[Congressional Record Volume 147, Number 90 (Tuesday, June 26, 2001)]
[Senate]
[Pages S6870-S6885]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
BIPARTISAN PATIENTS PROTECTION ACT
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will now resume consideration of S. 1052 which the clerk will
report.
The senior assistant bill clerk read as follows:
A bill (S. 1052) to amend the Public Health Service Act and
the Employee Retirement Income Security Act of 1974 to
protect consumers in managed care plans and other health
coverage.
Pending:
Frist (for Grassley) motion to commit to the Committee on
Finance and the Committee on Health, Education, Labor, and
Pensions with instructions to report back not later than that
date that is 14 days after the date on which this motion is
adopted.
Gramm amendment No. 810, to exempt employers from certain
causes of action.
Edwards (for McCain/Edwards) amendment No. 812, to express
the sense of the Senate with regard to the selection of
independent review organizations.
The ACTING PRESIDENT pro tempore. Under the previous order, there
will now be 2 hours of debate in relation to the Grassley motion to
commit and the Gramm amendment No. 810, the time to be equally divided
in the usual form.
The ACTING PRESIDENT pro tempore. The Senator from Nevada is
recognized.
SCHEDULE
Mr. REID. Mr. President, I just want to make a brief statement on
behalf of Majority Leader Daschle. As has been indicated, the
resumption of the Patients' Bill of Rights will be the order at hand
today. As has been announced, there will be approximately 2 hours of
closing debate in relation to the Grassley motion to commit--and I
understand he wants to modify his motion.
I ask Senator Grassley, it is my understanding the Senator wants to
modify his motion to commit; is that right?
Mr. GRASSLEY. Yes.
Mr. REID. We would not object--and with respect to the Gramm
amendment regarding employers. That debate will be ended shortly. There
will be two rollcall votes at 11:30 a.m.
I met with Senator Daschle early this morning, and he has indicated
that without any question we are going to finish the Patients' Bill of
Rights before the Fourth of July break.
Now, I would say to everyone within the sound of my voice, I believe
we have been on this bill a week. I think we have fairly well defined
what the issues are, and I think it would be in everyone's best
interests if today we would decide what those issues are and have
amendments offered. If people want time agreements, fine. If they do
not, debate them, complete what they want to say, and move on. Everyone
has many things to do during the Fourth of July break. But this is
important. This bill has been around for 5 years, and we are going to
complete consideration of this legislation.
There is also a need to complete the supplemental appropriations
bill. As I have indicated before, I think Senator Byrd and Senator
Stevens have done an excellent job in moving that bill along and I
think we can do that very quickly. But there are going to be late
nights tonight, tomorrow, and Thursday. We are going to do our best to
make sure everyone is heard, but also in consideration of other
people's schedules, we will do our best to complete action on this
legislation as quickly as possible.
I see Senator Gregg, the ranking manager of the bill, is here. I did
not see him earlier.
Mr. GREGG. Mr. President, I would like to ask unanimous consent that
Senator Enzi be added as a cosponsor of the Gramm amendment which is
pending.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. GREGG. I thank the Senator.
The ACTING PRESIDENT pro tempore. The Senator from Iowa.
Mr. GRASSLEY. Mr. President, I hope you will call on the Senator from
Texas.
The ACTING PRESIDENT pro tempore. The Senator from Texas.
Mr. GRAMM. Mr. President, I ask unanimous consent that following the
vote on the Grassley amendment, each side have a total of 3 minutes to
summarize the arguments on the amendment excluding employers from
liability.
Mr. REID. No objection.
The ACTING PRESIDENT pro tempore. Is there objection?
The Chair hears none, and it is so ordered.
The Senator from Iowa.
Motion to Commit, as Modified
Mr. GRASSLEY. Mr. President, before I speak on my motion, I ask
unanimous consent that the pending motion to commit be modified to
reflect the referral of the bill jointly to the Committee on the
Judiciary and the same 14-day timeframe that affects the Finance
Committee and the HELP Committee also apply to the Judiciary Committee.
The ACTING PRESIDENT pro tempore. Is there objection?
The Chair hears none, and it is so ordered.
The motion to commit, as modified, is as follows:
Motion to Commit
Mr. Grassley moves to commit the bill S. 1052, as amended,
to the Committee on Finance, the Committee on Health,
Education, Labor, and Pensions, and the Committee on the
Judiciary with instructions to report the same back to the
Senate not later than that date that is 14 (fourteen) days
after the date on which this motion is adopted.
Mr. GRASSLEY. Mr. President, I thank the majority for permission to
modify my motion.
Mr. President, I rise to speak in favor of my motion to commit the
Kennedy-McCain bill to the Health, Education, Labor, and Pensions,
Judiciary, and Finance Committees with instructions that these
committees report the bill out in 14 days.
On a preliminary note, I thank the good counsel of Senators Thompson
and Hatch. Yesterday, they reminded me that the Kennedy-McCain bill
also includes a series of provisions on liability that fall under
Judiciary's jurisdiction and have never been reviewed by that committee
either. Thus, I have modified my motion to include the Judiciary
Committee along with the HELP and Finance Committees.
I am deeply troubled that the Kennedy-McCain bill has bypassed the
relevant committees and has been brought directly to the floor--without
one hearing, without one markup, and without public input into this
particular bill.
As I made very clear on the floor yesterday, I strongly believe that
patient 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'm supportive of this effort 100 percent.
What we do not need is a bill, like Kennedy-McCain, that exposes
employers to unlimited liability, drives up the cost of health
insurance, and ultimately increases the number of Americans without
health coverage.
Instead, I believe we should protect patients by ensuring access to
needed treatments and specialists, by making sure each patient gets a
review of any claim that may be denied, and above all by ensuring that
Americans' who rely on their employers for health care can still get
this coverage. I'm confident these goals can be reached.
However, the very fact that our new 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 accusing me
of delaying this bill, but the truth is, had the relevant committees
been given the opportunity to consider the Kennedy-McCain legislation
in the first place, I would not be raising these objections.
By bringing this bill directly to the floor, the message seems to me
to be loud and clear: that the new chairmen under the new Democratic
leadership are merely speedbumps on the road to the floor.
I guess, as a former chairman who hopes to be chairman again in the
near future, I do not particularly enjoy being a speedbump. But there's
something much more important at stake--
[[Page S6871]]
process. A flawed process, more often than not, will lead to a flawed
legislative product. We are seeing that point in spades on this
legislation.
Does anyone really think that if we had followed regular order and
gone through the committee process that the bill before us would be in
worse shape? Would we still be sitting around wondering where this bill
is going? Or would it be necessary to define the employer liability
exception with Senator Gramm's amendment?
I guess I have more confidence in the committees of jurisdiction than
the new leadership and sponsors of this bill do. The HELP, Judiciary,
and Finance Committees have the experience and expertise to deal with
the important issues this bill presents. My motion simply provides
these fine committees with an opportunity to do their jobs.
Now let me turn for a moment to my committee, the Finance Committee.
The Kennedy-McCain legislation treads on the Finance Committee's
jurisdiction in three ways that are by no means trivial--on trade,
Medicare, and tax issues.
In fact, approximately one-third of the nearly $23 billion in revenue
loss caused by this bill, is offset by changes in programs within the
jurisdiction of the Finance Committee.
First, section 502 extends customs user fees, generating $7 billion
in revenue over eight years. These fees were authorized by Congress to
help finance the costs of Customs commercial operations.
Most of my colleagues know first hand the financial pressures put on
the Customs Service. From Montana, to Delaware, 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.
If these fees are to be extended--and I emphasize ``if''--they should
be done so in the context of a Customs reauthorization bill in the
Finance Committee. This gives the Finance Committee the opportunity to
carefully review, analyze and debate the implications of any Customs
changes on the future of the Customs service and Customs modernization.
Second, section 503 of the Kennedy-McCain bill delays payments to
Medicare providers, which generates $235 million to help offset the
losses in the bill.
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 today with delayed
payments in Medicare.
Any changes to Medicare need thorough evaluation and consideration in
the Finance Committee--where the expertise exists to determine the
implications of any changes to the program. For those who think we can
just tinker with this program, they're wrong. It is much too important
to our Nation's 40 million seniors and disabled that rely on it. Any
change, large or small, can have a sweeping impact on seniors,
providers, and taxpayers.
Finally, let me turn to the third Finance Committee policy area
implicated in this legislation. I'm talking about health care-related
tax incentives.
Now I know there are no tax code changes in this particular bill.
However, in years past, tax incentives have been an important part of
this legislation. There's good reason for this. As Senator McCain
recognized, tax incentives provide balance to patients' rights
legislation by making health care more affordable and therefore more
accessible.
I am a strong believer in health tax policy and have proposed a
number of changes in the tax treatment of health care--including ways
to reduce long-term care insurance and expenses, promote better use of
medical savings accounts, and improve the affordability of health
insurance through refundable tax credits.
But while I might agree with these policies on a substantive level, I
will continue to oppose health tax amendments to the Kennedy-McCain
legislation simply because the Finance Committee has never been given
the opportunity to analyze, review, or discuss the implications of
these provisions on the internal revenue code--a code that is the
responsibility of the Finance Committee.
My motion provides the Finance Committee with its rightful
opportunity to add health tax cut provisions to this legislation. There
is no doubt that the Hutchinson-Bond amendment, along with a number of
other good health care-related tax cuts, would be included in a package
before the Finance Committee.
On that point, I want to make clear that at my urging, Chairman
Baucus has already agreed to consider a package of health care-related
tax cuts in an upcoming Finance Committee markup. So I look forward to
working through these very important issues in the committee.
It is my responsibility to Iowans, my Finance Committee members, and
all Senators to be vigilant on committee business. I cannot let these
things just slip by. That would be easy to do, but it would also be
irresponsible.
During my tenure as Finance chairman, Senator after Senator urged
that 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 consensus which I believe made it a better
bill. Ultimately we were able to craft a bill that benefited from the
support of a dozen members from the other side.
So I stand before you as someone who has seen the importance of the
committee process as well the success of this process.
The new leadership and this bill's sponsors have simply tossed aside
the committees of jurisdiction. As justification for these actions, the
new leadership says Republicans did the same thing on their patients'
rights bill in 1999, but this is simply not the case.
In 1999, the patients' rights legislation underwent a series of
hearings in the HELP committee, and ultimately there were 3 days of
markup--let me repeat 3 days of markup--in that committee. And only
after the bill was reported out of the committee was it then brought up
for consideration by the full Senate.
So let us hear no more discussion on this point. There is no
justification for the conduct on this bill. It is a fact that the
Kennedy-McCain bill before us today has never undergone the committee
processes that the 1999 patients' rights legislation did.
What our new leadership has done is violated the rights of the
members of three important Senate committees from utilizing their
expertise and experience to fully evaluate the Kennedy-McCain
legislation--a job these committees were designed to do.
Any members of the three committees that support this faulty process
should beware. Supporting this process means that they support
disenfranchising their own rights as committee members.
What my motion does is correct this faulty process, a process that
has ensnared a bill that could have otherwise moved through floor
debate smoothly, if the committee process had been upheld.
A vote for my motion to commit puts this bill on the right track. It
lets members of the HELP, Judiciary, and Finance Committees do the jobs
they were sent here to do.
These committees have good track records in this Congress. They will
continue to produce legislation that is important to our Nation. Taking
this bill through the relevant committees will only improve this
legislation and ultimately make it better law. That's what is in the
best interests of the patients were trying to protect.
I believe we are at a critical juncture in history. Through a very
close election, the American people have instructed those of us who
represent them in this town of Washington, DC, to get serious about
legislative business.
What the Iowans have told me, and Americans have told all of us, is
to work together to produce results. They want less partisanship, more
action, and more thoughtful debate.
People in Iowa expect Republicans and Democrats to work together,
with President Bush, to get things done. They expect us to refrain from
playing partisan politics and to be serious legislators.
[[Page S6872]]
We have a responsibility to our constituents who have given us the
opportunity to represent them. That responsibility is to legislate in a
thorough, fair, and constructive fashion. That is not the way the
Kennedy-McCain bill has been handled thus far.
If we are to carry out the people's business in the manner the Senate
set forth--through the committee process--then we must utilize this
process to produce legislation that will help improve the lives of
every American.
After all, is that not what the people really want? A good law that
is produced in the proper way.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, I yield such time as the Senator from
Montana desires.
Mr. BAUCUS. Mr. President, I commend my good friend from Iowa,
Senator Grassley, and particularly applaud his continued effort to work
in cooperation and in a bipartisan and frank manner to get results. It
is an approach he has taken when he was at the helm of the Finance
Committee and an approach he knows works. I commend him for it.
I take this opportunity to address one of the amendments presently
pending, the amendment offered by my colleague from Texas, Senator
Gramm.
While I will not vote for this amendment, I believe it is critical
that we protect employers from unwarranted liability claims. But the
Gramm amendment I believe goes too far. It protects employers from
liability even when they are responsible for making medical decisions
that result in injury or death.
Let me be clear. I do not believe employers should be held liable for
medical decisions made by others, nor do I believe they should be
exempt from responsibility if they are making medical decisions
themselves.
This issue is very important to businesses in my State. It is very
important to the people in my State. I must say it is very important to
me. For that reason, I am working with my colleagues on a compromise. I
have recently spoken with Senator Edwards. We are working together on a
bipartisan compromise that will shield employers from liability when
they are not involved in making decisions about medical care. It is a
bipartisan compromise that will also protect patients. I believe there
is a middle ground. I will be working with my colleagues to find it.
I yield the floor.
The PRESIDING OFFICER (Mr. Cleland). The Senator from Massachusetts
is recognized.
Mr. KENNEDY. Mr. President, how much time remains?
The PRESIDING OFFICER. The Senator from Massachusetts controls 51
minutes on the motion and the amendment.
Mr. KENNEDY. Mr. President, I yield myself 15 minutes.
Mr. President, the Senate recently completed major education reform
after six weeks of debate focused on accountability. We agreed that in
order to persuade schools to live up to high standards, serious
consequences were needed for schools that failed to improve.
Republicans in particular emphasized the need for tough financial
sanctions. The risk of losing funds, they argued, is an appropriate and
necessary incentive to achieve high performance.
This emphasis on accountability is not new. It was also the hallmark
of welfare reform, and the Senate has applied the same principle to
many other programs as well. Over and over, our Republican friends have
argued that increased accountability is the way to produce responsible
behavior.
It is ironic that some of those who have called for accountability
most vigorously in these other debates now oppose accountability for
HMOs and health insurance companies when their misconduct seriously
injures patients. It is irresponsible to suggest that HMOs and
insurance companies should not face serious financial consequences when
their misconduct causes serious injury or death. If ever there was a
need for accountability, it is by those responsible for providing
medical care.
The consequences can be extremely serious when an HMO or an insurer
denies or indefinitely delays access to essential medical treatment. It
can literally be a matter of life and death. Yet there is overwhelming
evidence that access to care is being denied in many cases for
financial, not medical, reasons.
And after five years of debating this issue, we've finally reached
the point where very few Senators will come to the floor and openly
claim that HMOs and health insurers should not be held accountable in
court when they hurt people. These corporations desperately want to
keep the immunity that they currently have, immunity that no other
business in America enjoys. But the HMOs and insurers have behaved so
irresponsibly and hurt so many people that they are finally in danger
of losing it. Too many children have died, too many families have
suffered, for even the HMOs' closest allies to stand here and say that
they do not need to be held accountable.
So instead, the HMOs' multi-million dollar lobbyists and their allies
in Congress have devised a strategy for killing this legislation
without directly questioning the need to hold HMOs accountable. Indeed,
some of those who repeatedly called for accountability in other areas
are the very same members who are searching for ways to enable these
companies to escape accountability when their misconduct seriously
injures people.
The pending amendment by Senator Gramm is a perfect example of this
strategy of collateral attack--an attempt to kill this legislation by
distorting what it would actually do, and by seeking to turn the focus
away from HMO misconduct. Those supporting the Gramm amendment claim
that all employers are endangered by this legislation. Such claims are
wrong. The vast majority of employers who provide health care merely
pay for the benefit. They do not make medical judgments, they do not
decide individual requests for medical treatment. Thus, under our
legislation, they have no liability. The only employers who would be
liable are the very few who step into the shoes of the doctor or the
health care provider and make final medical decisions. Our legislation
only allows employers to be held liable in court when they assume the
role of the HMO or the health insurance company.
By completely exempting employers from all liability no matter how
closely tied the employer is to an HMO and no matter how severe the
employer's misconduct, Senator Gramm's proposal aims to break the link
of accountability in this bill.
President Bush stated in the ``Principles'' for the Patients' Bill of
Rights which he issued on February 7th: ``Only employers who retain
responsibility for and make final medical decisions should be subject
to suit.'' That is consistent with what our bill does. But Senator
Gramm's amendment is directly at odds with the President's principle.
The Gramm amendment would mean that ``employers who retain
responsibility for and make final medical decisions'' could not be
sued.
I'm surprised that the Senators from Texas would propose such an
extreme approach--eliminating all accountability for employers no
matter what they do. Under their proposal, employers are never held
accountable, period, even if an employer causes the death of a worker's
child by interfering in medical decisions that should have been made by
doctors.
The Gramm amendment is a poison pill designed to kill this
legislation. Not only does it absolve employers of liability regardless
of how egregious their conduct, it also creates a loophole so enormous
that every health plan in America would look for a way to reorganize in
order to qualify for the absolute immunity provided by the Gramm
amendment. Senator Gramm creates a safe harbor so broad that it will
attract every boat in the fleet.
We all know what would happen if this amendment became law. HMO
lawyers would craft contracts that enable them to be treated as
employees of the companies they serve, so HMOs could take advantage of
Senator Gramm's absolute immunity. Other employers would turn to self
insurance as an obvious way to avoid accountability for the actions of
their health plans.
Health insurance companies would rework their contracts to give
employers the final say on benefit determinations in order to take
advantage of this shield from accountability.
Today fewer than 5 percent of employers assume direct responsibility
for
[[Page S6873]]
medical decisions on behalf of their employees. But if the Gramm
amendment became law, the share of employers taking on these decisions
would grow enormously. By providing absolute immunity from
accountability, the Gramm amendment creates a strong incentive for
employers to intervene in medical decisions, despite the fact that most
employers are not qualified to do so.
Employers and HMOs are free to negotiate any relationship they want,
and that relationship can be detailed in writing, or it can be detailed
in informal ``understandings'' that workers never get to see. What the
Gramm amendment does is leave families completely vulnerable to the
most unscrupulous HMOs and employers.
For example, an employer could demand that an HMO call it for
approval before allowing any treatment that would cost over a certain
amount, compromising the patient's privacy and enabling the employer to
make medical decisions based on cost alone. The Gramm amendment would
completely shield an employer who causes grave injury or death in this
way, and the HMO might also escape liability because it could show that
the employer alone made the final decision.
Subtler employers could instruct their HMOs to delay or complicate
the treatment approval process for certain kinds of medical care or for
certain employees. The Gramm amendment would allow an employer to
require its HMO to send it all requests for mammograms, and the
employer would not be accountable if it chose to delay or deny a
request for a mammogram that would have timely detected breast cancer.
The same employer practice can interfere with many diagnostic and
treatment decisions.
As Judy Lerner discovered, there is no end to the irresponsible
behavior of some unscrupulous employers. Ms. Lerner worked in Boston
for over two decades as a consultant in a human resources firm that
self insured, and she relied on the health benefits that the company
provided. But when she broke her leg in several places and endured
emergency surgery, the company simply stopped helping with her medical
bills, agreeing only to pay for crutches. Despite her doctors' vigorous
arguments for continued home medical care, the company abandoned her.
The Gramm amendment would leave all employees like Ms. Lerner
vulnerable after they have been told that their medical bills would be
covered at the time they accepted employment and begin working hard.
The Gramm amendment allows employers to deny necessary medical
treatment any time it suddenly becomes too costly or inconvenient,
regardless of how much the employee has relied on that coverage.
Most employers, of course, would not find it morally acceptable to
intervene in medical decisions against their employees. But if I were a
small business owner, I wouldn't want to compete in the environment
created by the Gramm amendment because it gives the worst employers an
economic incentive to cut corners on employee health care and frees
them from all accountability when they do so. It would create an uneven
playing field, allowing unscrupulous employers to gain a business
advantage over their honorable competitors.
As the President says, ``employers who retain responsibility for and
make final medical decisions should be subject to suit.'' That is what
President Bush wants, and that is what we want to accomplish. I am
confident that the McCain-Edwards language accomplishes this, but I
remain open to other ideas for writing President Bush's principle into
law.
Under our language, employers have no liability as long as they do
not make decisions about whether a specific beneficiary receives
necessary medical care. The only employers who can be brought into
court are the very few who step into the shoes of the doctor or the
health care provider and make final medical decisions.
Our bill does not authorize suit against an employer or other plan
sponsor unless ``there was direct participation by the employer or
other plan sponsor.'' ``Direct participation'' is defined as the
``actual making of such decision or the actual exercise of control''
over the individual patient's claim for necessary medical treatment.
Our bill directly protects employers from liability by stating:
``Participation . . . in the selection of the group health plan or
health insurance coverage involved or the third party administration''
will not give rise to liability; ``Engagement . . . in any cost-benefit
analyses undertaken in connection with the selection of, or continued
maintenance of, the plan or coverage'' will not give rise to liability;
``Participation . . . in the design of any benefit under the plan,
including the amount of co-payment and limits connected with such
benefit'' will not give rise to liability. Our language is clear. As
long as the employer does not become involved in individual cases it is
immunized from suit.
Employers are very well protected by our legislation as it is
written. We are pleased to consider other strategies for accomplishing
President Bush's principle on this issue, but the loophole that the
Texas Senators propose fundamentally contradicts the President's
principle and ours.
Senator Snowe and others are working on language to codify that
principle, and I am looking forward to seeing their ideas.
The Gramm amendment is exactly the wrong medicine for America. It
deserves to be soundly defeated for the sake of a level playing field
for all employers, and for the good health of employees and their
families.
Mr. President, I reserve the remainder of my time.
The PRESIDING OFFICER. Who yields time?
Mr. BUNNING. Mr. President, I will take the time Senator Gramm has
and yield myself as much time as I may consume.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BUNNING. Mr. President, I rise in strong support of the Gramm
amendment and ask unanimous consent to be listed as a cosponsor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BUNNING. Today in the United States we do not mandate that any
employer or business provide health insurance. We do not force them to
buy it for themselves or their employees. We let the employer make this
decision.
And employers all across the United States do provide health care
insurance that covers over 160 million people. These employers do not
have to provide that health care. They do this voluntarily for a number
of reasons. Some actually do it because they care about their
employees, but most do it because it is good business--it helps attract
employees to come to work for them. But regardless of why these
employers offer health benefits, the important factor is that they do
this voluntarily.
There is no employer mandate in America. We had that debate in 1994
during the argument about the Clinton health bill, and it was clear
that everyone--the American people and American business--wanted to
keep our voluntary system. But if the bill before us today becomes law,
that could all change.
In spite of what the Senator from Massachusetts said, businesses--big
and small--all over America would stop offering health insurance
benefits to their employees. And the reason they would stop can be
summed up in one word--lawsuits.
The simple fact is that the Kennedy-McCain bill would expose
employers who provide health care insurance coverage to their employees
to lawsuits. I have heard some supporters of this bill claim that
employers are protected from lawsuits in this bill. We just heard the
good Senator from Massachusetts say that. They say that this bill
protects our current system. They point out that on page 144 of the
Kennedy-McCain bill that there is a section in bold headline that
reads: ``Exclusion of Employers and Other Plan Sponsors.'' But what
they don't tell you is that on the very next page the bill reads, as
clear as day: ``. . . A Cause of Action May Rise Against an Employer .
. . .'' After that there are four pages explaining when an employer can
be sued.
That means that while this bill does exclude suits against doctors
and hospitals and other providers, it does not exempt suits against
employers who purchase health insurance. In fact, the bill exposes
employers who provide health care insurance to both State and Federal
lawsuits. It exposes them
[[Page S6874]]
to unlimited economic damages, unlimited noneconomic damages, unlimited
punitive damages in State court, and $5 million in damages in Federal
court.
Ladies and gentlemen, that is an awful lot of lawsuits.
I believe that this exposure to liability in the Kennedy-McCain bill
will scare employers away from providing health insurance. Instead of
providing coverage, one of two things is going to happen if this bill
becomes law. Employers are either going to drop their coverage
altogether or they will give their employees cash or some sort of
voucher and wish them well in searching for the best deal for
themselves and their families they can find in health care. This would
turn our entire health system on its head and would lead to serious
problems.
I don't believe anybody in this Chamber really wants that. Instead, I
urge support for the Gramm amendment. This amendment would apply
language from the current Texas State law to specifically protect
employers that provide health benefits from facing lawsuits for doing
so. It is clear cut. It is a simple solution, but it is very clear in
its intent.
For weeks some of my colleagues have been eager to point out that
Texas has a Patients' Bill of Rights, and some of them even talk about
this is a model for the Federal legislation. Now we have the
opportunity to do just this and to ensure that employers cannot be sued
for doing the right thing--for helping their employees. It is simple.
We know the bill before us as written will not become law, and the
expanded employer liability is one of the very tough sticking points.
Now we have a chance to fix it, to improve the bill, and to make it
signable.
I want to vote for a Patients' Bill of Rights, a bill of rights that
is going to become law. A vote today for the Gramm amendment is a
critical step in that direction. A vote against the amendment means
that we will probably just talk about these problems without doing
anything to change them. I urge my colleagues to vote to protect
employers and employees alike and support the Gramm amendment.
We do not want single-payer health insurance in the United States. It
was proposed in 1994 and soundly defeated. Even though the opponents of
the Gramm amendment would like to think that this is the reason they
are opposing it, that it prevents liability, the basic fact is that
they may want no health care benefit at all and then force the United
States to have a single-payer plan at the end. We will do anything in
our power to defeat that.
I urge a vote on the Gramm amendment and yield back my time.
The PRESIDING OFFICER. Who yields time?
The Senator from Tennessee.
Mr. THOMPSON. Mr. President, I would like to speak on the Gramm
amendment. I see that neither Senators Gramm nor Grassley are present.
I understand there is time remaining for Senators Grassley and Gramm. I
suppose the appropriate thing to do would be to ask for 10 minutes of
the time on the Gramm amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. THOMPSON. Mr. President, we are proceeding to clear the air on
this issue, and that is important. It is a very important issue. One of
the things Senator Grassley pointed out was that this did not go
through the regular committee process. It is a very complicated bill,
and we are just now seeing the complications of it; one of those being
the extent to which employers are liable, employers can be sued.
Unfortunately, we didn't have a chance to work all that out in
committee. So now we are here in this Chamber arguing about the
exposure of employers.
We are making progress because, when we first started this debate,
the supporters of the McCain-Kennedy-Edwards bill basically said: We
were not attempting to go after employers. That is not what this is
about. Then in the fine print, yes, well, under certain limited
circumstances.
I think we know now that there is, indeed, extreme exposure as far as
employers are concerned and that it constitutes a significant part of
the effect of this bill. We are making progress. Now we can talk about
the extent to which employers should or should not have exposure and
liability.
We have heard statements today that there are a lot of employers out
there that will do the wrong thing; that even though they are not
required to have health insurance for their employees, apparently there
are employers out there that will set up health care plans and then do
everything they can to disadvantage their own employees, and that that
consideration is driving this provision of the bill. So we are, indeed,
refining the issue; the lines are being drawn.
The response to the issue of suing employers has always been: Don't
worry about that. The main thing is we are going after the big bad
HMOs. You don't have to worry about anything else. When times get
really tough, we bring out another picture of some poor individual who
is used to demonstrate the evilness of managed care.
Our hearts go out to these people. These are people in need. But the
average observer in America must be watching this and asking
themselves: Why doesn't the Government just require these people to be
covered for anything all the time in unlimited amounts? Why doesn't the
Federal Government just take care of it? Or if the Government doesn't
want to do it, why don't we make some insurance company pay somebody
for any claim they make, if it is a real need, at any time for any
amount? In fact, why didn't we pass the Clinton health care bill a few
years ago? The average person must be asking: If that is the only
issue, taking care of sick folks, then why don't we nationalize this
health care system of ours? That is the logical conclusion of all that
we have been hearing.
The answer, of course, is that in public policy matters, there are
tradeoffs to be considered. There is never just one side of the coin.
We know, for example, that we set up managed care in this country
because health care prices were rising up to the point of almost 20
percent a year. We knew that couldn't be sustained so we put in a
managed care system. Some HMOs abused that and did some bad things.
States passed laws. Thirty some States passed laws addressing some of
these problems. The State of Tennessee has broader coverage than the
bill we are considering today. It is not as though the States have been
standing still. They are covered. Health care costs are going back up.
So here we come and we are going to lay on another plan that, if
passed in the current form, without question, will drive up health care
costs again.
My heart goes out to these poor people who are being used in this
debate to demonstrate the necessity for the passage of this
legislation. But I want to refer to a group of individuals myself. In
fact, I want to refer to 1.2 million individuals. I don't have the
space or the time or the resources to bring in pictures of the 1.2
million people who, the most conservative estimates say, will be thrown
off of insurance altogether if this bill passes.
The Congressional Budget Office says that at a minimum--and there are
other estimates, but that is the lowest one I have seen--1.2 million
people will lose insurance altogether. Who is going to bring their
pictures in here to demonstrate to the American people that they are
disadvantaged by the bill we might pass that will drive health care
costs up so great that these small employers that some would like to
demonize or large ones, for that matter, that some would like to
demonize don't have to provide health care at all?
What is going to keep them from just saying, as has been pointed out
this morning, that the costs are too great, the liability is too great?
We want to do the best we can. We are not perfect. We might make
mistakes. But instead of setting up a system to rectify those mistakes,
we will be opened up to unlimited lawsuits at any time, anywhere in the
country, in any amount. Why should we have that aggravation? Why not
just give the employees X number of dollars and say, you take care of
it--and they may or may not take care of it with that money--or if you
are a small employer, to drop insurance coverage altogether. Who is
going to speak for that 1.2 million people who they say will wind up
without any insurance at all?
[[Page S6875]]
There won't be any arguments with any HMOs because there won't be any
insurance at all.
So the lines have been drawn in this debate. We have people over here
needing help, needing assistance. We have set up a review process to
get independent people to look to determine whether or not these
employers are taking advantage of people. So far so good.
Then the proponents of this bill want to lay in a system of lawsuits
on top of that. We draw the line in there and say that, yes, let's have
an administrative process to see whether or not employers are taking
advantage of folks. Let's have an independent doctor look at it. After
that, let's not lay on unlimited lawsuits against employers who do not
provide the health care and expose them to liability, when we say that
what we are going after is the big bad HMOs. Why expose these people
who are providing health insurance? They are not providing health care,
so why expose them to liability?
The question remains, Do we want to sue employers? Do we want to have
the right to sue employers or not? The proponents of this bill say yes,
but only with regard to when they directly participate in
decisionmaking. This gets a little technical, but it is very important.
There is a certain resonance of the proposition that if somebody does
something wrong, they ought to be held accountable. I have tried a few
cases myself, and I believe in that principle. I think that is right.
But the problem in the context of this health care debate, which we
nationalize to a certain extent with ERISA for a portion of the
population, and now we are going to nationalize the rest of it with
this bill, the problem is we are setting it up so that, by definition,
a large group of employers are going to be considered to be directly
participating because they are self-insured and they have employees who
are on the front end of these claims processes. They tell me that these
self-insured plans are some of the best plans that we have. They don't
go out and hire an HMO. They try to do it themselves, in-house, with
their own people, looking out for their own employees, who they don't
have to insure if they don't want to, but they do. I am told that they
provide more benefits than the other plans. They are some of our better
plans. But by cutting out the middleman, so to speak, and doing it
themselves, they are going to be subject to liability under this bill.
The second point of exposure has to do simply with the fact that
employers have settlement value. What lawyer worth his salt, if he is
going to sue anybody along the line here in this process, would not
include an employer as a part of this lawsuit? An employer has a chance
of deciding whether or not to go to court and stand on principle
because he is not liable and spend several thousand dollars defending
himself or settle up front and pay the other side in order to get out
of the lawsuit.
The other side says they don't want to sue employers unless they have
control. I mentioned direct participation. The other key words are ``or
control''--to exercise control of the health care plan. The only
problem with that is under ERISA law, by definition, employers are
supposed to have control over these plans. So if you just look at the
definitional sections of the applicable law, on day 1 you have a large
number of employers that are subject to this lawsuit. So let's not kid
ourselves about that.
The first part of this debate was that most employers are not
covered. Most employers are not covered. Now, we know that is not true.
The issue now is whether or not they should be. You say, well, what if
they do something wrong? That is a good point. Why should they be any
different? Why should they have immunity? We could ask the same thing
about treating doctors and about treating hospitals and about any
number of entities around America, including U.S. Senators. Why do we
have protection for anything we say in this Chamber under the speech
and debate clause? Is it because we are better than anybody else or
because we don't ever go over the line and do something wrong or maybe
even outrageous? No. It is because of the tradeoffs of public policy
because there are other considerations, just as there are other
considerations when we lash out and follow our natural instinct to sue
an employer.
You are going to drive costs up; you are going to drive people out of
the system; and you are going to cause more uninsured. Besides, there
is accountability. There is a sense of the Senate pending today that
talks about the importance of the independent evaluation that this bill
creates. The employer doesn't get to make a decision to cut somebody
off under this bill, and that is the end of it. It goes through an
independent evaluation process. It goes through an external review
process. Then, if it is a medical decision, it goes to an independent
medical reviewer.
This bill spends pages on pages in setting up these individual
entities, protecting them, qualifying them, having the Federal
Government look over their shoulders. They are the final word. If the
employer is wrong, they are the final word, and they don't have
anything to do with the employer. There might be some hypothetical
cases where some evil employer might sneak through the cracks
somewhere. All I am saying is it is our obligation to consider both
sides of this coin. If in trying to do that, if in trying to reach that
hypothetical extreme case we drive up health care costs and we drive
small employers out of the health care business and we do wind up with
over a million more people uninsured, we are making a bad bargain.
I yield the floor.
The PRESIDING OFFICER. Who yields time?
Mr. KENNEDY. How much time remains?
The PRESIDING OFFICER. The Senator controls 37\1/2\ minutes.
Mr. KENNEDY. I will yield myself 2 minutes. I want to remind my good
friend from Tennessee when he talks about the issues of cost, that we
have heard this issue raised before by the Chamber of Commerce
regarding family and medical leave. They estimated that its cost would
be $27 billion a year. It has been a fraction of that. I don't hear
Members wanting to repeal it. We heard about the issue of cost when we
passed Kassebaum-Kennedy, which permits insurance portability, and is
used particularly by the disabled. We heard that Kassebaum-Kennedy was
estimated to cost tens of billions of dollars. That cost has not
developed. Nobody is trying to repeal it.
We heard about costs when we passed an increase in the minimum wage.
We heard that it would lead to inflation and lost wages. We have
responded to that. The cost issue has always been brought up.
I will remind the Senator that we have put in the Record the pay for
William McGuire and United Health Group, the largest HMO in the
country. The total compensation is $54 million and $357 million in
stock options for a total compensation of $411 million per year. That
is $4.25 per premium holder. The best estimate of ours is $1.19, and
you get the protections. We can go down the list of the top HMOs they
are making well over $10 million a year and are averaging $64 million
in stock options. We could encourage some of those who want to do
something in terms of the cost, to work on this issue, Mr. President.
In the 1970s, we welcomed, as the principal author of the HMO
legislation, the opportunity to try to change the financial incentives
for decapitation, to keep people healthy. There would be greater
profits for HMOs. It is a good concept. To treat people and families
holistically is a valid concept and works in the best HMOs.
What happened is that HMOs, and in many instances, employers, started
to make decisions that failed to live up to the commitment they made to
the patient when the patient signed on and started paying the
premiums. That is what this is about. The patient signs on and says: I
am going to have coverage if I am in a serious accident. Then we have
the illustration of the person who broke their leg and the employer
said: Absolutely not. We are cutting off all assistance. That person
was left out in the cold.
There is no reason to do that. The only people who have to fear these
provisions are those employers that make adverse decisions with regard
to an employee's health. It seems to me they should not be held free
from accountability any more than anyone else should be.
How much time remains? I yield 12 minutes to the Senator from North
Carolina and that will leave me how much?
[[Page S6876]]
The PRESIDING OFFICER. Twenty-two minutes.
Mr. KENNEDY. I yield the Senator from North Carolina 15 minutes.
The PRESIDING OFFICER. The Senator from North Carolina is recognized.
Mrs. HUTCHISON. Mr. President, I ask unanimous consent to speak after
the Senator from North Carolina.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. EDWARDS. Mr. President, I want to speak to some of the concerns
and comments that have been made by my friend and colleague from
Tennessee with whom I have been working over the course of the last few
days on this issue. There are a couple of issues he raised that deserve
a response.
First is the general notion that an appeals process, before going to
court, is adequate in and of itself. There are two fundamental problems
with that logic. Remember, the way the system works under both pieces
of legislation is if an HMO denies care to a patient, they can go
through an internal appeal. If that is unsuccessful, they can go to an
external appeal. If that does not resolve the issue and they are hurt,
they can then go to court.
There are two reasons the appeal by itself does not resolve the
issue.
An HMO says to a family: We are not going to allow your child to have
this treatment. The child then suffers an injury as a result, and a
week later, or however long it takes to complete the appeals process,
the HMO's decision is reversed by an appeals board.
An independent review board says: Wait a minute, HMO, you were wrong
to start with. Unfortunately, the only thing that independent review
board can do is give that child the test they should have had to start
with, but the child has already suffered a serious permanent injury as
a result. The treatment no longer helps.
The problem is if the HMO decides on the front end they are not going
to pay for some care that should be paid for, and the child is hurt as
a result, and then 1 week or 2 weeks later the appeals board reverses
that decision and says, yes, they are going to order the treatment,
this child has nowhere to go and their family has nowhere to go.
That is the point at which--and I think the Senator and I may agree
on this--we believe the HMO should be held accountable. The independent
review board cannot fix the problem where the child has been injured
for life. The HMO that made the decision, just as every entity in this
country, should be held responsible and accountable for what they did.
That is what we believe. We believe in personal responsibility.
The second reason the appeals process by itself does not solve the
problem: If there is nothing beyond the appeal, it creates an incentive
for the HMO, which is what I am talking about, to have a policy of when
in doubt, deny the claim because the worst that is ever going to happen
is they are going to finish this appeals process and some appeals board
is going to order them to pay what they should have paid to start with.
If they take 1,000 patients for a particular kind of treatment and deny
care to those 1,000 patients, the majority of them are never going to
go through an appeal, so they save money. Then they go through the
appeal and the worst that can ever happen to them is with 30 or 40 of
them, an appeals board orders them to go back and pay what they should
have paid.
The problem is fundamental. The appeals process alone does not create
an incentive for the HMO to do the right thing.
On the other hand, if the HMO knows if they make an arbitrary
wrongful decision and somebody is hurt as a result, injured as a
result--if that child suffers a permanent injury as a result--they can
be held responsible for that as everybody else who is held responsible,
then it creates an enormous incentive for the HMO to do the right
thing.
That is what this legislation is about. Senator McCain, Senator
Kennedy, and I structured this legislation to avoid cases having to go
to court, to create incentives for the HMO to do the right thing,
something they are not doing in many cases around the country now.
The problem is, without both the appeals and the possibility of being
held responsible down the road, we do not create the incentive for the
HMO to do the right thing. We know that today around the country many
families are being denied care they ought to be provided by an HMO.
There are fundamental reasons the system is set up the way it is. It
is all designed not to get people to court and not even to get people
into an appeals process but to get the patient the correct care, to get
them the care for which they have been paying premiums.
Mr. THOMPSON. Will the Senator yield for a question?
Mr. EDWARDS. Yes.
Mr. THOMPSON. I thank the Senator for addressing the issues I raised,
and I ask this as a legitimate point of inquiry and not just a debating
point.
Mr. President, it occurs to me with regard to the Senator's first
point, and that is coverage might be denied initially but later
overruled, and in the interim--I think he used the example of a small
child again--a child might be suffering damage, does not ERISA
currently provide injunctive relief? It allows a person under those
circumstances to go into Federal court for mandatory injunctive relief,
and would that not address the concern the Senator has?
Mr. EDWARDS. I thank the Senator for his question. It is a perfectly
fair question. The problem, of course, is that many times it could be a
situation where it would take entirely too long to go to court and get
injunctive relief. When there is a situation where they have to make a
decision about a family member, whether it be a child or an adult, and
the HMO says they are not paying for the care, and they are in the
hospital, the last thing they are going to be talking about is: I need
to hire a lawyer, go to court, and get injunctive relief. What they
need is care at that moment, and in many cases, as the Senator knows
from his personal experience before coming to the Senate, during the
interim, during that short period of time, that window of opportunity
to provide the care to that patient who may be hospitalized or may not
be hospitalized is the critical time.
Mr. THOMPSON. If the Senator will----
Mr. EDWARDS. Excuse me. It is impossible during that period of time
to get injunctive relief against an HMO, and I might add, the last
thing in the world a family is thinking about when they have a member
of their family who is in trouble and needs health care is going to
court to get an injunction. Now I yield.
Mr. THOMPSON. I thank the Senator. I could not agree more with that
last point. However, my experience has been that injunctive relief is
designed by nature for very rapid consideration. You can get very rapid
consideration, but you do have to go to court to get it.
My question is, If we are not going to avail ourselves or require
claimants to avail themselves of the processes if they believe they
have been wronged, does that not necessarily lead to the conclusion
that we must grant all claims?
How does a person considering a claim know which one--let's assume
they are dealing in good faith. In every case where there is an injury
or potential injury going to occur, is the logical conclusion that we
should see to it that all claims are granted regardless of whether or
not the person considering the claim thinks it is clearly not covered
under the agreement?
If we do not go through the processes that are in law for people to
avail themselves and to show to an independent arbiter or judge that
their claim is meritorious, if we say we do not have time for that,
then doesn't that mean we have to grant all of them?
Mr. EDWARDS. Reclaiming my time, my response to the Senator's
question is simple and common sense. For a family in a bad situation
needing medical care immediately, the last thing in the world they are
thinking of is hiring a lawyer, going to court and trying to get an
injunction. The Senator well knows that process by itself can take
enough time for something serious to happen in the interim.
As to the second issue the Senator raises, all we are saying in our
legislation, in the structure of our system--internal appeal/external
appeal--if that is unsuccessful and there has been a serious injury,
they can be treated and taken to court the same as everyone
[[Page S6877]]
else. We expect the HMO, which, by the way, is in the business of
making these health care decisions, although of course not to cover
absolutely everything, to make reasonable, thoughtful judgments about
what is covered and what should not be covered.
Now back to the issue of employer liability. First of all, the answer
to the Gramm amendment is that it is inconsistent with what the
Republican President of the United States has said regarding our bill
and the President's principle: ``Only employers who retain
responsibility for and make final medical decisions should be subject
to suit.'' This is the President's written principle. That is the way
our bill is designed, that only employers engaged in the business of
making individual medical decisions can have any liability or any
responsibility.
With that said, we are working, as I speak, with colleagues,
Republicans and Democrats across the aisle, to fashion language that
accomplishes the goal of protecting employers while at the same time
keeping in mind the interests of the patient.
There are other legitimate issues raised. For example, one argument
that has been made is that employers may be subjected to lawsuits they
do not belong in, and there is a cost associated with being in those
cases for too long. We are working as we speak to create better
language, better protection for employers so there is no question that
employers, No. 1, can be protected from liability, and No. 2, if they
are named in a lawsuit improperly, they don't belong in the lawsuit and
shouldn't be named, they have a procedural mechanism for getting out
quickly.
The truth is, the Gramm amendment is way outside the mainstream. All
the work that has been done on this issue, including the work we are
doing with our colleagues, both Republicans and Democrats, is a way to
fashion a reasonable, middle of the road approach that provides real
and meaningful protection to employers without completely eliminating
the rights of patients. That is what we have been working on. We are
working on it now and are optimistic we can resolve that issue.
Mr. KENNEDY. Will the Senator yield?
Mr. EDWARDS. Yes.
Mr. KENNEDY. I yield another 2 minutes. Does not the Senator agree
that the majority of employers now are doing a good job and are not
interfering with these medical decisions?
Mr. EDWARDS. Absolutely.
Mr. KENNEDY. At the present time, a small number of employers are
interfering with medical decisions. If the Gramm amendment is accepted,
this will put the good employers at a serious disadvantage in
competition with others, does he not agree? Would not the others be
able to formulate a structure so they could effectively cut back on
excessive costs for the health care system for their employees, while
the good ones who are playing by the rules would be put at a rather
important competitive disadvantage? Does the Senator not agree that for
the employers working within the system and playing by the rules, this
is an invitation to change their whole structure and to be tempted to
shortchange the coverage and protection for their employees?
Mr. EDWARDS. In response to the question, the answer is, of course we
believe employers, the vast majority of employers, care about their
employees and want to do the right thing. Our legislation is
specifically designed to protect those employers, just as the President
of the United States has suggested needs to be done.
What we have done in this legislation, what the President has
suggested, and in the work that continues as we speak on additional
compromise language, all is aimed at the same principle and the same
goal.
This amendment is outside that mainstream--different from our
legislation, different from the principle established by the President
of the United States, and different from the compromise that is being
worked on at this moment.
I remain optimistic we will be able to reach a compromise that
provides real and meaningful protection to the employers of this
country we want to protect. We have said that from the outset. We stand
by it. We want to protect them.
If I may say a couple of things about the issue of costs which was
raised a few moments ago, the CBO has not said anybody will become
uninsured as a result of this legislation. What the CBO has said is
there will be a 4.2-percent increase in premiums over 5 years because
of our legislation and a 2.9-percent increase if the competing
legislation passes, roughly 4 percent versus roughly 3 percent. The
difference between these two pieces of legislation on cost is a very
minuscule part related to litigation. I think the difference is less
than half of 1 percent related to litigation. Rather, the differences
are related to quality of care. If people get better access to clinical
trials, better access to specialists, better emergency room care, a
more enforceable and meaningful independent review process, if those
things occur, there is a marginal cost associated with it.
We have real models. We don't have to guess about what will happen.
Those models are Texas, California, and Georgia. In those States, the
number of uninsured, while the patient protection laws have been in
place, has gone down, not up. We have some real, although short term,
empirical evidence about what happens when this patient protection is
enacted.
We have to be careful. A lot of arguments being made are the same
arguments that have been made by HMOs for years to avoid any kind of
reform, to avoid any kind of patient protection. We are working in this
legislation to give real protection to somewhere between 170 and 180
million Americans who are having problems with their HMO. We want to
put the law on the side of patients and doctors instead of having
health care decisions made by insurance company bureaucrats.
The PRESIDING OFFICER. The time yielded has expired.
Mr. EDWARDS. I ask to be yielded another 5 minutes.
Mr. KENNEDY. How much time remains?
The PRESIDING OFFICER. The Senator from Massachusetts controls 17
minutes.
Mr. KENNEDY. I yield 5 minutes to the Senator from North Carolina and
the Senator from Arizona the remaining time.
The PRESIDING OFFICER. The Senator from North Carolina is recognized.
Mr. EDWARDS. Mr. President, in summary, let me speak to the two
amendments we will next be addressing. First, the Gramm amendment is
outside the mainstream, outside what the President of the United States
has suggested, outside of what we have in our legislation, and outside
of what we are working on with Senators from across the aisle.
Second, as to the Grassley motion to commit, the problem is it sends
it back to a number of committees and slows down the process. We need
to do something about this issue and quit talking about it. The
American people expect us to do something about it. Thousands of
Americans each day are losing access to the care they have, in fact,
paid for while this process goes on. We need to get this legislation
passed and do what we have a responsibility to do for the American
people. This is an issue on which the Senate, the House, and the
American people have reached a consensus. It is time to act. As to
these two vehicles, I urge my colleagues to reject them.
Finally, I will talk about the story of a young woman in North
Carolina. Her name is Shoirdae Henderson, from Apex, NC. At the age of
12 she was diagnosed with a rare hip condition. It made it difficult
for her to walk. The Henderson family's HMO sent Shoirdae to a hospital
to see specialists about her problem. The specialist in this HMO-
approved hospital said she needed surgery to keep her hip from fusing
and having to walk with a limp. Even though the family had taken
Shoirdae to the HMO specialist, the HMO refused to listen to her
doctors. They came in with excuse after excuse to keep her from getting
surgery. Every one of the HMO excuses proved over time to be
groundless. It looked as if she would finally get the operation her
doctors had recommended to begin with. Just 2 days before she was
supposed to have surgery, the HMO told her family they wouldn't pay for
it. They wanted her to try physical therapy instead. Shoirdae's father
spent hours dealing with the HMO, as so many families
[[Page S6878]]
have, trying to get his daughter the care the doctors said she needed.
He made call after call and faxed them. He requested an appeal. He
never got an answer. The hospital finally had to cancel her surgery as
a result.
After several sessions of physical therapy, another HMO doctor took
one look at Shoirdae's x rays and sent her back to the hospital. She
still needed the surgery. The therapy had not worked. In fact,
Shoirdae's hip had gotten worse--so much worse during all of this time
that now the doctors told her the surgery wouldn't work. If she had
gotten the operation her doctors said she needed when they recommended
it, her hip would not have fused. She might today be able to walk, run,
and play without a limp. Instead, she walks with a severe limp today
and she has to wear special shoes because the HMO refused to pay for
what was obviously needed--the surgery. The HMO refused to do what the
doctors recommended. In fact, they overruled what the doctors
recommended.
Her father wrote to me and said: This has been the most horrible
experience of my life. Imagine what it has done to my daughter.
This is what this debate is about. This debate is about the 170
million to 180 million Americans who have health insurance--HMO
coverage--but have no control over their health care.
The HMOs have had the law on their side for too long. It is time for
us to finally do something to put the law on the side of patients and
doctors so that the Shoirdaes all over this country, when their doctor
recommends that they have surgery, can have the surgery they need; when
the doctor recommends a test, they can have the test they need.
I yield the floor.
The PRESIDING OFFICER (Mrs. Carnahan). Under the previous order, the
Senator from Texas is recognized.
Mrs. HUTCHISON. Madam President, how much time is remaining on the
side of Senator Grassley and on the Gramm-Hutchison amendment?
The PRESIDING OFFICER. The Senator from Texas has 9 minutes. Senator
Gramm has 7\1/2\.
Mrs. HUTCHISON. Thank you, Madam President.
I ask unanimous consent that I have 6 minutes allocated--4 minutes
from Senator Grassley's time and 2 minutes from Senator Gramm's time.
It is my intention to yield 4 minutes to Senator Nickles of my 6
minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. HUTCHISON. Will the Chair notify me at the end of 2 minutes?
Madam President, I want to speak on behalf of the Grassley motion
which would send this bill to committee so that it could be marked up
and fully debated because while we have had great debate, bypassing the
committee process I think has caused us to have to write the bill in
this Chamber. I don't think that is a good way to pass legislation.
I think we all want to have a Patients' Bill of Rights that is well
vented and well debated and that we know will have the intended
consequences because the last thing we want to do is have unintended
consequences when we are talking about the health care of most
Americans.
I hope we can commit the bill to bring it back in a better form.
Second, I hope people will support the Gramm-Hutchison amendment
because this is the Texas law. Senator Harkin, on a news program this
weekend, said: I would love to have just the Texas law for the entire
Nation. The Gramm-Hutchison amendment is the Texas law verbatim when it
applies to suing a person's employer because what we don't want to do
is put the employer in the position of standing for the insurance
company. The employer wants to be able to offer insurance coverage to
their employees. But if they are going to be liable for a decision made
by the insurance company and the doctors, then they are put in a
position that is untenable. What we want is health care coverage where
the decisions are made by the doctors and the patients.
The Senator from North Carolina had a picture of a lovely young
woman. He said: This is what the debate is about. It is what the debate
is about.
The Breaux-Frist plan would definitely address her concerns because
it would give her the care she needs rather than going directly for a
lawsuit and possibly delaying the health care she needs--and for other
patients.
Madam President, I ask my colleagues to support the Gramm-Hutchison
amendment and support the Grassley motion. Let's get a good bill that
will have the effect of increasing coverage in our country and not
decreasing it.
Thank you, Madam President. I yield 4 minutes to Senator Nickles.
The PRESIDING OFFICER. The Senator from Oklahoma is recognized.
Mr. NICKLES. Madam President, I thank my friend and colleague from
Texas, Senator Hutchison, for her comments. I also wish to thank the
Senator from Texas, Mr. Gramm, for his leadership on the amendment, as
well as Senator Thompson.
I hope employers around the country have been watching this debate. I
have heard some of the proponents of the underlying McCain-Kennedy-
Edwards measure say: It is not our intention to sue employers. We don't
want to do that. No. We will try to fix it. I have even heard on
national shows that: We don't go after employers under our bill. On the
``Today Show,'' a nationally televised show, Senator Edwards on June 19
said: Employers cannot be sued under our bill. That was made on June
19. Senator Harkin yesterday said: I would love to have the Texas law
for the entire Nation.
The Texas law that Senators Gramm and Hutchison have quoted says:
This chapter does not create any liability on the part of an employer
or an employer group purchasing organization. There is no liability
under Texas law. Senator Edwards said: We don't sue employers. But if
you read the bill, employers beware; you are going to be sued.
The only way to make sure employers aren't sued is to pass the Gramm
amendment. To say we are not going to sue employers, but, wait a
minute, if they had direct participation, and you take several pages to
define direct participation, what you really find is that if any
employer meets their fiduciary responsibilities, they will have direct
participation. In other words, employers can be sued for unlimited
amounts, with no limit on economic damages and no limit on noneconomic
damages. That means no limit on pain and suffering. That is where you
get the large jury awards. You can be sued for that amount in Federal
court. You can be sued for that amount in State court with no limits--
with unlimited economic and noneconomic damages.
Employers beware. If you want to protect employers, vote for the
Gramm amendment.
You always hear people say: Oh, we want to go after the HMOs; they
are exempt from liability, and so on. But it is not our intention to go
after employers.
Employers are mentioned in this bill, and they are liable under this
bill.
There was action taken in the bill to protect physicians. There is a
section exempting physicians. There is a section exempting hospitals
and medical providers. We are exempting them but not employers.
Senator Harkin said, We want to copy the Texas law nationwide. Texas
exempted employers. We can do that today. You can avoid going back to
your State and having your employer saying, Why did you pass a bill
that makes me liable for unlimited damages? You can vote for this
amendment and protect employers. You can vote for this amendment and
not only protect employers but employees because when employers find
out they are liable for unlimited pain and suffering and economic and
noneconomic damages, the net result is, unfortunately, a lot of
employees--not employers--will lose their coverage.
I urge our colleagues to support the Gramm amendment.
Mr. HATCH. Mr. President, I rise in favor of the Grassley motion to
commit this legislation to the Finance Committee, the HELP Committee
and the Judiciary Committee.
The legislation before this body is one which will have an enormous
impact on medical providers, the health insurance industry, employers
and, most important, the patients. As the ranking Republican of the
Senate Judiciary Committee, I have serious concerns with the liability
provisions of this bill and how they will be impact employers, medical
providers and patients. The McCain-Kennedy bill creates new causes of
action, changes the
[[Page S6879]]
careful balance of ERISA's uniformity rules, and has potential new
adverse implications on our judicial system. Moreover, the liability
provisions have been crafted without the benefit of appropriate and
necessary review of the appropriate committees of jurisdiction. My
colleagues, this is not the way to legislate. At the very least, the
Judiciary Committee should be afforded the opportunity to review the
liability provisions that will clearly have a major impact on our legal
system.
Just a few months ago, when the bankruptcy reform legislation was
brought to the Senate floor under rule 14, the legislation had been
considered by the Judiciary Committee, the entire Senate and a
bipartisan conference committee over the last 6 years. However,
Democrats raised objections then that the bill needed to be reviewed by
the Judiciary Committee before consideration on the Senate floor. As a
result, we followed regular order and the committee reviewed the bill
after which it was sent to the Senate floor for consideration.
Now the tactics of my friends on the other side is to bypass the
committees altogether which is exactly what they vocally opposed on
bankruptcy reform legislation just a few months ago. Moreover, we now
have the third iteration of the liability provisions which is less than
a week old. Clearly, the legal ramifications of these provisions are
not well known, and I think it would be in the best interest of this
legislation to craft language that is truly going to help patients
which we all have been saying is our No. 1 priority.
The provisions in the McCain-Kennedy legislation make sweeping
changes that will affect our judicial system. This bill changes Federal
law and permits various causes of action in both State and Federal
courts. It also changes the rules governing class action lawsuits, as
well as impacting punitive damages all the while exposing new classes
of individuals to open-ended liability.
I want to emphasize that these are all critical important, legal
issues that must be considered carefully. The regular process of the
Senate should not be circumvented for the political expediencies of my
friends on the other side. Why rush this important bill through the
Senate? According to the Congressional Budget Office, this legislation
will cause premiums to increase by at least 4.2 percent. As a result,
it is estimated that 1.3 million Americans will lose their health
insurance because health premiums will become too expensive. Even
worse, employers benefits altogether for fear of more expanded
liability exposure under so-called bipartisan Democrat proposal.
Shouldn't we hear from experts and other legal scholars in an open
forum before passing such a monumental bill that impacts so many
Americans? It is very apparent to everyone in this Chamber that the
trial lawyers have been principally involved in drafting these
liability provisions and they have done so with their own interest in
mind. And believe me, as a former medical malpractice attorney, I know
what their tricks are, and I know what they are trying to do. This
provisions are simply not in the best interest of the American people.
Accordingly, I urge my colleagues to support his motion to commit. It
is incumbent upon us to do this right and to do this in the best
interest of patients, not trial attorneys. I am confident that with a
little extra time, we can make these provisions legally sound. We have
spent far too many years on this issue not to do it right. We have a
real opportunity to pass meaningful patients' rights legislation. Let
us not squander this opportunity by acting expeditiously without the
benefit of more careful and thoughtful review.
The PRESIDING OFFICER. Who yields time?
The Senator from Texas.
Mr. GRAMM. Madam President, could you tell me how much time the two
sides have?
The PRESIDING OFFICER. You have 4 minutes and a half. The Senator
from Massachusetts has almost 12 minutes.
Mr. GRAMM. Madam President, I would like my amendment to close out
the debate.
Does Senator Grassley have time?
The PRESIDING OFFICER. He has 5 minutes. You have 9 minutes. The
Senator from Massachusetts has 12 minutes.
Mr. GRAMM. Let me just allow the majority to go ahead.
Mr. McCAIN. I say to the Senator from Texas, I think it is perfectly
reasonable for you to have the last 5 minutes.
I ask the Presiding Officer that one of us be recognized so that the
Senator from Texas has the final 5 minutes.
The Senator from Iowa wants----
Mr. GRASSLEY. Two minutes.
The PRESIDING OFFICER (Mr. Reid). Did the Senator from Arizona
propose a unanimous consent request that the Senator from Texas have
the final 5 minutes?
Mr. KENNEDY. And that the Senator from Iowa have 2 minutes.
Mr. GRASSLEY. I thank my colleagues.
The PRESIDING OFFICER. Without objection, it is so ordered. That will
be the order.
Mr. GRASSLEY. Mr. President, I have spoken twice on the issue of
committing this legislation to the committees to express the point of
view that there is a lot of turmoil in working out compromises on the
floor of the Senate. That is not a very good way to draft a piece of
legislation.
If the leadership had not immediately brought this bill to the Senate
Chamber, and the committees had done their work, this bill would have
been handled in a much more expeditious way, but, more importantly, it
would have been in a way in which we would have had a lot of confidence
in the substance of the legislation, with a lot fewer questions asked.
I think when people see a product from the Senate, they want to make
sure that product is done right.
So I offer to my colleagues the motion and hope that they will vote
yes on the motion to commit the legislation to the respective
committees--Health, Education, Labor; Judiciary; and Finance--for the
fair consideration of this legislation and a final, good product that
we know serves the best interests of the people, which obviously is to
make sure that everybody is protected with a Patients' Bill of Rights.
I yield the floor.
The PRESIDING OFFICER. Who yields time?
The Senator from Arizona is now recognized.
Mr. McCAIN. Mr. President, I think it is important, because of the
issue of what is happening or not happening in the State of Texas and
Texas State law, that I take a few minutes to quote from a letter I
just received from the President of the Texas Medical Association, Dr.
Tom Hancher, who also was a key player in the formulation of the
language and the legislation that passed the State of Texas in 1997.
I would like to quote from the letter that Mr. Hancher sent me:
I have been watching the debate over the Patients' Bill of
Rights and can understand the confusion over many of the
issues. We, in Texas, debated managed care reforms for over
two years culminating in the passage of a package of managed
care reforms in Texas in 1997. Because Texas' laws have
become the basis for evaluating certain aspects of proposed
federal reforms, I hope I can help to clarify some areas for
you. As Texas Medical Association worked closely with the
sponsors of these reforms, including the managed care
accountability statute, I would like to offer our experiences
on this issue. . . . I will focus on the three areas of
primary disagreement--employer exemption, medical necessity
standards for independent review, and remedies under Texas'
managed care accountability law.
Much as you are seeing in Washington, our lawmakers were
deluged with concerns about employers being legally
accountable for the actions of the managed care plan. We
believed that this was impossible given the construction of
our legislation. Both the definition of a managed care plan
and the action of that plan--making medical treatment
decisions--prevented such lawsuits from being brought.
Nevertheless, the insurers and employers continued to express
their concerns that our bill would cost hundreds of citizens
their medical coverage because of the fear of litigation.
We agree with your approach that any entity making medical
treatment decisions should be held accountable for those
decisions. Texas took a different approach in 1997, however,
because we knew that no state law could achieve that goal.
ERISA law in 1997 was such that no state law could hold
employers of large self-funded plans accountable for actions
related to their benefit plans. . . .
We were certain that small to medium sized employers in our
state were providing health benefits through fully insured,
state licensed products. Clearly, those employers
[[Page S6880]]
were not making medical treatment decisions. While it was the
intent of the Texas Legislature to hold accountable any
entity making medical treatment decisions, it was our belief
that because of ERISA, a blanket exemption for employers in a
state law would have no practical impact on the large, self-
funded employers. Therefore, we provided a broad employer
exemption primarily to allay the fears of small and medium-
sized, fully-insured businesses over exposure to legal
liability for medical decisions.
The reason why I quote this is because that is basically the language
we are using in this legislation.
The Senate co-sponsor of the managed care accountability
bill said it best on the floor of the Texas Senate: ``If an
HMO stands in the shoes of the doctor in the treatment room,
and stands in the shoes of the doctor in the operating room
or the emergency room, then it should stand in the shoes of
the doctor in the courtroom.'' It is hard to argue why this
philosophy should not apply to anyone making those direct
medical decisions, HMOs or the very few employers who do
this. Any employer who decides not to make these decisions
very clearly is not subject to a lawsuit.
Our goal in constructing the independent review (IRO)
provision of our bill was a simple one: use independent
physicians to evaluate disputes over proposed medical
treatment. We require these physicians to utilize the best
available science and clinical information, generally
accepted standards of medical care, and consideration for any
unique circumstances of the patient to determine whether
proposed care was medically necessary and appropriate. Our
standards are virtually identical with the independent review
provisions in the McCain/Edwards compromise currently pending
before the Senate.
I repeat, the Texas Medical Association President says: Our standards
are virtually identical with the independent review provisions in the
McCain/Edwards compromise currently pending before the Senate.
Review decisions were to be made without regard for any
definition of medical necessity in plan documents. The Texas
Department of Insurance reviews the plan contract for
specific exclusions or limitations (i.e., number of days or
treatments). If there is no specific contract provision to
exclude the eligibility for review, the case is submitted to
the independent review organization. Medical necessity is
often a judgment call. We wanted those judgments made without
any conflict of interest. Medical necessity definitions
created by plans will likely err in favor of the plan. An
IRO's decision should be a neutral one. Using a plan
definition would prevent that. Additionally, we do not define
``medical necessity,'' but rather set forth broad standards
for reviewers to make an informed decision based upon all
available information. . . .
Finally, there has been a great deal of confusion over
damages in personal injury or wrongful death cases in our
state. Currently, Texas has no caps on economic or non-
economic damages. Punitive damages are calculated using the
following formula: two times the amount of economic damages,
plus an amount not to exceed $750,000 of any non-economic
damage award. We chose to treat managed care plans as any
other business. Therefore, they are accountable under general
tort law and not subject to the cap on damages in wrongful
death cases. The limitation on recovery in wrongful death
cases applies only to health care entities and is part of a
separate section of our law.
The debate in Texas over patient protections was long,
sometimes contentious, and ultimately successful. With over
1300 independent reviews (48% upheld the plans' determination
and 52% overturned the plans' decision) and only 17
lawsuits--
I want to emphasize: Only 17 lawsuits--
I am proud of how our laws are working for the people of
Texas enrolled in managed care plans. On behalf of my
colleagues and our patients, I ask that you not take any
action that would undermine what we have done in our state.
Best wishes in your deliberations.
It is signed: Tom Hancher, MD, President of the Texas Medical
Association.
I urge all of my colleagues to read this letter from Dr. Hancher. I
think it lays out the issues surrounding this particular amendment and
remaining areas of dispute that we might have.
Mr. President, I cannot support the pending amendment because I
believe that employers should be held accountable for medical decisions
they have made if those decisions resulted in a patient's injury or
death.
I do not believe employers should be held liable for the decisions
made by insurers or doctors. Nor do I believe this legislation would
subject employers throughout the country to a tidal wave of litigation
as our opponents claim.
But if an employer acts like an insurance company and retains direct
responsibility for making medical decisions about their employee's
health care then they should be held accountable if their decisions
harm or even kill someone.
If an employer is not making medical decisions, and very few
employers do, then they will not be held liable under our legislation.
Let me repeat--employers will not be held liable or exposed to
lawsuits if they do not retain responsibility for directly
participating in medical decisions.
I keep hearing from opponents of our bipartisan bill that our
language is vague and would subject employers to frequent litigation in
state and Federal court. I don't believe this is true.
Our legislation specifically states that direct participation is
defined as ``the actual making of [the] decision or the actual exercise
of control in making [the] decision or in the [wrongful] conduct.''
This language clearly exempts businesses from liability for every type
of action except specific actions that are the direct cause of harm to
a patient.
The sponsors of this legislation are willing, however, indeed we
would welcome an amendment that helps further clarify the employer
exemptions provided for in the bill. I know that Senators Snowe, DeWine
and others are working on such an amendment.
But we cannot, in the interest of greater clarity, give employers a
kind of blanket immunity when they assume the role of insurers and
doctors by making life and death decisions for their employees. That is
what the pending amendment would do.
Let's just step back for a moment and reflect on how the employer
based health care system is structured and works. An employer contracts
with an insurer to provide health care coverage for their employees.
The insurer is then responsible for making the medical decisions that
go with managing health insurance. That is how the system typically
works and how employers want it to work.
Most businesses simply do not make medical decisions. Hank who runs a
local plumbing company does not tell the HMO his company has contracted
with, ``We have clogged drains and need Joe Smith back at work. We
can't afford for him to be laid up waiting for surgery.'' And Hank
would not be held liable under our bill because he is not practicing
medicine--he is repairing plumbing.
Now, I admit there are a small group, of mostly very large companies
that have chosen to provide insurance to their employees themselves.
In these small number of cases, employers have made the decision to
sell plumbing and act as an insurer that makes medical decisions.
And if the decisions they make harms or kills someone then why should
they have a blanket exemption from liability as this pending amendment
would provide them, a blanket exemption that we do not provide doctors
or nurses or hospitals?
Mr. President, I yield the floor.
The PRESIDING OFFICER. Senator McCain and Senator Kennedy have 3\1/2\
minutes.
Mr. KENNEDY. Mr. President, let me yield myself the time. As I
understand, the Senator from Texas is going to close.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, this legislation is very simple. The
point of the overall Patients' Bill of Rights is to permit doctors to
make the final, ultimate decision on what is in the best interest of
the patient. Doctors, nurses, trained personnel, and the family should
be making that judgment. However, we find that the HMOs are overriding
them.
Now we have put this into the legislation. If it is demonstrated with
internal and external appeals that a HMO has overridden the doctors,
they are going to have a responsibility towards the patient. They are
going to have to give that person, who might have been irreparably
hurt, or the patient's family, if the patient died, the opportunity to
have some satisfaction.
What the Gramm amendment says is, if that same judgment is made by
the employers, they are somehow going to be free and clear. He can
distort, misrepresent and misstate what is in this legislation, but we
know what is in the legislation. What it does is hold the employer that
is acting in the place of the HMO accountable. If the employer is
making a medical decision that may harm an individual or patient, or
may cause that patient's life or serious illness, they should bear
responsibility.
[[Page S6881]]
Under the Gramm amendment, they can be free and clear of any kind of
responsibility no matter how badly hurt that patient is.
That is absolutely wrong. I can see the case where the HMO is sued.
The HMO says: Don't speak to me; it was the employer that did it. And
then the employer says: Look, the Gramm amendment was passed. We are
not responsible at all. This amendment is another loophole. It is a
poison pill. It is a way to basically undermine the whole purpose of
the legislation.
Doctors and nurses should be making medical decisions and not the HMO
bean counters who are looking out for the profits of the HMOs.
Employers should not be making these medical decisions either. They may
say, every time my employee has some medical procedure that is over
$50,000, call me, HMO. I don't want to pay more than $50,000. Then the
HMO calls them up and the employer says, no way, don't give that kind
of medical treatment to my employee. The HMO listens to the employer,
the patient does not get that treatment, and dies. Under the Gramm
amendment, there will be no accountability.
I hope his amendment is defeated.
The PRESIDING OFFICER (Mrs. Carnahan). Under the previous order, the
Senator from Iowa has 2 minutes, followed by the Senator from Texas.
Mr. GRAMM. The Senator from Iowa has spoken. I assume if we add up
the time, I have 7 minutes. I would like to take it.
The PRESIDING OFFICER. The Senator is correct.
Mr. GRAMM. Madam President, nothing in this amendment has anything to
do with HMOs. Nothing in the amendment that I have offered would in any
way exempt any HMO from any liability. Both Senator Kennedy and Senator
McCain talked about HMO liability. Senator McCain talked about HMOs
standing in the shoes of doctors. This amendment I have offered is not
about HMOs.
Senator Kennedy talks about HMOs escaping liability by blaming it on
the employer. Nothing in the amendment I have offered in any way would
allow that to happen.
The amendment I have offered has to do with employers. Why is this an
issue? It is an issue because, in America, employers are not required
to provide health insurance. Employers, large and small, all over
America provide health insurance because they care about their
employees and because they want to attract and hold good employees. But
every employer in America has the right under Federal law to drop their
health insurance.
I am concerned, and many are concerned, that employers would be
forced to drop their health insurance given the liability provisions in
the bill.
I have here a number of letters from business organizations endorsing
my amendment. I send to the desk and ask unanimous consent that these
letters be printed in the Record: an NFIB letter designating this a
small business vote; a letter from Advancing Business Technology
representing the AEA; the National Association of Manufacturers; the
National Council of Chain Restaurants; the National Restaurant
Association; and the National Association of Wholesalers and
Distributors, all letters endorsing the Gramm amendment; and finally, a
wonderful letter from the Printing Industry of America talking about
the dilemma they would face if this amendment did not pass.
There being no objection, the letters were ordered to be printed in
the Record, as follows:
National Association
of Wholesaler-Distributors,
Washington, DC, June 22, 2001.
Hon. Phil Gramm,
U.S. Senate, Russell Senate Office Building, Washington, DC.
Dear Senator Gramm: Thank you for offering an amendment to
S. 1052, the McCain-Kennedy ``Bipartisan Patient Protection
Act,'' to shield employers from liability lawsuits authorized
by the bill. We write on behalf of the 40,000 employers
affiliated with the National Association of Wholesaler-
Distributors (NAW) to express our strong support for this
critically important amendment.
The vast majority of NAW-affiliated employers voluntarily
offer health insurance as an employee benefit. Those employer
sponsors of group health insurance benefits are already
alarmed by repeated annual increases in health insurance
premiums and the growing pressure health insurance costs are
placing on their bottom lines. These employers are deeply
concerned about the additional premium cost increases with
which they will be confronted if the McCain-Kennedy bill
becomes law. It is quite clear that many will manage these
cost increases by terminating or, at a minimum scaling back,
their plans.
NAW members are further concerned about the exposure to
costly lawsuits and liability they will face if the McCain-
Kennedy bill becomes law and they continue to voluntarily
offer health insurance as an employee benefit. Many will
manage the newly-acquired risk by terminating their plans
altogether.
The proponents of the McCain-Kennedy bill have repeatedly
claimed that S. 1052 shields employers from liability. As you
have so clearly demonstrated, it does not, and should S. 1052
become law in its current form, the consequence of its
failure in this regard will leave many Americans who today
benefit from employer-provided medical coverage, without
health insurance coverage in the future. This dramatic
undermining of our employer-based health insurance system is
clearly adverse to the interests of employers, their
employees and their employees' families.
There are other serious weaknesses in the McCain-Kennedy
bill with which NAW members are concerned; however, adoption
of your amendment will at least mitigate one of the worst
excesses of the McCain-Kennedy bill. Therefore, NAW is
pleased to support your amendment, and we thank you for your
leadership.
Sincerely,
Dirk Van Dongen,
President.
James A. Anderson, Jr.,
Vice President-Government Relations.
____
National Restaurant Association,
Washington, DC, June 22, 2001.
Hon. Phil Gramm,
U.S. Senate,
Washington, DC.
Dear Senator Gramm: As debate continues on S. 1052, the
McCain-Kennedy-Edwards patients' rights bill, the National
Restaurant Association sincerely appreciates your amendment
to clarify the Senate's intent that employers will not be
subject to liability for voluntarily providing health
benefits to their employees. A vote in support of the Gramm
employer liability amendment will be considered a key vote by
the National Restaurant Association.
The majority of America's 844,000 restaurants are small
businesses with average unit sales of $580,000. Rather than
risk frivolous lawsuits and unlimited damages authorized
under S. 1052, many businesses will be forced to stop
offering health benefits to their employees. Even without the
effect of litigation risk economists predict at least 4-6
million Americans could lose their employer-sponsored health
coverage as a result of the increased costs of S. 1052. We
urge you to avert this harmful situation.
By taking language from the Texas patients' rights bill,
your amendment will clearly define that employers would not
be subject to liability. This amendment is critical given
that S. 1052 currently exposes employer sponsors of health
plans to liability and limitless damages in the following
ways:
Lawsuits are authorized against any employer that has
``actual exercise of control in making such decision.'' [p.
146] This broad phrase would generate lawsuits by allowing an
alleged action by the employer to constitute ``control'' over
how a claims decision was made. ERISA's fiduciary
responsibility obligates employers to exercise authority over
benefit determinations.
Lawsuits are authorized for any alleged failure to
``exercise ordinary care in the performance of a duty under
the terms and conditions of the plan.'' [p. 141]. Under
``ordinary care,'' simple administrative errors could become
the basis of a lawsuit alleging harm. Because all provisions
of S. 1052 would be incorporated as new ``terms and
conditions'' of the plan upon enactment, these new statutory
requirements would further expand employer liability.
Nothing in S. 1052 precludes a lawsuit against employers
who will be forced to defend themselves in state and federal
courts against allegations of ``direct participation'' in
decision making. [p. 145]
Thank you for your effort to protect employees' health
benefits by correcting the vague and contradictory language
in S. 1052. We urge the Senate to support your amendment to
ensure that employers will not be sued for voluntarily
providing health coverage to 172 million workers. The Gramm
employer liability amendment will be a key vote for the
Association. Thank you for your leadership.
Sincerely,
Steven C. Anderson,
President and Chief Executive Officer.
Lee Culpepper,
Senior Vice President,
Government Affairs and Public Policy.
____
National Association
of Manufacturers,
Washington, DC, June 25, 2001.
Hon. Phil Gramm,
U.S. Senate, Senate Russell Office building, Washington, DC.
Dear Senator Gramm: I write in strong support of the
amendment you have offered with your colleague from Texas,
Senator Kay Bailey Hutchison, to the McCain-Kennedy
``Bipartisan Patient Protection Act.''
[[Page S6882]]
We hope that all Senators who agree that employers who
voluntarily sponsor health-coverage should be protected from
liability will support your amendment.
There should no longer be any dispute that the McCain-
Kennedy bill exposes employers to direct and indirect
liability costs for adverse benefit determinations. Whether
or not employers actively intervene into a given benefit
determination, they are charged with responsibility for all
aspects of plan administration under ERISA's fiduciary
responsibility standard (including benefit determinations).
Thus, an employer can either actively or passively meet the
McCain-Kennedy bill's standard of ``direct participation''
(the act of denying benefits or the actual exercise of
authority over the act).
The Gramm-Hutchison Amendment is the Texas Health Care
Liability Act's unambiguous exemption of employers as adapted
to ERISA. We certainly hope a majority of senators will agree
on the need to protect employers from health care liability.
The National Association of Manufacturers will continue to
oppose the underlying McCain-Kennedy bill as adding too much
additional cost to the existing double-digit (13 percent on
average) health-care inflation. The rising cost of health-
coverage, together with the high cost of energy, is exerting
a significant drag on the economy. The Senate, however,
should be heard on the specific question of health-care
liability for employers.
Again, we urgently ask your support for the Gramm-Hutchison
Amendment (Senate Amendment 810) which will be considered for
designation as a key manufacturing vote in the NAM Voting
Record for the 107th Congress.
Sincerely,
Michael Elias Baroody,
Executive Vice President.
____
National Retail Federation,
June 25, 2001.
To the Members of the U.S. Senate:
Tomorrow morning, you will have the opportunity to vote on
a critically important amendment offered by Senator Gramm to
the Kennedy-McCain ``Patient Protection Act of 2001'' that
will exempt employers from new lawsuits authorized by the
legislation. On behalf of the National Retail Federation
(NRF), I strongly urge you to support this amendment. The
vote on the Gramm amendment will be a key vote for NRF.
At a time when retailers are struggling to deal with annual
double-digit increases in health costs, subjecting employers
to liability would be the breaking point for many businesses.
Many employers would be forced to terminate or significantly
scale back their health benefits programs rather than face a
lawsuit that could bankrupt their business--leaving many
working Americans without access to affordable insurance. The
Gramm amendment will unquestionably help to preserve the
ability of employers to provide valuable health benefits to
their employees and their families.
Although passage of the Gramm amendment would address one
of the most serious flaws in S. 1052, it is important to note
that we remain concerned and strongly opposed to the broader
liability provisions in the bill. Although NRF supports the
goals of the legislation to ensure that individuals have the
ability to address their disputes through an independent
appeals process, allowing broad new causes of action in state
and federal court for virtually uncapped damages would have
dire consequences on the employer-based health care system.
The costs of open-ended liability on health plans will
ultimately be borne by employers and employees alike.
As background, the National Retail Federation (NRF) is the
world's largest retail trade association with membership that
comprises all retail formats and channels of distribution
including department, specialty, discount, catalog, Internet
and independent stores. NRF members represent an industry
that encompasses more than 1.4 million U.S. retail
establishments, employs more than 20 million people--about 1
in 5 American workers--and registered 2000 sales of $3.1
trillion. NRF's international members operate stores in more
than 50 nations. In its role as the retail industry's
umbrella group, NRF also represents 32 national and 50 state
associations in the U.S. as well as 36 international
associations representing retailers abroad.
Again, we urge you to support the Gramm amendment, and to
support future efforts to remedy the onerous liability
provisions in S. 1052.
Sincerely,
------
Senior Vice President, Government Relations.
____
National Council of Chain Restaurants of the National
Retail Federation,
Washington, DC, June 25, 2001.
Hon. Phil Gramm,
U.S. Senate, Russell Senate Office Building, Washington, DC.
Dear Senator Gramm: On behalf of the National Council of
Chain Restaurants, I am writing to thank you for introducing
your amendment to protect employers from liability lawsuits
authorized by the Kennedy-McCain ``Patients' Bill of Rights''
currently being debated by the Senate.
The National Council of Chain Restaurants (``NCCR'') is a
national trade association representing forty of the nation's
largest multi-unit, multi-state chain restaurant companies.
These forty companies own and operate in excess of 50,000
restaurant facilities. Additionally, through franchise and
licensing agreements, another 70,000 facilities are operated
under their trademarks. In the aggregate, NCCR's member
companies and their franchises employ in excess of 2.8
million individuals.
Although most of the nation's chain restaurant company
employers offer health care benefits to their employees,
these employers have become increasingly concerned with the
skyrocketing costs of providing such coverage. In fact, many
employers are already being forced to reevaluate whether they
can continue to afford providing health care insurance to
their employees. The Kennedy-McCain bill's imposition of
liability on health plans will exacerbate this problem even
further, as health insurers will simply pass on the costs to
employers in the form of higher premiums. As costs are driven
ever upward, many employers will assuredly be forced out of
the market, pushing even more working families into the ranks
of the 43 million uninsured.
But the Kennedy-McCain bill not only renders health plans
liable to suit, it also imposes liability on employers,
despite claims by bill proponents that employers are
shielded. The very notion that an employer could be sued for
generously and voluntarily providing health insurance to his
or her employees is outrageous. Indeed, if employers are
exposed to liability for their voluntary provision of health
insurance to their employees, in addition to the increased
premium costs resulting from health plan liability under the
Kennedy-McCain bill, many employers will have no choice but
to discontinue this important employee benefit.
The Kennedy-McCain bill threatens to undermine the nation's
employer-sponsored health care system at a time when the
economy is softening and millions of Americans are currently
without coverage. Although serious problems with S. 1052
remain, your amendment would correct one of the numerous
excesses of this extreme legislation.
Sincerely,
M. Scott Vinson,
Director, Government Relations.
____
Advancing the Business
of Technology,
Washington, DC, June 25, 2001.
Hon. Phil Gramm,
U.S. Senate, Russell Senate Office Building, Washington, DC.
Dear Senator Gramm: I am writing on behalf of AeA (American
Electronics Association), the nation's largest high-tech
trade association representing more than 3,500 of the
nation's leading U.S.-based technology companies, including
235 high-tech companies in Texas, to thank you for offering
your amendment to exempt employers from the liability
provisions contained in S. 1052, the Bipartisan Patient
Protection Act.
An overwhelming majority of AeA member companies provide
their employees, their dependents, and retirees with quality
health care options. AeA and its member companies are
concerned that the liability provisions in S. 1052 would
threaten our member companies' ability to continue to offer
health insurance benefits. It only makes sense that exposing
employers who provide health insurance to their employees to
unlimited legal damages will result in fewer employers
offering their employees' health insurance. Unlimited damage
awards against insurance companies and employers will create
a powerful incentive for lawsuits against both. At a minimum,
companies that offer health insurance will see their
litigation costs increase. Health insurance premiums will
also increase, as litigation costs are passed through to both
employers and employees.
Higher health insurance premiums will mean fewer health
insurance options for employees, and in some cases, the loss
of insurance coverage for employees as companies drop health
insurance. The liability provisions in S. 1052 will also put
pressure on companies to drop their health insurance
benefits, primarily from individuals and institutions that
own stock in these companies. Shareholders will be reluctant
to permit companies to assume liability for employer-provided
health insurance and they may pressure companies to drop
their health insurance in order to protect the value of their
stock.
AeA and its members share Congress' concern about improving
the accessibility, affordability and quality of health care
services for all Americans. But AeA and its members believe
that S. 1052, especially the liability provisions in the
bill, will undermine that worthy objective, and ultimately
lead to more uninsured workers. AeA supports your amendment
to S. 1052, as the first in many needed steps to improve this
legislation.
Sincerely,
William T. Archey,
President and CEO.
____
National Federation
of Independent Business,
Washington, DC, June 25, 2001.
Dear Senator: On behalf of the 600,000 members of the
National Federation of Independent Business (NFIB), I urge
you to support Sen. Phil Gramm's amendment exempting all
employers from liability who voluntarily offer health care to
their employees.
The Kennedy/McCain version of the ``Patients' Bill of
Rights'' exposes small business owners to liability for
unlimited punitive and compensatory damages that will force
many small businesses to drop coverage. For
[[Page S6883]]
most small business owners, it only takes one lawsuit to
force them to close their doors. In fact, 57 percent of small
businesses said in a recent poll that they would drop
coverage rather than risk a lawsuit.
Expanding liability in claims disputes could also increase
health care premiums by as much as 8.6 percent at a time when
small businesses are already experiencing annual cost
increases in excess of 15 percent. Such increases will only
force small businesses to drop coverage, adding many to the
ranks of the uninsured.
Both Republicans and Democrats have said that the Texas law
works. Now is the time to put those words into action.
Support Senator Gramm's amendment to exempt employers from
unlimited lawsuits! This will be an NFIB Key Small Business
Vote for the 107th Congress.
Sincerely,
Dan Danner,
Senior Vice President,
Federal Public Policy.
____
Printing Industries
of America, Inc.,
Alexandria, VA, June 22, 2001.
Senator Phil Gramm,
Russell Senate Office Building,
Washington, DC.
Dear Senator Gramm: We are aware that the battle lines in
the Patients' Bill of Rights may be so sharply drawn that
there is little that can be done at this point to overcome
the political issues; however, I want to outline the real
world impact of passage of the Kennedy-McCain bill.
Our association is 114 years old. For a good portion of our
recent history we have provided health benefits to our
employees through a self-funded trust. We chose this option
because we are a safe workplace and we have very good claims
experience as well as a solid balance sheet. We purchase
stop-loss insurance for protection of the assets of the
organization above a specified limit. We provide benefits to
70 active employees, their dependents, and 14 retirees. Until
1974, we provided a retiree medical program for all our
employees but rising costs forced us to drop that program,
grand-fathering the employees who were hired prior to that
time. We require only $50 contribution per month for our
employees to include their dependents in our health care
plan. We cover medical, dental and eye care through a PPO
network or, at the option of the employee, a fee for service
arrangement. Our prescription drug program requires an
employee to pay $3.00 per generic prescription and $5.00 for
brand name prescriptions. This is about the best plan
available to any employee in the Washington area.
We are the ultimate decision maker in our plan. One of the
benefits to self-funding is that we can and do make decisions
affecting the health care of our employees. We have never
made a negative decision. We have made several very
significant positive decisions to help employees in very
difficult health situations.
If the Kennedy-McCain bill is passed, we likely will be
forced to terminate our plan and move to a fully insured
plan. We currently pay almost $600,000 per year for our plan.
We cannot pay any more. Moving to a fully insured plan will
almost certainly reduce the benefits for our employees as we
will lose the advantage of not having to pay overhead for an
insurance company. We anticipate losing 25% of our benefits.
Here are some of the things we will lose:
Our retiree program. When we renegotiated our plan this
past year, we received proposals from insurance companies for
our retiree program. We could not find one in the area who
would pick up the plan.
Our prescription drug benefit. While we would not lose it,
we would have to more than triple the price to $10/$20. This
also is based on the proposals we received last year.
Our ability to make decisions for our employees and their
dependents. We would have to be concerned that the ability to
make good decisions has the other side--turning down the next
employee. In other words, we could be sued for failing to
make a decision. Our organization cannot expose the assets of
the organization to that liability potential.
Our very small employee contribution. Employees share of
the benefits will go up. The $50 per month family coverage
will likely be increased to $200 per month. Co-pays and
deductibles will also rise. Some coverage may have to be
dropped altogether.
We have discussed this issue and other Patients' Bill of
Rights issues with our employees and member firms. Many
people do not understand the issues. They do not believe
Congress would do something like this. Our concern is that
you may not knowingly do something like this. But this is
real.
We would be pleased to discuss this and other matters
related to this legislation with you. We are not alone in the
impact this bill would have on our employees. I am aware that
we have many self-insured, jointly trusteed union plans in
our industry that would also be affected in this manner but
they do not understand the legislation.
Please feel free to contact me if you wish to discuss our
concerns.
Sincerely,
Benjamin Y. Cooper,
Senior Vice President.
Mr. GRAMM. Let me review very quickly where we are. Our colleagues
who support the pending bill say that the bill does not allow employers
to be sued. If you look at the language of their bill, it clearly says
it on line 7 on page 144, ``Causes of action against employers and plan
sponsors precluded.'' Then it says:
Subject to subparagraph (B), paragraph (1)(A) does not
authorize a cause of action against an employer. . . .
That has been pointed to over and over again to say that employers
cannot be sued. The problem is that on line 15, the bill goes on and
says:
Certain causes of action permitted.--Notwithstanding
subparagraph (A), a cause of action may arise against an
employer or other plan sponsor. . . .
Then the bill goes on for 7\1/2\ pages of ifs, ands, and buts about
when employers can be sued. They can be sued if they have ``a
connection with;'' they can be sued if they ``exercise control,'' which
is very interesting because under ERISA, which is the Federal statute
that governs employee benefits provided by the employer, every employer
is deemed to exercise control over every employee benefit.
The bottom line is, despite all the arguments to the contrary, in the
bill before us, employers can be sued.
The Texas Legislature faced exactly this same dilemma, and they
concluded that they wanted an absolute carve-out of employers. Why? Not
that they believed employers were perfect; not that they believed every
employer was responsible, but because they couldn't figure out a way to
get at potential employer misbehavior without creating massive
loopholes which would produce a situation where employers, large and
small, could be dragged into a courtroom and sued because they cared
enough about their employees to help them buy health insurance.
The Texas Legislature decided you ought not be able to sue an
employer.
Senator McCain read a letter from the Texas Medical Association
president, but he did not read the one paragraph in the letter that I
was going to read. It is a very important paragraph. Let me explain
why. Opponents of this amendment say: You ought to be able to sue
employers if employers are making medical decisions. The point is, this
bill--and the Texas law and every Patients' Bill of Rights proposal
made by Democrats and Republicans--has an external appeal process that
a panel of physicians and specialists, totally independent of the
health care plan and totally independent of the employer, that will
exercise the final decisionmaking authority.
How could an employer call up this professional panel, independent of
the health insurance company or the HMO, and in any way intervene? They
couldn't.
The line from the letter from the Texas Medical Association addresses
exactly this point. It points out that the State couldn't reach into
ERISA. But another reason that it wasn't necessary or advisable to try
to sue employers was, from the letter:
Additionally, we believed that utilization review--
And this is the review process--
agents were making the decisions regarding appropriate
medical treatment for employees of these self-funded plans.
We contended that these state-licensed utilization review
agents would be subject to the managed care accountability
statute--
Which is the Texas law.
The same would be true under this bill. Under this bill, no employer
can make a final decision. The final decision is made by this
independent medical review.
So what is this all about? It all boils down to the following facts:
If we leave this provision in the bill, which says employers can be
sued and has 7\1/2\ pages of ifs, ands, and buts about suing them, and
then interestingly enough says you can't sue doctors, you can't sue
hospitals, but you can sue employers in its conclusion, then what is
going to happen is all over America businesses are going to call in
their employees.
The example I used yesterday, and I will close with it today--am I
out of time?
The PRESIDING OFFICER. The Senator's time has expired.
Mr. GRAMM. Let me wrap up by saying, all over America, small
businesses are going to call in their employees and say: I want to
provide these benefits, but I cannot put my business at risk, which my
father, my mother, my family have invested their hearts and souls in;
therefore, I am going to have to cancel your health insurance.
[[Page S6884]]
I urge my colleagues to vote for this amendment.
I yield the floor.
Mr. KENNEDY. Madam President, I am prepared to yield back the minute
on the Grassley motion. As I understand it, Senator Grassley is going
to yield back his time.
I ask for the yeas and nays on both the Grassley motion and the Gramm
amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The question is on agreeing to the motion.
The clerk will call the roll.
The senior assistant bill clerk called the roll.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 39, nays 61, as follows:
[Rollcall Vote No. 196 Leg.]
YEAS--39
Allard
Allen
Baucus
Bennett
Bond
Breaux
Brownback
Bunning
Burns
Campbell
Cochran
Craig
Crapo
Enzi
Frist
Gramm
Grassley
Gregg
Hagel
Hatch
Helms
Hutchison
Inhofe
Kyl
Lott
Lugar
McConnell
Murkowski
Nickles
Roberts
Santorum
Shelby
Smith (NH)
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
NAYS--61
Akaka
Bayh
Biden
Bingaman
Boxer
Byrd
Cantwell
Carnahan
Carper
Chafee
Cleland
Clinton
Collins
Conrad
Corzine
Daschle
Dayton
DeWine
Dodd
Domenici
Dorgan
Durbin
Edwards
Ensign
Feingold
Feinstein
Fitzgerald
Graham
Harkin
Hollings
Hutchinson
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Landrieu
Leahy
Levin
Lieberman
Lincoln
McCain
Mikulski
Miller
Murray
Nelson (FL)
Nelson (NE)
Reed
Reid
Rockefeller
Sarbanes
Schumer
Sessions
Smith (OR)
Snowe
Specter
Stabenow
Torricelli
Wellstone
Wyden
The motion was rejected.
Mr. KENNEDY. I move to reconsider the vote.
Mr. GREGG. I move to lay that motion on the table.
The motion was agreed to.
Amendment No. 810
The PRESIDING OFFICER. Under the previous order, there will now be 6
minutes for closing debate, divided in the usual form, prior to a vote
on or in relation to the Gramm amendment No. 810.
Who yields time?
Mr. KENNEDY. I understand there are 3 minutes to a side.
The PRESIDING OFFICER. The Senator is correct.
Mr. KENNEDY. I yield myself a minute and a half and a minute and a
half to the Senator from North Carolina.
Madam President, we have just finished the education legislation. In
this legislation, we held students accountable, school districts
accountable, teachers accountable, and children accountable. Now we are
trying to hold the HMOs accountable if they override doctors, nurses
and trained professionals regarding the care for injuries of
individuals. That is the objective of this legislation.
However, if employers interfere with medical judgments, they ought to
be held accountable as well. The Gramm amendment says: No way; even if
an employer makes a judgment and decision that seriously harms or
injures the patient, there is no way that employer could be held
accountable.
We may not have the language right, but at least we are consistent
with what the President of the United States has said. We may have
differences with the President of the United States and we do on some
provisions. However, the Gramm amendment is an extreme amendment that
fails to protect the patients in this country and fails to provide that
needed protection.
Mr. GRAMM. Madam President, I make a point of order that the Senate
is not in order. Senator Edwards deserves to be heard.
The PRESIDING OFFICER. The Senate will be in order.
The Senator from North Carolina is recognized.
Mr. EDWARDS. Madam President, this is an issue on which we have
consensus. The President of the United States said, ``Only employers
who retain responsibility for and make vital medical decisions should
be subject to suit.''
Our bill provides exactly as the President describes. As Senator
Kennedy has indicated, we have consensus not only with the President of
the United States but in this body and in the House of Representatives
based on the Norwood-Dingell bill which was voted on before. This is an
issue about which there is consensus.
We are continuing to work. Senator Snowe and others are leading that
effort. We are working across party lines to get stronger and more
appropriate language so that employers know that they are protected
without completely leaving out the rights of the patients.
I urge my colleagues to vote against the Gramm amendment, which is
outside the mainstream, outside our bill, outside our position, outside
Norwood-Dingell, and outside what the President of the United States
has said.
I yield the floor.
The PRESIDING OFFICER. The Senator from Texas.
Mr. GRAMM. Madam President, throughout this debate, those who are in
favor of this bill have said our bill is just like the Texas bill. Look
at Texas. No employers have been sued, and there have been a minimum
number of lawsuits. Yet when you look at this bill, it says employers
can't be sued. Then it says they can be sued. And it has 7\1/2\ pages
of ifs, ands and buts.
Are employers connected with the decision? Do they exercise control?
ERISA says that in any employee benefit the employer is deemed to
exercise control, which would mean that every employer in America is
covered. The Texas legislature did not assume that every employer was
perfect. They were worried about unintended consequences.
They also concluded that no employer can be the final decisionmaker
because this bill, as in our bill, has an external review process that
is run by independent physicians that are selected independently of the
plan. They make the final decision, not an employer.
The Texas legislature decided what we should decide here; that is, if
you get into ifs, ands, and buts, what is going to happen all over
America is businesses are going to drop their insurance.
If we should pass the bill without this amendment in it, it is easy
to envision that we could have a small business where the business
owner calls in his employees and says, Look, we worked hard to provide
good health benefits, but my father and my mother worked to build their
business. I have worked. My wife has worked. We have invested our whole
future in this business, and I cannot continue to provide benefits when
I might be sued.
Think about the unintended consequences. That is what the Texas
legislature did. They concluded that employers should not be liable.
They cannot make the final decision under this bill. They cannot make
the final decision under Texas law because it is made by an external
group of physicians. But when you make it possible to sue them, they
are going to drop their health insurance, and you are going to have
fancy reviews and stiff penalties, but people aren't going to have
health insurance.
I urge my colleagues to look at Texas. If you want to take all the
claims of the benefits of Texas, do it the way they did it. They
thought you created unintended consequences by letting employers be
sued. They knew that employers could not make the final decision
because they had external review, just as this bill and every other
bill has. By doing an employer carve-out, they guaranteed that every
small and large business in the State would know they cannot be sued.
The PRESIDING OFFICER (Mr. Corzine). The question is on agreeing to
amendment No. 810. The yeas and nays have been ordered, and the clerk
will call the roll.
The assistant legislative clerk called the roll.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 43, nays 57, as follows:
[[Page S6885]]
[Rollcall Vote No. 197 Leg.]
YEAS--43
Allard
Allen
Bennett
Bond
Brownback
Bunning
Burns
Campbell
Cochran
Collins
Craig
Crapo
Domenici
Ensign
Enzi
Frist
Gramm
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Hutchison
Inhofe
Kyl
Lott
Lugar
McConnell
Murkowski
Nickles
Roberts
Santorum
Sessions
Shelby
Smith (NH)
Smith (OR)
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
NAYS--57
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Breaux
Byrd
Cantwell
Carnahan
Carper
Chafee
Cleland
Clinton
Conrad
Corzine
Daschle
Dayton
DeWine
Dodd
Dorgan
Durbin
Edwards
Feingold
Feinstein
Fitzgerald
Graham
Harkin
Hollings
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Landrieu
Leahy
Levin
Lieberman
Lincoln
McCain
Mikulski
Miller
Murray
Nelson (FL)
Nelson (NE)
Reed
Reid
Rockefeller
Sarbanes
Schumer
Snowe
Specter
Stabenow
Torricelli
Wellstone
Wyden
Mr. REID. Mr. President, I move to reconsider the vote.
Mr. KENNEDY. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. REID. Mr. President, 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. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Mr. President, we were in the process of trying to propound
a unanimous consent request, but all the parties are not here. We will
do that at 2:15.
____________________