[Congressional Record Volume 147, Number 92 (Thursday, June 28, 2001)]
[Senate]
[Pages S7011-S7076]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
recognition of the acting majority leader
The ACTING PRESIDENT pro tempore. The Senator from Nevada is
recognized.
Mr. REID. Mr. President, I ask that the time I use not be charged
against either side.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Schedule
Mr. REID. Mr. President, we will resume consideration of the
Patients' Bill of Rights. We are going to have a vote at approximately
10 to 10. We have a unanimous-consent agreement in effect that will
take us throughout the early afternoon, with votes scheduled throughout
that period of time. We expect votes all evening. The leader would very
much like to finish this bill today. Certainly the end is in sight. If
not, we will work through the night--into the night, not through the
night--we will come back tomorrow, and hopefully we don't have to come
back Saturday.
What the leader has said is that we are going to complete this
legislation. We are going to complete the legislation, plus the
supplemental appropriations bill before we go home.
He said he would work Saturday, Sunday, Monday, and Tuesday and
Wednesday, the 4th--take that off--and come back after that to complete
our work. We are cooperating and doing our very best to meet the
requests of Senators Byrd and Stevens. Their last unanimous consent
request has been cleared on this side as far as the filing of
amendments. We applaud the four managers who have been working on this
bill. We look forward to continuing to work today.
Amendment No. 826
The ACTING PRESIDENT pro tempore. Under the previous order, there
will now be 30 minutes for debate to be equally divided between the
Senator
[[Page S7012]]
from Maine, Ms. Collins, and the Senator from Louisiana, Mr. Breaux,
prior to a vote on or in relation to the Collins amendment No. 826.
Who yields time? The Senator from Maine.
Ms. COLLINS. Mr. President, I ask unanimous consent that the Senator
from Virginia, Mr. Allen, be added as a cosponsor of the Collins-Nelson
amendment.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Ms. COLLINS. I yield 6 minutes to the Senator from Kansas, Mr.
Roberts.
The ACTING PRESIDENT pro tempore. The Senator from Kansas is
recognized.
Mr. ROBERTS. Mr. President, here is the issue: The ability of States
to determine what is best for themselves. That is the issue. Sure, the
issue is the Patients' Bill of Rights. But if Kansas or Nebraska or
Maine or Massachusetts or Louisiana or Connecticut--as I look at
Members in the Chamber--have an effective patient protection system
that is working, why impose new Federal regulations that will force
them to overhaul the system they have in place?
The Collins-Nelson-Roberts, and others, amendment would simply give
the State of Kansas and other States the flexibility to provide patient
protection required under this bill in a way that best fits each State.
For example, last year in Kansas we implemented a new law that assists
patients who get into a dispute with their insurance company over the
refusal to pay for medical procedures. It is a long process, but the
independent reviewer will make a decision and reply within 30 business
days after an appeal procedure.
According to Kathleen Sebelius, our very good Kansas State Department
of Insurance Commissioner, there were 22 cases that were closed last
year; 12 decided in favor of the HMO and 10 overturned the decision
made by the HMO. Now that more Kansans are aware of their ability to
receive this external appeal and receive independent review, more cases
have been filed with the Kansas Insurance Department. Simply put, our
State commissioner, Kathleen Sebelius, and the Kansas State Department
of Insurance are doing a good job looking out for the best interests of
Kansans covered by HMOs.
So the question is, Why does the Federal Government need to tell our
State we have to completely scrap what we are doing and put into place
a Federal layer of new Washington-knows-best requirements? How good is
this really for families in Kansas, or your States' families? In fact,
Kansas has a large number of patient protections that have been in
place for years, and the list is impressive. The list includes a
comprehensive bill of rights, the internal and external appeals I have
already described, consumer grievance procedures, emergency room
services, OB/GYN access, prompt payment, continuity of care, a ban on
gag clauses and financial incentives, screening and breast
reconstruction, prostate cancer screening, maternity stay, drug and
alcohol abuse treatment, standing referral, and the list goes on and on
and on.
Under the bill we are debating today, many of these effective
consumer protections Kansas has in place will have to be thrown out and
we will have to start all over.
Our Kansas State Insurance Commissioner, Kathleen Sebelius, also
serves as the president of the National Association of Insurance
Commissioners. Kathleen has written a letter that clearly lays out the
devastating effects the Washington one-size-fits-all plan will have on
State insurance markets, and she warns--listen to this, colleagues--
that this is going to be administered by an outfit called the Center
for Medicare and Medicaid Services. It used to be called HCFA. If you
really want to turn over your state regulations to HCFA, that is
another issue that we can talk about for at least an hour or two. The
commissioner stated in her letter:
The proposed patient protection bills are far more
complicated than the Health Insurance Portability and
Accountability Act, or HIPAA, and will require considerable
oversight. To resolve these issues, the National Association
of Insurance Commissioners urges Congress to include in any
patient protection legislation provisions that would preserve
State laws and enforcement procedures, such as internal and
external review processes. Failure to maintain State
authority in this area could lead to implementation of
regulations that are inconsistent with the needs of consumers
in a State and that are not enforced effectively.
I think she nailed it right on the head. I am an original cosponsor
of the Collins-Nelson amendment because it would allow States to do
what they are already doing well. If these standards are not met, only
then would the Federal Government come in and impose its standards, and
the State would then be required to meet a higher standard in order to
be made eligible for the Patient Quality Enhancement Grant Program.
Other amendments will have a stick; this is a carrot. I prefer a
carrot; other Senators may prefer a stick.
Let me just say, in summing up, can any other Member of this body
honestly tell me what is in this bill is better than what the State of
Kansas already has in terms of patient protection? Do you know better
than our commissioner, Kathleen Sebelius, or Governor Graves, and the
Kansas State Legislature? The answer is no.
My colleagues, support this amendment and give States a chance to
apply the standards they have currently in place, that are working. The
external and internal appeals process is working. Don't make us
reinvent the Federal wheel.
I thank the Chair and my colleagues.
The ACTING PRESIDENT pro tempore. Who yields time?
Mr. BREAUX. I yield myself 5 minutes.
Mr. President, I rise in strong support of the so-called Breaux-
Jeffords compromise amendment. We are dealing with a question of how
are we going to allow the States to continue to operate their own
patient protection bills that many of them have already instituted. My
own State of Louisiana has passed over 35 different patients' bills of
rights guarantees, and they are working fairly well. I think my
colleague, Senator Jeffords, wants to continue to allow those States to
have their State plans in effect when they are substantially complying
to what we are trying to do here on a national level.
As Senator Kennedy said last night, if you had the Collins amendment,
there would be no guarantee that States would have a Patients' Bill of
Rights. They would not have to do anything if they so chose. A State
could say they are not interested in guaranteeing patients within their
borders any rights at all, period. We don't think it is the right thing
to do. We are not doing it. The only thing that they would suffer, if
they decided to take that approach under the Collins-Nelson amendment,
is that they would lose grant money that is being authorized in this
legislation.
Well, I think that is unfortunate in the sense that we are talking
about a national program to guarantee patients the rights they should
have under this legislation. I think there is strong agreement
nationwide that there is a need to have some kind of a national
guarantee that covers all Americans, not just some Americans, not just
a few Americans, not just a handful of Americans, but all Americans, in
dealing with their health insurance program.
Our compromise amendment does accomplish that goal, and it does it in
a way that gives the maximum ability of the States to do what they
think is necessary in crafting their Patients' Bill of Rights. The
language that we have put forth says that State plans would not be
superseded. They will continue to operate as they do today, if they
substantially comply with the patient protection requirements that we
are instituting on a national level for all Americans.
That doesn't mean their plan has to be exactly the same as the
Federal requirements. It has to substantially comply. That is a legal
term used in Congress on many other occasions. On the SCHIP program for
providing insurance to children, which we have enthusiastically
supported, the requirement is that a State can run their own program if
it substantially complies with the Federal requirements for all
Americans that were instituted by this Congress.
On the Medicare Program, folks here in Washington understand how to
apply that terminology.
It is working. My State of Louisiana runs its own plan. I am very
confident that my State of Louisiana will continue to run the plan we
have in place
[[Page S7013]]
right now under the Breaux amendment because it clearly would, in my
opinion, substantially comply with what we are talking about here.
We have a definition of what ``substantially comply'' means by saying
a State law would have the same or similar features as the patient
protection requirements and would have a similar effect. That is not an
unbearable standard at all. It does not have to be exactly. It just has
to have the same or similar features.
They can design those rights on States that will be tailored to the
needs of that particular State, and the only requirement is that it
have the same or similar features. That is not too strong a guideline
to the States or a requirement on behalf of the States. I think it can
work. Most of the States, if not every single State, that have adopted
a Patients' Bill of Rights will find their plans in their respective
States will stay intact and will still be the State Patients' Bill of
Rights under this legislation.
If a State decides for some reason they do not care, they are not
going to do anything, there should be the ability for us to make sure
all Americans are guaranteed the rights we are talking about today;
that they are enforceable; there is an opportunity to go to court to
enforce them; and that there is an appeals process when they are being
abused.
This is what the Breaux-Jeffords amendment will allow. That is why it
is a realistic compromise compared to the amendment of my good friends,
Senator Nelson and Senator Collins, with whom I have worked on many
occasions and will continue to do so in areas such as health. They are
trying to do the right thing. Their amendment will allow some States to
do nothing. Potentially thousands of Americans will not have any
coverage whatsoever if that is the decision of the State.
We are writing legislation for all Americans, and I suggest the
Breaux-Jeffords bill is a proper compromise that can bring this about.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator's time has expired.
The Senator from Maine is recognized.
Ms. COLLINS. Mr. President, how much time is remaining on our side?
The ACTING PRESIDENT pro tempore. Nine minutes.
Ms. COLLINS. I yield 5 minutes to the Senator from Nebraska.
The ACTING PRESIDENT pro tempore. The Senator from Nebraska is
recognized for 5 minutes.
Mr. NELSON of Nebraska. I thank Senator Collins for her strong
support for this amendment, and I commend my colleague, Senator Breaux
from Louisiana, for his strong support and consistent efforts to find a
compromise.
Certainly, the effort is an improvement over where we had been. One
area I want to point out I disagree with my friend from Louisiana is
his suggestion that maybe the States will not do anything. If you take
a look at the charts that Senator Collins and I have up, when you look
at all the checks, I suggest the States have been doing something and
they will continue to do something if the Federal Government does not
come in and take away both the incentive and the opportunity by putting
in what is termed affectionately ``a floor,'' a minimum.
The problem is these minimums very often become the ceiling or they
become, if you will, the top of whatever is being done because the
States will not have the same opportunity, nor will they have the same
willingness with the Federal deregulation, of the federalization of the
regulation of State insurance as it applies to these health plans.
Generally preemption occurs when the States have not acted. I cannot
imagine we are now preempting what the States have done on the basis of
they have done such a good job that we were able to pick and choose
from the best of those protections to create this bill and now we say
to them: It's a job well done; thank you very much, and, by the way, we
will impose these on you and we will make sure your laws will have to
be either substantially equivalent or consistent with, according to
Frist-Breaux, or, with the compromise, substantially compliant.
I can understand our desire to take over the role of the States in
this area if the States have not done anything, but I cannot understand
the desire to do it when the States have done such a good job that we
have picked and chosen from the best of those efforts to comprise our
bill.
It does not make sense to preempt under these circumstances. That is
why many of us would like to see the States have the opportunity to opt
out so we will have continuing experimentation under the Jefferson
principle that the States are the laboratories of democracy. I am not
against all preemptions, but I do have a question about this
preemption, whether it makes sense under the circumstances with the
progress that the States have made.
The charts will show the States have been active. They have worked
very hard and diligently and are continuing to do so. Delaware just
last week enacted additional patient protection laws. What we need to
do is make sure we continue to permit the States to experiment.
I am also worried that with the application of these standards to the
States, we will not have further experimentation, we will not have
further development of patient protections. I hate to think we are at a
point where the status quo will be sufficient for today as well as for
tomorrow. I worry this effort in having a floor will result in it
becoming a ceiling.
If you look at the charts, you will see to one degree or another,
whether it is emergency room or whether it is the external appeals or
the internal appeals, that nearly every State is doing it. Many States
have decided not to do everything under every set of circumstances. I
do not think they ought to be penalized where they have made a
conscious decision that that is not going to work within their State.
We ought not to have, in my judgment, a one-size-fits-all approach. We
have not found, if you will, the Holy Grail as it relates to what
patient protection truly is. If we allow the States to continue to
experiment, we will find that they will be innovative and they will
come up with new methods of providing even better patient protections.
After all, this is coming from the grassroots; this is coming from the
bottom up.
I think we are making a mistake trying to drive it from the top down
which will stifle and create the opportunity for stagnation rather than
experimentation. I hope that will not be the case, but I do not see it
really any other way.
The National Association of Insurance Commissioners, the president of
the National Association of Insurance Commissioners, the National
Council of State Legislators all agree with this approach.
The ACTING PRESIDENT pro tempore. The Senator's time has expired.
Who yields time?
Mr. BREAUX. I yield 5 minutes to Senator Jeffords.
The ACTING PRESIDENT pro tempore. The Senator from Vermont is
recognized for 5 minutes.
Mr. JEFFORDS. Mr. President, I commend the Senator from Maine for
keeping this issue alive. It is critically important that we defer as
much as we can to the States because they are already set up for it.
Why not let them do it?
On the other hand, this is a Federal Patients' Bill of Rights. That
means equal rights to everyone in this country, so there is a
requirement for uniformity as well as to make sure we get a firm and
even enforcement of this bill.
A lot has been said about HIPAA and using HIPAA as an example of bad
policy, and it was bad policy, but it was totally different. HIPAA
dealt with portability of insurance in the case of people being laid
off work.
They said, if you do not do it, HCFA will come in and do it, and five
States said let HCFA do it, and it made a mess of it. This is
different. We are talking about the enforcement of rights, an even
enforcement across the country. Yet we do recognize it is important for
the States to do it themselves. Many, if not most of them, are already
doing a legislative enforcement to require the appropriate and fair
enforcement of the rights of individuals on health care.
This is an important difference. HIPAA was a mess, but this has
nothing to do with that. This is quite different from HIPAA.
We all support the Patients' Bill of Rights. The question is who
ought to
[[Page S7014]]
enforce it. We say, yes, let the States that want to do it do it. On
the other hand, we need to make sure it is done fairly and uniformly
across this country. We do give the authority to the Secretary to
review it, and we also say he should lean over backwards to make sure
the States do it if at all possible. It is not a HIPAA-type situation;
we ought to differentiate that.
It is important that we also recognize that the compromise requires
States to have protections that are ``substantially compliant with''
Federal protection and defines this standard as having the ``same or
similar provisions and the same or similar effect.''
The Secretary must approve the State's certification of compliance in
a manner that is in deference to existing State laws. If he does not
act on the State application within 90 days, it is automatically
approved. States that have their certification disapproved may
challenge that disapproval in court.
The amendment developed by Senator Breaux and myself requires States
with additional flexibility to implement strong patient protections
while guaranteeing a basic level of protection for all Americans in all
health plans. Requiring the States to be in substantial compliance with
the Federal law--not exact compliance but substantial compliance--
provides States with the flexibility they need to implement strong
patient protections while ensuring that all patients receive the
Federal floor of protections. Under this amendment, States can keep
their own laws as long as their basic intent is similar to the Federal
standard and will have a similar effect.
The Secretary is required to be deferential to the States--give them
every break you can but make sure that the bill of rights will be
enforced. Give them every possible opportunity to do it themselves
rather than having to go to court. However, this requirement does not
infringe upon the Secretary's authority to determine whether current
State laws will provide the basic level of protection promised to all
Americans in the health plans under the Patients' Bill of Rights.
So HIPAA is just a totally different situation. It is a mess; we
agree with that; but it is totally different. Do not get confused on
the HIPAA example.
Mr. President, I yield the floor.
The ACTING PRESIDENT pro tempore. Who yields time?
The Senator from Maine.
Ms. COLLINS. How much time is remaining on my side?
The ACTING PRESIDENT pro tempore. Three minutes forty-seven seconds.
Ms. COLLINS. Mr. President, I yield 2\1/2\ minutes to the Senator
from Ohio, Mr. Voinovich.
The ACTING PRESIDENT pro tempore. The Senator from Ohio is
recognized.
Mr. VOINOVICH. Mr. President, I thank my friends from Maine and
Nebraska for offering this important amendment. I believe the Collins-
Nelson amendment will allow the Senate to move forward and pass a
strong Federal patient protection bill without suffocating the patient
protections States have adopted over the last several years.
I wholeheartedly agree that the Senate should take action to protect
those Americans not covered under state plans. While the states were in
front protecting the majority of those insured individuals through
state regulation, the federal government has dragged its feet.
However, a federal patient's bill of rights should not preempt the
patient protections that have already been passed by the states. There
are more than 117 million Americans who are covered under fully insured
plans, governmental plans and individuals policies, which are all
regulated under state law.
My colleagues supporting the McCain-Kennedy legislation believe that
the federal mandates in the bill should apply not only to ERISA plans,
but also to those 117 million Americans in state regulated health
plans. Apparently, they do not think that the states, which have
already acted and are already protecting millions of Americans, are
competent enough to do the job. Instead, they think that the federal
government will do a much better job.
My colleagues on the other side of this debate want the public to
believe that all Americans need to be covered under a federal patient
protections bill or else the quality of their health care will be
jeopardized. The fact of the matter is that the majority of Americans
are already covered under very good, very comprehensive state health
care laws.
As a former Governor of Ohio, I was on the front lines in the fight
to give working men and women in Ohio real health care choices. As
governor, I signed into law five legislative measures and pushed
through several administrative improvements to protect families who
relied on state-regulated plans for their health care coverage.
The majority of states, including Ohio, have moved aggressively--
certainly more quickly than the federal government--to reduce health
care inflation, expand access for the working poor, enhance consumer
protections and bring greater accountability to the system.
If the states had waited for the federal government to step up to the
plate to provide patient protections, 117 million Americans would not
have the patient protections they currently enjoy.
The simple truth is that the states have been out in front of the
federal government in providing sound protections for its citizens. The
following facts prove this point:
42 states have already enacted a comprehensive Patient's Bill of
Rights;
50 states have mandated strong patient information provisions;
50 states already have an internal appeals process and 41 states have
included an external appeals process;
48 states already enforce consumer protections regarding gag clauses
on doctor-patient communications;
47 states already have regulations regarding prompt payment; and
44 states already enforce consumer protections for access to
emergency care services.
The states are already getting the job done for the majority of
insured Americans. But if we do not pass this amendment, we will be
turning over to the Health Care Financing Administration (HCFA) the
enforcement of state sponsored protection plans that are not
substantially equivalent with the federal bill.
The fact is, HCFA already has its hands full. Administering and
regulating Medicare and Medicaid has already overburdened this federal
agency. Think about it. HCFA already has under its purview over 70
million Americans through these federal programs. Now, my colleagues
want to place the health care of an additional 170 million Americans on
HCFA's shoulders.
The simple fact is that HCFA cannot handle the burden.
Those individuals on the front lines of protecting the 117 million
Americans with state regulated insurance know what will happen if the
federal government is given the responsibility to oversee these state
regulated health insurance plans.
In fact, the National Conference of State Legislatures has described
the McCain-Kennedy bill as, ``. . . federal legislation that will
largely preempt important state laws and replace them with federal laws
that . . . the federal government is ill-prepared to monitor and
enforce.''
Additionally, the National Association of Insurance Commissioners has
made clear its concerns about the McCain-Kennedy bill: if the federal
government unilaterally imposes a one-size-fits-all standard on the
states, it ``could be devastating to state insurance markets.''
The amendment that Senators Collins and Nelson have offered will give
true deference to state laws and the traditional authority that states
have had to regulate insurance.
By ``grandfathering'' all state patient protection laws, Senators
Collins and Nelson recognize that the vast majority of states have
enacted comprehensive patient protections laws, as Ohio has done.
The amendment also encourages states, through Patient Quality
Enhancement Grants, to review their current patient protection and, if
the state legislature and governor so desire, take action to mirror
federal patient protections.
I want to relay to my colleagues that I truly believe that this will
be the most important federalism vote that the Senate takes this year.
[[Page S7015]]
In conclusion, it has been the traditional role of States to regulate
the needs of our States. However, both the McCain-Kennedy bill as
written and the Breaux amendment seek to preempt what the States have
accomplished in protecting patients. The underlying bill as written
would step over the 10th amendment which says: the powers not delegated
to the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people.
The bottom line is that the States have been involved in protecting
patients a lot longer than the Federal Government, and they are doing a
good job with the protections they have put in place. They debated them
in their State legislatures. Their insurance departments are doing a
good job of enforcing those laws. The Breaux amendment and the
underlying bill gets the States out of their role. We will have a dual
system of enforcement--State insurance commissioners and HCFA. And I
can tell you, anyone who knows anything about HCFA in terms of the
responsibilities they have, knows they have a hard-enough time doing
their job now. We should not get them involved in a system that is
already working on the State level.
I beg my colleagues not to go along with federalizing this issue.
Let's take care of the Federal people who have been exempted over the
years because we haven't done the job we are supposed to do, and let
the States continue to do the job they have been doing.
I thank the Chair.
The ACTING PRESIDENT pro tempore. Who yields time?
Mr. BREAUX. I yield 2\1/2\ minutes to my good friend, the Senator
from Connecticut.
The ACTING PRESIDENT pro tempore. The Senator from Connecticut is
recognized.
Mr. DODD. Mr. President, I thank my colleague from Louisiana. I
commend him and the Senator from Vermont for their compromise proposal
we will be voting on shortly. I reluctantly oppose my friend from
Maine, my fellow New Englander. I have joined with her on so many
issues and have such great respect for her.
There is a title to this bill. It is not titled casually; it is
called the Patients' Bill of Rights. We talk about a bill of rights.
Obviously we are all most familiar with our Constitution and the Bill
of Rights we embrace and cherish so richly as American citizens. But if
we are going to have a bill of rights when it comes to basic
fundamental health care, as has been pointed out by the Senator from
Louisiana and the Senator from Massachusetts and others, then there
ought to be a floor that applies across the country to all 50 States.
That is what we are really advocating.
If the Collins amendment is adopted, then what you are developing is
a trapdoor in that basic floor that exists. Let me make the case just
by pointing to one particular provision of this bill. That is the
access to emergency room care, Mr. President.
I have this chart to make the point. In the States that are in red in
this chart, they have laws that are weaker than the underlying bill
when it comes to access to emergency rooms. We are not talking about
some grandiose new plan. We are talking about a fundamental right that
you can have access to the closest emergency room. In 27 States, they
have a much weaker provision than is in this law. We are saying when it
comes to a Patients' Bill of Rights, access to clinical trials,
specialists, emergency rooms, this is the floor across the country. If
you want to pass laws at the State level that are substantially in
compliance with that, we welcome that. If you want to do something more
than we are doing here, we welcome that. But if you are going to say
that we are going to allow weaker laws to exist in the access to a
gynecologist, to a pediatrician, to a clinical trial, to a specialist,
or to an emergency room, then we don't think that is right.
If you are for the Collins amendment, in many ways you are going
against this bill. I understand that. I appreciate the fact that people
do not want to pass a Patients' Bill of Rights and just leave it up to
each State to decide. But if you believe, as a majority of us do, and
an overwhelming majority of the American public, that there ought to be
a Patients' Bill of Rights, a basic floor that provides these basic
standards, then you must vote to adopt the Breaux-Jeffords compromise
amendment and retain the integrity of this bill.
The ACTING PRESIDENT pro tempore. The Senator's time has expired. Who
yields time?
Mr. KENNEDY. I imagine the Senator would like to close the debate,
would she not?
I believe I have 2\1/2\ minutes.
Mr. President, the issue is very simple and very basic and very
fundamental. It is whether all Americans are going to be covered as
included in this legislation. We do not believe it should depend upon
where you live. We believe it should depend necessarily on where you
work. If a child needs a specialist to treat cancer, he or she ought to
be entitled to see the specialist and receive the treatment. If a woman
needs to be enrolled in a clinical trial that could be lifesaving, she
ought to be entitled to participate. If a breadwinner who is crippled
with arthritis needs a specialty kind of drug from a formulary, he or
she ought to be able to obtain it.
Now, our bill guarantees these kinds of protections, but with the
Collins amendment it is a roll of the dice. President Bush believes
that all Americans should be covered. Every Republican bill that was
introduced and considered in the House of Representatives said all
Americans are covered. She covers about 40 percent of them; 60 percent
of Americans are left out. We believe if you are interested in assuring
that all Americans be covered, you ought to support the Breaux-Jeffords
amendment. That will be doing the right thing.
The ACTING PRESIDENT pro tempore. The Senator from Maine is
recognized.
Ms. COLLINS. Mr. President, one of the myths in this debate is that
unless the Federal Government preempts State insurance laws, somehow
millions of Americans will be unprotected in their disputes with HMOs.
That is simply untrue. Ironically, my friend from Connecticut makes the
point on emergency room care. Forty-four States have enacted
legislation guaranteeing access to the nearest emergency room. But they
have crafted their laws in different ways depending on the needs of
those States. Why should the Federal Government second-guess those
laws, substitute its judgment for the judgment of State legislators and
Governors' offices all over this country? It does not make sense. The
proposal of the Senator from Louisiana would be both burdensome to
States and ineffective for consumers.
Does anyone really believe that a consumer with a problem with his or
her insurance policy is better off calling the HCFA office in Baltimore
than dealing with their own State bureau of insurance?
The States have more than 50 years of experience in regulating
insurance. They have acted without any prod or mandate from Washington
to enact good, strong patient protection laws. Let's honor their work.
Let's build upon the good works of the States rather than preempting,
second-guessing, and superseding their laws.
The ACTING PRESIDENT pro tempore. Who yields time?
Ms. COLLINS. Is there any time remaining?
The ACTING PRESIDENT pro tempore. The Senator from Maine has 24
seconds.
Ms. COLLINS. I yield back the remainder of my time if the other side
is ready to yield back.
I ask for the yeas and nays on the amendment.
The ACTING PRESIDENT pro tempore. All time is yielded back. Is there
a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. REID. Mr. President, I move to table the Collins amendment and
ask for the yeas and nays.
The ACTING PRESIDENT pro tempore. 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 legislative clerk called the roll.
Mr. REID. I announce that the Senator from Delaware (Mr. Biden) is
necessarily absent.
[[Page S7016]]
Mr. NICKLES. I announce that the Senator from New Mexico (Mr.
Domenici) and the Senator from Alabama (Mr. Shelby) are necessarily
absent.
The PRESIDING OFFICER (Mr. Reed). Are there any other Senators in the
Chamber desiring to vote?
The result was announced--yeas 53, nays 44, as follows:
[Rollcall Vote No. 202 Leg.]
YEAS--53
Akaka
Baucus
Bayh
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)
Reed
Reid
Rockefeller
Sarbanes
Schumer
Stabenow
Torricelli
Wellstone
Wyden
NAYS--44
Allard
Allen
Bennett
Bond
Brownback
Bunning
Burns
Campbell
Cochran
Collins
Craig
Crapo
Ensign
Enzi
Frist
Gramm
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Hutchison
Inhofe
Kyl
Lott
Lugar
McConnell
Murkowski
Nelson (NE)
Nickles
Roberts
Santorum
Sessions
Smith (NH)
Smith (OR)
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
NOT VOTING--3
Biden
Domenici
Shelby
The motion was agreed to.
Mr. KENNEDY. I move to reconsider the vote.
Mr. INOUYE. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
amendment no. 830
The PRESIDING OFFICER. Under the previous order, there will now be 2
minutes for debate equally divided prior to a vote on or in relation to
the Breaux amendment No. 830.
Who yields time?
Mr. BREAUX. Mr. President, I do not mind using the time allocated for
remarks, but in light of the previous vote, after the remarks could we
just vitiate the rollcall vote and have a voice vote on this amendment?
I ask unanimous consent that that be in order.
The PRESIDING OFFICER. The yeas and nays have not been ordered on the
Breaux amendment No. 830.
Mr. BREAUX. That would be my suggestion. We have the time allocated
for comments on it, and then have a voice vote on it afterward.
Mr. KENNEDY. Mr. President, I think we will have the Senator from
Minnesota speaking for 2 minutes, and then I think we will voice vote
the Breaux-Jeffords amendment.
The PRESIDING OFFICER. Who yields time?
Mr. BREAUX. I yield 2 minutes to the Senator from Minnesota.
Mr. WELLSTONE. I thank my colleague for his graciousness.
Mr. President, I understand the need to compromise, and I think we
are moving forward in a very positive way. I do want to point out for
the record that what we are now saying is that a State need only be
``substantially compliant'' with Federal protections as opposed to
``substantially equivalent to.'' My big worry is that if you look at
this amendment, we are also saying we need to give deference to the
State's interpretation of its own law and its compliance with Federal
protections.
I say two things to colleagues. No. 1, I think, in the best of all
worlds, consumers would also have a right to appeal if they believe the
State is in error.
To be fair, we want to give deference to what States are doing, as
long as we have strong consumer protections for everyone regardless of
where they live. I also believe if we are going to do that, we have to
make sure not only that the States are given their proper due but so
are consumers.
This amendment weakens the bill somewhat. I have said that to Senator
Breaux. Frankly, more than anything, it would be helpful to have an
ombudsman office or something such as that in every State, where people
would know where to make a phone call, know what their rights are.
There are ways we can strengthen this.
I do not believe this amendment takes us in a strong consumer
direction. It is a good compromise in terms of where we are. I wanted
to speak out and express my concerns.
The PRESIDING OFFICER. All time on the amendment has expired.
The question is on agreeing to amendment No. 830.
Mr. KYL. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second. The clerk will call the roll.
The assistant legislative clerk called the roll.
The result was announced--yeas 64, nays 36, as follows:
[Rollcall Vote No. 203 Leg.]
YEAS--64
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Breaux
Byrd
Cantwell
Carnahan
Carper
Chafee
Cleland
Clinton
Cochran
Conrad
Corzine
Daschle
Dayton
DeWine
Dodd
Dorgan
Edwards
Ensign
Feingold
Feinstein
Fitzgerald
Frist
Graham
Harkin
Hollings
Hutchison
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Landrieu
Leahy
Levin
Lieberman
Lincoln
Lugar
McCain
Mikulski
Miller
Murray
Nelson (FL)
Nelson (NE)
Reed
Reid
Rockefeller
Santorum
Sarbanes
Schumer
Smith (OR)
Snowe
Specter
Stabenow
Stevens
Torricelli
Warner
Wyden
NAYS--36
Allard
Allen
Bennett
Bond
Brownback
Bunning
Burns
Campbell
Collins
Craig
Crapo
Domenici
Durbin
Enzi
Gramm
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Inhofe
Kyl
Lott
McConnell
Murkowski
Nickles
Roberts
Sessions
Shelby
Smith (NH)
Thomas
Thompson
Thurmond
Voinovich
Wellstone
The amendment (No. 830) was agreed to.
Mr. REID. I move to reconsider the vote.
Mr. DORGAN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. Under the previous order, the Senator from New
Hampshire, or his designee, is recognized to offer an amendment
relative to liability on which there will be 1 hour of debate.
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. BOND. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 831
Mr. BOND. Mr. President, I send an amendment to the desk on behalf of
myself, Mr. Roberts, and Mr. Helms, and ask for its immediate
consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Missouri [Mr. Bond], for himself, Mr.
Roberts, and Mr. Helms, proposes an amendment numbered 831.
Mr. BOND. Mr. President, I ask unanimous consent that the reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To ensure that patients receive a minimum share of any
settlement or award in a cause of action under this Act)
On page 154, between lines 2 and 3, insert the following:
``(11) Minimum share of settlement of award.--
``(A) In general.--Except as provided in subparagraph (B),
a participant or beneficiary (or the estate of such
participant or beneficiary) shall receive not less than 85
percent of any award made as a result of a cause of action
brought by the participant or beneficiary (or estate) under
this subsection, after subtracting the amount of any
attorneys' fees from the total amount of such award.
``(B) Exception.--This paragraph shall not apply where the
amount awarded as a result of a cause of action brought by a
participant or beneficiary (or estate) under this subsection
is less than $100,000.
``(C) Definitions.--In this paragraph:
``(i) Attorneys' fees.--The term `attorneys' fees' means
any compensation for the
[[Page S7017]]
direct or indirect representation or other legal work
performed in connection with a cause of action brought under
this subsection. Such term shall not include reimbursements
for any expenses incurred in connection with such
representation or work.
``(ii) Award.--The term `award' means the sum of--
``(I) any monetary consideration provided to a participant
or beneficiary (or the estate of such participant or
beneficiary) by a fiduciary of a group health plan, a health
insurance issuer offering health insurance coverage in
connection with a group health plan, or an agent of the plan,
issuer, or plan sponsor in connection with a cause of action
brought under this subsection, including any monetary
consideration provided for in any--
``(aa) final court decision;
``(bb) court order;
``(cc) settlement agreement;
``(dd) arbitration procedure; or
``(ee) alternative dispute resolution procedure (including
mediation); plus
``(II) any attorney's fees awarded under subsection (g)(1)
with respect to the participant or beneficiary (or estate);
less
``(III) any reimbursement for any expenses incurred in
connection with direct or indirect representation or other
legal work performed in connection with a cause of action
under this subsection.
On page 169, between lines 12 and 13, insert the following:
``(11) Minimum share of settlement of award.--
``(A) In general.--Except as provided in subparagraph (B),
a participant or beneficiary (or the estate of such
participant or beneficiary) shall receive not less than 85
percent of any award made as a result of a cause of action
brought by the participant or beneficiary (or estate) under
this subsection, after subtracting the amount of any
attorneys' fees from the total amount of such award.
``(B) Exception.--This paragraph shall not apply where the
amount awarded as a result of a cause of action brought by a
participant or beneficiary (or estate) under this subsection
is less than $100,000.
``(C) Definitions.--In this paragraph:
``(i) Attorneys' fees.--The term `attorneys' fees' means
any compensation for the direct or indirect representation or
other legal work performed in connection with a cause of
action brought under this subsection. Such term shall not
include reimbursements for any expenses incurred in
connection with such representation or work.
``(ii) Award.--The term `award' means the sum of--
``(I) any monetary consideration provided to a participant
or beneficiary (or the estate of such participant or
beneficiary) by a fiduciary of a group health plan, a health
insurance issuer offering health insurance coverage in
connection with a group health plan, or an agent of the plan,
issuer, or plan sponsor in connection with a cause of action
brought under this subsection, including any monetary
consideration provided for in any--
``(aa) final court decision;
``(bb) court order;
``(cc) settlement agreement;
``(dd) arbitration procedure; or
``(ee) alternative dispute resolution procedure (including
mediation); less
``(II) any reimbursement for any expenses incurred in
connection with direct or indirect representation or other
legal work performed in connection with a cause of action
under this subsection.''
Mr. BOND. Mr. President, several days ago in debate in this Chamber,
I talked about how the employees of small businesses might lose their
health care coverage if the provisions of McCain-Kennedy went into
effect unamended. The junior Senator from North Carolina indicated that
I was interested only in protecting the businesses.
Unfortunately, he misconstrued my arguments because we are concerned
about patients. We hope the employees of small businesses will continue
to get the benefit of health insurance coverage by their employers.
I spoke about employees, however, because if this bill is not
significantly amended, there are not going to be patients covered by
this bill; they are going to be thrown out of health care coverage. We
are concerned about patients.
It is not only small businesses that should be worried about this
bill, but employees of small businesses should also be worried about
this bill.
This amendment I offer today provides additional protection to
patients. It provides protection to patients from trial lawyers, so we
will find out whether my colleagues are more interested in taking care
of patients or ensuring that the rights to sue by trial lawyers are
unabated.
There are a lot of words in the McCain-Kennedy bill, but there are
also some heavy-duty new lawsuits that are authorized.
The Federal claim of action really begins on page 140. It starts off:
In General.--In any case in which
(A) a person is a fiduciary of a group health plan, a
health insurance issuer offering health insurance coverage in
connection with the plan, or agent of the plan, issuer, or
plan sponsor--. . . .
Cause of action starts off, No. 1, regarding whether an item of
service is covered under the terms; No. 2, regarding whether an
individual is a participant or beneficiary; No. 3, application of cost-
sharing requirements.
Then there is the real hooker; there is the bombshell that opens this
baby up to anybody who really likes to file lawsuits. It says:
. . . otherwise fails to exercise ordinary care in the
performance of a duty under the terms and conditions of the
plan with respect to a participant or beneficiary.
There are tons of laws that are covered here--HIPAA and COBRA. This
is a wonderful opportunity for our brothers and sisters of the trial
bar to file lawsuits. That is the Federal side.
Then on page 157, it talks about State causes of action. It starts
off, as this bill does--my good friend, the Senator from Texas points
out all the bad stuff they do to providers of health insurance begins
with ``does not apply,'' ``except.''
Preemption does not apply. ``nonpreemption of certain causes.'' It
begins on page 157:
Except as provided in this subsection, nothing in this
title . . . shall be construed to supersede or otherwise
alter. . . .
It goes on page after page. There are exceptions for wrongful death,
exceptions for willful disregard of safety of others; their definition
of certain causes of action permitted. Somewhere around page 172 it
gets to the point: Certain actions are allowable.
Basically, these pages of this bill provide tremendous opportunities
to bring lawsuits. We should be talking about protecting patients, not
about protecting trial lawyers.
I believe it is appropriate now that we consider some protection
against the HMOs and the insurance companies, important as that is, and
instead make sure that we protect patients against trial lawyers.
There are a lot of stories going on about trial lawyers: they are
taking advantage of their clients; some attorneys ask for 40 to 50
percent of any settlement; refuse to negotiate with clients;
contingency fees of 33 or 40 percent are common. Some trial lawyers
flat out refuse to take a case based on an hourly fee, and they demand
they be able to take a huge percentage of the award. They also take
their out-of-pocket expenses off the top before the contingency fee is
applied, and that means in some circumstances the injured party, the
plaintiff, gets less than the plaintiff's attorney.
I think that is outrageous. As a former attorney, as a recovering
attorney, I realize lawyers perform useful services when someone is
harmed. They should be justly compensated.
However, this amendment says enough is enough. The amendment is very
simple. Any patient who gets a monetary award through all the new
lawsuits permitted in the McCain-Kennedy bill must get at least 85
percent of the award. If you are hurt, doesn't it make sense to receive
85 percent of it? I can't see that being objectionable. The amendment
effectively prohibits obscene contingency fees where large judgments
are won and the plaintiff's attorney takes 30 or 40 percent after
deducting all the expenses.
Some may say lawyers will not take the cases. When we talk about
setting a patient minimum, we need to be cautious. Just as it doesn't
help to have a right to sue your HMO when your employer drops health
care coverage, as would happen under this bill if it is not amended, it
doesn't help to have a strong patient minimum requirement if it means
no attorney will take your case. This amendment includes two strong
protections to make sure access to attorneys is not threatened.
First, before the patient minimum is applied, the amendment allows
the attorney to be reimbursed for expenses incurred during the case.
Only after expenses are deducted from the award will a patient minimum
apply. In practice, this means an attorney can never lose money on a
lawsuit that results in an award.
Second, we exempt certain lower level awards from the patient minimum
requirement. This ensures that the simpler cases that don't promise
large awards can still be pursued and
[[Page S7018]]
are not limited by the requirement that the patient gets 85 percent. We
have set $100,000, which is above the median judgment normally entered
in malpractice cases, as the limit.
I am not sure any State has taken the exact approach this amendment
establishes with a patient minimum, but 14 States have established caps
on attorney fees. The strictest cap is in New York where lawyers are
limited to 10 percent of awards over $1.25 million. That is the
equivalent of a 90-percent patient minimum. California has the most
well-known cap on attorney fees. In California, lawyers are limited to
15 percent of any award in excess of $600,000. When you add Florida and
Indiana, which also have a 15-percent cap for the highest level awards,
4 of the 14 States that established caps on awards of attorney fees
essentially require that plaintiffs get at least 85 percent of an
award.
Have these caps served as a barrier for plaintiffs? Have they denied
access to the courts? From the data we have, we conclude they
definitely have not. The State with the toughest cap, New York,
produces almost twice as many malpractice awards per capita as the
national average. The national malpractice per year per million
residents, the U.S. average, is 49.2; California is 47.2; New York is
99.5, more than twice the normal national level. From the other States
with tough caps, Florida has an average number of malpractice awards
per capita and California's rate is about the average. Indiana, with a
15-percent cap, falls below the national average.
It is hard to argue that the caps threaten access to the courts
through attorneys. The California law has existed for at least a
decade. By not changing the law, the State legislature seems to have
come to the same conclusion.
Why do we take 85 percent? When you take out expenses and exempt
lower level awards, patients should get the overwhelming amount of an
award. For a patient who has been harmed, it is perfectly reasonable to
ask that that patient get 85 percent. For States with similar
requirements, there does not seem to be a barrier to finding attorneys
and bringing a lawsuit if you believe you have been harmed. To my
knowledge, none of these States has repealed their caps, demonstrating
that at least the State legislatures think they are working. By
choosing 85 percent as the absolute minimum amount to which a patient
is entitled, this amendment simply reconciles Federal law with laws
that seem to be working in four of the largest States in this country.
We know of the horror stories. We have heard too many horror stories.
I point out an August 16, 2000, article in the Los Angeles times about
Rodney King, who was brutally beaten by Los Angeles police. He is
taking a beating from his lawyers, he says. They made more money on his
case than he has. By his reckoning, they cheated him out of more than
$1 million. In a nutshell, the man whose 1991 videotaped beating made
him an international symbol of police abuse said he thought he had a
deal with his lawyer to pay them only 25 percent of the award but they
wound up showing King's lawyers received $2.3 million while he got only
$1.9 million.
Another lawyer in California won a class action suit for police
brutality and civil rights and took a $44,000 verdict in the case, a
$19,800 contingency fee, and collected $378,000 in fees awarded by the
trial court; the client received $810.
I have other examples. But one of my favorites is the Lawyers Weekly
report that a growing number of lawyers are putting arbitration clauses
in the fine print, shielding them from being sued by another trial
lawyer if the clients say they botched a case. The lawyers themselves
who are making the money off the large judgments prefer their disputes
go to private arbitration because arbitration is faster, cheaper,
decisions are made by other lawyers rather than juries, and there is no
public record. So they have recognized that there are certain instances
in which it does not make sense to allow unfettered access to the
courts for people with a claim.
If a patient is harmed and wins an award through a lawsuit, it is
perfectly reasonable to expect the patient will receive at least 85
percent of the money. Almost 180 pages of the bill protect patients
from HMOs and insurance companies. I simply propose we add a few pages
to the bill to protect patients from trial lawyers.
I see the Senator from North Dakota is on the floor. I ask after the
other side finishes speaking that my colleague from Iowa be recognized
for 10 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from North Dakota is recognized.
Mr. DORGAN. Mr. President, this amendment is one more in a series of
amendments designed to try to derail the Patients' Bill of Rights, or
the Patient Protection Act.
There is no evidence of unfairness in the attorney fee portion of the
bill that we brought to the floor of the Senate. No one has alleged
that; no one has discussed that with us. This is the first moment in
which there is an amendment offered and we have been working on this
legislation for five years. It is interesting that the amendments are
always designed to try to take the ground out from under patients, to
diminish the opportunity for the patients to address the enormous
problems they face in confronting a managed care organization that does
not want to give the care promised the patients.
This amendment ultimately prevents injured patients from finding the
adequate legal protection they need in order to confront a managed care
organization. Congress has passed over 300 laws allowing attorney fees,
and the laws are described for every Senator to see in a Congressional
Research Service report No. 94-870-8. I commend anyone to that CRS
report which describes these laws.
I have not found any Federal law on attorney's fees that is as
restrictive as is proposed in this amendment. I repeat, there isn't any
Federal law on attorney's fees that is as restrictive as that proposed
this morning on the Patient Protection Act.
Why, when we have this issue of managed care organizations not
providing the care required for patients and we have the opportunity in
this legislation to hold the managed care organization accountable, why
is it that those who don't like this Patient Protection Act try to
carve the ground out from under patients once again with a restrictive
proposal that almost certainly would diminish the opportunity of a
patient to acquire access to an attorney to make that HMO accountable?
I find it also interesting that the concern behind this Bond
amendment is apparently excessive attorney fees. There are striking
excesses with respect to managed care organizations. Let me mention
just a couple.
What about excessive salaries, excessive stock options? I don't hear
anyone coming to the floor of the Senate complaining about $50 million
in compensation that the CEO of a managed care organization receives. I
don't hear anybody saying that is an excessive salary for an individual
to receive. How is it these CEO's get to be rewarded in amounts a large
as $50 million? By pinching on access to care that ought to be
delivered to patients.
The opponents of our patients protection bill are not here on the
floor saying that $50 million paid to the president of a managed care
organization is excessive. We just hear them come out here to say we
are worried about an excessive fee received by an attorney who is
representing a patient trying to hold an HMO accountable.
Mr. REID. Will the Senator yield for a question?
Mr. DORGAN. I will be happy to yield, of course.
Mr. REID. Is the Senator aware that William McGuire of UnitedHealth
Group earned $54.1 million last year?
Mr. DORGAN. I am aware of that.
Mr. REID. Is the Senator aware that there were unexercised stock
options worth an additional $68 million by various people with that
company, but McGuire held the most stock options, worth $358 million?
Is the Senator aware of that?
Mr. DORGAN. I am aware of published reports that say that, yes.
Mr. REID. Did I hear the Senator say he has not heard any debate on
the Senate floor this past 10 days about this excessive, exorbitant
amount of dollars to the people who run these companies and not helping
the patients? I have not heard that; has the Senator?
Mr. DORGAN. The Senator from Nevada is correct. We have not heard one
[[Page S7019]]
word from opponents to our patients protection bill about the salaries,
stock options, and the compensation paid to those who run the managed
care organizations.
Let me go back to the intention of our Patients' Bill of Rights, and
then bring it to this amendment. The reason we are here in the first
instance is because too many people in managed care organizations are
not getting the care they need. Too many people do not get the care
they need or expect from their health care plan, and they are not able
to hold the health care plan accountable for it.
This legislation says there ought to be protections in place for
patients. Patients ought to be able to know all their options for
medical treatment, not just the cheapest option. That is a patient's
right. That is what we say in this legislation.
Some people do not want that. The managed care group does not want
that. The insurance companies do not want that. We say a patient ought
to have a right to emergency room treatment when they have an
emergency. That is a right that is in this bill that we are trying to
get passed. I understand why the managed care groups don't want that. I
understand why there are some who oppose it here in the Senate because
they stand with the insurance companies and the managed care groups. We
stand with the patients saying there ought to be basic protections in
place.
This amendment is one more attempt, by our opponents, in a series of
attempts just to undermine this bill, to say no, we don't stand with
patients, we don't stand with patients in order to allow them to
exercise the rights that are in this bill. What our opponents would
like to do is chip away and carve away at the foundation of this bill
so at the end of the day the patients do not have these protections and
the patients do not have these rights.
This amendment, if it were genuine, if it were really concerned about
fees, would not just address attorney's fees. They would address the
compensation paid to those who run these organizations, who make $50
million, $10 million, or $250 million in stock options. Is that
excessive? We don't hear anyone on the floor of the Senate talking
about that.
Why? Because this is not about fees. It is about with whom do you
stand. It is about people who really do not want this legislation to
pass. They have been dragging their feet now, day after day after day,
bringing out amendments to try to defeat the Patients Protection Act.
In every case, in every circumstance, they have failed. This amendment
is the latest attempt to do that. The amendment limits attorney's fees
in circumstances where patients would try to hold a managed care
organization accountable. It limits attorney's fees, as I understand
it, to an amount below all other attorney's fees that are now written
in Federal law. We have it in a number of places in Federal law. I have
referenced the CRS report. All Senators can look at it.
This amendment proposes we limit attorney fees below all those other
areas mandated by federal law. Why? Because here we are talking about
patients. We are trying to advocate on behalf of patients. Why would
anyone want to take away the patients' rights when they are confronting
big organizations?
One of the interesting things is I hear all this talk about a patient
who would hire an attorney to make a managed care organization
accountable. I hear no discussion about the legion of attorneys who are
hired by managed care organizations to deal with patients--none. Do you
think the big insurance companies and big managed care organizations do
not have a battalion of lawyers they pay? Of course they do. Maybe you
want to limit their opportunity to use lawyers? I don't think so. I
don't propose that.
Then why would you want to limit the opportunity of patients to use
attorneys to make an HMO accountable? This just makes no sense on its
face. It is one more step, one more attempt to try to defeat this bill.
We have had it day after day after day, amendment after amendment. I
hope my colleagues will understand the last thing we ought to do is
weaken the ability of the American people, who as medical patients
expected certain care but did not get it, to be able to hire an
attorney and make that managed care organization accountable.
I would say one more thing. I would like those who offered this
amendment, who are indeed concerned about ``fees,'' to be concerned
about all fees. If they are concerned about lawyer's fees, good for
you. Then be also concerned about $50 million, and $250 million in
compensation paid to a CEO who runs a managed care organization. Be
concerned about those fees as well. You want to be consistent, bring
both amendments to the floor and let's debate both amendments.
I reserve the remainder of my time and yield the floor.
The PRESIDING OFFICER (Mrs. Carnahan). Under the previous order, the
Senator from Iowa is recognized for 10 minutes.
Mr. REID. The two leaders are on the floor. I think they are about
ready to propose a unanimous consent request. If they are not now,
would the Senator mind yielding when they are ready?
Mr. GRASSLEY. I would rather wait. Hopefully, they will do it right
now.
Mr. REID. Madam President, I suggest the absence of a quorum and I
ask unanimous consent to have the time run equally on this amendment.
The PRESIDING OFFICER. Without objection, it is so ordered. The clerk
will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. GRASSLEY. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Iowa.
Mr. GRASSLEY. Madam President, I support the Bond amendment and want
to speak specifically to that point. It also deals with the point I
have made in other speeches--that this is a very good bill. But during
the process of considering giving patients a bill of rights against
insurance companies, I think we always have to keep our eye focused
upon the fact that we want to give treatment for patients and not
tribute for lawyers.
This amendment takes a very good approach in fixing the Kennedy-
McCain bill's provisions dealing with the liability parts of the bill,
which, in my view, amount to nothing less than a trial lawyer's pot of
gold.
I have always believed that medical malpractice liability laws should
provide adequate compensation for those who are truly injured while
reducing frivolous lawsuits.
I firmly believe that it is a principle of any case, including
patients against insurance companies, that people who are harmed ought
to be made economically whole. But there has to be a balance between
frivolous lawsuits and making sure that people can be made whole if
harmed.
I think the Kennedy-McCain bill fails to strike that very carefully
needed balance and instead creates a lottery for trial lawyers, which
not only inflates the cost of health insurance for all of us but also
leads to more and more hard working Americans losing health coverage.
We shouldn't do anything in this bill that will cause people to lose
their health insurance. We already have 42 million uninsured Americans.
The best opportunity for affordable health insurance as well as
coverage is in employer-related health insurance programs.
Don't forget that we have over 50 million insured Americans under the
self-insured plans that employers offer. The case is that most of these
self-insured plans come from small business more so than large
corporations. We should not be putting these employers and their
employees in a situation where that employer, because of the threat of
suit under this bill and losing a generation and a lifetime of savings
in that family business, will not want to take a chance of losing his
investment which has been built up through a family working together
and investing everything back into the business because of a threatened
lawsuit. If that is a threat, then you can understand why the employer
might just eliminate their self-insurance and in the process throw the
employees into a situation of having no health insurance, resulting
increases in the number of 42 million people in this country who now do
not have such insurance.
Here is how I believe this will inflate costs, and thus cause
employers and
[[Page S7020]]
employees to not have health insurance coverage. Except for the $5
million cap that is in this bill on punitive damages in Federal courts,
the Kennedy-McCain bill sets absolutely no limits on what damages trial
lawyers can collect.
When it comes to patients and those harmed because of lawsuits, it
ought to be an axiom of all of our public policy that the people
harmed, not lawyers, should get most of the money from a lawsuit.
Of course, the Bond amendment then makes this more true than under
the existing practice. You have to consider that trial lawyers
generally collect 40 percent of their clients' recoveries. In fact, in
many cases, you can have the lawyer's fees plus other court costs work
out to where the person harmed is getting less than 50 percent of what
the jury might award.
Trial lawyers generally collect 40 percent of their clients'
recoveries. Incentives for bringing cases regardless of merit are then
extremely high. It is a perverse incentive to go to court and to go to
trial.
But the real jewel in the trial lawyer's crown is this bill's
provision that allows the same suits for the same claims brought by the
same trial lawyers, whether they proceed in State or Federal courts.
Even though this debate is supposed to be about patients, the
Kennedy-McCain liability scheme isn't about patients at all. It is
about trial lawyers. In fact, as you can see, I call this the ``trial
lawyers lottery ticket.'' I want to show where five out of six
opportunities for monetary awards are virtually jackpots for lawyers.
Take a closer look. I would like to just scratch the trial lawyer's
lottery ticket and see what the lawyer gets. Let's start with medical
costs.
Peel off the lottery ticket top, both for State court and Federal
courts, you will see ``bingo''--no limit on what trial lawyers can
collect in both State and Federal court. That is a jackpot that ought
to make any lawyer happy.
But why quit when you are ahead? Let's take a look at what is in
store on pain and suffering. Peel that lottery ticket, and you can see
what you get on pain and suffering. It is another jackpot--unlimited
damages in State and Federal courts.
The sky is the limit. That is where the trial lawyers are really
winning big.
Now, for the trial lawyer's favorite damages, punitive damages, they
stand to reap tens of millions of dollars.
Let's see what this ticket offers the trial lawyers. So we pull off
the punitive damages square. You can see: unlimited damages in State
court, and up to a $5 million cap in damages as far as the Federal
courts are concerned.
This is another big win. Talk about good luck: unlimited punitive
damages in State courts, and in the Federal courts almost unlimited--a
$5 million cap. If you ask me, that is hardly any limit at all.
Mrs. BOXER. Will the Senator yield for a question?
Mr. GRASSLEY. No, I will not. I only have 10 minutes. And we lost
some other time on this situation of waiting for the leader.
Mrs. BOXER. On my time. I would ask a question on my time.
Mr. GRASSLEY. Finally, if I could, let's not forget about class
action lawsuits where multimillion-dollar damages are the name of the
game. So here again we peel off the lottery ticket. You can have class
action lawsuits in State courts. You can have class action lawsuits in
Federal court.
So bingo again. Kennedy-McCain has no limits on class action
lawsuits. It even creates new grounds for bringing class action cases.
As you can see, everybody wins--every lawyer, that is--with the trial
lawyers' lottery ticket.
What we get back to then is that we are more concerned about
treatment for trial lawyers, not treatment for patients. It seems
ironic that the very individuals this bill claims to protect are the
ones who lose. Despite what its sponsors say, the bill before us
exposes employers to the constant threat of litigation, even for simple
administrative tasks and clerical errors.
What is the ultimate result? What everybody says they do not want to
ever happen. People lose coverage. When this sort of perverse incentive
is out there to threaten small business, particularly those that are
self-insured--because they do not want to put in jeopardy their
lifetime of work but want to create jobs, so they can be part of the
community, so they can have good workers and pay their workers well--
and, most importantly, workers want good fringe benefits; and the No. 1
fringe benefit they want is health insurance--it puts it in jeopardy
employer-based coverage. Then the ranks of the uninsured go up
tremendously.
I yield myself 1 more minute.
Mrs. BOXER. Reserving the right to object, I would ask for 1 minute
as well upon the conclusion of the Senator's remarks.
Mr. GRASSLEY. I object to that. There is plenty of time on that side
for the Senator to take her time. I am taking time off our side.
Madam President, how much time do I have left?
The PRESIDING OFFICER. There are 3\1/2\ minutes left for the sponsor.
Mr. GRASSLEY. I would like to take 1 minute of that 3\1/2\ minutes.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. So the ranks of the uninsured are going to go up. There
are 42 million uninsured now. Do we want to increase that? No, nobody
wants to increase that, but that is going to be the end result when
these self-insured plans are dropped. Then, of course, the employees
become the biggest losers in this lottery.
So I urge my colleagues to reject this lottery and to support the
Bond amendment, which creates much needed patient minimums and ensures
that patients, not lawyers, get fair compensation for their losses.
I reserve the remainder of the time and yield the floor.
The PRESIDING OFFICER. Who yields time?
The majority leader.
Mr. DASCHLE. Madam President, I will use my leader time and not take
any time off the agreed-upon time allocated for the amendment.
Madam President, I would just say on the amendment, there is nothing
in there that would limit the lawyers' fees for the insurance industry.
Those are unlimited. While they limit the legal fees for lawyers
defending patients, there is nothing to limit the legal fees for
lawyers defending HMOs and insurance companies. I find that quite
ironic.
Supplemental Appropriations
Madam President, I want to propound a unanimous consent request. I
will not do that at this time because I have been talking with the
distinguished Republican leader. But I want to propound a request, as I
had indicated I would, to lock in the debate for the supplemental.
There are a number of amendments that have been suggested. I know the
unanimous consent agreement has been cleared on our side now for I
think 3 days. We have been unable to get consent from our Republican
colleagues for the last 3 days.
Now I am told they may object to even going to the supplemental, at
least initially. If that happens, of course, I will be forced to file a
motion to proceed. But I think it is important.
There was a story in the Washington Times dated June 26, and I think
for the Record it would be helpful if I just read it because I think it
does capture the urgency with which we address the supplemental. So I
will take just a moment to read it:
The U.S. military would be forced to curtail or cancel
training exercises, facility repairs and equipment
maintenance if Senate Majority Leader Tom Daschle holds up a
pending emergency budget until late July, according to
Pentagon projections.
The Pentagon provided a list of hardships at the request of
Senate Minority Leader Trent Lott. He used the list yesterday
to criticize Mr. Daschle for threatening to delay action on a
$6.5 billion supplemental budget bill until the Senate
completes work on a contentious patients' bill of rights.
That delay would push approval of the fiscal 2001 defense
legislation until late July or beyond.
``If we don't get this bill completed by . . . mid-July,
we're going to have canceling of base-property maintenance,
[and] holding some of our deployed units where they are
overseas until the end of the fiscal year,'' said Mr. Lott.
``So we're really pushing the envelope when it comes to the
needs of our military personnel in health as well as in
steaming hours.''
Picking his first confrontation with Democrats since they
took control of the Senate, Mr. Lott also accused Mr. Daschle
of sacrificing the nation's urgent energy needs in order to
push through the health
care bill. . . .
[[Page S7021]]
Nearly all the budget bill's funding goes for replenishing
military training accounts depleted by peacekeeping missions
in the Balkans and elsewhere. Without emergency funding soon,
the military will be forced to:
Curtail all nonessential operations such as pilot training,
steaming hours, fleet exercises, and air combat training
maneuvers. The Air Force and Navy would ground some pilots
and aircraft.
Perhaps hold deployed units overseas until the new fiscal
year begins October 1.
Cancel training for units getting ready to deploy for
peacekeeping duties.
Stop or slow down maintenance of equipment at large
regional depots.
``This will lead to the loss of jobs for many Americans,''
Mr. Lott's office said.
The Joint Chiefs of Staff originally wanted about $9
billion in [requests].
Madam President, I ask unanimous consent that the entire article be
printed in the Record.
There being no objection, the article was ordered to be printed in
the Record, as follows:
[From the Washington Times, June 26, 2001]
Daschle Delays; Military Waits
Pentagon needs emergency funds
(By Rowan Scarborough and Dave Boyer)
The U.S. military would be forced to curtail or cancel
training exercises, facility repairs and equipment
maintenance if Senate Majority Leader Tom Daschle holds up a
pending emergency budget until late July, according to
Pentagon projections.
The Pentagon provided a list of hardships at the request of
Senate Minority Leader Trent Lott. He used the list yesterday
to criticize Mr. Daschle for threatening to delay action on a
$6.5 billion supplemental budget bill until the Senate
completes work on a contentious patients' bill of rights.
That delay would push approval of the fiscal 2001 defense
legislation until late July or beyond.
``If we don't get this bill completed by . . . mid-July,
we're going to have canceling of base-property maintenance,
[and] holding some of our deployed units where they are
overseas until the end of the fiscal year [Sept. 30],'' said
Mr. Lott, ``So we're really pushing the envelope when it
comes to the needs of our military personnel in health as
well as in steaming hours.''
Picking his first confrontation with Democrats since they
took control of the Senate, Mr. Lott also accused Mr. Daschle
of sacrificing the nation's urgent energy needs in order to
push through the health care bill.
Neglecting energy and defense has ``very dangerous
implications for the security and prosperity of the American
people,'' the Mississippi Republican said.
Nearly all the budget bill's funding goes for replenishing
military training accounts depleted by peacekeeping missions
in the Balkans and elsewhere. Without emergency funding soon,
the military would be forced to:
Curtail all nonessential operations such as pilot training,
steaming hours, fleet exercises and air combat training
maneuvers. The Air Force and Navy would ground some pilots
and aircraft.
Perhaps hold deployed units overseas until the new fiscal
year begins Oct. 1.
Cancel training for units getting ready to deploy for
peacekeeping duties.
Stop or slow down maintenance of equipment at large
regional depots.
``This will lead to the loss of jobs for many Americans,''
Mr. Lott's office said.
The Joint Chiefs of Staff originally wanted about $9
billion in emergency funding in January. But incoming Defense
Secretary Donald H. Rumsfeld nixed the request. The White
House scrubbed the numbers and presented the $6.5 billion
proposal. The House already has approved that number, as did
the Senate Appropriations Committee.
Mr. Lott said he suggested the Senate OK the emergency
defense bill by unanimous consent, since both chambers
approved Mr. Bush's list of spending requests without adding
home-state projects, as was the practice with supplemental
bills the past few years. But Mr. Lott said Mr. Daschle,
South Dakota Democrat, rejected that idea.
Mr. Dashle, despite earlier indications that he would allow
a speedy vote on the spending bill, told colleagues Friday
that he would not bring it to the floor until the Senate
completes work on a patients' bill of rights.
Republicans have been slowing down final passage of that
legislation, raising concerns about employer liability and
increasing premiums. Their tactics could derail Mr. Daschle's
stated goal of finishing the bill by Friday.
The fate of the health care bill is particularly sensitive
for Mr. Daschle because it is his first test of his ability
to move legislation since becoming majority leader. Senate
committees remain unable to take up new legislation due to
prolonged negotiations between the parties on how to
reorganize and whether to guarantee votes on Supreme Court
nominees.
Daschle spokeswoman Molly Rowley said Mr. Daschle wants to
complete the patients' bill of rights, the spending bill and
the reorganization before the Senate adjourns for the Fourth
of July recess.
``We think all three of these things can be done this week
before we leave,'' she said.
Sen. Robert C. Byrd, West Virginia Democrat and chairman of
the Appropriations Committee that approved the spending bill
last week, said yesterday he was ``not in a position to
comment'' on Mr. Daschle's intentions.
``The leader has to balance a lot of things,'' Mr. Byrd
said, ``I'm sure he'll get to the [spending bill] when he
thinks he can.''
Mr. Lott said Mr. Daschle rejected his suggestion to
approve the spending bill by today, making it unlikely that a
conference bill could be worked out before the House adjourns
Friday for a weeklong Independence Day vacation.
``We need to get this defense and other issues supplemental
done before we leave, because it is critical for nonessential
operations like pilot training, steaming hours, fleet
exercises,'' Mr. Lott said, ``I'm very worried that by not
acting this week on the defense supplemental appropriations
bill we're asking for more delay and even more problems with
our defense needs.''
Mr. Daschle has been threatening to cancel the Senate's
vacation to compel Republicans to finish work on the health
care bill.
Republicans and Democrats have been sniping politely about
legislative priorities ever since the power shift in the
Senate. Republican lawmakers have been pressing for passage
of President Bush's energy plan, but Mr. Daschle has
expressed more interest in the health-care legislation, as
well as increasing the minimum wage and passing a hatecrimes
bill.
Mr. Lott said yesterday that Democratic leaders do not
intend to address the energy issue by the end of July.
Congress is in recess for the entire month of August,
meaning the Senate would not take up the administration's
energy plan unitl September at the earliest.
House and Senate Republicans met with White House
representatives late yesterday and agreed to call attention
to Democrats' inaction on an energy plan over the recess next
week. The meeting took place in the office of House Majority
Whip Tom DeLay, Texas Republican.
Mr. DASCHLE. Madam President, Senator Stevens and Senator Byrd came
to me a couple of weeks ago and asked for a special exemption from the
understanding we have been working under here in the Senate that no
official action can take place on any legislation until we have broken
the impasse on the organizing resolution and assigned each committee
its full complement of members. I, of course, agreed, in the interest
of urgency, to allow the Appropriations Committee to work its will and
to finish this supplemental, which is what it did. I applaud both of
them for taking the action they did.
The House, of course, has now acted. Now it is up to us. A couple of
days ago the President called me and said: Above all, I hope that you
will pass the supplemental before you leave. I gave the President my
personal assurance that we would pass the supplemental here in the
Senate before we leave.
Now I am told that there are some who would prefer to take vacation
rather than finish the work. Madam President, we can't do that. We
can't take vacation until the work is done. We can't take vacation
until the Patient Protection Act is done. We can't take vacation until
the supplemental is done. We can't take vacation until the organizing
resolution is done. It is as simple as that.
I will propound a unanimous consent request at a later time because I
know Senator Stevens wanted to come to the floor. We have been working
through this. As I say, I thought we had an agreement. In fact, I was
told we were able to propound the request an hour or so ago.
Unfortunately, that report apparently was in error.
I am going to do what we have to do, in part because as Senator Lott
has said so clearly--and forcefully--the alternative to not acting is
to risk what the Washington Times has reported, to wreak havoc with the
military, to keep them from getting their job done, to actually
endanger our military personnel in some ways. We are not going to be
accused of endangering the military. We have to do what the President,
the Commander in Chief, requested. That is what we are doing here.
We will offer the unanimous consent request to proceed. If that
fails, I will file a cloture motion on the motion to proceed, and when
it ripens we will have the vote. But we will have the vote.
Mr. DORGAN. Will the Senator from South Dakota yield?
Mr. DASCHLE. I am happy to yield.
Mr. DORGAN. I ask the majority leader, isn't it the case that the
three issues that are outstanding--finishing the Patients Protection
Act, passing the supplemental, and the organizing resolution--could be
done rather quickly? We have, after all, been debating
[[Page S7022]]
the Patients Protection Act for some long while. We have gone through
most of the major amendments. We started debating this issue 5 years
ago. It has now been on the floor for some while. We have done most of
the major amendments. If we could complete the Patient's Bill of Rights
later today we could move on to other business. I am a member of the
Appropriations Committee. When we passed the supplemental bill, it was
passed almost with no amendments in the House of Representatives; that
bill is very important--we did it with very little debate in the full
Appropriations Committee. The organizing resolution can be completed, I
understand, with perhaps one vote.
It is the case, isn't it, that all of this could be done perhaps this
evening if we had cooperation? Is that not the case?
Mr. DASCHLE. The Senator is correct. As I understand it, this bill
was not subject to amendment in the House. It passed overwhelmingly in
a very short period of time. I don't know why we would have to elongate
or unnecessarily prolong the debate on this side.
Whatever length of time may be required to consider this bill, we
will do that. All I am saying is that we have to do it before we leave.
I see both the ranking member of the Appropriations Committee and the
distinguished Republican leader are on the floor.
I ask unanimous consent that the majority leader, following
consultation with the Republican leader, may proceed to the
consideration of Calendar No. 76, S. 1077, the supplemental
appropriations bill and that the bill be considered under the following
limitations: That only first-degree amendments in order other than a
managers' amendment be the following list which is at the desk--I won't
read the list at this point--that any listed first-degree amendment be
subject to relevant second-degree amendments, that any time limitation
for debate on a first-degree amendment be specified in this agreement;
then any second-degree amendment to that amendment be accorded the same
time limit; that upon disposition of the above amendments, the bill be
advanced to third reading; the Senate then proceed to the consideration
of Calendar No. 77, H.R. 2216; that all after the enacting clause be
stricken and the text of S. 1077, as amended, be inserted in lieu
thereof; that the bill be advanced to third reading, and the Senate
then vote on passage of the bill with no intervening action or debate.
Finally, I ask unanimous consent that S. 1077 be returned to the
calendar.
The PRESIDING OFFICER. Is there objection?
Mr. LOTT. Reserving the right to object, Madam President.
The PRESIDING OFFICER. The Senator from Mississippi.
Mr. LOTT. First of all, I think it is important that we dispose of
this issue as quickly as possible so that we can get back to the debate
on the amendments that are pending. There are still a number of very
important amendments that Senators wish to offer with regard to the
Patients' Bill of Rights. I know the Senator from Nevada has been
working on this issue and knows that. These are substantive and
important amendments.
When it was suggested by the Senator from North Dakota that most of
the major amendments have already been offered and considered, I don't
believe that is accurate. Of course, I guess how important they are is
in the eye of the beholder or the offeror of the amendment. I think it
is important that we address this issue and get back to having debate
and hopefully votes this afternoon and into the night, however long it
takes to deal with important issues that still need to be addressed.
We still believe very strongly that this bill has not been corrected
in terms of its major problems in the likelihood of loss of coverage
and increased premiums, and when, how, and where lawsuits are going to
be filed instead of making sure patients get the health care coverage
they need. We can resolve this relatively quickly and then go back to
that.
With regard to the organizational resolution, we continue to exchange
ideas. I think it is possible that it could be handled with only one
vote, or it may take three, but we are hoping we can get that worked
out. I know there are a couple of letters that are being reviewed now
on both sides that might make it unnecessary to have three recorded
votes. I think we are going to have two letters dealing with the
question of public disclosure of the blue slips which can be used by
Senators to block a judicial nomination. There is a strong belief on
both sides that those should be made public and not just handled
secretly, as has sometimes been the case but not always the case, in
the past.
Also, we are looking to see if we can get some agreement in writing
that we would continue to do what the precedents are with regard to
Supreme Court nominees. I believe going back all the way to 1881, the
whole Senate has voted on Supreme Court nominees even when the
committee has voted on a tie or negatively. But we are working on that,
and I would like us to get that resolved in the next 24 hours myself.
With regard to this unanimous consent request, I had really hoped we
could do it Monday. I thought it could have been, I believed it could
have been done Monday in a very limited period of time without this
rash of amendments. I think we could have gotten an agreement that
there be no amendments. That didn't happen for whatever reason.
Senator Byrd and Senator Stevens had indicated they would like to
have done it even last night so that we could have done it quicker and
so we could perhaps have gotten into a conference with the House. The
problem now is that if we don't take this up immediately, right now, we
are not going to be able to get a conference agreement. There is no
chance of a conference agreement until after the Fourth of July recess,
even if the Senate should act sometime tomorrow or Saturday. I really
had hoped we could do it earlier so we could get into conference, get
it completed, and send it to the President. That now appears not to be
likely, unless the Senate wants to turn right now to consider this very
important supplemental appropriations resolution. I would like that to
be considered.
Failing that, I think we are not going to object to agreeing to this
unanimous consent request, but there are 35 amendments now--34 or 35.
Some of them clearly are important to Senators involved on both sides
of the aisle. Senator Bond has a couple of them. Senator Boxer has one
I think she probably feels very strongly about. Senators Cleland,
Roberts, and others have amendments with regard to the B-1 bomber.
Senator Conrad, I haven't talked to him, but he has one on Turtle
Mountain Indians. As you look down the list, some of them are not just
relevant, some of them are amendments about which Senators are going to
care greatly. And it looks to me as if you are talking about an
extended period of time at this point to complete action on this
legislation. I regret that.
If we could get an agreement to go to it now--I see Senator McCain; I
know he has an amendment he feels very strongly about--if we could do
that now, maybe we could get some time agreements and move to
completion.
I see the distinguished Senator from Alaska, the senior member of the
Appropriations Committee on the Republican side, who wants to speak. I
am glad to yield under my reservation, Madam President.
Mr. STEVENS. Madam President, I am here to urge that the Senate take
the bill up now. I think if we took it up now, working with the people
who have those amendments, we ought to be able to finish it today. I
think if we finish today, the House will stay, and we could complete
this before the recess. If we wait until Monday after the House has
already gone home, it will be very difficult to get them back, even
from the point of view of getting travel arrangements for the House to
come back on Monday or Tuesday.
I cannot speak for the chairman, but I can say that we both have
sought for the last 2 weeks to try to have this bill become law in time
to meet the needs of the armed services. Very clearly, they have been
demonstrated now. There is no question that if we do not get this bill
passed, there is going to be an impact on the armed services. I will
commit myself to both leaders to work with all Members to see what we
can work out, to constrict the time and finish it tonight, if we can
take it up now.
[[Page S7023]]
That might put pressure on the other bill, too.
I urge that the organization resolution get resolved. I personally
say to both leaders, my Kenai Peninsula is on fire. That is where I
want to go fishing next week, too. So there is a disaster and the
urgent call of the pink salmon to respond to.
I pledge myself to work even harder than Senator Reid does to find
some way to constrict this time so we can vote on this and get it to
the House and bring it back so we can all vote on the bill before we go
home. I plead with the leaders to let us have the reins for a few hours
and see what we can do. I think we can finish this bill tonight.
Mr. LOTT. Madam President, under my reservation, I will propound as
an alternative unanimous consent agreement the same proposal the
majority leader has made, except that in the first paragraph under
consultation with the Republican leader, I would add ``may proceed
immediately to the consideration of Calendar No. 76, S. 1077.'' I make
that in the form of a unanimous consent request.
The PRESIDING OFFICER. Is there objection?
Mr. DASCHLE. Madam President, reserving the right to object, I have
offered this to our Republican colleagues now for several days. I have
said, give me a definitive list that will allow us to finish our work
on the Patients' Bill of Rights. We will proceed immediately to the
supplemental, finish it, and then return to the Patients' Bill of
Rights with the understanding that we will complete work on that as
well.
Unfortunately, our Republican colleagues have been unable to do that.
My offer still stands. Give me a definitive list that we can complete
before we leave, and I will go immediately to the supplemental. I have
offered it privately to Senator Lott. I have offered it to our other
colleagues. That offer still stands. Until we get that assurance, I
will object.
Mr. LOTT. Under my reservation, I have one inquiry. I thought we had
a definitive list. It may be big, but I thought we had a list of
amendments still pending out there.
Mr. DASCHLE. I have not seen it.
Mr. LOTT. We will work on that.
The PRESIDING OFFICER. Is there objection to the original request?
Mr. REID. While the two leaders are here, if I may chime in, first of
all, Senator Daschle has read the importance of this supplemental. If
it is as important as has been read into the Record, it would seem to
me the House should hang around a little while longer.
I say to the Republican leader and our majority leader, I haven't
seen a list of amendments. Everybody knows we have just a few important
amendments to finish the Patients' Bill of Rights. If we are given a
list of amendments that is large in number, I don't think that is in
keeping with what I think should be the general agreement to finish the
legislation. If we are given a list of 10, 20, 30, 50 amendments, I
suggest to the majority leader, that is not part of the deal. We have a
few amendments left to go.
Mr. LOTT. If Senator Daschle will yield to respond briefly, I thought
you had been given a list. I am going to make sure you have it and then
we can evaluate that and work on it.
Mr. DASCHLE. Madam President, I offer a unanimous consent request
that the Senate complete its work on the Patient Protection Act by 6
o'clock tonight, and we have final passage by 6 o'clock tonight. If we
can agree to that right now, I will move to the supplemental at 12
o'clock this afternoon.
Mr. LOTT. Madam President, I object to that. Obviously, I have to
consult with the managers of the legislation on our side about the
amendment list, which is very long, and I have it now, and about what
is possible in terms of completing it. I don't think it is possible at
all to set an arbitrary time, in view of the very serious amendments
that are pending on the Patients' Bill of Rights. So I object to that
request.
The PRESIDING OFFICER. The original request of the majority leader is
still pending. Is there objection?
Mr. STEVENS. Reserving the right to object, Madam President, I am
constrained to say with due respect to the leader and the majority
leader and majority whip, I find it very difficult to deal with the
concept putting ahead of this supplemental the completion of two very
controversial items. We know the House is going home, and having spent
8 years here on the floor as leader, I can tell you I have never seen
the time when any Senate could dominate the House. We have a bipartisan
agreement to go home. They have told me they will stay if we get this
bill done and over there today.
I do believe that the interest of national defense should come ahead
of concepts that we are dealing with here in terms of whether it is the
Patients' Bill of Rights or organization of the Senate. We know people
will be told they cannot train in July and August unless we get this
bill done this week. It is not something on which we have been
dilatory. We have been trying for a long time.
I have great respect for the leader and the assistant leader, but I
cannot stay silent and have a concept that because the leader has
stated these things must be done, they must be done before the
supplemental is brought up. That is unacceptable to this Senator. I
think it is unacceptable to the Senate. I hope it is.
I say with great humility now that the needs of our people in the
armed services must come ahead of concepts of scheduling or
prerogatives here on the floor. These needs are very real. We have
twice held hearings now where the chiefs have told us what is going to
happen if this bill is not signed by the President before the Fourth of
July.
Even the concept of taking up and passing it now and letting it wait
for the House to come back is unacceptable to me because, again, we all
travel and we know you can't let the House go home and expect they will
come back here on July 3 just before the Fourth of July. You can't
travel in this country that easy during that period.
So I plead with the Senate, let us proceed with this bill. We should
put aside all other desires. There is no timeframe on the Patients'
Bill of Rights that matters to this country. It is a bill that must be
passed, and I am going to vote for it. But it does not have the urgency
of this supplemental.
This supplemental deals with more than that. It now deals with
matters that are emergencies coming out of the disasters that have
happened in this country this spring.
I hope the leader will accept my comment that I mean no offense to
him. I have served under several leaders, and I admire both Senator
Daschle and Senator Reid for what they are doing. But it is
unacceptable to me to say no in terms of a request that has come on a
bipartisan basis to put this bill aside for a few hours and pass a bill
as important to the military of this country as is this supplemental.
The PRESIDING OFFICER. The majority leader is recognized.
Mr. DASCHLE. Madam President, I remind my dear friend and colleague,
the Senator from Alaska, in 1999, we took up the Patients' Bill of
Rights under a unanimous consent request and passed it in 4 days, with
17 amendments. Now we are told we can't do it in 2 weeks. While we may
differ on whether the supplemental is more or less important than the
Patients' Bill of Rights, I would hope we could all agree that
completing action before we leave on a supplemental dealing with the
safety of our troops is a top priority. The Pentagon places an
extraordinary priority on this legislation--so much so that the
Commander in Chief called me to ask that it be done this week.
Certainly we can agree it is more important than fishing or any other
kinds of vacation we could be taking next week. While there may be some
differences on other issues, I would think there would be unanimity
that getting the supplemental done is more important than taking a
vacation.
So that is what the issue is. We are not going to take a vacation
until we have completed action on the supplemental. We are not going to
leave until this is done. This is something that not only has been
requested by the Pentagon but by the Commander in Chief as well; I
would hope if the President makes additional calls, he will call the
House and say: Don't leave until we get this done. You have heard the
Pentagon. Don't leave until this is done. Vacations are secondary to
work. We have to get it done.
I yield the floor.
The PRESIDING OFFICER. Has an objection been heard?
Mr. STEVENS. Reserving the right to object, that is a little bit of a
cheap
[[Page S7024]]
shot. I am not talking about a vacation. I am willing to stay here as
long as any other Senator. I am talking about the realities of the
House. Leader, I am not going to forget that. That was a cheap shot,
and for the time being, I object to the request.
The PRESIDING OFFICER. Objection is heard.
Amendment No. 831
The PRESIDING OFFICER. Who yields time on the amendment? The Senator
from Missouri.
Mr. BOND. Madam President, I reserve the remainder of my time. I
believe there is more time on the other side. I want to give the other
side their remaining 19 minutes, but I believe we only have 2 minutes.
I reserve those 2 minutes for the end of the debate, and I do have a
couple of minutes after they have had an opportunity to present their
case.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Madam President, with the consent of Senator Kennedy, I
yield myself such time as I may consume, recognizing the Senator from
North Dakota wishes to be recognized. I will not take long.
Many years ago, before I came to Congress, I practiced law. I was a
lawyer. I was a trial lawyer. I am very proud of that fact.
With that brief background, I received a call last night from a
lifetime friend. I have not talked with him in a while, but we went to
high school together. We played ball together. We were inseparable
friends. He did not have my phone number. I had moved. He called my
office and said it was urgent.
He called because his son was in trouble. Why? Because they had hired
a cheap lawyer. His son was in trouble, and they hired a cheap lawyer.
The young man is now in jail.
My friend from Missouri is a lawyer, a fine lawyer, I am sure. I
refer to the pending amendment as the ``cheap lawyers amendment.'' You
cannot find decent lawyers to take a case for 15 percent. Almost 50
percent of the cases in our Federal court system take 4 years to
litigate, with files stacked as high as my desk. People work to prepare
those papers representing people who are injured, hurt, and need an
attorney. That is why we have contingent fees. It is hard to find
lawyers to take even a good contingent fee case because they have to
consume so much time and effort.
Of course, there are some people who are paid too much, I am sure,
because they put in the time and it is a contingent fee. I sold my home
in Virginia within the past year. The woman who sold my home was a good
realtor. I tried to find the best I could. I signed a contract with
her. She made a ton of money on my home. She worked about a week. I
don't know, but she probably took a lot of time off during that week.
My home sold in a week. She made a lot of money for the few hours she
spent on my home, but that is the way America works.
If we have people who need help, we need to have the full panoply of
lawyers available so they can get a good lawyer.
My friend from Iowa had a chart and peeled off medical bills: These
people are going to get their medical bills. Well, isn't that too bad.
If someone does something wrong, should they not pay your medical
bills? Do you need to have a lotto, as he says, a lottery to get your
medical bills paid? I hope not.
We have heard mentioned several times, if we are concerned about
attorney's fees, how much are these attorneys for these big HMOs making
to prevent people from getting medical care? Let's take a look at that.
We talk about these cases in the abstract, but the fact is that
attorneys, whom everyone wants to hate, are necessary; they help. I am
proud of the fact I was a lawyer. I have four sons. Every one of them
is a lawyer, and I am proud of the fact that they followed in the
footsteps of their father. My daughter is a schoolteacher. She married
a lawyer. I am very happy for that.
We do not have to be shameful, concerned, or embarrassed about some
lawyers getting paid a contingent fee. That is how people who are
injured and hurt are allowed to take those cases.
Fifteen percent will discourage representation by good lawyers. My
friends on the other side of the aisle talk about the sanctity of
contracts. Why do we want to step in and tell States what lawyers can
be paid based on a contract they get?
This amendment is only to protect HMOs, as all the other amendments
from the other side, to try to derail this legislation. This amendment
is a frivolous amendment. It has nothing to do with the merits of this
legislation.
Mr. DORGAN. Mr. President, will the Senator from Nevada yield?
Mr. REID. I will be happy to yield to my friend from North Dakota.
Mr. DORGAN. The Senator from Nevada and I had a brief discussion
previously about this issue. He is correct that this amendment attempts
to limit the ability of patients to hold HMOs accountable.
The discussion by those on the other side who have offered this
amendment talks about lawyers in a pejorative way on behalf of
patients. Does the Senator know of any attempts by those who have
offered this amendment to limit HMOs, managed care organizations, from
using lawyers, or is this just saying we will limit patients from using
an attorney to go after a managed care organization that did not
provide the care they promised, but we will not limit managed care
organizations from using attorneys to do whatever they want to do?
Mr. REID. Madam President, I answer as follows: Of course, there is
nothing in the way of amendment to limit what attorneys for these
wealthy, big, sometimes brutal HMOs are paid. But remember, I say to my
friend, that people who are seeking help from a lawyer are looking for
a lawyer who will do it not on an hourly basis but who will do it on
what is called a contingent-fee basis. They have no money to hire one
of the big HMO lawyers, so they look around and find somebody who will
take their case on a contingent-fee basis.
I say to my friend, a 15-percent contingent fee will not get a good
lawyer. It will be like my dear friend who called me last night. In
effect, the client will not wind up in jail but will end up with no
compensation.
Mr. DORGAN. I ask my friend from Nevada to yield further for a
question.
Mr. REID. I will be happy to yield to my friend for a question.
Mr. DORGAN. Is it not the case that this entire process, this debate
on the Patient Protection Act, is an attempt to balance things a bit;
that patients do not have the ability to confront a big managed care
organization?
The Senator from Nevada knows the story we have talked about coming
from his State: Christopher Roe, a circumstance where a 16-year-old boy
was fighting cancer at the same time he was fighting his managed care
organization for treatment and care he needed. That is not a fair
fight, asking a young boy to fight an insurance company and fight for
his life at the same time. That young boy lost his life on his 16th
birthday.
The question is, Do those patients and their families have the right
to get an attorney to hold the managed care organization accountable to
deliver the care they promised? Do they have that right?
We have an amendment pending that says: No, we are going to limit the
rights of the patients, we are going to limit the rights of citizens,
but we are not interested in limiting the rights of the managed care
organizations because we want to stand for them rather than standing
for patients, and that is the issue.
Mr. REID. In answer to my friend, I have a CRS report that talks
about awards of attorney's fees by Federal courts and Federal agencies.
It is big. I know of no other Federal attorney fee statute that affects
a State system.
This amendment is wrong. I appreciate very much my friend from North
Dakota, who is not a lawyer, standing up and speaking for the injured
people and the potentially injured people of America.
Mr. KENNEDY. Madam President, I ask for 3 minutes.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Madam President, I rise in opposition to the amendment
that has been offered. We have seen the efforts of the HMOs to
undermine this legislation in different ways over the last few years.
We were unable to bring this matter up for consideration by the Senate
and get full consideration of the bill when we wanted to. This happened
[[Page S7025]]
even during the last term when a majority of the Members would have
supported a good, tough, effective Patients' Bill of Rights. We have
seen over the past days constant efforts to undermine this legislation.
We see another effort to try to appeal to the Members about the
excessiveness of decisions made in the courts to reimburse individuals
in terms of wrongdoing by other industries.
The fact is, as we are reminded by our colleagues, we have spent 3
days talking about the sanctity of the contract between the HMO and the
patient. We have had amendment after amendment saying, look, this is
enormously important. We do not want to permit any changes in that
contract. We want to stick with that contract. We want to hold to that
contract. Now with the Senator's amendment we are saying basically that
we are going to ride roughshod over contracts that are decided,
permitted, and authorized by law in the States between attorneys and
their clients.
I have listened a great deal to talk about how Washington doesn't
know best; how we don't want just one solution to solve all of our
problems. We had that debate early this morning and last night. We now
have one solution: to override States in terms of what decision the
States make for compensation going to court.
The fact is, how many working families, and how many middle-income
families are going to be able to go out and hire lawyers? For the time
it will take to get some kind of recovery after they have been wronged,
how many are going to be able to do that and follow this through the
State courts? How many will be able to do it after they have been hurt,
after their child has been disabled, after a wife or husband has been
killed? How many? Very few. The fact is, they are not going to be able
to be compensated unless they are able to convince a jury they are
right, that there has been wrongdoing.
Does that bother people in the Senate? Evidently it does. There are
only a very few Americans who can afford the high-priced lawyers to go
into court and pursue this. This amendment undermines it for the rest
of the people. It undermines it for working families, undermines it for
middle-income families. That is the record. That is what has been done.
It doesn't surprise me. We have seen the powerful special interests
overturn ergonomic regulations which were there to protect working
families. Then we have the undermining of funding for the enforcement
for protecting our air. There has been undermining of funding for
protecting OSHA, effectively cutting back on the protection of workers.
We are undermining regulations to protect workers, undermining the
enforcement mechanism to protect consumers, and now they want to take
this right away from individuals who will be harmed because of HMOs.
It is a common pattern. It is all targeted by the major financial
special interests versus the consumer. That is what this is about. They
don't like to hear about it. They keep offering amendments that are
couched in other language about all the people that will be unemployed.
However, it is the power of the HMOs against the little guy.
This amendment says the little guy will not be able to defend their
interests in court. That is what this is about.
Make no mistake. They can't deal with us in giving protections to the
consumers. They are going to take them away by denying them the rights
to enforce them. That is what this is about.
Expect that after we have this percentage, it will go a little
higher, and then try to go even higher. Every time it does, it is an
insult to middle-income and working families and individuals who will
be harmed. Make no mistake, it is another assault on the fundamental
protections of this act. That is what this amendment is about. I hope
it will be defeated.
The PRESIDING OFFICER. Who yields time?
Mr. BOND. How much time remains?
The PRESIDING OFFICER. The Senator from Missouri has 3 minutes.
Mr. BOND. I want to respond. Does the other side desire more time?
Mr. KENNEDY. I don't think so. It depends on what the Senator says.
We don't intend to at this time.
Mr. BOND. How much time remains on the other side?
The PRESIDING OFFICER. Five and a half minutes.
Mr. BOND. I yield myself the remaining time. I think some of the
things that have been said deserve to be answered.
Our efforts are not to undermine a bill but to deal with very bad
provisions in the bill which skipped the committee, did not go through
committee markup. We are marking up a bill now which we should have
marked up in committee. It has come to the floor and we are a committee
of the whole.
There are things that are in there that are very bad for patients,
employees, particularly of small business. Why are we inserting the
Federal Government into restricting attorney's fees? The States in this
Nation have limited attorney's fees because they recognize the abuses
of the trial lawyers. Under this bill, we are inserting the Federal
Government into areas that the States have already acted on, and they
have acted on them and provided limits on the amount that trial
attorneys can take so the injured party can recover.
We have heard about the powers of special interests. Let me state who
the special interests are that have a big stake in this, the four top
trial lawyer PACs: Trial Lawyers Association of America; Williams &
Bailey; Ness, Motley; and Angelos Law Offices, have given over $8
million, more money than all the HMOs together have given in politics.
If you want to talk about special interests, there are special
interests on the other side, as well.
We believe the measures we brought forth are good for employees, for
people who not only want to be able to appeal the decision of an HMO,
but they want to have health coverage.
Somebody suggests there have not been problems with fee structures.
They are not in this bill. We know from the State experiences that
there can be a tremendous amount of wasted money.
I urge my colleagues to support this measure.
I yield to my distinguished colleague from Tennessee.
Mr. FRIST. Madam President, I rise in support of the Bond amendment.
This is a Patients' Bill of Rights and we should focus on the patient.
We are talking about a patient who has been harmed or injured, gone
through an appeals process and through the court. If there is a
multimillion-dollar suit, it should be to help the patient, not to fund
the pockets of the trial lawyers.
This is a Patients' Bill of Rights, not a trial lawyer bill of goods.
Mr. KENNEDY. Madam President, every time you pay the HMO lawyers,
that comes out of patient protections. So the point is raised was, if
you put a limitation on the trial lawyers because they are going to get
the benefits, why not put a limitation on the attorneys for the HMOs so
it doesn't come out of patient protections?
But they won't do it. They won't do it.
I yield the remainder of our time.
Mr. REID. What is the matter before the Senate now?
The PRESIDING OFFICER. Amendment No. 831.
Mr. REID. All time is yielded back?
The PRESIDING OFFICER. Time has been yielded back.
Mr. REID. I move to table the amendment, and I ask for the yeas and
nays.
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 legislative clerk called the roll.
The result was announced--yeas 62, nays 38, as follows:
[Rollcall Vote No. 204 Leg.]
YEAS--62
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Breaux
Byrd
Cantwell
Carnahan
Carper
Chafee
Cleland
Clinton
Cochran
Collins
Conrad
Corzine
Crapo
Daschle
Dayton
DeWine
Dodd
Domenici
Dorgan
Durbin
Edwards
Feingold
Feinstein
Graham
Harkin
Hollings
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Landrieu
Leahy
Levin
Lieberman
Lincoln
McCain
Mikulski
Miller
Murray
Nelson (FL)
[[Page S7026]]
Nelson (NE)
Reed
Reid
Rockefeller
Sarbanes
Schumer
Shelby
Specter
Stabenow
Thompson
Torricelli
Warner
Wellstone
Wyden
NAYS--38
Allard
Allen
Bennett
Bond
Brownback
Bunning
Burns
Campbell
Craig
Ensign
Enzi
Fitzgerald
Frist
Gramm
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Hutchison
Inhofe
Kyl
Lott
Lugar
McConnell
Murkowski
Nickles
Roberts
Santorum
Sessions
Smith (NH)
Smith (OR)
Snowe
Stevens
Thomas
Thurmond
Voinovich
The motion was agreed to.
Mr. KENNEDY. I move to reconsider the vote and I move to lay that
motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. 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. WARNER. Madam President, I ask unanimous consent the order for
the quorum call be rescinded.
Mr. REID. Objection.
The PRESIDING OFFICER. Objection is heard.
The clerk will continue the call of the roll.
The assistant legislative clerk continued the call of the roll.
Mr. WARNER. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection it is so ordered.
amendment no. 833
Mr. WARNER. Madam President, in consultation with the managers of the
bill, it has been indicated to me this will be an appropriate time for
this amendment to be raised. I send it to the desk and ask that it be
given immediate consideration. However, we have to set aside, as I
understand it, the standing order with regard to the Snowe amendment. I
first ask unanimous consent that it be set aside.
The PRESIDING OFFICER. Is there objection?
Mr. REID. Madam President, reserving the right to object--and I will
not object--we have been in consultation for the last hour or so.
Senator Snowe of Maine is in the process of having her amendment
drafted. She is a half hour away from being able to present something
in writing that we can give to the Senator from New Hampshire. I have
no objection.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The legislative clerk read as follows:
The Senator from Virginia [Mr. Warner] proposes an
amendment numbered 833.
Mr. WARNER. Madam President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To limit the amount of attorneys' fees in a cause of action
brought under this Act)
On page 154, between lines 2 and 3, insert the following:
``(11) Limitation on award of attorneys' fees.--
``(A) In general.--Subject to subparagraph (C), with
respect to a participant or beneficiary (or the estate of
such participant or beneficiary) who brings a cause of action
under this subsection and prevails in that action, the amount
of attorneys' fees that a court may award to such
participant, beneficiary, or estate under subsection (g)(1)
(not including the reimbursement of actual out-of-pocket
expenses of an attorney as approved by the court in such
action) may not exceed the sum of the amounts described in
subparagraph (B).
``(B) Amounts described.--For purposes of subparagraph (A),
the amounts described in this subparagraph are as follows:
``(i) With respect to a recovery in a cause of action
described in subparagraph (A) that does not exceed $100,000,
the amount of attorneys' fees awarded may not exceed an
amount equal to \1/3\ of the amount of the recovery.
``(ii) With respect to a recovery in such a cause of action
that exceeds $100,000 but does not exceed $500,000, the
amount of the attorneys' fees awarded may not exceed an
amount equal to 25 percent of such excess recovery above
$100,000.
``(iii) With respect to a recovery in such a cause of
action that exceeds $500,000, the amount of the attorneys'
fees awarded may not exceed an amount equal to 15 percent of
such excess recovery above $500,000.
``(C) Equitable discretion.--A court in its discretion may
adjust the amount of an award of attorneys' fees required
under subparagraph (A) as equity and the interests of justice
may require.
On page 170, between lines 21 and 22, insert the following:
``(9) Limitation on attorneys' fees.--
``(A) In general.--Notwithstanding any other provision of
law, or any arrangement, agreement, or contract regarding
attorneys' fees, subject to subparagraph (B), a court shall
limit the amount of attorneys' fees that may be incurred for
the representation of a participant or beneficiary (or the
estate of such participant or beneficiary) who brings a cause
of action under paragraph (1) to the amount of attorneys'
fees that may be awarded under section 502(n)(11).
``(B) Equitable discretion.--A court in its discretion may
adjust the amount of attorneys' fees allowed under
subparagraph (A) as equity and the interests of justice may
require.''
Mr. WARNER. Madam President, I will do something unusual. I am
actually going to read the amendment myself such that colleagues and
those observing floor operations from their offices can have a clear
understanding of exactly what is in the amendment.
Further, I do not desire to consume a great deal of time in the
debate because we have just had a very thorough debate on the generic
subject of attorney's fees. Therefore, the Senate has pretty well
framed in their minds the parameters in which they will or will not
accept an amendment that has the effect of, in my judgment, preserving
a reasonable amount of attorney's fees and at the same time allowing
such awards as those attorneys obtain for their clients to be given;
again, with the thought that it is a Patients' Bill of Rights and they
have a right to get a reasonable amount of such recovery as is obtained
from them.
I shall read from the amendment--it is very short--and say a few
words, and then rest my case:
On page 154, insert the following: Limitation on award of attorneys'
fees----
(A) In general.--Subject to subparagraph (C), with respect
to a participant or beneficiary (or the estate of such
participant or beneficiary) who brings a cause of action
under this subsection and prevails in that action, the amount
of attorneys' fees that a court may award to such
participant, beneficiary, or estate under subsection (g)(1)
(not including the reimbursement of actual out-of-pocket
expenses of an attorney as approved by the court in such
action)--
In other words, that would be awarded by the court without any
restriction except to the court itself----
may not exceed the sum of the amounts described in paragraph
(B).
The sums I am about to recite, we carefully researched all types of
actions similar to this to get a scale of attorney fees which I felt
was clearly reasonable.
(B) Amounts Described.--For purposes of subparagraph (A),
the amounts described in this subparagraph are as follows:
(i) With respect to a recovery in a cause of action
described in subparagraph (A) that does not exceed $100,000,
the amount of the attorneys' fees awarded may not exceed an
amount equal to one-third of the amount of the recovery.
In years previous to coming to the Senate and other various jobs, I
was actually a member of the bar and practiced law. I was assistant
U.S. attorney in a modest trial practice myself. That has sort of been
a standard for many years in the bar, the one-third.
(ii) With respect to recovery in such a cause of action
that exceeds $100,000 but does not exceed $500,000, the
amount of the attorneys' fees awarded may not exceed an
amount equal to 25 percent of such excess recovery above
$100,000.
(iii) With respect to recovery in such a cause of action
that exceeds $500,000, the amount of the attorneys' fees
awarded may not exceed an amount equal to 15 percent of such
excess recovery above $500,000.
(C) Equitable discretion.--A court in its discretion may
adjust the amount of an award of attorneys' fees required
under subsection (A) as equity and the interests of justice
may require.
In other words, a judge may look at this fee schedule and decide,
this particular counsel has done a great deal of work and, therefore, I
believe I should raise his fee within the parameters of the section
itself.
Further:
(9) Limitation on Attorneys' Fees.--
(A) In general.--Notwithstanding any other provision of
law, or any arrangement, agreement, or contract regarding
attorneys' fees, subject to subparagraph (B), a court shall
limit the amount of attorneys' fees that may be incurred for
the representation of a participant or beneficiary (or the
estate
[[Page S7027]]
of such participant or beneficiary) who brings a cause of
action under paragraph (1) to the amount of the attorneys'
fees that may be awarded under section 502(n)(11).
(B) Equitable discretion.--A court in its discretion may
adjust the amount of attorneys' fees allowed under
subparagraph (A) as equity and interests of justice may
require.
This amendment simply sets, in my judgment, a reasonable category of
fees. I have tried, as best I can, not to tread, by virtue of States
rights, on the right of the State to administrate its own bar and the
like. I felt that discretion should be given to the trial judges,
Federal and State, such as they can adjust that schedule of fees as
they see fit.
The Senate, again, has, in a very thorough discussion under the Bond
amendment, covered these issues and has in mind, again, its own
framework wherein we can legislate on this matter by amendment or not
legislate.
At this point, I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Madam President, I thank the Senator from Virginia for
his efforts. I think there is an agreement that there needs to be a cap
on attorney's fees. It is my strong sense and belief that if we had a
cap of 33.3 percent that applied to Federal and State courts, that
would be accepted by the majority of this body.
What I worry about is us just going back and forth with escalating
amendments. There are very few benefits of old age. One of them is to
remember what happened in the past. When we were doing the tobacco
bill, we had amendment after amendment, a series of amendments, on caps
on lawyer's fees. It got a little ludicrous. We finally had a majority
vote for $1,000 an hour. It was clearly not an effort at legislating,
but it was an effort at some kind of political advantage. I know that
is not the intention of the Senator from Virginia.
I hope that once this is debated and, if it is not accepted, that
perhaps we could move to an amendment after Senator Snowe's amendment
that would be around 33.3 percent, State, Federal court, end of it.
That is going to make everybody unhappy, but I think it would be
something that we could all support and then get this issue off the
table and get to the very important issues such as resolution of
exhaustion of appeals that Senators Thompson and Edwards are working
on, liability issues. Senator Frist has some important amendments,
again, on liability issues, which we are narrowing down.
Hopefully, we can move forward. I thank the Senator from Virginia for
his input.
Mr. WARNER. Madam President, if I might reply to my friend and
colleague, there was no intention of the Senator from Virginia to
repeat what is an historically important case on tobacco. I studied
that case very carefully. There were, I think, three votes. My
recollection is it was $4,000 per hour, at which time the Senate
finally accepted. I would not participate in such a process. I just
struck the one-third for the lower amounts of the recovery and
basically scaled it to 25 and the other percentage as the rate of
recovery increase. I would be happy to work with colleagues.
It goes to the question of just how much will be eventually given to
the recipients who need these funds.
Mr. REID. Will the Senator yield for a question?
Mr. WARNER. Yes, of course.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. The Senator from Arizona and the Senator from Virginia are
on the right track.
This amendment, with all due respect to my dear friend from Virginia,
is really--we have another 15-percent limitation in here above a
certain amount. I think that the most expeditious thing to do would be
to set this aside, for the time being, and get some of the lawyers and
nonlawyers to sit down and see if they can work out something
acceptable to the managers. I am sure if it were acceptable to the
managers, we could accept this.
I ask my friend from Virginia, who believes he has talked enough on
this, that we withdraw this amendment, for the time being, in
anticipation of working something out that is clear and more concise.
Mr. WARNER. That is exemplified by the leadership the Senator shows
time and time again on this floor. I don't view this as a partisan
issue. This is an honest effort by the Members of the Senate to
recognize that individuals should be given their rewards and the
attorneys should be given fair compensation. Therefore, Madam
President, unless other Senators wish to speak at this time, I will----
Mr. McCAIN. If the Senator will yield, I say to my colleague from
Virginia, if the outcome of this amendment is not to the Senator's
satisfaction, then I hope we can enter into negotiations that on a
reasonable level--again, I just plucked 33\1/3\ percent because it is
in there in one category, across the board, simple, two lines, and
perhaps we can move on.
I know the Senator from Virginia, as well as the rest of us, doesn't
want to be hung up on a series of votes that are iterations over the
same issue. It seems that we can sit down and come to some reasonable
agreement, which the other side of the aisle would strongly resist
applying to State court, and this side would resist it on Federal
court. It is something to have a substantial majority vote for. I hope
the Senator agrees to enter into those negotiations.
Mr. WARNER. Madam President, I ask for the yeas and nays before I
take the action.
The PRESIDING OFFICER. Is there a sufficient second?
There is not a sufficient second.
Mr. REID. Madam President, if the Senator really wants a vote on
this, we will be happy to give it to him right now. I don't think it is
the right thing to do. I suggest to the manager and my friend from
Virginia, why don't we set this aside for a few minutes to see if we
can work something out to get the matter resolved. I think as the
Senator from Arizona indicated----
Mr. WARNER. I am agreeable. I ask unanimous consent that this
amendment be set aside.
The PRESIDING OFFICER. Without objection, the amendment is set aside.
The Senator from Nevada.
Mr. REID. Madam 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. Madam President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mrs. Clinton). Without objection, it is so
ordered.
Mr. REID. Madam President, it is my understanding, under the order
that is in effect, we will go to the Snowe amendment with the purpose
of offering the amendment under a 4-hour time agreement.
The PRESIDING OFFICER. The Senator is correct.
The Senator from Maine.
Amendment No. 834
(Purpose: To modify provisions relating to causes of action against
employers)
Ms. SNOWE. Madam President, I send an amendment to the desk.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Maine [Ms. Snowe], for herself, Mrs.
Lincoln, Mr. DeWine, Mr. Nelson of Nebraska, Mr. Specter, and
Mr. McCain, proposes an amendment numbered 834.
Ms. SNOWE. Madam President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The text of the amendment is located in today's Record under
``Amendments Submitted.'')
Ms. SNOWE. Madam President, I rise today to offer an amendment along
with my colleagues Senator DeWine, Senator Lincoln, and Senator Nelson,
who worked so hard, so diligently in crafting this compromise. Senator
McCain and Senator Specter are coauthors of this amendment as well.
The amendment we are offering today is designed to bridge the gap
that exists between the supporters of the McCain-Edwards-Kennedy
approach to employer liability in the Breaux-Frist-Jeffords bill.
I commend Senators McCain, Edwards, and Kennedy for their willingness
as well as their patience to work with us on resolving the many issues
that are associated with employer liability.
Everyone involved has had the same goal essentially, and that is to
protect
[[Page S7028]]
employers from liability when they are not participating in making
decisions concerning the health care of employee beneficiaries.
The discussion has really focused on how best to achieve that goal.
This is an incredibly complex liability issue that has far-reaching
consequences, and everyone who has been part of this discussion and
this effort to reach this consensus recognizes that fact and has worked
in good faith to arrive at a solution that we can live with and, more
importantly, employers can live with and not denying care that patients
rightly deserve.
This is an issue that is significant on a number of different levels.
First of all, to what extent will employers that voluntarily offer
health insurance be exposed to liability. To what extent will employers
be involved in the decisionmaking process in terms of the provisions of
health care for their employee beneficiaries, and perhaps
more important, will patients have legal recourse should they have a
grievance concerning the care they receive through their health care
plan.
The goal we all share in designing and crafting this amendment to the
McCain-Kennedy-Edwards legislation is how best we protect patients for
their medical care without creating an expansive bureaucracy adding to
the cost of providing that health care and generally creating an
incentive to drive away employers from providing health care insurance
to their employees which, as I said earlier, they do so on a voluntary
basis. We should be commending employers for providing these benefits,
not penalizing them.
We should also take great care to write a provision under which
employees remain insured through their employers, while also protecting
the employees' rights under their health insurance plans. What we do
not want to do is create unintended consequences for employers by
leaving legal questions open that can leave employers exposed to
liability over matters in which they have no control and over matters
in which they have not participated and having the resulting decision.
That is all the more significant when we realize there are more than
43 million Americans who remain without any insurance, and of those who
have insurance, employers voluntarily provide health coverage to more
than 172 million Americans. Obviously, what we do today is significant,
and it will matter.
We cannot afford to have employers suddenly opting out of providing
insurance to their employees because we do not want to create the
unintended consequence that adds to the rolls of the uninsured in
America. I think that is something on which we all can agree, and that
is a very real risk. In fact, there was a recent poll taken of
businesses in America, and it said that 57 percent of small businesses
said they would drop coverage rather than risk a lawsuit.
As one businessman in my State wrote to me recently:
We're not an HMO or an insurance company. We are an
employer. We cannot afford the time, expense, and aggravation
of litigation. And, please, make no mistake, that is what
this is about.
So we approach the issue of reconciling the differences between the
two approaches by addressing the question: What language will deliver
us to that mutual goal? We assess what was really the best qualities of
the McCain-Edwards-Kennedy legislation, as well as the Breaux-Frist-
Jeffords issues.
Ultimately, the solution we came to was a melding of the two
approaches. The result was to provide employers with varying levels of
liability protection depending on their involvement in the
decisionmaking process but regardless, patients will have the legal
recourse they deserve, no matter what.
There are many other issues that need to be resolved in this
legislation. I realize this represents one facet, the liability
question, that has been raised by others with respect to this
legislation, and this is not intended to address all of those
questions, but clearly it does address a most important issue when it
comes to subjecting employers to litigation and liability.
Let me take a moment to explain the differences between the McCain-
Edwards-Kennedy legislation and the Breaux-Frist-Jeffords approach and
the approach we are taking in the amendment we have offered to S. 1052
and how our amendment affects the underlying legislation and addresses
the concerns that have been raised about the net legal impact on
employers.
Essentially, there are several categories we are attempting to
address today when it comes to employer-sponsored health care
insurance.
First, there are employers that contract with an insurance company
that, in turn, pays beneficiary claims and administers the plans and
the benefits.
Second, there are employers that fund a plan but leave the actual
administration of the plan to an outside entity, generally an insurance
company.
Third, there are those who both self-insure and self-administer, in
essence creating their own insurance company within their existing
business.
The McCain-Edwards-Kennedy legislation as written allows a suit
against any employer if it directly participates in a decision that
harms or results in the death of a patient. Direct participation is
defined as the actual making of a medical decision or the actual
exercise of control in making such a decision or in the conduct
constituting the failure.
The bill then goes on to offer specific circumstances that do not
constitute direct participation, including any participation by the
employer or other plan sponsor in the selection of the group health
plan or health insurance coverage involved or the third party
administrator or other agent, or any engagement by the employer or
other plan sponsor in any cost-benefit analysis undertaken with the
selection of or continued maintenance of the plan or coverage involved.
While the bill language does not provide an exhaustive list of
exceptions, it does allow an employer to offer into evidence in their
defense that they did not directly participate in decisions affecting
the beneficiaries of the health care plan.
That suggests while employer protections would be provided under the
legislation, an employer would still have to go to court to make its
defense. As with any such legal language, direct participation
obviously can be open to legal interpretation, and that precisely is
the circumstance which we are seeking to avoid and prevent.
Under the Breaux-Frist-Jeffords legislation that was introduced, the
language provides for a designated decisionmaker, or DDM, which in most
cases would be the insurance company an employer contracted with to be
the party that is liable for medical decisions and, therefore, the
party could be subject to liability. In other words, the employer would
designate the DDM as the responsible party to shield itself from that
liability. If an employer chose not to designate a DDM, they would have
no protection from that liability.
An argument that has been made against the Breaux-Frist-Jeffords
language is if the DDM is a person designated within a company that
self-insures, for example, they could under the employment law attempt
to escape liability by claiming that ultimate decision came from the
employer; that they, as a DDM, did not make a final decision on a
particular beneficiary's case. In an effort to improve the Breaux-
Frist-language, we designate that when a contract is signed with the
employer, the DDM cannot mount any such defense, that somehow they
defer the liability, defer the suggestions that the employer somehow
participated in making the decision.
In an effort to improve the employer liability provisions, we
encompassed key provisions of both models in the legislation while
addressing their inherent weaknesses so we can attain our shared goals.
First, our amendment allows employers that turn their health care
coverage to outside insurance companies, that their insurance company
will automatically be their designated decisionmaker unless they
specifically choose not to have a DDM. This is built directly on the
Breaux-Frist-Jeffords model in which the decisionmaking authority
shifts to the DDM, which will in most cases be the insurance company.
Under this approach, an employer would not have to take the extra steps
to secure a designated decisionmaker and would not be required to go to
court to file papers or to make defenses against any actions they may
have taken. In other words, they would not have to do anything
different than
[[Page S7029]]
what they are doing today with a contract with an insurance company.
When they sign up with an insurance carrier that will provide
benefits to their employees and administer the benefits, they are then
signing up with, essentially, a designated decisionmaker, and they are
signing up as well for a safe harbor from liability in both medical as
well as contractual decisions.
Where we depart from the existing Breaux-Frist language is we clarify
since the DDM, which is also the insurance company, has assumed full
responsibility at the time the employer and the insurance company
signed a contract, the designated decisionmaker would be prevented from
turning around and assigning the employer for some failure that
resulted in a lawsuit from a beneficiary. In other words, the dedicated
decisionmaker can't transfer liability to the employer because of
something the employer does or failed to do.
The legislation we have introduced today to modify the McCain-
Edwards-Kennedy legislation delineates specifically that the dedicated
decisionmaker is responsible for a contractual arrangement as well as
exclusive authority for any medically reviewable decisions.
For employers that choose not to have a dedicated decisionmaker, for
whatever reason, and for those employers that prefer to continue to be
self-insured but contract out the administration of their health care
plan, we leave in place the general McCain-Edwards model in the
underlying bill that protects employers insofar as they do not directly
participate in the medical decisionmaking process.
Again, as I outlined earlier, direct participation is defined as the
actual making of a medical decision, the actual exercise of control in
making such a decision or in the conduct constituting the failure.
These are two of the changes we have made in the amendment we are
presenting today from the underlying McCain-Edwards legislation.
In our amendment, we eliminate one element of the bill that would
have potentially led to the filing of lawsuits on a variety of grounds
unrelated to specific medical decisions impacting individual
beneficiaries. The language is, in layman's terms, broad and
nonspecific and potentially exposes a defendant to a wide array of
nonlegal actions. If additional grounds for lawsuit should be added to
the legislation, we should delineate and specify them and not have
broad language that essentially leads to a legal potpourri.
Striking this language does not affect the ability of the patient to
seek remedy in court for medical decisions made in their particular
circumstance. But it does prevent a whole new arena of lawsuits from
being created that would heighten an employers' exposure to liability.
In addition, our amendment also modifies the underlying legislation
to ensure that self-insured, self-administered plans, employers, and
union health care plans will not be subject to lawsuits under Federal
law simply because of contractual disputes. This change is critically
important when considering that self-insured, self-administered plans
do not have the ability to assign liability to a dedicated
decisionmaker. As a result, they may opt to simply stop offering
insurance for employees altogether rather than risk a substantial
judgment on a contractual matter. That is a result, again, we simply
cannot afford if we are going to ensure that people have the kind of
health insurance plans in America in which they will continue to be
insured, and that employers are the ones providing predominantly the
health insurance in America today.
To describe our amendment in another way, we essentially are saying
as an employer that is not self-insured, you can hand over all your
decisionmaking and therefore your liability to a dedicated
decisionmaker which will, in all likelihood, be your insurance company
when you sign your contract with your insurance company. There is
nothing more you need to do to protect your business from liability for
the decisions that are made.
For the self-insured and for those who do not self-insure as an
employer, you would still have the protections afforded under the
underlying legislation if you don't directly participate in those
decisions. In other words, employers who contract out their health
insurance have a clear choice under our amendment, although once again
I stress that under this amendment patients will still have the legal
recourse regarding questions over appropriate medical care and medical
decisions related to the beneficiary's plan, no matter which option the
employer chooses.
The bottom line is we seek to protect employers from liability in
cases where they are not making the medical decisions that harm
patients or result in death while still protecting parents rights,
which after all is the goal of this legislation.
Finally, let me assure my colleagues, under this amendment, dedicated
decisionmakers would have to demonstrate they are financially capable
of fulfilling their responsibilities as the party liable in causes of
action. They could not be shell entities or sham individuals or
organizations without the ability to actually pay the event of
lawsuits.
The criteria the Secretary of Health and Human Services will require
relating to the financial obligations of such an entity for liability
should also include an insurance policy or other arrangements secured
and maintained by the dedicated decisionmaker to effectively insure the
DDM against losses arising from professional liability claims,
including those arising from service as a designated decisionmaker. A
DDM would have to show evidence of minimum capital and surplus levels
that are maintained by an entity to cover any losses as a result of
liability arising from its service as a designated decisionmaker. It
would have to show that they themselves have coverage adequate to cover
potential losses resulting from liability claims or evidence of minimum
capital and surplus levels to cover any losses.
Once again, I think we have designed an amendment that represents a
workable approach, that addresses some of the more serious and
significant concerns that had arisen in the various pieces of
legislation that had been introduced here in the Senate and with the
underlying legislation we are seeking to amend today.
We try to meld the best of both approaches, to balance the concerns
of businesses that do seek to voluntarily provide this most important,
critical benefit to their employees. That is an incentive we want to
maintain and reinforce in every possible way. But we also understand
there are going to be those circumstances in which the employee has
received inappropriate care that has resulted in significant harm,
injury, or even death, and that they should have the opportunity to
seek legal redress for that inappropriate care or denial of care. That
is the kind of consideration we want to ensure in this legislation,
without creating the unintended consequences or the disincentive for
employers to say we just simply cannot afford to provide this health
insurance for our employees anymore because we are going to be subject
to litigation, to endless losses, and we do not want to put ourselves
in the position of that kind of exposure.
I think this approach has been examined on both sides of the
political aisle. More important, I think it has been embraced by this
bipartisan group in the Senate, my colleague Senator DeWine, who has
worked so hard, Senator Lincoln whom I see on the floor, and Senator
Nelson. They have worked very diligently on behalf of this amendment to
assure that we address all facets, all potential implications and
ramifications associated with this approach, to hopefully address it in
a way that will ultimately yield the best effect for both the employer
as well as the employees.
I yield the floor. I will be glad to yield time to my colleague.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. DeWINE. Madam President, let me thank my colleagues, Senator
Snowe and Senator Lincoln, whom I see on the floor, and Senator Nelson,
who have worked long and hard on this amendment.
The issue in front of us today is how do we help shield businessmen
and businesswomen from liability at the same time providing access to
the courts for people to sue HMOs. Everyone I think agrees, one of the
things we worry about as we deal with this legislation is that we will
do something that would cause businesses in this
[[Page S7030]]
country to decide not to insure employees. That would be a very bad
unintended consequence, so we have to be very careful as we write this
legislation.
The amendment in front of us today is really a compromise. It is a
compromise based on the Frist-McCain bills. It is a compromise on the
issue of employer liability, how we best protect the employers while at
the same time ensuring people their right in court. I think we have
really blended these bills. I think we have the best of both worlds.
The situation and the language are clarified and made simpler.
We started this debate with some basic principles on which everyone
agreed. In both bills we agreed we wanted to try to protect businesses
but at the same time we wanted to allow suits in limited circumstances
against HMOs. The President agreed to that principle, and the two
underlying bills do as well. This amendment, I believe, achieves that.
This amendment effectively takes out 94 percent of businesses and
provides them great protection. When you compare our amendment versus
the underlying bill, it helps and improves the situation for the other
6 percent. We will talk about that in a moment.
My colleague from Maine has talked about this concept of the
designated decisionmaker. What do we mean by that? What we mean is
let's just make it simple and let's make it plain; let's have the
employer say who is going to make those decisions and therefore who
will be sued. In essence, what we are saying is once that decision is
made, that employer is no longer going to be subject to suits; the
designated decisionmaker will be.
How will this work in the real world? Let's say we have a small
hardware store in Greene County, OH. Let's say they employ 12 people,
and let's say what they do is they provide some health insurance and
they do that by going out in the market, finding the best deal they
can, and buying this group coverage for their 12 employees. Under this
amendment, once they contracted with that insurance carrier, they would
have automatically made that designated decisionmaker decision. They
would have designated that automatically, that group as being the
designated decisionmaker. They would have to do nothing. They cannot
make a mistake. It takes no affirmative action on their part. That is
going to improve the language we have in front of us.
The other way of doing it, the way the underlying bill did it, was to
talk about direct participation. Frankly, I think the language in the
bill was pretty good. But I think it needs to be improved. By having
the designated decisionmaker, it is a lot more clear. What will happen
as a practical matter is this. As we all know, anybody can sue anybody.
We cannot prevent suits, but we certainly can discourage them, and we
certainly can provide when suits are filed against a business, the
business has the ability to get out of that lawsuit very quickly. So by
using the concept of the designated decisionmaker, as a practical
matter, if a suit were brought against a businessperson, if a lawyer
were foolish enough to file that suit, the business would simply have
to go into court and file a copy of that designated decisionmaker
decision and would be dismissed from the case. As a practical matter,
this language significantly improves the underlying bill and will make
a big difference.
Our amendment does build on the two bills in front of us, the two
bills we have been talking about and have been considering, the Frist-
Breaux bill and the underlying bill we have in front of us today, the
McCain-Kennedy bill.
I believe our amendment would protect business owners from needless
lawsuits as well as protect patients who rely on employer-sponsored
health care plans for their medical needs. I believe this amendment
brings together the best of all worlds by providing certainty, much-
needed certainty to employers, employees, and, yes, to health care
providers. That is something we desperately need in any patient
protection bill.
Based on the designated decisionmaker concept in the Frist-Breaux-
Jeffords bill, our amendment would automatically, as I have indicated,
remove liability from small business owners and shift it to health care
providers or other designated entities. In addition, our amendment
stipulates this designated decisionmaker must follow strict actuarial
guidelines and be capable of assuming financial responsibility for the
liability coverage. This means the designated decisionmaker could not
be a hollow shell, unable to come up with the money, the assets, to
defend against potential lawsuits and financial damages and be able to
satisfy those losses. Our language ensures that the designated
decisionmaker cannot be a straw man, cannot be a sham that has no
ability to pay a patient in the event a lawsuit is filed and that
damages are in fact awarded.
In creating the designated decisionmaker process, it makes it easier
for employers that provide health insurance coverage to be protected.
We think that is a major step forward for businesses, and especially
for patients.
I say that because the fear of being sued often becomes so great that
employers simply stop offering health care coverage. We don't want that
to happen under this bill. We simply can't let that happen. The reality
is in this country that already there are more than 42 million
Americans, including 10 million children, who have no health care
coverage. The last thing we want to do is add to this number.
Our amendment greatly diminishes the likelihood that employers will
stop offering health care coverage. Again, we believe it is the best of
both worlds as it allows patients the ability to sue the designated
decision maker if they are denied medical benefits to which they are
entitled by their health plans. But at the same time it protects
employers from unnecessary and costly lawsuits.
Under our amendment, employees would have the comfort of certainty
and the comfort of knowing that the designated decisionmaker is
ultimately responsible for health care decisions and, therefore, that
individual or that entity bears the liability for a lawsuit.
In another effort to keep employees insured, our amendment also adds
language to the underlying McCain-Kennedy bill to limit the liability
of businesses to self-insure and self-administer their health care
plans. The fact is that these employers are assuming additional risk by
financing and by administering health care coverage to employees. To
that extent, I believe we must take their unique circumstances into
consideration. This amendment does that.
Ultimately, our objective is to encourage employers to offer and to
continue to offer their employees health care coverage. We don't want
to discourage them out of fear that they will be sued.
The reality is that these self-insured and self-administered plans
are doing some very good things for their employees. We want them to
continue to do these good things. Our amendment will help them keep
their employees, their families, and their children insured. That is
what the Patients' Bill of Rights should be all about.
Further, our amendment improves the original Frist language by making
very clear exactly who is liable. The amendment leaves no room for
ambiguity because it would not allow the designated decisionmaker to be
broken into sub-decisionmakers. One, and only one, entity would be the
sole bearer of liability. We think that is an improvement.
Finally, our language would strike vague and ambiguous language in
the underlying McCain-Kennedy bill that is of great concern to
employers. This language is a catch-all section of the bill that could
open employers to a flood of lawsuits simply because of the imprecise
nature of the language.
Let me read the exact language currently in the Kennedy-McCain bill
in regard to the cause of action relating to provisions of health
benefits. There is the (ii) section. This is what is in the underlying
bill:
Or otherwise fails to exercise ordinary care in the
performance of the duty under the terms and conditions of the
plan with respect to the participant or beneficiary.
We believe this language is simply too vague. We eliminate it in
regard to businesses and their potential liability.
This language that I just quoted creates an explicit cause of action.
This means employers could be the subject of lawsuits that none of us
currently
[[Page S7031]]
has any way to anticipate. The language is broad. It is too broad as
currently drafted. Our amendment would completely remove this section.
Finally, I think we must recognize what this amendment does, but also
we need to be very clear about what it does not do. Does this amendment
solve every problem with this bill? The answer is that it does not. It
does what we have said it does. It deals with the heart of the
liability problem in regard to businesses, but it does not solve all
the problems.
I think it is important for us to have truth-in-labeling with this
amendment. It is a good amendment. It is a probusiness amendment. It is
an amendment that will encourage business men and women to do what we
want them to do, which is good public policy, to insure their
employees. It will give them important protections. It will give them
more assurances.
That is why we ought to pass this amendment. It is a significant
improvement over the underlying bill that is in front of us.
But it does not solve all the problems. It only deals with a portion
of the pie. It does not deal with the caps issue. It does not deal with
where the lawsuits should be brought and the issue of whether they
should be brought exclusively in the Federal court or in the State
court. It does not deal with the class action question, about which I
am very concerned. And I know my friend from Tennessee has been working
on this issue as well. It does not deal with the class action issue. I
intend to have an amendment later today or tomorrow in regard to the
class action issue.
We want to say what it does. It helps businesses do the right thing.
It encourages people to continue to insure their employees. But there
are many things it does not do.
I would be more than happy to yield to my colleague.
Mr. GREGG. Madam President, I appreciate the Senator's effort. I
haven't had a chance to digest all of it. I understand the intent and
the thrust as described by the Senator from Ohio, which I think is
appropriate and good.
As I look at the first section, I am wondering. It appears to me that
under the definition section it draws union plans in, and they are
being given a special status which is really higher than a self-
employed plan is given. I am wondering why union plans are suddenly
being raised to a special status under the amendment.
Mr. DeWINE. I would be more than happy to answer the question.
In the original language that we have been negotiating for the last
few days, we could not figure out any way to really help the roughly 6
percent of businesses that self-insure and self-administer.
My colleague Senator Lincoln has brought to our attention and
businesses have brought to our attention the fact that this amendment
as originally written really did not help those 6 percent. Why? Why
originally didn't it help? The basic problem is they do make medical
decisions. They are really effectively operating as their own HMO.
We thought about how to protect them and give them some help while at
the same time preserving their employees' rights to sue just as
everybody else has. We came up with a compromise. My colleague Senator
Lincoln may want to get involved in this and explain it a little bit.
But basically it says for those self-insured, self-administered plans,
we carve out a special exemption for them because of the special
status. We say they are excluded and exempted from lawsuits brought in
the Federal court on the nonmedical decisions based on the contract
decisions. That is a break they are getting. We think it can be
justified by what they do because we want to encourage them to continue
to do what they do.
Why is the other group that you have mentioned included? They are
included because they operate basically the same way the self-insured,
self-administered businesses do. They basically take the risk. They
basically make the medical decisions.
I appreciate the question, but I would disagree with my colleague the
way he has categorized it. This is no special break for unions. This is
treating people who operate the same way the same way in the language.
I cannot come up with any way to justify carving them out and not
giving them the exception because they are operating under the same
principles that they are basically self-insured and are basically
making the medical decisions, and doing it the same way.
So when you compare apples to apples, you ought to treat them the
same. That is why we did it. We think it is justified. We think it
makes sense. The option, candidly, would be not to give the 6 percent
of businesses this break, not to give them the encouragement to try to
get them to continue to do what they are doing. But we came to the
conclusion that we should try to help them. We are not helping them
immensely, but we are helping them.
Mr. GREGG. If the concept here is to treat everybody in the basket
the same, then you have not necessarily done it, because union plans do
use third-party administrators and therefore can designate, and a
single-employer plan would therefore be more identifiable with the
union plan. Yet, under your proposal, the single-employer plan
basically is still liable. And that is 56 million people, by the way.
Fifty-six million people fall into that category.
So you have exempted out the Wal-Marts of the world, maybe, that
allow people to go out and get their health care, and then they come
back and get their approval. And that exemption makes sense, but that
exemption is not consistent with what unions do. So don't come here and
represent to this Senate that it is because it is not. You have raised
the unions to a brand new level of independent liability protection. So
please do not make that representation.
Mr. DeWINE. I will reclaim my time. I thank my colleague for his
comments.
The intention of the language is to treat people equally. If a union
does in fact make the medical decisions and if they are operating in
the same way that the Wal-Marts of the world are, they ought to be
treated the same way. If they are not operating the same way, then they
should not be treated the same.
Ms. SNOWE. Will the Senator yield?
Mr. DeWINE. Yes.
The PRESIDING OFFICER. The Senator from Maine.
Ms. SNOWE. The Senator from Ohio is exactly correct. We are treating
all employers the same. In this instance, in this particular category,
it is those employers who do not have a designated decisionmaker. That
is the intent of this particular provision: To treat them equally so
they are not subjected to liability when it comes to contractual
matters, whereas other employers are not who contract with insurance
companies and have a designated decisionmaker. That is what the intent
is of this legislation. It is to treat them all equally and to draw
that bright line.
We could say, let's not address the self-insured and self-
administered programs. I do not think that is fair either because,
obviously, they have a different kind of program, and we want to
encourage that. We commend them for the kind of benefits they are
providing their employees. They happen to be large employers, and they
want to design their own internal program. But we don't want to subject
them to litigation to which other employers are not going to be
subjected. So that is the reason for the intent of this particular
provision that happens to include union plans that are designed
similarly.
Mr. FRIST. Will the Senator yield?
Mr. DeWINE. I am more than happy to yield to the Senator from
Tennessee.
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. FRIST. This is an important point, and therefore I think the
colloquy is important so we can address it.
We have just seen the language for the first time a few minutes ago.
The way I understand it, we have about 170 million people out there we
are talking about in an employer-sponsored plan. There are about 6
million people who are in what are called self-insured, self-
administered plans. Over the last 2 to 3 years, as we have tried to
figure out how to treat these 6 million people in a fair way, we have
struggled because it is hard. We have produced the designated-decision-
maker model--which I am a great believer in; and I believe most people
in this body, if they step
[[Page S7032]]
back and look at it, are great believers in--but what you have in your
bill is you have carved out those 6 million people and addressed the
issue directly, but in addition to that, you carve out the unions.
The argument that was made is that the unions are self-insured, self-
administered plans like the other 6 million; that these are union
plans, and therefore they should be treated the same as self-insured,
self-administered plans.
I think the Senator from New Hampshire and I would argue that the
unions should not be carved out as well because--while a few may be
self-insured and self-administered--the majority of the union plans are
not self-insured and self-administered. Therefore, why are you giving
this privileged position to the unions that are not self-insured and
self-administered like the 6 million whom you targeted initially? That
is the question I think the Senator from New Hampshire and I wish to
ask you, because we like very much more the designated-decision-maker
model.
I guess the question is, Are you contending that the union plans that
you carved out are self-insured and self-administered plans?
Mr. DeWINE. If I could reclaim my time to answer the question.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. DeWINE. I can tell you what the intent was. And, as you know, we
have been drafting the language, and it has been going on and on. I can
only tell you what the intent was.
I am more than happy to take a minute and look at that language again
with your comments in mind.
The intent was to treat people who operated one way equally. In
regard to unions, the intent was we would cover union plans that were
the same as the Wal-Marts of the world which are self-insured and self-
administered. That was the intent. It was not the intent to go one inch
beyond that or to cover one group or one plan beyond that.
I will bluntly say, if the language in here is not consistent with
that intent, we need to go back to the drawing board and look at the
language. That was the intent of the four or five of us who were
working on this issue. That was the specific intent, and that was the
instruction that was given to staff.
If the lawyers did not come back with that language, and I did not
catch it when I read it, I apologize, and we will look at that. But it
is going to take us a few minutes to get the language out.
My understanding of what my colleague has said is that if a union
does in fact operate a plan, and they are in fact self-insured and
self-administered, he believes they should be treated the same way;
anybody who runs a plan with those two qualifications should be treated
the same way. Is my understanding correct?
Mr. FRIST. We have to be very careful.
Mr. DeWINE. If those are the facts.
Mr. FRIST. We have to be very careful whom we carve out. And then
whatever definition we use for the carve-out, we need to apply
consistency to it.
Mr. DeWINE. I agree.
Mr. FRIST. I believe we should go back and look at the way the bill
is written.
Mr. DeWINE. Let me suggest we take a look at that as we continue this
debate. We have a little time to debate. Let us look at the language.
I again want to reiterate something, though. And I do not want any of
my colleagues who are watching this back in their office or who are in
this Chamber to misunderstand this. This is a limited carve-out. This
is not a huge carve-out.
Basically, what this carve-out says is, because of the unique
situation of the self-insured, self-administered plans, we are going to
exempt them from lawsuits, based on contract, in Federal court--they
are not going to be exempt from other lawsuits and in State courts, and
based on medical decisions. So it is a limited carve-out. I do not want
anybody who is watching this debate to think this is some huge carve-
out. It is a carve-out on a limited basis. Our intent was to treat
people equally who were in that unique circumstance.
I know my colleague from Tennessee has been wrestling with this for a
couple years: How do you deal with these folks who have this unique
problem?
I say to my colleague from New Hampshire, this may not be perfect,
but we think it improves the status quo. That is sort of what we are
about today: Trying to improve the status quo.
Mr. GREGG. Will the Senator yield?
Mr. DeWINE. No, I will not yield yet.
We have had criticism of this amendment from people who say it does
not solve all the problems. I came to this Chamber and said, no, it
does not solve all the problems, but we are trying. And we are trying
with this amendment. If we can improve the amendment, and if we can get
the language more precise that does it, I will be more than happy to do
it.
Yes, I yield to my colleague.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. GREGG. I think the language, as presently drafted, is in your
definitional section of the amendment where you find ``(ii) (II).'' It
says:
a group health plan that is maintained by one or more
employers or employee organizations described in [this
section].
That essentially encompasses all union plans. Very few union plans do
not use a third-party administrator, very few. So I think you want to
tighten up that definition to make it clear that you are applying it to
the self-insured, self-funded, self-administered plans, and then you
would be picking up the same people that you are picking up under the
Wal-Mart exception.
Mr. DeWINE. Reclaiming my time, that was our intent. If that is not
reflected in the language, we will change the language.
I yield to my colleague from Maine.
Ms. SNOWE. The Senator from Ohio is making exactly the correct point.
This particular provision was intended for those insurers, self-insured
and self-administered plans, that obviously do not have a designated
decisionmaker. I should further emphasize, all employers are treated
equally when it comes to the idea that they participate in medical
decisions on behalf of their employees. They are all treated the same.
This particular area of the legislation is with respect to contractual
decisions. We are attempting to craft out for self-administered, self-
insured plans, and that includes union health plans that conform to
that particular organization, that they would not be subjected to
litigation that other employers would not be subjected to because they
had designated decisionmakers.
We know self-insured, self-administered plans do not have designated
decisionmakers. So we did not want to expose them to that kind of
litigation in this particular section that delineates the causes of
action. We were trying to treat all of the employers equally.
Mr. DeWINE. Madam President, I reclaim my time.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. DeWINE. Madam President, we have stated our intent. I think we
ought to get about our business and come up with the language to do
that, some possible language that we could use. It is always dangerous
to try to draft language on the fly on the Senate floor.
I will at least throw this out for possible discussion. We could add
``to the extent the Taft-Hartley Plan Act as self-insured, self-
administered plans,'' something to that effect of basically qualifying
so that you would get down to whatever the number is--I don't know what
the number is--that are self-insured and self-administered. We
certainly could do that. There is no reason that cannot be done.
Mr. GREGG. Is the Senator suggesting that additional definition? Is
the Senator suggesting that definition, that expansion of the
definition, that expanded language be placed on the definition section?
Mr. DeWINE. We could do it that way. If the Senator has a suggestion
of how better to do it, I would be more than happy to take the
suggestion.
Mr. GREGG. That may well resolve the problem.
Mr. BREAUX. Will the Senator yield for a question?
Mr. DeWINE. I yield to my colleague from Louisiana.
Mr. BREAUX. I ask the Senator from Ohio, I think the discussion has
been very helpful. Two points are important to have on the record. A
self-insured and self-administered plan by this amendment would not
relieve themselves of being subject to litigation for
[[Page S7033]]
decisions made based on medical necessity under the Patients' Bill of
Rights bill we are adopting.
Mr. DeWINE. The Senator is absolutely correct. We believe the
language does reflect that, but that is clearly the intent.
Mr. BREAUX. If the Senator would further yield, the point made by the
Senator from New Hampshire is absolutely correct in the sense that on
page 3 of the Senator's amendment, line 18, when he talked about that
group health plan--basically the Taft-Hartley group health plans, as I
understand it--you didn't have that limitation of those that would also
be self-insured and self-administered. I think if you added that to
that definition, you would correct the problem. I think it would be in
keeping with what the Senator wants to do and certainly something I
could support.
Mr. DeWINE. I appreciate my colleague's comments. I think they are
well taken. We will get about the business of dealing with that. The
point is very well taken.
I yield the floor.
The PRESIDING OFFICER. Who yields time? The Senator from Tennessee.
Mr. FRIST. Madam President, I yield myself approximately 15 minutes
on the opposition time for the time being.
The PRESIDING OFFICER. The Senator from Maine has 7 minutes remaining
in her time on the proponent's side.
Mr. FRIST. Madam President, is this 4 hours evenly divided?
The PRESIDING OFFICER. There are four 1-hour segments. The Senator
from Tennessee controls 1 hour of the 4-hour time. The Senator from
Maine controls 1 hour. She has 7 minutes remaining on her hour. The
Senator from New Hampshire controls 1 hour, and the Senator from
Massachusetts controls 1 hour.
Mr. FRIST. Madam President, I ask unanimous consent that for the
first hour, it be equally divided so we can continue the debate for
those in opposition.
Mr. REID. Madam President, I am sorry. What was that request?
Mr. FRIST. For the first hour of the debate, which we are about, I
guess, 20 or 30 minutes into, the opposition has not had the
opportunity to speak. I was saying for the first hour, in which about
25 minutes has been used, if we can have 30 minutes on either side.
The PRESIDING OFFICER. The debate has already consumed 53 minutes on
the proponent's side controlled by the Senator from Maine.
Mr. REID. The Senator from Tennessee has an hour. He can use it any
way he wants.
Mr. FRIST. Madam President, I understand I have an hour on my side. I
will use time off our side at this juncture. I yield myself such time
as necessary.
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. FRIST. Madam President, first of all, let me put perspective on
this because we have had the amendment introduced, and there are
basically three points I want to make.
No. 1, I applaud the Senator from Ohio and the Senator from Maine
because they have, for the first time in the debate, addressed this
issue of suing employers--this issue of who is responsible, who gets
sued, if there is harm or injury or cause of action. As one can tell
from their earlier discussion, there has been a lot of debate in
struggling with how best to address who you sue and when you sue them
and what entity. There is not very much certainty out there. Do you sue
the plan? Do you sue the employer? Do you sue the agent of the plan? Do
you sue the physician or the hospital when there has been harm or
injury?
In the McCain-Edwards-Kennedy bill, there are exclusions for the
physician and the hospital. However, the argument and the debate over
the last 4 or 5 days has made it clear that you can sue the employers
if they directly participate. And what has now been brought to the
floor in a very positive way, I believe, is this concept of giving
certainty to all that through a model that is called the designated-
decision-maker.
Really all that means is that since somebody is going to be sued--and
the way it is designed now, you don't know who it is; that doesn't give
anybody certainty--the easiest thing to do is for an employer to walk
away. It might be me that is sued. It might be the entity that is
administering my plan. It might be an agent of that plan. That is so
confusing and puts so much risk out there, and you never know whether
you are at risk or not, or somebody else, or who the lawyers will be
going after. The designated-decision-maker says: We are going to all
get in a room and say there is one entity responsible. If there is a
lawsuit, you are going to go after that entity. That entity has to bear
the risk, and also whatever value there is for that risk will have to
be either purchased or sold. That gives certainty to the overall
liability issue.
The second point--I will come back to this--that is very positive in
the underlying amendment is this broad cause of action which is being
struck from the underlying bill. That is where the underlying bill,
when you go to the Federal level in the underlying bill, there is a
cause of action called ``duty under the plan.'' Unfortunately, if you
leave that cause of action in there, it sweeps in all sorts of things,
whether it is the HIPAA regulations or the COBRA regulations, and all
of a sudden for those sort of indications, you don't have just
compensation, but you are exposed to these unlimited lawsuits out
there. So it is very positive, in the amendment that has been put on
the floor by the Senators from Maine and Ohio, to take that cause of
action out of the underlying bill.
The third point is that the Senator from Ohio made the point that
this is not the answer to liability. Liability involves exhaustion of
appeals. And we have an amendment pending on the floor addressing
whether there should be caps; and that entire debate, once you get to
courts, whether it is noneconomic damages or punitive damages, involves
whether you to go Federal court or State court and then this whole idea
of who do you sue. Can the employer be sued? And that last point is
what the designated decisionmaker selectively looks at, that sliver of
the pie of liability.
So far in the debate, over the last 4 or 5 days, we have not
addressed Federal versus State jurisdiction, whether or not there are
caps, full and completion exhaustion, or should there be class action
suits. The Senator from Ohio made that point. It is critically
important to address. If you read the press on this, this decision-
maker model will take care of the liability. But it does not answer the
questions on the part of myself and many others.
The history of the designated-decision-maker model is interesting as
well. It is in the Frist-Breaux-Jeffords bill. The amendment on the
floor is very similar to what is in the Frist-Breaux-Jeffords bill in
that you give certainty; you have to name an entity to be the
designated-decision-maker. That is who you sue. The Frist-Breaux-
Jeffords bill based that on what already passed the Senate about a year
and a half ago. A designated-decision-maker amendment passed this body.
That amendment came from the conference last year, where you had
Democrats and Republicans sitting around a table addressing how to come
up with a system that best addresses this problem of having employers
being sued out here when you really want to go after HMOs. How do you
delink employers versus HMOs?
Basically, you make one entity responsible. It could be the employer,
if they meet certain financial criteria; it could be the HMO; or the
HMO might contract with another entity. But somebody has the risk. They
have to have the financial wherewithal that equals that risk or the
potential of that risk. So I love the designated-decision-maker model.
It is clearly needed and necessary.
Let me take a minute. We keep drawing references to the Frist-Breaux-
Jeffords bill and the way that worked, because whether or not I can
actually end up supporting the amendment of the Senators from Maine and
Ohio really depends on how close in my own mind we get to the
underlying model that is in the Frist-Breaux-Jeffords bill. I believe
that gives the most certainty--certainty to the employer and also
certainty to the employee, at both levels.
The way that process works is there is an internal and external
appeals process. Under the Frist-Breaux-Jeffords bill, you can't opt
out of that and go directly to the court as you can in the McCain-
Edwards-Kennedy bill. We are trying to fix that through another bill.
[[Page S7034]]
In the Frist bill, once you go through the internal and external
appeals and you go to court, you are going to end up going to Federal
court. If there is a lawsuit in advance, prospectively--not after the
fact--a designated-decision-maker has been identified. If there is a
lawsuit, there is no question of whether you sue the employer or the
HMO or the agent of the plan or the hospital or the doctor. Indeed, you
sue one person. There is no choice. It is the designated-decision-
maker. That is decided in advance.
The Snowe-DeWine amendment takes that concept. Again, I think it is
the right way. I think most people would agree that is the most
appropriate way to address this issue of employer liability. But what
they have done is given a choice, from direct participation, of the
decision-maker model. To me--and I will have to be honest--that leads
to some sort of uncertainty because instead of having real certainty in
the employer's mind and employee's mind, the beneficiary of the plan,
that there is one person, and you know in advance a year before, 6
months before, that they have the responsibility, and somebody has paid
for it. Instead of having that certainty, you introduce more choice.
Again, are they directly participating? Are they in the decision-maker
model? The debate we just heard--are they a self-insured, self-
administered plan which is carved out of the Federal cause of action,
or are they a union plan? We just heard that debate. Some are self-
insured. Some are not. Why carve unions out there? We will look at that
particular language. All of that uncertainty is avoided with the
designated-decision-maker model.
Now, that second point that I have already mentioned, which is very
positive in this bill--probably more positive, I believe, in the
amendment introduced by the Senators from Maine and Ohio, is the part
of their amendment which deletes the provision in the underlying
McCain-Edwards-Kennedy bill that would allow lawsuits against employers
and insurers for unspecified failures--and I quote from the bill--``in
the performance of the duty under the terms and conditions of the
plan.''
That is the language which is going to be deleted. That is important
because if you don't take that out of the underlying bill, employers
will still be highly vulnerable to lawsuits based on alleged failures
in the whole realm of administrative duties. That could be under HIPAA,
the Health Insurance Portability and Accountability Act, which we
passed in this body several years ago, and COBRA, whereby employers are
not allowed to delegate administrative duties, under those laws, to
anyone else, by law. You can't. So the liability for those
administrative duties, because you can't delegate, would fall on the
employer, thus allowing the employer to be sued. So that is very
positive, I think. It was addressed directly in the amendment, and I
commend them for that.
Third is that we need to understand throughout this debate, as we
hopefully can refine this amendment and pass it if we can resolve some
of the specific issues in the language. We need to be crystal clear
again that addressing the designated-decision-maker addresses the
employer aspect of liability but does not address the many other
factors of liability, which I think we have a responsibility to address
on this floor, since this bill never went through committee and, in
truth, we are marking up and writing this bill for the first time on
the floor. We need to talk about Federal versus State courts, class
action suits, whether or not there should be caps in a noneconomic
damage or should there be punitive damages. All of those other issues
have not yet been addressed. Now I am quite pleased we are addressing
the designated-decision-maker aspect of employers being sued.
Several quick examples. There need to be clear and effective limits,
I believe, on class action lawsuits. There need to be firm requirements
that we fully exhaust internal and external reviews before initiating
any lawsuits. There are a lot of broad exceptions. We talked about some
of them as the Thompson amendment was on the floor; we have addressed
it. We have to have complete exhaustion as we go through.
Second, if an independent external medical reviewer, who is a doctor,
which is in the Frist-Breaux-Jeffords plan, as well as in the McCain-
Edwards-Kennedy plan, upholds the plan's denial, then the plan should
not be subject to liability. We need to discuss that on the floor. In
the underlying McCain-Edwards-Kennedy bill, a patient can still sue,
even though that independent medical reviewer, a physician with age-
appropriate expertise, has decided that the plan made the right
decision in internal and external appeals and the physician says
everything was right going through. I believe the Frist-Breaux-Jeffords
bill says, no, you can sue for care, injunctive relief, but not for
extraordinary rewards. That has to be addressed.
Also, the underlying McCain-Edwards-Kennedy bill would allow the
independent reviewer to ``modify''--I believe that is the word used--
the plan's denial. And this is just as a physician. What it means is
that in a paper review you never see the patient. You read records and
hope they are complete, and the reviewer is going to have the
opportunity to maybe do thousands of these, maybe hundreds, maybe 10. I
don't know. I was with a doctor a few minutes ago who has done
thousands of these reviews.
The point is that you never see the patient. You never get the
subtleties of clinical diagnosis, which all of us know is science, but
there is also art to it. You are asking somebody to look at this paper
and review it and say, yes, it was right or, no, it was wrong.
With the information written on that paper, you are allowed to come
in and modify the treatment of that patient. I can say as a physician
the fact that based on that paper review, a reviewer could require that
the plan cover treatment that neither the treating physician nor the
plan ever contemplated or ever recommended, this reviewer who maybe
over the telephone is reading it, is going to be able to modify it
bothers me.
It bothers me because it becomes binding, and we all know it becomes
binding. When it becomes binding and you have not had that direct
experiential observation, to me it is not right. It needs to be
corrected.
I will give another example: The employer in the plan would be
subject to simultaneous litigation in Federal and State court. Again,
speaking to the underlying bill, we have to address that because we all
know when we have lawsuits which result in--take a $120 million damage
award such as there was 2 years ago. A $120 million award is a large
award. Some will say it is too much; some will say it is too little.
But a $120 million damage award results in total premiums being paid
for about 55,000 enrollees on average.
I do not want to correlate the two, but $120 million is a lot of
money, and, at least in my mind, I come back to the uninsured and the
number of enrollees who could go out and buy insurance.
We need to be careful about encouraging shopping between the Federal
courts and State courts, and once you get to the State courts, from
State to State. Maybe tomorrow, Saturday, Sunday, or Monday we will
come back to that and talk about it. Clearly, if you are an attorney,
for a single event, you have multiple causes of action, you can
question that, but in addition to that, you have multiple venues: the
Federal court, the State court, or from State to State to State. That
is our interpretation. That is our attorneys' interpretation. It has to
be fixed.
In closing, I support the designated-decision-maker model. The
Senators from Maine and Ohio are to be congratulated for the first time
in this Chamber addressing in a sophisticated, appropriate way how to
clarify the uncertainty about suing employers versus suing HMOs.
I support the model. It is in the underlying Frist-Breaux-Jeffords
bill. We are looking at the language, as we speak, on the issue of
unions and why they are specifically carved out. That needs to be
addressed. We hope to have factual information. We will read the
language, and I look forward to working aggressively with the authors
of this amendment so we can all rally around it.
Mr. DeWINE. Will the Senator yield?
Mr. FRIST. Yes.
Mr. DeWINE. If I can respond to the Senator's comments about why we
crafted the bill, it was to give the employer a choice as to whether or
not they would go under the designated decisionmaker or under the
language of the other bill, which is direct participation.
[[Page S7035]]
Frankly, I do not think this is a huge deal. The reality is that the
vast majority of businesses will go under designated decisionmaker,
and, in fact, we provide in the bill that it is automatic. That will
just happen unless they make a conscious decision to say: We do not
want to do the designated decisionmaker; we want to go under the direct
participation language.
We are in an unknown area, and I do not think anyone knows how this
is going to play out entirely in the real world and what decisions they
are going to make. Some people come up with some scenarios under which
they would not want to designate someone as a designated decisionmaker.
The vast majority are. We wanted to provide this as a fallback
position, more options.
I do not think it is going to make it more ambiguous or less definite
because we provide automatically it is going to be designated
decisionmaker unless they make an action and say: No, we do not want
designated decisionmaker; we want to go with our model because for some
reason it works that way. We can look at the language and talk about
it.
In explanation to our colleague from Tennessee, that is what our
thinking was. We do not know where the world is going with this new
language, and we wanted to give as many options to businesses as we
could. That is why we did it.
Mr. FRIST. Mr. President, I claim my time.
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. FRIST. I guess this decision of certainty--I usually like choice
coming through, and it appeals to me. I am a 50-person convenience
store operator and have three or four convenience stores in the area,
and I have people barely scraping by, working minimum wage, but I
recognize giving people some insurance goes a long way. Some people say
it does not matter; you still have your care. If you have insurance,
you end up getting better care in the United States of America, it gets
you in the door. We talk about the 43 million uninsured, and we all
care. It bothers me in a direct way.
I am that operator and I know I am going to have to find a
designated-decision-maker. That is going to cost money because it is
liability; it is increased liability. I do not know, but if I have a
choice, I am going to say I am barely scraping by and it is just easier
for me not to play at all. Dealing with designated-decision-maker, you
have that choice. If that is the case, I fall back to the direct
participation language, and the direct participation language has all
of the other problems. The pressure of the system is going to be such
because direct participation does not cost you much, but if you get
sued for $120 million or in 1993 for $89 million or in the year 2000
for $80 million. That is real; just one case.
If I am sitting in my convenience stores and I say designated, this
is the new model created by the U.S. Congress; I am not going to
participate in it; it is too expensive. Thereby I go back to direct
participation, and we are where we are now.
It is easier to walk away and not give even those 30 employees
insurance out of fear, out of risk. That is why with the direct
participation model, as long as everybody plays and everybody is
certain it has prospective certainty for the employer and employee,
people are not going to drop their insurance.
I will be happy to yield the floor.
Mr. DeWINE. To respond, as envisioned by the Senator's original
bill--and the Senator from Tennessee is the one who came up with the
language of the designated decisionmaker and I applaud him for it
because no one has come up with one better. This is the model. This
language is pretty much the Frist bill. But in the Senator's example,
the designated decisionmaker is going to automatically--you have this
company that has three or three convenience stores; they have who knows
how many employees; they buy insurance. Their designated decisionmaker
is automatically going to be the group handling the insurance. They
will not have to make a conscious decision at all. It will just happen.
That is the glory of the way it is written and of the Senator's
original language, that it is automatic; it is going to happen. They
are not going to have to look for a designated decisionmaker.
Under the language of the Senator from Tennessee, it is going to take
care of itself. That is the strength of it.
Mr. FRIST. May I use 1 minute and then I will yield on that issue. I
want to respond to that.
Mr. KENNEDY. May I ask a question? We have two other cosponsors of
the amendment. They have yet to have a word.
Mr. FRIST. How much time has been used by this side?
The PRESIDING OFFICER. The Senator from Tennessee has consumed about
22 minutes.
Mr. FRIST. How much has the other side used since we have been on the
amendment?
The PRESIDING OFFICER. The other side has used 53 minutes.
Mr. FRIST. They have used 53 minutes, and we have used 22 minutes.
Mr. KENNEDY. How much have we used?
The PRESIDING OFFICER. The Senator from Massachusetts has used none.
Mr. FRIST. I was speaking in opposition to the amendment.
Mr. KENNEDY. I think the presenters ought to be entitled to whatever
time they have remaining. I am a strong believer in that. I would like
to invite our cosponsors to have a word.
The PRESIDING OFFICER. The Senator from Tennessee still has the
floor.
Mr. FRIST. Thank you, Mr. President. A matter of clarification, in
speaking in opposition to the amendment, yielded by Senator Gregg, we
have used how much time?
The PRESIDING OFFICER. Twenty-three minutes.
Mr. FRIST. Twenty-three minutes since we have been on the amendment.
Clarification: The proponents have used how much?
The PRESIDING OFFICER. Fifty-three minutes.
Mr. FRIST. I will be happy to yield the floor in a moment.
Clarification on the designated-decision-maker model: We would not
necessarily assume the insurance company is the designated-decision-
maker. You would have to designate that, and that is part of our Frist-
Breaux legislation, just to clarify that.
Ms. SNOWE. Will the Senator yield?
The PRESIDING OFFICER. Who yields time?
Ms. SNOWE. Will the Senator yield on that point?
Mr. FRIST. I will be happy to.
Ms. SNOWE. It is important to emphasize in this amendment as we have
drafted it includes a provision that starts out with automatic
designation: That a health insurance issuer shall be deemed to be a
designated decisionmaker for purposes of subparagraph (A) with respect
to participants and beneficiaries of an employer or plan sponsor.
That is important to emphasize, and it automatically occurs so we
remove the ambiguity, extra steps, cost, and so on, with respect to
that particular requirement.
Mr. KENNEDY. I yield such time as he desires to the Senator from
Nebraska and then the Senator from Arkansas, two lead sponsors.
The PRESIDING OFFICER. The Senator from Nebraska.
Mr. NELSON of Nebraska. Mr. President, I thank the Senator from
Massachusetts for the opportunity to speak to this amendment. There has
been a lot of discussion recently and I think most people's heads are
swimming about what a DDM is and what the purpose of this amendment
truly is.
The purpose of this amendment is to make sure, whether you are a plan
sponsor or an employer, if you are self-insured and self-administered,
that you are treated the same. You have to treat one and all the same.
That is what this is about. I believe there is some language being
worked on that probably will be offered shortly to make it clear that
is exactly what is intended by this amendment. It does not specifically
carve out one group or another. It carves out all groups where there
are plan sponsors or employers who are self-insured and self-
administered. All other employers are in a position to have a DDM,
designated decisionmakers, or they have an insurer which is a
designated decisionmaker.
The whole purpose of this legislation is to be able to provide
additional rights and opportunities for insurance. This does it. What
it also does is make sure that employers are not entrapped in
unnecessary litigation and that if they don't make decisions about
health
[[Page S7036]]
care and make decisions about claims, they are not involved in
litigation.
Specifically, this amendment narrows it down to not being brought
into Federal causes of action. It does not absolve employers or plan
sponsors from any kind of litigation that may come through State
courts.
While it may be difficult to follow the roadmap, there is one thing
that needs to be clarified and that is, it does not treat any one group
in any special way. It treats all plan sponsors and all employers who
self-insure and self-administer, the same way. If they choose to get a
third party administrator, which becomes a designated decisionmaker,
they will be absolved from liability from litigation unless they
somehow participated in the claim-making process, which they would not
do if they had a designated decisionmaker. This is intended to make
sure we balance the interests of the right of the individuals, the
right of the patients to sue, with the opportunity for employers not to
be entangled in litigation where they should not be entangled. It also
means that in balancing these interests, there will be fewer cases of
uninsureds, and there will be fewer employers deciding to get out of
the business of providing health insurance benefits to employees.
We have heard from employer after employer about their concern--as a
voluntary provider of these benefits, now suddenly they can be sued.
This makes it clear they will not be sued and it also makes it clear
that those who are plan sponsors will not also be sued unless they
participate in making decisions about health care claims. That is what
this is all about.
I hope this clarifies it for some of my colleagues on the other side
of the aisle who have raised questions. It is important to raise
questions and certainly ask the question whether there is any special
treatment. But if you look at the language and you look at what is
being done, there is not any special treatment for one group over
another. The category is the same. If you self-insure and self-
administer you will be open to some exposure. However, we will make
certain that exposure is limited when it comes to Federal actions. That
is what this is about.
I yield to my colleague from Arkansas and say before departing, thank
you to my colleagues and cosponsors from Maine and Ohio. I believe this
is the right way to proceed to improve this bill.
The PRESIDING OFFICER. The Senator from Arkansas.
Mrs. LINCOLN. I am the last of four children and I am the last in
this line of four, and I am delighted to have waited patiently to rise
today and speak in support of an amendment I am offering with Senator
Snowe, along with Senator DeWine and Senator Nelson, to protect
employers from liability.
The good Senator from Tennessee, Dr. Frist, would certainly join and
agree, as we have taken a good bit of his designated decisionmaker
language, that our ultimate goal is to protect the rights of patients
while ensuring that employers who provide health care are not subject
to frivolous lawsuits.
The objective is to those individuals, the good guys in this bunch,
the employers reaching out and providing the kind of health care that
Americans need; that we can work within the confines of this bill and
within this amendment to ensure they can continue doing that. That is
exactly what we have attempted to do. I think we have worked long and
hard. I know my colleagues and I have worked long and hard to develop
language to do just that, in working with those employers who want to
provide the much needed health insurance that Americans want.
Employers that are offering health insurance are the good guys. We
don't want to discourage them from offering health insurance. This
amendment provides the assurance they need to those offering health
insurance, that if they do not make medical decisions or override
medical decisions, they are not liable. Again, I know the good Senator
from Tennessee, Dr. Frist, understands that in terms of making sure
those who are not making medical decisions are not going to be held
liable.
We have worked hard on the underlying bill, as the Presiding Officer
knows, as we have talked in many press conferences on some of the most
important issues to the American people. This Patients' Bill of Rights
is one of those issues. We have reached out.
The opponents of the Bipartisan Patient Protection Act have argued
that the Patients' Bill of Rights will drive up health care costs by
subjecting employers to increased liability and frivolous lawsuits, and
in turn they argue rising costs will force employers to drop health
insurance. Our amendment presents an innovative solution to this
potential dilemma. We have been able to provide the protection needed
by these individuals who are already out there doing the right thing.
By allowing these employers to design this designated decisionmaker,
a term presented from the Breaux-Frist legislation, to oversee medical
care decisions, we remove most large and small business owners from the
threat of liability. They have that option of choosing a designated
decisionmaker. We make it possible for employers to contract with a
third party to administer health benefits and protect themselves from
unnecessary and crippling lawsuits. This amendment makes it crystal
clear that employers will not have to open themselves up to new
liability as a result of providing health insurance to their employees.
When we began discussing the Patients' Bill of Rights years ago, we
wanted to ensure that patients would be able to choose their own
physicians and their medical professionals--not accountants, not
bureaucrats, not insurance company executives, but the medical
professionals--would make the medical decisions. We never, absolutely
never, intended to open employers up to liability. And we certainly
don't want to do anything in this bill that would discourage these
employers from providing health insurance to their employees.
We are delighted to work out the clarifying language that Members
believe is needed to assure everyone is treated fairly.
The amendment I offer today refutes the charge that the Patients'
Bill of Rights is a trial lawyers employment act. Today we make it
clear that we have absolutely no intention of subjecting employers to
new liability or frivolous lawsuits. We want to encourage our employers
in this country to provide health care coverage for their workers.
In 1993 when we began the discussion of health care, we made it our
objective to get more individuals covered under health insurance
provided by their employers. We were able to do that. Unfortunately, we
have more uninsured in this country today, and we do not want to
exacerbate that problem. We want to give these employers the comfort
that they need, to feel confident in keeping that employee insurance
available.
This amendment is our pledge of good faith to American employers and
business owners that we will protect their needs as well as the needs
of their employees.
I applaud the work of my colleagues. I have enjoyed working with
them. I appreciate everyone's patience and endurance in this process.
We hope to be very inclusive, to bring others in to make sure this
language is exactly that: It is giving the protection and the comfort
level to the employers of this Nation that are doing an excellent job
in providing health care to their employees.
I also ask unanimous consent that Senator Baucus be added as a
cosponsor to this amendment, and I yield.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Massachusetts.
Mr. KENNEDY. I yield the Senator from Michigan 5 minutes.
Ms. STABENOW. Mr. President, I rise first of all to ask unanimous
consent to add my name as a cosponsor to this amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. STABENOW. Mr. President, I thank my colleagues on both sides of
the aisle for their hard work and the innovative language that is put
together in this amendment. For those of us who are sponsors of the
Patients' Bill of Rights, we have said since the beginning this was in
no way intended to allow lawsuits to be brought against employers, this
was about making sure those who make medical decisions were held
accountable for those medical decisions.
[[Page S7037]]
As we said so many times on the floor, it is really about closing a
loophole in the law as well. We have indicated over and over again,
when you have only two groups of people in this country who are not
held accountable for their behavior and their decisions, one being
foreign diplomats, the other being HMOs, it doesn't make any sense. We
know this was a loophole that was created by the outgrowth of HMOs and
development of new ways of managing health care, and basically the
Patients' Bill of Rights is meant to clarify that and make sure those
who are making medical decisions are held accountable for the outcomes
of those medical decisions, just as are doctors and nurses and other
medical professionals.
What I think is important about this amendment is it very clearly
states to each and every employer, large and small, that in fact we
will make sure if they are not making medical decisions--and in the
vast majority of times an employer is not making a medical decision--
the intent of the Patients' Bill of Rights is not to create a liability
for the employer. We have employers, many in Michigan--hundreds of
thousands of them--who are responsible employers, providing insurance
for their employees. We want to encourage and support and salute them
for doing that and make sure nothing gets in the way of that
continuing.
I again thank my colleagues from both sides of the aisle who have put
in a tremendous amount of work on this amendment. There has been a
wonderful job done clarifying this. I hope we have now been able to put
to rest what was unfortunately a common misperception, something said
over and over again to employers of this country, that somehow this
opens them up to lawsuit. It never was the intent. This amendment
clarifies that and reiterates it.
I hope this will allow us to move forward, to pass this very strong
Patient Protection Act that says to each and every family: When you
have insurance you can have the confidence, whether it is in the
emergency room or the doctor's office or the hospital, that you will
have the care available that your family needs.
I will yield the floor.
The PRESIDING OFFICER. Who yields time?
The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, I yield myself 3 minutes.
Both the Snowe amendment and the Frist amendment attempt to protect
lawyers using the designated decisionmaker language. However, the fact
that they use similar names can't mask the dramatic differences between
these two amendments. Senator Snowe's amendment helps employers without
hurting patients.
There are two important differences between the designated
decisionmaker language in the Snowe amendment and the Frist amendment.
Senator Snowe's amendment ensures that the person an employer
designates as responsible and will be liable for all damages caused by
any wrongful benefit determinations the patient gets under our bill.
This is exactly what employers want and deserve, a clear way under the
law to protect themselves.
The Snowe amendment allows employers to name an HMO or health insurer
or plan administrator as their designated decisionmaker and not have to
worry anymore about being sued. That is what President Bush wants, and
that is what we want. If employers give up all control over medical
decisions in individual cases such as this, Senator Snowe's language
helps guarantee employers will not be sued, period.
Senator Frist's designated decisionmaker language is much weaker.
Under his proposal, the only entity that can be sued is the designated
decisionmaker. While the designated decisionmaker is supposed to have
exclusive authority to make benefit determinations, a court or jury
remains free to find in fact another person or company influenced the
decision that caused the harm. People who are not designated
decisionmakers may in fact influence decisions and share liability. But
the Frist language leaves victims no way to hold these outsiders
accountable. That is because, unlike the amendment of Senator Snowe,
the Frist amendment never deems the designated decisionmaker liable for
the acts or omissions of other parties who affect benefit
determinations. This is the most critical difference between the two
proposals.
The other important difference is that under Senator Snowe's
amendment, only employers can name designated decisionmakers; HMOs
cannot. After all, the entire point of having designated decisionmakers
is to ensure employers have a clear, easy way to avoid all possibility
of being sued, not to protect HMOs.
Of course, the effect of allowing HMOs to have a designated
decisionmaker is to enable them to escape liability for part or all of
their actions. Under the Frist-Breaux amendment, if a judge or jury
finds someone in an HMO harmed a patient and that person working for
the HMO was not a designated decisionmaker, the HMO escapes liability.
I think the amendment is sound. I think it has been a matter of
discussion and debate. I think those of us who were involved in the
development of the initial legislation sought to achieve what this
amendment does enormously fairly. It also treats the various Taft-
Hartley aspects equally with the other parts, so we have equality for
one and equality for the other.
Another important feature of Senator Snowe's amendment is that it
protects employers and Taft-Hartley plans which self-insure and self-
administer claims. The Frist alternative contained in S.889 fails to
address this issue. The Taft-Hartley plans have a long history of
providing quality health care for their members. In their unique
structure, employee advocates comprise half of the members of the
board. The record shows that this has been an excellent protection even
for beneficiaries who have extraordinary health care needs. In
structuring this legislation, we wanted to be certain that we didn't
impose any inappropriate burdens on these plans.
I commend the Senators. They spent a great deal of time on this
amendment. One would think it would be easy in the drafting of it, but
I know they have been challenged with it. I commend them for really
advancing this whole issue in a very positive, constructive way, a way
which really reflects what this President has enunciated and a way
which we had hoped to include in our legislation. There was a
significant question about it. Legitimate issues were raised. I think
this is one of the important contributions in helping move this
process. I commend all those on both sides who were very much involved
in its development.
The PRESIDING OFFICER. Who yields time?
Mr. KENNEDY. Mr. President, I yield 5 minutes.
The PRESIDING OFFICER. The Senator from North Carolina.
Mr. EDWARDS. Mr. President, this amendment is a wonderful example of
what can be done when we work together to solve problems. The
beneficiaries of the work that has been done by Senators Snowe, Nelson,
DeWine, and Lincoln are not the Members of the Senate but the people of
this country, the families who need quality health care, and the
employers that need to be protected from unnecessary lawsuits and
unnecessary litigation.
First, I thank Senator Snowe for her leadership. She has taken the
lead on this issue from the beginning. Her work has been absolutely
crucial.
My friend, Mr. DeWine, the Senator from Ohio, has also lent
tremendous leadership and expertise to the work on this effort.
I also thank my colleague seated near me, Senator Nelson from
Nebraska, who not only brings great expertise to this issue both as
Governor and as insurance commissioner of the State of Nebraska, but he
has been dogged in his determination to ensure that the small
employers, particularly, and employers generally, of America are
protected in this legislation.
This effort could not have been achieved without his leadership and
without his dogged involvement in this issue. He has been involved in
so many of the issues with respect to this legislation. He and I have
worked together. He and I and Senator McCain have worked together. He
has been involved in this patients' rights protection act from the very
beginning. We thank him for all of his work and important contribution.
Also, the Senator from Arkansas, who has expressed a concern about
employers from the very first moment,
[[Page S7038]]
and I have talked about this issue. She cares deeply about patients and
deeply about doctors making medical decisions, having a very well-
trained physician in her own family, that being her husband. She has
firsthand experience with that. But in addition to that, she has shown
great concern for small employers and, as has Senator Nelson, has made
it very clear to Senator McCain and myself and Senator Kennedy that the
only way she could support this legislation is if we did what was
necessary to protect employers. She has been absolutely crucial in
achieving that goal.
Without the work of Senators Lincoln, Nelson, Snowe, and DeWine, the
employers of this country would be in a different place than they are
today. I think they will be after this amendment is voted on.
They have achieved two very important purposes:
No. 1, they have insured that there are real and meaningful
protections for employers through the designated decisionmaker model
which we have already talked about, which essentially means the small
employers that we have talked about are 100-percent protected. They
cannot have liability under the language of this amendment, which is
crucial. It is a goal and a principle that we have all shared from the
beginning but, again, couldn't have been done without their work. They
have also managed to do it in a creative and innovative way that, while
protecting employers, does not leave the patients and the families high
and dry, which is exactly what needed to be done.
Honestly, it is a very difficult task, but they have worked doggedly
on this issue. All of them managed to reach a bipartisan agreement.
The most important thing from the perspective of the overall
legislation is that this is another in a series of obstacles about
which we have now been able to reach some consensus.
They have followed sort of one by one by one, starting with the issue
of scope, which Senator Breaux, Senator Jeffords, I, and others worked
on, reaching a crucial compromise going to the issue of independence of
medical panels to make sure that those panels are, in fact,
independent.
We have reached a resolution of that issue. On the issue of medical
necessity, the Presiding Officer from Delaware, along with my friend,
the Senator from Indiana, were crucial in being able to reach a
resolution that shows proper respect for the sanctity of the contract
and the specific language of the contract but some flexibility, where
necessary, for the independent review panel with respect to patients,
keeping in mind the interest of patients on the one hand, which I know
you care about deeply, and the importance of the contract in keeping
costs under control.
Without your work and Senator Bayh's work, that would not have been
achieved.
The Senator from Tennessee and I, as we speak, are attempting to
finalize an agreement on the exhaustion of appeal. Both of us believe,
as do most Members of this body, that it is a sensible thing to have a
patient go through the internal and external appeal before any case
goes to court. We have tightened up that language; working together on
it. We know it is important.
The Senator from Tennessee, Mr. Thompson, and I are resolving this
issue of the exhaustion of appeal. All of us believe that the appeals
process is crucial to getting patients the care they need.
If this bill works the way Senator McCain and Senator Kennedy and I
believe it should, the ultimate goal will be achieved if there were
never a lawsuit filed because what would have happened is the appeals
process would have worked and the patients would have received the care
they needed. That is what this is about.
We want patients to use this appeals process. The Senator from
Tennessee and I are finalizing an agreement on exhaustion of
administrative remedies.
I also want to thank our colleagues on this specific amendment
because that is another crucial obstacle. Scope, independence of the
panel, protecting employers, medical necessity, and exhaustion of
appeals are crucial issues in this legislation about which we have been
able to reach consensus.
As I said earlier, the important result is not what is happening
within this Chamber but that the families of this country will have
more control over their health care, and we will actually have a more
realistic possibility of getting the legislation they so desperately
need passed.
I thank all of my colleagues for all of their hard work. Without
them, this could not have been achieved.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. GREGG. Mr. President, let me begin by saying that this amendment
is moving in the right direction. I believe, with some of the changes
which we have discussed with the Senator from Ohio and the Senator from
Maine, that we can make real progress on improving it. Unfortunately,
the amendment came late. It is complicated. The issues involved are
considerable. But before getting into the specifics of the amendment
and how it may or may not play out in a positive way relative to
producing a quality bill, let me make the point that this amendment
addresses an important but not a broad part of the issue.
This amendment doesn't, for example, address some very real and
significant issues in the area of liability. It doesn't address the
issues of the 56 million people who are in self-insured plans.
It does not, therefore, solve the overall liability question, which
if you were to rate the five issues that I think the Senator from North
Carolina has appropriately highlighted, although I am not sure he
mentioned liability--he probably wasn't thinking in those terms, but he
certainly hit the floor if you put liability on the table--liability is
probably the key issue for a lot of people in this Chamber.
Issues such as forum shopping, class action, damages, punitive versus
compensatory damages, are major issues that we still have to address. I
think we recognize that there is still a fair amount of distance to go
in the liability area.
But this amendment takes up the designated decisionmaker language. It
takes a portion of the Frist-Jeffords-Breaux bill in this area and
tries to basically graft that on to what is the McCain-Kennedy bill--a
good and appropriate attempt, although I must admit that with just a
quick reading of it I think there is going to be some real confusion on
the part of employers between what they can do as a designated
decisionmaker versus direct participation. I had hoped that the
language would have a firewall in there. But as a practical matter, at
least the movement is in the right direction to give some insulation
for designated decisionmakers and people who use designated
decisionmakers.
As to the issue of union liability, there has been a lot of talk
around here about making businesses liable. And they are liable. Small
businesses and large businesses are all liable--and making HMOs liable.
If you are a union employee and have a union plan, and your union
tells you you can't get some sort of treatment that you need and should
get, unfortunately, the way the bill was originally drafted, you would
not have been able to sue that union plan, any more than if you had
been employed by a company, and the company had sponsored your plan,
and you would be able to sue them or, under this bill, the HMO. But
ironically the unions ended up, under the original draft, of being
completely taken out of the picture.
The Senator from Ohio and the Senator from Maine made clear that was
not their intent. I understand they are going to adjust some language
so union plans, which are in the same basic position as those plans
which are self-funded and self-administered, will be the ones which are
taken out of the liability picture. That is reasonable. That is the way
it should be. We look forward to that modification.
Another issue that this bill raised, which has not been really talked
about at all, is the fact that it basically has Federal usurpation of
what has been a very traditional State responsibility of determining
the viability of the insurance agency, whether the insurance agency has
adequate financial strength to cover the projected losses which may
occur. This has been something on which States have spent a huge amount
of time. It is a real specialty. It is an art form to look at these
insurance companies and determine whether
[[Page S7039]]
or not they have the depth and the ability to cover the costs if they
get hit with a whole series of claims.
I would hate to see the Federal Government step into this arena where
the States have been responsible and suddenly take it over. But under
this amendment, as originally drafted, that would be the case; the
Federal Government would now basically take all that responsibility
away from the States.
We discussed this with the Senator from Maine and the Senator from
Ohio and their staffs to try to straighten this out. They recognize the
issue.
I think the Frist model in this area is the right model. It
essentially says: Where the States have responsibility, where they are
the insurer, then they will have the ability--and retain the ability--
to evaluate the insurer. But where it is a new Federal cause of action,
a new Federal event, then the Federal Government will come in and do
the evaluation. That seems to be a reasonable bifurcation of
responsibility and will be an improvement if it is accepted.
I understand language is being developed which hopefully will be
accepted. That is all very positive, in my opinion.
As I mentioned, this amendment, if we can get these issues worked
out--and there are one or two other small ones--becomes a much more
positive event for moving the bill in the right direction. The question
becomes: What do we have left to do in that we have taken up a lot of
amendments? Unfortunately, we still have a lot of amendments to go.
Most of them are in the liability area. Some of them are in tangential
areas. But I do expect we will have amendments, as we move into the
evening, which will address such issues as the small employer who
decides to cash out their employees and what type of protection they
get. Senator Enzi happens to have that amendment.
There will be amendments dealing with class action suits. I think
Senator DeWine actually has an amendment in that area. There will be
amendments dealing with coverage and liability. I have an amendment on
punitive damages which essentially says if an employer lives by the
terms of the external review, they should not be subject to punitive
damages. There are a variety in that area. There will be amendments on
forum shopping. I think Senator Specter has an amendment in that area
that he may bring forward.
So there are still a fair number of issues, especially involving the
liability questions, which have to be resolved, after we get past the
language which the Senator from Maine and the Senator from Ohio have
brought forward, which, as I mentioned, I think with some adjustment--
which is major to the amendment, but which would be positive; and it
appears to be acceptable to the sponsors--hopefully, will move the
process in a better direction.
At this time I will yield to the Senator from Wyoming such time as he
may need from my time.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. If the Senator from Wyoming will yield for a brief inquiry
of the Republican manager, it is my understanding that because of some
people being at the White House and a conference that is going to be
held by the minority at 3 o'clock, the minority does not wish to vote
until 3:45 or 4 o'clock.
Mr. GREGG. I believe there is still approximately an hour and a half
left on the amendment. I would hope that once we reach an agreement,
and we have the language from Senator Snowe and Senator DeWine relative
to the issue of coverage for union plans and liability--and State
versus Federal responsibility for reviewing the adequacy of liability,
and there is one other issue--once we have that language, I personally
would think we could start yielding back time and go to a vote.
I think it would be hard to get to a vote before 4 o'clock because of
other commitments. It would be my hope we could vote at around 4
o'clock on this amendment.
The PRESIDING OFFICER. The Senator from Wyoming.
Mr. ENZI. Mr. President, this bill is really a strange one for me to
be working on at all. Wyoming has one HMO. It is owned by some doctors.
So far as I know, there are not any complaints on it. But there are
some basic problems here that people in Wyoming are asking about.
Because of Wyoming's makeup, I usually talk about small companies,
because under the Federal definition of ``500 employees or less,'' we
do not have a single company headquartered in Wyoming that would be
considered ``big business.'' But on this amendment I have to talk about
big business.
I have been hearing from the accountants of a number of these
companies. They are a little bit concerned about what is going to
happen to their health care. They work for those companies. They can
see what the costs are going to be on their companies. I have to say
that this amendment before us now does not address the problem. I would
like to think that it did.
I would like to be able to pass this. I would like to not have to
talk about a big company. There are the Caterpillers and Motorolas and
the Pitney Bowes and the Hewlett Packards. There are about a dozen of
these big companies in the United States. Again, none of them is
headquartered in Wyoming. I am pretty sure that none of them operates
in Wyoming. But I am still concerned about them because there are 6
million people who get their insurance that way.
I would suspect that almost everybody in this Chamber, with the
exception of my friend from Wyoming, has one of these big companies in
their State. Six million people are getting their insurance from these
companies.
What we are talking about is having a designated decisionmaker. It
does sound like baseball season, doesn't it?
Let me tell you how this insurance works. Right now they work it in-
house. They are able to keep their administrative expenses down to 5
percent. Now they are faced with the possibility of having liability.
These are the companies that are providing the Cadillac insurance in
this Nation.
I am not aware of complaints of these companies on their insurance.
The insurance these people have is far better than the plan we have in
the Senate. But they are self-funded, and they are self-administered.
Where they make their big savings is in self-administration.
Now we are talking about having a designated decisionmaker. That
means they are going to shift the administration to somebody else,
which might still be done at 5 percent, but there is this new liability
factor that goes with it. The guy that is over here, who is the
designated decisionmaker, is going to have to charge them for his
potential liability in the decisions that he makes incorrectly. He will
not do that for 5 percent. He will need a lot more because what he is
selling is liability insurance. So it is going to drive up the costs.
I have asked some of these companies what those costs would be. They
have said that, quite frankly, what they will have to do is get group
plans for their employees that have less benefits, to fit in the same
cost level that they have right now, because this little bit of a
liability factor drives up the price astronomically. So in this
particular provision that is before us, we are not taking care of the
self-insured and the self-administered.
I do have a proposal that I may offer after this one is finished, one
that will provide some mechanism for them to continue to do that, and
for those employees who they have, who are more concerned about their
ability to sue than they are about the current benefits that they have,
would have a choice. In exchange for that choice, this company would
not have to hire a designated liability holder because that is what a
designated decisionmaker would be.
For most of the firms that have the Cadillacs of the industry, most
of them will have to change to a designated decisionmaker. That
additional cost will be considerably more than the 5 percent they are
currently paying to handle administration, that 5 percent that they do
partly because they have employee committees that get involved in the
decisions. And those employee committees are not going to want to be
sued, so they are going to need some relief. I am here in the
uncomfortable position of speaking up for the companies that are in
your States, not mine, to protect the kind of health insurance they
have at the present time and not drive up the cost, forcing them to go
to a lower benefit plan with a designated decisionmaker.
This is not the solution. I hope you will pay attention to the
solution when that amendment comes forward.
[[Page S7040]]
Mr. DeWINE. Will the Senator yield for a moment?
Mr. ENZI. I will yield on the time of the Senator from Ohio. I was
just given pretty limited time.
The PRESIDING OFFICER (Mrs. Lincoln). Who yields time? The Senator
from Wyoming still has the floor.
Mr. ENZI. I yield the floor and reserve the remainder of my time.
The PRESIDING OFFICER. Who yields time? The Senator from Maine has
approximately 7 minutes remaining.
Ms. SNOWE. Madam President, we are awaiting modifications to the
underlying amendment. Unless there are any other speakers on the floor,
I suggest the absence of a quorum.
The PRESIDING OFFICER. On whose time?
Ms. SNOWE. I ask unanimous consent that the time not be taken from
either side at this point.
The PRESIDING OFFICER. Is there objection?
Mr. REID. I object. We have to move this thing along.
The PRESIDING OFFICER. Objection is heard.
Ms. SNOWE. I yield the floor.
The PRESIDING OFFICER. The Chair notes, if no one yields time, time
is charged equally to all sides of the debate.
The PRESIDING OFFICER (Mr. Dayton). The Senator from New York is
recognized.
(The remarks of Mrs. Clinton pertaining to the introduction of S.
Res. 117 are located in today's Record under ``Submission of Concurrent
and Senate Resolutions.'')
The PRESIDING OFFICER. The Senator from Nevada.
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, I ask that the time be charged equally
between the parties since we still have time left under the agreement
which is before the Senate.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Mr. President, I suggest the absence of a quorum and ask
the time be charged equally.
The PRESIDING OFFICER. Without objection, it is so ordered. The clerk
will call the roll.
The bill clerk proceeded to call the roll.
Mr. GREGG. 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. GREGG. Mr. President, for the edification of our colleagues, the
projected order of events is that Senator Gramm and Senator McCain are
going to offer an amendment which I believe is agreed to and will
require no vote. We will lay aside the Snowe amendment, and then
Senator Enzi is going to offer an amendment. We will debate the Enzi
amendment for whatever time he requires. I am not sure it will be that
long. Then Senator Specter will offer an amendment after laying aside
the pending amendments. We will debate that and then probably go to a
vote on the Specter, Snowe, and Enzi amendments later this evening--
hopefully early evening.
Mr. REID. Mr. President, I would like to speak to the majority
leader, but this sounds fine. It is my understanding--I have spoken
with the principals; I have spoken with Senator Kennedy and Senator
Snowe, and that matter appears to have been worked out so we can have a
satisfactory resolution of that tonight as soon as Senator Frist gets
back.
Senator Frist had to leave the Hill for a minor matter. He has some
dental work that has to be done tonight. We understand that certainly.
It is a valid reason for leaving.
What the Senator from New Hampshire has suggested is appropriate. We
will go to another McCain amendment and then the Enzi amendment and
then the Specter amendment.
Mr. GREGG. I think it is a Gramm amendment actually.
Mr. REID. There is no unanimous consent request at this time, but I
think what the Senator from New Hampshire has outlined is appropriate.
I will check with the majority leader. If he has any problems, I will
report back accordingly.
Mr. GREGG. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill 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. I ask that the Senator from Alaska be recognized and the
time used not be charged against the time before the Senate.
The PRESIDING OFFICER. Without objection, it is so ordered.
explanation of absence
Mr. MURKOWSKI. Mr. President, I ask unanimous consent, to be excused
from the voting in the Senate because there is a wedding in the family
that requires me to travel to Juneau, AK. I will try to be responsive
to the leadership in whatever the calendar turns out to be. But I
wanted to put the Record on notice of my absence and the reason for my
absence.
I suggest the absence of a quorum.
Mr. REID. As under the previous order, I ask unanimous consent that
the time be equally charged.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. GREGG. 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. GREGG. Mr. President, I ask unanimous consent the Senator from
Wyoming be recognized to offer an amendment and that we debate that for
up to 30 minutes with the time equally divided and no second-degree;
that thereafter, we go to an amendment from Senator Gramm, which I
understand is agreed to, and that debate will be up to 10 minutes; then
we go to an amendment from Senator Specter.
Mr. REID. Reserving the right to object, we have been told the Gramm
amendment is substantially agreed to but one or two other people have
to look at it first. I am sure that will work out fine.
Mr. GREGG. I didn't say it was agreed to; I just said they had 10
minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is temporarily set aside, and the Senator from Wyoming
is recognized.
amendment no. 840
Mr. ENZI. Mr. President, I call up amendment No. 840.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Wyoming [Mr. Enzi] proposes an amendment
numbered 840.
Mr. ENZI. Mr. President, I ask unanimous consent reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To provide immunity to certain self-insured group health
plans that provide health insurance options)
On page 172, between lines 15 and 16, insert the following:
SEC. 304. IMMUNITY FROM LIABILITY FOR PROVISION OF INSURANCE
OPTIONS.
(a) In general.--Section 502 of the Employee Retirement
Income Security Act of 1974 (29 U.S.C. 1132), as amended by
section 302, is further amended by adding at the end the
following:
``(p) Immunity from Liability for Provision of Insurance
Options.--
``(1) In general.--No liability shall arise under
subsection (n) with respect to a participant or beneficiary
against a group health plan described in paragraph (4) if
such plan offers the participant or beneficiary the coverage
option described in paragraph (2).
``(2) Coverage option.--The coverage option described in
this paragraph is one under which the group health plan, at
the time of enrollment or as provided for in paragraph (3),
provides the participant or beneficiary with the option to--
``(A) enroll for coverage under a fully insured health
plan; or
``(B) receive an individual benefit payment, in an amount
equal to the amount that would be contributed on behalf of
the participant or beneficiary by the plan sponsor for
enrollment in the group health plan (as determined by the
plan actuary, including factors relating to participant or
beneficiary's
[[Page S7041]]
age and health status), for use by the participant or
beneficiary in obtaining health insurance coverage in the
individual market.
``(3) Time of offering of option.--The coverage option
described in paragraph (2) shall be offered to a participant
or beneficiary--
``(A) during the first period in which the individual is
eligible to enroll under the group health plan; or
``(B) during any special enrollment period provided by the
group health plan after the date of enactment of the
Patients' Bill of Rights Plus Act for purposes of offering
such coverage option.
``(4) Group health plan described.--A group health plan
described in this paragraph is a group health plan that is
self-insured and self-administered prior to the general
effective date described in section 401(a)(1) of the
Bipartisan Patient Protection Act.''.
(b) Amendments to Internal Revenue Code.--
(1) Exclusion from income.--Section 106 of the Internal
Revenue Code of 1986 (relating to contributions by employer
to accident and health plans) is amended by adding at the end
the following:
``(d) Treatment of Certain Coverage Option Under Self-
Insured Plans.--No amount shall be included in the gross
income of an individual by reason of--
``(1) the individual's right to elect a coverage option
described in section 502(o)(2) of the Employee Retirement
Income Security Act of 1974, or
``(2) the receipt by the individual of an individual
benefit payment described in section 502(o)(2)(A) of such
Act.''
(2) Nondiscrimination rules.--Section 105(h) of such Code
(relating to self-insured medical expense reimbursement
plans) is amended by adding at the end the following:
``(11) Treatment of certain coverage options.--If a self-
insured medical reimbursement plan offers the coverage option
described in section 502(o)(2) of the Employee Retirement
Income Security Act of 1974, employees who elect such option
shall be treated as eligible to benefit under the plan and
the plan shall be treated as benefiting such employees.''
Mr. ENZI. Mr. President, we have spent more than a week debating this
version of a Patients' Bill of Rights which would affect the health
care coverage of more than 160 million working families who are
currently provided insurance by employers on a voluntary basis. We have
specifically debated the matter of protecting employers from the new
liability in the bill. To that end, Senators Gramm and Hutchison
offered an amendment that mirrored the employer protection provision of
Texas law by completely carving it out. That amendment was
unfortunately defeated. So we are still in the same predicament. We
have employers that are providing health care coverage that may think
twice about doing so if this bill passes as it currently reads.
Now everyone, including the sponsors of the bill, acknowledges that
this bill's stab at an employer protection from frivolous lawsuits
needs to be fixed. The Senators are now talking about how we protect
the good actors. Those are employers that are doing right by their
employees, offering health coverage but not playing a role in denying
medical care to which their employees are entitled under the insurance
contract.
My hope is that in the course of these discussions everyone will
settle on a comprehensive liability fix that includes the designated
decisionmaker model presented in the Frist-Breaux-Jeffords bill. As
many of my colleagues have said, that certainly seems to do the job. I
agree it certainly seems to. In fact, I agree that the designated
decisionmaker mechanism must be part of an amendment to successfully
resolve the problems in the underlying bill.
However, while the designated decisionmaker model does present itself
as the most reliable proposal for protecting most employers, there
remains a small segment of the market that will continue to go
unprotected. Ironically, this handful of employer health plans may
represent the best of the best. These are the plans that we all should
envy. They are plans better than we have in the Senate. They are
referred to as the self-insured, self-administered employer plans. They
comprise roughly 5 percent of the entire ERISA market.
Five percent is not a small number because that is still 6 million
people, but the problem under the Kennedy-McCain direct participation
model and even a designated decisionmaker model as we have been
debating in the last few minutes is that these employers will have to
dramatically alter their health plan because they do the plan
administration in-house. That means they are participating in
everything, and it means they cannot just designate their third party
administration or insurance company because they don't currently
contract with such entities for the purpose of processing claims. That
is the difference between the self-administered and the fully insured
employer plan.
We can reasonably expect the fully insured employer plan to be able
to designate the final decision on a claim for benefit because that is
generally how they function now, having the insurance company
administer the plan, with the employer participation ranging from full
plan design to advocating for a sick employee. But that is not the way
the self-administered plan operates. So none of the proposals protects
them.
My fear is that none of the proposals even preserves that kind of a
plan. Let me explain why that is a problem. These companies that self-
administer are few and far between, probably a dozen in the entire
United States. But they are the big companies, the companies that
operate probably in everybody's State but mine. Usually I am the
advocate for small businesses because all of my businesses are small.
There is not a single company headquartered in Wyoming that would be
considered big business by the Small Business Administration. This
issue has come to my attention from companies that participate all over
the United States, and they have brought me the stories of how it will
affect their plan, what the costs will be. It does require a fair bit
of capital to administer a health plan and also requires that the
employer wants to be actively involved in the caliber and range of
benefits their employees receive. They receive more benefits than
almost anyone else. And they want to design a wide, often unique range
of benefits to suit the specific needs of their employees. Because the
employers have the in-house resources to do so, they are actually able
to be more cost-effective in what they provide than if they provided a
fully insured health plan. They would rather have the health benefits
than the administration benefit. It is not that they can just provide
the same benefits cheaper and more efficiently; they actually provide a
richer benefit package for less.
The benefits some of these employers provide include extensive mental
health counseling, on-site wellness clinics, routine screenings, they
include cancer, osteoporosis, and domestic violence counseling, and the
list goes on. These employers often use employee review boards to
evaluate disputed claims for benefits, which is also a practice used by
a number of employee union operated health plans. These are clearly
benefits and administrative practices designed to help employees get
the highest quality health care available. In fact, these employer
plans are often referred to as the Cadillac of plans. As I said before,
isn't it ironic that these are the health plans hardest hit by this
bill? That doesn't make any sense to me. And it clearly doesn't make
any sense to me to leave these employers unprotected as we identify a
way to protect employers.
For that reason, the amendment I offer today is a solution that I
think is reasonable and will force us to ask ourselves a few tough
questions about the purpose of a Patients' Bill of Rights. The
amendment would require a self-insured, self-administered employer to
offer their employees one or both of the following options, in addition
to the self-administered, self-funded plan, and thereby gain a
``shield'' around that self-administered plan from the new cause of
action. The logic of this amendment is to provide employees with the
option of choosing a different health plan, which would also afford
them access to a cause of action. The employee chooses if he or she
wants that to be a component of their health benefit.
Under the amendment, self-administered, self-insured employers would
be required to offer at least one of the following options. The first
would be a fully insured product, under which an employee could
exercise the cause of action in this bill against the insurance company
administering the health plan; or, the employer would provide the
option of receiving, in the form of an ``individual health benefit,''
the amount of their employer's annual premium contribution under the
self-
[[Page S7042]]
administered employer plan. This would have to be used to buy health
care, which is done in the State regulated individual market. They have
the right to sue.
If an employer offers one or both of these choices to employees, then
the employer would not be subject to the new cause of action under the
Patients' Bill of Rights. Any new civil monetary penalties would apply
to these employers for violations of the act, and the external appeals
determination would be binding on the employer, but enrollees would not
be able to pursue damage awards against the employer under the new
cause of action. As under the Frist-Breaux-Jeffords bill, this
provision would not preempt any medical malpractice action currently
available in state court.
It would not do that. This is very clear. An employee makes the
choice to either keep the caliber of benefits under the self-
administered plan, or to choose a plan specifically for the right to
sue. Those employees that choose the fully insured product will be able
to hold their plan accountable under the new cause of action. And,
those employees that choose to purchase their own plan through the
``individual health benefit'' are similarly able to hold their plan
accountable under state law.
The argument has always been that ERISA is unfair because it
``traps'' employees in the employer sponsored plan, affording that
option alone, where damage lawsuits aren't available. This proposal
solves that dilemma without jeopardizing access to top-notch employer
sponsored health care for those employees. Have any of you been hearing
from the major companies that provide the self-insured, self-
administered employer plan? No, you have not. They have not been asking
for that right to sue. They like the range of benefits they have. They
like the personal way it is handled.
The arguments you will hear against the amendment, I believe,
actually make the case for it. It is very simple. It will be argued
that employees will never be able to get the rich benefit packages that
their employer's self-administered plan currently provides if they opt
into the individual market by taking the ``individual benefit,'' and,
while it may be better than the individual market under the fully
insured option, surely it won't compare to the self-administered
option.
That is absolutely right. If they spend the same amount of money and
add a liability part to it, you do not get as much insurance. I am
trying to preserve their insurance, not the right to sue, by giving
them the flexibility. Any employer that ever had a bad actor incident
in their company would have all of their people go out into the
individual market under this plan.
This bill would eliminate the best employer plans out there because
we feel compelled to sue them instead of making the decision to
eliminate self-administered plans by a lawsuit from Washington. Why
don't we let the employees make the choice for themselves? Every time a
window of choice comes open they can opt into this other plan if they
think it is a good way to go.
But I will tell you why the businesses cannot do what is being
mandated under this bill. If they have to have a designated
decisionmaker, they are hiring somebody to take the liability risk.
They are not just hiring somebody to administer the plan. That is only
a 5-percent cost. This will drive their prices up dramatically if we do
not give this option, and people who are receiving the best care in the
United States at the present time will have to settle for something
else.
I believe we have made a concerted effort through the amendment. It
is one we talked about a lot last year in the Patients' Bill of Rights
conference committees. We made an attempt to amend the process, to
remedy the problems of the entire liability section under the
underlying bill, including protecting employers and including
protecting small employers.
It is not worry about the small ones; this is worry about the big
ones who are providing the best of the best. I do not believe we will
be doing a good job unless we include this amendment.
I yield the floor and reserve the remainder of my time.
The PRESIDING OFFICER. If no one yields time, time will be charged
against both sides.
The Senator from North Carolina.
Mr. EDWARDS. Mr. President, I understand what my friend from Wyoming
is trying to do. We appreciate his work on this issue. This is a
subject matter that was covered previously by the Snowe-Nelson-DeWine-
Lincoln amendment on which we reached consensus on the floor a few
hours ago. That amendment was specifically designed to strike the
proper balance between protecting employers on the one hand and making
sure we also protected the rights of employees. So this is an issue
that has already been covered, about which there has already been great
discussion, work, and compromise across party lines, Democrats and
Republicans, and about which we are soon to have a vote. It is an issue
about which we already have consensus. We have widespread support for
that consensus.
The reason for that widespread support is we have protected employers
while at the same time kept alive the rights of employees and patients.
We have struck in a very creative way a solution to that problem.
This specific amendment has at least two major problems. No. 1, what
it does is take away the rights of employees, patients, and families,
to hold anybody accountable if one of two things occurs. The problem
with that concept is that it is in violation of the President's
principle, which we have talked about at great length on the floor of
the Senate, which is that employers be protected but that somebody be
held accountable if the employee, the patient, is injured as a result
of a medically reviewable decision. The President specifically said
that in his principle. That principle is completely complied with in
the Snowe-DeWine-Nelson amendment because in that amendment we create a
situation where we protect the employees right to recover if, in fact,
they are injured by a medically reviewable decision, while at the same
time providing protection for employers. So that is the reason that
consensus was reached. That is the reason both Democrats and
Republicans support it across party lines, and that consensus is
consistent with the President's principle.
This is an issue about which we have already talked and an issue
about which we have reached some agreement.
In addition to that, there are at least two other problems with this
specific amendment.
No. 1, it provides the employees with a false option. It says for
self-insured, self-administered plans, if either of two things occurs,
the employee, the family, and the patient lose their right to hold
anybody accountable. One of those options is that they go out, get a
voucher, and buy their own health insurance. But there is absolutely no
requirement that the voucher be adequate to buy quality health
insurance plans.
Second, they may provide a comparable plan. But there is nothing to
require that the benefits of that plan be equal to the benefits the
employee would otherwise have.
The bottom line is there are no protections that require that under
these options the employee or the patient end up with the same quality
health care plan. In many regards, it is a false option that is being
provided to them.
Another fundamental problem is that there is a provision in the
amendment--this is the B-1 exclusion from income--which says section
106 of the Internal Revenue Code of 1986 is amended by adding at the
end the following. Of course, an amendment to the Internal Revenue Code
creates a blue slip problem. This issue has to originate in the House,
which means, if adopted, that this entire legislation could be sent
back to the Senate from the House.
We have a number of problems. I understand what my colleague is
trying to do. I think his purpose is very well intentioned. But I say
to my colleagues, No. 1, this is an issue about which we have already
reached consensus in the Snowe-DeWine-Nelson amendment. We have reached
that consensus for an important reason. We have complied with the
President's principle. We have complied with the fundamental principle,
with which many of us on both sides of the aisle
[[Page S7043]]
agree, which is we need to protect employers and provide the maximum
protection for employers but, in that process, not leave the patients
behind. That is the reason we have an amendment to be able to reach
consensus.
No. 2, the choices that are being provided in this particular
amendment we believe are false choices, and they would not require that
the employee or the patient receive the same quality plan they would
get with the employer.
No. 3, it creates a blue slip problem, which means the entire Patient
Protection Act could be sent back to the Senate since it involves an
amendment to the IRS Code.
There are a number of fundamental problems. I appreciate my
colleague's work on this issue. I think this does not move us in the
right direction. We have an amendment that already addresses this
issue. It is an amendment that provides protection for employers while
at the same time keeping alive the rights of patients and employees.
I urge my colleagues to vote against this amendment.
I yield the floor.
The PRESIDING OFFICER. Who yields time?
The Senator from Wyoming.
Mr. ENZI. Mr. President, I want to quickly refresh the memory of the
Senator from North Carolina.
I would not have entered into the time agreement had I known he
wasn't listening when I debated the Snowe-DeWine arrangement where I
clearly pointed out that it is not considered thereunder. I think this
is a sticking point that the President would see as being very
difficult.
We are talking about companies such as Hewlett-Packard, Firestone,
Motorola, Caterpillar, Pitney Bowes--big companies that are providing
this. I have checked on the costs. Their costs will go up from $40
million to $70 million if the Snowe-DeWine amendment is the only
defense they have.
I yield the remaining time to the Senator from Texas.
Mr. GRAMM. Mr. President, first of all, this problem has not been
fixed. The amendment we will adopt is window dressing and has no impact
on this problem. What the Senator has proposed is a solution to an
assault on the best health care plans in America. The biggest companies
with self-insured plans that employees love will be destroyed by this
bill.
All the Senator is saying is that if Wal-Mart employees love their
plan, and they want to keep it and agree to not require Wal-Mart to be
liable to be sued, and if Wal-Mart gives them the option of going into
a fully-insured plan with liability so that they do not have to be in
the Wal-Mart self-insured plan, they can choose to remain in it, and
Wal-Mart will not be forced by liability costs to cancel their plan.
This is an important issue that addresses a very real shortcoming in
this bill. The incredible paradox is that this bill will do the most
damage to the best health care plans in America--plans that are self-
insured, that are large, and that provide terrific coverage. Under this
bill, there is no question about the fact that the employer will be
held liable. That liability fear will end up forcing them out of these
plans.
The Senator has offered us a third way. The third way is if every
employee is offered an alternative where there is liability available,
then those who choose to stay in their health plan and say, I love my
Wal-Mart plan and I don't want to sue Wal-Mart, would have a right to
do it. That is what the Senator's amendment does. All of the rest of
these arguments have nothing to do with the amendment.
Do you want to destroy the best health care systems in America? If
you do, you want to vote against the Enzi amendment. If you do not,
vote for the Enzi amendment which guarantees that a Wal-Mart employee
will have an option of another health care plan where everybody is
liable. But if they choose a better plan with fewer lawsuits, aren't
they better off by definition by choosing?
The Senator from North Carolina says if you do not get lawsuits, you
ought not to be happy. Maybe not everybody agrees with the Senator from
North Carolina.
I yield the floor.
The PRESIDING OFFICER. Who yields time?
Mr. GREGG. Mr. President, what is the time situation?
The PRESIDING OFFICER. No time is remaining on Senator Enzi's side,
the sponsor of the amendment, and 8 minutes 44 seconds remain in
opposition to the amendment.
Mr. GREGG. I understand the Senator from Texas has an amendment,
which has been agreed to by both sides, and she needs about 3 minutes
to present it. Is there any objection to setting aside the Enzi
amendment and allowing the Senator from Texas to go forward?
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The Senator from Texas is recognized for 3 minutes.
Amendment No. 839
Mrs. HUTCHISON. Mr. President, I send an amendment to the desk.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Texas [Mrs. Hutchison], for herself and
Mrs. Clinton, proposes an amendment numbered 839.
Mrs. HUTCHISON. Mr. President, I ask unanimous consent that reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To include information relating to disenrollment in the
information provided to patients)
On page 101, between lines 14 and 15, insert the following:
(3) Disenrollment.--Information relating to the
disenrollment of a participant, beneficiary, or enrollee.
Mrs. HUTCHISON. Mr. President, this amendment is a very simple one.
There are several things that must be reported to an enrollee in a plan
before the company can implement those things. They are major changes
to that person's plan because you don't want a person to go into the
doctor's office or into the pharmacy and be told they have been dropped
from their insurance or that their spouse has been dropped from their
insurance or their child.
We are requiring under the basic bill 30-day notice of any material
change. My amendment just specifies disenrollment as one of those items
that must be given 30 days' notice.
I have had an experience in which a person's husband was dropped from
a plan, was not told about it, and found out when the person went to
pick up a prescription drug for the husband, and had no way to fight it
in the pharmacy. Later in the week, when the person called to find out
why the husband was dropped from her plan, they found it was a mistake.
Of course it was a mistake.
So that is why you want the 30 days' notice, so that a person would
not have to find out that they are not getting coverage they thought
they had through a clerical error.
That is all this amendment does. I urge its adoption.
The PRESIDING OFFICER. Who yields time?
Mr. GREGG. Mr. President, I ask unanimous consent that the amendment
be agreed to.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The amendment (No. 839) was agreed to.
Mrs. HUTCHISON. Thank you, Mr. President.
The PRESIDING OFFICER. The Senator from North Carolina.
Amendment No. 840
Mr. EDWARDS. Mr. President, let me respond briefly to a couple of the
comments that were made about the Enzi amendment.
First of all, no argument was made that I heard about the blue-slip
problem, so I presume there is agreement that if this amendment is
included, it would require the entire Patient Protection Act to be sent
back.
Second, I say to my friend from Wyoming, I actually did listen to his
comments in the debate. And not only that, I sat in hours of meetings
with Senators Snowe and DeWine, and others, working out the language of
the Snowe-DeWine-Nelson amendment.
The Senator is factually incorrect about one thing; that is, that
what Snowe-DeWine-Nelson does is, No. 1, provide complete, 100-percent
protection for 94 percent of the employers in the country. Almost every
small employer is totally protected. But we left rights in place for
patients. The employers are completely protected.
For the self-insured, self-administered employers, we have also
provided
[[Page S7044]]
specific protections in this amendment, which we have been working on
for several days now. No. 1, they are completely carved out. Self-
insured, self-administered plans are totally carved out of the Federal
cause of action in the Bipartisan Patient Protection Act. They cannot
be held responsible for contractual, administrative responsibilities,
period. They are out.
Second, we have provided that if they choose to do so, they can pick
a third party designated decisionmaker and send all liability to that
decisionmaker by which they are completely protected.
And finally, we have provided that if they have what many of these
large employers have, which is a system where they simply make a
decision, yes or no, on paying the claim after the treatment has
already been provided--that the patient goes and gets the treatment;
then they decide whether they are going to pay for it or not--they
cannot be held responsible.
So I say to my friend and colleagues, what we have done is provide
complete protection for 94 percent of the employers in this country in
the Snowe amendment, while at the same time not removing the rights and
protections of patients.
For the self-insured, self-administered employers, we provided three
protections: No. 1, they are completely out on the Federal cause of
action, which is contracts, administrative issues.
No. 2, we have specifically said they can use a designated third
party decisionmaker and remove all liability by doing that if they so
choose.
No. 3, we have said if they operate the plan by saying: we decide
after the treatment just simply whether we are going to pay for it or
we are not going to pay for it, they are completely protected.
So after lots of work, and many hours, I say to my colleagues, we
believe we struck the right balance in both cases--for providing
maximum protection for the employers and keeping in place the rights of
patients, employees, and families.
So in addition to the blue-slip problem, which in and of itself would
be enormous, we believe that we have dealt with this issue. We have
dealt with it in a proper and adequate fashion. And we have addressed
the concerns of the self-insured, self-administered plans, and the
issues raised by small employers around the country who will be
completely protected by this amendment.
I yield the floor.
The PRESIDING OFFICER. Who yields time on this amendment?
The Senator from Wyoming.
Mr. ENZI. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. It is my understanding that the managers of the bill,
including Senator Frist, would ask that this vote be put over until a
later time. So I ask unanimous consent that be the case.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The Chair advises the Senator from North Carolina he has 4 minutes
remaining in opposition to this amendment.
The Senator from Texas.
Mr. GRAMM. Mr. President, under the previous unanimous consent
agreement, I believe I had 10 minutes to offer an amendment with
Senator McCain, but he is not here. I am waiting for him to come back.
So I would just like to suggest that perhaps we could modify the
unanimous consent agreement so that when he does come back, whoever is
speaking at that point, whenever they are finished, we would be
recognized to do the amendment. But there is no reason we cannot
conduct other business while we are sitting here.
Mr. KENNEDY. Why not talk now?
Mr. GRAMM. I am offering this with Senator McCain. I think he wants
to be here as well. It is my understanding he is on his way.
Let me just suggest we let Senator Nickles speak, if he would like to
speak. We could all learn something from listening to him. And then,
when he is finished, hopefully Senator McCain will be back, and we will
do this long-awaited amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Oklahoma is recognized.
Mr. NICKLES. Mr. President, I just appreciate my friend and colleague
from Texas. I will be very brief. I understand the Senator from
Pennsylvania wants to come and speak on his amendment. I would just
like to make a couple general comments.
Just for the information of our colleagues, I believe at--6:30 we
will have three votes. So people should be cognizant of the fact we are
going to have two or three votes--three votes, I believe--at around
6:30.
One, I wish to compliment the Senator from Wyoming, Mr. Enzi, for his
enrollee choice proposal. I think it is an outstanding proposal. I urge
my colleagues to be in favor of it.
I would also like to make a couple comments dealing with the
designated decision maker. Some people are acting like this is a grand
compromise, that this is going to save employers: Employers are going
to be exempt now because we are going to give this decision to a third
party.
When I ran a company, Nickles Machine Corporation, we had a third
party administrator. They handled all the administrative claims. They
did a decent job. So I didn't have to do it, our company didn't have to
do it. We hired them to pay the benefits, to harass the providers, to
make sure that benefits were paid or weren't paid. They paid the right
benefits, didn't pay the right benefits. They were hired guns to run
the plan, to make the decisions, to negotiate with the hospitals,
negotiate with the doctors--all those kinds of things. That is what
third party administrators do.
Now we are talking about saying: They have that responsibility, and
now they have liability, too. That's what this amendment does. Some
people said: It is going to hold employers harmless. It will not. I
will tell you, the net result is third party administrators are going
to say: What am I liable for? Under the McCain-Kennedy-Edwards
proposal, they are liable for anything and everything. They are liable
for unlimited economic damages. They are liable for unlimited
noneconomic damages, pain and suffering. They are liable for punitive
damages--up to a cap of $5 million--in Federal courts. They are liable
for unlimited economic and noneconomic damages in State courts.
It has never been said that State court limitations for doctors and
so on would apply to the plans and/or to the States. So now we are
saying to a third-party administrator, we want you to assume the
liability but the extent of the liability is not defined. It is
unlimited. One good lawsuit and they are going to have to write a great
big check. What are they going to do? They are going to have to charge
a lot of money. They are going to have to charge as much money as they
think this will cost, and they are going to guess because they don't
know.
It is kind of like playing Russian roulette. They might be lucky and
not have any suits so whatever they charge will be profit. Conversely,
if there is one bad suit and they are found liable, they are assuming
this liability and they could go bankrupt. So they are going to be
trying to err on the high side.
The net result, for everybody who thinks this is going to exonerate
employers and all they have to do is designate somebody else to accept
their liability, I tell my colleagues, as an employer, that is not
going to happen. An employer may say: You handle this, third party; you
assume our liability. And that third party is going to say: OK, but I
am going to charge you for it, and I am going to charge you more than
enough to make sure that we don't go bankrupt in the process.
Maybe they can buy insurance themselves or maybe they can't. My guess
is we are going to find out. Some people have said: CBO says that the
liability provision under this bill is .8 percent. I would be willing
to bet anybody the premiums that are going to come out as a result of
this liability in third party administrators assuming liability is
going to be a lot more than .8 percent. My guess is you are going to be
looking at premium increases of 4 and 5 percent just to cover the
liability
[[Page S7045]]
before someone will take this because the liability is not defined. It
is unlimited, unlimited noneconomic, unlimited economic.
The contract coverage, well, you may have to cover just about
anything. We never did tighten up medical necessity so if somebody says
maybe it should be covered, it should be covered. So you are not even
confined to the contract. We don't have contracts. This third party
administrator, which is usually charged with enforcing a contract, does
not have a defined contract and has unlimited liability. And we tell
them they have to pay for everything. They are going to end up charging
the employer more than they think it would cost so they don't go
bankrupt.
So we are going to find out how much this costs. My point is, I want
people to be aware of the fact that just having a designated decision
maker with no limitations on liability, with no limitations on covering
what is in the contract can be enormously expensive.
One other fact that people haven't considered. If you are a
designated decision maker and you are making these decisions on what to
cover and not to cover and you are liable if things don't work out, you
are hardly ever going to say no. You will hardly ever say no because if
you say no, you might be sued. Therefore, you are going to have more
defensive medicine than you have ever had. Whereas before they were
charged with the responsibility of enforcing a defined contract--this
is covered; this is not covered; being more of an administrator of a
contract and a plan--they are now going to be faced with liability. And
they can't afford the ultimate price of being hit with a heavy lawsuit.
So when the claim comes forward, if it is even close, they are going to
pay it. Pay it. Pay it. They don't want to take a risk or a gamble that
they can be sued for unlimited damages. So you will have enormous
increases through increase of what I would call defensive protections
so people don't have liability costs.
And then you will have people guessing what the liability will be,
and that will increase the cost to make sure that they have enough that
they don't go bankrupt.
The net result is that this designated decision maker that some
people think is going to exonerate employers will show that this is a
very expensive provision, and the cost of this bill, the cost of
medicine, the cost of health care and, therefore, ultimately the number
of uninsured will rise dramatically as a result of this bill and
because of this provision.
I urge my colleagues to vote no on the underlying amendment that
deals with this provision.
I want to mention--I hope it gets fixed--I think it is outrageous we
could exempt union plans from this provision. I hope it is fixed.
I yield the floor.
Amendment No. 843
The PRESIDING OFFICER. Under a previous order, the Senator from Texas
is recognized, with the agreement that his 10 minutes will be equally
divided, 5 minutes on either side.
Mr. GRAMM. Mr. President, I send an amendment to the desk and ask for
its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Texas [Mr. Gramm], for himself and Mr.
McCain, proposes an amendment numbered 843.
The amendment is as follows:
(Purpose: To ensure the sanctity of the health plan contract)
Insert at the appropriate place:
Notwithstanding any other provision of this Act, any
exclusion of an exact medical procedure, any exact time limit
on the duration or frequency of coverage, and any exact
dollar limit on the amount of coverage that is specifically
enumerated and defined (in the plain language of the plan or
coverage claimants) under the plan or coverage offered by a
group health plan or health insurance issuer offering health
insurance coverage and that is disclosed under section
121(b)(1) shall be considered to govern the scope of the
benefits that may be required, provided that the terms and
conditions of the plan or coverage relating to such an
exclusion or limit are in compliance with the requirements of
law.
The PRESIDING OFFICER. The Senator from Texas is recognized for 5
minutes.
Mr. REID. If the Senator from Texas will withhold, and no time will
be charged against him, I want to propound a unanimous consent request.
Mr. President, I ask unanimous consent that Senator Specter be
recognized to offer an amendment regarding Federal courts with an hour
for debate equally divided in the usual form; further, that Senator
Snowe be permitted to modify her amendment; further, that the Senate
vote in relation to the Snowe amendment at 6:50 p.m. this evening, with
10 minutes for debate prior to the vote equally divided in the usual
form with no second-degree amendments in order prior to the vote;
further, that following disposition of the Snowe amendment, there be 2
minutes for debate prior to a vote in relation to the Enzi amendment
with no second-degree amendments in order prior to the vote; further,
following disposition of the Enzi amendment, there be 2 minutes for
debate prior to a vote in relation to the Specter amendment with no
second-degree amendments in order prior to the vote.
The PRESIDING OFFICER. Is there objection?
Mr. GREGG. Reserving the right to object, as I understand it, as to
the 10 minutes, because the amendment was itself divided into four
parts, four holders of time will be given 2\1/2\ minute segments.
Mr. REID. When I read that, I knew we should have a clarification. I
appreciate the Senator clarifying that.
Mr. SPECTER. Mr. President, reserving the right to object, I entered
the Chamber and I heard my name mentioned. I would ask that the
unanimous consent be repeated.
Mr. REID. That the Senator from Pennsylvania would have one hour
evenly divided in the usual form.
Mr. SPECTER. Mr. President, I do object to that. I was asked how long
I thought it would take, and I said 2 hours. Then I was asked if I
thought I could do it in an hour, and I said I would do my best. This
is a complicated amendment. This is a complicated bill. I am not
prepared to enter into a unanimous consent request which limits my
presentation to 20 minutes.
Mr. REID. Will the Senator from Pennsylvania agree to have having 45
minutes for him and 15 for us? We have Members who want to know when
they are going to vote.
Mr. SPECTER. That is not satisfactory. I am being importuned over
here about what a good deal it is. This amendment, Mr. President,
involves a question of whether there will be both Federal jurisdiction
and State jurisdiction. It is a matter I have discussed with the
managers of the bill again this morning and with Senator Edwards. I
believe there is going to have to be some discussion. There are going
to have to be some issues raised and some questions answered. It simply
does not lend itself to that kind of time constraint.
Mr. REID. If I could say to the Senator from Pennsylvania, how about
if he has an hour and we have 20 minutes?
Mr. SPECTER. Mr. President, I am prepared to start the debate and to
make it as expeditious as possible. But I am not prepared to negotiate
time to an hour and 20 minutes total. I object.
The PRESIDING OFFICER. Objection is heard.
The Senator from Texas is recognized for 5 minutes on his amendment.
Mr. GRAMM. Mr. President, I have sent an amendment to the desk. The
amendment has been read.
Let me explain to my colleagues what the amendment does, why it is
important, and then I will thank our distinguished colleague from
Arizona.
Under the bill that is now before us, under the language of the
current bill on page 35, the bill says that contracts are binding. But
then it makes those contracts binding unless they are subject to a
judgment of medical facts and they are subject to medical review.
This creates an extraordinary ambiguity and, for all practical
purposes, makes the contract not binding. That creates a situation
where every health insurance company in America will realize that these
outside medical reviewers, based on medical necessity, could invalidate
every health insurance contract in America and, as a result, put
everybody under the high option plan whether they pay for it or not.
The net result would be an explosion in health care costs. In fact, if
this provision is not fixed, it is at least as explosive in potential
cost as the liability section, which we have talked about 10 times as
much.
The amendment I have offered makes the contract binding, and it
provides
[[Page S7046]]
language that says the contract is binding as long as the contract does
not violate the language of the bill. Let me explain very briefly what
that means. If, as we do under the bill, we say that if you provide
emergency room coverage, you have to have a prudent layperson standard
for that emergency room coverage, so you have to do that if you provide
the coverage no matter what this amendment says; or if we say under the
bill that if the plan has pediatric care for children, that can be the
primary physician, then it would have to be the law that would govern.
Within that very limited proviso, this amendment makes the contract
binding. I think it is a dramatic improvement in the bill.
I thank our distinguished colleague and my old and dear friend from
Arizona for helping me work this provision out. It is something I have
worried about. I do think it improves the bill, and it certainly would
not have happened without the reasonableness of our dear colleague from
Arizona. I thank him for that.
I yield the floor.
Mr. McCAIN. Mr. President, I thank the Senator from Texas for causing
this amendment to happen. It really is to ensure the sanctity of the
health care contract. Concerns were raised that under the pending
McCain-Kennedy legislation, independent medical reviewers can order a
health plan to provide items and services that are specifically
excluded by the plan.
That was not the intention of the law. The Senator from Texas pointed
out that it could have been interpreted in another way, and clearly
this amendment I think tightens that language to the point where it is
clarified that the bill doesn't do this and its specific limitations
and exclusions on coverage must be honored by the external reviewers.
There are numerous safeguards already in the bill to ensure that
external reviewers cannot order a group health plan or health insurer
to cover items or services that are specifically excluded or expressly
limited in the plain language of the plan document and that do not
require medical judgment to understand.
So I think this language is important in its clarification. I
understand Senator Gramm's concerns. I know this will not bring him to
the point where he is willing to vote for the bill, but I do hope it
satisfies many of his concerns, and we will continue to work with him
to try to satisfy additional concerns. I appreciate his cooperation and
that of his staff. I believe my friend from Texas would agree this is
probably the 35th draft we have of this maybe 9-line amendment, but
each word is important nowadays as we work our way through this bill. I
believe the appropriate place is on page 36, line 5.
By the way, I thank Senator Kennedy and Senator Edwards and their
staffs for agreeing to this amendment. I share the opinion of the
Senator from Texas that it is an important amendment.
The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
Mr. KENNEDY. Mr. President, I urge that we accept this amendment. As
in other areas, there has been a desire to provide clarification to the
language we had in the bill. One of the issues that has been debated is
the power and authority of the review medical officer in the review
process. It was never the intention to include benefits that were not
outlined in the contract. It was going to be limited to the contract,
but it was also going to give discretion in terms of medical necessity.
So this is a clarification of that, and I think it is a useful and
valuable clarification. I hope the Senate will accept it.
Mr. GRAMM. Mr. President, I seek only to do good, not to have it
recorded through a recorded vote. So I ask unanimous consent that the
amendment be accepted.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The amendment (No. 843) was agreed to.
Mr. McCAIN. The amendment that I offered today with Senator Gramm
helps to clarify the intent of how this bill deals with medically
reviewable decisions.
Mr. KENNEDY. The Senate should understand that the language in the
McCain-Edwards-Kennedy bill is based on language from a bipartisan
compromise between John Dingell and Charlie Norwood. Every member of
our conference signed off on our approach the last Congress, from Don
Nickles and Phil Gramm to John Dingell and me.
Our approach is based on a very important concept. It assures that
the external reviewer cannot be bound by the HMO's definition of
medical necessity. This does not mean that the reviewer sign off on
anything that is explicitly excluded by the health plan. If the plan
covers 30 days in the hospital the reviewer cannot approve 100 days.
However, where a coverage decision requires medical judgment to
determine whether of not what the patient is requesting is the type of
treatment or services that is explicitly excluded, we intend for that
determination to be eligible for independent review.
Mr. McCAIN. The amendment we are drafting here--that merely restates
what is in the underlying bill--is not intended to change our
fundamental approach, just to clarify our intent.
Our overall bill still clearly states that coverage decisions that
are subject to interpretation or that are based on applying, medical
facts and judgment should be reviewed. This includes those decisions
that require the application of plan definitions that require that
interpretation.
Mr. KENNEDY. Absolutely--the reviewer should be looking at those
cases. The amendment is intended to clarify that we never meant to have
the independent reviewer approving a benefit that is explicitly
excluded in all cases. However, in the case where there is some dispute
about whether it is a medically reviewable benefit, we do want the case
reviewed.
Mr. McCAIN. Right, just as in the case we have heard about a child
with a cleft palate. The plan says they do not cover cosmetic surgery,
but the doctor argues that there is specific health risks for not
having this surgery. That is something the independent reviewer would
look at to determine if it is covered in this case.
Mr. KENNEDY. Under the bill the external review process is first
designed to determine whether a denial by the plan or issuer is based
on a particular definition, or a specific benefit exclusion or
limitation under the plan or contract whose meaning is unambiguous and
does not turn on specific medical facts in an individual patient's
case. An appeal will be dismissed in cases where the entity concludes
that unambiguous plan language is the basis of a denial and that no set
of medical facts either could or would result in coverage under the
terms of the plan.
Mr. REID. Mr. President, we are going to have a vote sometime from
6:45 to 7:15, according to how much time is taken on the Specter
amendment. We will have three votes at that time. Members should be
ready to come and vote at or about 6:40 or 7:15, something like that.
The PRESIDING OFFICER. Under the previous order, the Senator from
Pennsylvania is recognized to offer an amendment.
Amendment No. 844
Mr. SPECTER. Mr. President, I send an amendment to the desk.
The PRESIDING OFFICER. The clerk will report the amendment.
The senior assistant bill clerk read as follows:
The Senator from Pennsylvania [Mr. Specter] proposes an
amendment numbered 844.
Mr. SPECTER. Mr. President, I ask unanimous consent that further
reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To require that causes of action under this Act be maintained
in Federal Court)
On page 153, strike line 9 and all that follows through
page 154, line 2, and insert the following:
``(10) Statutory damages.--The remedies set forth in this
subsection (n) shall be the exclusive remedies for causes of
action brought under this subsection. In such actions, the
court shall apply the tort laws of the State in determining
damages. If such damages are not limited under State law in
actions brought under this subsection against a group health
plan (and a health insurance issuer offering group health
insurance coverage in connection with such a plan), then
State law limiting such damages in actions brought against
health care entities shall apply until such State enacts
legislation imposing such limits against group
[[Page S7047]]
health plans (and issuers). Nothing in this section shall be
construed to require a State to enact legislation imposing
limits on damages in actions against group health plans and
issuers.
On page 160, between lines 2 and 3, insert the following:
``(D) Actions in federal court.--A cause of action
described in subparagraph (A) shall be brought and maintained
only in the Federal district court for the district in the
State in which the alleged injury or death that is the
subject of such action occurred. In any such action, the
court shall apply the laws of such State in determining
liability and damages. If such State limits the amount of
damages that a plaintiff may receive, such limits shall apply
in such actions.
On page 156, strike lines 15 and 16 and insert the
following:
subsection.
``(o) Limitation on Class Action Litigation.--
``(1) Limitation.--
``(A) In general.--Any claim or cause of action that is
maintained under this section in connection with a group
health plan, or health insurance coverage issued in
connection with a group health plan, as a class action,
derivative action, or as an action on behalf of any group of
2 or more claimants, may be maintained only if the class, the
derivative action claimant, or the group of claimants is
limited to the participants, beneficiaries, or enrollees with
respect to a group health plan established by only 1 plan
sponsor or with respect to coverage provided by only 1
issuer. No action maintained by such class, such derivative
action claimant, or such group of claimants may be joined in
the same proceeding with any action maintained by another
class, derivative action claimant, or group of claimants or
consolidated for any purpose with any other proceeding.
``(B) Definitions.--In this paragraph, the terms `group
health plan' and `health insurance coverage' have the
meanings given such terms in section 733.
``(2) Effective date.--Paragraph (1) shall apply to all
actions that are pending and have not been finally determined
by judgment or settlement prior to the date of enactment of
the Bipartisan Patient Protection Act, and all actions that
are filed not earlier than that date.''.
(2) Racketeer Influenced and Corrupt Organizations Act.--
Section 1964(c) of title 18, United States Code, is amended--
(A) by inserting ``(1)'' after the subsection designation;
and
(B) by adding at the end the following:
``(2)(A)(i) No action may be brought under this subsection,
or alleging any violation of section 1962, if the action
seeks relief concerning the manner in which any person has
marketed, provided information concerning, established,
administered, or otherwise operated or provided a group
health plan, or health insurance coverage issued in
connection with a group health plan. Any such action shall
only be brought under the Employee Retirement Income Security
Act of 1974.
``(ii) In this subparagraph, the terms `group health plan'
and `health insurance issuer' have the meanings given such
terms in section 733 of the Employee Retirement Income
Security Act of 1974.
``(B) Subparagraph (A) shall apply to actions that are
pending and have not been finally determined by judgment or
settlement prior to the date of enactment of the Bipartisan
Patient Protection Act, and all actions that are filed not
earlier than that date.''.
(3) Conforming amendment.--Section
Mr. SPECTER. Mr. President, I declined to enter into a time agreement
because this is an amendment which deals with the complex subject of
jurisdiction. I have long been a cosponsor for a Patients' Bill of
Rights, and I was surprised to learn many years ago of the Federal
preemption which precluded an injured patient--for example, where a
family doctor recommended a specialist and the HMO refused to provide
the specialist to the person and the person was injured, or perhaps
died, and had no redress in the Federal courts because of the so-called
preemption under ERISA.
It has seemed to me for many years that that was one of the problems
that ought to be addressed. I compliment Senator McCain, Senator
Kennedy, and Senator Edwards for the work they have done, and also
Senator Frist, Senator Breaux, and Senator Jeffords for their companion
bill, and what the managers have done here.
This amendment addresses what I believe, from my experience as a
litigator in the civil courts, to be a very fundamental question of
concern as to what courts these cases are going to be tried in. The
very brief history of ERISA is that cases which have been brought under
section 502 of ERISA are governed by what is called the doctrine of
complete preemption, and that is where the cases involve contract
interpretation, or so-called quantity of medical care.
Under ERISA, section 514, a plaintiff's case has been barred where it
relates to an employee benefit plan, and that has been decided by the
case law, and has been referred to as quality of care or medical
malpractice. For many years, under ERISA, which was enacted in the
1970s, that barred any action at all. But as the courts saw the
difficulty of this matter, there gradually came to be a loosening of
the interpretation and noted succinctly in a Fifth Circuit opinion,
Corporate Health Insurance v. The State Department of Texas, where
Circuit Judge Higginbotham noted that the court had ``repeatedly
struggled with the open-ended character of preemption provisions of
ERISA and also the Federal Employers Health Benefits Act.''
The court noted that there had been a faithful following of the
Supreme Court's broad reading of ``relate to'' in its opinions decided
during the first twenty years after ERISA's enactment. Since then in a
trilogy of cases, DeBuono v. NYSA-ILA Med. & Clinical Services Fund,
117 S.Ct. 1747 (1997); California Div. of Labor Standards Enforcement
v. Dillingham Constr., N.A., Inc., 117 S.Ct. 832 (1997); New York State
Conference of Blue Cross & Blue Shield Plans v. Travelers Ins., Co.,
115 S.Ct. 1671 (1995), the Court has confronted the reality and had
limited the application of that preemption so the cases were brought
for medical malpractice in the State courts.
The provisions of the McCain-Edwards-Kennedy bill provide that where
you have an action brought on contract interpretation or ``quantity of
medical care,'' those cases will go to the Federal court, but where you
have a claim which is brought for the ``quality of medical care,'' or
so-called malpractice, those cases will go to the State court.
I suggest to my colleagues that to have the two courts handle the
matters in that way will result in procedural quagmire because if you
have a case such as the following where a child is born to a mother who
has a plan under an HMO which seeks to limit the hospital stay to 24
hours. The patient is then discharged and an unfortunate result happens
to the child. There will be both claims under the so-called quantity
interpretation of the contract and quality on medical malpractice.
That is illustrated in the case of Bauman v. U.S. Healthcare, 1 F.
Supp. 2d 420, a case which was heard in the United States District
Court for the District of New Jersey in 1998. In that case, and this
illustrates the kind of an issue I am referring to, the HMO plan had
policies which encouraged the discharge of a mother and a newborn
within 24 hours after birth. Mrs. Bauman was discharged after that time
elapsed, and the next day the Baumans' daughter fell ill.
The Baumans contacted the HMO and requested a home visit by a nurse.
The HMO refused to send a nurse, and the daughter died of meningitis
the same day. The Baumans brought an action against the HMO, the
doctor, and the hospital, and they went into State court. The HMO
removed the case to Federal court as they had a right to under ERISA.
The district court made a determination that counts under the
complaint relating to the discharge decision were ``quality-of-care''
decisions, and the counts would be remanded to the State court. The
district court said that the failure to provide the nurse was a
``quantity'' decision and, therefore, was preempted totally.
On appeal, the United States Court of Appeals for the Third Circuit,
in a case captioned In re U.S. Healthcare, Inc., 245 F.3d 266, reversed
the district court holding that the claim was a quality decision.
The Bauman case illustrates the point about how hard it is to decide
whether a claim is a ``quantity'' claim or a ``quality'' claim.
Under the McCain bill, the claim that the Baumans would bring if the
McCain bill were enacted, would be in the Federal court on the issue of
plan coverage because that is a determination of the ``quantity'' of
medical care, but that the other claims would be brought in the State
court. I suggest obviously that is a procedural quagmire.
The point is further illustrated by an opinion of the Court of
Appeals for the Third Circuit in a case called Lazorko v. Pennsylvania
Hospital, 237 F.3d 242, decided just last year, where the underlying
facts show the plaintiff's wife was hospitalized for attempted suicide.
She was released but continued to have
[[Page S7048]]
thoughts of suicide. Her doctor refused to readmit her to a hospital,
and thereafter, regrettably and unfortunately, she killed herself.
In the State court, the plaintiff sued the HMO. The case was removed
to the Federal court where the counts on direct liability against the
HMO were dismissed. The case was then remanded to the State court and
then removed again by the HMO to the Federal court.
The Federal court dismissed some of the counts against the HMO but
remanded the case to the State court because of the various vicarious
liability claims which the plaintiff had against the HMO. On appeal,
the circuit court reversed the district court on one liability count
and remanded the case to the district court.
That is legalese, obviously, and very hard to present in the course
of a floor statement in a Senate debate on this subject, but it is
illustrative of a point that where you have a situation where an HMO
covers certain kinds of treatments for medical illness and you have a
question as to the coverage, under the McCain bill that claim would go
to the Federal court, but if there is a claim on malpractice, failure
of the doctor to exercise ordinary care, that case would go to the
State court.
There is no doubt that with the long history which the Federal courts
have had on interpreting ERISA that there is going to be the first line
of jurisdiction, and appropriately so, in the Federal court.
My amendment would provide that the Federal court would have
exclusive jurisdiction over all of the claims. In a situation where the
HMO would have its case heard in the Federal court, the Federal courts
frequently will retain jurisdiction over the doctors, the nurses, and
the hospital, and the other parties where the matter would ordinarily
go to State court on what is called pendent or supplemental
jurisdiction.
Again, it is very complicated. It does not lend itself to a short
time agreement, but the upshot of it is that if you have the provisions
of the McCain bill which give jurisdiction to the Federal court on
contract interpretation or ``quantity of care" and jurisdictions in the
State court on malpractice or ``quality of care'', a plaintiff is going
to have to go to two courts to get both of the claims adjudicated which
is, as I say, a procedural quagmire.
The amendment which I have proposed would give appropriate deference
to State law by providing that it would be the law of the State where
the incident occurred which would govern the lawsuit. That is to say
that the damages would be determined by State law and damages do vary
among the 50 States.
Also, if the State had a cap or a limit on the amount which could be
collected, that would be determinative when the case is brought in the
Federal court.
This is very much like the diversity cases where jurisdiction resides
in the Federal court, where the plaintiff is a resident of one State
and the defendant is a resident of another State. A simple illustration
would be if a patient from Camden, NJ, is treated in a Philadelphia,
PA, hospital by a Philadelphia physician and there is an allegation of
malpractice, negligence on the part of the physician and the hospital,
then the resident of the State of New Jersey could sue in the Federal
court with requisite jurisdictional amount, but it would be the law of
Pennsylvania which would govern, or the plaintiff could sue in the
State court of Pennsylvania. State courts would have jurisdiction.
Once you bring the HMO into the picture and you have what is
traditionally under ERISA, it has to start out in the Federal court at
least as the contract interpretation and ``quantity of care.'' That is
why it is my view, my legal judgment, that it is necessary to avoid the
procedural quagmire to have the Federal court have jurisdiction over
the entire matter.
The question has been raised as to choice of law and venue, the
question raised by my distinguished colleague from Tennessee, and I
specified in the legislation that it would be the place of the incident
which would determine the applicable law. Again, liability varies from
State to State and venue has an important place. We want to avoid the
potential of judge shopping so that the choice of law and the
determination of venue would be where the incident occurred.
There is another important aspect to the litigation in the Federal
court because of a feeling of a greater confidence in the Federal
judicial system than in some State court judicial system. This is a
touchy point, but it is one which the Judiciary Committee examined in
some detail last year in considering the question of amending diversity
jurisdiction in class action cases. Class action is when plaintiffs
join to sue a defendant. There had been, for illustrative purposes, a
case which had been denied class action status by the Court of Appeals
for the Third Circuit, and the plaintiffs then went to Louisiana, to a
favored county, and instituted the class action case and had the class
action certified.
Diversity jurisdiction is easily defeated in a class action matter
because if you have many plaintiffs, as you do in a class action, and a
single defendant, all you have to do to avoid diversity jurisdiction is
to have one of the plaintiffs a resident of the same State as the
defendant. In order to have a diversity jurisdiction in the Federal
court, all the plaintiffs have to be from a State other than the
residence of a defendant.
In the Judiciary Committee report on this subject, the following
facts of findings were made:
Some State court judges are less careful than their Federal
court counterparts about applying the procedural requirements
that govern class actions.
That appears on page 16 of the report of the Judiciary Committee
reporting this bill out at a 10-8 vote.
On the next page, page 17, appears the following statement:
A second abuse that is common in State court class actions
is the use of the class device as ``judicial blackmail.''
That is a fairly strong condemnation in citing that criticism
of the State courts. I do not suggest the impugning of all
State court judges everywhere. But there is a considerable
difference in many States in the quality of the courts where
you have electoral process in many States, contrasted with
the Federal system of life tenure, where I believe it is fair
to say it is generally accepted that the caliber of the
Federal courts is better, at least as a generalization.
There has been a great deal of concern expressed by some about the
unlimited potential that would be present in a Patients' Bill of Rights
in exposing defendants, HMOs, and employers to very high verdicts which
would increase the cost of health care. So there is some assurance, I
think fairly stated, by having the cases brought in the Federal courts.
I think it is useful to cite a couple of other illustrations abut the
underlying concern which I have about the procedural quagmire which
occurs. One of the two cases I intend to cite additionally--but I shall
not cite many of the other cases, and there are many illustrative of
this proposition--is the case of Pryzbowski v. U.S. Healthcare, Inc.,
245 F.3d 266, decided by the Court of Appeals for the Third Circuit
earlier this year. The plaintiff had back problems, sought surgical
treatment, the HMO delayed a decision for months, the plaintiff went to
State court, suing the HMO for medical complications occasioned by the
delay. The HMO removed the case to the Federal court where the Federal
court dismissed the claims against the HMO, finding that they were
``quantity determinations'' and therefore preempted under ERISA section
502. The district court also found that claims against the primary care
provider were expressly preempted by section 514 and dismissed those
claims, as well. The Court of Appeals for the Third Circuit vacated the
findings and remanded the case to district court to make further
findings. The appellate court noted that the claims against the primary
care provider raised both ``quality'' and ``quantity'' issues and, on
the record before it, the court could not decide which applied in this
case.
So not only do you have the provisions of the pending bill, which
would send a plaintiff to two different courts on what is essentially
the same situation, but even have the courts unable to draw a bright
line between what is ``quantity'' and ``quality.''
Another case which is illustrative of the problem is Corcoran v.
United Health Care Inc., 965 F.2d 1321, heard in the United States
Court of Appeals for the Fifth Circuit in 1992, where a patient was
pregnant, and her doctor recommended complete bed rest and
hospitalization so that he could monitor
[[Page S7049]]
the fetus. The patient's doctor sought precertification from the HMO
for a hospital stay. The HMO denied the request and authorized only 10
hours per day of health nurse services at home. Subsequently, the fetus
regrettably went into distress and died at a time when the home health
nurse was not on duty. The Corcorans, parents of the deceased child,
brought suit in the State court which then had it removed to the
Federal court, with the HMO arguing that they had not made a medical
decision on ``quality'' but only a decision as to what benefits were
covered under the health plan which was preempted by ERISA. The court
concluded that the HMO gave medical advice, but in the context of
making a determination about the availability of benefits under the
plan, and as such the court found the Corcorans' claim was preempted by
ERISA.
So there you have a curious situation of what is viewed as a medical
decision but again, preemption, because it was held to relate to a
determination of benefits under the plan.
The amendment would give jurisdiction to the Federal court on both of
the claims so that when any one of these plaintiffs, such as a mother
who is delivering a baby and has a limitation of 24 hours in the
hospital and has a claim both as to coverage and as to malpractice, she
could bring the case into Federal court, where State law would apply as
to damages, and if there was a cap on damages in that State, that cap
would apply.
I am a cosponsor of the bill and I, too, intend to support the bill.
But I do believe that this sort of a jurisdictional clarification is
indispensable if we are to avoid having a plaintiff compelled to
litigate in two courts with that kind of multiplicity of action.
I ask the manager of the bill to engage in a discussion, if the
distinguished manager would be willing to do so, or if a co-manager
would be more appropriate to talk about the operation of the plan, if I
may have Senator Kennedy's attention. I direct a question to my
colleague from Massachusetts and raise the issue as to whether it would
be more appropriate to discuss the matter with the Senator from North
Carolina on this issue, but the question I have relates to the McCain-
Kennedy-Edwards bill where you have a case, taking the illustration of
the underlying facts that I gave in the Lazorko case. Where you have an
HMO, which covers medical care, and a woman being in a hospital for
attempted suicide being released and the HMO refusing to readmit her,
and thereafter she killed herself--isn't it true that the claims which
were brought, say in Lazorko, which raised questions of interpretation
of the plan, would be brought in the Federal court and the cases on
malpractice would be brought in the State court under your bill?
Mr. KENNEDY. Mr. President, I do not expect we will be able to
litigate a case on the floor. I am not familiar with the facts in that
particular situation.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Ms. Cantwell). The Senator from Massachusetts
does not have the floor; the Senator from Pennsylvania does. Who yields
time?
Mr. SPECTER. Did the Senator from Massachusetts suggest the absence
of a quorum?
The PRESIDING OFFICER. The Senator from Pennsylvania has the floor;
the Senator from Massachusetts does not.
Mr. SPECTER. I do not intend to litigate a case on the Senate floor.
So without referring to a specific case, I ask the Senator from
Massachusetts, is it true that under his bill a claim which calls for
interpretation of coverage of the insurance contract for so-called
``quality of care'' would be brought in the Federal court, and a claim
which might--which would arise out of the same occurrence, which
involved malpractice, or a ``quality'' case--would that not, under his
bill, be brought under the State court?
Mr. KENNEDY. I say to the Senator, it is my understanding of the
case, the facts we have to date with that particular issue, following
the Supreme Court holdings in the Pegram case, this would be tried in
the State court.
Mr. SPECTER. Madam President, I would press the question as to the
interpretation of the insurance contract, which defined the rights of
the parties under the contract. Isn't it plain, under your bill, I say
to Senator Kennedy, that this is a matter which goes to the Federal
court?
Mr. KENNEDY. The understanding of our position on this issue is that
the Supreme Court in Pegram said, when there is a dual issue involved
in terms of the medical decision and the contract decision, as the
Senator knows, on medical issues decided in the State contract, in the
Federal courts, and where there is a mix of those, the predominance of
these issues being medical, it would be tried in the State court.
Mr. SPECTER. Madam President, I suggest that is at variance with the
provisions of the Senator's bill. I will cite the exact citation here.
At page 140, if I might call it to the attention of the Senator from
Massachusetts, section 502 of ERISA, which is brought in the Federal
court, and at the bottom, line 24:
(I) regarding whether an item of service is covered under
the terms and conditions of the plan or coverage,
So that is a section where you have Federal court jurisdiction, and
that would be the issue, as to interpretation of a contract to
determine coverage.
I ask the Senator from Massachusetts if that is not an accurate
citation of the Senator's bill?
Mr. KENNEDY. No. No, it is not. The Senator would be reading it out
of context:
Cause of action must not involve a medically reviewable
decision.
The Federal cause of action excludes the medically reviewable
decision. That is on page 142, line 6.
Mr. SPECTER. If I might have the attention of the Senator from
Massachusetts, on the preceding page, 139, section 302 talks about the
``availability of civil remedies.''
(a) Availability of Federal Civil Remedies In Cases Not
Involving Medically Reviewable Decisions.
Mr. KENNEDY. Yes.
Mr. SPECTER. Going on to 140.
Mr. KENNEDY. The Senator is correct, and that is consistent with my
earlier remarks.
Mr. SPECTER. If I may be permitted to finish my sentence, since I do
have the floor----
Mr. KENNEDY. If the Senator wants a response, I am trying to respond
to those highly technical questions the best way we can.
Mr. SPECTER. I do want a response, but not in the middle of my
sentence or the middle of my question.
But to go forward here on the availability of Federal civil remedies
in cases not involving medically reviewable decisions, this covers,
line 24-25:
regarding whether an item of service is covered under the
terms and conditions of the plan or coverage,[.]
My question to the Senator from Massachusetts: Isn't that an explicit
conclusive statement that, if it is a matter of interpreting a contract
as to what service is covered under the terms and conditions of the
plan or coverage, that is a Federal remedy? That is what it says in
black and white, doesn't it? I ask Senator Kennedy.
Mr. KENNEDY. The Senator is wrong. That is taking it out of context.
The fair way is to read the complete paragraph and go on to the next
page.
Mr. SPECTER. Madam President, if the Senator cares to read the next
paragraph, where he makes a claim of being taken out of context, I
would be interested in hearing him read any such paragraph.
Mr. KENNEDY. I have referred to that earlier, page 142, line 6. The
coverage decision depends on a medically reviewable issue. On the
matters dealing with the medically reviewable issue, the Supreme Court
has indicated that it would be decided in the State courts. That is
essentially what we have included in this language.
Mr. SPECTER. Madam President, I agree with the general delineation
that it was a medically reviewable decision. That is called ``quality
of care,'' as I have said before, and is a malpractice issue. But the
question which I have directed to the Senator from Massachusetts is a
much narrower question.
To repeat, is this not a question on the interpretation of the
contracts, specifically where an item of service is covered under the
terms and conditions of the plan for coverage? That is my question. The
interpretation of ``an item of service is covered under the terms and
conditions of the plan for
[[Page S7050]]
coverage'' is a matter for the Federal court.
I believe it is plain from the language on 139 to 141 that it is a
Federal matter. But if you move to an interpretation of what is medical
malpractice or a breach of duty by a doctor on what is a medically
reviewable decision, then that is a matter which goes to the State
courts. And this legislation does not continue the preemption of
existing law.
If I might have the attention of the Senator from North Carolina,
Madam President, this is an issue which my distinguished colleague from
North Carolina and I have been discussing for several days. And this
morning in my hideaway we discussed the complications, at least as I
saw them, on having the provisions of the pending bill which deal with
this complex dichotomy of an interpretation of contract coverage, which
is set forth at line 24, 25 on page 140 over to lines 1 and 2 on 141,
which comment regarding an item of service covered under the terms and
conditions of the plan for coverage which comes under the category of
availability for Federal civil remedies. Then if you move over to a
medically reviewable decision on medical malpractice, there is the
difference.
Is my interpretation correct that the legislation provides for cause
of action in different courts, No. 1? It is the coverage of the
contract, or what the courts have called ``quantity'' malpractice and
what the courts have called ``quality.''
Mr. EDWARDS. If the Senator would repeat the question, it is
difficult for me to hear.
Mr. SPECTER. I would be glad to repeat the question. As the Senator
and I were talking this morning, isn't it accurate that the courts have
made a distinction in ERISA, section 502, on what is contract coverage
or ``quantity'' with complete preemption under existing law?
Mr. EDWARDS. My understanding is--as the Senator said, we talked
about this earlier today--that has traditionally been the case. I think
there has been, I think, some erosion on that during the last few
years. I think the Senator is correct. There have been a number of
court rulings in that respect.
Mr. SPECTER. Madam President, I agree with the Senator from North
Carolina. There has been erosion on the preemption of 514 where the
courts have really seen the inequities of denying injured parties
relief, and instead of being under 502 with ``quantity'', they have
tried to move the cases into ``quality'' with the broader
interpretation where some relief has been granted.
I am a cosponsor of the amendment. As I said earlier, one of the
concerns that I candidly expressed a decade ago was my surprise over
the reach of the preemption of ERISA. It seemed to me to be unfair to
deny injured plaintiffs redress in the courts because of the
preemptions which were really designed originally under other kinds of
benefit plans and not under health maintenance organization plans. When
the HMOs came into being, they took the benefit of the same kind of
preemption.
But in this legislation you have the dichotomy where some cases are
heard in the Federal courts as they relate to ``quantity care'' or
interpretation of the contract, and other cases or the same case may be
heard in the State court as it relates to a medical malpractice or the
``quality of care.''
My question to the Senator is, isn't that an accurate statement?
Mr. EDWARDS. Again, I am having a little trouble hearing you. If the
Senator said that the separation under our legislation between the
contract causes of action, which have traditionally been considered
ERISA causes of action, go to Federal court and in the case of the
medically reviewable decision cases go to State court, that would be
accurate.
Mr. SPECTER. The concern I have, having gotten an understanding on
the applicability of the statute, which the Senator and I are in
agreement with, is, how is it going to work? I characterized it, while
the Senator was off the floor, as a procedural quagmire.
If you have a case--and I cited a couple of them--where a child is
born, and the mother has an HMO which encourages release from the
hospital within 12 hours, and the child, unfortunately, dies--and I
cited a specific case--and then you have a series of claims which were
brought by the plaintiff and one of the claims involves interpretation
of the contract, is that care covered by the contract?
Then if there are other claims for negligence on the part of the
doctor or hospital, that would then fall under the amendment of the
Senator from North Carolina under State court jurisdiction.
I cited another case where you had a woman who was suicidal, she was
released from the hospital, the doctor wanted to put her back in, and
the HMO wouldn't let him do that. She committed suicide. A suit was
brought and the HMO defended it on the ground that it wasn't covered.
That went from the Federal court. They dealt with the exclusive
preemption under 502. But the aspect of ``quality of care'' is a State
court action. You have perpetuated that.
It is very difficult, obviously, to move totally away from Federal
jurisdiction under ERISA on the interpretation of the contract because
there is so much law on the subject. I know my colleague will agree
with me on that generalization.
What happens when you have the suicide? The mother of the infant is
released from the hospital within 24 hours, and the claims are made.
They are essentially the same claims. They are claiming that they are
covered under the contract. They are claiming personal injuries, loss
of earning potential, or for the woman who has committed suicide, loss
of earnings, loss of consortium, the whole range.
Having litigated some of these cases, you more recently than I. But
the essential claims are going to be the same: Personal injuries for
both the claim for coverage and ``quantity of care" as opposed to the
claim for ``quality of care'' or malpractice.
So how is it going to be resolved with two separate courts, Federal
court having jurisdiction over ``quantity,'' and State court having
jurisdiction over ``quality?''
Mr. EDWARDS. I think----
The PRESIDING OFFICER. The Chair reminds Members to address each
other in the third person and to address the questions through the
Chair.
Mr. SPECTER. Nunc pro tunc.
Mr. EDWARDS. I would answer the Senator's question by saying that
under the examples given, if I understood them correctly, most of those
examples would involve interpretation of contract language in the
context of a medically reviewable fact.
So I believe under our legislation those, in fact, go to State court.
I say to my colleague, if there is any medical fact interpretation
involved, I believe those cases go to State court. So I think under the
examples given, all of the cases would end up in State court.
Having said that, though, in fairness to the Senator, I can imagine
circumstances--I don't think the Senator's examples meet it--where
there could be a medically reviewable decision which would go to State
court and also there could be a claim that the contract was breached
separate and apart from that, which I think is the issue the Senator is
raising.
Mr. SPECTER. Madam President, I would accept the modification by my
colleague from North Carolina. I think the citation I gave has a
contract claim. But rather than disagree about that, since the Senator
from North Carolina acknowledges there could be some cases, I will take
another case whereas the Senator from North Carolina says there could
be that kind of distinction.
I ask the Senator, through the Presiding Officer, then in your bill
what do you do in that situation where you have the Federal court
controlling--in the language of the statutes--``whether an item or
service is covered under the terms and conditions of the plan or
coverage'' and other aspects of the same set of facts are covered under
medically reviewable factors?
Mr. GREGG. Madam President, will the Senator yield for a question?
Mr. SPECTER. I would be glad to yield as soon as I get this answer.
Mr. GREGG. It is just a technical question. The answer might be
better if he has time to think about it.
Mr. SPECTER. Well, it is too late now to retain the continuity
without yielding, so I do yield.
Mr. GREGG. I thank the Senator and apologize for breaking the
continuity. I
[[Page S7051]]
think building the record on this issue is very important.
We are trying to get a sense of the situation, so we can tell our
membership what they are going to be doing this evening. After your
amendment is completed, we will have three votes lined up. I wonder if
we could agree that we would begin the vote on those amendments at
sometime around 6:45.
Mr. SPECTER. Madam President, I am not able to specify when because
the Senator from North Carolina and I are in the midst of what I
consider to be an important colloquy. But I will try to keep it as
brief as possible.
Mr. GREGG. I thank the Senator.
Mr. SPECTER. The question, Madam President, that I ask the
distinguished Senator from North Carolina is, in taking his conclusion
that there are some cases which would involve contract interpretation,
and the same case would involve a medical malpractice determination,
what do you do when the contract interpretation has jurisdiction in the
Federal court and the medical malpractice has jurisdiction in the State
court?
Mr. EDWARDS. Madam President, I would say, in answering my
colleague's question, that in fact I am having difficulty imagining a
case right now. The vast majority of cases similar to what we have just
been discussing would fall within the category of a contract
interpretation involving a medically reviewable fact. So I think, at
least of all the examples that occur to me as I stand here, those cases
would all end up in State court.
As the Senator and I have spoken about on a number of occasions, he
has a concern--and I understand it--about the possibility of there
being some confusion about which cases go to State court and which
cases go to Federal court. We think we have defined that fairly well in
our bill.
I might add, in response to the Senator's question, that there is a
principle involved in this which we have not discussed, which is that
physicians, hospitals, and health care providers believe--and I agree
with them--if an HMO is going to overrule their decision and engage in
the practice of medicine, they ought to be treated the same way they
are treated.
As the Senator knows, their cases are normally handled in State
courts. So I think conceptually we start with the principle that HMOs
should be treated the same as other health care providers when they
make medical decisions.
No. 2, I say to my colleague that what we are doing is taking a
Federal protection curtain that was unintended for HMOs when it was
passed--because they basically did not exist--and lifting it. The
effect of lifting it is they become subject to State court law.
So I think it is consistent in that respect. As the Senator and I
have talked about before, it is also consistent with the fundamental
concept that HMOs, if they are going to engage in the practice of
medicine, ought to be treated as other health care providers.
I yield back to my colleague.
Mr. SPECTER. Madam President, I agree completely with my colleague
from North Carolina that when HMOs engage in the practice of medicine,
they ought to be treated like physicians.
But coming back to the distinction in the Edwards bill, which does
have a provision on coverage as distinguished from medically reviewable
decisions, there are two thoughts which occur to me. You have a whole
body of case law--dozens of cases--which have wrestled with factual
situations on coverage, whether a plan covered the specific item: The
infant in the hospital for 24 hours; or the woman who was suicidal,
whether the plan covered further hospitalization for her. And then
those cases also involve counts on medical malpractice, on ``quality.''
So it seems to me it is very hard for my colleague from North
Carolina to argue that it is not a commonplace occurrence to have
specific cases arise where under his bill they would go to different
courts. And then the express language of the Edwards bill has a
delineation between medically reviewable decisions on malpractice and a
category--``whether an item or service is covered under the terms and
conditions of the plan or coverage.''
So I would direct perhaps only two more questions to my colleague
from North Carolina--and I say perhaps.
The first question is--and I address this question through the
Chair--isn't it conclusive where the Edwards bill has language which
distinguishes ``whether an item or service is covered under the terms
and conditions of the plan or coverage,'' as distinguished from
medically reviewable decisions, that the Edwards bill contemplates
these two categories, which under the Edwards bill are going to go to
two different courts?
Mr. EDWARDS. Again, if I correctly understand the Senator's
question----
Mr. SPECTER. I can understand the difficulty, Madam President, when
people are whispering to him all the time. That is why I keep my people
off the floor.
Mr. EDWARDS. I am trying very hard to listen to the Senator.
Madam President, if I may respond to the Senator's question, the
answer to the question is: I really think there is a fundamental
question that the Senator and I may have some disagreement about, which
is contract interpretations that involve medically reviewable facts
under our legislation go to State court. I believe that all of the
examples the Senator has mentioned and all the examples I can think of
would fall in that category.
Specifically as related to his concern about the possibility of there
being two separate courts with jurisdiction, I think, in fact, that is
not only highly unlikely but I can't think of a fact situation, as I
stand here now, that would meet that criteria.
What we have done is to have a principle, and we have designed this
bill around that principle. The Senator knows very well that this is
the principle that was discussed in the Pegram case, a U.S. Supreme
Court case, principle supported by the State attorneys general, the
American Bar Association, this separation. It is a concept that makes
sense in this context.
No legislation is perfect. We certainly can't eliminate the
possibility that there may be in a hypothetical case some joint
jurisdiction, but I can't think of such an example.
Mr. SPECTER. Madam President, I will direct this question to my
colleague from North Carolina: How do you account for the many, many
cases which have been litigated distinguishing between contract
coverage, where really the language in the Edwards bill ``whether an
item for service is covered under the terms and conditions of the
plan,'' and a medically reviewable decision, where so many courts on so
many cases labored with those distinctions, if, in fact, there aren't
many cases where they are going to end up in different courts under the
Edwards bill?
Mr. EDWARDS. Madam President, if I may respond to the Senator's
question briefly, I believe it is because we have created a presumption
that if the contract interpretation involves a medically reviewable
fact, which is going to be the vast majority of cases--all the cases I
can think of, as I stand here--those cases go to State court.
Those are the kinds of cases to which I believe the Senator is
referring. I don't think the problem the Senator is addressing is one
that is likely to occur in real life. We have specifically dealt with
the issue of when there is a question, if it involves a medically
reviewable fact, those cases go to State court.
Mr. SPECTER. Madam President, if it is unlikely, even with the
brilliance and conceptual imagination of the Senator from North
Carolina--he can't think of one--to occur in real life, why put this
jurisdictional provision in the bill?
Mr. EDWARDS. Because there are two separate categories, if I may
answer the Senator's question. There are two potential causes of
action. If it involves any issue relating to medical care, specific
medical fact, those cases go to State court. We treat the HMOs just as
the doctor because they are engaging in the practice of medicine. If,
on the other hand, the issue is one of were they covered for 60 days as
the contract provided, do they meet some other specific contractual
requirement, those are purely contractual issues that have been decided
in Federal court for many years under ERISA. So we left those cases
where they have traditionally been decided, which I think is the
appropriate place to leave them.
Mr. SPECTER. Madam President, if you do have those contract
decisions, isn't it entirely possible that there may be a factual
situation arise where there is a matter of malpractice or a medically
reviewable decision involved in the same occurrence?
[[Page S7052]]
Mr. EDWARDS. I would answer my colleague's question exactly the way I
have before, which is, absent a presumption in our bill that if there
is an involvement of a medically reviewable fact, I think the Senator's
concern would be one that I would share. But we have dealt with that
issue by specifically saying where the contract interpretation involves
a medically reviewable fact, those cases go to State court. Those, in
my experience and in my judgment, I believe will be the same cases that
the Senator is describing as cases, I think he used the term, of
medical malpractice.
Mr. SPECTER. Madam President, as they say in Oklahoma, we have gone
about as far as we can go on this colloquy. I would advise the managers
of the bill that I will be prepared to conclude my argument by 6:45.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. GREGG. Madam President, I ask unanimous consent that if the other
side does not require any additional debate, we begin the votes on the
three pending amendments, which would be, in order, the Snowe
amendment, the Enzi amendment, and the Specter amendment, beginning at
6:45.
The PRESIDING OFFICER. Is there objection?
Mr. REID. Madam President, reserving the right to object, we need
Senator Snowe to have 10 minutes, and she needs to offer a
modification.
Mr. GREGG. We also need to have 2 minutes on Senator Enzi's amendment
prior to his vote. So we would have 10 minutes prior to the Snowe
amendment and 2 minutes prior to the Enzi amendment. And Senator Snowe
would have the right to modify her amendment.
Mr. REID. I accept that as a unanimous consent agreement in line with
what we previously offered except for the time.
Mr. GREGG. I would have to add that it is my understanding Senator
Enzi may divide the question on his amendment. That is his right, as I
understand it; is that correct?
The PRESIDING OFFICER. The Senator is correct.
Mr. REID. If the Senator desires to divide his amendment, he may do
so.
The PRESIDING OFFICER. Does the Senator wish the 10 minutes dedicated
to Senator Snowe to start at 6:45 or to begin now?
Mr. GREGG. It should begin prior to the vote.
Mr. REID. We are going to vote on the Specter amendment at 6:45.
Mr. GREGG. We are going to vote on the Specter amendment.
Mr. REID. At 6:45.
Mr. GREGG. We are going to vote on Snowe and then Enzi and then
Specter.
Mr. REID. We do need Senator Snowe here.
Mr. GREGG. She will be here. So 10 minutes on the Snowe amendment
would begin at 6:45.
Mr. REID. Or when she arrives.
Mr. GREGG. Or when she arrives. And the votes would begin thereafter.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Madam President, these are on or in relation to the
amendments as per the previous oral agreement?
Mr. GREGG. Right.
Mr. REID. I thank the Chair. The Senator from Pennsylvania has the
floor.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Madam President, I believe the colloquies with the
Senator from Massachusetts and the Senator from North Carolina have
made my point. That point is that there is jurisdiction created under
the McCain-Edwards-Kennedy bill in two courts. There really is no doubt
about that because section 302 provides for the availability of Federal
civil remedies, and that covers whether an item of service is covered
under the terms and plans and conditions, and later there are medically
reviewable decisions in State courts.
Although there can be an inconclusive colloquy, as there is no
confession or admission on the floor of the U.S. Senate, I think it is
pretty plain that there are cases--and I have cited a whole series of
specific cases in my presentation, Bauman, Pryzbowski, Lazorko, and
Corcoran--where you had factual situations where you have an
interpretation of a plan which would come under Federal jurisdiction--
such as the mother's stay covered for more than 24 hours, the suicidal
woman's coverage extended for hospitalization under that circumstance--
then a combination of failure to have a plan coverage and also medical
malpractice. And you have both claims brought.
And under the McCain-Kennedy-Edwards bill, it is plain that those two
claims would be brought in separate courts beyond any question. It is
not a matter of what the distinguished Senator can imagine. You have
case after case which have had these interpretations, contract
interpretation and ``quantity of care,'' and that goes to the Federal
court. And then you have ``quality of care,'' and that goes to the
State court.
I am not unaware of the realities of votes in this Chamber where a
coalition has been formed, and there is a mindset. But I do hope that
the managers of this bill will revisit this situation after this vote
and when the bill goes to conference because having both these courts
available is going to double the burden on plaintiffs who are injured--
to make a contract interpretation claim in the Federal court and to go
to the State court to make a medical malpractice claim--and it is going
to require double expenses by the HMO, by the doctors, and by the
hospitals--although you might have the doctors and hospitals eliminated
from the Federal litigation, but the HMOs will certainly be there; and
that is highly undesirable.
I have a grave concern about the speed of passage of this bill. Now,
it is true we have been considering the Patients' Bill of Rights for a
long time--many years. Too long. But this bill has come to the floor
without the benefit of committee action, without the benefit of a
markup; and what there has been is sort of a moving target markup of
this bill on the floor by the committee of the whole, as we have gone
through many amendments. But it simply cannot be denied that there are
two sections of this bill, one conferring Federal jurisdiction and one
conferring State jurisdiction, and the same factual situation would
raise questions under both court systems, and this bill would require
litigation in two courts.
That is very wasteful and very confusing. To call it a procedural
quagmire is not an overstatement. The answer is fundamental, and that
is to provide for exclusive Federal court jurisdiction, which I have in
this legislation. You might argue that it could go to the State court
and that would be an improvement rather than have both State and
Federal courts. But it is very hard to move exclusively to the State
courts where you have the long body of law built up under ERISA as to
what is a plan's coverage. So given the fact that you are going to
inevitably end up in the Federal court, the Federal court ought to be
exclusive jurisdiction. And as the amendment provides, the damages will
be determined by State law, no new Federal caps, but whatever State
caps there were would be in effect.
I see my colleague from Illinois on the floor. He commented to me
that he agreed with the provision that there ought to be unitary
jurisdiction, but thought it ought to be in the State court. I will
yield to the Senator from Illinois if he cares to use the limited time
remaining.
The PRESIDING OFFICER. The Senator from Illinois is recognized.
Mr. FITZGERALD. Madam President, I did want to, in part, agree with
my colleague from Pennsylvania. I think he has identified an important
problem that exists in the underlying bill. I have long favored
creating liability for HMOs that harm someone because of their
negligence. Right now, HMOs are protected. They are immune from
liability, and that is a protection that almost no other individual or
corporation has in this country, and I don't think it is defensible.
For the last 2 years, I have been voting regularly to make HMOs
liable where they have been negligent. But I do think we have a problem
in this bill in that we create State court tort liability by repealing
the ERISA immunity in one part of the bill. That is on page 157, I
believe. But then, at the same time, we create also tort liability, as
well as more contract liability, and there already is contract
liability under ERISA in Federal court.
The problem I see is that there are tort causes of action authorized
in this
[[Page S7053]]
bill both in State court and in Federal court. I have always thought
the playing field was tilted in favor of HMOs, and that playing field
needs to be leveled. But I am concerned now that if this effect in the
underlying bill is not remedied, the playing field will be tilted in
the opposite direction.
The PRESIDING OFFICER. The hour of 6:45 having arrived, under the
previous order, the Senator from Maine is to be recognized.
Amendment No. 834, As Modified
Ms. SNOWE. Madam President, I ask unanimous consent to modify the
amendment that has been offered by Senator DeWine, Senator Lincoln, and
Senator Nelson and send a modification to the desk.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered. The amendment is so modified.
The amendment (No. 834), as modified, is as follows:
(Purpose: To make technical corrections concerning the application of
Federal causes of action to certain plans)
On page 2 of the amendment, between lines 9 and 10, insert
the following:
``On page 144, lines 7 and 8, strike `or under part 6 or
7'.''.
On page 3 of the amendment, strike line 14 and all that
follows through line 21 and insert the following:
``(ii) Definition.--A group health plan described in this
clause is--
``(I) a group health plan that is self-insured and self
administered by an employer (including an employee of such an
employer acting within the scope of employment); or
``(II) a multiemployer plan as defined in section 3(37)(A)
(including an employee of a contributing employer or of the
plan, or a fiduciary of the plan, acting within the scope of
employment or fiduciary responsibility) that is self-insured
and self-administered.
On page 11 of the amendment, line 16, insert after the
period the following: ``The provisions of this paragraph
shall not apply in the case of a designated decisionmaker
that is a group health plan, plan sponsor, or health
insurance issuer and that is regulated under Federal law or a
State financial solvency law.''.
Ms. SNOWE. Madam President, it is modified in the following way.
First of all, the question was raised about the original intent of the
amendment in regard to the self-insured, self-administered plans.
Specifically, with regard to contractual dispute, it will only exempt
from liability employer and union plans that are self-insured and self-
regulated, again applying symmetry to all of the plans regarding self-
insured and self-administered, so we do not make any exceptions. So we
address that by modifying it to ensure that both employer and union
plans are consistent with the legislation.
Secondly, because insurance plans are already regulated at State and
Federal level with regard to assets and other issues, we assure that
these regulated plans are not subject to a new Federal solvency plan to
qualify as a designated decisionmaker. As a result, the solvency
standard in this amendment will appropriately apply to nonhealth
insurance designated decisionmakers.
Finally, we also make a technical correction in the legislation to
ensure that the causes of action are not inadvertently opened to other
statutes that are already a matter of law. This change reflects the
intent of our amendment to prevent the filing of lawsuits in a broader,
more undefined number of issues.
I urge adoption of the modification as well as the underlying
amendment.
Again, I remind my colleagues that this was an effort to address many
of the legitimate issues that were raised regarding employer liability.
It was a consensus that was drafted along with my colleague from Ohio,
Senator DeWine, Senator Lincoln, and Senator Nelson. I also thank
Senator McCain, Senator Kennedy, Senator Edwards, as well as Senator
Gregg and Senator Frist, for working together to make this amendment
possible. We thought it essential that we develop precise and clear
guidelines in terms of how we establish employer liability but at the
same time protecting patients' rights with their ability to seek legal
redress when there is inappropriate care or denial of care.
We think we have developed and crafted the amendment in a way that
creates the bright line and the firewall so that we do provide the
necessary protection to employers, so that we limit and, in fact, in
most instances I think prevent any exposure to liability. They can
confer that liability and risk to the designated decisionmakers and
therefore they will have that kind of liability protection, and
patients will have their ability to be able to sue in those instances
where they have been denied care or there has been wrongful injury,
personal injury, or even death.
I think it strikes the right balance. The consensus represents the
optimum approach to providing the kind of basis for removing an
employer's exposure to litigation when they are not directly
participating in medical decisions.
We hope this will satisfy the concerns that have been raised by the
original legislation. We think we crafted the best approach, borrowing
both from the McCain-Edwards-McCain legislation as well as the Breaux-
Frist-Jeffords approach.
Again, I urge adoption of this amendment, as modified, and I ask for
the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
Mr. BAUCUS. Mr. President, I am proud to cosponsor amendment No. 834
with Senator Snowe and my other colleagues. It addresses an issue
important to all of us here--protecting employers from undue liability.
This amendment clarifies any confusion about who is responsible for
medical decision-making.
Under this amendment, employers who generally do not make medical
decisions anyway--will be able to name a designated decision maker. If
they contract with an insurance company, that company is automatically
given the status of designated decision maker. The employer doesn't
have to take any further action.
Once designated, this entity will have the authority to make medical
decisions. And with this authority, the designated decision maker--not
the employer--will have the responsibility for those decisions if they
result in harm to the patient.
I believe this amendment serves as an important compromise. It
enables employers to feel more comfortable offering their employees
health benefits. And that's certainly something we want to encourage.
But it also protects patients, and ensures that they receive all the
protections provided under the Patients' Bill of Rights.
Mr. GREGG. Madam President, I understand the Parliamentarian has
ruled that I have 5 minutes.
The PRESIDING OFFICER. There is 5 minutes in opposition.
Mr. GREGG. Madam President, unless somebody else is seeking that
time, I will speak. I congratulate the Senator from Maine and the
Senator from Ohio for adjusting this amendment. The changes they made
in this amendment are very positive. The amendment moves in the right
direction.
However, it must be made clear this amendment targets one narrow
aspect of the concerns of this bill, and, in fact, there are still some
issues in that aspect. Specifically, employers are going to have a very
difficult problem figuring out whether they are a direct participant or
whether they fall under the designated decisionmaker safe harbor.
There are issues within this narrow issue that are very significant.
The greater issues on the question of liability still remain very
viable. It is of serious concern to those of us who look at this as
extremely expensive legislation in the sense it will drive up health
care costs and result in a lot of people losing their health insurance.
Employers will drop the health insurance because of the liability
aspects being thrown at employers in this bill and the costs employers
simply are not going to bear. They will drop health insurance or reduce
the quality of health insurance.
The estimates of CBO are in the range of 3.1 million, and OMB
estimates are in the range of 1 million to 4 million people will lose
health care. I think it will be literally tens of millions of people
who will see the quality of their health care insurance degraded as
their employers start to adjust.
As to this specific amendment, which is a narrow amendment, not an
expansive amendment, the movement by the Senators from Maine and Ohio
is to be congratulated. I thank them for it.
[[Page S7054]]
I yield back my time, and I yield the floor.
The PRESIDING OFFICER. Time is yielded back. The question is on
agreeing to amendment No. 834, as modified. The yeas and nays have been
ordered. The clerk will call the roll.
The bill clerk called the roll.
The result was announced--yeas 96, nays 4, as follows:
[Rollcall Vote No. 205 Leg.]
YEAS--96
Akaka
Allard
Allen
Baucus
Bayh
Bennett
Biden
Bingaman
Bond
Boxer
Breaux
Brownback
Bunning
Burns
Byrd
Campbell
Cantwell
Carnahan
Carper
Chafee
Cleland
Clinton
Cochran
Collins
Conrad
Corzine
Craig
Crapo
Daschle
Dayton
DeWine
Dodd
Domenici
Dorgan
Durbin
Edwards
Ensign
Enzi
Feingold
Feinstein
Fitzgerald
Frist
Graham
Gramm
Gregg
Hagel
Harkin
Hatch
Helms
Hutchinson
Hutchison
Inhofe
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Kyl
Landrieu
Leahy
Levin
Lieberman
Lincoln
Lott
Lugar
McCain
McConnell
Mikulski
Miller
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Reed
Reid
Roberts
Rockefeller
Santorum
Sarbanes
Schumer
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stabenow
Stevens
Thomas
Thurmond
Torricelli
Voinovich
Warner
Wellstone
Wyden
NAYS--4
Grassley
Hollings
Nickles
Thompson
The amendment (No. 834), as modified, was agreed to.
Mr. GREGG. Madam President, I move to reconsider the vote.
Mr. REID. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER (Ms. Stabenow). There are now 2 minutes equally
divided on the Enzi amendment.
The Senator from Wyoming is recognized.
Amendment No. 840
Mr. ENZI. Madam President, under the amendment we just agreed to, we
made some progress on handling liability. But there is a group of
businesses that were left out. You will never hear me in this Chamber
talk about big businesses. I always talk about the small ones. None of
these is headquartered in Wyoming. But I am compelled to put in an
amendment that will take care of a major problem which will take care
of health care at the level they know it for 6 million people in the
U.S. who work for the big, self-insured, self-administered companies,
such as Hewlett-Packard, Caterpillar, Wal-Mart, and Pitney Bowes. None
of those is in my State.
This provides an option to allow one of two ways of providing
insurance to their people so individuals can get the right to sue if
they want that right or they can stay with the plan which they
presently get all the benefits from without any difficulty. This
provides that option for them.
This is providing an option so that the company can avoid liability
by providing a liability option for their people.
I ask for your support on this amendment to clear up what the people
in your State need.
I also believe it is my right to divide the amendment on page 3, line
18.
The PRESIDING OFFICER. The amendment is so divided.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Madam President, let me just mention what this amendment
is all about.
If an employer gives options to any employee, it can offer a program
that is very inferior or it can provide a voucher that is inferior. You
can't buy a good health insurance policy. If it offers those two
options to any employee, and that employee denies it, then the employee
who stays with that company is virtually excluded from bringing any
action against the employer, no matter how involved the employer is in
making medical decisions that can cause adverse reaction to that
employee--either death or injury.
That is a lousy choice. This is an option many companies will take.
It will be at the expense of the employees. They can get two inferior
options. If they reject it and stay with the company, they are excluded
from the benefits and the protections of this bill. It is going to open
up a great exclusion for millions of hard-working Americans and their
families. It should be rejected.
Mr. ENZI. Madam President, I ask for the yeas and nays.
The PRESIDING OFFICER. The yeas and nays have already been ordered.
The question occurs on division I.
The Senator from Nevada.
Mr. REID. Madam President, I move to table the whole amendment, and I
ask for the yeas and nays.
The PRESIDING OFFICER. The yeas and nays have been ordered.
Mr. GREGG. Madam President, parliamentary inquiry: As I understand
it, the question was divided. Is this a motion to table on the first
part?
Mr. REID. Yes. That is true.
The PRESIDING OFFICER. That is correct.
Mr. GREGG. I thank the Chair.
The PRESIDING OFFICER. The question is on the motion to table
division I.
The yeas and nays have been ordered, and the clerk will call the
roll.
The assistant legislative clerk called the roll.
The result was announced--yeas 55, nays 45, as follows:
[Rollcall Vote No. 206 Leg.]
YEAS--55
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Breaux
Byrd
Cantwell
Carnahan
Carper
Chafee
Cleland
Clinton
Conrad
Corzine
Daschle
Dayton
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
Specter
Stabenow
Torricelli
Wellstone
Wyden
NAYS --- 45
Allard
Allen
Bennett
Bond
Brownback
Bunning
Burns
Campbell
Cochran
Collins
Craig
Crapo
DeWine
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)
Snowe
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
The motion was agreed to.
Mr. KENNEDY. Madam President, I move to reconsider the vote.
Mr. REID. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 840 Division II Withdrawn
The PRESIDING OFFICER. The Senator from Wyoming.
Mr. ENZI. Madam President, I ask unanimous consent to withdraw
division II of the amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
The majority leader.
Mr. DASCHLE. Madam President, I announce to our colleagues that this
will be the last vote of the evening. We will begin voting tomorrow
morning at 9 o'clock on a series of votes on amendments that will be
offered this evening. There is one more vote, but after that there will
be no more notes.
Amendment No. 844
The PRESIDING OFFICER. There are 2 minutes now evenly divided on the
Specter amendment.
Who yields time? Who seeks time?
The Senator from Pennsylvania.
Mr. SPECTER. Madam President, this amendment provides for exclusive
jurisdiction in the Federal courts. Under the bill, there would be
jurisdiction in the Federal courts for interpretation of the contract's
coverage or what is referred to as ``quantity of medical care'', and
jurisdiction in the State courts for what is called medical malpractice
or ``quality of care.'' That means that for a plaintiff to bring a
claim, they would have to go into two courts, enormously more
expensive, and it would involve removal to the Federal courts and
bouncing back and forth.
This amendment gives due deference to the States by using any State
caps which are in effect and provides for State law on the computation
of damages. With the life tenure of Federal
[[Page S7055]]
judges, the probability is high that the verdicts will be more
realistic and more reasonable than we have seen in some of the State
courts.
In the colloquies with the managers of the bill, it is obvious that
there are many of these cases which involve both ``quantity'' and
``quality.'' During the floor presentation, I went over a number of
cases where they bounced back and forth.
I urge adoption of this amendment.
The PRESIDING OFFICER. The Senator from North Carolina.
Mr. EDWARDS. Madam President, I have great respect for my colleague's
expertise in this area. I appreciate very much his work. He and I have
talked about this a number of times. The problem is that this amendment
violates a fundamental principle on which we have based this entire
legislation. That is, when HMOs and health insurance companies make
medical decisions and overrule doctors, they should be treated exactly
the same way doctors are treated. That is the reason our bill sends
these cases to State court. It is the reason this is so critical for
the AMA and medical groups all over this country.
They want the HMOs, if they are going to be in the business of
overruling doctors' decisions, to be treated exactly the same as
doctors and exactly the same as other health care providers.
For that reason, I reluctantly must oppose this amendment.
The PRESIDING OFFICER. The question is on agreeing to amendment No.
844.
Mr. SPECTER. Madam President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second. The clerk will call the roll.
The legislative clerk called the roll.
The result was announced--yeas 42, nays 58, as follows:
[Rollcall Vote No. 207 Leg.]
YEAS--42
Allard
Allen
Bennett
Bond
Brownback
Bunning
Burns
Campbell
Cochran
Collins
Craig
Crapo
DeWine
Domenici
Ensign
Frist
Gramm
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Inhofe
Kyl
Lott
Lugar
McConnell
Murkowski
Nickles
Roberts
Santorum
Sessions
Smith (NH)
Smith (OR)
Specter
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
NAYS--58
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Breaux
Byrd
Cantwell
Carnahan
Carper
Chafee
Cleland
Clinton
Conrad
Corzine
Daschle
Dayton
Dodd
Dorgan
Durbin
Edwards
Enzi
Feingold
Feinstein
Fitzgerald
Graham
Harkin
Hollings
Hutchison
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Landrieu
Leahy
Levin
Lieberman
Lincoln
McCain
Mikulski
Miller
Murray
Nelson (FL)
Nelson (NE)
Reed
Reid
Rockefeller
Sarbanes
Schumer
Shelby
Snowe
Stabenow
Torricelli
Wellstone
Wyden
The amendment (No. 844) was rejected.
Mr. KENNEDY. I move to reconsider the vote.
Mr. SANTORUM. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
(Mr. DURBIN assumed the chair.)
Mr. KENNEDY. Mr. President, in just a few moments, I believe there
will be a consent request by the minority floor leader to outline a
series of amendments to consider and outline the order in which to take
them up this evening, with disposition of those on the morrow.
It is not the intention, as we have gone through amendments, to
second degree them. We are not prepared to say that until we have an
opportunity to see those amendments. We are trying to work through the
amendments at the present time. I hope perhaps we can get started on
the discussion, and then in a few moments time when we have a chance to
see each of the amendments, we can come back with the leadership
proposal for an agreement on time and order this evening.
Mr. GREGG. Mr. President, we are ready to enter into an agreement
relative to time and reserve the issue of second-degree amendments
until the Democratic leader has had the opportunity to review the
amendments. If we can get times locked in, that will be very helpful.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Mr. President, parliamentary inquiry: Does the Senator
from Virginia have an amendment pending at the desk?
The PRESIDING OFFICER. The Senator is correct.
Amendment No. 833, As Modified
Mr. WARNER. Mr. President, I send to the desk a modification to that
amendment.
The PRESIDING OFFICER. The amendment is so modified.
The amendment (No. 833), as modified, is as follows:
On page 154, between lines 2 and 3, insert the following:
``(11) Limitation on attorneys' fees.--
``(A) In general.--Notwithstanding any other provision of
law, or any arrangement, agreement, or contract regarding an
attorney's fee, the amount of an attorney's contingency fee
allowable for a cause of action brought pursuant to this
subsection shall not exceed \1/3\ of the total amount of the
plaintiff's recovery (not including the reimbursement of
actual out-of-pocket expenses of the attorney).
``(B) Determination by district court.--The last Federal
district court in which the action was pending upon the final
disposition, including all appeals, of the action shall have
jurisdiction to review the attorney's fee in accordance with
subparagraph (C) to ensure that the fee is a reasonable one
and may decrease the amount of the fee in accordance with
subparagraph (C).
``(C) Determination of reasonableness of fee.--
``(i) Initial determination of lodestar estimate.--
``(I) In general.--To determine whether the attorney's fee
is a reasonable one, the court first shall, with respect to
each attorney representing the plaintiff in the cause of
action, multiply the number of hours determined under
subclause (II) by the hourly rate determined under subclause
(III).
``(II) Number of hours.--The court shall determine the
number of hours reasonably expended by each such attorney.
``(III) Hourly rate.--The court shall determine a
reasonable hourly rate for each such attorney, taking into
consideration the actual fee that would be charged by each
such attorney and what the court determines is the prevailing
rate for other similarly situated attorneys.
``(ii) Consideration of other factors.--A court may
increase or decrease the product determined under clause (i)
by taking into consideration any or all of the following
factors:
``(I) The time and labor involved.
``(II) The novelty and difficulty of the questions
involved.
``(III) The skill required to perform the legal service
properly.
``(IV) The preclusion of other employment of the attorney
due to the acceptance of the case.
``(V) The customary fee of the attorney.
``(VI) Whether the original fee arrangement is a fixed or
contingent fee arrangement.
``(VII) The time limitations imposed by the attorney's
client on the circumstances of the representation.
``(VIII) The amount of damages sought in the cause of
action and the amount recovered.
``(IX) The experience, reputation, and ability of the
attorney.
``(X) The undesirability of the case.
``(XI) The nature and length of the attorney's professional
relationship with the client.
``(XII) The amounts recovered and attorneys' fees awarded
in similar cases.
On page 170, between lines 21 and 22, insert the following:
``(9) Limitation on attorneys' fees.--
``(A) In general.--Notwithstanding any other provision of
law, or any arrangement, agreement, or contract regarding an
attorney's fee, subject to subparagraphs (C) and (D), the
amount of an attorney's contingency fee allowable for a cause
of action brought under paragraph (1) shall not exceed \1/3\
of the total amount of the plaintiff's recovery (not
including the reimbursement of actual out-of-pocket expenses
of the attorney).
``(B) Determination by court.--The last court in which the
action was pending upon the final disposition, including all
appeals, of the action may review the attorney's fee to
ensure that the fee is a reasonable one. In determining
whether a fee is reasonable, the court may use the
reasonableness factors set forth in section 502(n)(11)(C).
``(C) Equitable discretion.--A court in its discretion may
decrease the amount of an attorney's fee determined under
this paragraph as equity and the interests of justice may
require.
``(D) No preemption of stricter state law.--Subparagraph
(A) shall not apply with respect to a cause of action under
paragraph (1) that is brought in a State that has a more
restrictive law with respect to the amount of an attorney's
contingency fee that may be incurred for the representation
of a participant or beneficiary (or the estate of such
participant or beneficiary) who brings such a
[[Page S7056]]
cause of action than the limitation on such fee under
subparagraph (A).''
Mr. WARNER. I ask for the yeas and nays on the amendment, as
modified.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
Mr. WARNER. Mr. President, it will be voted on whenever the managers
desire.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. GREGG. Mr. President, I ask unanimous consent that the following
Members be recognized this evening: Senator DeWine, 15 minutes, with
the time equally divided, on class actions; Senator Grassley for 30
minutes, with the time equally divided, on customs fees and other
matters; Senator Santorum for 30 minutes, with the time equally
divided, on the Born Alive Infant Protection Act; Senator Brownback, 1
hour equally divided on a germline genetic amendment.
Mrs. BOXER. I ask my friend to repeat the Santorum amendment.
Mr. GREGG. Born Alive Infant Protection Act.
Mrs. BOXER. The Born Alive Equal Protection----
Mr. GREGG. Born Alive Infant Protection Act.
I presume it passed the House.
Mr. KENNEDY. On that there will be an objection to a time limit.
The PRESIDING OFFICER. Objection is heard.
Mr. GREGG. Why don't we begin with the DeWine amendment for 15
minutes, followed by the Grassley amendment for 30 minutes, and we will
work on the rest.
The PRESIDING OFFICER. Is there objection?
Mr. KENNEDY. Reserving the right to object, and I do not intend to
object, I appreciate what the Senator from New Hampshire is attempting
to do. We have every inclination to support that proposal up to this
point, but we reserve possible second-degree amendments and a tabling
motion. We do not intend at this time to exercise those until we see
the amendments, but we are going to operate on a good faith measure.
We are thankful for the leadership of the Senator from New Hampshire
proceeding with those first two.
There are some others we might be able to get a time agreement on, as
well, if the Senator wants to mention them.
Mr. GREGG. Of course, at this time we cannot proceed past the
Santorum amendment until we get an agreement on that. At least I renew
my request subject to the reservations of the Senator from
Massachusetts, to which I have no objection.
The PRESIDING OFFICER. Is there objection to the unanimous consent
request, as modified, for consideration of the amendments of Senators
DeWine and Grassley?
Without objection, it is so ordered.
Amendment No. 842
(Purpose: To limit class actions to a single plan)
Mr. DeWINE. Mr. President, I have an amendment at the desk.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Ohio [Mr. DeWine] proposes an amendment
numbered 842.
Mr. DeWINE. Mr. President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 171, between lines 14 and 15, insert the following:
SEC. 303. LIMITATION ON CERTAIN CLASS ACTION LITIGATION.
(a) ERISA.--Section 502 of the Employee Retirement Income
Security Act of 1974 (29 U.S.C. 1132), as amended by section
302, is further amended by adding at the end the following:
``(o) Limitation on Class Action Litigation.--
``(1) In general.--Any claim or cause of action that is
maintained under this section in connection with a group
health plan, or health insurance coverage issued in
connection with a group health plan, as a class action,
derivative action, or as an action on behalf of any group of
2 or more claimants, may be maintained only if the class, the
derivative claimant, or the group of claimants is limited to
the participants or beneficiaries of a group health plan
established by only 1 plan sponsor. No action maintained by
such class, such derivative claimant, or such group of
claimants may be joined in the same proceeding with any
action maintained by another class, derivative claimant, or
group of claimants or consolidated for any purpose with any
other proceeding. In this paragraph, the terms `group health
plan' and `health insurance coverage' have the meanings given
such terms in section 733.''.
``(2) Effective date.--This subsection shall apply to all
civil actions that are filed on or after January 1, 2002.''.
(b) RICO.--Section 1964(c) of title 18, United States Code,
is amended--
(1) by inserting ``(1)'' after the subsection designation;
and
(2) by adding at the end the following:
``(2)(A) No private action may be brought under this
subsection, or alleging any violation of section 1962, where
the action seeks relief concerning the manner in which any
person has marketed, provided information concerning,
established, administered, or otherwise operated a group
health plan, or health insurance coverage in connection with
a group health plan. Any such action shall only be brought
under the Employee Retirement Income Security Act of 1974. In
this paragraph, the terms `group health plan' and `health
insurance issuer' shall have the meanings given such terms in
section 733 of the Employee Retirement Income Security Act of
1974.
``(B) Subparagraph (A) shall apply to private civil actions
that are filed on or after January 1, 2002.''.
Mr. DeWINE. Mr. President, I allowed the clerk to read because I
wanted my colleagues to hear the essence of the amendment. It is a very
simple amendment.
My amendment in a very rational way limits class action suits that
could be filed as a result of this bill. The goal of the patient
protection legislation under consideration, both the McCain-Kennedy
bill and the Frist-Breaux-Jeffords bill, is, of course, to protect
patients. We cannot be unmindful of the cost. Obviously, we have to be
concerned about the cost, and we have to worry if any parts of this
bill do in fact drive up the cost because ultimately this will impact
how many employers do in fact offer health insurance. It is something
with which we have to be concerned.
I believe my amendment offers a very simple way to curtail some of
these increased costs. The problem is that the underlying bill will
increase the cost of health care because the bill currently contains no
language to limit the scope of class action lawsuits. This very
possibility could lead to increases in the filing of onerous,
burdensome, costly class action suits.
My amendment ensures that class action lawsuits are used in a very
responsible way. I think my colleagues would agree that class actions
can be very effective and can be efficient and can be a valuable tool
to achieve justice.
As we also know, unfortunately, these suits sometimes are subject to
abuse. That is why I believe we need to limit the target of these class
actions. That is what our amendment does.
The reality is that our amendment is needed. Let me explain for a
moment what our amendment does and then talk about what it does not do.
Our amendment permits a class action to be filed with regard to the
HMO, in regard to a plan, as long as we are only dealing with one
company and the employees of that specific company. It says we cannot
go beyond that.
The reality is that within every company there exists unique
relationships between the company, the employees, and the health care
plans. Because of that, it is impossible to compare different companies
that happen to offer similar health care plans. The fact is that every
company negotiates every contract differently. There may be
similarities. Every situation is, obviously, different.
Now, at the same time, employees within the same company, with the
same health care plan, who suffer the same way as a result of being
denied entitled benefits, should have the right to band together to
form a class and to file suit. That is why our amendment would
recognize class actions within one company against one plan.
Our language essentially says this: One employer, one health care
plan, one class action suit. It is that simple.
Here is how our amendment works if adopted. Suppose Ford Motor
Company offers its employees the hypothetical Aetna Health Care Plan A.
General Motors has this plan. Assume, also, that Chrysler has the same
plan. Now, if employees at Ford have reason to band together in a class
action against Aetna because they all believe they suffered harm
because of the same denial in entitled benefits, they can go
[[Page S7057]]
ahead under our amendment and do that. Similarly, if employees at GM or
Chrysler also believe they have suffered as a result of denial of the
same benefits, GM and Chrysler employees can file their own class
actions against Aetna. But employees at Ford, GM, and Chrysler can't
join together in one suit against the health care provider.
This means class actions would be limited to employees within one
company against one health care plan. Ultimately, we need this because
abuse of class action lawsuits is not a road to assuring access to
quality health care. If we want the bill before the Senate not to add
unnecessary litigation and costs, I encourage my colleagues to adopt
this amendment.
I reserve the remainder of my time.
I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There is not a
sufficient second.
Mr. McCAIN. I repeat the request for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There is not a
sufficient second.
Mr. REID. If the Senator from Ohio wishes the yeas and nays, we would
be happy to give those to him with the agreement that we will vote
tomorrow.
Mr. DeWINE. I renew my request for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There is a
sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. Are Senators prepared to yield back time on
the amendment?
Mr. DeWINE. I believe we have an understanding to reserve several
minutes tomorrow morning for summation.
Mr. EDWARDS. Mr. President, there are a couple of issues--and I have
just seen this amendment--a couple of issues raised immediately.
One, the entire Patients' Bill of Rights is about treating everybody
the same. This, of course, carves out a special treatment for HMOs on
the issue of accountability.
Second, this amendment makes a special exception under RICO for HMOs
and under rules of procedure.
Third, it has been some time since I looked at the rules, I confess,
but I seem to recall under class action law, rule 23 of the Federal
Rules of Civil Procedure, there is a numerosity requirement, that you
have to have a sufficient number of employees involved to satisfy the
class action requirement, and I am not sure under the language the
Senator has drafted that would be possible because I believe, if I
understand the Senator's amendment correctly, he has limited it to one
employer for purposes of class actions.
Mr. DeWINE. Obviously, the amendment does not change what the rules
say as far as the number of people required for a class action. The
Senator is correct; it does limit it to one company.
Mr. EDWARDS. I thank the Senator for his answer.
There is at least a serious question about that and we would need to
go back and look. Under the Class Action Rules of Civil Procedure, it
is my recollection there is a numerosity requirement that means a class
has to be of sufficient size to be able to be certified as a class
action, and I am not certain, if you limit the actions to one employer,
that you don't effectively eliminate the possibility of a class action
because that requirement cannot be met.
I confess to the Senator, that is from memory, and I will have to go
back and look to be certain.
I have concerns about the fundamental question that the principle of
this legislation is that we treat HMOs, for accountability purposes, as
everyone else. And the notion of doing something specifically to
protect them from class actions and to limit class actions and to limit
the RICO statute is something that would violate that principle of
which I would want my colleagues to be aware.
I yield the floor.
The PRESIDING OFFICER. Do the Senators yield back time?
Mr. DeWINE. I inquire, how much time remains?
The PRESIDING OFFICER. The Senator has 2 minutes remaining.
Mr. DeWINE. I will respond to my colleague and I appreciate his
comments. He is closer to the courtroom in time than I am, and it has
been many years since I have practiced law.
What this comes down to is that we are creating new opportunities for
lawsuits, obviously, in this bill. What we are about is a balancing
test, a balancing question. It is a matter of public policy. We have to
decide. As we create new causes of action, new opportunities to file
lawsuits, I think it is legitimate to look around and say: How
expansive do we want to allow class actions to be under this new cause
of action?
It seems to me language we have included, which is basically--
basically, I say--what was in the Frist bill originally, is a rational
way to do it. It doesn't ban class actions but basically says we are
going to limit them. I think it is a balancing test and Members are
going to have to make their own decision whether they think it is worth
providing people with the opportunity to have nationwide class actions.
Candidly, with the tremendous cost this is probably going to incur,
that ultimately is going to be paid and ultimately going to drive up
health care costs. I think Members have to make that decision.
I yield the remainder of my time.
The PRESIDING OFFICER. The Senator from Ohio yields the remainder of
his time. The Senator from North Carolina has 10 minutes 48 second.
Mr. EDWARDS. If I may respond briefly to the comments of my
colleague, the one issue he did not address, at least in his last
answer--he may have discussed it earlier--is the issue of civil RICO. I
believe I am correct in saying there are some State medical societies
that have pending actions against them, civil RICO actions against
HMOs, where they believe, obviously, the requirements of that statute
have been met and there have been improper and illegal activities by
the HMOs. Particularly as we go forward, if any State medical society
believes those problems continue to exist, they may want to avail
themselves of the civil RICO statute, a law that exists in part for
that purpose.
Again, the trouble would be we are carving out special treatment for
HMOs. Having said that, I do not disagree with the fundamental
principle that is part of this process; it is public policymaking. We
hope to balance the interests on both sides. I think that notion makes
sense. My concern is we are carving out the HMOs from this particular
statute when we are not carving anyone else out from this particular
statute.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. DeWINE. Just to respond to my colleague--and I do appreciate his
comments about RICO--again it is a balancing question each Member is
going to have to decide.
Just to clarify things, I want to make it clear, the way this is
drafted, we do not affect any pending issues, so those suits would not
in any way be affected.
I yield the floor.
The PRESIDING OFFICER. The Senator from North Carolina.
Mr. EDWARDS. Mr. President, I yield my time?
Mr. DeWINE. I wonder if I may inquire whether or not there was a
unanimous consent as far as the vote tomorrow morning at any time?
The PRESIDING OFFICER. There was no consent.
The Senator from Nevada.
Mr. REID. Senator Daschle has indicated we are going to come in at 9
o'clock in the morning and start voting. The first vote will be 15
minutes, and if there are other votes stacked, which I am confident
there will be, there will be 10-minute votes on whatever is debated
tonight. There is 10 minutes for the subsequent votes. There would be 4
minutes between each vote to debate.
Mr. DeWINE. Would that include the first vote?
Mr. REID. Yes.
Mr. DeWINE. So we would have in the morning then 4 minutes evenly
divided prior to the first vote?
Mr. REID. That is right.
Mr. DeWINE. I yield the floor and thank my colleague from Nevada.
Mr. EDWARDS. We yield the remainder of our time.
The PRESIDING OFFICER. All time has been yielded back. Under the
unanimous consent agreement, the Senator from Iowa, Mr. Grassley, is
recognized.
[[Page S7058]]
Mr. GRASSLEY. Mr. President, I yield myself such time as I might
consume.
The PRESIDING OFFICER. Is the Senator sending an amendment to the
desk?
Amendment No. 845
Mr. GRASSLEY. I send an amendment to the desk and ask for its
immediate consideration.
The legislative clerk read as follows:
The Senator from Iowa [Mr. Grassley] proposes an amendment
numbered 845.
Mr. GRASSLEY. I ask unanimous consent the reading of the amendment be
dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To strike provisions relating to customs user fees and
Medicare payment delay)
On page 179, strike lines 1 through 14.
Mr. GRASSLEY. Mr. President, I think three times during the debate on
this bill I have been trying to make the point that bringing this bill
to the floor usurped the consideration of the Senate Finance Committee
of two provisions that are in the bill and another provision that ought
to be in the bill that is not in the bill. My amendment today deals
with striking sections 502 and 503. It is another way of my saying, as
I tried to in an amendment 2 days ago on this legislation, to the
Finance Committee, that people writing this legislation ought to keep
their hands off subject matter that comes within the jurisdiction of
the Senate Finance Committee. If people are writing a piece of
legislation that comes out of Health, Education, Labor, they ought to
find sources of revenue out of programs within their own jurisdiction
to fund bills that they think up, rather than robbing another
committee. That is basically what has happened.
I am opposed to both provisions on jurisdictional grounds because
they are within the control of the Finance Committee, not the Health,
Education, Labor, and Pensions Committee. But I also want to make it
very clear it is not just jurisdictional, I also have concerns about
what it does to policy, dealing with customs on the one hand and
Medicare on the other hand. I want to review each of these in turn.
Section 502 of the bill extends the customs user fees from the year
2003 to 2011. This generates $7 billion over 8 years of the total
revenue that it takes to fund this piece of legislation.
When Congress authorized these customs user fees, the avowed purpose
was to underwrite the costs of customs commercial operations. But today
in this bill, the fees are not being used for customs. They are being
used to offset the cost of the Patients' Bill of Rights to the tune of
$7 billion. I think this is unacceptable and violates the comity that
one committee ought to have towards the other.
It also is unacceptable because when you have constituents who pay
customs user fees for the purpose of having an efficient and effective
operation of the Customs Service, so you can enter this country in an
expeditious way, for those fees not to be used for what they were
intended--for expedited entry to the country, to police illegal entry
to the country, to police illegal drugs coming into the country,
generally to make the customs agency's personnel more efficient and
better able to do their job so the United States can be a sovereign
nation protecting its borders the way it should--if these fees are
extended, and I want to emphasize the word ``if,'' they should be
extended in a thoughtful way, not as some budget trick to make the
costs of this bill fit within the confines of the Federal budget.
I am not the only one who thinks so. I have received numerous letters
from companies, from associations that are very concerned about this--
Liz Claiborne, Inc., the National Association of Foreign Trade Zones,
the Joint Industry Group, the National Retail Federation, the American
Electronics Association, and also a memo from the U.S. Customs Service.
They are all raising concerns because these are folks who pay this
customs user fee, a fee that is meant to pay for bringing things into
the country. They believe since the Customs Service is so outdated, so
slow moving, not working in an expeditious way, this revenue ought to
be used for the improvements in the customs operation that were
anticipated when these fees were put in place. I ask unanimous consent
these letters and memos be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Liz Claiborne Inc.,
North Bergen, NJ, June 20, 2001.
Hon. Charles E. Grassley,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Dear Senator Grassley. We write in opposition to a
provision in the Patients' Bill of Rights (S. 1052) that
would extend the merchandise processing fee, or ``mpf,'' for
eight additional years. This is a trade-related measure, a
user fee levied against importers like ourselves, that has no
place in this legislation. We ask you to support efforts to
delete the provision entirely.
First by way of background, the merchandise processing fee
is an ad valorem fee levied against each import transaction,
or ``entry.'' When it was passed 15 years ago, it was done so
with the avowed purpose of underwriting the costs of
commercial operations at the US Customs Service. In fact,
however, it has never been used for that purpose. Instead,
proceeds have been diverted to the general fund and act as a
revenue source to balance the costs of other governmental
programs. As of FY2001, the trade community has paid nearly
$7.2 billion for merchandise processing, an amount far
exceeding Customs' commercial operations budget.
In truth, the fee is really a tax on US imports and, from
the beginning, we have objected strongly. It has been illegal
under GATT and then World Trade Organization (WTO) rules,
although the federal government has indulged in the fiction
that it is a ``user fee.'' Now, under the terms of S. 1052,
all pretense has been dropped and it is being offered as an
offset to the costs of the Patients' Bill of Rights.
The fee is indeed due for renewal by 2003 and it is the
trade communities' intention to seek its termination. While,
before, the nation was experiencing a serious deficit, the
reasons for its passage have since disappeared. Now, it is
simply a tax on American citizens who buy imported products,
whose price is inflated by the mpf. It is unconscionable to
continue to tax Americans in this manner and we intend to
seek repeal in the appropriate committee jurisdiction.
In the meantime, however, we ask that you assist us in
removing the mpf funding from the Patients' Bill of Rights.
The merchandise processing fee has no place in this debate.
The fee will not be viewed on the merits in these
proceedings, but is instead being used--cynically--as a
``pay-for'' a totally unrelated program.
Sincerely,
Frank Kelly,
Vice President, International Trade
Compliance and Government Affairs.
____
National Association
of Foreign-Trade Zones,
Washington, DC, June 15, 2001.
Hon. Charles Grassley,
Hart Senate Office Building,
Washington, DC.
Dear Senator Grassley. The National Association of Foreign-
Trade Zones (NAFTZ) has learned that S. 872, Sec. 602 the
``Bipartisan Patient Protection Act'' provides for the
extension of the Merchandise Processing Fee (MPF) through
2011. Congress established the fee to offset the cost of the
commercial operations of the U.S. Customs Service. Not only
does the proposed legislation continue the practice of
allocating the MPF to the general fund of the U.S. Treasury
with no relationship to the purpose of the fee, it completely
eliminates the relationship of the fee to the Customs
Service. We have serious reservations as to whether this is
permissible through the General Agreement on Tariffs and
Trade, and the World Trade Organization.
The NAFTZ is not opposed to the imposition of a fee for
services rendered. We do believe, however, that any such fee
must correlate to a discernible cost associated with the
service provided. We are concerned that at a time when
Congress is struggling to find the necessary funding to cover
the cost of the modernization of the Service, that funds
already designated by Congress for that purpose are being
diverted.
Since the purpose of the MPF, as established by Congress,
is to fund the commercial operations of the U.S. Customs
Service, we are strongly opposed to any extension of the MPF
without designating the revenue to that intended purpose and
we respectfully request that you drop the merchandise
processing fee extension from S. 872.
Thank you for your attention and consideration of our
views. If you have any questions, please feel free to contact
me.
Sincerely,
Randy P. Campbell,
Executive Director.
____
Joint Industry Group,
June 20, 2001, Washington, DC.
Hon. John McCain,
U.S. Senate, Russell Senate Office Building, Washington, DC.
Dear Senator McCain. The Joint Industry Group (JIG)
expresses its opposition to a provision in the Bipartisan
Patient Protection Act (S. 1052) that would automatically
extend the U.S. Customs user fee from 2003 to 2011 (Sec.
502). This 8-year extension would remove any near-term
opportunity to debate whether the fee should be continued or
[[Page S7059]]
whether an extension could be earmarked specifically for
modernizing U.S. Customs operations.
JIG is a coalition of more than 160 companies, trade
associations, professionals and businesses actively involved
in international trade. We both examine and reflect the
concerns of the business community relative to current and
proposed international trade-related policies, actions,
legislation, and regulations. We undertake to improve
policies and procedures through dialogue with government
agencies and the Congress. The Joint Industry Group
represents over $350 billion in trade.
JIG members account for millions of dollars paid yearly in
merchandise processing fees (MPF). Every year, Customs
collects over $1 billion from companies importing goods into
the United States. Additionally, companies are burdened by
administrative costs associated with the fee, since Customs
imposes complex reporting and accounting requirements on
companies in the course of collecting fee payments. All this
is occurring at a time when tariffs on products are declining
and approaching zero.
If the Customs Service is to continue collecting this user
fee it MUST directly fund improvements to Customs processing,
specifically the Automated Commercial Environment (ACE) and
other U.S. Customs initiatives that are greatly needed to
improve the trade process. Improving Customs' ability to
handle trade will become more critical as the amount of
commerce entering the United States is expected to continue
its double-digit rate of growth. While Section 502 of S. 1052
does not earmark user fees for health care purposes, it does
use the fee as de facto justification for the revenue
neutrality of the bill. JIG is greatly concerned that this
approach will prevent user fees from being applied to the
commercial operations of the U.S. Customs Service for which
they are intended.
Use of the fee to offset the revenue impact of S. 1052
could also increase potential for a WTO dispute. In the late
1980's, a GATT panel found that the user fee was GATT-illegal
because it was being collected in amounts exceeding the cost
of Customs processing. While the U.S. addressed that problem
by placing certain caps on the fee, it was clear from the
panel finding that linkage of the fee to the cost of Customs
commercial operations is of seminal importance to the
question of GATT legality. If our trading partners believe
Customs user fees are being used to fund health-care related
goals, another GATT challenge is virtually certain to surface
in the WTO.
For the reasons cited above, JIG would have no choice but
to support such a challenge. It is clear that the proposed
action in S. 1052 violates the WTO provisions to which the
United States is a signatory.
We therefore urge that the user fee extender be removed
from S. 1052. We need the opportunity to debate the merits of
this fee when it comes up for renewal in 2003. If you have
any questions about our views on this issue or wish to
discuss the matter further, please contact Alan Atkinson at
(202) 466-5490. Thank you for your consideration.
Sincerely,
Ronald Schoof,
Chairman, Joint Industry Group.
____
National Retail Federation,
Liberty Place,
Washington, DC, June 25, 2001.
Hon. Chuck Grassley,
Ranking Member, U.S. Senate Committee on Finance, Dirksen
Bldg., Washington, DC.
Dear Senator Grassley. The National Retail Federation (NRF)
was surprised to learn that section 502 of the Bipartisan
Patient Protection Act (S. 1052) contains an eight-year
extension of the Customs Merchandise Processing Fee (MPF).
The MPF is an administrative fee leveled on imports into the
United States, through which U.S. retailers and other
importers pay hundreds of millions of dollars every year.
NRF and the U.S. retail industry object most strongly to
inclusion of this provision and, for the following reasons,
we urge that the provision is stricken from the bill.
The Senate Finance Committee, which has jurisdiction over
the MPF and other customs issues, was not consulted about
this provision in S. 1052 and, has had no opportunity to
consider the merits of extending the fee as currently
structured.
The MPF was created to offset the administrative costs of
the U.S. Customs Services' commercial operations, and any
attempt to use it for other purposes, as this bill would do,
is against the rules of the World Trade Organization.
The Finance and Ways and Means Committees have been working
for some time with Customs and the importing community on
renewing the MPF in a way that would ensure it be used for
its proper and intended function--for commercial operations,
including customs modernization funding.
It is unacceptable that extension of the MPF has been
slipped into a health bill without the approval of the
Committee of jurisdiction or the knowledge of those in the
private sector that will be most directly affected as a
result. At the same time, we are struggling to provide
Customs Service with sufficient funds for a new computer
system to allow Customs to modernize its operations and
protect our nation's borders. If this provision in S. 1052 is
allowed to stay, it will be impossible for the Senate Finance
Committee to restructure the MPF program in the way it was
intended--to finance the costs of Customs' operations.
Accordingly, we ask for your help in insisting on the removal
of this provision when S. 1052 comes to the full Senate for
consideration.
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.
Sincerely,
Steve Pfister,
Senior Vice President, Government Relations.
____
AeA,
Washington, DC, June 25, 2001.
Hon. Chuck Grassley,
Hart Senate Office Building,
Washington, DC.
Dear Senator Grassley. AeA, the nation's largest high-tech
trade association, is opposed to the provision (section 502)
in the Bipartisan Patient Protection Act (S. 1052) that would
extend the application of the U.S. Customs user fee from
September 30, 2003, to September 30, 2011.
The U.S. importing community currently has full expectation
that this import tax will expire as scheduled in 2003. As the
leading U.S. importing sector, the U.S. high-tech sector
would be particularly impacted by such a tax increase. Our
member companies already pay tens of millions of dollars
annually in customs user fees. In addition, there are
additional administrative costs associated with the fee,
since customs authorities impose complex reporting and
accounting requirements on importers in the course of
collecting the user fee payments. An unexpected, eight-year
extension of the user fee, with its associated administrative
costs, would be an unwelcome and unnecessary additional cost
burden on our industry.
While section 502 of S. 1052 does not earmark user fees for
health care purposes, it does use the fee as de facto
justification for the revenue neutrality of the bill. We
believe this provision introduces the potential that the U.S.
Customs user fee will again be found contrary to U.S.
international obligations under the WTO. In the late 1980's,
a GATT panel found that the user fee was GATT-illegal because
it was being collected in amounts exceeding the cost of
customs services rendered. While the United States addressed
that problem by placing certain caps on the fee, it was clear
from the panel finding that linkage of the fee to the cost of
customs commercial operations is of seminal importance to the
question of GATT legality. If our trading partners believe
customs user fees are being used to achieve health-care
related goals, another GATT challenge could well surface in
the WTO.
For the reasons stated, AeA urges you to remove the customs
user fee extender from S. 1052. This Patient Protection Act
is an inappropriate forum for any consideration of extending
the custom user fee. If you have any questions about our
views on this issue or wish to discuss the matter further,
please contact me at 202-682-4423.
Sincerely,
Tim Bennett,
AeA Senior Vice President International.
____
[From the Executive Office of the President, Office of Management and
Budget, June 21, 2001]
Statement of Administration Policy
(This statement has been coordinated by OMB with the concerned
agencies.)
S. 1052--Bipartisan Patient Protection Act. (Sens. McCain
(R) AZ, Kennedy (D) MA, Edwards (D) NC) The President
strongly supports passage of a patients' bill of rights this
year and has been working with members of both parties since
the first week of the Administration to forge a compromise.
Congress has been divided on this issue for far too long at
the expense of patients and their families. The President
strongly urges Congress to pass a strong patients' bill of
rights this year that provides meaningful protections for
patients, not a windfall for trial lawyers or a threat to
Americans' ability to obtain and afford quality health care.
On February 7, 2001, the President transmitted to Congress
his principles for a bipartisan patients' bill of rights and
urged Congress to move quickly on this important issue.
The President's principles called for passage of a
patients' bill of rights that ensures all Americans enjoy
strong patient protections, including: access to emergency
room and specialty care; direct access to obstetricians,
gynecologists, and pediatricians; access to needed
prescription drugs and approved clinical trials; access to
health plan information; a prohibition of ``gag clauses'';
consumer choice provisions; and continuity of care
protections. The President also recognizes, however, that
many States have passed strong patient protection laws
already, some of which have been in force for over a decade.
To the extent possible, a Federal patients' bill of rights
should give deference to these effective State laws.
The President's principles emphasized the importance of
providing patients who have
[[Page S7060]]
been denied medical care with the right to a fair, prompt,
and independent medical review, which will ensure that
disputes are resolved quickly and inexpensively and that
patients receive the quality care they deserve.
The President stated that only after this independent
review decision is rendered should we resort to the costlier,
time-consuming remedy of litigation in Federal courts to
ensure that health plans are held liable for wrongful
decisions.
The President's principles also reminded Congress of the
necessity of avoiding unnecessary and frivolous lawsuits,
which will only serve to drive up costs and leave more
individuals without insurance coverage. S. 1052 will
significantly increase health insurance premiums and the
number of uninsured. According to the Congressional Budget
Office, health insurance premiums under S. 1052 as originally
drafted would increase by over 4 percent. If the effects of
litigation risk on the practice of medicine and of the
reduced ability of health plans to negotiate lower rates were
included, CBO's estimated cost impact could be much higher,
by 4-5 percent or more. This is in addition to the estimated
10-12 percent premium increases employers are already facing
in 2001. Further, leading economists have predicted that
employers drop coverage for appropriately 500,000 individuals
when health care premiums increase by 1 percent. According to
these estimates, S. 1052 could cause at least 4-6 million
Americans to lose health coverage provided by their
employers.
The President is encouraged by efforts in the Senate, like
those of Senators Frist, Breaux, and Jeffords, to develop a
common sense compromise that forges a middle ground on this
issue and meets the President's principles.
While the President strongly supports a comprehensive and
enforceable patients' bill of rights and has been working
with members of both parties to enact legislation this year,
he believes that S. 1052 would encourage costly and
unnecessary litigation that would seriously jeopardize the
ability of many Americans to afford health care coverage.
The President objects to the liability provisions of S.
1052. The President will veto the bill unless significant
changes are made to address his major concerns. In
particular, the serious flaws in S. 1052 include:
--S. 1052 circumvents the independent medical review
process in favor of litigation. The President believes that
patients should be given care first--litigation should be the
last resort. Patients should exhaust the medical review
process first, allowing doctors, not trial lawyers, to make
decisions about medical care.
--S. 1052 jeopardizes health care coverage for workers and
their families by failing to avoid costly litigation. S. 1052
overturns more than 25 years of Federal law that provides
uniformity and certainty for employers who voluntarily offer
health care benefits for millions of Americans across the
country. The liability provisions of S. 1052 would, for the
first time, expose employers and unions to at least 50
different, inconsistent State-law standards. The result will
inevitably be that employers and unions will be forced to pay
for different benefits from State to State, even within a
particular State, based on varying precedents set in State
courts and leading to inconsistent standards of care for
patients. Further, S. 1052 imposes no limitations on State
court damages, and it is not clear whether existing State-law
caps would apply to the broad, new causes of action in State
courts that S. 1052 creates.
S. 1052 also would allow causes of action in Federal court
for a violation of any duty under the plan, creating open-
ended and unpredictable lawsuits against employers for
administrative errors. These new federal claims do not have
any limitations on the amount of noneconomic damages,
creating virtually unrestrained damage awards that are
limited only by an excessive $5 million cap on punitive
damages.
Moreover, S. 1052 would subject employers and unions to
frequent litigation in State and Federal court under a vague
``direct participation'' standard, which would require
employers and unions to defend themselves in court in
virtually every case against allegations that they ``directly
participated'' in a denial of benefits decision. Because such
determinations are inherently fact-specific, any such
allegation will force a costly and time-consuming court
process and result in varying State interpretations of
``direct participation,'' forcing employers to adhere to
different standards in every State.
--S. 1052 fails to provide a fair and comprehensive remedy
to all patients. The President believes the new Federal law
should establish a comprehensive set of rights and remedies
for patients. S. 1052 instead encourages costly litigation by
providing no effective limitations on frivolous class action
suits and allows trial lawyers to go on fishing expeditions
to seek remedies under other Federal statutes.
--S. 1052 subjects physicians and all health care
professionals to greater liability risk. S. 1052 would expand
liability for physicians and all health care professionals in
State courts well beyond traditional medical malpractice by
permitting new, undefined causes of action in State courts
for denials of medical benefits. This expanded litigation
against physicians and all health professionals will create
an opportunity to circumvent State medical malpractice caps
that may not apply to these new causes of action.
--Extraneous User Fee Provision. The Administration objects
to inclusion in S. 1052 to an extraneous revenue-raising
provision (section 502), which extends for multiple years
Customs charges on transportation, passengers, and
merchandise arriving in the country.
Pay-As-You-Go Scoring
S. 1052 would affect direct spending; therefore, it is
subject to the pay-as-you-go requirement of the Omnibus
Budget Reconciliation Act of 1990. OMB's preliminary scoring
estimate of the bill is under development.
____
U.S. Customs Service,
Washington, DC, June 20, 2001.
Memorandum for James F. Sloan, Acting Under Secretary
(Enforcement).
From: Acting Commissioner
Subject: Pay-go Offset for the Patient Bill of Rights
Congress will soon consider passage of the Patient Bill of
Rights. The Customs Service offers no opinion of the
legislation. However, we have concerns with the bill's
potential impact on future Customs appropriations. Section
502 of the bill would extend our collection of COBRA fees
from 2003 to 2011, but would use the revenue to offset the
cost of implementing this new legislation. Although we
support extending the collection of COBRA fees, any scoring
of the COBRA extension which would limit, in any way, the
ability to fund or offset Customs activities would likely
cause a critical funding shortfall for the Customs Service.
Section 502 of the bill states: Section 13031(j)(3) of the
Consolidated Omnibus Budget Reconciliation Act of 1985 (19
U.S.C. 58c(j)(3)) is amended by striking ``2003 and inserting
2011, except that the fees may not be charged under
paragraphs (9) and (10) of such subsection after March 31,
2006''.
The COBRA fees collected by Customs are used both to
reimburse Customs appropriation for certain costs, such as
overtime compensation, and to offset a portion of the Customs
Service Salaries and Expenses Appropriation (S&E). As an
example, our FY 2001 collections will offset approximately $1
billion or almost 50 percent of Customs appropriation this
year. Authorizing a COBRA extension to offset costs for
something other than the Customs Service could negatively
impact our available funding. Additionally, the Merchandise
Processing Fee authorized in the COBRA is a fee that is paid
by importers for the processing of merchandise by the Customs
Service. Directing the funds collected from this fee for
something other than Customs operations could pose GATT
interpretation issues.
While Customs supports the extension of the COBRA fees, we
also acknowledge that changes are warranted with the manner
in which we collect those fees. We intend to review this
issue in the near term.
Mr. GRASSLEY. I want to speak specifically to what one company wrote:
The merchandise processing fee has no place in this debate.
The fee will not be viewed on the merits in this proceeding,
but is instead being used--cynically--as a ``pay-for'' for a
totally unrelated program.
Obviously, the totally unrelated program is the Patients' Bill of
Rights that is before us.
Our experience today--in other words, how we handle this issue of
customs user fees today--will only hurt us in our deliberation of what
ought to be done to expedite and make more efficient entry into our
country. It is going to hurt us when that policy debate comes up
sometime down the road--weeks, months, but sometime. Customs
modernization is a very important priority.
My point is that there are important Customs modernization issues
that should no longer be ignored. Let's not have a rush to pay for this
Patients' Bill of Rights today and blind us towards the real public
policy questions we have on the Customs Service and their problems
tomorrow.
Are you concerned about drugs at our borders? Are you concerned about
illegal transshipment of textiles, import restrictions on steel and
lumber, and backup of trucks at our borders? If you vote for extending
fees, there will be no committee consideration if Customs is using the
fees for these or other Congressional priorities.
I would like to tell you that extending these fees will definitely
have an impact on what we are able to do or not to do about
modernization of the Customs agency and its operations around the
borders of our country, even in the interior of the country where we
have Customs operations.
I would like to read what the acting Customs Commissioner had to say
about this. He wrote on June 20, this year:
Any scoring which would limit in any way the ability to
fund or offset Customs activities would likely cause--
And it is highlighted--
a critical funding shortfall for the Customs Service.
[[Page S7061]]
Experience a critical funding shortfall when you want to get in and
out of Chicago with some Customs operations and people are complaining
because it takes so long to get it done because of a shortage of
personnel and not having the technical equipment that ought to be there
to help efficient operation. Then you know that maybe you made the
wrong decision when you took $7 billion out of Customs to do this.
Also, I have a statement, which was submitted for the Record, from
the President himself, dated June 2001, clearly opposing section 502 of
the bill.
I would like to raise one other issue, and that is it is not at all
clear that using Customs user fees to offset revenue is consistent with
the World Trade Organization rules.
Think about that. We are making a decision to take $7 billion out of
Customs user fees under the jurisdiction of the Senate Finance
Committee, and we may be doing this in a way that does not meet our
obligation under the World Trade Organization. Under that organization,
Customs fees are to be used as payments for Customs services, not as a
source of general revenue to the Federal Government.
In a sense, as we would say to our constituents back home, you pay a
gas tax, and we use the gas tax for transportation, to build highways.
When people pay Customs fees, they pay those Customs fees for
facilitating entry of product into the country and the policing of that
entry of product into the country. A fee levied for a certain purpose
ought to be used for that purpose or it might violate the WTO because
it should not be a source of general revenue any more than taking money
from the gas tax and putting it into the general fund of the United
States.
Here is what the Customs Service writes on this issue.
The merchandise processing fee is a fee that is paid by
importers for the processing of merchandise by the Customs
Service. Directing the funds collected from the fee for
something other than Customs' operations could pose GATT
interpretation issues.
While it is not clear that a WTO case would arise or that a challenge
would be successful, it seems to me that this is a warning bell that
should certainly be heard.
No Senator should vote against this motion to strike unless they are
prepared to face the possibility of a WTO challenge and take
responsibility accordingly.
We should strike this provision from the bill. Before blindly
supporting section 502, we should have time to consider its broader
implications.
I urge my colleagues to support this amendment to strike.
Turning to the other provision of their bill that my amendment
strikes, section 503, that would delay payments to Medicare contractors
by one day thereby shifting $235 million in Medicare part B spending
from fiscal year 2002 to fiscal year 2003 is simply a budget gimmick.
I am troubled by this provision because it comes within the
jurisdiction of the Senate Finance Committee and also because we are
trying to work to make Medicare a better program, not do things to harm
it.
First, I point out to my colleagues that, again, the Finance
Committee has jurisdiction, not the Committee on Health, Education,
Labor and Pensions. It is the Finance Committee that authorizes and
overseas the Medicare Program and the Federal agency that runs it, now
known as the Center for Medicare Services.
It is the Finance Committee and not the Health, Education, Labor, and
Pensions Committee that is in the best position to know how changes in
the Medicare Program, such as this one-day payment delay in section 503
of this bill that will affect our senior citizens, will affect our
health care providers and will affect the integrity of the Medicare
trust fund.
With all due respect, when it comes to Medicare and Medicaid and
other Federal entitlement programs, it seems terribly ridiculous to
ignore the committee that has the very expertise in these programs,
meaning the Senate Finance Committee.
The second reason that I am proposing to strike the Medicare payment
delay in section 503 of the bill is that the delay itself, which may
not seem serious to some, could actually have consequences for Medicare
contractors and providers.
Delaying payments by one day and moving them into the next fiscal
year just to finance this bill is fuzzy math, to say the least. But it
unfairly subjects the already fragile Medicare Program and its health
care contractors to accounting disruptions and to administrative
uncertainties.
Medicare providers already have it hard enough just dealing with the
Medicare Program in the first place. They are overwhelmed by paperwork,
confused by conflicting regulations, and frequently left hearing that
``the check is in the mail.''
Can you imagine the Federal Government saying ``the check is in the
mail'' when it comes to timely payments of their reimbursements?
Subjecting those providers to any additional delay, even if just for
a short period of time, is simply unfair. We need to make it easier for
providers to do business with Medicare.
Think about it. No one wants to do business with late payers, and
health care providers are no exception.
Think about it for a minute. No one wants to do business with late
payers, and health care providers are no exception. We should not be
giving Medicare an additional opportunity to delay for one minute--let
alone a longer period of time--their obligations to promptly pay
providers.
For the last 3 months, Senator Baucus and I have been working hard to
develop a Medicare reform proposal that strengthens and improves the
program by adding prescription drug coverage and making the entire
benefit package more modern.
Part of this bipartisan effort also includes an initiative to make
Medicare more responsive and accountable to both seniors and providers.
We want to send a message to providers that they will be treated fairly
and professionally by Medicare.
Unfortunately, the delay provision in section 503 does exactly the
opposite. It sends an entirely wrong message and undercuts our
bipartisan effort to make Medicare a better business partner for
today's providers.
For these reasons, I cannot support the inclusion of section 503 in
this bill. Neither 502 nor 503 belong in this bill. They are both
outside the jurisdiction of the Health, Education, Labor Committee and
a long way away from the subject of this debate, which is patients'
rights. Both sections should be stricken from this bill entirely.
Consequently, I urge my colleagues to support my amendment.
The PRESIDING OFFICER. The time of the Senator has expired.
Who yields time in opposition?
The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, I will take just a few moments of the
Senate's time.
The fact is, this provision, as stated on page 179, does not even go
into effect until the year 2003. There is plenty of time for the
Finance Committee to work it out if this isn't a satisfactory way of
dealing with this issue. It is basically a bookkeeping issue. There is
a judgment that is made by CBO that the value of a wage package is
``X,'' and if you are going to guarantee additional kinds of benefits
in terms of health care, then the wages are going to go down, which is
going to mean less money in terms of Social Security.
This is actually a balance from the Budget Committee's point of view
to make sure that the bookkeeping will be balanced.
Tomorrow, we will hear from the chairman of the Budget Committee who
will describe this and, at the appropriate time, make the point of
order.
I point out, though, it is my understanding that this has no impact
or effect on the Customs Service. They will still receive the money. If
they want to go through with their modernization, they will still be
able to do that. But it basically ensures that this is going to conform
to the budget consideration. That is the reason that this was put in
there. There will be sufficient time for the Finance Committee to make
any other kinds of adjustments and changes.
To make it very clear, the resources that are collected in this are
not to pay for the bill. It is basically a bookkeeping offset to what
will be anticipated to be the shortfall in terms of the payments under
the CBO estimate of the wage package because of the enhanced value,
which I think ought to
[[Page S7062]]
be encouraging for workers of their health benefits. So we will hear
more from the Budget Committee tomorrow. At that time, the chairman of
the Budget Committee will make a further comment, speaking for the
Budget Committee. They are in support of our position.
Mr. GREGG. Is the Senator yielding back his time?
Mr. KENNEDY. I am glad to yield back the time.
The PRESIDING OFFICER. The Senator from Massachusetts yields back the
remaining time on the Grassley amendment.
Mr. GRASSLEY. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. GREGG. I ask unanimous consent that this amendment and all
amendments that have the yeas and nays ordered tonight be stacked for a
vote tomorrow morning, with the appropriate time of 2 minutes to each
side, or whatever is agreed to, before each amendment is voted on.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. GREGG. Mr. President, at this time I would like to outline the
remainder of the evening, if acceptable to the parties, relative to our
side, which would be that Senator Santorum would go next with his
amendment. He would have 10 minutes; the Senator from California, Mrs.
Boxer, would have 10 minutes. Then we would go to Senator Nickles. He
would have 10 minutes; and 10 minutes to whoever is in opposition.
Senator Brownback would come next. He would have an hour divided, as is
traditional. And Senator Ensign would then follow with two amendments,
the physician pro bono amendment and the genetic discrimination testing
amendment.
I believe the Democratic membership has all these amendments. I would
hope we could also agree there would be no second degrees.
Mr. KENNEDY. The Ensign amendment we have just received. I have no
objection to the earlier request. I am sure we will agree with this,
but we would like for that, as far as it being locked in in terms of no
second-degree amendments, just to have an opportunity to----
Mr. GREGG. I would reserve my request on the second degrees relative
to the Ensign amendments but ask unanimous consent that the unanimous
consent agreement include that there be no second degrees on DeWine,
Grassley, Nickles, Santorum, or Brownback.
The PRESIDING OFFICER. Is there objection?
The Chair hears none, and it is so ordered.
The Senator from Pennsylvania is recognized.
Amendment No. 814
Mr. SANTORUM. Mr. President, I have amendment No. 814 at the desk and
ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report the amendment.
The assistant legislative clerk read as follows:
The Senator from Pennsylvania [Mr. Santorum], for himself,
Mr. Smith of New Hampshire, and Mr. DeWine, proposes an
amendment numbered 814.
Mr. SANTORUM. I ask unanimous consent reading of the amendment be
dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To protect infants who are born alive)
On page 179, after line 14, add the following:
SEC. __. DEFINITION OF BORN-ALIVE INFANT.
(a) In General.--Chapter 1 of title 1, United States Code,
is amended by adding at the end the following:
``Sec. 8. `Person', `human being', `child', and `individual'
as including born-alive infant
``(a) In determining the meaning of any Act of Congress, or
of any ruling, regulation, or interpretation of the various
administrative bureaus and agencies of the United States, the
words `person', `human being', `child', and `individual',
shall include every infant member of the species homo sapiens
who is born alive at any stage of development.
``(b) As used in this section, the term `born alive', with
respect to a member of the species homo sapiens, means the
complete expulsion or extraction from his or her mother of
that member, at any stage of development, who after such
expulsion or extraction breathes or has a beating heart,
pulsation of the umbilical cord, or definite movement of
voluntary muscles, regardless of whether the umbilical cord
has been cut, and regardless of whether the expulsion or
extraction occurs as a result of natural or induced labor,
caesarean section, or induced abortion.
``(c) Nothing in this section shall be construed to affirm,
deny, expand, or contract any legal status or legal right
applicable to any member of the species homo sapiens at any
point prior to being born alive as defined in this
section.''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 1 of title 1, United States Code, is
amended by adding at the end the following new item:
``8. `Person', `human being', `child', and `individual' as including
born-alive infant.''.
The PRESIDING OFFICER. Under the unanimous consent agreement, the
Senator from Pennsylvania is recognized for 10 minutes.
Mr. SANTORUM. Mr. President, this is an amendment that I think really
goes to the heart of this bill: Patient protection. This bill is
purported to deal with trying to take care of patients. What this
amendment does is make sure that every living human being is protected
by this act as well as all other acts of Congress.
This is a very simple amendment that says--I am quoting from the
amendment--
In determining the meaning of any Act of Congress, or of
any ruling, regulation, or interpretation of the various
administrative bureaus and agencies of the United States, the
words ``person'', ``human being'', ``child'', and
``individual'', shall include every infant member of the
species homo sapiens who is born alive at any stage of
development.
That is a rather simple amendment. Obviously, I think it is an
amendment that should be broadly accepted.
The reason I offer this amendment is really twofold. No. 1 is the
concern about how certain little children--little infants--are treated,
particularly those who are born alive after an abortion, an abortion
that was not successful in the sense that the child was not killed
before the child was delivered outside of the mother's womb.
So what we want to do is make sure those children in particular, as
well as others, are treated with the same dignity and are covered by
the same laws as all other people in America.
There are, unfortunately, many disturbing examples of how these
little children are not treated the same and not given the proper care
and, frankly, the proper respect that is required under the laws that
we have passed in this Congress.
I am going to use a couple of examples that were given by nurses in
congressional testimony.
Last year, we had testimony from Allison Baker, who is a registered
nurse, who witnessed three induced abortion survivor incidents. For one
of them, she says:
I happened to walk into a ``soiled utility room'' and saw,
lying on the metal counter, a fetus, naked, exposed and
breathing, moving its arms and legs. The fetus was visibly
alive, and was gasping for breath. I left to find the nurse
who was caring for the patient and this fetus. When I asked
her about the fetus, she said that she was so busy with the
mother that she didn't have time to wrap and place the [baby]
in the warmer, and she asked if I would do that for her.
Later I found out that the fetus was 22 weeks old, and had
undergone a therapeutic abortion because it had been
diagnosed with Down's Syndrome. I did wrap the fetus and
place him in a warmer and for 2\1/2\ hours he maintained a
heartbeat, and then finally expired.
The second incident involved a 20-week-old fetus with spina bifida
who lived for an hour and 40 minutes until she died.
She continued:
The third case occurred when a nurse with whom I was
working was taking care of a mother waiting to deliver her 16
week Down's Syndrome fetus. Again, I walked into the soiled
utility room and the fetus was fully exposed, lying on the
baby scale. I went to find the nurse who was caring for this
mother and fetus, and she asked if I could help her by
measuring and weighing the fetus for the charting and death
certificate. When I went back into the soiled utility room,
the fetus was moving its arms and legs. I then listened for a
heartbeat, and found that the fetus still was alive. I
wrapped the fetus and in 45 minutes the fetus finally
expired.
We have other stories, disturbing stories of cases where children
were born alive and basically discarded as trash in soiled utility
closets or laying on tables fully exposed at a very tender age.
This is a story from Jill Stanek, another registered nurse:
[[Page S7063]]
One night, a nursing co-worker was taking an aborted Down's
Syndrome baby who was born alive to our Soiled Utility Room
because his parents did not want to hold him, and she did not
have time to hold him. I couldn't bear the thought of this
suffering child lying alone in a Soiled Utility Room, so I
cradled and rocked him for the 45 minutes that he lived. He
was 21 to 22 weeks old, weighed about \1/2\ pound, and was
about 10 inches long. He was too weak to move and very much
expending any energy he had to breathe.
This is the current problem, and this is the reason we are
introducing this legislation. Frankly, I have concerns that this may be
even more of a problem in the future based on court decisions. The
court decision I refer to is the recent decision by the U.S. Supreme
Court in the Nebraska partial-birth case. In that case, in a concurring
opinion, two Justices said two things: One, Justice Stevens with
Justice Ginsburg concurring, and the other, Justice Ginsburg with
Justice Stevens concurring. I am going to quote two things that should
send a chill down the spines of people here when it comes to what the
future could have in store for us if we do not pass legislation such as
this.
This is what Justice Stevens said in this decision:
The holding [of Roe]--that the word ``liberty'' in the 14th
Amendment includes a woman's right to make this difficult and
extremely personal decision--makes it impossible for me to
understand how a State has any legitimate interest in
requiring a doctor to follow any procedure other than the one
he or she reasonably believes will best protect the woman in
her exercise of this constitutional liberty.
For the notion that either of these two equally gruesome
[abortion] procedures performed at this late stage of
gestation is more akin to infanticide than the other, or that
the State furthers any legitimate interest by banning one or
not the other, is simply irrational.
What that says very clearly is, according to these two Justices, that
any procedure that the doctor determines is in the best ``health
interest of the mother'' can be used without question. So if the doctor
believes the best way to safely perform this abortion is to deliver a
live baby and then subsequently kill it because it is the safest way
for the mother's health to have that done, under this rationale, under
this reasoning, that would be legitimate. I think we have to make it
very clear that that is not legitimate; that after delivering a baby,
once the baby is outside the mother, it is no longer legitimate to
consider that child just a piece of property to be disposed of, or
massive cells to be disposed of when it is a living, breathing
individual.
Justice Ginsburg's opinion says the following:
Such an obstacle [to abortion] exists if the State stops a
woman from choosing the procedure her doctor ``reasonably
believes will protect the woman in [the] exercise of [her]
constitutional liberty.''
Again, it is an open door to whatever procedure the doctor wants to
use, irrespective of the baby, which again leaves the door open
certainly for the doctor to say that he or she reasonably believes that
the mother's health will be served if the baby is delivered and then
killed because that is the safest way. This was not the majority
opinion, thankfully, of the Court, but it does show that there is a
possibility, at least, out there for this kind of ruling within our
court systems at the highest level, much less what some district or
appellate court might do.
I think it is important for us to clearly draw the line, if that is
called drawing the line, that once a child is born, it is no longer a
health threat to the mother, and that we have a legitimate interest in
protecting this child from being killed at that point or, shall we say,
treat that child within the context of the law as we would treat any
other child or any other person in America.
With that, I reserve the remainder of my time.
The PRESIDING OFFICER. Who yields time in opposition?
The Senator from California.
Mrs. BOXER. Mr. President, my colleague, in his discussion of this
amendment, does attack the landmark case of Roe v. Wade which simply
said, in the 1970s--and women have had the right since then--that in
the early stages of a pregnancy, the government should play no role in
the very personal, private, moral decision that a woman and her family
and her doctor and her God would make without the interference of
government. But his amendment certainly does not attack Roe in any way.
His amendment makes it very clear that nothing in this amendment
gives any rights that are not yet afforded to a fetus. Therefore, I, as
being a pro-choice Senator on this side, representing my colleagues
here, have no problem whatsoever with this amendment. I feel good about
that. I feel good that we can, in fact, vote for this together. It is
very rare that we can.
Simply put, this amendment says it all in its purpose: ``To protect
infants who are born alive.'' Of course, of course. My colleague goes
on to say that simple statement, which is very important, is in fact,
he said, the heart of this bill. I think the heart of this bill is even
more than that. The heart of this bill is, yes, protecting infants; it
is also protecting children, protecting teenagers, protecting people as
they get older, until they are very old and very frail and are fighting
for their life.
So this bill really should protect us all at every stage of our life,
from the earliest days until the final days. I hope that my colleague
will join with us in supporting this Patients' Bill of Rights because
it does, in fact, protect all of us. And it will, in fact, give all of
us at any stage, at any age, the quality health care that we need.
I can tell my friend, and I think I have mentioned it to him before
and on the floor before, that I gave birth to two premature babies, one
quite premature. And I can say right here and now that I will never,
ever forget the experience of those doctors. This was a long time ago,
I say to my friend; this was way back. Now my kids are taking care of
me. And the doctor came in and grabbed my firstborn son and, before
they could even take a cloth to clean him, ran him into the incubator
where he had to stay for 1 month. Had I not had that kind of dedication
from a pediatrician, that kind of concern, a hospital that knew at that
time we didn't have the money to pay the $1,000 a day that it costs--
now it is way more than that--I don't know if today I would have a
beautiful healthy son who is married and the pride of our lives.
My daughter was also born premature, a similar circumstance, same
thing:--dedicated people, dedicated hospital, quality care.
I join in voting for this amendment, with the understanding that all
of us at every stage of our life deserve that kind of quality care. In
other words, if my friend were to expand it and say every human being
deserves quality health care, deserves, when they are in the hospital,
to be protected, I would join with him as well. That is what I think
the larger bill does do.
He believes it is necessary to single out infants. Fine. That is
fine.
Again, I say to my friend in the chair that we will be voting for
this amendment, I hope unanimously. If we have to have a recorded vote,
that is fine. And we will state that we feel very strongly that every
person deserves protection from this health care system and that this
Patients' Bill of Rights should give us all the care that we deserve
and all the care our families deserve, regardless of whether we are a
helpless newborn baby or whether we are an elderly person who is
fighting and struggling against illness.
If 100 people vote for this amendment, which I think will be the
case, then 100 people should vote for the Patients' Bill of Rights
because it will afford the families of those vulnerable infants and all
of us the protections that we need against HMOs that oftentimes put
dollar signs ahead of our vital signs. That is wrong to do. Some of
these babies are born into families who don't have a lot of money, who
don't have a lot of power, who are going against HMOs where the CEO
makes hundreds of millions of dollars. But they say: Gee, we are not
going to give that little baby the care he needs.
I had a case I talked about on the floor where a child was denied a
medicine. She was 3 years old and had cancer. It was $54 for the
medicine and the HMO denied that medicine. That child suffered so with
nausea and all the rest, while the head of that HMO, because of a huge
merger--and I asked my staff to check this because I could hardly
believe it--made $800 million in the course of that merger. But they
denied a drug to a little baby suffering from cancer--$54.
I heard my colleagues on the other side--some of them against this
bill--
[[Page S7064]]
say: We can't legislate by anecdote. Well, I have to tell you, when you
hear one story, and then another and another, from people you never
heard of, and you hold hearings and the people come out and tell the
stories, then we know there is a need to pass this Patients' Bill of
Rights. So I would vote for this to protect the infants, and then I
will vote to protect everyone in this country because everyone deserves
protection from HMOs who put their bottom line ahead of people's
health.
The PRESIDING OFFICER (Mrs. Feinstein). The Senator from
Massachusetts is recognized.
Mr. KENNEDY. Madam President, I am going to urge the Senate to accept
the amendment tomorrow. I think we have had a good discussion about it.
I hope that we will move ahead and accept it. I am prepared, when the
Senators yield the time or use the time, to do that.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. Madam President, I thank the Senator from California
for her comments and support of this amendment.
I ask for the yeas and nays on the amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
amendment no. 846
Mr. NICKLES. Mr. President, I send an amendment to the desk.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Oklahoma [Mr. Nickles], for himself and
Mr. Ensign, proposes an amendment numbered 846.
Mr. NICKLES. Madam President, I ask unanimous consent that further
reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To apply the bill to plans maintained pursuant to collective
bargaining agreements beginning on the general effective date)
Beginning on page 173, strike line 19 and all that follows
through line 14 on page 174, and insert the following:
(2) Treatment of collective bargaining agreements.--The
amendments made by sections 201(a), 301, 302, and 303 (and
title I insofar as it relates to such sections) shall apply
to group health plans maintained pursuant to one or more
collective bargaining agreements between employee
representatives and one or more employers beginning on the
general effective date.
Mr. NICKLES. Mr. President, I will be brief. I hope this amendment
can be agreed to. In the underlying bill on page 173, it has
``effective dates'' for implementation of the legislation. The
effective date for everybody, all plans in America, is by October 1,
2002. So that is when all the plans in America will have to comply with
this bill. They will have to have the patient protections in line, the
appeals process, the liability sections--all are mandated to be
effective by October 1 next year. That is about 14 months from now.
If you continue reading on page 173, you find out that the plans that
are covered by collective bargaining agreements are exempt. They are
exempt from the legislation. It says they ``shall not apply to plan
years beginning before the later of--(A) the date on which the last
collective bargaining agreements relating to the plan terminates.''
Some of these plans may not terminate for months. Some may not
terminate for years. As a matter of fact, looking at a couple of
examples, one is the Plumbers and Pipefitters Union, with 2,200
employees, has a 128-month contract. It doesn't expire until 2010. The
International Union of Electric Workers, with 1,800 employees, has a
148-month contract that doesn't expire until the year 2007. I could go
on and on. There are lots of examples.
The point is that there are about 30 million lives that would be
exempt from this bill for years. If we are going to make it apply to
everybody else in the private sector, I think we should make it apply
for collective bargaining plans as well.
There is also something else that is troubling to me. It says it
would not apply until the plan terminates, and then the language says
if they adopt these patient protections, that still doesn't count as a
plan termination, a collective bargaining agreement termination. So, in
effect, even though a plan adopts it, it hasn't terminated and,
therefore, it is still not covered or enforced by the terms of this
bill. I find that troubling. I also am troubled by the fact that when
it says ``relating to the plan terminates,'' a lot of plans or
contracts don't terminate. They are renegotiated. So they never get to
termination. They are actually renegotiated and extended. That is well
and good. That means there is peace and harmony and no labor shortages
and so on.
My point is that it is very important for us not to be exempting 30
million workers who happen to be in collective bargaining agreements
from the protections in these plans. If we are going to give these
protections to 170 million workers in the private sector, in that 170
million are included 30 million who happen to be members of a
collective bargaining agreement. They should have the patient
protections that Congress is in the process of determining which are so
vital for everybody else in the private sector. They should not be
exempt because they happen to be members of the collective bargaining
unit. We are asking every other plan in America to comply by October 1.
Why would we not ask members of collective bargaining agreements to
also comply? Why should we have them have different expiration dates,
some of which might be 5, 10 years, or even longer?
Maybe this is an oversight, a mistake from a previous drafting; but,
clearly, if these are such valued protections that we want to extend
them to the private sector, we should certainly extend them to members
of collective bargaining agreements as well.
I urge my colleagues to support this amendment.
The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
Mr. KENNEDY. I yield myself 5 minutes.
Madam President, I direct my colleagues' attention to the lines 15
and 16 on page 173. They talk about ``for plan years.'' That is an art
of words that applies to insurance companies, and it says, ``beginning
on or after'' plan years. As we know, the insurance starts generally at
the first of every year. So with regard to insurance companies, the
Senator is completely wrong. This does not apply for insurance
companies because there are existing contracts.
We have heard a great deal in this debate about the sanctity of the
HMO contract and how we are not going to permit--in terms of the
standards for the treatment of patients--they are going to be tied
completely to the contract. I don't know how many hours I listened to
that. Now we see that we are respecting the contract in insurance and
we expect the same--to respect the contract in terms of collective
bargaining. It is simple as that.
This is boilerplate, Madam President. We did this in the HIPAA
program, and there was no row about it at that time. People understood.
There was a normal transition, and we didn't have objections at that
particular time. So that is what we have done here. There are existing
contracts in insurance, and we take it to the next time when the
insurance plans are going to be implemented. There are existing
collective bargaining agreements. We are going to take it at the next
time when they are going to be renegotiated because of the respect for
the existing contracts.
So what is sauce for the goose should be sauce for the gander, Madam
President, particularly when we are listening to so much about the
importance of contracts and that we ought not interfere with them, even
if it is going to be as a matter of medical necessity, and that we are
going to be bound by them because they are so important and sacred.
There is a sanctity of the contracts.
I listened to that for 5 hours, and now we find out in the final
hours of this that, oh no, that is not true regarding collective
bargaining. We are going to interfere with ongoing collective
bargaining agreements. That just doesn't make sense. This is what we
have done at other times. It says insurance, generally, at the start of
a year--some are longer and they will be respected in that way just as
we do regarding collective bargaining. I hope this amendment will not
be accepted.
Mr. NICKLES. Madam President, I appreciate my colleague's statement,
[[Page S7065]]
but I totally disagree. Some of us have argued for contract sanctity,
but we haven't been totally successful, I might add. Almost all those
contracts would begin, if not by October 1, certainly by January 1 of
the year 2003. So maybe there are a few more months. But under
collective bargaining agreements, if you read the language on page 174,
it is not until the contract or the agreement terminates. And then the
second part of it says that even if they comply, it shall not count as
a termination.
You could have collective bargaining agreements exempt under this
provision indefinitely for 12 years. They may never terminate the
agreement. They may continue rolling it over, so it is never
terminated. It might be readjusted; it might be renegotiated; but it is
never terminated. Are we going to take 30 million Americans and say:
You are not covered by these patient protections?
Some of these contracts will last 10 years, 15 years. The average
contract I was looking at had a schedule of 5 to 6 years. One I
mentioned does not expire until the year 2010. If they renegotiate it
between now and next year, the duration of the contract will be exempt.
We are telling everybody else in the private sector: Get your act in
order, and by the end of next year you have to have these new patient
protections, oh, unless you are a member of a collective bargaining
agreement.
This is not the only exemption we found. We did not cover Federal
employees. Maybe I will have an amendment dealing with Federal
employees. All these great patient protections do not apply to Federal
employees. They do not apply to Medicare. They do not apply to Indians
in our hospitals. They do not apply to veterans.
These are patient protections that are so important for the country,
but we do not give them to publicly funded plans; we only do it for
private sector plans.
What about unfunded mandates? What about union plans, collective
bargaining? We leave them out. We leave out Government plans; we leave
out union plans; but it is fine we are going to hit the private sector.
Unions, this does not apply for the duration of your collective
bargaining agreement, and if it does not terminate, you are never
covered.
I think that is a serious mistake, so I urge my colleagues to support
the amendment.
I thank my friend and colleague from Nevada for his support of the
amendment as well.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Madam President, the Senator ought to read page 174
because this language is very clear, precise, and exact. It does not
permit what he just said it permitted, and that is the rollovers. It
just does not permit it.
The Senator can state it, and he can misrepresent it, which he just
has, but it is not the fact. On line 5, it says: ``relating to the plan
terminates,'' and that is when it ends. That is when it has to be
implemented.
This idea that it can roll over and over, for 10, 15 years, is not
what the legislation says. The fact is, with insurance, many start in
January, many others start in July. We have tried to say when that
contract plan year, which is a term of art that refers to when that
insurance transitions, we will implement it at that time, and the same
should be true with the collective bargaining agreements.
I would think the overwhelming majority of the workers and employers
would be eager to get these protections. We are going to find out many
will work out arrangements so they get the protections even earlier.
The PRESIDING OFFICER. Who yields time?
Mr. NICKLES. I yield to the Senator from Nevada such time as he
desires.
The PRESIDING OFFICER. The Senator from Nevada is recognized.
Mr. ENSIGN. Madam President, I have a story that was told by the
junior Senator from North Dakota on the Senate floor the other day. It
is about a young man, Christopher Thomas Roe, who is from Nevada. He
was attending Durango High School and was diagnosed with acute
lymphocytic leukemia. As anybody who has had a child with that terrible
disease knows, sometimes the treatments are not very successful.
During the course of his treatment, the doctors were recommending a
certain type of experimental treatment, and as we have heard throughout
this bill, sometimes that experimental treatment has to be had at a
certain time of treatment, and waiting for its approval sometimes leads
to that treatment not being able to be given to that patient. That is
exactly what happened to Christopher Thomas Roe. He was not able to
receive this type of a treatment in a timely manner.
His father is a school district employee in the State of Nevada. He
is not a teacher, but he is an employee of the school district. There
is an employee trust fund that has been set up to provide health
insurance to school district employees. Based on our discussions with
the Department of Labor, this trust fund, because of the way it was set
up, would not be covered under the provisions of this bill.
Similarly, the 30 million people Senator Nickles is talking about who
deal with collective bargaining agreements are not covered adequately
under this bill. If we are going to say to other people that they
deserve these rights, we believe that people who are in unions deserve
the same patient protections.
These patient protections right now do not just deal with lawsuits,
they deal with provisions that everybody agrees with in the bill: The
right of a woman to choose an OB/GYN as her primary doctor; the right
of a family to say their children's primary care doctor is a
pediatrician; the right to a reasonable layman's interpretation of
whether emergency room care should be paid for when they have an
emergency.
These patient protections we believe are very important to give not
only to the 170 million people who are covered by the underlying bill,
but also those who are covered in collective bargaining agreements.
If there is tweaking of the language that needs to happen with this
amendment, then let's tweak the language. The bottom line is this is
not an anti-union agreement. This amendment says we want union workers
to have the same rights as other people.
I would think the other side of the aisle, who are generally in favor
of union workers, would be on our side on this amendment. If the other
side thinks this amendment needs a little tweaking, maybe we can do
that, but right now as we read the bill, as we have had some of the
legal experts look at the bill, collective bargaining agreements would
supersede and not allow union workers who are covered under those
collective bargaining agreements to be covered under this Patients'
Bill of Rights.
I urge our colleagues to work with us and to make sure those union
workers get the same protections as other people in America are going
to receive.
I yield the floor.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Madam President, how much time do I have?
The PRESIDING OFFICER. Six minutes.
Mr. KENNEDY. I did not understand, did the Senator say that public
employees were not covered? Does he understand that to be the case?
Mr. NICKLES. The Senator is correct. Federal employees are not
covered by the underlying McCain-Kennedy bill.
Mr. KENNEDY. I understand he was talking about teachers in Nevada;
public employees is the example he gave. I find this enormously
interesting because both Senators voted for the Collins amendment that
excluded 139 million Americans. They only included 56 million. They
were going to have the protections. The others were going to be
dependent upon whether the States actually moved ahead and passed the
various protections.
One of the groups that was left out of the Collins amendment was
public employees, such as firefighters, schoolteachers, and others. We
resisted that. No one has fought harder to make sure we are going to
have comprehensive coverage since day 1 of this program. Now we are
being flyspecked because somehow there are some who, under certain
circumstances, are going to come into these protections on a different
calendar.
Madam President, we have tried to include people who are going to
have coverage from insurance. We are going
[[Page S7066]]
to respect the contract. When those insurance contracts expire, whether
it is in January, whether in July, the protections go into effect. The
same is true of the collective bargaining agreement. We have done that
in other times. It has worked, and worked effectively. As I say, I
believe the consumers, as well as employers--the employers from whom we
have heard, and we have had many examples--indicate they cannot wait to
get these protections in place. It isn't that people will delay getting
in; it will be because they want to get in and get in more quickly.
The PRESIDING OFFICER. Leader time has expired.
Mr. NICKLES. I ask unanimous consent for 2 additional minutes.
Mr. KENNEDY. Then I ask for 4, 2 each side.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. NICKLES. A couple comments. The average length of collective
bargaining agreements: 66 percent of collective bargaining agreements
with over 1,000 employees--that is over 1,200 collective bargaining
agreements--the average length is 3 to 5 years; 28 percent are 5 to 6
years; an additional 7 percent are 6 to 8 years.
My point is these things last for years. People renegotiate their
health care plan. Federal employees do this every year. Almost
everybody does it every year. So for the health care plan for everybody
else in the private sector, you have to comply by next October, 12
months from now, maybe even January of next year; you will have to
comply. But if you are in a collective bargaining plan, you wait until
the plan terminates.
We asked the Department of Labor, does the plan terminate if
renegotiated and rolled over? Not necessarily.
In collective bargaining, you are talking about 30 million Americans
who will not receive the so-called benefits under this bill. That is a
fact.
Another fact: My colleague said we supported an amendment by Senator
Collins that said let the States use their State protections. I
strongly agree with that. That is a reason I will vote against the
underlying bill, because I don't think we should preempt States as the
Kennedy-McCain bill does. I believe in that strongly. I know my friends
and colleague from Massachusetts have a different belief. We could
debate that for hours.
My point is, if the patient protections are so good--and I heard many
sponsors say we should cover all Americans--the bill does not cover all
Americans. As a result of the language we have been debating,
collectively bargaining agreements are exempt for years. The bill we
are debating now does not cover public plans; it does not cover
Medicaid; it does not cover Medicare; it does not cover public
employees; it does not cover the military; it does not cover veterans;
it does not cover Federal employees.
We have control over Federal employees. If the patient protections
are so good for the private sector, why not for collective bargaining
plans as well?
Mr. KENNEDY. Madam President, it is interesting to listen to my
friend and colleague. The fact is, the last President, President
Clinton, put those in through Executive orders to cover those because
of the delay of the Republican leadership in letting us get through
this bill over the last 5 years. So rather than wait and wait and wait,
we had a Democratic President put them into effect.
Now if a collective bargaining unit or contract expires on October 2,
they go in prior to the time of the insurance coverage. They will go in
months ahead of the insurance. If the contract expires on October 5,
that goes in before July of the next year. So they get more protections
than those being covered by the insurance.
This is just a way of saying if the contracts are out there, we are
going to respect the termination of those contracts, whether it is in
the insurance or in collective bargaining. Evidently, the Senator wants
to use this as a device to punish some of their enemies, the unions in
this case, to try to use the legislative process to do so. I hope we
will reject that.
Mr. NICKLES. I yield myself 5 minutes off the leader time.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. NICKLES. I thank my friend, Senator Brownback. I am the third
Senator squeezed in front of him, and he has shown great patience. I
will be brief.
My colleague from Massachusetts said President Clinton gave these
protections to Federal employees because he couldn't wait for the
Republican Congress to pass them.
The facts are, Federal employees do not have patient protections that
are nearly as expensive, as aggressive, as intrusive as we are getting
ready to impose on the rest of the private sector. I may have an
amendment tomorrow to address that so we can save that for tomorrow's
debate.
The patient protection that President Clinton passed is not nearly
this big. Federal employees cannot sue their employer. When they have
an appeal process, they do not go to an independent party; they go to
OPM, Office of Personnel Management; they go to their employer. We do
not do that in this bill. Maybe we will debate that tomorrow.
Finally, he said in collective bargaining plans, they have to be
covered when the plan terminates. My point is the plan can be
renegotiated. You are talking years. Sixty-six percent of collective
bargaining plans are 3 to 5 years.
Then it says if they go ahead and implement it, it is not counted as
a plan termination; therefore, it is not effective. Let's give union
members the same protections we give all other private sector
employees.
I thank my colleagues and my colleague from Massachusetts and
particularly my colleague from Kansas for his patience in allowing us
to go forward.
Mr. KENNEDY. I am prepared to yield back the time.
The PRESIDING OFFICER. All time is yielded back.
Mr. NICKLES. Madam President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The Senator from Kansas.
Amendment No. 847
Mr. BROWNBACK. I send an amendment to the desk for immediate
consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Kansas [Mr. Brownback] proposes an
amendment numbered 847.
Mr. BROWNBACK. I ask unanimous consent reading of the amendment be
dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To prohibit human germline gene modification)
At the end of the bill, add the following:
TITLE--HUMAN-GERMLINE GENE MODIFICATION
SEC. 01. SHORT TITLE.
This title may be cited as the ``Human Germline Gene
Modification Prohibition Act of 2001''.
SEC. 02. FINDINGS.
Congress makes the following findings:
(1) Human Germline gene modification is not needed to save
lives, or alleviate suffering, of existing people. Its target
population is ``prospective people'' who have not been
conceived.
(2) The cultural impact of treating humans as biologically
perfectible artifacts would be entirely negative. People who
fall short of some technically achievable ideal would be seen
as ``damaged goods'', while the standards for what is
genetically desirable will be those of the society's
economically and politically dominant groups. This will only
increase prejudices and discrimination in a society where too
many such prejudices already exist.
(3) There is no way to be accountable to those in future
generations who are harmed or stigmatized by wrongful or
unsuccessful human germline modifications of themselves or
their ancestors.
(4) The negative effects of human germline manipulation
would not be fully known for generations, if ever, meaning
that countless people will have been exposed to harm probably
often fatal as the result of only a few instances of germline
manipulations.
(5) All people have the right to have been conceived,
gestated, and born without genetic manipulation.
SEC. 03. PROHIBITION ON HUMAN GERMLINE GENE MODIFICIATION.
(a) In General.--Title 18, United States Code, is amended
by inserting after chapter 15, the following:
``CHAPTER 16--GERMLINE GENE MODIFICATION
``Sec.
``301. Definitions
``302. Prohibition on germline gene manipulation.
``Sec. 301. Definitions
``In this chapter:
[[Page S7067]]
``(1) Human Germline Gene Modification.--The term `human
germline gene manipulation' means the intentional
modification of DNA in any human cell (including human eggs,
sperm, fertilized eggs, zygotes, blastocysts, embryos, or any
precursor cells that will differentiate into gametes or can
be manipulated to do so) for the purpose of producing a
genetic change which can be passed on to future individuals,
including inserting, deleting or altering DNA from any
source, and in any form, such as nuclei, chromosomes,
nuclear, mitochondrial, and synthetic DNA. The term does not
include any modification of cells that are not a part of and
will not be used to create human embryos. Nor does it include
the change of DNA involved in the normal process of sexual
reproduction.
``(2) Human haploid cell.--The term `haploid cell' means a
cell that contains only a single copy of each of the human
chromosomes, such as eggs, sperm, and their precursors.
``(3) Somatic Cell.--The term `somatic cell' means a
diploid cell (having two sets of the chromosomes of almost
all body cells) obtained or derived from a living or
decreased human body at any stage of development. Somatic
cells are diploid cells that are not precursors of either
eggs or sperm. A genetic modification of somatic cells is
therefore not germline genetic modification.
Rule of Construction: Nothing in this Act is intended to
limit somatic cell gene therapy, or to effect research
involving human pluripotent stem cells.
``Sec. 302. Prohibition on germline gene modification
``(a) In General.--It shall be unlawful for any person or
entity, public or private, in or affecting interstate
commerce--
``(1) to perform or attempt to perform human germline gene
modification;
``(2) to intentionally participate in an attempt to perform
human germline gene modification; or
``(3) to ship or receive the product of human germline gene
modification for any purpose.
``(b) Importation.--It shall be unlawful for any person or
entity, public or private, to import the product of human
germline gene modification for any purpose.
``(c) Penalties--
``(1) In general.--Any person or entity that is convicted
of violating any provision of this section shall be fined
under this section or imprisoned not more than 10 years, or
both.
``(2) Civil Penalty.--Any person or entity that is
convicted of violating any provision of this section shall be
subject to, in the case of a violation that involves the
derivation of a pecuniary gain, a civil penalty of not less
than $1,000,000 and not more than an amount equal to the
amount of the gross gain multiple by 2, if that amount is
greater than $1,000,000.''.
(b) Clerical Amendment.--The table of chapters for part I
of title 18, United States Code, is amended by inserting
after the item relating to chapter 15 the following:
``16 Germline Gene Modification..............................301''.....
Mr. BROWNBACK. Madam President, I rise today to offer an amendment to
the Patients' Bill of Rights. This amendment is about human germline
gene modification. That is a long way of saying--and I will go into
this for a period of time--stopping people from attempting to modify
the human species with outside genetic material. It may seem strange.
It happens in livestock, genetically modified organisms. Some people
are researching and discussing doing this within the human species to
create better people. I think it should be stopped, prohibited,
removed.
I looked for a better vehicle for this amendment, for another bill
that was a closer fit. It is a medical issue on the medical front. If
we get an agreement that I get a freestanding bill, I will do it that
way. Having not been able to do that, we offer it as an amendment now.
My amendment prohibits human germline gene modification. What is
that? Technically, it is the process by which the DNA of an individual
is permanently changed in such a way that it permanently affects his or
her offspring. Normally this is a DNA modification in either the egg or
the sperm within the human species, so when they combine, that genetic
modification is carried in that person and in future organisms, in
future people. So it starts at this single stage, the egg or the sperm,
molded together and multiplied in future generations.
This is not about genetic therapy; it is not about stem cell
research; it is not about human cloning. All those are other issues for
another day that do need to be considered but not here. My amendment in
no way hinders genetic therapy or other medical interventions that
treat patients suffering from diseases.
My amendment is about eugenics. For those not familiar, that is the
process or means of race improvement previously tried by many
diabolical methods or schemes, generally looked at as restrictions of
mating, of so-called superior people together, and now being attempted,
talked about, pressed forward by adding genetic material of humans from
outside the species.
This is ugly stuff, and it should be stopped. It is about what we as
a society are willing to allow and not to allow. The issue of germline
genetic modification is about our ability to create designer babies,
choose eye color, height, or IQ. I offer this amendment, well aware
that many of my colleagues understandably may be unaware of these so-
called advances being made in the field of biotechnology and the impact
those advances will inevitably have on the human race.
I come from an agricultural background. I used to be a Secretary of
Agriculture in Kansas. These are things we commonly do now in plants,
and we are having research done extensively in animals. People are
talking about bringing some of the same technology to humans. It has to
be stopped and should be stopped.
Many of the advances promise great achievement for mankind and a
betterment of human conditions. Some of the advancements in
biotechnology do not. Human germline gene manipulation is one of those.
It is one of those advances discussed mostly in theoretical terms until
recently. More disturbingly, it is the realization of the age-old quest
to design better people. Germline gene manipulation is the summit of
the eugenics movement. One of the groups we have consulted with prior
to preparing this amendment is a group chaired by Claire Nader, the
sister of former Presidential candidate Ralph Nader. It is a group she
has been associated with, the Council for Responsible Genetics. They
are unequivocally opposed to human germline gene modification.
The Council states this:
We strongly oppose the use of germline gene modifications
in humans.
They continue:
Today, public discussion in favor of influencing the
genetic constitution of future generations has gained new
respectability with the increased possibility for
intervention. Although it is once again espoused by
individuals with a variety of political perspectives, modern
eugenic programs are now defended as driven by individual
need, choice. But the doctrine of social advancement through
biological perfectibility underlying the new eugenics is even
more potent than the older version. Its supporting data seem
more scientifically sophisticated and the alignment between
the state, through its support of the market and the
individual exercising so-called free choice, is
unprecedented.
The Council goes on to state further:
These considerations make the social and ethical problems
raised by germline gene modification very different from
those raised by genetic manipulations, that target certain
nonreproductive deficiencies in organs of patients, again in
somatic cell gene modification.
As the Council states in very clear terms:
The underlying political philosophy of those who support
germline gene modification has been sanitized with new terms,
but is in reality the same old eugenic message with which the
20th century was deeply and direly afflicted. In numerous
conversations that I have had with Dr. Francis Collins, who
heads the National Human Genome Research Institute here in
Washington, who has had a fantastic report that was out last
year on the Human Genome Project, reported out a beautiful
array of the complexity of the genetic structure in each and
every one of our 10 trillion cells and if we printed out that
genetic structure and had it in front of us, it would be a
stack of paper 100 feet taller than the Washington monument.
We have talked about the beauty of the human genome and also talked
about the potential for problems in its manipulation, as that could be
carried onto future humans.
Madam President, human germline gene modification is not needed to
save lives or alleviate suffering of existing people. Its target
population is prospective people who have not been conceived. The
cultural impact of treating humans as biologically perfectible
artifacts would be entirely negative. People who fall short of some
technically achievable ideal would be seen as damaged goods, while the
standards for what is genetically desirable would be those of the
society's economically and politically dominant group. We have heard
these themes before. This will only increase prejudices and
discrimination in a society which already has too many of these.
[[Page S7068]]
There is no way to be accountable to those in the future generations
who are going to be harmed or stigmatized by the wrongful or
unsuccessful human germline gene modification of their ancestors. The
negative effects of human germline modification would not be fully
known for generations, if ever, meaning that countless people will have
been exposed to harm, probably often fatal, as a result of only a few
instances of germline manipulations.
All people have the right to be conceived, gestated, and born without
genetic manipulation. Human germline gene manipulation will only serve
to turn human beings into commodities with traits that are bought and
sold, with attributes that are determined by technicians, and parents
who want to exert genetic tyranny over their offspring. This is a step
too far. This is grossly unethical for it to happen. I urge the Senate
to adopt my amendment to prohibit it once and for all.
Again I put forward, in layman's terms, what this is about. This is
about getting and adding outside genetic material into the human
species, whether it be plant--tomato--or animal--chicken--from a tree
somewhere that a snippet of genetic material would be added in, at the
egg or the sperm level. Once added in there, when the union occurred it
would be in that human and also then passed on to future generations.
That is what we are talking about here. It is not about any sort of
gene therapy or any of the other issues. It is not about cloning
either, which is the identical replication. This is adding in the
outside genetic material.
I think everybody would look at this and say that is not a road we
want to go down. Yet some people today are contemplating doing this.
I want to add a couple of other points. The European Council on
Biomedics has stated its opposition to this human germline gene
modification. I think the civilized world really needs to step up right
now, before people get going and moving forward, saying: We could make
people taller. We could make people live longer by this modification.
We found a gene line in trees that we could put in earlier, to the
human species, and cause this to happen. We have a way to manipulate or
change this--without knowing in any way down in future generations what
this impact is.
We can send a strong, clear signal at this point in time that we want
nothing to do with this, that this is wrong, this is eugenics, this is
the height of eugenics, and it should not take place. The Europeans are
moving that way. We should as well as much of the rest of the civilized
world, and say we want no part of this, and we can do that with a
clear, I hope unanimous, vote of the Senate, saying this is wrong.
I know people differ on some of these other biotechnology issues,
such as cloning. That is left for another day. The language in this
bill is clear, specific; it is easy to understand. We may have
differences on some of the other issues we may get into over a period
of time, but this is one, as I have searched around, where there is a
broad coalition, left and right, that says yes, this one should be
banned. That is why we worked closely with Ms. Nader's group, consulted
with biotechnology groups, who were saying: Yes, this is not a place we
should be going either. Here is a place we can stop this.
This is the only vehicle I could see where there was some connection
bringing this up. If we could do it on a freestanding bill at some time
on the floor, I would be happy to do that, but absent that, I would
like to get this considered on this bill.
I yield the floor. I don't know that there is a time agreement on
this amendment. Is that correct?
The PRESIDING OFFICER. There is a time agreement. There is 1 hour
evenly divided.
Mr. BROWNBACK. Thank you, Madam President.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Madam President, I want to express a great deal of
respect for my friend and colleague for his concern and interest in a
great variety of different public policy issues, and also their ethical
implications. He studies these issues. He is concerned about them. He
brings them into the public debate and discussion. We always listen
with great interest to his presentations on these matters because he
has given this a great deal of thought.
Even so, I must rise to oppose this amendment. I can understand the
good Senator's frustration that we do not have a real opportunity to
have the kind of debate on a freestanding bill that could give the
Senate the benefit of a good discussion on this issue. Unfortunately,
we are here at 20 minutes of 10. There are just a few of us here at
this time, and we will only have a few minutes tomorrow to deal with an
issue of enormous importance and consequence.
Millions of American children are born with deadly diseases such as
cystic fibrosis and muscular dystrophy that result from flaws in the
DNA code. One of the most promising ways to cure these afflictions is
to correct these DNA errors using gene therapy. If these flaws could be
corrected before birth, millions of children could live their entire
lives free of the debilitating symptoms of cruel genetic disorders.
Yet the Brownback amendment would ban any attempt to cure children of
deadly disorders such as cystic fibrosis and muscular dystrophy by
correcting their DNA flaws before birth.
It even goes so far as to imprison doctors who try to save their
lives and relieve their suffering.
The Brownback amendment is opposed by a wide range of organizations
representing patients, doctors, scientists, and the biotechnology
industry. They know this amendment would have a chilling effect on the
biomedical research that gives hope to millions of Americans at risk
for genetic diseases.
The amendment is so broad that it will criminalize several promising
areas of biomedical research, even including gene therapy in adults.
This important, complex topic deserves a thoughtful and measured
response, and not the indiscriminate prohibition that the Brownback
amendment proposes.
The American people do not support the sweeping prohibitions that the
Brownback amendment would impose.
A recent study funded by the NIH conducted by the University of
Michigan found that 65 percent of the public opposed a ban on prenatal
gene therapy, and only one in five of those support such a ban.
There are great numbers of genetic diseases, and there are great
numbers of inherited diseases. Those that come to mind quickly are
cystic fibrosis and muscular dystrophy, Tay-Sachs, Cooley's disease,
and many others in the cystic fibrosis area.
It is basically an issue involving a single gene. That is also true
in muscular dystrophy.
Just think if we were able to get to the point where a parent would
be able to see the alteration of that gene so that the child that was
going to be born would be free from muscular dystrophy or from cystic
fibrosis by altering the DNA.
We can easily understand where the language that is included may not
be the purpose of the Senator, but certainly the language I think is
sufficiently vague as to prohibit some promising research.
At this time, I think this is a matter of enormous importance. I
don't think we really ought to be dealing with this issue on this bill.
I can understand the Senator's frustration in not being able to have
the debate in the Senate and to hear the different views on this issue.
But I believe we ought to defeat the amendment for now, have additional
review and study and hearings, and that we ought to then consider the
various public policy issues and the ethical issues that surround it.
Mr. REID. Madam President, will the Senator yield?
Mr. KENNEDY. Yes.
Mr. REID. I would like to ask the Senator a question. A couple of
years ago when I was chairman of the Democratic Policy Committee, one
of the issues at the time was cloning, for lack of a better
description. We had a luncheon at the Democratic Policy Committee. This
may not be directly in point, but it points up what the Senator is
saying. This is a very complex issue. We need more time and medical
expertise to respond to this.
But the Senator will remember that we had a hematology professor from
Harvard. We had the leading expert on gene therapy at NIH. The Senator
will
[[Page S7069]]
recall a number of things. The thing that is so vivid in my mind is the
Harvard professor, who was of course a practicing physician, gave an
example of how progress is being made in the medical field and in the
areas that need more study.
He said that a young woman with leukemia was referred to him. I do
not know the scientific name nor the type of leukemia. He did the
examination and looked at the information he had been given.
The Senator will recall that the doctor asked this young lady if she
had a brother or sister. She said no. He said that right then he knew
she was in big trouble. She probably couldn't make it and would die.
The next day, the Senator will recall, another teenager came in with
leukemia. It was the same process. He asked this young man if he had a
brother or sister. He said no, and paused for a second. He said: I am a
twin. The doctor said that he knew right then that the young man was
going to live as long as anybody in this room because they could do a
bone marrow transplant and regenerate those cells.
I don't fully understand what the Senator from Kansas is advocating
with his amendment. I know he is candid and is well placed. I know
after having listened to the woman from NIH and the professor from
Harvard that I have great hope progress is being made on some of the
most dreaded diseases that face especially children in America today.
The Senator from Massachusetts and I know how well-intentioned the
Senator from Kansas is. I think we should defeat this amendment and
wait for a later day so we can have more opportunity to examine this
more closely.
The Senator remembers that meeting in the room right down the hall
here?
Mr. KENNEDY. I do remember. All of us as Members of this body get a
chance to go out to NIH and visit with the researchers and listen,
watch, and hear about those extraordinary, dedicated men and women who
are dealing with so much of the cutting edge research.
I think we want to make sure that we are very careful in the steps we
are going to take that in some way would inhibit research. There are
obviously strong ethical issues which we constantly have to examine and
consider.
But I am very much concerned about the kind of prohibition that this
type of amendment would include.
I want to make it clear that the amendment that the Senator from
Kansas puts forward does not ban cloning, but it would ban similar
cutting edge research.
That is what our concern is and why we will oppose it tomorrow.
The PRESIDING OFFICER. The Senator from Kansas.
Mr. BROWNBACK. Madam President, I would like to correct some
miscalculation with the Senator from Massachusetts. I want to read from
the amendment because he represented a couple of examples that we
specifically state in the bill we are not prohibiting.
On page 4 of the amendment under ``construction,'' it states
specifically that:
Nothing in this Act is intended to limit somatic cell gene
therapy, or to effect research involving human pluripotent
stem cells.
This somatic cell gene therapy is what you are talking about where
you have already the sperm and egg, and you have a full chromosome.
That is where you may want to make changes, and that is where the
research is focused. Now they can deal with some of the dreaded
diseases the Senator from Massachusetts says we should rightly try to
deal with. I agree that we should.
We specifically added that. We covered that point the Senator raised
and about which he has concern because we don't want to impact that
area. We talk about this on page 3. It says:
The term ``human germline gene modification'' means the
intentional modification of DNA in any human cell for the
purpose of producing a genetic change which can be passed on
to future individuals.
In this amendment we are saying: Do we really want to change the
human species without knowing what the impact is going to be down the
road? Maybe we have a shot at changing this one, but what is it going
to do to the next generation, the second one, the third one, the fourth
one, and after that?
I also point out to the good Senator who has worked tirelessly to get
this bill through to passage--I appreciate both his work and the work
of the Senator from Nevada on just continuing to press forward. They
have done a very good job. But I point out to them that we have
significant limitations on doing this to animals. Right now, if you
wanted to take a fish and put a tomato germline in it, or something
from a tomato gene--actually this is being done--this is a heavily
regulated area by FDA, and the USDA, as well it should be. My goodness,
do we want to get super fish out here that could swim and do things and
take over a whole area of species? They are actually concerned. It may
sound scientific, like this is just off the wall. But this is happening
today.
We have these deep concerns within our society. You do not have to
listen to me. The Senator from California knows what is taking place
this week in southern California. People are deeply concerned about
this being done with animals and plants.
All I am talking about with this amendment is to say, the careful
thing for us to do right now is to prohibit it in humans.
As the Senator from Massachusetts knows, in any future legislative
session we can remove that prohibition. We could do that next year. But
wouldn't the careful, thoughtful thing be to say right now: ``We don't
want to modify the human species''? It has no regulation, no
limitation, no review on it today. People are out there doing these
things.
Wouldn't the really thoughtful position be that we should stop this
because we don't know its impact down the road--stop this now--and
then, if the researchers really convince us this is the right thing to
do, we can open it back up? I think we open up an incredible Pandora's
box if we allow this unregulated area of human experimentation to
continue at this time. And that is what is being defended here.
I think this should give us some thoughtful consideration. This is
limited in its drafting. We have worked with a number of groups on its
drafting. It is very specific. This has to do with it being passed down
to future generations. This is something that we should prohibit at
this time.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Madam President, there are several organizations that
draw different conclusions about the Senator's amendment. You have the
Biotechnology Industry Organization that says:
Unfortunately, the Brownback amendment reaches far beyond
germ line gene modification. It attempts to regulate genetic
research--a complex and dynamic field of science that holds
great potential for patients with serious and often life-
threatening illnesses.
And from the Association of American Medical Colleges:
Much more troubling, however, the amendment reaches far
beyond germ line therapy. Taken on its face, the amendment
would prohibit other areas of research into gene therapy as
well.
I ask unanimous consent an analysis be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Memorandum
June 28, 2001.
To: Michael Werner, Esquire, BIO Bioethics Counsel.
From: Edward L. Korwek, Ph.D., J.D.
Re: Some Initial Comments/Analysis of the Brownback
Amendment.
The Brownback Amendment is poorly worded and confusing as
to its precise coverage. It uses a variety of scientific
terms and other complex language both to prohibit and allow
certain gene modification activities. Many of the sentences
are composed of language that is incorrect or ambiguous from
a scientific standpoint. A determination needs to be made of
what each sentence of the Amendment is intended to
accomplish.
As to a few of the important definitions, the term
``somatic cell'' is defined in proposed section 301(3) of
Chapter 16, as ``a diploid cell (having two sets of the
chromosomes of almost all body cells) obtained or derived
from a living or deceased human body at any stage of
development.'' What does ``of almost all body cells'' mean?
Is this an oblique reference to the haploid nature of human
sex cells, i.e., sperm and eggs? Also, why is it important to
describe in such confusing detail from where the cells are
derived (in contrast to simply saying, for example, a
[[Page S7070]]
somatic cell is a human diploid cell)? From a scientific
standpoint, the definition of a somatic cell is not dependent
on whether the cell is from living or dead human beings. More
importantly, as to this human source issue, when does a
``human body'' exist such that its status as ``living'' or
``dead'' or its ``stages of development'' become relevant
criteria for determining what is a ``somatic cell.''
Similarly, the definition of ``human germline
modification,'' especially the first sentence, is very
convoluted. The first sentence states:
``The term `human germline gene modification' means the
intentional modification of DNA of any human cell (including
human eggs, sperm, fertilized eggs (i.e., embryos, or any
early cells that will differentiate into gametes or can be
manipulated to do so) for the purpose of producing a genetic
change which can be passed on to future individuals,
including DNA from any source, and in any form, such as
nuclei, chromosomes, nuclear, mitochondrial, and synthetic
DNA.''
Among other problems, which of the examples listed are
``sources'' or ``forms'' of DNA and why does it matter?
Moreover, the sentence ends by referring to ``including DNA
from any source, and in any form, such as nuclei,
chromosomes, nuclear, mitochondrial, and synthetic DNA.'' To
what part of the first sentence defining ``human germline
modification'' is this language referring? Does the last
sentence of the definition, ``Nor does it include the change
of DNA involved in the normal process of sexual
reproduction'' prohibit in vitro fertilization? Does any
other part of the Amendment prohibit or allow in vitro
fertilization? What genetic technologies does ``normal''
cover, if any?
Similarly, the second sentence in the definition, stating
what is not covered by the definition of ``human germline
modification,'' contains three ``not'' words, leaving the
reader to decipher what exactly is ``not'' ``human germline
modification'': ``The term does not include any modification
of cells that are not a part of and will not be used to
construct human embryos'' (emphasis added). Also, what is an
``embryo'' for purposes of this Amendment and what does
``part of'' mean? Are (fertilized) sex cells ``part of'' an
embryo?
These and other problems leave the bill unsupportable in
its current form. Due to this imprecision, the amendment's
impact is unclear and seemingly far reaching.
Mr. KENNEDY. Madam President, a memorandum by Hogan & Hartson says:
The Brownback Amendment is . . . confusing as to its
precise coverage. It uses a variety of scientific terms and
other complex language both to prohibit and allow certain
gene modification activities.
And it gives a several-page analysis of this.
The fact is, as I understand it, there is a moratorium now at NIH.
NIH does not permit any of the research in transferring of the
materials in terms of genes at the present time.
I just mention quickly, on page 3 of the amendment, on lines 10 and
11, it talks about ``for the purpose of producing a genetic change
which can be passed on to future individuals . . .'' That ought to be a
matter of concern to parents because that is an area of very great
potential in terms of parents who have the gene--in terms of cystic
fibrosis, muscular dystrophy--in trying to impact that kind of DNA so
that they will not pass this on. Yet this is talking about restricting
the research for ``producing a genetic change which can be passed on to
future individuals . . .'' That very area is a matter of enormous
importance and consequence.
I know the Senator has given this a lot of thought. It is enormously
important. I respect him for it. I know that he revisits these issues
continuously. We will look forward to continuing to work with him. I
know he is incredibly concerned about the broad areas of ethical
issues. In those areas of ethical concerns there are no simple, easy
answers. There is enormous division, significant divisions, in many
different areas.
But it does seem to me that in the time that we have available to
consider this, and on this particular legislation, and with the very
strong opposition of the research community generally, that it would be
unwise for us to add this at this time to the legislation.
The PRESIDING OFFICER. The Senator from Kansas.
Mr. BROWNBACK. Madam President, I would just note once more for my
colleagues that the area of genetic manipulation, germline therapy, is
regulated in animals and in plants but is completely unregulated--there
is nothing on it--in humans.
Is that a responsible way for us to go? There is nothing on it. If we
want to do it right now on the human species in the United States, go
ahead, fine. If you want to do that, release that into us, into the
human species, fine, go ahead. If you want to do it in fish, we have a
series of hoops that you have to jump through and filings that you have
to make and limitations on where this can take place all up and down,
everywhere. But for humans, fine. I guess if we are going to eat it, we
are concerned about it. But if it is one of us, OK.
I have deep respect for the Senator from Massachusetts. He is very
thoughtful and one of the most productive Members of this body,
probably in the history of this body. But I would really seriously ask
him to look at this area. Is this something we want to do in this
society? This is not only technically or theoretically feasible today;
it can be done today. It has been done in the animal line for years
now. This has been going on for 10 years-plus, 15 years in animals. The
genetic lineup in animals versus humans is not that much different.
Totally unregulated, no limitations--go ahead and do it in humans, not
in cattle.
I would hope we could at least get some agreement that this is going
to be further considered sometime during this legislative session. If
we want more limited language, I am more than happy to work with
individuals in drafting more limited language. If there is concern
about gene therapy on it, I am willing to draft it as tight as they
want to on gene therapy. That would be just fine by me. But to let this
go on now, you are inviting people to step up. If we need to work with
the groups the Senator listed to draft it more tightly, I am happy to
do that.
This is a serious matter. We have more and more people in the streets
protesting about this very thing. I think we should wake up on that
particular point, if nothing else. We saw the protest that took place
in Seattle. We saw what it did to the World Trade talks. That was on
food. We are seeing what is taking place in the Biotechnology Expo in
Southern California right now. That is on humans.
This issue is not going away. It is something that we are going to
have to confront. I would hope and I would think we would be far wiser
to do it sooner rather than later. I am happy to work with anybody on
drafting the language to see that that takes place.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. I will include the regulations which are in existence
now. I ask unanimous consent they be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From pages 90-92--NIH Guidelines for Research Involving Recombinant
DNA Molecules]
Appendix K-VII-K. Pathogen. A pathogen is any
microbiological agent or eukaryotic cell containing
sufficient genetic information, which upon expression of such
information, is capable of producing disease in healthy
people, plants, or animals.
Appendix K-VII-L. Physical Barrier. A physical barrier is
considered any equipment, facilities, or devices (e.g.,
fermentors, factories, filters, thermal oxidizers) which are
designed to achieve containment.
Appendix K-VII-M. Release. Release is the discharge of a
microbiological agent or eukaryotic cell from a containment
system. Discharges can be incidental or accidental.
Incidental releases are de minimis in nature; accidental
releases may be de minimis in nature.
Appendix L. Gene Therapy Policy Conferences (GTPCs)
In order to enhance the depth and value of public
discussion relevant to scientific, safety, social, and
ethical implications of gene therapy research, the NIH
Director will convene GTPCs at regular intervals. As
appropriate, the NIH Director may convene a GTPC in
conjunction with a RAC meeting. GTPCs will be administered by
NIH/OBA. Conference participation will not involve a standing
committee membership but rather will offer the unique
advantage of assembling numerous participants who possess
significant scientific, ethical, and legal expertise and/or
interest that is directly applicable to a specific gene
therapy research issue. At least one member of RAC will serve
as Co-chair of each GTPC and report the findings of each GTPC
to RAC at its next scheduled meeting. The RAC representative
for each GTPC will be chosen based on the participant's area
of expertise relative to the specific gene therapy research
issue to be discussed. All RAC members will be invited to
attend GTPCs. GTPCs will have representation from other
Federal agencies, including FDA and OPRR. GTPCs will focus on
broad overarching policy and scientific issues related to
gene therapy research. Proposals for GTPC topics may be
submitted by members
[[Page S7071]]
of RAC, representatives of academia, industry, patient and
consumer advocacy organizations, other Federal agencies
professional scientific societies, and the general public.
GTPC topics will not be limited to discussion of human
applications of gene therapy research, i.e., they may include
basic research on the use of novel gene delivery vehicles, or
novel applications of human gene transfer. The RAC, with the
Director's approval, will have the primary responsibility for
planning GTPC agendas. GTPC findings will be transmitted to
the NIH Director and will be made publicly available. The NIH
Director anticipates that this public policy forum will serve
as a model for interagency communication and collaboration,
concentrated expert discussion of novel scientific issues and
their potential societal implications, and enhanced
opportunity for public discussion of specific issues and
potential impact of such applications on human health and the
environment.
Appendix M. Points to Consider in the Design and Submission
of Protocols for the Transfer of Recombinant DNA
Molecules into One or More Human Research Participants
(Points to Consider)
Appendix M applies to research conducted at or sponsored by
an institution that receives any support for recombinant DNA
research from NIH. Researchers not covered by the NIH
Guidelines are encouraged to use Appendix M (see Section I-C,
General Applicability).
The acceptability of human somatic cell gene therapy has
been addressed in several public documents as well as in
numerous academic studies. In November 1982, the President's
Commission for the Study of Ethical Problems in Medicine and
Biomedical and Behavioral Research published a report,
Splicing Life, which resulted from a two-year process of
public deliberation and hearings. Upon release of that
report, a U.S. House of Representatives subcommittee held
three days of public hearings with witnesses from a wide
range of fields from the biomedical and social sciences to
theology, philosophy, and law. In December 1984, the Office
of Technology Assessment released a background paper, Human
Gene Therapy, which concluded that civic, religious,
scientific, and medical groups have all accepted, in
principle, the appropriateness of gene therapy of somatic
cells in humans for specific genetic diseases. Somatic cell
gene therapy is seen as an extension of present methods of
therapy that might be preferable to other technologies. In
light of this public support, RAC is prepared to consider
proposals for somatic cell gene transfer.
RAC will not at present entertain proposals for germ line
alterations but will consider proposals involving somatic
cell gene transfer. The purpose of somatic cell gene therapy
is to treat an individual patient, e.g., by inserting a
properly functioning gene into the subject's somatic cells.
Germ line alteration involves a specific attempt to introduce
genetic changes into the germ (reproductive) cells of an
individual, with the aim of changing the set of genes passed
on to the individual's offspring.
The RAC continues to explore the issues raised by the
potential of in utero gene transfer clinical research.
However, the RAC concludes that, at present, it is premature
to undertake any in utero gene transfer clinical trail.
Significant additional preclinical and clinical studies
addressing vector transduction efficacy, biodistribution, and
toxicity are required before a human in utero gene transfer
protocol can proceed. In addition, a more thorough
understanding of the development of human organ systems, such
as the immune and nervous systems, is needed to better define
the potential efficacy and risks of human in utero gene
transfer. Prerequisites for considering any specific human in
utero gene transfer procedure include an understanding of the
pathophysiology of the candidate disease and a demonstrable
advantage to the in utero approach. Once the above criteria
are met, the RAC would be willing to consider well
rationalized human in utero gene transfer clinical trials.
Research proposals involving the deliberate transfer of
recombinant DNA, or DNA or RNA derived from recombinant DNA,
into human subjects (human gene transfer) will be considered
through a review process involving both NIH/OBA and RAC.
Investigators shall submit their relevant information on the
proposed human gene transfer experiments to NIH/OBA.
Submission of human gene transfer protocols to NIH will be in
the format described in Appendix M-1, Submission
Requirements--Human Gene Transfer Experiments. Submission to
NIH shall be for registration purposes and will ensure
continued public access to relevant human gene transfer
information conducted in compliance with the NIH Guidelines.
Investigational New Drug (IND) applications should be
submitted to FDA in the format described in 21 CFR, Chapter
1, Subchapter D, Part 312, Subpart B, Section 23, IND Content
and Format.
Institutional Biosafety Committee approval must be obtained
from each institution at which recombinant DNA material will
be administered to human subjects (as opposed to each
institution involved in the production of vectors for human
application and each institution at which there is ex vivo
transduction of recombinant DNA material into target cells
for human application).
Factors that may contribute to public discussion of an
human gene transfer experiment by RAC include: (i) new
vectors/new gene delivery systems, (ii) new diseases, (iii)
unique applications of gene transfer, and (iv) other issues
considered to require further public discussion. Among the
experiments that may be considered exempt from RAC discussion
are those determined not to represent possible risk to human
health or the environment. Full RAC review of an individual
human gene transfer experiment can be initiated by the NIH
Director or recommended to the NIH Director by: (i) three or
more RAC members, or (ii) other Federal agencies. An
individual human gene transfer experiment that is recommended
for full RAC review should represent novel characteristics
deserving of public discussion. If the Director, NIH,
determines that an experiment will undergo full RAC
discussion, NIH/OBA will immediately notify the Principal
Investigator. RAC members may forward individual requests for
additional information relevant to a specific protocol
through NIH/OBA to the Principal Investigator. In making a
determination whether an experiment is novel, and thus
deserving of full RAC discussion, reviewers will examine the
scientific rationale, scientific context (relative to other
proposals reviewed by RAC), whether the preliminary in vitro
and in vivo safety data were obtained in appropriate models
and are sufficient, and whether questions related to relevant
social and ethical issues have been resolved. RAC
recommendations on a specific human gene transfer experiment
shall be forwarded to the NIH Director, the Principal
Investigator, the sponsoring institution, and other DHHA
components, as appropriate. Relevant documentation will be
included in the material for the RAC meeting at which the
experiment is scheduled to be discussed. RAC meetings will be
open to the public except where trade secrets and proprietary
information are reviewed (see Section IV-D-5, Protection of
Proprietary Data). RAC prefers that information provided in
response to Appendix M contain no proprietary data or trade
secrets, enabling all aspects of the review to be open to the
public.
Note: Any application submitted to NIH/OBA shall not be
designated as `confidential;' in its entirety. In the
event that a sponsor determines that specific responses to
one or more of the items described in Appendix M should be
considered as proprietary or trade secret, each item
should be clearly identified as such. The cover letter
(attached to the submitted material) shall: (1) clearly
indicate that select portions of the application contain
information considered as proprietary or trade secret, (2)
a brief explanation as to the reason that each of these
items is determined proprietary or trade secret.
Public discussion of human gene transfer experiments (and
access to relevant information) shall serve to inform the
public about the technical aspects of the proposals, meaning
and significance of the research, and significant safety,
social, and ethical implications of the research. RAC
discussion is intended to ensure safe and ethical conduct of
gene therapy experiments and facilitate public understanding
of this novel area of biomedical research.
In its evaluation of human gene transfer proposals, RAC
will consider whether the design of such experiments offers
adequate assurance that their consequences will not go beyond
their purpose, which is the same as the traditional purpose
of clinical investigation, namely, to protect the health and
well being of human subjects being treated while at the same
time gathering generalizable knowledge. Two possible
undersirable consequences of the transfer of recombinant DNA
would be unintentional: (i) vertical transmission of genetic
changes from an individual to his/her offspring, or (ii)
horizontal transmission of viral infection to other persons
with whom the individual comes in contact. Accordingly,
Appendices M-I through M-V request information that will
enable RAC and NIB/OBA to assess the possibility that the
proposed experiment(s) will inadvertently affect reproductive
cells or lead to infection of other people (e.g., medical
personnel or relatives).
Appendix M will be considered for revisions as experience
in evaluating proposals accumulates and as new scientific
developments occur. This review will be carried out
periodically as needed.
Appendix M-I. Requirements for Protocol Submission, Review,
and Reporting--Human Gene Transfer Experiments
Appendix M-I-A. Requirements for Protocol Submission
The following documentation must be submitted (see
exemption in Appendix M-VI-A, Footnotes of Appendix M) in
printed or electronic form to the: Office of Biotechnology
Activities, National Institutes of Health, 6705 Rockledge
Drive, Suite 750, MSC 7985 Bethesda, MD. 20892-7985 (20817
for non-USPS mail), 301-496-9838, 301-496-9839 (fax), E-mail:
[email protected]. NIH OBA will confirm receipt within
three working days after receiving the submission.
Investigators should contact OBA if they do not receive this
confirmation.
1. A cover letter on institutional letterhead, signed by
the Principal Investigator(s), that (1) acknowledge that the
documentation submitted to NIH OBA compiles with the
requirements set forth in Appendix M-I-A, Requirements for
Protocol Submission: (2) identifies the Institutional
Biosafety Committee (IBC) and Institutional Review Board
(IRB) as the proposed clinical trial site(s) responsible for
local review and approval of the
[[Page S7072]]
protocol; and (3) acknowledges that no research participant
will be enrolled (see definition of enrollment in Section I-
E-7) until the RAC review process has been completed (see
Appendix M-I-B, RAC Review Requirements); IBC approval (from
the clinical trial site) has been obtained; IRB approval has
been obtained; and all applicable regulatory authorizations
have been obtained.
2. The scientific abstract.
3. The non-technical abstract.
4. The proposed clinical protocol, including tables,
figures, and relevant manuscripts.
5. Responses to Appendices M-II through M-V, Description of
the Proposal, Informed Consent, Privacy and Confidentiality,
and Special Issues. Responses to Appendices M-II through M-V
may be provided either as an appendix to the clinical
protocol or incorporated in the clinical protocol. If
responses to Appendixes M-II through M-V are incorporated in
the clinical protocol, each response must refer to the
appropriate Appendix M-II through M-V.
Mr. KENNEDY. Finally, the reason there is a moratorium is there isn't
reason to believe that this kind of research is safe today. But it may
very well be safe tomorrow or the next day. And the possibilities, as I
say, are unlimited. The action of the Senator may effectively close
that window, close that door. I do not think that we ought to be in the
position of doing that. So I have included the current state of the
regulations that are in effect now in NIH and the reasons for those
regulations.
Unless there is someone else who wants to speak on this----
The PRESIDING OFFICER. The Senator from Kansas.
Mr. BROWNBACK. Madam President, I would like to respond on that point
as well. The FDA is saying they have authority over this. One of the
groups they are seeking to regulate is saying they do not have
authority, and they are going to sue them to keep the FDA from
regulating them.
So regulations have been proposed, but it is a very open question
about whether or not this applies to groups that are seeking to do this
or seeking legal injunction prohibiting the FDA from regulating this.
So we can put those on forward.
The fact is, this has not been dealt with, and it is of utmost
importance to people in this country and around the world, and it
should be. This should not happen during our watch.
The PRESIDING OFFICER. Does the Senator yield the remainder of his
time?
Mr. BROWNBACK. Madam President, I ask for the yeas and nays.
The PRESIDING OFFICER. The yeas and nays have been requested.
Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. BROWNBACK. Madam President, I yield back the remainder of my
time.
The PRESIDING OFFICER. Does the Senator from Massachusetts yield back
his time?
Mr. KENNEDY. I yield back the remainder of my time.
The PRESIDING OFFICER. Who seeks recognition? The Senator from Nevada
is recognized.
Amendment No. 849
(Purpose: To provide for genetic nondiscrimination)
Mr. ENSIGN. Madam President, I call up amendment No. 849 and ask for
its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The senior assistant bill clerk read as follows:
The Senator from Nevada [Mr. Ensign] proposes an amendment
numbered 849.
Mr. ENSIGN. Madam President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The text of the amendment is printed in today's Record under
``Amendments Submitted.'')
Mr. ENSIGN. Madam President, the amendment that I have proposed
really is entitled the ``protection against genetic discrimination
act.'' The Senator from Massachusetts is one of the cosponsors of a
bill that contains this particular amendment, along with 22 other
Senators.
The mapping of the human genome is one of the most amazing scientific
breakthroughs in recent history. Information that is embedded in the
genome holds the key to understanding the illnesses and diseases that
affect millions of people across the world every day.
I would like to note, this has nothing to do with the amendment that
Senator Brownback just proposed. We want to keep the controversies
separate. What our amendment deals with is whether you can take this
genetic information and use it to determine whether or not to provide
health insurance coverage.
When the map of the human genome is completed, we will have all of
the information that is contained in the 23 pairs of chromosomes in the
human body. This information will be instrumental for finding the cure
for diseases such as breast cancer, cystic fibrosis, Alzheimer's
disease, and hundreds of other debilitating illnesses.
However, this breakthrough also carries great dangers. Current law
does not provide any protections for individuals to keep their own
genetic information private. Currently there is no law prohibiting a
health plan from requiring an applicant to provide genetic information
prior to the approval for insurance. In other words, any individual
with a genetic marker for a specific disease would most likely not be
able to receive health insurance coverage for the treatment of that
disease.
A joint report by the Department of Labor, Department of Health and
Human Services, the Equal Employment Opportunity Commission, and the
Department of Justice summarized the various studies on discrimination
based on genetic information and argued for the enactment of Federal
legislation.
The report stated that:
Genetic predisposition or conditions can lead to work force
discrimination, even in cases where workers are healthy and
unlikely to develop disease, or where the genetic condition
has no affect on the ability to perform work.
Because an individual's genetic information has
implications for his or her family members and future
generations, misuse of genetic information could have
intergenerational effects that are broader than any
individual incident of misuse.
Dr. Francis Collins, the director of the National Human Genome
Research Institute, has stated:
While genetic information and genetic technology hold great
promise for improving human health, they can always be used
in ways that are fundamentally unjust. Genetic information
can be used as the basis for insidious discrimination.
The misuse of genetic information has the potential to be,
and is, a very serious problem both in terms of people's
access to employment and health insurance and the continued
ability to undertake important genetic research.
This amendment takes the first step toward providing individuals with
the protections they need for their individual genetic information.
This amendment, as I mentioned before, is part of a larger bill that
Senator Daschle has introduced on this very same subject. Simply put,
this amendment prohibits health insurance companies from using genetic
information when deciding whether or not to provide health insurance
for an individual.
Insurance companies would not be able to use genetic information to
deny an individual's application for coverage or charge excessive
premiums.
Think about diseases such as Tay-Sachs, sickle-cell anemia, breast
cancer, colon cancer, cystic fibrosis, and other diseases in which we
have identified genes that predispose people to these diseases. Just
think about how many Americans this affects now and will affect in the
future as we discover new genes that predispose people to certain
diseases. It is because of this that we must include this amendment if
we are truly going to call this bill a Patients' Bill of Rights.
Madam President, my wife and I helped co-found the Breast Cancer
Coalition of Nevada. Many of the women who are actively involved in
this wonderful organization are breast cancer survivors or family
members of women who have died from breast cancer. A wonderful friend
of my wife and I, one of the most incredible women I have ever met,
died in my wife's arms several years ago. She died of breast cancer. To
think about women such as her who have had a gene identified, or maybe
her daughter the same, to think about her someday being discriminated
against getting health insurance is just unconscionable.
I encourage all of my Senate colleagues, including the sponsors of
the bill, to accept this amendment. It is the right thing to do. I urge
its adoption.
I yield the floor.
The PRESIDING OFFICER (Mr. Carper). The Senator from North Carolina.
Mr. EDWARDS. Mr. President, we yield back the remainder of our time.
[[Page S7073]]
Mr. ENSIGN. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be.
The yeas and nays were ordered.
Mr. ENSIGN. Mr. President, I yield back the remainder of my time on
this amendment.
Amendment No. 848
Mr. ENSIGN. Mr. President, I call up amendment No. 848 and ask for
its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Nevada [Mr. Ensign] proposes an amendment
numbered 848.
Mr. ENSIGN. Mr. President, I ask that further reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To provide that health care professionals who provide pro
bono medical services to medically underserved or indigent individuals
are immune from liability)
At the end, add the following:
SEC. __. IMMUNITY.
(a) In General.--Notwithstanding any other provision of
law, no health care professional shall be liable for the
performance of, or the failure to perform, any duty in
providing pro bono medical services to a medically
underserved or indigent individual.
(b) Definitions.--In this section:
(1) Health care professional.--The term ``health care
professional'' has the meaning given the term in section 151.
(2) Medically underserved or indigent individual.--The term
``medically underserved or indigent individual'' means an
individual that does not have health care coverage under a
group health plan, health insurance coverage, or any other
health care coverage program, or who is unable to pay for the
health care services that are provided to the individual.
Mr. ENSIGN. Mr. President, this next amendment I am offering comes
once again from personal experience. I have a very close friend, Dr.
Tony Alamo. He is a few years younger than me, and is an internist in
Las Vegas. Our parents have known each other for a long time. He
graduated from USC medical school. I don't know that I have ever seen
anybody work harder.
Internists today don't make nearly the money that a lot of surgical
specialists make, but the compassion that they have for their patients
is just incredible. I remember a few years ago talking to him and what
he had to tell me was amazing. As a practicing veterinarian, we get to
choose who we take, who we don't take, and when they come into our
offices. But as a physician, when he happens to be there treating
another patient, if somebody comes in and he happens to be the
attending physician, he has to treat that person, regardless of whether
they have insurance or no insurance, can pay or cannot pay.
When he takes that person on as a patient, he cannot get rid of that
patient. So he has to continue through the course of the disease, if he
is in the hospital, has a heart condition, he has to continue
regardless of whether he gets reimbursed or not.
The purpose of my amendment is to say we want them to continue that
kind of care, but if out of the goodness of their heart they are
treating for free, we just want to eliminate the possibility that they
can be sued for such a matter.
We are looking at this as a situation that is similar to Good
Samaritan laws. For example, when somebody stops on the side of the
freeway because somebody is hurt and they don't know exactly what to do
but they want to help and they happen to do more harm than good, we
have passed laws across the country that helps a Good Samaritan in that
regard.
The practice of medicine, as anybody who has practiced knows, whether
it is veterinary medicine or human medicine, is both an art and a
science. As a matter of fact, it is more art than science. Things go
wrong. Sometimes things go wrong that may look like malpractice. And
sometimes it is something the doctor had nothing to do with, yet they
can still be taken to court.
Our amendment says that if health care professionals are going to do
this, we want to protect those people from lawsuits.
It seems to me that if somebody is providing something out of the
goodness of their heart on a pro bono basis, they could not be sued. In
fact, I would support a similar proposal that granted lawyers the same
protection. If they are providing pro bono services, they could not be
sued. I think if this was a lawyer's bill of rights, we would include
that as well. But this happens to be a Patients' Bill of Rights, and
for the physicians that are treating these patients, we want to make
sure they are protected.
We have spoken to Senator McCain's staff and, apparently, they think
the language is acceptable. I think in the long run this is going to go
a long way. I have spoken to Senator Frist who, as many of you know, is
a heart surgeon. He does volunteer work in clinics, both overseas and
also here in the United States. He doesn't get paid for these services.
Yet, he has to maintain medical malpractice insurance. He pays premiums
out of his pocket each year so that if he gets sued, he is covered.
This is probably the only amendment in this entire bill that actually
will lower--it will only lower it slightly--the cost of health
insurance. It would help lower both the cost of medical malpractice
premiums and eventually the cost of coverage premiums for consumers as
well.
Mr. President, I don't know if anybody is going to oppose this
amendment. I can't understand why they would. I would be more than
happy to engage in a debate on this if anybody has a problem with it.
I yield the floor at this time.
The PRESIDING OFFICER. The Senator from North Carolina is recognized.
Mr. EDWARDS. First, I say to the Senator from Nevada that Senator
Coverdell had a bill that he passed called the Volunteer Protection Act
of 1997. It specifically provides protection for volunteers, including
physicians, who provide pro bono services. So I suggest to my
colleague, I don't know if he thinks there is a problem with that law
or the way it is written. There is no way for me to know that based on
this amendment. But a specific law already covers this subject matter.
It was passed by the Senate and signed into law in 1997. So, first, I
suggest that my colleague look at that law and make sure what he is
concerned about is not covered by it.
Second, this Bipartisan Patient Protection Act is about HMO reform.
It is not about physician liability or the lack thereof--either of
those. We would certainly have a problem with adding an amendment to
this legislation that is not related to the issue of HMO reform.
So I say to my colleague, again, understanding that we are just
seeing his amendment, in fairness, I will be happy to talk with him
about it, but those were my immediate concerns. There appears to be a
law that already covers this subject matter. We would always be
concerned, of course, even under those circumstances, about a health
care provider who acted recklessly. I don't know whether his amendment
covers that or not.
Third, the general issue of adding these kinds of provisions to an
HMO reform bill, which is what this bill is about, would also be a
concern.
I yield the floor.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. ENSIGN. First of all, physicians I have spoken to do not think
the bill the Senator is talking about adequately covers them. That is
why they still have to carry medical malpractice insurance, similar to
what Senator Frist has to carry. My amendment would help lower the cost
of this type of coverage, so we think this bill is necessary. I don't
understand--if this is already covered in law, why would it be a
problem to include it to make sure we are saying to the courts that we
absolutely want to cover people who are providing pro bono services to
the needy.
Mr. EDWARDS. I say to my colleague that if there is already a law in
place that covers this issue, it seems as a matter of procedure that
the appropriate thing to do would be to amend the already existing law
that covers the subject matter, as opposed to adding this measure to an
HMO reform piece of legislation.
So I guess, just as a matter of orderly process, that would make
sense to me.
Mr. ENSIGN. We have been looking for a vehicle to include this in. We
have wanted to deal with this for some time.
[[Page S7074]]
This is a Patients' Bill of Rights, and I know it deals mostly with
HMOs, but we are looking at our health care system and providing rights
to patients. This is part of the health care bill that I think
appropriately should have an amendment such as this, simply because I
don't think there is any question that we are driving up health care
costs in this country. If anything can help drive down, even a small
amount, the cost of health care, I think we should do it.
If between now and tomorrow morning, if there is other language the
Senator thinks we need to massage into our amendment, I would be more
than happy to work with the Senator from North Carolina. But as it
stands, we think this is an important amendment.
Mr. EDWARDS. Mr. President, I say to my colleague, I appreciate his
comments. He and I are friends, and I would like to find a way to work
on this. I will be happy to talk to him about this when we adjourn.
Having said that, I continue to have a significant concern about
raising an issue on the HMO reform bill that is not related to HMO
reform. We have pretty consistently throughout this debate opposed and
defeated amendments unrelated to the coverage of this bill. There are
obviously many subject matters that are related to the general area of
health reform and health care. If we start adding amendments on all
subjects of health care, we would never get this legislation completed
and passed. I continue to have that concern.
I am happy to work with my colleague and listen to his concerns and
work on language, although at this moment this is an amendment we would
be compelled to oppose.
Mr. ENSIGN. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. REID. Mr. President, I ask unanimous consent that when the Senate
resumes consideration of the Patients' Bill of Rights on Friday, June
29, at 9 a.m., the Senate proceed to vote in relation to the following
amendments, and it be disposed of in the following order, with no
second-degree amendments in order prior to the votes; further, that
there be 4 minutes of debate prior to each vote, and that the first
rollcall vote be 15 minutes in length and subsequent rollcall votes be
10 minutes in length. The order of the votes tomorrow morning would be:
Santorum, DeWine, Grassley, Nickles, Brownback, Ensign No. 849, and
Ensign No. 848.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. REID. 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, I indicated earlier in this debate that I
would complete reading into the Record the names and titles of
organizations that support the Patient Protection Act. Therefore the
following is the final list:
Gateway; Gateways for Youth and Families in WA; George
Junior Republic in Indiana; Gibault; Girls and Town in NE;
Goodwill-Hinckley Homes for Boys; Greenbrier Children's
Center; Growing Home in St. Paul, MN; Haddasah; Heart of
America Family Services; Hemochromatosis Foundation;
Hereditary Colon Cancer Association; Highfields, Inc. in
Onondaga, MI; Holy Family Institute of Pittsburgh, PA; Home
on the Range in Sentinel Butte in Sentinel Butte, ND; Hubert
H. Humphrey, III--Former Minnesota Attorney General; Human
Services, Inc.; IARCCA An Association of Children.
Idaho Youth Ranch; Indiana United Methodist Children;
Infectious Disease Society of America; International
Association of Psychosocial Rehabilitation Services; Jackson-
Feid Homes in VA; Jane Addams Hull House Association; Jeffrey
Modell Foundation; Jewish Board of Family & Children in New
York, NY; Jewish Community Services of South Florida; Jewish
Family & Career Services; Jewish Family & Children's Service
in TX; Jewish Family & Children's Service in Minnetonka, MN;
Jewish Family and Childrens Services; Jewish Family and
Community Service; Jewish Family Service in Providence, RI;
Jewish Family Service in Teaneck, NJ; Jewish Family Service
in TX; Jewish Family Service of Akron, OH; Jewish Family
Services of Los Angeles; Julia Dyckman Andrus Memorial
Children's Center in NY; June Burnett Institute.
Kemmerer Village; Kentucky United Methodist Homes;
KidsPeace National Centers, Inc. in PA; Lakeside, Kalamazoo,
MI; LaSalle School, Inc. in Albany, NY; League of Women
Voters; Leake and Watts Services, Inc. in Yonkers, NY;
Learning Disabilities of America; Lee and Beulah Moor
Children's Home in TX; Lupus Foundation of America; Lutheran
Child & Family Service in Bay City, MI; Lutheran Child &
Family Services; Lutheran Social Services of Wisconsin;
Manisses Communications Group in RI; Maple Shade Youth &
Family Services; Maryhurst, Inc.; Maryland Association of
Resources for Families & Youth; Massachusetts Council of
Family; Mental Fitness Center; Mental Health Liaison Group;
MentalHealth AMERICA, Inc.; Methodist Children's Home in TX;
Metropolitan Family Service of Portland, OR; Metropolitan
Family Services of Chicago.
Michigan Federation of Private Child & Family Agencies;
Mid-South Chapter of the Paralyzed Veterans of America;
Milton Hershey School in Hershey, PA; Missouri Baptist
Children's Home; Missouri Coalition of Children's Agencies;
Missouri Girls Town; Mooseheart Child City and School;
Morning Star Boys' ranch in WA; Mountain Community Resources;
Namaqua Center; Natchez Children's Home in Natchez MS;
National Alliance for the Mentally Ill; National Association
for Rural Mental Health; National Association for the
Advancement of Orthotics and Prosthetics; National
Association of Children's Hospitals; National Association of
County Behavioral Health Directors; National Association of
Development Disabilities Councils; National Association of
People with AIDS; National Association of Private School for
Exceptional Children; National Association of Private Special
Education Centers; National Association of Protection and
Advocacy Systems; National Association of School
Psychologists.
National Association of Social Workers; National
Association of Wholesaler-Distributors; National Black
Women's Health Project; National Breast Cancer Coalition;
National Catholic Social Coalition; National Catholic Social
Justice Lobby; National College of Osteopathic Emergency
Physicians; National Community Pharmacists Association;
National Consumers League; National Council for Community
Behavioral Health; National Depressive and Manic-Depressive
Association; National Down Syndrome Congress; National Family
Planning and Reproductive Health Association; National Health
Council; National Hemophilia Foundation; National Marfan
Foundation; National Mental Health Association; National
Multiple Sclerosis Society; National Organization of
Physicians Who Care; National Organization of State
Association for Children in MD; National Parent Network on
Disabilities; National Partnership for Women and Families;
National Patient Advocate Foundation; National Psoriasis.
National Rehabilitation Association; National Therapeutic
Recreation Society; National Transplant Action Committee;
National Women's Health Network; Nation's Voice on Mental
Illness; Nazareth Children's Home in Rockwell, NC; NETWORK;
New Community Corporation in Newark, NJ; Newark Emergency
Services for Families in New Jersey; NISH; Norris Adolescent
Center in WI; Northeast Parent & Child Society in New York;
Northern Virginia Family Service; Northwest Chapter of the
Paralyzed Veterans of America; Northwest Children's Home,
Inc.; Northwood Children's Services in Duluth, MN; Oak Grove
Institute Foundation; Oakland Family Services; Olive Crest
Treatment Centers; Organization of Specialist in Emergency
Medicine; Outcomes, Inc. in Albuquerque, NM; PA Alliance for
Children and Families in Hummelstown, PA.
Pacific Lodge Youth Services; Paget Foundation; Pain Care
Coalition; Palmer Home for Children in Columbus, MS;
Paralyzed Veterans of America; Patient Access Coalition;
Patient Access to Responsible Care Alliance; Pediatric
Orthopedic Society of North America; Pennsylvania Council of
Children in Harrisburg, PA; Personal & Family Counseling
Service of New Philadelphia, OH; Philadelphia Health
Management Corporation in PA; Planned Parenthood Federation
of America; Presbyterian Home for Children; Provident
Counseling, Inc. in St. Louis, MO; Rehabilitation Engineering
and Assistive Technology Society of North America; Religious
Action Center of Reform Judaism; Research Institute for
Independent Living; Riverbend Head Start & Family Service;
Salem Children's Home; Salvation Army Family Services; San
Mar, Inc. of Boonsboro, MD; Scarsdale Edgemont Family Counsel
in NY; School Social Work Association of America.
Seattle Children's Home in WA; Seedco/Non-Profit
Assistance; Service Net. Inc. in PA; Sheriffs Youth Programs
of Minneapolis; Sipe's Orchard Home in Conover, NC; Sjogren's
Syndrome Foundation; Society for Excellence in Eye care;
Society for Women's Health Research; Society of
Cardiovascular & Interventional Radiology; Society of
Excellence in Eye Care; Society of Gynecologic Oncologists;
Society of Maternal-Fetal Medicine; Southmountain Children's
Homes of America; St. Anne Institute of Albany, NY; St.
Colman's Home in Watervliet, NY; St. Joseph Children's Home;
St. Joseph's Indian School in SD; St. Mary's Home Home of
Beaverton, OR; St. Vincent's Services, Inc. of
[[Page S7075]]
Brooklyn, NY; Starr Commonwealth; Sunbeam Family Services of
Oklahoma City, OK; Sunny Ridge Family Center.
Tabor Children's Services, Inc. of Doylestown, PA; Teen
Rancyh, Inc. Marlette, MI; Texas Association of Leaders in
Children & Family; Texas Medical Association; The Arc of the
United States; The Bradley Center in PA; The Center for
Families, Inc.--Shreveport, LA; The Endocrine Society; The
Family Center; The Hutton Settlement in WA; The Learning
Disabilities of America; The Mechanicsburg Children's Hoe of
Mechanicsburg, PA; The Mill; The Omaha Home for Boys in NE;
The Organization of Specialists in Emergency Medicine; The
Paget Foundation for Pagets's Disease of Bone and Related
Disorders; The Pressley Ridge Schools in PA; The Village
Family Service Center in Fargo, ND; The Woodlands in Newark,
OH; Third Way Center; Thornwell Home and School for Children
in SC; Title II Community AIDS National Network.
Tourette Syndrome; Tourette Syndrome Association; Treatment
Access Expansion Project; Triangle Family Services in
Raleigh, NC; Tulsa Boys' Home in Tulsa, OK; Turning Point
Center; Uhlich Children's Home; United Cerebral Palsy
Association; United Community & Family Service; United
Methodist Children's Home; United Ostomy Association; United
Methodists Children's Home; US Public Interest Research
Group; Vera Lloyd Presbyterian Home & Family Services in AR;
Vera Lloyd Presbyterian Home; Verdugo Mental Health Center;
Village for Families & Children; Virginia Home for Boys;
Webster-Cantrell Hall; Whaley Children's Center; Wisconsin
Association of Family and Children; Wisconsin Paralyzed
Veterans of America; Woodland Hills in Duluth, MN;
Yellowstone Boys and Girls Ranch in Billings, MT; Youth
Haven, Inc.; Youth Service Bureau; and YWCA of Northeast
Louisiana.
Mrs. FEINSTEIN. Mr. President, I rise today in support of the
Bipartisan Patient Protection Act of 2001. Put simply, I believe this
is a good bill.
If the Senate approves this bill, we could offer health care
protections to all 190 million Americans in private health plans within
a week. It's that simple.
Congress has a duty to pass a comprehensive Patients' Bill of Rights
to make HMOs accountable to patients, and to ensure less HMO
interference with medical decision making. We need to ensure, for
example, access to emergency rooms, specialists, and clinical trials.
Patients should be able to go to the emergency room closest to their
home in the event of a medical emergency. This bill does just that.
Each day, 10,000 physicians see patients harmed because a health plan
has refused services. Patients and doctors feel that getting quality
care is a constant battle. It is time for this to stop. And the time is
now.
Each day we wait to approve a comprehensive Patients' Bill of Rights,
35,000 patients are denied access to the speciality care they need to
manage or diagnose their illness.
I want to read to you a heart-wrenching letter I received from a
California mother who has had difficultly getting her health plan to
approve medically necessary services for her disabled daughter.
I believe this letter really highlights the humane reasons Congress
must enact a strong Patients' Bill of Rights this year. This mother
writes:
My daughter is a total-care patient. She was in a terrible
car accident approximately 14 years ago and sustained brain
stem injuries and is a quadriplegic. I chose to keep her at
home. Her licensed care coverage is to be 24-hour care. In
the past two years, her insurance company has unilaterally
cut back on her nursing care to 5.5 hours a day.
This is one of many unilateral decisions the insurance
provider has made regarding her care--disregarding her
doctor's and other medical providers' assessments.
I, as her mother and conservator, who is not trained in
medical practices or care, am expected to cover the remainder
of the 18.5 hours a day. This has caused me to quit my job,
file bankruptcy, and most importantly, it has seriously
affected my health.
I am a senior citizen and am not supposed to lift, however,
because of the practices of the insurance company, I have no
choice. I cannot tell you when I last had a full night's
sleep in the past several years.
The insurance company not only cut back on her nursing
care, they stopped approving her therapy which included
physical, speech, and occupational.
I received a letter from her current insurance carrier
stating that she was considered to be a normal employee and
in August of 2001 all the aforementioned items would be
stopped.
This is not based on my daughter's current doctor's orders
nor her needs. This is not based on an assessment from an
independent medical establishment or by an experienced,
licensed nurse that was selected by the insurance company for
a complete assessment which supported the necessity of 24-
hour nursing care.
This decision is being made unilaterally by the insurance
company officials. Is this what insurance companies can do to
critically ill patients without any accountability or
liability on their part?
I commend this mother for her commitment to providing her daughter
with the best care available.
This letter highlights the importance of giving doctors the power to
make medical decisions about coverage and care rather than the ``green
eye shade'' of the insurance companies.
I strongly believe that doctors should be making the medical
decisions. This bill includes several provisions to help physicians
determine what is medically necessary and to prevent insurance plans
from defining medical necessity.
These provisions are necessary because doctor after doctor has told
me their ``horror stories'' of how plans try to arm twist, coerce,
countermand, interfere with and even deny treatments that they have
determined are medically necessary and appropriate.
The bill prohibits plans from punishing providers for advising
patients about their options for medical treatment.
The bill also establishes, as the standard for review, that decisions
should be made based on the medical condition of the patient and valid,
relevant scientific evidence and clinical evidence and expert opinion.
It also requires internal and external reviews of appeals of medical
necessity to be made by physicians with expertise in the area of
medicine being appealed.
It requires reviewers in the independent review process to be a
physician or health care professional who is licensed and ``typically
treats the condition, makes the diagnosis, or provides the type of
treatment under review.''
On prescription drugs, the bill requires plans to make exceptions to
restrictive drug formularies for medical necessity, if prescribed by
the treating physician.
It is my hope that these provisions will give doctors and other
providers the legal underpinnings they need to make the professional
medical judgments they are trained to make in their effort to give
patients the best care possible.
I also want to briefly speak to two other very important provisions
included in this bill: First, this bill provides coverage to all 190
Americans in private health plans. The competing bill in the Senate
(Frist-Breaux) excludes approximately 20 million Americans because they
are enrolled in a self-insured State and local government health plans.
It is important we pass a bill that provides protections to all
Americans.
Second, I believe this bill offers a responsible approach to
liability.
Today, patients have few opportunities for recourse against the
health plans that harm them. This is wrong.
This bill gets rid of a health plan's special privileges. A health
plan would bear responsibility only if it makes a medical decision and
the patient dies or is harmed as a result.
Doctors and other health practitioners are already held accountable
for their mistakes under State law. If a ``green eye-shade'' overrules
a doctor's medical judgement and harms a patient, the plan too should
be held responsible.
At the same time, this bill protects employers. If an employer does
not make medical decisions, the employer can't be held liable. It is
that simple.
This bill does not overturn or preempt existing State liability laws.
It specifically exempts doctors and hospitals from new causes of
action. These are reasonable provisions. In States like California that
have strong patient protections there has not been an explosion of
lawsuits.
In fact, since the inception of California's right-to-sue law in
January 2001 and the unlimited damage it provides for, there has not
been a single lawsuit filed.
Instead, HMOs appear to be deferring more to patients' requests for
treatment, according to the first data to emerge from the State's HMO
regulator.
California has the longest history in managed care and the highest
number of insured people in HMOs nationwide. Over 70 percent of
Californians are enrolled in either a commercial HMO or a preferred
provider organization, PPO. Approximately 20 million non-elderly
Californians have access to health insurance through their job or
privately purchase coverage.
[[Page S7076]]
So for California, these protections are critical.
Due in part to the high penetration of managed care, California's
health care system is on the verge of collapse. Resources are stretched
to the limit and patients, as a result, are not getting the services
they need.
For example, California's capitation rate, the rate paid to doctors
for treatment, is one of the lowest in the Nation. The average
capitation rate in California reached its peak in 1993 at $45 per
month. Last year, the rate dropped to $29 (PriceWaterhouse Coopers).
These low reimbursement rates undoubtedly impact quality of care and
access to services.
Many California hospitals and other health care providers have been
forced to limit hours of operation and discontinue services. The burden
to provide care is put on those that have remained open, and many of
these facilities are now facing financial problems of their own.
I know that California's health care system is not unlike other
systems across the country. The bottom line is that patients should not
be the one's made to suffer at the hands of a failing health care
system.
People pay monthly premiums. They expect their health insurance to be
there when they need it. That is what insurance is. It insures against
loss from an unforeseen illness or injury.
But with HMOs today, the certainty of good health care is being
seriously eroded. Many people feel that every time they need care, it
is a tremendous hassle.
The bottom line is that people feel they have to fight to get the
quality care they have paid for. Americans are tired of jumping through
hoops to get good care.
People should not have to fight for their health care. They pay for
it out of their monthly paycheck. It should be there for them when they
need it.
I would like to close with a very tragic story about a young, 16 year
old girl from Irvine, California who did not get the care she needed
from her HMO in a timely manner. I think her story provides a poignant
summary of the problem with managed care providers. Unfortunately, her
story does not have a happy ending.
Serenity Silen was diagnosed with acute myeloid leukemia, or AML, in
late February 1998. She had gone to her HMO four times, to four
different HMO doctors, since the beginning of 1998. Each time she
complained of the exact same symptoms, all of which could indicate
leukemia.
Over the course of the four visits, Serenity's condition was never
diagnosed. Finally, in the middle of February 1998, Serenity was taken
to the emergency room of an out-of-network hospital because her mother
was so frustrated with the care at their HMO.
The emergency room doctor was the first doctor, in the five weeks
since the symptoms arose, to order a complete blood count test. The
blood count test indicated a dangerously high white blood cell count
that was symptomatic of leukemia. With a much delayed diagnosis,
Serenity's leukemia was now going to be much more difficult to treat.
Fed up with the HMO, Serenity's parents sought a second opinion from
a highly recognized oncologist at an out-of-network hospital. Serenity
was transferred to that hospital to be under the oncologist's care.
After being at the new hospital only a few days, Serenity explained to
her parents that she did not realize how much pain she was in until the
new hospital helped to take it away. After 2\1/2\ months at the new
hospital, Serenity died. The disease had not been diagnosed in time.
I urge my colleagues to support this bill. Support this bill for the
children like Serenity in your State. The constituents who battle with
their HMOs daily to get the quality care they need and deserve. Many of
these patients are too sick to fight with their HMOs to get access to
the services necessary to treat their illnesses. How many more lives
are we going to have to lose to the HMO battle before Congress wises up
and passes a Patients' Bill of Rights that protects the patient?
This bill has been a long time in the making. Let's get it done this
session.
____________________