[Congressional Record Volume 147, Number 89 (Monday, June 25, 2001)]
[Senate]
[Pages S6845-S6860]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
BIPARTISAN PATIENT PROTECTION ACT--Continued
amendment No. 810
The PRESIDING OFFICER. The Senator from Missouri.
Mr. BOND. I thank my good friend and colleague from West Virginia and
thank the Chair. I also thank my good friend from Iowa who has agreed
to let me speak for a few minutes and who is also helping with the
easel. He is what you would call a full service Finance Committee
ranking member.
I am here today to talk about the Gramm amendment to the McCain-
Kennedy patient protection bill. I have been in this Chamber before to
talk about this issue as it affects small businesses.
In my role as ranking member, and formerly as chairman, of the Small
Business Committee, I have had the opportunity to hear from lots of
small businesspeople, men and women from around the country. There are
an awful lot of them from Missouri who have called me to express their
concerns. Let me tell you they have some very real concerns about this
McCain-Kennedy bill.
The particular issue before us today deals with whether or not
employers should be able to be sued through new lawsuits permitted by
the McCain-Kennedy patient protection bill which is supposed to be
targeted against HMOs.
We keep hearing how they want to sue the HMOs. Our colleagues on the
other side of the aisle seem to be of two minds on this issue. Some
adamantly refuse to admit that their bill actually permits litigation
against employers at all. They claim that only HMOs can be targeted.
That is simply flat wrong. This has been pointed out numerous times in
this Chamber by me and by my colleagues who have actually read the
language from the McCain-Kennedy bill, which I have before me.
I encourage any American who has been confused by the claims and
counterclaims on whether the McCain-Kennedy bill allows any suits
against employers to get a copy of the legislation. Go to the bottom
half of page 144 and read the truth for yourself. Page 144 has the good
news that:
Subject to subparagraph (B), paragraph (1)(A) 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 is that part (B) says: ``Notwithstanding subparagraph
(A), a cause of action may arise against an employer or other plan
sponsor'' under certain clauses and pages and exceptions; and it goes
from the bottom of page 144 to pages 145, 146, 147, and 148. That is
how you can be sued if you are an employer.
There are some on the other side of the aisle who admit their
legislation allows trial attorneys to go after employers but claim
these lawsuits are only permitted in narrow circumstances. I give those
colleagues and friends credit for greater honesty, but I fault them,
nevertheless, for bad analysis because the fact is, the so-called
employer exemption from lawsuits in the McCain-Kennedy bill is an
extremely complicated and confusing piece of legislative language that
will inevitably subject large and small employers to lawsuits and the
high cost of defending them.
Before I came to this body, I practiced law. I know what a gold mine
of opportunity rests in this language. Oh, boy, if I were on the
outside and this were the law, and I wanted to sue an employer, this
would be an interesting but not difficult challenge.
We all know you really cannot protect anyone 100 percent from being
sued. For better or for worse, any American, with just a little help
from a clever attorney, or just an average attorney, can file a lawsuit
against any person or any business. The case may be dismissed almost
immediately, but they can still file it.
What this means is, if we want to protect employers from frivolous
litigation--and this is what everybody says they want to do--we need to
give employers protection that will help them get the frivolous
lawsuits dismissed immediately, before the lawyers' fees really start
to build up. To get these immediate dismissals, you really need clear,
distinctive language that makes 100 percent clear what types of
lawsuits are and are not allowed.
How does the Gramm amendment make that clear distinction? By saying
that you cannot sue your employer, period.
How does the McCain-Kennedy bill try to make a clear distinction on
which they say employers can rely? They have a basic guideline that
says employers can't be sued, but then they have four entire pages of
exceptions, definitions, and clarifications that substantially weaken
and confuse that protection. In those four pages there are enough
ambiguous words, phrases, and concepts to keep trial attorneys in
business for years.
If a plaintiff's lawyer is clever enough--and whatever else I think
about them, I know my friends in the trial bar are clever--they are
going to find ways to bring lawsuits against employers. In their zeal
to get at deep-pocket employers, trial lawyers are going to poke and
prod at every word of these four pages looking for weaknesses. Many, or
most, will be able to find something to convince a judge not to dismiss
a case. The result: A raft of new lawsuits against employers, added
expenses, and an enhanced fear of being sued.
That scares the devil out of employers all across the country, as it
should,
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because if there is one thing our legal system has shown employers, it
is that their fear is justified; they are not paranoid; they really are
coming after them.
The cost to defend a single lawsuit can easily extend into the tens
or hundreds of thousands of dollars. Particularly for these small
employers, these expenses are difficult, if not impossible, to bear and
could put them out of business. Even if the employer has some type of
insurance to cover this legal exposure, the cost of insurance can be a
scary prospect in and of itself.
I mentioned before in this Chamber I have received hundreds of
letters from small businesses in Missouri. The first issue that almost
all of them bring up is whether they can be sued under the McCain-
Kennedy bill. Let me read just a few points from a few of them. Simply
put, this issue is their No. 1 concern when it comes to patient
protection legislation.
Here is one from a lumber company:
We are currently extending health insurance coverage to our
25 employees. We pay two-thirds of the premium; employees pay
one-third. At our last renewal, we were faced with an 18-
percent increase, some years in the past being even greater.
Future increases will force us to continue to offer less
coverage. If Senator Kennedy's bill passes, this may just be
the nail in the coffin. We are willing to suffer with higher
prices to an extent, as long as they are fair and justified,
but we are not willing to open ourselves up to the liability
that this bill may subject us to.
Here is another one, a small business, a fabricator:
We are a small company with less than 25 enrollees in our
health plan. With the increase in health care costs,
utilities, and supplies, we are not making much of a profit.
And if this continues, we may not be able to stay in
business. We employ between 50 and 75 employees. We also do
not see how an employer can be held legally responsible for
medical court cases. We will eventually be forced, by Mr.
Kennedy's bill, to cancel our health plans because of the
liability and cost.
In fact, the National Federation of Independent Businesses--one of
the strong voices for America's small businesses--believes so strongly
about this amendment that they are going to list it as a key vote: Are
you with us or are you against us? Small businesses are going to know
by how our colleagues vote on this amendment.
For those folks fortunate enough not to be familiar with the ways of
Washington, that means that they believe the vote on this amendment
will be one of the most important votes cast during the entire year.
They intend to use it in their evaluation of Senators' voting records.
All this begs the question: If employers are so well protected by the
McCain-Kennedy bill, why are they so scared? Why is NFIB placing such a
level of importance on this vote? Why are small businesses in Missouri
sending me these letters? Is it because they are not protected? The
answer is, they are not well protected.
The McCain-Kennedy bill made a halfhearted try and failed. I related
last week several times what the running score was of small businesses
that said that they would be forced by this measure to get rid of
health care coverage for their employees. Here is today's total: 1,751.
That is just a small sample nationwide. These are the number of
employees whose employers have written us since they saw the details of
the McCain-Kennedy legislation to say they don't want to be involved in
tort reform roulette on health care costs. If McCain-Kennedy passes
unamended, if their exposure is as written in this compendium of
exceptions, exclusions and qualifications, they will terminate their
health care plans. Total number of employees covered to date: 1,751.
I suggest that is just a microcosm of small businesses across the
country. I have talked to others who have not written in. In our
country, most employers voluntarily offer health care coverage, and
they are the source of health insurance for the majority of Americans.
Overwhelmingly, Americans are employed and get their health care
coverage from their employer. The quickest way to destroy the system we
now have is to create an atmosphere where employers stop their
voluntary willingness to offer coverage. Sure, it is an important
benefit, but who wants to be hauled into court if one of their
employees has a medical or health care complaint?
Right now we have 43 million Americans who are not covered by health
insurance. We have debated many measures in the Senate to find out how
to cover those employees. I was terribly disappointed that on a party-
line vote last week, this body voted to reject my effort to give 100-
percent deductibility for self-employed people. We have been fighting
to get that done for a long time. This is a tax bill. It is going to be
a tax bill. There is no question about that. That tax provision to get
more people covered should have been included.
What we are talking about now is expanding significantly the number
of uninsured Americans. Sixty percent of the 43 million who are not
covered now are employees of small business. We don't want to add to
that number and add to the 43 million. Given the lottery nature of our
current legal system, I can't think of anything that would make the
employers more fearful and more likely to drop coverage than to say:
Hey, you are not authorized to file suit against your employer but
notwithstanding subparagraph (A), cause of action may arise against an
employer or other plan sponsor, et cetera, et cetera, page after page.
If we want to avoid American businesses dropping coverage on a
wholesale basis, employers need to be protected from lawsuits. That is
quite simply what the Gramm amendment does. We need to get good health
care coverage for all Americans. Yes, we need to give them internal and
external appeals. We need to make sure they do not get shortchanged. If
they get denied coverage, they need to go to another doctor who is
independent, who could order their HMO or their health plan to provide
them coverage. What they don't need is to start suing their employers
because employers will drop health care coverage like a bad habit, if
they think they are going to be subjected to a whole range of lawsuits
as a result of the dissatisfaction of an employee with health care
coverage.
I hope our colleagues will take a look at the impact of this on small
businesses and their employees and accept the Gramm amendment.
I yield the floor.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Mr. President, if I could enter into a colloquy with my
friend from North Carolina, the manager of the bill, I have been on the
floor now for a week relative to this legislation. It is interesting to
see how the scapegoats come and go.
Does the Senator from North Carolina remember last week that the big
boogeyman was the fact that this was a disguise to get socialized
medicine, that what the intent really was was to have this onerous bill
pass and everyone would drop their insurance and we would have
socialized medicine? Does the Senator remember that?
Mr. EDWARDS. I do remember that.
Mr. REID. Does the Senator remember that they were talking about a
States rights issue; that it was none of the business of the Congress;
that all of these States were doing a good thing; let them do what they
want with how they handle patients and doctors. Does the Senator
remember that debate?
Mr. EDWARDS. I do remember it.
Mr. REID. There was a significant period of time last week when there
was some discussion about this legislation allowing HMOs to be sued, as
if that were some novel approach to the law, to the world. Does my
colleague remember that, when it was a surprise that they read the bill
and, lo and behold, HMOs could be sued? Does the Senator remember that
discussion?
Mr. EDWARDS. I do.
Mr. REID. The assertion regarding socialized medicine is, for lack of
a better description, kind of foolish. Regarding States rights, they
learned very quickly that wasn't much of a winner. Then the fact that
they were surprised about the lawsuits, of course, that was a surprise
that they were surprised.
I also was here, as the Senator from North Carolina was, when they
spent a great deal of time talking about this novel concept they came
up with, that you should be able to deduct 100 percent of the cost of
an employer's health insurance. What they failed to tell us is that is
something we have been pushing for a long time. In fact, it was put in
the tax bill of the former chairman of the committee who is now
present. That was put in the tax bill. Of course, it was taken out in
conference. My colleague remembers that. As a result of
[[Page S6847]]
the games being played, that amendment was defeated.
Today, starting the second week of this debate, I now see a new ploy;
that is, they suddenly are saying that now you can file lawsuits--and
we are OK with that--but what you are doing is, all the employers in
America are going to be sued as a result of having health insurance for
their employees, and they are going to drop all their insurance.
With this as a background, I want the Senator from North Carolina to
comment about the latest direction; that is, that employers will be
sued to death.
Prior to addressing that, I want the Senator to recognize that I have
been here longer than the Senator from North Carolina. I have heard
this NFIB argument for almost 20 years. If you do this, the NFIB is
going to send out a note that you are a bad legislator and they should
not vote for you.
In my approximately 20 years in the Congress--I could be mistaken
because I am sure once in a while they do it just to look good--I have
never known the NFIB to support a Democrat. So all these threats about
``you do this and we are not going to support your candidacy,'' the
vast majority of the time, the NFIB is a front for the Republicans. I
am saying that; the Senator does not have to agree with me. To this
Senator, the threats we have heard today that ``the NFIB is not going
to support you'' is no threat to me. They have never supported me, no
matter what I did or didn't do.
I would like the Senator to respond to the several questions I have
asked. But prior to responding, I have the greatest respect for the
senior Senator from Texas. He is a fine man, a good legislator. He has
a Ph.D. in economics. He taught economics. If he were here--he knows me
well enough and I know him well enough--I would say that with his being
in the Chamber. As to his reference to his friend Dicky Flatt, which he
uses all the time, I think Dicky Flatt and others better be very
careful of people such as my friend, the senior Senator from Texas,
giving legal advice. He can stand here and give some good economic
advice, but the legal advice we should look at very closely. I think
Dicky Flatt should look at that.
I ask my friend from North Carolina, to whom I can't give sufficient
superlatives as being more than renowned in the law, a person who has
made a reputation around the country as being a good lawyer, to give
some comment to the Senate and to those within the sound of our voices
as to what he thinks about these continual statements made today--in
fact, people are reading the same information. The same person wrote
the same speech for several people. I would like the Senator to tell me
and the rest of the Senate the fear that an employer who has health
insurance for his employee should have as a result of this legislation.
Mr. EDWARDS. I will respond to the Senator's question. I say to my
colleague from Iowa, who has been waiting for some time, that I will be
brief and I will yield the floor to my friend because he has been
waiting to speak.
First of all, the arguments being used serially, one after another,
are all arguments that have been trotted out by the HMOs for years now.
They are the arguments they make to avoid any kind of reform. They like
it just the way it is now. They are different than every other business
entity or individual in America, and they want to maintain the status
quo. The Senator knows very well that they are spending millions of
dollars on lobbyists, public relations, and on television to defeat any
kind of HMO reform. So these arguments go to a really fundamental
question: Are we going to move forward or are we going to stay where we
are?
There is a consensus in this country among the American people, among
the Members of this body, among the Members of the House of
Representatives, and among virtually every health care group and
consumer group in America, that this needs to be done--``this'' being
The Bipartisan Patient Protection Act.
There is a reason for that consensus--because we need to do something
about this issue that has lingered for so long. For every day that
passes, while we engage in what sometimes is high rhetorical debate on
the floor of the Senate, there are thousands of American citizens,
children and families, who are being denied the care for which they
have paid.
Now, it is all well and good for us to have an academic discussion in
the Senate about this issue. But there are families and kids all over
this country who are not getting the tests they need, not getting the
treatment they need, not getting the medical care they need because
this legislation has not been passed.
Now, having said that, let me respond specifically to the Senator's
question. First, as to the employer liability issue, the Senator knows
that John McCain and I worked for months on it. There was a bill in the
House of Representatives--the Norwood-Dingell bill--which passed and
provided somewhat broader exposure of employers to liability. Senator
McCain and I worked, because we are concerned about this issue and we
want employers to be protected, to draft our bill with that goal in
mind.
President Bush has issued a written principle which is almost
identical to our bill. He says, as we say, that unless an employer
actually makes a medical decision on an individual patient, they should
be exempted from liability. We believe that is what our bill does. The
Breaux-Frist bill--the other bill--has another model, what is called a
``designated decisionmaker.'' But it also holds employers, through the
designated decisionmaker, responsible where they make individual
medical decisions.
So what we have is our bill, the Norwood-Dingell bill that already
passed the House, President Bush's principle, and the Breaux-Frist
bill, all of which start with a very simple concept; that is, employers
ought to be protected unless they step into the shoes of the HMO and
make medical decisions.
The only different position is that of Senator Gramm in his
amendment. His position is inconsistent with all those positions,
including the President's, inconsistent with the legislation that
passed the House, inconsistent with the Breaux-Frist bill. His position
is the extreme position. What we are working on as I speak--and we
worked on it this past week and over the weekend, Republican and
Democratic Senators both--is language that we believe will be
appropriate and will help provide more protection for employers.
But what can't be left out of this discussion is the patients; you
can't forget the patients. I listened to my friend from Missouri speak
a few minutes ago. I didn't hear the words ``patient,'' ``employees,''
or ``families'' spoken by him. I think his concern about employers is
to be respected, and that is the reason we want to work together on
this issue. We have to always keep in mind, when we are trying to
protect employers, that we also have the rights of employees and
patients to take into account.
So the right approach is an approach that allows us to provide
maximum protection for the employers, without completely ignoring the
interests and, in fact, protecting the interests of the patients at the
same time. We believe that is what we do. We believe that is what the
President has suggested.
There are issues in this debate about which there is great
disagreement, but this is not one of them. This is one where regarding
the President in his principle, us, and the Breaux-Frist proposal,
there are minor differences between them. The bottom line is that all
of those start with a simple concept and principle. It is a matter of
making sure the language works in an effective day-to-day way.
Mr. REID. I heard the Senator say right now the legislation, in his
estimation, protects employers, but if there can be more refinement to
that, he will be happy to work with whoever can give him that language;
is that true?
Mr. EDWARDS. That is true. We will continue to work on it, going
forward. We are continuing to work on it as we speak. If we can find a
way to maximize protection for employers with appropriate language and,
at the same time, not ignore the interests of the patients, we will do
that. I believe that can be done. So do Senators on both sides of the
aisle who are talking about this particular issue.
Mr. REID. If, however, we didn't change it in any manner, you could
still rest well at night that you and Senator McCain had worked very
hard
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to take care of this issue on employer liability.
Mr. EDWARDS. We have. We worked long and hard. I believe we have
protected employers from many of the concerns that those across the
aisle and on both sides of the aisle have raised. But I am the first to
say this is an issue on which we should work together to make sure we
have language that works to protect America's employers.
I yield to my friend from Tennessee.
The PRESIDING OFFICER (Mr. Hollings). The Senator from Tennessee is
recognized.
Mr. THOMPSON. Mr. President, the Senator from Iowa has graciously
agreed to let me hold forth here for just a few minutes. If no one has
an objection, I ask unanimous consent that he be recognized immediately
after me. I don't expect to take more than 5 minutes.
Mr. REID. Reserving the right to object, I could not hear the
Senator.
Mr. THOMPSON. I will speak about 5 minutes and then the Senator from
Iowa will speak for himself on how long he wants.
Mr. GRASSLEY. I intended to speak as long as I wanted to speak just
as everybody else has been doing all afternoon.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mr. THOMPSON. Mr. President, I have been listening to the debate, and
it sounds to me as if we are making progress with regard to this
employer issue. We started out without a recognition that this bill
provided substantial exposure to employers. The statements that were
made by the sponsors of the bill were that they really didn't intend to
hold employers liable, except under very limited circumstances. Now,
apparently, they agree that perhaps there was more exposure there than
was originally intended.
So, as I understand it, some discussions are taking place now to,
hopefully, bridge the difference and provide additional protection for
employers because what we are doing--what I understand the purpose of
the legislation is--is to provide some judicial access, judicial relief
against health care plans and against HMOs, and that the thrust of this
legislation was not to hold employers liable because employers don't
even have to provide these plans if they don't want to.
While it is all well and good to suggest that we give people new
remedies and rights, we have to balance that out with the realization
that it is going to have some repercussions.
If we go too far and do too much to penalize employers, they are
going to walk away from health care coverage. Instead, as pitiful as
some of these stories are that we have heard over the last several days
about what has been done to individual patients, I hope we do not come
back in a couple of years and have to listen to people who have no
insurance at all because of legislation we passed driving employers--
and small employers--out of the health care business. That is a real
possibility, and nobody wants that. We need to be careful.
I suggest that if we really want to carve employers out of the
lawsuit business, if we did not mean to cover employers, all we need to
do is say so. All we need to do is provide an exemption for employers
the same way we provide exemptions for doctors and the same way we
provide exemptions for treating hospitals. We provide blanket
exemptions for them, but we have to go through all these various pages
of rigmarole and definition to try to figure out when an employer who
is providing this health care coverage can be sued and when he cannot
be sued.
The law of Texas has been upheld. The President's name has been
invoked. The law of Texas has been used as an example. The law of Texas
exempts employers from their plan.
The concern is there is a group of employers who are basically self-
insured who handle these claims on the front end themselves. They do
not hire this out. They do it themselves. I believe if you talk to
professionals in the industry, they will say that some of the best
plans with some of the most comprehensive coverage of any of the plans
out there are these self-insured plans. One of the reasons may be that
they cut out the middleman. They do not have an HMO to deal with at
that stage of the game, and they provide good, comprehensive coverage
for their employees.
By definition, they are making decisions on the front end. By
definition, under this bill, from the day it is passed, they will have
exposure. One might argue that is a good thing or one might argue that
is not a good thing, but there is no question with regard to those
plans, some of the better plans out there--because employers decided to
provide these plans, they wanted to cover their employees, they wanted
to do it themselves--that they will be exposed.
One has to ask oneself, what are they going to do the day after this
legislation is passed? Are they going to continue to hold themselves
for this kind of additional liability? Are they going to contract it
out to a third person and pay the additional freight to get them to
assume the liability, driving up costs all along the way? I do not know
what they will do. I know what they will not do. They will not stand
pat.
The things we do in this Congress have an effect on the lives of the
American people, whether it be raising taxes, lowering taxes, or
whatever. There will be some repercussions in terms of the behavior of
these employers. I hope it is not to wind up with less coverage and
fewer of these good plans.
One says: They are not going to have anybody to sue if you do not
have HMOs and the employers are involved on the front end of it. This
bill has set up an elaborate external review entity.
My colleagues say we do not talk enough about patients. This
legislation sets up a review entity that allows an independent
qualified individual or group of individuals to make decisions with
regard to whether or not that employee is being treated fairly. That is
a strong move in the direction for patient protections. If we stopped
right there and did not do anything else, that would be a major move in
this legislation, away from the simple ERISA coverage we have right
now.
This bill spends 10, 12 pages setting up this external review process
and the external review entity on how they have to be qualified, how
they have to be independent, how we have the Secretary looking over
their shoulder, all of which is designed to protect the patient.
Under this system, if the entity rules against coverage, then they
can go to court and sue, or if he rules for coverage, it goes to
another independent individual who is the independent medical reviewer.
So there is another level of independent protection for the employee.
It is not as if they are out there hopeless and helpless and totally
at the mercy of the employer. The employer may have had some discretion
on the front end for sure and made some decisions for sure, but then he
goes through this independent appeals process where people who have no
relationship with the employer make the decisions as to whether or not
there is coverage.
We have exempted doctors. We have exempted hospitals. HMOs are not
different in this country from many other entities and entities that
have been created in this bill. We exempt States from certain lawsuits.
We exempt the Federal Government from certain lawsuits.
The Senator from North Carolina and I are exempted from the things we
say in this Chamber. We are protected because there are tradeoffs.
Everybody knows that. We make decisions because of public policy
reasons to make tradeoffs. If we want to encourage certain conduct, we
are willing to make tradeoffs the other way.
It is unfair, when we are in the context of a particular area,
legislation dealing with health care, to pick and choose as to among
whom we are going to make those tradeoffs, especially if we are giving
exemptions to the people who are providing health care--doctors and
hospitals--and we do not give exemptions for the people who are
providing the health coverage, the employers.
That is the gist of what we are dealing with, and hopefully we can
work out some agreement.
My bottom line is, if you do not want to cover employers, and if you
believe we may be in danger of causing some good folks to say it is not
worth the additional headache, it is not worth the additional exposure,
it is not worth the
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additional expense to set up different entities to protect ourselves,
if we are concerned about that, we need to take that into consideration
with any resolution, not to mention the exposure this bill has under
other provisions of ERISA.
We have not even talked about that. At least I have not. I have not
heard any discussion about that. Employers have exposure under COBRA,
under HIPAA, under other areas of ERISA that have nothing to do with
health coverage. They have employer exposure if they make any mistakes
in dealing with that.
Remember we debated Kennedy-Kassebaum, and we decided people needed
to have more portability with their insurance. We decided the fair
thing to do was to give them more portability for their insurance and
included a penalty of $100 a day plus injunctive relief for an employer
who did not behave himself. We debated this liability issue then, and
we decided not to do it.
Now what we are doing parenthetically in this HMO bill is bringing
back Kennedy-Kassebaum and bringing back COBRA and saying in addition
to these penalties we put on the employers when we considered that, we
are now going to open that up to litigation and lawsuits. That is a
major step, and it should be done only with maximum consideration, and
it must be considered in the context of any treatment of employer
liability in any compromise we might fashion.
I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. Mr. President, I thank the Senator from Tennessee for
what he just said. It was very good for me to let him respond to the
other people who have spoken. I particularly suggest to the Senator
from Tennessee that there is probably not as much concern on the part
of the proponents of this legislation as to whether or not some of the
self-employed plans will be abandoned if this bill passes because the
Washington bureaucrat has an answer to that problem.
That problem is, we will do what President Clinton suggested in 1993
in his health care plan. We will mandate that every employer has to
have insurance for their employee. Just mandate, don't worry about
whether or not they can afford to do it. Just pass a Washington mandate
that you have to offer this type of insurance.
However, 42 million people in America today do not have health
insurance. That number will increase if this bill passes as it
currently reads. There will be things done in this bill that will not
cause that to happen, if people on the other side of the aisle are
willing to compromise. However, if they don't compromise, for these 56
million people who are in self-insured plans, if some of those are
abandoned by employers because they don't want the threat of a lawsuit
hanging over their head, that number will be increased.
That was suggested in 1993. That was not well received.
It has been suggested after Senator Bond spoke that he never
mentioned the word ``patient,'' as if he has no concern about patients
being treated fairly and right. That is what Senator Bond's speech was
all about. He was concerned that if this legislation passes as it is
written, that employers that have self-insured plans--that don't have
to offer those plans if they don't want to, but they do offer them
because they want to have a good fringe benefit package for their
employees--if they drop those for their employees, there are employees
who will become patients some day who will not have coverage.
This bill is all about concern for patients. It is not about concern
for employers. It is concern for employers that want to offer plans in
a self-insured fashion, that they will be encouraged to do it as they
have already done for 50-some million employees, and continue, and keep
the plans viable.
Why would a family-owned ma-and-pa's plastic corporation, or a ma-
and-pa's family-owned machine shop providing self-employed plans for
employees, why would they jeopardize the continued existence of the
family-owned business if they could be sued under this legislation?
What they are going to do is protect what they worked hard for:
building up a business, employing people, being the backbone of their
local community. That is what the ma-and-pa plastic shop and the ma-
and-pa machine shop is all about. They have created this business.
Maybe it was created by a grandma and grandpa or mom and dad. It could
be in its third generation. This is a family-held business that
provides jobs, perhaps for dozens or hundreds of people. They want to
provide fringe benefits for their employees, of which health insurance
is the most important fringe benefit. They offer it in a self-insured
fashion because that is the best way for them to do it. Why would we
want to jeopardize it?
Senator Bond was followed by the remarks of the Senator from
Tennessee, that this is what this legislation is all about, making sure
employees have the fringe benefits of health insurance, with all
Members imploring we want to do something for the 42 million people in
America who don't have it. If we want to do something for the 42
million people who do not have insurance, and pass legislation as we
did with tax credits to incentivize them to buy health insurance, why
would we want to put in jeopardy the 50-some million people who already
have it through self-insured plans?
It is talking out of both sides of Congress's mouth. On the one hand,
we are concerned about 52 million people. We have legislation
introduced to do something else about it; on the other hand, we are
dealing with a piece of legislation that could put in jeopardy the
health care plans of 50-some million people who already have what we
think the other 42 million people ought to be encouraged to have.
It is concern over employees having health insurance, and giving
those people, if they become patients, the treatment they deserve.
I don't hear concern about patients getting treatment. I hear concern
about lawyers getting tribute. We should be concerned about the patient
and protecting the self-employed health insurance plans that 50-some
million people have as part of that process.
I hope we will consider the speeches by the Senator from Missouri,
the Senator from Tennessee, to be speeches concerned about the
employees and concerned about those people who become patients getting
treatment. That is exactly to what they are speaking. I don't know how
anybody could miss that point.
I didn't come to the floor to speak about that aspect of this bill. I
came to the floor to speak about a motion filed by my friend, Senator
Frist, on Friday, to commit the bill before the Senate, the Kennedy-
McCain bill, to the Health, Education, Labor, and Pensions Committee on
one hand and the Finance Committee on the other hand, and to do it with
specific instructions from the entire Senate that this bill be reported
back to the Senate within 14 days. I come to this conclusion because I
am troubled that the Kennedy-McCain bill has bypassed these relevant
committees and has been brought directly to the floor without one
hearing, without one markup, and most importantly, without the public
input into this particular bill that every bill ought to have.
First, I strongly believe patients' protections are critical to every
hard-working American who relies on the managed care system. We need a
strong and reliable patients' rights bill, and I am supportive of this
effort 100 percent. What we don't need is a bill such as the Kennedy-
McCain bill that exposes employers to unlimited liability and either
eliminates that insurance or dramatically drives up the cost of that
health insurance or perhaps being cut back or eliminated. Instead, I
believe we should protect patients by ensuring access to needed
treatment and specialists, by making sure each patient gets a review of
insurance claims that may be denied, and above all, by ensuring that
Americans who rely on their employers for health care can still get
this covered. I am confident we can reach these goals. However, the
very fact that our leadership brought the Kennedy-McCain legislation
directly to the floor, without proper committee action, violates the
core of the Senate process.
I know my colleagues on the other side will waste no time in accusing
me of delaying this bill. But the truth is, had the relevant committees
been given the opportunity to consider Kennedy-McCain legislation in
the first place, I would not be raising these objections. By bringing
this bill directly
[[Page S6850]]
to the floor, the message seems to be very loud and clear that the new
chairmen--meaning the people who just have become chairmen because of
the Democrat majority in the Senate, and under new leadership--are
somehow merely speed bumps on the road to the floor.
During my tenure as Finance chairman, Senator after Senator urged the
committee process be upheld regarding tax legislation. I listened and I
acted. I resisted strong pressures to bypass the Finance Committee as
we considered the greatest tax relief bill in a generation. I forged a
bipartisan coalition and a consensus, which I believe made it a much
better bill. Ultimately, we were able to craft a bill that benefitted
from the support of a dozen Members from the Democrat side.
The Finance Committee has proven it can operate in a bipartisan
fashion and craft good legislation in a timely manner. We are committed
under this motion to report legislation out of the Finance Committee in
14 days. The fact that the chairmanship of the committee has changed I
do not believe will in any way affect our ability to work in a good,
bipartisan manner. So I stand before the Senate as someone who has seen
the importance of the committee process.
The Kennedy-McCain legislation treads on the Finance Committee
jurisdiction in ways that are by no means trivial, so I will explain.
The Kennedy-McCain bill reduces Federal revenues by $22.6 billion,
something that should only be done if that motion comes from the Senate
Finance Committee. Nearly one-third of this revenue loss is offset by
changes in programs within the jurisdiction of the Finance Committee.
Section 502 of the bill before us extends customs user fees generating
$7 billion in revenue over 8 years.
You may recall when Congress first authorized these customs user
fees, the avowed purpose was to help finance the cost of customs
commercial operations and improvements. If these fees are to be
extended--and I emphasize ``if''--it should be done in the context of a
customs reauthorization bill. This is clearly an issue under the
jurisdiction of the Finance Committee.
Most of my colleagues know firsthand the financial pressures put on
the Customs Service. From Montana to Delaware to Massachusetts, Texas
and California, there is a dire need for funds to modernize the Customs
Service. Yet the Kennedy-McCain legislation diverts money intended for
customs and uses it to pay for this bill. This is not what Congress
intended when these customs fees were increased.
Before authorizing the collection of $7 billion in customs user fees,
it seems to me the full Finance Committee should have an opportunity to
carefully review, carefully analyze, and of course debate the
implications of this move on the future of the Customs Service and
customs modernization.
Anybody who has been through customs knows how much time is wasted
there, how much gets by the customs officials because they do not have
the electronic and technical equipment that is necessary to do their
job right, in a fashion that does not inhibit the free and easy
transiting of American citizens into and out of our country.
In addition, section 503 of the Kennedy-McCain bill delays payments
to Medicare providers, which generate $235 million to help offset the
losses of this bill.
No. 1, customs fees; No. 2, delaying payments to Medicare providers
to the tune of $235 million.
Let me remind my colleagues, when they hold their town meetings,
invariably they have to have people from doctors' offices, from
hospital organizations, and from nursing homes already complaining, why
doesn't the Federal Government pay its bills on time? Why are they a
cash cow, an operating fund for the Federal Government while they are
borrowing money at the local bank to keep their operation going because
the Federal Government does not pay its bills on time?
It is ironic that while many of us are spending significant amounts
of our time working to improve Medicare's effectiveness and efficiency,
this bill actually takes steps to exacerbate the frustrations so many
providers already experience with delayed payments in Medicare today.
So, as you can see, the provisions of this bill go a long way to
undermine the Finance Committee's jurisdiction, not only on customs but
also in the area of Medicare.
In this first action by new leadership, the committee system and the
committee jurisdiction are being tossed aside. I have heard once or
twice from the other side that the justification of this behavior is
based on the patients' rights debates in 1999, 2 years ago. There is
continued talk about how the 1999 patients' rights bills were rammed
through this Senate by Republicans.
I want to say that is simply not the case. In 1999, the patients'
rights legislation underwent a series of hearings in the Health,
Education, and Labor Committee, and ultimately there were 3 days of
markup. Let me repeat: 3 days of markup in the Health, Education,
Labor, and Pensions Committee. Only after the bill was reported out of
committee was it then brought up.
Let me hear no discussion on this point. There is no justification
for the conduct we are having on this bill. It is a fact that the
Kennedy-McCain bill before us today has never undergone the committee
process that the 1999 Patients' Bill of Rights did.
Finally, let me repeat that for those who argue that this is just a
delaying tactic, they are simply wrong. The motion to commit instructs
the Health, Education, Labor, and Pensions Committee on the one hand
and the Finance Committee on the other to report this legislation
within 14 days. I repeat, if this bill had been handled properly
through the committee in the first place, this motion would not have
been necessary.
This motion is not about delaying, it is about ensuring that we have
a good patients' rights bill with bipartisan support that is subject to
the benefits of the committee process and that the jurisdictions of the
Health, Education, Labor, and Pensions, and the Finance Committees are
respected. In other words, it pursues a point of view I tried to raise
so much when we had the tax bill on the floor in late May. As I managed
that bill, I said I hoped the work of Senator Baucus, on the part of
Democrats, and myself on the part of Republicans, would bring a
bipartisan bill before this committee that would serve as somewhat of
an example of not only what can be done in an evenly divided Senate to
promote good public policy but to promote good public policy in a
divided body. Obviously, it must be done in a bipartisan way.
We showed that it could be done in the largest tax bill to pass this
body in 20 years. If we did it on taxes, surely we can do it on a
Patients' Bill of Rights. I say that not just for the Finance
Committee. It is my belief the Health, Education, Labor, and Pensions
Committee can do that as well on their part, serving 100 Senators
rather than having just a handful of people in this body decide the
committee system ought to be thrust aside in the case of a Patients'
Bill of Rights, and bringing a bill directly to the floor of the
Senate.
I have talked a lot about jurisdiction, but I want to talk about why
I am raising these jurisdiction issues because that is a very important
point.
For me, the question isn't about inside baseball kind of topic like
jurisdiction, which is necessarily important. But it is about two
deeper issues that are even bigger than this bill.
I know the public watching this debate, as we are told, is pretty
disturbed when they only hear about Members of the Senate talking about
the intra-institutional issues. That is what I have been talking about
today to some extent. But on the other hand, I know the people of this
country are interested in making sure that we protect patients' rights
when they are up against the insurance company and feel hopeless about
the insurance company not giving them the proper treatment which they
are entitled to. The proper treatment the doctor-patient relationship
demands. People want to know that what we are doing is improving their
life.
So I spend a little bit of time on intra-institutional procedure to
say that having this bill go through the Health, Education, Labor, and
Pensions Committee on the one hand, and the Finance Committee on the
other hand, has something to do with drawing up a piece of legislation
that will get these patients the protections to which they are
entitled.
What I am talking about can be summed up in two related questions.
[[Page S6851]]
The first is: Why are we here? The second is: What is my specific
role with respect to the people I serve in my State of Iowa and each
Senator in their respective States in the larger national interest of
seeing that patients are protected when they are up against an
insurance company?
The first question gets at our role as Senators with respect not only
to this bill but any legislation. The second refers to our role as
committee Members.
So the first question: Why are we here?
Just like the other 99 Members of this body, I wake up every morning
and thank the people of my State for the privilege of representing them
here in the Senate. Every action I take is an effort to improve the
lives of folks back home. Many times I improve it by reducing the role
of the Federal Government in their lives. As a conservative, that is
generally my preference. On the other hand, there are times that
Federal legislation is needed to expand the Federal role to help on a
particular problem. This is an example--the Patients' Bill of Rights.
With respect to any legislation but not just this one, if I believe
it helps folks back home, I am going to push as hard as I can to see
that the legislation becomes law. There is no more satisfying event
than seeing the fruits of our labor revealed in ways that changes the
lives of real folks back home.
When I approach an idea and I think it is a good idea, my goal is to
get it across the goal line. That is true with respect to this bill,
the Patients' Bill of Rights.
I think at this particular point in history the American people want
results, and particularly on this issue. They want less partisanship,
more action, and more thoughtful debate. People in Iowa expect
Republicans and Democrats to work together, and to work together in
conjunction with the President of the United States to get things done.
They expect us as their Senators to do the same thing.
Iowans expect us to refrain from playing partisan politics and to be
serious legislators.
I offer that as friendly political advice to many colleagues,
particularly those on the other side of the aisle who seem to be
visiting Iowa frequently these days. In fact, a surprising large number
of Democrat Senators are coming to Iowa.
I approach the tax cut bill as a serious legislative effort. My goal
was to work with Republicans and Democrats to get a bill out of the
Finance Committee. With Senator Baucus' support I did so. That bill
improved President Bush's basic proposal.
With respect to the particular policy areas that is the focus of the
Patients' Bill of Rights, I start off with a view of how I can make
good public policy become law. That particular policy is the arena of
Senator Kennedy on the one hand, and Senator Gregg on the other in the
Health, Education, Labor, and Pensions Committee.
If my motion is agreed to, it is up to Senators Kennedy and Gregg to
use the Health, Education, Labor, and Pensions Committee to process the
bulk of this legislation through their committee. That is their call.
This legislation faces a potential Presidential veto. That potential
Presidential veto doesn't need to be there. It doesn't need to be
hanging over our head as a cloud as we work on legislation.
That is where the committee process is very important because maybe
the product of the Health, Education, Labor, and Pensions Committee
markup would not face a potential Presidential veto. Maybe some of the
ambiguities that we have heard debated on the floor of the Senate this
afternoon would be cleared up.
Does anyone really think that by following regular order and going
through the committee process the bill before us would be in worse
shape? Would we have better known the administration's position if it
had been in committee? Would we be sitting here wondering where this
bill might be going, as we have heard countless numbers of Senators
talk about how we can work out a compromise?
Would we be hearing something more compelling from the bill's
advocates other than that anyone who opposes the bill is delaying this
bill?
I guess one could argue that there is not much use in delaying a bill
that the President is going to veto; that we ought to just quickly pass
it.
With the proper preparation and the proper compromise--and the
committee system is the place to do that--we could avoid a veto, and we
should work to avoid a veto.
You can understand that the Finance Committee knows how to do this.
Senator Baucus and I put a bill out, and we defeated all of the
amendments to destroy that bill--close to 50--over the course of 3 days
on the floor of this Senate. So it can be done right in committee.
I would like to go back to the question of why we are here in this
particular shape.
I tell the folks in Iowa who sent me here that I am trying to get a
Patients' Bill of Rights that we will have signed; in other words, that
doesn't have a potential veto hanging over its head as the bill we are
debating today does. We would get a bill that would become law and
provide them with real protections; most importantly, a bill to
guarantee treatment for patients, not tribute for attorneys.
In my view, bad process has impaired what could otherwise be a good
product, a bipartisan, broadly supported Patients' Bill of Rights.
But, once again, my motion defers the exact language of the bill to
the Members of the Health, Education, Labor, and Pensions Committee to
resolve these issues. That is the place it should be done.
My second question: What is my specific role as a committee member?
My role is to best use my position as a senior Republican on the
Finance Committee to protect and to promote policies that help Iowans
and the Nation at large. I have a responsibility to advance and to
protect policy interests within the jurisdiction of the Finance
Committee.
There are policy implications in this legislation that are within the
jurisdiction of my committee, the Finance Committee. These policies
deal with three major subjects of the Finance Committee: trade,
Medicare, and tax.
It is my responsibility to Iowans and also to my Finance Committee
members and to Members of the Senate as a body to be vigilant on these
Finance Committee matters. I cannot let these things slip by, nor
should I let them slip by. That would be very easy to do. But it would
also be very irresponsible.
My motion provides the Finance Committee with the opportunity to do
its job on trade, Medicare, and health-care-related tax issues. This
bill affects each of these to some extent.
So I note that I am in some pretty good company when it comes to the
value of the committee process.
I would like to refer to a couple quotes that illustrate the
importance of my point that we should not bypass the relevant
committees of jurisdiction. These quotes come from Members who are very
critical of the way the Senate acted by bypassing the Budget Committee
on the budget resolution process a couple months ago.
I remind those Senators of some of their comments about the
importance of going through the committee process in the Senate. These
comments, as I said, were related to the budget. Now let me quote the
new chairman of the Budget Committee, Senator Conrad. This is a quote
from a couple months ago:
I think it would be a profound mistake for us to miss the
chance to have the Budget Committee do what it was designed
to do, which is to make the work of the larger body easier
because of the concentration of efforts of the members of the
committee on the responsibility they have.
I quote the distinguished Senator from West Virginia, the now-
chairman of the Senate Appropriations Committee. He always shows great
eloquence and devotion to this institution in his comments:
Why have we seen fit in our constitutional system to have
committees? Why? If we are going to have committees, why
don't we have markups on bills and let Republicans and
Democrats hammer it out, hammer out the measure on the anvil
of free debate? Why does any chairman want to say to the
committee, I am not going to have a markup, period?
These comments are relevant no matter whether Democrats or
Republicans are in the majority in this body. Now, in a sense, since
the changes of 3 weeks ago on the chairmanships and the majority of
this body, the shoe is on the other foot. I will be curious to
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see whether these Members, and others who were so critical of the
budget resolution process, will stick to the same rationale now that
the committee process is being short-circuited for a measure they might
be supporting.
I bring up these comments because they reflect a well-founded
sentiment of two very serious legislators whom I respect, Senator Byrd
and Senator Conrad. The committees are kind of like laboratories or, as
Senator Byrd said, like anvils. They are a place to test ideas. They
are a necessary part of serious--and I underline the word ``serious''--
legislating.
Senator Conrad indicated that there is a concentration of member
knowledge and expertise in each of these committees. Is it exhaustive?
Absolutely not. Am I saying that a bill cannot be improved with
amendments on the floor? Of course, no legislation is perfect from that
standpoint. But my point is, the legislative product, especially on
something as important as health care, should start in the relevant
committee.
So my motion would allow the Finance Committee to assert its proper
role.
Let's turn to the specific Finance Committee matters that are
implicated with this legislation and, hence, the reason for my motion
to commit. The first is trade. As I said previously, the customs user
fees have been extended to offset the cost of the Patients' Bill of
Rights. We are talking about money that was raised by the Senate
Finance Committee. Customs fees--getting in and out of the country,
getting your baggage inspected, getting your boxes inspected--that
money was raised to help the Customs Service and particularly for their
modernization. Now they are talking about taking some of that money and
putting it over here to finance a Patients' Bill of Rights. So should
customs people be concerned? Should the Senate Finance Committee be
concerned because we have jurisdiction over that legislation? Should
passengers and travelers in and out of the United States be concerned
when they are in long lines to go through customs? Of course they
should be concerned.
The Finance Committee authorizes and oversees the Customs Service.
Customs may not be as politically compelling right now as a Patients'
Bill of Rights, but it is very important to all of our constituents.
Millions of us, and our goods, come through customs. Customs also
protects our people from the entry of illegal products. For instance,
customs checks for illegal drugs. Also, customs protects our farmers
and consumers from diseased plants and animals.
Just think of the ground zero attitude that is taken by customs today
to make sure that the BSE disease, the mad cow disease, prevalent in
England and Europe does not come into the United States.
We need to have a customs operation that protects America. It is to
be done at the point of entry. The amount of money we spend on that,
and the technology our customs employees have, has something to do with
whether or not they can do their job right and protect us. The quality
of the Customs Service affects us all. So those of us on the Finance
Committee do not approach customs matters haphazardly.
As those of you who have traveled recently know, customs systems
modernization is a problem we have to tackle. If we are to extend the
fee, we should modernize the Customs Service. Customs fees should not
be used to finance a Patients' Bill of Rights.
The Health, Education, Labor, and Pensions Committee has had no
hearings on Customs fees. There is a reason for that. The committee
does not have jurisdiction over the Customs Service. Yet here we are
with a bill that has not even been through the Health, Education,
Labor, and Pensions Committee, and that bill is offset by a revenue
source from another committee, our Finance Committee. Any Finance
Committee member should be disturbed with this usurpation of our
jurisdiction. Any Finance Committee member who supports this action has
ceded away his or her role with respect to an important Finance
Committee matter.
The bottom line is, the Finance Committee, including all 20 of its
members, has a duty to our constituents, and all of America, to make
sure that the Customs Service isn't dealt with in a faulty manner. To
the degree that we ignore this duty, we are being negligent. Again,
that is the main reason for my motion: To let the committee members do
our job.
There is a second Finance Committee policy item covered by my motion.
This legislation moves the payment date for certain Medicare providers
by just one day. No big deal? Put it in its context. Medicare reform is
something we are talking about right now in the Finance Committee. It
is an important topic, particularly because we want to give a
prescription drug program to seniors under Medicare. Payment structure
and dates are important questions that should be considered in the
context of Medicare policy, not as some sort of an offset--which is the
word we use--for unrelated legislation, because, in fact, this is an
offset for an unrelated subject, the Patients' Bill of Rights.
We ought not to mess with Medicare this way. This bill, pulled from
the calendar by the majority leader, gets around Senate rule XV. That
rule provides a point of order if one committee treads on the territory
of another committee. The reason for the rule is to allow committees,
such as the Finance Committee, with the expertise on a subject, such as
Medicare, to develop the policy first.
Why would Senate leaders, who expect the Finance Committee, in a
bipartisan way, to report out a prescription drug bill for senior
citizens connected with the Medicare Program, and, hopefully, with some
dramatic improvements in Medicare, expect us to do that but not ask our
advice on changing the payment date for Medicare?
We ought to develop it within a policy context by the people on the
committee who know how to do it and do it right. Then again, as with
trade, my motion preserves the right of the Finance Committee to deal
with Medicare. It would allow Finance Committee members to review the
change in Medicare provider payment dates and make judgments of whether
such a date change is sensible or not.
As I said before, all of us have heard complaints from doctors,
hospitals, and nursing homes that the Federal Government never makes
Medicare payments timely. Our health providers already feel as though
they are financing the Federal Government because of these late
payments. This bill exacerbates that problem by creating further
delays. The Finance Committee understands this problem. We will do it
right if it needs to be done. My motion simply lets the Finance
Committee members do the job they were appointed to do by the 100
Members of the Senate.
Now I turn to the third Finance Committee policy area implicated by
this legislation, and that is the tax policy area. There are no Tax
Code changes in this bill. The history of this legislation is an
important element. The history of this legislation is that an important
element is greater health care affordability and access. That objective
has, in past legislation, been met through tax incentives.
This bill's principal sponsor, for instance, the Senator from
Arizona, Mr. McCain, recognized the importance of these tax incentives
in the debate, as you heard him speak eloquently over the last several
days. I also happen to believe that tax incentives for health care
access and affordability are a very important part of health care
reform. They are the basis for helping 42 million Americans who do not
have health insurance today to get some health insurance. To this end,
I have, for instance, proposed changes in the tax treatment of long-
term care insurance and expenses.
Some might ask: Why, if I support health care-related tax cuts, did I
oppose Senator Hutchinson's amendment on self-employed insurance? Well,
it is a very good question, one I should be responsive to and answer.
The answer is, most obviously, that Senators Hutchinson and Bond have
an excellent proposal, one I strongly support as a policy of their
amendment. But I opposed the amendment last week because the underlying
bill is not a Finance Committee bill. In this case, the underlying bill
is not a tax bill. So the third reason for my motion is to provide the
Finance Committee with its rightful opportunity, through its tax-
writing powers, to add a health care-related tax cut title to this
legislation.
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If this bill had gone through our committee, that would have been
done. Or if it hadn't gone through our committee but we had had time,
our committee would have voted out such an amendment, I am sure. There
is no doubt that Senator Hutchinson's amendment, along with a number of
other good health care-related tax cuts, would be on the floor right
now being debated as part of this package.
Once again, my motion let's us do this legislation the right way, by
letting the Finance Committee members do their job. From that
standpoint, again, I stress the bipartisanship of the Senate Finance
Committee.
At my urging, Chairman Baucus agreed to consider a package of health
care-related tax cuts in an upcoming Finance Committee markup. So even
if my motion fails, we will be back on the Senate floor in the near
future with a Finance Committee package of health care-related tax
incentives.
In explaining the reason behind my motion, I talked about what the
Finance Committee might or might not do if this motion is adopted. Just
as importantly, I believe there are some serious negative implications
if my motion is defeated in terms of how the Senate does the people's
business. Let me turn to a couple hypotheticals to illustrate the
problem my motion gets at. These hypotheticals, hopefully, will disturb
all Members.
Turn the clock back a couple months and hypothesize that Senator
Lott, with my cooperation, were to move a version of the Finance
Committee's education tax relief proposal. Also, let me say that the
revenue loss from those tax cuts were offset by a change to a HELP
Committee program, something like student loans. In other words, I am
saying let's just suppose hypothetically that Senator Lott wanted some
proposals from our committee to bring to the Senate floor and we were
going to offset them with programs under the jurisdiction of the HELP
Committee.
Under this scenario, obviously, people on that committee could be
very angry. They would have every right to be angry because that kind
of maneuver on my part, as a member of the Finance Committee, would be
wrong. They would have a right, then, in the Health, Education, Labor,
and Pensions Committee, to be outraged. The Finance Committee would
have no business in a bill pulled off the calendar such as this one of
undoing a student loan policy under the jurisdiction of another
committee. It would be wrong from two points, both substantive and
procedural.
What has happened here is just as bad. The Finance Committee members
who support the process that has brought this bill before us should
take a ``beware'' position. Supporting the process means they support
disenfranchising their own committee. By contrast, anyone who supports
my motion recognizes the legitimacy of the committee system.
I have one last hypothetical. This time let's talk about another
sponsor of this bill. Let's go back to Mr. McCain, the good Senator
from Arizona, and his Commerce Committee. Under this hypothetical
scenario, Senator Daschle, with Senator Baucus's cooperation, would
bring a bill to create a special form of tax credit bond for Amtrak.
That issue has been before us before. A part of that legislation pulled
from the calendar, such as this bill, would suspend the Amtrak reforms.
That is within the jurisdiction of Senator McCain's Commerce Committee
or, as I could say, the Presiding Officer now, the Senator from South
Carolina.
I hope these Senators would be angry and rightfully so. I would
expect them to protect a policy important to the Commerce Committee.
Amtrak reform is that policy and that subject. These Senators would not
want an alteration of the Amtrak reforms railroaded through the Senate
on an unrelated bill drafted by a committee other than their own
committee, the Commerce Committee, I would suspect.
In both of these hypotheticals, the rights of committee members would
be violated. These cases are no different than the case before us, the
case of jurisdiction and sources of revenue from the Finance Committee
being robbed without the consideration of the Finance Committee to fund
a piece of legislation, the Patients' Bill of Rights, coming out of the
Health, Education, Labor, and Pensions Committee.
The two hypotheticals are disturbing because both involve dubious
procedural and substantive policy decisions. Both hypotheticals short
circuit important policy decisions and discussions.
A faulty process usually leads to faulty substance. So I have taken a
long time to tell you what my motion is all about. It corrects the
faulty process that has ensnared this Patients' Bill of Rights, which
should otherwise move to the floor only after debate in the committee.
And if it had gone through the committees, I believe it would move
through the floor proceedings very expeditiously.
Mr. THOMPSON. Will the Senator yield for a question?
Mr. GRASSLEY. Yes.
Mr. THOMPSON. Let me make sure I understand the Senator. This bill
that we have been considering has not gone through the committee
process this year; is that correct?
Mr. GRASSLEY. That is correct.
Mr. THOMPSON. The Senator mentioned the prerogative of the committee.
Having been a chairman, I understand what he is talking about. From the
standpoint of patients and the Patients' Bill of Rights, which we have
been here discussing today and Friday in terms of who was covered and
who wasn't covered, when employers had liability and when they did not,
are these the kinds of things that get hashed out in committee?
Mr. GRASSLEY. Obviously. From the standpoint of the Health,
Education, Labor, and Pensions Committee, these things were debated and
hashed out in 1999 before the bill came to the Senate floor.
Mr. THOMPSON. But not this year.
Mr. GRASSLEY. Not this year.
Mr. THOMPSON. In 1999, were there any liability provisions in that
bill? I don't believe there were any liability provisions in that bill.
Mr. GRASSLEY. Right, because I think there was due consideration to
the tradeoff between the people who don't have insurance now--42
million people--and the people who do have insurance through self-
employed plans, and that there was within the committee a real concern
about whether or not those employers might drop their insurance--not
that we are concerned about the employer, but we are concerned about
the employee if they are not going to have health insurance.
Mr. THOMPSON. What I am getting at is, is it not true that the
liability parts of these bills have not been referred to the Judiciary
Committee?
Mr. GRASSLEY. That is absolutely right. I thought the Senator was
talking about the Health, Education, Labor, and Pensions Committee.
These would also be within their jurisdiction.
Mr. THOMPSON. Not only has the Finance Committee not had a chance to
consider their portion, the Judiciary Committee has not had the
opportunity to consider the liability portion, which is so
controversial. We are hashing out right now what this thick bill means
regarding liability. It has never been in the appropriate committee to
go through the natural, normal committee process on a bill of this
importance; is that correct?
Mr. GRASSLEY. Yes. I am a member of the Judiciary Committee, and we
would look at these things and give them the due consideration they
ought to have. I know the Senator from Tennessee has served on the
Judiciary Committee and he knows that is a very important part of our
work.
I thank the Senator from Tennessee for bringing those points to us
because he reminds me that not only has it not been considered by the
Health, Education, Labor, and Pensions Committee, which I have been
talking about, and the Finance Committee, because I am a member and the
senior Republican on that committee, but also a third committee should
have considered perhaps the most controversial part of this legislation
before us, and that has not had the due consideration that important
changes in law and liability ought to have in this Chamber.
I am just about done. I have spoken now for a long time on my motion
to commit to the respective committees. I guess I am being reminded my
motion to commit is to the Health, Education, Labor, and Pensions
Committee on the one hand and to the Finance Committee on the other.
Maybe my motion
[[Page S6854]]
should be broadened--although I am not going to do that at this point--
to the point of the Judiciary Committee taking a look-see at the
liability provisions as well.
A vote for the motion to commit would put this bill on the right
track. It lets members of these committees do the job that we were sent
here to do. The Health, Education, Labor, and Pensions Committee and
the Finance Committee have a great track record in this Congress. They
will continue to do so. Taking this bill through the relevant
committees will only improve it and ultimately make it a better law,
and one that is not in any way subject to a potential--I predict, not
subject to a potential veto threat, as the legislation now is.
After all, isn't getting the job done, getting a good Patients' Bill
of Rights, what the people really want--a good law that is produced in
a proper way, a bill that will guarantee treatment for patients, not a
tribute for lawyers?
I yield the floor.
The PRESIDING OFFICER. The Senator from North Carolina is recognized.
Mr. EDWARDS. Mr. President, let me say a few words about the bill and
tell a story about a patient in North Carolina, and we will have an
amendment to offer. First of all, the entire purpose of this
legislation is to change the law so that the law is on the side of
patients and doctors instead of being on the side of the big HMOs,
where it has been for many years. We want health care decisions made by
families who are affected by them, and by doctors and nurses who have
the education and training to make those decisions. It is just that
simple.
That is the reason we create the rights among all Americans with
health insurance or HMO coverage to have more control over their health
care decisions. That is what this is about--having those rights be
enforceable because if they are not enforceable, they don't mean
anything. That is why we have specifically provided for access to
specialists by families; access to clinical trials, if they need that;
and being able to go to the emergency room directly without having to
call an HMO or a 1-800 number before going to the emergency room--that
is the last thing in the world any family ought to have to worry about
before going to the emergency room--making sure a woman can see an OB/
GYN as a primary care provider.
These rights are aimed at giving patients and families more control
over health care decisions. We have all heard the horror stories of
legitimate claims being denied by HMOs. That is what this bill is aimed
at--putting the law on the side of the patients and on the side of the
doctors.
In addition to these substantive rights, we have provisions to make
those rights enforceable, so that they mean something. We have an
internal review process. First of all, the HMO decides in the first
instance whether they are going to cover a claim. If that is
unsuccessful, then we have an internal review process within the HMO to
get that decision reversed. So if a child is denied the care that child
needs, then the family has somewhere to go. These families who are up
against big insurance companies, big HMOs, big bureaucracies, under
present law they can't do anything. I say this to my colleagues who
have been here.
Some say we need to spend more time on this issue. This issue has
been around for years now. Every day that we fail to enact legislation
and have it signed by the President, there are thousands of people in
this country who are being denied the care they need. This is an issue
that we need to do something about and stop talking about. It should
not be a political issue.
Senator McCain and I have bipartisan support, consensus support for
our bill here in the Senate and in the House of Representatives. We
have virtually every health care group and consumer group in America,
including the American Medical Association, supporting our legislation.
These people deal with these issues every day. Doctors get to see what
is happening to their patients, and there are bureaucrats sitting
behind desks 200 miles away, never having seen their patient, telling
them what their patient needs. We have families all over this country
who know that their child needs a test, but some bureaucrat five States
away, sitting behind a desk somewhere, says they are not going to pay
for it.
That is what this legislation is about--so that when people have
health insurance and they have HMO coverage, it means something. If
they get rejected arbitrarily and are treated unfairly and improperly
by a big HMO, they would have the power, finally, to do something about
it.
That is why we have an internal review process--to reverse the
decision within the HMO--and then if that does not work, we have an
independent third party review, a panel of doctors, who can come in and
say, that is wrong--the doctor was right, the HMO was wrong--and order
the treatment be provided.
None of these things exists today. Today, if a doctor orders a test
for a 5-year-old child with cancer and if an HMO says, ``We are not
paying for it,'' they are stuck. There is no internal review process;
there is no external review process.
What chance does that family have against a huge insurance company?
That is what this bill is about. It is about a very simple idea: that
HMOs and insurance companies ought to be treated as everybody else;
more importantly, putting the law finally back on the side of patients,
families, and doctors so they can do something about a wrongful
decision by an HMO or an insurance company. That is what this debate is
about.
The HMOs have been trotting out every conceivable obstacle to
something happening. Anybody who turns their television on will see the
ads they are running right now, all these scare tactics and old
rhetoric. They have been using it for years. They just want to do
everything they can to keep their special status, their privileged
status. They like things the way they are. They do not want patients
and families to have any power.
We are going to do something about it. I will tell you something
else: The families, the children, the patients do not have lobbyists in
Washington; they do not have millions of dollars to buy ads on
television. They are counting on us to represent them. They are
counting on us to do something for them. That is what this debate boils
down to: You are either on the side of maintaining the big HMO special
status or you are on the side of letting families, doctors, trained
people, make health care decisions.
It is not an accident that the American Medical Association, hundreds
of health care groups, doctors groups, and consumer groups support our
bill. It is not an accident that most of the Senate supports our bill.
It is not an accident that most of the House of Representatives
supports our bill.
There is a consensus in this country that something needs to be done.
What we have to make sure that we get past all the old rhetoric, all
the old scare tactics, all the propaganda that is put out by the HMOs.
They have huge resources and their voice is heard loudly and clearly in
this debate.
Our responsibility is to make sure the voices of the families of this
country who do not have big money, who do not have anybody lobbying for
them in Washington, are being heard. That is what this is about.
Stalemate and nothing occurring is exactly what the HMOs want. That is
the easiest result. We have to overcome that. We have to overcome their
rhetoric. We have to overcome these obstacles because we are fighting
for the children and families of this country who need to make their
own health care decisions.
Today I want to talk about one such family. This is a young woman
from Wilmington, NC. Her photograph with her husband is behind me. Her
name is Terri Seargent. She suffers from a fatal genetic disorder known
as alpha one. Alpha one keeps Terri's liver and lungs from working
properly. Her body is not able to fight off viruses or pollutants in
the air, and if it is left untreated, alpha one eventually destroys the
lungs and causes the patient to die. Terri is still fighting this
disease, but she is at the point where she only has 43 percent lung
capacity.
The problem is Terri is not just fighting this serious disease; she
is also fighting her HMO. Ever since she was diagnosed with alpha one,
she has been treated by specialists who put her on medication to keep
her lungs working as well as they can, to keep her from getting worse.
With that medication, she is able to lead a fairly normal life even
though she has a serious problem.
[[Page S6855]]
She continues to work. She switched jobs, so she has a new HMO, a new
health plan. Her HMO first would not let her see the specialist she had
been seeing. Second, they would not pay for her medication. They told
her she ought to switch to a generic drug because it was cheaper, but
then they would not pay for the generic drug.
Here is a young woman who has a very serious medical problem; she is
continuing to fight through it courageously to go to work and do
everything she can to be productive for herself and her family, and her
HMO will not let her see a specialist and will not pay for her
medicine. Her medication costs $4,000 a month. It is expensive, but it
is critical to the quality of her life and being a contributing member
of her family.
What good is her health insurance--she has been paying premiums for
years now--what good is that if, when it actually comes time that she
needs this medication to allow her to continue to live and stay as
healthy as she can and continue to work, the insurance company will not
pay for these prescription drugs she desperately needs?
Unfortunately, Terri's case is one in a long list of what we hear
every day. When I have townhall meetings or when I am standing on a
street corner talking with people, over and over they come up to me and
say: You won't believe what the insurance company did to me; you won't
believe what the HMO did to my child.
These people need a chance; they need a fighting chance, and that is
all we are trying to do, to level the playing field. Let's give these
families and young women such as Terri who have serious diseases a
chance when their insurance company or HMO says: You are out of luck;
we are not paying for it. When a child with cancer needs a test or
specialized care and the HMO or insurance company says, ``We're not
paying for it,'' even though they have been paying premiums for years,
all we are trying to do is give that family a chance. It gets to be
pretty simple.
In many cases, it is an individual, a child, a family against a big
insurance company, the same big insurance companies that are spending
millions of dollars on lobbyists and television ads right now to make
sure people such as Terri cannot take them on. That is what this fight
is about. It gets to be about a very simple problem.
I have worked with my colleagues on this issue all the time I have
been in the Senate--some worked on it very hard before I came to the
Senate. I believe when we finish this debate--hopefully this week, but
if not this week, for whatever period of time it takes--that we will
finally be able to say the big HMOs and all their money and all their
power have been overcome and doctors, patients, and families in America
finally have a chance.
Mr. REID. Will my friend yield for a question?
Mr. EDWARDS. Yes.
Mr. REID. The Senator has done a great job of explaining how
important this bill is to patients, but it is also important to
doctors. If the Senator will allow me to read a letter I received from
a Las Vegas physician, this physician is formerly head of the State
medical society and is chief of staff to the largest hospital in
Nevada, about an 800-bed hospital. This letter is addressed to me.
After the first paragraph saying hello to me, he said:
As you have heard from so many Nevadans over the past
several years, we need a mechanism where patients have
options where care is denied. The following case is a clear
illustration.
On April 20th 1999, Joseph Greuble died at the age of 47
from malnutrition. Joseph's malnutrition was a direct
complication of his life long battle with Crohns Disease.
Joseph's gastrointestinal problem was quite complex. His
disease was complicated by ulcerations, fistulae, bleeding,
obstruction, electrolyte disturbances, seizures, and chronic
pain, and Joseph required multiple operations. Continuity of
care is most important when dealing with an incurable,
chronic, debilitating disease. In Joseph's case, the system's
failure to provide continuity of care proved tragic and
fatal.
I served as Joseph's personal physician for 11 years. As
Joseph's conditioned worsened he was no longer able to live
independently, and he moved into his mother's small apartment
in Las Vegas. His mother would accompany him to my office for
all of Joseph's visits and as a result, I came to know his
mother Marion quite well.
For over a decade, I performed needed physical
examinations, arranged for appropriate diagnostic studies,
wrote Joseph's prescriptions, and attended to him in the
hospital whenever he required admission due to complications
of his disease. One of Joseph's most pressing needs was for
nutritional support. Joseph had become malnourished as a
complication of his Crohns Disease, and required TPN
(intravenous nutrition). Joseph's weight had fallen to just
over 110 pounds, and a 5'10'' tall Joseph needed the TPN to
maintain his weight and prevent death due to malnutrition.
In January of 1999, Joseph was told by his HMO that I could
not longer treat him. Appeals by both myself and Joseph to
have this decision reversed were denied. My offer to see
Joseph free of charge was rejected by the HMO, as I still
would not have been permitted to write his prescriptions,
direct his nutritional support, order any diagnostic testing
or request needed consultations.
While I do not have any of the medical records of Joseph's
treatment for the three months after he left my care,
Joseph's mother informs me that his TPN had been
discontinued, that his malnutrition worsened, his weight
dropping to less than 100 pounds. Joseph, malnourished and
unable to fight off infection, subsequently developed
pneumonia, sepsis, and died.
I have received permission from Mrs. Grouble to share this
story. Morion hopes that sharing her son's story will help
achieve the needed legislation to prevent this from happening
in the future. Holding health plans accountable when they
harm patients is not about suing insurance companies and
driving up the cost of health care, it is about stopping
abuses and bringing compassion back to medicine. Until the
health plans are accountable, people like Joseph and his
family will continue to suffer.
I say to my friend from North Carolina, this is his bill before the
national legislature. This legislation, the Senator would agree, would
help patients, but also would help physicians such as my friend, Dr.
Nemec, prescribe and give appropriate care to patients. Is that a fair
statement?
Mr. EDWARDS. That is absolutely a fair statement. When I have town
hall meetings in North Carolina, we often have physicians show up and
share horror stories, including ordering care for a patient, with some
clerk sitting behind a desk 300 miles away reversing it and overruling
a doctor with many years of education and training because they thought
they knew better; there was no way they would pay for the particular
care.
Mr. REID. Dr. Nemec stated this is one of many cases. He could write
me letters on case after case, but he wanted me to indicate he feels
this is just about the straw that breaks the camel's back. A man 5 foot
10, weighing less than 100 pounds, and they prevented him from eating,
in effect: You are going to die anyway; what is an extra few months or
a year.
I want the Senator from North Carolina to know how much I and the
people of Nevada appreciate the work the Senator is doing, spending
weeks of his time working with Senator McCain, coming up with
legislation that allows the Frank Nemecs of the world to give proper
care to patients and will allow people such as this lovely woman,
pictured behind me, to know when she pays for her insurance for years,
when it comes time she needs help, that help will be there.
I want the Senator to know how much I appreciate what is being done.
Not only do I appreciate it but so do the people of the State of
Nevada. Hundreds of organizations all over the country have contacted
us. I have read into the Record already, and I will continue reading
when we have time on the floor, the names of the entities that support
the work done by the Senator from North Carolina. The Senator has been
here a short period of time. The impact he has made and the impact he
will make adding his name to this legislation will give people hope for
generations to come. I appreciate the Senator's work.
Mr. EDWARDS. I thank the Senator for his comments.
I point out, as the Senator well knows, the American Medical
Association strongly supports our legislation. Having met with them
many times about this issue, they want their doctors to be able to
provide the quality care they need to provide to their patients. It is
a simple thing from their perspective. For health care providers,
doctors and nurses, this is not a money issue. This is not an issue of
what their earnings or salaries will be. This is purely an issue of
whether they are going to be able to provide the care they have been
educated and trained and have spent their life preparing to provide.
That is what this is about. They are committed to doing something.
[[Page S6856]]
Every day their members all over this country see in their offices
patients who need treatment, who need care, who are being arbitrarily
denied by people far away who have never seen them, who have no idea
what they need.
The horror stories go on and on. We have a young man in North
Carolina who is severely sick. They quit paying for his oxygen. We had
a young boy with cerebral palsy who needed physical therapy and other
therapies on a daily basis and they said it would not do any good; they
were not paying. The stories go on and on and on.
With respect to our colleagues on both sides of the aisle, we will
work our way through the intricacies of this legislation, whether the
issue of exhaustion of administrative remedies, legal terms that may
not mean a lot to the American people, we will work our way through
those issues and find a bipartisan way to get that done.
What we shouldn't do is leave the Senate without having done
something about this issue. The issue has been around for years and has
been fought vigorously by the HMOs. We have a responsibility to empower
the families of this country to have more control over their health
care decisions. That is what this debate is about. Hopefully, by the
time we finish this debate, whether this week or next week or the
following week, however long it takes--and I believe Senator Daschle
indicated he is willing to stay as long as we have to--we will be able
to walk out of here and be proud of what we have done in giving
families, doctors, and patients more control over their health care
decisions and the power to do something when they have been treated
improperly. That is what this is about.
Amendment No. 812
Mr. President, pursuant to the previous order, I call up the
amendment at the desk by Senator McCain and myself.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from North Carolina [Mr. Edwards] (for Mr.
McCain (for himself and Mr. Edwards)) proposes an amendment
numbered 812.
Mr. EDWARDS. I ask unanimous consent reading of the amendment be
dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To express the Sense of the Senate with regard to the
selection of independent review organizations)
At the appropriate place, insert the following:
SEC. . SENSE OF THE SENATE REGARDING FAIR REVIEW PROCESS
(a) Findings.--The Senate finds the following:
(1) A fair, timely, impartial independent external appeals
process is essential to any meaningful program of patient
protection.
(2) The independence and objectivity of the review
organization and review process must be ensured.
(3) It is incompatible with a fair and independent appeals
process to allow a health maintenance organization to select
the review organization that is entrusted with providing a
neutral and unbiased medical review.
(4) The American Arbitration Association and arbitration
standards adopted under chapter 44 of title 28, United States
Code (28 U.S.C. 651 et seq.) both prohibit, as inherently
unfair, the right of one party to a dispute to choose the
judge in that dispute.
(b) Sense of the Senate.--It is the sense of the Senate
that--
(1) every patient who is denied care by a health
maintenance organization or other health insurance company
should be entitled to a fair, speedy, impartial appeal to a
review organization that has not been selected by the health
plan;
(2) the States should be empowered to maintain and develop
the appropriate process for selection of the independent
external review entity;
(3) a child battling a rare cancer whose health maintenance
organization has denied a covered treatment recommended by
its physician should be entitled to a fair and impartial
external appeal to a review organization that has not been
chosen by the organization or plan that has denied the care;
and
(4) patient protection legislation should not pre-empt
existing State laws in States where there already are strong
laws in place regarding the selection of independent review
organizations.
Mr. EDWARDS. We have talked about the need for an independent review
once there is an internal review and the HMO or insurance company
denies the claim, to be able to go to a truly independent panel to get
the case decided and the decision reversed if a wrongful decision has
been made. This sense-of-the-Senate amendment simply provides we all
believe that review panel needs to be truly independent in that the HMO
and the insurance company should not be able to appoint the members of
that panel nor have control over who goes on that panel.
We will debate this amendment tomorrow, but its underlying purpose is
to support the notion that I think a majority of the Senate, maybe the
vast majority, supports, which is if you are going to have an
independent review by a panel of health care providers or doctors, that
panel needs to be truly independent, not connected to the HMO, not
connected to the insurance company, and also not connected to the
patient or the doctor involved, so you have a fair and impartial group
to decide whether the claim or treatment should be paid.
I yield the floor.
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. THOMPSON. Mr. President, I was listening to the description of
the sense of the Senate and I wish to compliment my colleague from
North Carolina for introducing it. It is extremely important in the
administrative process that the procedures we set up are guaranteed to
be qualified and guaranteed to be independent. This bill goes a very
long way towards doing that. Obviously, I have some problems with this
bill. With regard to the provision setting forth these independent
entities, the qualified external review entity is established. That
means when we have these cases where there is an issue as to whether or
not there is coverage, it is the independent person who decides.
We hear about a lot of terrible cases. We get letters from people. We
talk to people when we go back home. We hear about people who are sick;
in some cases there is absolutely nothing anybody can do, and certainly
not us. We hear about people who have terrible accidents. We hear about
people who are victims of crimes. We hear about a lot of
misfortune. But, in the health care area, we have a system in this
country where people can get insured for a lot of things. The deal is,
your employer provides this for you. The deal is, your wages are
affected by it, of course. The deal is, we are going to provide you
insurance to cover certain things in exchange for a premium that the
employer is going to pay.
If you cover absolutely anything, and you have a contract--which has
never been drafted--that says whatever happens to you, however you get
sick, however much it costs, however onerous your injuries, we are
going to cover you, no questions asked--the premium for that would be
astronomical. Nobody could afford that. It is unfortunate. It doesn't
make that person any less sick. It doesn't make that person any less
deserving. But that is just the way it is.
We got into managed care because we, in this body, encouraged the
creation of these HMOs. The reason for that wasn't because we liked
HMOs. The reason was that health care costs were becoming astronomical
and people were losing their health care. As tragic as these stories
are, they would have been just as tragic had their employers never
bought the health insurance. There would not be any dispute over
whether or not there was coverage. This would not even be a policy to
start with. That would not help these poor people.
So we have a system where certain things are covered for a certain
premium. In a free market, those things work out. If somebody is
messing up on one side, the other side will take care of it. That is
the way the system works. As I say, if you are going to have a system
where the Federal Government says that, regardless of whatever the
claim is, it has to be paid, you can have a system like that. Nobody
has suggested that. I wonder why no one has suggested that. Our hearts
go out to people because of these stories. Our hearts go out for all
these sick people. Why don't we just say the Federal Government will
see to it, either directly out of the Federal Treasury or we will make
an insurance company take care of whoever is sick for whatever reason?
It is a nationalized health care system. You can debate that. You can
argue that. Some people would argue on behalf of that.
Nobody is suggesting that. Why not? Because we do not want to take
care of
[[Page S6857]]
these people? Of course not. It is because we know the effects of that.
Because for everything we do, for which we can make a case, to help
people and give rights and give benefits and make other parts of our
society give third parties of our society certain rights and benefits
so the Federal Government doesn't have to do it--we make other
citizens, other companies, do it for us--we can do all that, but there
are always effects from that. We were elected to look at all that and
try to balance it and try to come up with something that is reasonable.
Not something that will come up and cover every hypothetical case that
may ever come about, because that cannot be done, but something that
will reasonably balance the coverage we want people to have, I want my
family to have, something the average person can afford, something the
average small employer can afford. Otherwise, they are not going to buy
any insurance at all.
The point I am getting to is that there are some cases, where
coverage is at issue, in which everybody is operating in good faith. It
is not a matter of the big guy and little guy and the big guy is always
wrong and the little guy ought to be paid. It is a matter of reasonable
people sitting down and having a consideration, discussion, and
sometimes a disagreement as to whether or not a particular procedure is
medically appropriate.
Honest doctors disagree about that all the time, whether or not a
particular procedure is experimental or not. If a policy covered all
kinds of experimental things that we did not think would help you--
there is a 99-percent chance it is not going to help you any, but it is
experimental; we can spend $1 million to see what it is; policies just
don't cover that--prices would be astronomical. Nobody could afford
that. So you get into the question, Is it medically called for? Is it
an experimental thing?
Honest people can disagree about things such as that. We do it all
the time. We are talking about lawsuits, and that is what happens in
lawsuits. You would not have any lawsuits in the medical area, in the
malpractice area, unless you had doctors on both sides of the cases
taking different views of these matters. We have to resolve these
matters. We cannot just predetermine that because a case is meritorious
and our heart bleeds for an individual case, all of it is covered any
time for anything. Nobody could afford it. It is a practical, hard part
of life with which we have to deal. And we are doing a disservice to
our constituents if we do not remind them that there are tradeoffs and
there is a bigger picture with which you have to deal.
Here is where we are going. We are getting down to the fact that, as
I said, we have in some cases a dispute as to whether or not something
is medically called for. What this bill does, and what this resolution
supplements, is that it says when you have a situation such as that,
let's set up an independent person, an independent entity. In the bill
it is called a qualified external review entity. It is external because
it is not a part of any employer's process; it is not a part of the
employer's deal. The employers do not control this.
The bill takes several pages setting up, I think very skillfully, an
independent entity that is highly qualified, that is very independent,
that is monitored by the Federal Government to make sure they take a
look at that issue to see whether or not there is coverage on an
individual incident.
Once again, if you were going to say on the front end everybody who
needs coverage has to be covered, regardless of whether or not it is in
the insurance policy or anything else, you would not need this external
review and your premiums would go through the ceiling and everybody
would be calling for nationalizing the health care system in this
country. But we are not doing that.
This bill calls for this external review process. That entity
determines whether or not this is a medically reviewable decision or
not. That entity determines whether or not there is coverage. If that
entity decides that it is a medically reviewable matter, there is
coverage, it goes to another independent level. And this bill sets up
an independent medical review. This first reviewer doesn't have to be a
doctor, necessarily. But on the second review it has to be a doctor. He
is independent. He has nothing to do with the employer. He is
qualified. He is supervised and overseen by the Federal Government. He
takes a look at it and he makes a decision.
So far so good. Again, this is a reasonable response to these sad,
sad stories that we know people tell and we all hear about from time to
time. If you are not going to say: Cover everything all the time and we
are going to, depending on how sick a person is, determine coverage--if
you are not going to do that, you have to have some way of reasonably
and fairly deciding what is right. This bill sets up two levels of
independent review. I think that is an appropriate way to balance the
need to cover people for what they contract for, for what coverage is
for--for which you are paying a premium commensurate with the coverage,
on the one hand, and a need to make sure there is at the end of the day
some coverage that is affordable for somebody so we do not add to the
40 million people who have no insurance at all.
So far, so good.
The problem I have is not with the bill I just described. The problem
I have is not with this resolution which reinforces the idea that we
need independent review. The problem I have is that you can go through
that entire process and, if a claimant is turned down, they can ignore
that entire process and still sue in State court, they can still sue in
Federal court, and they can still sue in any jurisdiction where the
defendant has a place of business or is doing business for unlimited
damages. They can still sue an employer who gave them the insurance.
That is what I have trouble with--not that we are setting up an
independent review process. It is that we are not honoring the
independent review process. We are saying we are going to set it up.
But if it turns out one way, we are going to adhere to it. If the
claimant wins, then it is binding on the employer. But if these
independent entities decide that the claimant does not win, because it
is one of those 99 percent deals, and it is an experimental thing: we
just do not cover that; our heart goes out to you, but you just didn't
pay for that much--if they decide that, then it is as if all of that
independent stuff doesn't count. Here is where the lawsuits start.
That is the problem I have with this bill.
We must recognize that there are tradeoffs for everything we do in
this field. It is easy to give new rights, and establish new rights,
either out of the Treasury of the Federal Government or making some
company pay for something else. But it has an effect on people's
conduct. People do not just sit still. If you triple somebody's taxes,
it is going to affect their behavior. If you cut their taxes in half,
it is going to affect their behavior. If you place new liabilities
on employers--some of them are small employers trying to furnish decent
health care packages to their employees--they do not have to. But if
you make things tough enough on them, they are just going to say: We
are either going to drop coverage or we are going to give you some
money. You go get your own health insurance and I don't have any
liability. And that employee may or may not take that money and buy
health insurance; he can do whatever he wants to with it.
What we do affects people's behavior. It is not enough to talk about
sad story after sad story and say that is fact. We all agree to that.
All of us are looking for a way to balance the approach so people can
be properly covered to the extent possible where folks can still afford
coverage in this country. Health care prices are already going up at
double-digit rates before this bill is passed. If we make the lawsuit
liability so great that people can't afford coverage, it is going to go
up even higher.
We already have 40 million people in this country who have no
insurance at all. Our job is to try to come up with a balanced approach
so that we don't add to those 40 million people. We can't just sit out
here and talk about one sad story after another without considering the
effect of the public policy we are putting into place.
We had before this body, before I got here, when President Clinton
was President, the Clinton health care plan. It had noble motives, too.
We heard about people who needed help and needed coverage, and so
forth, at
[[Page S6858]]
that time. The whole Nation did. This body considered that bill. This
body decided not to go in that direction because in many people's minds
it was a nationalizing of our health care system; that as much as we
have instances sometimes where things fall through the cracks, on the
whole, people do not fly to England in order to get their medical
coverage. The rich people of the world fly here. We have the best
overall medical system in the world. We didn't want to nationalize our
health care system. We turned that down. It wasn't because our heart
didn't go out. It wasn't because there were some pitiful stories out
there where people needed more help than they were getting. But it was,
on balance, because we didn't believe it would be good for those same
people if we nationalized our health care system.
I do not know if we have changed our minds about that or not. I don't
think so. But that is what we are doing here with this bill the way it
is now drafted. We are nationalizing our health care system in a
significant respect by other means. We are doing it by an unfunded
mandate on corporations. The Government is not sending people checks
for their health care, but they are requiring other people to. We can't
think we can do things such as that without having an effect on
people's conduct.
Health care costs got out of hand in this country. We responded with
a managed care response to it and tried to make that balance to provide
enough care that would cover people in most cases but would not be so
costly that it would drive people out of the system. It didn't always
work. There were some excesses. Some of these HMOs did some bad things.
States got into the act. My State of Tennessee covers more things than
the McCain-Kennedy bill does in many respects--it is not as if the
States are not addressing these issues--and in response to that, health
care costs went back up a little bit. We can live with that. But now we
are coming along and laying a whole new Federal layer on top of that,
double-digit increases in health care costs being present today. And
we have no idea what that is going to do to costs when we are saying we
are going from a system where there is no redress, right past the
system of independent review, which would be a major beneficial change
where independent doctors would be deciding the right to unlimited
lawsuits.
We have no idea what that is going to mean to the cost of health care
in this country. If we think employers are going to sit still for that,
that small employers are not going to change their conduct, that prices
are going to remain the same and that these HMOs are not going to
protect themselves in terms of price increases to cover their new
exposure, we are fooling ourselves.
I am not saying we shouldn't respond to current circumstances. I am
just saying we are hearing too much of this side of the story and
nothing about the other. We are doing the American people a disservice.
It doesn't take a lot for Members of this body to grant new rights and
extend our sympathy. Sometimes it takes a little more to say that is a
relevant part of this discussion. But let's talk about the effects of
what we are about to do.
I hope we don't have this debate 2 years from now and we have these
same sad stories coming in about my problem wasn't that we got into a
dispute over coverage and they were not covering it, but they cut me
off. My problem was I didn't have insurance to start with because my
employer couldn't afford it.
I commend the Senator for offering the sense of the Senate. I think
these independent entities ought to be strong. We have set them up now
in this bill. My problem is we don't use them. They can be circumvented
without exhausting the administrative remedies. It goes straight to
court. Or we can go through and use them, but if you get an adverse
decision and the best independent minds look at this and say, sorry,
but there is no coverage, it doesn't matter; it is as if they didn't
exist. You can then begin a whole realm of lawsuits against HMOs,
against employers in some cases, and even against these independent
entities that have made the determination. Both the external reviewer
and the doctor can be sued because they decided against coverage.
There is in this bill a higher threshold of proof against them to
prove they are guilty of gross misconduct. But when we use these
independent entities that we are bragging about and we are talking
about how strong and important they are, let's use them. Let's not just
use them as a starting place and a debating point and go through a year
or two of that and a decision that everybody admits was objective and
untainted, and then totally treat it as if it didn't exist because we
want to open the door to unlimited lawsuits for unlimited amounts for
everybody in sight. That is not helping those poor people. That is not
going to help those poor people who need medical attention and medical
coverage.
They have exempted doctors and lawyers. A lot of doctors support the
bill because when they get sued, they want the HMO also to be right
there beside them. I understand how that works. So the doctors support
them. The doctors were exempted. The doctors are exempted in this bill,
and so are the hospitals. People who are giving the health care have
been exempted. But the people who are furnishing the health care, the
employers, have not been exempted. It doesn't seem right to me.
I yield the floor.
The PRESIDING OFFICER (Ms. Stabenow). Who yields time?
The Senator from Montana.
Mr. BURNS. I thank the Chair.
Madam President, I know there are a lot of folks who want to go home
about now. I have listened to this debate on the television with a
great deal of interest. We have heard all kinds of examples of bad
things that can happen to people. Of course, we could talk about those
kinds of things in any field because there are certain circumstances
where you could sometimes find victims of circumstance and sometimes
find victims of greed.
We have also heard that our health care system is very complicated. I
will tell you, I do not think our system is complicated. I think we are
moving a piece of legislation that is going to complicate it.
Since the introduction of Medicare and Medicaid, it has grown more
complicated all the time. If one thinks HMOs are hard to deal with, I
am wondering if anybody has had the opportunity to deal with HCFA
lately. Just try to get some things done for an elderly mother or
father. I do not see anything in the three proposals right now that
deals with the real and perceived problems with private insurance plans
or HMOs.
We have advertising that is on every radio station in this town. They
have lots of facts, some of which are a little misleading. Patients'
rights are assured to those who are covered by HMOs and insurance plans
now, but it seems to me where the dispute begins is either the insured
did not understand what he or she was buying or what the specific
coverages were to which they thought they are entitled.
I am not going to stand here and defend the HMOs or the insurance
companies, but what has happened to the industry is making them more
cautious about the kinds of contracts they issue. And again, with the
consumer, as in all areas of the American way, the buyer has to be
concerned. It has always been that way. But as plans were gamed and
abused, insurance companies and HMOs became more precise in the
offering of their coverages; in other words, the fine print became even
finer and smaller. Patients have rights, but not for compensation for
specific health care problems that are clearly exempted from coverage.
So what I am saying is, when you are buying something, buyer beware.
Again, with regard to this problem of companies being driven to that
kind of a situation, how far they can go, and how far they will go, we
do not know. We do not know how much they can stand.
A Patients' Bill of Rights is nothing new for me. In 1994, along with
my distinguished colleague from Minnesota, Senator Wellstone, we had a
Patient Protection Act. The goal of that bill was to assure fairness
and choice to patients and providers under managed care health benefit
plans.
I still believe it is essential we ensure that managed care
techniques and procedures protect patients and guarantee the integrity
of the patient-physician
[[Page S6859]]
relationship. Let me repeat that. We have to guarantee that the
integrity of the relationship between the physician and the patient is
protected.
I am not without a physician in my family, and we talk quite
frequently of these and other issues related to the Patients' Bill of
Rights and the problems she faces as she attempts to administer quality
and necessary medical care to her patients. It is an area in which I am
particularly interested.
I believe all Americans should have access to quality, affordable
health care and to be able to select the health care plans of their
choice. I support legislation that requires HMOs to be more responsive
and accountable to their patients. We must ensure choice, quality, and
access at all times.
I think it is fair to state we have reached general agreement over
many of the consumer protection aspects of all three of these bills
that have been presented to the Senate.
Doctors must be able to discuss the full range of treatment options
to their patients. I continue to believe that gag clauses in health
care provider contracts attack the heart of the doctor-patient
relationship, and they eat into the most important factor in the
healing process, and that is trust.
In addition, customers should be fully informed about the financial
arrangements, if any, between their doctors and the insurers. Patients
in need of emergency care must be free to go to the emergency room to
receive the care they need, uninhibited.
Customers must be fully informed about the costs and limits of the
coverage they buy, they should have complete information about
treatment options, a complete list of the benefits and costs of each
plan, a full choice of doctors, and access to specialists.
Finally, patients who are denied care, or receive word that their
plan will not pay, must have a right--and they have the right--to a
fair, binding, and timely appeals process.
A great deal of debate has and will likely continue to center around
this appeals process and how it is structured and having access to the
courts. I believe access to the courts should be the last resort. First
we should structure a fair, timely, credible, and independent appeals
process.
Independent, qualified reviewers should be able to draw upon the
broadest and best possible medical guidelines when determining the care
patients need that is covered under the contract. Physicians should be
able to set the timeframe within which the treatment should be
provided. When this process fails or is exhausted, then we should turn
to the courts. In the cases where an HMO defies an order of the
independent reviewers to provide a benefit--or acts in bad faith to
delay making the necessary treatment available--I believe the HMO
should be held liable. After all, no American should be denied access
to our court and justice system, as it is a constitutional right.
On the other hand, we cannot let the practice of medicine be governed
by the fear of lawsuits and, of course, trial lawyers. This will surely
add to the cost of care. I am afraid that as the cost of obtaining care
increases, so too will the number of uninsured. That is what I have
heard most in my State of Montana. That is a price that no one can
afford, especially small business. We do not have big companies in the
State of Montana. We are a State with a lot of small businesses. Those
employers are telling us to be very careful of the action we are
taking.
Any bill that passes this Congress cannot contain provisions which
would make the employers liable when they have nothing to do with the
decision made by their provider of medical coverage. I will tell you,
trial lawyers are very imaginative. When they sue, no one is exempt. So
our language has to be specific. I was struck that even though it has
been shown in this Chamber that the legislation we are considering has
that concern--where they say it doesn't say one thing, but there it is
in black and white--nobody has offered to change it and make it
palatable to either side.
Any such provision is extremely dangerous for any employer, whether
it be a small Montana business with two employees or a larger employer
such as a hospital or doctor's office or clinic.
There are many native people who do not understand how imaginatively
and broadly trial lawyers can interpret statutory provisions to include
businesses as defendants in lawsuits when it was not the intention of
the drafters of this legislation. To be very specific, I want to make
sure that the innocent small businesses that are trying to provide much
needed health care for their employees do not find themselves in court
for their good intentions. I have always heard the old saying that no
good deed shall go unpunished.
Twenty percent of Montanans currently lack health coverage. I don't
want to see that number rise either. We cannot add to that number. I
cannot support provisions which would threaten to do so. As a practical
matter, it seems unreasonable to potentially give one or two people and
their lawyers millions of dollars in punitive damages and as a
consequence destroy thousands the ability to obtain health insurance
coverage. It just doesn't make a lot of sense.
For many the greatest obstacle we face in health care today in this
country is the cost of insurance, It is not that we don't want it; we
can't afford it. What is driving those costs? It is not the person who
tries to take care of themselves. It is the coverage of some extraneous
programs or plans that drives the cost.
Since way back in 1993 and 1994, we have been talking about health
care. We want three things when it comes to health care in this
country: We want top quality, which we have; we want it fast; we want
it low cost. If one would think just for a little bit, we can only have
two of the three.
I believe we ought to start looking at the best way we can control
costs and make health care more accessible and affordable to those who
need it.
My primary and overriding concern is that any Patients' Bill of
Rights is indeed in the best interest of all my folks in Montana and
all Americans. I am deeply concerned about those thousands of hard-
working folks who are self-employed or employed by small businesses
throughout my wonderful State. These people desperately need our
protection. I do not want to act in haste or irresponsibly,
jeopardizing their present health coverage by higher premium costs.
I, therefore, will support a bill that will assure the maximum
patient protection to all and ensure that patients get the health care
they need when they need it.
I absolutely agree that a real Patients' Bill of Rights needs to be
enacted as soon as possible. These are complex issues. We have come a
long way. I am confident we will be able to arrive at a fair and
reasonable bill in the very near future.
We have to look at just exactly what we can do because in this piece
of legislation, there could be and probably will be some unintended
consequences, as there always is when we pass major legislation.
I yield the floor.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Madam President, we have heard a number of statements over
the past week about what is wrong with this legislation that is now
before the Senate.
One of the arguments that has been made is that the real purpose
behind this legislation is to create socialized medicine in America,
that that is the whole purpose. That is why this bipartisan bill was
introduced, so that we would have socialized medicine in America. The
purpose was to drive all the employers out of insuring their employees.
That argument didn't last very long because it was so fallacious on
its face.
Then there was a statement that this was all about lawyers, that
there would be thousands of new lawsuits. Well, we looked at a couple
of States where they have something comparable to what we want to pass.
Senator Miller from Georgia came to the floor and said: I don't know
what they are talking about. In Georgia, since we have had a Patients'
Bill of Rights, there has not been a single lawsuit filed.
In Texas the law has been in effect for over 4 years, even though
Governor Bush--now President Bush--vetoed that. In 4 years there have
been 17 lawsuits. So they dropped that debate. I will no longer debate
that issue.
Then they spent some time on States rights: What was being attempted
in this bipartisan legislation is to take
[[Page S6860]]
away the rights of States to settle their own problems. Example after
example was brought to the attention of the Senate that was simply not
true, but they wouldn't let up on that. They said: Well, we think all
lawsuits in this matter should be filed in Federal court.
We knew that wasn't the right way to go because people should be able
to go to court in the place where they live. Again, Senator Miller from
Georgia laid that out very clearly. Why should someone have to travel
hundreds and hundreds of miles to file a lawsuit when they can do it in
their own community?
Senator Zell Miller of Georgia really put this debate on the right
track. After Senator Miller spoke, they dropped that ``let's use the
Federal court for all of our litigation.''
This boils down to a very simple proposition. Why should HMOs be
treated differently than anyone else in America except foreign
diplomats? As a result of our Constitution, foreign diplomats cannot be
sued. HMOs are not in our Constitution. They should be treated no
differently than anyone else. Why in America should there be the
abnormal situation that the only people who can't be sued are foreign
diplomats and HMOs?
There are a number of suggestions floating around here. In fact, one
of the sponsors, Senator Frist of Tennessee, said:
The Patients' Bill of Rights leans toward protecting trial
lawyers, not toward protecting patients.
President Bush said, when he was running for President:
If I am the President, people will be able to take their
HMO insurance company to court.
He said this on October 17 of last year.
Fact: As a candidate George Bush promised voters their insurance
companies would be held accountable.
Fact: George Bush took credit for a law that allowed Texans to sue
their insurance companies in State court even through he vetoed that.
Now his administration is saying that holding HMOs accountable in State
court is a terrible idea. He can't have it both ways.
Another of the fixes on this legislation that is being passed around,
again, by the Senator from Tennessee, Mr. Frist: ``You sue employers
under this bill.''
What the President has said in February of this year: ``Only
employers who retain responsibility for and make final medical
decisions shall be subject to suit.''
That sounds reasonable. That is what the McCain-Edwards bill does.
Fact: The McCain-Edwards legislation does not authorize a cause of
action against an employer. In short, employers are protected from
lawsuits relating to harm caused by an insurance company.
Another fix, again by the Senator who is sponsoring the other bill,
Mr. Frist. His statement: ``Their bill will drive people to the ranks
of the uninsured.''
That is the socialized medicine argument. Here is what the Census
Bureau said: ``After Texas enacted a patients right law, the number of
uninsured in the State actually decreased.''
This is the U.S. Census Bureau.
Fact: 2 years after the State of Texas gave Texans the right to sue
HMOs in State court, the ranks of the uninsured in the State of Texas
actually decreased.
George W. Bush, in October of 2000:
I support a National Patients' Bill of Rights and I want
all people covered.
One of the fictions stated here by my colleague, the Republican whip,
the Senator from Oklahoma, was:
The United States will be considering a bill which could
preempt some of the good work States have done in the States
to protect patients.
That is fiction. Here are the facts: The McCain-Edwards legislation
provides a Federal floor for patient protections, not a ceiling.
Stronger unrelated patient protections enacted by the States would
remain untouched by this bill.
The other argument they have used--and I touched on this before--is
that this is so expensive and how could you possibly ask people to pay
for this exorbitant cost that is going to be created by this
legislation? The Congressional Budget Office says:
Real patient protection costs about 37 cents more than the
GOP-backed Frist legislation.
Not hundreds of thousands or millions or billions but 37 cents.
Senator Frist:
We know this is going to drive up the cost of health care
premiums.
He is right, 37 cents. But last year--the facts are that last year
insurers increased premiums by an average of 8.3 percent, 10 times the
1-year cost of this legislation. So it is no wonder that 85 percent of
the American public support the Patients' Bill of rights. That is why
in a movie--when you hear HMO in a movie, people sneer and shout out in
derision.
The Patients' Bill of rights is something we must do. The majority
leader has said we are going to finish this legislation before we have
the Fourth of July break. Why? Because as the Senator from North
Carolina indicated, every day that goes by, there is more grief and
pain to patients and doctors because the doctors can't render the care
they believe is appropriate for patients. Every day we wait is a day
people will be harmed as a result of our not passing this legislation.
Madam President, I read into the Record hundreds of names of
organizations that support this legislation. The time is late and I am
not going to do that tonight. From time to time, I am going to read the
names of organizations supporting this legislation. I already read in
the names of hundreds. I would start tonight with the D's. It would
take a long time because the organizations that support this
legislation that have the name ``family'' connected with them goes for
five pages.
Literally, our bipartisan Patients' Bill of Rights is supported by
hundreds and hundreds of organizations. I hope we--and I am confident
that we can as legislators, Democrats and Republicans--pass this
legislation soon because the sooner we do it, the better off America
is.
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. REID. Madam President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________