[Congressional Record Volume 147, Number 86 (Wednesday, June 20, 2001)]
[Senate]
[Pages S6463-S6507]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
BIPARTISAN PATIENT PROTECTION ACT--MOTION TO PROCEED
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will now resume consideration of the motion to proceed to S.
1052, which the clerk will report.
The assistant legislative clerk read as follows:
A motion to proceed to the bill (S. 1052) to amend the
Public Health Service Act and the Employee Retirement Income
Security Act of 1974 to protect consumers in managed care
plans and other health coverage.
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senator from Massachusetts is recognized.
[[Page S6464]]
Mr. KENNEDY. Madam President, I just want to say at the outset of
this debate that this is not a new legislative proposal. We have had
very extensive debates on the provisions which are included in the
Patients' Bill of Rights. We have had good debates on the provisions
when we passed the Frist bill about 2 years ago. And we had additional
kinds of debates when we took up the Norwood-Dingell bill a little over
a year ago. These matters have been before the Senate. They are matters
that have been discussed repeatedly in this Chamber by a number of us
over a very considerable period of time.
We want to point out at the outset of this debate, that the kinds of
alterations, adjustments and changes that were made over the weekend
were basically technical in nature. I went through those yesterday with
the Senator from North Carolina. Maybe later in the day, if it is
necessary, I might go through them again. But again, they were
basically clarifications in response to questions that were raised
about different language interpretations of the bill. These were issues
that have been raised by the White House, and those who were opposed to
the legislation. I think the most recent changes help clarify the
language in our bill.
As we have said all along, we are always interested in hearing ideas,
suggestions and recommendations, as long as they are consistent with
the fundamental purpose of the legislation. Our purpose is protecting
patients, and also assuring accountability by HMOs and insurance
companies that are making medical decisions and, too often, overruling
doctors, nurses, and trained personnel.
So I know there are some concerns. But the way to deal with those
kinds of concerns is to engage in debate on these issues. I think if
you look at the Frist bill, you will find that it tracks, at least in
titles, the Norwood-Dingell and the McCain-Edwards legislation.
However, the Frist bill creates numerous loopholes, which I think fails
to respond either to the President's desire to make sure that all
Americans are covered. We will have a chance during the day to point
out some of those differences between their bill and ours.
We are facing a situation where there are many of us, a majority in
the Senate, who are in strong support of the McCain-Edwards
legislation. On the other side there are those who don't want any
legislation and a small group who prefer the Frist-Jeffords-Breaux
provision. We will work our way through it. That is the way the Senate
functions. We welcome the opportunity.
I note the presence of my friend and colleague, Senator Edwards. He
and I plan to be here the whole day. We are in the Chamber ready to
deal with either amendments or to try to clarify provisions for those
Members who fail to understand them. We are also here to point out, in
the case of Breaux-Frist, how we think the McCain-Edwards bill provides
better protections for American families. We are glad to do that as
well.
That is the framework. We are starting out on day 2. We are glad this
bill is before the Senate, even though we will wait until tomorrow for
the first amendments. I am heartened by the strong resolution of our
leader, Senator Daschle, in committing us to the conclusion of this
legislation prior to the Fourth of July recess.
Americans have waited too long. They have waited over 5 years for a
strong, enforceable Patients' Bill of Rights. This issue has been
studied and studied to death. It is time for action. The Senate's
failure to take action results in too many of our citizens--too many
children, too many women, too many seniors, too many families--being
harmed today and experiencing additional kinds of pain and suffering.
It is within that framework that we will hopefully move ahead today.
It is time to pass the Patient Protection Act. Every doctor knows it.
Every nurse knows it. Every patient knows it. The American people know
it. And in their heart, every Senator knows it, too. Often today
managed care is mismanaged care. It is long past time for Congress to
act to end the abuses by the HMOs. Too often insurance company
accountants are making the medical decisions instead of doctors and
patients. It is long past time for Congress to assure that the medical
care is based on a patient's vital signs, not an insurance company's
bottom line.
The first proposal to do so was introduced in early 1997. We are now
in the fifth year of consideration of this essential reform. Patients
are still suffering, even dying, because of our inaction. Every day the
Congress fails to act, an intolerable additional cost is imposed on
patients and their families.
A survey by the School of Public Health at the University of
California found that each and every day, 50,000 patients go through
added pain and suffering because of the actions of their health plan,
35,000 patients have needed care that is delayed or denied, 35,000
patients have a referral delayed or denied, 31,000 patients are forced
to change doctors, and 18,000 patients are forced to change
medications. A survey of physicians by the Kaiser Family Foundation and
the Harvard School of Public Health found similar results. Every day,
tens of thousands of patients suffer serious declines in their health
as a result of the action or inaction of their health plan.
Whether the issue is diagnostic tests, specialty care, emergency room
care, access to clinical trials, availability of needed drugs,
protection of doctors who give patients their best advice, or women's
ability to obtain gynecological services, too often HMOs and managed
care plans put profits ahead of patients.
The issue is clear: Does the Senate stand with powerful HMOs or with
American families? Do we stand for protecting patients and their
doctors or protecting insurance company profits?
There is only one reason this legislation did not pass years ago. It
is because of the tens of millions of dollars the insurance companies
and their allies have lavished on lobbying, campaign contributions, and
misleading advertising. Now is the time to say that the health of every
American family is a public trust, not a commodity for sale to the
highest bidder.
The need for prompt action on patient protections is great because
the dishonor roll of those victimized by HMO abuses is so long and
growing.
A baby loses his hands and feet after a medical emergency because his
parents believe they have to take him to a distant hospital emergency
room covered by their HMO rather than the hospital closest to their
home.
A Senate aide suffers a devastating stroke which might have been far
milder if her HMO had not refused to send her to an emergency room.
Even now, the HMO refuses to pay for her wheelchair.
A woman is forced to undergo a mastectomy as an outpatient instead of
with a hospital stay as her doctor recommended. She is sent home in
pain with tubes still dangling from her body.
A doctor is denied future referrals of patients by an HMO under a
managed care plan because he has told a patient about an expensive
treatment that could save her life.
The parents of a child suffering from cancer are told that lifesaving
surgery should be performed by an unqualified doctor who happens to be
on the plan's list, rather than by a specialist at the local cancer
center equipped to perform the operation.
A woman with advanced cervical cancer is denied the opportunity to
participate in a clinical trial that could save or prolong her life.
A child with cystic fibrosis is denied the opportunity for treatment
at a center with the expertise to treat the disease.
A teenager with a seriously injured hand is told by his insurance
company that they will pay for an amputation, but not the more
expensive reconstructive surgery that could provide a normal life.
A woman with a relatively minor leg injury ends up losing her leg
because her insurance company persistently delays and denies adequate
care.
Our legislation corrects all of these problems and many more. It
takes HMOs and insurance company accountants out of the practice of
medicine and returns decision making to patients and doctors where it
belongs. Our proposal guarantees patients the rights that every
honorable insurance company already grants, and it provides an
effective and timely means to enforce these rights. These protections
are basic aspects of good health care
[[Page S6465]]
that every family believes they were promised when they purchased
health insurance and paid their premiums.
Virtually all of the patient protections in this legislation are
already available under Medicare. They have been recommended by the
National Association of Insurance Commissioners and the President's
Advisory Commission. They have also been proposed as voluntary
standards by the managed care industry itself through its trade
association. In fact, most of them are features of the patient
protection legislation enacted under Governor George Bush in Texas.
Patients should have the right to see a specialist, if they have a
condition serious enough to require specialty care.
No parent should be told that their child with cancer has to be
treated by an HMO physician who lacks the expertise needed to treat the
child effectively.
Patients should have the right to the prescription medicine their
doctor says they need. They should not be told that they have to settle
for the second best medication for their condition or suffer
unnecessary side effects or pay more because the most up-to-date drug
is not accepted by the HMO.
Patients should have the right to go to the nearest hospital when
they have symptoms of serious illness.
They should have the right to continuing emergency care after their
condition is initially stabilized. Medicare patients have these rights,
and other Americans should have them, too.
Patients should have the right to participate in a clinical trial if
it offers the best hope for a cure or improvement of a serious or fatal
illness.
Mr. EDWARDS. Will the Senator yield for a question?
Mr. KENNEDY. I am glad to yield for a question.
Mr. EDWARDS. Would the Senator talk briefly about the number of
Americans who are being affected by us not having already passed this
legislation, and whatever delay may occur in the debate of this bill?
I know the Senator has been involved in this issue for many years
now. He has heard all of the HMO horror stories, about what HMOs have
done to people around the country. But some of the Americans listening
to this debate may not be aware, as the Senator is, of how many people
are affected on a daily basis, on a weekly basis, on an annual basis.
As we go forward with the debate on this bill, could the Senator talk
about that issue first, and then I have a couple of other questions I
would love to ask.
Mr. KENNEDY. The Senator is quite right about the fact that every day
we delay this legislation, thousands of Americans suffer.
The California study says that 50,000 Americans a day are suffering
as a result of delay or treatment. They would not be suffering if this
legislation were passed. And 35,000 families are being turned down by
HMOs today for specialty care that they otherwise would have for their
children, their parents or another loved one.
Close to 20,000 are taking alternative medicines and not taking the
prescription drugs that their doctor says are needed but are not on the
formulary of the HMO. The HMO only allows patients to take these
alternative drugs. In many instances, patients take their alternative
drugs and have two or three adverse reactions before they will come
back to the drug that is actually prescribed by the doctors.
So every day that goes on, American families are suffering.
I might mention to the Senator the point made on this chart. This is
from the Kaiser Family Foundation and the School of Public Health up at
Harvard, July 1999. Doctors know that congressional delays mean patient
suffering. This chart indicates the number of doctors each day seeing
patients with a serious decline in health from plan abuse. These 14,000
cases represent the number of doctors who every day see denied coverage
of recommended prescription drugs.
So 14,000 doctors have said they prescribed prescription drugs and
they were denied, 10,000 doctors were denied the diagnostic tests that
they believe were necessary in order to make an effective evaluation,
7,000 doctors claim they were denied the opportunity for specialty
care, and 6,000 were denied overnight hospital stays. And 6,000 were
denied referrals for mental health or substance abuse. The list goes
on.
Those are two very important studies that make a very powerful case
regarding how American patients are suffering. An additional study from
the doctor's point of view came to a virtually identical conclusion--
that patients are suffering every day as a result of HMO abuses.
Mr. EDWARDS. This information is so important to this discussion. Is
the Senator saying that as of the time of this study in 1999, 14,000
doctors a day are being overruled by HMOs when they recommend
prescription drugs? In other words, a patient comes into the doctor,
who has training, experience, and expertise, and the doctor recommends
that a patient needs prescription medication, and 14,000 doctors a day
are being overruled by the HMO? Is that what the Senator's
understanding is?
Mr. KENNEDY. The Senator is absolutely correct. That is what is
happening regarding prescription drugs, and that includes the tests
that are necessary and the specialists that are necessary.
The point I want to mention here, as the Senator was inquiring, is
the importance of patients' rights to participate in a clinical trial.
I think this is one of the most important guarantees that should be a
part of this legislation. Unfortunately, we had a full debate on this 2
years ago in the Senate, and the Senate rejected ensuring patients
access to clinical trials.
What we agreed to was a 2-year study of whether clinical trials are
effective. That was under the Frist bill that eventually passed this
body.
I am wondering whether the Senator would agree with me that we are in
the time of doubling appropriations for the NIH budget. We are in the
century of the life sciences. We can't pick up a newspaper any single
day and not see medical breakthroughs. It is one of the most exciting
times in medical history, with the progress that has been made on the
human genome, the sequencing of genes and the explosion of different
knowledge that is out there. We are going to see the development of all
of this knowledge now in the laboratories.
I ask whether the Senator would not agree with me that in order to
get it from the laboratories to the bedside, it has to be tested. It
has to have clinical trials. This is a time of enormous potential for
reducing the kinds of pain and anxiety that disease and illness bring.
We can even reduce the demand on resources over a period of time. We
know, for example, that if we were to develop some kind of cure for
Alzheimer's, half the nursing home beds in Massachusetts would be empty
this afternoon. Half of them would be empty. And there is important
progress. But it isn't going to get out there unless we have the
clinical trials.
Finally, as the Senator understands, insurance companies have over a
period of time continued--when a patient needed the clinical trial--the
ordinary expenses that were attendant to it. The clinical trial would
pick up the additional kinds of expenses. They didn't go to great
additional expenses. But even that kind of responsibility is being
rejected now by the HMOs. The number of clinical trials is going down
and threatening not only the well-being and security of the people who
are in those HMOs, but the well-being of the rest of the people in our
society.
Mr. EDWARDS. Would the Senator address two questions, please.
First, the fact that the HMOs are denying and not covering patients
needing and having access to clinical trials--would he first talk a
little about, from his experience and from talking to constituents,
what impact that has on the country moving forward in the field of
medicine for all of the American people, so we can continue to be the
world leader that we have been in the past in advancing medicine in the
areas such as Alzheimer's?
Second, would the Senator talk briefly about the difference between
the McCain-Edwards-Kennedy bill on access to clinical trials and the
competing Frist bill?
Mr. KENNEDY. Well, I will. This is enormously important. Let's look
at what clinical trials have meant in recent times. We have made the
greatest progress in addressing the challenges that children face with
cancer.
Listen to this. We have 70 percent of children with cancer treated
through
[[Page S6466]]
clinical trials. This is the area where we have seen dramatic progress
made. In the last 10 years, it has been miraculous. There is still a
long way to go, but regarding children's cancer, we have made
progress. Yet less than 3 percent of adults with cancer are enrolled in
clinical trials. We have made some progress in the area of the adult
cancers, but that number is in danger of decline.
Until recently, the health insurance companies routinely paid for the
doctor and hospital costs associated with a clinical trial. In 1998,
the CBO found that approximately 90 percent of health insurance
companies reimbursed for their patient costs, but HMOs are quickly
reversing that lifesaving policy. Many of the HMOs are refusing to
allow their patients to participate, leaving them with few
alternatives.
I want to give the Senator from North Carolina, Mr. Edwards, a quick
anecdote. One of the important cancer centers is the Lombardi Center,
named after one of the great football coaches, Vince Lombardi. Most
people in the Washington area are familiar with that center.
Our committee had a hearing at which the director of that center was
present. He told us they had to hire more and more people to deal with
the insurance companies to persuade the insurance companies to let
women who had breast cancer and other cancers participate in these
lifesaving trials.
That was their big new expense; not trying to treat more people, not
expanding the facility, not bringing the benefits of their research and
breakthroughs to other people, but to hire more people to tangle with
the insurance companies. They had to do this because, for the most
part, women were being turned down, even though the possibilities for
their recovery were significant.
As the Senator knows, under his bill, the McCain-Edwards bill, they
still have to meet certain requirements. There has to be the likelihood
of progress within the clinical trials. There are protocols that have
been established by the FDA and NIH. They have to qualify in these
areas. There are requirements that have to be met.
We must protect vulnerable populations with these diseases, people
who have the hope of being freed of the shackles of sickness. These
protections are included in the Edwards-McCain bill. The Frist bill
leaves the door ajar but not very much ajar. It allows HMOs to continue
to resist applications for clinical trials, resistance that can last as
long as 7 or 8 years.
As all of us understand, these are timely occasions. Individuals have
to be enrolled in these clinical trials in a timely way to benefit.
When laying these two proposals side by side, one would have to say
that under our proposal the guarantee is there, as it has been
historically. And on the other side one would say that there are
significant roadblocks and hazards that are being placed in the way of
qualified patients to participate in the trials.
Madam President, I believe I have consumed most of my time.
The ACTING PRESIDENT pro tempore. The Senator from Massachusetts is
correct. The Senator has 2 minutes remaining.
Mr. KENNEDY. Madam President, I look forward to continuing this
discussion during the course of the day. It is important during this
day to point out exactly what is before the Senate.
There are those who favor no HMO bill, and there are those who favor
an alternative. It is important Members understand exactly the
protections that are in the Edwards and McCain legislation, which I
think are the types of protections that are in the best interest of the
patient and are the result of a great deal of review. These protections
have the very strong support of the medical profession.
We will have that opportunity later in the day. I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Tennessee.
Mr. FRIST. Madam President, we are alternating approximately every 30
minutes. It is an opportune time because we have present two of the
principals of the bill that we will be debating over the next several
weeks. They just addressed many of the points in their plan.
There have been two bipartisan--ours is tripartisan--Patients' Bill
of Rights bills introduced in the Senate, and I think it will be useful
to contrast the two bills as we go forward to educate our colleagues
but also to educate people who may be watching this debate so they may
understand what we are all trying to accomplish, and that is to produce
a strong, enforceable Patients' Bill of Rights that will benefit
patients by strengthening the doctor-patient relationship, restoring
trust to our health care system and making sure patients really are
protected. In many ways, the whole swing has gone too far towards
managed care. That pendulum has to swing back. How far it should swing
back is a balancing act.
Both of these bills attempt to do that and I, of course, believe the
Frist-Breaux-Jeffords bill does it in a much more balanced way, in a
way that ensures that patient protections are appropriate and ensures a
strong appeals process and legal remedies if the appeals process is
unsatisfactory.
I begin by outlining what our bill attempts to achieve. It goes back
to the principles that the President of the United States, President
Bush, introduced several months ago. I applaud his leadership and
commitment to a strong, enforceable Patients' Bill of Rights.
The principles he outlined were, No. 1, patient protections should
apply to all Americans. That is important because, if we have certain
rights, we want them to apply broadly. However, the breakdown in the
discussion is: Is it the Federal Government that specifically defines
the wording that applies to all Americans or do we respect what
Governors and State legislatures have already been doing to address
issues such as prohibiting gag clauses, ensuring access to specialists
and access to emergency room care, and ensuring access to something my
colleagues were just talking about--clinical trials.
A lot of States have not addressed clinical trials. If they have not
addressed it, what should our response be? Does the Federal Government
come in and say: You have to address it the way we say or can they
address it the way Tennessee might best address it?
The President also said patient protection should be comprehensive.
Again, there has been a lot of debate in the last 24 hours on
liability, employers, and a little bit on scope. There are patient
protections in the Frist-Breaux-Jeffords bill and in the McCain-
Edwards-Kennedy bill. The protections are similar and all the media are
saying they are exactly alike. They are not exactly alike. There are
some things in their bill not in our bill. Some areas of their bill go
further than ours. Clinical trials is an example.
Clinical trials, as we all know, are critically important, and they
are in both bills. However, the cost in their bill is higher than in
our bill because they include thousands of clinical trials that we did
not include. Again, we can debate whether that is appropriate or not as
we go forward. I will go through those lists of protections shortly.
Third, the President said patients should have a rapid medical review
process for denial of care. Both bills do that pretty well. Again, our
bill has a more efficient process. The timelines are clearly defined.
The President's fourth principle is that the review process should
ensure doctors are allowed to make medical decisions and patients
receive care in a timely manner.
The fifth principle of the President is that Federal remedies should
be expanded to hold health plans accountable. This is an issue of real
debate. We believe that, since this is a new cause of action, it should
be a Federal cause of action and should go principally through Federal
courts.
However, the bill on the other side, the McCain-Edwards-Kennedy bill,
looks at both State court and Federal court and allows patients to go
back and forth between Federal and State courts. This raises a concern
with the issue of forum shopping. Trial lawyers have an incentive to
make money with this new Patient's Bill of Rights, and there is the
fear that there will be shopping among the various courts.
The sixth principle of the President is that patient's rights
legislation should encourage employers to offer health care. We talked
about that yesterday. Everybody has to realize this bill is going to
cost hundreds of billions
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of dollars in addition to whatever will be paid for health care over
the next 10 years. These rights have a cost, a price to pay. That price
is hundreds of billions of dollars. Whoever is listening will be paying
it. It may be shared, and we may divide it by 260 million citizens, but
it will cost hundreds of billions of dollars. That is why we should not
rush through the bill too quickly without adequate debate on each and
every one of the issues. There is an urge to debate it, get it through,
and pass it in a week or a week and a half. Remember, this will drive
costs up markedly, no matter what bill passes, and the higher you drive
the cost, the higher the premiums, the higher the number of uninsured
in this country. We care about the uninsured and have to be careful
about how high we drive those costs.
Those are the six principles put forth by the President of the United
States.
Senator Breaux, Senator Jeffords, and I have put together a bill that
embodies these strong patient protections and fulfills each one of
those principles put forth by the President.
No. 1, our bill, written in a nonpartisan way, is actually a
tripartisan bill. It protects all Americans, while giving the
appropriate deference to States. If a State has already addressed gag
clauses in the way they think is appropriate, the Governor has signed
off on it, the State legislature and elected representatives have
agreed to it, we do not believe that we in the Congress need to mandate
that they say almost the exact words that we dictate, which causes them
to go back and redefine what they have done and bring back an issue
they may have addressed.
No. 2, we guarantee comprehensive patient protections. We guarantee
emergency room coverage. We guarantee in the Frist-Breaux-Jeffords bill
access to specialty care. We guarantee direct access to OB/GYNs.
Pediatricians can be the primary care physician. We prohibit a
restrictive formula for prescription drugs. We ban gag clauses. We
prohibit provider discrimination. We provide access to clinical trials
coverage, and continuity of care--if your care for some reason is
terminated and you are pregnant, or towards the end of life, these
issues, it will be continued.
Mr. KENNEDY. Will the Senator yield?
Mr. FRIST. Because I have not had the opportunity to lay out the
bill, let me lay it out. Senator Breaux is on the floor. We will have
time to debate this. I would love to do it, but this is the first time
we have had the opportunity to lay out the bill, if that is all right.
No. 3, we require health plans to provide consumers with
comprehensive information about their new rights. We provide all the
new rights, but we need to make sure the consumer, the patient,
receives them in a way that they can truly understand. That is
accomplished in the Frist-Breaux-Jeffords bill.
No. 4, we ensure a rapid independent external review. If there is
disagreement on the patient protections, you need to go both internally
and externally and have an independent, unbiased physician make that
final decision.
No. 5, doctors--not HMOs, not health plans--need to make medical
decisions.
No. 6, we hold health plans accountable through expanded Federal
liability. Both bills expand the liability to hold these HMOs
accountable. Yes, we believe if HMOs create injury or harm, in essence,
something unjust, you should be able to hold them accountable and
liable, and you should be able to sue your HMO.
No. 7, we protect employers from costly, unnecessary litigation. We
debated that yesterday and will continue to debate that. We will argue
that the bill on the opposite side opens the door to frivolous
lawsuits. Clearly, we do certain things to try to prevent unnecessary,
frivolous, costly lawsuits but at the same time hold the health plans
accountable and allow the health plans, not the employers, to be sued.
No. 8, we protect doctors from new lawsuits. The bill introduced
Thursday, the McCain-Edwards-Kennedy bill, included some improvements
from the version of the bill on the floor until that time. Clearly, as
an agent of the plan, doctors could be sued. A lot of doctors did not
realize that and will look at the new writings and the new bill they
introduced Thursday.
No. 9, we make litigation the last resort. We go to the court as the
last resort. They go to the courts much earlier, as a first resort.
No. 10, we protect the role of State courts in holding health plans
accountable for quality and treatment decisions. We do not preempt
State court. In Texas, if there is a lawsuit for a quality or treatment
issue, it can still continue. It is very specifically written in our
bill. It is for that new cause of action, a product of this
legislation, that we take to Federal court.
I will turn to the other principles shortly. What are the differences
between these two bills? What I just outlined and in the first column
of this chart is the Frist-Breaux-Jeffords bill. In the second column
is the McCain-Edwards-Kennedy bill. The first line is protections
applying to all Americans. Both bills achieve that.
Deference to State laws: We achieve it; they do not. They basically
say, here are the patient protections. You have to have these on the
books or pass them essentially the way we wrote them.
Support State regulation of health insurance: Again, we defer to this
60-year history of health insurance primarily being the State's
responsibility in terms of actual coverage.
Comprehensive protections such as emergency room specialists and
clinical trials: There is a check in both columns. Both do it well.
Independent medical review: Both do it well.
Independent medical experts making medical decisions: Both do it
pretty well.
Avoid slow and costly litigation. We address it. They do not.
Holds health plan accountable in Federal court: Yes, we go to Federal
court. They go to Federal court for some contract issues but
principally allow people to go to State court.
Protect employers from unnecessary, costly law lawsuits: We will have
time to debate that, but we do that; they do not.
Reasonable limits on damages: We talked about that yesterday. They do
not have those limits.
President Bush said he will pass our bill as written into law, and he
will not pass their bill as written into law.
With that, I defer to the Senator from Louisiana to comment. Both
Senator Breaux and Senator Jeffords are present. I would love to hear
from them over the next 15 minutes.
Mr. BREAUX. Madam President, I thank the distinguished Senator from
Tennessee for his opening comments outlining what is the essence of the
Frist-Breaux-Jeffords bill. I point out the obvious; it is the only
tripartisan bill that has been introduced in this Chamber dealing with
this issue. We have had bipartisan bills introduced, and I congratulate
the author, but there is only one bill that has the support of
independents, Democrats, and Republicans, as well, and that, of course,
is the Frist-Breaux-Jeffords legislation.
I have come to respect all Members engaged in this debate because I
think we all have the same goals, and in many cases we all have
approached the solution to the problem in a very similar fashion--not
identical but very close to being almost the same approach.
I was struck yesterday by a number of our colleagues who were talking
about the Senator from New York, the senior Senator, Mr. Schumer, and I
think the junior Senator from New York was engaged in talking about
individual patients, children who have suffered damages because of
denial of access to care that is medically necessary.
I thought the points they made were well taken. I don't have any
disagreement with the points made. I have no disagreement that these
cases should have someplace they can go to ensure the coverage for
these individuals, children, elderly, and average citizens, which is
needed and determined to be medically necessary. We have come a long
way. I think this Congress in general is in agreement that patients
should have federally guaranteed rights that are enforceable through a
process of internal and external appeals, to get a quick decision that
is good for the patient and good for society. If those appeals
processes do not work, there should be access to the
[[Page S6468]]
courts to enforce these rights that all Americans should have under
their health care plans. Indeed, if damage is done, there should be an
opportunity for patients to recover damages.
We basically agreed on the rights the Federal Government should
guarantee. Senator Frist went over those rights. They are very similar
in both plans. I think theirs probably covers a few more protections
for what I would term the providers as opposed to protections for
patients, which is what we essentially are talking about. But given
that, we are very similar in the things we say should be guaranteed to
Americans when they have health insurance. OB/GYN access for patients
is guaranteed. Access to specialists is there. Breast cancer treatment
plans must be covered. Clinical trials are available. There is
continuity of care and emergency room access. There are no gag rules.
There are point-of-service provisions. These are things we have in
common in both plans.
Congress has agreed there should be certain patients' rights on which
they can depend, that are enforceable, and if they are not provided,
damages can be provided to compensate the injured parties. We both
agree that one methodology of handling the enforcement of these rights
is through an appeals process, through an internal and external appeals
process.
One of the few things, interestingly, that works in the Medicare
Program is, when a Medicare patient, a senior, is denied care, there is
an internal and external appeals process that occurs very quickly. What
we try to do is not give patients access to courts but access to health
care. The fastest and best way to do it is through an appeals process
internally, as we provide in this legislation, which requires the
company that denies the care to review that decision. They have to do
it in a very short timeframe, a matter of hours. If the patient still
is denied care, there should be some kind of access to an external
panel of independent professionals, medical professionals who will take
care of looking at it independently of what the HMO did.
We have both agreed the external appeal should be independent. The
question is, How do you do that? Both of them I think require--ours
does--that HMOs are responsible for entering into a contract with
independent professionals who are in fact going to look at these cases
and handle the external appeals.
I do not know, if you require the HMO to enter into a contract, how
they are not going to be involved in helping to select the independent
reviewers. That is something I think that has to be done. If they are
going to enter into a contract to pay for the people who are going to
do the independent review, how can they not be involved in the
selection? We can talk about that. I think we both agree the external
review panel should be totally independent of the HMO. I think both
sides say the HMO has to pay for them. Then how do you guarantee their
independence?
We can work on that, but I think we are both in agreement that the
external review people should have no connection to the HMO, although
we both require the HMO pay for them. How we handle that I think is
open, but I think we both agree they should be totally independent of
the HMO, as much as humanly practicable that we can devise a plan that
will in fact do that.
Another problem you will hear a lot of talk about, that I think will
be subject to amendments, is both sides say we don't want the employer
to be sued if the employer is not involved in medical decisionmaking.
We agree with that. I think this side and the other side agree with
that premise as well.
The problem with the approach of the other side, in the sense of how
they protect employers, is finding an area that would be protected
activities by the employer which would not cause them to be liable for
any decisions. The concern many employers have is that doesn't prevent
litigation against employers, where they would have to come in and
prove they have not done anything that is wrong. I think employers were
legitimately concerned about being sued for things and then they would
have to come in and show they were not guilty.
Our approach is a little different. I think it is a better approach.
It says employers can select a designated decisionmaker who will make
the medical decisions, and if they do that, the employer cannot be
sued. They don't have to come into court and defend themselves for
something they never did in the first place because the designated
decisionmaker, which in most cases would be the insurance company, is
the entity which should be sued for making the wrong decision. I think
our approach in that area is a better approach.
The final point: We both have a convoluted system with regard to
where you file suit. In their bill you can file for some things in
Federal court and some things in State court. And guess what. In ours
you can sue for some things in State court and some in Federal court.
We are amending ERISA. It is a Federal statute creating Federal rights.
Anytime you litigate under existing ERISA rules, you litigate in
Federal court. Therefore, if you expand rights under ERISA by amending
it to include a designated set of Federal rights, the proper forum is
the Federal court, not 50 different State forums.
I know my good friend from North Carolina suggested lawyers may have
a problem finding a Federal court. That is a slight exaggeration. But
there is no lawyer I know of who has any difficulty getting into
Federal court. They do it on a regular basis very successfully, and I
am glad they do.
So we have suggested if you are going to file litigation after the
appeals process to enforce Federal rights that are passed by the
Congress and signed into law by the President, it should be in Federal
court. If you are going to sue on the existing State medical
malpractice laws, the proper forum for that to be litigated is in the
State courts. That is where it traditionally has been. It is a right
that exists today in State court. If you are going to sue a company for
medical malpractice, a doctor or hospital for medical malpractice, you
will continue to do it in State courts as is the current situation.
I want to make sure we get something that can become law. If we enact
a bill the President will not sign, we have not given the patients in
this country one single benefit. We have given them perhaps a good
political argument, but we have not created any legal rights for them
to enforce when they need medical help and assurances their rights will
be protected. Therefore, what I am trying to do in offering this, along
with my two colleagues, is to try to create something that can actually
become law.
I tell you, I would not lose sleep if the Kennedy-McCain-Edwards bill
passed. My concern is not that. My concern is that it cannot become
law. Therefore, as legislators, we want to enact something that can
actually become law. We have offered a compromise which I think, No. 1,
even from their perspective, could give at least 95 percent of what
their legislation does in terms of protecting patients. But it gives
100 percent more of what theirs would do if theirs cannot be signed
into law. That is just a bottom line as far as being pragmatic and as
practical as I possibly can be, to say look, this is something that can
become law. I think it can pass, and I think it will be signed into law
if it reaches the President's desk. The opposite is true for their
version which the President has said time and time again he will not
sign.
We can argue whether that is a good decision on his part or not. I am
sure they think it is the right decision; others would disagree with it
strongly. I think we have offered something that can become law that
does address the concerns that have been articulated in the Senate and
in the other body for a long period of time. It is time to reach an
agreement that can actually become the law of this land.
I yield any time I may have remaining.
Mr. FRIST. Madam President, I understand we have 7 minutes on our
side.
The PRESIDING OFFICER. The Senator is correct.
Mr. FRIST. I yield to the Senator from Vermont.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. JEFFORDS. Madam President, I join my colleagues in explaining and
hopefully alleviating the concerns of Members with respect to the
question of malpractice and lawsuits.
[[Page S6469]]
I am probably the only one who was here back when ERISA was written.
ERISA was dealing, not with these kind of parties but with pensions.
But it was realized that employers need a common place to go to make
sure, when they have their pension plan, there is just one jurisdiction
that can take care of the complications and legal aspects. The decision
there was to make it the Federal court to have exclusive jurisdiction.
We are still involved, in this case, with employers. Again, it is a
different issue from pensions, but it is a very important one for
employers. From World War II on, because of some special provisions for
getting advantages to businesses being able to provide health insurance
which would be nontaxable, it has been quite advantageous for employers
to provide health care. We do not want to disturb that.
In order to not disturb that, we should follow what happened in the
pension area, and that is to make sure there is uniformity of decisions
across this country when we get involved with whether or not an
employer would be found liable under the circumstances. We want to
distinguish that from the malpractice suits with which we are involved
most of the time.
I guess people get to thinking, as we talk here, that we are talking
about the malpractice situation.
The malpractice suits because of doctors performing improper care, or
nurses, or even the overall operation by not giving the proper medical
care is one situation. That goes to State courts. If one is only
talking reserving for the Federal courts as to whether or not there
really was a decisionmaker who was properly put in place, or other
operations totally outside of the delivery of health care, it is a very
small and narrow area where you are limited to Federal courts. That is
because you have to have uniformity. That is because, if an employer
has a business all across this Nation, the employer doesn't have to
worry about 50 different jurisdictions as far as where the law applies.
The same is true for pension plans. One Federal rule should apply in
those very rare situations where there is a dispute over how much
control there is and whether the business had control over the
operation of the medical side.
I want to make sure it is clear. For the ordinary case where there is
a problem of care, all of those will go to State courts. All we are
talking about is this very limited area where the jurisdiction will be
in the Federal court only.
I want to straighten that out because I think people are concerned
about not being able to go through the court in their hometown where
the doctor is practicing. That is absurd. I think it is important we
understand that.
The best way to make sure we have good care is to make sure we have a
clear idea of where these laws are going and how they are handled in
the court system.
There is really little difference in our bills, if any. I don't
understand what the arguments are with respect to the malpractice
situation, as our plan and their plan are very similar in that regard.
I yield the floor.
The PRESIDING OFFICER (Mr. Nelson of Nebraska). The Senator from
Tennessee.
Mr. FRIST. Mr. President, I thank Senator Breaux and Senator Jeffords
for their outstanding participation in putting together the Frist-
Breaux-Jeffords Bipartisan Patients' Bill of Rights of 2001. This is a
bill that we have jointly worked on aggressively over the last several
years. It is a bill that we regard as a balanced approach to this whole
issue of patient protections--making sure that patients get the care
when they need it, fixing the system itself, and making sure the
protections of the rights are there, but also making sure it is done in
a prospective way; and then, if the system fails, or if it breaks down,
providing appropriate access to legal remedies that make the patient
whole.
That is our approach. It is a balanced approach. I believe that is
why it has been endorsed by the President of the United States. It
meets the principles that he has set forth.
Many times, as it has been discussed, someone will ask: Well, did any
other provider groups or physician groups support the Frist-Breaux-
Jeffords bill? The answer is yes.
I list the following organizations so people will know that we have
listened to the consumers and to the patients as well as the
providers: American College of Surgeons; the Society of Thoracic
Surgeons; American College of Cardiology; American Society of
Anesthesiologists; American Society for Gastrointestinal Endoscopy;
American Society of Clinical Pathologists; American Academy of
Dermatology Association; American Association of Orthopaedic Surgeons;
American Association of Neurological Surgeons; American Urological
Association, Inc.; American Association Clinical Pathologists; American
College of Emergency Physicians; American Society of Cataract and
Refractive Surgery; and the American Physical Therapy Association.
I point that out only because people will say these are the groups
that support each of our bills.
I think that is very important. These are the groups to which we have
been able to explain our bill. They have endorsed our particular bill.
What is most important, however, is the policy beneath the legislation
and the rhetoric that we often hear in this chamber.
These groups have looked at our bill, and they agree that it is a
balanced bill that keeps the interests of the patient first and
foremost.
I, again, thank Senators Jeffords and Breaux for their tremendous
work and for the work of their staffs in putting together our bill as
we go forth.
I yield the floor.
The PRESIDING OFFICER. The next block of time is controlled by the
majority.
The Senator from North Carolina.
Mr. EDWARDS. Thank you, Mr. President.
Mr. President, I thank the Senator from Tennessee, and the Senators
from Louisiana and Vermont for their remarks and for their work on this
issue.
I did not hear all of the groups that the Senator from Tennessee just
read, but the majority of those groups also support our bill.
The bottom line is there is a handful of groups that support both
bills. Then there are over 600 consumer groups and medical groups,
including the American Medical Association, that support our bill.
There is a reason for that, which I will discuss in a few minutes.
From the start to the finish of these two bills that were analyzed
side by side, there are significant differences throughout the bills.
In every place there is a difference. In every single place their bill
sides with the HMOs and our bill sides with the patient and doctors.
That is the reason all of these consumer groups, all of these health
care groups, and the AMA support our bill and do not support their
bill.
It is not an accident. These are people who have been fighting for
patient protection and putting health care decisions in the hands of
doctors and patients for many years. They believe deeply in this issue.
They have looked at these two bills side by side. They understand that
there is significant and important differences that aren't abstract.
There are differences that affect the lives of thousands and thousands
of families and patients all over the country.
Mr. KENNEDY. Mr. President, will the Senator yield on that point?
Mr. EDWARDS. Yes. I will.
Mr. KENNEDY. Mr. President, we were just talking about one such
protection that I think is of concern to families all over this
country; that is, the clinical trials.
As I understand it, just to repeat, our bill has the right to
participate in clinical trials without discrimination. The patient may
not be denied the right to participate in an approved clinical trial if
they or their physician can show that they can be appropriate
participants in that trial. We have the right to coverage for routine
costs associated with clinical trials, and we have the right to
participate in all federally funded or federally approved clinical
trials.
The other side delays the immediate coverage for routine costs with
clinical trials, and the bill has a lengthy negotiated rulemaking
process to establish standards for the routine costs that may be
covered--a process that may well result in an effective date for
insurers as late as January 2007, which adds a 6-year delay.
The current Medicare benefit was carefully crafted and fully vetted
[[Page S6470]]
through the Federal rulemaking. In addition, the Institute of Medicine
has also released a comprehensive study by experts in the field
recommending Medicare coverage for routine costs.
Furthermore, managed care plans that offer the Medicare+Choice option
are already required to adhere to the current definition of routine
costs. Effectively, we have the clinical trial and the patients
protected.
In theirs, they don't even follow the Medicare system, which in terms
of cost as a result clinical trials, would be very much deferred. As I
understand, theirs does not cover the FDA-approved clinical trials. I
do not understand that either because it is in the FDA where the
pharmaceutical companies are working through these breakthrough drugs
which offer enormous kinds of promise.
So, as the Senator knows, it is important to look at the fine print
on these issues in terms of the protections. I just think we have
worked with our good friends--and they are good friends, Senator Frist
and Senator Breaux and Senator Jeffords--and we want to try to find
common ground to work on this because the differences between us are
small compared to those who do not want any bill at all. We want to try
to reduce those differences.
It is important to note that it isn't just on the issues of
liability, of which the Senator from North Carolina spoke, but that he
has concern, as do I, about the protections--whether they provide the
range of protections he thinks the patients need.
Mr. EDWARDS. I thank the Senator his questions and comments. He is
exactly right. There is a difference on the issue of clinical trials in
the two bills. I think the Senator from Tennessee suggested the same in
his remarks. But there are differences throughout the bill, starting
with the issue of coverage and how you determine whether States opt out
or do not opt out of the protections in the bill. There is a difference
in the access to specialists outside the plan. There are differences
between the two bills. There are differences, as the Senator just
pointed out, in access to clinical trials, and as the Senator from
Tennessee pointed out a few moments ago.
There are differences in the independent review process. We
specifically say that neither the HMO nor the patient can have any
control over the body that picks the reviewing panel or the reviewing
panel.
Mr. BREAUX. Will the Senator yield for a question?
Mr. EDWARDS. I will, yes.
Mr. BREAUX. I am trying to understand the differences between our two
bills on that particular point. We both say the external review panel
should be independent. I think we say that the HMO has to contract with
these external review people. I think you have been saying they have to
have a contract with an HMO to do the same thing. So what is the
difference?
Mr. EDWARDS. Reclaiming my time, the difference is, we have specific
language in our bill that says neither the HMO nor the patient can have
any relationship or any control over who is the group who picks the
reviewing panel, No. 1, or the reviewing panel itself. Their bill is
silent on that specific issue.
Mr. BREAUX. Will the Senator yield further?
Mr. EDWARDS. If I could continue, this may be an issue on which,
working together, we may be able to resolve our differences. There has
been some discussion----
Mr. BREAUX. Will the Senator yield for a question?
Mr. EDWARDS. If I could finish, then I will be happy to yield. There
was a discussion yesterday in this Senate Chamber about the issue of
employer liability. The Senator from Tennessee suggested, a few minutes
ago, he thought the intent of both bills was to protect employers from
liability. I agree with that. I know that is the intent of our bill.
And I know, from my discussions with the Senator from Tennessee, that
is the intent of his bill. We have gone about it in different ways.
We believe our bill in fact protects employers. We believe our bill
is totally consistent with the President's principles, to which the
Senator from Tennessee made reference earlier. The President, in his
principles, specifically said employers should not be subject to
lawsuits--I don't have the language in front of me, so I am
paraphrasing--unless they actively engage in making medical decisions.
That is exactly what we intend our bill to do and we believe our bill
does; that employers are protected from lawsuits unless they in fact
make medical decisions.
Having said that, this is another issue on which I think we should
continue our discussion because, particularly given the fact that both
sides want to protect employers from liability and want to protect
employers from lawsuits, if there is a better and more effective way to
do that, which is also fair to patients, we should explore that. I
think that is worthy of further discussion as we go forward.
Mr. BREAUX. Will the Senator yield for a question?
Mr. EDWARDS. Yes, I will yield.
Mr. BREAUX. Back on the point, I am glad we are having this
discussion on trying to narrow the differences.
Back to the external review panel, we both agree, if it goes to an
external review panel for a decision of whether something is medically
necessary or not, that the people making that decision on this external
review panel should be independent of the HMO. But my understanding of
the Senator's bill is that the HMO would enter into a contract with
these independent reviewers in order to have them review the decision.
My question is, Who selects with whom the HMO is going to contract?
Is it that the HMO has to enter into a contract to pay the external
review people, and they have to enter into a contract with somebody?
Who picks the somebody?
Mr. EDWARDS. That is a fair question. Let me respond to the Senator's
question, and then I want to go back to talking about the bill
specifically.
What our intention is in our bill is to provide an objective third
party who chooses who the group is, who contracts and actually selects
the review panel, and then chooses the review panel.
The Senator will recall, in previous bills that have been talked
about and debated in this Senate Chamber, that has been one of the
mechanisms used so that you do not have the HMO actually involved in
contracting either with the group that is choosing the review panel--I
think it is important to talk about both because they are both
involved--or the review panel itself.
As a practical matter, the HMO is not likely to be choosing the
actual review panel because much more likely, in real life terms, as
the Senator knows, they would contract with a group that would choose
the review panel.
What we want, and is the whole intention of our bill--and we think
this is a very significant difference between the bills--is we do not
want the HMOs--other than the fact that the HMO, I think in both bills,
is responsible for the cost--we do not want the HMOs being able to have
control either over the group that chooses the review panel or over the
review panel itself.
I think that is an important distinction between these two bills
because the way this process works, both bills are structured--with the
exception of this difference that the Senator from Louisiana and I have
just discussed--exactly the same way to avoid cases going to court.
There has been a lot of rhetoric on the opposing side that our bill
will stimulate and foster frivolous lawsuits. The truth of the matter
is, our bill does exactly what their bill does to try to avoid cases
going to court.
Experience has proven, both in California and in Texas, that when you
use that structure, which is that an HMO denies treatment, an HMO
denies coverage, the first step is to go to an internal review within
the HMO. If that is unsuccessful, the second step is to go to a truly
independent third party review. If that is unsuccessful, and if the
patient in the interim has been injured as a result of the HMO's
behavior, then the case can be taken to court--the two States where
that process has been used--and I again will say the structure is the
same in both bills, the difference being we prohibit the HMO's
involvement in the selection of the independent review process.
Mr. BREAUX. Will the Senator yield for a question?
Mr. EDWARDS. If I can finish, I will be happy to yield. In the two
places
[[Page S6471]]
where that system has been used before, which is in California and
Texas, very few lawsuits have been filed. They are two of the biggest
States in the country, some would argue two of the most litigious
States in the country. They have a system similar to ours, and actually
similar in structure to theirs. In both cases, what has happened is
that the vast majority of the hundreds and hundreds of claims that have
been filed--an HMO denies a claim, the claim then goes to internal-
external review--the vast majority of those cases have been resolved by
the appeals process.
That is what we mean when we say our bill is structured to avoid
cases going to court. In fact, in most cases it is in the best
interests of the patient to get the care and to get it as quickly as
possible. That is the reason for the internal review process. That is
the reason for the external review process. That is the process we used
in our bill. It is the process they used in their bill.
Unfortunately, in some cases, if an HMO arbitrarily or intentionally
denies care to a patient--and we have all heard the stories in this
Chamber--when that occurs, in some cases a child or a family or a
patient can be injured as a result.
If that occurs, then that child or family can take their case to
court. That is what has been done in Texas. That is what has been done
in California. What we have found is what common sense would tell us,
which is that the system works.
Mr. BREAUX. Will the Senator yield?
Mr. EDWARDS. I will.
Mr. BREAUX. I am trying to nail down this point on the independent
review. I am trying to do this one point at a time because we have so
many points out there. It is my understanding both our bills have the
HMO paying for the independent reviewers. Both of them enter into a
contract with people who are going to have an independent review.
Therefore, in a sense, in both bills the independent reviewer really
works for the HMO in the sense that the HMO is going to enter into a
contract for their services. The HMO will have to pay for those
services. Both bills require that.
Mr. EDWARDS. That is correct.
Mr. BREAUX. The issue is, this should not be an insurmountable task
for us to reach agreement on how we select the people who are going to
do it. Somebody has to make the selection. I don't know that you have
another creature out there who goes out into the world and says: Pick
reviewer A versus reviewer B. Somebody has to pick who the independent
reviewers are. In both bills the HMO pays for them. It is just a
question on how they are selected. Our bill says they should be
independent reviewers, and I think there are a lot of companies that do
that type of work. The Senator from North Carolina probably knows it
far better than I in his practice of law. But there are groups which
are totally independent that offer their services to do this.
Isn't there a way that the two bills can reach agreement on how we
select the independent reviewers? The HMOs in both bills are going to
pay for the services. It is just a question of how we select them. I
want them to be as independent as they possibly can.
Mr. EDWARDS. I appreciate the comments of the Senator from Louisiana.
First of all, he made reference to a creature selecting who the review
panel is going to be. We don't want that creature to be the HMO.
Looking specifically at the language of our bill, I am looking at
page 54 of the bill, it reads:
No such selection process under the procedures implemented
by the appropriate Secretary may give either the patient or
the plan or issuer any ability to determine or influence the
selection of a qualified external review entity. . . .
I have a question for the Senator. My question is, This language
specifically prohibits anybody involved in the process from determining
or influencing the selection of a qualified external review entity;
would the Senator agree to this language?
Mr. BREAUX. Let me answer that with a question.
Mr. EDWARDS. Will the Senator agree to this language?
Mr. BREAUX. Let me answer it with a question. Does that language
prohibit the HMO from paying the salaries of the independent reviewers?
Is that not influencing the independent reviewers? If the HMO, under
your bill, pays for the services of the independent reviewers, is that
not influence over their decision?
Mr. EDWARDS. I just read the Senator exactly what the language says.
Mr. BREAUX. I appreciate that. But it says you can't influence the
independent reviewer. Under your bill, the HMOs are paying the salaries
for the services of the reviewer. Is that not influence?
Mr. EDWARDS. My question to the Senator is, If you say you agree with
us conceptually about this, and we have specifically said that no such
selection process implemented by the appropriate Secretary may give
either the patient or the plan or issuer any ability to determine or
influence the selection of a qualified external review entity, would
you agree to that language?
Mr. BREAUX. I agree with the principle, but who makes the selection?
That is why I used the word ``creature.'' What entity picks the group
the HMO has to contract with?
Mr. EDWARDS. The Secretary sets up a process by which the selection
of the independent review panel is done and by which the selection of
those people who are eligible for the independent review panel is done.
The Secretary is responsible for doing that.
My point to the Senator is, his bill doesn't say this. By the way,
neither the HMO nor the doctor nor the patient can play any role in
that process. If the Senator agrees with us on that concept, would he
agree with the language I just read to him?
Mr. BREAUX. I think we may be close to reaching agreement. If we
can't solve this problem, we might as well shut down this place; we
will never solve any problem. This is a small problem in comparison
with other issues we are going to be faced with in conference.
Let me ask if the Senator suggests that HHS or the Federal Government
has an approved list of independent arbitrators.
Mr. EDWARDS. It is actually the Labor Secretary.
Mr. BREAUX. The Labor Secretary would have an approved list of
independent reviewers and they would publish that approved list and
allow that there be an approved list of independent reviewers that the
Secretary of Labor would designate as being independent review people
or organizations that do that type work. And then somebody has to pick
from among that list. They may have 20 different groups that do that on
the list. Then somebody has to enter into a contract with one of those.
In both of our bills, it is the HMO that has to enter into the
contract. Is it inappropriate to allow the HMO to pick from a selected
approved list by the DOL?
Mr. EDWARDS. Reclaiming my time, first of all, I thank the Senator
for this discussion. I hope we will be able to continue to talk about
this. My concern is that we specifically say and designate that the
Secretary of Labor shall set up a process by which these people are
identified. That process is required by law to not allow any of the
people involved in the process, which is only fair, to have any control
or any influence over who ends up on the panel. We don't set up a
specific process. We give the Secretary of Labor the responsibility for
doing that.
My point, in response to the Senator's question--then I will go back
to the other issues I need to talk about--is that we deal with this
issue. He doesn't.
I think it is critically important--I am happy to continue working
with the Senator--that when you have an independent review, when you
have a second appeal after the HMO internally has denied the claim,
that whoever is conducting that review and whoever is on that panel not
have any connection with the patient, with the doctor, or, probably
most importantly, with the HMO. That is the only way we are going to
get a fair and impartial review panel.
Mr. BREAUX. Will the Senator yield for a final question?
Mr. EDWARDS. Yes, I will.
Mr. BREAUX. I am trying to resolve this point. It is not
irresolvable. You suggest that the Department of Labor comes up with an
approved list of independent external review people. It could be
several groups or several individuals who would be in a selected
[[Page S6472]]
group of independent reviewers. When that is done, the next step is
that somebody has to pick the one for this particular case that is at
issue. It is either going to be the HMO that has to enter into the
contract or the Department of Labor that is going to have to select the
one that is going to be used in every one of these procedures.
It seems to me at that point, if the DOL has selected a group of
impartial reviewers, that there is nothing wrong with having the HMO
pick one of them to enter into a contract with because it is from an
approved list and it has to come from that approved list. Is that bad?
Mr. EDWARDS. Reclaiming my time, responding specifically to the
Senator's question, what we actually do--I hate to have to keep
repeating this--we deal with this issue. You don't. What we do in this
bill is we give the Secretary of Labor responsibility for setting up
the process. We don't say to the Secretary of Labor: You identify this
group of reviewers or these people who are eligible for the review
panel. Instead, what we do is give the Secretary of Labor
responsibility for setting up the process. But in setting up the
process, the Secretary is required to not allow any of the people
involved to be able to influence who is on the panel and who is
involved.
I appreciate very much the Senator's questions. I hope we can
continue to talk about this. It sounds to me as if he is genuinely
concerned and interested in trying to resolve the issue. We appreciate
that, but at this moment we don't have a specific solution to this
issue, and we are happy to continue to talk about it. But we believe
very strongly--it is the reason we address it in the bill--that the HMO
and the people involved should have no role; instead, we should have an
impartial process. Just like you want an impartial jury, you have an
impartial review process.
Now, Mr. President, if I can go back to the overall issue of the
bill, and then I want to talk about a particular patient. First, we do
want to make it clear to the American people who are listening to this
debate that there is a lot of media coverage that suggests that
accountability, or taking HMOs to court, is the only major difference
between the bills. There are major differences from start to finish--on
coverage, on access to specialists outside the plan, on access to
clinical trials, as the Senator from Massachusetts suggested a few
minutes ago, and on a truly independent review so the decision of the
HMO can be reversed, as the Senator from Louisiana and I discussed.
Finally, the issue of accountability. There are two goals in our
legislation, and we believe they are met. One is to provide real and
meaningful patient protection--to put the law on the side of patients
and doctors so that the health care decisions are being made by the
families affected by them and by the people who have the training and
experience to make them--the health care providers--and not by some
bureaucrat sitting behind a desk working for an insurance company.
Second is to treat HMOs as everyone else. The problem is that some
people would suggest that we should help maintain the existing
privileged status of HMOs. HMOs are virtually the only entity in
America that cannot be held accountable. Their decisions can't be
reversed; they can't be appealed; and they can't be taken to court.
When they deny coverage, the families are stuck with what they did. We
want to simply treat HMOs as every individual American, every small
business, every large business; they should be treated the same.
If my colleagues think differently about that, and if they believe
HMOs are privileged citizens and they ought to be able to maintain some
of the privileged status they have today, they will have to make their
case. I believe the American people believe that HMOs should be treated
just like the rest of us.
I said earlier that these debates are not abstract and academic; they
are real. They affect people's lives. I want to tell the story today
about a young man named Gary Wemlinger and his wife Jerrie who live in
my State, in Kernsville, NC. Gary, unfortunately, was diagnosed with
kidney cancer some time ago. Specialists at Duke University Cancer
Center have told Gary that surgery, radiation, and chemotherapy will
not help him. In other words, his life cannot be saved by those
treatments.
In this photograph are Gary and his wife and his five beautiful
children. What they have told him is the only chance he has for
recovery and to be able to spend more time with his family is to have a
procedure called a stem cell transplant.
Now, what we know medically is that stem cell transplants have saved
many lives across this country of patients with cancer. But because
this is a fairly new treatment, and particularly for Gary's particular
kind of cancer, the insurance company has said that it is experimental
and, therefore, they won't pay for it. They have refused specifically
to pay for it.
As you would expect, the people around Gary--his family, friends,
neighbors, people in the community--have pitched in and they are
working very hard to try to raise the money for Gary to have this stem
cell transplant that he so desperately needs. They are having a very
hard time coming up with the amount of money that it would cost. This
is a perfect example of the effect that the McCain-Edwards-Kennedy bill
can have.
Under our bill, when Gary needs this stem cell transplant--and his
medical doctors at Duke University Cancer Center believe he does--the
insurance company not only would be required to give him more serious
consideration initially, but once the decision was made not to pay for
the care, he would have the right to go to a truly independent medical
review board to get that decision reversed. That medical review board,
made up of doctors, would consider, among other things, the
recommendations of the cancer specialist at Duke University Medical
Center who would tell them that the only way Gary's life would be saved
is through this stem cell transplant. Otherwise, these other
traditional therapies--radiation, chemotherapy, and other surgeries--
will not save his life.
This is a perfect example of a man and his family who would be
dramatically affected if the law were on his side, on his family's
side, instead of being on the side of the big HMOs.
We can talk about this a lot. There was a quote today in one of the
newspaper stories--which we will make reference to later as the debate
goes on--from the HMO lobbying group saying that they are prepared to
spend whatever is necessary to stop the legislation from passing. They
have already spent many millions of dollars and they will continue to
spend millions of dollars, and they have been doing it for years. They
want to keep their privileged status.
I will tell you who is not spending millions of dollars in this
debate. Gary and his family are not spending millions of dollars. They
have only us to count on--the people who are in this body and the
people down the street on Pennsylvania Avenue. That is who they are
counting on, the people they sent to represent them in Washington, DC.
You won't see a television ad about this family. You won't see this
family spending millions of dollars. Instead, you will see their
friends and neighbors and members of their community trying desperately
to raise the money that the HMO won't provide.
The point is there are clear lines in this debate. While we want very
much to work with our colleagues to find a bill that can pass the
Senate, pass the House, and will be signed by the President ultimately,
we have to make a decision. We have to make a decision about whether we
stand with the big HMOs or whether we stand with patients such as Gary
and their families.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. EDWARDS. Thank you, Mr. President.
Mr. FRIST. Mr. President, I understand that the next 30 minutes is
under our control.
The PRESIDING OFFICER. The Senator is correct.
Mr. FRIST. I yield to the Senator from Pennsylvania--he understands
the situation. The Senator from Wisconsin needs how much time?
Mr. FEINGOLD. About 6 minutes.
Mr. FRIST. Would the Senator yield to the Senator from Wisconsin?
Mr. SANTORUM. If the Senator will yield, I will withhold our half
hour and have his time come out of the next half hour on the Democratic
side.
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Mr. FRIST. Mr. President, I ask unanimous consent that the time of
the Senator from Wisconsin be taken from the next 30 minutes after the
30 minutes on our side.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. FEINGOLD. Mr. President, I certainly thank the Senator from
Tennessee and the Senator from Pennsylvania for the courtesy in
allowing me to speak at this point.
Mr. President, I rise today to speak about the importance of passing
a meaningful Patients' Bill of Rights that will provide patients access
to the health care that they need. A real Patients' Bill of Rights is
absolutely vital to protecting the quality of health care for all
Americans.
I would like to make my colleagues aware of what I have been hearing
from Wisconsinites about the importance of protecting patients' rights.
At my listening sessions across Wisconsin, I often hear about the grim
reality that the American health care system is no longer controlled by
those who best understand how to treat patients--our physicians.
Instead, managed care companies, primarily HMOs but also other health
insurance providers, have become so involved in the business of health
care that they control nearly every aspect of health care including
where care is provided, and by whom. Of greatest concern to me is that
these managed care organizations can decide whether that health care
can be provided at all--they make the key medical decisions.
In other words, regardless of whether that care is determined to be
medically necessary by the physician who is treating you, managed care
administrators can override your doctor's medical decisions and refuse
to cover the care that you need.
How does this happen? Well, managed care companies control costs by
limiting supply--screening of the health care providers its enrollees
are permitted to see, requiring patients to go through insurance
company gatekeepers prior to seeing a specialist, tracking physician
proactive patterns to ensure that doctors are complying with HMO's
cost-control efforts.
Some HMOs go so far as to impose a gag-rule on doctors, prohibiting
physicians in their system from discussing treatment options that the
HMO administrators deem too expensive.
I want to highlight two aspects of this legislation that are
important examples of the need to ensure access to vital medical
treatment--access to live-saving prescription drugs and clinical
trials.
Perhaps nowhere has there been more advancement in medical technology
than in prescription drugs. They provide patients with cures to life-
threatening diseases, and are vital to restoring a patient back to
health.
Unfortunately, some HMOs limit the type and amount of medications to
cut down on their cost. While I understand that these costs lead to
savings in our health care system, we must ensure that patients can get
the drugs if they truly need them.
I commend Senators McCain, Edwards, and Kennedy for reaching a middle
ground in the tug of war between cost control and access. Congress must
pass legislation that ensures that physicians and pharmacists
participate in the decision making process of who has access to
prescription drugs. Congress must not forget in this debate that this
input is vital for those with allergies to a given medicine. We must
remember that we are considering a lifesaving measure for those who
have found ineffective the prescription drugs that the health plan
authorizes.
Another vital provision of this legislation is that it protects the
rights of patients who want to participate in lifesaving clinical
trials. The McCain-Edwards-Kennedy bill would ensure that routine
health care costs associated with participation in clinical trials
would provide all patients with reasonable access that could
potentially save their lives.
Health insurance and managed care plans must encourage good science
and help define quality care by reimbursing routine patient care costs
for those with life threatening diseases who wish to participate in
approved clinical trials.
Right now only 3 percent of adult cancer patients are enrolled in
clinical trials and lack of insurance reimbursement is often a major
obstacle to their participation. We must remedy this problem, and under
the McCain-Edwards-Kennedy bill, Congress can do just that.
These patient protections ought to be part of the deal when you
enroll in health insurance. These are pretty basic concerns, Mr.
President, concerns that I think may get lost in all the political
rhetoric.
When we speak about protecting patients' rights, I want to be clear
that we are talking about how to make sure that corporate cost-control
concerns don't result in people being denied the care that they need.
What we need is some thoughtful, reasoned debate and deliberation of
the proposals, not stonewalling and stalemates. I hope that we can work
together to craft bipartisan legislation that makes the difference in
the lives of patients across America.
Mr. President, I again thank the Senators from Tennessee and
Pennsylvania for their courtesy, and I yield the floor.
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. FRIST. Mr. President, I want to comment for 1 minute on a
statement made earlier on clinical trials to clarify it for people who
are following the debate. We are going to have the opportunity to
debate hopefully each of these patient protections to refine and
improve them. Both the Frist-Breaux-Jeffords and the Edwards bill have
clinical trials addressed as a patient protection, as a right of a
patient to have access to clinical trials if they are in employer-
sponsored health care.
We do have to be very careful about coverage of clinical trials. What
we started with was trying to figure out how many clinical trials are
going on today.
Under the Frist-Breaux-Jeffords bill, we include coverage by the
Veterans' Administration clinical trials, all the clinical trials in
the National Institutes of Health, and Department of Defense clinical
trials. The issue is on the FDA, and the FDA obviously does wonderful
clinical trials.
One concern we need to address is how many clinical trials is the FDA
doing. I was going to ask the Senator from North Carolina earlier how
many clinical trials are there in the FDA. Since we are taking people's
money to pay for it, we need to know how much it is going to cost.
It is unclear at this juncture, and we need to work together to see
how many there are. In fact, we do not know today how many FDA clinical
trials are being conducted as part of FDA protocol.
We know the Center for Drug Evaluation, at the end of calendar year
2000, had 11,838. The Center for Biologics Evaluation and Research has
2,869. The Center for Devices and Radiological Health has 1,084. We
know there may be some 16,000 clinical trials. Until we understand how
many clinical trials, because these clinical trials cost, there is an
incremental cost to these clinical trials, before we pass a law and say
let's cover everything, since we all know adding incremental costs
ultimately translates down to the uninsured, we need to know what these
costs are.
Until we get a better feel--and I have been working for a long time
trying to find out. I know NIH has 4,200 clinical trials extramurally
and intramurally; 1,800 are cancer-related trials. The Department of
Defense--we are looking at the number of clinical trials. The VA has
162 clinical trials, 30 of which are with partners; and 729 extramural
VA-funded clinical trials, for a total of about 891.
I do not know how many FDA clinical trials are out there or what the
cost actually is. We need to look at that sometime in the debate.
I understand we have 30 minutes on our side, and I yield to the
Senator from Pennsylvania for such time as needed.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. Mr. President, I thank the Senator from Tennessee. I
thank him in particular for his excellent work in this area. He is a
great leader and obviously an authority, somebody who understands the
issue better than any of us in this Chamber. I appreciate his
willingness to be fully engaged and participate in crafting a
[[Page S6474]]
bill that will solve the problems of the health care system today and,
frankly, a bill that will be signed by this President and enacted into
law.
That is the balancing act which people need to come to this Chamber
and pay attention to.
To start, No. 1, I am certainly for a Patients' Bill of Rights, and I
have worked for the past couple of years as a member of the health care
task force on our side of the aisle to craft a Patients' Bill of
Rights. I feel very strongly there are protections that need to be
placed into Federal law for those people who are covered by plans that
are regulated by the Federal Government. They do not currently have
patient protections.
When I first got into this now over 3 years ago, the state of play in
health care was a little different than it is today. We had some issues
that were hot-button issues. Maybe 4, 5 years ago, the issue of gag
clauses was a big deal. I think everyone now pretty much agrees--even
though there is language in the bills that outlaws them--they are gone;
they are not around anymore. Most States, 5 years ago, had not really
taken this issue up and gotten involved in the area of patient
protections. Since that time, every State in the country has at least
debated, and almost all of them have passed, some form of patient
protection to cover regulated and sponsored plans of the State. We have
a little different state of play with respect to the landscape of who
is and who is not protected.
Clearly, now the only participants in health insurance in this
country who are not protected with any patient protections are those
who come under the ERISA plan, or federally sponsored plans. All the
others have some sort of State regulation to take care of their
concerns because they are State-regulated products; they are products
approved and authorized by the State and State insurance commissioners,
Governors, and on down.
When it comes to the Federal plans, we need to look at and I am
strongly in favor of inserting some patient protections for these
federally sponsored plans, called ERISA plans. It is over 100 million
people. It is not a small amount of people. That is from where we need
to start.
The second thing we need to look at is the differences where we began
to take this up 3, 4, 5 years ago and where we are today. A few years
ago we thought we had health inflation under control. We were looking
at rates of growth in health care costs that were slightly above the
rate of inflation. As a result of some of the dynamics in the private
health care system, we were settling down, and it looked like we had
reined in costs in health care. We were being rather ambitious about
how we can provide patient protections and not worried about the impact
of costs on the system.
That is a little different today. Today we are looking at double-
digit increases in health care premiums. I was with an employer
yesterday who told me his health insurance premiums over the past 2
years have gone up 42 percent. That, according to some other friends of
mine with whom I have talked in Pennsylvania, is not unusual. Health
care costs are skyrocketing again.
The question is, What do we do here that impacts this system? I
always say with respect to anything we do in Washington, DC, first and
foremost, is do no harm. We want to do good things. We want to make
sure the state of play in America with respect to getting health
insurance and good quality health insurance is always to enhance that
ability, not detract from it.
One of the major concerns I have with the legislation before us today
is what it will do to increasing costs of health insurance. At a time
when we have 44 million uninsured, I believe that is the No. 1 problem
in health insurance in America. We can talk about one bill covering 56
million people and one bill covering 170 million people and one
covering 180 million people. None of them covers the 44 million people
who do not have insurance.
If we want to look at what the real problem is in America, it is the
44 million people who do not have any health insurance. There is not
one thing in this bill that helps any of those people.
The Congressional Budget Office and others looked at this and
determined this legislation will take the 44 million people and turn it
into over 45 million people. All it will do is add to their ranks. If
misery loves company, this bill helps because it will add to the
misery. It will take 44 million people and make them 45 million people
with the increased costs in this bill. I would argue, given the
employer liability provisions in this bill, that 45 million is just the
beginning of the increase in uninsured. We may very well go from 44
million to 45 million if the employer provisions pass. I don't think
these provisions will be signed into law because, thankfully, the
President said he would veto the bill.
If for some reason the employer liability provision passes, it will
open the avenue for lawyers to get in there and sue employers that
provide insurance to their employees. No good deed goes unpunished, as
they say, so we have employers who go out and provide insurance to
their employees, and we would punish employers for doing that if we in
the Senate allow them to be sued simply for providing insurance for
their employees. To me, that is not just going to increase the
uninsured, as some say who have studied the bill, from 44 million to 45
million, but from 45 to 88 or 120 or whatever the case may be. We will
have massive uninsured. Employers will be crazy, if they are in the
business of making, say, podiums, to allow themselves to be sued by
lawyers because they provide health insurance to employees.
This is a very serious issue, the issue of access. I hope, and I
believe, there will be amendments offered over the next week or two--
however long we are on the bill--that will do something about access to
insurance. If we walk out of this Chamber with our arms raised, saying
we have helped patients, and we have done nothing but add to the ranks
of the uninsured, it is a hollow victory; we have done nothing for the
No. 1 problem in health care, not just to the 44 million who do not
have insurance, but to all the people who do have insurance and have to
pay higher insurance premiums to pay for the 44 million people who end
up at the hospital because they don't have insurance and don't get the
primary care that they should at the appropriate time.
Currently, we take care of hospitals that provide uncompensated care
for those without insurance coverage. In my major cities--Philadelphia,
Pittsburgh, Harrisburg--hospitals are financially strapped because of
the high number of people who come through the door who don't have
insurance and have to be taken care of, and are willingly taken care of
by the nonprofit hospitals. Again, it is uncompensated. What do they
do? They lose money. They cannot pass it all over to the insurance
because the insurance will not pay for it. This is a huge problem.
There is nothing in this bill that takes care of this problem except,
as I said before, if misery loves company, we add more to the uninsured
as a result of this bill. That is not solving the fundamental problem
in health insurance.
When we offer amendments, I hope we can get bipartisan support for
some tax provisions that will increase the number of insured in this
country, that will deal with the No. 1 problem facing America in the
area of health insurance. That is, frankly, the almost embarrassing
situation of having that many people on the uninsured lists.
We have a lot of other issues with which I believe we need to deal.
One of the things I am hopeful we will offer is an expansion of medical
savings accounts. It is a pilot program right now. I would love to see
that program expanded to give real choice to people in the private
health insurance system, to give them the opportunity to manage their
own health insurance needs, to be able to provide for themselves and
their family, and do so in a way that they have maximum choice, maximum
flexibility. That should be included. Giving people choices, giving
people coverage, giving people flexibility--these should be the
hallmarks of this discussion, not driving up costs and increasing the
uninsured and having lawyers replace doctors as decisionmakers, No. 1;
and, No. 2, these lawyers' fees siphon a tremendous amount of money out
of the health care system.
There are scarce resources, and this bill is overloaded with rights
to sue not just HMOs--we can debate that. I am willing to discuss what
we can do as far as suing HMOs. However, I am not willing to discuss,
to be very honest, allowing employers to be sued. What are the
consequences of employer liability?
[[Page S6475]]
Any employer should think about it. Would you allow your business,
for which you sweated hard and perhaps built as a family business, or a
big corporation, would you allow your corporation to be liable to suit
simply because you provided a health benefit to your employees that has
nothing to do with your business? If you did, my guess is, if you were
a big corporate CEO, you would be fired. No shareholder in their right
mind would want their company, their investment, to be wiped out by a
group of employees who were unhappy with the health care coverage the
employer provided. That is not their business. Their business is making
podiums or printing paper or generating electricity. It is not
providing health care to their employees. So it is one thing to be sued
for the products you make or the services you provide. That comes with
the business. But you shouldn't be liable for suit for benefits you
provide to your employees. If you are liable for suit, you simply must
get out of the business of providing health insurance to your
employees. The impact on the number of uninsured in this country will
be profound.
I will shortly yield to the Senator from Arkansas, and I am
interested to hear what he says. The No. 1 thing to understand in
dealing with this issue is, first, do no harm. If we look at the
greatest problem in the health care system, it is the number of
uninsured in America. And the greatest harm this legislation will
create is to explode that number. That is not a victory for patients.
That is not putting patients first. That is putting lawyers first,
putting litigation first. It is not putting mothers and fathers and
children who need and want affordable health insurance first. It is not
putting these people first who are saying they need these procedures.
Taking insured people who have a problem with their HMO and turning
them into uninsured people is not helping them. Taking someone who has
a problem with their insurance company and turning them into someone
who is no longer covered is not helping them. That is not putting
patients first.
What we want to do is put patients first, make sure there are
adequate protections in the law, but not create a system where we will
simply destroy the private health insurance system in this country.
That is what this bill does. We, hopefully, can fix it. We will have
amendments to fix it. There is a lot in common with these bills, but we
have to fix the things that are the most egregious, and hopefully over
the next week or two we will be able to do that.
Mr. FRIST. How much time remains on our side?
The PRESIDING OFFICER. Thirteen minutes.
Mr. FRIST. I thank the Senator from Pennsylvania.
The Senator spelled out frivolous lawsuits, unnecessary costs,
unnecessary mandates through micromanagement drive up the costs of
premiums and it falls on the shoulders of the working poor who cannot
afford the insurance. That is where the uninsured come in. I take it a
step further: Frivolous lawsuits increase costs, loss of insurance, the
uninsured--that translates to less care, a lower quality of care. It is
not just the number of uninsured, it is the impact of being uninsured
today. That is something on the floor we will have time to debate over
the next several weeks.
I yield the remainder of our time to the Senator from Arkansas.
Mr. HUTCHINSON. I thank the Senator from Tennessee for his leadership
on this issue, his expertise and knowledge. We are fortunate, indeed,
to have someone with his knowledge of this issue as part of our
institution.
I associate myself with the remarks of the Senator from Pennsylvania.
He is absolutely right. I served on the conference committee on the
Patients' Bill of Rights for more than a year. We wrestled with these
issues. There was broad consensus that we need a Patients' Bill of
Rights. I agree; we need to have a Patients' Bill of Rights. We need to
have a set of legislatively codified protections for those who are in
managed care systems in this country.
Where we had a problem was in the area of the lawsuits, the
liability, the right to sue, and how broad should be that right to
sue. While we have broad consensus in this body and in this country
that there should be a Patients' Bill of Rights, there is also a
growing understanding that if we do this wrong in the next few weeks,
all we will do is move hundreds of thousands, if not indeed millions,
of people out of the ranks of those who enjoy the protection of health
insurance from their employer into the ranks of the uninsured. That is
the risk we take and we better do this job right.
The Kennedy-McCain bill ignores what I believe is the most important
patient protection of all and that is access to affordable health
insurance. They do absolutely nothing to move those 44 million people,
who today in this country do not have health insurance, into a
situation in which they are covered. This bill does not address that at
all.
While we may agree we need patient protections for those in HMOs, we
need to be very careful that in enacting those patient protections we
do not even exacerbate the problem of the uninsured in this country.
The CBO, the Congressional Budget Office, has found the Kennedy-McCain
bill would raise health insurance premiums by at least 4.2 percent and
cause nearly $56 billion in lost wages over 10 years.
That 4.2 percent, somebody says that is not much; that is about
inflation, isn't it? That is on top of the 10-percent to 13-percent
increase in health insurance premiums this year, which is the third
consecutive year of annual premium increases in that range. In fact, in
the year 2000, premiums increased 12.4 percent; in 2001, premiums are
projected to increase 12.7 percent; and in 2002, premiums are projected
to increase 12.5 percent.
We are adding on top of that premium increase another 4.2 percent, as
projected by the CBO. I think that is a very conservative estimate,
4.2, so we are making that problem even more severe. The Barents Group
data shows for every 1-percent increase in health insurance premiums,
300,000 Americans will lose their health insurance. What that means is
the Kennedy-McCain bill could cause as many as 1.3 million Americans to
lose their health care, according to the CBO. If the CBO is wrong and
they are understating it, as I believe they may well be, instead of 1.3
million Americans losing their health care, it could go considerably
higher.
There are 44 million uninsured Americans in our country now. So the
Kennedy-McCain bill does nothing to make health insurance more
affordable. Instead, it pushes the number of uninsured to even higher
levels, from 44 million to 45 million, 46 million, or more.
This is the question I pose to my colleagues: What good are patient
protections when 45 million people cannot enjoy them? What good will
this bill do for the 45 million who do not even have health insurance
today? I will tell you, it does no good at all.
Claims that the Kennedy-McCain bill covers all Americans is the
biggest hoax being perpetrated in this debate today. This bill does not
cover all Americans. This bill does absolutely nothing for the millions
of Americans who cannot afford health insurance. We will do a
disservice to this country, a disservice to the health care system in
this country if, while addressing patient protections, we do not also
address access. I will be offering amendments to that end. I hope my
colleagues will be as well.
Dealing with the issue of liability, Kennedy-McCain supporters keep
telling the American public their bill protects employers from lawsuits
and that it caps damages at $5 million. Let's be very candid; let's be
very honest about this. This cap only applies to punitive damages in
Federal court. What Kennedy-McCain proponents fail to mention is that
employers can be sued for unlimited economic damages in Federal court,
unlimited noneconomic damages in Federal court, unlimited punitive
damages in State court, unlimited economic damages in State court,
unlimited noneconomic damages in State court, and damages through
unlimited class action lawsuits under both Federal and State laws. That
is what, according to the CBO, is the second major component of the
cost increases that are going to occur to health premiums across this
country.
I further point out there is really no exhaustion of the appeals
process required. Though the bill says there is,
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the exceptions swallow up the rule. Kennedy-McCain requires a patient
to file a request for external review within 100 days after the
internal review. Nevertheless, Kennedy-McCain allows a patient--this is
so important--to go right to court on the 181st day without even having
gone through the appeals process by claiming that they just discovered
an injury.
It makes sense, then, if you think the insurance company, the HMO,
has made a wrong decision and they have been inappropriate in the
decision they have made, that you have an expedited internal appeal of
that decision. We all agree upon that. It is also logical and
consistent, and I think there is a consensus that there should also be
an option to go to an external appeal, to an independent medical expert
reviewer to look at the case and make a determination as to who is
right.
If we are really concerned about health care being provided for the
patient, we should require that the internal and external appeal
happen, happen quickly, and those appeals be exhausted before there is
ever a right to sue. The goal should not be let's see if we can get to
court to see who can get the dollars. The goal should be to ensure the
patient is getting the health care they deserve. By allowing a patient
to simply wait until 180 days have expired and then to simply allege
they only now discovered the injury and to go directly to court without
ever having gone through an internal appeal, without ever having gone
through an external appeal, is to open the floodgates to lawsuits.
Look at the original bill on page 149. You will see that exception is
clearly there. This loophole allows an employer to be taken to court 5
years, 10 years, 15 years after its health plan denied a claim for a
benefit without ever having gone through an external, independent,
medical review process.
What is the result? The result is that if Kennedy-McCain passes as it
is now written, we will threaten the very employer-provided health
insurance system that has served our country well. Maybe that is the
goal. Maybe, instead of patient protections, the real goal in this
legislation is to swell the ranks of the uninsured and then come back
and say: Look at our huge problem. We have to address this again.
I hope that is not the goal of those who are pushing this lawsuit-
geared so-called Patients' Bill of Rights. Employers will be sued even
if they are upheld by the independent medical reviewer's determination
under the Kennedy-McCain bill.
Kennedy-McCain is, in fact, a trial lawyer's dream. It is a trial
lawyer's bill of rights. New lawsuits under Kennedy-McCain have
absolutely nothing to do with ensuring that patients get quick access
to needed care. According to the Urban Institute, medical malpractice
claims take an average of 16 months to file, 25 months to resolve, and
5 years to receive payment. That is what we are inviting in this bill,
not that patients are going to have rights and that patients are going
to be assured that on an expedited basis they are going to be able to
get the kind of medical treatment the insurance company has promised.
This bill, as it is currently drafted, will ensure the courts are
clogged with lawsuits and lawsuits for not months but years and years.
That is not in the interest of improving health care in this country.
You would think, after months and years in court, a patient or the
patient's family would finally be justly compensated for their injury
or their loss, right? Wrong. In fact, the tort system returns less than
50 cents on the dollar to the very people it is designed to help and
less than 25 cents for actual economic losses. So the real winners in
this lawyers' bill of rights will, in fact, be the trial lawyers. The
lawyers win and the process wins and the patients lose. That is why we
need to improve this bill.
Madam President, how long do I have remaining?
The PRESIDING OFFICER (Ms. Cantwell). The Senator has 1 minute 45
seconds.
Mr. HUTCHINSON. It is said over and over again that we have to pass a
Patients' Bill of Rights because the American people are demanding it.
I think if you ask the American people, if you ask most Members of
Congress, are you for a Patients' Bill of Rights, they would
overwhelmingly say yes. I would say yes. We all believe patients ought
to have greater patient protections and they ought to be codified. They
ought to be in law. But it does not tell the whole story.
A recent survey that was conducted in conjunction with the Harvard
School of Public Health found this. When the question was asked of the
American people, all voters, Republicans, Democrats and Independents,
do you favor a Patients' Bill of Rights, 76 percent said yes. But when
they were asked this question, what if you heard that this law would
raise the cost of health plans and cause some companies to stop
offering health care plans to their workers, would you still favor a
Patients' Bill of Rights? Instead of 76 percent, 30 percent say they
would favor it under that situation.
During the last few weeks, it has become increasingly clear to the
American people that the Kennedy-McCain Patients' Bill of Rights, which
opens the floodgates to lawsuits, would increase health care premiums
and cause millions of people to lose their health care insurance, and
they do not favor that kind of bill of rights.
I ask unanimous consent to have printed in the Record letters from
two of my Arkansas constituents who are employers, telling about the
threat this litigation-laden bill poses to their ability to offer
health insurance to their constituents.
There being no objection, the letters were ordered to be printed in
the Record, as follows:
McKee Foods Corp.,
Collegedale, TN, June 14, 2001.
Hon. Tim Hutchinson,
U.S. Senate, Senate Dirksen Building, Washington, DC.
Dear Senator Hutchinson: The Senate will soon consider a
proposal that will give Americans the right to sue their
insurance provider in state and federal court for coverage
decisions. As a business owner, this prospect has me worried
McKee Foods has voluntarily sponsored its own health plan for
more than 30 years. All of our employees and their families
have the option to take part in our group coverage, including
the 1,420 employees who work at our Gentry, Ark.,
manufacturing facility. In 2000, McKee Foods and its
employees spent $25 million to provide health care benefits
for all 6,100 of our employees and their families. The
company directly paid for more than 75 percent of this
amount.
Over the last two years our group insurance benefit costs
are up about 26 percent and our prescription drug benefit
cost has nearly doubled. The company has absorbed most of the
cost increases, but employee premiums have also risen by 10
percent. It's important to note that none of the proposals
presently under consideration have protection in place to
protect the health care purchaser, whether individual or
company, from the increased cost of coverage due to insurer
liability. A health care bill containing additional costs
will simply compound the problem of rising costs.
Our health plan, which is governed by ERISA, is self-
insured, self-funded and self-administered. Maintaining an
ERISA plan allows McKee Foods to provide uniform health care
benefits to our employees in all contiguous 28 states. We've
reviewed the various proposals put forth by both the Senate
and the House of Representatives and have come to the
conclusion that McKee Foods can be sued for voluntarily
providing health care benefits. Each of the major bills under
consideration contains language that defines the liability
trigger as ``direct participation'' or ``discretionary
authority'' over the decision. This standard directly
implicates ERISA's fiduciary responsibility duty. For
employers who offer a health plan governed by ERISA,
liability is real.
I believe that legislation containing liability for
companies will certainly lead to more uninsured Americans. I
also believe that many employers want to offer health care
benefits because this type of benefit helps us attract and
retain high quality employees. Please remember that the
voluntary employer-based health care system in our country
provides coverage for more than 172 million Americans.
I'm asking you to support a health care bill that sets up a
strong system for binding external review instead of
lawsuits. Let's get patients the medical treatment they need,
when they need it. Reaching a conclusion later in a court
only benefits the attorneys.
Sincerly,
Jack McKee,
President and CEO.
____
Springdale, AZ.
Dear Arkansas Senators Lincoln and Hutchinson: I am a small
business owner in Springdale, AR. Our company employes 8 very
fine people.
Our company has always made an effort to provide, at no
expense to our employees, full family health insurance
coverage.
A couple of months ago we were forced to begin sharing some
of the cost of the health plan with the employees because of
40% plus increases. The monthly cost climbed to over $4000.00
a month for our relatively young group. I fear passing the S-
238 bill will not
[[Page S6477]]
only cause greater increases but subject our company to
possible legal actions because of our offering health
insurance. We could be at the mercy of whoever decides to pay
a claim or not--and open the door for the company to be
liable.
I think the bill has a lot of danger in it. I urge both of
our Arkansas Senators to do all in your power to defeat this
bill. I urge you to vote against ``cloture'' thus limiting
the truth to be brought out on the floor.
On behalf of myself, my partner and our employees, thank
you in advance for logging this request.
John W. Hayes.
P.S. Your voting records are the proof of your loyalty to
the people of the Great State of Arkansas.
Mr. HUTCHINSON. Madam President, I yield the floor.
The PRESIDING OFFICER. Under the previous order, the next block of
time shall be controlled by the majority party.
Mr. WELLSTONE. Madam President, I ask for 10 minutes.
The PRESIDING OFFICER. The Senator from Minnesota is recognized.
Mr. WELLSTONE. Madam President, I say to my colleague from Arkansas
that I think what will become clear to the American people over the
next week--I certainly take very seriously the words of the majority
leader that we will be here as long as it takes to pass this bill--is
that this will be a test case of whether or not all Members of the
Senate will be there for consumers, or whether or not the health
insurance industry will be able to stop this legislation.
It is that clear.
There is an unprecedented lobbying effort going on right now and a
tremendous amount of money is being spent with a full court press to
block this legislation.
I have no doubt that we will have amendments on the floor over the
next week or week and a half which will be an effort to gut this bill
through amendments.
But I think that people in the country will have a very clear sense
of whether or not we are on their side.
I say to each and every one of my colleagues that I am absolutely
convinced from a lot of coffee shop discussions with people in
Minnesota that people do not give a darn about the labels left, right,
or center. They do not care about any of it. Politics for people is
much more personal. Consumers and the people we represent are saying we
want to have some protection.
Let me give you some examples. I will not use the real names of
people to make this more anonymous. I will never forget a woman coming
up to me and saying to me at a farm gathering in Minnesota: I want you
to come over and meet my husband, Joe. Remember--you met him about 6
months earlier. The doctor said he only had 2 months to live. But my
Joe is a fighter.
He had cancer.
I would like for you to come over and say hello.
He was not yet in a wheelchair. But later he was because he was
weakened by this struggle with cancer. He has now passed away.
She said to me: I want you to meet Joe.
I went over, and we talked.
Then she said: Can we talk away from him?
We go away so he can't hear.
She said: It is a nightmare. Every day I am on the phone with the
managed care company trying to find out what they will cover. Every day
it is a struggle to get the coverage for my husband for the treatment
he needs as he struggles with this illness.
No American family with a loved one who needs that care should have
to be fighting it out with the insurance companies or managed care
plans to get the care their loved one deserves.
That is what this piece of legislation is about that was introduced
by Senators McCain, Kennedy, and Edwards with many of us supporting it.
That is what this is about, pure and simple.
This is the most important consumer protection legislation we will
vote on this year as Senators.
My colleague from Arkansas said: What about the 44 million people who
have no insurance? I invite the Senator from Arkansas and other
Senators to please join on a piece of legislation I have called Health
Security for All Americans.
I am for universal coverage. I haven't heard a lot of my Republican
colleagues talking about the importance of comprehensive health care
reform, universal coverage, affordable and dignified human coverage for
all. I hear them talking in opposition to this piece of legislation.
Why don't we first pass this consumer protection legislation? Then we
will move on and we can talk about universal coverage.
I remember a gathering in Minnesota--there are so many stories like
this. There was a meeting that I had convened where we had some of the
managed care plans there to meet with some of the parents. I do a lot
of work in the mental health area.
I can hardly wait to have hearings in the Health Committee and have a
bill on the floor doing what Senator Domenici calls the Mental Health
Equitable Treatment Act to end the discrimination of coverage for
people struggling with mental illness.
At this gathering, a lot of the parents wanted to meet with the
managed care companies. One mother said: My daughter is struggling with
depression. We have asked you and asked you for coverage, and you said
that it wasn't medically necessary for her to get the help she needed,
to see the psychiatrist that she needed to see. My daughter took her
life.
Look. I can't say that she took her life because she didn't get a
chance to see this particular psychiatrist. But I can tell you this:
There was an article in the Minnesota Star Tribune last Sunday about
the costs the State of Minnesota had to pick up because the health
plans did not provide the coverage for people that the doctors said
needed to get mental health coverage.
What the patients and their families heard was: You need to see the
psychiatrist. You need to be in the hospital for this many days. You
need to have outpatient treatment. Instead, they were denied the
coverage by their HMOs. Finally, the State just picked up the coverage.
It happens all the time.
A nurse in Minnesota told our state office about a woman who suffered
with stomach pains; she saw her doctor who did some tests and then
suggested further tests, that were more expensive for which she should
get HMO's approval. The HMO denied the additional tests. Since the
doctor recommended the tests, you would think that a patient might have
some recourse to the HMO's denial of coverage. Instead, the woman
endured a series of phone calls with HMO employees, being forwarded
from one customer service representative to another, being put on hold
for 35 minutes and ultimately being referred to a 50-page benefits
manual with no change in the HMO's denial of these recommended tests.
No one at the company ever instructed the patient how to file an
appeal. She ultimately gave up and paid for the tests herself.
It goes on and on. There is too much gatekeeping, and too much
bottom-line medicine. The bottom line has become the only line. There
are too many people and their loved ones who can't get the care they
need or the care for their children when they need a pediatrician or to
get to the emergency room to have it covered when they need to be at
the emergency room or to get their parents and their grandparents the
coverage they need, to get the child the coverage she or he needs for
mental health coverage.
It goes on and on. Too many people go without the care they deserve.
Too many doctors and nurses are not able to provide the kind of humane
and dignified care they thought they would be able to provide when they
were in nursing school or medical school.
What do we do? We say that we are going to have basic patient
protection coverage for every citizen no matter what State he or she
lives in, no matter what company he or she works for. That is the first
part.
What is the second thing that we say? We say if your plan denies you
the coverage, then you have a right as a consumer to appeal the
decision and go to an independent appeals board or through an
independent appeals process--not an appeals process within the managed
care company which is the competing proposal. That is crazy. People in
the country know it.
And to assist people in dealing with their insurance companies and
HMOs I will be offering an amendment with Senator Reed of Rhode Island
that will have an ombudsman program set up in every State that provides
outreach and
[[Page S6478]]
assistance when they have trouble getting the care they need or filing
the appeal they are entitled to. This would be an important addition to
this legislation.
If you have headaches, severe headaches, and you go see your doctor,
and you are told by your doctor that you need an MRI, and then the
managed care plan says, no, it is not medically necessary, and then
you, because you did not have that MRI, later find out you have a
malignant brain tumor, and you die because of that--or this happens to
someone in your family who dies because of that--you better believe
that these companies can be taken to court. They should not have any
special protection any different from any doctor or hospital or any
other business.
If you are denied the coverage on the basis that it is not medically
necessary, of course people can go to State court, which is where it
should be. And then we abide by the laws of our States: the laws of
Minnesota or the laws of Illinois or whatever state the patient lives
in. It is simple.
This is all about whether or not we are finally going to pass
legislation that provides consumers, provides patients, provides
families, provides children the protection they deserve, the protection
they need. That is what this legislation is all about.
I think I introduced a bill in 1994, and then I know Senator Kennedy
introduced a bill a couple years later, and many people have introduced
bills; and we have been going through the debate now for 7 years. The
time has come. It is real simple.
I conclude on this note: I really believe, more than anything else,
the way people judge us is not if we are Democrat or Republican, not if
we are liberal or conservative, not if we are right, left or center.
None of those labels mean very much.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. WELLSTONE. Madam President, I ask unanimous consent for 30 more
seconds.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WELLSTONE. The question is simple. Do you, the Senator from the
State of Washington or the Senator from the State of Illinois or the
Senator from the State of Minnesota know us? Do you care about us? Do
you understand us? Are you on our side?
That is what this legislation is all about. This is an important
time. Let's step up to the plate and vote to be on the side of families
in our States, consumers in our States, and provide them with this
protection.
I yield the floor.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Madam President, how much time remains on the Democratic
side on this debate?
The PRESIDING OFFICER. Fourteen minutes nineteen seconds.
Mr. DURBIN. I thank the Chair.
Madam President, I rise in support of this bill that has been brought
to this Senate Chamber by Senator Kennedy, who was here just a moment
ago; Senator John Edwards, Democrat from North Carolina; and Senator
John McCain, Republican from Arizona, who have made this a bipartisan
effort.
I think if you listened to the history that Senator Wellstone of
Minnesota just recounted, you know this issue has been before the
Senate and the Congress for many years. We now have an opportunity,
because of the change in the leadership in the Senate a few weeks ago,
for this issue, which was buried in committee, to now be on the floor
of the Senate--an issue with which 80 percent of the American people
agree is finally before us for debate, for amendment, for a final vote.
I applaud our majority leader, Senator Tom Daschle. He has said to
those who want to drag their feet and stop us from this debate and
amendment, the party is over. We are going to stay in session in the
Senate until we pass this bill.
You will hear moans and groans from my colleagues in the Senate who
have taken the Fourth of July recess period and have made plans. Some
were political plans, some were personal and family plans, but they had
a lot of plans. I have to confess I did, too. But I believe the
Senators elected to this body were not elected to march in parades on
the Fourth of July. We were elected to march to the floor of the Senate
to pass legislation that will make life better for families across
America.
So if it means that we have to stay in session on the Fourth of July,
and take a recess for a few minutes to look out the window at the
fireworks on The Mall, so be it. Let's get our job done. Let's stay and
do it. This issue is worth it.
This issue, this Patients' Bill of Rights, will establish, for the
first time nationwide, a standard of protection for American families
when they go to their doctor or a hospital for medical care.
How important is it? Let me tell you a story. In Joliet, IL, I sat
down for lunch with a doctor. He said: Let me tell you what happened to
me, Senator. A mother came into my office with her little boy. The boy
was about 5 or 6 years old. He had been complaining to his mom about
headaches. I asked his mother how long these headaches had gone on. She
said for over 3 weeks.
The doctor said to the mother: Is it on one side of his head or the
other or what?
She said: It is always on the same side of his head. He complains
that it hurts on this side of his head.
The doctor said to me he instantly knew that the appropriate medical
response was to take an MRI to determine whether or not that little boy
had a brain tumor: 3 weeks, headaches, a little boy complaining, same
side of his head. But before he said that to the mother, before he made
that recommendation, he asked her a question: Do you have health
insurance?
She said: Yes.
The doctor asked: What is the name of your company?
She gave him the name. He excused himself from the office, went into
another office, called the insurance company, described exactly what
happened, and said: I am ordering an MRI.
The insurance company said: No.
He said: What am I supposed to do?
The insurance company said: Send the mother home. See if he gets
better.
The doctor walked back into the office and said to the mother: I'm
sorry but at this point in time I think the best thing for you to do is
to go home and call me in a week or two if he is still complaining
about it.
That is just one little episode in Joliet, IL, involving a doctor, a
woman, and her child. That mother left that office not knowing who had
made the medical decision. It was not the doctor she came to see; it
was a faceless clerk at an insurance company hundreds of miles away.
When doctors ask these clerks what qualifications they have to make a
medical judgment, do you know what they find out? These insurance
company clerks are not nurses; they are certainly not doctors; many
times they have high school diplomas and a manual in front of them
where they can look up: Oh, I see, 3 weeks of headaches, one side of
your head, 5-year-old child. No, it takes 4 weeks. Send him home.
That is what this has come down to. That is what this debate is
about. It isn't about all the technicalities and complexities that a
lot of us bring to this Chamber. It is a question about whether doctors
can practice medicine, whether mothers and fathers can walk into a
doctor's office and rely on the health care professional to make the
judgment. That is what it is all about.
The health insurance industry, the HMOs, are the ones that oppose
this bill. They are the only ones that oppose this bill. Every health
care group, every consumer protection group, supports the bipartisan
bill being offered on the Democratic side--every single one. The only
opposition comes from one group, the health insurance companies. Why?
They make more money. It is more profitable. They do not want us eating
into their profit margin to provide greater and better care for
American families. It is just that simple.
The two bills before us are dramatically different. Here are some of
the differences shown on this chart. When you take a look at the two
bills, this, on the left of this chart, represents the Bipartisan
Patient Protection Act, and this side represents the Frist-Breaux bill,
which is supported by the health insurance industry.
Take a look at the differences between them as to what kind of
protections are provided under the Patients' Bill of Rights.
[[Page S6479]]
Our bipartisan bill protects all patients with private insurance. The
bill being offered on the Republican side and by the industry, sadly,
leaves many people behind. It says: If you can make an effort at
protecting patients, good enough. We say, no; it has to be real
protection.
Protection for patient advocacy: 100 percent on our side; none on
their side.
Prohibition of improper financial incentives: Do you know what that
means? Do you know there are at HMOs some doctors who get paid more if
they do not provide treatment for patients? At the end of the year,
they total it up and say: Dr. So and So, let's see, because you didn't
order as many MRIs as we thought you would, you get a bonus check at
the end of the year.
Did you know it is a fact that that is going on? There are financial
incentives for doctors not to prescribe drugs, not to use treatments,
not to hospitalize people. And if they do not do it, they get
compensation. Our bill prohibits that. The health insurance industry
bill--surprise, surprise--thinks that is just fine.
The ability to hold plans accountable: Our bill makes it clear they
are going to be held accountable. I will get into that in a moment.
Independent external appeals: When the health insurance company says,
no, we won't cover what the doctor recommends--whether it is a
prescription or a treatment--it does not give you a lot of comfort to
know you can go hire a lawyer and go to court and 5 years later get a
verdict. You need to have an appeals process right now. Some of these
are life-and-death decisions.
We want to make sure the appeals process isn't stacked against you.
We do not want the health insurance company to be the judge and the
jury. The bill supported by the industry leaves the health insurance
company to make the final judgement. We believe it should be an
independent external appeal process, one that is timely.
Guaranteed access to specialists: Our bill has it; theirs takes a nod
in that direction.
Access to clinical trials: Do you know what that is? Let's say you
have a rare serious disease and there is a clinical trial underway.
The doctor says to you: There is one possibility, Mrs. Jones. It is a
clinical trial. I would like to see if you qualify for it.
Mr. FRIST. Will the Senator yield for a question?
Mr. DURBIN. I am happy to yield.
Mr. FRIST. The Frist-Breaux-Jeffords bill you are referring to as
``the health industry bill,'' endorsement of their bill, can you name
one insurance company or one HMO that has endorsed the Frist-Breaux-
Jeffords bill?
Mr. DURBIN. The health insurance industry--and the Senator knows
this--objects to, opposes the bipartisan bill which I support. They
would gladly accept your alternative because it is much more preferable
to them because it is more profitable to them. That is as obvious as
this debate is. I think that is the difference between us.
We stand here supported by nurses and doctors and medical
professionals, hospital associations across America. The health
insurance companies are our No. 1 opposition. They support your
legislation. They don't support ours.
Mr. FRIST. But is the Senator aware that there is not one HMO, to the
best of the sponsors' knowledge, that has endorsed our bill, or
insurance company, and is the Senator aware that over 362,000
physicians from 70 different organizations have endorsed the Frist-
Breaux-Jeffords bill?
Mr. DURBIN. I am sure the Senator's figures are accurate. I wouldn't
question them. But the Senator knows, if you are going to total up the
medical profession, where they come down on which bill, you don't have
a chance, my friend. They are all on this side of the aisle. They
support the real patients' protection bill. Finding 300,000 doctors who
agree with one thing or the other, congratulations.
I can tell you, when you look at the American Medical Association,
the American Nurses Association, the American Hospital Association,
they are all on this side of the aisle I think that is very clear.
As you go through here, access to doctor-prescribed drugs, if a
doctor says this is the drug you should have, this is what you need to
get well, the health insurance company takes a look at the list and
says, sorry, that drug is not on our list; you can't prescribe it.
Wait a minute. If that is the drug that you need, that is what you
need. That isn't a decision of an insurance company; that is a decision
of a doctor. Doctors go to medical school. Insurance company clerks go
to business school maybe. They shouldn't be making medical decisions.
The choice of provider, point of service, emergency room access--our
bill provides that protection start to finish.
Let me ask, how much time remains?
The PRESIDING OFFICER. The Senator has 4 minutes 10 seconds.
Mr. DURBIN. I would like to address, in the closing time, this whole
question of liability. In America, if you go out and do something
wrong, if you are negligent, guilty of wrongdoing, we have a system of
accountability. If you drink too much at a party, get involved in an
accident and get sued, you are held accountable, right? If your
business does something that it isn't supposed to do, that is illegal
or wrong, you are held accountable, correct? If someone comes to your
home, slips and falls, they may sue you; you will be held accountable
as to whether or not you are negligent. That is part of the system of
accountability in a country of laws.
There are two groups that are above the law in America. The one group
above the law is diplomats. You have heard about it: The people who
come to Washington from a foreign country to work in an embassy get
involved in a traffic accident, catch the first plane back to their
home country, and we can't touch them. Why? Treaties. We have said, for
diplomats, you are above the law. I don't like it. I have seen some
terrible things happen. But that is a fact.
There is another group above the law--the health insurance companies.
We talked earlier about doctors coming up with suggested treatments and
health insurance companies saying no. Under the law today, the only
liability the health insurance company has for making the wrong
decision, not covering you when they are supposed to, is the cost of
the treatment, not the result of failing to treat. What is the
difference? The difference is the cost of the surgery as opposed to the
fact that you might have a permanent disability because you didn't get
the surgery.
So we say that health insurance companies are above the law in
America. They are squealing like stuck pigs because they know that if
this bill passes, they will be brought into court as every other
business in America and held accountable.
I don't want to see a runup in court cases and litigation. That
doesn't solve the problems of a person who needs medical care right
now.
I can tell you this: Once those health insurance companies know that
12 average Americans can sit in a box and listen to a judge and the
attorneys and stand in judgment over their actions, they will think
twice before they make these terrible decisions that deny people the
basic medical care doctors think they deserve.
There has also been the argument made: If you allow us to sue the
health insurance companies, you will allow us to sue the employer who
buys the health insurance plan. Not so. This is a phony argument. This
bill very clearly says that an employer that buys the health insurance
plan and doesn't make the medical decision, doesn't say yes to the
prescription or no to the treatment, is not liable. The bill is
explicit.
Let me read the section from the McCain-Edwards-Kennedy bill:
[This provision] does not authorize any cause of action
against an employer . . . or against an employee of such an
employer . . . acting within the scope of employment . . .
unless there was direct participation of the employer in the
decision of the plan.
When could an employer be brought to court for health insurance
problems? I will give you one case--I think it is obvious--a case where
an employer collects the health insurance premiums from the employee
and doesn't pay them to the health insurance company. The employee and
his family think they are covered. They are not. They go to a hospital.
They say: We belong to XYZ health insurance plan. They say: Your
employer never sent in the money you contributed.
Should they be held liable? You bet. That is an employer guilty of
wrongdoing. But if the health insurance plan
[[Page S6480]]
receives the money for the premiums and makes the wrong medical
decision, the employer is not going to be held accountable.
That is a question that has been raised over and over by the other
side, and it doesn't make any sense at all.
Do you know who can be sued in America? Incidentally, almost
everybody is accountable in court under current law--the Red Cross, the
Humane Society, the United Way, every other charitable foundation but
not your HMO. And when you go to sue because of medical malpractice,
you can sue your doctor, your nurse, your dentist, your hospital, but
not the HMO that decided you weren't going to get the treatment. When
it comes right down to it, every Fortune 500 company, every family-
owned corporation, every small business is subject to lawsuit in
America, subject to accountability, but not your HMO.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. DURBIN. We need to keep in mind, as we consider this bill, that
accountability is part of the system of justice. HMOs should be held
accountable.
I yield the floor.
The PRESIDING OFFICER. Under the previous order, the next 30 minutes
are under the control of the minority party.
The Senator from Tennessee.
Mr. FRIST. Madam President, we continue discussion this afternoon on
the Patients' Bill of Rights. Most of the morning we have spent
discussing the differences between two bills, the only two
comprehensive bills that have been introduced to the Senate. One is the
Kennedy-Edwards-McCain bill introduced by the majority. The other is a
bill introduced by me, the Frist-Breaux-Jeffords bill. Two Patients'
Bills of Rights that address the issue of how to get patient
protections to the patients in order to swing the pendulum away from
having medical decisions made by HMOs and turn that decisionmaking back
to the doctor and the patient and the nurse, that local level where we
know health care decisions are best made.
Several differences have been pointed out. Many of those focus on the
impact on the employer, whether or not the employer can be sued. Under
the Frist-Breaux-Jeffords bill, it is clearly delineated to make sure
that everyone knows whether it is the insurance company or the employer
or the lawyer or the courts that accept that risk. Somebody does have
to have that risk and that liability, and it has to be defined, which
we do.
The problem in the McCain-Edwards-Kennedy bill is the liability is
kind of shifted around a little bit. You can go after the HMOs if they
have wronged or injured a patient. And they need to be held
accountable; we agree with that. But the problem is, you can sue the
HMO, you can sue other agents of the plan. That is really the key
language in there. Who are the agents of the plan?
Last week a physician stood up and said: I am an agent of the plan.
So they introduced a different bill last Thursday to say it can't be
the treating physician. I asked about the referring physician. Can you
now sue the referring physician as an agent of the plan?
Their bill also allows you to sue the employer. Remember, there are
170 million people today--just about everybody listening to me, whether
it is through radio or television or on the floor--who receive their
insurance through their employer, if not Medicare or Medicaid--170
million people.
Their employer is arranging for them to have that insurance. If you
are an employer out there and all of a sudden you can be sued, what are
you going to do? Say your margin is 2 or 3 percent, you are a small
business, you are barely scraping by, and all of a sudden there is a
lawsuit. Lawsuits can be billions of dollars under that plan. All of a
sudden, yesterday you were not subjected to them and today you are.
When that is the case, what are you going to do? Your first reaction
is going to be: How much is it going to cost me? What does it mean to
me? Maybe I should not offer this insurance. Maybe I should give my
employees some money and let them go into the market themselves in
order to avoid that. In the short term, that might be OK. I don't think
it is OK, but it might be OK.
Ultimately, a number of those employees--and it falls most heavily on
the working poor. The premiums go up, and they will not be able to
afford this insurance; they become a part of the uninsured. As the
Senator from Pennsylvania said earlier, once you become part of the
uninsured, with the increased cost and frivolous lawsuits, you can't
afford your insurance anymore; your employer is afraid of being sued.
The premiums go sky high.
As the Senator from Pennsylvania said, if you have no insurance, the
likelihood of getting good health care in the United States is much
less. Therefore, this bill has a huge impact on everybody listening to
this debate today. Everybody is going to be affected. The health care
costs for everybody are going to go up.
Under the McCain-Edwards-Kennedy bill, it is going to go up 45
percent more--the premiums--than it goes up under the Frist-Breaux-
Jeffords bill. Yes, in our bill it goes up because we are giving new
rights that haven't existed and those rights cost money. The money
comes out of the pockets of everybody listening to me right now--
everybody--170 million people. We are talking about employer-sponsored
insurance for 170 million people. It is going to impact everybody
listening.
So when we talk about the cost, it is easy for politicians to show
pictures of families and talk about the individuals; but we have to
talk about the costs because those pictures can be pretty and you can
really personalize it and make it real, but at the end of the day, if
you drive the cost of insurance out of the reach of that family, you
are hurting that family, or that individual. Therefore, you are going
to hear us come back again and again and talk about the uninsured, the
working poor who are going to lose their insurance, about the cost of
premiums which are going to go up significantly.
Everybody's premiums, right now, are already going up. Probably they
will go up 15 percent this year. Whatever you are paying this year, it
will go up another 15 percent regardless of what we do on the floor. We
are saying that under this bill, which may pass 2 weeks from now, 3
weeks from now, a month from now--and I want to pass this bill--your
premiums, instead of going up 15 percent, are going to go up 20 percent
if the McCain bill passes.
Therefore, we are going to again and again say you need to justify
that increase in cost for these new rights. We will argue that you
should have better balance if you are going to drive these premiums up
with frivolous lawsuits--get rid of the lawsuits and have the same
patient protections and have a lower cost. That means a lower cost of
premiums, and it means fewer people going into the ranks of the
uninsured.
That is why balance is critically important in this debate as we go
forward. That is why looking at the rhetoric without looking at what is
in the bill underneath is unacceptable, because if what is written in
that bill ultimately becomes law, that law results in--I am sure it is
going to be translated into increased costs. How much depends on the
interpretation of what is written in the bill.
Can employers be sued or not? I say again and again that they can be
sued. We have heard from the other side of the aisle that under the
Edwards-Kennedy-McCain bill, they cannot be sued. Yet, if you read the
bill, it says they can be sued.
Well, I started talking to the employers about lawsuits. I had the
pleasure of being with a number of middle-sized and small business
people yesterday. They were very clear in their concerns that if we
pass a bill that exposes them to not million-dollar lawsuits but
billion-dollar lawsuits, under the bill on the other side of the aisle,
the Democratic-sponsored bill, there will be open-ended lawsuits,
unpredictable lawsuits, when they are barely scraping by, these small
businesses. And they are saying now their company is going to be
exposed to billions of dollars in lawsuits. And they might just have a
couple of convenience stores. They can't keep offering that insurance
to their employees.
The Republicans are also accused of talking dollars and cost. We do
not do a very good job of translating it down to human faces, and that
is something with which we have to do better. When we talk about
employers, people say: You are just for big business. It is not
[[Page S6481]]
just big business. It is the small mom-and-pop operations, such as
those convenience store operators.
Yesterday, I had an opportunity to meet with Sam Turner, an owner-
operator of Calfee Company in Dalton, GA, with 139 convenience stores.
His words were loud and clear. He is not going to be able to offer the
insurance today if he is exposed to unlimited, unpredictable lawsuits
as the owner of his convenience stores. Paul Braun from Braun Milk
Hauling Company employs 40 to 50 people in a town of about 500. The
same story. Lynn Martins, president and general manager of Seibel's
Family Restaurant in Burtonsville, MD, a second-generation
restaurateur, said, ``If you expose me to unlimited lawsuits, or if you
increase my premiums another 4 or 5 percent, I simply can't afford to
keep offering this health insurance for my employees.''
If it is not offered through your employer, yes, maybe your employee
can go out to an individual market and get some health insurance. But
for the most part, they won't do that. That is why we come back to this
rule of thumb that is pretty accepted. It is accepted by everybody, in
essence, that if you increase health insurance premiums by 1 percent--
it doesn't sounds like much; it might be a hamburger once a month, or
McDonald's--I have forgotten the examples, but if you increase it 1
percent, and when you are talking about 170 million people, what does
that 1 percent in premium translate to? It means 300,000 people will
lose their insurance. They have their insurance one day, and when we
pass a bill that increases it 1 percent, 300,000 people won't have
insurance the next day.
Who are those 300,000 people? Those 300,000 people are the ones who,
when you increase it by 1 percent, are all of a sudden making the
tradeoff between having food that night or having clothes for their
kids. They are the working poor, the people who are barely scraping by,
who, with the help of their employer, voluntarily comes forward--and,
remember, this is all voluntary. This employer-sponsored insurance is
voluntary, and therefore if you raise those prices too high, they are
going to walk away from the table and leave their employees,
unfortunately--in spite of good intentions--to go into the ranks of the
uninsured.
How much time do we have on our side?
The PRESIDING OFFICER. Nineteen minutes, 25 seconds.
Mr. FRIST. I yield whatever time the Senator from Utah desires.
The PRESIDING OFFICER. The Senator from Utah is recognized.
Mr. BENNETT. Madam President, I venture into this debate with a
little hesitancy because I don't have the expertise that the Senator
from Tennessee and others have in this field. But I want to confine my
comments to my experience as an employer.
As those who have listened to me know, I come to the Senate from a
business background and consider myself a businessman rather than a
politician. I have the experience of being an employer dealing with
health care. It is that experience I would like to share with the
Senate today.
I will open by asking unanimous consent that a letter I received
today be printed in the Record following my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
[See exhibit 1.]
Mr. BENNETT. This letter is from Ron Christensen, who is the vice
president of a construction company in a relatively small town in Utah,
and the key points of the letter are those which have been made over
and over again during this debate. That is, Mr. Christensen tells us
that if the Kennedy-McCain bill passes, he will be forced to stop
providing health care for his employees.
A lot of people listen to this threat, and they say businesses are
hard-hearted, businesses are just looking for ways to punish their
employees, that businessmen and businesswomen are always motivated by
greed, and here is an opportunity for them to save money, they will
take the opportunity to save money whenever they get the excuse.
Having run a business, I can assure you that is clearly not true.
When you run a business, you compete for employees, and you do
everything you can to get the best ones to come to work for you. You
create salary packages and benefit packages that are better than those
at the business down the street so that someone will come to work for
you and be loyal to you and help you build your business. You don't
view your employees as people to be exploited. You view your employees
as a major asset. If you don't have that view, frankly, you won't be in
business very long.
So why is this person, who feels this way about his employees and who
in his letter describes an excellent health care plan that he offers to
his employees, saying that if this bill passes, he will withdraw health
benefits and thereby run the risk of losing employees who are so vital
and important to his success?
The reason, of course, is fear of lawsuits. He says:
If this legislation becomes law, the only way to protect my
company from lawsuits will be to drop health care benefits
altogether, and we will do this. I simply cannot afford to
expose our company to the potential liability from health
care lawsuits. Even if employers could be shielded from
liability, more lawsuits against health care plans will
result in higher premiums I pay for health care.
I know how true Mr. Christensen's statement is. It is one thing for
an employer to say, I have a defined amount of money that I have to
spend on health care plans; I am willing to pay that; indeed, I have to
pay that if I am going to attract and hold good employees. It is
another thing to say, I am putting the entire future of the enterprise
at risk by exposing it to lawsuits. I cannot take that risk, so I will
say, even though it is going to jeopardize my business by diminishing
my ability to attract and hold quality employees, I have to do it
because the alternative is so Draconian that I simply cannot escape it.
That is the real world. It is not the world we live in back here in
Washington. That is not the kind of discussion we have here, but it is
the real world, and we should understand that as we make our decisions.
I remember during a similar discussion over lawsuits with respect to
falling stock prices that eventually resulted in the passage of
securities legislation that put out of business some of the striped-
suit law firms, that Ralph Nader appearing before the Senate Banking
Committee kept pressing the point that lawsuits were always good. He
said, Nobody ever settled a lawsuit out of court unless he had
something to hide.
I remember that very clearly because Mr. Nader made that statement in
response to me and some of the comments I was making.
I pointed out to him that while I was the CEO of the company I headed
prior to coming to the Senate, I settled a lawsuit out of court, and I
not only had nothing to hide, I felt strongly I was in the right. So
why did I settle the lawsuit? Quite simply because I had to save the
company.
The legal fees of prosecuting that lawsuit at that point in the
company's history were sufficiently high as to jeopardize the survival
of the firm. So I swallowed hard the issue of whether or not we were in
the right and decided to save the company by settling the suit out of
court without proving the point.
I have been there. I know how a lawsuit can threaten the survival of
a firm.
How significant is this in terms of decreasing health care coverage
for people? A study has been done that says for every 1-percent
increase in premium rates, 300,000 Americans lose their health
coverage. That is an interesting number when you realize the Kennedy-
McCain bill would increase rates, according to the Congressional Budget
Office, by 4.2 percent. Do the math: 300,000 lose their health coverage
every time it goes up 1 percent. You multiply that by 4.2 and you get
1.26 million more uninsured.
I think that is a low figure, because if you take the evidence coming
from the employer whose letter I cited and spread it out over the rest
of the country, we find out that, in addition to those who will lose
their coverage because the premium goes up, there are those who will
lose their coverage regardless of where the premium is simply because
of the fear of the lawsuits.
Some cynics have suggested that maybe that is the reason behind the
push for the Kennedy-McCain bill.
[[Page S6482]]
They want people to lose their coverage so the pool of uninsured
Americans will grow so large that there will then be demand for a
Government health care plan, which is what Senator Kennedy has told us
he prefers all along.
I would not ascribe those kinds of motives to Senator Kennedy. I
think instead he is simply acting out of unfamiliarity with the way
businesses are really run in America.
I want to make it clear that the comments being made by employers
around the country that passage of the Kennedy-McCain bill will result
in the loss of health care benefits for millions of Americans are not
political hyperbole. They are simply statements of fact based on the
experience of men and women who are building businesses, employing
Americans, moving forward to keep the economy growing, but who are
terrified, I think accurately and properly, of the prospect of a wild
increase in the number of lawsuits that might come.
We are told some States have already done this and the lawsuits have
not gone up; so, therefore, that proves we will not have lawsuits on a
national basis. I am not sure we can make that determination and, once
again, the State laws are not exactly comparable to this law, and they
are not subject to the kind of examination that has been given this law
by those who are looking at it through the glasses of realism.
The other thing we hear around here often is: Forget the lawsuit
side, the doctors are for this bill, the American Medical Association
has endorsed this bill. That is true; the American Medical Association
has endorsed the Kennedy-McCain bill and is very active in their
statements in favor of it. Normally, that would be something that would
impress me, but I share with you, Madam President, and the other
Members of the Senate, an experience I had in my office today.
I received a phone call from a doctor in Utah whom I have known for
many years. He said, I am here at the meeting of the American Medical
Association, and they are whipping us all up to call our Senators in
support of the Kennedy-McCain bill. And so I am doing what I have been
asked; I am calling my Senator with respect to the Kennedy-McCain bill
so I can report back to the American Medical Association that I have
done what I was told to do. As long as I have you on the phone, let me
tell you what I really think. I am opposed to the Kennedy-McCain bill.
I think it is a mistake. I much prefer the Frist-Breaux-Jeffords bill.
I think it would work far better for the medical profession in Utah and
the patients I deal with in Utah, and, Senator, I trust you to do the
right thing.
The American Medical Association succeeded in their lobbying efforts
to get a hometown doctor to call me, but they probably were not pleased
with what the hometown doctor said. Based on his experience, based on
his understanding of where things are, he recommends we defeat Kennedy-
McCain and go in the direction of the Frist-Breaux-Jeffords bill.
The fact is, of course, we do not know in advance what will be all of
the consequences of the legislation we pass. The one thing I have
learned around here is that whatever other laws we pass, the one law we
pass over and over is the law of unintended consequences. We do not
know what the unintended consequences will be from either of these
bills, but I have learned as a result of discovering the impact of the
law of unintended consequences that the impression to go slow, the
desire to be careful, the desire to move in incremental steps rather
than a sweeping bold approach that we love to call for when we are
running for reelection, is the right desire.
That is another reason why we should try the Frist-Breaux-Jeffords
bill, which goes further than many of my colleagues on this side of the
aisle would like to go toward a Patients' Bill of Rights. Let's see how
it works before we take the next step, which could have catastrophic
consequences.
I say catastrophic consequences because I am talking about the
cancellation of health care for many Americans. I am talking about the
rising disillusionment with the whole activity of what we do with
respect to health care on the part of many Americans and then
ultimately a demagogic call for the Government to take everything over,
and we are back into the disaster, the train wreck we went through in
the 103d Congress when President Clinton tried to implement that kind
of solution. It tied up this body for months. It stopped everything. It
produced maximum ill will all the way around. We stepped back from
that. We took the approach I am talking about, which is to say let's do
it a step at a time, let's do it with something we can get our arms
around where the unintended consequences will be less radical and less
sweeping. We passed the Kassebaum-Kennedy bill, which I was happy to
cosponsor and support, and then we began to see some of the reforms
that we could have had earlier if we had stayed away from the extremes
proposed to us.
We see reforms in the Patients' Bill of Rights area, reforms that can
work. We see things that will give us experience, that will hold down
the severity of the unintended consequences, if we go in the direction
of the Frist-Breaux-Jeffords bill, but I fear if we go in the other
direction we will only see the consequence that is predicted in this
letter that will follow my remarks, where employer after employer will
say, Sorry, we can't expose ourselves to this liability. And in the
name of trying to help health care, we may end up destroying it
altogether. That is, in my view, a serious mistake.
Exhibit 1
Christensen & Griffith,
Construction Company,
Tooele, UT, June 19, 2001.
Senator Robert Bennett,
Dirksen Senate Office Building,
Washington DC,
Dear Senator Bennett: I suspect I am ``preaching to the
choir'' by sending this letter to you, but I want you to know
I am strongly opposed to the Patients' Bill of Rights bill
sponsored by Sens. Kennedy and McCain under consideration by
the Senate. There are better ways to correct the few problems
that get so much attention.
My company prides itself on providing quality health care
for our valued employees and their families. We provide a
comprehensive plan which includes dental and have never had a
complaint that could not be corrected. We are partially self
insured and pay the total premium. No cost to the employee.
Why mess with a good thing? The present system has kept costs
in check and affordable. The politically motivated Kennedy-
McCain bill will only drive up the cost of health insurance
and encourage employers to pass more responsibility for
health care to the employee.
Unfortunately, the Kennedy-McCain bill threatens my ability
to provide health care for my employees. However well-
intentioned, this bill would expose employers like me to
lawsuits between employees and the health care plan my
company provides. Despite claims that this bill has a lawsuit
``exemption'' for employers, this protection is murky, at
best, and does not adequately protect employers from
lawsuits. In fact my company could be sued for simply having
selected a health care plan for employees.
If this legislation becomes law, the only way to protect my
company from lawsuits will be to drop health care benefits
altogether, and we will do this. I simply cannot afford to
expose our company to the potential liability from health
care lawsuits. Even if employers could be shielded from
liability, more lawsuits against health care plans will
result in higher premiums I pay for health care. A survey of
construction companies last year found that 77% were faced
with increased health insurance premiums, even without the
potential added cost of this legislation. In order to stay in
business more and more of the cost will have to be passed on
to the employee. As an alternative, employees should be given
access to a quick, independent external review process that
would give patients the right to take their disputes to an
independent panel for a quick decision.
Employers are not bad people exploiting their employees as
the unions would have us believe. Were it not for employers
with a profit motive our economic system would not work.
Please oppose this Kennedy-McCain expansion of liability as
you consider managed care reform legislation. Don't destroy a
system that has served us well and made health care
affordable. Thank you for your consideration of my views.
Yours Truly,
R.I. Christensen,
Vice President.
The PRESIDING OFFICER (Mr. Nelson of Florida). The Senator from New
Jersey.
Mr. TORRICELLI. Mr. President, when this debate began yesterday on
reform of the managed care system in America by establishing a
Patients' Bill of Rights, it did so under very uncertain and
unfortunate circumstances. There was objection to proceeding to the
bill, causing delay and unnecessary
[[Page S6483]]
confusion with the American people as to whether we intended to deal
with this problem. We can all be pleased the Republican minority now
has withdrawn its objections. We can now, tomorrow, begin the serious
work of actually debating a Patients' Bill of Rights.
This is a moment that has been 5 years in the making. Before the
Senate is honest, compromised, and reasonable legislation to establish
a Patients' Bill of Rights. It is a question that involves our most
basic responsibilities to the American people to assure their health
and welfare.
We all recognize how we arrived at this moment. The Senate may be
late, but it is right in dealing with this question.
The extraordinary increase in the cost of health care in the 1970s
and 1980s radically increased the ranks of the uninsured in America. By
establishing a predetermined list of medical providers at established
costs with recognized services, it was everybody's hope that these
managed care plans could strike a balance between the rights of
consumers and providers with reasonably agreed upon costs.
It was a sound concept, but practice has established that the power
disproportionately came to rest with insurance companies and the
doctors and that patients lost control over their professional rights
or the needs of their families.
During these years that the Federal Government has been unable to
deal with this crisis, the ranks of the uninsured have continued to
rise to 45 million people despite managed care. The growth of health
care costs rose less slowly but has continued to rise, and a feeling of
paralysis began to grip the country as doctors no longer believed they
could make medical decisions and families could no longer get access to
the health care providers that had been a part of the American
tradition of family medical practice.
While the Federal Government was paralyzed, interestingly, States
began to fashion their own responses. In 1997, my own State of New
Jersey enacted the Health Care Quality Act--in some respects a model
for what the Federal Government is challenged to accomplish. That law
in New Jersey prohibited gag clauses. Doctors had the right, the
recognized responsibility, to talk to their patients about medical
options. An independent health care appeals program was established so,
when care was denied by the insurance company, people had someone to go
to, to appeal the judgment. There was a requirement that insurers
provide clear information on their services and their limitations.
Interestingly, in 1997 when that act was passed by the State
legislature in New Jersey, it was by a Republican legislature and
signed by a Republican Governor, something that should be a challenge
to Members of the Senate in the minority party today. But this Senate
is now challenged to act because, while that State legislation was
properly designed, it was insufficient, not only insufficient in that
it was not national in scope but because for many people in my State
and across the country in other States, people with similar experiences
were exempted by ERISA laws.
Mr. President, 124 million Americans, 83 percent of those who get
their health care from their employer, are not covered by State laws
because of this exemption. Fifty percent of the people in the State of
New Jersey enrolled in HMOs are exempted from the very State
protections that I just outlined and that my State government wanted
and intended to give to our people because of this exemption under the
Employee Retirement Security Act of 1974.
Under this bill, HMOs claimed immunity from State regulations even if
there was negligent behavior. It may or may not have ever been the
intention of this Congress to exempt managed care in health care, but
whether that was our intention or not, that is how the law is
operating. So despite the best actions of State government, millions of
Americans--124 million Americans--have no protection from the abuses of
the managed care system. That is why the responsibility now rests here
and why this Senate is the only hope of the American people to get
relief from this abuse of power.
The American people understand what needs to happen. Only people in
this institution seem to doubt it. A recent survey in my own State of
New Jersey by Rutgers University found that one in four people in my
State are completely dissatisfied with their health care plan, despite
the fact they are paying for it and are enrolled in it and cannot get
out of it because their employers have contracted for it. Last October
a State report found that patients in my State were not only
dissatisfied, but they are more dissatisfied than they were a year ago.
The situation is deteriorating.
The legislation now before this Senate, offered by Senators Kennedy,
Edwards, and McCain, is an answer. It is not simply bipartisan. That
understates what has been achieved. But 500 organizations of patients
and doctors stand behind this legislation to get patient protection to
all Americans in HMOs. The confrontation that went on for decades
between patients' rights advocates and doctors has not only ended but
they have come together in a broad national coalition for this
legislation. We have not only achieved what once seemed unlikely, the
bill represents what once seemed impossible. This is achieved because
specific rights would now be guaranteed to the American people.
To many Americans whose children suffer with diseases, whose lives
are threatened, this Patients' Bill of Rights, to them, in their
suffering or their financial distress, is just as important as the
original document which bears the title a ``Bill of Rights.'' The title
is borrowed for this health care emergency because to them this has
every bit as much significance.
What are these rights? One is the right to get to a specialist. Under
current law in managed care, you can take a family member to your
family doctor, but the cancer or the heart problem, the specialized
disease or ailment that may plague you and threaten your life, is
beyond the capacity of that family doctor. That is not the exception;
that is often the rule. With this bill, you will have the right by law
to get to a specialist who can save your life.
No. 2 is the right to get to an emergency room. In a nation in which
we travel the country every day all across our States, all across our
Nation, what kind of system is it, if you have health care insurance
and you should be in a car accident or have an illness traveling
somewhere in your State or across America and the local emergency room
is not in your health care plan? Under this bill, that emergency room
will give you coverage, whether they are in the plan or not, because
you are there and that is where your illness or your accident happens
to be.
No. 3 is the right of women to use an OB/GYN as their primary health
care provider. Millions of women have made the medical decision to use
their OB/GYN as their principal health care provider. It makes no sense
that they have to first go to a family doctor, a general practitioner,
for a reference. This establishes that right.
No. 4, as with every other patient, the right of a child to get to a
specialist should never be impaired. A child should be able to get to a
pediatric oncologist or heart specialist as a matter of right,
directly, without delay, without question, if that is the only person
who can deal with their illness and that is established.
No. 5, it is unconscionable that, by contract, any doctor should be
restricted from discussing with any patient their health care options--
the technology, the specialist, the choices that the genius of American
technology in medicine has made available. But that is not a
theoretical problem, it is something that doctors are facing in America
every day, a contractual wall placed between a doctor's knowledge and a
patient's need. This bill tears down that wall. No doctor in any
managed care plan will ever be told again: In spite of what you know,
in spite of what you think is in your patient's best interest, you
cannot tell them the choices available. Now they will know as a matter
of right.
No. 6 is the right to a review. If a doctor is prescribing a test or
a procedure and believes it is vital to a patient and that is denied,
that manager of a health care plan, that businessman, is not the last
word. There is a right of appeal to a health care specialist,
independently placed to oversee the managed care plan, so not only is a
doctor making the recommendation but a doctor is the final, independent
word.
[[Page S6484]]
Finally, the right of accountability. I once heard Bill Clinton say
there were only two classes of people in this country by right who are
immune from accountability by the legal procedures: Foreign diplomats
by treaty and HMO bureaucrats. One of those will be taken away by this
bill.
Can you imagine what an American automobile would be like if auto
companies did not have the threat of lawsuits if their cars were not
safe? We would still be manufacturing clothing in America that was
flammable. We might still be living in houses that had carcinogens in
them. I guarantee, our cars, our trains, our airplanes would not be as
safe. The threat of liability, the knowledge that the courts will hold
a company accountable if they do not do whatever is required to be
safe, is a great protection for the American people. We have extended
it to every other industry in America except to managed health care
plans. This bill will change that. There will be access to court. There
will be damages.
There will be an expense if managed care health care plans are not
ensuring that the right decisions are made, that the law is followed
and people are as safe as possible. It is the right judgment.
There are those who are going to come to this floor in the coming
days and argue: Oh, that may all be true, that may all be right, but if
you give these rights to the American people, those 124 million
Americans in managed care who are not getting these rights, the costs
will rise so high that the number of uninsured will grow and the
problem will become worse and not better.
It would be a sound argument but for the facts. The CBO has estimated
that if this legislation is put in place, the average cost per employee
will be $1 per month. That is a lot of protection for millions of
Americans at a very modest cost. The CBO continues that, over 10 years,
it is estimated premiums would rise by 4.2 percent. That is a lot of
protection for a lot of years for very little cost.
But what of the argument that even these modest costs would throw
more people into the ranks of the uninsured? The experience has been
just the opposite.
In 2000, when health insurance premiums increased by 10 percent, more
than twice the amount estimated would happen under this bill, the
number of uninsured not only didn't rise but the number of uninsured
dropped.
There is no reason to believe--and the empirical evidence suggests
overwhelmingly--that we will not cause a rise in the uninsured. We will
simply cause better insurance by passing this bill.
This is good legislation. This goes to our most fundamental
responsibility to the American people. If this Congress and if this
Senate does nothing else in this session, if nothing else is
accomplished, we can reach the lives of millions of Americans who live
in fear every day that during the night a child will get ill, a parent
will contract a disease, or someone in a family will suffer, and in
spite of the fact that family members get up every morning, work every
day and pay their health care premiums, when they need their insurance
it will not be there for them.
It is not a theoretical fear; it is real. We can do something about
it. It is reflected in this bill. If we are ever going to stand with
the American people, stand with them now. If we are ever going to do
something to change their lives, do it with this bill.
I am proud to be associated with it. I am more than a little proud
that the first legislation brought to this floor by a new Democratic
majority in the Senate and by our majority leader, Tom Daschle, is a
Patients' Bill of Rights. That speaks volumes about the Democratic
caucus in this Senate. It says everything you need to know about Tom
Daschle, and it says a lot about why there is still a great chance to
be proud of this Senate and this session of this Congress.
I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Ms. STABENOW. Thank you, Mr. President.
First, I want to thank my colleague, the senior Senator from New
Jersey, for his passionate commitment to affordable access to health
care and patients and families, and I appreciate being on the floor
with him today. We appreciate his leadership.
I come to the floor again to speak about this critical issue of
passing a Patients' Bill of Rights for the families of our country. One
of the reasons that I came to the Senate in January was because of this
issue and what it means to the families I represent.
The very first opportunity and honor that I had to speak on the floor
of the Senate was to speak about the importance of passing a Patients'
Bill of Rights. I am very pleased and thankful and grateful to our new
majority leader for his understanding of the priority of this
legislation and the fact that he would indicate that under his
leadership the first bill to come to this floor would be the bill to
guarantee that those who pay for insurance, who have health insurance,
and the businesses that pay for insurance for their employees will know
that, in fact, care will be given when there is an illness or an
emergency.
Yesterday, I spoke about young Jessica and her situation as a young
person under an HMO. Today, I want to share another story.
This comes from a letter that I received as a House Member 2 years
ago. I shared it on the House floor during the debate at that time.
This came from Susan and Sam Yamin. It was a very important letter
about the tragedy that befell their family and their fight with an HMO
to get emergency care.
Sam Yamin owned his own business. He worked hard. He owned a tree-
trimming business. He was working on the job every day to support his
family. He and Susan were working hard. One day on the job he had an
accident with a chain saw that caused him to fall back and cut his leg
down to the bone. This is in Birmingham, MI, a business owner who had
an accident. He was rushed to the nearest emergency room where he was
prepared immediately for surgery to repair the nerve damage.
The doctors took him in, had him ready, and prepared to have surgery.
They called the HMO which said: He is at the wrong emergency room. You
can't proceed to save the nerve in this man's leg. You have to tell
this man that he has to go across town in metro Detroit to another
emergency room in order to be able to be served.
With much distress, as you can imagine, his wife, Susan, packed him
up, and drove him over to another emergency room where he waited, on a
gurney, in the emergency room, for 9 hours. He didn't see a doctor
until he finally literally tore a pay phone off the wall; he was in
such pain; and he was crying out for help.
His ordeal continued when orthopedics began making decisions based on
the HMO point system for the approved hospital doctors. If a patient
has an unsuccessful operation or an expensive procedure, the doctor is
given 5 to 10 points under this system. But if the doctor is able to
provide a low-cost, quick fix, the point range is 0 to 4. They receive
compensation based on how low the points are in this process of looking
at payment.
Unfortunately, not only was he trapped by having to move to another
emergency room, but this point system which rewards the low-cost fix
put him in a situation where he didn't get surgery. He didn't have
surgeons who came to his rescue to fix the nerve in his leg. They just
simply sewed up the leg. Now Sam Yamin has permanent nerve damage that
is spreading up his spine. He lost his business. His health care costs
have escalated and have become a serious burden to his family. After
many appeals, the HMO finally agreed to refer Sam to what they
considered to be an adequate specialist, a podiatrist, a foot doctor. I
certainly respect podiatrists, but that is not what this gentleman
needs for the disability and the permanent nerve damage in his leg.
Finally, even when they made a referral, it was not to the
appropriate specialist.
Sam Yamin is one example of somebody who worked hard, had his own
business, cared for his family, played by the rules, and had insurance.
He thought his family was covered. He goes to the emergency room, and
he is told that he cannot get the help that he needs.
That is what this is about. That is what this Patients' Bill of
Rights is about. It is about saying to those families who have health
insurance for
[[Page S6485]]
their family members that if you are in an emergency, you can go to the
nearest emergency room and get care. If you need a specialist, you can
have the right to a specialist. If you need a test or a treatment, you
can have that, and the doctor or the nurse can make the medical
decision and not be overruled because of nonmedical reasons because it
is just too expensive to give you the specialist that you need or the
test or the procedure.
We really have a choice in front of us this week and next week as we
debate the Patients' Bill of Rights. It is time to choose. Are we going
to stand up for Susan and Sam Yamin and their family in Birmingham, MI?
Are we going to stand up for the doctors and the nurses and the
dentists and the therapists and all those who come into the health care
profession to be able to treat patients and give them the care they
need? Are we going to stand up for the people who pay the bills as
consumers of health insurance? Or are we going to side with the HMOs
and the insurance companies that have created this problem?
That is the choice. To me, it is a simple choice. We know there are
folks in the HMO business and insurance companies that make good
decisions. There are HMOs in Michigan that do a good job.
But we also have situations where the wrong decisions are made and
people have been hurt. In the end, when the Yamins come to me and say:
Why is it that the only part of the health care system that is not held
accountable for what they do and the decisions they make are HMOs? I
cannot answer that. I cannot answer why the only two groups of people
in the United States of America that are not held accountable--cannot
legally be held accountable for their decisions--are foreign diplomats
and HMOs. I cannot answer the reason why that makes any sense because I
believe it does not.
The Yamins are asking me to fight on their behalf. The damage is
already done. Mr. Yamin has lost his business. He has lost functioning
in his leg. The mounting medical bills for their family will not be
reversed. But they have asked me to fight to make sure this does not
happen to another family.
I urge my colleagues to join in a bipartisan bill before this body. A
lot of hard work has gone on. There have been a lot of changes in the
last 5 years since this issue was first brought up. We have an
opportunity to pass something meaningful that will make a difference in
the lives of our families. I urge we do so.
I yield the floor, Mr. President, and suggest the absence of a
quorum.
The PRESIDING OFFICER (Mr. Jeffords). The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mrs. HUTCHISON. Mr. President, I ask unanimous consent the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. HUTCHISON. Mr. President, I want to address the issue today of
patient protection legislation that is now before the Senate. I would
like to thank so many of my colleagues who have led the effort to enact
sensible patient protection legislation that will protect patients
more, give patients more rights, and make sure we keep the costs down
so that we will not decrease the number of insured in our country but,
in fact, will increase the number of insured people. We would like a
goal of every American to have quality health coverage. To do that, we
must keep costs down as well as make sure that the quality part of the
commitment is kept.
Senator Frist, Senator Breaux, and Senator Jeffords have what I think
is the best bill. Of all of the alternatives, I think there are parts
of each that are similar, and I think all the three major bills will
certainly be able to come together. But I think the Frist-Breaux-
Jeffords approach is the one that makes the most sense and addresses
the issues that are of most concern.
Senator Frist, the Senator from Tennessee, is also the only medical
doctor in the Senate. Of all people, he would know the danger of
turning over patient care to accountants and an insurance company. He
also knows the danger of turning patient care over to trial lawyers
whose first interest is not the well-being of the patient.
That is why I think his bill is the one that takes the balanced
approach of giving more rights and addressing the major concern of
quality patient care but also making sure that we do not open the
courts to frivolous lawsuits that would cause the cost of health care
to increase exponentially.
We all know that quality health care in the United States is
unparalleled. There is no argument from anywhere regarding that fact.
The question is, How do we maintain this level of quality while
expanding it to as many Americans as possible? This is a complicated
question, but there is a deceptively simple answer: Cost.
When you review the statistics on the uninsured, it becomes very
clear. Only 18 percent of the uninsured come from families who have no
connection to a workforce. The Kaiser Commission found that 82 percent
of the uninsured come from working families. In fact, 71 percent of the
uninsured come from families with one or more full-time workers.
According to a study done by the Center for Studying Health System
Change, 20 percent of all uninsured people are offered health insurance
by their employer, or a family member has an employer who offers health
insurance, and they could get coverage for his or her family, and they
choose not to enroll in the plan.
The most cited reason for not enrolling in an offered plan is cost.
The costs are a double-edged sword. They are of concern to the patient
and the employer who would provide insurance. High costs have caused
people to choose to be uninsured in return for more money in their
paycheck, feeling that they need that money for other priorities higher
than health care coverage. It also is the stated cause by employers
that say they cannot offer health insurance to their employees. That is
why it is essential that any bill we pass not increase costs either for
the patient or for the employer.
If health costs continue to climb, the potential results could be
alarming, as evidenced by a recent series of nationwide polls of
employers. In each one, an overwhelming majority of employers stated
unequivocally they would have to pass on any new cost to their
employees, whether by raising the employees' premium or out-of-pocket
costs or by reducing benefits or eliminating coverage of certain
services.
As the American economy begins to cool, businesses are beginning to
tighten their belts. We are seeing the unemployment rolls go up. This
could take a bigger toll on the rolls of the Nation's uninsured. We
cannot fool ourselves that a minor increase would make no difference to
businesses, especially small businesses with tight profit margins.
Indeed, it would not take much at all for small businesses to drop
coverage of their employees.
According to a study done by the Employee Benefits Research
Institute, a 5-percent increase in premiums would cause 5 percent of
small businesses to drop coverage, and a 10-percent increase would
cause 14 percent to drop coverage.
There is also some good news in these figures, if we can just address
them; that is, this would also work in reverse, with decreases in rates
creating more coverage. In fact, just a 10-percent decrease in rates
would make 43 percent of small businesses more likely to offer
coverage.
We must keep these consequences in mind. We must also remember the
consequences of our own actions in another way. Remember the health
care debate that we had less than 10 years ago. I doubt that my
colleagues across the aisle want to relive the consequences of trying
to force upon the American people a nationalized health care system in
our fiercely independent, democratic Nation.
If Americans are currently unhappy with decisions being made by their
HMO rather than their doctor, then just as in 1993, they are not going
to want decisions to be made by a bureaucracy in Washington, DC. Yet
today we are considering legislation that would impose numerous new
Federal mandates and regulations. I know if we don't learn from the
mistakes of the past, we are doomed to repeat them. I didn't think we
would be doomed so soon.
We all have the same goals: to ensure high-quality health care is not
compromised; that more Americans have access to health care; and that
all patients have basic rights and guarantees concerning their health
care.
[[Page S6486]]
This is about people, not lawyers. We understand that people care
more about getting health care, not about filing a good lawsuit. We
understand patients want the care. They are not interested in filing a
lawsuit later, when the injury may be irreparable. We have the support
of the American people on this issue. A recent survey by Market
Strategies showed that 83 percent of Americans say lawsuits with few
restrictions would make it even harder for the working poor to afford
coverage.
We should also listen to States that have already introduced some
form of a Patients' Bill of Rights, such as my home State of Texas. One
size does not work on humans, and it should not be applied to all
States, either. Yet one of the bills that is before us, the Kennedy-
McCain bill, would make all States the same. It would penalize States
such as Texas that have taken steps toward a Patients' Bill of Rights
and where, in fact, it is working.
When Texas enacted the broad set of managed care reforms in 1997,
they addressed an issue that we are attempting to address in Congress.
Texas successfully tackled even the sticky issue of appeals and
lawsuits, one of the greatest hurdles in the debate on the bill today.
In Texas, if an HMO denies a claim, patients have the right to
internal and external appeals. Once you have exhausted your
administrative remedies and only then can you contemplate suing your
HMO in court. The external review section was struck down by a Federal
court as the State tried to apply these provisions to federally
regulated HMOs. As you can imagine, that didn't stop Texas. They
revived their external review section of the law, this time making it
voluntary. Despite the ability to decline to participate, HMOs and
other health plans are participating, and they are agreeing to be bound
by the external review process.
This is how the external review process works in Texas. We let an
external review board of professionals, who are not associated with the
HMO, decide who is right concerning the patient's care. If the HMO
denies coverage for a certain procedure, the patient and the doctor
disagree with their decision, then the patient can make an internal
appeal within the HMO first.
If after the HMO reviews the appeal they still refuse to change their
stance, then the patient can appeal again to an outside panel of
experts not associated with the HMO in any way. It works.
In fact, of more than 300 appeals heard under the external review
system, fewer than 10 lawsuits has emerged. At the same time, the
system has proved to be fair. The conclusions of the appeals are
virtually 50/50 in favor of both the patients and the health plans.
I know all of us want the best health care for America. But it is a
lot easier to jump on a rhetorical or political bandwagon, sometimes,
than to create good legislation. Rather than rushing a bill through
Congress--and this bill has not even had a committee markup--it is
important that we examine this bill carefully. We are going to have to
do that in this Chamber because the committee process was bypassed.
It is important that we ensure we are not creating more problems than
we are trying to solve. We must remember the rule of unintended
consequences, that sometimes the end results are vastly different from
what we expect or intend.
We can't afford to take a chance with unintended consequences with
our health care system. It is too basic to too many people in this
country for us to make a mistake and go overboard and find that we have
allowed so many lawsuits with not very many limits to create a cost
increase in our health care system that would cause people to lose
coverage or to start relying on lawsuits instead of talking to their
doctors and getting an outside appeal to get the care on a timely
basis.
A Patients' Bill of Rights is important. We must make sure that we
work together to get this high quality.
Let me describe some of the reasons I am supporting the Frist-Breaux-
Jeffords plan. It gives access to emergency rooms without any question
and without any delay. In fact, all of the bills agree on these basic
issues. I believe if we have a bill that has direct access to an
emergency room, direct access, without going through a process, to get
to an OB/GYN specialist or a pediatrician or specialty care by a
specialist in an area, when that is called for in a diagnosis, then I
think that will be a good Patients' Bill of Rights.
If we have a rapid, binding internal and external review process on
denials of claims, that would be a good Patients' Bill of Rights.
If we have access to Federal courts, after going through the external
review process, with reasonable limitations on noneconomic damages,
that will be a good Patients' Bill of Rights.
No one argues that we should have unlimited economic damages if a
person is found not to have gotten the proper care. That person needs
to have the right to that care that was found to be denied in error.
It is the noneconomic damages that have caused so much rise in cost
throughout our health care system, that has caused premiums to go up,
hospital costs to go up, equipment costs to go up, doctor visits to go
up. We can come to a reasonable compromise that gives people rights to
sue and rights to access but doesn't take the cap off responsibility so
that the patient care is secondary to the big court reward that you
might get even if it is unwarranted.
That hurts everybody in the system because the cost goes up. And who
is hurt the most? It is the person who is barely able to afford that
insurance coverage but has access to it and might drop it or choose to
go uninsured because the costs become unbearable.
This has a ripple effect throughout the health care system. When a
person goes uninsured and then has a terrible accident, then the costs
must be shared by all taxpayers, by all the people in and out of the
system. It is in everyone's best interest that we have quality,
affordable health care coverage so people will have their needs met in
a responsible way.
That is what I think the Frist-Breaux-Jeffords plan will do. I hope
very much that my colleagues will make sure that we do the responsible
thing because it would be a bigger harm to our country to do the wrong
thing, to take a chance.
I was here during the debate in early 1994 on the health care plan
that was put forward, which would have basically nationalized our
health care system. After 2 days of debate on that bill, it was pulled
down because people began to see that putting our health care system
into a government system was going to limit quality. It was going to
limit the access that people have to the great quality health care that
we have come to enjoy in our country.
When we talk about quality health care, we are talking about new
innovations in prescription drugs. We are talking about being able to
treat something with prescription drugs today that 10 years ago would
have been a huge operation and a 2-week stay in the hospital. We have
been in the forefront of the innovation with the newest technologies
and the newest prescription drugs that would allow America to have the
very best health care coverage of any country in the world. We don't
want to lose that. Our freedom to choose has been a big part of the
success of that system.
But we are in danger of losing it if we turn our system over to
people who are not interested in patient welfare. It could be the
accountant in the insurance company office who makes a data entry error
and causes the person to lose coverage; or it can be the trial lawyer
who is more interested in earning a big fee than in getting the patient
the coverage they need.
It is my intention to offer an amendment to this bill that would also
make sure that a person can't have coverage dropped without notice.
Today, a person can walk into a pharmacy and order a prescription under
their insurance policy and be told by the pharmacy that a family member
has been dropped from coverage, unbeknownst to the person who walked in
the door. What kind of system is it that someone can be told they don't
have insurance and, therefore, they can't get their prescription or
they must pay for it in full even though they have coverage, and then
when the person calls the next week and says, excuse me, but I was told
this week, after 6 years of coverage by the same insurance company,
that a member of my family was dropped from coverage, and the person
says, oh, there was an error made in a data entry and it was a mistake
that
[[Page S6487]]
your wife was dropped from coverage. That has happened with one of the
better insurance companies in this country.
I am going to offer an amendment that would keep an insurance company
from dropping without notification someone who has been approved for
coverage, so if there is a mistake, the person will have the ability to
correct the mistake before suffering the embarrassment of being told
that they don't have coverage. I just wonder what would have happened
if the person had showed up in the emergency room and was told they
didn't have coverage anymore, unbeknownst to them, because of a data
entry error that was inadvertently made by a faceless bureaucrat in an
insurance company system.
So I do think it is important that we have a Patients' Bill of
Rights, and I think it is important that we proceed with the utmost
caution to make sure that everything we are doing is going to
contribute to the problem's solution and not make it worse. That is the
choice that we have today, and the reason that I am supporting the bill
created by the only physician in the Senate, Senator Bill Frist, who
has seen firsthand the dangers of an insurance company making a bad
decision in an HMO and the dangers of putting patient care in the hands
of trial lawyers.
What we want is a Patients' Bill of Rights that puts patient care
first and foremost and makes sure that we don't increase costs with
unintended consequences. That is the issue that we will be debating for
the next 2 weeks. I hope the people of America will take the
opportunity to learn the differences between the two major bills that
will be before us today and the rest of this week, and probably next
week, because a person's insurance coverage and quality of care will be
greatly affected by what we do in the Senate in the next 2 weeks.
I urge my colleagues to take the responsible approach to make sure
that we keep the high level of quality care that we have been able to
enjoy in our country--the best in the world--and let's not take a
chance on lowering the quality while we give more people the ability to
have guaranteed rights, and that our eye is on more access for more
people in our country, not less.
I yield the floor.
The PRESIDING OFFICER. The Senator from Maryland is recognized.
Ms. MIKULSKI. Mr. President, I rise in very strong support of the
Bipartisan Patient Protection Act of 2001, which has been sponsored by
John McCain, John Edwards, and Ted Kennedy.
I am a proud sponsor of this legislation because it meets my
principles for managed care reform and, yet, at the same time, it meets
the day-to-day needs of my constituents in Maryland and the American
people. It is also supported by virtually every health care consumer
and provider group.
Mr. President, the time to act is now--not weeks from now, not months
from now, not years from now. We have been considering what is the best
approach to have a Patients' Bill of Rights to protect people from the
arbitrary, capricious, and often dangerous decisions of insurance
companies. We have been considering that now for more than 4 years.
Now, nobody said during the debate of the tax bill that we need more
time to analyze these amendments. Yet we have irrevocably made a fiscal
choice that I think will ultimately shackle us in what we can do for
the American people. We did that pretty quickly. They were all set to
kind of ram a missile defense shield down our throats, where we were
going to spend $80 billion to come up with a ``techno-gizmo'' to shoot
a bullet with a bullet that might or might not come to us. Yet after 4
years, we need more time to look at the fine print on the Patients'
Bill of Rights.
I say the time has come. We have to have this done by the Fourth of
July, and I am ready to declare my declaration of independence and
really move this bill forward.
In the United States of America, we are geniuses at inventing the
third way. We don't have a socialist system. We don't have a comrade
system. I agree, we don't want comrades and socialism. Also, we did
believe people needed a safety net. We didn't want to leave them to the
vagaries of who gets health care--where you could have the rich versus
those with no health care at all--kind of a Darwinian, predatory, free-
market approach; but at the same time we invented the third way--
private insurance that people could buy to protect themselves. We in
the United States wanted to give help to those who practice self-help.
We invented Medicare and Medicaid for those populations that were
either too poor or too at risk for the private market.
So now here we are with the third way--private insurance. But some
years ago, in a place called Jackson Hole, where the insurance
companies met with lots of tax subsidies to support them at that
meeting, they came up with managed care. Managed care is nothing but a
euphemism for a moat around medical care. That is what managed care
is--a moat around medical care. Jackson Hole created a black hole for
patients to be able to go in and get the medical care they need.
So I think the time to act is now. I hope that we will follow some
very basic principles. Mr. President, I think we need to fight for
patients, not for profits. Medical decisions should be made in the
examining room by the doctor, not in the board room by the insurance
executive. Patients should have the right to receive the treatment that
is medically necessary by the most appropriate provider using the best
practices.
Patients need continuity of care. Just because an employer changes
insurance companies, you should not have to change your doctor,
particularly if you are pregnant or a family member is terminally ill
or if you are in a rehab center.
Patients should be able to hold their insurance companies accountable
for medical decisions in the same way they hold their doctors
accountable for medical decisions, and that is by having the
opportunity for redress in court. The McCain-Edwards-Kennedy bill meets
those principles.
Let me give an example of continuity of care. It is absolutely
crucial. I worry about people who are undergoing care for serious and
complex medical conditions. Often an employer will change insurance
companies, but the employee should not be penalized. Again, if a woman
is pregnant, she should have continuity of care. If a family has a
child who has leukemia, while they are fighting for their child's life,
they should not be fighting with their insurance company to keep their
doctor.
If a family member has a stroke and is getting rehab, certainly they
should be able to have continuity in that facility with that rehab team
for 90 days or until discharge from the facility.
These are the kinds of issues we are talking about in our legislation
and what we are fighting for.
I came to the Senate to save lives, to save jobs, and to save
communities. This is what we want to do: save lives and make sure we
stop the horror stories about Americans who are denied medically
necessary treatment.
Mr. President, 31,000 people every year are forced to change doctors;
35,000 people a year have needed care delayed. Thousands and thousands
every day have to wait for permission to get their bills paid.
Let me tell you about Jackie from Bethesda, MD. She is a go-getter,
as many Marylanders are. She was hiking in the Shenandoah Mountains,
lost her footing, and fell down a 40-foot cliff. Thank God there were
people there to help her. She was airlifted to a hospital. Guess what.
The HMO refused to pay her $10,000 hospital bill because she did not
get prior authorization.
Then there is the story of a little boy who found his diabetic dad
lying unconscious after days and days of trying to get an HMO referral
to a specialist. This little genius called 911, but, again, though the
father was rescued, they then had to fight with the insurance company
while they were fighting to bring him back to health so he could go
back to work.
Fight, fight, fight always with the insurance company. I am joining
with Senator Jack Reed on an ombudsman bill that supports programs like
the one in Maryland where we actually pay people to deal with the
entanglements of denial and dismissal of benefits to which they think
they are entitled.
The McCain-Edwards-Kennedy bill is terrific. It guarantees access to
emergency care. It provides timely access to specialists.
[[Page S6488]]
In this bill, if you have a child, you have access to a pediatrician.
A woman has direct access to an OB/GYN. We guarantee continuity of
care, and we stop that dreaded practice of drive-by mastectomies. That
is why we like the McCain-Edwards-Kennedy bill.
We know Dr. Frist and Senator John Breaux and even yourself, Mr.
President, look at it another way, and we respect that, but we think
that bill has too many loopholes. It leaves out too many protections.
There is no protection for a health care provider that advocates on
behalf of a patient. It does not prohibit coercive financial incentives
for physicians to deliver health care. But I do not want to talk about
their bill. I want to talk about the McCain-Edwards-Kennedy bill. I
want to talk about getting a bill now. I am talking about a bill that
removes the moat around medicine. I am talking about putting patients
before profits.
I conclude by saying we are the discovery nation. In the 20th
century, we made more scientific and medical breakthroughs than at any
other time in world history, and the breakthroughs came from here. They
came because the American people funded the NIH and then the private
sector and our universities value added to come up with new ideas and
new products that are saving lives.
When my mother was first diagnosed with diabetes, she could either go
on insulin, oral insulin, or nothing at all. Now there are over 300
different forms of medication to help those patients. We are on our way
to finding a cure for Alzheimer's and Parkinson's.
While we are so busy discovering lifesaving pharmaceuticals, dramatic
new techniques, and new forms of prevention, we should not let the
insurance companies prevent our access to the very things we paid to
invent.
Let's pass this Patients' Bill of Rights. Let's do it before the
Fourth of July break, or I believe the American people will foment
another revolution, and we will have to stand out of their way.
I yield the floor.
The PRESIDING OFFICER. The Senator from Georgia is recognized.
Mr. MILLER. Mr. President, I rise in support of the McCain-Edwards-
Kennedy patient protection bill of which I am very proud to be a
cosponsor.
It is time--it is past time--for us to help millions of Americans
obtain their basic rights and protections in dealing with health care
providers.
It is time--it is past time--for health insurers to be held
accountable when they show more concern for their own bottom line than
for the patients' health and safety.
It is time--it is past time--for medical decisions to be made by
patients and doctors, not some HMO bean counter.
I am no stranger nor a Johnny-come-lately to this issue. Years ago I
became a supporter of Congressman Charles Norwood's effort, my good
friend and Republican colleague from Georgia, as he went about in his
courageous effort to make this change. And I come from a State that
passed a strong patient protection law 2 years ago which, by all
accounts, is working very well.
Now it is time for Congress to pass a strong Federal law to protect
the millions of patients who cannot be protected by the Georgia law or
by any other State's law.
This patient protection issue has been on our to-do list for a long
time. We often speak of something serious as being a life-or-death
matter, but it seldom is. Today this is truly a life-or-death matter
for many American families who cannot wait any longer for us to act.
When Georgia wrestled with this issue 2 years ago, at the heart of
the debate was the question of how we could best protect the interest
of patients enrolled in managed care plans. That question has become
increasingly important over the past 20 years because managed care has
come to dominate the health care delivery system.
In 1980, managed care was a novelty. Today more than 70 percent of
Americans and close to 80 percent of insured employees are covered by
some form of managed care.
As the number of Americans enrolled in HMOs and managed care has
grown, so have the complaints grown and so have the horror stories
grown about being denied adequate care.
The proper role of managed care is to balance the cost of health care
with the medical needs of patients, but in too many cases the concerns
about cost always come out ahead of the concerns for the patient. In
far too many cases, managed care has become mismanaged care.
The Georgia law that was passed in 1999 brought balance to the
equation by giving patients explicit access to specialists and
emergency care. The law also created an independent external review
system to address patients' grievances. These are the essential
components of any good bill, and they are the components of the bill I
speak for today.
When the Georgia Legislature debated this law, there were critics--
critics who made the same arguments that we are hearing in Washington
today and that I heard last year and the year before.
In Georgia, the critics paid for ads saying the law would drive up
premiums and cause more people to lose coverage. The critics paid for
ads claiming employers would be held liable for HMO mistakes. They paid
for ads predicting--and I love this alliteration--a ``flurry of
frivolous'' lawsuits. Oh, there was hissing and moaning, but you know
what? None of those dire predictions has come true. By all accounts,
Georgia's patient protection law is working, and working well. In fact,
patients are so satisfied with the independent review process that not
a single, solitary patient has filed a lawsuit. No, not one.
Let me read from an article in the Atlanta Constitution on Monday,
``Georgia's Pioneer Plan Avoids Legal Side Effects.'' The first two
paragraphs I will read:
When Georgia's Patient's Bill of Rights became law two
years ago, managed-care companies predicted they would be
spending a lot of time in court defending their decisions to
deny coverage. But there has yet to be a lawsuit filed by a
patient who first aired the grievance through the new
independent review system, state officials said.
``The law is working as intended,'' said Clyde Reese,
Director of the Health Planning Division that oversees the
patient protection process. ``In the two years, no one who
has gone through this process and has been denied has filed a
lawsuit. It has not given rise to litigation. We're not aware
of even one suit that's been processed.''
There it is. The naysayers, Chicken Littles, never give up. Today on
this bill, they are telling you that if it is passed, the sky will
fall. They claim that the patients' employers can be sued as well as
the HMO itself.
Wrong. Not so. This conservative, probusiness, Democratic Senator
would never support a bill that exposes employers to that kind of
liability. The McCain-Edwards bill specifically protects employers,
gives protection even to the directors of the HMO. Those individuals
cannot be personally sued, as some would have you believe. Employers
are shielded from lawsuits unless they directly participate in a
medical treatment decision.
This is also one of the very principles President Bush has said must
be included. When President Bush released his principles for a
bipartisan Patients' Bill of Rights on February 7, he said: Only
employers who retain responsibility for and make medical decisions
should be subject to suit.
We agree with President Bush. The principle outlined in February is
the exact principle that is in our bill.
Now I am not a judge, and there is not enough of me to be a jury, but
that is pretty plain to me. Only the HMO itself can be sued. And who
can argue that HMOs should not be held accountable for mistakes?
Shouldn't HMOs be treated like any other health care organization or
doctor or business or individual?
While the Georgia law is a model for protecting patients, they
unfortunately cannot protect all of Georgia's patients. No State law on
this issue can protect all the citizens because a Federal law, the
Employee Retirement Income Security Act of 1974, also known as ERISA,
exempts a large class of employees from State oversight. That means
millions of Americans are not covered under any patient protection law.
They have no legal recourse in dealing with their HMOs, and they are
suffering. It is, for too many, truly a life-or-death matter. That is
why I believe so strongly that Congress must act, and act now.
The McCain-Edwards bill would also provide patients with their basic
rights and protections in a balanced way. It
[[Page S6489]]
guarantees access to medical specialists; it protects patients from
having to change doctors in the middle of treatment; it provides fair,
unbiased, and timely internal and independent external review systems
to address patients complaints; it ensures that patients and doctors
can openly discuss all the treatment options without regard to costs;
and it includes an enforcement mechanism that ensures these rights are
real.
The McCain-Edwards bill is also consistent with all of the principles
laid out by President Bush except one: President Bush, a man for whom I
have profound respect, wants the Federal courts to have exclusive
jurisdiction over patient protection lawsuits. Another bill introduced
by Senators Breaux and Frist, colleagues for whom I also have great
respect, would comply with the President's wish on this point by moving
all liability lawsuits to the Federal courts.
I am sorry, but I must respectfully disagree with the President and
my colleagues on this one point. A purely Federal solution is not the
best solution. The Breaux-Frist bill would preempt Georgia's law, as
well as the laws of seven other States that have passed similar patient
rights bills. The traditional arena for resolving questions about
medical negligence is the State court. I submit that is where the
jurisdiction should remain. It is the courtroom that is the closest to
the people. Don't make my folks in Brasstown Valley have to go over the
mountains, through Unicoi Gap, to get to that big, crowded, white
marble courthouse in faraway Gainesville. That ``ain't'' right. Let 'em
go to the county seat, to the courthouse in Hiawassee that they and
their family have known for years.
Now, one more thing. Any bill on this issue is going to add to the
cost of health insurance premiums. They all do. Ours, in my opinion, is
the most reasonable. The Congressional Budget Office estimates if the
McCain-Edwards bill is passed, premiums will increase by 4.2 percent
over 10 years. That translates to slightly more than $1 a month for the
average employee. I believe most Americans will be more than willing to
pay an extra $1 a month for the protection this bill will afford them.
Let's not drag this thing on. Please, let's not play partisan games
with something this important. It has been an issue in three
congressional elections now and two Presidential elections. The time
has come to resolve this.
I yield the floor.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Mr. President, before the Senator from Georgia leaves the
floor, I will say a word. I have one daughter--my oldest child is a
daughter--and she has four brothers. When she married, we were a little
concerned because she married someone from the South, from North
Carolina. But he has been such a wonderful son-in-law and, with his
family, we have gotten to know about something that I kind of refer to
as southern common sense. My son-in-law, first of all, is very smart.
In addition to that, he has so much common sense. He can figure out
problems. He has been a great father to three of my grandchildren.
I give that background because the more I am exposed to southern
legislatures, the stronger I feel on an affirmative basis about my son-
in-law. I think we need more of this southern common sense in the
national legislature. The two Members on the floor today epitomize what
I think is the direction of the South in influencing legislation in the
Senate.
I listened with interest and awe to the statement of the Senator from
Georgia. It was as good as I have heard in this Chamber, and I have
heard some good ones. It was direct and to the point, as only the
Senator from Georgia can be with his wealth of experience being an
administrator and legislator.
Another Senator on the floor with the Senator from Georgia is our
friend from North Carolina.
My son-in-law is from Kannapolis. We talked about that. It is a place
where they made lots of sheets and towels and things such as that, for
many years.
I have not had the opportunity publicly to express my appreciation to
my colleague for lending his expertise to this legislation because he
has not only brought the southern common sense to this legislation but
also the respect we all have for him and his legal abilities.
To my two southern friends here today, I say thank you very much for
making it possible for us to be able to pass this legislation. Because
of the two of you--there are other reasons, of course--we are going to
pass this legislation. More than 5 years is enough. We are going to
pass this legislation, and we are going to do it in the immediate
future, not way down the line. We are going to pass it as soon as we
can, which is going to be before the July recess begins.
The PRESIDING OFFICER. The Senator from North Carolina.
Mr. EDWARDS. Mr. President, first I say to my friend from Nevada, he
is mighty lucky to have a son-in-law from North Carolina.
Mr. REID. I agree.
Mr. EDWARDS. We are glad he has a son-in-law from North Carolina.
I say to my friend from Georgia, who, some people may not know, lives
6 or 8 miles from the North Carolina line, so North Carolina had a
little good influence on him when he was growing up in Georgia. In
fact, when I was in western North Carolina not long ago, in the closest
town to the Georgia border, they said they started to believe Senator
Miller was their Senator, so I had to make it clear to them, no, it was
not true; I represented them, although he does a great job of
representing all the people of that area.
I thank the Senator for a number of things.
No. 1, for the eloquence of his speech, because it was so well
thought out, so clearly spoken that anyone listening would have
understood it.
No. 2, for talking about the actual experience as opposed to some of
the rhetoric we hear on both sides of this debate on the issue of what
effect this kind of patient protection legislation will have on
lawsuits and the potential for lawsuits.
Georgia in fact has a real experience. We do not need to guess about
what has happened down there. They have legislation very similar to
ours. In the State of Georgia, there have not only been few lawsuits,
there has been none during the time that law has been in place. I know
the Senator played a role in helping, with his friends down there, to
make sure that law in fact happened.
Next, I thank the Senator for his leadership on this issue. As he
said, he is no newcomer to this issue. He has been involved in it for a
number of years. His expertise and involvement are critically
important.
Finally, no one cares more about being certain we are not exposing
employers to lawsuits than the Senator from Georgia. He has made very
clear from the day he walked in this institution that he is a man of
strong character, integrity, and independence. There is no doubt in my
mind he means what he says. He would not be in support of this
legislation--I might add, nor would I, nor would the Senator from
Nevada--none of us would support this legislation if we believed it
exposed employers to lawsuits. We all care a great deal about that
issue, as we care about protecting patients and providing adequate
patient protection against some of the HMO abuses that have occurred.
I wanted to stand briefly and thank my friend from Georgia, thank him
for his cosponsorship of our legislation and thank him for his very
clear thinking on this issue which has now been expressed to the
American people.
I yield the floor.
The PRESIDING OFFICER. Who seeks recognition?
Mr. EDWARDS. Mr. President, I inquire how much time we have
remaining.
The PRESIDING OFFICER. The Senator has 2 minutes 20 seconds.
Mr. EDWARDS. Let me speak briefly and then yield the floor to my
colleagues on the other side from whom we welcome hearing on this
issue.
First, we have now had a number of speakers who have addressed the
issues that have been discussed over the course of the last 2 days now,
since our legislation was introduced. We pointed out--and I hope we
will continue to point out throughout the course of this debate--that
there are areas of agreement but there are areas of disagreement. There
are important differences between the McCain-Edwards-Kennedy
[[Page S6490]]
bill and the competing bill on the other side. Those areas of
disagreement go from the beginning of the bill through the end,
including such things as access to specialists outside the plan, access
to clinical trials--particularly FDA-approved clinical trials, access
to a truly independent review process so when the claim of a patient is
denied by an insurance company that patient they can go to a group and
get that decision reversed, knowing it is a totally impartial review
panel, there being no question about the independence of that review
panel; finally, as a matter of last resort, the case being able to go
to court if in fact these other processes do not work.
But what we now know from the Senator from Georgia, plus the
experiences in Texas and California, is that when these appeal
processes are in place, when a patient is wrongly denied care by an
HMO, there are two places for that decision to be reversed before
anybody goes to court. One is the internal review within the HMO; the
other is the external review to a truly independent body.
I might add as to the cost--the Senator from Georgia referred to
this--our bill, according to the Congressional Budget Office, will
raise insurance premiums 4.2 percent over 5 years. The Frist bill
raises insurance premiums I believe 2.9 percent over the same period of
time.
The difference between the two, the 1.3-percent difference, the
majority of that difference has nothing to do with litigation. It rests
in areas such as difference in access to specialists, difference in
access to clinical trials, difference in quality of care. So the bulk
of the cost difference between the two bills goes specifically to the
issue of the quality of care that children, families, and patients
across America will receive.
To the extent the argument is made that there is an explosion of
litigation, that this is going to cost a great deal of money, the
reality is that there is a little over 1 percent difference between our
bill and the competing bill. The bulk of that difference is accounted
for by difference in quality of care.
The American people are going to get a better product. They are going
to get better health care. They are going to have a way to get access
to clinical trials for their child who needs to be seen by a
specialist, to be seen by a specialist. They are going to have a way to
reverse a wrongful decision by an HMO. That is what we are talking
about. None of that has anything to do with going to court or lawsuits.
As to the issue of going to court, as the Senator from Georgia
pointed out so clearly, we are only asking one thing, and that is that
HMOs not continue to be treated as privileged citizens; that they be
treated as everyone else--they ought to be treated as every other
American, every other small business, every other large business--and
that they not maintain their status as being the only group in America
that cannot be held accountable for their actions. That is what this
debate is about. We are on the side of patients. That is the reason the
groups, AMA and others, support our legislation.
I think it is time now for me to yield the floor to my colleagues on
the other side.
The PRESIDING OFFICER (Mr. Burns). The Senator from Tennessee.
Mr. FRIST. I will take a couple of minutes. I will be brief, and then
the Senator from Maine will address many of the issues we discussed.
Clearly, much of the debate centers on what the cost of this bill
will be. We both have patient protections. We want to give rights to
patients that they deserve, rights to make sure we have medical
decisions made by doctors and patients working together, and not
medical decisions made by HMOs.
If HMOs make a medical decision, then they need to be held
accountable. How do you hold them accountable? That is where much of
the difference lies.
In terms of cost, because I do want to clarify this and because the
Senator from North Carolina is comparing the Frist-Breaux-Jeffords bill
to the McCain-Edwards-Kennedy bill, most of the quoted cost comparisons
are from the Congressional Budget Office, upon which we rely. In truth,
they are projections. Nobody knows exactly what the cost will be, but
it is important to understand how the increase in premiums relates to
the overall cost. Specifically, how much will premiums increase for the
170 million people who rely on insurance to obtain their health care?
That is what we are discussing. The American people, who are the ones
who will be paying more for the cost of this Bill of Rights--what they
will pay is substantially different in our bill versus their bill.
In their bill, when you talk about these little percentages, the
increase itself is about a 4 percent increase in premiums. When you
talk about their 4.2 versus our 2.9 percent, the percentage is only 1
point difference. However, the difference is significant, whether it is
8 percent, or 5 or 4 percent, because for every 1 percent increase, we
are talking about 300,000 people losing their health insurance.
In America, when you don't have insurance, you can still go to the
emergency room, but you do not have the quality of care that you would
have with insurance.
Instead of trying to make these differences sound tiny and small, as
a physician, I see the faces of 300,000 individuals. Three hundred
thousand individuals, who today have health insurance, but because of
frivolous lawsuits and paying trial lawyers too much with no increase
in patient protections, they lose their health insurance.
We continue to talk about the relative cost.
One other thing, to clarify what has been said on the floor regarding
the civil remedies part, the Congressional Budget Office scores the
Frist-Breaux-Jeffords bill versus the Kennedy-McCain-Edwards bill twice
as much in terms of that increase. There is a big difference in terms
of the cost. They score theirs .8 and ours is .4 in terms of the cost
due to civil remedies.
I yield the floor.
The PRESIDING OFFICER (Mr. Ensign). The Senator from Maine.
Ms. COLLINS. Thank you, Mr. President.
Mr. President, I am pleased that the Senate is now considering the
issue of how best to ensure that patients receive the health care they
need when they need it and that was promised by their insurance plan.
The last 10 years have been particularly turbulent ones for health
care providers and patients alike. Concerns about rising costs have led
to extensive changes in how health care services are provided and paid
for in both public and private health plans.
As a consequence, there is a growing unease across the country about
the changes in the way we receive our health care. Families worry that
if they or their loved ones become seriously ill, their HMO will deny
them coverage and force them to accept either inadequate care or
financial ruin--or perhaps both. They feel that vital decisions
affecting their lives will be made not by a supportive family doctor
but by an unfeeling bureaucracy. They fear that they will have to fight
their insurance company as well as their illness.
These are the concerns that have prompted this important debate about
how we can ensure that HMOs are held accountable for promised care and
that medical decisions are made by individuals wearing stethoscopes,
not green eyeshades. People should not have to worry that their HMO
will unfairly deny them treatment or force them to accept inadequate
care.
Virtually every Senator agrees that medically necessary patient care
should not be sacrificed to the bottom line and that health care
decisions should be in the hands of doctors, not insurance accountants.
But we face an extremely delicate balancing act: as we respond to these
concerns, we must be careful not to impose overly burdensome Federal
controls and mandates that will drive up costs and cause some people to
lose their health insurance altogether. That is the whole crux of the
managed care debate.
We should pass a strong, binding Patients' Bill of Rights, but we
should do so in a responsible way so that we don't add excessive cost,
litigation, and complexity to an already strained health care system.
Congress should use the set of principles that President Bush has given
us as a road map to develop a bipartisan Patients' Bill of Rights--one
that applies meaningful patient protections where they are needed
without unduly increasing health care costs.
[[Page S6491]]
The biggest obstacle to health care coverage in the United States
today is cost. American employers everywhere--from the giant
multinational corporation to the small corner store--are facing huge
hikes in their health insurance costs. Rising health insurance costs
are particularly problematic for people purchasing coverage in the
individual market and for small businesses and their employees.
Earlier this year, the dominant carrier in Maine's individual market
increased its rates by an average of 23.5 percent for indemnity plans
and 32.6 percent for HMO plans. As a result of these increases, many
people in my state are either dropping coverage or switching to
``catastrophic'' plans with very high annual deductibles.
Similarly, many small employers in Maine are facing premium increases
of 20 to 30 percent, forcing them either to drop their health benefits
or pass the additional costs on to their employees through increased
deductibles, higher copays, or premium hikes. This also adds to the
ranks of the uninsured as more lower-wage workers, unable to afford the
increased costs, drop coverage or turn it down.
No wonder the ranks of uninsured Americans have grown to 43 million.
If this happens at a time we have been enjoying a strong economy, just
imagine what could happen in an economic downturn.
Higher health insurance premiums lead to significant losses in
coverage. Studies have shown that for every one percent increase in
insurance premiums, insurance coverage for as many as 300,000 people is
jeopardized. This is one of the primary reasons I am so concerned about
the McCain-Kennedy version of the Patients' Bill of Rights. According
to the Congressional Budget Office, the McCain-Kennedy approach will
increase health insurance premiums by an additional 4.2 percent over
and above the double-digit premium increases we have already
experienced. Moreover, this bill is even more expensive than previous
versions of the legislation.
Congress should act to provide the important protections that
consumers want without causing costs to soar, and we can do so by
passing a carefully crafted bill. I also believe that we should not
pre-empt or supercede, but rather build upon the good work that states
have done in the area of patients' rights and protections.
States have had the primary responsibility for the regulation of
health insurance since the 1940s. As someone who has overseen a Bureau
of Insurance in state government, I know that state regulators have
done a good job of protecting consumers.
One of the myths in this debate is that unless the federal government
pre-empts state insurance laws, millions of Americans will somehow be
``unprotected'' in their disputes with HMOs. That simply is untrue.
For example, as this chart demonstrates, 48 states have passed laws
prohibiting ``gag clauses'' that restrict communications between
patients and their doctors. Forty-four states have requirements for
emergency medical care; forty-seven have prompt payment requirements;
thirty-seven require direct access to an OB/GYN; forty-one have
requirements for external appeals; and all fifty have requirements for
internal appeals and patient information.
As is so often the case, states have been the laboratories for
insurance reform.
They have acted without any mandate or prodding from Washington to
protect their consumers. They have been way ahead of us in enacting
patients' rights.
Moreover, one size does not fit all. What may be appropriate for one
State may not work well in another or may simply be unnecessary. For
example, what may be appropriate for California, which has a very high
penetration of HMOs, may simply not be needed in States such as Alaska
and Wyoming where there is virtually no managed care. In these States,
imposing a new blanket of heavy-handed Federal mandates and coverage
requirements will simply drive up costs that will impede, not expand,
access to health care.
That is why the National Association of Insurance Commissioners
opposes the approach taken in the McCain-Kennedy bill which would force
all States to adopt virtually equivalent Federal standards.
Recently, I received a letter from Kathleen Sebelius, the president
of the NAIC, in which she writes:
States have faced the challenges and produced laws that
balance the two-part objectives of protecting consumer rights
and preserving availability and affordability of coverage.
For the federal government to unilaterally impose its one-
size-fits-all standards on the states could be devastating to
state insurance markets.
Mr. President, I ask unanimous consent this letter from the NAIC be
printed in the Record at the conclusion of my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See Exhibit 1.)
Ms. COLLINS. Mr. President, under the McCain-Kennedy bill, the
Federal Government could preempt existing State patient protection laws
unless they had already enacted identical protections--not just similar
ones, identical ones. The approaches taken by the 50 States to the same
types of patient protections vary widely and with good reason in many
cases.
Why should a State that has already acted on its own to provide
strong, workable patient protections have to make extensive changes in
their laws to comply with new Federal standards?
Let me give you a recent example from my home State of Maine. Maine
is one of just 12 States that require health plans in the fully insured
individual and small group market to provide coverage for routine costs
for patients participating in clinical trials. During its consideration
of this provision last year, the Maine Legislature made the decision to
include only those clinical trials that were approved and funded by the
National Institutes of Health. I would note, parenthetically, that this
decision was one that was made by a legislature controlled by the
Democratic Party.
What would happen under the McCain-Kennedy bill? Under that approach,
Maine would have to go back and rewrite its law to include clinical
trials approved or funded by the Department of Defense, the Veterans'
Administration, and the Food and Drug Administration.
Why should the State of Maine have to revisit its law? The law that
the State of Maine came up with to require coverage of certain clinical
trials was carefully debated. It was thoroughly considered. And the
Maine State legislature decided that this was the best approach for the
citizens of Maine. Yet under the legislation we are considering today,
Maine would have to change its law or have it completely superseded by
the Federal Government taking over control of its health
insurance market.
Let me be clear. I believe the Federal Government does have an
important role to play in regulating the self-funded plans under ERISA.
That is because, under current Federal law, States are precluded from
applying patient protections to these Federal plans. That is why we
need a Federal law to ensure that consumers enrolled in insurance plans
beyond the reach of State regulators enjoy the same kinds of strong
patient protections that apply to State-regulated plans.
As I said, and as you can see from the chart, the States have been
extraordinarily active in this area. It is all well and good if
Congress decides that it wants to impose a specific requirement or
mandate on federally regulated ERISA plans, since States are, by law,
precluded from regulating these insurance plans. But the Federal
Government should not be in the business of second-guessing and
overriding the carefully crafted patient protections that have been
negotiated by our State legislatures and Governors to meet the needs of
that State's citizens.
States that have seized the initiative and acted on their own should
not have to revise their carefully tailored laws simply in order to
comply with a Washington-knows-best, one-size-fits-all Federal mandate.
Moreover, what if the State has made an affirmative decision not to
act in one of these areas for very good reasons, such as the reason I
previously gave where a particular State may not have much managed care
so that this debate is largely not relevant to its citizens? What if
the State legislature, after much discussion and debate, has decided
that a particular consumer protection simply isn't needed because the
marketplace has already taken care of this issue?
[[Page S6492]]
Let's look at the consequences under the McCain-Kennedy bill of a
State failing to enact an identical provision to the consumer
protections in S. 1052.
The bill proposes, quite simply, a Federal takeover of State health
insurance regulation. The Health Care Financing Administration, HCFA,
would be charged with enforcing the new Federal standard.
Talk about a right without a remedy. In a report issued in May of
this year--5 years after new Federal health insurance standards were
enacted under the Health Insurance Portability and Accountability Act,
the Mental Health Parity Act, and the Newborns' and Mothers' Health
Protection Act--5 years after those laws passed, five States are still
out of compliance, and Federal fallback enforcement in these States is
virtually nonexistent.
Moreover, HCFA told the GAO that it has not even been able to fully
assess whether or not the States have complied with the Mental Health
Parity Act enacted 5 years ago, and that law is scheduled to sunset
this year. Given the fact that the Patients' Bill of Rights--the
version we are considering right now--is replete with new health
mandates, consumers should be very concerned that HCFA has already
proven beyond a shadow of a doubt that it is incapable of enforcing
existing Federal insurance standards in States that do not conform. In
fact, HCFA has shown that it is incapable of even assessing whether or
not the States have complied with these limited Federal insurance
standards. So what makes us think that HCFA could in any way take over
the responsibility of regulating health insurance in States that do not
comply to the letter with the standards in the McCain-Kennedy bill?
If HCFA has not been able to handle its limited responsibility under
the laws that I mentioned, how in the world would it benefit consumers
to provide for a Federal takeover of health insurance regulation in
this area?
I think the answer is clear. It would be a tremendous disservice to
consumers to have HCFA take over health insurance regulation. I know
that my consumers, my constituents in Maine will have far better
service and far better luck dealing with the Bureau of Insurance in the
State of Maine in Gardiner, ME, than trying to call the ERISA office in
Boston or the HCFA office in Baltimore. It is that simple.
As we consider Federal patient protection legislation, I believe that
true deference should be given to the expert decisionmakers who know
best what is appropriate for each State and who are most immediately
accessible and accountable to that State's citizens.
Another of the myths--and there are many--in this current debate is
that you can't sue your HMO. That, too, is not true. HMOs--even self-
insured ERISA plans--can be sued in State court over quality-of-care
treatment decisions. They can also be sued, under current law, in
Federal court for injunctive relief to force them to provide needed
care or to compensate the patient or provider for the value of the
benefit, plus any attorney's fees. This is the exact same legal remedy
that is currently available to us as Members of Congress under the
Federal Employees Health Benefits Plan.
Mr. EDWARDS. Will the Senator yield for a question?
Ms. COLLINS. I do not wish to yield at this point. I would like to
conclude my statement.
We do need strong remedies to prevent HMOs from denying needed care.
There is no dispute over that point. All of us are deeply troubled by
cases in which an HMO has acted in a way that was not in the best
interest of the patient. That is not what this debate is about. The
debate is about the best way to solve those problems, to ensure that
every patient gets the care that he or she needs when they need it.
That is what the debate is about.
That is why a strong, independent, and binding appeals process is
critical to ensure that patients get the care they need when they need
it; that they get the care they were promised. They should not have to
hire an attorney and file a lawsuit to get the health care they need.
They just can't sue their way to quality care. That is why the key is
to make sure that we have an appeals process that is binding, that is
independent, and that will force the HMO to provide the care that has
been promised.
I am particularly concerned that the liability provisions in the
McCain-Kennedy bill, as currently drafted, could well discourage
employers that currently voluntarily provide health insurance to 172
million employees and their families from continuing to offer coverage.
While the McCain-Kennedy bill claims to protect employers, the fact is,
as I read the bill, they would be subject to both new Federal and State
lawsuits authorized under the bill.
Under the McCain-Kennedy bill, a trial lawyer just needs to allege
that an employer directly participated in a medically reviewable
decision to force that employer to court. The direct participation
standard in S. 1052 does not shield employers from being sued. It
simply gives them a defense that they can raise in court. Being subject
to such lawsuits will be particularly hard, potentially ruinous for
small business owners who cannot afford the tens of thousands of
dollars they would have to spend on attorney's fees to fight these
kinds of cases in court.
Many Maine employers have expressed their serious concerns about the
liability and scope provisions of the McCain-Kennedy bill. I met, for
example, with the assistant director of human resources at Bowdoin
College who talked about how moving to a self-funded ERISA plan enabled
the college to continue to offer affordable coverage to Bowdoin
employees when premiums for their fully insured plan skyrocketed in the
late 1980s. Since they were self-funded, they were actually able to
lower their premiums for their employees and at the same time enhance
their benefit package with such features as well-baby care, free annual
physicals, and prescription drug cards with low copayments. They told
me that a proposal such as the one before us today could seriously
jeopardize their ability to offer affordable coverage for their
employees.
Similar concerns have been expressed by the Maine Municipal
Association, L.L. Bean, Bath Iron Works, and many other very
responsible Maine employers that care deeply about providing the best
possible health insurance for their employees.
Even though S. 1052 is certain to drive up health insurance costs, it
also does nothing to expand access to affordable health insurance. In
fact, by driving up costs, it jeopardizes health insurance coverage for
people who already have it and puts the cost further out of reach for
those who lack it now.
As we proceed with our consideration of legislation to protect
patients' rights, we should also be considering ways to expand access
to coverage for millions more Americans by making health insurance more
affordable.
As the Presidential Advisory Commission on Consumer Protection and
Quality noted in its report which was done for President Clinton, I
note: Costs matter. Health coverage is the best consumer protection.
As we proceed in this very important debate, I hope we can continue
to work to improve S. 1052 so that it truly protects patients without
jeopardizing their insurance coverage and without wiping out the good
work of the States.
I was encouraged today by a conversation with Senator McCain in which
he indicated that he is very open to resolving some of the problems I
have raised in my statement. I hope that we can work together, and at
the end of the day I hope we can approve, by an overwhelming vote, a
responsible Patients' Bill of Rights that will help ensure that
patients receive the care they need, when they need it, without having
to resort to hiring an expensive lawyer and filing a lawsuit. That
should be a goal that should unite us all.
I look forward to the upcoming debate. I think it is an important
one. I hope we can come together on a bipartisan bill that the
President will sign, that will make a real difference in the health
care for America's patients.
Mr. KENNEDY. Will the Senator yield for a brief question?
Ms. COLLINS. I am happy to yield to my friend from Massachusetts.
Mr. KENNEDY. I listened carefully to the Senator. As a member of our
committee, I know she gives a good deal of attention and time to health
care and education issues, as well as the other matters that come
before our committee. We take her words seriously.
[[Page S6493]]
While listening to her, I was reminded that the Maine Medical
Society, which represents the medical community in the State of Maine,
is in strong support of our proposal. Which proposal does the Senator
support at this time?
The PRESIDING OFFICER. The Senator from Maine has the floor and she
has 1 minute.
Ms. COLLINS. Mr. President, I have worked very closely with the Maine
Medical Association on a variety of issues. I know that while they do
want to see liability provisions similar to those of the Senator, they
are very concerned about the issue I raised about the preemption of
Maine's law.
Maine has been very active in passing a number of laws to provide
consumer protections. They are carefully balanced laws. On this chart,
there is a check mark all the way across. I know the Maine Medical
Association was very involved with the legislature in negotiating those
provisions. They are concerned about the preemption of Maine's laws
which they helped to draft.
Mr. KENNEDY. May I ask one further question. The Maine law includes
clinical trials, but does not include FDA clinical trials. The proposal
of Senator Edwards and Senator McCain does include clinical trials.
Most of the women's groups, including women's cancer groups are
strongly in support of this provision. They recognize that many
pharmaceutical companies are on the edge of breakthroughs in the
development of these new products.
I am interested in this illustration. The provisions for clinical
trials in Maine are preferable, quite frankly, to the provisions
included in Breaux-Frist, where there are a number of problems.
Wouldn't the Senator from Maine feel that including the patients in
Maine in these FDA protocols might be helpful if they meet the other
requirements? For example, what if a doctor feels that participating in
these clinical trials means there is a real possibility of relieving a
patient's medical condition?
Ms. COLLINS. Mr. President, Maine has led the way on insurance
reform. Maine is one of only 12 States that cover clinical trials. The
Maine legislators gave careful consideration to what the scope of that
coverage should be, and a Democratic legislature and an independent
Governor decided, for reasons of cost, to limit the clinical trials
provisions to those who were approved by the National Institutes of
Health. That is appropriate.
What I object to is that the Kennedy approach, the Kennedy-McCain
bill, would say that if a State didn't cover clinical trials exactly as
the Senator from Massachusetts wants them covered, then Maine's law is
wiped out. I don't think that is right. I notice that Maine has been
far more active than Massachusetts in the area of patients' protection,
so perhaps that explains the difference in the approach that the
Senator from Massachusetts, my friend, and I take.
I yield the floor.
Exhibit No. 1
National Association of
Insurance Commissioners,
Kansas City, MO, June 19, 2001.
Hon. Susan Collins,
U.S. Senate,
Washington, DC.
Dear Senator Collins: As the Senate prepares to debate
legislation designed to protect the rights of health
insurance consumers I would like to reiterate the concerns of
the nation's health insurance regulators.
The National Association of Insurance Commissioners (NAIC),
which represents all fifty-five insurance commissioners in
the states and territories, is primarily concerned about
federal preemption of state laws and regulations. All states
have passed and implemented legislation to protect the rights
of beneficiaries. Over 40 states have acted to ensure access
to emergency and OB/GYN care, require fair utilization review
and internal and external appeals processes, and prohibit
discrimination and gag clauses. Over half of the states have
laws ensuring access to specialists and non-formulary
prescription drugs, a point of service option, and continuity
of care.
As members of Congress know from experience, passing
patient protection legislation this can be a difficult task
with a variety of issues to consider. States have faced the
challenges and produced laws that balance the two-part
objectives of protecting consumer rights and preserving the
availability and affordability of coverage. For the federal
government to unilaterally impose its one-size-fits-all
standards on the states could be devastating to state
insurance markets.
Members of the NAIC are also concerned about enforcement.
As you know as a former state regulator, if there is no
enforcement then there is no protection. States have
developed the infrastructure necessary to receive and process
consumer complaints in a timely fashion and ensure that
insurers comply with the laws. The federal government does
not have this capability, and the proposals do not provide
any resources to federal agencies to develop such capability.
It has taken the Health Care Financing Administration (HCFA)
years to develop the infrastructure required to enforce the
Health Insurance Portability and Accountability Act (HIPAA)
which included only six basic provisions that most states had
already enacted. The proposed patient protection bills are
far more complicated than HIPAA and will require considerable
oversight.
To resolve these issues, the NAIC urges Congress to include
in any patient protection legislation provisions that would
preserve state laws and enforcement procedures, such as
internal and external review processes. Failure to maintain
state authority in this area could lead to the implementation
of regulations that are inconsistent with the needs of
consumers in a state and that are not enforced effectively.
Protecting patient rights is clearly a goal of both the
states and the federal government. Attaining this goal will
require cooperation and we look forward to working in
partnership with the federal government to implement
protections that are in the best interest of consumers in
each state.
Sincerely,
Kathleen Sebelius,
President, NAIC,
Insurance Commissioner, State of Kansas.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, I will inquire of the Senator. If I may
have the Senator's attention, is the Senator supporting the Breaux-
Frist bill at this time? Is the Senator going to work with Senator
McCain, a cosponsor with Senator Edwards, to try to see if we can find
common ground within the next week?
Ms. COLLINS. My friend from Massachusetts may not have heard me when
I said earlier--and I don't expect him to be on the edge of his chair
through every moment, but I made very clear that my hope is that we can
come together on this important issue. It is important, and I think it
is unfortunate that we didn't get through a conference on the Patients'
Bill of Rights last year. Then we would have had these protections
already in place.
It is a shame that last year when we had agreement on 90 percent of
the bill, we didn't enact it. Senator Breaux of Louisiana and I
suggested just that approach. So I look forward to continuing to work
with my colleagues on both sides of the aisle. Just at noontime today,
I had a discussion with Senator McCain and he indicated an openness to
solving some of the problems I have outlined in my statement. The
Senator from Massachusetts knows I always enjoy working very closely
with him.
So I look forward to that because my goal is that we can pass a bill
that does the job on which we all agree, and yet that would not preempt
States' laws when States are doing a good job, and that would not cause
health insurance costs to rise to the point where we jeopardize
coverage altogether.
I know those are goals we share, and I hope we can indeed work
closely together.
Mr. KENNEDY. Finally--and I see the Senator from Connecticut here--
the point I would like to clarify is that the Edwards bill isn't
preempting the States. They have identical provisions. The States'
provisions and protections, if substantial, will stand. They don't have
to be identical. I just wanted to clarify that particular issue as we
go through the course of debate.
I yield the floor.
The PRESIDING OFFICER. The Senator from North Carolina.
Mr. EDWARDS. Very briefly, before the Senator from Connecticut
speaks, there were some points made by the Senator from Maine.
First, we very much appreciate her open attitude to work with us to
try to find a solution to a problem about which we all care a great
deal. We appreciate that. She was arguing, I believe, that because of
increased costs associated with a Patient Protection Act, people would
go from being insured to uninsured, and that is something about which
the American people should be concerned.
First of all, I point out that there are two competing bills, one of
which will pass the Senate. The difference between those bills is
minimal in cost. Second, in the three States that in fact
[[Page S6494]]
have enacted patient protection--California, Texas, and Georgia--not
only has the number of uninsured not gone up but exactly the opposite
has occurred. During the time that patient protection has been in place
in California, in Texas, and in Georgia, the number of insured has gone
up. In California, for example, in 1998 and 1999, the number of insured
went up 2.3 percent. In Texas, it went up .9 percent--just under 1
percent. In Georgia, about which Senator Miller spoke so eloquently, it
went up .8 percent.
So the evidence from the three other States that have enacted laws
similar to the McCain-Edwards-Kennedy bill is that because people have
a better product, better health care, better rights, not only does the
number of uninsured not go up but it goes down. So these rhetorical
cries of all of us needing to be greatly concerned about that issue--of
course we are, but the actual evidence that exists from the three
States that have laws similar to the laws we are here talking about
suggests over a relatively short period of time, in fairness, that just
the opposite is true--that in fact, because of the quality of the
product, the number of people insured can go up as opposed to going
down.
With that, I will yield the floor to my friend from Connecticut.
The PRESIDING OFFICER. The Senator from Connecticut is recognized.
Mr. DODD. Mr. President, let me begin by, first of all, commending my
good friends and colleagues from Massachusetts, North Carolina, and
Arizona, Senators Kennedy, Edwards, and McCain, for their leadership on
this issue--bringing a series of reforms that seek to guarantee quality
health care for more than 190 million of our fellow citizens.
This is extremely important. We know there are 43 million Americans
who have no health insurance at all. We hope at some point we can
develop legislation to protect those 43 million fellow citizens who
have to go through the anxieties on a daily basis of hoping their
children, their families will not suffer from some catastrophic illness
which could wipe out whatever meager holdings they have. That debate
will have to be reserved for another day.
But there are 190 million Americans who obtain health care coverage
through private insurance. So we begin the debate by trying to make
sure that those 190 million people who are covered by private health
care coverage will be able to have the kind of rights we think they
ought to have as citizens of this country.
Mr. President, I also should begin with sort of a disclaimer to you.
My colleague from Connecticut, Senator Lieberman, and I represent what
is oftentimes referred to as the insurance capital of the world. My
good friend, the Presiding Officer, is the Senator from, I suppose, the
State of gaming and of family recreation. My State is well known for a
variety of insurance companies that have made significant and positive
contributions to the well-being of people not only here in the United
States, but around the globe. We are very proud of the fact that we
represent insurance companies that have provided great security for
millions of people in so many different sets of circumstances.
But it is important to note that, as a Senator from that State, one
of the things we are talking about here is the obligations of my
constituents, those insurance companies that are involved in providing
private health care coverage. So today I suppose I engage in discussion
that you may not expect to hear from someone who comes from a State
where I represent these interests.
I do so with a degree of sorrow because, unfortunately, in too many
cases the industry does not understand the needs of millions of
Americans. This is not true of the entire insurance industry in my
State. There are many who have reached out and are trying to make a
difference, to see to it that people do have access to specialists,
emergency rooms, and clinical trials, and that they have an appeals
process to turn to when they feel that they have been unfairly denied
care.
We have been at this debate now for 5 years. I recall a couple of
years ago being a member of a conference committee after this body had
dealt with a Patients' Bill of Rights--partisan politics took over. We
sat in the committee rooms for days on end and nothing happened. For
each day we wait, each week that goes by, every month that passes,
these 190 million people in our country run a greater and greater risk
that their rights are being denied, that basic health care coverage is
not forthcoming.
I hope my colleagues who are engaged, as we have been over the last
few days, in delay tactics that won't allow for an amendment process to
go forward will cease and desist.
It is not what the American public wants. They may not agree with
every dotted ``i'' and crossed ``t'' in John McCain's and John Edwards'
and Ted Kennedy's bill. I respect that. I understand their differences,
but not to have any amendments offered, not to be debating this, not to
be discussing it beyond the rhetorical comments is not going unnoticed
by the American public.
As these days go by, I hope nothing happens to people, which could
have been prevented by the passage of this legislation or some
compromise version of it.
Let us begin the process of discussion. Let us begin the process of
voting. I am disappointed and saddened that we have not.
I mentioned my State and the fact that I represent some of the
largest, most successful insurance companies in the world. As many
other States, my State has also taken action on this issue of a
Patients' Bill of Rights. It has passed its own managed care
protections. The reforms included in the Connecticut law take an
important step toward protecting patients and doctors, but today 41
percent of Connecticut employees are denied these very protections
because of Federal law preemptions. Almost half of my constituents are
not protected by their State law.
Unless we adopt a Federal law, they will go unprotected, and that is
true in State after State because of the adoption of ERISA, legislation
going back years under the leadership of the former Senator from New
York, Jacob Javits, of blessed memory.
Under his leadership, ERISA was passed, but as a result of that fine
legislation and with the adoption of State laws providing protections
for people's health care rights, a lot of our fellow citizens are
preempted by that Federal law.
That is the rationale for us engaging in this debate on a Patients'
Bill of Rights. There must be Federal law. If not, we are excluding
millions of Americans from the protections their fellow citizens living
next door to them, living down the street, working next to them at
their businesses are provided under their State protections.
This debate is important, and we ought to be voting on amendments.
Every hour that goes by, every day that goes by that we do not do our
business raises even further risk that additional people will be
harmed.
The increased role of managed care in our health system has brought
some very important improvements--better coordinated care, greater
efficiency at lower costs, and an enhanced focus on preventive care.
The health maintenance organizations deserve credit for making these
positive steps. The benefits, however, have been accompanied by some
concerns about the impact on the quality and delivery of care, and that
is what the Kennedy-McCain-Edwards bill attempts to address.
Far too often the decision about whether you or your family can get
the health care you need is dictated by an insurance policy rather than
your doctors. That is why it pains me as a Senator from Connecticut to
have to talk about an industry of which I am so proud.
While we all agree on the goal of increasing efficiency and managing
costs in our health care system, we cannot do so at the expense of
denying needed care. We have to strike that balance, and today that
balance does not exist.
I want to take a minute to talk about a single case in my State. I
realize we are talking about 190 million people in the country who have
private insurance insurance but do not have protections that a
Patients' Bill of Rights would provide. I know there are 43 million
people who have no health care coverage at all. Sometimes we get to
talking about millions of people, millions of dollars, and billions of
dollars and get lost in the morass of the
[[Page S6495]]
Federal bureaucracy of how a Patients' Bill of Rights would work. We
forget we are talking about individual people, families.
I want to take a minute, if I may, and share with my colleagues the
story of one family in my State and what happened to them as a result
of our failure to have a Patients' Bill of Rights.
I just spoke with this family a few minutes before coming to this
Chamber. I did not want to talk about this family without their
permission. I called the Moscovitch family in Connecticut and asked
them if I could talk about their 15-year-old son, Nitai. Let me tell my
colleagues what happened.
This family lives in Brookfield, CT, a small town in my State. They
are a hard-working family. In fact, the father was not yet home from
work. He was on his way home from his job. Their son, Nitai Moscovitch,
suffered from very severe emotional problems. The family was wise and
smart enough to recognize their 15-year-old son, Nitai, needed help. He
needed medical help immediately.
This family sought that help, particularly after this young boy
attempted suicide. He was admitted to the Danbury Hospital in the
western part of my State. Despite the fact that the young boy had a
history of trying to harm himself, the insurance company that provided
coverage for this family would only agree to cover his treatment for
several days at the hospital, as if he had been in an automobile
accident, or if he had stumbled and broken his leg or been in an
athletic injury.
The idea that this was a child suffering from severe emotional
illness was not under consideration: We will put on the Band-Aids,
provide the stitches, but beyond that, we are not going to provide that
coverage.
Even though Nitai threatened to commit suicide if he were removed
from the hospital, they saw this as the rantings of a teenage boy, not
to be taken too seriously.
Four hours after he was released, Nitai locked himself in a room,
undid his belt on his trousers, and committed suicide.
If that is an isolated case I conjured up, then I ought to be ashamed
of myself. Unfortunately, this is not an isolated case. This goes on
every day, not necessarily with the tragic ending as in this case, but
coverage was denied not because someone looked at Nitai and said: We
don't think your emotional problems are severe enough to warrant
hospitalization. Someone sitting behind a desk, I suppose at some
computer terminal, was making the determination that the policy was not
going to cover him. That was the medical analysis given to this young
man and this family.
That has to stop. I am not suggesting that every medical examination
or analysis is going to be right or there are not going to be tragedies
involved, but we have to get away from the situation where the
decisions about what kind of care a patient needs, what kind of doctor
a patient ought to see is being determined by someone who has no
medical training, no medical background at all, and then to further say
basically they are not responsible.
Let me complete the story. On behalf of his son, Nitai's father,
Stewart Moscovitch, wanted to sue his health maintenance organization
for playing the role of doctor and refusing to cover extended treatment
at the hospital. But the health plan argued that existing Federal law,
the very reason we are engaged in this debate, existing Federal law
prevented the family from holding them liable.
After a 3-year battle, this family secured a ruling that the Federal
law did not apply in his case. However, today there is still no
guarantee that the Moscovitch family or any family would have the right
to hold their plan accountable for making treatment decisions.
The bill we are debating will change that. I am not going to suggest
that somehow we could have entirely prevented this tragedy from
happening. As I said, it is conceivable that a doctor might have
arrived at the same decision. Do not assume for a second I was assuming
that Nitai's life definitely would have been saved but at least they
might have had more choices. At least the choice should have been left
to the doctor looking at this young man and not a decision made by an
insurance company or an insurance employee who, with all due respect,
has no business making the decision of whether or not extended hospital
care for this child ought to be covered.
I thank the Moscovitch family for allowing me to talk about their
son. I called them to seek their permission to talk about their son. I
was told by Nitai's brother that, in fact, the family had discussed it
and hoped I would because it might, just might, make a difference. It
may convince some who are wavering about whether or not this bill is
warranted, whether or not this effort is worthwhile. It may be the case
that one family, one individual will have a more profound effect than
all of the numbers and millions of people and billions of dollars we
talk about. It is family by family, patient by patient that the effects
of not passing this legislation are most felt.
Putting patients first means guaranteeing access to emergency room
coverage when a rational person would say emergency care was needed. It
means ensuring access to doctors qualified to treat a condition, and
that it is those doctors who will decide the best course of treatment.
Putting patients first means making sure that patients with illnesses
that have not been cured by conventional treatment are not denied the
chance to participate in potentially life-saving clinical trials. It
means making sure that a patient and his family can have the
prescription drugs doctors say they need, not just the drugs the
insurance company says are cheaper.
Other managed care bills have been introduced in this Congress that
are watered-down versions. They are weaker versions. They are not truly
a Patients' Bill of Rights. The Bipartisan Patient Protection Act is
the only bipartisan legislation that will offer managed care patients
and providers that serve them reasonable protections. The bill allows
patients and doctors to determine the best course of care, establishes
an independent appeals process for patients who believe they were
unfairly denied care, and allows patients to hold health care plans
accountable when they make those decisions.
I hope our colleagues allow this debate to go forward. Let not
another day pass in delaying a debate on amendments on this bill. It is
blatantly unfair. Forget Democrats and Republicans. What you do to my
party, sitting on this side of the aisle, is not terribly relevant; put
that aside. If you will, think of the people you represent in your
States. Even if you don't like this bill, offer your ideas on your
approach to this. But allow an amendment process to go forward.
It is unfair to these people, after 5 years, to not allow a full
debate on amendments on this bill. That is what this institution was
created for. It is what we ought to be engaged in. Now after the second
day of listening to statements about this bill, it is time we started
debating amendments. My hope is that will be the case.
I understand the commitment of our distinguished majority leader,
Senator Daschle, when he says we will stay here, we will stay here
until this bill is properly and fully considered. It may be defeated.
At the end of the day, 51 Members may decide to defeat this bill. I
would be terribly unhappy if that were the case, but at least we would
have had a chance to debate and consider amendments. Sitting here day
after day, hour after hour, without the chance to consider amendments
and vote on an important subject such as this is dreadful. My hope is
my colleagues who are engaged in this delaying practice will cease and
desist.
I commend the authors of this bill and look forward to supporting
them in the amendment process. My sincere hope is at the end of this
discussion we will have amended the law and that the millions of
Americans who are insured and preempted by Federal law as well as all
the others with private insurance, will get the protections they
deserve.
I yield the floor.
The PRESIDING OFFICER. The Senator from North Dakota.
Mr. DORGAN. How much time remains in this block?
The PRESIDING OFFICER. Six minutes remain.
Mr. DORGAN. Mr. President, my colleague from Connecticut has covered
[[Page S6496]]
the subject of needed patient protections well. Let me, in the few
short remaining minutes, make a couple of comments--some I have made
before.
Let me narrow the issue down. It is about the right of patients to
get the health care they deserve and that they think they have under
their managed care plans. Often however, that care is actually denied
them.
Patients ought to have a right to understand all of their medical
options for treatment, not just the cheapest. They ought to have a
right to medically necessary care without arbitrary HMO interference.
They ought to have a right to go to an emergency room when they have an
emergency. They ought to have a right to see a specialist when they
have a need to consult a specialist. They ought to have the right to a
fair and speedy process for resolving disputes.
Let me see if I can use a couple of pictures to describe what these
rights mean. This young child was born with a horrible facial defect. A
cleft palate which is a horrible defect of the top lip. Plastic
surgeons say in about 50 percent of the cases, a managed care
organization says this is something that is not medically necessary to
correct. It's correction is not medically necessary? Imagine having
this child and being told by a managed care organization that it is not
medically necessary to correct this defect!
I spoke yesterday about a young woman named Donna Marie McIlwaine.
Donna is from New York. Her mother, Mary Lewandowski, testified before
a hearing I held on managed care. This beautiful young lady is not with
us any longer. Donna died. Her mother described the circumstances of
her death. For want of a $750 lung scan, this young girl died as a
result of a blood clot in her lung the size of a football. Donna's
mother called the doctor and she called the hospital, but to no avail.
This young woman died because she didn't get a $750 lung scan that
would have shown a blood clot the size of a football in her lung. And
she died. She died on the evening of February 8, 1997. Her mother, God
bless her, Mary Lewandowski, has been to Washington at her own expense,
as a missionary to say ``pass this legislation and don't let this
happen to another child!''
I have described before, this young man, Christopher Roe, whom I
learned about at a hearing I held in November--and if you are tired of
hearing about him--I have talked about Christopher several times--if
you are tired of hearing about him, tough luck because I will keep
talking of his tragic circumstance. His mother held this picture high
as she began to sob when she testified about this 16-year-old boy who
died on his birthday. Christopher was fighting cancer, and fighting the
managed care organization at the same time for the care he needed and
didn't get. This young boy had cancer. He needed some treatment. He
needed a chance. He needed some experimental treatment, a chance to get
through this and successfully wage war against this dreaded disease.
But time ticked away and the managed care organization said, no, no,
no. And finally this young boy, flat on his back in bed, died on his
16th birthday. Before he died, his mother told us, crying:
``Christopher looked up at me and said, Mom, how can they do this to a
kid?''
This is not some ethereal debate about what you think or what I
think. This is about whether patients have the protections they believe
exist in their managed care policies.
Are we going to say that we stand on the side of patients? Are we
going to stand on the side of doctors? Are we going to stand on the
side of nurses who know that the only real good health care that is
delivered is delivered by health care professionals in a clinic or in a
hospital room? It is not health care delivered or decisions made in an
insurance company or managed care office by some junior accountant
1,000 miles away. Yet all too often that is what is happening. It is
why Christopher Roe is no longer with us. This young boy lost his
battle fighting cancer and he lost his battle fighting a managed care
organization.
That, my friends, is not a fair fight. We know that. That is why we
propose passing a piece of legislation called the Patient Protection
Act or the Patient's Bill of Rights. There will be a lot of discussion
and debate about this for a long period. At the end of the day, the
only question is, Whose corner are you in? With whom do you stand? Are
you with the patients, doctors, and the nurses? Or are you with the
managed care organization and the insurance industry who say they don't
want this?
In the names of Christopher Roe and Donna, and so many others that I
have discussed previously on the floor of the Senate, we ought to do
what is right. We ought to do the right thing. This legislation has
been four years in the making. This is a long gestation period. We have
debated, debated, and debated again. We have compromised, compromised,
and compromised on this legislation. It is now time for us to own up to
this responsibility. Let's pass this bill. Let's do it now and do it
right.
I yield the floor.
The PRESIDING OFFICER (Mr. Schumer). The Senator from Missouri is
recognized.
Mr. BOND. Mr. President, we are now debating the crucial issue of
patients' rights. For better or worse, we have a health care system
that increasingly uses managed care to organize and deliver services.
Over the next week or two or more, we are here to debate what we need
to do to protect patients and to restore balance to our new system
dominated by managed care companies, whether insurance companies or
HMOs.
Let's be clear; patients need protections. For a variety of reasons--
bad customer service, bad incentives that lead to a conflict between
care and the bottom line, and simple carelessness and neglect--too many
patients have been mistreated by their health care insurance companies.
That is why every State in the Nation has acted on this measure to
provide protections because we have seen this mistreatment range from
the heartbreaking to the mundane.
We have all heard the rare but tragic horror stories in which a
managed care company denies desperately needed care, sometimes with
catastrophic results for the patient. Many of us have actually
experienced the all too common phenomenon, nuisances of being forced to
make phone call after phone call to get routine care authorized or
having to wait longer than should be necessary to get an appointment
with a doctor in a limited network of managed care providers.
That is why I voted in the past for comprehensive managed care reform
bills that will deal with the federally regulated plans. This is why I
have confidence that I will again vote for a good patient protection
bill at the end of this debate.
We have heard some statements on the floor--I think maybe we ought to
bring a little reality to it--saying we have to pass this bill right
away. This bill is a moving target; it is a shell game, trying to
figure out which version is the latest version, what version is the
operative version. It did not go through the committee.
People talked about maybe we want to compromise some of it. Normally
the compromise, working out of these details, happens in committee.
That is why we send a committee markup to the floor. We did not do it
this time. So we are going to have to do the committee's work in this
Chamber.
But when I hear people talk about how there are 50,000 people being
denied insurance, we hear about tragedies that happen every day, some
say if we wait a day longer or a week longer, more patients are going
to get denied care--just a little bit of reality. The effective date of
the McCain-Kennedy bill is October of 2002. That is October of 2002, a
year and a quarter from now. So while it is important that we deal with
this bill, it is important that we not pass a bad bill. We have the
time, and we must take the time, to make sure what we do is a good
product.
Legislating is a difficult job. It inevitably involves striking a
balance between competing goals. In this debate, that tradeoff is
between specific patient protections and the costs those protections
will impose on an already strained health care system.
Mr. President, 43 million Americans lack health insurance coverage.
That is an important fact to remember and one we have to keep in mind
as we deal with assuring that patients are protected. Even if Congress
does nothing here, that number is almost certain to go up, perhaps
dramatically, in the
[[Page S6497]]
wake of health care costs that are shooting up 13 percent this year,
following a year in which they rose by 12 percent. That is more than a
26-percent increase in just 2 years, a rate that is not sustainable. I
might add, in the next year or two cost increases are expected to rise
by about the same amount.
The goal of managed care, of HMOs and others, is to assure health
care but to maintain some limit on the cost because anybody who has
studied economics 101 knows if costs are totally unreasonable, you are
not going to get the service. That service in this case is the vitally
important service of health care coverage.
Employers, particularly small businesses, make a valiant effort to
struggle through and provide health care insurance to their employees.
I have talked to and listened to an awful lot of small businesspeople
and their employees who are concerned about this particular bill as
well as health care costs in general. As costs go up, fewer and fewer
small businesses will provide care.
In our employer-based health care system, 75 percent of Americans
with insurance get all or some of that coverage through an employer. We
have to be careful. We have to be careful to ensure that we do not
drive, particularly small businesses, out of the business of providing
good health care coverage for their employees.
This is the dilemma. It is really the crux of what we will be talking
about over the next several weeks: Which patient protections are
worthwhile and when is the price of lost coverage too high?
Let me emphasize that. What is the cost in terms of health care
coverage to increasing the cost of health care protection? After all, a
pro-patient protection bill that takes away a family's health insurance
does not provide any protection at all. If they lose their coverage, we
have done exactly what we should not have done, and that is to deny
them any coverage.
With all this in mind--the importance of patient protections, the
danger of rising costs--what should we support? In the past I voted
for, and I will vote for again, a strong Patients' Bill of Rights that
contains basic, reasonable, commonsense patient protection.
This includes guaranteed access to emergency room care. Americans
should not have to worry their insurance company will not pay for
necessary emergency care or even for care that reasonably seems to be
an emergency. I have gone to the emergency room with problems that
looked very serious and after treatment found out, although they were a
problem, they needed care but they were not a critical emergency. But
those should be covered.
Second, a guarantee that patients get all information on treatment
options. Doctors and patients need to be able to discuss openly all
possible treatment options without gag rules.
Third, a right to a quick, independent, and expert appeal process.
There must be an appeal to a medical expert outside of the HMO to
guarantee the HMO is not focusing too much on its bottom line and not
enough on the patient's bottom.
The appeal must be quick so patients get care when they need it,
strong managed protections for our children, such as the ones I
included in Healthy Kids 2000 legislation 2 years ago. These include
the right for a child to go see a pediatrician without being forced to
see a nonpediatrician gatekeeper. Pediatricians are not specialists to
whom children need to be referred. They should be a child's first line
of care.
Next, the right for a child to see a specialist with pediatric
expertise, including going to children's hospitals when necessary.
Children are different from adults. Their care is different. Doctors
who primarily treat adults are not always prepared to interpret and
attend the unique needs of children. A sick child needs to go to
somebody who specializes in taking care of sick children.
The right to have a pediatric expert review a child's case when
appealing an HMO decision. Again, even an experienced medical
practitioner who deals only with adults may not have the ability, the
expertise, and the training to make a decision about what kind of care
a child needs.
Let me tell you a few things about what I do not support in the
patient protection debate. Unfortunately, I must put at the top of the
list of what I cannot support the McCain-Kennedy bill. The McCain-
Kennedy bill contains some good provisions--all of them do. There are
good provisions in all of these bills. But the McCain-Kennedy bill is
overzealous; it goes much too far towards creating a litigation-heavy,
costly new world of health care.
I will take the opportunity in the following days and weeks to go
into detail on some of the glaring problems presented by the McCain-
Kennedy bill and the profound threat this legislation poses to
continued health care coverage for millions of Americans. For now, let
me begin by highlighting the major flaws in this significantly flawed
bill.
Problem No. 1, the McCain bill will dramatically increase health care
costs and will take away the health insurance of more than a million
Americans. The new costs this bill imposes will be paid by everybody
who has health insurance. The lucky ones will just pay more. The
unlucky ones will lose their coverage. That price is simply too high.
Next, the cost of this bill will hit small businesses and small
business employees particularly hard. Without the clout of larger
companies, small businesses right now face higher prices and have more
difficult administrative hurdles when they try to buy health care.
While this makes it far more difficult for small businesses to provide
health care, millions of small companies try to find a way and do it
anyway. I fear that will dramatically change if the McCain-Kennedy bill
passes.
Since late last week when it was announced that we would be debating
the McCain-Kennedy bill, my office has been inundated with letters,
calls, and faxes from small businesses in Missouri. The message has
been unanimous. Missouri's small businesses are struggling to provide
health care despite high costs. They fear what the Kennedy-McCain bill
will do to their ability to pay for health care. Many say they will
drop their coverage if McCain-Kennedy passes.
This is not just a phenomenon related to my State. This is what we in
the Committee on Small Business are hearing from across the country.
Let me read excerpts from one of the many letters I have received. I
will not use his name, but I want to give you a flavor by telling about
the important parts of the letter.
He says:
I am writing this letter in regard to Senator Kennedy's
Patients' Bill of Rights, S. 283. My family owns a small
agriculture business selling certain kinds of farm equipment
and lawn equipment with a fully staffed sales, parts, and
service department. I offer health care coverage to my
employees and paid 100 percent on the premiums until about 5
years ago when our health care costs got too high to
continue. So I went to 50 percent on both the employees and
their dependents, thus helping our business but strapping my
employees with added costs to raise their families.
This year our health insurance went up 34 percent. Last
year, it was only 24 percent. But where is this going to
stop? How am I, as a business owner who has 23 families
depending on me for their livelihood, supposed to make a
profit in order to pay them a livable wage and benefit
package in a severely depressed agriculture economy while our
liberal Government leaders are trying to further increase my
expenses? If these costs escalate much further, I anticipate
that I will have to drop my health plan altogether,
especially if I am to be held responsible for medical court
cases. I will, at a minimum, drop my group health coverage
and think very long and hard about closing down and counting
my interest and rent checks instead of continuing to run this
business.
We need relief from Government regulations that are sucking all the
profits out of our organizations causing us to employ one person to do
nothing but Government paperwork. We need to eliminate the death tax or
inheritance tax. Please just say no to Kennedy care disasters.
From time to time during the debate on this bill I will read from
other letters from Missouri businesses to remind us of the real-world
impact of this legislation.
On this chart, I have an up to the minute count of the employees of
Missouri's small businesses that would, as I understand, lose their
health care coverage if McCain-Kennedy passes. These are letters from
small businesses
[[Page S6498]]
in Missouri that say that, as of this date, if Kennedy-McCain passes,
they will drop their health care plan. Our running total on the number
of employees who will lose health care if this bill is signed into law
right now is 1,042.
That may not seem to be a lot, but that is a tremendous burden on
those employees and their families. These are real people. These are
the ones who will be totally unprotected if we pass the McCain-Kennedy
legislation.
Rest assured that I will seek opportunities during this debate to
find ways to shield small businesses and employees from the most
outrageous aspects of this legislation.
I don't think anybody intended to cause health care coverage to be
dropped. That was certainly not my understanding of the objective of
this bill, but sometimes what we do here in Washington has unintended
consequences. Very often the unintended consequences are far greater
than the beneficial consequences.
Cost-benefit is something we neglect too often. I intend to make sure
my colleagues focus on the costs as well as the benefits.
A second problem of the McCain-Kennedy bill is that it focuses too
much on lawsuits and trial attorneys by encouraging endless litigation.
Lawsuits are an avenue for retrospective blame and incrimination after
someone claims they are harmed. Lawsuits in no way contribute to high-
quality care. Instead of turning health care over to lawyers, the focus
should be on making sure patients get the care when they need it before
any harm occurs.
When you are sick, you want to see a doctor--not a lawyer. When I
hear about all of these protections from subsequent lawsuits, I am not
very interested in leaving my heirs with a bunch of lawsuit claims
against a bunch of defendants if I am gone. I want to have a bill that
makes sure that I can get the kind of care I need when I am really
sick. That is what I think the American people have a right to ask.
A third problem of this bill is that it nationalizes the regulation
of health care. State governments have traditionally overseen health
care and health insurance, and, as I mentioned, every State in the
Nation has done something in this area. They have tried different ways.
Many of them have done good jobs.
I believe it was Justice Douglas who said ours is a laboratory where
States perform experiments to see which legislation works best. The
States have been out there doing it. In fact, as I said, every State
has passed some type of State level patient protection act. Now the
McCain-Kennedy bill comes along and threatens to impose a one-size-
fits-all scheme that will do away with most or all of the tried and
tested State law reforms. Some of them may be better than others. We
will not know if we pass the McCain-Kennedy bill that eliminates all
the State options.
Even worse, it will turn over much of the new Federal regulation of
insurance to the Health Care Financing Administration, one of the most
heavyhanded, unresponsive, arrogant bureaucracies in all of Washington.
I have spoken in this Chamber before about the Health Care Financing
Administration. A couple of years ago, the Health Care Financing
Administration was overzealous in its effort to cut the cost of home
health care. Instead of saving the $16 billion that Congress asked it
to save, it is on the path to saving $60 billion by shutting down
health care provided in homes.
As chairman of the Committee on Small Business, I was contacted by
many small entities providing home health care services. I set up the
hearing. I invited the representatives of these home health care
agencies who believed they were being unfairly treated by HCFA to come
to Washington. A number of my colleagues wanted to testify. I invited
HCFA to come and listen to their comments and provide their response.
It seems reasonable, doesn't it? You have a Government bureaucracy that
is the subject of all kinds of outrage. You let the people come in and
tell what they see as the problem. Then you give the bureaucracy an
opportunity to respond, to tell their side of the story.
Do you know what HCFA said? They didn't want to sit around and listen
to the complaints of those they regulate. They would be happy to
testify if they could testify along with other Senators. I forgot to
check to see how many States elected the officials of HCFA to serve in
the Senate. The best I can tell, none.
This is the agency that would tell State governments what kinds of
health care provisions they could have. I don't think so. That is not
the way we need to go.
Finally, in what I think is a major oversight in the Kennedy-McCain
bill, it doesn't do a single thing to help Americans get access to
health coverage. At the same time, it is threatening coverage from
millions of Americans. If we are going to do harm, we ought to be
prepared to help. That is why I intend to continue with my effort of
introducing an amendment that will immediately allow self-employed
Americans, including the 34.8 million uninsured Americans in families
headed by a self-employed individual, to fully deduct their health
insurance expenses.
Patients need protection through a Patients' Bill of Rights. But
there is a right way and a wrong way to do it. The right way limits
itself to commonsense reforms that help patients get care when they
need it. The wrong way--the McCain-Kennedy way--encourages endless
litigation, nationalizes health care oversight, and takes away
insurance coverage from more than 1 million Americans.
There are some people who say this bill is a lawyers' bill of rights,
not a Patients' Bill of Rights.
What is wrong with the right to sue?
The McCain-Kennedy bill is a trial lawyer's dream that will raise
health care costs, subject our health care system to frivolous
lawsuits, and will make trial attorneys rich. Despite Democratic
insistence, this will put employers at risk of being sued. The so-
called cap on damages in the McCain-Kennedy bill is practically
worthless because it applies only in one area and leaves a variety of
other types of damages uncapped. There are no caps on attorneys' fees
and the outrageous contingency fees many trial lawyers force on their
clients.
What types of lawsuits should we allow?
Because of the destructive capacity of plaintiffs' attorneys, we must
be extremely cautious with any new lawsuits. I realize there are some
situations where we need to expand the right to sue, but first
everything must flow through an appeals process through which a patient
can go outside the HMO to get an expert's second opinion.
Before we resort to lawsuits--which can't provide care--we must ask
patients to complete this appeals process because it can result in a
patient getting care. And that is what we should be talking about. But
if a health insurer doesn't comply with a independent expert decision
that a patient should get care, on it acts in bad faith or extreme
negligence by denying care that the independent expert says is needed,
the patient should be allowed to sue for damages.
The McCain-Kennedy bill limits punitive damages--although they call
it a ``civil assessment'' to $5 million in the new Federal lawsuits
their bill will allow. But economic and noneconomic damages in Federal
lawsuits are still uncapped. It won't be hard for trial lawyers to find
ways to milk these alternative types of uncapped damages for all they
are worth.
At the State level, the McCain-Kennedy bill does nothing to impose
caps on damages, even for punitive damages. While some States have
their own damage caps for malpractice lawsuits, in many States these
caps won't apply to the new lawsuits and the new Federalization of
State health insurance regulation permitted under the McCain-Kennedy
bill.
Bottom line--the caps in the McCain-Kennedy bill barely provide even
a fig leaf of protection for those who will be sued.
The State-level health care liability system that exists for doctors
has failed. It dramatically increases costs through defensive medicine.
It encourages doctors to quit the profession. And not only does it not
encourage quality care, it hinders quality care by creating a code of
silence that prevents health professionals from talking about how to
systematically avoid medical mistakes.
Studies show that most people who get negligently harmed in health
care
[[Page S6499]]
do not get compensated, and those that are compensated are often not
harmed. Again, studies show that whether or not a patient was
negligently harmed has almost no connection to whether they get
compensated.
The American tort system is like a lottery in which most patients
lose, a handful of patients win big on a random basis, and trial
lawyers strike it rich by raking off the top of each lawsuit.
This is a huge flaw in the system to which the Kennedy-McCain bill
will subject us even more.
Some supporters of the McCain-Kennedy bill claim their bill exempts
employers from the new lawsuits permitted by the bill. That is a great
line. My colleagues pointed out, on page 144 it says: This ``does not
authorize a cause of action against an employer or other plan sponsor
maintaining the plan . . .'' That is the good news. The bad news comes
in the next paragraph. It says:
(B) Certain Causes of Action Permitted. Notwithstanding
subparagraph (A), a cause of action may arise against an
employer or other plan sponsor . . .'' And then it lists the
exceptions. It goes down this page, goes down this page, goes
down this page, goes down this page, and comes over to this
page. Those are the exceptions. That is what happens to you
if you are an employer.
That is why, with four pages of exceptions, a lot of employers of
small businesses in my State and around the country are simply going to
have to get out of the business of providing health care. It scares the
heck out of them, and it should.
As we heard from small businesses, this is their concern. They want
good health care for their employees, but they cannot afford to stay in
business and expose themselves to the lottery of a tort system out of
control.
If employers are so well protected, why are they scared? Well,
simply, they are not exempt. If the right to sue is so great, why not
provide all employees the right to sue--Federal Government workers,
seniors in Medicare, all of the other causes? We look at it, and it is
probably too expensive for the Federal Government. Think of what it is
for the patients who are employees of small businesses. If they lose
their health care coverage, it does little good for them to know that
maybe--just maybe--they would have had the right to sue.
We are having the right debate, but the McCain-Kennedy bill is the
wrong solution. I urge my colleagues to take a look at this seriously
flawed legislation and to help us improve it. If we succeed in making
substantial changes, I hope we will pass a dramatically different bill
that represents a more reasonable and affordable approach.
I thank the Chair and yield the floor to my distinguished colleague
from Tennessee.
The PRESIDING OFFICER (Mr. Reed). The Chair recognizes the Senator
from Tennessee.
Mr. FRIST. Mr. President, how much time is left on this side?
The PRESIDING OFFICER. Three minutes forty-five seconds.
Mr. FRIST. Three minutes. Thank you, Mr. President.
I will be very brief. I commend the Senator from Missouri for
outlining what are really the fundamental problems in this legislation.
It boils down to the fact that essentially, with the same patient
protections that are in the Frist-Breaux-Jeffords bill, they offer it
at a price which drives hundreds of thousands of people to the ranks of
the uninsured.
The Senator from Missouri just had up a chart in relation to the
number of employees of small businesses who are going to lose their
insurance because of this bill. It tells the whole story. Over the next
several days we will be able to weave together why. But it goes down to
what the Senator from Missouri just outlined.
You have to read the bill. You have to look at the exceptions. In the
bill there is the statement that employers are excluded, but then you
go through exception after exception after exception, where you have
these lawsuits where the employer can be sued. That creates insecurity
and uncertainty for the future. Clearly, an employer is not going to
maintain that new liability which can put him or her out of business
the next day.
One of the problems we will get to in reading the bill--and I only
have a couple minutes now--is the fact that under the Kennedy bill,
once you get to court, you can go either to State court or Federal
court. If you do not like Federal court, you can go back to State
court. If you go to State court, since there are 50 different State
courts, you can shop from court to court.
If you are an insurance company, and you cover five or six States,
and a patient sues you, that patient will say: Well, they cover, for
example, Alabama, and there are no caps, no limits there--the tort may
be very different--I can sue for an unlimited amount. You have forum
shopping on the States.
You can go to State court or Federal court. If you go to State court,
there are unlimited economic damages under the Kennedy bill, and
unlimited noneconomic damages, and, for pain and suffering, unlimited
punitive damages.
Let's say you flip and go to Federal court. If you go to Federal
court, again there are unlimited economic damages, unlimited
noneconomic damages, and, yes, there is this $5 million limit on
punitive damages. You might decide to go back to State court: No caps,
no limits--shopping back and forth. That is what is in the underlying
bill.
Can it be changed? Hopefully, it can be changed during the debate.
Clearly, this sort of forum shopping between Federal court for
nonmedically reviewable decisions--in the new bill, which is just
introduced three nights ago, there is a whole new provision which
greatly expands what you can go to Federal court for, and I quote what
is in the new bill--it was not in the bill 5 days ago but is in the new
bill--``violation of any duty under the plan,'' which is a brand new
expansive right to sue.
Mr. President, how much time do I have at this juncture?
The PRESIDING OFFICER. The Senator from Tennessee has 50 seconds.
Mr. FRIST. Fifty seconds.
So we do have to read the bill. Again, it is going to take time as we
go through it line by line. When you see this expansive new right to
sue in Federal court, which was not there last week or a month ago or 2
months ago or in last year's bill--I don't know if it was snuck in; it
is in this new bill--all of a sudden it opens up a whole new category
for which you go to Federal court. But if you do not like that, maybe
you will decide to go to State court. There is no bifurcation in the
bill as written.
Once again, that is just an example of why we need to read the bill.
It is critical that we do so as we move forward; otherwise, we are
going to cause hundreds of thousands of people to lose their insurance.
Mr. President, I yield the floor.
Mr. REID. Mr. President, I yield to the Senator from Maryland.
Mr. SARBANES. Mr. President, during the next few days, we have the
opportunity to finish important work that was started years ago. We can
finally enact meaningful patient protection legislation by passing the
McCain-Edwards-Kennedy Bipartisan Patient Protection Act. The time has
come to ensure that patients of managed care organizations receive the
protections that they deserve and HMOs can be held accountable when
they wrongfully delay or deny coverage.
Many times, it is difficult for people to understand how the issues
we debate here relate to their everyday lives, but that is not the case
with patients' rights legislation. The preponderance of managed care
organizations makes it crucial that participants in these plans have
basic protections. Over 25 percent of the U.S. population is enrolled
in an HMO. Over 60 percent of Americans and over 75 percent of insured
employees are in some form of managed care. Receiving health care
through managed care organizations is not a matter of choice for most
of the 160 million Americans in these plans and uniformly providing
quality care should be the standard for health insurers.
I hear from my constituents about this issue constantly and they are
anxious for this legislation to be debated, voted on, and signed into
law. They want guaranteed access to specialists. They want to be sure
they can receive emergency services as soon as possible and from any
appropriate provider. They want to be able to participate in life-
saving clinical trials. They want a fair, independent and timely
appeals process when HMOs deny care. And they want to know that their
HMOs will be held accountable for the harm
[[Page S6500]]
caused by wrongful denials or delays in coverage. The Bipartisan
Patient Protection Act ensures patients receive common sense
protections and this bill provides these protections without
significantly increasing health care costs or unfairly opening
employers up to liability.
Like my colleagues, I have heard from hundreds of constituents who
are deeply concerned about the unfair treatment they receive from their
HMOs. They have been in situations that any of us would dread. They
discover they are ill, or that their child or spouse is ill. These
situations are taxing enough, but many of my constituents and many
Americans throughout this country find that in addition to fighting a
personal or family illness, they have to muster extra strength to
battle their HMO. When people are at their most vulnerable, they are
being treated unfairly and being denied the care to which they are
entitled. This legislation will put a stop to these practices.
The McCain-Edwards-Kennedy bill would not subject an employer to
liability for HMOs unless the employer ``directly participates'' in a
health treatment decision. Only those very large employers who run
their own HMO would be liable. So if an employer were not acting as an
HMO, they would not be held accountable as an HMO. In addition, the
Congressional Budget Office has estimated that this legislation would
only modestly increase costs--4.2 percent over 10 years. Of this modest
increase, only .8 percent is attributed to the liability provisions of
the bill.
As we debate this measure, the experience of one of my constituents
comes to mind. She is a young woman who loves the outdoors. One weekend
during a hiking trip in the Shenandoah Mountains, she lost her footing
and plummeted to the ground from a 40-foot cliff. Though she suffered
significant injuries, she was fortunate to have survived.
Unfortunately, her fight to get well was not the only challenge she
faced after her accident. Her HMO denied her claim on the grounds that
she had failed to gain pre-authorization for her emergency room visit.
She fractured her arms, pelvis and skull. Her survival was largely
dependent upon her being airlifted from the trail to a nearby hospital
and her bills climbed to over $10,000.
Apparently her HMO wanted her to call for preauthorization before she
received emergency care. This would have been an impressive feat for
her considering she was unconscious at the foot of a mountain. I am
unsure exactly when this young woman was supposed to have made this
call to her HMO. When she was unconscious on the ground with broken
bones? Or maybe when she was in the helicopter being flown to the
emergency room?
The fact that she had to fight with her HMO to pay the claims for
over a year illustrates the importance of this legislation. All this
time, the unpaid hospital bills stacked up and almost forced her into
bankruptcy. Unlike many stories, this one did not end as tragically as
it could have. This young woman did eventually get her insurer to pay
her medical expenses, but only after the Maryland Insurance
Administration ordered the HMO to do so. Her unnecessary ordeal and
other stories that end up in tragedy show us that the time has come to
stop the delaying tactics and pass meaningful patient protection
legislation.
If an HMO wrongfully denies care, if it purposely limits diagnostic
tests, if it refuses to cover necessary emergency care, if it withholds
access to a needed specialist all in the name of saving money, then the
patient who was harmed by these actions should have the right to hold
that HMO accountable.
Now we have a bipartisan effort to move this legislation. The authors
of this bill have worked tirelessly to try to please opponents and they
have made significant adjustments. They have limited punitive damages
in Federal court to $5 million. They have allowed State caps on damages
to stand. They have prohibited parallel causes of action in Federal and
State court. However, they have not and should not refuse to abandon
the main principles of any true patient protection legislation. We have
to make sure any bill we pass is as strong as the bill the House passed
in 1999.
I commend Senator Daschle for placing such a high priority on
patients' rights legislation. His decision to make it the first bill to
be debated on the floor under his leadership shows his commitment to
this issue. The McCain-Edwards-Kennedy legislation provides strong,
enforceable Patients' Bill of Rights. This bill is long overdue and we
should pass it now.
Mr. REID. I yield to the Senator from Washington.
The PRESIDING OFFICER. The Senator from Washington is recognized.
Mrs. MURRAY. Mr. President, I thank the Senator from Nevada for
yielding me time.
Families across our country are being denied the medical care they
need. These are people who have insurance. They paid their premiums.
They think they are covered, but when they need care, too often they
find their insurance company is most concerned about its immediate
bottom line rather than their health care.
Like my colleagues, I cringe at the stories I have heard: A parent
taking a child with a 105-degree fever to the emergency room in the
middle of the night only to be told later that their insurance would
not pay for the care that was needed; doctors offer their best medical
opinions only to see them overruled by an insurance company. Too often
the system makes it harder for patients to get the care they need.
There is more of a focus on short-term costs than quality care.
The truth is those decisions by insurance companies and HMOs have
real consequences. A child's condition may worsen. A dad might not be
able to go to work. A mom may need around-the-clock medical care. But
under the current system, these patients have no legal recourse. If the
company they paid medical coverage to makes a bad decision, there is
little recourse. That is wrong. That is one of the problems I hope we
can fix by passing the Bipartisan Patient Protection Act.
For several years, I have been working in the HELP Committee, with my
colleague presiding today, and here on the floor to make sure that
patients get the kind of care they need. Last Congress, the other side
put forth a very hollow bill that excluded many Americans and didn't
provide the protection patients needed. But this year, we finally have
a real chance to help families. That is why I am proud that this is the
first major bill being offered in a Democratic-controlled Senate.
I support S. 1052, the Bipartisan Patient Protection Act. It gives
patients the protections they need. During this debate, many amendments
will be offered. Some of them will weaken the bill and draw the debate
away from patient protections. I will call those attempts as I see
them. I will work to make sure that patients' rights are not watered
down over the course of the debate.
Health care quality and access are top issues for people in my home
State of Washington. A few weeks ago, I spoke at a forum on health care
in Olympia, WA. We were expecting at the most maybe 100 people would
come to that event. When I arrived at the Olympia Center, I saw almost
600 people packed into the auditorium and into rooms they had opened
for overflow. They turned out in tremendous numbers and spoke with such
great passion because they are concerned about access to health care.
As we begin this year's debate in the Senate, I want to outline some
of the problems of our current system and some of the reforms I believe
are really needed. I do mention that we are not trying to eliminate
managed care. In fact, it is important that we have ways to coordinate
care and focus on prevention and wellness and to diagnose problems
sooner. When the incentives are right, managed care can work.
In Washington State, it has helped play a role in improving life
expectancy, lowering infant mortality, and ensuring women get
mammograms. Unfortunately, however, today the incentives are all wrong.
They focus more on cost than on care, more on a company's short-term
financial health than on a patient's long-term physical health. We need
to change the incentives so people are fighting illness, not fighting
their insurance company.
We need to make sure insurance protects you when you become ill and
prevents you from becoming sick in the first place. We need a system
where
[[Page S6501]]
doctors are not spending 45 minutes on the phone with an insurance
company so a sick child can be admitted to a hospital. We need a system
where parents can take an injured child to the closest emergency room
instead of one that is miles away because the insurer demands it. We
need a system where the ultimate decision rests in the hands of
patients based on the best medical advice of their own physician.
We need simply to restore the doctor-patient relationship. Too often
today a doctor is allowed to be little more than a consultant.
Sometimes his or her recommendations are accepted. Other times they are
not because someone else made a decision for that patient, someone who
has not even seen that patient and who is not even a qualified or
licensed health care provider. We need to help companies that are
trying to do the right thing but are being beaten out by some bad
players. We need a system where patients will know up front what their
own rights are.
These days it is only when they become seriously ill that patients
learn how good or bad their insurer or their HMO is. That is why we
need clear, uniform, Federal quality control standards that protect all
consumers. Those are some of the changes we should seek.
I now turn to a few specific points I will be fighting for in this
debate.
First of all, we need to guarantee access to specialty care.
Secondly, we need to guarantee access to clinical trials and
comprehensive care. We need to cover emergency treatment and not just
the care provided in the emergency room itself. We need to make sure we
protect as many Americans as possible. Some bills have such a limited
scope that many patients would get no protection.
Finally, we need to make sure that plans are held accountable for
health care decisions and that the external review process is objective
and timely.
Those are some of the things I will be fighting to make sure we keep
in this debate.
We know that patients aren't getting the care they need. We know what
the problems are, and we have a bill in front of us that will fix them.
The American people have been waiting too long for real health care
protection, and we have an obligation in the Senate to give them the
coverage they need. That is what this coming debate will be about.
I yield the floor and I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. KENNEDY. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Massachusetts is recognized.
Mr. KENNEDY. Mr. President, a number of our colleagues want to
address the Senate. So I will speak briefly this afternoon.
I want to come back to one of the provisions I believe is so
important in our legislation. I don't think there really should be any
doubt about our strong commitment in the Senate to protecting American
patients on the issue of clinical trials.
As I mentioned earlier when I had a brief exchange with my friend and
colleague from North Carolina, I think any Patients' Bill of Rights
that is going to be worthy of its name is going to provide good
protection for clinical trials. As I have mentioned on other occasions,
we have seen a vast expansion of basic research and commitment by this
body. We have doubled the NIH budget in recent times. Recently we have
witnessed the mapping of the human genome and the sequencing of genes.
Rarely does a day go by when we don't hear on radio, see on
television, or read in the newspapers about some new kind of medical
breakthrough. These breakthroughs can make a very important difference
in the quality of health and life for American patients. Our whole
biotech industry has been increasingly effective at making progress in
areas which we could not have possibly have imagined. It is true with
the orphan drug program, which we intend to reauthorize this year. On
just about every front, we have seen the most remarkable progress. But
in order for that progress to take life, we have to see the progress
made in the laboratory get to the patient. The key aspect of this
transition is clinical trials.
We believe clinical trials offer enormous hope for thousands of our
fellow citizens. What we have seen in recent times is that one of the
most serious abuses by HMOs is the denial to participate in clinical
trials. Had these patients been involved in clinical trials, in many
instances their lives would have been saved. This has been commented on
by our colleagues. Their lives would have been greatly enhanced if they
had been able to participate in these clinical trials.
I still remember very clearly the testimony we had before our HELP
Committee on this issue a number of months ago. We had the director of
the Lombardi Center, named after the great football coach, here in
Washington. We asked him about what their principal challenges were as
a research center. He said they had hired a number of people, and the
people they hired were professionals. However, what they were hiring
them for was to wrestle with the insurance companies to permit those
individuals who ought to be included in the clinical trials to be so
included. They had seen a significant expansion of that--far too many.
He said they could have used those resources for additional kinds of
trials and benefits for consumers. But he gave so many different
examples of people whose lives were basically diminished and, in many
instances, lost because of the failure of inclusion.
In the provisions of the McCain-Edwards bill, there are protections
which are routine in terms of clinical trials that must be followed. In
order to participate, there has to be the prospect that the individual
can make progress, and the patient also has to meet other kinds of
basic requirements. The last time we debated this issue on a Patients'
Bill of Rights, the Senate finally accepted a study on whether clinical
trials were really useful, productive, or helpful for American
patients.
It is difficult for me to believe that was the final resolution for
this body, but it was. What concerns me greatly is the issue of how we
are going to eventually resolve this issue.
Recently, the Medicare Program has expanded their clinical trials
program. They had to deal with a number of issues. They had to deal
with unanticipated patient care costs as a result of participation in
the clinical trials. They had to deal with a number of these matters.
It is interesting to note that the alternative proposal from Senator
Frist and Senator Breaux has a clinical trial provision, but their
provision will substantially delay implementation. A fair review of
their provision reveals the clinical trials would not go into place for
probably 4 or 5 years and also their bill excludes unanticipated
patient care costs as a result of participation in clinical trials.
The reason they delay implementation is they want a further study on
the allocation of costs between the clinical trials and the insurance
companies. The fact is, that study has already been done. That review
has already been made. The facts are in and they have been examined,
reexamined, and examined again. They are being implemented at the
present time and are virtually unchallenged.
We have to ask ourselves why we should have a whole other additional
process that is going to delay clinical trials under the proposal of
our colleagues. I have not heard the justification or the rationale for
that.
Also, the alternative to the McCain-Edwards proposal excludes the FDA
clinical trials. That, I understand, is directly as a result of the
request of the insurance industry.
That does raise important questions because the FDA reviews are some
of the most advanced reviews, some of the most important reviews, and
some of the trials are at the edge of potential benefit to consumers.
Yet they are completely excluded. They are included in our proposal
because we value those important clinical trials.
This provision of clinical trials may not seem as important, but if
one asks the breast cancer coalition in this country about what is
extremely important in the protections of women and the treatment of
women, they will mention clinical trials.
[[Page S6502]]
If one talks about other dangers of cancer, by and large, the issue
of clinical trials will be at the top of their list, a top priority, a
top patient protection, and we believe in that. We share that view.
This is something that is absolutely essential if we are going to move
ahead with the protections of patients.
We have done that previously. We have seen how there had been an
allocation of resources historically between the insurance companies
when they covered patients and the trial itself as a general
understanding, as I mentioned, under Medicare, about those allocations
of resources, what should be allocated for the clinical trial and
expenses associated with that, and also what would be allocated by the
continuation of care which the HMO would be otherwise required to pay.
One of the loopholes that has been added to this is the issue about
some reaction to the clinical trial that may be related to the illness
or not, say, someone going in under a cancer protocol and then having
some kind of adverse reaction as to make their situation more
complicated. Yes, that may happen in certain circumstances, but it does
seem to me we ought to address that. We have done that in the past.
There is no reason we should not. That has not presented itself as an
impediment to moving ahead on this issue. We ought to be able to get
that behind us.
I am strongly committed to ensuring that whatever comes out of this
body in terms of the Patients' Bill of Rights has these protections.
I might mention a note from the Cancer Society:
On behalf of the American Cancer Society and its 28 million
supporters, I am writing to respectfully request that you
allow debate on the Patients' Bill of Rights to move forward
and that you support the ``Bipartisan Patient Protection Act
of 2001.'' As the largest voluntary health organization
dedicated to improving cancer care, the Society has set the
enactment of a patients' bill of rights that provides strong,
comprehensive protections to all patients in managed care
plans as one of its top legislative priorities for this
session of Congress.
While the Society does not have a position on health plan
liability, we have identified several other provisions that
are critical to cancer patients.
This is what it is, Mr. President. We are concerned about what is
critical to cancer patients in this country. It is spelled out here. I
will take a few moments to mention them.
Specifically, we advocate the patient protection
legislation that provides all insurance patients with:
Increased access to clinical trials--assuring that cancer
patients who need access to the often life-saving treatments
provided in both federally and privately-funded or approved
high-quality, peer-reviewed clinical trials have the same
coverage for routine patient care costs (e.g., physician
visits, blood work, etc.) as patients receiving standard
care.
Prompt and direct access to the medical specialists.
Patients facing serious or life threatening illnesses, such
as cancer, need continuity of care--
This legislation provides it--
the option of designating their specialist as their primary
care provider--
This legislation provides it--
and the ability to have a standing referral to their
specialist for ongoing care.
Our legislation provides it.
Strong, independent, and timely external grievance and
appeals procedures.
Our legislation provides it.
Mr. President, the letter continues:
We are particularly pleased that--
McCain-Edwards--
includes a strong clinical trials provision that provides
access for cancer patients and others with serious and life
threatening diseases to both federally and privately-
sponsored high-quality, peer-reviewed trials.
The FDA trials as well as other trials.
Clinical trials are a critical treatment option for cancer
patients and are also essential in our nation's efforts to
win the War Against Cancer. Without clinical trials, new or
improved treatments would languish in the laboratory, never
reaching the patients who need them. Unfortunately, only
three percent of cancer patients currently enroll in clinical
trials. Part of the problem is that many health insurers
refuse coverage for a patient's routine care costs if the
patient enrolls in a clinical trial--effectively denying
access to life-saving treatment.
We are interested in dealing with the challenges of cancer in our
society, which is the top killer and the one that is most dreaded.
I remember a great leader in the Senate, Warren Magnuson. He was
instrumental in setting up the National Institutes of Health, and
strongly supported the Cancer Institute. He said his dream of a
newspaper headline was ``Cancer Conquered.'' That is something most
Americans agree would be the best possible headline.
Clinical trials are indispensable. Nineteen percent of the children
who have cancers are involved in clinical trials. We have had the
greatest progress and breakthroughs in the area of children's cancers.
Researchers say a very significant reason for that is because of their
involvement in clinical trials. We have made slower progress dealing
with other cancers, and we have reduced numbers of people included in
those trials.
The PRESIDING OFFICER. The time of the Senator is expired.
Mr. GREGG. Mr. President, this bill is a very significant bill. It
impacts about everybody in America; about 200 million people presently
have health insurance. As a result, if we passed a bad law, the
unintended, or intended, consequences of it could be dramatic.
It is important to take a hard, intense look at what is being
proposed by Senator McCain and Senator Kennedy as their bill. This is
in the context of bills which have already been proposed by Members
from our side, some which are bipartisan such as the Breaux-Frist-
Jeffords bill; some do not have Democratic sponsorship, such as the
Nickles amendment. All have as their basic purpose the same intent
underlying--certainly I give credit to the McCain bill for this. The
basic intent is making sure individuals are properly treated when they
interface with their insurance companies; that they have an opportunity
for redress that is effective, which allows them to be sure that if
they get poor treatment, they have some way to correct it; and that if
they are harmed by their health care provider, they have the ability to
recover proper compensation for that harm.
That is a goal all Members have. Everyone who is debating in this
Chamber understands the importance of making sure that Americans who
get health care have adequate recourse when that health care is not
supplied correctly. It is also equally important Americans have a
certain set of rights when they are dealing with their health care
provider in areas such as the type of physician they would see and the
type of referrals they would get and the issue of specialists. That is
also equally important.
All the proposals that have come forward address that issue. I have
not yet heard of a case from the other side of the aisle--and they have
presented a number of anecdotal cases, and they are compelling, people
who have had problems with their insurers. I have not heard one of
those cases where that individual would not have had the ability for
redress or be taken care of under either the Nickles or the Breaux-
Frist-Jeffords bill. The issue is not about that. It is not about
whether or not we are concerned about individuals getting fair
treatment from their insurer. It is not about individuals having a set
of rights which are protected when they deal with their doctor, who is
representing their insurance company, or whether they deal with their
insurance company. That is not what this issue is about.
It comes down to a couple of substantive questions as to the
differences. The first involves States rights versus Federal rights.
That is called scope. It is a question of what authority do we have as
a Federal Government to take over authority which has traditionally
been handled by the States, especially in the area of insurance.
Insurance has traditionally been a State responsibility.
As a former Governor, I know it is something every State takes very
seriously and is very committed to. New Hampshire's laws for protecting
patients are much more aggressive than proposals in any of the three
packages here. That is one element of difference. The other element is
something I want to talk about, the area of liability. Liability is a
term that has huge implications. The practical effect of the McCain
bill, no doubt about it, is that there are going to be created
innumerable opportunities for lawsuits to be initiated against not only
insurers but equally against employers, small employers and large
employers. Mom-and-
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pop grocery stores, mom-and-pop gas stations, mom-and-pop restaurants,
small, struggling production facilities, software companies, and large
employers--Wal-Mart, Ford, whatever, the big ones--those employers are
suddenly going to find themselves drawn into literally hundreds of
potential opportunities for liability.
What is the effect of that? The effect of that is a large number of
employers, especially small and midsize employers, are going to throw
up their hands and say: Hey, listen, I can't afford the risk.
The average malpractice lawsuit in this country costs about $77,000
to defend if you are in an employer situation. There are a lot of small
employers for whom $77,000 is their entire profit margin for the whole
year. They may get hit with a multiplicity of lawsuits under this bill
that do not exist today. This is a new law created for the purposes of
creating new lawsuits. This is a bill that is of the lawyer, for the
lawyer, and by the lawyer--for the trial lawyer. And the practical
implication is that a lot of employers, a lot of people who want to
take care of their people they work with, are not going to be able to,
and they are going to simply have to drop their insurance. They are
probably going to replace--some of them, the more substantive, will be
able to replace their insurance by saying to the employee: Go buy your
own insurance. Here is the money.
They will never get as good a package in most instances as their
employer could get for them because they will not have the ability to
negotiate with the strength of a large number of individuals.
Individuals seeking individual policies simply get charged a lot more
than groups that have been pursued as a result of a group of employers
banning together or even one large employer banning together and
pursuing an insurance company. The quality of the insurance will drop
for those individuals. An even greater number of employees are simply
not going to have insurance at all because small and midsize employers
are simply not going to be able to afford it and they will simply
eliminate it as an option they present as a benefit in their workplace.
So there will be more uninsured.
How can you possibly call something a Patient's Bill of Rights when
the practical effect of the bill is to create more people who don't
have any insurance at all? So they don't have any rights; they don't
have any insurance.
If that is the practical effect of the bill, and it is--you don't
have to listen to me. Listen to an independent group such as CBO which
has scored this bill as putting 1.2 million people out of insurance.
That is the conclusion they came to because of the additional costs
that result from the lawsuits, in large part. Those people are not
going to have insurance. They don't get any new rights under this bill.
They lose all the rights they had. Yet this is claimed to be a
Patient's Bill of Rights. Very inconsistent, to say the least.
In the process of setting this bill up, there has been a presentation
from the other side that they actually took the other bills that had
been pursued in the last couple of years--remember, we have not had a
hearing on any of these bills in our committee now for 2 years, which I
think is a little bit much--to bring a bill of this size to the floor
without any hearings at all so the people who are going to be affected
could have a forum to make their points.
Independent of that, there were over the last couple of years bills
brought to the floor. There was the prior McCain bill, the prior
Kennedy bill, and the prior Norwood-Dingell bill.
The representation has been that the McCain bill has moved to the
center from those two bills that were introduced before. In fact, that
is not true at all. This bill is much more to the left, and by the left
I mean it is much more oriented towards undermining the rights of
people to buy insurance and have health insurance. By moving to the
left, I mean it interferes much more with States rights and it places
much more liability on the backs of small employers and also large
employers.
This bill moves significantly to the left, not to the center. There
are ways to move this bill to the center. Breaux-Frist-Jeffords is a
bill that has moved to the center from the Nickles bill that was
debated and passed in the Senate last year. If you want to argue
center, left, right, this bill moves way out into left field, as
compared with the original bills which were introduced and were already
pretty far out in left field. This bill, if it were in Fenway Park,
wouldn't be in left field; it would be in the bullpen. Well, actually
that is in right field. It would be behind the Green Monster.
I point out a few areas where this occurs. First, as I have
mentioned, it significantly expands liability for employers. Sponsors
of the McCain bill say they have compromised by including a $5 million
cap on punitive damages. However, the cap only applies in the Federal
liability provisions added to the bill--it is sort of a bait-and-switch
thing--and not to the more expansive liability provisions under State
law.
One of the ironies of this bill is you can go forum shopping. This is
one of the favorite things trial lawyers like to do. I used to do a
little bit of trial work. You love to forum shop. You find out what
court has the best judge; you find out what court historically has the
juries that give the highest award; you find out what court has the
best rules to improve your capacity to win your case on procedural
grounds; and you move to that court. If it is a Federal court, you go
Federal. If it is a State court, you go State. Under the present law,
you cannot do that. You cannot bring an ERISA claim in a State court.
But under this bill, it expands dramatically the opportunity for forum
shopping. Then it says: But, hold it, we put in a cap so you don't have
to worry about that.
Unfortunately, there are a lot of States that have no cap. They have
no limitation at all on damages.
Further, the bill itself allows unlimited damages for economic and
noneconomic losses--damages within the Federal court system. It expands
the right to sue for violations of duty under the plan. This is a
brandnew concept. It creates a whole new cause of action out there
where employers will suddenly become liable for contractual activity on
HIPAA or COBRA or ERISA that they are not liable for today, relative to
a private lawsuit.
I have a chart. I don't have it on the floor today because I had it
up so often I thought people might be getting tired of it. But it shows
there are potentially 200 new causes of action just on this one point
alone.
Then it says it does not have punitive damages. In fact the earlier
bills did not have punitive damages. At least H.R. 990, which I think
is the original Norwood bill, did not. But, in fact, it creates a new
term of art, which is essentially punitive damages, and it allows those
damages, as I mentioned, to be recovered at the rate of $5 million.
Here is a bill that says it is moving more to the center when, in
fact, in the liability area it dramatically expands forum shopping, it
dramatically expands punitive damages opportunities, it dramatically
expands the number of lawsuits that can be brought on the issue of
contracts and contractual obligations of the employer--all of this is
directed at the employer--and it dramatically expands, in Federal
court, economic and noneconomic damages that can be recovered against
the employer. All of this is new. A brandnew attack on the employer by
the trial bar will be allowed under this bill.
This is not moving to the center. This is moving to the left.
Another example, the McCain-Kennedy bill effectively requires that
all States pass new patients' protection laws identical to the new
Federal requirement. This is a huge step, an intrusion into States
rights. Earlier versions of the legislation, both the Daschle-Kennedy
bill last year and the Norwood bill, used the standard under the Health
Insurance Portability and Accountability Act to determine whether or
not State laws would be preempted by the new Federal patients'
requirements. That standard does not prevent the application of this
Federal law versus requiring the application of the Federal law.
The latest McCain bill adds new barriers for States by requiring that
State laws be substantially equivalent to and as effective as each new
Federal patient protection requirement. This two-part standard will
effectively require every State to renegotiate and pass a whole new
group of provisions in order that their laws be virtually identical
with the Federal provision. If the State fails to do so, the Federal
Government will take over and enforce those rules in every State.
[[Page S6504]]
So I cannot see how you can claim this bill moves to the center when
the practical effect of this section is to essentially usurp and wipe
out States' activities in this area.
My colleague from Maine just spoke a little while ago. She put up a
list that showed literally almost every State in the country has
aggressively addressed the issue of patients' rights and has
established a set of requirements and rights which flow to the patient
that are fairly consistent with what we all seek in the Senate. But if
they are not exactly or substantially equivalent to and as effective as
the Federal law, they will be overruled and the Federal Government will
come in and usurp the State authority and actually take over the
State's insurance enforcement.
We have had State insurance enforcement in this country for quite a
while and it has worked pretty well. So you cannot say a bill moves to
the center when it essentially says ``to heck with the States, we are
coming in, we are the big boys, you are out of the game because we know
better than you, State legislatures. You, the State legislature, are
not interested in the people who live in your States. We here in
Washington are.''
That is not a movement to the center. That is a dramatic, if not
radical, move to the left, to centralization of power here in
Washington at the expense of the States.
In addition, another example of the fact this bill does not move to
the center but moves way off beyond the Green Monster, out beyond left
field, out past Lansdowne Street, probably down by the Massachusetts
Freeway--actually it is not a freeway; it costs money--the
Massachusetts Turnpike is the effect this bill has on the ability to
bypass the appeals process.
The prior proposals, earlier versions which were pretty far left, out
there in left field, as I said, of the bill provided where injury or
death had already occurred, and therefore the appeals process would be
futile, the patient would not be required to exhaust the appeals
process before going to court. The new version permits a person to
bypass the appeals process and go directly to court to seek monetary
damage if the harm would occur by going through the process.
That may sound reasonable, but you have to read behind that language
for the practical impact of what it is.
It is noteworthy that this exception would allow lawsuits for
virtually unlimited monetary damages rather than simply allowing
patients to get the care they need if they would be substantially
harmed by completing the review process.
The new version of the McCain bill also contains a late manifestation
provision. This is an amazing provision because this provision
essentially says that if the appeal process period has run and you
decide that you have a manifestation of harm as a result of being
treated, you no longer have to go to the appeal process; You can go
directly to court.
The practical effect of this language is essentially to eliminate the
statute of limitations. Under this law there is a total abrogation, in
my humble opinion, of the statute of limitations. That is a move to the
left.
As a trial lawyer, I love the idea that I never have to worry about
the statute of limitations because if my office happens to make a
mistake and not reach that 3-year window or that 6-year window, I am
not going to be subject to the errors and omissions suit that I might
get hit with by my client because, if there is no statute of
limitations, I will never miss the filing requirement.
But going back beyond the manifestations language, this concept that
is totally different than what was in the original Dingell-Norwood bill
and the original Daschle-Kennedy bill that you as a patient do not have
to exhaust your administrative remedies before you go into court, but
you simply have to claim harm, and then you can go right after monetary
damages, is a dramatic undermining of the capacity to have an effective
appeal process. You essentially have no appeal process.
Now all you have are court decisions. Nobody is going to go down the
appeal process route. Everybody is going to race to the courthouse with
this bypass language.
The way it should be structured, obviously, is that, sure, if you are
injured and you are going to suffer as a result of having to go through
the appeal process and you are not getting a response, you should be
able to go to court, but you shouldn't get the monetary damages at that
time. You should get whatever you need in order to get the right
medical care, then go back to the appeal process and find out what the
proper resolution should be and then move into the court system for the
monetary issues.
That is the logical approach. It is actually the approach, for all
intents and purposes, that was in the original bill. Now we have
another example of moving way over to the left and not moving back to
the center, which this bill claims to do. It doesn't move to the center
at all.
These are not minor issues--the liability issue, going straight to
court issue, and the States rights issue. These are not minor issues.
These are big questions in the scheme of how we deliver health care.
The reason they are big questions is because, if this bill passes, it
is going to fundamentally change the way health care is delivered in
this country. It will push a lot of people into the uninsured ranks. As
a result, you are going to have this huge momentum for the
nationalization of our system.
At this point, I see our leader coming on the floor. I know he has
comments that he wants to make. So I will yield the floor.
The PRESIDING OFFICER. The Republican leader is recognized.
Mr. LOTT. Mr. President, timewise, what is the situation now? Has the
time been divided? Is it in blocks of an hour?
The PRESIDING OFFICER. There are 6 minutes 40 seconds remaining.
Mr. LOTT. Thank you very much. Mr. President, I will try to take
advantage of that time and make a few remarks. Maybe then I can come
back and talk again later.
First of all, I wish to comment briefly with the time we are using
now. I think it is an important part of the process that we have
opening statements and descriptions of what is in the pending bills--
both the Kennedy-McCain-Edwards legislation as well as Breaux-Frist and
other legislation--so we can see where the similarities are and find
where the problems are.
We did not want to go forward with the amendment process on Monday
because there had been changes made in the underlying bill on Thursday
of last week, June 14. I presume there will still be more changes
offered by the sponsors of the legislation, whether it is Senator
McCain, or Senator Edwards, or others, as problems are identified and
as consideration is given to the reservations. Those will be either
amendments or substitutes that will be offered.
I make the point that we are not interested in prolonging the
consideration of this legislation. We are prepared to go to the vote in
the morning on the motion to proceed. We are prepared to begin the
amendment process on Thursday afternoon. Hopefully, we can make
progress on amendments on Thursday and Friday and on into next week.
I also hope we will find a way before the Fourth of July recess to
complete action on a supplemental appropriations bill. A lot of that
will depend on whether or not the Committee on Appropriations can act
tomorrow on what is in that legislation. We need to get that done or we
are going to see more problems develop with the Department of Defense
being able to keep our ships steaming and our planes flying. We will
need to do both of these issues as much as we can during the next week.
Let me emphasis a couple of points. Others have noted that many of
the core components of the various bills that have been offered,
whether it is the original Nickles proposal, the Breaux-Frist-Jeffords
proposal, or the McCain-Edwards-Kennedy proposal, have a lot of
similarities.
Let me talk a minute about where we agree. We agree that we want a
Patients' Bill of Rights to protect patients and to ensure those
patients get the care they have been promised. That is why we believe
so strongly that we need an immediate review process that will get a
result hopefully within a managed care entity or an outside review if
that is not satisfactory inside of the managed care entity and that it
be
[[Page S6505]]
done on an expeditious basis and not drawn out. Get a result.
That is why the idea of going immediately to court has such little
appeal to me because legal action, while it might get beneficial
results that would be helpful to the heirs, may be of no value to a
patient who will have had all kinds of problems, and perhaps even die,
before the conclusion of a lawsuit.
All of the bills have a review process. The important thing, in my
opinion, is that the review be quick and that it get the results. If
the result is not satisfactory, then there has to be some process to
get it considered in the courts. I think we will find a way to do that.
We agree that patients have to have access to specialists. That is
what caused us to get into the need for a Patients' Bill of Rights.
After the managed care concept was established and started going
forward, it was doing a good job. It was providing care at a reduced
cost. But some of the managed care entities started to make mistakes.
The difficulty is they wouldn't make medical records available to
patients, which were their own medical records. You can't have that.
The idea that you would have to get permission from some other
organization to go to an emergency entrance is unacceptable. You have
to have access to emergency care in case of an accident, or whatever.
Or if you have an OB/GYN doctor seeing a pregnant woman who then leaves
that managed care operation, she should be able to continue to have the
care of that OB/GYN.
There is no question that we need to make sure that common sense
applies and that there is access to physicians. We need to have some
way that cancer patients can have access to clinical trials. We need to
make sure there is access for women to surgical treatments or for
breast cancer. We need to make sure that patients will be able to
continue to see their doctor, if the doctor no longer works for the
health care plan.
There is a long list of places where we agree that there needs to be
access to information that patients and beneficiaries need. We need to
make sure that there are new quality measures available.
We should not ignore the fact that there is a lot of common ground.
We, clearly, have some areas where we disagree. Of course, primarily it
is when, where, and how you have a lawsuit.
I was a lawyer years ago. I was with a trial firm. We did defense
work. But we also occasionally filed some plaintiffs' lawsuits.
I am not opposed to having access to the court systems. Americans
deserve that right. The question is, Who can be sued? Should a person,
or an entity, an employer, that has no involvement in the decision that
is made based on business reasons, costs, or medical purposes be sued?
Naturally, a good lawyer will throw out his dragnet and bring in
employers, doctors, nurses, the managed care entity, the insurance
company--everybody who is within range and, by the way, look for the
one with the deep pockets. That is what you really want. You want the
one from whom you can get the money.
I think we need to be very careful about who is covered by these
lawsuits and when they can be filed. Unless and until the review
processes are exhausted, we should not be resorting to legal action.
Also, where a lawsuit is filed does make a difference. I know for
sure from my own personal experience, since some of my very closest
friends and relatives are plaintiff lawyers, that there is this little
thing of forum shopping: Let's look around and find the county in the
State where we could get the highest judgment. Or maybe it is in a
Federal court; let's pick and choose. Or maybe let's file in both
Federal and State court.
In my own State of Mississippi, there are a series of articles being
done by a Gannett newspaper, the Clarion-Ledger, that would not
ordinarily do an article such as this, noting that there are one or two
particular counties in my State that are considered a plaintiff's
wonderland, where you can get massive damages if you go into these
particular counties. By the way, our insurance commissioner--a very
fine insurance commissioner of many years a Democrat--has noted that 46
insurance companies have said: We are leaving this State. We are not
going to face these exorbitant, ridiculous judgments in this particular
county, Jefferson County, MS.
So where you file does make a difference. We need to pay attention to
that.
Of course, there is also the question of how much in damages. Is this
about a result or is this about a lawsuit? Do we want health care or do
we want legal action? Do we want a reasonable judgment for losses that
you have incurred or do we want pain and suffering and punishment?
Those are basic questions.
But I hope we can bring all sides together and get a result. I want a
result. I want us to pass a Patients' Bill of Rights. I think we need
it. It is the right thing to do. And I am tired of hearing about it. It
is time to act. It is kind of like what we did in the tax relief bill
on the marriage penalty. We have been talking about it for 10 years,
about how it is unfair, and that we ought to get rid of it. My question
was, Why haven't we done it?
We can do this if both sides can be reasonable. I talked to the
President yesterday. There is no doubt in my mind the President wants
to sign a reasonable and fair Patients' Bill of Rights. But there is
also no doubt in my mind he will veto the McCain-Edwards-Kennedy bill
in its present form.
I hope we can go through this amendment process, address the delivery
questions, the liability questions, and also see if we can find a way
to make health care more accessible to many Americans who are not now
covered. Small business men and women have a hard time, even when they
really want to, making sure all of their employees are covered because
even if they offer them the coverage, and pay half the cost, many
employees say: We just can't afford it. We are not going to do it. So
they are not covered.
Can't we find a way to give them access to coverage or to help them
with the expenses of that coverage? I think we can. I think this is a
bill where we can help address that.
Let me note that the distinguished Senator from Nevada is on his
feet. I would be glad to yield.
Mr. REID. I just want to say to the Republican leader, you do not
have to use leader time. You should not be rushed. Even though you are
on Democratic time, you are welcome to it.
Mr. LOTT. That was about the nicest way I have ever been told my time
has expired. That is why I was talking fast. I did want to get in a few
remarks. I appreciate Senator Reid noting that.
At this point, I will yield the floor because we have had very good
cooperation in going back and forth every 30 minutes.
I would like to continue that. I will take advantage of leader time
another time. But thank you very much, I say to Senator Reid.
I yield the floor.
The PRESIDING OFFICER (Mr. Dayton). The Senator from Alaska.
Mr. MURKOWSKI. Mr. President, I wonder. There was an agreement that
we would go into morning business at 5 o'clock and that I would be
recognized at that time.
Mr. REID. I would say to my friend from Alaska, we were told the
Republicans would have no one to speak at 4:30. But that was not
factual. People did come. And they have used 35 minutes of the 30
minutes. Senator Reed has been waiting.
We would ask, under the agreement that we entered into earlier today,
that he use his time. I wanted to speak, but I say to my friend from
Alaska, if you are the last speaker for the Republicans, I have to be
here to close anyway. Senator Reed wants to speak for up to 10 minutes.
I say to the Senator, you can speak for however long you desire.
Mr. MURKOWSKI. I respond to the assistant majority leader, I would
probably need not more than 10 minutes.
Mr. REID. Mr. President, I ask unanimous consent that the Senator
from Rhode Island be recognized for up to 10 minutes--is that adequate?
Does the Senator from Massachusetts wish to speak anymore today?
Mr. KENNEDY. Mr. President, I look forward to addressing the Senate
tomorrow morning.
Mr. REID. Mr. President, I ask unanimous consent that the Chair
recognize the Senator from Rhode Island for 10 minutes; following that,
the Senator
[[Page S6506]]
from Alaska for 10 minutes; and then I will close out the evening with
whatever time is necessary for that to be done.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Rhode Island.
Mr. REED. Mr. President, I rise today to support the McCain-Edwards-
Kennedy bill and to commend the authors. They have done some great work
in trying to reconcile a very pressing need in this country; that is,
to give patients the ability to get the health care they need and,
indeed, that they either paid for or their employer paid for.
Today I have heard discussion that this is just about lawyers who are
going to enrich themselves. But I think that argument misses the point.
The point is, there are lots of lawyers on the other side, on the HMOs'
side, who are using their skills to deny patients what they thought
they purchased with their health care plan, where they are able to use
all the loopholes that are rife throughout our statutes, not to provide
care but to provide the insurance companies with an out.
The McCain-Kennedy-Edwards bill clarifies the rights of patients. It
makes them specific. It makes them less debatable. Let's make these
rights less a contest of lawyers on both sides and more something that
the patients of America, the citizens of America, can expect will be
their right to demand and receive when they pay for health insurance.
So when you have situations where, instead of specifying, as the
McCain-Kennedy-Edwards bill does, the right to a pediatrician as the
provider of health care services for a child or a pediatric specialist
for a child, you have something nebulous like a physician with age-
specific qualifications, that is the type of ambiguity that is rife for
the competing proposals, and that leads to the denial of care to
Americans. In fact, it leads to lots of controversy, strife,
discussion, and debate.
So this legislation has been well crafted over many months to
specify, delineate, and clearly give patients their rights; in fact, to
give them what they believe they are paying for. And they are already
paying a lot.
So I believe that this bill has made great progress in moving from
the version we considered in the last Congress in this Senate Chamber,
and the version that has been proposed by Congressman Norwood and
Congressman Dingell in the other body; and we are moving close, I hope,
to legislation that can receive the support of this Senate, which can
go forward and be combined with a very similar bill on the House side
offered by Congressman Norwood and Congressman Dingell, and then go to
the President for his signature.
What it would do, I believe, is to, again, specify clearly,
unequivocally, what Americans can expect from their health care
provider.
There has also been lots of discussion that this really is going to
pull in countless numbers of employers, small businesses, who are going
to be ensnared in a web of litigation because of this legislation. But
that ignores the very specific language in the McCain-Edwards-Kennedy
bill that says that an employer can only be liable if that individual
played a direct role in a decision to deny a treatment of health care
services to a patient. This is not the situation where a small business
buys a Blue Cross plan or buys an HMO plan. This is a situation where
an individual in that business organization makes the decision to say:
No, don't give that service to that individual who is covered by my
plan--a very unlikely circumstance, but one I think most people would
agree, if you are making those types of decisions, you should at least
be potentially liable for the consequences of those decisions.
I believe the discussion of an employer as being ensnared in this web
of lawsuits misses the very specific language of the bill. It certainly
is not the intent of this legislation. It never has been. With the
refined language and the very specific language, I don't think it will
be the effect of the legislation either.
We know that this issue is creating a great deal of controversy
around the country. It is generating the activity of interest groups
left and right. This morning, early today, the junior Senator from Utah
spoke about a doctor who was contacted by the American Medical
Association to call the Senator and support the McCain-Edwards-Kennedy
bill. In the course of the discussion, he discovered that he really
didn't support the bill but he favored the Frist-Breaux-Jeffords
approach.
That is not the only calls that are being made out there in America
as we speak and debate here. My office received a call from a
businessman in Rhode Island instigated by the National Association of
Manufacturers who said: Call your Senator and tell him not to vote for
Kennedy-Edwards-McCain. But when we spoke with the individual, when we
explained the provisions of the bill, particularly the provisions with
respect to potential lawsuits against employers, he concluded that the
Kennedy-McCain-Edwards bill was the type of legislation he could
support because he is not just an employer; he is just not a
businessperson; he is a family man. His wife had recently been sick,
and he understood the difficulties that are faced in trying to get
health care out of an insurance company that is committed to the bottom
line, not the health care, principally, of their insured members. He
preferred, after discussion, the type of protections included in this
bill.
I hope that is a sign that when we can come here to the Chamber and
clearly explain the contents of this legislation, we can convince many
people across the country that this legislation is in the best interest
of the families of America.
Now, I have for several years been working to ensure that this type
of legislation pays particular attention to children. I am very pleased
to say that the McCain-Edwards-Kennedy bill incorporates many of the
provisions of legislation I have submitted along with many colleagues.
It protects the right of families to have a pediatrician as a primary
care provider and the right to make referrals to a pediatric
specialist, not just a specialist. There is a vast difference between
an adult cardiologist who may have seen a child 1 or 2 years ago and a
pediatric cardiologist who specializes in those types of problems for
children. If you are a parent, that is the specialist you want to see.
This legislation provides for that access clearly, unequivocally.
The alternative legislation would say the company can find someone
who has a specific qualification. Again, the lawyers for the insurance
company can find many ways to suggest that that is the gentleman or
woman who might have seen a child 2 years ago, a cardiologist, rather
than the more expensive doctor not in their plan who is, in fact, a
pediatric cardiologist.
This is real progress on the bill. I commend the authors for doing
this and pushing forward.
There is one area I would like to see included in addition to what
has been done. That is a proposal I have made previously on a
bipartisan basis with Senators Jeffords and Collins to create for each
State an ombudsman, someone who can be a point of reference and
referral to individuals who have questions about their health care
plan. Before you even get into a long, protracted internal review or
external review, there should be an individual you can contact and say:
Do I have a problem here? I think I am covered for this procedure. Am I
really covered for this procedure? That type of advice, that type of
objective information on a systematic basis can do much to resolve the
potential specter of a plethora of lawsuits.
It is a worthwhile initiative. I hope my amendment can be
incorporated into this bill. Indeed, I am preparing to offer such as
amendment along with Senators Wellstone, Wyden, and Clinton. I hope
when the process begins for amendments, we can make that improvement to
what is already a very fine bill.
This is a very clear issue when you boil it all down. Do you stand
with the families of America who deserve health care coverage they paid
for or do you stand with the insurance companies whose major concern is
their financial solvency and well-being? This legislation stands with
and for the families of America. I support it.
I yield the floor.
The PRESIDING OFFICER. Under the previous order, the Senator from
Alaska is recognized.
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____________________