[Congressional Record Volume 147, Number 84 (Monday, June 18, 2001)]
[Senate]
[Pages S6379-S6381]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              HEALTH CARE

  Mr. KENNEDY. Mr. President, tomorrow I am very hopeful we will at 
long last have the opportunity to consider, again, legislation to 
protect American patients from HMO abuses. Across the country, we have 
seen abuses as a result of HMOs interfering with the decisions being 
made daily by doctors, nurses, and family physicians. Health care 
professionals are seeing their decisions overruled by HMO accountants 
who, in many instances, are many miles away. These accountants do not 
have the professional training that the doctors and the nurses 
initially making that judgment and decision have received. They are not 
seeing the patient and are more interested in the bottom line for the 
HMO rather than the good outcome for the patient.
  This legislation has been out there for nearly 5 years. During that 
period of time, we have had some debate. We have had some votes in the 
Senate, but it seems to me we now have a chance to finally give 
Americans the protections they want and deserve.
  I will take a few moments this afternoon to review, once again, what 
this legislation is about. This legislation recognizes that managed 
care too often means ``mismanaged'' care. We have the opportunity to 
change that. We should change it and establish a minimum standard of 
quality care. If individual States want to build on those standards, 
that should be the decision for the States, but we ought to establish a 
minimum standard. That is what this legislation, before the Senate 
tomorrow, will do.
  This legislation basically incorporates the protections which are 
already in effect in the Medicare and Medicaid protections. Many of the 
protections included in this bill have been recommended by insurance 
commissioners who are not Democrats or Republicans. Actually, if you 
looked, there are probably more Republicans than Democrats among this 
group. A few protections included in the bill are the result of the 
unanimous bipartisan commission, set up 3 years ago, that made a series 
of recommendations. The protections included here reflect a unanimous 
vote by the commission.
  I will review them quickly. It is important we understand the 
introduced proposal now known as the McCain-Edwards legislation. I am a 
strong supporter. Senator Daschle is a strong supporter, as well as 
others. Over the weekend, more than 44 State medical societies wrote 
their Senators indicating their strong support for this legislation. As 
of this afternoon, more than 600 health organizations from across the 
country support the McCain-Edwards legislation.
  I would be surprised if the other side can find about 15 supportive 
organizations. Virtually the entire medical community--not only the 
professional doctors, nurses, consumers, but the advocates--understand 
the importance of this legislation and support it, along with the 
senior organizations. The disability community understands this 
legislation. This bill provides care for children and others that have 
special needs as a result of their condition. Virtually every health 
organization supports it. This bill has bipartisan support.
  Sixty-three Republicans effectively supported this legislation in the 
House of Representatives, and it has bipartisan support in the Senate. 
I daresay if one asks Republicans or Independents across the country--
whether in the upper parts of the State of Maine, southern Florida, 
California, or the State of Washington--this bill has common interest 
and common concern across the Nation. So many of the issues we deal 
with in the Senate have support only in one region of the country among 
one particular group, and they usually face strong opposition in other 
parts of the country.

  The principal opposition--the singular opposition--is the insurance 
companies and the HMOs. If one looks at the breadth of support on our 
side, it is not just the bipartisan membership bringing this and 
supporting this, Republicans and Democrats alike. Dr. Norwood in the 
House of Representatives, Congressman Ganske, and others in the House 
of Representatives--along with Congressman Dingell support the bill. In 
the Senate, we have Senator McCain and others, including Senator 
Specter, who is on the floor at this time, and other Members who 
support this concept.
  It is understandable because this bill has compelling reason for 
protections. They are commonsense protections. First, we want to 
protect all patients. That is very fundamental and important. We don't 
want legislation that alleges coverage for all, but creates sufficient 
loopholes so large numbers of our American families will not be 
covered. President Bush has recognized this principle. He wants to make 
sure all families and all patients will be covered.
  We talk about access to specialists. It includes out-of-network 
service. I can remember in my own family situation, my son Teddy was 12 
years old,

[[Page S6380]]

and he had a particular type of cancer--Osteosarcoma. About 1,500 
children have this kind of cancer every year. It took a child pediatric 
oncologist who could understand his real needs and was able to make the 
recommendations for treatment of that particular need. We want to make 
sure if other families have either children or loved ones who need the 
kind of specialty care that is outside of the network, then they will 
be able to access the best of the speciality's trained medical 
professional. We want to make sure it is guaranteed. In too many 
instances today, it is not guaranteed.
  We want to make assure care coordination and standing referrals. This 
is especially important for individuals who have a disability, so they 
don't have to go back every single time to their primary care physician 
for a referral. We need care coordination and protections particularly 
because some patients have complicated, involved health care needs or 
disabilities. This is enormously important. It is a feature the 
disability community cares so much about. It makes sense and provides 
savings for resources.
  Next, this bill protects coverage for clinical trials. A lot of 
Members say they support clinical trials. We voted on this issue in the 
Senate not along ago. We did not guarantee access to clinical trials. 
There is a decline in the number of clinical trials at the present 
time--at a time when we are supporting dramatic increases in the NIH 
budget, and at the time of the century that we will see the greatest 
progress in the life sciences that we have ever seen.
  As the previous century was the age of engineering, chemistry, and 
physics, this is the century of the life sciences. When we pick up a 
newspaper each day, we find that new breakthroughs are taking place. 
The only way we can get the breakthroughs from the laboratory to the 
bedside is through clinical trials. We have to make sure we encourage 
clinical trials. We are seeing a decline in the number of clinical 
trials because the industry will not continue to support these 
programs.
  We will have a chance to get into this in greater detail. Obviously, 
when we debate clinical trials, the additional kinds of health care 
costs that are entailed should be covered by the clinical trials. But 
there should be basic coverage for that individual who has a health 
care need that should be continued by the insurance company.
  It is always amazing to me why insurance companies or HMOs will not 
support it. If the person gets better as a result of the clinical 
trials, it is going to save the health plan resources, and it is not 
going to put them at greater risk.
  Next, coverage for emergency care. In too many instances, if patients 
go to another emergency room or another emergency care facility or 
hospital, the HMO will not cover it. That makes absolutely no sense.
  Direct access to OB/GYN providers and pediatricians is enormously 
important. It is an issue that is of primary concern to women, so they 
can have the OB/GYN as their primary care doctors. Certainly for 
primary care physicians, the need for pediatricians for children ought 
to be very clear and supported.
  The PRESIDING OFFICER. The Chair wishes to advise the distinguished 
Senator from Massachusetts that the standing order of the day is 
limiting Senators to 10 minutes during this period of morning business.
  Mr. KENNEDY. Mr. President, I see my friend from Pennsylvania. Could 
I go for 10 more minutes? I ask unanimous consent for 10 more minutes.
  The PRESIDING OFFICER. Hearing no objection, it is so ordered.
  Mr. KENNEDY. We want to make sure the patients receive the 
prescription drugs that their doctors prescribe. This is not always the 
case. It is difficult to believe, but it is not the case in too many 
HMOs.
  The list goes on. This bill prohibits clauses which frequently gag 
medical professionals and doctors from recommending what is best for 
patients. This bill also prohibits financial incentives to deny care.
  It is difficult for most of us to believe what exists in many HMO 
contracts at this time. Many have major financial incentives for 
doctors--if they do not prescribe certain care, doctors can enhance 
their financial situation. Any legislation ought to have that 
particular protection, as well as protections for the providers who 
advocate for patients.
  We want to make sure we have a good internal appeals process 
conducted in a timely way. So if there is a question of getting the 
treatment, it is done in a timely way. We also need a timely 
independent external appeals process.
  There are those who think if the HMO makes a recommendation on 
appeal, then that is good enough. Recommendations should be 
independent. In States with the external appeals process, it is done 
independently. We should do no less. We will have a chance to debate 
that. Surprisingly, it is debatable, but the protection makes a good 
deal of sense.
  Health plans should be held accountable in Federal court when 
contract disputes result in injury or death. Plans should be held 
accountable in State courts when a disputed medical judgment results in 
injury or death. The judicial conference has made these 
recommendations, and it is, by and large, the situation we have in the 
State of Texas at the present time. Since 1997, we have seen only a 
handful of suits take place.

  If the Chair will let me know when I have 1 minute left, please?
  Let's take a look here, once again, why it is so important to pass 
this bill. I will do this very quickly. Every day we fail to act, this 
is what it means in terms of American patients being hurt. The number 
of patients affected every day from health care abuse--from delay in 
needed care--is 35,000; from delay in specialty care, the number of 
patients affected every day is 35,000; and from HMOs forcing patients 
to change doctors, 31,000 patients are affected each day. As a result 
of that, 59,000 patients every day have added pain and suffering, and 
41,000 patients every day experience worsened conditions. That is 
happening every single day. That is why we believe it is so important 
to provide protections.
  Doctors know that congressional delay means patient suffering. That 
was the result from a study by the Kaiser Family Foundation. It 
illustrates that 14,000 doctors each day see patients suffering from 
serious decline in their health because of abuses by health plans. It 
happens from health plans denying coverage of physician recommended 
prescription drugs.
  Each day, 14,000 doctors prescribe prescription drugs, and patients 
do not receive these necessary drugs.
  There are 10,000 doctors every day recommending various diagnostic 
tests so they can analyze the health care needs of their patients, but 
patients are denied coverage for these tests. And there are 7,000 
doctors who are recommending specialty care for their patients. They 
have made the decision and have found it necessary, but the specialty 
care is being denied. There are 6,000 doctors who say patients ought to 
stay overnight in the hospital, but it is being denied. And there are 
6,000 doctors who see their referral for mental health or substance 
abuse treatment denied--every single day, that is happening.
  This is why we need to address this situation across this country--
north, south, east, and west. We ought to establish a basic floor of 
protections. We ought to have accountability, because when we have 
accountability, HMOs do the correct thing.
  If we look at what has happened, we just finished 8 weeks on the 
floor of the Senate where rarely a speech was made about education when 
we did not hear about accountability. Remember that? We are going to 
have accountability for children, third grade through eighth, for 
taking tests. We are going to have accountability for schools. If they 
don't shape up, they will be restructured and reorganized. 
Accountability on the parents, accountability on the States--
accountability, accountability, accountability.
  This is all we are saying--when we have accountability, which means 
when a decision is made by an HMO that overrides a doctor's decision, 
and that decision results in harm, death, or injury to a patient, the 
HMO should be held responsible for its decision.
  When we include this protection in HMOs, we find the number of 
harmful decisions falls. If you look at the State of Texas where they 
have had this protection in effect for 3\1/2\ years, they

[[Page S6381]]

have had about a dozen cases. If you look at the State of California--
which has a very tough protection not dissimilar from what we are 
talking about, but also has accountability--they have no cases to date. 
None, zero. This has been a surprise to the industry and to other 
health observers in California. There have been 200 appeals out there. 
Mr. President, 65 percent of those appeals have been decided in favor 
of the HMO, but they still have not had those cases brought to court. 
But what you do have is guarantees to patients, such as the ones we 
have outlined here in this particular list. That has been true.
  Finally, we have about 50 million Americans through their own 
contract--State and county workers--who have the opportunity to sue the 
HMOs under that particular contract.
  We don't find the kind of abuses the naysayers will talk about in 
terms of this legislation, and we find their premiums are very much 
along the lines of the others.
  We are looking forward to this debate tomorrow. I welcome the 
opportunity to finally bring this bill up. I am grateful to the 
leadership of Senator Daschle who has urged us to move on this in a 
timely way. In the past, we haven't been able to bring this up in the 
way we will tomorrow--as a free and open debate. We have had to bring 
it up in other circumstances, at other times, using the rules of the 
Senate to insist that the Senate address it. Now we will have the 
chance for a free and open debate. We want progress on this 
legislation. It is necessary.
  In the last week, we were able to work out--with the administration 
and others--a very solid result for education reform. I am still not 
satisfied it will benefit all the children it should because although 
the authorization will ensure that all children will benefit, we are 
going to have to make an issue on those questions. I wish we had that 
same opportunity on health care as well because this protection is of 
such enormous importance to families across the Nation.
  I look forward to the debate. I hope we can get to this bill in a 
timely way. We had a full opportunity to examine and look at the 
various provisions. We already debated and acted on most of these 
provisions 2\1/2\ years ago. This is a substantive matter with which 
Members should be familiar. The need is paramount.
  I look forward to working with our colleagues on all sides of the 
aisle. I look forward to, hopefully, working with the administration so 
we can enact legislation that will make sure that when doctors make a 
decision with a family, it will be a decision that will stand. Doctors 
need that kind of protection. Health professionals need that 
protection. Importantly, patients need that protection.
  That is what this legislation is really all about. We look forward to 
working with our colleagues to make sure we get the job done.
  I yield the floor.
  The PRESIDING OFFICER. The Chair recognizes the Senator from North 
Carolina.
  Mr. HELMS. Mr. President, I ask unanimous consent that it be in order 
for me to deliver my remarks at my seat.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HELMS. I thank the Chair.

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