect 
     to group health plans.''.
       (b) Conforming Amendments.--
       (1) The heading for subtitle K of such Code is amended to 
     read as follows:

``Subtitle K--Group Health Plan Portability, Access, Renewability, and 
                         Other Requirements''.

       (2) The heading for chapter 100 of such Code is amended to 
     read as follows:

``CHAPTER 100--GROUP HEALTH PLAN PORTABILITY, ACCESS, RENEWABILITY, AND 
                         OTHER REQUIREMENTS''.

       (3) Section 4980D(a) of such Code is amended by striking 
     ``and renewability'' and inserting ``renewability, and 
     other''.
       (c) Clerical Amendments.--
       (1) The table of contents for chapter 100 of such Code is 
     amended inserting after the item relating to section 9803 the 
     following new item:

``Sec. 9804. Required coverage for minimum hospital stay for 
              mastectomies and lymph node dissections for the treatment 
              of breast cancer and coverage for reconstructive surgery 
              following mastectomies.''.
       (2) The item relating to subtitle K in the table of 
     subtitles for such Code is amended by striking ``and 
     renewability'' and inserting ``renewability, and other''.
       (3) The item relating to chapter 100 in the table of 
     chapters for subtitle K of such Code is amended by striking 
     ``and renewability'' and inserting ``renewability, and 
     other''.
       (d) Effective Dates.--The amendments made by this section 
     shall apply with respect to plan years beginning on or after 
     the date of enactment of this Act.

     SEC. 537. RESEARCH STUDY ON THE MANAGEMENT OF BREAST CANCER.

       (a) Study.--To improve survival, quality of life and 
     patient satisfaction in the care of patients with breast 
     cancer, the Agency for Health Care Policy and Research shall 
     conduct a study of the scientific issues relating to--
       (1) disease management strategies for breast cancer that 
     can achieve better patient outcomes;
       (2) controlled clinical evidence that links specific 
     clinical procedures to improved health outcomes;
       (3) the definition of quality measures to evaluate plan and 
     provider performance in the management of breast cancer;
       (4) the identification of quality improvement interventions 
     that can change the process of care to achieve better 
     outcomes for individuals with breast cancer;
       (5) preventive strategies utilized by health plans for the 
     treatment of breast cancer; and
       (6) the extent of clinical practice variation including its 
     impact on cost, quality and outcomes.
       (b) Report.--Not later than January 1, 2000, the Agency for 
     Health Care Policy and Research shall prepare and submit to 
     the appropriate committees of Congress a report concerning 
     the results of the study conducted under subsection (a).

                           *   *   *   *   *

                                  ____


S. 326, June 17, 1999

                           *   *   *   *   *


                   TITLE I--PATIENTS' BILL OF RIGHTS

                  Subtitle A--Right to Advice and Care

       Sec. 101. Patient right to medical advice and care.


         ``SUBPART C--PATIENT RIGHT TO MEDICAL ADVICE AND CARE

         ``Sec. 721. Patient access to emergency medical care.
         ``Sec. 722. Offering of choice of coverage options.
         ``Sec. 723. Patient access to obstetric and gynecological 
           care.
         ``Sec. 724. Patient access to pediatric care.
         ``Sec. 725. Access to specialists.
         ``Sec. 726. Continuity of care.
         ``Sec. 727. Protection of patient-provider 
           communications.
         ``Sec. 728. Patient's right to prescription drugs.
         ``Sec. 729. Self-payment for behavioral health care 
           services.
         ``Sec. 730. Generally applicable provision.
       Sec. 102. Comprehensive independent study of patient access 
           to clinical trials and coverage of associated routine 
           costs.
       Sec. 103. Effective date and related rules.

       Subtitle B--Right to Information About Plans and Providers

       Sec. 111. Information about plans.
       Sec. 112. Information about providers.

           Subtitle C--Right to Hold Health Plans Accountable

       Sec. 121. Amendment to Employee Retirement Income Security 
           Act of 1974.

[[Page S8454]]

               TITLE II--GENETIC INFORMATION AND SERVICES

       Sec. 201. Short title.
       Sec. 202. Amendments to Employee Retirement Income Security 
           Act of 1974.
       Sec. 203. Amendments to the Public Health Service Act.
       Sec. 204. Amendments to the Internal Revenue Code of 1986.

               TITLE III--HEALTHCARE RESEARCH AND QUALITY

       Sec. 301. Short title.
       Sec. 302. Amendment to the Public Health Service Act.

         ``TITLE IX--AGENCY FOR HEALTHCARE RESEARCH AND QUALITY

               ``Part A--Establishment and General Duties

         ``Sec. 901. Mission and duties.
         ``Sec. 902. General authorities.

               ``Part B--Healthcare Improvement Research

         ``Sec. 911. Healthcare outcome improvement research.
         ``Sec. 912. Private-public partnerships to improve 
           organization and delivery.
         ``Sec. 913. Information on quality and cost of care.
         ``Sec. 914. Information systems for healthcare 
           improvement.
         ``Sec. 915. Research supporting primary care and access 
           in underserved areas.
         ``Sec. 916. Clinical practice and technology innovation.
         ``Sec. 917. Coordination of Federal Government quality 
           improvement efforts.

                      ``Part C--General Provisions

         ``Sec. 921. Advisory Council for Healthcare Research and 
           Quality.
         ``Sec. 922. Peer review with respect to grants and 
           contracts.
         ``Sec. 923. Certain provisions with respect to 
           development, collection, and dissemination of data.
         ``Sec. 924. Dissemination of information.
         ``Sec. 925. Additional provisions with respect to grants 
           and contracts.
         ``Sec. 926. Certain administrative authorities.
         ``Sec. 927. Funding.
         ``Sec. 928. Definitions.
       Sec. 303. References.

                   TITLE IV--MISCELLANEOUS PROVISIONS

       Sec. 401. Sense of the Committee.
  Mr. JEFFORDS. How much time do I have remaining?
  The PRESIDING OFFICER. Nine minutes, 6 seconds.
  Mr. JEFFORDS. I yield myself 3 minutes.
  Mr. President, I have listened to the very excellent debate of my 
good friend from Connecticut, and it sounds very compelling. It is with 
some difficulty that I have to remind those across the aisle that we 
tried last year and we tried this year to have a face-off with the two 
bills: You put the best bill forward you have, we will put the best 
bill forward we have, we will allow amendments back and forth, 20 to a 
side, something like that. No, they did not want that. Why? They 
figured they would lose. We had a better bill. We have a better bill 
now.
  No. 1, this bill, after the vote, assuming we win on the vote, the 
Senator from Connecticut will have the opportunity, the minority will 
have the opportunity to offer their provisions on clinical trials 
again. We will have several opportunities to do that. We are not 
cutting off the opportunity for that one to be reexamined.
  What we are saying is, right now, we want to make sure we clear up 
the problems with respect to mastectomies and want to make sure this 
body will have an opportunity to, once and for all, bring back the so-
called amendment of Senator D'Amato to make sure all women in this 
Nation have an opportunity for the best possible care for the very 
difficult problems of breast cancer.
  We are ready to do that. There will be other votes. We will have more 
votes, I do not know, 5, 10 more votes between now and the time this 
debate ends. Right now, we want to have the vote on our amendment 
which, under this convoluted process we were talked into by the 
minority, which is very confusing--and maybe they want it that way--
creates a mess for the public and even us as Members to understand what 
the process is or what is going to happen next or how we are going to 
end up.
  I want to let everyone know I am sincerely in favor of good clinical 
trials, and I am sincerely in favor of taking care, as we would right 
now, of the problems of the mastectomies and also OB/GYN. We will be 
doing that. Since I am the one who is objecting, I want everyone to 
know that is my job as leader on the floor. I do not want it to be 
utilized as some way I am against these things personally.
  I yield 2 minutes to the Senator from Tennessee.
  Mr. FRIST. Mr. President, again I stand as an advocate for clinical 
trials and say at the end of the next 48 hours, we are going to have a 
very good amendment that will be added to this bill which will address 
the issue of getting clinical services to people earlier by lowering 
the barriers to get into clinical trials with a mandate on managed 
care, HMOs that will be very effective, that will be accountable, that 
will be affordable, and that will get things to people quickly.
  Let me go back to the examples. It is so hard. You use an example and 
somebody plays off it. Artificial hearts are expensive. A clinical 
trial opens up. It is life-threatening; there is no alternative. Two 
patients: one dying of cardiomyopathy. The patient will hardly last 2 
weeks. You put in an artificial heart to see if it works. The patient 
dies 2 weeks later. It is terrible. The artificial heart in the other 
patient keeps him alive and 2 weeks, 3 weeks has a stroke to the brain. 
He has a massive stroke and stays in the hospital for a week, 1 month 
or 2 months. He takes hematinics. He has about $4,000 to $5,000 of 
testing every year. There are 15 people or so monitoring that patient 
for the next week, 3 weeks, 6 weeks, or 8 weeks. Two different 
patients: the intervention, the artificial heart you introduced as part 
of the clinical trial, and this patient dies. The incremental cost, the 
difference between these two is the hospitalization for 3 weeks, 4 
weeks, or 8 weeks and the medical care.
  Again, the incremental cost you are going to make the managed care 
plan pay--since everybody is bashing managed care, that seems to be 
OK--but remember, all the managed care plan does is pass that cost on 
to the people who are sick. You have sick patients, whose premiums go 
up, who pay this bill. It is unintended. I know that is not what you 
meant, but by using life-threatening or serious illness where there is 
otherwise no alternative, using the example you introduced, which I 
refuted--I am going to throw it right back at my colleague--it is very 
complicated. We need to stay sharp and focused and pass a sharp bill.
  The PRESIDING OFFICER. The Senator's time has expired. Who yields 
time?
  Mr. JEFFORDS. Mr. President, I yield the Senator from Maine such time 
as we have remaining.
  Ms. SNOWE. How much time remains?
  The PRESIDING OFFICER. The Senator from Maine is recognized for 3 
minutes.
  Ms. SNOWE. Mr. President, I want to make a few points to wrap up. I 
applaud the leadership of Senator Dodd with respect to clinical study 
trials. Obviously, I could not agree with him more on this issue.
  This is an issue that will be addressed further in this debate, as it 
should. But the Senator is frustrated, and if other Senators are 
frustrated at the process, then we all have a collective responsibility 
to make sure it does not happen again. We cannot pretend we do not know 
how we got here. It is unfortunate we have a Hobson's choice today, but 
we had a Hobson's choice yesterday when it came to mastectomies when 
the amendment was offered by Senator Robb to the legislation that 
already had the identical language. I had planned to offer this 
legislation well before the recess because I wanted to improve upon the 
Republican legislation on managed care. I thought it was absolutely 
essential.
  The Senator from Massachusetts asked, why did we just identify 
mastectomies and women with breast cancer? I say to the Senator, why? 
For the same reason the Senator singled out mastectomies in his own 
legislation and Senator Robb singled it out in his amendment that he 
offered yesterday. Because we have an identifiable problem with drive-
through

[[Page S8455]]

mastectomies and HMOs. That was the genesis of the legislation to begin 
with when former Senator D'Amato had introduced that legislation with 
Senator Feinstein and myself several years ago. I introduced the same 
legislation this year with Senator Feinstein for that very reason, 
because there has been a problem with managed care and drive-through 
mastectomies.
  We have all heard the horror stories. That is why this legislation 
was developed. That is why I am offering this amendment to the 
Republican legislation, because it does not have that language.
  Some suggest there is some partisan political ploy. I will compare my 
credentials on bipartisanship with anybody across the aisle. We have 
worked on a bipartisan basis on issues concerning women's health since 
I came to the Congress 20 years ago. I would have hoped yesterday we 
would have had the opportunity to work it out rather than having to 
vote on an amendment that included language that was already in the 
Democratic bill.
  We should have been working together, but now we are having to 
address the issue of defining ``medical necessity'' that no other 
legislation, no board, no governmental agency, no association has 
defined. It is going to limit the treatment that is offered to women 
when it comes to breast cancer. That is a fact.
  So the choice is, are you going to get the best care, the best 
treatment, the best principles when it comes to breast cancer? Or are 
you going to lower the threshold and say: Well, everybody offers this, 
no matter what, when there are other options? There is better science 
developing all the time, and it could be available to a woman who has 
breast cancer.
  Those are the choices. That is why we are at this point. I just say 
to everybody in this Chamber, if we want to avoid this kind of 
contrivance when it comes to this amendment process, then I suggest it 
is the responsibility of each of us to make sure it does not happen, so 
that we get the very best legislation, that we can walk across the 
aisle, rather than being constrained by the parliamentary procedures 
that we confront today.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. REID addressed the Chair.
  The PRESIDING OFFICER. The Senator from Nevada has 1\1/2\ minutes.
  Mr. REID. I will take 2 minutes off the bill in addition to that.
  Mr. President, the statements of the Senator from Vermont and my 
friend from Maine basically are cynical and very unreasonable. We have 
given the majority the opportunity to vote on drive-through 
mastectomies and also to maintain clinical trials. We could do that by 
voice vote. We could save a lot of time. The decision has been made by 
the majority to make sure that we do not have the opportunity to pass 
the clinical trials aspect of this bill.
  They are always promising they are going to come back with something 
else a little better later. The fact of the matter is, this is not a 
Hobson's choice. What they are attempting to do is cynical and 
unreasonable.
  Senator Lott said this morning in his opening statement, Republicans 
have a medical doctor to support their positions. And I have the 
greatest respect for the junior Senator from Tennessee. The fact is, 
with his medical knowledge, though, he should relate the facts. And the 
fact is, on page 8341 of the Congressional Record of July 13, 1999, 
Senator Frist said, among other things, ``Let me share with Members 
what one person told me. Dr. Robert Yelverton, chairman of the American 
College of Obstetricians and Gynecologists.' . . .''
  Fact: My friend from Tennessee never spoke to Dr. Yelverton.
  Fact: Dr. Yelverton, even if he had spoken to him, disagrees with 
statements made by Senator Frist about him.
  I ask unanimous consent to have printed in the Record page 8341 of 
yesterday's Record. I also ask unanimous consent to have printed in the 
Record a memorandum to Lucia DiVenere from Dr. Yelverton, wherein that 
memorandum states:

       Senator Frist's misuse of my statement in support of his 
     position . . . is regrettably misleading . . . and does an 
     injustice to the true intent of my statements.

  Further, I ask unanimous consent to have printed in the Record a 
letter to Dr. Frist, dated July 14, 1999, from Dr. Hale, executive vice 
president of the American College of Obstetricians and Gynecologists.
  That letter, in part, says:

       The American College of Obstetricians and Gynecologists and 
     Dr. Yelverton fully support efforts in Congress, including 
     the Robb/Murray amendment, which would enable ob-gyns to be 
     designated as primary care providers. A recent . . . survey 
     found that nearly one-third of all ob-gyns in managed care 
     plans are denied the opportunity to be designated as primary 
     care physicians. Ob-gyns are often the only health care 
     provider many women see through their [entire] adult lives 
     and are best suited to understand and evaluate the health 
     care needs of their patients. . . .
       We also strongly endorse the Robb/Murray amendment's 
     provision that would require managed care plans to allow 
     women direct access to the full array of covered ob-gyn 
     services under the plan.
       While the amendment failed yesterday on a 48 to 52 vote, we 
     are hopeful the Senate will take up this important issue 
     again. Dr. Yelverton and I urge you to vote in favor of these 
     important policies.

  I would hope my friend, Senator Frist, and the other Republicans 
would take this to heart. I believe we need to review some of the votes 
taken yesterday.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                  Excerpt From Record of July 13, 1999

       Mr. Frist. In the Kennedy-Robb amendment is the issue of 
     access.
       Again, my colleagues on the other side hit it right on the 
     head: Women today want to have access to their obstetrician. 
     They don't want to go through gatekeepers to have to get to 
     their obstetrician or gynecologist. That relationship is very 
     special and very important when we are talking about women's 
     health and women's diseases.
       In the Kennedy-Robb amendment, the language is that the 
     plan or insurer shall permit such an individual who is a 
     female to designate a participating physician who specializes 
     in obstetrics and gynecology as the individual's primary care 
     provider.
       It is true that in our underlying bill we don't say the 
     plan has to say that all obstetricians and gynecologists are 
     primary care providers. That is exactly right. The reasons 
     for that are manyfold.
       Let me share with Members what one person told me. Dr. 
     Robert Yelverton, chairman of the American College of 
     Obstetricians and Gynecologists' Primary Care Committee, 
     stated:
       The vast majority of OB/GYNs in this country have opted to 
     remain as specialists rather than act as primary care 
     physicians.
       He attributes this to the high standards that health plans 
     have for primary care physicians, saying:
       None of us could really qualify as primary care physicians 
     under most of the plans, and most OB/GYNs would have to go 
     back to school for a year or more to do so.
       You can argue whether that is good or bad, but it shows 
     that automatically taking specialists and making them primary 
     care physicians and putting it in Federal statute is a little 
     bit like taking Bill First, heart and lung transplant 
     surgeon, and saying: You ought to take care of all of the 
     primary care of anybody who walks into your office.
                                  ____

         Doctors Yelverton, Lerner, Fallieras, Kilbride, Marston, 
           Jaeger, Minton & Brown,
                                         Tampa, FL, July 13, 1999.
     To: Lucia DiVenere, ACOG Government Relations.
     From: Robert W. Yelverton, M.D., Chairman, Primary Care 
         Committee.
       I received your fax tonight and offer the following in 
     response.
       I have never spoken directly to Senator Bill Frist (R-TN) 
     or any member of his staff on the subject of OB/GYNs as 
     primary care physicians or on any other subject. The quote 
     that Senator Frist attributed to me on the floor of the 
     Senate today came from an article in the June 13, 1999, 
     edition of the New York Times. The article may be viewed on 
     the New York Times website (go to www.nytimes.com, then click 
     on Health and Science). I was contacted by the article's 
     author, Larry Katzenstein, and asked to comment on the impact 
     of managed care on women's healthcare in this country. In my 
     interview with Mr. Katzenstein, I discussed ``barriers'' that 
     managed care organizations have raised against the efforts of 
     OB/GYNs to become primary care physicians. The quote 
     attributed to me by Senator Frist was from a non-quote in 
     this article. I told Mr. Katzenstein that some managed care 
     organizations have placed barriers consisting of such 
     stringent (not ``high,'' as Senator Frist stated) standards 
     for their qualifications as primary care physicians that most 
     OB/GYNs would not be able to meet them without further 
     training.
       One objective of my comments was to demonstrate that the 
     College's interests were to allow OB/GYNs to provide women's 
     healthcare to their patients unimpeded by the cumbersome 
     requirements of managed care referral systems. Mr. 
     Katzenstein's article did not emphasize to the degree it 
     should have that these were barriers to OB/GYNs

[[Page S8456]]

     being designated primary care physicians--not ``high 
     standards''--as has been discussed repeatedly in meetings of 
     the Primary Care Committee. I went on to say to Mr. 
     Katzenstein that the qualification requirements that some 
     managed care organizations impose on OB/GYNs in certain 
     instances exceed even those required of family physicians. He 
     chose not to include that statement in his article.
       Senator Frist's misuse of my statement in support of his 
     position that OB/GYNs could not act as primary care 
     physicians because of the ``high standards'' that managed 
     care organizations set for primary care physicians, is 
     regrettably misleading, to say the least, and does an 
     injustice to the true intent of my statements.
       I personally supported then and I support now the amendment 
     sponsored by ACOG to allow OB/GYNs to act as primary care 
     physicians and to allow direct access for women's healthcare 
     and did, in fact, spend a portion of this very afternoon e-
     mailing my senators and encouraging them to vote in support 
     of the amendment.
       Please contact me. I will be glad to discuss this matter 
     with you at that time and will support any effort that you 
     want to undertake to clarify this issue now on the floor of 
     the Senate.
                                  ____

                                           The American College of


                              Obstetricians and Gynecologists,

                                    Washington, DC, July 14, 1999.
     Hon. Bill Frist
     Washington, DC.
       Dear Senator Frist: As Executive Vice President of the 
     American College of Obstetrics and Gynecologists (ACOG), I 
     feel it necessary to clarify ACOG's position on the Robb/
     Murray amendment to allow women in managed care plans direct 
     access to ob-gyn care. I've also attached a memo from Dr. 
     Robert Yelverton, Chairman of ACOG's Primary Care Committee, 
     correcting your misuse of his statements in a June 13 New 
     York Times article.
       ACOG and Dr. Yelverton fully support efforts in Congress, 
     including the Robb/Murray amendment, which would enable ob-
     gyns to be designated as primary care providers. A recent 
     ACOG/Princeton Survey Research Associates survey found that 
     nearly one-third of all ob-gyns in managed care plans are 
     denied the opportunity to be designated as primary care 
     physicians. Ob-gyns are often the only health care provider 
     many women see throughout their adult lives and are best 
     suited to understand and evaluate the health care needs of 
     their patients. While not all ob-gyns may choose to accept a 
     PCP designation, all ob-gyns should have the opportunity to 
     be designated as a woman's PCP under managed care.
       We also strongly endorse the Robb/Murray amendment's 
     provision that would require managed care plans to allow 
     women direct access to the full array of covered ob-gyn 
     services provided under the plan.
       While the amendment failed yesterday on a 48 to 52 vote, we 
     are hopeful the Senate will take up this important issue 
     again. Dr. Yelverton and I urge you to vote in favor of these 
     important policies.
           Sincerely,
                                                Ralph W. Hale, MD,
                                         Executive Vice President.

  Mr. KENNEDY. Mr. President, do we still have a minute and a half on 
the amendment?
  The PRESIDING OFFICER. The time on the amendment has been consumed.
  Mr. KENNEDY. I yield myself 1 minute off the bill.
  The PRESIDING OFFICER. The Senator has that right.
  Mr. KENNEDY. Mr. President, I ask unanimous consent to have printed 
in the Record a letter from the National Partnership for Women & 
Families and a letter from the National Breast Cancer Coalition. Both 
of these organizations support the Dodd amendment, and they urge 
opposition to the Snowe amendment because it strikes the underlying 
Dodd amendment on clinical trials.
  The letter from the National Partnership for Women & Families says:

       It is essential that women and families have access to 
     clinical trials. We oppose any effort to deny such access.

  I ask unanimous consent that both these letters be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                              National Partnership


                                         for Women & Families,

                                    Washington, DC, July 14, 1999.
     Hon. Edward M. Kennedy,
     U.S. Senate,
     Washington, DC.
       Dear Senator Kennedy: The National Partnership for Women & 
     Families urges you to oppose the pending Snowe amendment 
     because it strikes the underlying Dodd amendment on clinical 
     trials. It is essential that women and families have access 
     to clinical trials. We oppose any effort to deny such access.
           Sincerely,
     Judith L. Lichtman,
                                                        President.
     Joanne L. Hustead,
     Director of Legal and Public Policy.
                                  ____



                             National Breast Cancer Coalition,

                                    Washington, DC, July 14, 1999.
     Hon. Thomas Daschle,
     U.S. Senate, Washington, DC.
       Dear Senator Daschle: On behalf of the National Breast 
     Cancer Coalition (NBCC), I want to express our deep concern 
     about the fact that a choice has to be made between the 
     length of hospital stay and the clinical trials amendments. 
     If a choice must be made, NBCC's priority is access to 
     clinical trials.
       As you know, NBCC is a grassroots advocacy organization 
     made up of more than 500 organizations and tens of thousands 
     of individuals working since 1991 to eradicate this disease 
     through advocacy and action.
       While it is important for doctors and patients to make 
     decisions about how long women should stay in the hospital 
     following a mastectomy, an even more important amendment is 
     Senator Dodd's access to clinical trials amendment. Clinical 
     trials provide the best evidence of whether an intervention 
     will work. Without them, we will never know how to prevent 
     breast cancer, how best to treat it, or how to cure it-and 
     our demands for ``quality care'' will have no meaning.
       NBCC truly appreciates Senator Snowe's support of breast 
     cancer issues. Unfortunately, under these circumstances we 
     believe the length of hospital stay amendment should not be 
     supported in lieu of ensuring access to the lifesaving 
     therapies in clinical trials.
       Thank you for your leadership. We look forward to working 
     with you to get this important patient protection, and a 
     comprehensive and enforceable ``Patients Bill of Rights'' 
     enacted into law. Please do not hesitate to call me, or 
     NBCC's Government Relations Manager, Jennifer Katz if you 
     have any questions.
           Sincerely,
                                                       Fran Visco,
                                                        President.

  Mr. JEFFORDS. Mr. President, I ask unanimous consent that Senator 
Murkowski be added as a cosponsor to the Snowe amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. JEFFORDS. Mr. President, I ask for the yeas and nays on the Snowe 
amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
1241. The yeas and nays have been ordered. The clerk will call the 
roll.
  The legislative assistant proceeded to call the roll.
  The PRESIDING OFFICER (Mr. Voinovich). Are there any other Senators 
in the Chamber desiring to vote?
  The result was announced--yeas 55, nays 45, as follows:

                      [Rollcall Vote No. 203 Leg.]

                                YEAS--55

     Abraham
     Allard
     Ashcroft
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Chafee
     Cochran
     Collins
     Coverdell
     Craig
     Crapo
     DeWine
     Domenici
     Enzi
     Fitzgerald
     Frist
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Jeffords
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Roberts
     Roth
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner

                                NAYS--45

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Bryan
     Byrd
     Cleland
     Conrad
     Daschle
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Graham
     Harkin
     Hollings
     Inouye
     Johnson
     Kennedy
     Kerrey
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Moynihan
     Murray
     Reed
     Reid
     Robb
     Rockefeller
     Sarbanes
     Schumer
     Torricelli
     Wellstone
     Wyden
  The amendment (No. 1241) was agreed to.
  Mr. FRIST. Mr. President, I remove to reconsider the vote, and I move 
to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senator from South Dakota.


                Amendment No. 1242 to Amendment No. 1239

(Purpose: To ensure that the protections provided for in the patients' 
  bill of rights apply to all patients with private health insurance)

  Mr. DASCHLE. Mr. President, I have an amendment at the desk.
  The PRESIDING OFFICER. The clerk will report.

[[Page S8457]]

  The legislative clerk read as follows:

       The Senator from South Dakota (Mr. Daschle), for himself, 
     Mr. Kennedy, Mr. Reid, Mr. Durbin, Mr. Wellstone, Mr. Wyden, 
     Mr. Reed, Mrs. Murray, Mr. Chafee, and Mrs. Feinstein, 
     proposes an amendment numbered 1242 to amendment No. 1239.

  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.'')
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. LEAHY. Mr. President, will the Senator yield for a unanimous 
consent?
  Mr. KENNEDY. Yes. I yield for that purpose.
  Mr. LEAHY. I thank my friend from Massachusetts.


                         Privilege of the Floor

  Mr. President, I ask unanimous consent that Rebecca Pastner of my 
staff be given the privilege of the floor today during votes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KENNEDY. Mr. President, I yield myself 7 minutes.
  All patients, regardless of where they live or how they purchase 
their insurance, deserve to know that their health plan will cover the 
benefits they need when they are ill or injured.
  When we say ``all,'' we mean all.
  That is a fundamental principle of HMO reform. But it is a 
fundamental principle that is ignored in the Republican minimal 
alternative.
  The amendment that Senator Daschle, I, and others are offering makes 
clear that every provision of the Patients' Bill of Rights should apply 
to all 161 million Americans with private insurance coverage.
  No patient should be turned away at the emergency room door, denied 
access to the specialist they need to save their life, or be told that 
they will not get the prescription drug they need to treat their 
illness because they live in Mississippi instead of Massachusetts or in 
Oklahoma instead of Ohio.
  No child or parent or grandparent should be denied the medical care 
they need because they happen to work for a small business instead of a 
large corporation or because they are a teacher in a public school 
instead of an executive on Wall Street.
  Of the 161 million Americans with private insurance, only 48 million 
are covered under the Republican plan; 113 million Americans are left 
out or are left behind. The Republican plan limits protections to those 
who receive their coverage from an employer who self-insures their 
health plan rather than purchasing an insurance policy.
  Only the largest corporations self-fund their insurance plan. 
However, many employees of even the largest employers get their 
coverage through an fully-funded health plan. These employees would not 
be protected by the Republican bill.
  What an incredible irony. Much of the public desire for patient 
protection legislation comes from the concern about the abusive 
practices of HMOs. But virtually no one enrolled in an HMO is covered 
by the Republican bill because HMOs are rarely part of self-funded 
arrangements.
  These reforms are supposed to protect patients against HMO and 
insurance company abuses. But people with coverage from insurance 
companies and HMOs are not protected by the Republican bill.
  Nothing more clearly demonstrates that the Republican bill is an 
industry protection act, not a patient protection act.
  It is no wonder insurance companies support the Republican bill. It 
is no wonder that over 200 groups of doctors, nurses, patients, and 
advocates for women, children, and families oppose the Republican bill.
  The ``dishonor role'' of those left out under the Republican plan is 
long.
  We are talking about 75 million Americans who work for businesses 
that purchase insurance. We are talking about 15 million Americans who 
are small business men and women, self-employed salesmen, home day-care 
workers, early retirees, farmers, or others who purchase their own 
insurance instead of receiving it through their employer.
  We are talking about 23 million schoolteachers, police officers, 
librarians, nurses, and other employees of State and local government.
  Why are these people excluded?
  This chart indicates exactly the point that we are making.
  The Republican bill covers 48 million people. These are the people 
who receive health insurance through self-insured employer plans. These 
are the plans in which the company self-insures and, therefore, pays 
for the various medical treatments.
  It doesn't cover the 75 million persons whose employers provide 
coverage through an insurance policy or HMO even though approximately 
85 percent of the 75 million are enrolled in HMOs. It doesn't cover the 
23 million State and local government workers. It doesn't include the 
people buying individual health insurance policies. Those are the very 
small businessmen, the farmers, and others.
  Why are these people excluded, even though the Republican plan in the 
House of Representatives includes most of these individuals?
  Mr. SARBANES. Will the Senator yield?
  Mr. KENNEDY. I yield for a question.
  Mr. SARBANES. As I understand this, we are dealing here with a 
Patients' Bill of Rights which is designed to, in effect, curb some of 
the practices of the HMOs. The proposal from the other side of the 
aisle by our Republican colleagues does not cover the bulk of the 
people who are in HMOs, is that correct?
  Mr. KENNEDY. It covers virtually none of the people who are in HMOs.
  Mr. SARBANES. What is the purpose of their exercise? It is a 
pretense, is it not, to assert some sort of Patients' Bill of Rights to 
deal with problems people are having with HMOs and then not to cover 
the very people who are in the HMOs? That is a pretense, is it not?
  Mr. KENNEDY. I believe it is.
  This chart clearly reflects the point the Senator has made. The 48 
million who are covered are covered through self-funded plans. The 
largest group of persons receiving health care through HMOs are the 75 
million where the employer purchases coverage through an insurance 
policy or an HMO; about 85 percent of the 75 million are enrolled in 
HMOs. This bill does not cover them.
  This bill doesn't cover State and local workers, and it does not 
cover people buying individual policies.
  The bill supported by the Republicans, which is a bill allegedly 
dealing with the problems occurring in HMOs, covers few if any of the 
members of Health Maintenance Organizations.
  Is it any wonder the insurance industry is supporting their 
particular proposal and is opposed to the proposals we have supported? 
Isn't it understandable that the major medical groups and professions, 
the doctors and nurses who are concerned about managed care abuses--who 
understand the abuses happen to those with employer-provided plans, 
State and local government plans, and individual plans--uniformly 
support our legislation?
  Mr. SARBANES. I did a fast calculation. As I calculate, more than 70 
percent of the people who we are concerned about with respect to how 
they get their health care and the practices which are followed are 
excluded--not included, excluded--from the Republican proposal.
  Mr. KENNEDY. The Senator is correct. That is why this debate has been 
rather empty until now. We heard much stated by the principal 
supporters of the other side's bill about all the benefits of the 
Republican bill. Now we have found out that the benefits do not apply 
to two-thirds of all those with insurance coverage, and most of those 
it may protect are not enrolled in HMOs.
  (Mr. GREGG assumed the Chair.)
  Mr. BIDEN. Will the Senator yield?
  Mr. KENNEDY. I yield.
  Mr. BIDEN. In my State, the vast majority of the people who have 
insurance work for Dupont, General Motors, Chrysler, the major 
pharmaceutical firms such as Zeneca and Hercules. Do you mean all those 
people--and they all have employer-provided health care--are excluded 
from coverage in the Republican bill?
  Mr. KENNEDY. Not knowing whether those particular programs are self-
funded offhand, it would be difficult to respond concerning particular 
companies.
  However, only the larger companies self-fund. They are the only 
companies that have the resources to self-fund. It is generally the 
major companies and

[[Page S8458]]

corporations that have the adequate resources to self-fund health 
coverage.

  The people buying individual policies are the farmer, and the small 
shopkeeper. It is the men, women and children on Main Street who are 
not protected under the Republican plan.
  When we talk about State and local government employees, we are 
talking about policemen and firefighters putting their lives on the 
line every day, their spouses, their children, their parents. They are 
the State and local government employees. About 75 percent are covered 
by an HMO--they are getting no protections under the Republican plan.
  I am reminded by my staff that 89 percent of the people in Delaware 
who have privately purchased health insurance will not be covered under 
the Republican plan.
  Mr. BIDEN. Eighty-nine percent?
  Mr. KENNEDY. 89 percent will not be covered by the proposal. We have 
a breakdown for each State. In Delaware, it is 89 percent not covered 
by the Republican proposal. The protections they are talking about 
doing, or will do, will not cover 89% of the people in Delaware, with 
the exception of the amendment of the Senator of Maine that has just 
been adopted, which is universal. That is another issue we will come 
back to.
  Mr. SARBANES. Will the Senator yield?
  Mr. KENNEDY. I yield.
  Mr. SARBANES. As I understand the Senator's chart, there are 15 
million people buying individual policies. Under the Republican 
proposal, they will not be covered, is that correct?
  Mr. KENNEDY. The Senator is correct.
  Mr. SARBANES. There are another 23 million people, State and local 
government workers, as I understand it, under the Republican bill, who 
will not be covered, but they will not receive any protections with 
respect to the practices of the HMOs, is that correct?
  Mr. KENNEDY. The Senator is correct.
  Mr. SARBANES. Furthermore, there are another 75 million people whose 
employers provide coverage through an insurance policy or an HMO, 75 
million, and those people will not be covered, is that correct?
  Mr. KENNEDY. The Senator is correct.
  Mr. SARBANES. That is a total of 113 million people not covered.
  As I understand it, the only people covered in this Republican 
proposal are 48 million people covered through a self-funded employer 
plan, which is less than 30 percent of the total number of people about 
whom we should be concerned.
  Mr. KENNEDY. The Senator is quite correct.
  That raises the question about supporting that plan. It is a 
legitimate question--whether we ought to be representing to American 
families that we are doing something to protect them when we are not, 
we are failing. By failing to provide universal protection, if the 
Republican proposal comes before the Senate and Members support it, we 
are failing 70 percent of the American people.
  It is a fraud to represent that we are providing them with 
protections when we are not. This is why I think we are putting the 
Senate to the test this afternoon. We are testing the seriousness 
Members have for ensuring that whatever is passed will apply to 
everyone in this country who has insurance.
  Mr. SCHUMER. Will the Senator yield?
  Mr. KENNEDY. I yield.
  Mr. SCHUMER. Does the Senator have information on what percentage are 
covered in New York?
  Mr. KENNEDY. The answer to that is, yes, we do. Mr. President, 79 
percent of those who are insured in the State of New York will not be 
covered. There are 10,300,000 individuals who are covered with 
privately purchased insurance, and the number of persons not covered 
under the Republican bill is 8,101,000, practically 80 percent. Four 
out of five of the citizens of New York will not be covered under the 
Republican program unless this amendment is accepted.
  Mr. SCHUMER. And, further asking a question, that means that four out 
of five would not get emergency room coverage; four out of five would 
not get the right to specialists; four out of five would not get the 
extended appeals, the independent appeals; four out of five would not 
have any right to sue.
  So this amendment that the Senator from Massachusetts is offering is 
probably, I would guess, the most important amendment because every 
other amendment is dependent on it. No matter how good an amendment you 
agree to, if the amendment of the Senator from Massachusetts is not 
agreed to, it does not matter to most Americans because they simply 
will not be covered. We would be voting for a bill that would do one-
fifth as much, at best, as a proposal that would cover everybody. Am I 
correct?
  Mr. KENNEDY. The Senator is quite correct. It is the difference 
between substance and process. You can have the greatest substance in 
the world, but if you control the process, you can limit it and 
restrict it in such a way to preclude people from being protected. That 
is exactly what is happening here.
  Mr. SCHUMER. Right.
  Mr. KENNEDY. Even the underlying substance of the Republican proposal 
we believe has fallen short in the areas mentioned by the Senator from 
New York. We are going to try, during the latter part of the afternoon, 
tonight, and tomorrow, to continue to address those inadequacies, and 
hopefully we will have some support.
  Mr. SCHUMER. One final question. This chart would indicate it all. It 
is 48 million/161 million. Under our proposal, the Democratic proposal, 
161 million Americans are covered for emergency room, for specialists, 
for independent review, for the right to sue. And, at best, even if all 
the other amendments are agreed to, under the Republican proposal under 
48 million would be covered?
  Mr. KENNEDY. The Senator is quite correct. On the other side of the 
room--I am glad to see our two colleagues. We are missing some of our 
other colleagues for this debate on a matter of such great importance.
  I rarely see, and I ask my other colleagues how many times have they 
seen, legislation written that effectively excludes 72 or 73 percent of 
all Americans but meets American's needs? Yet we effectively exclude 72 
or 73% of Americans who need these protections. This, I think, makes 
the proposal fraudulent in its representation to the American people.
  Mr. SARBANES. Will the Senator yield further?
  Mr. KENNEDY. Yes.
  Mr. SARBANES. I think the Senator from New York has again emphasized 
an extremely important point. People watching this debate have to 
understand, we have had these amendments arguing about what practice 
should be covered--what practice should be covered. So we have an 
important difference there. But the fact of the matter is, under the 
Republican proposal, no matter what practice is covered, it is only 
going to reach less than 30 percent of the people.
  For the remainder, the other 70 percent, the 113 million, this debate 
for them is completely irrelevant because they are not going to be 
covered at all. So all of this other argument about whether you cover 
this procedure or that procedure--which I think are extremely important 
arguments in and of themselves, and important issues--but unless we 
deal with this issue of coverage, which is the sharpest contrast 
between the two proposals, well over 70 percent of the people are 
simply going to be left out altogether. Is that not correct?
  Mr. KENNEDY. The Senator is correct. But let me mention an additional 
fact you will hear from the other side. They will say: We want to cover 
these 48 million individuals, but the States are covering all the 
others; therefore, you have an empty argument, Democrats have an empty 
argument.
  Do you know the answer to that? There is no State in this country 
that provides all the protections provided in the Democratic proposal--
not one State. There is no State in the country that guarantees 
pediatric specialty care for children who may have cancer or other 
kinds of serious illness--not one.

  You can pick and choose and find out that there are 18 States that 
have require some type of external appeal; almost all reject the kinds 
of appeal the Republicans have, the self-serving appeals where the HMO 
appoints the reviewer. They can fly-speck all afternoon and say we have 
this here and

[[Page S8459]]

this here, but there is not a State that provides all the protections 
we provide.
  I ask any of my colleagues who are on their feet if they differ with 
the concept that we ought to provide a basic floor of protections for 
all Americans. Then, if the States of New York, California, 
Massachusetts, or Maryland want to build on those protections, we may 
do so. This is the model used in the bipartisan legislation Senator 
Kassebaum and I sponsored which passed the Senate that allows employees 
to move from job to job while retaining health care coverage. We follow 
that pattern very closely with this legislation. We follow the same 
type of model--a federal floor--in COBRA legislation. We follow the 
same model for mental health programs.
  We have followed that model with bipartisan support on 10 different 
programs, and I will have them printed in the Record this afternoon, 
and yet we have the Republicans saying no to the model on this 
legislation.
  Why? The answer is, the insurance companies will not let them. That 
is the answer. There is no other answer. We challenge our Republican 
friends. They are not here. We challenge them. How do you justify 
following the same type of process and procedure we have used in 10 
different programs that have bipartisan support and yet now saying no, 
no, no, we are not going to do it on this bill? Can they give me an 
answer? Can they give us a clear answer on why they will not do that?
  I do not know. I think it is important, however, in giving a complete 
answer to the Senator, to at least know what they are saying and how 
inaccurate and implausible their explanation is.
  Mrs. BOXER. Will the Senator yield for a question?
  Mr. KENNEDY. I see my friend and colleague from Massachusetts.
  Mr. KERRY. Mr. President, I ask my colleague from Massachusetts, who 
I think has hit the nail on the head when he talks about what the 
insurance companies will allow or not allow, for the average American 
listening to this, the immediate question is--it seems 
incomprehensible--how can we not be covered if that is the purpose of 
the bill?
  The Republicans are going to hide behind a number of false arguments. 
I wonder if my colleague would share with us what the reality is of the 
cost, because the Republicans are going to hide behind the notion that 
somehow what the Democrats want to do, which is cover more Americans, 
is too costly, and they will bring out the old Harry and Louise chart 
again and try to confuse Americans about what will happen.
  Will my colleague share with us and with the American people what the 
real costs are of what the Democrats are talking about doing?
  Mr. KENNEDY. Mr. President, we have put into the Record the letter 
from the General Accounting Office that said it is 4.8 percent over 5 
years. That figure was used by the majority leader, Senator Trent Lott, 
on ``Meet The Press.'' He basically subscribed to that cost over a 
period of 5 years.
  If you take the average program, it averages about $2,000 for an 
individual; $1,000 for a child; about $5,000 for a reasonably good 
family plan. Maybe it is somewhat more costly in the Northeast than it 
is in the South. If you look at a 5 percent cost, it would be $250 over 
5 years; that is $50 a year. If you look at the percentage paid for by 
the worker, it is typically about 20%. If you do that for 12 months, do 
that over 1 year, it is less than $2 a month, it is a Big Mac.
  I see a number of my colleagues. I think all of them would agree, 
every time we talk about family and medical leave we get a study done 
by the Chamber of Commerce. When we talk about minimum wage, we get 
those studies that are done by the restaurant association on the 
increase in the minimum wage. They talk about the escalation of costs 
and how it is going to put everybody out of business. The studies about 
cost used in this debate are studies that are bought and paid for by 
the insurance companies--bought and paid for by the insurance 
companies.
  We have heard from our Republican friends for months and years, as 
the President of the United States said yesterday: We always rely on 
the CBO figures. Now we have a CBO figure, and they do not like it.
  Their second point is that all those people are going to lose their 
health insurance. The fact is that the individuals and groups which 
have fought for expansion of health insurance coverage for years 
support our bill. Now we have the insurance industry saying pass this 
bill because it is going to mean the loss of health insurance coverage. 
That is poppycock. That is wrong.
  The facts, again, is that the General Accounting Office--and I have 
put in the Record the particular provision--has said there may very 
well be an expansion in total coverage because there will be good 
benefits and good protections.
  The line I like is the one that was stated so well by our good friend 
from Maryland earlier today at a press conference: Around here it used 
to be when you bought insurance, it was what you were buying, what you 
could expect; what you paid for is what you were going to get. Now when 
you give your money and buy insurance, it is what the insurance company 
is prepared to give you.
  That is what has happened in the United States of America. It is what 
the insurance company is going to give you. As a result, it fails to 
give adequate coverage to those children and women, the disabled and 
people who have bought the insurance and deserve appropriate coverage. 
That is what is happening.
  When they talk about costs, I wish they at least had the decency to 
address who picks up the cost when people fall through the cracks? It 
is charity care in the States. It is taxpayers who pick up the costs.
  What about the cost of all that advertising we see every day? Mr. 
President, the profits of the top 10 HMOs total $1.5 billion. There are 
tens of millions of dollars spent for CEO salaries. Who is paying for 
all that? That is going to result in higher premiums for American 
workers, and that is what they should be outraged about.
  I will take a couple more questions, and then I will be glad to yield 
the floor. Can I finish with my colleague?
  Mr. KERRY. One further question, if I may. We have talked about some 
other States. In the State the Senator and I represent, Massachusetts, 
it is my understanding that 77 percent of the privately insured would 
not be protected under the Republican plan.
  Mr. KENNEDY. That is my understanding as well, 3 out of 4.
  Mr. KERRY. How can you describe the rationale for the Republicans 
coming to the floor and saying that, in fact, they are offering 
Americans a Patients' Bill of Rights?
  Mr. KENNEDY. I find that has been the question for a long time. We 
had hoped to work in a bipartisan way as we did to get coverage for 5 
to 10 million children with the Republicans on our committee. We had 
hoped to work in a bipartisan way as we did with Senator Kassebaum to 
allow health insurance to become more portable. We are hopeful of 
working some of the privacy issues out in a bipartisan way. Yet when it 
comes to the Patients' Bill of Rights, the wall came down. The 
insurance companies said absolutely not, not an inch.
  I was listening to my colleagues say this is a regrettable situation; 
I wish we could get together. The insurance companies will not let them 
get together with us. They will not let them. This bill has been bought 
and paid for by the insurance industry; no question about it.
  I yield to the Senator from North Dakota.
  Mr. DORGAN. I appreciate the Senator yielding. I was standing here 
listening and thinking of Mark Twain. He was asked to engage in a 
debate at one point. He said: Fine, as long as I can be on the opposing 
side.
  They said: We haven't told you what the subject is.
  He said: It doesn't matter. Being on the opposing side doesn't 
require preparation.

  There is no preparation here. We do not have a Republican on the 
floor at the moment. I am sorry, Senator Jeffords is here.
  You can fill in the blank. It would not matter if you talk about 
managed care, minimum wage, clean air. You can talk about Medicare, you 
can talk about child labor laws, and there will be the same folks 
coming to the floor saying: It is not the Federal Government's 
responsibility; let the States do it.

[[Page S8460]]

  The Senator from Massachusetts made the point that most of the people 
are left out of the Republican plan. If people wonder if it is us 
against them, here is a USA Today editorial. It says: ``100 million 
Reasons GOP's Health Plan Fails.''

       That is how many people the proposal will leave 
     unprotected. 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,'' and 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 plans, 
     subject to Federal regulations, but another 100 million or so 
     whose health plans are subject to state regulations are 
     excluded.

  The same editorial points out, as the Senator from Massachusetts has, 
that most of the States do not have these protections.
  These folks who come to the floor and say the States already have the 
protection--access to nonnetwork providers, 35 States do not have that. 
I just do not understand. Instead of coming to the floor and being 
honest and saying: We have no interest in this bill, all we want to do 
is obstruct, we have no interest in passing anything similar to that. 
Instead of doing that, they come with all these fuzzy shells. You wrap 
a package. It looks to be the same package that is sitting across the 
desk, but it has nothing in it. That is what is happening. Amendment 
after amendment is an empty shell, a package with nothing in it.
  USA Today says it right: ``100 Million Reasons GOP's Health Plan 
Fails.''
  Isn't it the case, I ask Senator Kennedy, because of this every 
single health organization in this country opposes the Republican plan 
and supports the Democratic plan? Is that not the case?
  Mr. KENNEDY. The Senator is correct. Generally around here it is a 
pretty good test to take a piece of legislation and ask who is 
supporting it and who is going to benefit. That is not a bad test for 
the American public: Who is supporting the legislation--which groups, 
which people--and who is going to benefit.
  What you find out is that our plan has the support of every health 
professional and every patient group. They are the ones supporting our 
bill.
  Who is opposing it? The insurance industry. Who is supporting the 
opposition program? The insurance industry.
  As this debate goes on and we get involved in technicalities, people 
ought to know at the bottom line of each and every one of these issues 
who supports our plan. On the OB/GYN issues, the medical professionals 
support our proposal in spite of the misrepresentations put forth in 
this Chamber.
  That is what is happening. The reason for that, as the Senator 
understands, is we have worked this out with consumers and health 
professionals. We tried to find out what is needed from the consumers--
the people who have suffered--and also the health professionals who 
have tried to protect the consumers. We were out there listening.
  I will take these last two and yield the floor.
  Mrs. BOXER. I have two quick questions. One involves the largest 
State in the Union, and that is the State I represent. This is really 
key. We have 33 million people living in California. How many of them, 
percentagewise, will not be covered by this Republican plan?
  Mr. KENNEDY. It just so happens I have that information: 18 million 
privately insured persons, 18.6 million; 14,477,000, 77 percent of the 
people of California will not be covered if our amendment is not 
successful--77 percent of the people in California.
  Mrs. BOXER. I think it is very important that the people in my home 
State understand that the Republican plan does not do anything for very 
many of them.
  The second question I have deals with children. As the Senator from 
North Dakota pointed out, we do have national laws. This is one Nation, 
under God, indivisible, and we do have national laws. I find it 
unbelievable that colleagues on the other side--a couple came over and 
said: States are taking care of all these issues.
  I want to talk about children. Every Senator in this body I know 
cares about kids. I know they care about kids. They care about their 
own kids, their grandkids, and the kids they represent. I ask my friend 
to elaborate on this. If we can have child labor laws which say you 
cannot hire a child, you have to wait for a certain age, and when you 
do, there are certain rules that apply, should we have a national law 
that protects every child in this country so if that child comes down 
with a cancer, they are not told by their HMO: Go see a general 
surgeon; you don't need a pediatric surgeon?
  I know my friend has had experience with this. Can he talk just a 
moment about why the Democratic plan is for the children of this 
country and the Republican plan is a sham?
  Mr. KENNEDY. As the Senator knows, the kinds of protections for 
children are included, including the preventive programs, specialty 
programs, the clinical trial programs, and the specialty care programs. 
Our good friend, Senator Reed, is one of our real experts on these 
issues. The range of different protections and guarantees is out there 
for children. That is why every child's health group supports our 
program.
  But let me mention something of interest that is on point. The Senate 
has just accepted the amendment of the Senator from Maine on the issue 
of mastectomies. In her amendment it says:

       [I]n order to provide for uniform treatment of health care 
     providers and patients among the States, it is necessary to 
     cover health plans operating in 1 State as well as health 
     plans operating among [all] States.

  So perhaps we could find a distinction. I know the Senator believes 
strongly that is the kind of coverage we should have for women. But 
could the Senator possibly explain to me how we could justify 
supporting that particular provision and not say we need similar 
protection for children? Are we missing something on this? They will 
say: We will do it for this.
  Right above that it says:

       [H]ealth care providers located in a State serve patients 
     who reside in the State and [also] patients who reside in 
     other States. . . .

  What they are acknowledging is, people move from State to State, so 
they are going to provide for them.
  It talks about the amendment covering all health plans. What is the 
rationale? Can the Senator tell me?
  Mrs. BOXER. The only rationale I could find--I was here when my 
friend asked Senator Abraham the same question--this Republican plan 
has been pieced together. It makes no sense. It is a political 
response, I believe, to the Democratic proposal. They looked at this 
issue, and they said: OK, when it comes to mastectomies, we'll make our 
plan apply to everybody.
  But, by the way, if you get ovarian cancer, under the Republican plan 
you do not get the benefits. If a man gets prostate cancer, he doesn't 
get the benefits. If you are a little child and you have a rare form of 
cancer, like one of my constituents, Carley Christie--and there were 
only a couple doctors who knew how to handle it--you are out of luck.
  They say leave it to the States? Fine. If the States want to do a 
good job, we are happy. We are just setting a floor in this bill, as 
the Senator from Massachusetts points out.
  So I can only respond by saying their approach is pieced together. It 
is a political response to a real issue. They are doing the least they 
can do to try to say, with a straight face, they have done something. 
The bottom line is, their bill is hollow, and if my friend's amendment 
does not pass, it will make virtually no difference to most of the 
people in this country.
  Mr. KENNEDY. I finally yield to the Senator.
  Mr. WELLSTONE. I was going to hold up my own chart, but I would 
rather ask the Senator from Massachusetts, could you just give me the 
figures?
  Mr. KENNEDY. You have your Minnesota figures there.
  Mr. WELLSTONE. I enjoyed when you said: I just happen to have figures 
here.
  Mr. KENNEDY. As the Senator well knows, the State of Minnesota has 
3,400,000 privately insured persons and 1,986,000 not covered. So you 
are going to have some 58 percent--58 percent will not be covered.
  Mr. WELLSTONE. The reason I asked my colleague for those figures is, 
that is over half the State's population.

[[Page S8461]]

  Minnesota does better than some other States in terms of the number 
of families that would be covered under the Republican plan because we 
have more people who are self-insured.
  But let me just be clear about this. The Senator from Massachusetts 
has made it clear that our amendment provides basic protection for 
every family in the country. We want some kind of floor. Any State that 
wants to do better, any State that wants to do better by way of 
protecting children, more access to specialty services, stronger 
consumer protection, can do so. But this amendment is an amendment to 
make sure that every family in the United States of America has some 
basic protection. Is that correct?

  Mr. KENNEDY. The Senator is correct.
  Mr. WELLSTONE. Let me just ask the Senator from Massachusetts one 
more question to finally put this debate in sharp focus--if we are 
going to have a debate. I do not know that we will.
  Do you believe there is some correlation between the fact that the 
plan we now have on the floor of the Senate, the Daschle-Kennedy 
Democratic plan, altogether covers an additional 113 million people and 
the Republican plan only covers 48 million people altogether? The 
Republican plan provides as little coverage as possible to people. Is 
that why all the consumer organizations, all the provider 
organizations, doctors and nurses, support our plan and the insurance 
industry is the only interested party that supports the Republican 
plan? Do you believe there is any correlation on this whole question of 
how many people are covered?
  Mr. KENNEDY. I think the Senator is correct in his statement. It is 
basically because the industry is putting its profits ahead of the 
protection of the patients.
  We had reaffirmation yesterday, in an indirect way, with the 
publication of an article in the medical journal JAMA, that says the 
for-profit HMOs provide a good deal less service for the coverage of 
individuals than those which are not-for-profit. It is, I think, a kind 
of intuitive, self-evident factor that this is taking place.
  I would be glad to yield time.
  Mr. WELLSTONE. I would like to take 3 more minutes if I may.
  Mr. KENNEDY. I am advised by my friend and colleague, 2\1/2\ minutes.
  Mr. WELLSTONE. That is fine. That is all we have left?
  Mr. REID. We have 7 and a half minutes.
  Mr. WELLSTONE. I will do it in 1 minute. Then I will pass it on to 
others.
  Let me just finish my line of questioning by saying here on the floor 
of the Senate that one of the things I have been most interested in as 
a Senator from Minnesota is reform and how to revitalize democracy, how 
to make sure that the Government belongs to the people, how to make 
sure that the Senate belongs to the people.
  I really do believe that this vote on this amendment about whether or 
not we are going to cover all the families in our country and provide 
them with some basic protection, so that they can make sure they 
themselves and their loved ones receive the care they need and deserve, 
is a test case as to whether or not we have a system of democracy for 
the many or democracy for the few.
  This vote ultimately is about more than health care. This is a vote 
about whether the Senate belongs to people in Minnesota and people in 
Massachusetts and people in New York and people in North Carolina or 
whether it belongs to the insurance industry. It is that simple.
  I hope every citizen will hold all of us accountable for how we vote 
and whom we represent and for whom we fight.
  I yield the floor.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. On behalf of Senator Kennedy, I yield 2\1/2\ minutes to 
Senator Dorgan.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. REID. Could we change that to 2 minutes.
  The PRESIDING OFFICER. The Senator from North Dakota is recognized 
for 2 minutes.

  Mr. DORGAN. Senator Kennedy has been talking about the issue of the 
number of Americans who would be covered under these two competing 
proposals. The point I have made in the past in quoting the USA Today 
editorial is the same point that a number of us have made: The fact is, 
our opponents' plan does not cover most of the American people. They 
say: Well, the States provide protection for those their bill leaves 
out. But the facts do not bear that out.
  My preference would be that if they do not want to legislate in the 
area of health care, just say that. Do not make a pretense of coming 
over here and saying, we support all these issues, we support each and 
every one of them but then vote against the kinds of reforms that will 
really accomplish them.
  My understanding is that the amendment we just agreed to by Senator 
Snowe on the issue of breast cancer covers everyone in the country. Why 
cover all Americans on just that issue? Apparently you are willing to 
provide some protection for everyone on only that one issue but you are 
unwilling to cover everyone when it comes to all of the other issues. I 
do not understand that.
  I wish I had the time to again show you the pictures of real victims 
of our current system to illustrate that this debate is not about 
theory; it is about real people. Unfortunately, I do not have the time. 
But this debate is about what kind of treatment patients will get in a 
health care system that in some cases--not in all, but in some cases--
has put profits ahead of patients' medical needs.
  Some in this Chamber say these stories don't matter. We stand with 
insurance companies. We stand with profits, and we don't believe 
patients need protection.
  Others of us believe very strongly that it is time to provide the 
kinds of protections on a uniform basis that patients ought to expect 
when they purchase insurance or when they receive insurance through 
their employer.
  Again, to those who have spent this week fuzzing up this debate, if 
you don't like the Federal Government legislating in this area, just 
say that. Don't bring a bunch of empty vessels to the floor of the 
Senate and then pretend they do something because you know better.
  The PRESIDING OFFICER. The Senator's 2 minutes has expired.


                         Privilege Of The Floor

  Mr. REID. Mr. President, I ask unanimous consent that Joshua Segall, 
an intern in the office of Senator Paul Wellstone, be granted the 
privilege of the floor today.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. How much time does the minority have?
  The PRESIDING OFFICER. The Senator has 6 minutes.
  Mr. REID. Mr. President, I yield 2 minutes to the Senator from New 
York and, following that, 2 minutes to the Senator from Massachusetts.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. I thank the Senator from Nevada.
  There are two crucial numbers to look at as we debate this entire 
bill: 48 and 161--48 million Americans covered by the Republican plan, 
161 million Americans covered by the Democratic plan. We are saying 70 
percent of all Americans will get no protection.
  Do we say 70 percent of all Americans are not covered by minimum 
wage? Do we say 70 percent of all Americans are not covered by Social 
Security? Do we say 70 percent of all Americans do not get child labor 
laws applied to them, do not get the Clean Air and Clean Water Acts 
applied to them? I have never heard anything such as this in my life--
take a proposal needed by all people and arbitrarily say 30 percent of 
Americans will be covered and 70 percent of Americans will not.
  This vote on the amendment of the Senator from Massachusetts will be 
the most crucial vote in the entire debate, because it will determine, 
do we really wish to cover all Americans.
  Should only 30 percent of Americans get the right to emergency room 
care? Should only 30 percent of Americans get the right to see a 
specialist? Should only 30 percent of women get to treat an OB/GYN as 
their primary care specialist? Who would agree with that?
  Anyone who votes against the amendment of the Senator from 
Massachusetts, anyone who votes for the Republican plan is arbitrarily, 
unfairly,

[[Page S8462]]

and inhumanely cutting off 70 percent of all Americans.
  The cost: $2 a month. The cost argument is bogus.
  The real issue is, who will be covered and who will not be. Under 
this plan, we cover 161 million; they cover 48 million.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SCHUMER. Nothing more must be said.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KERRY. Mr. President, this is, indeed, the most important vote 
with respect to this issue. I congratulate my colleague from 
Massachusetts for his extraordinary leadership in putting this issue 
before the American people.
  It is extraordinary to me; in the years I have been in the Senate, I 
think this is perhaps the single most contradictory, craven moment, in 
some regards, before the Senate. To come to the Senate and suggest you 
are going to have a Patients' Bill of Rights that in State after State 
after State leaves out 77, 80 percent, 89 percent of the American 
people is a contradiction on its face that denies any kind of 
reasonableness. I think most people in America will understand that our 
colleagues on the other side of the aisle have spent more time and 
energy protecting the right to bear arms than the right for citizens to 
get decent medical care.
  What will happen in this legislation if the Republican charade 
passes--and they have the votes--is, once again, the American people 
will be left behind and business--and business only, the bottom line--
will be the victor.
  They are going to suggest there are costs, there is administrative 
overhead. We are going to go through the whole ``Harry and Louise'' 
thing again. Literally millions of dollars are being spent to scare 
Americans and confuse them.
  When it is convenient for the Republicans, they love the 
Congressional Budget Office. The Congressional Budget Office provides 
the best figures, the most neutral and independent assessment of 
expenditures. But here, the Congressional Budget Office comes out and 
says the real costs of this are only 3 to 13 cents per month per 
beneficiary. There isn't an American I know who wouldn't pay 3 to 13 
cents to have the decent kind of coverage and the protections they need 
in order to guarantee that coverage in a health care system that has 
run amok.
  The PRESIDING OFFICER. The Senator's time has expired. Who yields 
time?
  Mr. KENNEDY. Mr. President, how much time remains for each side?
  The PRESIDING OFFICER. The Senator from Massachusetts has 2 minutes, 
and the Senator from Tennessee has 15.
  Mr. KENNEDY. I yield 2 minutes to the Senator from Illinois.
  Mr. DURBIN. Mr. President, this amendment really gets to the heart of 
the debate: how many Americans will we leave behind when it comes to 
reforming our health insurance protection.
  Senator Kennedy and Senator Daschle offer an amendment which will 
reform health insurance plans across the country. The Republican side 
of the aisle would leave behind 113 million Americans. They argue that 
these families should not be protected by a national standard. Just by 
accident of birth or residence, some people would be disqualified.
  Who are we talking about? We are talking about people such as the 
self-employed, small businesspeople, and farmers, those who have a 
tough enough time securing health insurance. They pay higher premiums 
for it, and they are not in a good position to really bargain when it 
comes to buying their health insurance.
  This amendment gets to the heart of which party and which approach 
really care for American families and the challenges they face. I 
support Senator Kennedy and Senator Daschle in this effort.
  I just left the chatroom right off the floor of the Senate, where 
people have been, through the Internet and by telephone, calling in 
from across the United States. I think many people on the Republican 
side of the aisle have not really taken into consideration how 
important this issue is to Americans. They can vote with the insurance 
industry, and a Republican majority can defeat us on these amendments, 
but eventually they will have to go face the same families who I have 
spoken to and who write to my office--families who worry on a daily 
basis about whether their doctors are making medical decisions or the 
decisions are being made by insurance company professionals.
  This amendment, which is about protecting all insured Americans, is 
one I am proud to support. The idea of picking and choosing the winners 
and losers across America is inconsistent with the policy that we 
should have coming out of this Chamber.
  I hope a handful of Republican Senators will come forward and join 
the minority on the Democratic side and enact a bipartisan approach 
that is sensible.
  The PRESIDING OFFICER. The Senator's time has expired. Who yields 
time?
  Mr. FRIST. Mr. President, I yield myself 2 minutes, followed by 
Senator Gramm for 10.
  The issue we are talking about is an amendment which came on the 
floor about 50 minutes ago. We are currently looking very carefully at 
that amendment. It is the first time we have seen the amendment. It 
comes down to a critically important issue, and that is one of scope.
  We have a Patients' Bill of Rights. We have spent much of yesterday 
and the day before and this morning on what those rights should be. Are 
they consumer protections? Are they patient protections, gag clauses, 
access to specialists, access to emergency rooms, poststabilization in 
emergency rooms, continuity of care? We have talked about the issues of 
the internal and external appeals process. All are very important.
  Now we turn to this underlying discussion of scope. We have heard 
again and again that our bill excludes a large number of people. No. 1, 
the whole information section of our bill applies to all 124 million 
people, the information to understand what is in that insurance policy, 
in that contract.
  On the whole issue of genetic discrimination, something the other 
side has not even mentioned, again we apply it to all 124 million 
people. Why? Because it has not been adequately addressed in the United 
States of America today because projects such as the human genome 
project are just coming on line. Yet in advance we want to make sure 
that an insurance company does not use a predictive test in some way to 
either exclude somebody or raise policies.
  No. 3, the internal and external appeals process, the whole 
accountability process, grievance procedures, inside, outside, applies 
to all 124 million people.
  The issue which has been discussed over the last 40 to 45 minutes is 
that of the 48 million people who are uncovered today by State plans, 
cannot be regulated by State plans. It is to those 48 million people 
that we address the patient protections of gag clauses, access to 
emergency rooms, continuity of care, poststabilization in the emergency 
room. That is the focus. In our bill, internal and external appeals 
covers everybody; discrimination, everybody; information, everybody; 
recover the uncovered, regulate the unregulated.

  I yield 10 minutes to the Senator from Texas.
  Mr. KERRY. Mr. President, will the Senator from Texas yield before 
starting?
  Mr. GRAMM. Mr. President, we have now listened to the minority use up 
their time. I think it is time for us to speak. So with all due 
respect, I didn't ask for them to yield on their time. I don't yield on 
my time.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mr. GRAMM. Mr. President, we have heard, for the last hour, in almost 
tearful terms, our colleagues talk about how in the amendment they now 
have before us ``we are down to the heart of what separates the two 
parties.''
  Well, I don't know whether it is the heart, or the lungs, or the 
liver, but we are sure down to what separates the two parties. Our 
colleague from Massachusetts has a sign that talks about how we are not 
protecting Tennessee. That is interesting because Tennessee protected 
itself by electing one of the Nation's premier physicians to represent 
them in the Senate and to become the Nation's foremost spokesman

[[Page S8463]]

on health care. Yet Senator Kennedy believes he is somehow here to 
protect the people of Tennessee. I don't think they elected Senator 
Kennedy. I think they elected Senator Frist. I think they elected him 
because he does represent their views.
  What is in this amendment that is supposed to be the heart of what 
defines the two parties? Well, it is very interesting. It is about two 
things. No. 1, they want to raise taxes about $5 billion. That does 
define the difference between the two parties. Whether it is the heart 
of the difference, or some other body part, I don't know. But the first 
thing that is different--and they are speaking in such passionate, 
tearful tones about it--is they want to raise taxes by $5 billion on 
this amendment.
  So to take them at their word, if you want to know the difference 
between the two parties, the difference between the two parties is that 
they, by their own words and deeds and amendments, are the party that 
wants to raise taxes in the Senate. The tax burden is at the highest 
level in American history, but it is not high enough to suit them. They 
want $5 billion, and they want to take it $50 per household in America, 
and they want it in this amendment. That is the first thing they say 
defines the heart of the difference between the two parties.
  The second thing they say defines the heart of the difference--and I 
agree with them--is that when they read the Constitution, they quit 
reading too soon because what the Constitution says in the tenth 
amendment is that those powers not specifically delegated to the 
Federal Government are reserved for the States and for the people.
  Why is that relevant? Why it is relevant is, despite all the efforts 
to confuse people, under existing law, the States regulate insurance. 
There is a Federal statute that carves out between 40 and 50 million 
insurance policies where the companies actually underwrite the 
policies--a law called ERISA--where the Federal Government in these 
circumstances established its primacy and its jurisdiction so that the 
State legislature of Tennessee, and the State legislature of Texas, and 
the State legislature of all the States in the Union are prohibited 
from legislating in these ERISA plans where the company assumes 
liability for the insurance.
  What we have done in our bill is, where the States can't reach, we 
have passed a bill that guarantees patients' rights, including the one 
right the Democrats preclude. The Democrats will let a patient look in 
the phone books' Blue Pages and call the Government if they are unhappy 
with an HMO, and they will let them look under ``attorneys'' in the 
Yellow Pages and hire an attorney if they are unhappy with an HMO; but 
the Democrats don't give them the freedom to fire the HMO. We give them 
that freedom.
  Now, we have written a bill that is aimed at dealing with the part of 
this problem that comes under the Federal Government. Our Democrat 
colleagues are very unhappy because they want a national health plan. 
They believe Senator Kennedy and President Clinton know everything 
there is to know about health care, that Dr. Frist knows nothing about 
health care, and they would like to write health care policy for Texas.

  Now, they want to do it without the inconvenience of having to move 
to Texas, pay taxes in Texas, and run for office in Texas. They want to 
assume that if you are elected to the Senate from Massachusetts, that 
allows you to tell people in Tennessee how insurance ought to be 
regulated, and that allows you to tell people in Texas how things ought 
to be. Now, Texas has already passed a comprehensive patients' bill of 
rights, but that doesn't stop those elected to the Senate from some 
other State from the right to come in and say to Texas: You don't know 
what you are doing, you don't know anything about health care, and you 
don't care about the people of Texas.
  Having been elected in Massachusetts, they care about people from 
Texas; but they believe the people in the senate and the house of the 
Texas Legislature are somehow deficient in caring to suit them. So the 
second thing they differ on is that while States throughout the Union 
have tried to tailor their programs to meet their individual needs, the 
Democrats would have us say: Take everything Texas has done, everything 
Maine has done, everything the 43 States have enacted, and the other 
States that are about to act, and throw it in the trash can because all 
wisdom emanates from Washington.
  So this ``heart'' of the difference between the two parties that we 
have been listening to for an hour really boils down to two 
differences. They want to raise taxes by another $50 per family on the 
amendment they just offered and they want to say to States: We are 
going to take away from you a right that has been historically 
guaranteed under Federal law and under the tenth amendment to the 
Constitution, which allows States, in the area of insurance where they 
regulate, to state their own policy, to decide what kind of policies 
they want operating within their own State borders.
  Our colleagues have decided taxes are too low and that we don't have 
enough Federal regulation. So what they would do is attempt to 
substitute Federal mandates for what our Texas Legislature has decided, 
which would be dictated and enforced by Federal bureaucrats.
  With all due respect, who is doing a poorer job than HCFA in 
regulating health care in America? Who is doing a poorer job than we 
are doing at the Federal level?
  Our approach is an approach which says where we have responsibility, 
where only we can deal with a problem, we have put together a 
comprehensive program that makes sense. Granted, we didn't do a public 
opinion poll; we didn't get together focus groups and try to say if you 
ran a 30-second TV ad on this subject, would people tend to agree with 
it? We have Dr. Frist. We have Susan Collins. We have Jim Jeffords. We 
sat down for over a year with people who knew something about the 
problem and we wrote a bill we believe people will be glad we wrote 10 
years from now. But the reality is that there are two differences 
Democrats want to highlight today. There are two things they claim 
represent the heart of what separates the two parties.
  They believe taxes ought to be higher. So they raise taxes by $5 
billion with this amendment.
  Second, they don't believe that Maine ought to set its health policy. 
These people in Maine don't understand health, and they don't care 
about people in Maine. Only people in Massachusetts care about people 
in Maine. Only people in Massachusetts care about people in Texas. And 
we don't understand it.
  They are right. We don't understand it. We don't accept it. We reject 
it.
  If the best they can do in telling us what is right with them and 
what is wrong with us is that they want higher taxes and they want to 
tell every State in the Union how to run health care, they are going to 
be in the minority a very long time.
  I reserve the remainder of my time.
  Mr. KERRY. Mr. President, will the Senator yield for a dialog?
  The PRESIDING OFFICER. Who yields time?
  Mr. JEFFORDS. Mr. President, I yield 10 minutes to the Senator from 
Wyoming.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. KERRY. Mr. President, I believe I asked a question.
  Mr. GRAMM. The Senator has no time.
  Mr. ENZI. Mr. President, I ask unanimous consent that I not be 
interrupted.
  The PRESIDING OFFICER. The regular order is that the time shall be 
controlled by the managers, and time has been yielded to the Senator 
from Wyoming.
  Mr. KERRY. Parliamentary inquiry, Mr. President.
  Mr. GRAMM. Could we have regular order, Mr. President?
  The PRESIDING OFFICER. The Senator is unable to propound a 
parliamentary inquiry. Time has been yielded to the Senator from 
Wyoming.


                         Privilege of the Floor

  Mr. ENZI. Mr. President, I ask unanimous consent that Patrick 
Thompson, my HELP subcommittee staff person, and Mark Battalini, my 
legislative fellow, be granted floor privileges during debate on S. 
1344, the Patients' Bill of Rights.
  The PRESIDING OFFICER. Without objection, it is so ordered.

[[Page S8464]]

  Mr. ENZI. Mr. President. I rise in opposite to this amendment. Among 
the handful of principles that are fundamental to any true protection 
for health care consumers, probably the most important is allowing 
states to continue in their role as the primary regulator of health 
insurance.
  This is a principle which has been recognized--and respected--for 
more than 50 year. In 1945, Congress passed the McCarran-Ferguson Act, 
a clear acknowledgement 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 enforces 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. State 
legislatures are watching, wondering how far we are going to dip into 
their authority.
  As recently as this year, this matter of fact was re-affirmed 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 hooks. 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 time 
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--kind of a one-size-fits-
all plan. It was complicated before.

  This is an overlay of how the plan will work under the Democratic 
plan. It is considerably more complex and considerably tougher to deal 
with. It is being suggested that our local needs would be magically met 
by stomping on the good ground of the States that have kept it simple 
and have the bureaucracy already in place.
  It is being suggested the American consumers would prefer to dial a 
1-800 number to nowhere versus calling their State insurance 
commissioner, real people who can be talked to each time you call. You 
don't have to repeat the same ground to bring them up to speed on where 
the problem is, and chances are because they know you they will get it 
solved right away. They are the people you meet 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 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.''
  That is a name you hear thrown around a lot because HCFA has some 
problems. HCFA is as much as 10 years late in sending out some notices 
which they need to send. They are already overburdened. If you don't 
believe me, talk to the people who are working with home health care, 
another area of health that is very important. They will tell you how 
HCFA is able to solve their problem. They are going out of business 
because of HCFA.
  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.
  And you want to give them all of this now, too?
  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 1997.
  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--let alone complicating it such 
as this.

  To me, the message is pretty clear. Expanding the role of the Federal 
Government well beyond its lawful authority would be a big mistake.
  The scope of Federal authority under the Employment 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 117 
million Americans currently protected by State health insurance beg to 
differ.
  Our Federal responsibility lies with those 48 million consumers who 
fall outside the jurisdiction of the State regulation. That is our 
scope. That is our charge. That is what the States are politely 
reminding Members of now. If we go through with this, they may remind 
us less politely.
  In March of this year, the National Association of Insurance 
Commissioners implored Members to not make a mess of what they have 
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 within their own states. We do not want states 
     to be preempted by Congressional or administrative actions.

  I am stunned that their pleas is so easy for some to ignore.
  I yield the floor.
  Mr. JEFFORDS. I yield 10 minutes to the Senator from Maine.

[[Page S8465]]

  The PRESIDING OFFICER. The Senator from Maine is recognized for 10 
minutes.
  Ms. COLLINS. Mr. President, I start by commending the Senator from 
Wyoming for his excellent statement. He has provided Members with a 
very clear explanation of the issue that is before the Senate.
  I am disappointed to hear my friends and colleagues from the 
Democratic side of the aisle once again completely disregard and, 
indeed, belittle the tremendous efforts that the 50 States have made to 
protect health care consumers. It is disappointing to once again hear 
Senator Kennedy completely ignore the good work of the States in this 
area.
  The health committee bill builds upon the good work that the States 
have undertaken to protect health care consumers. Our legislation 
provides the key protections that consumers want, without causing costs 
to soar so high that we add to the growing number of uninsured 
Americans. We would apply the protections responsibly where they are 
needed.
  Current Federal law prohibits States from acting to regulate and to 
provide consumer protections in self-funded plans. They are covered by 
Federal law, by ERISA, which specifically prohibits the States from 
acting in this area.
  The States have had the primary responsibility for regulation of 
health insurance since the 1940s, more than 50 years. I served for 5 
years in State government as commissioner of a department that included 
the Bureau of Insurance. I know how hard the civil servants at the 
Bureau of Insurance worked to protect Maine consumers. I know Maine 
health care consumers who are having problems with their insurance 
companies' coverage or have a dispute would rather call the Bureau of 
Insurance in Gardiner, ME, than have to go through the maze of the 
ERISA office in Boston. That is what this debate is about.
  The fact is, the States have done a good job of responding to the 
needs and concerns of their citizens. In fact, every single State has 
debated and enacted legislation to protect health care consumers. That 
has been totally ignored by our friends on the other side of the aisle.
  This chart shows the enormous number of State laws regulating health 
insurance. There are more than 1,400 State health insurance mandates--
more than 1,400. Every single State has enacted legislation to protect 
health care consumers by mandating either specific coverages or 
specific procedures. It is not as if the States have ignored this 
responsibility. In fact, they have acted far ahead of Washington. They 
have acted without any prod from Washington. They have acted 
responsibly and swiftly--indeed, much more quickly than we have--to 
protect their consumers.
  The next chart shows State laws protecting parties are extremely 
common. This chart demonstrates 47 States have passed laws prohibiting 
gag clauses that restrict communications between patients and their 
doctors. This is something I think every single Member of the Senate 
can agree on: Gag clauses should be prohibited. Mr. President, 47 
States have acted to do just that; 50 States have consumer grievance 
procedure laws; 28 have external appeals; 36 have direct access to OB/
GYN; 40 States have provisions dealing with access to emergency rooms.
  The States have acted. They have acted in a way to tailor their laws 
to the problems within their particular State. These problems vary from 
State to State. We have rural States such as those represented by my 
friend from Wyoming which do not have a high penetration of managed 
care. Therefore, imposing all these burdensome new regulations is not 
necessary. In other States where managed care represents a high degree 
or a high concentration of the coverage provided, there may be a need 
for many more State laws.
  The point is that the States have acted. They have acted without any 
mandate or prod from Washington, and they have acted in a way so as to 
tailor their laws to their marketplace. One size does not fit all. We 
do not know what is best for every State-regulated plan. What may be 
appropriate in one State may not be necessary in another.
  A State that has been mentioned today, Florida, provides for a direct 
access to a dermatologist. That is because Florida has a very high rate 
of skin cancer. That mandate makes a great deal of sense in the State 
of Florida. It does not make much sense in many northern States where 
other problems occur and need to be addressed.
  That is why the National Association of Insurance Commissioners, 
which is a bipartisan group, supports the approach that we have taken 
in our health committee bill. In a March letter to the chairman of the 
health 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 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 the approach taken in our Republican bill. We 
recognize the States cannot protect those health care consumers who are 
covered in self-funded ERISA plans. That is why we need to act on the 
Federal level. That is why we need to pass health care protections to 
reach those consumers whom the States cannot protect.
  We received a letter today from the Republican Governors' 
Association. I ask unanimous consent to have that letter printed in the 
Record following my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See Exhibit 1.)
  Ms. COLLINS. Let me quote from the letter because I think it captures 
the issue before the Senate.

       As Congress begins debate on managed care reform 
     legislation, we would like to emphasize our confidence in 
     states' achievements in managed care and ask that any 
     legislation you consider preserve state authority and 
     innovation. We applaud the Republican Leadership's efforts to 
     complement the states' reforms by expanding managed care 
     protections to self-insured plans without preempting state 
     authority.
       Historically, regulating private insurance has been the 
     responsibility of the states. Many, if not all of the ideas 
     under consideration now in Congress, have been considered by 
     states. Because the saturation of managed care is different 
     throughout the nation, each state has its own unique issues 
     relative to its market place. We have concerns about the 
     unintended consequences of imposing one-size-fits-all 
     standards on states which could result in increasing the 
     number of uninsured and increasing health care costs.
       As Governors, we have taken the reports of abuses in 
     managed care seriously and have addressed specific areas of 
     importance to our citizens.

  That is exactly the issue before us. We do need to act to protect 
those consumers who are beyond the reach of State regulation. We do not 
and should not act to preempt the good work done by our States.
  Another issue that is before us, raised by the Kennedy one-size-fits-
all approach, is what if a State has made an affirmative decision not 
to act in one of the areas which Senator Kennedy would impose upon that 
marketplace? What if the legislature, perhaps even a legislature 
controlled by the Senator's own party, has reached the decision that a 
particular mandate is not appropriate for that State and would increase 
health care costs?
  The PRESIDING OFFICER. The time of the Senator has expired.
  Ms. COLLINS. Mr. President, I yield the floor. I know there are 
others waiting to speak. I reserve the remainder of my time.

                               Exhibit 1


                             Republican Governors Association,

                                    Washington, DC, July 14, 1999.
     Hon. Don Nickles,
     Assistant Majority Leader, U.S. Senate,
     U.S. Capitol, Washington, DC.
       Dear Senator Nickles: As Congress begins debate on managed 
     care reform legislation, we would like to emphasize our 
     confidence in states' achievements in managed care and ask 
     that any legislation you consider preserve state authority 
     and innovation. We applaud the Republican Leadership's 
     efforts to complement the states' reforms by expanding 
     managed care protections to self-insured plans without 
     preempting state authority.
       Historically, regulating private insurance has been the 
     responsibility of the states.

[[Page S8466]]

     Many, if not all of the ideas under consideration now in 
     Congress, have been considered by states. Because the 
     saturation of managed care is different throughout the 
     nation, each state has its own unique issues relative to its 
     market place. We have concerns about the unintended 
     consequences of imposing one-size-fits-all standards on 
     states which could result in increasing the number of 
     uninsured and increasing health care costs.
       As Governors, we have taken the reports of abuses in 
     managed care seriously and have addressed specific areas of 
     importance to our citizens. As you know, some analysts 
     estimate that private health insurance premiums could grow 
     from the current 6 percent to double-digit increases later 
     this year. This does not include the costs of any new federal 
     mandates. Health resources are limited.
       We hope the Congress' well-intended efforts take into 
     account the states' successful and historical role in 
     regulating health insurance.
           Sincerely,

                                                Frank Keating,

                                             Governor of Oklahoma,
                                                         Chairman.

                                                   Ed Schafer,

                                         Governor of North Dakota,
                                                    Vice Chairman.

                                                Don Sundquist,

                                            Governor of Tennessee,
                              Chairman RGA Health Care Issue Team.

  Mr. JEFFORDS. Mr. President, I rise to alert those who followed the 
minority's debate earlier. It was not only confusing but most 
inaccurate as to scope. The Democrats claim: ``The Republican plan 
would only apply to 48 million Americans.''
  This is accurate for one aspect, but it ignores many extremely 
important provisions. Further, charges regarding actions by the 
insurance industry were not only inaccurate but totally baseless.
  Let me set forth what the scope of the protections actually is.
  The Republican plan contains nine major patient protection 
provisions. One of the nine major components has six new access 
standards to ERISA for the 48 million in self-insured plans that State 
consumer protection standards cannot reach.
  These include: the prudent layman's standard for emergency care; a 
mandatory point of service option; direct access to OB/GYNs; direct 
access to pediatricians; a continuity of care provision; and a 
prohibition of gag rules.
  The majority of Americans already enjoy these protections, since most 
of the states have already adopted these standards through their 
regulation of health insurance companies.
  The other major components of the Patients' Bill of Rights provide 
significant new protections for millions of Americans. Of these, some 
provisions are not even included in the Democratic bill. The provisions 
include:
  1. A new health plan comparative information requirement to benefit 
all 124 million Americans covered by group health plans under ERISA;
  2. Grievance procedures and internal and external appeal rights for 
all 124 million Americans covered by group health plans under ERISA;
  3. Providing all 140 million Americans covered by group and 
individual health plans with new rights that will prevent 
discrimination based on predictive genetic information; and
  4. Benefit all 270 million Americans by providing a stronger emphasis 
on quality improvement in our health care system with a refocused role 
for AHCPR.
  The GOP plan creates new enforceable federal health care standards to 
cover those 48 million of the 124 million Americans covered by ERISA 
plans that the states, through their regulation of private health 
insurance companies, under the McCarran-Ferguson Act of 1945, cannot 
protect. We feel that it would be inappropriate to set federal health 
insurance standards that not only duplicate the responsibility of the 
50 state insurance departments--but, that we know from a new GAO report 
won't be enforced.
  The Democrats, by contrast, would set health insurance standards that 
duplicate the responsibility of the 50 state insurance departments and 
mandate that HCFA enforce them if a state decides not to adopt them. 
Building a dual system of overlapping state and federal health 
insurance regulation is in no one's best interest.
  The federal regulators at HCFA have faced an overwhelming new set of 
health insurance duties under HIPAA. In the five states that have 
failed to or chosen not to pass the legislation required by HIPAA 
(California, Massachusetts, Michigan, Rhode Island, and Missouri), the 
HCFA is now required to act as insurance regulator for the state HIPAA 
provisions.
  A GAO report that I released found that HCFA officials have confessed 
that their agency has thus far pursued a ``minimalist'' approach to 
regulating health insurance standards under HIPAA, and they attribute 
its limited involvement to a lack of experienced staff, as well as 
uncertainly about its actual regulatory authority.
  There is a related concern that HCFA cannot fulfill its 
responsibilities for administering the Medicare program. At a July 
16th, 1998 House Ways and Means hearing, HCFA's administrator stated 
that she intended to postpone the development of a Medicare prospective 
payment system for outpatient hospital care and home health services; 
the consolidated billing for physician and other Medicare part B 
services in nursing homes; and a new fee schedule for ambulance 
services. Delaying the implementation of these mandates will result in 
many home health providers and other providers not receiving the 
reimbursement that they deserve. It will put many home health agencies 
in the position of having to chose between turning Medicare patients 
away and insolvency.
  Given HCFA's demonstrated inability to carry out its current 
responsibilities under both HIPAA and BBA, we believe it would be 
irresponsible to promise the American people that they will be able to 
receive new federal health insurance guarantees and then rely on HCFA 
to enforce these rights when we know they can't do the job.
  Our proposal, by keeping the regulation of health insurance where it 
belongs--at the state level--provides the American people with a real 
Patients' Bill of Rights that they know from their personal experience 
will be enforced. The principle that the states should continue to 
regulate the private health insurance market, and that Congress should 
only set health care standards in those areas where the states have 
been preempted, guided the design of the six access standards in the 
Republicans' Patients' Bill of Rights because we know it works.
  The PRESIDING OFFICER. The majority has 18 minutes remaining. Who 
yields time?
  Mr. JEFFORDS. I yield 10 minutes to the Senator from Nebraska.
  The PRESIDING OFFICER. The Senator from Nebraska is recognized for 10 
minutes.
  Mr. HAGEL. Mr. President, there is no issue more important to the 
American people than ensuring quality health care for themselves and 
their families. We all agree on that. It is the great common 
denominator in our society.
  All of us in this debate, my Democratic colleagues and my Republican 
colleagues, want to help the people we serve. We want every citizen to 
have access to good, affordable health care. As a member of the 
Republican Health Care Task Force, I am very proud of the bill the 
Republicans have brought to the floor, the Patients' Bill of Rights 
Plus.
  I think it is important that we focus on the completeness of what 
this bill is about, what it would do. This bill would increase the 
quality of health care, the accessibility of health care, and the 
affordability of health care for millions of Americans. Our bill 
protects 48 million Americans whose health care plans are not now 
covered by existing State regulations. Specifically, it provides the 
following:
  Guaranteed access to emergency room care; health plans would be 
required to use the prudent layperson standard for providing in-network 
and out-of-network emergency care.
  No. 2, guaranteed access to the doctor of your choice. Under our 
bill, these health plans must provide point-of-service and continuity-
of-care options that allow persons to see physicians outside of their 
health care network.
  No. 3, access to medication. Health plans would be required to 
provide access to noncovered drugs in cases where they are medically 
necessary and appropriate.
  No. 4, our plan provides access to specialists, and no gag clauses 
that restrict doctors from discussing treatment options with their 
patients. Health plans would be required to ensure that patients have 
access to covered specialty care within the network or, if necessary, 
through contractual arrangements with specialists outside

[[Page S8467]]

the network. If the plan requires authorization by a primary care 
provider, then the plan must have a defined referral and authorization 
process. Moreover, under our bill providers are given the unfettered 
right to discuss all treatment options with their patients.
  No. 5, guaranteed access to an OB/GYN specialist. Health care plans 
would be required to allow direct access to obstetricians/gynecologists 
and pediatricians without the need for referral or the plan's prior 
authorization.
  No. 6, timely appeals by patients who believe they were improperly 
denied coverage. This is a key part of our bill. Our bill would allow 
timely review of a patient's claim by medical experts not affiliated 
with the plan. In emergencies, the review would be within 72 hours. The 
decision of the outside review panel would be binding. This way, a sick 
or hurting patient gets the matter resolved now, quickly, rather than 
languishing in court proceedings for years in a typical lawsuit.
  No. 7, it guarantees consumers access to plan information. Our bill 
requires all group health plans to provide consumer information about 
what is covered, what is not covered, how much they will have to pay in 
deductibles and in coinsurance, and how to appeal adverse coverage 
decisions.
  No. 8, it protects patients from being discriminated against on the 
basis of genetic information. This is a very big part of why our bill 
is better. The Democrats do not cover this. Our bill expressly 
prohibits all health care plans and health insurers from collecting or 
using predictive genetic information about a patient or their family to 
deny insurance coverage or set premiums. The Democrats' bill has no 
such prohibition.

  No. 9, changes in the Tax Code to make health care coverage more 
affordable and increase the number of people with health insurance. 
Isn't that what we are about--bringing more people on our health rolls; 
making quality, accessible health care affordable? If we want to help 
increase access to health care, one thing we could do is change the Tax 
Code. The self-employed ought to be able to deduct 100 percent of 
premiums for themselves and their families. Our Patients' Bill of 
Rights Plus does exactly this.
  Our bill would give all Americans the opportunity to open a medical 
savings account, an MSA, to save for their health care needs. Many 
Americans work for employers who do not now offer health insurance, and 
they must pay for it out of their own pockets. An MSA would be a 
tremendous benefit for these individuals and would greatly expand the 
number of individuals with coverage for their health care needs. 
According to the General Accounting Office, nearly one-third of the 
participants in the MSA pilot program authorized by Congress a couple 
of years ago had been uninsured before utilizing these tax-free 
accounts.
  It is also time to enact full tax deductibility for premiums that 
cover long-term care. The average annual cost of caring for a person in 
a nursing home is $50,000. Stories, of course, are legion of people 
exhausting their access and resorting to Medicaid to pay for nursing 
care. We address this issue in our bill.
  What does the Republican bill not do? There are several important 
things that the Republican Patients' Bill of Rights does not do. Let's 
start with liability. The Republican bill achieves the proper balance 
between legal rights and affordability. Our bill would preserve one of 
the most important rights patients already possess, and that is the 
right to file a class action injunction to get coverage. The class 
action is one of the strongest protections of patient rights under 
ERISA.
  You cannot sue your way to better health care. Let me say it again. 
You cannot sue your way to better health care. Rare are the patients 
who can afford a legal challenge against a big, well-financed insurance 
company. Mr. President, 22 States including Nebraska, my State, have 
already refused to expand liability and open up the opportunity for 
countless, endless lawsuits.
  The Democrat bill would make employers liable for medical 
malpractice. That is an incredible thing. Their bill would make the 
employer liable for medical malpractice. Patients could sue the 
employer. I cannot think of a more certain way to drive up both the 
cost of health insurance and the number of uninsured. Small businesses 
are especially vulnerable. One huge claim could wipe them out 
completely. It is no surprise that in a verified recent poll of small 
businesses across this country, 57 percent of small businesses said 
they would drop their health coverage rather than expose themselves to 
ruin under the provisions of the Democrat health proposal.
  The scope? Our bill does not unnecessarily duplicate State 
regulations, which adds more Federal Government mandates and increases 
costs. We do not need more Federal mandates. We do not need more 
Government mandates. We need more options for the patients and better 
health care. Our bill targets the 48 million Americans who have self-
funded insurance policies. Democrats, including Vice President Gore in 
a recent CNN interview, and Senators, my friends on the other side of 
the aisle, have accused the Republican Senators of ignoring the roughly 
100 million Americans insured in other ways.
  If the Republican Patients' Bill of Rights is so good, my friend 
Senator Kennedy asks, then why doesn't the GOP offer it to everybody? 
The answer is quite simple: Not everybody needs what we are offering. 
State laws and insurance regulations protect the rights of patients in 
all other plans but not necessarily in self-funded plans. We protect 
the people who need the protection. The Democrats duplicate the plans 
and protections already available under State laws.
  Cost: Our focus should be on providing access to quality, affordable 
health care for more Americans. We heard a lot on the floor in the last 
few days about quality and access, but we have heard very little about 
affordability, who can afford health care, especially from those on the 
other side of the aisle who want to talk about this. Pricing people out 
of health insurance systems is no way to improve access.
  The rate increases that would hit individuals would also hit 
employers. Dramatic hikes in health care costs cost employees their 
jobs, and what are we doing for America when we throw people out of 
work?
  Back when I had a real job--and I did have a real job once; I was a 
small business owner--I remember poring over numerous health insurance 
plans to determine which were the best, which could I afford for my 
employees. I have yet to meet a small business owner who does not want 
to give their employees health insurance.
  In conclusion, as I said at the outset of my remarks, there is no 
issue more important to more Americans than ensuring quality health 
care for themselves and their families, but in an effort to improve 
health care, it makes no sense to drive up costs and leave millions of 
Americans without health insurance.
  I look forward to the passage of the Republican bill, the Patients' 
Bill of Rights Plus, and as one of the architects, one of the Senators 
who helped write it, I am very proud of it.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Craig). The Senator's 10 minutes has 
expired. Who yields time?
  Mr. NICKLES. Will the Senator yield me 1 minute?
  Mr. JEFFORDS. I yield 1 minute to the majority whip.
  The PRESIDING OFFICER. The majority whip, the Senator from Oklahoma.
  Mr. NICKLES. Mr. President, for the information of our colleagues, we 
are going to be voting on this amendment probably in another 10 
minutes. I urge my colleagues to vote no for all the reasons that have 
been so amply discussed by my colleague, Senator Hagel, just a moment 
ago, and Senator Collins earlier, Senator Gramm, Senator Enzi, and 
others.
  They are exactly right. We should not have ``one size fits all'' or 
``Government knows best.''
  There are a couple other reasons why they should vote against the 
Kennedy amendment. It is a big tax increase. I look at page 14, section 
(H) and there is a tax increase, a tax increase that boils down to 
about $3.5 billion over the next 10 years. Section (I) on page 14 is a 
tax increase that is $1.2 billion over 10 years. Section (J), page 16, 
another tax increase of $288 million over 10 years. If you add all that 
together, this amendment we will be voting on increases taxes by $5 
billion. I urge my colleagues to vote no on this amendment.

[[Page S8468]]

  I thank my friend and colleague from Vermont. I compliment him for 
his outstanding leadership.
  Mr. JEFFORDS. I yield 5 minutes to the Senator from Pennsylvania.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized 
for 5 minutes.
  Mr. SANTORUM. I thank the Chair.
  Mr. President, I, too, congratulate all those who have spoken. I do 
not want to repeat what has been said. They said it well. In the 
Republican bill we are not leaving 100 million people uncovered. The 
fact of the matter is, the States that have the authority under the 
law, under the Constitution, and under the McCarran-Ferguson Act, to 
regulate insurance do the job and do it very well.
  What this is all about, in my mind, is arrogance. This is about 
people walking around in Washington, DC, thinking: This is the center 
of the universe, and unless we decide what is best for all of you, you 
cretins out there in central Pennsylvania or in Wyoming or in 
Tennessee, you folks just do not understand what we, the enlightened in 
Washington, know what is best for you. So we are going to impose on 
you, State legislators, insurance commissioners, what we think you 
should be doing, even though you have gone through the process, an 
exhaustive process.
  Pennsylvania went through an exhaustive debate in the House and the 
Senate and with the Governor on what kinds of patient protections they 
were going to provide for the people who were covered by State 
insurance, those 100 million people who are ``uncovered.''
  For the people in Pennsylvania, rest assured, there was a fine 
Patients' Bill of Rights passed by the Pennsylvania Legislature and 
signed by Governor Ridge. In fact, I spoke with the sponsor of that 
bill over the weekend. He came up to me and said: Rick, please, please, 
don't pass a bill that is going to wipe out what we so carefully 
crafted that we believe is in the best interests of Pennsylvania.
  Dr. Tim Murphy, the sponsor of the bill in the Pennsylvania Senate, 
someone who I think cares deeply about the concerns of children and 
concerns of the well-being of Pennsylvanians, said: Please, don't 
undermine what we have done. Don't put a layer of bureaucracy, the 
Health Care Financing Administration, overseeing the kinds of patient 
protections we have passed in Pennsylvania. Please, let us do what we 
do well, and if there are problems, we will deal with them, we will 
come back, and we will revisit this issue--just like the issue here is 
not over. But give us some credit that we know what is going on in our 
own States. We care about the people in Pennsylvania more than Senators 
from California or from Louisiana or from Massachusetts. We care about 
our people because they are our constituents.

  We see a lot of examples of arrogance in Washington, of the ``we know 
best'' attitude in this town. This is an amendment that says: 
Washington knows best. What goes on in State capitals is irrelevant 
because they do not really care about their constituents. If I am in 
Massachusetts, I care more about what goes on in Pennsylvania than the 
Governor or the State legislators, State senators.
  That is ridiculous. The fact of the matter is, the States are engaged 
actively. Frankly, they are much more active than we have been in the 
Congress. They have been actively engaged in dealing with the problems 
in their States, and we should let the States do what they do best, and 
we should do--and the Republican bill does--what only we can do, and 
that is to regulate ERISA plans, with patient protections and, I add, a 
lot more.
  The one thing that really sort of irks me about this whole debate is 
that it is not just about protecting rights with HMOs. What our bill 
does is much broader and deals with issues of quality and choice, 
giving people alternatives to HMOs, not just locking them in and trying 
to fix something that may or may not be broken.
  We say you can fire an HMO, go somewhere else, and get health care in 
a different way. The Democrats will not let you do that. We do.
  We provide tax breaks for the self-employed which, again, increases 
access to the system. They do not. We have not only quality assurance; 
we have choice; we have access. The thing we do not do--and I am very 
proud we do not--we do not drive up cost and drive people out of the 
insurance market. They do.
  On all four counts of what health care reform is supposed to be 
about--choice, quality, access, and cost--we are the winners, not the 
other side.
  The PRESIDING OFFICER (Mr. Crapo). The time of the Senator has 
expired. The Senator from Vermont has 2 minutes remaining.
  Mr. JEFFORDS. Mr. President, I yield back the remainder of my time 
and ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  Mr. KENNEDY. Mr. President, I yield myself 3 minutes off the bill.
  The PRESIDING OFFICER. The Senator has that right.
  Mr. KENNEDY. I have listened with a good deal of interest to our 
colleagues on the other side complaining. They want it both ways. On 
the one hand, they are supporting covering 48 million Americans and 
leaving out 113 million Americans--so they are covering some 
Americans--but they are not covering all Americans. Then they are 
troubled, evidently, because they are covering some Americans. Many of 
our colleagues on the other side, as we have just heard, do not think 
there ought to be any kind of protection for the American citizens, 
that we ought to just leave this up to the States.
  My response is, the law of the jungle may be good in the jungle, but 
we do not accept that in the United States, when people are being 
exploited by the private sector. In this case, the insurance industry 
refuses to provide the protections for women and children in our 
country. The insurance industry refused to provide protections for 
workers in our country.
  That is basically the fact of it. We hear repeatedly, mistakenly, 
that the States have provided protections. I will include in the Record 
the Families USA analysis of the various States.

       An examination of state legislation in 13 areas of basic 
     managed care consumer protections finds that no state has all 
     13 on the books. . . .

  I ask unanimous consent to have that analysis printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              [Press Release from Families USA Foundation]

   Despite State Managed Care Laws, Most People Still Go Unprotected


 families usa releases comprehensive review of state managed care laws

       (Washington, DC) An examination of state legislation in 13 
     areas of basic managed care consumer protections finds that 
     no state has all 13 on the books according to a new report 
     released today by the national consumer group Families USA.
       Hit & Miss: State Managed Care Laws examines state laws for 
     a number of patient protections including the right to 
     independent eternal appeals when health care services are 
     denied, access to emergency room coverage, the right to sue 
     health plans for wrongful denials of care, and the 
     establishment of state funded consumer assistance programs. 
     (See table 1, attached, for a list and explanation of the 
     protections studied in the report.)
       The study reveals that only one state, Vermont, had passed 
     10 or more of the protections, 16 states enacted 5 to 9 of 
     the basic protections, 33 states had passed only 1 to 4 of 
     the protections and South Dakota had passed none. (See table 
     1 attached.) The report also reveals that, despite state 
     legislation on managed care, many consumers are not protected 
     by those laws.
       According to the report, one in three people with employer-
     based coverage are in self-insured health plans and are not 
     covered by state consumer protection laws. The federal 
     Employee Retirement Income Security Act (ERISA) exempts self-
     insured employer plans from state health insurance laws. 
     Approximately 51 million Americans are not covered by any of 
     the managed care consumer protection laws in their state 
     because of ERISA.
       ``Not only do managed care consumer protections vary 
     greatly from state to state,'' said Ron Pollack, executive 
     director of Families USA, ``but even with laws on the books, 
     many consumers who get their coverage from their employer are 
     not protected because of ERISA. Only a federal patients' Bill 
     of Rights would ensure consumer protections for all Americans 
     who receive employer provided coverage.''
       Other key findings of the report include:
       The requirement of disclosure of treatment options and 
     protection advocacy (that is a ban on ``gag rules'') has been 
     passed by the most states--45 states and the District of 
     Columbia.
       Thirty-one states and the District of Columbia have passed 
     laws requiring health

[[Page S8469]]

     plans to pay for emergency room care when a person believes 
     he or she is experiencing a medical emergency.
       Only 15 states have passed laws establishing an independent 
     external appeals process for consumers who believe they have 
     been wrongfully denied care.
       Eight states have passed laws requiring plans to have a 
     procedure to allow individuals to obtain prescription drugs 
     that are not on the managed care plan's list or 
     ``formulary.''
       Of the 13 key protections studied, the establishment of 
     independent consumer assistance programs and changes in 
     liability laws had been passed by the fewest states.
       Vermont is the first and only state to pass a law that 
     provides funding for an independent statewide consumer 
     assistance program.
       Two states, Texas and Missouri, passed laws that open the 
     door so that consumers can hold their health plans 
     accountable through litigation. This issue is still being 
     debated in the courts.
       While the ERISA statute preempts state insurance laws for 
     people in self-insured plans, the statute goes even further 
     in preventing Americans from suing their health plan for 
     damages in the event of wrongful denials of care. The study 
     found that 83 percent of Americans who get their health care 
     from their employer, 124 million people, cannot hold their 
     health plans liable for their denials of care because of 
     ERISA preemption of state laws relating to grievance 
     resolution. Public employees (state and federal workers) are 
     not preempted.
       ``ERISA--which was intended to protect employees in 
     pensions and health plans--has become a protective shield for 
     managed care plans even when they wrongfully deny care, 
     either through negligence or malicious indifference,'' added 
     Judy Waxman, director of government affairs at Families USA. 
     ``Health plans have no accountability for their decisions to 
     deny needed care and treatment. This lack of meaningful 
     remedies invites abuse.''
       Current proposals in Congress address many of the 
     protections studied in the new Families USA report. The 
     Patients' Bill of Rights introduced by Senators Daschle and 
     Kennedy and Representatives Dingell and Gephardt would 
     establish all 13 of the protections studied. The House 
     Republican proposal, which is not yet in legislative form, 
     would address from two to four of the issues. (See table 2 
     attached.)
       ``The American public has said very clearly that they want 
     managed care protections, but because of ERISA they are 
     denied the protections passed by their state,'' added 
     Pollack. ``Because of the federal ERISA law, this issue can 
     not be left up to the states. Federal protections are needed 
     to ensure all Americans get fair treatment from their managed 
     care plans.''

              Consumer Protections Examined in Hit & Miss

       The 13 areas selected for special analysis in Hit & Miss 
     were chosen for a combination of reasons. First, they are 
     important rights to help ensure that health plan enrollees 
     get the care promised by their plans. Second, these rights 
     are sufficiently specific and understandable that consumers 
     can assess their significance. And third, these rights 
     provide good illustrations of the diverse state-by-state 
     approaches to regulating managed care. The 13 protections 
     are:
       the right to go to an emergency room, and have the managed 
     care plan pay for the resulting care, if a person reasonably 
     believes he or she is experiencing an emergency;
       the right to receive health care from an out-of-network 
     provider when the health plan's network of providers is 
     inadequate;
       the right of a person with a serious illness or disability 
     to use a specialist as a primary care provider;
       the right of a seriously ill person to receive standing 
     referrals to health specialists;
       a woman's right to gain direct access to an obstetrician or 
     gynecologist;
       the right of a seriously ill patient or pregnant woman to 
     continue receiving health care for a specified period of time 
     from a physician who has been dropped by the health plan;
       the establishment of a procedure that enables a patient to 
     obtain specific prescription drugs that are not on a health 
     plan's drug formulary;
       the right to appeal denials of care through a review 
     process that is external to, and independent of, health 
     plans;
       the establishment of consumer assistance, or ombudsman, 
     programs;
       prohibitions against plans' use of so-called ``gag 
     rules''--rules that prevent physicians and health providers 
     from fully disclosing treatment options to patients;
       prohibitions on plans' reliance on inappropriate financial 
     incentives to deny or reduce necessary health care;
       the establishment of state laws that prevent plans from 
     prohibiting participation in clinical trials; and
       the establishment of state laws enabling enrollees to sue 
     their health plans when they improperly deny care.

                                                                                                                 TABLE 1.--HIT AND MISS: STATE MANAGED CARE LAWS
                                                                                              [The variability of State managed care consumer protection laws, as of July 14, 1998]
--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                  E.R. services                                Access to providers                               Continuity of    Prescription drug       Appeals           Consumer         Patient-provider relationship     Clinical trials      Liability
                               -----------------------------------------------------------------------------------------------        care              access           procedures        assistance    -----------------------------------------------------------------------
                                                                                                                              ---------------------------------------------------------------------------                       Prohibit
            States              Prudent layperson   Referral to out-    Specialists as        Standing         OBGYN direct                         Access to non-                                          Disclosure of       physician                         Right to sue
                                     standard          of-network        primary care       referrals to          access        When physicians       formulary         Independent        Independent        treatment         financial      Clinical trials  health plans for
                                                       providers          providers         specialists                            leave plan       prescriptions     external reviews   ombuds programs       options         incentives                            damages
--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
ALABAMA.......................  .................  .................  .........  .........  .................  .................  .................  .................  ................  ................  ................  ................  ................
ALASKA........................  .................  .................  .................  .................  .................  .................  .................  .................  ................  ........  ........  ................  ................
ARIZONA.......................  .................  .................  .................  .................  .................  .................  .................  .........  ................  ........  ................  ................  ................
ARKANSAS......................  .........  .................  .................  .................  .........  .........  .........  .................  ................  ........  ................  ................  ................
CALIFORNIA....................  .........  .................  .................  .........  .........  .................  .........  .................  ................  ........  ........  ................  ................
COLORADO......................  .........  .........  .................  .................  .........  .........  .................  .................  ................  ........  ................  ................  ................
CONNECTICUT...................  .........  .................  .................  .................  .........  .................  .................  .........  ................  ........  ................  ................  ................
DELAWARE......................  .................  .................  .................  .................  .........  .................  .................  .................  ................  ........  ................  ................  ................
DISTRICT OF COLUMBIA..........  .........  .................  .................  .................  .................  .................  .................  .................  ................  ........  ................  ................  ................
FLORIDA.......................  .................  .........  .................  .........  .........  .........  .................  .........  ........  ........  ................  ................  ................
GEORGIA.......................  .........  .................  .................  .................  .........  .................  .........  .................  ................  ........  ........  ........  ................
HAWAII........................  .........  .................  .................  .................  .................  .................  .................  .........  ................  ........  ................  ................  ................
IDAHO.........................  .........  .................  .................  .................  .........  .................  .................  .................  ................  ........  ........  ................  ................
ILLINOIS......................  .................  .................  .................  .................  .........  .................  .................  .................  ................  ................  ................  ................  ................
INDIANA.......................  .........  .........  .........  .................  .........  .........  .........  .................  ................  ........  ................  ................  ................
IOWA..........................  .........  .................  .................  .................  .................  .................  .................  .................  ................  ........  ................  ................  ................
KANSAS........................  .................  .................  .................  .........  .................  .........  .................  .................  ................  ........  ........  ................  ................
KENTUCKY......................  .........  .........  .................  .................  .................  .................  .................  .................  ................  ........  ................  ................  ................
LOUISIANA.....................  .........  .................  .................  .................  .........  .................  .................  .................  ................  ........  ........  ................  ................
MAINE.........................  .........  .........  .................  .................  .........  .................  .................  .................  ................  ........  ................  ................  ................
MARYLAND......................  .........  .................  .................  .................  .........  .................  .................  .........  ................  ........  ........  ........  ................
MASSACHUSSETTS................  .................  .................  .................  .................  .................  .................  .................  .................  ................  ........  ................  ................  ................
MICHIGAN......................  .........  .................  .................  .................  .................  .................  .................  .........  ................  ........  ................  ................  ................
MINNESOTA.....................  .........  .................  .................  .........  .........  .........  .................  .........  ................  ........  ................  ................  ................
MISSISSIPPI...................  .................  .................  .................  .................  .........  .................  .................  .................  ................  ................  ................  ................  ................
MISSOURI......................  .........  .........  .........  .........  .................  .........  .........  .........  ................  ........  ................  ................  
MONTANA.......................  .................  .........  .................  .................  .........  .................  .................  .................  ................  ........  ........  ................  ................
NEBRASKA......................  .........  .................  .................  .................  .........  .................  .................  .................  ................  ........  ........  ................  ................
NEVADA........................  .........  .................  .................  .................  .................  .................  .................  .................  ................  ........  ........  ................  ................
NEW HAMPSHIRE.................  .................  .................  .................  .................  .................  .................  .................  .................  ................  ........  ................  ................  ................
NEW JERSEY....................  .................  .................  .........  .................  .........  .........  .................  .................  ................  ........  ........  ................  ................
NEW MEXICO....................  .........  .........  .........  .........  .........  .................  .................  .........  ................  ........  ........  ................  ................
NEW YORK......................  .........  .........  .........  .........  .........  .........  .................  .................  ................  ........  ................  ................  ................
NORTH CAROLINA................  .........  .........  .................  .................  .........  .................  .................  .................  ................  ........  ................  ................  ................
NORTH DAKOTA..................  .................  .................  .................  .................  .................  .................  .................  .................  ................  ........  ................  ................  ................
OHIO..........................  .........  .........  .........  .........  .................  .................  .........  .................  ................  ........  ........  ................  ................
OKLAHOMA......................  .................  .................  .................  .................  .................  .................  .................  .................  ................  ........  ................  ................  ................
OREGON........................  .........  .................  .................  .................  .........  .................  .........  .................  ................  ........  ................  ................  ................
PENNSYLVANIA..................  .........  .................  .........  .........  .........  .........  .................  .........  ................  ........  ........  ................  ................
RHODE ISLAND..................  .................  .................  .................  .................  .................  .................  .................  .........  ................  ........  ........  ........  ................
SOUTH CAROLINA................  .........  .................  .................  .................  .........  .................  .................  .................  ................  ................  ................  ................  ................
SOUTH DAKOTA..................  .................  .................  .................  .................  .................  .................  .................  .................  ................  ................  ................  ................  ................
TENNESSEE.....................  .................  .........  .........  .........  .........  .........  .................  .........  ................  ........  ................  ................  ................
TEXAS.........................  .........  .........  .........  .................  .........  .........  .................  .........  ................  ........  ........  ................  
UTAH..........................  .................  .........  .................  .................  .................  .................  .................  .................  ................  ........  ........  ................  ................
VERMONT.......................  .........  .........  .........  .........  .........  .........  .........  .........  ........  ........  ........  ................  ................
WASHINGTON....................  .........  .................  .................  .................  .........  .................  .................  .................  ................  ........  ................  ................  ................
WEST VIRGINIA.................  .........  .................  .................  .................  .........  .................  .................  .................  ................  ........  ........  ................  ................
WISCONSIN.....................  .........  .................  .................  .................  .................  .................  .................  .................  ................  ........  ................  ................  ................

[[Page S8470]]

 
WYOMING.......................  .................  .................  .................  .................  .................  .................  .................  .................  ................  ........  ................  ................  ................
--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


                     TABLE 2.--BASIC CONSUMER PROTECTIONS: STATE LAWS AND FEDERAL PROPOSALS
----------------------------------------------------------------------------------------------------------------
                                                                            Daschle/Kennedy
Managed care consumer protection  Number of States *     Gingrich Plan     Dingell/Gephardt      Nickles Plan
----------------------------------------------------------------------------------------------------------------
Emergency Room Access...........  31................  ..........  ..........  )
Access to Out-of-Network          15................  ..................  ..........  ..................
 Providers.
Specialist Can Be Primary Care    10................  ..................  ..........  ..................
 Providers.
Standing Referrals to             12................  ..................  ..........  ..................
 Specialists.
Direct Access to Obstetricians    31................  ?.................  ..........  )?
 and Gynecologists for Women.
Continuity of Care When           14................  ..................  ..........  )?
 Physician Leaves Plan.
Access to All Prescriptions       8.................  ..................  ..........  ..................
 Drugs.
Independent External Review of    15................  ?.................  ..........  ?
 Complaints.
Independent Consumer Assistance   2.................  ..................  ..........  ..................
 Program.
Disclosure of Treatment Options   45................  ..........  ..........  )
 Required.
Prohibit Financial Incentives to  19................  ..................  ..........  ..................
 Deny Care.
Access to Clinical Trials.......  3.................  ..................  ..........  ..................
Right to Sue for Damages........  2.................  ..................  ..........  ..................
----------------------------------------------------------------------------------------------------------------
? Details of the proposal are too sketchy to determine whether the proposal meets the standard.
* None of these laws apply to people in self-insured ERSIA plans (one in three Americans who have employer-based
  coverage).
 Applies to all consumers with employer-provided health coverage.
) Only applies to consumers in self-insured ERISA plans (one in three Americans who have employer based
  coverage).

  Mr. KENNEDY. Vermont has 10 out of the 13, but no State has all 13. 
These are basic and fundamental standards that can be built upon. If 
Texas wants to do more, so be it. If Pennsylvania wants to do more, so 
be it. But these are the most basic and fundamental protections. That 
is what this legislation is all about. These are basic kinds of 
protections which, in most instances, have been included in the 
protections of the Federal employees, who include every Member of this 
body.
  I have been so interested in listening to this debate about how we do 
not want the Federal Government having anything to do with health care. 
The Federal employment insurance has 11 million members. Every Member 
of this body has an opportunity to go in there and check a little box 
and say: We don't want the Federal employment protections. We don't 
want that. We want the private sector. Yet very few Members of this 
body have done that.
  Eleven million Federal employees have these protections. It is so 
nice to hear: Well, we're glad to have protections for our children. We 
refuse to provide them for other people's children.
  You don't hear anyone suggesting we are going to give up our Federal 
employees' health care. We should not say, when we provide this kind of 
protection for our children that we are going to provide the protection 
for other people's children. That is the heart of this issue.
  I yield myself another minute off the bill.
  I have included in the Record an analysis of which States provide 
these 13 basic protections and which States do not. They are rather 
basic and fundamental protections. They are protections concerning 
emergency care, OB/GYN care, access to clinical trials, access to 
specialists, ensuring adequate accountability, and eliminating the 
financial incentives that lead to denying people quality health care.
  For all those who say they do not want these protections, I do not 
know what their States are like. I do not know the last time they 
talked to their insurance commissioners. I doubt if there is anyone in 
this body--1 more minute--anyone in this body who could call their 
insurance commissioner this afternoon and not hear scores of 
complaints. That is what is happening, maybe not in the Senate, but all 
across this Nation.
  This amendment will make an important difference in terms of 
protection.
  I reserve the remainder of my time.
  Mr. NICKLES addressed the Chair.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. NICKLES. Mr. President, I yield myself such time as I need off 
the bill.
  The PRESIDING OFFICER. The Senator is recognized.
  Mr. NICKLES. Mr. President, I am glad my colleague is sitting down. 
We might need Dr. Frist on the floor.
  Mr. KENNEDY. Could the Senator yield, on my time, on that issue?
  Mr. NICKLES. I am happy to yield.
  Mr. KENNEDY. We couldn't see a specialist like Dr. Frist under the 
Republican bill. I am glad to use him if I need him. I thank the 
Senator.
  Mr. FRIST. He is here.
  Mr. NICKLES. Mr. President, just a couple comments on the underlying 
amendment. I am always kind of amazed with the philosophy of saying, 
well, millions of people are not protected, as if the States have not 
been doing a good job. It is as if saying to the States: We don't care 
what you have done, it is not good enough. Senator Kennedy has decided 
you haven't done good enough. HCFA should be running your health care 
plans. States need not apply. States, don't bother. We know better. The 
Federal Government knows better. HCFA, the Health Care Financing 
Administration, basically should be running your health care plans. We 
don't care what you have done, States. We don't care if 42 States have 
already passed a health care bill of rights or 50 States already have 
consumer grievance procedures or 47 States already have a ban on gag 
clauses. We are going to pass things that supersede what you have done. 
We know what is best.

  The Health Care Financing Administration has done a crummy job, 
frankly, in administering rules dealing with home health care. We have 
home health care problems all across the country. A lot of it is 
because of HCFA. Or HCFA is getting information out to Medicare--which 
we passed in the Balanced Budget Act of 1997. They are supposed to give 
seniors information. They have not done it. Yet we are going to 
transfer the entire regulatory authority of all the health insurance 
plans of America over to this governmental agency? To a bunch of 
bureaucrats thinking they can do a better job than all the States? I do 
not think so.
  If people are somewhat familiar with the labyrinth of regulations 
dealing with insurance plans, if we pass the Kennedy bill, as now 
proposed, the amendment that is before us, this is the kind of 
regulatory scheme we are going to have.
  You talk about duplication, you talk about confusion, you talk about 
almost an impossibility if the State has a plan--wait a minute, do we 
comply with Federal regulations dealing with the bill of rights or do 
we comply with the State, or do we comply with the State ban on gag 
clauses or ours? Somebody says, well, if there is confusion, we will 
have HCFA decide. HCFA will decide, the Government will decide, the 
Federal Government will decide.
  I urge my colleagues to vote no on this amendment. In addition, I 
would like to let my colleagues know there is $5 billion worth of new 
taxes in this amendment that is before us. If you want to increase 
taxes by another $5 billion, vote in favor of the Kennedy amendment. I 
urge my colleagues to vote no on this amendment.
  Mr. KENNEDY. I yield myself 1 minute.
  Mr. President, what about the bureaucrats in the insurance industry 
who are denying coverage for children in these emergency rooms? What 
about the bureaucrats who are denying women the right to be able to be 
in the clinical trials? What about those? This isn't HCFA. The Senator 
from Oklahoma knows this.
  When the General Accounting Office recommended they get additional 
resources for HCFA, they led the fight against giving them resources to 
enforce the Kassebaum-Kennedy legislation. Go back and look at the 
Record, I say to the Senator. You know that.
  I am not interested in going back and forth on this issue. But I 
daresay the

[[Page S8471]]

bureaucrats in the insurance industry are the ones about whom people 
are most concerned. Americans know what the insurance industry is 
doing. They are looking at the bottom line. I think maybe HCFA has its 
problems--maybe they made some mistakes--but, by and large, they are 
dedicated men and women who are committed to public service who are 
trying to do a decent job. It is easy to beat up on employees, 
Government employees, but for my money, they do a great job.
  The PRESIDING OFFICER. The time of the Senator has expired. All time 
has expired on the amendment. The question is on agreeing to amendment 
No. 1242. The nays and nays have been ordered. The clerk will call the 
roll.
  The assistant legislative clerk called the roll.
  The PRESIDING OFFICER (Mr. Sessions). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 48, nays 52, as follows:

                      [Rollcall Vote No. 204 Leg.]

                                YEAS--48

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Bryan
     Byrd
     Chafee
     Cleland
     Conrad
     Daschle
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Graham
     Harkin
     Hollings
     Inouye
     Johnson
     Kennedy
     Kerrey
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     McCain
     Mikulski
     Moynihan
     Murray
     Reed
     Reid
     Robb
     Rockefeller
     Sarbanes
     Schumer
     Specter
     Torricelli
     Wellstone
     Wyden

                                NAYS--52

     Abraham
     Allard
     Ashcroft
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Cochran
     Collins
     Coverdell
     Craig
     Crapo
     DeWine
     Domenici
     Enzi
     Fitzgerald
     Frist
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Jeffords
     Kyl
     Lott
     Lugar
     Mack
     McConnell
     Murkowski
     Nickles
     Roberts
     Roth
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner
  The amendment (No. 1242) was rejected.
  Mr. NICKLES. Mr. President, I move to reconsider the vote.
  Mr. BOND. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                     Amendment No. 1239, As Amended

  The PRESIDING OFFICER. The question is on amendment No. 1239 as 
amended.
  The amendment (No. 1239), as amended, was agreed to.
  Mr. NICKLES. Mr. President, I move to reconsider the vote.
  Mr. MURKOWSKI. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senator from Maine.


                Amendment No. 1243 to Amendment No. 1232

  (Purpose: To expand deductibility of long-term care to individuals; 
   expand direct access to obstetric and gynecological care; provide 
 timely access to specialists; and expand patient access to emergency 
                             medical care)

  Ms. COLLINS. Mr. President, on behalf of myself, Senator Hutchinson, 
Senator Frist, Senator Jeffords, Senator Grassley, and Senator Grams, I 
send an amendment to the desk.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Maine (Ms. Collins), for herself, Mr. 
     Hutchinson, Mr. Frist, Mr. Jeffords, Mr. Grassley, and Mr. 
     Grams, proposes an amendment numbered 1243 to amendment No. 
     1232.

  Ms. COLLINS. 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.'')
  The PRESIDING OFFICER. The Senator from Maine.
  Mr. KENNEDY. Mr. President, may we be in order. The Senate is not in 
order. The Senator is entitled to be heard. We have had a good debate 
over the course of the day. Members have been attentive. We would like 
to make sure that the good Senator has the attention of the membership.
  The PRESIDING OFFICER. The Senator is correct. Will the Senate come 
to order.
  The Senator from Maine.
  Ms. COLLINS. I thank the Presiding Officer. I thank my friend and 
colleague from Massachusetts.
  Mr. President, on behalf of myself, Senator Hutchison, Senator Frist, 
Senator Jeffords, Senator Grassley, and Senator Grams, I have sent to 
the desk a four-part amendment.
  We explained in producing our health committee bill that two of our 
goals were to expand access to health insurance and also to provide 
important consumer protections to those individuals who are insured in 
self-funded plans that the States cannot reach, cannot regulate, and 
that come under Federal jurisdiction. The amendment which I and my 
colleagues have proposed seeks to advance both those goals.
  The legislation would permit individuals who purchase long-term care 
insurance that is not subsidized by their employer to deduct 100 
percent of the cost of that coverage.
  That is the first part of the amendment.
  The second part of the amendment includes the access to emergency 
services provision which Senator Hutchinson and Senator Frist have been 
working on. We believe it strengthens those provisions. It includes 
some of the language which Senator Graham of Florida had offered 
yesterday, but that has been refined. It takes a somewhat different 
approach.
  The third part of this amendment includes language developed by 
Senator Frist dealing with timely access to specialists. Senator Frist 
will explain that provision in more detail.
  The fourth provision in this amendment has been developed by Senator 
Jeffords dealing with access to OB/GYNs. It is an attempt to improve 
upon and strengthen the health committee legislation.
  I am not going to address the provisions that deal with long-term 
care insurance. Most Americans mistakenly believe that either Medicare 
or their regular health insurance policies will cover the costs of 
long-term care should they develop a chronic illness or a cognitive 
impairment such as Alzheimer's disease.
  Unfortunately, far too late, far too many Americans discover their 
families do not have the coverage they need until they are confronted 
with a difficult decision of placing a frail parent or loved one in a 
long-term care facility and face the shocking realization they will 
have to bear those enormous costs themselves. With nursing home costs 
ranging from $40,000 to $70,000 a year, a chronic illness requiring 
long-term care can easily bankrupt a family. It can also result in the 
taxpayer eventually having to pick up the costs through the Medicaid 
program. Concerns about how to finance long-term care will only 
multiply as our population ages and is at greater risk of chronic 
illness.
  By the year 2030, the demographics of 32 States will resemble those 
of Florida today. The number of people over age 65 will nearly double. 
Moreover, the fastest growing segment of our population are Americans 
who are age 85 and older. These older Americans are at least five times 
more likely to reside in a nursing home than people who are age 65.
  Americans should obviously think about and plan for their future 
long-term care needs as they plan for their retirement or purchase life 
insurance to protect their families. Private planning for long-term 
care through the purchase of long-term care insurance will not only 
provide families with greater financial security, but it will also ease 
the growing financial burden on Medicaid and strengthen the ability of 
that program to serve as a vital safety net for those Americans most in 
need.
  Moreover, private long-term care insurance policies provide Americans 
with much greater choice in the type of services they can receive. 
While government programs predominantly pay for nursing home stays, 
private long-term care policies provide a wide variety of services, 
ranging from personal assistance with activities of daily living such 
as bathing or eating or dressing, to 24-hour skilled nursing 
assistance. Many policies also cover assisted living.
  In addition, policies often cover home care, adult day care, and 
respite

[[Page S8472]]

care, giving seniors greater flexibility and enabling them to retain 
the dignity of choice and to have the most appropriate care in their 
senior years.
  The Health Insurance Portability and Accountability Act of 1996 made 
long-needed changes in our Tax Code to give long-term care insurance 
essentially the same tax treatment as other health insurance. As a 
consequence, long-term care insurance premiums are now deductible for 
those employers who choose to offer the coverages of benefit and also 
are excludable for taxable income for the employee. Moreover, premiums 
for long-term care insurance are treated as a medical expense for the 
purposes of itemized deductions for medical expenses and are also 
partially deductible for self-employed individuals.

  The amendment I am introducing today will expand the tax 
deductibility of long-term care insurance to encourage and to help more 
Americans to purchase it. In this regard, I want to acknowledge the 
leadership of Senator Grassley as chairman of the Aging Committee on 
which I am privileged to serve. Senator Grassley has been a long-time 
advocate of expanding the tax deductibility for long-term care 
insurance.
  The legislation I am proposing will permit individuals who purchase 
long-term care insurance on their own, without any kind of subsidy from 
their employer, to deduct 100 percent of the cost of that insurance. 
Providing additional financial incentives for individuals to plan for 
their own future long-term care needs is particularly important in 
order to encourage younger people to purchase the coverage.
  By encouraging individuals to plan now for retirement through the 
purchase of long-term care insurance, not only are we helping to ensure 
their future financial security; we are also giving them the peace of 
mind knowing that should they develop a chronic illness, should they 
become ill with Alzheimer's disease, for example, they will be covered 
by private insurance. Moreover, the insurance will ensure that they 
receive the choice of care they need and on their own terms.
  Finally, encouraging individuals to plan and prepare for their future 
long-term care needs will help strengthen and preserve the financial 
solvency of the Medicaid program. This is an idea that I hope will have 
the support of colleagues from both sides of the aisle. I encourage all 
of my colleagues to join me in this effort to make this critical 
coverage more affordable to millions of Americans.
  I yield such time as he desires to my colleague from Arkansas for an 
explanation of the emergency care provisions of this amendment.
  Mr. HUTCHINSON. I applaud the Senator from Maine for her outstanding 
leadership on this legislation and particularly for this amendment and 
the tax provisions which I believe are going to provide significant tax 
relief. The Joint Committee on Taxation estimates that 3.8 million 
taxpayers benefit from this provision on long-term care. It is an 
important provision. Senator Collins and Senator Grassley have been 
great leaders in pushing for this. I applaud their efforts.
  I will briefly address the provisions in this amendment regarding 
access to emergency services, an issue we debated at some length 
yesterday. I think the provisions in this amendment adequately and 
significantly improve the Republican bill and address the concerns that 
have been expressed.
  Let me compare briefly the Kennedy bill and the Republican bill in 
this area. Both bills, with the adoption of this amendment, will 
eliminate prior authorization for visiting the emergency room. This was 
included in the committee bill as it came out. We reaffirmed that in 
the amendment. It eliminates the need for the requirement for prior 
authorization, something that is obvious, something that is common 
sense. If you have an emergency event, you don't want to get 
preauthorization before you go to the emergency room. We eliminate that 
requirement for prior authorization. For policies that have it, we 
prohibit that.
  Both bills require coverage for medical screening exams and 
stabilization services under the prudent layperson standard for 
emergency.
  That language, that provision, is included in both the Democrat bill 
and the Republican bill. Both bills, with the adoption of this 
amendment, will ensure that patients will not have to pay more for 
emergency services provided by an out-of-network provider than an in-
network provider. Many of the stories and examples we have heard on the 
floor of the Senate regarded individuals who had to pass by an 
emergency room when something tragic occurred, drive across town to 
find a provider that was in the network. That should never happen. It 
should not ever be required. No one should bypass an emergency room 
that is close to them because they are afraid of having to pay a 
penalty or pay a higher copay because that emergency room is not in the 
network. So we would prohibit that kind of differential. The Democrat 
bill has that provision. With the adoption of this amendment, we would 
prohibit that. You would go to the closest emergency room.

  Both bills, with the adoption of this amendment, would provide the 
coverage of poststabilization services. The Republican amendment will 
do the following. It will require coverage of services to maintain the 
stability of the patient, those services which are related to the 
emergency condition, treatment related to the emergency condition, 
provided in the emergency room, and under the condition that the health 
plan has been contacted by the nonparticipating provider regarding 
approval for such services.
  If the plan has not responded within 1 hour--this is exactly what is 
required under Medicare--to arrange for transfer, discharge, or for 
further care at a nonnetwork facility, the plan continues to be liable 
for the care needed to maintain stability and those conditions related 
to the emergency situation.
  So we believe this is very strong language. It provides the kind of 
protections we need for poststabilization services. What it does not 
do--and this is the difference, this is the distinction--it does not 
allow someone to go into the emergency room with a genuine emergency 
and then ask for treatment of a condition totally unrelated to the 
emergency event. If you go in and you have a knee injury because of a 
fall and then, after you have been stabilized, you tell the doctor you 
have not had your heart checked and you haven't had an x ray and you 
want this done or that done, on conditions totally unrelated to the 
emergency event, that should not be required to be covered by the 
insurance policy.
  We clarified what we believe was ambiguous language, where there had 
been abuses, to ensure that in fact treatment has to be related to the 
emergency event.
  I think it is a very strong provision, and I urge my colleagues to 
support the overall amendment and this provision regarding access to 
emergency services.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Mr. President, I commend the efforts of the Senator from 
Arkansas. He has worked very hard on this issue. What he and the 
Senator from Tennessee have developed clearly strengthens the bill 
reported by the HELP Committee. I think it is an excellent refinement, 
and I commend him for his efforts.
  I now yield such time as he may need to the Senator from Tennessee to 
explain the access to specialists provisions in the amendment.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. FRIST. Mr. President, I thank the Senator from Maine for laying 
out so well what this amendment is all about.
  The amendment has four parts: Long-term care deductibility, which has 
been spelled out. The Senator from Arkansas has just laid out the 
second portion of this amendment on access to emergency services, 
something he and I have worked on very closely that I think really 
pulls together so much of the debate over the last 3 days and 
demonstrates we are working together to improve the underlying 
legislation as we go forward. Another demonstration of that is the 
third component, the access to specialists, which I will outline. Then 
I will turn to the Senator from Vermont to discuss the fourth component 
on access to obstetricians and gynecologists--again, an issue that has 
been on the floor again and again and again.
  I think overall this amendment demonstrates our very sincere effort 
to

[[Page S8473]]

work together as we go forward, taking ideas, bringing ideas forward, 
and improving this bill as the day develops.
  Under access to specialist, we do four things:
  No. 1, we ensure timely access to specialty care. ``Timely" is the 
key word. Timely is important. I will come back to why it is important 
and what we do.
  No. 2, we expand the provision to ensure access to primary care 
subspecialists. It is an expansion to the underlying provision, but 
again I think it is one that is very important to clarify the intent to 
which I believe both sides agree.
  No. 3, the third component of the access to specialists is that we 
acknowledge, in very specific language, that a specialist could be the 
patient's case manager. That is important. It is very important to 
understand what a case manager is, and I will come back to that very 
briefly.
  The fourth point I want to make in describing my aspect of this 
amendment is that there are concerns that referrals do not require a 
treatment plan to be in place.
  No. 1, timely access to specialty care. This amendment is necessary 
to improve the underlying bill. It does so by requiring the plans to 
ensure ``timely''--it is in the bill--access in accordance with the 
surrounding medical circumstances in the case. That is very important.
  It is important to me as a physician, to patients, and to doctors 
because the last thing in the world we want to do is have something on 
the books that says you have access to a specialist, which we have in 
our bill, but to have a plan be able to delay in some way, or say, yes, 
the provisions are there; we are going to work on it. So we want to put 
a temporal component in it to make sure you have timely access, that 
you can see that specialist in a timely way so you get that care when 
you actually need it. Therefore, we have timely access.
  Why is it in the Patients' Bill of Rights? Basically to guarantee to 
the patients, to assure the patients, the plan has to respond in a way 
that meets the circumstances of their particular care--appendicitis, 
heart disease, lung disease; that they will have a timely response to 
that with a specialist.
  No. 2, we expand the provision to ensure access to primary care 
subspecialists. Again, this is something very close to me. Again we 
focus on access because that is what patients want. They don't care 
what titles these people have, but what they say is: If I need a 
cardiologist, I can get to a cardiologist; I can get to a heart 
transplant surgeon. I want to make sure that care is there. So we 
remove the barriers. We do not try to dump people into categories and 
give them labels.

  There are some subspecialties within primary care that are actually 
subspecialties under primary care, and we want to make absolutely sure, 
because for those individuals it is critical that they are involved in 
chronic care--we want to make sure it is very clear. We want to reach 
out and expand that amendment to include that definition of specialty 
care to include both primary and specialty health care professionals 
who are appropriate to the patient's condition. If you have heart 
disease, it needs to be a cardiologist. If you have cancer, it needs to 
be an oncologist.
  A typical example to bring this home is a cardiologist. I am a heart 
transplant surgeon. We also have cardiologists. I operate on patients. 
Cardiologists are the medical end of the study of the heart. To become 
a cardiologist, you go through training to become an internist, or 
internal medicine. Internal medicine is considered a primary care 
specialty. But a subspecialty of internal care medicine is cardiology. 
You may go for 3 or 4 years of internal medicine training, which is a 
primary care field; then you go ahead and do a subspecialty of internal 
medicine, and that is cardiology, an additional 2 or 3 years.
  I want to make clear that we are talking about access, we are talking 
about the subspecialties underneath the primary care of internal 
medicine. This amendment ensures that access.
  No. 3, I want to make sure, what this amendment does is it 
acknowledges that many times the treating specialist could be the 
patient's case manager, the person who is coordinating that care. 
Therefore, our amendment adds the words ``case manager'' where 
information may be required to be communicated to a patient, to a 
patient's primary care provider, in the creation of a whole section 
called Treatment Plan. Both the Democratic bill and the Republican bill 
have a section called Treatment Plan. This also applies to obtaining an 
adequate number of referrals.
  The fourth point: The Republican bill follows the recommendation put 
forth by the President's own quality commission, the commission we 
referred back to that was in effect for about a year and produced a 
document. Under their section, Access To Specialists, they use the word 
``authorization.'' I quote from that:

       Authorization when required should be for an adequate 
     number of direct access visits.

  I wanted to actually take that language and put it in our bill.

       Authorization when required should be for an adequate 
     number of direct access visits.

  Again, that is from the President's commission, his quality 
commission. What we have done there is follow their recommendations. 
What our amendment does is revise and amend and improve that 
recommendation to clarify that a treatment plan is not required to 
obtain an adequate number of referrals. We need to make very clear that 
the treatment plan does not have to be the provision in order to get an 
adequate number of referrals. It is a necessary clarification because 
the underlying bill simply states that a plan may require the 
specialist to put together a treatment plan in consultation with the 
patient and primary care provider or case manager, but we do not 
require or expect that a treatment plan will be required or necessary 
for every patient.

  I have spoken long enough on this whole issue of access to 
specialists. The timely component, the case manager component, the 
access to subspecialists, and adequate number of direct visits are very 
direct components. I yield the floor.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Mr. President, I commend the Senator from Tennessee. As 
the Senate's only physician, he brings a unique perspective and a very 
useful perspective to these important health care issues. He has been a 
leader in working to improve still further on the work that was done in 
the HELP Committee.
  The task force has been working on this issue for some time. We first 
started working on the issue in January of last year. We met every week 
for many months. That is an indication of our determination to produce 
a balanced bill that will really make a difference to millions of 
Americans.
  Our efforts did not cease. Once we went to the HELP Committee, we 
continued our work, and we are continuing our work today. That is why 
we have come up with this amendment to further strengthen and improve 
the legislation reported by the HELP Committee.
  I yield as much time as he would like to the chairman of the HELP 
Committee, the Senator from Vermont.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. JEFFORDS. Mr. President, women have special health needs that 
require the expertise of practitioners trained in obstetrics and 
gynecology. We must offer them the best means to provide for their 
preventive women's health needs, as well as access to an obstetrician 
to ensure a safe pregnancy and delivery of healthy children. Under our 
bill, direct access for women to routine gynecological care will be 
ensured. Obstetrical care and needed follow-up are also ensured without 
requiring preauthorization by the plan. For coordination of care, 
providers may be asked to provide on a continuing basis the medical 
treatment plans in order to allow for good coordination of a woman's 
health care needs.
  In Vermont, legislation has ensured that women have direct access for 
their obstetrical and routine gynecological needs in order to 
facilitate optimal care. Vermont's law however does not cover 42 
percent of women in Vermont who are in self-insured group health plans. 
Our bill will ensure that all women in Vermont will be guaranteed 
direct access for their preventive women's gynecological health needs, 
as well as obstetrical care.

[[Page S8474]]

  I do not support the Democratic bill that requires health plans to 
designate their practitioners specialized in obstetrics and gynecology 
as primary care providers. This provision in the Democratic bill would 
force practitioners specialized in obstetrics and gynecology to 
practice primary care, independent of whether they feel qualified or 
have the desire to do so. Some obstetricians and gynecologists may be 
adequately trained and experienced in primary care medicine as well as 
their specialty. In those special cases, the plan will be able to 
review their competency and comfort level, and determine if women in 
the plan would be well served to be able to designate them as their 
primary care doctor as well. We must protect our women's health care 
needs to the same degree as we protect our men's, and ensure that women 
are being cared for by the people best trained to do so.
  I want to ensure that women's health care needs are met the best 
possible way. We will do so by requiring direct access in self-ensured 
group health plans for obstetrical and routine gynecological services 
to practitioners specialized in these areas. We will also expect the 
same degree of training for the providers looking out for the overall 
health needs of women, by not assuming that all obstetricians and 
gynecologists are as well trained in primary care as providers who have 
had focused training and practice experience in providing for the total 
general health. I strongly urge my colleagues to ensure that the best 
health care needs for women is met. This will be done by supporting our 
bill.
  I reserve the remainder of the time and yield the floor.
  Mrs. BOXER. Mr. President, I wonder if the Senator will yield for a 
question.
  Mr. JEFFORDS. On your time.
  Mr. REID. Mr. President, I yield the Senator from California up to 5 
minutes.
  Mrs. BOXER. I am very interested in the comments by the Senators who 
support this amendment because if one reads their bill, first of all, 
they say women deserve OB/GYN care, and they are right. That is why 
Senator Robb offered his amendment to cover all the women in America.
  I ask my friend from Vermont: How many patients are covered by this 
amendment?
  Mr. JEFFORDS. As we are going along here, we have two different 
approaches, and the approach we take is that we are trying to help 
those women who are primarily under ERISA prohibitions----
  Mrs. BOXER. I am just asking the Senator if he can tell us how many 
women are covered, just the number.
  Mr. JEFFORDS. I can give you a number.
  Mrs. BOXER. Perhaps I have the answer to the question.
  Mr. JEFFORDS. Somewhere around 20 million.
  Mrs. BOXER. Twenty million.
  Mr. JEFFORDS. There are 48 million. It is higher. Somewhere in that 
area. From 20 to 48.
  Mrs. BOXER. I say to my friend, 50 million are left out. I say to my 
friend, the vast majority of women are left out. In the last amendment 
by Senator Snowe, the one good thing she did is cover all the women in 
terms of her amendment that dealt with mastectomies. We are facing an 
amendment, whereas the underlying bill will guarantee--that is the 
Democratic bill--all women these protections, this only applies to a 
very small percentage of the women. Let's make sure people know this is 
a sham.
  Mr. DORGAN. Will the Senator from California yield for a question?
  Mrs. BOXER. I will be happy to yield.
  Mr. DORGAN. I wonder if the Senator will include in her question why 
a proposal would have been offered by one Senator, Senator Snowe, that 
covers all the women. With respect to mastectomies, but the proposal 
offered on OB/GYN leaves out up to 50 million women.
  Mrs. BOXER. It would leave out about two-thirds. My friend is 
correct. I wonder, I say to my friend, what his response is. I was 
asked that question by Senator Kennedy. The only thing I can come up 
with is politics. The heat was on on the mastectomy issue, the light 
was on, so they covered everybody. Now on this other amendment, they do 
not cover all the women.
  If my colleagues will turn to page 8 of this bill, I say to my friend 
from Maine and my friend from Vermont, if they will read the way they 
have structured this, it says:

       A group health plan described in this paragraph may treat 
     the ordering of other care that is related to obstetrics or 
     routine gynecological care.

  ``May treat.'' It does not say they have to. This, I say to my 
friends, is a sham proposal. It does not do anything for the women of 
this country. It leaves out two-thirds of the women, and it leaves it 
up to the health plan if they are going to give this kind of care.
  Let me tell my colleagues specifically what I mean. Yes, they provide 
access for routine gynecological care. Suppose you finish your checkup, 
everything is fine and a month later you find a lump in your breast. 
You cannot go to that OB/GYN, except if the Democratic bill passes 
because we give direct access to women and make OB/GYNs the primary 
health care provider.
  In the debate yesterday, the Senator from Tennessee stood on this 
floor and said the OB/GYNs do not want to be primary care providers. 
That was an untruth. We have a letter on the desks from the 
organization that represents them, and the gentleman who was cited on 
the floor of this Senate said it was a misrepresentation; they support 
the Democratic proposal. They want to be primary care providers.
  So we have an amendment here that purports to help women, but, A, it 
does not help the vast majority of the women in this country; B, it 
undermines the Democratic bill, which says you can go to your OB/GYN 
any time you want without having to go through a gatekeeper; and, C, it 
does not treat women the way they ought to be treated.
  So I would call on my colleagues to support the underlying Democratic 
bill.
  Mr. DORGAN. Will the Senator yield?
  Mrs. BOXER. Yes.
  Mr. DORGAN. Instead of saying this helps women, this amendment should 
be characterized as saying it helps some women but not most women. 
Would that be accurate?
  Mrs. BOXER. I would say some women just a little bit. Not as much as 
they say.
  The PRESIDING OFFICER. The Senator has used 9 minutes.
  Mr. REID. Mr. President, I would like to direct a question to the 
manager of the bill, the Senator from Vermont. There is a provision in 
your bill--by the way, let me, for everyone, just explain. Because of 
the way we were forced to debate this issue, we have been unable to 
look at this amendment. We just got this amendment. What happens in the 
ordinary course in the Senate is if somebody offers an amendment, under 
normal conditions, we would ask for a quorum call so we could take a 
look at the amendment before the debate started. We cannot do that. Our 
time is running as we speak. So we are trying to work our way through 
this amendment they have jammed in here at the last minute without 
giving us any notice as to what was going to be in it.
  But my question to the Senator from Vermont is, there is a 
provision--in fact, it is the first provision in the bill--that 
includes long-term care insurance. Would the Senator from Vermont tell 
the minority how much this is going to cost and from where the money 
comes?
  I would like the Record to note the dull silence.
  Mr. DORGAN. Will the Senator yield while waiting for an answer?
  Mr. REID. Yes.
  Mr. DORGAN. I think there are two other questions on that point: Not 
only how much does it cost, but because this is a tax provision, is it 
not the case that this clearly is a blue-slip provision? A tax 
provision cannot start in the Senate.
  Mr. REID. Will the Senator explain what this means to the people 
watching?
  Mr. DORGAN. Constitutionally you must not start a tax provision in 
the Senate; it has to originate in the House. Second, is it offset? If 
so, how would one pay for this tax incentive? I think those questions 
should be asked as well. I wonder if we could get an answer to that.
  Mr. REID. I would ask, through the Chair, the manager of the bill to 
answer those questions, if he would,

[[Page S8475]]

please. We have just received a copy of the amendment from the pages a 
couple minutes ago.
  Mr. JEFFORDS. I will defer to the distinguished Senator from 
Oklahoma.
  Mr. NICKLES addressed the Chair.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. NICKLES. Let me make a couple comments on the bill in general. I 
am assuming I am on our time.

  The PRESIDING OFFICER. Yes.
  Mr. NICKLES. How much time remains on the amendment?
  The PRESIDING OFFICER. The majority has 23 minutes 6 seconds; the 
minority has 42 minutes 45 seconds.
  Mr. NICKLES. Mr. President, one, I understand some of my colleagues 
made the statement, what about a blue slip? If we pass a tax cut, won't 
the House of Representatives automatically blue-slip it? For those 
people who are not aware of what that means--and probably a lot of 
people watching do not have the faintest idea what that means and what 
that has to do with health care--the idea of a blue slip is that the 
Constitution of the United States says: All revenue measures must 
originate in the House. If the Senate originates a tax cut or revenue 
measure, the House can refuse to take it. They can blue-slip it and not 
have it go anywhere. We do not plan on having that on this particular 
bill. We have seen it before.
  I might mention, in the unanimous-consent agreement that was agreed 
to, that outlined the procedures for the bill. We agreed:

       That following passage of the bill, should the bill upon 
     passage contain any revenue blue slip matter, the bill remain 
     at the Desk; that when the Senate receives the House 
     companion bill, the Senate proceed to its immediate 
     consideration; that all after the enacting clause be 
     stricken, the text of the Senate-passed bill be inserted in 
     lieu thereof, and the bill, as amended, be passed; and that 
     the Senate insist on its amendment and request a conference 
     with the House, all without any intervening action or debate.

  What that means is, obviously, we knew in the Senate bill it was our 
intention to deal with tax issues because we want to increase access; 
we want to improve access; we want to increase the number of people who 
are insured. Unfortunately, our colleagues' bill, the Democrat bill, 
the Kennedy bill, will increase the number of people who are uninsured. 
It is estimated by people to increase the number of uninsured by 1.8 
million, maybe 2 million people who would lose their insurance. We 
don't want to do that.
  I stated on the floor of the Senate, maybe 2 years ago, that whatever 
we did we should do no harm, we should not increase health care costs, 
and we should not increase the number of uninsured. We should be doing 
just the opposite. We should be increasing the number of insured.
  In the amendment the Senator from Maine has offered, we have given a 
tax credit for people with long-term health care, a provision I believe 
and I hope and expect will improve the access to long-term health care, 
which is a problem for millions of Americans. That will improve it 
dramatically. It will be a very positive change.
  I compliment my friend and colleague from Maine for basically saying: 
We want this in our bill. Long-term health care is a very significant 
problem. There are a lot of people going into nursing homes and they 
are going bankrupt or their families are going bankrupt trying to take 
care of loved ones in nursing homes.
  Shouldn't we do something to address that? In the Tax Code we have 
incentives to help with health care, rather significant incentives. 
Large corporations get to deduct 100 percent. Unfortunately, the self-
employed only get to deduct 45 percent. We have already addressed that. 
That was one of the amendments we agreed to yesterday, allowing 100-
percent deductibility for the self-employed. That is a positive change.

  This change, as offered by our colleague from Maine, and others, is a 
very positive change saying, let's give a tax deduction for people in 
purchasing long-term health care coverage so they will not be so 
dependent on their kids or their grandkids, in some cases, or other 
family members, so they can start working on preparing for their later 
years and making that available for them now. That will improve their 
quality of health care now, or they will be ready for it now. Most 
people do not do that. Most companies do not do it. Most plans do not 
do it. We want to encourage it. We want to jump start it. We want to 
make it a common option, a common fringe benefit that, frankly, right 
now is not there. Most people do not have it, do not think about it 
until it is too late, until a loved one goes into a nursing home or 
maybe a loved one has a real problem with Alzheimer's or something, and 
the expenses are very large.
  So the provision my friend and colleague, Senator Collins, has 
offered allows individuals with no employer subsidy to deduct 100 
percent of the cost of long-term care insurance and allows long-term 
care benefits to be offered through a cafeteria plan.
  The estimated cost--I think somebody asked that--is $5.4 billion over 
5 years and would benefit an estimated 3.8 million taxpayers. I make 
that clear.
  One of my colleagues said: How is it paid for? How are you going to 
pay for it? What is your intention on how to pay for it?
  We actually do intend on having some offsets. We have not introduced 
those yet. We will at the appropriate time.
  I have been somewhat critical and maybe have had a little fun with my 
colleague, Senator Kennedy, because he had some tax increase in some of 
the provisions including Superfund and others. I do not think Superfund 
belongs in this bill. We do plan on having some offsets at the 
appropriate time. We do not have to, under this UC, have them in the 
bill at this point or else my colleague could make a point of order on 
it. That is not allowed in the unanimous consent agreement that was 
already reached by both sides, and so I just mention that.
  But at the appropriate time we expect to have an offset. Even if we 
did not have an offset, the bill would not pass the Senate; it would be 
held at the desk until we received the appropriate vehicle from the 
House of Representatives.
  Mr. President, I reserve the remainder of my time.
  Mr. REID addressed the Chair.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. I think this is an interesting argument, to say the least. 
We have, on this side, striven, worked very hard to make sure there are 
some benefits for long-term care. It is great that there is some 
acknowledgement they want to do that, but in this age of frugality, it 
is interesting that the majority is willing to spend $5.4 billion with 
no offset. Anything we have set forth in this bill had offsets. We 
looked at the Superfund as an appropriate offset, and the only 
complaints we heard were from the majority in this regard. In short, it 
appears that we have, as the Senator from California pointed out, a 
provision to help women that really doesn't help women. Helping the 
women which is about 20 million women, is not mandatory. The HMO could 
do it if they want to. It is permissive. It is like having nothing.

  We have learned from a letter from the President of the American 
College of Obstetricians and Gynecologists that at least a third of the 
women who want to go to a gynecologist in these HMOs are refused. This 
amendment, the little bit that we have been able to see in the last few 
minutes, it is clear, has no substance. It is a sham. It is a phantom.
  It is, as I pointed out in my opening statement, a game that I first 
learned when I went to New York, the shell game. Every time you look 
under one of these shells that the majority gives us, it is empty. 
There is nothing there. You keep looking, hoping that one of the times 
you are going to pick up a shell and there is going to be something of 
substance. This amendment that we have been able to see, again, is 
similar to the rest of the game that has been played here the last 3 
days.
  The shells appear. We anxiously pick one of them up. And just like 
the street game in New York, they are empty.
  Mr. DORGAN. I wonder if the Senator will yield for a question?
  Mr. REID. I am happy to yield.
  Mr. DORGAN. This all reminds me of that old moonwalk that you have 
seen people do, where they look like they are walking forward, but, in 
fact, they are making no progress. A famous singer used to do that 
moonwalk. That is what I see on the floor of the Senate.

[[Page S8476]]

 We offer a proposal that has the support of virtually every health 
organization in this country and every consumer and patient group in 
this country.
  Mr. REID. My only correction is, not virtually every group. Every 
group.
  Mr. DORGAN. Every group. And the proposal deals with care by 
specialists, emergency care, OB/GYN. It covers the vast array of the 
American people.
  Then we have amendment after amendment that is kind of like 
decoration. It is kind of like the paint and the chrome and the hood 
ornaments to try to dress things up and make it look like it is 
something, but it is a vehicle without an engine.
  The engine is what we have produced on the floor in terms of a bill 
that says we are going to do something real for patients who are not 
getting the health care they need. So we will give them some 
protection.
  The response we get is to come out here with some empty vessels and 
some dressing up of some empty vessels saying: We share your concern 
and so here is how we address it.
  On the issue before us, isn't it the case that when someone stands up 
and says: Women have a right to get treatment by their OB/GYN, except 
when they offer the proposal, it is a right for only some women, but a 
right that will be denied to most women? Isn't that the case?
  Mr. REID. And a right that doesn't mean anything. It says that the 
group health plan described in paragraph 2 may treat the ordering of 
other care, ``may treat.'' That says, as my friend from Massachusetts 
has talked about for 3 days, if the insurance company decides it is 
good for them; right? What are they going to decide is good for them? 
The bottom line, what is going to give the HMOs another top $10.5 
billion in profits.

  Mr. DORGAN. One additional question: Wouldn't it be the case that if 
the Senator from Nevada brought to the floor a tax proposal, or a 
spending proposal for that matter, that costs $3 or $5 billion, our 
friend would chase you off the floor and say: If you are bringing 
something to the floor that is not paid for, come on, that violates all 
the rules of the Senate?
  Yet we just heard from our friend from Oklahoma that this provision 
provides tax incentives. It is going to cost billions of dollars. How 
are you going to pay for it? Well, we don't pay for it in this bill, 
but we have an intention to pay for it at some point along the way.
  Do you think our friend from Oklahoma would let you get by with that, 
bringing a provision to the floor that says we are going to have a tax 
incentive and you are not going to pay for it, but you will come up 
with an answer later?
  Mr. REID. I say to my friend from North Dakota, maybe it is going to 
be paid for the same way as the huge cuts that American veterans are 
getting. It could be paid for the same way: Cut them some more, as the 
budget that passed this body that not a single Democrat voted for.
  Mr. DORGAN. Talking about health care.
  Mr. REID. I am talking about health care for veterans. Maybe that is 
where we could get part of it, cut them some more, the veterans.
  Mr. DORGAN. Obviously, the Senator is talking about the budget that 
was passed by the Senate on a partisan basis. I did not support that. 
It is not the right approach to have substantial veterans' health care 
cuts. The Second World War veterans are reaching a time when they need 
maximum health care that was promised them. The right approach is not 
to cut veterans' health care. The need is to increase it. Getting back 
to the point, we have an amendment that was offered, which we had not 
previously seen, that suggests it will provide some protection. In 
fact, it denies that protection to the majority of the American women. 
It doesn't guarantee it, in any event, and provides tax cuts that are 
not paid for.
  Mr. REID. I say to my friend, it guarantees them that they may, if 
the insurance company or HMO decides they want to give it to them, get 
it. It is permissive. That is what it does. It guarantees nothing.
  Has my friend from Florida--again, we have had little opportunity to 
look at this--has my friend from Florida, who has done such an 
outstanding job in previous days talking about our second amendment 
that we offered on emergency medical care, had an opportunity to look 
at their provision in this amendment, beginning page 15?
  Mr. GRAHAM. I say to my colleague, the answer is, briefly, yes. I 
have a couple of questions. Maybe I could engage in a dialogue with 
Senator Hutchinson on these matters.
  Mr. REID. I yield my friend from Florida 3 minutes for this question 
so that we leave the Senator from Massachusetts ample time. If you need 
more time, we will consider it. Three minutes to the Senator from 
Florida.
  Mr. GRAHAM. That depends on how long it takes to respond to the 
question. I will get started
  As I said last night, there were two principal differences between 
the Republican and Democratic emergency medical care provisions. The 
first of those was the question of, if your child has a 103-degree 
fever and needs to go to an emergency room, and the closest emergency 
room is one that doesn't belong to your HMO, but you are taken there 
anyway, can you be required to pay higher charges for that closest 
emergency room as opposed to taking him to the more distant hospital 
that belongs to your HMO's network?
  What had concerned me was the language in the original Republican 
bill. I am looking at subpart (C), section 721, Patient Access to 
Emergency Medical Care, in the original Republican bill. On page 5, 
lines 5 through 18, is the outline of the uniform cost-sharing 
provision. I had read the equivalent language in the amendment which 
appears on page 18, line 13 through line 2 on page 19. I have tried to 
read them, and I believe the language is verbatim the same.
  This is what the committee report which was issued by the Committee 
on Health, Education, Labor, and Pensions and signed by all of the 
Republican Members said about that language:

       Plans may impose cost sharing so long as it is uniformly 
     applied to similarly-situated individuals and to all benefits 
     consisting of emergency medical care. 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.

  The language is verbatim in the amendment as it was in the original 
Republican bill. So can I assume that that committee language, which 
interprets what section (B)(1) on page 5 of the original Republican 
bill, lines 5 through 18 meant, is the same thing that the verbatim 
language in your amendment says?
  (Mr. ABRAHAM assumed the Chair.)
  Mr. HUTCHINSON. I respond to the Senator from Florida by, first of 
all, complimenting him for his concern and interest in this issue and 
for, I think, pointing out clearly some improvements that were needed 
in the committee bill. I do not believe it was the intent of the 
committee to allow a differential in cost sharing for out-of-network 
providers.
  Mr. GRAHAM. Would the Senator look at page 29 of the committee 
report, the first full paragraph?
  Mr. HUTCHINSON. I have looked at that. I cannot explain that 
language, but I believe a clarification was necessary. We have made 
that clarification in the amendment.
  Mr. GRAHAM. Then why is the amendment--what concerns me is that the 
amendment has, word-for-word, much of the same language as contained in 
the underlying Republican bill to which this paragraph relates.
  Mr. HUTCHINSON. I say to the Senator, the change in the amendment is 
in in-network uniform cost sharing. That was the intent to be 
permitted. The amendment, on page 19, on out-of-network care, makes it 
abundantly clear that such differentials in going to an emergency room 
that may not be in the network and requiring a penalty, requiring an 
additional copayment because you went to an out-of-network, would not 
be permissible.
  Mr. GRAHAM. That language is also verbatim in the underlying 
Republican bill. There is a paragraph in the committee report that 
interprets that, as well. That says:

       The committee adopted an amendment offered by Senator 
     Hutchinson, adding a new paragraph (2) to Section 721(b)--

  Which is the same language in the amendment--


[[Page S8477]]


     clarifying that plans may not hold a participant or 
     beneficiary liable for any additional charges--

  That is not the issue of copayments or deductible; that is additional 
charges. This is what we used to refer to as double billing.

       --from a nonparticipating provider who has provided 
     emergency services for the participant or beneficiary. In 
     many communities, plans and MCOs typically contract with 
     specific providers and hospitals. However, an individual as a 
     prudent layperson may seek services at the nearest facility, 
     depending on the severity of the symptoms. It is the 
     committee's intent to ensure that individuals acting under 
     the prudent layperson standards are not held liable 
     financially for exercising this right when they seek care at 
     a non-network facility.

  That refers to the double billing; that is, if you go to a 
nonparticipating emergency room, they can't charge you more. But the 
issue--
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. GRAHAM. The subject of subparagraph 1 is the issue of whether 
they can charge you a different copayment or deductible; that is, if my 
standard deductible, if I go to an in-network emergency room, is, let's 
say, 20 percent, can I be charged a 70-percent copayment because I am 
going to an out-of-network? That is what both subparagraph 1 and the 
paragraph on top of page 29 of the committee report refers to. They are 
two significant and different concepts.
  Mr. REID. Mr. President, on our time, I say to my friend from 
Florida, he has answered his own question. The fact of the matter is, 
they have copied the old stuff from the old bill. They have changed 
nothing. They have packaged it in this fancy package with all these 
ribbons and bows, as the Senator from North Dakota said. As I have 
said, we have this shell game being played. We pick it up and there is 
nothing under it.

  I respect and admire so much the Senator from Florida, who is an 
expert in emergency room care. He has given a number of dissertations 
on the floor that have been outstanding. I say that sincerely. 
Obviously, he understands this issue much better than some who have 
tried to speak on this issue.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. REID. I yield the Senator another minute.
  Mr. GRAHAM. If we both have the same objective, which is to ensure 
that a family with a child with a 103-degree temperature won't be at an 
economic disadvantage by going to the nearest emergency room--if our 
desire is to encourage that, let's not be vague about it. Let us not 
leave this ambiguous.
  Mr. HUTCHINSON. Will the Senator yield?
  Mr. REID. On your time?
  Mr. GRAHAM. No one is served by ambiguity.
  Mr. HUTCHINSON. I don't think it is ambiguous at all. There has been 
a misunderstanding of the language in the amendment.
  Certainly, there can be a differential in a network plan between 
going to an emergency room and going to a provider other than an 
emergency room. That is what is clear both in the bill and in the 
amendment. If you will listen to the language of the out-of-network 
case, I think it is as unambiguous as any language can be:

       The plan shall cover emergency medical care under the plan 
     in a manner so that, if such care is provided to a 
     participant or beneficiary by a nonparticipating health care 
     provider, the participant or beneficiary is not liable for 
     amounts that exceed the amounts of liability that would be 
     incurred if the services were provided by a participating 
     provider.

  I believe that is as clear and unambiguous as language can be. It was 
our intent that you should not have any incentive to drive across town 
while your child or your spouse is in jeopardy, that you should be able 
and would be able to go to the closest emergency room without incurring 
additional costs. That is what the amendment does, and that is what I 
think should be done.
  Mr. GRAHAM. Here is the problem. I am a court or I am an 
administrative agency trying to apply this law. I have exactly the same 
language in this amendment as was reported by the Senate committee of 
jurisdiction. That committee issued a report that, in very unambiguous 
language, specifically interprets these words to mean that you can't be 
charged more if you take your kid to the closest emergency room that 
doesn't happen to be a part of a participating network.
  Now, you have said, Senator Frist has said, and I think everybody 
agrees, that we don't want that to be the result. So why don't we get a 
set of words that removes any ambiguities so that no one, a year from 
now, can go back to this same report and read what the committee 
allegedly meant as applied to the Senate words. It is not a complicated 
concept to articulate. We ought to do it.
  Mr. FRIST. Mr. President, I yield myself 2 minutes. To clear this up, 
the three of us have had discussions. The issue in the underlying bill 
was not clear. The question was raised two or three nights ago by the 
Senator from Florida that there is a potential barrier there that we 
need to clarify, to make sure you can go to the closest emergency room, 
that there is not an economic barrier there, believing you are going to 
be charged more if that is an out-of-network provider or participant.
  I agreed on the floor openly two or three nights ago. The committee 
report I disagree with, he disagrees with it, and Senator Hutchinson 
disagrees because it says--I don't have the exact words, but it implies 
they are allowed to charge more out-of-network. Therefore, agreeing 
with that, we have come up with this wording, which is as clear as we 
can make it. I want to make sure the Record is clear that I agree with 
the Senator from Florida and with Senator Hutchinson, and this is our 
best effort to be as clear as we can, and that the language in the 
committee report is inconsistent with the amendment on the floor.
  I yield the floor.
  Mr. GRAHAM. I don't mean to be repetitive, but my concern is that the 
language in the amendment is exactly the language that is in the 
underlying bill to which that committee report was written.


                         Privilege Of The Floor

  Mr. DORGAN. Mr. President, I ask unanimous consent that Marc Schloss 
be allowed privilege of the floor.
  Mr. REID. Mr. President, I yield 5 minutes to the Senator from Rhode 
Island to talk about the provision in this amendment dealing with 
specialists.
  The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
  Mr. REED. Thank you, Mr. President. I thank Senator Reid for 
yielding.
  This amendment contains many elements, one of which is apparently an 
attempt to provide access to specialty medicine and specialists. But it 
is an attempt that I think falls far short of the mark.
  If you look at the definition of specialty care, it means, according 
to the legislation, someone who has ``adequate expertise.'' I don't 
know of any medical professional who would define themselves as a 
specialist using that terminology--it seems oxymoronic--``adequate 
expertise.''
  It also says ``age appropriate expertise.'' That is one of the 
crucial issues we must address. It is one of the critical differences 
between the Democratic proposal and the Republican amendment that is 
before us today, because in our proposal we specifically guarantee 
access to pediatric specialists. For example, these are individuals who 
we hope have more than ``adequate expertise.'' These are individuals 
who have been recognized by their colleagues as in fact highly 
qualified, highly specialized practitioners of medicine.
  Their amendment is somewhat illusory. It talks about specialists. But 
then it just says to the insurance company that if you can find someone 
with adequate expertise, you can call him or her a specialist. And with 
respect to age, it doesn't have to be a pediatric specialist; it can 
just be someone who has, as I quote, ``age appropriate expertise.''
  What does this mean? Someone who 2 years ago saw a 12-year old or a 
13-year old--the individual might, in fact, be a cardiologist, or a 
nephrologist, but saw the child a couple of years ago--is that ``age-
related expertise?"
  That is not what I think we have to ensure in this legislation. We 
should be able to guarantee to every parent that if their child is seen 
by a general practitioner--a pediatrician, we hope, in the case of a 
child--and that child needs a consultation, or referral, to a pediatric 
specialist, that is what will

[[Page S8478]]

happen. Sadly, this legislation falls far short of that. We must do 
that.
  I just spent several hours on Monday at the Providence, RI, General 
Hospital. I met with pediatricians and pediatric specialists. They all 
told me the same thing. They have a lot of difficulty getting referrals 
in managed care to pediatric specialists. They sometimes might be 
offered a referral to an adult specialist. But there is a difference. I 
think anyone with any knowledge of the medical profession--in fact, far 
more than I--would identify and recognize immediately that a pediatric 
cardiologist and a pediatric nephrologist are in a different subset of 
specialties from what you find at the adult level.
  Our legislation guarantees this type of elasticity to the family.
  The other chorus I heard from listening to these practitioners is the 
fact that the primary care physician in the pediatric field today are 
overwhelmed because they are seeing children--particularly in the 
context of some of these attention-deficit disorders--and they are in 
five or six different types of medicines that they don't see frequently 
or commonly in their practice. They need to get a referral to a 
specialist in child psychiatry, for example, or someone who has much 
more expertise. And, once again, without hard, iron-clad guarantees of 
access to pediatric specialists, this will not happen. It is not 
happening now.
  I seriously question the effectiveness of this particular language 
when it comes to doing what we think can and must be done; that is, to 
have, particularly with some of the children--I have made this point 
time and time again--to have children be with pediatric specialists and 
not just with people with ``adequate expertise,'' not just someone who 
may have seen a few children a few years ago but recognized pediatric 
specialists.
  I continue to hammer away at this issue of children because typically 
they are so poorly served in managed care in regard to access to 
specialists. For one reason, there is a very small volume of 
chronically ill children who need this access. As a result, managed 
care panels seldom will employ these pediatric specialists.
  For this reason, and for the reasons from the other side, my 
colleagues, I think this amendment falls far short of what we need to 
do. I strongly urge its rejection and acceptance of the Democratic 
alternative.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I yield 3 minutes to the Senator from 
North Carolina.
  The PRESIDING OFFICER. The Senator from North Carolina.
  Mr. EDWARDS. Mr. President, I say to my colleagues and to the Senator 
from Tennessee that I suffer from the disadvantage of having seen this 
amendment only for a short period of time, as my other colleagues have. 
But just in that short period of time, I have found what appear to me 
to be--and I am perfectly willing to listen to an explanation--three 
gaping holes in this amendment, particularly as it relates to the issue 
of specialty care. I think our amendment completely closes those holes.
  Hole No. 1: Even though the bill provides for timely specialty care 
in accordance with the exigencies of the case of access to primary and 
specialty care specialists--that on the surface sounds wonderful--here 
is the problem. There are three huge holes in that provision.
  No. 1, the plan can still do anything it wants to control costs, 
which means the plan can have a provision that essentially wipes out 
access to some particular specialty, or some particular kind of 
specialty care, in order to control costs. All they have to do is 
justify it on that basis, which is to control costs.
  So they can essentially eliminate the value and substance of this 
provision by simply saying, as they do every day now: We are doing this 
on the basis of cost. That is the reason the HMO is doing this. We have 
to do it for cost control--so they can keep kids from seeing 
specialists and so they can keep adults from seeing specialists. And 
their justification is, they are controlling costs.
  Huge gaping loophole No. 2: They can still condition access to a 
specialist in a treatment plan, which means the HMO can provide a 
treatment plan that is completely contrary to what the medical 
professionals taking care of the patient believe the patient needs to 
see in terms of a specialist.
  If that treatment plan--written by the health insurance company, 
written by the HMO--is inconsistent with what the doctor is doing in 
taking care of, for example, a young child whom he believes he needs to 
see in terms of a pediatric specialist, then the right to see a 
pediatric specialist is gone.
  So we already have two huge gaping holes:
  No. 1, the HMO can keep people from seeing specialists by just 
saying, we are controlling costs. That is as simple as that. It is 
over. Control is in the hands of the health insurance company.
  No. 2, if they say we have a treatment plan that is different from 
what the treating doctors say the child needs, they can keep the child 
from seeing a specialist, completely eliminating the right.
  And the killer is gaping hole No. 3, particularly working in 
combination with the other two, which is, there is no right to an 
external appeal.
  The result of this is, if the HMO says, we are not going to let you 
see a specialist because of cost, we are not going to let you see a 
specialist because we have a treatment plan that is inconsistent with 
what the treating doctors say, the patient is completely out of luck. 
They can't do a single thing about it. They have no right to an 
external appeal. They are completely stuck. The power remains entirely 
in the hands of the HMO and the health insurance company.
  It doesn't cure it in any way because of the extraordinary problems 
we have with access to specialty care today.
  Thank you, Mr. President.
  The PRESIDING OFFICER. Who yields time?
  Mr. JEFFORDS. Mr. President, I yield 5 minutes to the Senator from 
Minnesota.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. GRAMS. Thank you very much.
  Mr. President, I rise to lend my voice in support of Senator Collins' 
amendment regarding deductibility for long-term care insurance.
  I know some of those on the other side call this a sham-type 
proposal. But to the minority, a lot of times a sham, or empty vessel, 
or a shell game, if the Government doesn't do it, or buy it, or provide 
it somehow, if you encourage personal responsibility, if you encourage 
individuals to buy in the private sector, that doesn't count. The 
Government is left out.
  I think by offering this amendment--by offering the tax incentives--
to try to level the playing field between big employers, self-employed, 
and employees who do not have coverage, and giving them this incentive, 
many will take the option to buy this long-term insurance because they 
will have more access and because it will be more affordable.
  That is the heart and basis of this amendment.
  As Senator Collins mentioned, the long-term care provision of this 
amendment was contained within the Health Care Access and Equity Act 
which I introduced last month. I am pleased the Senate will get a 
chance to vote on this issue because it is such an important issue for 
today's seniors and tomorrow's retirees.
  Mr. President, it is estimated that, in the history of the world, 
half of the people who have ever reached age 65 are alive today. As the 
baby boom generation ages, the population of those over age 65 will 
increase quicker than at any time in history. The increase in the aged 
population brings with it a number of complex and vexing issues, one of 
which is long-term care.
  The Health Insurance Portability and Accountability Act tinkered 
slightly with the issue of long-term care insurance, but we need to 
meet the issue head on rather than skirt the edges.
  I have believed we should encourage individuals to save for their 
retirement needs and, for a number of reasons, usually cost, long-term 
care insurance is often overlooked during retirement planning. 
Unfortunately, I think this often leads to individuals spending 
themselves down to poverty and relying on Medicaid in order to pay for 
long-term care.
  Again, the heart of this amendment is to encourage people when they 
are

[[Page S8479]]

planning for those years to also include long-term care to protect 
their estate, to protect their heirs.
  By allowing individuals to deduct the costs of long-term care 
insurance, we can prevent many of our elderly from impoverishing 
themselves in order to receive long-term care.
  I also wanted to express my appreciation to Senator Hutchinson for 
his work on the prudent layperson language which is so important to all 
of our constituents.
  As many of my colleagues know, I have been working on emergency 
medical services issues for the past 3 years and believe this provision 
will not only help patients in their time of emergency, but it will 
help our EMS providers continue to offer the most advanced emergency 
care in the world. This will help do that.
  Finally, Mr. President, I'd like to express my appreciation to the 
physician Senator from Tennessee for not only his work on the access to 
specialists provision, but also his work throughout this debate 
providing a voice of experience and reason.
  Again, I would urge my colleagues to vote for this much needed tax 
relief for long-term care insurance.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Before my friend from Minnesota leaves the floor, I am 
curious as to how you are going to pay for the $5.4 billion that the 
long-term care would cost. Where would that money come from?
  Mr. GRAMS. We have discussed that. I believe Senator Nickles has 
today talked about that. We do have provisions that will be offered.
  The plan is there. Don't think Republicans would offer this without a 
plan to go along with it.
  Mr. REID. What is the plan?
  Mr. GRAMS. As Senator Nickles said, it will be offered.
  Mr. REID. He said it would be offered later.
  Mr. GRAMS. It will not come out of the Superfund money, I assure you 
of that.
  Mr. REID. What other ideas do you have as to where it would come 
from?
  Mr. President, I yield 4 minutes to the Senator from New Mexico.
  Mr. BINGAMAN. Mr. President, I appreciate the chance to speak about 
the pending amendment, particularly about the specialty care provision 
of the pending amendment.
  I read it recently, but I think there are some serious concerns that 
need to be addressed. The Senator from North Carolina has raised them. 
I know others have as well.
  As I understand the amendment now, there is no provision in it to 
restrict an HMO from charging additional for a patient if they need to 
go outside the plan to get specialty care. One of the things we have 
tried to do in the amendment we drafted on specialty care is to ensure 
not only that a person has the right to specialty care but that they 
cannot be charged whatever the HMO determines in additional charges 
they want to tack on in order to get that access.
  I think this is important. Clearly, if a person has signed on to a 
health care plan, they expect to be able to access the care they need 
without incurring additional costs, particularly when there is no 
restriction in this legislation or this pending amendment, that I am 
aware of, which would in any way restrict the amount of the additional 
cost that might be added. That is a very real concern which I think we 
have to bear in mind.
  Another concern is, the amendment we intend to offer on specialty 
care tries to specify that if a person has a chronic illness that 
requires the care of a specialist, that specialist could be designated 
as the primary care provider. For example, someone who is diabetic and 
who needs to see a specialist, an endocrinologist--which I believe is 
the specialty that is focused on dealing with the problems of 
diabetics--a person could have that endocrinologist designated as their 
primary care physician so they could go directly to that person and not 
have to go through a primary care provider in each case.

  As I read this amendment, it says nothing in this section shall be 
construed to prohibit a plan from requiring the authorization of a case 
manager--that is, the person working for the insurance company--or the 
primary care provider each time you go to see a specialist.
  I think that is another defect in the bill, as I understand it. Now, 
I could be corrected on any of this if the author of the amendment can 
point to other language that I am not aware of.
  The third point I want to make is the same question the Senator from 
North Carolina raised. He referred to it as ``gaping hole No. 3.'' That 
is the question about what do you do when the health maintenance 
organization says no, we will not allow you to access a specialist. 
That is a real-life circumstance that many people face.
  In the amendment we intend to offer, we provide if you are denied 
access to a specialist, you can get an independent reviewer to review 
that decision on a very timely basis and then abide by that decision. 
There is nothing in the pending amendment I can see that would provide 
for any such appeal if the HMO turns down a patient's request for 
specialty care.
  We had a very good opportunity earlier today to hear from a mother of 
a 4-year-old boy about the problems she encountered in trying to get 
access to specialty care for him. That circumstance is one that many 
people face. She was delayed and delayed and delayed by the health 
maintenance organization constantly saying they would not allow her to 
see anyone but her primary care physician for the various ear 
infections her 4-year-old son was having because they believed those 
should be treatable by that primary care physician. After more than 2 
years of being delayed, she finally did get access to a specialist. The 
specialist did a surgical operation which corrected the problem.
  Unfortunately, because this situation existed at this time in her 
son's life, her son now has a speech impairment and is having to go 
through therapy for that. Again, she is encountering problems getting 
access to that speech therapy for her son through the HMO.
  I don't believe the specialty care provision in this amendment that 
is pending solves the problem for most Americans.
  I yield the floor.
  Mr. JEFFORDS. I yield 5 minutes to the Senator from Iowa.
  Mr. GRASSLEY. Mr. President, I am pleased to support Senator Collins' 
amendment that addresses several important areas. In particular, I am 
glad to support the provision to allow a 100% above the line tax 
deduction for the long-term care insurance.
  As chairman of the Special Committee on Aging, addressing the 
challenges of long-term care have been high on my list of priorities. 
During the past two years, I've heard first-hand from individuals and 
family members about the financial challenges that go along with 
managing long-term care needs, such as those associated with 
Alzheimer's Disease.
  In too many cases, families experience financial devastation when 
faced with long-term care needs. Unfortunately, many families do not 
plan for costs associated with long-term care. And many families are 
mis-informed about what Medicare and Medicaid cover in respect to long-
term care.
  Today's average cost of nursing home care is about $40,000 a year. 
When individuals are faced with a chronic or disabling condition in 
retirement, they often quickly exhaust their resources. As a result, 
they turn to Medicaid for help.
  In fact, the care for nearly 2 out of every 3 nursing home residents 
is paid for by Medicaid. As many seniors realize too late, Medicare 
does not cover long-term care costs.
  I introduced legislation last Congress and again this Congress to 
provide an incentive for individuals to plan and prepare for long-term 
care cost. Like the provision in Senator Collins' amendment, my bill 
will allow Americans--who do not currently have access to employer 
subsidized long-term care plans--to deduct the amount of such a plan 
from their taxable income.
  This encourages planning and personal responsibility by helping to 
make long-term care insurance more affordable for middle class 
taxpayers.
  Longer and healthier lives are a blessing and a testament to the 
progress and advances made by our society. But Americans must be alert 
and prepare for long-term care needs. The role of private long-term 
care insurance is critical in meeting this challenge. Over the past ten 
years, the

[[Page S8480]]

long-term care insurance market has grown significantly. The products 
that are available today are affordable and of high quality.
  As policy makers, our job is to develop policies for public programs 
that can deliver efficient and cost-effective services. Yet, equally 
important is the role of private long-term care financing. We must take 
steps to inform Americans about the importance of planning for 
potential long-term care needs. And, in turn, we should provide 
incentives now for the families to prepare financially for their 
retirement.
  The PRESIDING OFFICER. Who yields time?
  Mr. JEFFORDS. Mr. President, I yield the Senator from Maine such time 
as she may take.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Mr. President, I ask unanimous consent that the Senator 
from Michigan, Mr. Abraham, be added as a cosponsor to the pending 
amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. JEFFORDS. Mr. President, I yield to the Senator from Tennessee as 
much time as he may desire.
  Mr. FRIST. Mr. President, how much time remains?
  The PRESIDING OFFICER. The Senator from Vermont has 7 minutes; the 
Senator from Massachusetts has 10 minutes 40 seconds.
  Mr. FRIST. Mr. President, a number of issues have been raised again. 
I appreciate the debate. I think it has been very good on a number of 
these issues, some of which we have talked about in the past and some 
of which have come up on the floor. It is difficult, with the 
amendments being presented, to know exactly what to address and what 
not to address. Those of us who have been looking at this for the last 
year, and through the Health, Education, Labor, and Pensions Committee, 
have looked at a number of these issues. Let me comment.
  The allegation has been made the Republican bill does not assure 
access to specialty care. The fact is the following: The Republican 
bill guarantees access to specialists. Period. Section 725 states that 
plans ``shall ensure access to specialty care when such care is covered 
under the plan.'' We brought up again and again that the problem with 
the Democratic bill is that it guarantees that 1\1/2\ million 
Americans, if it were adopted, would not have any health insurance at 
all and, therefore, would not have access to specialty care.
  No. 2, we have heard that under the Republican bill there is no 
guarantee a child with cancer will have access to a pediatric 
oncologist. That came up earlier in the debate. The Senator from Rhode 
Island brought it back up, so let me just clarify what we have done. 
Again, it has been a process, as we talked again and again about that.
  The Senator from Rhode Island says we need to specifically say 
``appropriate pediatric expertise.'' We talked about it in the 
committee. The reason we use the words ``age appropriate expertise'' 
instead of just pediatric, which is much more narrow than ``age 
appropriate expertise'' is because it includes pediatrics but it also 
includes a terribly important part of our population and that is the 
geriatric aspect of health care.
  We are going to have a doubling of the number of seniors over the 
next 30 years in this country. We have to write this legislation for 
today and 10 years from now and 20 years from now. By using the words 
``age appropriate expertise'' instead of the very narrow construction 
of ``appropriate pediatric expertise,'' we include the geriatrician, 
both of today and the future, as well as the pediatrician; on either 
end of the spectrum. That is the intent. That is the way it is written. 
That is the way it is spelled out very clearly in the committee 
language in the report.
  Going through, we have heard again and again: Under the Republican 
bill, patients could be charged more for out-of-network specialty care, 
even if the plan is at fault for not having access to appropriate 
specialists.
  Again, let me read from the committee report, on page 33, because 
some people have not gone back to read the original committee report 
which is the intent behind the language. We say:

       . . . the committee intends that when the plan covers a 
     benefit or service that is appropriately provided by a 
     particular type of specialist not in the network, the benefit 
     will be provided using the ``in-network'' cost-sharing 
     schedule.

  I want people to understand that. It is on page 33 of the committee 
report, for people to refer back to that.
  I heard again and again: The Republican bill will not allow patients 
to appeal a denial of access to a specialist, to make that appeal to an 
independent reviewer. The fact of the matter is the Republican bill 
provides the right to an independent, external review by a medical 
expert when the access to a specialist is denied on the basis that care 
is not medically necessary or not medically appropriate.

  So, again, let me summarize for, I think, the Senator from Rhode 
Island. The ``pediatric expertise'' I have explained to be more ``age 
appropriate expertise.'' The Senator from North Carolina listed three 
gaping holes which I simply contend are not gaping holes.
  I have not addressed one. The first was the plan can do anything to 
control costs. That was his point No. 1. Let me say that what we have 
used in the bill is, in fact, almost the exact words out of the 
Democratic bill. He is referring to the rule of construction under the 
timely access provision, section 104. Basically, we lifted--used the 
exact same wording as the rule of construction. It goes something like:

       Nothing in this paragraph shall be construed to require the 
     coverage under a group health plan of particular benefits or 
     services or prohibit a plan from including providers . . .

  And it goes on forward.
  With that, I will simply refer him to the rule of construction on 
page 34 and 35 of their bill, of the underlying Kennedy bill, because 
that is where we took that rule of construction, about not requiring 
coverage.
  The second so-called hole was the treatment plan issue and the 
limitation. Again, from your bill, if you look at page 12 where we say 
we require a treatment plan, your bill requires the same sort of 
treatment plan as what we actually required. Again, you can be critical 
of it in our plan, but explain why it is in your plan on page 12.
  The third is this right to appeal. It is very important to deal with 
that right to appeal. Saying there is no right to appeal is, basically, 
absolutely false. We have obtained a legal opinion on this to make 
absolutely sure. If required, the treatment plan is required--what they 
told me, it is to be an element of medical judgment; that is, is it 
medically necessary or not necessary, which takes it in the realm of 
medical judgment. If that is the case, there can be an appropriate 
request for an external appeal, where you have a medical physician, 
independent reviewer, have the final say as to whether or not that 
coverage is there.
  That is about 9 or 10 of the complaints that have been discussed over 
the course of the day.
  Senator Bingaman mentioned cost sharing. Again, I would refer him to 
page 33 of the report where we talk about in-network cost sharing.
  His second point where the specialists have to be primary care 
physicians, I have gone on and on about this. I just disagree. 
Specialists today--a heart transplant surgeon does not need to be 
designated a primary care physician from an access standpoint when you 
have removed the barriers, and that somebody does have access, as 
guaranteed in the bill.
  I see there to be no reason why you designate a heart transplant 
surgeon to be a medical specialist. We just disagree. I yield the 
floor.
  The PRESIDING OFFICER. Time has expired on the time of the Senator 
from Vermont. Who yields time? The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I want to go over where we are in the 
debate. The amendment that has been proposed by our Republican 
colleagues covers, as close as I can figure, four different areas: One 
is the tax credit of long-term care. It is being defined. We have asked 
the Treasury Department to look at that because many of us are 
interested in the long-term care issue. We have not heard back from the 
Treasury Department. Time has expired on this particular amendment.
  There is also the issue of changes to the OB/GYN provision and 
whether this is a change which gives the protections to women which we 
have included in our legislation. The provisions have

[[Page S8481]]

been examined by various OB/GYN specialists. We will include in the 
Record the inadequacies of those particular provisions in achieving the 
objectives described on the floor. The OB/GYN specialists find the 
language included in that amendment fails. That will be available to 
the Members.
  Third is the speciality issue. Our good friends, the Senator from New 
Mexico and the Senator from Iowa, as well as the Senator from Rhode 
Island and the Senator from North Carolina, and others will address in 
greater detail the issue of specialists.
  I want to make a brief comment in response to the particular proposal 
of the Senator from Tennessee. In reading through the language--and it 
is important to read the language, as the Senator has said--it says:

       Nothing in this section shall be construed to prohibit a 
     group plan from requiring that speciality care be provided 
     pursuant to a treatment plan so long as the treatment plan--
     --

  Is developed by the specialist. On page 12, it says:

       . . . appropriate to the conditions of the participant or 
     beneficiary, when such care is covered under the plan, such 
     access may be provided.

  ``When such care is covered under the plan'' makes the provision 
meaningless because the care is covered only if authorized by the 
gatekeeper. It says when the care is covered, but it does not say it 
has to be covered.
  Then it says:

       Such access may be provided through contractual agreements 
     with specialized providers outside the network.

  That is optional. You can read all the lines you want about age-
appropriate speciality if they include it in the plan, but if you start 
right out and say it is not included and is optional, it is 
meaningless. That is not only my opinion, but it will be gone into to 
some degree by others.
  I listened to my friend and colleague from Tennessee say the issue is 
appealable. Why not write that in the bill? We wrote it in. Why leave 
any question? Why does he have to quote a letter from some law 
professor? I have a letter from a law professor that says it does not. 
Why not just write it in the bill?
  I hope there will be some kind of response. I will be glad to yield 
for a minute. We wrote in our bill that it is appealable if a 
specialist such as a pediatric oncologist or necessary specialist is 
denied. Why isn't it included in the Republican plan? It is not.
  We will have an opportunity to debate that issue.
  I do not want to get off message, but I hope our good friend from 
Oklahoma, as well as our good friend from Texas, will now look at what 
the Republican bill is costing.
  This is what the Republican bill is costing. According to joint tax, 
it is $1 billion for patient protections; 100 percent deductibility for 
small business is $2.9 billion; liberalized MSA, $1.5 billion; flexible 
spending account is $2.3 billion. That adds up to $7.7 billion. Long-
term care is $5.4 billion. That is $13 billion--$13 billion for the 
Republican plan.
  I hope we do not hear any more about the cost of the plan with no 
offsets. I hope we can get rid of that argument. It has taken us 2\1/2\ 
days. Under CBO, ours is $7 billion. The Republican plan with this will 
virtually be doubled. I hope we are going to be free of that argument. 
We want to focus on what we are interested in, and that is the 
Patients' Bill of Rights.

  We are going to have an amendment when I yield back the time in just 
a moment. I want the membership to understand, this amendment will not 
be targeted to OB/GYN. It will not be targeted to long-term care. It 
will not be targeted to emergency room care, though there are many 
different provisions in that with which we take issue, which our friend 
from Florida has pointed out. This will only be targeted to the 
provisions of the Republican amendment on speciality care.
  Our amendment is accepted and those who will put forward and present 
it are Senator Bingaman, Senator Harkin, Senator Edwards, and others 
will debate that for the next 50 minutes. It will only be amending that 
particular provision. We will have an opportunity to make a judgment on 
the rest of the provisions later, depending upon what happens on this.
  We are limiting this debate to what we have always wanted: a debate 
on the Patients' Bill of Rights, and that is, protecting people from 
the abuses of HMOs. Long-term care is not a part of that provision, 
although it was brought in and that is important. We do not believe it 
belongs on this, but it is here.
  Many of us are unprepared to make a judgment on that since we just 
found out about that particular provision. We will be interested in 
what the offsets are going to be.
  The next proposal will be the amendment that will be offered by the 
Senator from New Mexico which will be targeted to speciality care. We 
are protecting patients, and we insist they get the specialty care we 
believe is so essential.
  Mr. President, I yield back the remainder of my time.
  Mr. GREGG. Will the Senator yield for a question prior to yielding 
back his time?
  Mr. KENNEDY. Not at this time.
  The PRESIDING OFFICER. All time is now yielded back on the Collins 
amendment.


                Amendment No. 1245 to Amendment No. 1243

            (Purpose: To guarantee access to specialty care)

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

       The Senator from Massachusetts [Mr. Kennedy], for Mr. 
     Bingaman, for himself, Mr. Harkin, Mr. Dodd, Mrs. Murray, Mr. 
     Reid, Mr. Edwards, Mrs. Boxer, Mr. Durbin, Mr. Graham, Mr. 
     Kennedy, Mr. Daschle, Mr. Feingold, Mr. Rockefeller, Mrs. 
     Feinstein, and Mr. Reed, proposes an amendment numbered 1245 
     to amendment No. 1243.

  Mr. KENNEDY. Mr. 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. KENNEDY. Mr. President, I am going to yield the floor. If the 
Senator has a question, I will be glad to yield for a minute to 
respond. I want to have our colleagues talk about this amendment.
  Mr. GREGG. I can respond on our time relative to this amendment. I 
will do it then.
  Mr. KENNEDY. Fine. I did not want to be discourteous to the Senator. 
I yield 7 minutes to the Senator from New Mexico.
  The PRESIDING OFFICER. The Senator from New Mexico is recognized for 
7 minutes.
  Mr. BINGAMAN. I thank the Chair, and I thank the Senator from 
Massachusetts for yielding this time.
  Mr. President, this is a very important amendment. This is the 
amendment that I believe is the most significant for many Americans in 
this entire debate. This is the amendment that relates to the question 
of whether they are going to have access to speciality care as part of 
their arrangement with their health maintenance organization.

  Often, if speciality care is denied or if access to speciality care 
is delayed for a substantial period of time, it can involve a real 
health risk and even death for a patient. This is not an insignificant 
matter. This is a very important matter which is essential we deal with 
if we are going to put in place some protections for patients in this 
legislation.
  The amendment that Senator Kennedy has sent to the desk on my behalf 
establishes, first of all, a general right to speciality care if it is 
medically necessary. If a plan cannot provide such care within its own 
network, then it must allow the patient who needs that care to go 
outside the network at no extra cost to the patient. This is in sharp 
contrast to the amendment we were talking about before which the 
Senator from Maine sent to the desk. In that case, there was no 
restriction on the HMO in its ability to charge additional amounts to 
the patient if they went outside the plan.
  We provide that no additional charges can be imposed. This is a 
procedure which is in place in many of our managed health care plans, 
but unfortunately not in all. What we would do is say that this is a 
basic right that people in this country are entitled to if they have 
health care through health maintenance organizations.

  The second thing this amendment does is it allows people who have a

[[Page S8482]]

chronic or a serious ongoing illness that requires specialty care to 
receive that care either through a standing referral to a specialist or 
by designating a specialist as their primary care provider.
  This is very important. This is an important protection for disabled 
people, for individuals with serious chronic illnesses, such as 
diabetes. In my comments a few minutes ago, I referred to the fact that 
a person with diabetes clearly needs access to a specialist on an 
ongoing basis. They receive most of their care from a specialist who 
understands their condition, and that specialist is in the best 
position to coordinate their care.
  The plan which the Republican Members offered a few minutes ago does 
not guarantee access to that specialty care without additional cost. It 
does not guarantee access to that specialty care for all patients. And 
it does not guarantee access to that specialty care on an ongoing basis 
with that specialist being designated as a standing referral or as a 
primary care provider.
  So there is a very great difference between what we are offering in 
this second-degree amendment and what was earlier discussed.
  This amendment I think is absolutely crucial for people who suffer 
from these ongoing chronic diseases. This is an issue which we heard 
very dramatically described earlier this morning in a press conference 
that occurred outside the Capitol.
  We had a woman attend who talked about the problems--she is a nurse 
herself, so she knows a great deal about providing medical care to 
individuals--and she talked about the problems she and her husband had 
in gaining access to specialty care for their young child, their 4-
year-old son Matthew. What she said I think rings true to a lot of 
Americans.
  Let me just go briefly through her story. She talked about Matthew 
having a significant speech delay that had been directly linked to his 
repeated ear infections. She said for the first 2 years of his life 
Matthew suffered 14 ear infections. In most cases this is a normal 
childhood illness that is treatable by antibiotics, but in the case of 
Matthew it was not a normal childhood illness.
  The doctor who treated Matthew repeatedly used antibiotics instead of 
granting the request, which the parents made, for a referral to an ear, 
nose, and throat specialist. As a nurse, this mother, Beth Gross, knew 
the risks of the chronic condition. She grew frustrated at how a simple 
surgical procedure called an ear tube placement could have immediately 
corrected this problem, and eventually her frustration grew to a level 
where she made the decision to change her primary care physician.
  She called the insurance company at that point. She said when she 
explained the dilemma she was in, she was outraged by the response she 
received from the insurance company.
  This is a quotation from her statement. She said:

       We could not get a referral for Matthew because it was 
     their policy [the policy of the insurance company] to impose 
     monetary sanctions on the physician for giving a referral for 
     something that he is able to treat.

  It was the view of the insurance company that he was able to treat 
this. They were going to impose monetary sanctions on him if there was 
a referral made. On that basis, they would not allow the referral. So 
she had to fight for another year to get the referral that Matthew 
needed.

  By that time, Matthew was 18 months old and was still not speaking. 
Although she had changed doctors, she could not change insurance 
companies. When they finally did see the specialist they needed, the 
specialist immediately knew the right procedure and performed it to 
correct the problem. So Matthew finally did receive this ear tube 
surgery that he desperately needed. After that, his hearing cleared up; 
the problem was solved.
  Unfortunately, though, if Matthew had only been treated earlier he 
would have been able to avoid the speech problem he now has as a 4-
year-old. She said in her statement:

       Now our family must work to correct his speech problem. Our 
     insurance company has changed since then, but it has been 
     another fight with another HMO to cover speech therapy. They 
     denied coverage for that service until the National Patient 
     Advocate Foundation stepped in and won that battle for 
     Matthew.

  We have a serious problem in gaining access to specialty care in the 
case of many of these HMOs. The amendment we have prepared has the 
support of a tremendous number of groups: The National Alliance for the 
Mentally Ill, the Patients Access Coalition, the Religious Action 
Center of Reform Judaism, the Coalition of Cancer Organizations, the 
Oncology Nursing Society, the American Thoracic Society, and on and on.
  So there is a very long list of organizations that believe very 
strongly we need to have this protection built into the law. I believe 
very strongly in that.
  When I travel through New Mexico and talk to people about their 
health care problems, of all the issues that I am told about, probably 
this issue of gaining access to specialty care is the most significant.
  People are very concerned that if a circumstance befalls them or 
their child or their parent, they will be denied access to specialty 
care unless we do something to ensure that that access is there. The 
amendment we are offering will provide that access. It will ensure that 
access is there. It is a basic right that we ought to ensure.
  Let me mention one other thing because I think this is a point that 
was made several times this morning.
  We spend billions and billions of dollars in this country, and we 
vote for those dollars right here on this Senate floor, to support the 
very best medical research in the world. At the National Institutes of 
Health, I think their budget this year is somewhere in excess of $13 
billion. We do have the specialists that the rest of the world envies. 
People come here from all over the world to gain access to these 
specialists.
  The PRESIDING OFFICER (Mr. Smith of Oregon). The Senator's time has 
expired.
  Mr. BINGAMAN. Unless we put some of these protections in the law, we 
are denying our own citizens, in many cases, access to the specialists 
their tax dollars have paid to train in the specialty care their tax 
dollars have gone to develop. So we need to put these protections into 
place. The great research and the great health care that is developed 
at NIH needs to get to the patient, and that is what this amendment 
will try to do.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. BINGAMAN. I very much hope that all Members of the Senate will 
support this amendment.
  I yield to the Senator from Nevada the remainder of my time and yield 
the floor.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. REID. I yield 7 minutes to the junior Senator from Iowa.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. HARKIN. Mr. President, this is an extremely important issue that 
Senator Bingaman has come up with. I am proud to be a cosponsor of the 
amendment with him. I will just read the list of additional cosponsors: 
Senators Dodd, Murray, Reid of Nevada, Edwards, Boxer, Durbin, Graham 
of Florida, Kennedy, Daschle, Feingold, Rockefeller, Feinstein, and 
Reed of Rhode Island.
  This is an important issue. I have worked, as Senators know, for a 
long time on issues dealing with disabilities, people with disabilities 
in this country. This is an extremely important issue for people with 
disabilities and people with long-term chronic health conditions such 
as cancer and others. The Bingaman amendment would ensure access to 
specialty care would be guaranteed to individuals in a group health 
plan so they have access to the specialty care they need. The inability 
to access specialists is the No. 1 reason people give for leaving HMOs. 
When I hear criticism of managed care from my constituents, it almost 
always involves some sort of problem with access to specialists.

  Senator Bingaman has articulated the differences in the bill. I want 
to review them again so people have a clear understanding of what the 
Bingaman amendment does.
  First, the amendment guarantees patients access to specialists who 
are qualified to treat their conditions. If the specialist in the 
plan's network cannot meet a patient's needs, this amendment allows the 
patient to see a specialist outside of the HMO's network at no 
additional cost.

[[Page S8483]]

  For example, there are several rare and deadly forms of cancer that 
strike children at an early age. Pediatric oncologists often have 
advanced skills and technical knowledge that general oncologists do not 
possess. We have to make sure the parents of these kids can gain access 
to such specialists, even if the plan they have doesn't have pediatric 
oncologists in its network. We have to ensure they can get these 
without additional cost. The Republican proposal fails to provide this 
basic protection.
  Secondly, our amendment allows a specialist to be the primary care 
coordinator for patients with disabilities or life-threatening or 
degenerative conditions. For example, imagine a woman with severe heart 
disease who also has diabetes and hepatitis. She recently had heart 
surgery and wants her cardiologist to coordinate her care. The Bingaman 
amendment would allow her to have her cardiologist as her primary care 
coordinator, who would then coordinate her care under a treatment plan 
in collaboration with her internist, endocrinologist, 
gastroenterologist, and the health plan.
  Again, the Republican proposal fails to provide this logical 
protection. According to their version of patients' rights, a patient 
with a serious illness could be required to entrust important decisions 
to a primary care doctor who has no knowledge of the specific disease 
the patient may have. If someone has a chronic or degenerative illness 
or disability, it is only logical to have a specialist who understands 
those special needs to coordinate the patient's care.
  The third element of this amendment provides for standing referrals 
for people who need ongoing specialty care, which enables them to go 
straight to the specialist instead of jumping through hoops time after 
time after time with primary care doctors or insurance companies.
  Here is a true story: A San Diego woman with paraplegia wanted a 
standing referral to a rehab specialist, but her HMO primary care 
physician refused that. After she developed a severe pressure wound, 
something a rehab doctor would have caught and treated, her primary 
care physician still refused a referral. Eventually this woman had to 
undergo surgery and spent a year on her back in the hospital with 
round-the-clock nursing care. Later the HMO's medical director was 
quoted as saying, managed care ``doesn't accurately meet the needs of 
the special patient.''
  Again, the Republican proposal fails to provide this commonsense 
protection. According to the Republican's version of patients' rights, 
a patient receiving ongoing care from a specialist would have to go 
back and go back and go back to her or his primary care doctor whenever 
he or she needed to visit the particular specialist.
  From anyone's point of view, this does not make sense. By requiring a 
patient with an ongoing medical condition to continue to go back time 
and time again to a primary care doctor, every time they need to be 
treated by a specialist, inhibits the process of making the patient 
well.
  Some people say our amendment would create onerous new burdens on 
plans. In fact, many plans already allow specialists to be primary care 
coordinators, and they let people have standing referrals. In addition, 
the numerical estimates don't factor in the importance of Americans' 
trust in the health care industry. The patients' rights we are 
legislating on will build consumer trust in the health care industry 
and consumer satisfaction. I believe that is in the best interest of 
our entire health care system.
  Most importantly, when you step back and consider the policy of the 
Bingaman amendment, it is very simple: Insured Americans should get 
access to specialty care when and how they need it. They shouldn't be 
charged a single dime more than what they bargained for--nothing more 
and nothing less.
  A lot of organizations support this amendment, including the American 
Academy of Pediatrics, the Consortium for Citizens with Disabilities, 
and the Patient Access Coalition.
  I encourage my colleagues to join in supporting the Bingaman 
amendment.
  Mr. REID. Mr. President, I yield 7 minutes to the Senator from North 
Carolina.
  The PRESIDING OFFICER. The Senator from North Carolina.
  Mr. EDWARDS. Mr. President, first, I join my colleagues, Senators 
Bingaman and Harkin, in support of their amendment. I strongly support 
it. They have made great cases for it.
  There is another issue I will address that goes to this amendment but 
also goes to the amendment presently pending from the other side which 
deals with issues of specialty care, emergency room care, and OB/GYN 
care. I want the American people who are listening to this debate to 
listen carefully to what I am about to say.
  There is a huge, fundamental issue we are debating in the Senate this 
week. That issue is, are health care decisions going to be made by 
doctors and patients, or are they going to be made by insurance 
companies and HMOs.
  Every provision that has passed and has been proposed, including this 
amendment presently before us, leaves power in the insurance company. 
It leaves power in the HMO. The arguments we hear that these bills are 
true patient protections are entirely circular.
  If the American people believe insurance companies and HMOs should 
continue to make all the decisions, should continue to have control of 
the process, then they should support what our colleagues on the other 
side have been supporting. If they believe there needs to be a change 
in that system, then they should support what we are proposing and 
supporting.
  The very simple reason--it is easy to understand--why their bills 
change nothing about the present system is because there is no way to 
enforce them. They allow appeals only on the issue of what is medically 
necessary. It is the only thing that is appealable. What is medically 
necessary is determined by the HMO and the health insurance company. 
They write in the contract what is medically necessary. So no matter 
what we do in the Senate, no matter what we pass, so long as the 
insurance company and the HMO can define what is medically necessary--
and we have seen some ludicrous definitions discussed on the floor, 
including, for example, that it shall be in the sole discretion of the 
HMO and health insurance company to determine what is medically 
necessary, which means they can do anything they want, since that is 
the only thing that is appealable and, therefore, the only thing that 
is enforceable--the HMO has total control over this process. The 
patient has no power whatsoever.
  To me, it is as if having a law saying you can't steal money from 
people but not having a court system to enforce it, not having a police 
force to enforce it. So when somebody steals something from you, you 
say: Wait a minute, you can't do that. That is against the law. And the 
person who has just stolen from you says: So what? What are you going 
to do about it?
  What we have done is left the power entirely in the hands of the HMO 
to determine what is medically necessary and, as a result, to determine 
what is appealable. The only enforcement that any patient has is the 
appeal, which means the health insurance company has total control of 
the entire process.
  This argument is completely circular. It makes no difference what we 
pass. We can pass anything--OB/GYN reform, emergency room reform, 
specialists reform. It doesn't matter. The health insurance company 
gets to determine what is medically necessary. The health insurance 
company gets to determine, therefore, what is appealable.
  Those things have already passed, before this debate that is going on 
right now.
  The bottom line is this: Patients have no power; they have no ability 
to enforce anything. As long as the health insurance company maintains 
control over the appeal and grievance process, as long as they maintain 
control over the only enforcement mechanism that exists, we have no 
police, we have no court, we have no way to hold the HMOs accountable.
  When we finish the debate this week, and whatever passes here, HMOs 
are going to have a field day. They are going to go back with their 
teams of lawyers, and they are going to write contracts that completely 
protect them from any patient ever being able to appeal anything. That 
is all they

[[Page S8484]]

have to do. There is nothing in anything we have passed thus far that 
will prevent them from doing that. They can write their contracts any 
way they want. They get to decide what is medically necessary. What I 
have just talked about applies to everything; it applies to everything 
that has passed thus far.
  I will say what my colleagues have said. If what I am saying is not 
true, why don't we simply say, for example, in the amendment that is 
presently pending from the other side, which deals with OB/GYN, 
emergency room care, specialist care--why don't we put one sentence in 
that says: Any denial of services under this amendment shall be subject 
to independent appeal and review.
  That is all it would take. Then it is enforceable. Then you have 
police and a court system. But when that doesn't exist --and it doesn't 
exist, in my opinion, for a reason, in that amendment. I might add, 
that it is clearly stated in the amendment that Senator Bingaman has 
just offered. There is a direct, independent appeal if the HMO denies 
service.
  It is very simple. It is a question of who has power. The way we live 
in the health care system in this country, the power rests with the HMO 
and the health insurance company. I hoped that the debate on the floor 
this week would be about how we can go about shifting that pendulum so 
we put more power in the hands of patients, more power in the hands of 
doctors, that we would pass some thoughtful, moderate legislation that 
would move the pendulum back to the middle.
  Unfortunately, as long as there is no way to enforce it, as long as 
the HMO can write the contract any way they want, they can define 
medical necessity. They define the appeal process and, therefore, they 
can eliminate the right to enforce anything. The power rests entirely 
with the HMO and entirely with the health insurance company, which is 
where it is today, and that is what I believe we need to do something 
about.
  Mr. JEFFORDS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. JEFFORDS. I yield myself such time as I may consume.
  I have listened to the Senator, and I guess he has not been listening 
to the debate because the very argument he made, which has been made 
before--and we spent the time of this body going through the law, going 
through the definitions, going through the committee reports--is 100 
percent wrong. The patient is in control. The patient has the right, 
first of all, to an internal review. First of all, the standard is not 
just necessary; it is necessary and appropriate.
  Mr. EDWARDS. Will the Senator yield for a question?
  Mr. JEFFORDS. Let me talk first and then I can yield. I want to 
inform you because, obviously, you are talking from a poor base of 
information, so there is no sense discussing it until I explain to you 
what is in the bill.
  First of all, we have established for the first time in this country 
the right of patients to be able to get the necessary and appropriate 
health care that they deserve and are entitled to under their plan. 
That is why we have set up an internal review process first, which can 
be appealed within the HMO. And then if care is not given to the 
patient that the patient thinks is appropriate and necessary, there is 
an external review. That external review is made by someone outside of 
the HMO who is a qualified individual, knowledgeable on the subject, 
with the authority to overrule the HMO.

  So how can the Senator get out of that the fact that they have no 
rights, when for the first time we give them rights? We give much more 
rights than your bill does to ensure that people in these HMOs have the 
absolutely necessary and appropriate care that they are entitled to.
  So I hope that we will not continue to hear this repetition of things 
that are not true. Yesterday, the Senator from Pennsylvania came and 
read this to all of you. He read all this, which explains and details 
this and gives you exactly what the process is. And now you turn around 
and say it doesn't exist. It does exist.
  Mr. EDWARDS. Will the Senator yield for a question? I request 
permission to ask the Senator a question.
  The PRESIDING OFFICER. Does the Senator yield?
  Mr. JEFFORDS. Yes, I yield for a question.
  Mr. EDWARDS. Mr. President, I have two questions.
  First, let me ask the Senator, is it his understanding that the 
insurance company, the HMO, writes in the contract what the definition 
of what medically necessary is?
  Mr. JEFFORDS. Yes, but that is appealable.
  Mr. EDWARDS. Is it the Senator's understanding that what is 
appealable is based upon the insurance company's definition that is 
contained in the contract?
  Mr. JEFFORDS. No, that is not correct.
  Mr. EDWARDS. Can he show me that in any bill, in anything we have 
passed----
  Mr. JEFFORDS. We have read it to you.
  Mr. EDWARDS. Let me finish the question. I don't mean to interrupt 
you. Can he show me anyplace, in anything we have passed, where we have 
put any confines, any kind of restrictions on how the HMO or health 
insurance company can define what is medically necessary? Can he show 
me anything to prevent them from defining what is medically necessary 
any way they want?
  Mr. JEFFORDS. They can do that, but it will not be legally binding. 
The patient will have an appeal because in the law it says it must be 
necessary and appropriate care that must be provided. They cannot 
define necessary. They cannot define appropriate. That is a standard 
which we established after evidence as to what the best care is that 
should be available to them. The provisions are in the bill.
  Mr. EDWARDS. I am reading from your bill, page 173, where it says 
what is appealable is what is medically necessary and appropriate 
``under the terms and conditions of the plan.''
  Mr. JEFFORDS. Mr. President, I want to continue this only if it is on 
the Senator's time. I don't have the ability----
  Mr. REID. Mr. President, I yield such time as the Senator from North 
Carolina needs to finish his statement.
  Mr. EDWARDS. I am reading from your bill, where it specifically says 
what is appealable is what is medically necessary and appropriate 
``under the terms and conditions of the plan''--under the terms and 
conditions of the plan written by the health insurance company. Your 
own bill specifically says that the only thing that is appealable is 
what the insurance company's written plan says is medically necessary. 
How does that change the power from the insurance company having total 
control over the enforcement mechanism?
  Mr. KYL. Mr. President, will the Senator from North Carolina yield?
  Mr. JEFFORDS. We are getting into a lengthy dissertation. I think the 
Senator is reading from the old bill, which is a starting problem.
  Mr. EDWARDS. I respectfully suggest that what I am reading from is 
the actual bill.
  Let me ask the Senator one last, simple question. If what he is 
saying is true, is the Senator willing to put in the amendment 
presently before us OB/GYN care, specialty care, and emergency room 
care? On those three provisions, is he willing to put in a specific 
provision that says denial of any of those services is directly 
appealable to an independent body? Would he be willing to do that?
  Mr. JEFFORDS. It is unnecessary. It is already in the bill.
  Mr. EDWARDS. Is the Senator not willing to do it?
  Mr. JEFFORDS. We have legal opinion given to us to exonerate.
  Mr. EDWARDS. What is the right to do it?
  Mr. JEFFORDS. We believe what we have is absolute protection for the 
patient. Not only that, it establishes a new national standard, which 
yours does not. You are using generally acceptable practices, which is 
a much lower standard. We establish a higher standard that every 
patient is entitled to the best medical care which is necessary and 
appropriate. That is a new standard. That is why the doctors are 
concerned, because they are going to have to reach a new standard.
  Mr. EDWARDS. On my time, I am only asking the Senator, if that is 
true,

[[Page S8485]]

why does he have any objection to a simple sentence in this amendment 
that says denial of services under any of those areas is directly 
appealable to an independent body? Does the Senator object to that?
  Mr. JEFFORDS. It is already in the bill, so why should I need to put 
it in?
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, we have gone over this before. Senator 
Kennedy made the same offer. Our legislation says that anything, as set 
forth by the Senator from North Carolina, is appealable. It is as 
simple as that. It is appealable. They are depending on a legal opinion 
from some insurance lawyer. We are not willing to do that. We want 
appealable as part of the legislation. They are unwilling to do that 
for obvious reasons, because their legislation is dictated by the 
insurance companies.
  I also say that the majority leader today bragged about one of his 
Members. I would like to brag about one of our Members.
  We have John Edwards, a new Senator from the State of North Carolina, 
who has represented the injured, the maimed, and the wrongfully killed 
for many years. He is one of the prominent attorneys in the United 
States. He is one of the finest representatives of protecting the 
rights of the oppressed and injured.
  That should be spread across the Record of this Senate.
  We have heard some people boasting about Members on the other side. 
We have one of the finest lawyers in America, now a Member of the 
Senate. We are very proud of that.
  I think he has made a very clear case that the reason they are 
unwilling to agree to his simple words ``it is appealable'' is that 
they don't want it appealable. They know it is not appealable.
  Mr. President, will the Chair indicate to the Senator how much time 
the minority has left on this amendment?
  The PRESIDING OFFICER. The minority has 26 minutes 11 seconds 
remaining.
  Mr. REID. I yield 5 minutes to the Senator from Rhode Island.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. REED. Thank you, Mr. President.
  I rise in strong support of the Bingaman amendment and the Harkin 
amendment and all my colleagues who are supporting it.

  This amendment is particularly responsive to the needs of children in 
the health care system. That is why it has been endorsed by the 
Children's Defense Fund.
  We find when we look at the access to pediatric specialists that 
children don't have that kind of adequate access. As a result, they are 
the ones who will suffer the most, I believe, if we do not have strong, 
explicit language giving the right to access to pediatric specialists.
  There was a survey done in 1992 by Pediatrics magazine. This survey 
indicated that of the pediatricians who were asked, 35 percent 
represented that they thought their patients' health outcome was 
severely upset by denial of access to a pediatric specialist. They 
found that this practice was all too common. For children, in 
particular with chronic illnesses, they must seek specialists. It must 
be clear. It must not be some type of very ambiguous language, as we 
find in the Republican version of the legislation.
  Let me suggest another area when it comes to children where access to 
specialists is difficult. I have a letter from Paul L. Schnur, who is 
president of the American Society of Plastic and Reconstructive 
Surgeons. He points out that approximately 7 percent of American 
children are born with pediatric deformities and congenital defects 
such as birthmarks, cleft lips, cleft palates, absent external ears, 
and even more profound facial deformities. Yet, even in these 
compelling circumstances, he reports that it is very difficult to get a 
referral from a managed care plan to a specialist, and it is probably 
even more difficult to get a referral to a pediatric specialist.
  Of the surgeons who indicated they had trouble getting referrals, 74 
percent had patients denied coverage for initial procedures and 53 
percent had patients denied coverage for subsequent procedures.
  What you see is, access to specialists is difficult for children. 
Access for pediatric specialists is extraordinarily difficult for 
children. And unless we do something about this, we are going to find 
the situation where children will again and again be shortchanged by 
the managed care system.
  The Republicans have said, listen, we have some in here who say it is 
``age specific.''
  We have a great deal of respect and esteem for our colleague from 
Tennessee, who is a physician. I suspect if he were making these 
decisions about referrals to specialists, he would be sensitive to 
``age specificity.'' But that is not who makes these referral 
decisions. It is attorneys, reviewers, bureaucrats, and technicians. 
And, frankly, when they see ``age specific,'' they are going to say: 
Well, you know, we don't have a pediatric specialist on our panel. But 
that is OK, because we can find somebody who perhaps saw a child in the 
last year or two, and that is ``age specific'' enough for us.
  This whole approach is an invitation, once again, to the HMO to make 
up the rules and then make those rules work against the interests of 
their patients, and particularly I am concerned that they will work 
against the interests of children.
  There has been some various research done about managed care plans 
throughout the country. But I received some firsthand information from 
a doctor in Los Angeles who is conducting a very interesting program. 
It is Dr. Craig Jones. He is at the UCLA Medical School. He has 
developed a ``Breathmobile program.'' This program goes right to the 
schools in Los Angeles, and they deal with the No. 1 environmental 
illness affecting children, and that is chronic asthma.
  Dr. Jones has treated lots of children. He has had a great outcome. 
But they collected data. The startling thing about their data is that a 
child in managed care gets the same kind of treatment for severe asthma 
as a child without any insurance. If they look at the numbers, there is 
no difference, because a child in managed care doesn't get the referral 
to a pulmonary specialist or a respiratory specialist. They get--like 
every other child who shows up in the emergency room--a little bag with 
an inhaler, and some medicine, and are told to go home.

  We can do better, and we must do better. But we will not do better 
until health care plans are required to make references to specialists 
and, in the particular case of children, pediatric specialists. I have 
said this over and over again, but it still remains true. There is a 
difference between an adult oncologist and a pediatric oncologist. I 
don't think anyone in this body would dispute that.
  One other final point, if I may make it, is that when you go around 
and look at how physicians are categorized and how specialists are 
categorized, you are not going to find an ``age appropriate'' 
specialty. You are not going to find someone who says, I am qualified 
``age appropriate.'' They are pediatricians, neurologists, and a whole 
host of people who have special qualifications. We have to work with 
those categories and not some vague, disingenuous category which will 
be severely distorted by the insurance companies.
  I urge passage of the Bingaman amendment.
  Mr. BINGAMAN. Mr. President, the amendment that myself, Senator 
Harkin, and many of my colleagues are offering today guarantees 
American families the right to access medical specialists. Our 
amendment is fair. It is what working families pay for each month, and 
very simply put; this amendment can literally save lives.
  Let me briefly outline the fundamental components of this amendment.
  First, our amendment says that if you pay for health insurance, you 
are guaranteed the right to see a specialist if medically appropriate.
  Second, if a plan cannot provide such care within its network, it 
must allow the patient to go outside the network to an institution or 
individual competent to provide the care, at no cost to the patient 
beyond what would be required if the patient were treated in network.
  Third, this amendment allows people with chronic or serious ongoing 
illnesses that require continued specialty care to receive that care 
either through a standing referral to a specialist or by designating 
the specialist as their special care coordinator.

[[Page S8486]]

  The current requirement that patients must go back to a primary care 
doctor whenever they need to see a specialist or when additional care 
is ordered is at best an inconvenience, and at worst, a real detriment 
to timely, appropriate medical services. This is especially critical 
for the disabled and for people with chronic disorders and serious or 
complex medical conditions.
  Our Republican colleagues have said that they cover access to 
specialists in their bill. In fact, their bill does not guarantee 
access to specialists. Under their bill, patients could actually be 
charged more for out-of-network specialty care--even if the plan is at 
fault for not having access to appropriate specialists within the plan.
  Our amendment will have a profound effect on the lives of American 
children and the families who care for them.
  For example, our amendment would allow a child with leukemia to go 
directly to a pediatric oncologist instead of being hauled from doctor 
to doctor.
  A sick child should not have to go through such an additional ordeal. 
This makes perfect sense to me and the American people overwhelmingly 
agree. People who are fighting to stay healthy should not have to 
battle their HMO as well.
  This amendment has other common sense effects. The access provisions 
in this amendment, when combined with a right to a meaningful and 
speedy independent appeal, will help minimize the need for litigation 
by helping ensure patients get the benefits they need from 
appropriately qualified providers in a timely fashion. The guaranteed 
right to have access to a specialist should not be a controversial 
issue. This is a simple matter of allowing working Americans to get 
what they pay for--the best medical health care available.
  Mr. President, I believe this amendment is fair. The current system 
wasn't fair for Henry, a 40-year-old man from Albuquerque, New Mexico 
who had what the doctors refer to as ``lymphocytic lymphoma'' a form of 
cancer.
  Henry was not responding to conventional therapy and quickly required 
a specialized procedure. This was not an experimental procedure and he 
would most certainly die without it. His doctor immediately applied for 
the referral.
  Since there were no facilities for such a procedure in Henry's 
managed care network, his doctor requested a referral to a specialist 
out of network, a right he would have guaranteed under our amendment.
  Even knowing exactly what kind of speciality procedure was necessary, 
where that specialist was, and that time was critical, the managed care 
company held multiple meetings which dragged on for more than a year.
  Under our amendment speciality care is guaranteed to be available and 
accessible because we recognize the importance of providing timely, 
appropriate medical services.
  A final meeting was held between Henry's doctors and the managed care 
company personnel. During that meeting, the managed care company 
required that Henry's doctor explicitly relate descriptions of what 
would happen to Henry without the referral for the necessary procedure.
  Henry's doctor writes:

       I had to sit in front of this patient and his wife and 
     explain in graphic detail just exactly how he would die, how 
     that would be, and how little hope there actually was that 
     anything else would occur.

  Henry's doctor continues, ``Henry had been pretty strong until that 
time, but this broke him and after that point he lost any spirit to 
fight.''
  After one year of requests and delays, the managed care company did, 
in fact, approve the referral, but by that time Henry's condition had 
deteriorated and it was too late. Henry died.
  In a final, sad epilogue to this story, the managed care plan is on 
record as having approved the referral to the specialist for the 
procedure.
  We are fortunate to live in a country that has seen so many medical 
advances. We all have family or friends who have benefited from the 
knowledge and expertise of specialists. Blocking access to these health 
care professionals is wrong and it is well past time to address this 
issue.
  Mr. President, I ask unanimous consent to have printed in the Record 
letters in support of the amendment from the American Academy of 
Pediatrics, the Children's Defense Fund, the American Academy of 
Physical Medicine and Rehabilitation, the National Breast Cancer 
Coalition, Consortium for Citizens with Disabilities, the National 
Association of People with AIDS, the Oncology Nursing Society, and the 
National Multiple Sclerosis Society.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                               American Academy of Pediatrics,

                                  Washington, D.C., July 12, 1999.
     Hon. Jeff Bingaman,
     U.S. Senate,
     Washington, DC.
     Hon. Tom Harkin,
     U.S. Senate,
     Washington, DC.
       Dear Senators Bingaman and Harkin: On behalf of the 55,000 
     physician members of the American Academy of Pediatrics, I am 
     writing in support of your amendment to guarantee that 
     managed care enrollees have access to appropriate providers 
     of care.
       In many ways, children differ from adults. They have a 
     wider spectrum of disorders and much of their care is more 
     complex than similar care in the adult patient. Also, because 
     children are rapidly developing, they often require more 
     comprehensive services in order to promote appropriate 
     development. Physicians who are approximately educated in the 
     unique physical and developmental issues surrounding the care 
     of infants, children, adolescents, and young adults should 
     provide their care.
       Your amendment would ensure access to specialty care, 
     including, in the case of a child, pediatric medical 
     subspecialists and pediatric surgical specialists. The 
     Academy strongly believes that pediatric-trained physician 
     specialists should have completed an appropriate fellowship 
     in their area of expertise and be certified by specialty 
     boards in a timely fashion if certification is available. 
     These practitioners should also be engaged actively in the 
     ongoing practice of their pediatric specialty and should 
     participate in continuing medical education in this area. 
     This is a critical guarantee for the pediatric population.
       The Academy also agrees that an efficient process for 
     approving referrals to pediatric specialists, in- and out-of-
     plan, should be developed and publicized widely to plan 
     members. In some instances, this might include the provision 
     of standing referrals for children with certain health care 
     needs. Your amendment would make this possible.
       Additionally, we support proposed arrangements to allow a 
     specialist to serve as primary care provider in certain 
     cases. Though the role of the ``gatekeeper'' should be 
     assumed by the primary care pediatrician (i.e., the physician 
     who assures that all referrals are medically necessary), this 
     function might be transferred to a pediatric specialist team 
     for certain children with complex physical health problems 
     (e.g., those with special health care needs such as cystic 
     fibrosis, juvenile rheumatoid arthritis, etc.) if the 
     specialist assume both responsibility and financial risk for 
     primary and specialty care.
       Finally, we strongly support the ability of a beneficiary 
     to go out of network, at no additional cost, if the plan has 
     not contracted with appropriate specialty providers or they 
     are not available. For children in need of specialty care, 
     this protection is crucial. Because children tend to be 
     generally healthy and a majority of them do not require 
     specialty services, in some areas and/or within some plans, 
     pediatric medical subspecialists and pediatric surgical are 
     not available. This should never, however, be an excuse to 
     force a family to take a child to a lesser-qualified 
     provider.
       If we can be of assistance or provide additional 
     information in support of your efforts, please do not 
     hesitate to contact us.
           Sincerely,
                                                    Graham Newson,
     Director, Department of Federal Affairs.
                                  ____



                                      Children's Defense Fund,

                                    Washington, DC, July 13, 1999.
     Hon. Jeff Bingaman,
     U.S. Senate,
     Washington, DC.
       Dear Senator Bingaman: I am writing to let you know that 
     the Children's Defense Fund supports the access to specialty 
     care amendment that you and Senator Harkin plan to offer 
     during the Senate debate this week on the Patients' Bill of 
     Rights. As you know, the mission of the Children's Defense 
     Fund is to Leave No Child Behind' and to ensure 
     every child a Healthy Start, a Head Start, a Fair Start, a 
     Safe Start, and a Moral Start in life and successful passage 
     to adulthood with the help of caring families and 
     communities. Your amendment will ensure that families and 
     their children in managed care get access to needed specialty 
     care to help those children get the healthy start in life 
     that they deserve.
       Children with special health care needs often need out-of-
     network specialty care. Cost cutting and profit maximizing 
     managed care decisions all too frequently serve as a bar to 
     access to specialty care for these children. Also, when these 
     children receive on-going specialty care treatment, they 
     should be able to designate their specialists as their 
     primary care providers.
       Your amendment will guarantee that children will get access 
     to the specialty care they need and ensure that children in 
     managed care have the opportunity to grow and

[[Page S8487]]

     develop. Without such protection, children will suffer harm 
     that is unconscionable. Thank you for taking a leadership 
     role in raising this important amendment for consideration by 
     the Senate. We look forward to implementation of meaningful 
     managed care reform that includes these important specialty 
     care provisions.
           Sincerely,
                                                    Gregg Haifley,
     Health Division Deputy Director.
                                  ____

         American Academy of Physical Medicine and Rehabilitation,
                                       Chicago, IL, July 13, 1999.
       Dear Senator Harkin and Senator Bingaman: The American 
     Academy of Physical Medicine and Rehabilitation, representing 
     6,000 physicians who provide comprehensive rehabilitation 
     services to people with physical disabilities, strongly 
     endorses your amendments to assure direct access to 
     specialists for people with disabilities who need specialty 
     care and others who may have ongoing specialty care needs.
       While S. 326 includes a provision on access to specialty 
     care, it does not assure access for it does not enable a 
     person with a condition requiring ongoing specialty care, 
     such as spinal injury, brain injury or stroke, to have direct 
     access to a specialist. Primary care providers are empowered 
     to continue as gatekeepers in such cases under S. 326. Your 
     amendments would authorize standing referrals to specialists 
     or allow a person with conditions such as spinal injury to 
     utilize a specialist as the care coordinator. Your amendments 
     would therefore assure direct access to the specialist while 
     S. 326 would not.
           Sincerely

                                       John Melvin, President,

                                      American Academy of Physical
     Medicine and Rehabilitation.
                                  ____



                             National Breast Cancer Coalition,

                                    Washington, DC, July 13, 1999.
     Hon. Jeff Bingaman,
     Hon. Tom Harkin,
     U.S. Senate, Washington, DC.
       Dear Senators: On behalf of the National Breast Cancer 
     Coalition (NBCC), I am writing to thank you for your 
     leadership in offering the access to specialists amendment to 
     the ``Patients' Bill of rights'' being debated in the U.S. 
     Senate this week. NBCC is a grassroots advocacy organization 
     dedicated to eradicating breast cancer through action and 
     advocacy. Formed in 1991, the Coalition now has more than 500 
     member organizations and tens of thousands of individual 
     members. NBCC seeks to increase the influence of breast 
     cancer survivors and other activists over public policy in 
     cancer research, clinical trials, and access to quality 
     health care for all women.
       As you know, NBCC believes that this amendment is an 
     essential component of a meaningful patients' bill of rights. 
     By offering this amendment and making it a priority, you 
     highlight the importance of ensuring that individuals in 
     group health plans have access to the specialty care they 
     need.
       We appreciate that your amendment includes standing 
     referrals that would allow patients to go straight to their 
     oncologist instead of jumping through hoops with primary care 
     doctors or insurance companies. This direct access is 
     extremely important for women who are fighting for their 
     lives against breast cancer.
       We look forward to working with you to get this important 
     patient protection, and a comprehensive and enforceable 
     ``Patients' Bill of Rights'' enacted into law. Please do not 
     hesitate to call me, or NBCC's Government Relations Manager, 
     Jennifer Katz, if you have any questions.
           Sincerely,
                                                       Fran Visco,
     President.
                                  ____

                                                    Consortium for


                                   Citizens With Disabilities,

                                     Washington, DC, July 9, 1999.
     Re CCD strongly supports the Bingaman/Harkin amendment on 
         access to specialists.

     Hon. Jeff Bingaman,
     U.S. Senate,
     Washington, DC 20510
       Dear Senator Bingaman: We are writing as Co-Chairs of the 
     Health Task Force of the Consortium for Citizens with 
     Disabilities (CCD) to express our strong support for the 
     amendment you intend to offer along with Senator Harkin to 
     ensure appropriate access to specialty care during the 
     upcoming debate on the Patient's Bill of Rights. CCD is a 
     Washington-based coalition of nearly 100 national 
     organizations representing the more than 54 million children 
     and adults living with disabilities and their families in the 
     United States.
       Ensuring that people with disabilities and others with 
     complex medical conditions can designate a specialist as the 
     primary care provider (PCP) is among the most necessary new 
     patient protections, along with the right to go out of 
     network for specialty care when such specialty care is not 
     readily accessible within the network. Most people with 
     disabilities live with extremely complex conditions and 
     getting access to appropriately trained providers with the 
     knowledge and skill to treat their condition can have an 
     enormous impact on their health status. When persons are 
     treated by providers without the expertise or experience with 
     their particular condition, many people unnecessarily become 
     further debilitated, their capacity to function independently 
     is often diminished, or their quality of life could be 
     substantially eroded.
       The Republican Leadership's reform plan clearly fails 
     Americans who may ever need access to a specialist. Consider, 
     for example, a person with a neurological condition. Under 
     the Republican Leadership's proposal, a health plan could 
     refuse to allow the patient to designate a qualified 
     neurologist as their primary care provider. Or, the health 
     plan could restrict the patient's access to a limited number 
     of specialty visits--even when the nature of the condition 
     clearly justifies the need for on-going specialized medical 
     treatment. Any legislation that purports to protect patients, 
     but doesn't give them the basic right to be seen by 
     appropriately trained providers does not deserve to be 
     enacted--and does not address the widespread concerns of the 
     American people.
       The CCD Health Task Force is pleased that you will offer an 
     amendment that will ensure that people whose health condition 
     warrants it are guaranteed that their health plan must enable 
     them to seek the specialty care they require. This amendment 
     addresses the dual issue of access to a specialist as a 
     primary care provider and access to out-of-network 
     specialists when such specialty care is not available within 
     the health plan's network.
       The CCD Health Task Force is grateful for your leadership 
     on this critical issue and we look forward to working with 
     you and your staff to ensure that this amendment is adopted.
           Sincerely,
     Jeffrey Crowley,
                         National Association of People with AIDS.
     Bob Griss,
                                  Center on Disability and Health.
     Kathy McGinley,
                                     The Arc of the United States.
     Shelley McLane,
         National Association of Protection and Advocacy Systems.
                                  ____

                                       The National Association of


                                             People With AIDS,

                                     Washington, DC, July 9, 1999.
     Re NAPWA strongly supports the Bingaman Harkin amendment on 
         access to specialists.

     Hon. Jeff Bingaman,
     U.S. Senate, Washington, DC.
       Dear Senator Bingaman: I am writing on behalf of the 
     National Association of People with AIDS (NAPWA) to express 
     our strong support for the amendment you intend to offer 
     along with Senator Harkin to ensure appropriate access to 
     specialty care during the upcoming debate on the Patient's 
     Bill of Rights. NAPWA serves as a national voice for the 
     nearly one million people living with HIV and AIDS in the 
     United States. We advocate on behalf of all people living 
     with HIV in order to end the HIV pandemic and the human 
     suffering caused by HIV and AIDS.
       Ensuring that people living with HIV and AIDS and others 
     with complex medical conditions can designate a specialist as 
     the primary care provider (PCP) is among the most necessary 
     new patient protections, along with the right to go out of 
     network for specialty care when such specialty care is not 
     readily accessible within the network.
       In recent years, medical advances and the development of 
     highly active antiretroviral therapy (HAART) have given hope 
     to hundreds of thousands of people living with HIV in the 
     United States. This new drug therapy has been successful in 
     preventing or slowing HIV progression for many people. Making 
     appropriate treatment decisions, however, is incredibly 
     complex. If we were to look only at the complexities involved 
     in devising a medication regimen, there are numerous factors 
     to be considered. Most current antiviral combinations involve 
     taking at least three medications. Some of them produce 
     certain types of side-effects more commonly than others. Some 
     must be taken with food, while others must be taken without 
     food. Some medications develop resistance in ways that if you 
     become resistant to one drug you could become resistent to 
     all of a particular class of drugs--and this impacts 
     decisions about which drugs you should take first and which 
     ones you should reserve in case your treatment regimen begins 
     to fail.
       Keeping up with the latest research, working with patients 
     to devise a regimen to which they can adhere, and monitoring 
     HIV progression is very complex. Unless providers have the 
     training and spend time treating many people living with HIV, 
     they cannot treat them well. Shouldn't people have a right to 
     designate a primary care provider that has the training and 
     expertise to treat them effectively? I am glad you think so. 
     Unfortunately, the Republican Leadership proposal would not 
     give America's health care consumers that right. Shouldn't a 
     person be guaranteed that if their health plan does not have 
     the in-network specialists they need, they can go out-of-
     network, and the health plan will pay for such care? I think 
     this is common sense. And I think the American people think 
     that is what health care is supposed to be all about.
       I am hopeful that you and Senator Harkin will prevail in 
     convincing a majority of your colleagues to support ensuring 
     access to specialists. Now that our nation's scientists have 
     delivered us medications that provide hope to people living 
     with HIV until a cure is found, Congress needs to take the 
     next step and make sure that heartless managed

[[Page S8488]]

     care does not deny people the specialty care that can help to 
     keep them alive.
           Sincerely,
                                                . Cornelius Baker,
     Excecutive Director.
                                  ____



                                     Oncology Nursing Society,

                                    Pittsburgh, PA, July 13, 1999.
     Hon. Jeff Bingaman,
     U.S. Senate,
     Washington, DC.
       Dear Senator Bingaman: The Oncology Nursing Society (ONS) 
     is the largest professional oncology group in the United 
     States and is composed of over 29,000 nurses dedicated to 
     improving the care of oncology patients and oncology health 
     services. We endorse the Harkin-Bingaman amendment to assure 
     that managed care plans do not discriminate among providers, 
     such as the care provided by a nurse practitioner. We urge 
     the Senate to pass provisions to allow for the non-
     discrimination of providers in managed care plans.
       This amendment is extremely important to patients in 
     managed care, especially in rural and underserved areas, such 
     as New Mexico. Many areas in this country do not have enough 
     physicians to adequately care for patients in our growing 
     health care system. Many private and managed care plans do 
     not allow nurse practitioners to be reimbursed for their 
     services, thus preventing them from being full partners in 
     our health care system.
       Advanced practice nurses, such as nurse practitioners, 
     provide competent and needed health care resources and 
     information, particularly to the under-served. In one study 
     in Tennessee, it was shown that nurse practitioners provided 
     more care to women and to young clients than physicians. It 
     has been shown that nurse practitioners provide more teaching 
     and counseling services, smoking cessation counseling, weight 
     reduction counseling, as well as nutrition counseling than 
     other providers. These are valuable and needed services to 
     improve many patient's overall health and ultimately reduce 
     future health care costs.
       Nurse practitioners are well prepared to care for the 
     health care needs of patients. Nurse practitioners are well-
     educated to provide health care services. Most nurses 
     entering advanced degree programs already have a wealth of 
     experience in their planned specialty even before entering 
     the advanced educational programs to prepare them as a nurse 
     practitioner. As our population ages, more individuals will 
     have cancer, and the majority of nurse practitioners working 
     with oncology patients have many years of experience as 
     oncology nurses. This type of specialization and care for 
     patients with cancer must be supported. Also, as health care 
     moves from hospital-based care to more care given in out-
     patient settings, nurse practitioners will become more needed 
     to fill the growing gaps in health care resources. It is of 
     outmost importance that they are recognized and receive 
     reimbursement for their health care services.
       The Oncology Nursing Society fully endorses the Harkin-
     Bingaman amendment to provide for the non-discrimination of 
     providers in managed care. We urge the Senate to pass this 
     amendment.
           Sincerely,
     Robert Strohl, RN, MN, AOCN,
                                                        President.
     Pearl Moore, RN, MN, FAAN,
     Chief Executive Officer.
                                  ____

                                                 National Multiple


                                            Sclerosis Society,

                                      New York, NY, July 13, 1999.
     Hon. Jeff Bingaman,
     U.S. Senate, Washington, DC.
       Dear Senator Bingaman, The National Multiple Sclerosis 
     Society is pleased to support the Bingaman/Harkin amendment 
     (access to specialists) to the Patient's Bill of Rights 
     legislation pending in the Senate. Passage of patient 
     protection legislation is one of the top public policy issues 
     for the National Multiple Sclerosis Society. The MS Society 
     supports legislation that would assure the right to quality 
     medical care for all people, including those with chronic 
     illnesses such as MS.
       Our top priority for patient protection legislation is 
     access to specialists. The Society supports legislation that:
       Provides for direct access to a specialist when there is a 
     life-threatening or chronic illness;
       Provides for standing referrals when a patient regularly 
     needs to see a specialist, thereby eliminating unnecessary 
     delays;
       Allows an individual with a life-threatening or chronic 
     illness to choose a specialist as primary care physician.
       We commend your continued leadership in the managed care 
     reform debate and look forward to working with you on the 
     common goal of getting the best medical care possible for 
     patients. Please let us know what we can do to help persuade 
     your colleagues to pass comprehensive bipartisan managed care 
     reform legislation.
           Sincerely,

                                                   Mike Dugan,

                                              General, USAF, Ret.,
                                                President and CEO.

  The PRESIDING OFFICER. The Senator from Arizona is recognized.
  Mr. KYL. Mr. President, let me begin by complimenting Senator 
Jeffords, the chairman of the committee, for the work the committee has 
done, and all of the members of the committee, in bringing forth this 
legislation. I make a point to those who might be watching, this 
debate, frankly, is not quite as cut and dried, as black and white, as 
people on both sides of the aisle are attempting to make it. This is a 
complicated issue. I want to compliment some of my friends on the 
Democratic side for insisting the issue be brought before the Senate 
for debate.
  There are, indeed, situations around this country in which some HMOs 
have abused their position. In order to cut costs--which we all would 
like to see--some HMOs have denied the highest-quality care to people 
under their care. That is something about which we all should be 
concerned.
  Just as much, we need to be concerned about how much it will cost to 
fix the problem. If it costs too much, the cost of insurance escalates 
too high, too many people will no longer be able to buy the insurance 
that is offered.
  We have to be very careful that in working out a solution to what is, 
in fact, a real problem, we don't go too far. That is where the 
differences of opinion are. They should be considered reasonable 
differences between reasonable people. But I fear that too much of the 
debate has been characterized by finger-pointing and by both sides 
characterizing the other side's ideas as absolutely off the wall, or 
that no one could possibly ever think such a thing could solve the 
problem, when, in reality, there are some common answers and there are 
some good ideas on both sides.
  One of the problems Senator Edwards was referring to a moment ago was 
a problem during the external review process and what would be included 
in that external review process. There is going to be a change made by 
Senator Ashcroft and myself that I am sure will be fully acceptable to 
the Senator from North Carolina. It accepts part of the definition he 
and others have offered with respect to what ought to be considered. 
Specifically, among the factors to be considered are not just what the 
HMO writes as its ``practice guidelines or definitions,'' but also 
``recognized best practice'' and ``generally accepted medical 
practice.'' I know the Senator would be pleased with that.
  The fact of the matter is if we continue to talk about this we are 
going to be able to come to some common agreement about what will make 
this work. We have to be careful it doesn't end up costing so much that 
it drives people off of insurance plans.
  I will talk about that for a moment. David Broder, a respected 
columnist, wrote on April 7 in the Washington Post that the cold truth 
about health care raises this critical policy issue which is the 
irrefutable link between health care premium increases and the number 
of Americans without insurance. He said as we debate these various 
proposals, we have to keep this linkage in mind.
  My colleagues on the other side are quick to point out their bill 
could improve health care, but they are not so quick to admit it will 
raise costs. That is the problem. If it raises costs too much, some 
employers will stop offering health insurance as a benefit. That will 
make insurance unaffordable for more Americans. Obviously, that means 
people are worse off, not better off.
  Here are some statistics I think we should keep in mind. The Lewin 
Group, a very respected consulting group, said for each 1 percent of 
premium increase, an additional 300,000 citizens will lose their 
insurance; 300,000 people will lose their insurance for every 1 percent 
premium increase.
  The Barents Group, another respected entity, projects a 5-percent 
premium increase would cause 1.6 million Americans to become uninsured. 
It further points out the increase would force employees who already 
have insurance to pay an additional average of $935 per household in 
out-of-pocket expenses. Most families are not going to be able to 
afford that.
  The Congressional Budget Office has concluded the bill offered by our 
colleagues on the other side of the aisle, the Daschle-Kennedy 
Democratic proposal, would increase premiums by 6.1

[[Page S8489]]

percent. That is the Congressional Budget Office. That is not a biased 
insurance company study. By these projections of these specialty 
groups, this would result in almost 2 million more uninsured 
nationally.
  In my own State of Arizona, over 34,000 people who are currently 
insured would be uninsured as a result of the increased premium costs, 
if the Democratic proposal were to pass. That is why some of the people 
on this side of the aisle are so concerned about what is being done. 
Yes, there is a problem, but the physician's first rule of thumb is to 
do no harm. We are concerned on this side that the proposal of the 
Democrats is so costly that it would, in effect, remove 3 million 
people from the insurance rolls. That is a worse result than is 
currently the case.
  We believe, and David Broder concluded in his column, by correctly 
pointing out, that additional benefits for those with insurance are 
less vital than providing access to basic care for the uninsured. This 
is one of the reasons why we have provisions in our bill which would 
provide more of an opportunity for people to actually get insurance and 
why we think the Democratic version of this bill is just too expensive.
  What does the Congressional Budget Office score the Republican bill 
as costing? Less than 1 percent. That is why we believe ours is a 
better approach. We would not preempt the laws of 50 States, as would 
the Democratic bill.
  Here are some of the things the Republican bill would do:
  First, we make health care more affordable for the self-employed by 
letting them deduct 100 percent of their health premiums in the year 
2000, 3 years ahead of schedule.
  We give more patients more control over their medical care and make 
it more affordable by expanding access to medical savings accounts. 
These MSAs can provide coverage for a lot of Americans who currently 
are not covered.
  We require the health plans actually provide the benefits that have 
been promised.
  We require the health plans provide care based on the best scientific 
information available.
  We require the health plans provide patients with access to their 
medical records and ensure that the medical information will only be 
used to provide better care, not to increase their premiums.
  We require the health plans provide reasonable access to specialists 
such as OB/GYNs and pediatricians without the need for referral.
  We require them to remove so-called gag clauses. I worked on that 
with my colleague, Ron Wyden.
  We require they be held accountable through the appeals process. This 
is where I refer back to the colloquy Senator Jeffords and Senator 
Edwards had a moment ago. It is true that HMOs write their contracts. 
They are the ones that write the contract. They can't force any 
employer to contract with them. This is a matter of bargaining. It is a 
matter of competition. It is a matter of what they cover. Once a 
contract has been written and an employer has bought that contract and 
provided coverage to his employees, the question then is in any given 
case whether or not a particular procedure may be medically necessary.
  What we provide in our legislation is a two-step process by which 
this matter can be reviewed. It is by an independent party with the 
external review. Not by the HMO, not by somebody the HMO picks; rather, 
it is by an independent external medical reviewer, someone who has 
expertise in the area in which the diagnosis is involved.
  This has to be done on an expedited basis so if there is a concern 
about time, the care can be provided in a timely way.
  Senator Ashcroft and I will be proposing two changes to the language 
which I think solves two big problems. The first is the problem Senator 
Edwards raised. We add to the factors that the external review 
specialist has to consider not only the party's records and the 
evidence submitted by the plan and the guidelines offered by the plan 
but also the external review expert would have to examine the 
recognized best practice and generally accepted medical practice as 
part of the consideration of what is appropriate in any particular 
case. It wouldn't be bound by any of these specifics but would have to 
consider these factors.
  Another thing we have added, and I think it is very important, in the 
event for some reason the HMO would decide, even though it had been 
ordered by the external reviewer to provide a certain procedure or 
care, should it decide not to do so, then in that case we have provided 
a new process whereby the patient will be able to go to some other 
physician or some other provider and have that care provided by the 
other provider and bill the HMO that refused to follow the 
recommendation or the order of the external reviewer. So in no case 
should there be a situation where after the expert external review 
process takes place and a particular procedure has been ordered, in no 
case should the party be denied that care.
  There is one final thing I want to say. There has been a lot of 
finger-pointing about HMOs, about doctors, and so on. I think it is 
important to recognize that HMOs have provided an important 
contribution to reducing costs and providing quality care to the 
citizens of our country. It is equally important to note that 
physicians have done a tremendous job in working under the conditions 
that were unfamiliar to them--the conditions of managed care--which 
require them in many cases to submit their diagnosis, plans, and care 
plans to someone else for review, something they are loath to do. And 
in many cases they have been overruled with respect to the care they 
would like to provide. The physicians are not just out to put money in 
their pockets. They are guaranteed only a certain amount by these HMOs, 
and it is a less and less amount each year. They are concerned for the 
good of their patients. I do not think we ought to be constantly 
pointing our fingers at doctors as if they are somehow the problem. 
Physicians are fighting for their patients, for the kind of care they 
think their patients need.

  When a group such as the American Medical Association, for example, 
lobbies legislation, they are trying to do what they think is right for 
the good of their patients. Even though I do not support the 
legislation they have been sponsoring primarily, I am going to be the 
first to defend the physicians of this country, and specifically the 
American Medical Association, for doing what it thinks is right.
  So I urge my colleagues, as we trade charges back and forth, that we 
just lower the rhetoric a little bit, recognize there is a problem to 
be solved, recognize that both sides of the controversy have something 
important to contribute, and try to come together with an idea that 
will solve the problem at an affordable cost.
  That is what I think the Republican bill does. I again commend 
Senator Jeffords and his committee for coming forth with this 
legislation.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I yield 5 minutes to the Senator from 
California.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, I have been keeping score of these votes, 
where the HMOs are in every single vote. It may not be an All-Star 
game, but 7-0, HMOs over patients, that is where we are. Every single 
amendment they have won on their position, and the vote on every single 
amendment has basically been party line. To me, it is a sad day in this 
greatest of all deliberative bodies to have such partisan voting.
  I wanted to mention a couple of things to the Senator from Arizona 
before he leaves the floor. In his opening he was very gracious. He 
said: Yes, it is true, some HMOs have made mistakes in their zeal to 
cut costs. I think he was very accurate in the way he talked about it.
  The Republican bill--and this is such an irony--does not even cover 
HMOs. It covers only the 48 million people who essentially have self-
funded plans. So the Republican bill doesn't even reach to the people 
in this country who utilize HMOs.
  Mr. KYL. Will the Senator yield on that?
  Mrs. BOXER. On your time I will be happy to.
  Mr. KYL. Mr. President, I ask Senator Jeffords for 30 seconds, if I 
could?
  Mr. JEFFORDS. I yield 30 seconds.

[[Page S8490]]

  Mr. KYL. Is the Senator from California aware the external review 
process and internal review process, the appeal process we have been 
talking about, applies to all people, to HMOs, too, not just the ERISA 
plans?
  Mrs. BOXER. Yes. I will take this on my own time. As Senator Edwards 
pointed out, it is a meaningless situation which I hope the Senator is 
going to correct. We talked about correcting it after the Senator from 
Vermont said it is perfect. Now we hear there is an amendment coming. 
Good, we are looking forward to seeing it.
  But the basic bill, as Senator Kennedy has pointed out, does not 
cover the vast majority of the people. Take the Collins amendment. The 
Collins amendment does not cover the vast majority of women in its 
provisions, or the vast majority of patients. Mr. President, 77 percent 
of the people in California are not covered by the basic bill. If you 
look at the whole Nation, it is about 70 percent or so. So it is 7-0, 
and we have many more amendments to go. I do not have much hope this is 
going to change. That is why I have this little flip chart. But we are 
hoping for something better in the later innings.
  Let me say to my friends who support the Collins amendment, do not be 
fooled. You better look at this letter that just came in from the 
American College of Obstetricians and Gynecologists. Let me tell you 
what it says.

       This amendment is an empty promise to the millions of women 
     enrolled in managed care plans, covering only one in three 
     women in ERISA-regulated plans. . ..[It erects] new barriers 
     to follow-up care for both ob and gyn services.

  I ask unanimous consent that the entire letter be printed in the 
Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                           The American College of


                              Obstetricians and Gynecologists,

                                    Washington, DC, July 14, 1999.
     Senator Trent Lott,
     Majority Leader.

     Senator Thomas Daschle,
     Minority Leader.
       Dear Senators Lott and Daschle: The American College of 
     Obstetricians and Gynecologists, representing the nation's 
     39,000 ob-gyns and the women they serve, does not support 
     passage of Amendment 1243 to the Patients' Bill of Rights, 
     offered by Senator Collins. This amendment is an empty 
     promise to the millions of women enrolled in managed care 
     plans, covering only one in three women in ERISA-regulated 
     plans.
       While this amendment supposedly addresses the weaknesses in 
     the Majority's managed care reform bill, it takes away as 
     many protections as it provides. It removes barriers to 
     access to obstetrical care while erecting new barriers to 
     follow-up care for both ob and gyn services. While under this 
     amendment, health plans would be required to provide direct 
     access to the full range of initial obstetrical services, 
     plans would still be able to limit direct access to needed 
     gynecological care. The amendment would also weaken access to 
     follow up ob and gyn care if a problem is identified in a 
     routine or periodic visit. Indeed, by changing ``shall'' to 
     ``may'' the follow up care provisions does no more than 
     restate current law.
       We continue to look forward to working with both sides of 
     the aisle, but are disappointed that this amendment offers 
     women less than half a loaf of needed protections.
           Sincerely,
                                              Ralph W. Hale, M.D.,
                                         Executive Vice President.

  Mrs. BOXER. Mr. President, this debate is very interesting, but it is 
very sad because we, on our side of the aisle, are offering amendments 
to try to correct real problems that are happening to real people. On 
the other side, we get empty promises. Not my words, the words of the 
OB/GYNs: Empty promises, sham, shells, but nothing real. So it is 7-0.
  I rise also in support of a very fine amendment. I rise in very 
strong support of Senator Bingaman's amendment on specialists.
  I want to tell you about one of my constituents, Carley Christie. I 
met her dad a long time ago. These are his words:

       Carley was 9 years old when she was diagnosed with 
     malignant kidney cancer: When the HMO insisted we trust our 
     daughter's delicate surgery to a doctor with no experience in 
     this area, we were forced to find an expert and pay for it 
     ourselves.

  Mr. President, $50,000 Mr. Christie had to come up with. He said:

       You only get one chance at removing a Wilms' tumor 
     correctly and successfully to ensure the highest probability 
     of survival in children, and we weren't going to take that 
     chance with our daughter's life because the HMO wanted to 
     save money.

  And he goes on to say:

       Congress must close the ERISA loophole and hold health 
     plans accountable for cost-cutting decisions that result in 
     patient injury.

  These are the words of a dad, a loving dad. We have a lot of loving 
dads in this institution. We have a lot of loving granddads in this 
institution. One is on the floor right now, the Senator from Utah.
  I have to tell you, we have to start acting to help loving moms and 
dads such as this because we are not doing that.
  I ask for 30 additional seconds.
  Mr. KENNEDY. I yield the Senator from California 30 seconds.
  Mrs. BOXER. We are not acting on behalf of loving dads such as Harry 
Christie. We are turning our backs on them and we are acting in favor 
of the HMOs against the patients, against the Carley Christies, against 
the Harry Christies. It is wrong and we ought to change and we ought to 
support the Bingaman amendment and get on the right track.
  I yield the floor.
  Mr. KENNEDY. Mr. President, I yield 30 seconds to the Senator from 
Iowa.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. HARKIN. Mr. President, the Bingaman amendment offered by the 
Senator from New Mexico, I began speaking about it, the Senator from 
California spoke about it, Senator Reid spoke about it, but I have not 
heard one word on the other side about the Bingaman amendment that 
allows people to go outside their plan to get specialty care, as 
Senator Boxer just mentioned. Not one word from the Republican side 
about this amendment.
  What is it? Are they going to support it? Are they going to oppose 
it? What are they going to do? Not one single word about it.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. JEFFORDS. I yield 15 minutes to the Senator from Utah.
  Mr. HATCH. Mr. President, we are nearing the end of debate on 
legislation that is, unquestionably, one of the most important measures 
to be considered in the 106th Congress.
  We have heard the horror stories about denials of coverage for 
certain treatments. We have heard about the bureaucratic nightmares 
suffered by family members who have a simple question: Why can't the 
insurance companies understand a family's anxiety as well as they 
understand the costs of diagnostic tests or the arcane science of 
filling out forms?
  As a matter of fact, our constituents may be surprised to know that 
many of us have also experienced the bureaucratic two-step, many of us 
have also sat on ``hold'' trying to get past an automated switchboard.
  Our colleagues on the other side of the aisle have made it seem that 
we are completely oblivious to the health care needs of the American 
people.
  On the contrary, we are well aware of the public's frustration and of 
the need for effective legislation to ensure that those individuals 
enrolled in managed care plans are provided quality health care.
  Over the past several years, numerous hearings have been held in both 
the Senate and the House of Representatives, exposing story after story 
about individuals who had complaints about their managed care plans.
  The National Association of Insurance Commissioners (NAIC) recently 
published figures that, in 1998, more than 35,000 health insurance 
complaints were made to state insurance departments.
  According to an article in the February edition of the Employee 
Benefit Plan Review magazine, ``consumer complaints about health 
insurers and HMOs are surging.'' The article goes on to say that 
``these complaints encompassed matters such as health care claim 
denials, disputed claims, slow payments by health insurers, and 
premium-related matters.''
  But the article also reports that insurance commissioners in 12 
states where the data were collected ``doubt the rise implies a 
deterioration in care but rather that the numbers reflect greater 
public readiness to fight HMOs, and encouragement by states for 
consumers to file complaints.''
  Enrollees in managed care plans are not likely to acquiesce and abide 
by

[[Page S8491]]

coverage decisions as final--when their lives are at stake. That is why 
we are here today and that is why the Senate is now poised to take 
significant action in addressing this issue for the American people.
  The question before the Senate this week is not so much will we pass 
a patients' bill of rights measure--and I hope and believe that we 
will--but rather what kind of patients' rights bill will the Senate 
pass and send over to the House of Representatives for consideration?
  All of us in this Chamber know very well there are numerous competing 
bills that have been introduced over the years that provide a variety 
of legislative remedies to address these concerns. In many respects, 
these bills have common components intertwined with similar and, in 
some cases, identical provisions.
  It is my understanding that there are presently 47 various bills that 
have been introduced in the Senate and House this year alone which are 
designed to provide patient protections to managed care enrollees.
  Clearly, we are all concerned. But, for Congress to act and pass 
responsible and workable legislation, we must come together in a 
bipartisan fashion and put forth the best bill for the American people. 
We have done this many times on health care legislation in the past, 
and there is no reason why we cannot succeed again today and do what is 
right for the country.
  I have joined 49 of my colleagues in sponsoring one of the proposals 
currently under consideration, S. 300, the Patients' Bill of Rights 
Plus Act of 1999. This legislation, along with its companion bill, S. 
326, represents a balanced approach at addressing the concerns over 
managed health care.
  This bill is sound public policy that avoids unnecessary and costly 
federal mandates that would ultimately undermine the affordability and 
availability of health insurance to millions of Americans.
  S. 326 was considered in the Senate Health, Education, Labor, and 
Pensions Committee, where extensive hearings were held affording an 
opportunity for all points of view to be heard on the various 
provisions of the legislation.
  The HELP Committee reported S. 326 on March 18, 1999, and I want to 
commend Senator Jeffords and the members of the HELP Committee--
Senators Frist, Collins, Gregg, and others--for their work on this 
legislation.
  S. 300 is identical to S. 326 except that it contains important tax 
provisions that will make health insurance more affordable for those 
who either do not have insurance, or are paying high premiums for such 
coverage out of their own pocket.
  For instance, pursuant to the Title V provisions of S. 300, self-
employed taxpayers would be permitted a 100 percent deduction for 
health insurance premiums. This provision would be effective beginning 
next year thereby easing the financial burden for self-employed 
individuals.
  Moreover, S. 300 removes the current law provisions restricting 
Medical Savings Accounts, or MSAs, to employees of small employers and 
self-employed individuals, making MSAs far more generally available to 
individuals than they are today. This legislation also eliminates the 
existing 750,000 policy cap on the number of taxpayers who can have 
MSAs as well as the cap placed on Medicare+Choice MSA plans.
  I would emphasize that a December 1998 report from the General 
Accounting Office concluded that 37 percent of those individuals who 
enrolled in MSAs were previously uninsured. Clearly, with greater 
availability and flexibility in the MSA design, these plans will 
attract even more of the uninsured.
  These tax provisions will provide much needed reforms in tax-based 
assistance to those individuals without employer-subsidized insurance. 
They also will help millions of employees and business owners in 
obtaining coverage.
  Today, however, the pending bill is S. 1344, championed by Senator 
Kennedy and my colleagues on the other side of the aisle. For months, 
we have heard from a number of our colleagues on the Democrat side 
about their desire to bring their bill to the floor for a vote. I am 
glad they got their wish, although I happen to believe that Senator 
Lott was quite generous in agreeing to this debate before we had even 
finished the appropriations bills. So, I hope we will hear no more 
about the majority's unwillingness to have this debate.

  So, tomorrow, with the roll call of the clerk, we will decide which 
approach to managed care reform will be in the best interest of our 
constituents. So I encourage the American people to listen carefully to 
this debate. I encourage them to listen with discernment. They will 
have to separate a lot of fact from fiction and a lot of reality from 
rhetoric.
  Let me see if I can shed some light on the fundamental differences 
that distinguish the Republican bill from the bill being advanced by 
Senator Kennedy and President Clinton.
  Contrary to the allegations made by some of my colleagues, the 
Republican bill that was reported by the HELP Committee--S. 326--is not 
the insurance industry's bill. In fact, the insurance industry's idea 
of a bill is no bill at all. Officials from the insurance and managed 
care industry tell me they not only oppose the Democrats' bill, S. 
1344, but they also oppose the Republican bill, S. 326.
  S. 326 would, in fact, impose a number of new rules on group health 
plans relating to access to care, scope of coverage, disclosure of plan 
information to enrollees, and appeals of claim denials.
  Our Democrat colleagues assert that our bill is limited in scope and 
that it does not apply to all enrollees in ERISA plans. That simply is 
not true. Our bill includes many important features that will provide 
patient protections for enrollees in self-insured ERISA plans, about 48 
million people.
  However, our bill also provides protections to all ERISA enrollees, 
or 124 million people, regarding the critically important issues 
relating to an internal and external appeals process, patient 
information disclosure, and on discrimination in underwriting based on 
genetic information.
  On the surface, the Democrats' criticism of our bill sounds credible. 
But the fact of the matter is that states have historically regulated 
the insurance market for those individuals not in self-insured ERISA 
plans. Why should Congress now suddenly preempt these regulations and 
impose a whole new series of costly federal mandates on plans that are 
already state regulated?
  In Utah, there are currently 21 state mandates on fully insured 
health insurance plans. Let me just highlight some of these rules:
  Direct access to OB-GYNs was adopted in 1995.
  The ban on the so-called gag clause was adopted in 1997.
  We have rules on drug abuse treatment, alcoholism treatment, 
maternity stays, coverage for optometrists, nurse midwives, 
podiatrists, psychologists, chiropractors, and well-child care.
  Why does the Congress need to duplicate and preempt what the states 
are already doing? And perhaps the single most driving reason why we 
should not impose these rules on all health plans is that the Health 
Care Financing Administration would ultimately regulate this whole 
program. Frankly, I have more confidence in our state legislature and 
governor in deciding what is best for Utah.
  I mean, if you think health insurance is complicated and bureaucratic 
now, just wait until HCFA is second-guessing everything from 
Washington, D.C. HCFA is that federal agency that administers Medicare 
and Medicaid--both of which have regulations that are the size of the 
New York City telephone directory.
  Mr. President, our constituents will benefit absolutely nothing if we 
merely transfer regulatory power from states to the federal government. 
On the contrary, they will suffer even more frustration since 
decisionmaking is more remote in terms of both distance and impact.
  Under the Republican bill, those plans which historically have been 
subject to state insurance regulation will remain subject to state law.
  This is consistent with the McCarren-Ferguson Act of 1945 which 
essentially codified the states traditional role in regulating the 
insurance industry. This is a wise policy that has worked well in many 
sectors including life insurance, automobile insurance, business 
casualty insurance, as well as health insurance.

[[Page S8492]]

  All of these areas are important, and thank goodness we don't hear 
cries to federalize matters like car insurance.
  The McCarren-Ferguson Act embraces the important principles contained 
in the 10th Amendment to the Constitution, which reserves to the states 
all governmental functions not specifically assigned elsewhere in the 
Constitution to the federal government. Elected state and local 
officials can weigh unique state and local conditions. As well, state 
and local officials can be held politically accountable for their 
decisions concerning state and local matters--including insurance 
regulation.
  So, while it may be true that health care is a vitally important 
matter, it does not necessarily follow--as my colleagues across the 
aisle apparently believe--that we should rush headlong into 
federalizing every aspect of health care delivery. The Congress wisely 
rejected this type of misguided thinking in 1994 when the public 
registered its adamant opposition to the Clinton/Kennedy/Gephardt 
health care reform bill.
  I do not think my friends on the other side of the aisle really mean 
to send the message that only the federal government can tackle 
``important'' matters and that states and local governments are okay to 
handle the insignificant, less important issues. If that isn't the 
height of federal elitism, I don't know what is.
  From the beginning of our nation it has been left to the states to 
regulate the licensure of doctors and nurses. What is more important to 
the integrity and performance of the health care system than the 
credentialing of health care professionals? Do my colleagues want to 
take that over as well?
  Don't be fooled by the false argument that if something is not 
federally controlled and regulated by Washington that somehow that it 
will be second-rate.
  The Republican bill recognizes the traditional role of the states in 
the health insurance arena. By and large our states do a first-rate job 
with the responsibilities assigned to them under the Constitution and 
by law. States have done a good job in regulating the insurance 
industry--a task assigned to the states back in 1945 by the McCarren-
Ferguson Act.
  This is not to say that every aspect of the insurance industry should 
be beyond some reasonable federal requirements. The bipartisan Health 
Insurance Portability legislation is one example where we all worked 
together to fashion a narrow, targeted, and effective set of federal 
rules that apply to health insurance.
  The challenge for legislators is to evaluate carefully which 
particular issues require national rules and which issues are best left 
to the states. In this regard, I must highlight the Republican bill's 
treatment of one of the most important aspects of this legislation--
dispute resolution.
  Under our bill, the important appeals process protections, which are 
the fundamental heart of this debate, apply to all ERISA plans. The 
Republican bill revises and improves the existing internal appeals 
provisions and adds new external appeal and nonappealable grievance 
procedures. And, as under current ERISA law, the claims procedures 
apply to both self-insured and fully-insured group health plans.
  I would add that the issue of ensuring a patient's right to an 
appeals process, for both internal and external review, is one of the 
central issues in the patient protection debate. Under the Republican 
bill, health plans are required to issue an internal coverage decision 
within 30 days after the date on which the request for review 
is submitted. The notice of the decision must be issued no later than 2 
working days after the decision is made.

  For matters in which a patient's life or health is in jeopardy, a 
plan's decision must be made within 72 hours after a request for review 
is submitted. A notice of that decision must be made within that 72 
hour period.
  Moreover, the review is to be conducted by an individual with 
appropriate expertise who was not involved in the initial 
determination. Appeals involving issues of medical necessity or 
experimental treatment are to be conducted by physicians with 
appropriate expertise.
  With respect to appeals for external review, the Republican bill 
requires that after a patient's internal appeal is denied, he or she 
can then submit a written request for review which must be submitted 
within 30 days after the date of the internal review decision. Within 5 
working days after the receipt of a request for review, the plan will 
select an external appeals entity that will designate external 
reviewers.
  These entities could include an independent expert in the diagnosis 
or treatment under review, or certain state or federally authorized or 
privately accredited entities using appropriate credential experts.
  In addition, external reviewers are required to make an independent 
determination and consider all appropriate and available information on 
the patient. The review must be conducted no later than 30 working 
days, or earlier, after either the date on which a reviewer is 
designated, or all necessary information is received. And, finally, the 
decision of the external reviewers is binding on the health plan.
  With respect to the consumer protection standards, our bill provides 
for the following:
  Our bill requires that a group health plan ensure that enrollees have 
access to specialty care when covered by the plan.
  Our bill would require a plan to provide coverage for emergency 
medical care, including severe pain, without prior authorization by 
applying the so-called prudent layperson standard to medical screening.
  Our bill would permit individuals, with their providers consent, to 
continue a covered course of treatment for up to 90 days when a 
contract between a group health plan and health care provider is 
terminated.

  Our bill would permit women to obtain gynecological and obstetric 
care from a participating OB-GYN specialist without prior authorization 
by a primary care provider.
  Our bill would permit a child to obtain pediatric care from a 
participating pediatric specialist without prior authorization by a 
primary care provider.
  And, under our bill, a plan could not impose a prohibition or 
restriction on advice by a health professional for medical care or 
treatment. In effect, our bill prohibits the imposition of the so-
called gag rule.
  With respect to the issue of information disclosure by managed care 
plans, S. 326 requires new information collection and reporting 
requirements relating to benefits, access to specialty care, coverage 
of emergency services, advance directives, prior authorization rules, 
appeals and grievance procedures and a list of specific prescription 
medications included in the formulary of each plan.
  And, on the controversial issue of drug formularies, both physicians 
and pharmacists must participate in the development of a drug 
formulary, and a plan must have a process to allow physicians to 
prescribe drugs that are not listed on the formulary.
  Finally, I want to commend my colleague, Senator Frist, for his 
principal role in developing the provisions for a comprehensive 
independent study of patient access to clinical trails and for 
developing the provisions to improve medical outcomes research.
  Senator Frist is the only physician in the Senate and, quite frankly, 
I'd much rather have his advice and expertise in developing this 
legislation than the input of attorneys who had helped shape the 
Democrats' bill.
  Mr. President, for anyone to describe S. 326 as ineffective and not 
doing much to help patients, I would respectfully submit that they 
simply have not read the bill.
  S. 326 will help people. It will help those people who most need our 
help: those people who are enrolled in health plans that are not 
regulated by the states.

  This legislation strikes an appropriate balance between ensuring 
patient protections without imposing excessive and costly new federal 
mandates on the private sector.
  In that respect, let me also add one other point: I was not 
particularly enamored with S. 326 when I first read it. It contains 
numerous federal mandates which, historically, I have opposed.
  I find it particularly troubling that the federal government will 
impose these mandates on the private sector because this action will 
drive-up the costs of health insurance which may ultimately lead to 
employers dropping health insurance altogether.

[[Page S8493]]

  And I can assure you that comments from the business community about 
dropping health insurance altogether are not idle threats. The one 
issue I hear most often from employers, especially from small and 
middle size companies which comprise most of the businesses in Utah, is 
the rapidly escalating costs associated with providing health insurance 
to employees.
  Employers want to provide their employees with comprehensive health 
insurance plans. In fact, in order for them to compete in today's 
competitive marketplace for talented and skilled help, they must offer 
employees decent health insurance coverage.
  I recently received a letter from one of my constituents who owns and 
operates a small company. Ms. Hydee Willis owns a small business called 
``Creative Expressions'' in Murray, Utah. She wrote to me and said:

       I am a woman owned business person--fought through the 
     ranks over the last 18 years of being in business [and] of 
     fighting the entire stigma a woman in business [has] in this 
     country. I have struggled with the intense feelings of 
     inadequacy and helplessness as I lost employee after employee 
     to larger companies able to offer wonderful benefits.

  She further states:

       After weeks of research and many agents, we finally found a 
     plan that gave our employees at least part of what they 
     wanted. Yesterday, the final program papers were put on my 
     desk and a check was being requested by the insurance agent. 
     My heart sunk. To insure 13 people, basic health coverage 
     with $250 individual deductible, my costs are $3,700 per 
     month per employee or $44,400 per year.

  Moreover, she writes that the employees' share of the premium was 
equally staggering with ``one manager with a family of five having a 
bill of $458 per month.''
  Ms. Willis will ultimately pay the price for the federal mandates 
imposed under any legislation passed by the Senate. And so will her 
employees.
  Here is where the rubber meets the road. Here is where all of our 
platitudes about quality collide with issues of access and 
affordability. Here is where reality should set in for my colleagues 
who are advocating on behalf of the Clinton administration's proposal.
  While I have admitted my concerns about the Republican bill, at 
least, the increase in premiums will be .04 percent annually. Under the 
Democrat plan, the increase in premiums will be 6.1 percent annually. 
The former may be manageable; the latter will undoubtedly have serious 
repercussions.
  Mr. President, we simply cannot ignore the fact that whatever 
legislation we pass here in the Senate this week will ultimately be 
paid for by employers and employees alike. The federal government is 
certainly not going to pay for this; the American people--employers and 
employees alike--will pay for it, and that is precisely the reason why 
I oppose the Democrats' bill.

  Too many federal mandates will only mean no patient protection 
because no one will be able to afford health insurance. Who is left to 
protect when employers drop health coverage altogether because they and 
their employees can no longer afford it?
  In fact, we are already seeing an average premium increase this year 
of approximately 10 percent. With the 6.1 percent premium increase that 
the Congressional Budget Office estimates as the cost of the Democrats' 
bill, you are conceivably looking at a 16 percent increase in health 
insurance premiums--in just one year!
  That is not the kind of legislating I believe the vast majority of my 
constituents in Utah would support. Nor would most Americans.
  Even the letters I've received from my constituents who support the 
Democrats' bill are sensitive to the unintended financial consequences 
that passage of a misdirected and overly broad bill will have on health 
insurance affordability.
  Another area where there is wide disagreement between the Republican 
plan and the Democrat plan is on the issue of expanded litigation.
  The core of this debate is the critical issues associated with the 
expansion of health plan liability for coverage decisions and to allow 
tort actions for wrongful death and personal injury under state 
malpractice laws. Under the Republican plan, when patients are denied 
medical treatment or benefits, they have the right to a second opinion 
from a trained medical professional.
  Under the Democrat plan, when patients are denied medical treatment 
or benefits, they have the right to see a lawyer. Am I missing 
something here? If I have a medical condition, I want the services of a 
medical professional. Why is it that the first thing the Clinton 
administration thinks of is going to court?
  However, as a former medical malpractice attorney myself, I fully 
understand and appreciate how trial lawyers will benefit from the 
expanded litigation provisions in the Democrats' bill. It would be a 
bonanza for trial attorneys.
  The expanded liability provisions in S. 1344 are, by far, the most 
costly component of their bill. Expanded liability would increase costs 
by eroding the ability of a health plan to contain costs and provide 
quality care. It will also compel health plans to allow for coverage of 
defensive medicine practices, or the inappropriate and even unnecessary 
medical care to protect themselves from liability.
  Earlier this year, the Health Care Liability Alliance sponsored a 
briefing identifying the impact of the current health care liability 
system on health care costs and access issues. At that briefing, former 
Attorney General Dick Thornburgh provided an overview of the current 
state of affairs in our nation's legal system with respect to health 
care liability.
  Mr. Thornburgh stated, ``We've got plaintiffs' lawyers raking in 
millions in contingency fees while the clients they represent settle 
for pennies on the dollar. This is increasingly becoming the case in 
class action lawsuits.'' He further states, ``there are estimates that 
lawsuit abuse is costing the U.S. economy as much as $150 billion each 
year! And, there is the social cost to society with the impulse to 
settle every squabble with a subpoena.''

  In addition Mr. Thornburgh says,

       Few areas provide such ample evidence of a legal system run 
     amok than the area of medical liability. Compared to lawsuit 
     abuse in other sectors of the economy and society, the 
     litigation explosion in the health care area is, if anything, 
     more damaging precisely because health care means so much not 
     only to patients involved, but to all of us who--as potential 
     patients--count on a vital, vibrant health care system to 
     give us the best care that medical science can provide.

  Under the Democrats' bill, ERISA would be amended to expand state 
tort liability to health plans--and to employers. Interestingly, with 
respect to the practice of medicine, ERISA currently does not preempt 
state law malpractice claims against medical professionals for 
providing substandard care. A patient can sue an ERISA plan for medical 
malpractice.
  In addition, there has been a clear trend in recent years in federal 
court decisions that managed care organizations are held ``vicariously 
liable'' for the malpractice of health providers.
  With respect to denied benefits, ERISA already provides for a ``full 
and fair review'' of disputed claims. If the result of the benefit 
plan's internal appeal process is not satisfactory to the patient, then 
ERISA provides patients with a right to judicial review in either 
federal or state court, and the court may award attorneys' fees, court 
costs, the benefits denied, and ``other equitable relief'' as needed.
  In lieu of expanding health care litigation, the Republican bill 
provides specific internal and external appeals rights that would apply 
to all 124 million Americans covered by group health plans under ERISA.
  It seems to me to make better sense to provide an appeals mechanism 
that is timely and responsive to those individuals who seek a remedy on 
matters involving benefit coverage or denial.
  The Republican bill will achieve that objective.
  I have heard from many Utahns who voice strong opposition to 
expanding liability to both health plans and employers. Our objective 
is to ensure patients obtain the necessary treatment they need. I say 
to my colleagues on the other side, the ability to sue will not help 
those who face life threatening diseases.
  Malpractice claims take an average of 16 months to file and 25 months 
to resolve. And, as the record clearly shows, the contingent fee system 
promotes an aggressive trial bar that dramatically inflates medical 
malpractice claims.
  I would add that even the President's own Advisory Commission on 
Consumer Protection and Quality in the

[[Page S8494]]

Health Care Industry did not recommend expanded liability for health 
plans as the commissioners agreed that such a recommendation would have 
serious consequences within the industry as well as for employees who 
would likely see the costs of their premiums increase dramatically.
  Furthermore, plaintiffs receive only 43 percent of their tort 
awards--the other 57 percent goes to the trial lawyers.
  We need a workable system that establishes specific time frames to 
ensure patients have an effective appeals process to address disputes.
  The Employee Retirement Income Security Act of 1974 has served this 
country well over the last 24 years by enabling employers to provide 
health care coverage and other benefits that meet the needs of their 
employees and families. Approximately 124 million Americans are 
enrolled in health care coverage through their employers under ERISA.

  Health care coverage for these people will clearly be threatened by 
opening up the floodgates to expanded litigation and shifting millions 
of dollars away from the provision of health care to the pockets of 
trial attorneys.
  The Republican bill provides an expeditious remedy under which 
patients can appeal decisions. In my opinion, the appeals mechanism in 
our bill is far preferable than handing these matters over to the 
courts and to trial lawyers. I might also speculate that resources not 
spent on lawsuits could be spent more productively on behalf of 
patients.
  Mr. President, as I have listened to the debate on patients' 
protection legislation, I am struck by the emotion and intensity that 
this issue holds for many of my colleagues in the Senate. This is a 
deeply personal issue for all of us because it literally affects the 
lives of people. At the end of the day, isn't that the reason why we 
are here? We are here to help our constituents and, indeed, to help all 
Americans.
  I had hoped this debate would have produced more consensus. I believe 
there is probably more agreement on these issues than is apparent by 
this week's debate. I support the Republican leadership bill because it 
provides a balanced approach at addressing the complex and emotional 
issue of patient protection.
  It's not a perfect bill and, for that matter, neither is the bill 
offered by the Democrats. But we have an obligation to the American 
people to do what is reasonable and responsible.
  I want the American people to know that we in the U.S. Senate are 
dedicated to providing access to the highest possible quality care at 
an affordable price to everyone across the country. For my part, I will 
continue to fight for increasing access to health care to the medically 
uninsured. It is troubling to me that 43 million Americans do not have 
health insurance coverage.
  But, I am afraid that the Clinton administration proposal violates 
the Hippocratic oath to do no harm. Accordingly, I urge my colleagues 
to support the Republican bill for the good of their constituents, and 
for the good of the American people.
  Thank you Mr. President.
  Mrs. MURRAY. Mr. President, my colleagues have clearly spelled out 
the intent and necessity of this amendment so I will not take much time 
to go through its benefits. I came to the floor simply to urge my 
Republican colleagues to really think about how much more protection 
this amendment provides their constituents than their bill does.
  The so-called access to speciality care provisions in the Republican 
bill are nothing more than a statement on the importance of speciality 
care. They do not guarantee the care; they simply reiterate current 
insurance practices.
  During committee consideration of this legislation, a similar 
amendment was offered to ensure access to specialists and to ensure 
that patients could designate a specialist as their ``care 
coordinator.'' During that debate in committee, we heard a great deal 
about training and experience. We were told how an oncologist was a 
trained specialist in treating cancer regardless of the age or gender 
of the patient. We were told a neurologist was a trained specialist 
regardless of the age or gender of the patient. We were told the 
training was the same and practice experience was not important.
  I find this hard to believe, I ask my colleagues again: is there a 
difference between treating a child with cancer and treating an adult? 
Are the treatment regimes for a 3-year-old with a brain tumor the same 
as those for a 50-year-old? I doubt it. It seems likely to me that a 
cancer treatment regime for a 50-year-old could kill a 3-year-old. That 
treatment could render the child disabled or seriously impair his or 
her developmental progress.
  I urge my colleagues to talk to people at their children's hospitals, 
to their pediatricians, to their ob/gyns and to their cancer 
specialists. I have. And what I heard was that patients need to see the 
specialists most qualified and trained to deal with them and their 
specific illnesses.
  If your child had a brain tumor, would you want to be told there are 
no pediatric neurosurgeons or pediatric oncologists in your network, 
but that on page 215 of your physician directory you will find a list 
of the oncologists approved by the plan? I certainly wouldn't. I would 
want a specialist trained in pediatrics.
  The Republican bill does not allow for access to speciality care. It 
is that simple. You can say it does and in fact some of my colleagues 
may hope it does, but it does not. I can assure my colleagues that the 
language in both the bill and the committee report will allow plans--
not your specialist--to make the final determination on access and 
treatment.
  Here is what the committee report says:

       This section would NOT prevent a plan from requiring that 
     the specialists adhere to a treatment plan if it: (1) is 
     developed by the specialist in consultation with the patient 
     and the patient's primary care provider; (2) is approved by 
     the plan; and (3) meets the quality assurance and utilization 
     review standards of the plan.

  What does this mean?
  It means that if the patient is lucky enough to get a specialist, 
that specialist--who is a trained and qualified doctor--could be 
required to meet the plan's treatment standards. So maybe you could see 
a specialist, but you might not be allowed to be treated by one.
  Yesterday we offered the Robb/Murray amendment to allow women direct 
access to their ob/gyns. It was defeated.
  Today we are offering a broader amendment in the hopes of giving all 
insured Americans the hope that they can get the best care possible for 
their sick or injured child. If we do not adopt this amendment, once 
again the patient loses and the insurance company wins.
  I urge my colleagues to support this amendment and yield back my 
time.
  Mrs. FEINSTEIN. Mr. President, today I want to talk about the 
importance of patients being able to see medical specialists. I support 
the Bingaman amendment to the HMO bill before us.
  As co-chair of the Senate Cancer Coalition, I am keenly aware of the 
importance of being able to see a doctor that has the expertise to 
properly diagnose and treat illnesses, particularly a complex or 
difficult-to-diagnose illness. There are hundreds of medical conditions 
that probably require a specialist and sooner or later we all have to 
visit with one--whether it be a dermatologist, a cardiologist, or an 
oncologist, to name a few.
  For cancer, here's how the American Cancer Society has expressed it:

       Diagnosing and treating cancer is complex, multi-stage 
     process often involving many visits with an oncologist or 
     other specialist. Timely referrals are critical. However, 
     according to a poll [March 1997] by the Commonwealth Fund, 8 
     of 10 physicians in managed care plans report ``somewhat or 
     very serious problems with being able to refer patients to 
     specialists of their choice.'' This same poll also found that 
     22 percent of physicians with more than half of their 
     patients in managed care plans say they have a direct 
     disincentive to refer.

  The amendment before us would:
  Require plans to refer patients, who have conditions requiring 
treatment by a specialist, to specialists in a timely manner. If a 
qualified specialist is not available in the plan, it requires the plan 
to cover services provided by the outside specialist at no additional 
cost to the patient. If a qualified specialist is available in the 
plan, it requires the patient to pay any costs over what the plan would 
pay;
  Require plans to permit patients to designate specialists as their 
primary

[[Page S8495]]

care physician, when the patient has a life-threatening, degenerative, 
or disabling disease requiring specialized care over a prolonged period 
of time, such as cancer or heart disease. The specialist would 
coordinate the patients' overall care; and
  Require plans to give patients with a condition requiring ongoing 
care, a standing referral to the specialist so that patients do not 
have to obtain a separate referral for each visit.
  We need to pass this amendment guaranteeing access to specialists 
because we have heard story after story about managed care plans 
refusing to let sick people see a specialist and using financial 
incentives to, for example, punish doctors who refer to specialists. A 
study reported in the November 19 New England Journal of Medicine found 
that 57 percent of physicians said they felt pressure from managed care 
plans to limit referrals.
  Sick people need specialized care. This amendment addresses the 
concerns of many doctors and patients who have shared their experiences 
with me. Specialists, from neurologists to pediatric nephrologists, 
report that plans regularly deny referrals for their specialized 
expertise. Even more troubling, these specialists report that they 
often still find themselves called for advice in these complicated 
cases without the benefit of ever having seen or examined the patient.
  Here are some examples:
  Dr. Jack Thomas, of Long Beach, California, in a Los Angeles Times 
article on May 13, 1999 said that one patient was ``in severe pain for 
several weeks while awaiting orthopedic consultation'' and that urgent 
consultation with gynecology was not approved after a two-week wait for 
another patient who continued ``to experience severe dysfunctional 
uterine bleeding.''
  When the list of providers for the HMO did not have any physicians 
skilled in the treatment of brain tumors with which her daughter Sarah 
had been born (and as had been recommended by a neurosurgeon), Brenda 
Pederson, of San Mateo, California reports that her HMO told her 
``we're not giving you second best, we're giving you what's on the 
list.'' Patients such as Sarah should not be limited to who is ``on the 
list,'' but should be able to go the doctor her mother and her doctor 
believe has the expertise to treat the illness.
  Dr. Jack Shohet, Director of Neurology, University of California, 
Irvine, has said, ``Delay of referral is very common in the area in 
which I practice.'' He gives the following example: A 48-year old woman 
presented to her primary care provider about 6 months before seeing Dr. 
Shohet, with complaints of an ear ache. She was treated with multiple 
courses of antibiotics over 5 months by her primary care physician. The 
primary care physician noted a large mass in her auditory canal and 
biopsied it. It was positive for squamous cell carcinoma. He then 
referred to her Dr. Shohet (who is out of network) for therapy. By this 
time, she had a fungating mass with metastasis and cancer and spread in 
her neck. She had to have an operation which necessitated sacrificing 
her hearing. He says, ``One wonders how extensive her disease would 
have been 5 months earlier had she been referred early on to a 
qualified specialist.''
  Denial of care is the biggest ethical concern to a majority of 
younger physicians, according to the August 1998 California Physician.
  Having a standing referral to a specialist for ongoing care is 
important too. Patients should not have to continually return to their 
primary care provider for a referral when they have found a specialist 
who can treat that illness. California has a state law allowing 
enrollees who require continuing care to have standing referrals to 
specialists.
  Writing to me in March of this year, a constituent who has battled 
chronic disease for twenty years requiring multiple surgeries noted, 
``I cannot underscore the incredible waste of time it is for patients 
with Crohn's disease to have to see two doctors for every visit to the 
gastroenterologist!!'' This bill requires a standing referral to 
specialists for persons who require ongoing care from specialists so 
that patients can get the care they need in a timely manner.
  Care by specialists benefits patients with chronic disease. Analyzing 
data about asthma patients in a major California HMO (Health Net), a 
report in the March 9, 1998 Archives on Internal Medicine concluded 
``asthma specialists provided more thorough care than did primary care 
physicians.'' A 1997 study from the Mayo Clinic notes that ``outcomes, 
coordination, and patient satisfaction are superior when specialists 
have a central role'' in the management of chronic rheumatic and 
musculoskeletal diseases.
  Specialists' care is good business. Providing access to speciality 
care makes good business sense. Citing its ``market-driven design'' 
including use of focus groups, Blue Shield of California has been 
offering direct access to speciality care since 1998. Its ``Access 
Plus'' plan allows patients to go directly to a specialist for a fixed, 
$30 copayment per visit. In the May/June 1999 issue of Health Affairs, 
Blue Shield senior managers Kathleen Richard and Ken Wood report that 
the health plan is the fastest growing HMO in California. They also 
report that patient satisfaction has increased by 50 percent.
  And how much did this new program cost? Blue Shield found that the 
actual cost of the direct access program was much, much lower than even 
they themselves had forecast--fully 75 to 90 per-cent less than what 
they had anticipated.
  Providing prompt, continued access to specialists can also result in 
cost savings in a managed care environment. Dr. Roland Blantz who heads 
the Division of Nephrology at the University of San Diego noted in a 
visit to our office a seven-year Kaiser study in the Los Angeles area 
which showed highly significant savings when patients were referred to 
kidney specialists for evaluation and treatment of elevated creatinine 
levels.
  Our California experience shows that access to specialists can 
improve patients' health and increase plan satisfaction while keeping 
costs down.
  Delayed care hurts. The bill requires that plans provide timely 
referrals to specialists who are available and accessible. A December 
1998 General Accounting Office report on specialty care found that 
heart attack survivors who were seen regularly by cardiologists have 
better compliance with medications, by a factor of almost 50 percent, 
over treatment by generalists. Having to wait weeks or even months to 
get an appointment with a specialists from an HMO is a frequent 
complaint.
  Mary Schriever of Cypress, California tried to get a referral from 
her HMO for psychiatric care for her son Bill who had performed self-
mutilation on his arms by burning and carving himself. After two 
refusals over 18 months, they paid themselves for him to see a 
counselor. But even as his behavior deteriorated more, their further 
attempts to obtain the help of a specialist continued to be rebuffed. 
It was only in jail, after he was taken into custody by the police, 
that he finally saw a physchiatrist. Before being released and after a 
fight, he died of a brain hemorrhage.
  Some have said, HMOs are fine--until you get sick.
  A recent survey by Franklin Health entitled ``Facing Serious Illness 
in America'' and published on May 17, 1999, found that ``fully 6 out of 
10 Americans believe that the current system is profoundly inadequate 
when it comes to dealing with medical catastrophes'' and that 93 per-
cent of those surveyed believed that it is very important to have the 
right to choose one's own doctor regardless of plan.
  Patients should not have to fight for their health care. This 
amendment will ensure that when people are really sick and need to see 
experts, they can. They will be able to use often what little energy 
they have when ravaged by serious illness to obtain the specialized 
care they need to make important decisions at such critical times.
  I hope my colleagues will join me in passing this amendment.
  Mr. GRAHAM. Mr. President, I rise today in strong support of this 
amendment to ensure that managed care enrollees have access to 
specialists.
  Specialists are an integral part of our health care network. As a 
result, access to quality specialty care can often be a matter of life 
and death. In a recent Harvard study, 56 percent of doctors cited the 
bureaucracy involved with referrals to specialists as one of

[[Page S8496]]

their top three problems with HMOs. In addition, 40 percent of doctors 
felt limited by managed care companies from referring patients to 
appropriate specialists.
  No managed care issue has raised more concern among consumers and 
providers alike than access to specialty care; especially the issue of 
having specialty physicians acting as primary care providers. Mr. 
President, you can imagine what a challenge this is for individuals 
with chronic or disabling conditions.
  My own daughter has been in the position where she needed a 
specialist to coordinate her care. She had triplets a few years ago, 
and her medical needs were not unlike many young mothers in similar 
situations. I am convinced that my daughter's health would have been 
seriously compromised if she had been denied access to a multiple birth 
specialist. Multiple birth pregnancies are often high risk, but because 
she had the proper care, I can now gladly say that I am the proud 
grandfather of three beautiful girls.
  The language in this amendment would ensure that if an individual has 
a condition or disease of sufficient severity and complexity to require 
treatment by a specialist, and the benefit is provided under the plan, 
then the plan shall make or provide for a referral to a specialist who 
is able to provide the treatment for such condition or disease.
  The rigid restrictions by some HMOs on who can and cannot serve as a 
primary care physician are another obstacle to access to specialty 
care. In fact, several states (Indiana, Kentucky, New Mexico, 
Pennsylvania, New Jersey, New York and Texas) allow an enrollee with 
chronic health problems to select a specialists, such as a neurologist, 
a mental health provider, or a cancer specialist as their main health 
care provider.
  A recent Families USA report--``HMO Consumers at Risk--States to the 
Rescue''--cites far too many cases where a patient's care was 
compromised because their primary care physician lacked the expertise 
to deal effectively with their particular chronic condition.
  I cite the case of Ms. N., a 51-year-old woman with multiple 
sclerosis (MS). Although her primary care physician agreed that she had 
MS, he would not refer her to a neurologist. He said that since MS 
cannot be cured, a specialist could do her no good.
  In another situation, an eight-year-old boy was not allowed to visit 
his cystic fibrosis (CF) care center for routine checkups even though 
regularly scheduled visits to a CF care center are essential to 
treatment. His primary care physician did not believe that aggressive 
treatment was appropriate, as patients with cystic fibrosis do not have 
a ``good prognosis.''
  Every Member of this body would demand the best care for their child. 
If a specialist was best suited to provide that care, then every one of 
my colleagues would insist that their child receive that care 
regardless of cost and coverage. Why not guarantee this same right to 
the rest of the American people?
  In addition, a recent survey by the National Coalition for Cancer 
Survivorship stated that oncologists should be the primary managers of 
care for individuals with cancer. To support their argument they cited 
factors such as: the complexities of treating cancer; their specific 
knowledge of long-term and late effects, rehabilitative services, pain 
management and hospice; and the importance of early detection and 
treatment for survivors who have an increased risk for second 
malignancies.
  With regard to out-of-network specialists, the Republican bill lacks 
basic protections to ensure that patients can see doctors qualified to 
treat their condition. For example, a child with diabetes should be 
able to receive care from a pediatric endocrinologist. However, if 
there is no pediatric endocrinologist available in the network to 
provide care for the child with diabetes, the family should be able to 
seek care from an out-of-network physician at no addition cost.
  We must ensure access to qualified specialists, outside of the 
network if necessary, and without high out-of-pocket expenses for 
enrollees who are forced to go outside the plan to be treated by the 
needed specialist.
  The Republican bill also fails to hold a plan responsible for not 
having an adequate network of specialists. In fact, Sec. 725 in the 
Republican bill states that ``such access may be provided through 
contractual arrangement with specialized providers outside the network 
of the plan.''
  Beneficiaries should not have to suffer because of their health 
plans' inadequacies. They should receive the care they need by the most 
appropriate health professional. The Republican bill's guarantee to 
specialists is weak and does not even guarantee that children can see 
pediatric specialists.
  Finally, the legislation we are considering today only provides 
access to specialists for only 48 million Americans with private 
insurance. It leaves out the 113 million individuals who choose to 
enroll in managed care plans.
  Plans should provide patients with an adequate network of physicians, 
and when they fail to do so, should allow the beneficiary to step out 
of the network at no extra charge. We must protect our frailest and 
sickest patients. Individuals with life-threatening and disabling 
conditions should be allowed the use specialists--the best source of 
information and care for specific and advanced diseases--to coordinate 
care.
  The PRESIDING OFFICER (Mr. Brownback). Who yields time?
  Mr. JEFFORDS. I yield myself 5 minutes.
  The PRESIDING OFFICER. The Senator is recognized for 5 minutes.
  Mr. JEFFORDS. I appreciate the tremendous effort the Senator from 
Utah has made in this debate. I think he has hit upon the critical 
issue. We must remember, all of us, every time we do make changes which 
result in increased costs, people become uninsured. That is the 
advantage of the Republican package and why it is so much better than 
the Democratic package.
  If you want to keep score, as my friend from California wishes to do 
on victories here, they will have 1.8 million victims from their cost 
increases; we will have about 240,000. And who are those victims? They 
are the working poor. They are the ones those of us who are 
compassionate always feel sorry for. We ought to be spending our time 
and ability to increase their capacity for health care, not throw them 
off the plans. That is the difference between the two bills in the 
final analysis when you come down to it; and that is, we will not make 
the working poor suffer more and throw 1.8 million people off of the 
rolls of the insured. So keep that in mind when you think about which 
bill you want to vote for. Because, to me, that is the top concern.
  In addition to that, we also create a standard, a higher standard for 
all Americans with respect to what they should get from health care and 
from the HMOs, et cetera; and that is, to get away from the old 
standard where you did not have to worry about the changes in the 
medical profession or what advantages would be accomplished. With all 
of the work we are doing now in the outcomes of research to determine 
what works and what does not work, that is going to be available to us. 
It is available now, but as we move forward it is going to be more and 
more available.
  We demand that the doctors must give the best health care, not just 
something that happens to be generally practiced in the area.
  So we have two huge advantages with the Republican bill. I hope 
Members will keep that in mind as we move forward in the process.
  I yield the floor.
  Mr. KENNEDY. I yield the Senator from Iowa 15 seconds.
  The PRESIDING OFFICER. The Senator from Iowa is recognized for 15 
seconds.
  Mr. HARKIN. Mr. President, we are considering an amendment by Senator 
Bingaman to allow people with chronic illnesses, people with 
disabilities, to go outside the plan and get the specialty care they 
need; yet, again, not one Republican will get up and even talk about 
it. Not even one Republican will get up and talk about it.
  Mr. KENNEDY. Mr. President, I yield 2\1/2\ minutes to the Senator 
from New York.
  The PRESIDING OFFICER. The Senator from New York is recognized for 
2\1/2\ minutes.
  Mr. SCHUMER. I thank the Senator from Massachusetts.
  As the Senator from Iowa noted, no one seems to be debating this 
amendment. Everyone seems to be debating

[[Page S8497]]

other parts of the bill. There is a very simple reason why. Our bill 
says, when your primary care physician says you need a certain 
specialist, you will get one. Their bill says, when you need a certain 
specialist, maybe you will get one if the HMO says you can.
  Let me tell you a story about a young woman in my State, a nurse, in 
her prime of life, 24 years old, a good athlete. She had a health care 
plan from her father because he was a lineman for the phone company. 
She developed a tumor on her femur. She went to her primary care 
physician. He said: This is dangerous. You need an oncological 
orthopedic surgeon. Her HMO said: No, no, no. You can use an ordinary 
orthopedic surgeon. The primary care physician said: No. You need an 
oncological orthopedic surgeon. This is a very difficult tumor.
  But they were not a rich family. When the HMO said no, she went and 
had the operation from the orthopedic surgeon. Guess what. The tumor 
grew right back. She went back to the HMO. She said: I did what you 
said. I went through a painful operation. Now let me go to the 
specialist my primary care physician says I need. They said no again. 
She went on her own, paid $36,000 out of her pocket. It cured the 
tumor, but now she can hardly walk.
  When she went to the HMO and said, please, pay for this, they said, 
no, no, no. Under the Democratic bill, Debra Bothe would not have had 
to go through this. She would have had the specialist she needed. She 
would be walking today. Her family would not be totally out of money 
today. Under the Republican bill, nothing would have changed.
  That can be repeated in story after story, in anecdote after 
anecdote, on factual basis after factual basis. If you need a 
specialist, if you are deathly ill--I ask the Senator if I could have 
30 seconds?
  Mr. KENNEDY. I yield the Senator 30 seconds.
  Mr. SCHUMER. If you are deathly ill, and your physician says you need 
a certain specialist, do you want the Democratic bill that says you get 
one or the Republican bill that says maybe you will get one, if your 
HMO allows you to?
  I say to my friend, the Senator from Vermont, that is what working 
families want and need--this kind of bill, this kind of proposal, not a 
proposal that is toothless and sides with the insurance companies time 
after time after time.

  I thank the Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I yield myself such time as I might use.
  We are coming into the final moments before we will vote on this 
amendment. I will take at least these final moments to point out where 
we are.
  Primarily, what we are talking about are the protections that have 
been included in our Patients' Bill of Rights. No matter how many times 
our Republican friends say they are shocked, shocked to discover the 
deficiencies in their amendments and promise to do better, their new 
product is just the same old, tired, flawed proposal in fancy dress. 
The problem is a simple one: Insurance companies don't want real 
protections, so Republicans won't produce them.
  We have two different proposals on emergency care, two different 
proposals on OB/GYN care, and another proposal in terms of specialty 
care this evening--all changes, alterations, in terms of their original 
proposal. No matter how many times they alter or change, they still do 
not meet the basic standard and test of providing that the medical 
professions make the judgment of what is in the interest of that 
patient, not the insurance company.
  Access to the needed specialty care is one of the most critical 
ingredients in quality health care. Timely access to a qualified 
specialist can often determine whether a patient lives or dies. For 
those living with chronic illnesses or with a physical or mental 
disability, access to specialty care can improve the quality of life, 
prevent deterioration, or cure or ameliorate the disease.
  Nowhere is the contrast between the Republican plan and our proposal 
clearer than on the issue of access to needed specialty care. Our 
amendment, offered by Senators Bingaman, Harkin, Reed, and others, 
guarantees it. The Republican plan is a sham proposal that carries the 
label of access to specialty care but does nothing meaningful to help 
patients.
  Our amendment has key protections that guarantee appropriate 
specialty care. Health plans are required to provide care by a 
qualified specialist or center of excellence when needed. If sufficient 
expertise does not exist inside the HMO network, it must allow patients 
to go to a specialist or a center of excellence outside the network, 
without any additional financial burden beyond what would be involved 
in seeing a network specialist.
  For chronic or ongoing conditions, HMOs must allow standing referrals 
to a specialist or, where appropriate, allow the specialist to be a 
care coordinator--in effect, the primary care gatekeeper for treatment 
related to the condition.
  These provisions are especially critical for anyone suffering from a 
chronic disease or disability and for disabled children with their 
complex needs. If there is a disagreement between a plan and a 
physician or patient about the need for specialty care or out-of-
network care, the dispute will be resolved by a speedy independent 
review. It is guaranteed. It is written into the law.
  The Republican plan includes none of these critical guarantees, not a 
single one. More than two-thirds of all patients are excluded even from 
the minimal protections it does provide. Access to qualified 
specialists is essential to quality care, particularly for those who 
need care the most: those with a disabling or life-threatening illness. 
If our proposal is adopted, every family can be confident that if 
serious illness strikes, their health plan will not deny them the care 
that is essential for recovery--no ifs, ands, or buts; the guarantee is 
there.
  Once again, the issue is clear: Will the Senate protect the patients 
or will it protect the insurance industry profits? That is what is 
before the Senate in this amendment. That was basically the protections 
that were included in our legislation. This amendment will guarantee 
that any measure that comes out of this body will have those 
protections, and that is why this amendment is so important to be 
accepted.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. Who yields time?
  Mr. BINGAMAN addressed the Chair.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. BINGAMAN. Mr. President, may I ask for time to ask for unanimous 
consent?
  Mr. KENNEDY. Of course.
  Mr. BINGAMAN. Mr. President, I referred in my earlier comments to a 
circumstance that was described to us this morning. Beth Gross talked 
about her 4-year-old named Matthew and the difficulties the family had 
in obtaining access to specialty care. I have been given a copy of a 
statement she made describing that in more detail. I ask unanimous 
consent that that statement be printed in the Record.
  There being no objection, the statement was ordered to be printed in 
the Record, as follows:

       My name is Beth Gross, and I am here today on behalf of 
     patients everywhere who are crying out for a real patients' 
     bill of rights. We need protection, and can no longer afford 
     to be at the mercy of health maintenance organizations.
       While other interests say that the industry can regulate 
     itself, my 4-year-old son can barely say anything at all 
     because of an HMO policy. I am here today to tell you that my 
     son was denied access to necessary, specialized medical 
     treatment.
       Matthew has a significant speech delay that has been 
     directly linked to his repeated ear infections. For the first 
     two years of his life, Matthew suffered 14 ear infections. In 
     most cases, this is a normal childhood illness treatable with 
     antibiotics. But the fluid in Matthew's ears remained behind 
     the eardrum for a long period of time--causing repeated 
     infection and delayed speech. To a young child like Matthew, 
     when this fluid remains behind the inner ear, it distorts 
     sound and sometimes impairs hearing completely.
       The doctor who treated Matthew repeatedly used antibiotics 
     instead of granting my request for a referral to an Ear, 
     Nose, and Throat Specialist. As a nurse, I knew the risks of 
     this chronic condition, and grew frustrated to know that a 
     simple surgical procedure called an ear tube placement could 
     immediately correct Matthew's problem. But I was left at the 
     mercy of a doctor who kept treating Matthew with 
     antibiotics--antibiotics that were never going to be able to 
     correct the structural problems within his little ears.
       I made the decision at that point to change my primary care 
     physician, and called the

[[Page S8498]]

     insurance company. When I explained our dilemma, I was 
     outraged at their response. We could not get a referral for 
     Matthew because it was their policy, to impose and I quote, 
     ``monetary sanctions'' on the physician for giving a referral 
     for something that he is able to treat.'' I felt shocked and 
     helpless. I could not believe that I lived in a country that 
     allowed an insurance company to be so ruthless with a child.
       I fought for more than a year to get the referral Matthew 
     needed. By that time, Matthew was 18-months-old and was still 
     not speaking. Although we changed doctors, we could not 
     change insurance companies. When he finally saw the Ear, 
     Nose, and Throat Specialist, Matthew's test results were 
     heartbreaking. His impairment left him only to hear distorted 
     sounds of human speech, which is one of a child's most 
     important tools for developing language.
       Thankfully, Matthew finally received the ear tube surgery 
     that he desperately needed. On the morning we brought him 
     home from the hospital, you should have seen the joy and 
     excitement in his face as he first heard birds chirping--a 
     sound so many of us take for granted. Two and a half years 
     have passed since our ordeal and Matthew has never had 
     another ear infection. The ear tubes immediately corrected 
     his hearing. He also had his adenoids removed, which were so 
     large that they were blocking the natural structure of the 
     inner ear that allows fluid to normally drain. These enlarged 
     adenoids could only have been found by an Ear, Nose, and 
     Throat Specialist.
       If only Matthew had been treated earlier. Now our family 
     must work to correct his speech problem. Our insurance 
     company has changed since then, but it's been another fight 
     with another HMO to cover speech therapy. They denied 
     coverage for that service, until The National Patient 
     Advocate Foundation stepped in and won that battle for 
     Matthew.
       I look back on our situation and wonder what our lives 
     would be like today if there had been a law preventing that 
     insurance company from financially penalizing our physician 
     for giving a referral. Matthew would have had normal hearing 
     during the critical developmental phase of his life. Instead, 
     now Matthew is unable to make the correct sound for 90 
     percent of the alphabet. If Matthew received a timely 
     specialist referral, my son wouldn't be self-conscious and 
     hesitant to speak because he fears people not being above to 
     understand him.
       Matthew was caught in the crossfire of an insurance company 
     being able to tell a doctor how to practice medicine. This is 
     just plain wrong. Cost effective health care has cost my 
     family, especially an innocent child, too much. I urge you to 
     pass meaningful patients bill of rights for me and Matthew.
       Thank you.

  Mr. KENNEDY. Mr. President, I yield 4 minutes to my colleague, the 
Senator from Massachusetts.
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized 
for 4 minutes.
  Mr. KERRY. Mr. President, we have the best specialists, the best 
delivery system in the world. We have people who come here from all 
over the world to share in the remarkable expertise and capacities of 
our specialists in this country. Yet the fact is, under the Republican 
plan millions of our own citizens would be denied the right of access 
to specialists.
  The stories of individuals are remarkable. I know every single one of 
us has received letters from anguished parents who run into the most 
extraordinary barriers of resistance from an HMO that is simply 
concerned with its bottom line and not concerned with the proper 
delivery of health to the individual they represent.
  I will speak for just a few minutes today about one of the issues I 
believe cuts to the heart of this debate over managed care reform in 
the Senate today, and that is the broader question of what kind of 
access we are going to guarantee to specialists. Mr. President, in the 
United States, we are fortunate to have world-renowned health care 
facilities and some of the best doctors and researchers in the world. 
Each year thousands of people from around the world travel to this 
country because we have the best specialists in the world. But at the 
same time, every year, thousands of letters pour into my office from 
constituents in managed care plans who can't see the specialists their 
own doctors know have the expertise to meet their medical needs--
because their HMOs won't permit it. Mr. President, there's something 
disturbing in the dichotomy we are facing: all the world knows our 
doctors are the best trained, our specialists the best educated and the 
most highly skilled--but our citizens aren't permitted to see them when 
they need them most. What can we say about that system which defies the 
limits of common sense and every notion of human compassion? I believe 
we should all be able to say that it demands reform--today.
  When the American people say they support managed care reform, they 
are rejecting the one-size-fits all brand of health care practiced by 
many HMOs. Let me assure you, as well, that one of the most critical 
elements of any Patients' Bill of Rights must be access to quality 
speciality care--literally, the difference between life and death for 
thousands upon thousands of Americans each year.
  Too many of the tragic cases that we hear about in the United States 
are the result of delay and denial of access to cardiologists, 
oncologists, surgeons, pediatric specialists and the doctors who have 
the specialized knowledge absolutely critical in so many cases today. I 
will never forget the story of Morgan smith--four years old, diagnosed 
with brain cancer, facing a life-threatening tumor. Imagine the horror 
of her parents, hearing that grim diagnosis. And you can understand her 
parents' reaction when pediatric oncologists at Hasbro Children's 
Hospital in Providence told them that Morgan needed to go to New 
England Regional Medical Center in Boston for a special chemotherapy 
treatment--her mother said ``I need to do whatever it's going to take 
to save my daughter's life, and I'm going to listen to our doctor.''

  But can you imagine how Morgan's mother felt when she got a letter in 
the mail from her HMO denying payment for a specialist--demanding that 
she get a second opinion? Meanwhile, Mrs. Smith took Morgan to Boston 
for her treatments, unsure about how she would pay for it, but knowing 
that she couldn't afford to risk Morgan's health while she fought the 
insurance company. Despite a second opinion that Morgan needed the 
expertise of specialists in Boston, the HMO still refused to pay for 
the treatment. Mrs. Smith had to wage her own battle against the HMO by 
starting a letter-writing campaign, along with Morgan's doctors.
  Fortunately, Morgan's story, unlike too many others, has a happy 
ending. Close to a month after Morgan had started her treatment, the 
insurance company finally agreed to cover the procedure that all the 
medical professionals agreed was necessary. But I would remind you that 
had Morgan's parents followed the HMO's mandate, their daughter may not 
have received the treatment that saved her life and it was at the very 
least, delayed. Morgan's parents have since changed insurance 
companies, but their health plan contract will be rewritten in August 
and the family is very nervous about possible changes that may affect 
Morgan's health care. Morgan will be six years old this November and 
she is attending kindergarten. We need to take the right steps today to 
guarantee that Morgan and children like her never face another HMO 
nightmare like the one that could have cost her and her family her 
life. We need to take the necessary steps to prevent the kind of 
bureaucratic nightmare that almost killed Sarah Pederson. Sarah 
Pederson's parents lives were changed overnight when their healthy, 
beautiful seven month old baby was diagnosed with an inoperable brain 
tumor--a condition which had to be monitored carefully by a specialist. 
But the Pedersons' HMO--in spite of the recommendation of their 
pediatrician--would not allow Sara to see a pediatric neuro-oncologist. 
A seven month old baby with a brain tumor, a brain tumor so complicated 
that the Pedersons' pediatrician knew only of a few pediatric neuro-
oncologists capable of treating it, and the HMO said ``no''--they 
insisted that this child be sent to an adult neuro-oncologist. Why? No 
explanation was given other than ``this is our policy.'' And it goes on 
and on. The HMO refused to approve the chemo-therapy regimen prescribed 
by their specialist--until it was approved by another one of their 
specialists. And what happened during that month of delay? The tumor 
grew. And in the end, what saved Sarah Pederson? Did the HMO relent and 
allow the doctors and the family to make decisions in the best 
interests of this child? No. The Pedersons only found relief when they 
left their HMO--and mortgaged their home to join a fee for service 
program. I challenge any one to look the Pedersons in the eye and tell 
them we don't need managed care reform to guarantee appropriate access 
to specialists.

[[Page S8499]]

  Mr. President, I can tell you that--thanks to parents who didn't give 
up, who put their own financial security on the line, who fought and 
fought the red tape--Morgan Smith and Sarah Pederson survived. They 
survived in spite of their HMO's. Jack Jennings wasn't so lucky. Jack 
was from Andover, Massachusetts. He was diagnosed with mild emphysema, 
and later on with a pneumothorax, which can lead to a collapsed lung. 
His doctor believed a lung reduction procedure could not just improve 
his quality of life, but actually save his life--but this primary care 
doctor knew it would take a specialist to perform that operation. Jack 
was referred to see Dr. Sugarbaker, a top physician in Boston. The HMO 
rejected the referral. Jack's doctor wrote a lengthy appeal. The HMO 
rejected it. Months went by. Jack appealed again and again--literally 
taking a break from his oxygen machine to speak on the phone with the 
HMO claims adjuster. Finally, a letter arrived at the Jennings 
household, the referral for a specialist approved, a date for surgery 
set. But here's the tragedy: Jack Jennings had died before the letter 
reached his house, before the surgery was approved. And the letter from 
the HMO was right there in a pile of mail, surrounded by condolence 
cards. Mr. President, how can we say with a straight face that HMO's 
aren't running roughshod over patients in dire need of specialty care. 
How can we say that this isn't a gross abuse of fundamental patients' 
rights?
  Our access to specialists amendment helps to ensure that patients 
will be able to secure the health care they need, no matter what the 
circumstance. All patients with special conditions absolutely must have 
access to providers who have the expertise to treat their problems.
  Our amendment delivers on these common sense propositions: ensuring 
access to specialists by allowing patients in an HMO network of 
physicians to find specialty care outside that network at no extra cost 
if there is no qualified specialist available in the network and 
allowing patients who are seriously ill or require continued care to 
have their specialists coordinate their care without being required to 
ask permission again and again from a primary care provider. The 
Republican bill does not ensure access to speciality care; it lacks 
basic protections to ensure that patients can see doctors qualified to 
treat their condition. For example, if a child with cancer needed 
access to a pediatric oncologist, there is no guarantee in the 
Republican bill that she will have access to that specialist.

  Not only that, but the Republican bill does not allow patients with 
diseases or disabilities requiring continuing care by a specialist to 
designate their specialist as their primary care doctor who can 
coordinate their care. Under the Republican bill, patients could be 
charged more for out-of-network specialty care--even if the plan is at 
fault for not having access to appropriate specialists. The Republican 
bill would not allow patients to appeal a denial of access to 
appropriate specialists. If the Republicans pass the legislation that 
they want to pass, children and adults with diseases such as cancer or 
severe arthritis will continue to face insurance company red tape when 
they go for routine visits to the oncologist or rheumatologist.
  Mr. President, our opponents will say their bill includes access to 
specialty care but the fact is that their bill leaves out the key 
elements needed to ensure access to specialty care. Their bill may have 
the title Patients' Bill of Rights, but it sure doesn't have the 
substance. At a time when millions upon millions of Americans are 
feeling the squeeze from their HMO's, when millions of Americans are 
suffering needlessly because decisions are being made by bureaucrats 
rather than doctors, the style without the substance won't do a single 
thing to make health care better--it won't save Morgan Smith's family 
from another battle with an HMO when her family's energy should be 
dedicated to a fight against cancer, it won't do a single thing to 
prevent the all-too-real suffering that has become standard practice in 
the maze of red tape that is managed care health care in the United 
State today. Mr. President, we can do better than the Republican 
propsoal--we can actually guarantee access to a specialist. And that is 
a responsibility every one of us ought to work towards fulfilling.
  The PRESIDING OFFICER. The Senator's 4 minutes have expired.
  Mr. KERRY. Mr. President, it is clear that every American has the 
right to have a specialist, and we need to pass this amendment in 
appreciation of that fundamental need and right of our citizens.
  The PRESIDING OFFICER. Who yields time?
  Mr. JEFFORDS. Mr. President, I yield 5 minutes to the Senator from 
Pennsylvania.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, the issue of access to specialty care is 
very important. Many of us represent, as I do, hospitals that are very 
intensive tertiary care facilities with lots of specialists. Those of 
us who have had young children have had experience at children's 
hospitals and have dealt with specialists and recognized the need for 
that.
  I can tell you as a father of four young children and a child who is 
due in September, I am not going to stand here and say we are not going 
to provide access to the kind of specialty care for children, or 
anybody else, that is needed. I am confident that the bill before us 
does exactly that. It does exactly that. It provides access to 
specialty care when it is necessary to save or help improve the life of 
a young child or anybody else.
  As an example, if you have a baby who is born with a rare heart 
disease and the pediatrician recommends that a pediatric cardiologist 
treat the baby, the claim is made and it is denied initially, and it 
goes through the internal review process. Specialty care is covered 
under the contract. Remember, we are dealing with covered benefits, so 
obviously if it is not a covered benefit, that is a different issue. 
But if it is covered--and, of course, most HMOs cover some sort of 
specialty care--it is covered.
  But in this case, say the network doesn't have a pediatric 
cardiologist. So you have, in a sense, what is laid out by the other 
side, the worst case scenario. The network doesn't have a specialist, 
and therefore they just won't give this specialist treatment because 
there isn't a pediatric cardiologist available to treat this. So a 
regular pediatrician would have to do so.
  Well, that is not the case in our bill. Our bill says that this 
particular denial is eligible for review by an independent external 
reviewer. The dispute is about who should provide the specialty care. 
That is an element of medical judgment. Therefore, if it is an element 
of medical judgment, it is eligible for review. If it is an independent 
review and the reviewer says yes----
  Mr. KERRY. Will the Senator yield for a question?
  Mr. SANTORUM. If I can get through this first. It is eligible for a 
review. An independent reviewer, under our bill, will look at all of 
the facts in the case and determine whether, in fact, the pediatric 
cardiologist is necessary in medical judgment to, in fact, perform this 
procedure. They make an independent medical determination based on all 
of the information that is reviewed, including the recommendation of 
the doctor, the original pediatrician, including the recommendation by 
the internal reviewer. They look at all of the information, they get 
all of the relevant facts, and they put this together--as has been 
listed many times here--a laundry list of factors to consider, and they 
make an independent judgment as to whether a pediatric cardiologist is 
necessary. If it is necessary, the denial is overturned. The specialist 
outside of the network is selected to provide the care for this child 
within the HMO.
  That is in our bill. That is covered under our bill. So all of this 
talk about we are not going to have this kind of access is not 
carefully reading this bill. I give a lot of credit to Senator Frist 
and Senator Jeffords and those on the health committee. They have done 
an excellent job of looking through and making sure all of these kinds 
of situations where you have limitations--and in many cases you do have 
limitations, and the networks don't have a lot of specialists. But you 
can go outside the network if an independent reviewer determines that 
is what is medically necessary in that case.
  Mr. BINGAMAN. Will the Senator yield for a question?

[[Page S8500]]

  Mr. SANTORUM. Yes.
  Mr. BINGAMAN. As I understand the bill you are referring to, you say 
it provides this access. There is no requirement that access to the 
specialist be provided at the regular amount that is being paid. 
Whatever the HMO determines the additional cost should be to go to the 
outside specialist would be charged, is that correct? That is my 
understanding. I have read the bill fairly carefully, and that is a 
major difference between the amendment I have offered and the amendment 
that you are referring to.
  The PRESIDING OFFICER. The time allotted to the Senator from 
Pennsylvania has expired.
  Who yields time?
  Mr. KENNEDY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. I yield to the Senator from West Virginia.


                         Privilege of the Floor

  Mr. ROCKEFELLER. Mr. President, I ask unanimous consent that Stephen 
Downs, a health care policy fellow, be given privileges of the floor 
during consideration of S. 1344.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ROCKEFELLER. Mr. President, yesterday, I talked to a 56-year-old 
woman I have known for a long time in West Virginia. She has a rare 
heart disease. She has been struggling with it. She has now discovered 
that the operation she is potentially going to need is not available 
for her in West Virginia. She is going to have to go to another State 
far south in order to get that operation. The problem is that her 
insurance company said they will not pay for her operation. They said 
she will either get her operation in West Virginia, where this kind of 
operation is not readily available because it is rather rare or she 
won't get it at all, or she has to pay for it herself. She is not a 
corporate giant. She runs a small business and has six people working 
for her.

  This kind of thing should never happen. The Democratic bill would 
prevent that from happening. She would be able to go to that southern 
State where they do this kind of operation constantly and get that 
operation. That should happen in the United States of America.
  Secondly, I talked with the physician of an 8-year-old girl 4 days 
ago. She has growth problems, seizure problems, and development 
problems, and she is under the care of a pediatric specialist in 
endocrinology and neurology at Western University. If you have a 
pediatric endocrinologist and somebody says you have to use an adult 
endocrinologist because that is in our plan, well, then people say, 
well, an endocrinologist is an endocrinologist. Not true. She will be 
denied care, and that is wrong.
  The PRESIDING OFFICER. The time of the proponents has expired.
  Mr. ROCKEFELLER. Under the Democratic bill, she would get pediatric 
care, and she should.
  Mr. JEFFORDS. Mr. President, I yield 1 minute to the Senator from 
Pennsylvania.
  Mr. SANTORUM. Mr. President, I wanted to respond to the Senator from 
New Mexico. My time had run out. My understanding is that the provision 
in the bill says the network has to provide access to specialty care. 
We define in the report language clearly what access means as far as 
cost sharing is concerned:

       When the plan covers a benefit or service that is 
     appropriately provided by a particular type of specialist not 
     in the network, the benefit will be provided using the in-
     network cost-sharing schedule.

  In other words, no additional costs. Only in cases where it is a 
preference to go outside the network for a specialist, other than 
somebody in the network, where it has not been referred by the plan or 
determined by a reviewer, is that additional cost borne. As long as an 
independent reviewer or the plan refers out of network, the cost 
sharing is the same.
  The PRESIDING OFFICER. Who yields time?
  Mr. JEFFORDS. I yield the remaining time to the Senator from Texas.
  The PRESIDING OFFICER. The Senator from Texas is recognized for 9 
minutes.
  Mr. GRAMM. Mr. President, I wanted to come over today and try to end 
this debate by making a point this debate has cried out for all day.
  What we have heard all day long is our Democrat colleagues stand up 
and attack HMOs. Every horror story they could imagine, every outrage 
that the human mind could conceive, they have talked about and laid at 
the doorstep of HMOs. I think someone watching this debate who just got 
off a turnip truck or who just emerged from a 10-year trip to outer 
space would believe that our Democrat colleagues hate HMOs and that 
they are the enemies of HMOs.
  But let me remind those who may have just gotten off a turnip truck, 
or those who may have forgotten what has occurred in America in the 
last 20 years that you have been listening all day to the fathers and 
mothers of HMOs. They brought HMOs into Federal statutes. They exempted 
them from health planning.
  They liked HMOs so much that in 1994 they sent this bill to the 
Congress.
  For those who have forgotten it, this is the Clinton health care 
bill. The Clinton health care bill, which our colleagues who spoke 
today all supported and uniformly loved, forced every American to go 
into an HMO that was set up as a local health care cooperative. It was 
an HMO run by the Government with all the compassion of the IRS and 
with all of the efficiency of the post office.
  They loved HMOs so much and they were so confident in them that they 
said: If you refuse to join your local health cooperative, HMO, 
Government-run health care system, we are going to fine you $5,000.
  That was their position in 1994.
  Now they have taken a poll. They have done a focus group. They do not 
love HMOs anymore. But in 1994 they loved them so much that they were 
going to fine every American $5,000 for refusing to join their 
Government-run HMO.
  By the way, they banned suing the HMO when it was their HMO, when it 
was the Government HMO. They thought we ought not to do it.
  Today they are worried about doctors providing care, and that for a 
doctor under an HMO, they can't do it. But when they were writing their 
health care bill, they fined a doctor $50,000 if he provided health 
care that their Government-run health care cooperative, HMO, did not 
allow.
  So under this bill, when you had a health care collective run by the 
Government--one great big HMO, and if a doctor prescribed a medicine 
that they didn't allow, or prescribed a treatment, or provided a 
treatment that they didn't think was medically necessary, that is Dr. 
Clinton or Dr. Kennedy didn't think was necessary, a doctor could be 
fined $50,000 under this bill.
  If your baby was really sick and they banned the treatment, and if I 
went to Dr. Frist and I said, Dr. Frist, I want my child to have this 
surgery, I know you can do it, I know that our Government collective 
HMO bans it, but I am willing to pay you for it, if Dr. Frist had taken 
that payment, he would have gone to prison for 15 years under the 
Clinton health care bill.
  These are the people who invented the HMO. They are the people who 
love HMOs. They are the people who wanted to put us under an HMO and 
fine us $5,000 for not giving it our money, and it put a doctor in 
prison for 15 years for violating their statute on what they thought 
was good medicine.
  Today it has been a horror show about HMOs.
  I want to conclude. I know people want to go home.
  How do they fix this problem? They fix the problem with what they 
call a Patients' Bill of Rights.
  There are two rights that they guarantee.
  No. 1, you can look in the blue pages of the phonebook, and you can 
call up a Government bureaucrat, and you can complain. You can get an 
appointment. You can go see them next Tuesday at 8 o'clock. You can get 
a bureaucrat to join you in the examining room. That, to them, is a 
health care bill of rights.
  The second right they guarantee is, you can call up an attorney. You 
can open up the Yellow Pages. Here is one that says, ``No fees unless 
we get you money.'' Anyway, whoever you find in here--criminal law, 
family law, personal injury specialist--you can pick any lawyer you 
want under their health care bill of rights, and you can call him, and 
you can sue.

[[Page S8501]]

  But what you cannot do under their so-called bill of rights that you 
can do under our bill of rights is, under our bill of rights you can 
fire your HMO. You can set up a medical savings account and then you 
can look in the Yellow Pages under ``Physician.'' You can call any 
physician you want to call, and you can say to them, do you take a 
check? If they do, with the medical savings account that you can have 
under our bill with your employer, you can say ``no'' to your HMO. You 
don't call up the Government, because you don't like how they are 
treating you, or, go hire a lawyer. You fire your HMO and hire your 
doctor.

  You can see what real freedom is. You can say to the HMO, you haven't 
done me right, you haven't treated my children right, and you are 
fired.
  Our bill does that. Their bill does not do that.
  I cannot end the day without pointing out two things.
  One, all day long you have heard from people who invented HMOs and 
who love them so much that they wanted to put the whole country under 
HMOs in a mandated Government-run program. And they still do.
  Second, their remedy for all of these concerns is, call the 
Government, or call a lawyer.
  Our remedy is to first deal with the real concerns in HMOs with a 
review process that really works.
  But we have one more freedom they don't have. Under our bill, you can 
fire your HMO. That is what I call real freedom. That is what we 
provide.
  If you have listened all day to these horror stories, please 
remember, this is a monster that they helped create and that they loved 
so much, they wanted to mandate that everybody be in it.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. KENNEDY. Mr. President, I yield myself 1 minute on the bill.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. I am a good friend of the Senator from Texas. I will 
tell you, Mr. President, the Senator is as wrong in his explanation 
about the debate here on the floor of the Senate and as wrong about 
President Clinton's bill on health care as he was about President 
Clinton's proposal about economic recovery in 1993 when he predicted 
the end of the free market system, that inflation was going up through 
the roof, with unemployment lines around the Capitol of the United 
States. He predicted that deficits were going to grow and it was going 
to be the end of the American free enterprise system. He was wrong 
then, and he is wrong tonight.
  Mr. President, I yield the last minute to the Senator from South 
Dakota,
  The PRESIDING OFFICER. The Democratic leader.
  Mr. DASCHLE. Mr. President, I will take a minute off the bill.
  I do not know how you top that. I was simply going to say that if you 
believe anything the Senator from Texas just said, you are going to buy 
a turnip truck from him, too.
  But I hope everybody can remember what this is all about. This is 
simply about whether or not patients have the right to a specialist, 
whether or not the HMO under any circumstances can tell a patient and 
his or her doctor that, no, you cannot go to a specialist, because in 
millions of cases around the country today, tomorrow, and for the past 
several years, that is exactly what has happened.
  Do we have access to specialists or not? The Democrats are saying 
yes, we need access to the specialist. That is the essence of health 
care in America today. But people are being denied that access. We want 
to change that. This amendment will do it. It deserves our support.
  I yield the floor.
  Mr. GRAMM. Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. The Republican side controls 1 minute 30 
seconds on the amendment.
  Mr. GRAMM. Mr. President, I will take a very short amount of time.
  If I am so wrong about the Clinton health care bill, I hope tomorrow 
to offer it as an amendment, and we will give everybody a chance to 
vote on it. We debated it for 2 years. It was like a great big 
overinflated balloon. When somebody pricked it with a little pin, all 
of the air ran out of it. We never got around to voting on it. We have 
it here. We can send it up tomorrow and give everybody a chance to vote 
on it.
  If Senator Kennedy thinks it is so right--I know he does in his heart 
because he is a very sincere person--then he can vote for the Clinton 
health care bill, and fine these people, and put doctors in prison for 
15 years for providing ``unauthorized'' care. Then we will know where 
we all stand on these issues.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. NICKLES. Mr. President, I yield the remainder of our time and ask 
for the yeas and nays on the amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. NICKLES. Mr. President, for the information of all Senators, this 
will be the last vote tonight. The Senate will go into morning business 
at 9:30 and be back on the bill at 10 o'clock tomorrow. We expect the 
first vote to be at approximately noon tomorrow.
  The PRESIDING OFFICER (Mr. Allard). The question is on agreeing to 
amendment No. 1245.
  On this question, the yeas and nays have been ordered and the clerk 
will call the roll.
  The legislative clerk called the roll.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
who desire to vote?
  The result was announced--yeas 47, nays 53, as follows:

                      [Rollcall Vote No. 205 Leg.]

                                YEAS--47

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Bryan
     Byrd
     Chafee
     Cleland
     Conrad
     Daschle
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Graham
     Harkin
     Hollings
     Inouye
     Johnson
     Kennedy
     Kerrey
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Moynihan
     Murray
     Reed
     Reid
     Robb
     Rockefeller
     Sarbanes
     Schumer
     Specter
     Torricelli
     Wellstone
     Wyden

                                NAYS--53

     Abraham
     Allard
     Ashcroft
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Cochran
     Collins
     Coverdell
     Craig
     Crapo
     DeWine
     Domenici
     Enzi
     Fitzgerald
     Frist
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Jeffords
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Roberts
     Roth
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner
  The amendment (No. 1245) was rejected.
  Mr. ENZI. Mr. President, I move to reconsider the vote, and I move to 
lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. ROTH. Mr. President, health care in America is the envy of the 
world. We have the finest doctors, nurses, and medical care personnel 
available anywhere. We have the best research facilities and the most 
advanced--state-of-the-art--technology. We are the world's leader in 
providing new and effective treatments and therapies. And it doesn't 
seem that a day goes by without news of some exciting breakthrough in 
medicine and health.
  While this is the good news, there's no question that our health care 
delivery system also faces some serious challenges. No one argues that 
there isn't cause for concern when it comes to making high quality 
health care more affordable, and therefore more accessible, to millions 
of Americans who currently have no coverage, and for those who may even 
have coverage, but who are receiving substandard and even poor care.
  For the last fifteen years, Congress has been concerned about the 
skyrocketing costs associated with health care. I remember the dire 
predictions we listened to in the 1980s and early 1990s. I recall the 
testimony of OMB Director Dick Darman in 1992, when he warned that 
given its current rate of increase, total public and private health 
spending was quickly taking over the Gross National Product. Unless 
something was done, he said, expenditures--which were less than six 
percent of GNP three decades earlier--would reach the unmaintainable 
level of 26 percent of GNP by the year 2030.

[[Page S8502]]

  One of the innovative answers to curb this dangerous increase was the 
advent of managed care and the creation of Health Maintenance 
Organizations. Through this system, millions of Americans found access 
to health care that was affordable. Small businesses were better able 
to provide insurance for their employees. And competition between HMOs 
and other health care providers in the miraculous free market system 
worked to reduce the exploding costs of coverage. At the same time, it 
allowed those incentives to work that were continuing to promote new 
research and development, new therapies and technology, and the daily 
breakthroughs I mentioned earlier.
  Was everything perfect? No. Questions and concerns--very relevant 
questions and concerns--soon surfaced regarding the quality of care 
delivered by some of the providers participating in the managed care 
system. But just as valid as these concerns was the fact that through 
managed care, millions of satisfied Americans were receiving high 
quality services that may have, otherwise, been unavailable to them. 
And because of the influence that managed care was having on the 
delivery of health care in America, free market principles were 
continuing to reward innovation and quality, while at the same time 
creating a new dimension of competition to help control costs.

  With this background, we see more clearly the dynamics involved in 
the issue before us today. As we look to address the need of 
establishing a patients' bill of rights--and, again, the need is very 
real--we see clearly how the improvements we incorporate in such a bill 
of rights must protect Americans and improve the quality of the health 
care they are receiving while, at the same time, not undermine the 
strengths of the current system.
  This is a delicate balance--one that was of primary importance to the 
task force that I served on with several of my colleagues. Together, we 
listened to dozens of experts and consumer representatives. We 
collected and reviewed reams of information. We reviewed countless 
areas that might be addressed and looked at countless possibilities for 
legislative action. There was no question that managed care could be 
improved. In fact, many providers from within managed care 
organizations agreed that there were improvements to be made, and it 
became clear by the evidence we reviewed that a bill of rights is 
warranted.
  Our goal was simple: increase standards and the quality of health 
care delivered by providers, without excessively escalating costs that 
would make health care coverage less available to Americans who need it 
most. There is no question that any time costs go up, those who are 
most adversely affected are those who are least able to afford the 
increases. This not only includes the millions of American families 
that might not have access to health care without competitive managed 
care providers, but it also includes millions of Medicare beneficiaries 
who--to receive extra coverage and benefits--are participating in 
managed care programs.
  If attempts to improve the system go to the extreme--opening up, and 
even encouraging, litigation, or increasing government intervention and 
regulation, or holding small businesses that provide health care 
coverage liable for the judgments made by physicians--costs are going 
to explode; countless individuals and families are going to suffer the 
adverse consequences.
  On the other hand, if improvements focus on protecting the patient 
while strengthening the current system, then coverage can be expanded, 
quality can be assured, and even the most vulnerable will be protected. 
This, Mr. President, is our objective; it's what we intend to do with 
the Patients' Bill of Rights Act--a well-studied and common sense 
approach to protecting Americans, while at the same time improving our 
health care delivery system. The legislation we introduce today not 
only targets specific problems in the current system, but it will make 
health care more affordable, more accessible, and give consumers 
greater choice concerning their own care.
  This is accomplished in several ways.
  First, this legislation will guarantee patients a more thorough due 
process than they currently receive when they are denied a benefit by 
their health plan. This includes an external review by an independent 
medical expert to determine if a health plan has unfairly denied a 
benefit. In urgent cases, this review must be completed within 72 
hours. This provision is so important because it will ensure that 
patients get the benefits they are entitled to, when they need those 
benefits most.
  If, for some reason, the safety net of an independent external review 
process fails, our plan preserves an individual's right to sue his or 
her health plan in Federal court for all benefit denials. The 
individual can also sue in State court for malpractice claims.
  Beyond this, our legislation increases the choices that are made 
available to patients by requiring health plans that contract with 
businesses of 51 or more employees to offer participants the 
opportunity to receive health care service from out-of-network 
providers. In this way, consumers will be able to choose providers that 
best suit their needs.
  Outside of encouraging greater choice, our plan effectively increases 
access to health insurance by making coverage for self-employed 
Americans 100 percent tax deductible, starting next January. This is a 
provision that is long overdue. Self-employed individuals have unfairly 
been limited in the amount of money they can deduct from their taxes 
for health care coverage, while business and corporations have been 
able to deduct all the health care benefits they provided their 
employees. This provision will not only help restore equity, but it 
will benefit 25 million Americans who are in families headed by a self-
insured individual--five million of whom are currently uninsured.
  The legislation will require patients to be fully informed concerning 
their coverage, including cost-sharing requirements, supplemental 
benefits, out-of-area coverage, options for selecting primary health 
care providers, access to emergency care, and preventative services. In 
other words, no more surprises. And this legislation also gives 
patients the right to request and be given information concerning their 
plan's administrative details. For example, providers will be required 
to answer their customers' queries into the licensure and 
qualifications of the professionals who participate in the providers' 
plans. They will be required to provide relevant information concerning 
participating health care facilities and reimbursement methods between 
the plan and its participating professions, as well as the status of 
the plan with accrediting organizations. Likewise, consumers can 
request information about medications that are included in the plan and 
procedures to obtain medications that may not be a part of the program.
  All of these provisions are fundamentally important to the rights 
that patients should have when dealing with their health care 
providers. But as you can see, Mr. President, they are constructed and 
included in this legislation in a way that the benefits are received 
without adversely influencing accessibility and affordability. In fact, 
as I have shown, accessibility and affordability will actually increase 
with this Patients' Bill of Rights Plus Act.
  But the benefits of this plan do not stop there. The Patients' Bill 
of Rights Plus Act includes important prohibitions against gag rules 
that some health plans use to limit communication between doctors and 
patients. This legislation will prohibit health plans from restricting 
their doctors from sharing information and discussing treatment options 
with their patients.
  This legislation will also patients to have direct access to 
obstetricians, gynecologists, and pediatricians for routine care 
without referrals.
  And it includes important measure to protect sensitive patient 
information. It prohibits the use of genetic information to deny health 
care coverage or to set premium rates. And it enhances the role of the 
Agency for Health Care Quality Research to continue the important 
effort of improving the system for long-term.
  These, too, are important, but perhaps the provisions in this 
legislation with which I am most pleased are those that will advance 
research, prevention and treatment for women with cancer and 
cardiovascular disease. These provisions will expand basic and clinical 
research, specifically for women, on the underlying causes and 
prevention of these diseases. Beyond this, the Patients' Bill of Rights 
Plus Act will fund

[[Page S8503]]

extended research related to osteoporosis and women's geriatric 
concerns. And it will support continued data collection through the 
National Center for Health Statistics and the National Program of 
Cancer Registries--two leading women's health data centers.
  Mr. President, I don't think there's anyone who can argue with the 
important measures contained in this bill. It is, indeed, 
comprehensive. At the same time, it's balanced and constructive. It's 
the kind of effective leadership Americans expect from Congress--making 
access to health care easier, not harder, for individuals and small 
businesses.
  It allows the incentives that make our health care system the envy of 
the world to continue, while it includes new incentives for providers 
to offer better quality, greater efficiency, and to be more responsive 
to their customers. While addressing the short-comings of the current 
system, this legislation builds on what is good--what is working--in 
the current system. It expands the real rights of patients and provides 
for continued research and development in areas that are vitally 
important to America's changing demographics.
  For these important reasons, I encourage all of my colleagues to join 
us in supporting this Patients' Bill of Rights Plus Act. It is not only 
comprehensive and very workable, it is constructive and necessary.
  Mr. KOHL. Mr. President, I rise to express my strong support for S. 
6, the Patients Bill of Rights. After 2 years of partisan struggles, I 
am pleased that we finally have the opportunity to consider this 
important bill, which could benefit all 161 million Americans in 
managed health care plans.
  For many years, managed care has helped to rein in the rapidly 
growing costs of health care. That benefits all patients across the 
nation and helps to keep health care costs in check.
  However, there is a real difference between making quality health 
care affordable and cutting corners on patient care. In Wisconsin, we 
are lucky that most health plans do a good job in keeping costs low and 
providing quality care. But too often across this nation, HMOs put too 
many obstacles between doctors and patients. In the name of saving a 
few bucks, too many patients must hurdle bureaucratic obstacles to get 
basic care. Even worse, too many patients are being denied essential 
treatment based on the bottom line rather than on what is best for 
them.
  The Patients' Bill of Rights will ensure that patients come first--
not HMO profits or health plan bureaucrats. It makes sure that doctors, 
in consultation with patients, are the ones who decide which treatments 
are medically necessary. It gives patients access to information about 
all available treatments and not just the cheapest. Whether to seek 
emergency care, pursue treatment by a specialist, or try an innovative 
new treatment--these are hard questions that should be answered by 
caring physicians and concerned families--not by a calculator. S. 6 
puts these decisions back in human hands where they belong.
  This legislation will also make sure that health plans are held 
accountable for the decisions they make. First, all health plans must 
have an external appeals process in place, so that patients who 
challenge HMO decisions may take their case to an independent panel of 
medical experts. And second, if a health plan's decision to deny or 
delay care results in death or injury to the patient, this bill ensures 
that the health plan can be held accountable for its actions.
  Most importantly, this bill gives all of these protections to all 
Americans in managed health care plans, not just a few. All 161 million 
Americans in managed health plans deserve the same protections--no 
matter what State they live in.
  I am shocked by the refusal of some of my colleagues to endorse this 
commonsense legislation. If you or a member of your family got sick, 
who would you trust to make decisions about their care? Who would you 
trust to decide what kind of specialist was necessary? Who would you 
trust to tell you about all available treatments and not just the 
cheapest? Wouldn't you insist on having access to the best possible 
medical care? Most of us would. Why should the 161 million Americans in 
managed health care deserve less than what we would insist upon?
  The answer is, simply, that all Americans deserve access to the best 
quality health care available. As someone who comes from a business 
background, I understand the concerns of employers. Some of my 
colleagues on the other side have claimed that our bill will increase 
health care costs by as much as $72 billion, making it impossible for 
employers and families to afford coverage. But the Congressional Budget 
Office reported that the patient protections in our bill will only 
increase premiums by 4.8 percent over 5 years. This translates into 
only $2 per month for the average employee. An independent Coopers & 
Lybrand study found that our provision to hold health plans 
accountable--the provision the other side opposes the most--would only 
cost 3 to 13 cents per person per month. This is a small price to pay 
to make sure that health plans cover the health care services we all 
deserve.
  I am willing to look at possible improvements to the bill. But there 
is no reason whatsoever to continue to allow health plans to skimp on 
quality in the name of saving profits. Patients have been in the 
waiting room long enough. It is time for the Senate to act and make 
sure they receive the health care they need, deserve, and pay for.
  Mr. BURNS. Mr. President, I wish to talk about health care. I am very 
proud that this great country of ours provides the best quality of 
health care in the world. With this comes the question of how to manage 
the constantly growing costs associated with this and how to guarantee 
that as many Americans as possible can be provided affordable health 
care.
  Currently, 43 million Americans are uninsured and many more live with 
the anxiety that they will lose their employer-sponsored health plans 
if premiums go up. The Congressional Budget Office estimates that 
Senator Kennedy's bill, S. 6, will increase private health insurance 
premiums 6.1 percent above inflation. Data from the Barents Group, an 
economic consulting firm, reveal an increase of this magnitude will 
impose hundreds of dollars in hidden taxes on families, eliminate jobs, 
and cancel the health coverage of millions.
  In Montana, farmers, ranchers, and small businesses pull the wagon 
and are the main source of income in our great state. You can only 
imagine what would happen if Senator Kennedy's Patients' Bill of Rights 
bill passes. Hundreds of Montanans will lose their insurance for their 
families and quite possibly many could lose their jobs. With the 
current agriculture prices as low as they this would only make things 
much worse for Montanans.
  The Republican Patients' Bill of Rights bill provides new rights to 
American patients. This bill will guarantee access to emergency room 
care, access to the doctor of your choice, access to ob-gyn care 
without prior authorization and access to a pediatrician without prior 
authorization. The Republican bill also improves continuity of care if 
a doctor leaves a health plan and improved access to medication. These 
are just a few of the things that our Patients' Bill of Rights bill 
guarantees patients.
  I will not vote for a bill that squeezes patients into a one-size-
fits-all health plan. We do not want a Washington-knows-best solution. 
As a former county commissioner I have always believed in local 
control.
  The Republican bill provides tax-free medical savings accounts for 
patients and allows for 100 percent deductibility of health care costs 
for the self-employed. Medical savings accounts are similar to 
individual retirement accounts, except they are used to pay for health 
care needs instead of retirement. They permit individuals to set aside 
money, tax-free, to pay for medical expenses.
  The Democrats want to pass a bill that would regulate the structure 
and operation of all health insurance products at the federal level; 
impose mandates on consumers, health insurers and employers; enable new 
lawsuits against employers and insurers for unlimited compensatory and 
punitive damages; and increase the number of uninsured Americans by an 
estimated 1.9 million.
  In contrast the Republican bill guarantees to make health insurance 
more

[[Page S8504]]

affordable for the self-employed by letting them deduct 100 percent of 
their health premiums in 2000--three years ahead of schedule. The 
Congressional Budget Office estimates that the Democrats bill, S. 6, 
would increase health insurance premiums an average 6.1 percent which 
would force 1.8 million to 1.9 million Americans to lose their health 
coverage. This bill will also lower household wages an average of $207 
annually, and would eliminate 194,000 jobs by 2003.
  I am firmly behind a bill in the United States that will provide 
consumer protections and enhanced health care quality, while keeping 
insurance affordable and actually expanding access to insurance for 
millions of Americans.
  Under the Republican bill, the patients have the right to talk freely 
and openly with their doctors about all treatment options and the right 
to see the doctor of their choice. Even more important, they have the 
right to a quick and cost-free appeals process if a health plan refuses 
to cover treatment.
  The Republican bill does all these things, and also expands 
opportunity for millions of uninsured Americans to come into the health 
care system. We offer tax-free medical savings accounts to all, and 
extend tax equity to self-employed individuals.
  Mr. President, the Republican Patients' Bill of Rights Plus makes 
sure all Americans have the access and protections they need and want. 
Americans deserve access to the best doctors and specialists available; 
reliable information about their doctors and their health plans, and 
affordable, quality care at every stage of life. This week, I will work 
to make sure Congress addresses these important issues with a plan that 
puts you, not a bureaucrat, in control of your health care.
  I thank the chair.

                          ____________________