[Congressional Record (Bound Edition), Volume 146 (2000), Part 9]
[Senate]
[Pages 12932-12974]
[From the U.S. Government Publishing Office, www.gpo.gov]



THE DEPARTMENTS OF LABOR, HEALTH AND HUMAN SERVICES, AND EDUCATION AND 
            RELATED AGENCIES APPROPRIATIONS, 2001 --Resumed

  Mr. BROWNBACK. Mr. President, I yield up to 15 minutes to the Senator 
from New Mexico, the chairman of the Budget Committee.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. DOMENICI. Thank you very much. I hope I don't use all of the time 
and that I can yield Senator Brownback time because he started this 
great discussion with his amendment, on which I support and commend 
him--the Ashcroft Medicare lockbox.
  I have a pretty good suspicion that sometime soon it is going to be 
adopted by the Senate. The Senator can take great credit, being one who 
from the very beginning wanted to have a lockbox on Social Security--
and even joined in the real lockbox bill, which, incidentally, was not 
the lockbox we are considering for Social Security today. He has been 
on the cutting edge of new ways to save both the Social Security trust 
fund and today on the Medicare HI part of the trust fund.
  I rise to talk a little bit about the Social Security lockbox.
  First of all, everybody should think for a minute. What kind of 
lockbox must the Democrats have when they have resisted a lockbox five 
times? That was a lockbox we came up with that the distinguished 
Senator from Michigan, Mr. Abraham, introduced with me and others. And 
five times the Democrats have resisted it and have not let us pass it. 
That ought to put up a little bit of a question: what is the difference 
between the two, since all of a sudden today on an appropriations 
bill--which probably means amendments are going to go nowhere other 
than to make a little racket here--we have two distinguished and good 
colleagues of mine adopting a Democrat lockbox for Social Security.
  First, let me change that to six occasions when we have offered a 
lockbox we put together. Most people who check for a real lockbox, in 
the sense of what that word means, say ours will do it and that others 
are questionable. Others are, in one degree or another, more easy to 
use in terms of violating the lockbox and spending the money elsewhere.
  The reason they are different is that ours is real. In the very sense 
of a lockbox written into law, ours is real.
  Let me essentially tell you what we did. We calculated where the debt 
of the United States would be if all of the Social Security money were 
left in, if we knew the numbers, and if we put in law and statute the 
level of debt each year for the foreseeable future. Then we said that 
statute locks that money in, except in the case of war or the case of 
economic emergency--we defined that as most economists do--and great 
national disaster.
  That is a lockbox. In order to spend it, we have to have a statute, a 
law that will change that level of debt that is related to Social 
Security.
  My friend on the Budget Committee, Senator Conrad, has for a long 
time been a proponent of making sure we have the debt down, and I 
commend the Senator. He has been concerned about Social Security, as 
have many of us.
  Essentially their lockbox is an invitation to waive the lockbox or, 
by a 60-vote majority, get rid of it. Thus, whatever you want you 
spend.
  I urge, instead of the lockbox they have before the Senate, serious 
consideration of accepting the lockbox that Senator Abraham, Senator 
Domenici, and Senator Ashcroft have tendered on six occasions. It is 
truly what the senior citizens deserve when speaking about lockbox. We 
should not be telling them it is a lockbox, but it can be waived simply 
on the floor of the Senate.
  How simple is it? We have just waived, for the two bills before the 
Senate, the Budget Act, which precluded doing what they were doing. We 
got up and said: Let's waive it. We could reach the point where we want 
to spend Social Security and Members could come to the floor with a 
vital program and say, just as we waived the Budget Act in order to 
take this off budget, let's waive it to spend it.
  If you do the Abraham-Domenici-Ashcroft lockbox for Social Security, 
you have to introduce a bill, say we want to change the debt limit as 
Social Security impacts it. Frankly, I am very proud to have come up 
with that idea. I think my friend from Michigan would acknowledge I 
came up with it. I am very proud of him. For a long time, he has been 
trying to get that voted on. He has told people what he was for, as 
Senator Ashcroft has. We have not had a vote.

[[Page 12933]]

  We tried six times to get a lockbox vote, and we were denied it by 
this institution, by our fellow Senators on the other side. Then all of 
a sudden, on an appropriations bill, with a pretty positive chance that 
the amendments aren't going anywhere because we cannot pass this kind 
of an amendment on an appropriations bill when it gets to the House--
you can take it out the door and send it to the House, but you are 
pretty sure if it is not dropped before getting to the House, it is 
probably dropped when you open the doors to the conference because it 
does not belong on this bill. I am not suggesting that either amendment 
is being offered knowing full well it is not going anywhere, but I am 
asking why doesn't the Senate vote on the real lockbox for Social 
Security.
  We are going to have our vote today. I am wondering whether the 
Senator might give consideration to offering the real lockbox and see 
where we stand. I ask Senator Abraham what he thinks of that idea in 
terms of being a chief proponent.
  Mr. ABRAHAM. I spoke on the floor a few minutes ago and raised many 
of the same inquiries the Senator has raised. I am disappointed, after 
so many efforts on our part to get a vote, that we couldn't.
  On the other hand, I indicated I was heartened that today at least 
there seems to be a willingness to begin to give people votes on issues 
relating to the lockbox. I want to have the votes.
  There is a clear distinction between the lockbox we have authored 
together and we want to have an opportunity for that stronger lockbox 
to be considered. I want it done soon. It ought to be done on a vehicle 
that becomes a law.
  Mr. DOMENICI. One last point in reference to the Medicare lockbox 
off-budget proposal that my friends on the other side of the aisle have 
offered.
  There is a giant loophole that we have never considered in the Social 
Security trust fund lockbox, nor is it considered in their lockbox on 
Social Security. Current HI law permits all kinds of additions on the 
expenditure side of Medicare.
  If we leave that language in, we are opening that trust fund instead 
of closing it. When we take it off budget we open it to spend it, 
which, to me, seems almost inconsistent with why we are doing it.
  I am not going to vote for either of the Democratic lockboxes because 
I think the Medicare does not work and the Social Security is not a 
real lockbox.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Smith of New Hampshire). The Senator from 
North Dakota.
  Mr. CONRAD. I say to my colleague and my friend from New Mexico, his 
last reference is to a provision that says you can spend Medicare money 
for Medicare programs. That is so we can have a BBA add-back, a 
balanced budget add-back, for Medicare, as we did last year. There is 
nothing mysterious about that.
  The Senator from New Mexico asked why we weren't supporting the 
lockbox proposal he made previously. There are two reasons: No. 1, we 
got a letter from the Secretary of the Treasury saying that could 
threaten default on the debt of the United States; No. 2, our analysts 
indicated that could threaten Social Security payments to those who are 
eligible for Social Security. Those are the reasons we have not 
accepted that lockbox proposal.
  I didn't just come here today proposing a lockbox. For 2 years, I 
have proposed a Social Security and Medicare lockbox as a senior member 
of the Senate Budget Committee. Frankly, our friends on the other side 
of the aisle have resisted.
  If the choice is between the lockbox proposal I have made today and 
the lockbox proposal of the Senator from Missouri on the question of 
which is stronger, there is no question which is stronger. The 
amendment I have offered is stronger. That is because there is a fatal 
flaw in the amendment of the Senator from Missouri. He provides no 
enforcement mechanism for the provision taking Medicare surpluses off 
budget.
  Under the amendment of the Senator from Missouri, no point of order 
would apply against legislation that could use Medicare surpluses for 
other purposes. Under the Ashcroft amendment, the Medicare trust fund 
could be depleted for any purpose as long as the overall budget 
remained in balance. That is the fact. That is the reality.
  I notice the chairman of the Budget Committee never referenced the 
amendment the Senator from Missouri has before the Senate today. Never 
referenced it. He talked about a lockbox proposal they have had 
previously--not about the lockbox proposal before us today.
  I yield the floor.
  Mr. ASHCROFT. Mr. President, I yield to the Senator from New Mexico 4 
minutes.
  Mr. DOMENICI. For 10 years, we have had a written proposal with 
reference to the lockbox for Social Security and never have we put in 
language that said what their Medicare lockbox amendment says, that the 
surpluses can be used for spending related to the programs currently in 
HI. As a matter of fact, we have used the money for Social Security 
with a lockbox, a ``verbal'' like theirs, that never included such 
language, and we have spent the money on Social Security.
  What I am saying is this is an invitation to expansion and spending, 
rather than an invitation to protecting it. We could be making HI less 
solvent under this language rather than more solvent.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. ASHCROFT. Mr. President, I yield to the Senator from Michigan so 
much time as he may consume up to 5 minutes.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. ABRAHAM. Mr. President, I want to comment, in response to the 
comments of the Senator from North Dakota, the following: The Senator 
from North Dakota has characterized the stance of those of us who have 
not supported his proposal for a Medicare and Social Security lockbox 
as resisting his efforts for 2 years. Resisting his efforts is not, in 
my judgment, a proper characterization. We have not supported those 
efforts. But what we have done today is provided the Senator from North 
Dakota a chance to have a vote on a proposal he has worked on and for 
which he has sought support. I would like to distinguish that from what 
I consider to be the accurate definition of resistance, which is to not 
even give a vote to people who have a legitimate proposal to bring to 
the floor of the Senate, and I consider the amendment Senators Domenici 
and Ashcroft and I drafted with respect to a Social Security lockbox to 
be a legitimate piece of legislation that deserves the same 
consideration that we will soon give the Senator from North Dakota.
  I say to the Senator from North Dakota and his colleagues, I hope, in 
the spirit with which a vote is being offered on the proposal that he 
has today, we will get a straight up-or-down vote on the proposal we 
have been offering because now that you have had this chance we will 
see what happens, obviously, both here and in the conference that will 
follow the passage of this legislation. I would like to have the 
opportunity to get a straight up-or-down vote on the legislation that 
on five or six or whatever number it is separate occasions has been 
prevented from happening. That to me would be the difference between 
resistance and lack of support.
  I do not ask the Senator from North Dakota to vote for my proposal. I 
hope he and his colleagues would at least give us an opportunity to let 
all of us cast our votes up or down on it. I hope we get that chance. I 
yield the floor.
  The PRESIDING OFFICER. The Senator from North Dakota is recognized.
  Mr. CONRAD. Mr. President, I am running out of time. The Senator from 
Missouri informs me he has 20 minutes left. I have 2 minutes left. 
Under the rules, if neither of us uses time right now, the remaining 
time of each of us is used equally, which means I would run out of 
time. He has indicated that is what he would do. If I do not take this 
time for my final argument, we just lose the time. Those are the rules 
of the Senate. That is fair.

[[Page 12934]]

  I say this. I am saying this for the benefit of colleagues on my side 
who are wondering if there is additional time available. Clearly, there 
is not.
  The Senator from Michigan and the Senator from New Mexico have again 
raised the question of the lockbox they offered previously; not the 
lockbox on which we are about to vote, but what they offered 
previously. The reason our side resisted that lockbox approach is 
because we received a letter from the Secretary of the Treasury from 
which I quote:

       Our analysis indicates that the provisions Senators 
     Domenici and Abraham and Ashcroft were previously offering 
     could preclude the United States from meeting its financial 
     obligations to repay maturing debt and to make Social 
     Security benefit payments, and could also worsen a future 
     economic downturn.

  That is the reason we resisted those plans, because they were flawed. 
That is the same reason I believe the amendment I have offered today, 
to have a Social Security and Medicare lockbox--something I have 
proposed for 2 years--is superior to the option we are actually voting 
on today. The reason our proposal is superior, I believe, is because it 
protects Medicare. It protects it in the same way we protect Social 
Security: by points of order to make certain that it is not raided.
  Unfortunately, the amendment of the Senator from Missouri does not 
have that level of protection. He has less protection for Medicare than 
for Social Security. He does not have a point of order that can apply 
against legislation that would use Medicare surpluses for other 
purposes. The problem with that is under the Ashcroft amendment the 
Medicare trust fund could be raided, could be depleted for any purpose 
as long as the overall budget remained in balance.
  I thank the Chair.
  The PRESIDING OFFICER. All time under the control of the Senator from 
North Dakota has expired. Who yields time? The Senator from Missouri.
  Mr. ASHCROFT. Mr. President, how much time remains?
  The PRESIDING OFFICER. There remain 17 minutes.
  Mr. ASHCROFT. I yield to the Senator from Michigan as much time as he 
may consume up to 5 minutes.
  Mr. ABRAHAM. Mr. President, I thank the Senator from Missouri. I 
cannot resist responding to the closing remarks by the Senator from 
North Dakota. I have to say, I interpret his comments as saying he and 
his colleagues, because they oppose or would vote against the lockbox 
proposal we have offered so many times, would not even let us have an 
up-or-down vote on it. I think that is unfortunate.
  I think the way the Senate works, they certainly have an ability to 
prevent votes. But so do we. I hope we will not have to get to the 
point where we have to engage both sides in those kinds of tactics. We 
have certainly demonstrated today a willingness to have a vote on his 
Social Security lockbox proposal. The concerns he raised in the letter 
that was written by Secretary Rubin, the long-since departed Secretary 
of the Treasury, were in fact responded to by us in the modifications 
that we brought in the most recent version of this lockbox.
  Certainly I am not going to get into the merits of that at this 
point, but the notion that because the Secretary of the Treasury argues 
that something could cause problems should prevent us from having a 
chance to vote on an issue--there are plenty of issues we vote here 
where Cabinet members have raised the specter of problems if such votes 
or legislation were passed.
  It is pretty clear to me that notwithstanding the seemingly positive 
steps taken today to give the Senator from North Dakota an opportunity 
to have his Social Security lockbox voted on, we are still going to 
meet impediments in the effort to get ours voted on. I would put the 
Presiding Officer and the Senate on notice, we are going to keep 
trying. We, unfortunately, may have to go into the sorts of tactical 
approaches that cause a lot of time to be taken when it seems to me we 
could accommodate both sides on this fairly easily. In any event, we 
will keep pressing forward on it.
  I close by complimenting the Senator from Missouri whose steadfast 
efforts on both the Social Security lockbox as well as the Medicare 
lockbox front predated the efforts of anyone else of whom I am aware, 
certainly on the Medicaid issue. He has certainly demonstrated his 
commitment to that. Certainly his efforts to bring these issues to the 
floor deserve all our praise and thanks.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. ASHCROFT. Mr. President, I thank the Senator from Michigan for 
his kind remarks and for his commitment to maintaining the integrity of 
our Social Security and Medicare trust fund. Frankly, I thank the 
Senator from North Dakota for coming to the floor to engage in the 
debate about a very important issue, as well as the other Senators who 
have come forward to indicate their support for discontinuing--or 
stopping--what has become a rather traditional exercise of this 
Congress: spending money out of the Medicare trust fund for other 
purposes.
  It is time for us to cease that kind of expenditure. It is time for 
us to say the trust fund, which is made up of taxes specifically paid 
by working people--you have to work to pay the Medicare tax; it is a 
specific tax paid by working people--should be off limits to other 
expenditures.
  I thank the Senator from North Dakota. I thank the Senator from 
Michigan. I thank the Senator from New Mexico. I am grateful for the 
others--the Senator from New Jersey and others--who have talked about 
this issue. It is a major step forward.
  There are a lot of folks who have come to the floor talking about how 
they wanted this for a long time. Frankly, we have not had this kind of 
debate on protecting the Medicare trust fund in my memory. When I filed 
this legislation last November, I was not aware of any, and I still do 
not know that there is, any other legislation similar to this that had 
been filed at that time. I am delighted we are making this progress. I 
commend people on both sides of the aisle for this progress.
  My amendment protects the Social Security surplus as well. Social 
Security is off budget already. My amendment prohibits on-budget 
deficits.
  The Senator from North Dakota is talking about how durably he 
protects the Medicare trust fund with a point of order that takes 60 
votes in the Senate. I am pleased for him to embrace that and to talk 
about it and say how good it is, in part because that is the budget 
rule which I proposed.
  Mr. DASCHLE. Will the Senator from Missouri yield for 30 seconds? If 
he will yield for a couple of seconds, I want to yield 5 minutes of my 
leader time to the senior Senator from North Dakota.
  Mr. ASHCROFT. I yield the floor for 5 minutes of leader time for the 
Senator from North Dakota.
  The PRESIDING OFFICER. The Senator from North Dakota is recognized 
for 5 minutes.
  Mr. CONRAD. Mr. President, I will not take 5 minutes at this point. I 
want to make the point that I appreciate the Senator from Missouri. He 
is serious and sincere about an effort to provide a Social Security and 
Medicare lockbox, but when you look at the specifics of what he has 
proposed, it falls short. There is a fatal flaw.
  Let's look at fiscal year 2000. There is projected a $150 billion 
Social Security surplus. That is protected. There is a $24 billion 
projected Medicare surplus. Under the proposal of the Senator from 
Missouri, every penny of the Medicare surplus could be taken for other 
purposes because the protection he provides is aimed at the overall 
budget being in surplus, not at the Medicare component being in 
surplus. So he has a lockbox that leaks. That is the problem.
  The reason the amendment I have offered, along with Senator 
Lautenberg, the ranking member of the Budget Committee, is superior is 
that it solves that problem. We do not have a leak. We have a budget 
point of order that prevails.
  In addition, the Senator from Missouri does not have Social Security 
protection. We do. We have additional points of order that apply to 
make sure nobody raids Social Security.

[[Page 12935]]

  Our colleagues are going to have a defining vote in just a few 
minutes: Do you want to have the strongest protection for Social 
Security and Medicare, or do you want a weak tea version? That is going 
to be the choice, and all of us are going to be held accountable for 
our votes. That is the point.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Missouri is recognized.
  Mr. ASHCROFT. Mr. President, I ask unanimous consent that I be 
allowed to finish my remarks on this measure without further 
interruption.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ASHCROFT. Mr. President, I begin----
  Mr. REID. I am sorry, I was talking with someone else. What was the 
request?
  Mr. ASHCROFT. Mr. President, I believe I have the floor.
  Mr. REID. I am sorry, I could not hear the Senator's request.
  The PRESIDING OFFICER. The Senator from Missouri has the floor, but 
the Chair will repeat the unanimous-consent request, which was, he be 
allowed to finish the remainder of his time uninterrupted.
  Mr. REID. I apologize.
  Mr. ASHCROFT. Mr. President, I tried to accommodate the Senators on 
the other side. When the leader from the other side asked for 5 
additional minutes, I interrupted my own remarks, and I thought it 
would be fair for me to have an opportunity to spend my time without 
being interrupted. I will start over.
  I commend the Senator from North Dakota for his concern and for 
coming to the floor to debate this issue. I am delighted we have now 
come to a place where we are debating ``hows'' instead of if we are 
going to do it--how we are going to do it. Both of these measures 
provide a 60-vote point of order, which is a pretty high hurdle to 
climb over, as a way of protecting Medicare. As a matter of fact, that 
is the mechanism that is used in the protection for Social Security.
  The Senator from North Dakota has commended that as durable, strong, 
vigorous, robust protection. It happens to be the protection which I 
placed in the law as a result of an amendment I offered in the budget 
process in previous budget years so that we would find ourselves 
incapable of infringing the Social Security surplus. When we adopted 
that amendment and embraced it, we had tremendously good results.
  This year, it looks as if there may be as many as $175 billion we 
will save, not spend; that we will respect instead of invade in terms 
of the Social Security surplus. That is a big positive. Really, what 
both sides of the aisle are talking about is getting the kind of 
robust, strong protection for Medicare that we have for Social 
Security.
  I have to say how much I appreciate the remarks of the Senator from 
New Mexico, the chairman of the Budget Committee, who talked about the 
fact we need protection in the statute, not just in the budget rules. 
It is lamentable that each time we have sought to upgrade that 
protection from the budget rules to a statute, there has been a 
filibuster on the other side.
  They now say the reason they were filibustering--one time they said 
it is because of Medicare; another time they waved an opinion that came 
from the Secretary of the Treasury. One of the reasons the Secretary of 
the Treasury indicated he would not want to support what we were 
offering was they might need to do additional spending in certain times 
in our economy. I understand there are those who believe wanting to 
spend more is a reason not to do this, but the real reason for wanting 
to do this is to spend less, especially to spend less of the money that 
is in the lockbox.
  The Senator from North Dakota has raised issues regarding the 
security of the lockbox which I have proposed. A good debate on these 
issues is important and appropriate. As a matter of fact, we want to 
have the strongest lockbox we can. I would not come to this Chamber and 
offer lockbox legislation that is not durable and not strong. I do not 
think the Senator from North Dakota would either. There are problems 
with the proposal of the Senator from North Dakota. This particular 
phrase on the fifth page of his amendment beginning with the words:

       This paragraph shall not apply to amounts to be expended 
     from the hospital insurance trust fund--

  That is, Medicare trust fund----

     for purposes relating to programs within part A of the 
     Medicare as provided in law on date of enactment of this 
     paragraph.

  Frankly, they may have a durable lock on that box; they may have 
reinforced corners on the box; they may have a stout handle on the box; 
but if there is a hole in the side of the box, we have problems.
  I appreciate the Senator from New Mexico raising this issue about 
potential leakage from the box. What we should be about, though, is not 
trying to find ways in which our proposals are inadequate or whether 
there is a hole in his box or whether my supermajority point of order 
is as durable as his supermajority point of order. We should be about 
the business of protecting the Social Security surplus and the Medicare 
surplus and doing it in a durable way and a way which means this 
Congress will not relapse into habits that Congress engaged in for 
decade after decade. It is time for us to respect the need for a 
lockbox.
  I filed the measure last November. Last month, Vice President Gore 
endorsed the concept of a lockbox. This week, 2 days ago, the President 
of the United States said we ought to have a lockbox to secure the 
Medicare box so that it would not be available for spending. I do not 
know what the Treasury said last year, but I know what the President 
said last week. And I agree with that.
  So it is possible to quibble here or there about one aspect of this 
or the other. It is instructive for me to know that these amendments 
were not proposed until I came to the floor to propose this.
  I am delighted that for the first time in my memory we are debating a 
Medicare lockbox, in conjunction with a Social Security lockbox, that 
is durable.
  May I inquire as to the time remaining?
  The PRESIDING OFFICER. The Senator has 4 minutes 15 seconds 
remaining.
  Mr. ASHCROFT. So with that in mind, I commend to the Members of the 
Senate, generally, the concept of a lockbox: a durable, secure, 
mechanism that keeps this Congress from reengaging in activities it has 
engaged in over time.
  As this measure moves forward, let's do what we can to improve it in 
every way possible. Let's talk about a lockbox for Social Security that 
is statutory.
  I was delighted to be able to put it in the budget rules of the 
Senate so that it is out of order for someone to propose spending 
Social Security income trust funds for non-Social Security purposes. 
But I would like to see it enshrined into law.
  We have talked about waiving budget points of order. Obviously, I 
would like to have this be beyond a point of order. I would be very 
pleased to have a law enshrined for the way in which we would enforce 
these rules.
  It is with that in mind that I express my appreciation to the Members 
of the Senate and say that our objective here is relatively uniform. 
From what I can tell from arguments made on the other side, to 
arguments made on this side, we both want a lockbox. We both want a 
lockbox that is durable. We want one that does not leak. We want one 
that is enforceable.
  The lockbox--I think we are agreeing today--should be one that 
protects not only Social Security but Medicare. When we get this close 
to this kind of agreement on an issue that is this important, I think 
it is time for us to work together.
  I do not want to fight with my colleagues on the other side of the 
aisle. I want to work with them. If we are close to having a durable 
Social Security lockbox and if we are close to having one that protects 
Medicare, I want to do it.
  I have been working on this for over 2 years. Early in 1999, S. 502, 
the Social

[[Page 12936]]

Security Safe Deposit Act, was incorporated in the fiscal year 2000 
budget resolution, and again in the fiscal year 2001 budget resolution, 
with those kinds of rules. That is why we have the durability of at 
least the rules.
  Finally, the Conrad amendment does not offer stronger protection for 
Social Security than the Ashcroft budget rule. It is the same thing. It 
is codified. I think we can even do better than that. I would like to 
do better than that with a statute.
  While both offer the same point of order protection for Medicare, my 
amendment does not have the hole in the side of the box and, as a 
result, I think it is stronger. But, very frankly, I want to work with 
folks on the other side of the aisle who agree with me on this issue. I 
am not opposed to the idea of our working together to get it done.
  So I announce to my colleagues in the Senate, I do not think it is a 
difficult thing to vote for my amendment. I think it is a very good 
amendment. I do not think it is a difficult thing to vote for the 
amendment on the other side of the aisle.
  I hope if we vote for these amendments, and they are enacted, that we 
will be able to work together toward a solution that really helps the 
American people, that protects senior citizens from having the Medicare 
trust fund violated, and from having the trust fund for Social Security 
violated as well.
  I would like to see that done in statute as well as in the rules of 
the Senate. It is with that in mind that I thank the Members of the 
opposition and those who have spoken on behalf of this amendment. I 
think we can work together for a really important purpose.
  I yield the floor.
  The PRESIDING OFFICER. The Senator's time has expired.
  All time on the Conrad amendment and the Ashcroft amendment has 
expired.
  Mr. CONRAD. Mr. President, I had 3 minutes of leader time remaining.
  The PRESIDING OFFICER. The Senator is recognized for 3 minutes.
  Mr. CONRAD. Mr. President, first, I assure my colleague that my 
amendment was not in response to his. I had filed for an amendment 
yesterday. I offered this amendment in the Finance Committee yesterday. 
I have offered a lockbox for Social Security and Medicare for 2\1/2\ 
years--a different Medicare-Social Security lockbox than is advocated 
here today by the Senator from Missouri because I believe there is a 
fatal flaw in the amendment of the Senator from Missouri.
  That fatal flaw is that his protection does not work. It does not 
work because, under the Ashcroft amendment, no point of order would 
apply against legislation that would use Medicare surpluses for other 
purposes. The result of that is, under the Ashcroft amendment, the 
Medicare trust fund could be depleted for any purpose as long as the 
overall budget remained in balance. That is the problem with the 
amendment of the Senator from Missouri.
  That is the reason the amendment that I have offered is superior. It 
is stronger. It provides real protection for Medicare, by way of 
special points of order against a budget resolution that would violate 
the off-budget status of Medicare Part A.
  The fact is, the amendment of the Senator from Missouri does not 
provide the same protection to Medicare that we provide to Social 
Security.
  Now, why would we do that? If we are serious about protecting 
Medicare, wouldn't we have the same points of order apply to protect 
Medicare in the same way that we protect Social Security? I would hope 
so. Because if we do not, the hard reality is the amendment of the 
Senator from Missouri would permit us to go and raid every penny of the 
Social Security surplus or every penny of the Medicare surplus this 
year and use it for another purpose. That is a mistake.
  In addition, the Ashcroft amendment is silent on Social Security, 
while the amendment that I have offered adds a point of order against 
violating the off-budget status of Social Security.
  I hope my colleagues will vote for the Conrad-Lautenberg-Reid 
amendment so we really protect Medicare in the same way we protect 
Social Security. That is what we ought to do here today. That is the 
opportunity we have here today. We ought to take it. We ought to 
protect Medicare and Social Security. We ought to adopt this lockbox 
proposal.
  Mr. President, I ask unanimous consent that Senator Feingold be added 
as a cosponsor of my amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CONRAD. I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator's time has expired.
  All time on the Conrad amendment and the Ashcroft amendment has 
expired.
  Mr. REID. Mr. President, I ask unanimous consent that the yeas and 
nays be ordered on both amendments.
  The PRESIDING OFFICER. Without objection, it will be in order to 
order the yeas and nays on both amendments.
  Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I ask unanimous consent that the second 
vote be limited to 10 minutes.
  The PRESIDING OFFICER. Is there objection?
  The Chair hears none, and it is so ordered.
  Mr. SPECTER. On the time of the votes that are about to occur, I 
remind my colleagues of what Senator Lott said earlier today in 
response to what the Senator from Nevada said, that Senators need to be 
prepared to have the time limits enforced.


                       Vote On Amendment No. 3690

  The PRESIDING OFFICER. The question is on agreeing to Conrad 
amendment No. 3690. The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from New Hampshire (Mr. 
Gregg and the Senator from Kentucky Mr. McConnell) are necessarily 
absent.
  Mr. REID. I announce that the Senator from Hawaii (Mr. Inouye) is 
necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?--
  The result was announced--yeas 60, nays 37, as follows:

                      [Rollcall Vote No. 162 Leg.]

                                YEAS--60

     Abraham
     Akaka
     Ashcroft
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Bryan
     Burns
     Byrd
     Campbell
     Chafee, L.
     Cleland
     Collins
     Conrad
     Daschle
     DeWine
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Fitzgerald
     Gorton
     Graham
     Harkin
     Hollings
     Hutchison
     Jeffords
     Johnson
     Kennedy
     Kerrey
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Moynihan
     Murray
     Reed
     Reid
     Robb
     Rockefeller
     Roth
     Sarbanes
     Schumer
     Smith (OR)
     Snowe
     Specter
     Torricelli
     Voinovich
     Wellstone
     Wyden

                                NAYS--37

     Allard
     Bennett
     Bond
     Brownback
     Bunning
     Cochran
     Coverdell
     Craig
     Crapo
     Domenici
     Enzi
     Frist
     Gramm
     Grams
     Grassley
     Hagel
     Hatch
     Helms
     Hutchinson
     Inhofe
     Kyl
     Lott
     Lugar
     Mack
     McCain
     Murkowski
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner

                             NOT VOTING--3

     Gregg
     Inouye
     McConnell
  The amendment (No. 3690) was agreed to.
  Mr. LOTT. Mr. President, I move to reconsider the vote.
  Mr. SPECTER. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senate will now proceed to vote on the 
Ashcroft amendment No. 3689. The yeas and nays have been ordered.
  The Chair reminds the Senate that this is a 10-minute vote by 
previous order. The clerk will call the roll.

[[Page 12937]]

  The legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Hawaii (Mr. Inouye and the 
Senator from Vermont (Mr. Leahy) are necessarily absent.
  Mr. NICKLES. I announce that the Senator from New Hampshire (Mr. 
Gregg) is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
who desire to vote?
  The result was announced--yeas 54, nays 43, as follows:

                      [Rollcall Vote No. 163 Leg.]

                                YEAS--54

     Abraham
     Allard
     Ashcroft
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Chafee, L.
     Cochran
     Collins
     Coverdell
     Craig
     Crapo
     DeWine
     Domenici
     Enzi
     Feingold
     Fitzgerald
     Frist
     Gorton
     Gramm
     Grams
     Grassley
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Jeffords
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Roberts
     Roth
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner

                                NAYS--43

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Bryan
     Byrd
     Cleland
     Conrad
     Daschle
     Dodd
     Dorgan
     Durbin
     Edwards
     Feinstein
     Graham
     Harkin
     Hollings
     Johnson
     Kennedy
     Kerrey
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Levin
     Lieberman
     Lincoln
     Mikulski
     Moynihan
     Murray
     Reed
     Reid
     Robb
     Rockefeller
     Sarbanes
     Schumer
     Stevens
     Torricelli
     Wellstone
     Wyden

                             NOT VOTING--3

     Gregg
     Inouye
     Leahy
  The amendment (No. 3689) was agreed to.
  Mr. SPECTER. Mr. President, I move to reconsider the vote. I move to 
lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER (Mr. Santorum). The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I ask unanimous consent that a Jeffords 
amendment be modified to be formatted as a first-degree amendment. I 
further ask unanimous consent that at a time determined by the majority 
leader, after consultation with the minority leader, a vote occur in 
relation to the Daschle amendment No. 3688, to be followed by a vote in 
relation to the Jeffords amendment, with no other amendments in order 
to either amendment prior to the votes.
  I further ask consent that the time for debate prior to votes in 
relation to the amendments be the following: Senator Jeffords, 25 
minutes; Senator Daschle, 25 minutes.
  Mr. DASCHLE. Mr. President, reserving the right to object.
  The PRESIDING OFFICER. The Democratic leader.
  Mr. DASCHLE. I ask if the distinguished manager of the bill would 
modify the request to allow for votes to take place immediately 
following the disposition of the debate on the two amendments. The 
unanimous consent did call for that. I assume that is the understanding 
of the proponent of the unanimous consent request.
  Mr. SPECTER. Mr. President, it would be my preference to stack these 
votes at the end. We always run into delays. We have a number of 
amendments. If we vote in between, it is going to add considerable time 
to the bill. We will have three or four votes. It will be my hope--it 
requires the Senator's consent, of course--that we stack the votes.
  Mr. DASCHLE. Mr. President, I was asked to delay the consideration of 
this amendment this morning. I said I would. I have been attempting to 
accommodate Senators all the way through. We have lost a couple of 
Senators already. I would be compelled to object to this unless we were 
able to get the two votes immediately following the debate on the two 
amendments.
  Mr. SPECTER. Mr. President, it appears it will be faster to accept 
Senator Daschle's recommendation, so I do so.
  Mr. DOMENICI. Reserving the right to object--I will not object--I ask 
if you could add 5 minutes for the Senator from New Mexico on this 
general subject, your amendment. I ask 5 minutes be set aside for me.
  Mr. DASCHLE. Mr. President, I ask that Senator Jeffords and I be 
given 30 minutes each.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Who yields time?


                           Amendment No. 3691

  (Purpose: To prohibit health discrimination on the basis of genetic 
                    information or genetic services)

  Mr. JEFFORDS. Mr. President, I call up my amendment, amendment No. 
3691, and ask unanimous consent Senators Frist and Snowe be added as 
cosponsors. I ask unanimous consent also Senator Ashcroft be added as a 
cosponsor.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will report.
  The legislative clerk read as follows:

       The Senator from Vermont [Mr. Jeffords], for himself, Mr. 
     Frist, Ms. Snowe, and Mr. Ashcroft, proposes an amendment 
     numbered 3691.

  (The text of the amendment is printed in today's Record under 
``Amendments Submitted.'')
  Mr. JEFFORDS. Mr. President, may I inquire of the Chair as to the 
amount of time I have?
  The PRESIDING OFFICER. The Senator from Vermont has 30 minutes.
  The Senator from South Dakota has 30 minutes.
  Mr. JEFFORDS. Mr. President, this week's announcement of the 
completion of the rough draft of the human genetic map is cause for 
both celebration and concern.
  One of the challenges that comes to mind immediately is that we must 
protect Americans against genetic self-incrimination. What we are, 
should not be used against us.
  This vast new storehouse of knowledge must be used to advance, not 
retard, individuals' health and welfare.
  In 1998, the Senate Labor and Human Resources Committee held a 
hearing on genetic information and health care which proved to be one 
of the most important of the 105th Congress.
  Following the hearing, I and Senator Frist, with the other members of 
the HELP Committee, together with Senator Mack and Senator Snowe, began 
drafting legislation that builds on Senator Snowe's bill, S. 89, to 
ensure that individuals would be able to control the use of their 
predictive genetic information.
  After a lot of hard work, we agreed to a set of strong protections 
against the use of genetic information to discriminate in health care. 
The results of these efforts are reflected in the genetic information 
provisions of The Patients' Bill of Rights Plus.
  As Dr. Francis Collins, director of the public genomic effort, 
pointed out this week:

       Most of the sequencing of the human genome by this 
     international consortium has been done in just the last 
     fifteen months.

  The pace of change is rapid, and this issue has increased in 
importance since our hearing two years ago.
  Everyone in this Chamber and outside of it agrees we need to guard 
genetic privacy and guard against genetic discrimination.
  Citing a study that found that 46 percent of Americans thought that 
the consequences of the Human Genome Project would be negative, Dr. 
Craig Venter said:

       New laws to protect us from genetic discrimination are 
     critical in order to maximize the medical benefits from 
     genome discoveries.

  That's why it's included in the Bill of Patients' Rights passed by 
the Senate as our body of scientific knowledge about genetics 
increases, so, too, do the concerns about how this information may be 
used.
  There is no question that our understanding of genetics has brought 
us to a new future. Our challenge as a Congress is to enact legislation 
to help ensure that our society reaps the full health benefits of 
genetic testing, and also to put to rest any concerns that the 
information will be used as a new tool to discriminate against specific 
ethnic groups or individual Americans.
  Our amendment which is already in the Patients' Bill of Rights, 
addresses the concerns that were raised at our hearing two years ago:

[[Page 12938]]

  First, it prohibits group health plans and health insurance companies 
in all markets from adjusting premiums on the basis of predictive 
genetic information;
  Second, it prohibits group health plans and health insurance 
companies from requesting predictive genetic information as a condition 
of enrollment.
  Finally, it bars health plans from requiring that an individual 
disclose or authorize the collection of predictive genetic information 
for diagnosis, treatment, or payment purposes. A plan or insurer may 
request such information, but if it does, it must provide individuals 
with a description of the procedures in place to safeguard the 
confidentiality of the information.
  Our amendment is identical to the provision adopted by the Senate 
last July. We should adopt it again today.
  Technology and scientific developments, stimulated by the Human 
Genome Project, have led to remarkable progress in genetics and better 
understanding of alterations in genes that are associated with diseases 
in humans. We should witness extraordinary opportunities to diagnose, 
treat, and prevent disease.
  With the enactment of this amendment, we will be able to ensure that 
these breakthroughs will be used to provide better health for all 
members of our society.
  A second challenge that we face is the possibility that employers 
might use genetic information to screen employees for various purposes, 
discriminating against one group or another based on genetic 
information. This, too, I think we should prevent.
  I am not sure, and I do not think anyone in this Chamber can be sure, 
that we do not already do so. It was my understanding that the 
Americans With Disabilities Act already outlawed genetic discrimination 
in employment.
  That was certainly Congress' intent when we enacted the ADA.
  I am not alone in my belief. The Equal Employment Opportunity 
Commission has interpreted the ADA as including genetic information 
relating to illness, disease or other disorders and the Supreme Court 
issued a decision that provided further support for this position.
  As recently as March of this year, EEOC Commissioner Paul Miller 
stated that the ADA does indeed cover genetic discrimination. However, 
if I am mistaken, then this just highlights the need for further 
examination of the issue.
  I am also concerned that Senator Daschle's amendment contains new 
statutory language that is different from the ADA, which would result 
in treating genetics differently than other health care information.
  More and more, I think this will be an increasingly difficult line to 
draw.
  If that is not confusing enough, there is yet another definition of 
genetic information that is part of the rule being promulgated by the 
Department of Health and Human Services to protect individually 
identifiable health information.
  I want to guard against employment discrimination, but I want to do 
it right.
  The Health, Education, Labor, and Pensions Committee will hold a 
hearing in the next month or two on genetic discrimination in the 
workplace.
  In the hearing, the committee will explore whether the ADA adequately 
covers genetic discrimination in the workplace. If we find that the ADA 
does not provide adequate coverage for genetic discrimination in the 
workplace then we will work to enact legislation that will provide 
adequate protection.
  However, I think it is important that any law we enact is in parity 
with the ADA and our other employment discrimination laws.
  Senator Daschle's amendment has good intentions, but putting 
provisions regarding genetic discrimination in employment into an 
appropriations bill, without studying the issue further, is 
inappropriate. This issue deserves and requires a thorough discussion 
in its own forum.
  Again, I urge adoption of my amendment. It has already been agreed to 
by the Senate, and it is the product of two years of thought and hard 
work.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Democratic leader.
  Mr. DASCHLE. Mr. President, we now know what this is all about. Some 
of our Republican colleagues are going to try to convince a majority in 
this body that employment ought not be included when we consider 
discrimination based upon genetic character. I do not think employment 
discrimination should be treated differently from insurance 
discrimination. I do not think people who have experienced 
discrimination, as we have already seen in so many illustrations, ought 
to be told they have to be concerned about their job simply because of 
some genetic defect.
  That has already happened. We have already seen that happen in case 
after case. I described a case this morning where Terri Seargent, who 
had moved up the corporate ladder and was given promotion after 
promotion, was asked to resign when it was learned that she had the 
genetic marker for ``Alpha 1''. No woman, no man, no person, no 
employee, should be subjected to discrimination based upon genetic 
characteristics, and that is happening today.
  ADA passed a long time ago. That law did not envision the challenges 
science presents us today. We are simply proposing that we clarify that 
it should be unlawful to discriminate on the basis of genetic 
information.
  The bottom line question is, when it comes down to these two 
proposals, whether we should prohibit both health insurers and 
employers from using predictive genetic information in a discriminatory 
fashion? There is agreement, at least with regard to one issue: we 
should prohibit health insurers from doing it, but our Republican 
colleagues--at least the senior Senator from Vermont--are saying we 
just should not cover employers. We should not do it because he would 
like to have us believe it is already being done. Tell that to Terri 
Seargent. Tell that to myriad other people who already have had 
difficulty explaining their situation, in large measure because they 
have found some genetic defect.
  We agree that insurance companies should not discriminate. We agree 
there should not be any tests for conditions of coverage. We simply 
disagree at this moment about whether or not we ought to take what we 
have already done for virtually every other form of discrimination in 
this country and extend it to genetic information.
  The senior Senator from Vermont says no, he does not want to do that. 
But I cannot imagine that in this day, in this age, given what we are 
doing with the genome project and our recognition of what it will mean, 
both good and bad, for this country and for our people that now is not 
the time to ensure that, regardless of circumstance, we will not allow 
this to be used as a means of discrimination in the workplace.
  Listen to what Francis Collins, one of the key people who headed the 
international research team that makes up the human genome project, 
said about this very issue:

       Genetic discrimination in insurance and the workplace is 
     wrong and it ought to be prevented by effective Federal 
     legislation.

  This is from the head of the research unit. He does not have any 
question about whether or not ADA covers genetic discrimination. He has 
already decided. He is the head of the research team. He said this 
ought to be a wake-up call; let's ban it today. He did not say let's 
wait for more hearings. He did not say let's get out there and try to 
figure out a way to do it through regulation. He said this ought to be 
a wake-up call. That is not Tom Daschle; that is not Terri Seargent who 
has been discriminated against; that is Francis Collins, the head of 
the international research project calling upon the Senate today to ban 
discrimination based upon employment. It cannot be any clearer than 
that, Mr. President.
  I reserve the remainder of my time and yield the floor.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Vermont.
  Mr. JEFFORDS. I yield the Senator from Tennessee 7 minutes.
  The PRESIDING OFFICER. The Senator from Tennessee is recognized for 7 
minutes.

[[Page 12939]]


  Mr. FRIST. Mr. President, earlier this week we received tremendously 
exciting news in that we essentially had completion of the mapping of 
the human genome. It is tremendously exciting to me, both as a 
policymaker but also as a physician, as someone who has spent his life 
taking care of thousands of patients because it introduces a whole new 
way of thinking that in the history of mankind we just simply have not 
had. Now there will be whole new ways of thinking.
  I think we should salute both Craig Venter from Celera and Francis 
Collins for pioneering, for leading this great effort, which will 
totally change the way we do such things as engineer drugs, the so-
called gene drugs. Now and into the future, we can begin to think how 
we use our own genes, our own proteins, our own metabolites in such a 
way that they become the pharmaceutical agent instead of a manufactured 
drug.
  It changes the way we will think about organ replacement. Before I 
came to the Senate, I would make an incision, remove a diseased heart, 
and have to put in a new heart. Hopefully, 10 years from now, or 15 
years from now, when we transplant kidneys or a pancreas, or other 
organs, we will be able to engineer them based on what we have 
uncovered.
  A third area which this human genome project opens up, as we look to 
the future, is that of genetic testing. We have been talking about and 
debating the issue of genetic testing over the last couple hours. That 
is where you can take a swab, and by rubbing that swap over an array, a 
pattern of DNA that is lined up, you will be able to predict that a 
person has a 75-percent chance of getting prostate cancer 10 years from 
now or a 90-percent chance a person will have breast cancer.
  The potential good is the change in behavior, the change in 
lifestyle, the change in the intervention that can come about to 
preempt, preclude, stop the progress of cancer.
  Unfortunately, as has been laid out and debated today, there are 
potential dangers, potential harm, if that information is misused. 
Should policymakers address this potential abuse of genetic information 
in the workplace? There is no question; yes, we have a responsibility.
  Technology has given us new tools which give us new ways to think 
about gene therapy, organ replacement, genetic testing, and the 
treatment of cancers and heart disease. We are obligated to make sure 
the barriers are lowered to take the good in the development of science 
but also minimize whatever harm there might potentially be.
  But to do that, what is our responsibility? Not to have a knee-jerk 
reaction and accept a proposal which very few people in this body have 
even read, much less studied, discussed, and debated. But first, we 
should focus on the issues that we have studied, that we have addressed 
in committee, that we have debated, including the input we have 
solicited from doctors, physicians, scientists, and consumer groups, 
with both sides of the aisle coming to certain agreements.
  Let us start there and systematically address these ethical-type 
issues which have been introduced by this new science just 3 days ago. 
Let's not have a knee-jerk reaction until every Senator can ask the 
important questions.
  I agree 100 percent that we should not discriminate in any way using 
predictive genetic information in the workplace. That needs to be put 
first. I think it is unfair for the other side to say we are for 
discrimination in the workplace by genetic testing. It is just unfair. 
It is just unfair because we are against that.
  But to address the policies, in looking at this amendment that has 
been offered today by Senator Daschle and his colleagues, there is a 
health insurance section. I have read most of that because I have had 
several hours to do that. I read a little of the employment section. 
The genetic privacy is very complicated. I can tell you, we need to 
discuss that a lot more.
  As to the various definitions of what a predictive genetic test is, I 
would have to say, the genetic tests they are talking about, where they 
are actually talking about metabolites, I don't know, I will have to go 
out and talk to the real experts, but they may go too far.
  So I do not want to pass a major reform bill that will potentially 
totally underwrite or change the way we treat people in the workplace 
based on definitions that I do not fully agree with now. But I do not 
know enough about it until we can talk to people broadly.
  This whole expansion of penalties in the fourth section of the bill, 
I do not know exactly what we are penalizing, if it is just that one 
statement of penalizing people who use genetic information. First of 
all, it depends on what that definition is--which I do not agree with--
but if it goes beyond that--and I don't know whether it does--I need to 
know that.
  I say all that because this amendment Senator Daschle has offered 
simply has not been vetted. It has not been discussed. I have been 
involved in the genetic debates with my colleagues on both sides of the 
aisle--some initial discussions--but I can tell you, we have not gone 
into any sort of detail on this whole issue of expanding penalties in 
this expanded, complicated field of genetic privacy and employment.
  The one area that has been mentioned is that of health care quality 
and the use of genetic information in health care, in the health 
insurance arena.
  It is very clear that patients need to be free to undergo genetic 
testing because that can influence, in a positive way, the outcome of 
their health care. If they receive information that there is an 80-
percent chance they will develop breast cancer, that is likely to 
change how many times they do self-exams a week, how often they go to 
the doctor, how often they get a mammogram. That information should be 
used. There should be no chance that information will be used by an 
insurance company to discriminate against them in denying them 
insurance.
  It can change lifestyle. If there is a test with an 80-percent chance 
that you will develop lung cancer, you will want to know that. Why? 
Because it can change lifestyle.
  We have a bill we have debated extensively since 1996 which does just 
that. Our bill, the Jeffords-Frist bill, prohibits health insurers from 
requiring patients to undergo genetic testing and prohibits health 
insurers from using genetic information to deny coverage or set rates 
for currently healthy individuals who may be at risk for a future 
disease.
  Again, this issue has been vetted through the process, has been 
vetted through Chairman Jeffords' committee. Discussion has gone on. In 
1995, the debate in the markup of the Kassebaum-Kennedy bill was 
extensive in numerous areas.
  Mr. President, I urge our colleagues to adopt the amendment Chairman 
Jeffords has offered.
  The PRESIDING OFFICER. The time has expired.
  The Democratic leader.
  Mr. DASCHLE. Mr. President, let me just respond to a few of the 
arguments posed by the Senator from Tennessee.
  First of all, with regard to the technicalities to which he made 
reference, I do not know what technicalities and what information could 
be murky about what it is we are trying to do.
  We simply say there should not be any employment discrimination based 
on genetic information. That is it. He talked about these 
discrimination actions being subjected to a mysterious penalty. All we 
have said in section 4 of the bill is that if you think you were 
discriminated against, you can go to court and have a court make some 
decision with regard to whether there is discrimination or not. That is 
the penalty. We do not prescribe any penalties. We prescribe some 
degree of accountability. We simply say, if you think you were 
discriminated against, you get to sue, period. That is all.
  On another point, let me say that the legislation proposed by our 
Republican colleagues has already been analyzed in some detail as part 
of their Patients' Bill of Rights, as the Senator from Vermont has 
said.
  On April 12, Senator Harkin received a letter from 59 health 
organizations

[[Page 12940]]

that wrote with concern about the language propounded in this amendment 
by the Senator from Vermont. Fifty-nine health organizations have 
already said: This is not the way we ought to do it.
  They don't need more hearings. They don't need more information. They 
have looked at the bill. They have come to the conclusion that if we 
are going to write public policy regarding genetic discrimination, this 
isn't it.
  I ask unanimous consent that the letter and names of all 59 
organizations be printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:
                                                   April 12, 2000.
     Hon. Tom Harkin,
     U.S. Senate,
      Washington, DC.
       Dear Senator Harkin: In the very near future, scientists 
     will have deciphered the entire human genetic code, providing 
     human beings with more information about our health than ever 
     before. Tests are already available that can detect genetic 
     traits associated with particular diseases, and the use of 
     such tests is expected to increase dramatically in coming 
     years.
       Genetic testing will improve our lives by providing 
     information on how we can prevent future health problems, and 
     cope more effectively with unavoidable conditions. But the 
     ability to predict diseases through genetic testing and 
     family history opens troubling questions about 
     discrimination, particularly in employment and health care.
       As you begin to consider the House and Senate versions of 
     managed care reform, we write to draw your attention to Title 
     III of S. 1344, the Senate bill. We commend the Senate for 
     including provisions intended to protect individuals from 
     discrimination in health insurance based on genetic 
     information. However, we believe that the provisions in the 
     Senate bill as currently crafted are inadequate to meet the 
     challenges raised by the extraordinary scientific advances of 
     our time.
       Without comprehensive protections covering both employment 
     and health care, patients have reason to fear that their 
     genetic information could be used as a basis for 
     discrimination. Many health care professionals report that 
     because of these fears many patients are reluctant to 
     participate in important clinical studies that require 
     genetic testing, slowing medical and scientific progress.
       The undersigned organizations, representing patients, 
     people with disabilities, consumers, women's and civil rights 
     organizations and many others, urge the conferees to retain 
     and improve Title III of the Senate Bill in the final 
     conference bill, by incorporating the following changes.
       1. Add meaningful penalties and sanctions. As currently 
     drafted, the provision for punishing violators is 
     tremendously weak. Without meaningful mechanisms for holding 
     violators accountable, even the strongest genetic 
     discrimination protections become meaningless. Victims of 
     discrimination must have the ability to enforce their rights 
     in state or federal court and to receive appropriate legal 
     and equitable relief.
       2. Add protections from discrimination in employment. As 
     currently drafted, the Senate bill bans discrimination by 
     group health plans and issuers, but provides no protection 
     against job-based discrimination. Thus, even if group health 
     plans and issuers are prevented from misusing genetic 
     information, the very same information could be used against 
     individuals in employment. Genetic information must not be 
     misused to deny people employment opportunities.
       3. Prevent unauthorized disclosure of genetic information. 
     One of the best ways to protect people against discrimination 
     is to prevent the disclosure of information to those in a 
     position to misuse it. There is no federal law that prohibits 
     group health plans or issuers from disclosing people's 
     genetic information. We urge the committee to add strong 
     protections against disclosure of genetic information.
       4. Clarify plans' limited ability to request predictive 
     genetic information. S. 1344 provides that a plan can request 
     (but not require) that an individual disclose predictive 
     genetic information for purposes of ``diagnosis, treatment, 
     or payment.'' We are concerned that this formulation makes it 
     possible for plans to obtain an individual's genetic 
     information in an overly broad set of circumstances. This 
     language should be rewritten to clarify that when plans are 
     seeking information related to payment for genetic services 
     received, they may only request such evidence as is minimally 
     necessary to verify that an individual received the services. 
     In such circumstances, only individuals within the plan or 
     insurance company who need access to the information for 
     purposes of that claim should have access to it.
       5. Clarify definition of ``Predictive Genetic 
     Information.'' As currently drafted, S. 1344's definition of 
     predictive genetic information is potentially confusing. The 
     legislation states that ``predictive genetic information'' 
     means information ``in the absence of symptoms, clinical 
     signs, or a diagnosis of the condition related to such 
     information.'' This phrasing is potentially troubling, 
     because ``diagnosis'' is a fairly broad and imprecise term. 
     In fact, as doctors and scientists learn more about genetics, 
     it is possible that someday they will consider the presence 
     or absence of a particular genetic trait a ``diagnosis.'' 
     Thus, we suggest that this phrase be rewritten to read ``in 
     the absence of symptoms or clinical signs, and a diagnosis'', 
     in order to clarify that the presence or absence of a genetic 
     trait should not be considered a ``diagnosis'' if the 
     individual has no symptoms or clinical signs, and genetic 
     information would not be excluded from protection under those 
     circumstances.
       The definition of predictive genetic information in S. 1344 
     also specifically excludes information derived from 
     ``physical tests, such as the chemical, blood, or urine 
     analyses of the individual including cholesterol tests; and 
     information about physical exams of the individual.'' This 
     language should be clarified so that it is clear that genetic 
     information derived from either physical tests or physical 
     exams is considered protected information. This can be 
     accomplished by adding language such as ``unless the physical 
     test [or physical exam] reveals genetic information.''
       We would like to discuss these issues with you further at 
     your convenience. Please feel free to contact Susannah Baruch 
     at the National Partnership for Women & Families (202) 986-
     2600 if you have any questions about this letter. We commend 
     you on your willingness to take on these critical and complex 
     issues, and we wish you well as the conference continues its 
     work.

     American Association of Occupational Health Nurses, Inc.
     American Association of People with Disabilities
     American Association on Mental Retardation
     American Cancer Society
     American College of Nurse-Midwives
     American Civil Liberties Union
     American Health Information Management Association
     American Heart Association
     American Hemochromatosis Society
     American Jewish Congress
     American Nurses Association
     Association of Women's Health, Obstetric and Neonatal Nurses
     Beckwith-Wiedemann Support Network
     Canavan Foundation
     CARE Foundation (Cardiac Arythmia Research and Education 
           Foundation)
     Center for Patient Advocacy
     Coalition for Heritable Disorders of Connective Tissue
     Crohn's and Colitis Foundation of America
     Digestive Disease National Coalition
     DNA Dynamics
     Dystonia Medical Foundation
     The Ehlers-Danlos National Foundation
     Genetic Alliance
     Great Lakes Regional Genetics Group
     Hadassah
     Hemochromatosis Foundation
     Intestinal Multiple Polyposis and Colorectal Cancer (IMPACC)
     Little People of America, Inc.
     National Medical Journeys Network
     National Association for Pseudoxanthoma Elasticum (NAPE, 
           Inc.)
     National Association of People with AIDS
     National Coalition for Cancer Survivorship
     National Hemophilia Foundation
     National Incontinential Pigmenti Foundation
     National Marfan Foundation
     National Multiple Sclerosis Society
     National Organization for Rare Disorders (NORD)
     National Osteoporosis Foundation
     National Ovarian Cancer Alliance
     National Partnership for Women & Families
     National Pemphigus Foundation
     National Society of Genetic Counselors
     National Tay-Sachs & Allied Diseases Association
     National Tuberous Sclerosis Association
     National Women's Health Network
     National Workrights Institute
     Nationl Women's Law Center
     Oncology Nursing Society
     Polycystic Kidney Foundation
     Religious Action Center of Reform Judaism
     Ruth G. Gold
     Spondylitis Association of America
     Susan G. Komen Breast Cancer Foundation
     The Sturge-Weber Foundation
     The Title II Community AIDS National Network
     Tourette Syndrome Association
     Union of American Hebrew Congregations
     University of North Dakota School of Medicine and Health 
           Science, Division of Med. Genetics, Dept. of Pediatrics
     Xavier University Health Education Program

  Mr. DASCHLE. We have the director of the National Human Genome 
Research Institute who has said we have to pass a bill immediately to 
bar discrimination in the workplace. We have a bill pending that will 
allow us to do just that. We have another bill pending that does not 
provide that protection in terms of discrimination. Fifty-nine health 
organizations, including the

[[Page 12941]]

American Association of Occupational Health Nurses, the Genetic 
Alliance, the CARE Foundation, the Oncology Nursing Society have said: 
Please, do more than the legislation offered by the Senator from 
Vermont.
  So it isn't just Dr. Collins, it isn't just Terri Seargent, it is a 
list of health organizations, the likes of which you rarely see, who 
have come together to say: We ought to do better than this.
  I yield 5 minutes to the distinguished senior Senator from the State 
of Massachusetts.
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized 
for 5 minutes.
  Mr. SPECTER. Mr. President, parliamentary inquiry.
  The PRESIDING OFFICER. The Senator from Massachusetts will withhold.
  Mr. SPECTER. Isn't it the rule of the Senate that the first person 
seeking recognition gets recognition and the Senator does not have the 
authority to yield to another Senator without unanimous consent?
  The PRESIDING OFFICER. The time is under the control of the Senator 
from South Dakota. He had the floor and is in control of the time, and 
he may yield time since he is on the floor and has recognition.
  Mr. SPECTER. Mr. President, does that ruling supersede the rule that 
the first Senator seeking recognition gets it?
  The PRESIDING OFFICER. The Senator was recognized and had the floor 
at the time that he yielded.
  The Senator from Massachusetts is recognized.
  Mr. KENNEDY. Mr. President, I want the record to show that I was on 
my feet seeking recognition at the time the Senator from South Dakota 
yielded the time.
  I want to take a moment of the Senate's time to review what has 
happened in terms of this policy issue in the Human Resource Committee 
so there is no confusion about it. We had a hearing on genetic 
discrimination in health insurance on 21 May 1998. That was a good 
hearing. That was in 1998.
  Then, in May of 1998, a number of us asked the chairman of the 
committee to have a further hearing about discrimination in the 
workplace. We have not received it. So I don't take kindly to those who 
suggest that when we raise this issue on the Senate floor, we are 
somehow acting out of order. Our committee, the committee of 
jurisdiction, has tried to focus attention on the dangers of the 
utilization of genetic information toward possible discrimination for 
health insurance and employment, and we have been unable to do so. 
Thankfully, with the Daschle amendment, we will have the opportunity to 
do so this afternoon.
  The Jeffords amendment pretends to be a half a loaf because it 
addresses insurance, but does not address employment. But it is not a 
half a loaf. It is no more than a thin crust or a thin slice. It will 
not deal with the central problem of people failing to get needed 
genetic tests because of unfair discrimination. That is the issue. As 
long as they can lose their job and as long as their children can be 
denied jobs, this protection is no protection at all. This program is 
as full of holes as Swiss cheese. They can still require genetic 
information. They can still disclose it, and there is still no 
meaningful enforcement. An insurance company can still get the 
information to the employer. There is no prohibition on that in the 
amendment of the Senator from Vermont. They can still do that.
  The fact is, they are doing that. In a 1990 survey by the American 
Management Association, 20 percent of employers collected family 
medical history information on applicants, including genetic 
information. Five percent of the employers acknowledged using that 
information in hiring decisions. We already know that employers are 
using genetic information to make employment decisions. We must ensure 
that employees and applicants are not discouraged against getting those 
kinds of tests. That is what this is all about.
  I ask for 1 more minute.
  Mr. DASCHLE. I yield the Senator 1 more minute.
  Mr. KENNEDY. As Senator Daschle pointed out, there is a group of more 
than 60 organizations that support the Daschle amendment. The National 
Breast Cancer Coalition is, once again, supporting the Daschle 
amendment:

       Passage of this amendment, and the protections it offers, 
     are essential not only for women with a genetic 
     predisposition to breast cancer, but also for women living 
     with breast cancer, their families, and the millions of women 
     who will be diagnosed with breast cancer. We strongly urge 
     you to support this legislation.

  Let us stand with the patients. Let us stand with the victims. Let us 
not stand only with the insurance companies.
  That is what this issue is about. I hope the Jeffords amendment will 
be defeated.
  Mr. President, I ask unanimous consent to print in the Record a 
letter from the National Breast Cancer Coalition.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                             National Breast Cancer Coalition,

                                    Washington, DC, June 29, 2000.
     Senator Edward Kennedy,
     Senate Committee on Health, Education, Labor and Pensions 
         (Minority), Washington, DC.
       Dear Senator Kennedy: On behalf of the National Breast 
     Cancer Coalition (NBCC), I am writing to urge you to support 
     Senators Daschle, Kennedy, Dodd and Harkin's Genetic 
     Nondiscrimination in Health Insurance and Employment Act, S. 
     1322, being offered today as an amendment to the Fiscal Year 
     2001 Labor, Health and Human Services, and Education 
     Departments appropriations bill.
       NBCC is a grassroots advocacy organization made up of over 
     500 organizations and tens of thousands of individuals, their 
     families and friends. We are dedicated to the eradication of 
     the breast cancer epidemic through action and advocacy. 
     Addressing the complex privacy, insurance and employment 
     discrimination questions raised by evolving genetic 
     discoveries is one of our top priorities.
       In light of the recent announcement by the White House 
     about the completion of initial sequencing of the human 
     genome, the National Breast Cancer Coalition is cautiously 
     optimistic about this important step in learning more about 
     disease, prevention, treatment and cure. However, while the 
     mapping of the ``genetic blueprint'' has potential for great 
     advancements in healthcare, there is also the potential for 
     great harm. NBCC is committed to working to ensure that 
     employers and health insurers do not use genetic information 
     to discriminate. Information learned from one's genetic 
     blueprint should only be used to cure and prevent various 
     genetic diseases and cancer.
       Discrimination in health insurance and employment is a 
     serious problem. In addition to the risks of losing one's 
     insurance or job, the fear of potential discrimination 
     threatens both a woman's decision to use new genetic 
     technologies and seek the best medical care from her 
     physician. It also limits the ability to conduct the research 
     necessary to understand the cause and find a cure for breast 
     cancer.
       The Kassebaum-Kennedy Health Insurance Reform Act (1996) 
     took some significant steps toward extending protection in 
     the area of genetic discrimination in health insurance. But 
     it did not go far enough. Moreover, since the enactment of 
     Kassebaum-Kennedy, there have been incredible discoveries at 
     a very rapid rate that offer fascinating insights in the 
     biology of breast cancer, but that may also expose 
     individuals to an increased risk of discrimination based on 
     their genetic information. For instance, because of the 
     discovery of BRCA1 and BRCA2, breast cancer susceptibility 
     genes, we now face the reality of a test that can detect the 
     risk of breast cancer. Genetic testing may well lead to the 
     promise of improved health as we better learn how genes work. 
     But if women are too fearful to get tested, they won't be 
     able to benefit from the knowledge genetic testing might 
     offer.
       We commend the efforts of Senators Daschle, Kennedy, Dodd 
     and Harkin to go beyond Kassebaum-Kennedy toward ensuring 
     that all individuals--not just those in group health plans--
     are guaranteed protection against discrimination in the 
     health insurance and employment arenas based on their genetic 
     information. S. 1322 would also guarantee individuals 
     important protections against rate hikes based on genetic 
     information, would prohibit insurers from demanding access to 
     genetic information contained in medical records or family 
     histories, and would restrict insurers' release of genetic 
     information.
       Passage of this amendment, and the protections it offers, 
     are essential not only for women with a genetic 
     predisposition to breast cancer, but also for women living 
     with breast cancer, their families, and the millions of women 
     who will be diagnosed with breast cancer. We strongly urge 
     you to support this legislation.

[[Page 12942]]

       Thank your for your support. Please do not hesitate to call 
     me or NBCC's Government Relations Manager, Jennifer Katz at 
     (202) 973-0595 if you have any questions.
           Sincerely,
                                                       Fran Visco,
                                                        President.

  Mr. JEFFORDS. I yield 5 minutes to the Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I had sought a parliamentary inquiry a 
few minutes ago. I am glad to wait 5 minutes until Senator Kennedy has 
finished his comments. I have asked the Parliamentarian to review his 
rules.
  There was a very heated exchange for more than an hour back in 1987, 
shortly after Senator Byrd had Senator Packwood arrested, as to the 
practice of having one Senator, the leader, yield time to other 
Senators. I believe the correct application of the rule is that the 
first Senator who seeks recognition is recognized and then the question 
arises as to whether time will be yielded to him when there is a time 
agreement. That is the point I was making. I have no concern about 
waiting 5 minutes or longer for another Senator. I do have a concern 
about the propriety of a Senator being recognized who first seeks 
recognition.
  I have sought recognition to comment briefly about this legislation. 
I believe the Jeffords amendment is a solid amendment. His committee 
has looked into this issue very extensively with respect to eliminating 
discrimination based upon genes and medical information and research 
with respect to health care.
  I do think the objectives of the Daschle amendment are sound, in 
seeking to avoid discrimination in employment as well as in health 
care. I have had an opportunity to review the Daschle amendment very 
briefly. From the review which I have made and which staff has made, I 
have some grave concerns about some of the provisions which are very 
complicated and which have not been subjected to hearings.
  Again, I think its objectives are laudable. I think the American 
people do expect protection and confidentiality on these issues on 
employment as well as on health care.
  I express my concern about our ability to handle this matter in 
conference on this state of the record. I think it is more than a 
matter of people's rights and obligations and objectives and what we 
ought to have. We need to have a bill which sticks together, which 
makes sense, and which will stand the kind of scrutiny and examination 
and analysis to which it will be subjected.
  One of the grave problems our legislation has, when subjected to 
judicial review, is that it is hard to figure out sometimes, especially 
when there are no hearings, no markups, and no analysis. I have 
discussed with the Senator from Vermont the possibility of his 
committee having hearings in July. He may have a problem with that. My 
subcommittee will have hearings on this subject so that if the Daschle 
amendment passes and we have in conference its consideration, we will 
try to work through the complexities of this legislation.
  Again, I think the objectives of what Senator Daschle looks to are 
exactly right. I do think those people who vote against the Daschle 
amendment are going to be questioned for not having concerns about 
privacy on a very important matter.
  Last week we had a motion to recommit this bill for prescription 
drugs. If that motion had passed, I, frankly, don't know what my 
subcommittee would have done on prescription drugs. Our subcommittee is 
a very competent subcommittee, but I don't know that our competence 
extends to legislating on prescription drugs, taking that into account 
and working that through, which is really a matter for the Finance 
Committee. I have been questioned about why I was unwilling to have the 
recommitment. I have said, because I have the responsibility for 
dealing with it as the manager of the bill.
  So there is a lot to recommend the Daschle amendment in terms of 
objectives and moving along, but I caution my colleagues about where we 
end up in terms of this bill without the hearings, without the 
refinement, without the analysis. I am not making any critique or 
criticism of the author of the bill. Any bill which is constructed 
without hearings and without markup and without that kind of rigorous 
analysis has natural problems. Even with hearings and with markup, 
there are still problems that have to be worked out.
  I express my agreement with the Senator from Vermont on his 
legislation, express my agreement with the objectives of the 
legislation of the Senator from South Dakota, and say that if we have 
it in conference, we will do our best to try to work through the kinds 
of problems and deal with this very important issue.
  The PRESIDING OFFICER. The Senator's time has expired. Who yields 
time?
  Mr. DASCHLE. Mr. President, I have immense respect for the Senator 
from Pennsylvania and consider him a very able legislator. I am 
disappointed that he will be opposing my amendment when we have our 
vote.
  Mr. SPECTER. If the Senator will yield, I ask him what makes him 
think I am going to oppose his legislation?
  Mr. DASCHLE. I thought he announced he intended to oppose it because 
we didn't have hearings. If there is still an opportunity to gain his 
support, I will give him all the time he needs to further discuss the 
issue.
  Mr. SPECTER. Mr. President, I am very much inclined to support the 
Daschle legislation, but I recognize the job ahead of trying to work it 
through for the reasons I have said. I think the objectives are 
admirable. I am not committed yet. I want to hear the balance of his 
argument. I have not stated an intention to oppose it.
  Mr. DASCHLE. Mr. President, I appreciate the clarification. I am 
delighted to hear that there is still some hope I can persuade him with 
the merits of our legislation.
  To ensure that everybody understands--I think it is pretty basic--
three-fourths of the people in this country obtain their health 
insurance through their employer. Whether or not employers may 
discriminate against employees and potential employees on the basis of 
genetic information, in large measure, will be determined by whether or 
not we write into law a pretty simple concept. It doesn't take any 
complex legalism to say, look, you should not discriminate based upon 
genetic information, period. If you think you are discriminated 
against, you ought to have recourse in a court of law. That is all we 
are saying.
  Now, the Jeffords amendment provides no protection against employment 
discrimination. That is clear. It does not prohibit insurers from 
disclosing the results of genetic tests without consent. That is clear. 
It does not prohibit the use of predictive genetic information for 
hiring, advancement, salary, or other workplace rights and privileges. 
That is clear. It doesn't provide persons who have suffered genetic 
discrimination in either arena with the right to seek redress through a 
legal action. That is clear.
  It is no wonder that 59 health organizations have said: We have 
looked at what Senator Jeffords is proposing and we think you can do 
better. That is no accident. They are asking us not to support this 
legislation because there is no meaningful protection in the Jeffords 
amendment.
  I am all for more hearings, but it is ironic--how many times has the 
majority bypassed a committee to go straight to the floor without 
hearings on bills of great import? We are going to do that as soon as 
we come back from the Fourth of July recess. We are going to vote on an 
estate tax provision that will cost, in the full 10-year period, three 
quarters of $1 trillion; we are going to vote on it without one 
hearing, without one committee markup. I will bet you we are not going 
to hear the argument by the other side that we ought to have hearings 
on that. This is pretty simple. This is basic math. If you don't want 
discrimination in the workplace, vote for the Daschle amendment.
  Mr. President, I yield 5 minutes to the distinguished Senator from 
Iowa, Mr. Harkin.

[[Page 12943]]

  The PRESIDING OFFICER (Mr. Gorton). The Senator from Iowa is 
recognized.
  Mr. HARKIN. Mr. President, I am supporting the amendment of the 
Senator from South Dakota because I have been involved in this issue 
for a long time. In 1989, when I was chairman of the subcommittee that 
my good friend, Senator Specter, chairs now, we started funding for the 
Human Genome Center at NIH. So I have been involved in this effort for 
a long time and am very supportive of it.
  I could not have been happier with the announcement that came out 
this week that we have now completed the map, and they will be 
completing the sequencing of the human genome. With that, we are going 
to have a very powerful diagnostic tool that will allow medical 
practitioners to more accurately assess the health of an individual and 
their proclivity to come down with an illness or a disease, or to be 
more predictive of what kind of illnesses to which a person might be 
subject.
  Well, that is a very powerful diagnostic tool, and it is going to do 
a lot to help millions of people all over this world. There may be 
other spinoffs in terms of gene therapy, and things such as that, but I 
wish to focus on the diagnostic tool that will help people get better 
control over their health care. That is the upside.
  The downside is that in the hands of the wrong person this 
information could then be used to discriminate against a person who may 
have a genetic predisposition toward a certain illness. As I understand 
it, both of the amendments we have before us--the one by the Senator 
from Vermont and the one by the Senator from South Dakota--prohibit 
discrimination when it comes to insurance. Well, that is all well and 
good, but that is only a part of it.
  Why the amendment of the Senator from South Dakota is the one we need 
to adopt is that it also prohibits discrimination in the workplace. Why 
is that important? I understand that earlier my friend from Vermont 
said we didn't have to be too concerned about this because the 
Americans With Disabilities Act covered the workplace. Well, as the 
chief sponsor of the Americans With Disabilities Act, and one who has 
lived with it since its inception back in the 1980s, I say to my friend 
from Vermont that some lower courts have ruled, for example, that 
breast cancer is not a disability, so the ADA really does not cover the 
workplace when you come to genetic discrimination. Some lower courts 
have held that breast cancer is not a disability and not covered by the 
ADA. If they rule that, are they then going to rule that the gene for 
breast cancer is covered? Hardly.
  So that is why I wanted to take this time to make it clear that 
genetic predispositions and disorders should be covered in employment, 
because of some of these lower court rulings regarding the Americans 
With Disabilities Act. So that is why it is so important that we have 
it in the workplace.
  Secondly, we need to have better enforcement. The penalties that are 
in the amendment offered by the Senator from Vermont are toothless--
$100 a day. Well, a large business concern can factor that into their 
cost of doing business. That is not really a stiff enough penalty.
  It seems to me that if I am discriminated against, under the law, I 
ought to have a private right of action; I ought to be able to go to 
court and say, wait a minute, my rights are being abused, my civil 
rights are being abused. And if we have this law that says you can't 
discriminate against someone because of their genetic predisposition, 
that person ought to have a right of action. That person ought to be 
able to go to court and seek redress. So that is why I say the Daschle 
amendment is the only one that really protects people both in the 
workplace and in insurance.
  The PRESIDING OFFICER. The Senator from South Dakota is recognized.
  Mr. DASCHLE. Mr. President, I retain the remainder of my time.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. JEFFORDS. Mr. President, I yield myself such time as I may 
consume.
  Although many of us came into today's debate believing that the ADA 
did in fact cover genetic discrimination in the workplace, we certainly 
understand the importance of this issue and of the need to hold a 
hearing on this issue. However, I would like to emphasize that as 
recently as a few months ago experts in employment law and, in 
particular, EEOC Commissioner Paul Miller is quoted as stating that

       * * * discrimination against an employee on the basis of 
     diagnosted genetic predispositions toward an asymptomatic 
     condition or illness is covered under the ADA's ``regarded as 
     disabled'' prong.

  So it is not as if we approached this debate believing that employees 
should not be protected against genetic discrimination in the 
workplace. We simply thought that they already were covered.
  I want to reassure my colleagues that the HELP Committee will hold a 
hearing in the near future on this issue and that if we find that the 
ADA is not providing protection to workers we will develop and pass 
legislation to ensure that genetic information is properly protected. I 
yield 4 minutes to the Senator from Wyoming.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. ENZI. I thank the Senator from Vermont.
  Mr. President, I rise today with the Senator from Vermont, chairman 
of the Health, Education, Labor, and Pensions Committee. The matter of 
genetic discrimination in employment has taken on new relevance given a 
number of recent events. Most notably, the Human Genome Project 
announced this week that the ``rough draft'' of the map of some 3 
billion human genes has just been completed. This just became a sexy 
issue. While there are months, if not years, of research still required 
to realize the potential of this information, we must be responsive to 
the range of pros and cons regarding its use.
  The committee has spent a lot of time developing a bill to address 
where there do appear to be gaps in preventing discrimination. Those 
gaps are most apparent in health insurance, where a person's health 
information, as well as his family's health history, are a determinant 
in their access to coverage. This is an immediate concern that requires 
our immediate response. That is why I strongly support the amendment 
being offered by Senator Frist, which would prohibit insurance 
companies from discriminating based on a person's genetic makeup.
  The amendment Senator Daschle has offered also attempts to address 
genetic discrimination in employment. Unfortunately, this issue is not 
nearly as clear cut. Until very recently, the prevailing opinion among 
employment discrimination experts was that genetic discrimination was 
already captured under the Americans with Disabilities Act (or 
``ADA''). In fact, it is still not clear that the ADA does not cover 
genetic discrimination. Even as recently as March 24 of this year, the 
Commissioner of the Equal Employment Opportunity Commission, Paul 
Miller, told the American Bar Association genetic discrimination was 
covered under title I of the ADA. Specifically, Commissioner Miller 
said protect against genetic discrimination was provided by the prong 
of the act which prevents discrimination against people who are 
regarded as disabled.
  However, because no court has ever ruled definitively on this issue 
and because of some related--but not controlling--recent Supreme Court 
cases, I understand that there may now be some insecurity about whether 
genetic discrimination is covered by the ADA. And understandably, this 
insecurity is being increased by the recent announcement of the Human 
Genome Project.
  We are sympathetic to this insecurity, and I think we can all agree 
that employers should not be permitted to discriminate against 
employees based on genetic information in the same manner that 
employers may not discriminate based on disability, gender, race, age, 
and other characteristics. I believe our committee needs to evaluate 
the conflicting evidence as to whether or not genetic discrimination

[[Page 12944]]

is already covered under current law, particularly in light of the 
recent scientific developments. I support holding a hearing on this 
issue as soon as possible and I understand my colleague Senator 
Jeffords has scheduled a hearing on this issue for July 11. We should 
examine not only the question of whether the ADA captures genetic 
discrimination, but also what the implications are for the numerous 
workplace and work force issues that will arise based on the 
availability of genetics. Safety concerns and privacy concerns being 
the most important. Also, I believe we should consider genetic 
discrimination in employment in the broader context of the cultural 
implications and evaluate the historical experience with genetic 
information. Researching this issue has been a 10-year priority of the 
Human Genome Project's Ethical, Legal and Social Implications (ELSI) 
program. I welcome my colleagues to join the hearing process in a 
bipartisan effort to address this matter.
  Given the complexity of this issue, I believe it is critical that we 
not rush to accept Senator Daschle's amendment without resolving all of 
these important issues. We may determine that new legislation is 
necessary to protect against genetic discrimination--and if it is 
necessary, we will work hard to pass it. But Senator Daschle's 
amendment simply goes too far. We must be certain that any new 
legislation is comparable to existing discrimination legislation. 
Senator Daschle's amendment is not comparable, it is much broader.
  For example, Senator Daschle's amendment would permit unlimited 
damages for genetic discrimination. It would also permit parties to 
completely bypass the Equal Employment Opportunity Commission--the 
federal body set up to deal with employment discrimination disputes--
and go straight to federal court. This is significantly more extensive 
than the ADA, the ADEA and title VII discrimination protections. This 
just makes no sense at all. Under Senator Daschle's amendment, an 
individual with a genetic marker showing he may at some future point 
develop a genetic disease or condition would have more protection than 
a paraplegic. Again I say this makes no sense at all. And it will 
overtax federal courts and juries with highly complex genetic issues 
and give opportunistic trial lawyers a jackpot.
  If Senator Daschle has a valid reason why genetics should have such 
substantial additional protections, I welcome him to come to our 
committee hearing and explain them, but we should be very careful not 
to rush into such significant legislation and treat genetic information 
differently than existing diseases, disorders, and illnesses. If we 
accept Senator Daschle's amendment, we are simply not doing our job. 
Again, I think we can all agree that genetic discrimination should not 
be permitted, but I think we should also be able to agree not to pass 
legislation on such a significant and important issue without having 
all the proper information before us. I urge my colleagues to vote 
against Senator Daschle's amendment so that we can examine this issue 
through the proper procedural channels and pass responsible, reasonable 
legislation if such legislation is necessary.
  There isn't anybody here who wants to have any discrimination done on 
a genetic basis, or any other basis, in the workplace or in health 
care. We are being lead to believe that this is a very simple bill, and 
that we ought to accept it. ``Simple'' is not 50 pages. Simple is the 
statement that the Senator from South Dakota made. But 50 pages to 
explain that means it is a lot more complicated than the explanation we 
are being given. We don't want discrimination. Quite frankly, I think 
one of the reasons we are being presented with this is a good example 
of why you don't legislate on appropriations bills and avoid the entire 
process. It is a handy way to do it. If I had a bill, that is how I 
might try to do it too. But it isn't the right way to do it.
  I hope we will step back a minute and go through the procedure for 
doing a 50-page bill that covers something as important to people as 
discrimination in the workplace, or discrimination in any other place.
  If this bill passes, a person who can find and accidentally disclose 
a genetic marker will have greater protection in the workplace than a 
paraplegic would. Not only that--this allows people to bypass the legal 
system. You can go immediately to court.
  This will become a turnstile for trial attorneys. This becomes a 
jackpot proposition. This will clog the courts, if it passes. It will 
be a heyday. Every single trial attorney will have their own slot 
machine. That is not what we are trying to do.
  This isn't an area that just comes under the workplace safety and 
training subcommittee that I chair. It also comes under the health 
committee that Senator Frist chairs.
  It is a topic that our entire committee needs to address and will 
address. But it has to be done through a hearing process so we don't 
wind up with some of the unintended consequences that I have just 
mentioned.
  As far as the Americans With Disabilities Act, on March 24 of this 
year, the commissioner of the Equal Employment Opportunity Commission, 
Paul Miller, told the American Bar Association that genetic 
discrimination was covered under title I of the ADA. I guess that is 
why this 50-page ``simple'' bill bypasses the Equal Employment 
Opportunity Commission. We shouldn't bypass that group. That is a bill 
for protection and for having a hearing process for individuals. The 
commissioner of the Equal Employment Opportunity Commission says it is 
covered under title I of the ADA. Maybe there have been some decisions 
that have come out since.
  We can't just be doing knee-jerk legislation on an appropriations 
bill. This is an issue that deserves time and consideration, and a 
hearing that will produce the kind of bill of which we can be proud--
the kind of bill that has some opportunity for amendment.
  I know if we were trying to pass a bill of that magnitude and 
precluded the minority from having any say-so, or any amendment, they 
would raise a little bit of a fuss, as they have on other occasions, 
and as we do on occasion.
  I don't believe there should be legislation on appropriations bills.
  I yield the floor.
  The PRESIDING OFFICER. The Democratic leader.
  Mr. DASCHLE. Mr. President, I have great admiration for the Senator 
from Wyoming. I have worked with him on many issues. I never find it 
easy to disagree with a colleague, but let me say with regard to his 
argument that this is going to be a turnstile to more lawsuits; that is 
the same argument used on so many occasions and that was used against 
the ADA.
  I was on the floor. I remember those debates so well. I participated 
in them. They said this was going to cause a flurry of lawsuits.
  Who today would vote to repeal the ADA? I daresay not one Senator--
Republican or Democrat.
  He made reference to the EEOC's position on whether the ADA covers 
genetic discrimination. I hope they are right. But what is wrong with 
making absolutely sure they are right? That is what this bill does. 
This bill isn't complicated. I know some of our colleagues would like 
to point to the volume of this amendment and say that bulk is clear 
evidence of complication.
  We are simply saying, as simply as we can, that you shouldn't 
discriminate in the workplace; and, if you do, you ought to have some 
opportunity to redress that problem.
  I have a real concern as well about what inaction means for research. 
Dr. Craig Venter was on the Hill on several occasions and has made 
several public statements. His concern about discrimination is one that 
we ought to be truly appreciative of as well. Dr. Venter, president of 
Celera Genomics, said:

       The biggest concern I have is genetic discrimination. This 
     would be the biggest barrier against having a real medical 
     revolution based on this tremendous new scientific 
     information.

  Dr. Venter is worried, if we see discrimination, that automatically 
and almost immediately it is going to bottle up his opportunity to 
continue the research.

[[Page 12945]]

  I go to the next chart, and look at what others have said. Dr. 
Collins, somebody I have quoted on several occasions, says:

       Genetic information and genetic technology can be used in 
     ways that are fundamentally unjust . . . Already, people have 
     lost their jobs, lost their health insurance, and lost their 
     economic well-being because of the misuse of genetic 
     information.

  It doesn't get any clearer than that. First, you have the top 
researcher saying they are concerned about the ramifications of a lack 
of congressional action, not only for job discrimination, but for 
research. Then you have Dr. Collins who says we have already seen cases 
where people have lost their jobs and lost their health insurance as a 
result of this.
  The Secretary's Advisory Committee on Genetic Testing was equally as 
concerned in their public statement. Keep in mind that this isn't some 
Democratic advocate; this is the Advisory Committee on Genetic Testing. 
This is a quote:

       Federal legislation should be enacted to prohibit 
     discrimination in employment and health insurance based on 
     genetic information. . ..Without these protections, 
     individuals will be reluctant to participate in research on, 
     or the application of, genetic testing.

  How much more information do we need? How many more hearings do we 
have to have when you have the most credible experts anywhere to be 
found, here or anywhere else, who are pleading with the Congress to do 
something before it gets even worse, before more people lose their jobs 
and their health insurance, and before we see some real ramifications 
with regard to medical testing?
  That is what we are doing. That is what this amendment does. That is 
why it needs to be passed this afternoon.
  I retain the remainder of my time and yield the floor.
  Mr. JEFFORDS. Mr. President, I ask unanimous consent that Senator 
Mack be added as a cosponsor of this bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. SNOWE. Mr. President, I rise to speak in support of the 
amendment being offered by Senators Jeffords and Frist on genetic 
nondiscrimination in health insurance. This amendment, based on 
language I authored with Senator Jeffords and Senator Frist, provides 
strong protection to all Americans against the unfair and improper use 
of genetic information for insurance purposes.

       This amendment will:
       Prohibit insurers from collecting genetic information
       Prohibit insurers from using predictive genetic 
     information, such as family background or the results of a 
     genetic test, to deny coverage or to set premiums and rates, 
     and
       Require insurers to inform patients of their health plan's 
     confidentiality practices and safeguards.

  The need for this legislation is clear. As Senators Daschle and Dodd 
pointed out this morning the announcement this week that scientists 
have completed their mapping of the human gene is a remarkable and 
historic event. It opens the door to new scientific breakthroughs that 
may well help lead us one day to the cause and the cure for cancer, for 
Parkinson's and for Alzheimer's disease.
  This remarkable new tool has the potential, unfortunately, to become 
a dangerous tool. Because knowledge is power--Mr. President--and an 
insurance company could use genetic information to deny insurance to an 
individual because they know that the person is predisposed to a 
particular disease or health problem.
  Consider a letter that I received from a constituent, Bonnie Lee 
Tucker, of Hampden, Maine, who wrote:

       I'm a third generation [breast cancer] survivor and as of 
     last October I have nine immediate women in my family that 
     have been diagnosed with breast cancer . . . I want my 
     daughter to be able to live a normal life and not worry about 
     breast cancer. I want to have the BRCA test [for breast 
     cancer] done but because of the insurance risk for my 
     daughters future I don't dare.

  Another of my constituents, Dr. Tracy Weisberg, Medical Director of 
the Breast Cancer at the Maine Medical Center Research Institute, told 
me that while she has offered screening for the breast cancer gene to 
approximately 35 women in 1997, only two opted for the test. She said 
that many of these women did not undergo testing because of their fear 
of discrimination in health insurance.
  Dr. Weisberg emphasized the need for legislation to protect patients 
from this type of discrimination, so that they could make genetic 
testing decisions based on what they believe is best for their health, 
and not based on fear.
  As a legislator who has worked for many years on the issue of breast 
cancer, and as a woman with a history of breast cancer in her family, I 
am delighted with the possibilities for further treatment advances 
based on the discoveries of two genes related to breast cancer--BRCA 1 
and BRCA2. Women who inherit mutated forms of either gene have an 85 
percent risk of developing breast cancer in their lifetime, and a 50 
percent risk of developing ovarian cancer.
  Although there is no known treatment to ensure that women who carry 
the mutated gene do not develop breast cancer, genetic testing makes it 
possible for carriers of these mutated genes to take extra 
precautions--such as mammograms and self-examinations--in order to 
detect cancer at its earliest states. This discovery is truly a 
momentous breakthrough.
  But the tremendous promise of genetic testing is being significantly 
threatened by insurance companies that use the results of genetic 
testing to deny or limit coverage to consumers. Unfortunately, this 
practice is not uncommon. In fact, one survey of individuals with a 
known genetic condition in their family revealed that 22 percent had 
been denied health insurance coverage because of genetic information.
  And consider that people may be unwilling to participate in 
potentially ground-breaking research trials because they do not want to 
reveal information about their genetic status. At NIH, 32 percent of 
women eligible for genetic testing for the breast cancer gene declined 
to undergo testing--the majority of those who declined cited privacy 
issues and a fear of discrimination as their reason.
  Mr. President, this is simply unacceptable. The Jeffords, Frist, 
Snowe amendment before us today will go a long way toward putting a 
halt to the unfair practice of discriminating on the basis of genetic 
information, and to ensure that safeguards are in place to protect the 
privacy of genetic information. Now it's up to us to act by passing 
this amendment, and I urge my colleagues to join me in doing just that.
  Mr. JEFFORDS. Mr. President, I yield to the Senator from New Mexico. 
I believe he has 5 minutes.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. JEFFORDS. I point out that is all of my time. So the Senator from 
Alabama will have to ask for additional time.
  Mr. DOMENICI. He and I are going to share a little time.
  Before I do that, I say to Senator Daschle, believe it or not, I was 
the first Senator involved in genome. Whether people know it or not, it 
was not the National Institutes of Health that started this program. It 
was the Department of Energy. In fact, the National Institutes of 
Health did not want the program, and a very distinguished doctor left 
them and went to DOE. They came to me. The first bill was introduced 
and Senator Lawton Chiles funded it. That is the origin, which I am 
going to talk with my friend, Senator Sessions, about in a minute.
  Let me suggest that I don't know what is in the Senator's amendment. 
But I do know from the very beginning that there has been concern about 
the effect of discrimination. I don't believe we should go from being 
concerned about the effects of discrimination to a 30- or 40-page bill 
that we--how big is it? Ten. Frankly, we need to make sure that what we 
are not doing is putting genome research into a vulnerable position 
where it is not stable and people do not know precisely what they can 
do on it.
  That is all I have to say about the amendment.
  I yield to Senator Sessions for a question.

[[Page 12946]]


  Mr. SESSIONS. I know the Senator has been involved in this. I am 
excited so many others are involved with the possibility that we can 
have a detailed map of the human genome through the identification of 
the 3 billion nucleotide basis that make up the human genome, helping 
to cure diseases.
  It is an exciting time. This Congress has played an important role. I 
know Dr. Charles DeLisi has played a key role. I know Senator Domenici, 
perhaps more than any other official in government, saw the 
possibilities of this several years ago, and used the power and 
leverage he had to make it a governmental project of the highest 
priority. I know he cares about it.
  Would the Senator share with the Senate his insight as to where we 
are in the human genome at this time.
  Mr. DOMENICI. But whether it is Congress or the President, someone 
should recognize formally a Ph.D. named Dr. Charles DeLisi, the dean of 
engineering at Boston University. In the year 1986, he left the 
National Institutes of Health in protest over their unwillingness to 
proceed with a genome project of national significance. He went to the 
Department of Energy. He said there were a lot of big brains in the 
Department of Energy, and maybe they would listen and come to the same 
conclusion.
  They were researching genetic projects because they were charged with 
deciding the extent of radiation incapacity generationally as a result 
of the two bombs that were dropped in Japan. The Department has all the 
scientists. He went there. They put together a team in DOE. I am very 
fortunate because they came to see me. They said: Why don't we do this 
since the National Institutes of Health doesn't want to? Why don't you 
start it?
  I got a little tiny bit of a bill through, saying the DOE will run 
the program. That was the beginning for the National Institutes of 
Health. As soon as they saw the bill introduced saying DOE would do it, 
they came running to me saying: We told Lawton Chiles we would like to 
get in on it. Of course, then we passed legislation that said both DOE 
and the National Institutes of Health would run this program.
  Since then, it has been a scientific marvel. The entire chromosome 
system of human beings is mapped. Pretty soon it will be available for 
scientists investigating grave diseases. They will have them at their 
fingertips in terms of transmutation.
  Perhaps we have just laid before the public and the people of the 
world the greatest wellness potential in the history of mankind. We may 
find locked up genetically the secret to most diseases. The scientists 
may pick it up and find solutions in the next 25 or 30 years that 
nobody thought possible.
  Sooner or later I will have somebody recognize Dr. Charles DeLisi. I 
have spoken to him. He is a marvelous educator at a great university. 
President Clinton is now aware of this and very interested. I am very 
hopeful he will be recognized. It is important people understand.
  Mr. DASCHLE. How much time do I have remaining?
  The PRESIDING OFFICER. Five minutes.
  Mr. DASCHLE. I compliment the Senator from New Mexico. He truly has 
been one of those leaders in the field. In fact, I have before me S. 
422 which he introduced in the 105th Congress. Title IV of his bill, 
discrimination by employers or potential employers, is almost exactly 
what is in the Daschle amendment this afternoon.
  He was one of the first to be out there. I give him great credit for 
what he has already done with his leadership on this issue. He has 
given some history this afternoon about how this started. He was here 
in the last Congress advocating that this body oppose discrimination in 
the workplace.
  So that everyone knows prior to the time they vote what it is we are 
talking about, the Jeffords amendment does not prohibit insurers from 
discriminating on the basis of genetic information in the workplace. 
The Jeffords amendment does not prohibit the disclosure of test results 
without consent. It does not prohibit the use of predictive genetic 
information for hiring. It does not ensure that those who suffer from 
genetic discrimination have the right to seek redress through legal 
action. It fails on a basic level with regards to what we ought to do 
with respect to genetic discrimination.
  It is on that basis I remind my colleagues that 59 organizations have 
come forward to urge Members to say no to legislation that fails to 
regulate the workplace. Don't listen to me. Listen to those 
organizations. Listen to Craig Venter of the Clera Genomics. Listen to 
Francis Collins, the director of the National Human Genome Research 
Institute. Listen to the editorial writers from papers across this 
country who have said, again and again, we must pass legislation 
quickly before it is too late.
  This is a no-brainer. This is our opportunity today to say yes to 
Craig Venter, to say yes to Dr. Collins, to say yes to the 
organizations, and to say yes to Terri Seargent, who has already been 
victimized as a result of this. This is our opportunity to say no to 
discrimination in the workplace, to say the Senate will go on record 
for the first time that we will not allow any genetic discrimination 
regardless of circumstances.
  I hope on a bipartisan basis our colleagues will join in support of 
this legislation. The time has come. It was introduced in the last 
Congress. It is now being offered in this Congress with every 
expectation and hope that we can send the clearest message possible 
that we will not tolerate discrimination. We will allow the research to 
go forward without any question that the information can be protected. 
That is what we want. That is what the health organizations want. That 
is what Terri Seargent wants. That is what we all should want in the 
Senate.
  I ask unanimous consent to have printed in the Record editorials from 
around the country.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Phoenix Gazette, Dec. 17, 1996]

                  DNA Dilemma: Gene Tests Can Cost You

       Imagine the scene: A middle-age patient, visiting her 
     doctor for her yearly physical, reminds him that her mother 
     and aunt had breast cancer. With the patient's consent, her 
     well-meaning physician decides to conduct a new test that 
     will reveal whether she carries genetic mutations that could 
     radically increase her chances of developing breast cancer.
       The doctor submits a claim for the test to the woman's 
     insurer. Before the results are back, the insurer, seeing 
     what the test is for, triples the price of her coverage.
       An impossible chain of events? Think again. Several 
     companies have begun marketing tests that will tell women 
     whether they have the recently discovered gene mutations that 
     markedly increase their risks for breast and ovarian cancer.
       A Utah biotechnology company, Myriad Genetics Laboratories, 
     sent 100,000 cancer specialists a glossy ``resource kit,'' 
     boasting of its new ``gold standard'' testing for the gene 
     mutations. The company warns doctors about the risks of 
     insurance and job discrimination.
       But the promotional kit also tells doctors that the Equal 
     Employment Opportunity Commission ``has in included language 
     in the Americans with Disabilities Act making it unlawful to 
     discriminate'' base on the results of genetic tests.
       Peggy Mastroianni, the associate legal counsel for the 
     commission, dismissed this claim, saying that it merely 
     issued an opinion, which has yet to be tested in the courts.
       Some scientists and medical ethicists say that Myriad and 
     other companies are overselling these tests. Should a woman 
     test positive for a gene mutation, there is still no way of 
     knowing whether she will develop cancer. Even if that 
     information was available, there is no sure-fire preventive 
     treatment.
       The Food and Drug Administration could regulate genetic 
     tests, as it regulates new drugs. But so far the agency has 
     declined to become involved. And where discrimination is 
     concerned, many women would have little recourse if their 
     health insurance skyrocketed in cost or they lost their jobs 
     on the basis of a genetic test.
       More than a dozen states have enacted limits on insurance 
     or employment discrimination related to genetic testing. But 
     even in New Jersey, where Gov. Christine Todd Whitman signed 
     the country's most comprehensive law last month, almost half 
     of the insured aren't protected, because they belong to self-
     financed plans, which aren't subject to stringent state 
     regulations.
       At the federal level, the new Kennedy-Kassebaum law, among 
     other things, protects people moving between jobs from being

[[Page 12947]]

     dropped by health insurers because of their genetic 
     information. But the law doesn't protect those with 
     individual health insurance from seeing their premiums raised 
     if they happen to carry an unlucky genetic fingerprint. It 
     also does not protect against job bias.
       Women are not the only ones affected by this problem. 
     Genetic tests for other diseases have been developed. Others 
     are on the way. Last month, scientists announced that they 
     were zeroing in on the mutant gene in hereditary prostate 
     cancer.
       In the last Congress, a dozen bills would have guarded 
     against genetic discrimination and protected medical privacy. 
     But even those with some bipartisan support fell victim to a 
     crammed legislative calendar and insurance industry 
     resistance.
       The 105th Congress has a chance to pass comprehensive laws 
     protecting medical privacy and barring insurers and employers 
     from discriminating on the basis of genetic information. For 
     its part, the FDA should regulator genetic tests. Those 
     charged with protecting the public welfare have to move 
     quickly.
                                  ____


               [From the Washington Post, Feb. 12, 2000]

                            Genetic Privacy

       President Clinton has issued an executive order limiting 
     the use of genetic test results in deciding whether to hire, 
     promote or extend particular benefits to federal employees. 
     For now, the order will have limited significance, since 
     genetic testing is not yet as common as it is likely to 
     become. But it sets the right example; in a not-yet-settled 
     area of medical ethics and privacy, it's a pioneering step. 
     The order includes a plug for a bill by Senate Minority 
     Leader Tom Daschle and Rep. Louise Slaughter that would 
     impose the same restraints on employers nationwide as well.
       The problem is that people fear--and, it has been shown, 
     avoid--being tested for a predisposition to a genetic disease 
     because they think employers or other authorities might 
     penalize them for the results even if they never develop the 
     disease. This specific concern is symptomatic of a larger 
     one: the danger that people may become less open with their 
     own doctors--or avoid treatment altogether--for lack of 
     confidence that information about their health is any longer 
     veiled in the traditional confidentiality.
       Federal rules to protect patients' privacy when they give 
     sensitive information to their doctors are finally nearing 
     completion; the public comment period ends this month. These, 
     too, are only a start, though an energetic one. They give 
     patients a right to see and correct their medical records, 
     oblige all health care providers and insurers to follow 
     confidentiality safeguards and set civil and criminal 
     penalties for violations. There are holes that Congress ought 
     to fill: The rules cover only electronic transactions, and 
     allow a formidable array of exceptions where information may 
     be shared without a patient's consent.
       Lawmakers have been slow to recognize the broad political 
     appeal of strengthening medical privacy, partly because of 
     the many conflicting interests that are represented in the 
     fight over medical records. But polls show privacy concerns 
     rank high, and a bipartisan Congressional Privacy Caucus and 
     a Democratic privacy task force both declared their existence 
     Wednesday. There's plenty for these privacy advocates to do.
                                  ____


              [From the Houston Chronicle, Feb. 15, 2000]

      Gene Secrets; Clinton Right To Oppose Genetic Discrimination

       From the moment of conception, the lives and medical 
     futures of human beings are greatly determined by the genes 
     received from their mothers and fathers.
       For the genes not only determine physical traits such as 
     the color of a person's eyes and hair, but also a person's 
     predisposition toward certain medical ailments, ranging from 
     heart trouble and diabetes to cancer and Alzheimer's disease.
       As the result of a national research effort, doctors are 
     within a few years of completing a map of all the genes that 
     make up human beings, carefully identifying which gene does 
     what. The overall aim, of course, is that one day doctors 
     will be able to use genetic information to treat people and 
     make them healthier.
       That's all well and good, as they say. Suffering from 
     diabetes? Well, the doctors will just give you an injection 
     of anti-diabetes genes, and you will soon become as healthy 
     as a horse.
       But this fascinating research, with all of its fine 
     promise, has a terrible negative side if misused. Such 
     genetic information on John and Jane Q. Citizen--information 
     that they are likely to suffer from heart disease in their 
     40s or colon cancer in their 50s--could be used by employers, 
     insurance companies or others to discriminate against them.
       Employers might not hire or promote Jane or John Q. Citizen 
     because of the potential displayed by their genes that some 
     future medical condition might cost them lost time and higher 
     insurance expenditures, as an example. Insurance companies, 
     with a person's gene map in their hands, might refuse to sell 
     that person insurance because of health risks.
       President Clinton is acting correctly in signing an 
     executive order barring federal agencies from discriminating 
     against employees based on genetic testing. And he is also 
     correct in urging Congress to pass legislation that would ban 
     genetic discrimination in the private sector. Congress should 
     attend to this matter as soon as possible and also to the 
     problem of protecting individual gene maps.
       Discrimination in the workplace is wrong, whether it is 
     based on a person's personal genetic code or the color of his 
     skin.
       Genetic discrimination is un-American.
                                  ____


           [From the St. Louis Post-Dispatch, Feb. 14, 2000]

                     Discrimination Goes High-Tech


                              CIVIL RIGHTS

       The frightened middle-aged woman was relieved she would not 
     have to give her name. She handed over several $100 bills, 
     counting them out with trembling hands. She had never done 
     anyuthing like this before. She rolled up her sleeve and 
     looked away, awaiting the needle.
       It was not a street corner drug deal, although it felt like 
     it. She was in a major teaching hospital undergoing genetic 
     testing to see if she had an increased risk of contracting a 
     life-threatening disease. Along with her fears that this 
     glass tube identified by number might render a deadly warning 
     in every unseen strand of her DNA, she also was afraid of 
     other threats unseen: that the test alone might prevent her, 
     or a family member, from getting health or life insurance, a 
     job, a promotion, custody of her children, an organ 
     transplant; or perhaps even something as simple as a home 
     loan.
       As technology soars forward in the Human Genome Project and 
     computer science, we will know more about ourselves than ever 
     before, and be less capable of keeping it to ourselves. 
     Medical science already has hundreds of genetic tests that 
     detect mutations putting a person at increased risk for such 
     ailments as ovarian, breast, colon and prostate cancers, 
     Alzheimer's and other, rarer diseases. The potential for good 
     abounds in areas of prevention, early detection, treatment 
     and, most spectacularly, cures.
       But there is also tremendous potential for abuse. In 
     California, a government laboratory had for years genetically 
     tested government employees for diseases, including sickle 
     cell anemia, without their knowledge following pre-employment 
     physicals. Even though genetic testing does not render a 
     diagnosis, only indicators of increased risk, it has been 
     used to deny medical insurance and charge higher rates. Such 
     cases led Congress to pass legislation in 1996 outlawing 
     genetic discrimination in group health insurance plans 
     serving 50 or more employees.
       But according to a Senior White House official, many people 
     who could benefit from genetic testing still are deciding not 
     to have it, solely because they are afraid the results will 
     be used against them by employers and insurers.
       Last week President Bill Clinton took an important step, 
     issuing an executive order that forbids federal agencies 
     genetic testing in any decision to hire, promote or dismiss 
     workers. The order protects 2.8 milllion federal employees.
       There is much left to be done. Genetic information that can 
     be gleaned from testing will only increase, through 
     innovations like the biochip, which one day may be able to 
     map from one strand of hair a person's entire identity, from 
     hair color to inquisitiveness. Mr. Clinton challenged private 
     sector employers to adopt similar non-discriminatory 
     policies. Even better is his endorsement of Congressional 
     legislation sponsored by Sen. Tom Daschle, D-S.D., and Rep. 
     Louise M. Slaughter, D-N.Y., that would make it illegal for 
     employers to discriminate on the basis of genetic testing.
       All of us are predisposed to some illness. No one should be 
     penalized for discovering what that illness might be.
                                  ____


               [From the Chicago Tribune, Apr. 27, 1996]

                     Ground Rules for DNA Sampling

       Two Marine corporals were court-martialed in Hawaii 
     recently and convicted of disobeying orders to give tissue 
     samples for a Defense Department DNA registry.
       The idea behind the registry is that should they become 
     casualties in a future conflict, there would be a foolproof 
     way of identifying their bodies. This is no frivolous 
     concern, as the recent exhumation of an allegedly 
     misidentified Vietnam War casualty in Ft. Wayne, Ind., 
     demonstrated.
       Despite their convictions, the two Marines got light 
     penalties: seven days of restriction each, letters of 
     reprimand and no dishonorable discharges.
       This leniency may have stemmed from the fact that their 
     concerns also were not frivolous: They feared that, somewhere 
     down the line, the DNA samples could be used to their 
     detriment. And the Defense Department, like the rest of 
     American society, is only gradually evolving answers to such 
     concerns.
       Almost daily, it seems, scientists announce that they've 
     found a new gene that causes or predisposes a person to some 
     disease or trait. Almost as rapidly, biotechnology companies 
     are developing tests to screen for those genes.

[[Page 12948]]

       What those two Marines feared is what many Americans in 
     many other walks of life fear: that samples given for one 
     ostensibly benign purpose, or the data gleaned from such 
     samples, may be put to other uses, not all necessarily 
     benign.
       Earlier this month, for example, researchers at Harvard and 
     Stanford universities released a study citing more than 200 
     cases of ``genetic discrimination.'' Prominent among these 
     were cases in which insurance coverage was denied because a 
     member of a family had a gene-based disorder. Employment 
     discrimination is another common fear, along with social 
     ostracism.
       What happens when DNA screenings become readily and 
     routinely available for a whole range of diseases or 
     conditions? Will insurers be able to demand that would-be 
     customers submit to such screenings? Will they be free to 
     grant or deny coverage on the basis of the results? (The 
     essence of insurance is, after all, assessing and balancing 
     risks.) What about employers--what will they be able to 
     demand?
       By comparison with civilian society, the military has it 
     easy. The Pentagon can simply promulgate rules for its DNA 
     repository, and it recently did. Among other things, those 
     rules allow a service member to request that his or her DNA 
     sample be destroyed immediately upon final separation from 
     the military and require that the request be fulfilled within 
     180 days.
       Civilian society must work the issue through the process of 
     public discussion, legislative debate and legal enforcement. 
     Laws will have to provide tough anti-discrimination 
     strictures and confidentiality requirements, with severe 
     penalties for anyone who violates either. Congress should get 
     to work on such laws quickly, because science is not standing 
     still.

  I yield the floor and I ask for the yeas and nays on the amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to amendment No. 3688. The clerk will 
call the roll.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Hawaii (Mr. Inouye) and 
the Senator from Vermont (Mr. Leahy) are necessarily absent.
  Mr. BYRD. Mr. President, may we have order, please.
  Can we have the well cleared. Unless Senators are voting, Senators 
should not be in the well.
  The PRESIDING OFFICER. The Senate will be in order.
  Will those in the well vacate the well.
  The result was announced--yeas 44, nays 54, as follows:

                      [Rollcall Vote No. 164 Leg.]

                                YEAS--44

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Bryan
     Byrd
     Cleland
     Conrad
     Daschle
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Graham
     Harkin
     Hollings
     Johnson
     Kennedy
     Kerrey
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Levin
     Lieberman
     Lincoln
     Mikulski
     Moynihan
     Murray
     Reed
     Reid
     Robb
     Rockefeller
     Sarbanes
     Schumer
     Specter
     Torricelli
     Wellstone
     Wyden

                                NAYS--54

     Abraham
     Allard
     Ashcroft
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Chafee, L.
     Cochran
     Collins
     Coverdell
     Craig
     Crapo
     DeWine
     Domenici
     Enzi
     Fitzgerald
     Frist
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Jeffords
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Roberts
     Roth
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner

                             NOT VOTING--2

     Inouye
     Leahy
       
  The amendment was rejected.


                       Vote On Amendment No. 3691

  The PRESIDING OFFICER. The question now is on agreeing to amendment 
No. 3691.
  Mr. JEFFORDS. Mr. President, have the yeas and nays been ordered?
  The PRESIDING OFFICER. They have not been ordered.
  Mr. JEFFORDS. 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 legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Hawaii (Mr. Inouye) and 
the Senator from Vermont (Mr. Leahy) are necessarily absent.
  The result was announced--yeas 58, nays 40, as follows:

                      [Rollcall Vote No. 165 Leg.]

                                YEAS--58

     Abraham
     Allard
     Ashcroft
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Chafee, L.
     Cochran
     Collins
     Coverdell
     Craig
     Crapo
     DeWine
     Domenici
     Enzi
     Feinstein
     Fitzgerald
     Frist
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Jeffords
     Kyl
     Lieberman
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Roberts
     Roth
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner

                                NAYS--40

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Bryan
     Cleland
     Conrad
     Daschle
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Graham
     Harkin
     Hollings
     Johnson
     Kennedy
     Kerrey
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Levin
     Lincoln
     Mikulski
     Moynihan
     Murray
     Reed
     Reid
     Robb
     Rockefeller
     Sarbanes
     Schumer
     Torricelli
     Wellstone
     Wyden

                             NOT VOTING--2

     Inouye
     Leahy
       
  The amendment (No. 3691) was agreed to.
  Mr. JEFFORDS. Mr. President, 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 (Mr. Smith of Oregon). The Senator from North 
Dakota is recognized.
  Mr. SPECTER. Mr. President----
  Mr. KENNEDY. Parliamentary inquiry, Mr. President. Wasn't the Senator 
from North Dakota recognized?
  The PRESIDING OFFICER. The Senator from North Dakota was recognized. 
If the managers wish to pose an inquiry----
  Mr. SPECTER. Mr. President, I ask the Senator from North Dakota to 
yield for a moment.
  Mr. DORGAN. I am happy to yield for the purpose of a question.
  Mr. SPECTER. What I would like to say for the record is that we hope 
to have a unanimous consent agreement here--we are not ready to 
propound it--where the Dorgan amendment and the Nickles amendment, 
which would be ordinarily a second-degree amendment, would be treated 
as first-degree amendments and try to seek a time limit of 45 minutes 
on each. But we understand that we are not in a position to do that 
because there has not been an adequate opportunity to review the 
Nickles amendment. I wanted to make that statement.
  If the Senator from North Dakota wants to lay his amendment down, 
that is entirely appropriate. We just hope that when we have another 
amendment ready to go, either the Helms amendment or Wellstone 
amendment, we could set aside the Dorgan amendment and proceed with 
argument on something we can close debate on, and then come back at the 
earliest moment to the Dorgan amendment, just as a management matter.
  The PRESIDING OFFICER. The Senator from North Dakota is recognized.


                           Amendment No. 3693

 (Purpose: To require a federal floor with respect to protections for 
                 individuals enrolled in health plans)

  Mr. DORGAN. 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 North Dakota [Mr. Dorgan], for himself, 
     Mr. Kennedy, Mr. Daschle, Mr. Graham, Ms. Mikulski, Mr. 
     Lautenberg, Mr. Kerry, Mr. Edwards, Mr. Reid, and Mr. Harkin, 
     proposes an amendment numbered 3693.

  The amendment is as follows:

       On page 92, between lines 4 and 5, insert the following:
       Sec. __. Any Act that is designed to protect patients 
     against the abuses of managed

[[Page 12949]]

     care that is enacted after June 27, 2000, shall, at a 
     minimum--
       (1) provide a floor of Federal protection that is 
     applicable to all individuals enrolled in private health 
     plans or private health insurance coverage, including--
       (A) individuals enrolled in self-insured and insured health 
     plans that are regulated under the Employee Retirement Income 
     Security Act of 1974;
       (B) individuals enrolled in health insurance coverage 
     purchased in the individual market; and
       (C) individuals enrolled in health plans offered to State 
     and local government employees;
       (2) provide that States may provide patient protections 
     that are equal to or greater than the protections provided 
     under such Act; and
       (3) provide the Federal Government with the authority to 
     ensure that the Federal floor referred to in paragraph (1) is 
     being guaranteed and enforced with respect to all individuals 
     described in such paragraph, including determining whether 
     protections provided under State law meet the standards of 
     such Act.

  Mr. NICKLES. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SPECTER. 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. SPECTER. Mr. President, I ask unanimous consent that the Nickles 
amendment be modified to be formatted as a first-degree amendment and 
that a vote occur on the Nickles amendment, to be followed by a vote on 
the Dorgan amendment, with no amendments in order to the amendments 
prior to the votes. I further ask unanimous consent that the debate 
prior to the vote be 45 minutes for Senator Nickles and 45 minutes for 
Senator Dorgan.
  The PRESIDING OFFICER. Is there objection?
  Mr. KENNEDY. Mr. President, reserving the right to object, we are all 
operating in good faith and wanting to move ahead. I ask if our floor 
staff has seen this. I would like to, with all due respect, reserve a 
minute until our floor staff has an opportunity to see it.
  Mr. SPECTER. Mr. President, I amend the request to 55 minutes on each 
side.
  Mr. KENNEDY. Parliamentary inquiry: Is that on or in relation? Do I 
understand that it is their intention to have an up-or-down vote on 
both of these?
  Mr. SPECTER. Up or down on both.
  Mr. KENNEDY. No points of order.
  Mr. NICKLES. If I may respond to my colleague, I have no objection 
personally. I understand the chairman of the Budget Committee doesn't 
want that waived. But it is not my intention to raise a point of order 
on the Senator's amendment, nor on our amendment. I think the Senator 
from New Mexico has a standing objection.
  Mr. KENNEDY. If it is the understanding that we treat both of them 
the same way, is it agreeable with the floor manager that the point of 
order be on both so they are both treated the same way?
  Mr. SPECTER. It is.
  Mr. NICKLES. I have no objection to that.
  Mr. DASCHLE. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SPECTER. 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. SPECTER. Mr. President, I renew the request, and, as previously 
stated, I ask unanimous consent that there be 55 minutes on each side.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from North Dakota.
  Mr. DORGAN. Mr. President, let me begin by describing this amendment 
and why I have offered it to this bill.
  Let me also say that the amendment is not subject to a point of 
order. This amendment deals with the Patients' Bill of Rights. Quite 
simply, it says that when this Congress enacts patient protection 
legislation, we should protect all 161 million Americans enrolled in 
private health insurance plans.
  Many of us have been attempting to get this Congress to pass a 
meaningful Patients' Bill of Rights, and so far, we have not been 
successful in doing so.
  As most Americans know at this point, more and more of the American 
people are being herded into HMOs and managed care organizations which 
has jeopardized the quality of health care they receive. Too often 
these days, decisions about their health care are being made not by 
doctors but by some accountant in an HMO or in a managed care 
organization 1,000 miles away.
  We have all heard stories on the floor of this Senate about the 
problems patients experience when their health care is viewed as a 
function of someone's profit and loss, not of his or her health care 
needs.
  We proposed a Patients' Bill of Rights to address these problems. It 
is rather simple legislation. It says that:
  Patients should have the right to know all of their medical options--
not just the cheapest medical options. That ought to be a fundamental 
right.
  Patients ought to have the right to choose the doctor they want for 
the care they need, including specialty care when they need it. That 
ought to be a right of patients who believe they are covered with a 
health care policy.
  Patients ought to have the right to emergency room treatment and 
emergency room care wherever and whenever they need it.
  Patients ought to have a right to a fair and speedy process to 
resolve disputes with their health care plan. And they ought to be able 
to hold their health care plan accountable if its decision results in 
injury or death.
  The Senate passed a piece of legislation last year that was called 
the Patients' Bill of Rights. Some of us called it a patients' bill of 
goods because it was a relatively empty shell.
  The House passed a Patients' Bill of Rights that is a good bill. It 
is a bipartisan bill sponsored by Republican Congressman Norwood and 
Democratic Congressman Dingell. It passed by a 275-151 vote.
  Since that time, the Senate appointed a set of conferees on October 
15, and the House appointed its conferees on November 3. It wasn't 
until the end of February that there was a meeting of the conference 
committee. As I said previously, the conference committee isn't making 
much progress.
  In this amendment, we deal with only one aspect of the Patients' Bill 
of Rights and that is the question of the number of Americans that a 
bill of rights should cover. If a Patients' Bill of Rights is enacted 
by this Congress, we propose with this amendment that Congress will 
cover all of the American people with private health insurance, rather 
than just the 48 million Americans proposed to be covered in the 
Republican Patients' Bill of Rights. We believe the Patients' Bill of 
Rights should cover all 161 million Americans in private health 
insurance plans, including the 75 million people whose employers 
provide coverage through an HMO or private insurance. Unfortunately, 
these folks are not covered in the Republican plan. The 15 million 
people with individual policies are not covered in the majority party's 
plan. The 23 million State and local government employees are not 
covered in the majority party's plan.
  We propose that when and if Congress passes a Patients' Bill of 
Rights, that all 161 million Americans are covered by those provisions. 
Very simple.
  We understand from the previous vote held a couple of weeks ago that 
the majority in the Senate do not want to pass our Patients' Bill of 
Rights. We understand that. They voted against it. But how about at 
least passing a part of our Patients' Bill of Rights, the part that 
says everybody ought to be covered? That is what I offer today as an 
amendment.
  Senator Reid and I held a hearing in his home state of Nevada on the 
issue of the Patients' Bill of Rights. At the hearing we had a mother 
come, the mother of Christopher Thomas Roe. She stood up and told us 
about her son. He died October 12 of last year. It was his 16th 
birthday. The official cause of Christopher's death was leukemia, but 
the real reason he died is because he

[[Page 12950]]

was denied the kind of opportunity for patient care that he needed to 
give him a chance to live. He was diagnosed with leukemia, but he had 
to fight cancer and his HMO at the same time. It is one thing to tell a 
kid you have to fight a dreaded disease, you have to battle cancer. It 
is quite another thing to tell that young child and his family: Take on 
cancer and, by the way, take on your insurance company as well. That is 
not a fair fight. That is never a fair fight.
  The Roe family was told that the kind of treatment he needed to send 
his cancer into remission was experimental. The family immediately 
appealed the health plan's decision. The review, which was supposed to 
take 48 hours during a very critical period of this young boy's life, 
took 10 days. As the appeal dragged on, Christopher's condition 
worsened. And as Chris's doctor had known, the traditional chemotherapy 
did not work.
  At the hearing, Chris's mother, Susan, held up a very large picture 
of Christopher, about the size of this chart. It was a picture of a 
strapping, bright-eyed, 16-year-old boy. Susan told Senator Reid and I, 
with tears in her eyes, how Chris turned to her one day not long before 
he died and said: Mom, I just don't understand how they could do this 
to a kid.
  This is a 16-year-old boy who died who wanted that extra chance to be 
cured but whose insurance company said no, no, no. And he died.
  We all know the stories. There is the woman who fell off a 40-foot 
cliff in the Shenandoah Mountains. She was hauled into an emergency 
room unconscious with broken bones and all kinds of physical problems. 
She survived and was later told by her insurance plan: We will not 
cover your treatment because you didn't have prior approval to get 
emergency room care.
  Or how about this young child, born with a horrible cleft lip? It is 
hard to look at. Dr. Greg Ganske, a Member of the House of 
Representatives in the Republican Party who supports this legislation, 
says in his practice that it is often not considered a ``medical 
necessity'' to fix this kind of problem. Let me show you how a child 
with this condition looks when he receives proper medical intervention 
by a skilled surgeon. Is there a difference? How can anyone look at 
these two pictures and say fixing this condition is not a ``medical 
necessity''?
  The point we are making with this amendment is very simple. Managed 
care organizations hold the future of too many patients in the palm of 
their hands. Decisions are not being made by doctors in doctor's 
offices. Too often, they are made in accountants' offices 500 or 1,000 
miles away. We are saying that it is wrong to make medical decisions a 
function of profit and loss. This country can do better than that. This 
ought to be a slam dunk. The legislation that provides real protection, 
a meaningful Patients' Bill of Rights, ought to get 100 votes in the 
Senate. But we can't get any movement on this at all from the 
conference committee charged with working out the differences between 
the House and Senate bills.
  I know a few of the conferees and the chairman of the conference 
committee were saying we have made great progress. I describe that 
progress in glacial terms. At least glaciers move an inch or two a 
year. It is hard to see that this conference moves at all.
  We are only asking today to say with this amendment that if we are 
going to pass a Patients' Bill of Rights, let's not create a hollow 
vessel. Let's create a Patients' Bill of Rights that provides real 
protection for 161 million Americans, not inadequate protection for 48 
million Americans. If we are going to do this, let's do it right.
  That is the amendment. We will have a chance to vote on it. We 
understand that the majority of the Senate decided they didn't want a 
real Patients' Bill of Rights. They wouldn't vote for the entire 
package, the one that provides protection for young kids such as 
Christopher, who are fighting leukemia, or for young people born with 
this severe cleft lip deformity. So all we ask is that whatever we are 
going to do with respect to patients' rights that we apply it to all 
Americans. Everyone ought to have the right and the opportunity to 
expect decent health care coverage if they have an insurance policy. 
What about a Patients' Bill of Rights for all Americans?
  I yield to the Senator from Massachusetts.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, the issue of providing protection for 
American families has been before the Senate for the past 3 years, but 
we have been unable to pass legislation that will guarantee to the 
families of this country that medical decisions that are going to 
affect them and the treatment of the family are going to be made on the 
basis of sound medical reasons rather than for the interests of the 
HMOs. That is what this issue is all about.
  This chart indicates very clearly what has been happening. The 
Senate, in July 1999, about a year ago, passed legislation, the 
Republican bill, 53-47. This 47 was basically the Norwood-Dingell bill, 
virtually identical to the Norwood-Dingell bill, which is a party-line 
vote. The House passed the Norwood-Dingell bill 275-151 in October, 
1999. Then the House and the Senate conferees appointed. Now 8 months 
have passed. We have nothing that has come out of that conference.
  We are going to have something now before the Senate, offered as an 
alternative to the Dorgan proposal, that evidently has been drafted 
solely by Republicans. Whether it includes Republicans in the House of 
Representatives or not is something we will have to wait and see. I 
doubt it very much.
  Why? Because just this afternoon Congressman Norwood, who was the 
principal sponsor of the Norwood-Dingell bill, said in a press 
conference: What is significant about today is that all 21 Republican 
sponsors of the Norwood-Dingell bill are standing behind me and each of 
us has declared that we will not support any bill that does not allow 
patients to choose their own doctor, that does not protect all 
Americans, and that does not hold the insurance industry accountable 
for its decisions. It doesn't matter what the Senate does today. The 25 
us will vote against any bill that does not guarantee patients the 
protections they deserve. If the Senate passes anything less, they are 
killing the bill.
  That isn't a statement made by Democrats; that was made by 
Republicans.
  So let's understand it. Here are the leaders in the House of 
Representatives, in a bipartisan effort that got a third of the 
Republican Party to pass an effective bill that we should pass, and it 
failed by one vote only 2 weeks ago. We are being denied, week after 
week after week, from being able to protect American families from 
being harmed.
  That statement is made by the Republican Congressman. The legislation 
we on this side of the aisle support is supported by 300 organizations, 
including every medical organization, every doctor organization, every 
patient organization, every organization that represents women, every 
organization that represents children, every organization that cares 
about cancer--you name it, they support our proposal.
  Do you know who supports the other side? The insurance industry. They 
supported them before and they are supporting them tonight. So you will 
have a chance to show, on the floor of the Senate, whether you are 
going to cast your vote with those who have been dedicated to 
protecting the lives and well-being of the families in this country, or 
protecting the profits of the HMOs. That is the issue as plain and 
simple as can be stated.
  That is why Congressman Norwood, I think, has been so courageous, 
because he understands it. He was there when the Senate considered 2 
weeks ago the Norwood-Dingell bill that failed by one vote. He was 
supporting our efforts, as was the American Medical Association.
  The particular amendment that Senator Dorgan has proposed is a very 
basic and fundamental amendment that affects the Patients' Bill of 
Rights. It is the question of scope. Are we going to cover 161 million 
Americans, or are we going to cover only a

[[Page 12951]]

third of those, as was covered in the Senate Republican bill before and 
I daresay will be in the Republican bill tonight--although they have 
not shared that with us, only with the staff for a few minutes. I 
daresay that will be the fact.
  Here it is. They cover 48 million--self-funded proposals. They do not 
cover those fully insured; those who are represented by Blue Cross or 
by Kaiser. They don't cover those 75 million.
  They don't cover the individual markets, the self-employed, the 
farmers, child care providers, the truckers.
  They don't cover the teachers and the firefighters and the police 
officers.
  We cover all 161 million. They cover 48 million. Here is a picture of 
Frank Raffa, Vietnam veteran, decorated war hero, 21 years in the fire 
department of Worchester, MA. He has two children. Do you think he is 
covered? No, not covered under the Republican plan. Why should Frank 
Raffa not be covered? Why should his family not be covered, his wife 
and his children? He has dedicated his life to the people of 
Worchester, MA, as a firefighter and to this country in Vietnam. But, 
oh, no, the Republicans say we are not going to cover State and county 
officials.
  No. 2, here we have Dave Morgan, with two of his 63 employees. He is 
a pharmacist in Boston. Tonya Harris right here, she is a pharmacy 
technician, a single mother of two, and Rhonda Hines, another of Dave's 
employees. She is married and has three children. Do you think working 
for a business they are going to be covered? Absolutely not. He is a 
community pharmacist. He worked hard building a business employing 63 
members of the community. Some are in training, some are getting 
advanced degrees--are they covered? Absolutely not. Why not? Why do you 
exclude those? Norwood-Dingell did not exclude them, why should we?
  Finally, Leslie Sullivan, a family nurse practitioner in the Quincy 
Mental Health Center, a Massachusetts employee. She is not covered 
under the Republican plan. She has worked hard all her life.
  I want to hear a justification from Senator Nickles tonight why these 
people are being excluded. They can't get it. We have insisted, in that 
conference, on three basic things: One, you are going to have coverage 
and cover all Americans; No. 2, you are going to have accountability; 
No. 3, you are going to have a definition of medical necessity that is 
going to protect American consumers.
  At the end of 3 months of hearings, 3 months of meetings in the 
Nickles office--as much as I like and respect Don Nickles and consider 
him a friend, the fact is, of the 22 differences, only 2 had been 
agreed to.
  I will just take 3 more minutes. Here are the guarantees under the 
legislation that the Democrats support: 22 different protections here. 
I would like to hear from the other side: Which ones don't you want to 
guarantee to the American consumers? You don't want to protect all of 
them? You don't want to guarantee the specialists? You don't want to 
guarantee that women that are going to be able to go to an OB-GYN 
without first going to a general practitioner? You don't want to 
guarantee prescription drugs? You don't want to guarantee the emergency 
room? These are our guarantees. This is what we stand for. If the 
Republican bill embraces those without the loopholes, we will support 
it. But if it does not, it ought to get defeated. That vote ought to be 
no, and we ought to continue to fight in this Congress to make sure we 
get a good Patients' Bill of Rights.
  I reserve the remainder of our time.
  The PRESIDING OFFICER. The Senator from Oklahoma is recognized.
  Mr. NICKLES. Mr. President, I regret our colleagues on the Democrat 
side of the aisle have decided to once again try to turn an issue, an 
important issue, Patients' Bill of Rights, into a political theater and 
not legislate, not come up with reasonable compromise. Instead, they 
want votes. They want to try to score points. I find that to be 
unfortunate because we are working very hard to try to come up with a 
responsible product.
  A compromise in the conference committee is not easy on this issue 
because the differences between the House bill and the Senate bill are 
significant. They are significantly different in cost and scope and 
liability. We are trying to bridge those differences. It takes time, it 
takes compromise, it takes both sides working together.
  We made a lot of progress with our colleagues on the Democrat side, 
in spite of what my good friend from Massachusetts says, a lot more 
progress than 2 out of 20 items. We agreed on an appeals process. Maybe 
not on every single last letter, but by and large we agreed on the 
appeals process. We invited the press in; we came to an agreement. It 
took about 2 months. I thought it should have taken a week. The reason 
why it took 2 months is because our friends on the Democrat side always 
kept wanting a little bit more. That is tough negotiating. I am not 
faulting them for that. But they are the reason why it took 2 months to 
come up with an appeals process. We basically agreed with it.
  I just have to make a mention on scope. When they say: Wait a minute, 
their bill only applies to 50 million and our applies to 161 million; 
it should apply to everybody--our plan applies to everybody covered by 
ERISA. That is the plan we are amending, every employer-sponsored plan.
  I know the Senator wants to overrule the State of Massachusetts State 
employee plan, he wants to regulate State individual plans--he wants 
national health care. I compliment him. He is being consistent. He 
always thought the Federal Government could do it better than States, 
and he always wanted the Federal Government to do it instead of States. 
I disagree with that. We have a disagreement. That is one of the items 
we were wrestling with in conference.
  Now we have an amendment.
  We tried to do this in a big fashion last year. They had their 
amendments. We had a lot of votes on amendments last year. Senator 
Kennedy lost. We had an amendment on scope. We debated that last year. 
The Senator from Massachusetts lost. The majority of the Senate said: 
No, we don't want the Federal Government to take over State regulation 
of insurance. We don't think HCFA is very good at administering the 
insurance. They have a hard enough time in Medicare. Do we really want 
them to regulate State insurance? The Senate said no. The House said 
yes. We were negotiating that.
  Incidentally, that is one of the things we are negotiating as we 
speak. But my colleagues on the Democrat side didn't wait for the 
conference. Two weeks ago they said: Let's ignore the conference. Let's 
just adopt the House position. In spite of the fact we have reached a 
bicameral agreement on a lot of patient protections, including the 
appeals process which, for my colleagues' information, is the backbone 
of the bill. It is the most important thing in the bill because if you 
do a good job in the appeals process, you don't have to go to the 
courthouse.
  The patients who need care, whether it is the cleft palate that my 
colleague continues to show in the picture--they are going to have an 
appeal under the bill that we have. They are going to get care. It is 
going to be decided by a medical expert totally independent of the 
plan. That is going to be a binding decision. The person who is denied 
health care is going to have an appeal and is going to get the health 
care they need when they need it; not just go to court.
  Mr. KENNEDY. Will the Senator yield?
  Mr. NICKLES. No, I will not yield. I have a lot of comments to make. 
Maybe I will yield at a later time.
  Instead of waiting for the conference to work, my colleague from 
Massachusetts put the Patients' Bill of Rights on either the Department 
of Defense authorization bill or the Defense appropriations bill.
  There is no way in the world that bill is ever going to come out of 
conference. It was nothing but political theater. It disrupted the 
conference. I told him and my colleagues and I planned on having a 
conference that day with my Democratic colleagues. No, they engaged in 
political theater because maybe some people wanted to have a headline 
that said: ``Senate defeated

[[Page 12952]]

Patients' Bill of Rights.'' We moved to table the amendment. The vote 
was 51-48. It accomplished nothing but headlines for my colleagues.
  Two weeks after the vote, we have another Patients' Bill of Rights. 
Maybe we will have several and do them piecemeal. Maybe we will do one 
on scope and one on patient protections.
  I tell my colleagues, this is not the way to legislate. We are on the 
Labor-HHS appropriations bill. Everyone knows this bill is not going to 
come back--maybe it will; maybe we will pass patient protections and 
put it on Labor-HHS. My colleagues put minimum wage on bankruptcy. 
Frankly, it is a complicated effort for both bills. Minimum wage did 
not belong on bankruptcy and patient protections does not belong on 
Labor-HHS.
  Are they seriously legislating? No. Did they come up with a serious 
legislative proposal? They have a two-page proposal on scope. What is 
the amendment offered by my friend from North Dakota? He has an 
amendment which deals with scope.
  My colleague talked about all these patient protections. Guess what. 
They are not in his amendment. His amendment basically says: We want 
the Federal Government to set standards, and, oh, States, you have to 
meet these standards. If not, the Federal Government is going to take 
over.
  This little amendment, which looks innocuous and is like a thematic 
statement, says we are going to have the Federal Government design, 
mandate, and dictate benefits, and, States, if you do not meet these 
dictates, we are going to have the Federal Government take over; HCFA 
will take over; you will have to follow the HCFA standard.
  This is the GAO report: Implementation of HCFA. The headline says: 
``Progress slow in enforcing Federal standards in nonconforming 
States.'' We have a lot of States not conforming with existing laws 
where HCFA is supposed to have control--ask any of your doctors. Some 
people profess they want to be helpful to doctors. Ask the doctors. If 
we adopt the Dorgan amendment, we are asking HCFA to take over State 
regulation of health care. That would be a disaster. That would not 
improve quality health care. That would duplicate State regulation, 
confuse State regulation, and have Federal regulators who do not have 
the wherewithal or the talent--they say so themselves. They say in this 
report they do not have the talent; they cannot do it. They are not 
doing it in existing law.
  They have three areas in existing law they are supposed to enforce, 
and they are not doing it. This is the GAO report saying this, not Don 
Nickles. It is fact. And we are going to give them regulation over 
State health care? That is absurd. I know some people want national 
health care. They want the Federal Government to regulate health care 
in the States. I do not. I think it would be a serious mistake.
  What about scope?
  Mr. KENNEDY. Will the Senator yield?
  Mr. NICKLES. I want to continue before I lose my train of thought.
  What about scope? The scope proposal in our bill applies to every 
single ERISA-covered plan. Every employer- sponsored plan would have an 
external appeal because that is ERISA. It has Federal remedies.
  We also included in this proposal a cause of action, a cause of 
action liability. In case the external appeal overturns the HMO and 
they do not pay, we say you can sue the HMO. We did not have that in 
the bill before. We did not have liability. We compromised.
  Some say the conference has not done anything. We made a concession. 
We have liability in our proposal so patients can sue HMOs. It turns 
out that a lot of our colleagues want to sue more, on every case. They 
want to turn this into an invitation for litigation. We do not.
  We do have cause of action. We have remedies allowing patients to go 
after the HMO, and, frankly, the employer, if acting as the HMO, if 
they are the final decisionmaker, if they are the ones denying health 
care, if they are the ones causing injury, harm, damage, or death, 
because of their decision to deny health care, they can be held liable. 
My point being: We have moved forward in the conference. We have made 
compromises. We have been working.
  This is not the way to legislate: We will put, at 5 o'clock on a 
Thursday afternoon, on the Labor-HHS bill and say we are going to do 
part of patient protections, we are going to pick out a piece of it, a 
very significant piece. Maybe we will do another piece tomorrow.
  That is not the way we are going to do it. We offered a significant 
comprehensive proposal, one that deals with scope, liability, patient 
protections, one that has an appeals process that will apply to every 
single employer-sponsored plan in America. We are going to give 
everybody a chance.
  You will not be voting on a real patient protections bill, not the 
one Senator Dorgan offered as a two-page amendment. We have an 
amendment pending that is 250 pages that has real patient protections 
and one we have been working on for over a year.
  Frankly, over half that language--maybe over 70 percent of that 
language--has been negotiated with our colleagues on the Democratic 
side of the aisle. It had tentatively been signed off by Democrats and 
Republicans, House and Senate. It has patient protections. It has an 
appeals process. We have a significant proposal. We do not have two 
pages. We have a Patients' Bill of Rights. We have remedies and cause 
of action where someone can sue an HMO or sue a final decisionmaker if 
they are denied health care. We have a good proposal, and I hope my 
colleagues will vote for it and against the Dorgan proposal.
  We will have up-and-down votes on both proposals, on a bill on which 
neither one belongs. That is not my choice. I told my colleagues on the 
Democratic side that I will agree to a time certain and a vote on both 
of these proposals sometime--July, September. I am happy to do that. 
No, they want to score points. They want press conferences. They are 
not interested in patient protections. They are interested in press 
conferences and political theater.
  They are not interested in helping patients. If they were interested 
in helping patients, they would be working with us to resolve and 
compromise in conference. Unfortunately, that is not the case. Maybe 
they will have theater, but we are going to give people substance on 
which to vote.
  Last time, when my colleague from Massachusetts offered basically the 
House-passed bill--let's adopt the House position--we said no, and we 
tabled it. We saw the headlines: ``Republicans Defeat Patients' Bill of 
Rights.'' Guess what. Today we are going to pass a Patients' Bill of 
Rights. We are going to pass a Patients' Bill of Rights and give every 
single patient in America who happens to be in an employer-sponsored 
plan an appeal. If they are denied health care by an HMO, they will 
have an appeal, done by a medical professional, an expert, using the 
best medical evidence available. It is a binding decision.
  If for some reason that appeal is not adhered to nor complied with, 
they will have a right to sue. They can sue their HMO, they can sue the 
final decisionmaker, if it is a self-funded, self-insured employer, if 
they make a decision to deny health care. They can sue them in those 
circumstances. We are offering real patient protections.
  Time and again I have heard: We have to have patient protections 
where there is remedy against HMOs denying health care. We do that in 
this bill. We do not want people going to court; we want them to settle 
it in the appeals process so they get health care when they need it, 
not through the court system when it is too late. We want to resolve 
those cases. We want people to get health care.
  On the patient protections--about which my colleague says the Senate 
does not do anything for the firefighter in Massachusetts, we want 
patient protections--we just do not think we are protecting patients by 
coming up with some facade that the Federal Government is going to take 
care of them when we know it cannot, and have the Federal Government 
basically preempt State law with national health insurance.

[[Page 12953]]

  Look at the countries with national health care. Do they have the 
quality of health care that we do in this country? The answer is no; 
absolutely not. People think we can draft these patient protections in 
Washington, DC, and do a better job than the States. I happen to 
disagree. I will give some examples.
  The States have done a lot with patient protections. We should not 
ignore that. We should encourage it and compliment it. We should 
encourage them to do more. It would be presumptive.
  We negotiated access to emergency room care; direct access to 
pediatricians; provider nondiscrimination; direct access to 
specialists; continued care from a physician; timely binding appeals to 
an independent physician; agreement on direct access to OB/GYNs; 
agreement to improve plan information; agreement on access to out-of-
network physicians; agreement on open discussion on treatment options 
with physicians; agreement on access to prescription drugs; and 
agreement on access to cancer clinical trials.
  We have made a lot of progress. My colleagues say we have not done 
that. Are we going to say the language we drafted is so much better 
than anything the States can do and so we have to supersede their 
language? Some people think we are the font of all wisdom. I do not 
agree with that. It is absurd for us to say that.
  States have been issuing patient protections. Forty-three States have 
already passed patient protection bills way ahead of the Federal 
Government.
  I think it would be presumptuous of us to say: We are going to draft 
something. We know it is better. And States, you must comply. If you 
don't comply, the Federal Government is going to come in to regulate.
  That is a serious mistake. I do not want to do it.
  I urge my colleagues to vote yes on the proposal that I have 
submitted on behalf of myself and several others who have worked for 
over a year and a half to put together. I urge my colleagues to vote in 
favor of that. And I urge my colleagues to vote no on the Dorgan-
Kennedy amendment.
  I yield the floor.
  Mr. KENNEDY. Will the Senator yield for one question?
  Mr. NICKLES. I am happy to yield on your time.
  Mr. KENNEDY. I yield myself 2 minutes for that purpose.
  What is the scope of and coverage in the Senator's proposal, not what 
will apply in terms of internal-external appeals, but what is the total 
coverage?
  Mr. NICKLES. The total coverage is, on scope, every single employer-
sponsored plan in America would have the right to internal-external 
appeals.
  Mr. KENNEDY. In terms of numbers, what are we talking about in the 
Nickles proposal? The initial proposal, the first proposal, was 48 
million. We are talking about 161 million in the Dorgan proposal. Does 
the Nickles proposal include 161 million American families?
  Mr. NICKLES. To answer my colleague's question, on the appeals 
process, it applies to 131 million Americans. We do not say we should 
design plans written by the States for State employees or for city 
employees or individuals. Those have always been regulated by the 
Federal Government. They have never been regulated by ERISA, and they 
aren't regulated by them in our bill, either.
  Mr. DORGAN. Mr. President, let me answer the question of the Senator 
from Massachusetts. The Senator from Oklahoma took a long while to say 
no. Their proposal does not cover the 161 million Americans. It is 
essentially the same proposal we have seen previously. It falls far 
short of covering the majority of the American people who our proposal 
would cover.
  Mr. President, I yield 10 minutes to the Senator from Florida, Mr. 
Graham.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. GRAHAM. Mr. President, the issue before us today is whether we 
are going to give the American people what I believe they expect and 
what they have a right to receive which is uniform, consistent coverage 
of their fundamental rights as beneficiaries of an HMO contract and as 
patients in a health care facility as it relates to the 
responsibilities of that health maintenance organization.
  The Senator from Oklahoma has indicated he is going to submit to us a 
counterproposal to the provision that has been offered by the Senator 
from North Dakota, which focuses on one of the most fundamental issues 
and that is, who is going to be covered.
  It is a little difficult for us to respond to the Senator from 
Oklahoma since at least none of us on this side of the aisle has had an 
opportunity to see the version of the amendment that will be offered. 
It is similar to seeing a biplane fly by with a long sign dragging 
behind its tail. That is what we see--a long, fluttering sign that says 
Patients' Bill of Rights. But we can't see any of the detail that 
supports that title of a Patients' Bill of Rights.
  The question raised by the amendment of the Senator from North Dakota 
is whether we should have a nationwide standard or whether we should 
have 50 standards.
  We have already answered that question as it relates to the 39 
million Americans who are covered by Medicare. We have a national 
standard for all of those 39 million Americans.
  We have answered that question for the 20 to 25 million Americans who 
get their health care through the Medicaid program. All of those people 
are covered by a national standard.
  The question is whether we are going to provide for those people who 
get their insurance through private HMO companies rather than through 
one of these governmental programs to also be granted the right to have 
a national standard.
  The amendment Senator Dorgan has proposed would cover all 161 million 
Americans with private insurance. They will receive the same full array 
of protections. The proposal that I anticipate from the Senator from 
Oklahoma will only fund one type of insurance: self-funded employer 
plans, which cover only 48 million Americans. The others will be left 
out.
  I take second place to no Member of this body in terms of my support 
for federalism. I basically believe in the principle that, where 
possible, decisions should be made at the community and State level. So 
I consider it incumbent upon myself to answer the question: Aren't you 
being inconsistent by now supporting a national standard of patients' 
rights? Why not leave it up to the 50 States to decide for the 113 
million Americans who have private insurance rather than self-funded 
employer plans? Why shouldn't those 113 million Americans be covered by 
a State's Patients' Bill of Rights?
  I would like to answer that question in the context of one of the 
provisions within this bill, and that is how you will be treated if you 
go to an emergency room. I think it is an appropriate provision to use 
as an example of the larger question of whether this should be 
determined 50 times by the 50 States or should there be a national 
consistent standard.
  The emergency room happens to be the site of the largest number of 
complaints by patients against their HMO's treatment. There are more 
complaints as to access, as to standard of care, and as to care after 
the initial critical services are provided, there are more complaints 
by patients in that setting than any other aspect of patient-HMO 
relationships.
  The emergency room is also a setting which is heavy with urgency and 
emotion. That is not just watching ``ER'' on television; it is the 
emergency room in reality.
  I have a practice of taking a different job every month. In February 
of this year, my job was working at the emergency room in one of the 
largest hospitals in Florida, St. Joseph's Hospital in Tampa. In that 
setting, I had an opportunity, firsthand, to see some of the issues 
that an emergency room poses for an HMO patient, such as the question 
of the patient arriving and asking the question: Am I going to be 
covered for the services that I will secure from this emergency room?
  Am I entitled to access to the emergency room?
  It is the question of: Have I come to the right emergency room? 
Should I have gone to the emergency room that is part of the plan of my 
HMO or can I

[[Page 12954]]

go to this emergency room because it is a half hour closer?
  It is the question of: What is going to happen after they stop the 
hemorrhaging and have moved into the poststabilization period? What 
kind of services can I receive, and what types of authorization do I 
have to get from my HMO to be certain that those services are going to 
be paid for?
  Those are very fundamental, tangible questions that a family who is 
taking a loved one to an emergency room will want to have answered.
  I suggest it would be preferable to all of the parties involved in 
this urgent transaction in an emergency room if there were a standard 
set of answers, whether you were in Tampa or Topeka or Tacoma, WA; that 
you would get the same answer. It would be beneficial to the 
beneficiary, to the patient, to know that there would be a consistent 
set of standards, that he would know, for instance, that he would be 
judged by the standard of ``the reasonable layperson'' in terms of 
access, that he would not be judged, as happens to be the case in my 
own State of Florida, not by the reasonable layperson standard, which 
is the rule in Medicare and Medicaid and most States but, rather, as he 
is in Florida, by the standard of an appropriate health care provider 
making a determination after the fact as to whether the patient should 
or should not have considered his or her condition requiring emergency 
room treatment.
  It also avoids confusion by the provider because the provider will 
know that they can render services to all the people who come into the 
emergency room based on a single set of standards in terms of what is 
in that individual's best interest.
  Talking about emergency rooms specifically, as I understand it, in 
the provision of the Senator from Oklahoma, rather than using the norm, 
which is a 1-hour period in which the HMO can decide whether they will 
assume responsibility for the patient in the emergency room or allow 
the hospital of the emergency room to render poststabilization care, 
the Senator from Oklahoma is going to propose that that 1-hour 
standard, which is the standard for Medicare, for Medicaid, for most 
plans, is now going to be ballooned up to 3 hours. So for a person who 
has been in a serious automobile wreck, who has had bleeding, 
hemorrhaging, who is in very serious circumstances and has been 
stabilized but not yet cured or not yet cared for, we are going to have 
a 3-hour period for that individual to wait for the HMO to decide 
whether it is OK for the hospital where the injured patient is located 
to provide the care there, or is the patient going to have to be put in 
an ambulance and carried to one of their network hospitals. I don't 
think that confusion as to standard is good medical policy for the 
providers. It is even not good policy for the insurance companies that 
have to deal with 50 different State standards as to authorization, 
length of poststabilization care, the other issues that arise in an 
emergency room.
  Mr. President, as a self-declared Jeffersonian Federalist, this is a 
case in which we need to have a national standard because it is for the 
benefit of the good health of the American people. I urge adoption of 
the amendment offered by the Senator from North Dakota.
  Mr. NICKLES. Mr. President, I am assuming we have an informal 
agreement to go back and forth and to try to keep the time fairly 
equally divided. I might ask of the Parliamentarian what the division 
of time is remaining.
  The PRESIDING OFFICER (Mr. Bennett). The Senator from Oklahoma has 40 
minutes remaining, and the Senator from North Dakota has 24 minutes.
  Mr. NICKLES. I yield 7 minutes to my colleague from Tennessee.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. FRIST. Mr. President, I rise in support of the Nickles bill a 
little bit hesitantly--not my support--because of a conference which is 
underway which pulls together bills passed by the House of 
Representatives and by the Senate wherein progress is being made so 
that we can assure the American people of a real Patients' Bill of 
Rights.
  This process seems to be interrupted time and time again, if not with 
bills brought to the floor, with press conferences day after day. You 
haven't seen that from this side. You have seen us working on a very 
aggressive, daily basis, in a bipartisan, bicameral way to put together 
a Patients' Bill of Rights--a real challenge because of the number of 
interests, the number of patient protection issues such as scope and 
liability. We are making progress.
  Because of the political theater that seems to be the name of the 
play put forth on the other side, we have our response tonight. I am 
very excited about it. I am very excited because we are putting on the 
table a real Patients' Bill of Rights which has the objectives of 
returning decisionmaking back to that doctor-patient relationship, of 
getting HMOs out of the business of practicing medicine but not having 
the unnecessary mandates which needlessly drive the cost of health 
insurance so high that people lose their health insurance.
  The alternative bill on the other side of the aisle--one that was 
defeated last year, a very similar bill defeated 2 weeks ago--we know 
would drive about 1.8 million people to the ranks of the uninsured.
  I can tell the Senate, as a physician, as a policymaker, somebody who 
has now spent more than 2 years on this bill, we are obligated to the 
American people to present a bill which is a Patients' Bill of Rights 
that does not unnecessarily drive people to the ranks of the uninsured 
by driving up cost. That process is underway. It is interrupted once 
again tonight.
  Tonight, for the first time, we are going to be able to put a new 
bill that reflects this bicameral, bipartisan work of the conference on 
the table. I would like to concentrate a few minutes on the actual ten 
or so patient protections that are in the bill that Senator Nickles has 
put forward.
  We heard a little bit from the Senator from Florida on a Florida 
Patients' Bill of Rights and patient protections. We will come back and 
talk about the scope of the bills a little bit more, but in Florida 
there are a total of 44 mandates that have already been passed by the 
legislature and are law in Florida today. The simple question is, Why 
do we in this body think we can do a better job when the State has 
jurisdiction already in putting forth mandates?
  For example, in 1997, the State of Florida passed a comprehensive 
bill of rights, now 3 years ago. For ER services, emergency room 
services, 4 years ago they passed a Patients' Bill of Rights. They 
passed consumer grievance procedures; breast reconstruction in 1997; 
direct access to OB/GYNs passed in 1998 in Florida; direct access to 
dermatologists, 1997; external appeals, 1997.
  It comes down to the basic premise that we believe we should write a 
bill in terms of scope, in terms of the ten patient protections that 
apply to those people under Federal jurisdiction, and not come in and 
say we know better than the Governor of the Assembly of Florida or 
Tennessee or Arkansas.
  Very briefly, I will talk about the patient protections.
  No. 1, emergency care: Under the Nickles bill, plans must allow 
access to emergency service. This provision guarantees that an 
individual can go to the nearest emergency room regardless of whether 
the emergency room is in the network, in the plan or outside of the 
plan. It is the nearest emergency room. So these press conferences 
where you see pictures of people skipping to different emergency rooms, 
it is not in the bill. In this bill you go to the nearest emergency 
room.
  No. 2, point of service: In this bill all beneficiaries covered by a 
self-insured employer of 50 or more employees must have a point of 
service option regardless of how many different closed panel options an 
employer offers.
  No. 3, access: Specialists such as an obstetrician/gynecologist, 
under the Nickles bill, patients receive a new right for direct access 
to a physician who specializes in obstetrics and gynecological care for 
all obstetrical and gynecological care.

[[Page 12955]]

  No. 4, access to pediatricians: Under our plan, a pediatrician may be 
designated as the child's primary care provider; that is, if a plan 
requires the designation of a primary care provider for a child.
  No. 5, continuity of care: Under the Nickles bill, when a provider is 
terminated from the plan network, patients currently receiving 
institutional care, if they are terminally ill, may continue that 
treatment with the provider for a period of up to 90 days.
  No. 6, access to medication, a real issue for physicians and for 
patients, this whole idea of a formulary: under the Nickles bill, 
health plans that provide prescription drugs through a formulary are 
required to ensure the participation of physicians and pharmacists in 
designing the initial formulary and in reviewing that formulary.
  If there are exceptions from that formulary and a nonformulary 
alternative is available, then the patient has access to that 
nonformulary alternative.
  No. 7, access to specialists: As a heart and lung transplant surgeon, 
this is something I believe is absolutely critical and very important 
to have in the Patients' Bill of Rights. With the Nickles bill, 
patients will receive timely access to specialists when needed.
  No. 8, gag rules: Under the Nickles bill, plans are prohibited from 
including gag rules in providers' contracts or restricting providers 
from communicating with patients about treatment options.
  No. 9, access to approved cancer clinical trials: Again, this is very 
important. We have heard a lot about the human genome project today and 
the great advances. That is good because it gives you the ``phone 
book.'' We have to figure out what it means. In the same way, if you 
have new pharmaceutical agents, or treatments for cancer, you have to 
figure out whether or not they work; therefore, access to approved 
cancer clinical trials. The Nickles bill provides coverage of routine 
patient costs associated with participation in approved cancer clinical 
trials sponsored by the NIH, the Department of Veterans Affairs, the 
Food and Drug Administration, and the Department of Defense.
  No. 10, provider nondiscrimination: Under the Nickles bill, plans may 
not exclude providers based solely on their license or certification 
from providing services.
  No. 11, after breast surgery, mastectomy length of stay, and coverage 
of second opinions: Plans are required, under the Nickles bill, to 
ensure inpatient coverage for the surgical treatment of breast cancer 
for a time determined by the physician, in consultation with the 
patient.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. FRIST. Mr. President, I yield the floor.
  Mr. LOTT. Mr. President, I have a unanimous consent request that has 
been cleared now on both sides of the aisle, if I may interrupt 
momentarily.
  I ask unanimous consent that the motion to waive the Budget Act for 
consideration of the Gramm point of order be withdrawn.
  I further ask consent that the Gramm point of order be temporarily 
laid aside, to be recalled by the Senator from Texas, after 
consultation with the majority leader and the minority leader, and the 
Chair rule on the point of order immediately, without any intervening 
action, motion, or debate.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LOTT. I yield the floor.
  Mr. DORGAN. Mr. President, I yield 5 minutes to the Senator from 
Rhode Island.
  Mr. REED. Mr. President, I rise in support of Senator Dorgan's 
proposal. It is very straightforward, simple, and it states 
categorically that all Americans covered by health insurance should 
have the protections of the Patients' Bill of Rights. Nothing could be 
clearer or more effective and efficient in providing protections to the 
American people, to which we all, by and large, agree.
  We have seen this proposal in the Democratic legislation that was 
submitted to this Chamber. It is included within the Norwood-Dingell 
legislation in the other body. It is consistent, it is appropriate and, 
frankly, it seems so common sensical. Why should an American citizen be 
denied protections and practices and benefits because he or she is in 
an ERISA plan rather than a non-ERISA plan? ERISA is a time and 
security income program created to protect the solvency of retirement 
funds and the financial aspects of these plans. It was never intended 
to be a health care plan or to define the coverage for health care 
plans in the United States. So on that point alone, it seems to be an 
inappropriate way to discriminate against those Americans who have 
access to the protections of the Patients' Bill of Rights.
  I have been listening to the proposals by the Senator from Oklahoma 
and the description of the Senator from Tennessee and trying to 
understand their proposals. My understanding is this: They have--and 
Senator Frist has announced a long list of protections and rights, and 
they only apply to ERISA plans--48 million Americans. The appeals 
process, however, would be expanded to apply to 131 million Americans.
  Now, it appears to be inconsistent, but I think the rationale and the 
logic is pretty clear. If you don't have rights, it doesn't matter 
whether or not you have an appeals process. If you don't have the 
rights outlined by the Senator from Tennessee, then you could have the 
appeals process, but what are you appealing? You are appealing nothing. 
It comes back to the point that Senator Dorgan has made so well. This 
issue is about scope, so that not only do you have the right to 
appeal--all Americans--but you actually have valid rights that you can 
insist upon in an appeals process. That is included within the 
Democratic proposal, the Norwood-Dingell bill, and it is significantly 
absent from the Republican proposal we are hearing today.
  Now, the justification, of course, for this approach--the Republican 
approach--is we can't disrupt State regulations, or the sanctity of 
State regulations. However, step back and look again. Under the 
pressure of Norwood-Dingell, the pressure of Senator Dorgan's proposal, 
and the pressure building up month after month of trying to bring this 
Patients' Bill of Rights to the floor for final passage--something 
solid and substantive--the appeals process has been expanded. When it 
comes to appeals, we are saying we don't care about State regulations 
anymore. That argument falls out. If we don't care about the appeals 
process with respect to the sanctity of State regulations, why do we 
care when it comes down to fundamental rights? Or why do you care about 
it in this, I think, inappropriate, illogical, and irrelevant 
distinction between ERISA plans and non-ERISA plans? The answer is, 
this ERISA distinction is a convenient dodge to avoid providing rights 
for all Americans in this health care bill.
  Now, also, they talk about the fact that the cost of these patient 
protections will go up dramatically. Yet the Senator from Tennessee 
just announced a long list of protections that apply to ERISA plans. 
Why, if these are so onerous and costly, would we allow them to be 
applied to ERISA plans and not to other plans? The answer, I think, 
also should be obvious. It is that, in fact, these proposals are not 
only necessary but appropriate, and that the costs will not 
unnecessarily drive people away from insurance protection.
  So what we have in the Republican proposal is based upon illogical 
premises, distinctions that should not be in place with respect to 
ERISA or non-ERISA, and also would create a complexity that is one of 
the banes of our health care system today. On this side, and also on 
the bipartisan measure adopted by the House of Representatives, you 
have a very simple, direct proposal that will cover every American--not 
just in the appeals process but in the basic rights they have. I think, 
in comparison, it is clear that we should support the amendment of the 
Senator from North Dakota.
  Mr. NICKLES. Mr. President, I yield 5 minutes to the Senator from 
Vermont.

[[Page 12956]]

  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. JEFFORDS. Mr. President, if we are going to talk about improving 
patient care, we should talk about improving quality of care. We 
believe that every patient is entitled to the best medicine available. 
Reducing medical errors is an important part of improving quality. In 
fact, it is a critical issue.
  The Institute of Medicine released a report late last year, which I 
requested. It focused our attention on the need to reduce medical 
errors to improve patient safety. The IOM report said that more people 
in this country die of medical errors than die of breast cancer, AIDS, 
or motor vehicle accidents--the one statistic we cannot ignore. In 
response to this report, the HELP Committee held four hearings. On June 
15, Senator Frist, Senator Enzi, and I introduced S. 2738, the Patient 
Safety and Errors Reduction Act.
  This amendment, which is based on our legislation, will attack the 
problem of medical errors in several ways. First, it will provide a 
framework of support for the numerous efforts that are underway in the 
public and private sectors. Second, it will establish a center for 
quality improvement and patient safety within the agency for health 
care research and quality. Finally, it will provide needed 
confidentiality protections for voluntary medical error reporting 
systems. These provisions are consistent with the Institute of 
Medicine's recommendations.
  The IOM report calls on Congress to establish a center for quality 
improvement and patient safety at the agency of health care research 
and quality.
  This Center will take the lead on patient safety research and 
knowledge dissemination so that what is learned about reducing medical 
errors can be communicated across the country as quickly as possible.
  The Institute of Medicine's report also calls on Congress to provide 
confidentiality protections for information that is collected for the 
purposes of quality improvement and patient study. This is the only way 
to get doctors and nurses to begin to voluntarily report their errors. 
These protections apply only to medical error reporting systems and do 
not diminish the current rights of injured patients. They will still 
have access to their medical records and they will still have the same 
right to sue as they do now.
  We heard loud and clear at our four hearings that we need to 
encourage the reporting of close calls. A close call is a situation in 
which a mistake is made, but it does not result in injury to the 
patient. No harm is done, but the potential for harm is there.
  Many times these ``close calls'' or ``near misses'' are the result of 
problems with the system. The nurse calculates the dose incorrectly 
because the medication name ordered was folinic acid and she is 
accustomed to giving folic acid. The doctor orders an inappropriate 
medication because he has no way to know that another doctor has given 
his patient a medicine that will interact.
  Studies show that mandatory systems may actually suppress rather than 
encourage reporting. Punishment of individuals who make mistakes is not 
only ineffective, it is not the goal. The goal is patient safety.
  It is time that we include our health care industry in the list of 
industries that have adopted continuously quality improvement and have 
taken significant steps to reduce human errors. Good people make 
mistakes. We need to do everything we can to put the systems in place 
to ensure that health care mistakes are very hard to make.
  Neither the Institute of Medicine nor Congress discovered this 
medical error problem. Health care professionals have been at work for 
some time in trying to address medical errors. I hope that by becoming 
a partner in this process, the federal government can accelerate the 
pace of reform and provide the most effective structure possible.
  I am pleased that this confidential, voluntary, non-punitive approach 
to addressing medical errors has the support of both the provider 
community and their oversight agencies.
  We cannot afford to wait on this issue. The Nickles amendment will 
raise the quality of health care delivered by decreasing medical errors 
and increasing patient safety.
  Mr. DORGAN. Mr. President, how much time remains on each side?
  The PRESIDING OFFICER. The Senator from North Dakota has 19 minutes, 
and the Senator from Oklahoma has 27 minutes.
  Mr. NICKLES. Mr. President, I yield to the Senator from Wyoming 5 
minutes.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. ENZI. Mr. President, I thank the Senator from Oklahoma.
  I, too, am distressed that we are debating the scope at this point. 
We had the opportunity to discuss this in a bipartisan way and to come 
up with good solutions. We were making good progress. We have been 
making good progress. Unfortunately, the opposition has decided that a 
national health care plan is the only way to go. A national health care 
plan has been defeated around here a lot of times. I can tell you that 
there are a lot of people who do not want a national health care plan. 
They do not understand a national health care plan. If I even 
considered one, folks wouldn't send me back again--not the ones from 
Wyoming. We have a little different atmosphere in Wyoming than they do 
maybe in Massachusetts or New York or Florida. But the people there 
want health care as bad as anywhere else. They don't want to be driven 
out of the market by rising costs for regulations that do not really 
even affect them. We don't have HMOs in Wyoming, except one small one 
owned by doctors.
  The regulations that will work for other States in this country will 
not work for Wyoming. We have an insurance commissioner. His name is 
John McBride. The nice thing about Wyoming is if you have an insurance 
problem you call the insurance commissioner. You can talk to him or to 
one of the people who work for him. You can call them by their first 
names. I don't have to call them ``Mr. Commissioner.'' And they will 
help you get your problems straightened out. They will help out a lot 
faster than using a national health care plan that results in a chart 
such as this.
  Can you picture me telling the folks in Wyoming that the insurance 
commissioner can't help them anymore, and to just pick the phone up and 
call HIPAA? I don't know the thousands and thousands of employees who 
work there. I especially don't know any of the thousands and thousands 
who they will have to hire to do the kind of job that the scope is 
calling for by our opponent.
  A reasonable scope that handles the rest of the people who are not 
covered by States where they can call the people and get the same 
person every time so they don't have to explain again their problem 
every single day is the kind of service people expect. It is the kind 
of service they can get, but not if we take away States rights.
  Guess what. It looks even worse for consumers under the HCFA's 
``protection,'' according to a release by the GAO on March 31 of this 
year.
  The model the Democrats are supporting for implementing the Patients' 
Bill of Rights is the Health Insurance Portability and Accountability 
Act, affectionately known as HIPAA. I quote from the report:

       Nearly only four years after HIPAA's enactment, HCFA 
     continues to be in the early stages of fully identifying 
     where enforcement will be required.

  There are all kinds of stories about the Washington bureaucracy. 
Under their scope, they want us to give up the State plans in favor of 
this group that is still trying to figure out where they are going. Is 
that responsible? No.
  There are other things that need to be negotiated out in this bill. 
But that is not an option we are being given when they start piecemeal. 
Every piece of a Patients' Bill of Rights interacts with the other 
part. When you jerk out one part of the scope and try to do that 
without talking about all of the other parts of it that interacts with 
the scope you wind up with nothing but a mess. To try to do that in a 
little two-page bill makes it look easy. We have gone from hard on an 
earlier one to a

[[Page 12957]]

really easy one now. And neither of them will do it and protect the 
people in my State. I suggest that it will also not protect people in 
other States.
  I am becoming less surprised that after walking away from the 
conference for the Patients' Bill of Rights, the Democrats are hurling 
accusations about others not wanting to get a bill done and enacted. 
That's an incredibly counter-productive reaction to giant steps on our 
part toward compromise. This conference has been long and time-
consuming, but it has been working. There is not a single reason why we 
should abandon a process that is working. Yet, politics has been 
invited in, and I think the majority of us here to highlight why that's 
such a terrible mistake. Choosing this path is a vote to abandon 
patients in favor of a political issue.
  Among the handful of principles that are fundamental to any true 
protection for health care consumers, probably the most important is 
allowing states to continue in their role as the primary regulator of 
health insurance.
  This is a principle which has been recognized--and respected--for 
more than 50 years. In 1945, Congress passed the McCarran-Ferguson Act, 
a clear acknowledgment by the federal government that states are indeed 
the most appropriate regulators of health insurance. It was 
acknowledged that states are better able to understand their consumers' 
needs and concerns. It was determined that states are more responsive, 
more effective enforcers of consumer protections.
  As recently as last year, this fact was re-affirmed by the General 
Accounting Office. GAO testified before the Health, Education Labor, 
and Pensions Committee, saying, ``In brief, we found that many states 
have responded to managed care consumers' concerns about access to 
health care and information disclosure. However, they often differ in 
their specific approaches, in scope and in form.''
  Wyoming has its own unique set of health care needs and concerns. 
Every state does. For example, despite our elevation, we don't need the 
mandate regarding skin cancer that Florida has on the books. My 
favorite illustration of just how crazy a nationalized system of health 
care mandates would be comes from my own time in the Wyoming 
legislature. It's about a mandate that I voted for and still support 
today. You see, unlike in Massachusetts or California, for example, in 
Wyoming we have few health care providers; and their numbers virtually 
dry up as you head out of town. So, we passed an any willing provider 
law that requires health plans to contract with any provider in Wyoming 
who's willing to do so. While that idea may sound strange to my ears in 
any other context, it was the right thing to do for Wyoming. But I know 
it's not the right thing to do for Massachusetts or California, so I 
wouldn't dream of asking them to shoulder that kind of mandate for our 
sake when we can simply, responsibly, apply it within our borders. 
What's even more alarming to me is that Wyoming has opted not to enact 
health care laws that specifically relate to HMOs, because there are, 
ostensibly, no HMOs in the state! There is one, which is very small and 
is operated by a group of doctors who live in town, not a nameless, 
faceless insurance company. Yet, under the proposal the Democrats 
insist is ``what's best for everybody,'' the state of Wyoming would 
have to enact and actively enforce at least fifteen new laws to 
regulate a style of health insurance that doesn't even exist in the 
state!
  As consumers, we should be downright angry at how some of our elected 
officials are responding to our concerns about the quality of our 
health care and the alarming problem of the uninsured in this country.
  It is being suggested that all of our local needs will be magically 
met by stomping on the good work of the states through the imposition 
of an expanded, unenforceable federal bureaucracy. It is being 
suggested that the American consumer would prefer to dial a 1-800-
number to nowhere versus calling their State Insurance Commissioner, a 
real person whom they're likely to see in the grocery store after 
church on Sundays.
  As for the uninsured population in this country, carelessly slapping 
down a massive new bureaucracy that supercedes our states does nothing 
more than squelch their efforts to create innovative and flexible ways 
to get more people insured. We should be doing everything we can to 
encourage and support these efforts by states. We certainly shouldn't 
be throwing up roadblocks.
  And how about enforcement of the minority's proposal?
  Well, almost one year ago this body adopted an amendment that stated, 
``It would be inappropriate to set federal health insurance standards 
that not only duplicate the responsibility of the 50 State insurance 
departments but that also would have to be enforced by the Health Care 
Financing Administration (HCFA) if a State fails to enact the 
standard.''
  Yet here we are one year later where, not only is it being suggested 
that we trample the traditional, overwhelmingly appropriate authority 
of the states with a three-fold expansion of the federal reach into our 
nation's health care, they still insist on having HCFA be in charge. 
HCFA, the agency that leaves patients screaming, has doctors quitting 
Medicare, and, lest we not forget, the agency in charge as the Medicare 
program plunges towards bankruptcy.
  And guess what, it looks even worse for consumers under HCFA's 
``protection,'' according to a new report released by GAO on March 31 
of this year. The model the Democrats are supporting for implementing 
the Patient's Bill of Rights is the Health Insurance Portability and 
Accountability Act, affectionately known as HIPAA. I quote from the 
report: ``Nearly four years after HIPAA's enactment, HCFA continues to 
be in the early stages of fully identifying where federal enforcement 
will be required.'' Regarding HCFA's role in also enforcing additional 
federal benefits mandates that Congress has amended to HIPAA, the GAO 
states, ``HCFA is responsible for directly enforcing HIPAA and related 
standards for carriers in states that do not. In this role, HCFA must 
assume many of the responsibilities undertaken by state insurance 
regulators, such as responding to consumers' inquiries and complaints, 
reviewing carriers' policy forms and practices, and imposing civil 
penalties on noncomplying carriers.'' And then, the GAO report reveals 
that HCFA has finally managed to take a baby step: ``HCFA has assumed 
direct regulatory functions, such as policy reviews, in only the three 
states that voluntarily notified HCFA of their failure to pass HIPAA-
conforming legislation more than 2 years ago.''
  Is this supposed to give consumers comfort? First we should usurp 
their local electoral rights or their ability to influence the 
appointment of their state insurance commissioner and then offer up 
this agency as an alternative? I'm sure I could find a single 
Wyomingite to clap me on the back for this kind of public service.
  I could go on at length about the very real dangers of empowering 
HCFA to swoop into the private market, with its embarrassing record of 
patient protection and enforcement of quality standards. Such as how it 
took ten years for HCFA to implement a 1987 law establishing new 
nursing home standards intended to improve the quality of care for some 
of our most vulnerable patients. But I think the case has already been 
crystallized in the minds of many constituents: ``enable us to access 
quality health care, but don't cripple us in the process.''
  The next, equally important issue is that of exposing employers to a 
new cause of action under a Patients' Bill of Rights. Employers 
voluntarily provide coverage for 133 million people in this country. 
That will no longer be the case if we authorize lawsuits against them 
for providing such coverage. This is basic math. If you add 133 million 
more people to the 46 million people already uninsured, I'd say we have 
a crisis on our hands. In my mind, a simpler decision doesn't exist. We 
should not be suing employers.
  Let me close by saying that the conference has worked in incredible 
good faith. We have come to conceptual agreement on a bipartisan, 
bicameral

[[Page 12958]]

basis on more than half of the common patient protections. We have come 
to bipartisan, bicameral conceptual agreement on the crown jewel of 
both bills--the independent, external medical review process. Most 
dramatically, the bicameral Republicans offered a compromise on 
liability and scope, to which the Democrats responded with only 
rhetoric and political jabs in the press. It is absolutely bad faith to 
have done so. I think it would be regrettable if these continued public 
relations moves torpedo what, so far, has produced almost everything we 
need for a far-reaching, substantive conference product.
  I encourage all of my colleagues to take the high road and support 
the legislative process our forefathers had in mind, versus a public 
relations circus.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. DORGAN. Mr. President, I yield myself such time as I may consume.
  I have listened to this discussion, and it is pretty interesting. It 
seems to me that if you don't want to pass a Patients' Bill of Rights--
perhaps for the reason the Senator from Wyoming suggested, which is 
that the Federal Government ought not to have any involvement in this 
issue--then just say so. Don't come out here and describe an 
alternative as if it is doing something that it is not really doing.
  According to my colleague, we have a 258-page amendment. It kind of 
reminds me of the ``Honey, I shrunk the plan'' approach, this 
suggestion that what we should go back to covering 48 million people 
rather than 161 million people.
  The Senator from Tennessee talked earlier about emergency room care 
and a number of the patient protections we have proposed. I hope he 
will respond to my inquiry. Is it not the case that the emergency room 
care provisions in the Senator from Oklahoma's amendment applies only 
to about 48 million people. Isn't it so that two out of three people 
will not be covered with the kind of protection the Senator suggested 
was covered in their proposal? It seems to me it would be a much better 
approach to simply say we don't support a Patients' Bill of Rights.
  Mr. FRIST. Mr. President, will the Senator yield?
  Mr. DORGAN. I will yield for about 15 seconds.
  Mr. FRIST. Mr. President, emergency room provisions are a good case 
in point. It comes up all the time. It is important that people have 
the right to go to emergency rooms. Emergency room provisions are 
important. The Senator is exactly right. For the 51 million people who 
the Federal Government regulates, we have a responsibility to put 
emergency room provisions in there. That is what the Nickles bill does 
for the States.
  The other people the Senator is talking about--does he know how many 
people already have specific emergency room provisions legislated for 
managed care? We do. It is not 10 States or 20 States or 30 States or 
40 States. I don't have the exact number. I know more than 43 States 
have taken care of the emergency room provisions.
  Mr. DORGAN. I understand the Senator's answer, which is that the 
substitute offered by Senator Nickles provides coverage for only about 
48 million Americans. It is the same approach they have used 
previously.
  One can suggest that all of these protections I am proposing are 
covered elsewhere. If that is the case, why does the Senator object?
  The Senator from Oklahoma seems irritated we have raised this issue 
again. Let me tell you what Congressman Norwood, a Republican serving 
in the House who is a sponsor of the House legislation, said on May 25, 
and I quote: I am here to say the time's up on the conference 
committee. We have waited 8 months for this conference committee to 
approve a compromise bill. Senate Republicans have yet to even offer a 
compromise liability proposal. They have only demanded that the House 
conferees abandon their position.
  This is a Republican saying the time is up on the conference 
committee.
  Let me also point out that the Senate passed, in my judgment, a poor 
piece of legislation. It has the right title but it doesn't include the 
right provisions. The House passed a good piece of legislation, but the 
House leadership appointed conferees to the conference that voted 
against the House bill. Their conferees voted against the House bill. 
So the conference isn't even on the level.
  If month after month after month goes by and you don't want to have a 
Patients' Bill of Rights because you don't believe the Federal 
Government ought to be involved in this, just tell the patients that. 
Say to the patients: We don't believe Congress ought to do this. You 
should go ahead and fight cancer and fight your HMO at the same time. 
Go ahead and do that.
  The fact is, we can do better. The proposal we are offering today is 
very simple. We believe that a Patients' Bill of Rights establishing 
basic rights that patients ought to be able to expect in dealing with 
their insurance company is a proposal that ought to get 100 votes in 
this Congress.
  There are some who say, when asked the question, Whose side are you 
on? Let us stand with the insurance companies.
  We believe Members ought to stand with the patients. There is a 
genuine and serious problem in this country with patients not getting 
the treatment they expect, need, or deserve. Patients find themselves 
having to fight cancer and their insurance company. That is not fair.
  The question is whether this Congress will do something about it. The 
question is not whether this Congress will pass a national health care 
plan. That is nonsense. That is not what is being debated. I see more 
shuffle and tap dances going on around here on this debate. The fact 
is, if you want to pass a good Patients' Bill of Rights, do what the 
House did. Understand that Dr. Norwood, a Republican Congressman, knows 
what he is talking about. This conference hasn't moved. This conference 
isn't accomplishing anything. That is why we have offered this 
amendment.
  I yield the floor, and I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. NICKLES. To respond to a couple of comments, my colleague read 
from a Norwood letter that said the Republican conferees are not 
addressing liability. We have liability on the floor of the Senate. Mr. 
Norwood is not a conferee. Maybe he didn't know what he was talking 
about. We have liability on the proposal. Granted, there was not 
liability in the Senate bill we passed. There is on the bill we have 
before the Senate.
  When we talk about scope, we have scope that applies to 131 million 
Americans in the appeals process and liability that they can sue their 
HMO.
  To read a letter by a Congressman that says the conference is not 
doing anything, they don't have liability, and we have liability is a 
little misleading.
  When my colleague from North Dakota says our proposal doesn't have a 
Federal takeover of insurance, you might read the amendment. The 
amendment on page 2 says:

       (3) provide the Federal Government with the authority to 
     ensure the Federal floor referred to in paragraph (1) is 
     being guaranteed and enforced with respect to all individuals 
     described in such paragraph, including determining whether 
     protections under State law meet the standards of such Act.

  In other words, the Federal Government will run State insurance, 
period. The Federal Government is going to take over. It is in his 
amendment.
  I think that needed to be pointed out.
  I yield 10 minutes to my colleague and conferee on this bill, the 
Senator from Texas.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. GRAMM. I thank Senator Nickles, whose leadership on this issue I 
think is without equal on any issue on which I have worked since I have 
been in the Senate. I know the people of Oklahoma, who Senator Nickles 
represents, watch this on television at home. They wonder, what is this 
all about? You did, you didn't; you did, you didn't. This has to be 
confusing.
  In the limited time I have, I want to set this debate in historical 
perspective so everybody knows what this is about.

[[Page 12959]]

When Bill Clinton was elected President, he had a goal of having the 
Government take over and run the health care system. In fact, I have 
before me the Clinton health care bill. This would have mandated one 
giant, national HMO run by the Government; HMOs would set up health 
care collectives, and of course the right people would be chosen to 
decide what health care we all needed.
  If you went to your doctor, he would have dictated, under the Clinton 
plan, the kind of treatment he could give. If he violated their 
guidelines because he thought you needed it, he would be fined $50,000.
  If, under the Clinton health care bill, you went to a doctor and 
said, I don't think all these experts are right and my baby is sick, my 
baby could be dying, I will pay you to treat my baby, if the doctor did 
it, he could go to prison for 5 years.
  That is the health care system my Democrat colleagues are for. The 
Members who were here voted for it and supported it. They know what 
they want. They want the Government to take over and run the health 
care system. They want to herd Americans into health care purchasing 
cooperatives, or collectives, as they call them, and you have to be a 
member or else you don't get health care in America. That is what they 
want. That is where this debate started.
  Now, we are trying to give patients rights in dealing with HMOs. We 
want internal and external review. We want the external review to be 
independent. We want to guarantee them rights. But there is one 
fundamental difference between the Democrats and us. We think this is a 
delicate balance, because we don't want to drive up health care 
insurance costs so much that millions of people lose their health care.
  Senator Kennedy's bill was scored as driving up the cost of every 
person's health care in America by over 4 percent and costing 1.2 
million American families their health insurance. What patient right is 
more basic than having health insurance? They give you lots of rights, 
but if you lose your health insurance, how do you pay for your health 
care? There is the difference between them and us. We have to be 
concerned about 1.2 million people losing their health care; they 
don't.
  When Clinton said, let us take over and run the health care system 
and put everybody into these health care collectives, what did he say 
the problem was? The problem was that we had too many people without 
health insurance. So if their bill passed and millions of people lost 
their health insurance, what do you think they would say? They would 
say: We have a solution; the solution is a government takeover of 
health care.
  This job is easier for them than it is for us because they don't care 
if the baby dies, because they want to replace it. It reminds me of 
that story in the Bible. Some of you may remember it. Two ladies had 
gone to bed, and during the night one of them's baby had died and the 
other one had taken the baby. They come before Solomon. Solomon, in his 
wisdom, after listening to their arguments, says let's just cut the 
baby in half. That is what they are saying--cut the baby in half. Then 
one lady said: OK, cut the baby in half; and the other said: No, let 
her have the baby. Then Solomon knew whose baby it was.
  This is our baby. We love freedom. We love the right of people to 
choose. We love the greatest health care system the world has ever 
known. We are not going to let the Government take over and run the 
health care system. That is what this debate is about. That is what our 
Democrat colleagues want. They are willing to destroy the greatest 
health care system the world has ever known because they want the 
health care system where the Government runs it. They think it would 
work better. We don't. Neither did America in 1993 and 1994, which is 
why we have a Republican majority today.
  The second issue is scope. What does that mean? For those watching 
this on television, what does ``scope'' mean? What it means is, what 
should this Federal law do as it relates to the State in which you 
live?
  Our Democrat colleagues believe with all their heart--they are as 
sincere as they can be--that there is only one place in the world where 
people have really any sense: Washington, DC. They think people in city 
governments and county governments and State governments are ignorant 
and uncaring. They believe Washington is brilliant, all-knowing, and 
all-caring. So what they want to do is write one bill in Washington and 
impose it on every living person in America.
  We do not agree. We do not believe that just coming to Washington all 
of a sudden makes you brilliant. In fact, it is a long way from 
Washington to Wyoming. It is a long way from Washington to Texas. We 
joined the Union in Texas because we wanted freedom. We didn't join the 
Union to give it up.
  What is the difference between the two bills? Their bill says we are 
going to write things the way we want them, and you are going to do it 
that way or we are going to come to your State, we are going to cut off 
your money, we are going to cut off your health care, and in some cases 
we are going to put you in jail. That is their way of doing it. You 
remember, in their bill if you went to this doctor, got down on your 
knees and begged that he take your money and treat your child, he went 
to prison for it; That was in their bill, the Clinton health care bill.
  What we say is: Look, we will write a basic standard for patient 
protections. But what if the people in Wyoming decide, since they don't 
have any HMOs--and this bill is about dealing with HMOs--that they 
should not have to come under the Federal Government to deal with a 
problem they don't have? They don't think they should. I don't they 
should either.
  People in Tennessee and Texas were protecting patients before we got 
into this business. They passed comprehensive bills. All we are saying 
is our bill applies to those not already covered. But if people in 
Texas, through their government, through their elected Representatives, 
decide they appreciate our help, they appreciate our caring, they know 
we love them, they kind of figure we know everything--but just in case 
we are wrong, they would rather implement their own program for their 
own jurisdiction, our Democrat colleagues say: No, they don't care 
enough, they don't know enough, they are ignorant.
  We do not agree. We want people in Wyoming to be able to say: Look we 
really appreciate the bill, we know you guys want to help us, but we 
don't have any HMOs; we say they ought to have the right to opt out.
  If Tennessee says: Look, we set up TennCare because we adopted the 
Clinton health care bill in Tennessee--they wish they hadn't done it, 
but they did--if they say we would rather do it our way than your way, 
our Democrat colleagues say: What do you know? What do you know in 
Tennessee? You people in Tennessee don't know and don't care about 
people. We want to do it for you. We are going to tell you how to do 
it.
  What we say is: Look, we have written a good bill. We want everybody 
to look at it very closely. In those areas where only Federal law 
applies, the bill applies. You can't get out from under it because 
there are no other protections. But if Tennessee decides in areas where 
they have already passed a Patients' Bill of Rights that they would 
rather do it their way than our way, we say if their elected 
Representatives, their Governor, decides to do it that way, they have 
the right to do it.
  Is that an extreme view? Is that somehow denying people protection? 
Is freedom a denial of protection? Is keeping the right to choose 
denying people a basic health right? I don't think so. I think it 
enhances rights. And that is what this debate is about.
  Our Democrat colleagues with all their hearts believe that the 
Government ought to take over the health care system and they think 
everything should be done in Washington.
  I reserve the remainder of our time.
  Mr. DORGAN. Mr. President, I yield 7 minutes to the Senator from 
Massachusetts.
  The PRESIDING OFFICER (Mr. Sessions). The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, it is always interesting to listen to my

[[Page 12960]]

friend and colleague from Texas. But I still am trying to find out why 
he is opposed to the protections which are included in our Patients' 
Bill of Rights. There was a lovely, wonderful statement about his 
reservations and about the importance of freedom to HMOs: If we give 
total freedom to HMOs, the public be damned. That is what has happened 
too often. What we are talking about is the protections that are 
guaranteed in a Patients' Bill of Rights, which is, interestingly, all 
the kinds of protections he has in his health insurance under the 
Federal employees program.
  There is not a Member of the Senate who has not accepted the Federal 
employees program, and it guarantees virtually every one of these 
protections we are talking about tonight with the exception of the 
right to sue.
  The question before the Senate tonight is this: Are we going to 
insist that whatever protections we are going to pass in a Patients' 
Bill of Rights are going to be available and accessible to all 
Americans? That is the Norwood-Dingell bill, the bill we on our side of 
the aisle favor. Whatever protections we are going to put in ought to 
include the 161 million Americans with private health insurance. That 
is our principle, that is what we stand for.
  All you have to do is read the Nickles bill and you will find out 
that it covers exactly what was in the Senate Republican bill--only the 
48 million Americans who are self-insured. Whatever protections they 
are talking about cover only those 48 million.
  Look at the Nickles access to pediatric provision: ``If a group 
health plan''--that would be 123 million people;--``other than a fully 
insured group plan.'' Other than; that knocks out the fully insured. It 
knocks all of them out. So the guarantees on pediatric care apply to 
only 48 million out of 161 million.
  Go through the rest of the Nickles bill. Go through coverage of 
emergency services. It says, again, ``If a group health plan''--they 
are covering 123 million. The next sentence, ``other than a fully 
insured group health plan.'' Other than fully insured--75 million. How 
many are left out? Forty-eight million. They cover the same number of 
people they covered 7 months ago. That is the reality. Here it is in 
their bill. Every one of these guarantees: If a group plan, other than 
a fully insured group plan. You go for the 48 million in the 
legislation that is rejected by Dr. Norwood, who is the principal 
health spokesman for Republicans on health matters over in the House of 
Representatives.
  There it is. Their own language. They cover 48 million. The Dorgan 
proposal said: Whatever we are going to do, in terms of protecting 
consumers, let's protect them all--161 million.
  We are one vote away in the Senate from passing an effective 
Patients' Bill of Rights. The conference is a failure. The amendment 
offered by the Senator from Oklahoma does not even have the support of 
the House Republicans. And only one of the House Republican conferees 
was a supporter of the Norwood-Dingell bill.
  There is no agreement on covering all Americans. There is no 
agreement on external appeals. There is no agreement on holding health 
plans accountable. There is no agreement on access to specialists, to 
clinical trials, or a host of other patient protections. There was no 
agreement.
  This vote today is a chance for the Senate to make a statement. A 
vote for the Dorgan amendment is a vote for the proposition that every 
patient in America is entitled to protection. Establishment of that 
principle is a giant step towards the day the Senate will pass a true 
patients protection program. A vote for the Nickles amendment is a vote 
against patients and for insurance companies. It is a vote for covering 
less than a third of all Americans. It is a vote for the same limited 
coverage originally passed by the Senate. It is a vote for a review 
process that is not truly independent. It is a vote against meaningful 
accountability. It is a vote against access to specialists outside a 
plan, even if the specialist is the only one able to treat that 
condition. It is a vote against access to clinical trials for heart 
patients. It is a vote for a bill that is so inadequate it will never 
pass the House, and it will never be signed by the President. It will 
not protect the thousands of patients who are injured every day.
  It is up to the Senate. We should vote for the principle that 
everyone be covered. We should vote against a plan rejected by every 
group of patients and doctors, and by House Republicans. And we should 
come back after the recess and pass a real patients' rights bill, of 
which we can all be proud, whether we are Republicans or Democrats. 
Let's protect patients, not HMOs. I withhold the remainder of my time.
  Let's protect patients, not HMOs. I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. NICKLES. Mr. President, how much time remains on both sides?
  The PRESIDING OFFICER. The Senator from Oklahoma has 10 minutes, and 
the Senator from North Dakota has 7 minutes.
  Mr. NICKLES. Mr. President, for the information of all of our 
colleagues, it is my expectation we will have a vote about 7:20 p.m. I 
say to the majority leader, all time will expire by about 7:20 p.m. We 
are happy to vote on both proposals. So colleagues should be on notice 
to expect two rollcall votes beginning at 7:20 p.m.
  I yield 5 minutes to my colleague, a conferee on the bill, the 
Senator from Arkansas, Mr. Hutchinson.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mr. HUTCHINSON. Mr. President, I compliment and commend the Senator 
from Oklahoma, Mr. Nickles, for the hard work he has done and the 
months of labor he has put into this conference. Anybody who has 
followed the reports of what has come out of this conference cannot 
honestly say it has been glacial movement. Enormous progress has been 
made. Concessions have been made on the part of the House conferees as 
well as the Senate conferees.
  This is no way to legislate and no way to provide patient protections 
the way Senator Kennedy and Senator Dorgan have done in parceling out a 
little piece here and there. Tonight we are going to do scope. That is 
not the way to legislate. This is truly the triumph of politics over 
policy.
  I was writing as various Senators on the Democratic side made 
speeches. They spoke of a national standard, of universal coverage, and 
of a national health system. To this Senator's mind, they could be 
synonymous with a national health care system. We had that debate. We 
had it in 1993. It was called ``Clinton care.'' Senator Gramm piled it 
up over here, and it was about 2 feet tall.
  The American people made a judgment on ``Clinton care.'' We do not 
want a national health care system, nor is that in the best interest of 
Americans.
  The real debate tonight centers around not whether we want 
protections for all Americans or whether we believe we are the only 
ones who can provide that protection or whether the States have a 
legitimate role in providing protections for their citizens. How many 
States have patient protection laws? Forty-three States have already 
enacted patient protection laws.
  Do we not believe they have the best interests of their citizens in 
mind? What we are doing in our legislation is providing protection 
where States cannot do it where Federal jurisdiction is legitimate. 
Under ERISA and self-funded plans, we do that, as we should.
  I listened to my colleague from Massachusetts, Senator Kennedy. In 
his State, in 1996, they had a ban on gag clauses. They passed a 
grievance procedure. They, in fact, have 26 State mandates. Does the 
Senator not believe they care about their citizens?
  I heard my colleague and good friend from Florida speak of the need 
for a national system. The State of Florida passed a comprehensive bill 
of rights in 1997, emergency room services in 1996. They have 44 State 
mandates. Do they not care? They care as much as we care, and they know 
their State better than we do.

[[Page 12961]]

  I heard my colleague from the State of Rhode Island speak about the 
need for a national health care system. Rhode Island passed a 
comprehensive consumer rights bill in 1996. They have passed 27 
mandates in Rhode Island. I can go on and on. Forty-three States 
already have a bill of rights. It is not our place to usurp their 
authority. It is not our place to take over insurance that has 
traditionally and historically been regulated at the State level. It is 
wrong for us to do that.
  To my colleagues I say we have a conference in progress. It is 
progress. It is working hard. It is making progress. That is the way we 
should provide patient protections, not through an amendment on an 
appropriations bill.
  I thank my colleague, Senator Nickles, for the hard work he has done 
and all the conferees and look forward to when we will have a 
meaningful patients' rights bill passed into law.
  I reserve the remainder of our time.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. DORGAN. Mr. President, has the Senator from Oklahoma completed 
his debate? It is my intention to close debate on my amendment.
  Mr. NICKLES. I will be happy to let my colleague close. How much time 
remains?
  The PRESIDING OFFICER. The Senator from Oklahoma has 5 minutes, and 
the Senator from North Dakota has 7 minutes.
  Mr. NICKLES. I yield 3 minutes to my colleague from New Hampshire.
  Mr. GREGG. Mr. President, I thank the Senator for bringing forward 
this extremely positive proposal in the area of patient protections. 
This bill has a lot of initiatives, many of which have been outlined 
very well by my colleagues. One that has not been highlighted as 
completely as I would like because of time--and I want to touch on it 
quickly--is the issue of liability.
  When our bill initially passed the Senate, we did not include an 
opportunity to sue, but we have changed that policy. Under the bill as 
it is proposed today, first there is a tremendously positive appeals 
process. If a patient believes they have been aggrieved by their HMO, 
they have the right to an internal appeal and an external appeal which 
is set up with an independent group of physicians who will review the 
case and who are knowledgeable on that subject. More importantly, if a 
patient thinks they have been aggrieved, under certain circumstances, 
they will be able to sue that HMO. What they will not be able to do is 
have an open season on the employer.
  If one looks at the proposal that has been put forward by the other 
side, they are suggesting we have an open season on employers. The 
whole exercise in the Patients' Bill of Rights is not to have open 
season on employers. It is to address inequities occurring to people as 
they deal with their insurers, specifically with health maintenance 
organizations.
  If we allow this open season on employers, we will simply drive 
people out of insurance. Instead of improving insurance for individuals 
across the country, individuals across this country will walk into work 
one morning and their employers will say: I did not give you this 
health care policy which happens to be a very expensive event in my day 
in trying to make an effective workplace; I did not give it to you so 
lawyers could use it as a game area to bring suits against me.
  Employers across this Nation are going to simply drop their health 
care insurance. They will give their employees a certificate to buy 
their own health insurance or some other type of vehicle to allow them 
to compete in the marketplace. Because employers are able to get a 
better price and are able to tailor their insurance policies more 
effectively to the needs of their employees in different regions of 
this country, the practical effect will be employees get significantly 
much less health care under the proposal coming from the other side 
because employer after employer will simply drop their employees' 
health insurance programs and will allow the marketplace to compete for 
their employees. Unfortunately, the result will be the employees will 
be left with the short stick.
  I think that is the actual goal of the other side. I think their real 
goal is to drive up the number of uninsured across this country. If one 
looks at the pattern of activity on the other side of the aisle, it has 
been to annually increase the number of uninsured by raising the price 
of insurance in this country.
  Since this administration has been in office, the number of uninsured 
has gone up by 8 million people because the price of insurance has gone 
up and up as the other side has tried to drive up the price of that 
insurance.
  What is the ultimate goal? ``Hillary care.'' If they put enough 
people on the street, if they create enough uninsured, inevitably they 
will have to claim: I am sorry, everybody is uninsured so we have to 
nationalize the system.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. GREGG. I think that is a good place to stop. I reserve the 
remainder of the time on our side.
  Mr. DORGAN. Mr. President, I yield 2 minutes to Senator Edwards.
  The PRESIDING OFFICER. The Senator from North Carolina.
  Mr. EDWARDS. Mr. President, I will respond to the Senator from New 
Hampshire. He argues there is a new provision in the Republican plan 
that provides for liability. That provision is a sham. There are three 
points I want to make in response.
  First is the argument that we are creating an open season on 
employers. It is simply false. Not true. A letter from the American 
Medical Association of June 23 states clearly:

       The insurance industry--

  And the Republican plan in this case--

     is flat wrong, and to imply otherwise is frankly deceptive. 
     The fact is, the bipartisan House-passed bill would actually 
     protect employers.

  Under our bill, an employer cannot be held responsible under specific 
language unless they actively intervene in the decision of the 
insurance carrier, which never occurs. There is to reason for it to 
occur. It in fact never occurs. It is a false argument that employers 
can be held liable under our proposal. They cannot.
  Second, the argument that they are providing for liability is simply 
not true. Under their plan, an insurance company can never be held 
responsible for their initial decision to deny coverage. So if somebody 
goes to their doctor with an emergency situation--they need care--and 
the insurance company says no, and, as a result, they suffer a lifelong 
injury, a debilitating injury, or death, the insurance company cannot 
be held accountable. They can only be held accountable, can only be 
held responsible, if they have exhausted the internal review process 
and the insurance company acted in bad faith or if they failed to 
follow the decision from the external review board.
  The bottom line is, it creates an incentive for the insurance company 
to deny coverage in the first instance because under no circumstances 
can they be held responsible, and under no circumstances can they be 
held accountable. For those reasons, this provision for HMO insurance 
carrier liability is not real; it is a sham.
  Our proposal provides real and meaningful accountability.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Senator from Oklahoma.
  Mr. NICKLES. Mr. President, I yield the Senator from Tennessee--how 
much time do I have?
  The PRESIDING OFFICER. The Senator has 2 minutes.
  Mr. NICKLES. I yield the Senator 1 minute.
  Mr. FRIST. Mr. President, very quickly, a vote for the Nickles 
amendment is a vote for patient protection, emergency room access to 
obstetricians, pediatricians, specialists, and clinical trials.
  A vote for the Nickles amendment is a vote for a strong internal 
appeals process. If the HMO rejects the appeal of the doctor, you can 
go internally. If it is rejected again, you go to an external appeal 
process. The decision made by the external appeals process is made by 
an independent physician not bound

[[Page 12962]]

by how the plan may define ``medical necessity.'' If the external 
appeal overrules the plan, and the plan does not comply, you go to 
court. This new ability to go to court, which is what many people 
believe is so important, is a new right to sue in Federal court.
  Lastly, the access provisions have not been mentioned.
  In closing, all of these mandates are going to drive up the cost of 
health care.
  Access provisions in the bill include an above-the-line deduction for 
health insurance expenses, a 100-percent self-employed health insurance 
deduction, expansion of medical savings accounts, and deductions for 
long-term care.
  I reserve the remainder of our time.
  Mr. LEAHY. Mr. President, I am please to be a cosponsor of the 
amendment offered by Senator Daschle to the FY 2001 Labor HHS 
Appropriations bill which will protect people from having their 
personal, genetic information used against them by their employers or 
their health insurance companies. The provision is identical to the 
legislation that Senator Daschle introduced earlier this year and which 
I have also cosponsored.
  If adopted, the Daschle amendment will bar insurance companies from 
raising premiums or denying patients health care coverage based on 
genetic information. Employers will also be prohibited from using 
genetic information in hiring practices. Because a right without a 
remedy is not right at all, these measures also provide an individual 
who has suffered genetic discrimination with the right to take legal 
action. This is an essential protection to ensure that discrimination 
does not occur.
  With the latest breakthrough earlier this week of the Human Genome 
Project in mapping human genetic make-up, protecting Americans from 
genetic discrimination--an issue that was already important--has become 
critical. We must support the advancement of science and discovery 
through research. But while we are embracing these new discoveries, we 
must also provide safeguards to ensure the protection of this new and 
potentially very sensitive and personal information. In order to help 
Americans embrace scientific discoveries we must ensure these 
discoveries will not cause personal harm.
  This February, in recognition of the need to prevent abuse and misuse 
of genetic information, President Clinton signed an Executive Order 
that prevents federal agencies from discriminating against workers if 
they discover through genetic testing that they have a predisposition 
to a disease or some other conditions. President Clinton expressed his 
support for legislation to prevent genetic discrimination which will 
extend beyond the reach of the Executive Order. The Genetic 
Nondiscrimination in Health Insurance and Employment Act and today's 
amendment will allow Vermonters--and all Americans--to undergo genetic 
testing without being afraid that their employer or their insurance 
company will use this information to discriminate against them.
  No one wants to find out they may be predisposed to a certain disease 
and then have to worry about losing their job. These important measures 
would give them the assurance and protection that their personal 
information will be protected and will not be used against them.
  Mr. DORGAN. Are we finished? Will I close at this point? I have 5 
minutes.
  Mr. NICKLES. I have 1 minute.
  Mr. DORGAN. I would like to close debate on my amendment, if the 
Senator would like to proceed.
  Mr. NICKLES. I would like to close on ours. You have 5 minutes.
  Mr. DORGAN. Mr. President, we are debating my amendment, I guess. I 
have the right to close debate on my amendment; is that correct?
  The PRESIDING OFFICER. There is no right to do such.
  Mr. DORGAN. All right, Mr. President. Let me take the 5 minutes at 
this point and close debate.
  Mr. President, this has been an interesting discussion, but it has 
not been about what is on the floor today. We have had now a debate 
about the 1993 Clinton health plan. We have also had a discussion about 
``Hillary care.'' If you have the interest in debating that, hire a 
hall, get your own audience, speak until you are exhausted, and have a 
good time. But those are not the subjects on the floor today. We are 
debating the Patients' Bill of Rights.
  Some people do not want to debate that. They certainly do not want to 
talk about the facts, but this is what we are talking about: The 
Patients' Bill of Rights.
  Dr. Greg Ganske, a Republican Congressman from Iowa, was just on the 
floor of the Senate and he indicated that the 258-page missive that is 
now offered as a substitute will in fact weaken HMO laws in the 
following States: California, Texas, Georgia, Washington, Louisiana, 
Oklahoma, Arizona, and Missouri. That is not from me; it is from Dr. 
Ganske, a Republican Congressman.
  By the way, let me read something Dr. Ganske said some time ago in a 
discussion about all of these issues. He said:

       Let me give my colleagues one example out of many of a 
     health plan's definition of medically necessary services. 
     This is from the contractual language of one of the HMOs that 
     some of you probably belong to: ``Medical necessity means the 
     shortest, least expensive or least intense level of 
     treatment, care or service rendered or supply provided, as 
     determined by us.''
       Contracts like this demonstrate that some health plans are 
     manipulating the definition of medical necessity to deny 
     appropriate patient care by arbitrarily linking it to saving 
     money, not to the patients' medical needs.

  Some of my colleagues say we are playing politics with this issue? 
Why don't you tell that to some of these kids.
  Dr. Ganske described this child I show you a picture of, a child born 
with a severe cleft lip. Fifty percent of the medical professionals in 
Dr. Ganske's field report that they have been told that correcting this 
kind of condition is not a medical necessity.
  So tell that to the kids. Tell it to this young child, that it is not 
a medical necessity to correct this condition.
  Dr. Ganske also shared with us what a young child looks like who was 
born with this deformity--but who has it corrected by the right kind of 
surgery. Let me show you another picture of this child with the 
condition corrected. Does anybody want to tell this child it was not 
worth it?
  Or maybe you want to talk to Ethan Bedrick. Tell Ethan that this is 
just politics. Ethan was born during a complicated delivery that 
resulted in severe cerebral palsy and impaired motor function in his 
limbs. When he was 14 months old, Ethan's insurance company abruptly 
curtailed his physical therapy, citing the fact that he had only a 50-
percent chance of being able to walk by age 5.
  So talk to Ethan about this. You think this is politics? Talk to 
Ethan. A 50-percent chance of being able to walk by age 5 was deemed, 
quote, ``insignificant,'' and therefore you don't get the medical help 
you need. And some people say: Well, it doesn't matter. Apparently, you 
don't deserve it.
  That is not the way health care ought to be delivered in this 
country. People ought to have basic rights. That is why we call this a 
Patients' Bill of Rights.
  The question, at the end of the day, is: With whom do you stand?
  Do you stand with the managed care companies that have developed 
contracts such as this, that say, ``Medical necessity means the 
shortest, least expensive, or least intensive level of treatment, care, 
or service as determined by us,'' which means that this young child is 
told: Tough luck?
  Or do you stand with the patients and decide that maybe we ought to 
do something, as a country, that responds to real problems and pass a 
real Patients' Bill of Rights?
  A fellow once told me, in my little hometown: You never ought to buy 
something from somebody who is out of breath. There is a breathless 
quality to some of the discussion I have heard tonight. We raise the 
issue of a Patients' Bill of Rights, and instead we hear a discussion 
about the 1993 health care plan. Then we have a substitute that is 258 
pages that kills a lot of trees for nothing. You don't need to

[[Page 12963]]

take up 258 pages to offer an empty plan. Offer one page, and say: We 
don't support a Patients' Bill of Rights. Just be honest about it. But 
do not try to fool the American people any longer.
  It is true we have had a few votes on this. It is also true that 
there is a conference committee that is supposed to be working. But it 
is also true, as Dr. Norwood and other Republican Congressmen said, 
that the time is up and the conference committee has not done a thing.
  No one ever accuses the Congress of speeding. I understand that.
  The PRESIDING OFFICER. All the time of the Senator has expired.
  The Senator from Oklahoma has 1 minute.
  Mr. NICKLES. I will give my colleague an additional minute.
  Let me say, I know he holds up a lot of photographs. I think that is 
a crummy way to legislate. But I will say that every single example he 
mentioned would be covered by external appeal. Those decisions would be 
made by medical experts. We even put in language that they would not be 
bound by the plan's definition of ``medical necessity.'' They would be 
covered.
  Pass the bill. If you want those kinds of examples to be covered, 
pass the bill. We are going to give you a chance to vote on it tonight. 
I might mention, my colleague from Tennessee says: We have a bill that 
is a Patients' Bill of Rights-plus because we provide a lot of things 
for people who cannot afford it. We provide an above-the-line deduction 
to buy health care, so more people can buy health care. The Democrats' 
proposal is going to uninsure millions of Americans.
  We should not do anything that is going to dramatically increase the 
price of health care and uninsure millions of Americans, as their 
proposal would do. We also don't think HCFA, that glorious Federal 
agency they are trying to empower, should be regulating all health care 
in the States.
  I ask unanimous consent for an additional 30 seconds.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. NICKLES. Mr. President, my colleagues have said we are one vote 
short. We are not one vote short. Unless somebody changes the rules of 
the Senate, the Norwood-Dingell bill is going to need a lot more votes. 
It will never pass this session of Congress.
  I yield the floor and ask for the yeas and nays on my amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  Mr. REID. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The yeas and nays have been ordered.
  Mr. REID. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SPECTER. 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. SPECTER. Mr. President, on behalf of the leader, I am announcing 
that there will be no further votes this evening after these two votes. 
I will shortly ask unanimous consent that the debate and votes in 
relation to the following remaining amendments be postponed to occur in 
a stacked sequence beginning at 9:15 a.m. on tomorrow, Friday, with 2 
minutes prior to each vote for explanation. Also in the request is a 
consent that no second-degree amendments be in order to the amendments 
prior to the votes just outlined.
  The amendments are as follows: Wellstone No. 3674, Helms amendment 
regarding school facilities, and we have just added the Harkin 
amendment regarding IDEA.
  I will also ask unanimous consent that following those votes and the 
disposition of the managers' amendment, the bill be advanced to third 
reading and passage occur, all without any intervening action and 
debate.
  Finally, I ask unanimous consent the Senate insist on its amendments 
and request a conference with the House and the Chair appoint the 
entire subcommittee, including the chairman and the ranking member, as 
conferees.
  I hope all of our colleagues will agree to this consent. If not, the 
Senate will be in session late into the day tomorrow concluding this 
bill and beginning the appropriations bill on Interior.
  With that, I now propound the unanimous consent just outlined.
  Mr. REID. Mr. President, if I could ask my friend to add one phrase, 
``any amendments that may not be cleared as part of the managers' 
package.''
  Mr. SPECTER. I make that addition.
  Mr. GRAMM. Reserving the right to object, parliamentary inquiry, Mr. 
President.
  The PRESIDING OFFICER. The Senator from Texas will state his inquiry.
  Mr. GRAMM. Mr. President, as I read this unanimous consent request, 
the phrase ``without intervening business'' suggests to me that 
possibly the point of order that has been set aside against the bill 
could not be raised. I would like to ask if that is the case.
  The PRESIDING OFFICER. The Senator's interpretation is correct.
  Mr. GRAMM. Mr. President, I ask unanimous consent that the request be 
revised to allow me to raise the point of order. I think that was 
always the intention, but I would like to be sure that is the case.
  The PRESIDING OFFICER. Is there objection?
  The unanimous consent request is as amended by the Senator from 
Texas.
  Mr. REID. Mr. President, we just got a call in the Cloakroom. 
Somebody has a problem with this. We will try to take care of it as 
soon as we can. Should we go ahead with the vote?
  Mr. SPECTER. Let us proceed with the vote, Mr. President.
  The PRESIDING OFFICER. The Senator from Pennsylvania withdraws his 
unanimous consent request.
  The question is on agreeing to amendment No. 3694. The yeas and nays 
have been ordered. The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Hawaii (Mr. Inouoye and 
the Senator from Vermont (Mr. Leahy) are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 51, nays 47, as follows:

                      [Rollcall Vote No. 166 Leg.]

                                YEAS--51

     Abraham
     Allard
     Ashcroft
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Cochran
     Collins
     Coverdell
     Craig
     Crapo
     DeWine
     Domenici
     Enzi
     Frist
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Jeffords
     Kyl
     Lott
     Lugar
     Mack
     McConnell
     Murkowski
     Nickles
     Roberts
     Roth
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner

                                NAYS--47

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Bryan
     Byrd
     Chafee, L.
     Cleland
     Conrad
     Daschle
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Fitzgerald
     Graham
     Harkin
     Hollings
     Johnson
     Kennedy
     Kerrey
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Levin
     Lieberman
     Lincoln
     McCain
     Mikulski
     Moynihan
     Murray
     Reed
     Reid
     Robb
     Rockefeller
     Sarbanes
     Schumer
     Specter
     Torricelli
     Wellstone
     Wyden

                             NOT VOTING--2

     Inouye
     Leahy
       
  The amendment (No. 3694) was agreed to.
  Mr. COVERDELL. 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. McCAIN. Mr. President, today the Senate voted on yet another 
proposal for providing patient protections to Americans enrolled in 
HMOs. Unfortunately, this proposal did not provide the strong 
safeguards and protections that I believe each and every American 
deserves to have.

[[Page 12964]]

  This amendment failed on the three key areas for meaningful patient 
protections--fair legal accountability for denied care, the right of 
every American to choose their doctor, and basic patient rights for 
every American not just a limited few.
  Under this amendment only a limited number of Americans would be 
provided with basic patient protections including the right for a woman 
to go directly to an OB/GYN and a parent to take their child directly 
to receive care from a pediatrician. Every American should be protected 
from having their doctors being ``gagged'' by HMO and prevented from 
sharing all health care information with them.
  Another disturbing provision contained in this proposal was the lack 
of legal redress available to an individual if they did not complete 
the internal review process. Under this proposal if a patient died 
during the internal review process--which could take up to 14 days--
then their surviving family would have no legal recourse against the 
HMO that denied or caused harm to the deceased individual. This is 
simply wrong and indefensible.
  While I was disappointed in this proposal there were a few provisions 
that were applaudable and made an important step towards providing 
stronger protections to patients. I appreciated the efforts that were 
made to make the external review process more fair, unbiased and 
accessible. In addition I applaud the attempts made to provide patients 
with the right to sue including a cap on non-economic damages and no 
punitive damages. Both of these are items that I have consistently 
fought for inclusion in a HMO reform bill. People must be provided the 
right to sue for damages once all means have been exhausted but it must 
be done in a manner that does not cause excessive lawsuits and cause 
health care costs to exorbitantly rise.
  I am disappointed that this proposal did not go far enough but I am 
hopeful that a strong patient protection bill can still be passed prior 
to Congress adjourning in the fall. It is the least we can do for 
America's patients.
  Congress still has an excellent opportunity to show the American 
people that it can and will rise above partisan politics and find the 
consensus that serves the national interest and puts the health care 
needs of patients first. This is too important an issue to allow the 
influence of special interests to prevent us from doing what is right 
for all Americans and I am confident that the leaders in both the House 
and Senate will continue working with the conferees to ensure that an 
agreement is reached.


                           Amendment No. 3693

  The PRESIDING OFFICER (Mr. Grams). The question is on agreeing to the 
Dorgan amendment.
  Mr. BREAUX. 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.
  Mr. REID. I announce that the Senator from Hawaii (Mr. Inouye) and 
the Senator from Vermont (Mr. Leahy) are necessarily absent.
  The PRESIDING OFFICER (Mr. L. Chafee). Are there any other Senators 
in the Chamber desiring to vote?
  The result was announced--yeas 47, nays 51, as follows:

                      [Rollcall Vote No. 167 Leg.]

                                YEAS--47

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Bryan
     Byrd
     Chafee, L.
     Cleland
     Conrad
     Daschle
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Fitzgerald
     Graham
     Harkin
     Hollings
     Johnson
     Kennedy
     Kerrey
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Levin
     Lieberman
     Lincoln
     McCain
     Mikulski
     Moynihan
     Murray
     Reed
     Reid
     Robb
     Rockefeller
     Sarbanes
     Schumer
     Specter
     Torricelli
     Wellstone
     Wyden

                                NAYS--51

     Abraham
     Allard
     Ashcroft
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Cochran
     Collins
     Coverdell
     Craig
     Crapo
     DeWine
     Domenici
     Enzi
     Frist
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Jeffords
     Kyl
     Lott
     Lugar
     Mack
     McConnell
     Murkowski
     Nickles
     Roberts
     Roth
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner

                             NOT VOTING--2

     Inouye
     Leahy
       
  The amendment (No. 3693) was rejected.
  Mr. COVERDELL. Mr. 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. Under the previous order, the Senator from 
North Carolina wishes to be recognized to offer an amendment.
  Mr. LOTT. Will the Senator from North Carolina yield so we can get an 
agreement on how to proceed for the remainder of the night?
  The PRESIDING OFFICER. Does the Senator from North Carolina yield?
  Mr. HELMS. I yield.
  Mr. LOTT. Mr. President I want to take a few moments to go over the 
schedule for the remainder of the night and the morning and get a final 
agreement on a unanimous consent request.
  These were the last two votes of the night. We want to complete the 
offering and debating of the remaining amendments that have been 
requested tonight, and then we will have those votes stacked beginning 
at 9:30 a.m., which is a little different from the time earlier 
mentioned. We had discussed 9:15 a.m. and there was a request we do 
that at 9:30 a.m.
  I renew the unanimous consent request regarding the Labor-HHS bill 
which now includes possible votes tomorrow, Friday morning, beginning 
at the amended time, 9:30 a.m., relative to the following issues: a 
Wellstone amendment regarding drug pricing; a Helms amendment regarding 
school facilities; a Harkin amendment regarding IDEA; a Baucus 
amendment regarding impact aid; any amendment that is not cleared 
within the managers' package; disposition of the point of order; and 
final passage of the Labor-HHS appropriations bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LOTT. I thank my colleagues on both sides of the aisle for their 
cooperation.
  Mr. WARNER. Mr. President, may I address my leader?
  Mr. LOTT. I yield to Senator Warner.
  Mr. WARNER. Two things, Mr. President. The distinguished ranking 
member of the Armed Services Committee and I have a package of about a 
dozen amendments which we can clear tonight. They are agreed upon. We 
need to call up the bill.
  Second, we want to discuss with our leadership the possibility of a 
UC which might help move our bill along. Can we give the general 
outline?
  Mr. LOTT. That will be fine.
  Mr. WARNER. It will take but a minute. I ask my distinguished 
colleague to generally outline what we had in mind. I ask him to 
articulate it if he can.
  Mr. LEVIN. The idea would be, after this package of cleared 
amendments is adopted, we would offer a unanimous consent agreement to 
limit the bill to relevant amendments on the list, which would include 
Senator Byrd's amendment on bilateral trade because that probably is 
relevant under any circumstances.
  Mr. WARNER. We think that is relevant, Mr. President.
  Mr. LEVIN. The amendments will have to be on file no later than 
adjournment tomorrow for the recess. Second-degree amendments that are 
relevant would be in order even if they are not filed. This is just 
preliminary. Since the Senator from Virginia asked, I offer this at 
least as a suggestion preliminarily. This is what we are talking about.
  Mr. WARNER. May I add, Senator Dodd has an amendment in there which 
has been cleared.
  Mr. LOTT. Mr. President, if I can respond to the comments, first, I 
want to make very clear I feel strongly we

[[Page 12965]]

should try to find a way to pass this very important Department of 
Defense authorization bill. It has a lot of provisions in it, changes 
in the law we have to get done. We need to do this for our national 
security and for our men and women who serve in our military.
  Senator Daschle and I have talked about the fact we want to work 
together to move it forward. That is one of the many reasons we tried 
to find a way to conclude the disclosure requirements of the section 
527 issue. We have achieved that. That is why I have been working with 
Senator Brownback to find a way to deal with an issue that is very 
important to him, NCAA gaming. We want to get it done.
  What I had in mind was for the managers to continue to work and clear 
as many amendments as they can, and the week we come back--again, I 
have not discussed the details of this with Senator Daschle, so I will 
not agree to anything without us both having a chance to check on both 
sides and clear it. But I was thinking in terms of asking the managers, 
who have done yeoman's work, to be prepared to work on Monday night, 
Tuesday night, or Wednesday night while we do other issues during the 
day. I am hoping one night will do the job but work a couple or three 
nights and complete this bill the week we come back. We are glad to 
work with them toward that goal. We want to get this bill in 
conference. I think Senator Daschle wants to help with that effort.
  Mr. DASCHLE. Mr. President, if I can add my thoughts, I share the 
view expressed just now by the majority leader. We really want to help 
the managers finish their work on this bill. They have been working on 
it now for weeks. We have come a long way.
  The majority leader has also indicated to colleagues who have 
concerns about nonrelevant amendments that we will have an opportunity 
to consider other vehicles immediately following the completion of the 
Defense authorization bill so we will be able to continue this 
procedure of a dual track to allow the consideration of other issues.
  With that understanding, we want to work with the managers to rid 
ourselves of nonrelevant amendments, stick to those amendments which 
are relevant in an effort to, as the leader suggested, finish the bill 
in a matter of a night or two. I commend the managers for the effort 
they have made thus far. We will work with them to see we finish it.
  Mr. WARNER. I thank our respected leaders very much. I told my leader 
and Senator Levin, we will work nights, we will go right straight 
through the evenings and stack such votes that we feel are necessary. 
We will achieve that.
  Mr. LOTT. I yield to the Senator from Kansas.
  The PRESIDING OFFICER. The Senator from North Carolina has the floor.
  Mr. HELMS. I yield to the majority leader.
  Mr. LOTT. I thank the Senator from North Carolina for yielding 
further. I ask his indulgence for a moment so the Senator from Kansas 
can respond.
  Mr. BROWNBACK. Mr. President, I appreciate the majority leader 
mentioning trying to work out the issue on NCAA gaming. I hope we can 
get that worked out and come to a resolution and move the issue 
forward. I want to make sure we get that one taken care of as well.
  Mr. LOTT. I thank my colleagues and yield the floor.
  Mr. DASCHLE. Mr. President, if I can add one other thought.
  The PRESIDING OFFICER. The Senator from North Carolina has the floor.
  Mr. DASCHLE. Will the Senator yield for 30 seconds?
  Mr. HELMS. I yield to the Senator.
  Mr. DASCHLE. Mr. President, I would be remiss if I did not bring up 
also the understanding the leader and I have about further confirmation 
of judges. Obviously, when we come back, that is going to continue to 
be an important matter. The leader has certainly indicated a 
willingness to work with us on that.
  It is also with that understanding that Senator Levin has some very 
important matters, Senator Reid, and others. I appreciate very much the 
majority leader's commitment to work with us on that as well.
  Mr. LOTT. Mr. President, if Senator Helms will yield one second more, 
we are going to confirm some nominations tonight. I do note it is our 
intent after we complete Labor-HHS and the MILCON conference report to 
proceed to the Interior appropriations bill.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from North Carolina.


                           Amendment No. 3697

(Purpose: To prohibit the expenditure of certain appropriated funds for 
 the distribution or provision of, or the provision of a prescription 
                for, postcoital emergency contraception)

  Mr. HELMS. 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 North Carolina [Mr. Helms] proposes an 
     amendment numbered 3697.

  Mr. HELMS. 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:

       At the appropriate place, insert the following:
       Sec. __. (a) None of the funds appropriated under this Act 
     to carry out section 330 or title X of the Public Health 
     Service Act (42 U.S.C. 254b, 300 et seq.), title V or XIX of 
     the Social Security Act (42 U.S.C. 701 et seq., 1396 et 
     seq.), or any other provision of law, shall be used for the 
     distribution or provision of postcoital emergency 
     contraception, or the provision of a prescription for 
     postcoital emergency contraception, to an unemancipated 
     minor, on the premises or in the facilities of any elementary 
     school or secondary school.
       (b) This section takes effect 1 day after the date of 
     enactment of this Act.
       (c) In this section:
       (1) The terms ``elementary school'' and ``secondary 
     school'' have the meanings given the terms in section 14101 
     of the Elementary and Secondary Education Act of 1965 (20 
     U.S.C. 8801).
       (2) The term ``unemancipated minor'' means an unmarried 
     individual who is 17 years of age or younger and is a 
     dependent, as defined in section 152(a) of the Internal 
     Revenue Code of 1986.

  Mr. HELMS. Mr. President, I further ask unanimous consent that it be 
in order for me to deliver my remarks at my seat.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HELMS. I thank the Chair.
  Mr. President, Americans who follow international news will recall 
that the French Government recently created an uproar when it 
authorized its public schools to distribute the post-conception 
morning-after pill to girl students as young as 12 years old.
  I wish parents in our country could be assured that such an 
initiative will never see the light of day in the United States, but no 
such assurance can be made under existing circumstances.
  In fact, when the French Government announced that it would be 
distributing the morning-after pill in French schools, the Alan 
Guttmacher Institute--the research arm of Planned Parenthood--
recommended almost immediately that the United States duplicate the 
Western European's approach in handing out contraceptions to teenage 
girls.
  So, isn't it clear that attempts to distribute the morning-after pill 
in U.S. public schools are indeed underway in planning boards of 
Planned Parenthood?
  Moreover, Americans will be alarmed to learn that Federal law 
currently gives schools the authorization to distribute these morning-
after pills to schoolchildren.
  In fact, the Congressional Research Service confirmed to me that 
Federal law does, indeed, permit the distribution of the morning-after 
pill at school-based health clinics receiving Federal funds designated 
for family planning services.
  Simply put, this means that any school receiving Federal family 
planning money is prohibited by Federal law to place any sort of 
restriction on contraception. Even parental consent requirements.
  In a handful of cases, the Federal courts have struck down parental 
consent laws, ruling that any Federal family planning program trumps a 
State or

[[Page 12966]]

county parental consent statute because Federal law prohibits parental 
consent requirements--even though Federal law says recipients of 
Federal family planning money should ``encourage family 
participation.'' I make this point because so many who oppose placing 
restrictions on contraception--like parental consent requirements--run 
for cover under this language ``encourage family participation'' when 
they know good and well that it means absolutely nothing in a court of 
law.
  Let me reiterate a warning: There is nothing in Federal law to 
prevent the post-conception morning-after pill from being distributed 
on school grounds by clinics receiving Federal funding--regardless of 
whether a parental consent State statute exists.
  That is why I asked the Congressional Research Service to look into 
whether or not school clinics are distributing the morning-after pill. 
What CRS found is that there is some discrepancy to the response to 
this question.
  For example, according to CRS, the National Conference of State 
Legislatures spokesman said there was no knowledge that any school had 
distributed the morning-after pill. Yet, the National Assembly on 
School-Based Health Care--an organization which works closely with 
HHS--told Congressional Research Service that their group has recently 
conducted a national survey of their members, and that the resulting 
data reflected that out of 1,200 schools, 15 percent offer 
contraceptives, including the morning-after pill.
  So, you see, it is not clear as to exactly what is being provided to 
schoolchildren these days. But it is clear that we are not just talking 
about condoms.
  Simply put, Planned Parenthood and its cronies have been given free 
reign to distribute to American schoolchildren whatever they so 
please--to the point where schoolchildren are now being provided 
extremely controversial forms of contraception. And, in my judgment, 
this has gone on far too long.
  That is why I am offering an amendment today that would forbid 
schools from using Federal funds from the Labor, HHS, Education 
appropriations bill to distribute the lawfully given morning-after pill 
in school.
  But before the guardian angels of Planned Parenthood get themselves 
in a tizzy, let me make clear precisely what this amendment will and 
will not do.
  Under the proposed measure, elementary and secondary schools will be 
forbidden to use funds from the Labor, HHS and Education appropriations 
bill to distribute to school children the morning-after pill--which is 
widely considered to be an abortifacient. In fact, many pharmacists 
nationwide have refused to fill prescriptions for the morning-after 
pill because they, too, see it as an abortifacient.
  This amendment will apply only to school clinics on school property.
  Clearly, Congress simply must not ignore the fact that our 
schoolchildren deserve to be protected.
  Mr. President, I ask unanimous consent that two memoranda prepared by 
the Congressional Research Service be printed in the Congressional 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                   Congressional Research Service,


                                          Library of Congress,

                                   Washington, DC, April 26, 2000.
     To: Senator Jesse Helms
     From: Kenneth R. Thomas, Legislative Attorney, American Law 
         Division
     Subject: Application of Parental Consent Requirements to 
         Distribution of Emergency Contraceptives in School-Based 
         Clinics Receiving Federal Funds

       This revised memorandum is in response to your rush request 
     to determine whether state parental notification statutes 
     would apply to the distribution of emergency contraceptives 
     at a school-based clinic which receives federal funds. 
     Specifically, you requested an evaluation of whether state 
     parental notification statutes, regulations or policies which 
     applied to federally funded clinics distributing 
     contraceptives would be preempted.
       In a series of cases in the mid-1980's, various federal 
     courts reviewed the application of parental notification 
     requirements to federally funded programs which distributed 
     contraception. In general, the courts found that the 
     application of parental notification statutes to federally 
     funded programs to provide contraception resulted in the 
     frustration of the federal purpose of the statutes, and 
     consequently the courts invalidated such restrictions.
       There is currently no federal prohibition on the 
     distribution of emergency contraceptives at school-based 
     clinics.
       If I can be of further assistance, please contact me at 7-
     5863.
                                  ____

                                   Congressional Research Service,


                                          Library of Congress,

                                   Washington, DC, April 12, 2000.

     To: Honorable Jesse Helms.
     From: Technical Information Specialist, Domestic Social 
         Policy Division.
     Subject: School-Based Clinics.
       Your office requested a memorandum describing policies of 
     school-based clinics for distributing emergency 
     contraceptives (more commonly known as the morning-after 
     pill), including the number of schools estimated to be 
     offering emergency contraception, and any existing federal 
     prohibitions.
       We contacted three different groups for this information:
       (1) The National Assembly on School-Based Health Care 
     informed us that their group has recently conducted a 
     national survey of their members and that data reflected that 
     out of 1200 schools, 77% do not offer contraceptives, 15% 
     offer contraceptives, including emergency contraceptives, and 
     the remaining 8% offer contraceptives, but not emergency 
     contraceptives. The schools offering contraceptives are 
     middle schools and high schools. The information is not yet 
     available for publication.
       (2) The National Conference of State Legislatures informed 
     us that they currently have no knowledge of any schools 
     distributing emergency contraceptives through school-based 
     health clinics.
       (3) The Healthy Schools/Healthy Communities (HSHC) Program, 
     Health Resources and Services Administration, Department of 
     Health and Human Services informed us that HSHC does not 
     provide direct dollars for specialized services, such as 
     emergency contraceptives, but does support school-based 
     programs that provide full and comprehensive health services. 
     HSHC is administered as a discretionary program under the 
     Health Centers program, Section 330 of the Public Health 
     Service Act. Section 330 allows the provision of voluntary 
     family planning services at health centers.

  Mr. HELMS. 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. HELMS. Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. WELLSTONE. I say to my colleague from North Carolina, is he 
finished with his prepared remarks on his amendment?
  Mr. HELMS. Yes, I am.
  Has the Chair ruled on the yeas and nays?
  The PRESIDING OFFICER. The yeas and nays have been ordered.
  Mr. HELMS. They have been ordered.
  Mr. President, I am advised I should ask unanimous consent that this 
amendment of mine be laid aside and the vote be put in regular order 
tomorrow morning. I ask unanimous consent that that be the case.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HELMS. I thank the Chair and yield the floor.


                           Amendment No. 3698

 (Purpose: To provide for a limitation on the use of funds for certain 
      agreements involving the conveyance or licensing of a drug)

  Mr. WELLSTONE. 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 Minnesota [Mr. Wellstone], for himself and 
     Mr. Johnson, proposes an amendment numbered 3698.

  Mr. WELLSTONE. 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:

       On page 92, between lines 4 and 5, insert the following:
       Sec. __. (a) Limitation on Use of Funds for Certain 
     Agreements.--Except as provided in subsection (b), none of 
     the funds made available under this Act may be used by the 
     Secretary of Health and Human Services to enter into--
       (1) an agreement on the conveyance or licensing of a patent 
     for a drug, or on another exclusive right to a drug;
       (2) an agreement on the use of information derived from 
     animal tests or human clinical

[[Page 12967]]

     trials that are conducted by the Department of Health and 
     Human Services with respect to a drug, including an agreement 
     under which such information is provided by the Department to 
     another Federal agency on an exclusive basis; or
       (3) a cooperative research and development agreement under 
     section 12 of the Stevenson-Wydler Technology Innovation Act 
     of 1980 (15 U.S.C. 3710a) pertaining to a drug, excluding 
     cooperative research and development agreements between the 
     Department of Health and Human Services and a college or 
     university.
       (b) Exceptions.--Subsection (a) shall not apply to an 
     agreement where--
       (1) the sale of the drug involved is subject to a price 
     agreement that is reasonable (as defined by the Secretary of 
     Health and Human Services); or
       (2) a reasonable price agreement with respect to the sale 
     of the drug involved is not required by the public interest 
     (as defined by such Secretary).
       (c) Rule of Construction.--Nothing in this section shall be 
     construed to apply to any agreement entered into by a college 
     or university and any entity other than the Secretary of 
     Health and Human Services or an entity within the Department 
     of Health and Human Services.

  Mr. WELLSTONE. Mr. President, I offer this amendment on behalf of 
myself and Senator Johnson from South Dakota.
  I am just going to take 1 minute to summarize this amendment, I say 
to my colleagues, and then Senator Johnson will proceed, and then I 
will come back to the amendment.
  Mr. President, if you just look right here at this chart, it is very 
interesting. Tamoxifen and Prozac are two widely used drugs. Look at 
the difference between what the United States citizens pay for a vial 
versus what people in Canada pay.
  In our country, a United States citizen pays $241 for tamoxifen; $34 
in Canada. For Prozac, in this country it is $105; in Canada, it is 
$43.
  What this amendment says--and I want to go back to Bernadette Healy's 
leadership at NIH. What this amendment says is that what Ms. Healy did 
is the right thing to do, which is to say to the pharmaceutical 
companies, when the NIH does the research, and then the patent is 
handed over to a pharmaceutical company, that pharmaceutical company--
since we put the taxpayer dollars into the research--should at least 
agree to provide citizens in this country with a decent, affordable 
charge; that the pharmaceutical company should agree to an affordable 
price or a reasonable price which is defined specifically by the 
Secretary of Health and Human Services.
  Again, this amendment says that pharmaceutical companies that 
negotiate an agreement with NIH--NIH is doing the research, helping 
out, the drug is then developed, the pharmaceutical company now has the 
patent--must sign an agreement to sell the drug at a reasonable price.
  I do not think it is unreasonable from the point of view of your 
constituents and my constituents, people in this country who pay the 
taxes and support our Government, who feel just a little bit ripped off 
by the prices today, that if we are going to put our taxpayer dollars 
into the research and into the support and then the pharmaceutical 
companies are going to get a patent, at the very minimum they ought to 
be willing to sell the drug to people in our country at a reasonable 
price defined by the Secretary of Health and Human Services.
  This amendment is all about corporate welfare at its worst. It is 
about being there for consumers. It is about assuring people that their 
taxpayer dollars are contributing toward some research that will in 
turn contribute toward affordable drugs for themselves and their 
children.
  I yield the floor to my colleague, Senator Johnson of South Dakota.
  The PRESIDING OFFICER. The Senator from South Dakota.
  Mr. JOHNSON. Mr. President, I am pleased to join my colleague from 
Minnesota, extending strong support for his amendment.
  Very simply, this amendment would require that when companies receive 
federally funded drug research or a federally owned drug, the benefits 
of that research or drug be made available to the public on reasonable 
terms through what is called a ``reasonable pricing clause.''
  This issue first surfaced during the Bush administration, in fact, 
when the NIH insisted that cooperative research agreements contain a 
reasonable pricing clause that would protect consumers from exorbitant 
prices of products developed from federally funded research.
  Two weeks ago, during floor debate in the other body on the Labor, 
Health and Human Services, and Education appropriations bill, a very 
similar amendment to this one was offered and overwhelmingly accepted 
by nearly three-quarters of the House of Representatives in a 
bipartisan vote.
  The circumstances we face today are extraordinary. As an example, 
between 1955 and 1992, 92 percent of drugs approved by the FDA to treat 
cancer were researched and developed by the taxpayers through the NIH. 
Today many of the most widely used drugs in this country dealing with a 
variety of critical illnesses such as AIDS, breast cancer, and 
depression were developed through the use of taxpayer-funded NIH 
research. The Federal Government funds about 36 percent of all medical 
research.
  The unfortunate scenario for American taxpayers is that oftentimes 
this drug research, done at their expense, is frequently used then by 
the pharmaceutical industry with no assurance that American consumers 
will not be charged outrageously high prescription drug prices.
  Take the drug Taxol, for instance. The NIH spent 15 years and $32 
million of our money, taxpayer money, to develop Taxol, which is a 
popular cancer drug used for breast, lung, and ovarian cancers. 
Following the development of Taxol, the drug manufacturer was awarded 
exclusive marketing rights on the drug, and Taxol is now priced at 
roughly 20 times what Taxol costs the manufacturer to produce. So a 
cancer patient on Taxol will pay $10,000 a year while it only costs the 
drug company $500.
  As reported by Fortune 500 magazine earlier this year, the 
pharmaceutical companies once again represent the most profitable 
sector of the American economy. On top of that, we are seeing drug 
prices soaring at unimaginable rates year after year. In the United 
States, drug spending is growing at more than twice the rate of all 
other health care expenditures. Furthermore, Americans are paying far 
more for prescription drugs than do the people in any other Western 
industrialized Nation--many of these drugs manufactured in the United 
States and the research having been conducted through American taxpayer 
dollars.
  As an example, tamoxifen, a widely prescribed drug for breast cancer, 
recently received federally funded research and numerous NIH-sponsored 
clinical trials. Yet today the pharmaceutical industry charges women in 
this Nation 10 times more than they charge women in Canada for a drug 
widely developed with U.S. taxpayer support.
  The evidence has shown that the pharmaceutical companies are charging 
enormously high rates for drugs developed with the help of taxpayer 
money. Americans then are forced to pay twice for lifesaving drugs: 
first as taxpayers to develop the drug, and then as a consumer to 
bolster pharmaceutical profits. Once again, who is hurt most by this? 
As one would expect, these costs fall hardest on those most vulnerable 
and least able to bear the burden, such as cancer patients, AIDS 
patients, and the elderly.
  We have to put an end to the giveaway of billions of taxpayer dollars 
to finance drug research that goes on without any assurance whatsoever 
that the American taxpayers will not see a reasonable return on their 
investment in terms of affordable prescription drug prices.
  I appreciate that this amendment may not be the silver bullet that 
solves all of the problems of assuring the American public they are 
receiving the return on their investment that they deserve. But it does 
serve as an important message that this Congress is here to protect the 
millions of American consumers who have invested their money in 
research to develop drugs that they now cannot afford to buy. 
Furthermore, it shows we are here to

[[Page 12968]]

fight for affordable prescription drugs for every American in this 
Nation.
  This is one part of an overall strategy that this Congress needs to 
enact to assure that we have equity, to assure that we have tax 
fairness, and to assure that we maximize the number of people in 
America who can afford their prescriptions.
  I urge my colleagues to vote for passage of this critically important 
amendment tomorrow when the vote is taken on this amendment. I commend 
and applaud my colleague from Minnesota for his work in crafting this 
amendment and bringing it before the body.
  Mr. WELLSTONE. Mr. President, I thank the Senator from South Dakota. 
Again, the amendment says that when the pharmaceutical companies 
negotiate an agreement with the NIH to develop and market a drug based 
on taxpayer-financed research, there must be an agreement signed by the 
pharmaceutical companies that they will sell the drug at a reasonable 
price.
  This is an eminently reasonable amendment. This amendment does not 
cover extramural NIH research grants, such as grants to universities. 
It does not cover grants to universities. It does not establish a 
health care price control scheme.
  This amendment will reinstate the Bush administration's reasonable 
pricing clause which was in effect from 1989 to 1995. This amendment 
directs the Secretary of Health and Human Services to determine what is 
a reasonable price. This amendment gives the Secretary flexibility to 
waive the pricing clause if it is in the public interest to do so.
  As my colleague from South Dakota pointed out, a similar amendment, 
which was introduced by Congressmen Sanders, Rohrabacher, DeFazio, and 
others passed the House of Representatives by a 3-to-1 margin, 313 to 
109. It is because people in the country feel ripped off by this 
industry. People in the country believe that the prices should be more 
reasonable. Certainly our constituents believe that if we are going to 
be funding some of the research and these companies are going to 
benefit from our taxpayer dollars, then there ought to be an agreement 
that these companies are going to be willing to charge us a reasonable 
price. That is not too much to ask.
  This amendment is supported by Families U.S.A., the National Council 
of Senior Citizens, and the Committee to Preserve Social Security and 
Medicare.
  I ask unanimous consent that their letters be printed in the Record.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:

                                                 Families USA,

                                                   Washington, DC.
     Senator Paul Wellstone,
     Washington, DC.
       Dear Senator Wellstone: We applaud your amendment that 
     would require that a price agreement be part of agreements 
     between NIH and companies who do research on new drugs.
       Currently, once NIH has successfully developed a new drug 
     it signs over the commercial rights to pharmaceutical 
     companies that charge American consumers as much as they 
     want. Americans are forced to pay twice for lifesaving drugs, 
     first as taxpayers to develop the drug and then as consumers 
     to the drug companies for the product. These costs fall 
     hardest on those least able to bear the burden such as 
     seniors and the uninsured, although all consumers wind up 
     paying more than they should have to.
       Your amendment would help correct this burdensome 
     situation. Please let us know how we can help make this 
     amendment in law.
           Sincerely,
                                                Ronald F. Pollack,
     Executive Director.
                                  ____

                                                  National Council


                                           of Senior Citizens,

                           Silver Spring, Maryland, June 29, 2000.
     Senator Paul Wellstone,
     Washington, DC.
       Dear Senator Wellstone: The National Council of Senior 
     Citizens fully supports your amendment to the FY 2001 Labor 
     HHS appropriations bill to require that the Federal 
     government negotiate a reasonable and fairer price for all 
     drugs developed with public funds. The Federal government has 
     for too long sold its most precious research findings for a 
     mess of pottage to the pharmaceutical cartels. The drug 
     companies, in turn, sell these findings back to the American 
     people at unconscionably high retail prices. Pharmaceutical 
     retail price reform must start at the source--where public 
     drug research and development investment has borne fruit.
       Your bill defines the public interest as requiring hard 
     bargaining by the N.I.H. in behalf of the public when selling 
     patents to drug companies. We also note that your amendment 
     only covers intramural N.I.H. research. We call on your 
     colleagues to support this needed amendment.
           Sincerely,
                                                     Dan Schulder,
     Director, Legislation & Public Affairs.
                                  ____

                                    National Committee to Preserve


                                 Social Security and Medicare,

                                    Washington, DC, June 29, 2000.
     Hon. Paul Wellstone,
     U.S. Senate, Washington, DC.
       Dear Senator Wellstone: It has come to our attention that 
     the Senate is likely to consider H.R. 4577, an amendment to 
     the Labor, Health and Human Services, and Education 
     appropriations bill. The amendment would require drug 
     companies to sell drugs at a reasonable price if the drugs 
     were developed based on intramural research done by the 
     National Institute of Health. On behalf of the members and 
     supporters of the National Committee to Preserve Social 
     Security and Medicare, I strongly support your proposed 
     amendment.
       When pharmaceutical companies build on NIH research they 
     are using taxpayer money. A Congressional Joint Economic 
     Committee report revealed that seven out of the top 21 most 
     important drugs introduced between 1965 and 1992 were 
     developed with federally funded research. Taxpayers deserve 
     some return on their investment in terms of lower prices. 
     This amendment will help to ensure that.
       We appreciate your leadership on this important issue.
           Sincerely,
                                                Martha A. McSteen,
                                                        President.

  Mr. WELLSTONE. I will quote from Ron Pollack, executive director of 
Families U.S.A.:

       Currently, once NIH has successfully developed a new drug 
     it signs over the commercial rights to pharmaceutical 
     companies that charge American consumers as much as they 
     want. Americans are forced to pay twice for lifesaving drugs, 
     first as taxpayers to develop the drug and then as consumers 
     to the drug companies for the product. These costs fall 
     hardest on those least able to bear the burden such as senior 
     citizens and the uninsured, although all consumers wind up 
     paying more than they should have to.

  I want to simply quote from a piece in the New York Times from April 
23, which challenged the drug industry's contention that R&D cost 
justify the prices they charge the American consumer. That is what we 
keep hearing, that it is the R&D cost. That is why they have to charge 
so much. I quote from the New York Times piece of April 23:

       The industry's reliance on taxpayer-supported research--
     characterized as a ``subsidy'' by the very same economists 
     whose work the industry relies on--is commonplace, the 
     examination also found. So commonplace, in fact, that one 
     industry expert is now raising questions about the companies' 
     arguments.
       The expert, Dr. Nelson Levy, a former head of research and 
     development at Abbott Laboratories, who now works as a 
     consultant for industry and the Federal Government on drug 
     development, bluntly challenged the industry's oft-repeated 
     cost of developing the drug. ``That it costs $500 million to 
     develop a drug,'' Dr. Levy said in a recent interview, ``is a 
     lot of bull.''

  Finally, the examination found that Federal officials have abandoned 
or ignored policies that could have led to lower prices for medicines 
developed with taxpayer dollars. That is partly because the Government 
has lost track of what drugs have been invented with its money, and 
partly, officials say, because the industry has resisted any Government 
effort to insist that they charge people--our constituents--a 
reasonable price. As Dr. Bernadine Healy, a former Director of the NIH, 
said in a recent interview, ``We sold away Government research so 
cheap.''
  Again, it is not a new issue. During the Bush administration, the 
NIH, from 1989 to 1995, insisted there be some reasonable pricing 
clause. There was heavy pressure from the pharmaceutical industry. They 
abandoned this practice. We are saying that we ought to be going back 
to it.
  There are multiple factors contributing to the prescription drug cost 
crisis in our country today. I realize that

[[Page 12969]]

this reasonable pricing clause is not a panacea for these egregiously 
high drug costs for America's seniors--and, for that matter, for 
families in our country--but this amendment makes it clear the Congress 
will not allow taxpayers to spend all of the money for this kind of 
research and then not get any kind of break in return.
  For the most part, most of the drugs that are developed with taxpayer 
money are then given over to the pharmaceutical industry with no 
assurance whatsoever that Americans will not be charged outrageously 
high prices--in fact, no assurance that they won't be charged the 
highest prices in the world. Tamoxifen is a very important drug to 
women struggling with breast cancer. This is what a prescription costs 
that is getting filled. In Canada, it is $34. In the United States, it 
is $241. Prozac is $43 in Canada, and in the U.S. it is $105.
  Here is the next chart. This amendment will ensure that we get some 
fair return on our investment and that we don't get the highest prices 
for medications in the world. Let me restate that. I don't think it 
ensures that, but it can only help. I have given some examples up here. 
Let me simply point out to colleagues that the cost of prescription 
drugs has skyrocketed. Our people in this country this past year paid 
17 percent more.
  Let me also point out that we are paying the highest costs for 
pharmaceutical drugs of any people anywhere in the world-- exorbitant 
prices. I have this chart--The Fleecing of America--just to look at 
some of the profits of companies. Let me give some examples: 
entertainment companies, $4.2 billion; airline companies, $4.7 billion; 
oil companies are doing pretty well right now at $13.6 billion; auto 
companies, $15.4 billion; the drug companies, $20 billion.
  As the Fortune 500 magazine said, this past year has been a 
``Viagra'' kind of year for these drug companies. But do you know what. 
It is the consumers who paid the price. We are charged the highest 
prices of any country in the world, and I think it is time to say to 
the pharmaceutical companies that enough is enough.
  This industry has opposed every measure that has been introduced in 
this Congress to try to lower prices and to provide a decent 
prescription drug benefit to senior citizens. Frankly, I hate talking 
about it in terms of senior citizens because there are a lot of working 
families being hurt by this.
  I think the amendment we have introduced tonight is a small step, but 
I think it is a step in the right direction. It is not unreasonable to 
say to these companies that if we are going to finance the research, if 
NIH is going to do the research, if you are going to get valuable data 
and information from NIH to use to develop your drugs, and you are 
going to get the patent, at the very least you have to agree to charge 
a reasonable price.
  That is all this amendment says. This is what we did under Dr. 
Healy's leadership. The pharmaceutical companies hated it. They were 
able to knock it out sometime around 1995. But do you know what. A lot 
has changed, I say to Democrats and Republicans alike, since 1995. 
People in our States are absolutely furious about the prices they are 
being charged by the pharmaceutical industry. This industry has 
basically become a cartel. I wish there were a lot of free enterprise. 
I wish there were a lot of competition. But that is not so. They 
basically have administered prices; they basically have price gouged; 
and they have made an immense amount of profit--an exorbitant amount of 
profit--based upon the sickness and misery and illness of people. That, 
in and of itself, is an obscene proposition.
  This amendment goes after the worst of corporate welfare. This 
amendment is eminently reasonable, and I hope that my colleagues will 
support it.
  Again, I point out the support of Families U.S.A. I think I will read 
from the letter of the National Council of Senior Citizens:

       The National Council of Senior Citizens fully supports your 
     amendment to the FY2001 Labor HHS appropriations bill to 
     require that the Federal government negotiate a reasonable 
     and fairer price for all drugs developed with public funds.

  Ask the people back home. Do any of our constituents think it is 
unreasonable for us to ask these companies that benefit from our 
taxpayer dollars and benefit from Government research to charge our 
citizens, our constituents, a reasonable price?
  They go on to say:

       The Federal Government has for too long sold its most 
     precious research findings for a mess of pottage to the 
     pharmaceutical cartels. The drug companies, in turn, sell the 
     findings back to the American people at unconscionably high 
     retail prices. Pharmaceutical retail price reform must start 
     at the source--where public drug research and development 
     investment has borne fruit.

  Finally, from the National Committee to Preserve Social Security and 
Medicare:

       On behalf of the members and supporters of the National 
     Committee to Preserve Social Security and Medicare, I 
     strongly support your proposed amendment.
       When pharmaceutical companies build on NIH research they 
     are using taxpayer money. A Congressional Joint Economic 
     Committee report revealed that seven out of the top 21 most 
     important drugs introduced between 1965 and 1992 were 
     developed with federally funded research. Taxpayers deserve 
     some return on their investment in terms of lower prices. 
     This amendment would help to ensure that.

  This amendment would help to ensure that, and I don't know why the 
Senate tomorrow morning cannot go on record saying that when we, a 
Government agency supported by taxpayer dollars, by our constituents, 
do the research, provide the data, provide the information to these 
companies, which in turn get a patent for the drug, those companies 
will sign an agreement that they will charge the citizens in this 
country a reasonable price.
  They make all the arguments about how they need all of these 
exorbitant profits for their research. But there is not a shred of 
evidence to support that. Their profits are so exorbitant that it goes 
way beyond any cost of research. We all know that. That is what is 
behind the record profits they make.
  They make these arguments that I cannot believe--that if NIH is going 
to force us to sign an agreement, since we benefit from your research 
and the taxpayer money, we will charge people a reasonable price, then 
we may not even be willing to do this research. That is blackmail, or 
white mail, or whatever you want to call it. It is outrageous. These 
companies dare to say to the NIH--or dare to say to the Government, or 
to our constituents--if the Government says to the pharmaceutical 
companies that get the research dollars, do the work and research and 
get the patent, that they should charge a reasonable price, we might 
not do the research at all, enough is enough.
  My final point: I think this is a reform issue as well. I think 
Senators vote their own way. But, honest to God, I think, at least 
speaking as a Senator from Minnesota, I am just tired of the way in 
which--if Fanny Lou Hammer were on the floor she would say ``sick and 
tired''--this industry pours the dollars in, makes these huge 
contributions, has all of these lobbyists, has all of this political 
power, and is so well represented to the point where they believe they 
run the Congress. They do not.
  This amendment with very similar language passed the House of 
Representatives by a huge margin. Very similar language, the same 
proposition, and the same subject matter passed the House of 
Representatives by a huge margin.
  I hope tomorrow on the floor of the Senate there will be a strong 
vote for this amendment that I bring to the floor with Senator Johnson 
of South Dakota.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, it is just simply wrong that Americans are 
forced to pay extraordinarily high prices for prescription drugs and 
then have to cross the border to Canada and Mexico to buy those drugs 
manufactured in the United States at far lower prices. It is simply 
wrong. But it is doubly wrong when the U.S. taxpayers have paid for 
part of the research that produced those very same prescription drugs.

[[Page 12970]]

  Many of us have constituents who go to Canada just for this purpose; 
they are unable to afford prescription drugs here in the United States. 
Sometimes they go great distances to cross the border to Canada or to 
Mexico in order to buy prescription drugs at prices they can afford.
  We did a survey of a number of prescription drugs. These are seven of 
the most popular prescription drugs. We took a look at those seven 
drugs and then did a survey of the cost of those prescription drugs in 
Michigan and in Ontario across the border. Premarin, $23.24 in 
Michigan, $10.04 in Ontario; Synthroid, $13 compared to $8; Prozac, $82 
compared to $43; Prilosec, $111 compared to $48; Zithromax, $48 
compared to $28; Lipitor, $63 compared to $42; Norvasc, $76 compared to 
$41.
  When particularly seniors--sometimes by the busload--gather together, 
drive to a border point, and cross the border to get a 30- or 60-day 
supply of prescriptions, and then come back into Michigan or other 
States with prescription drugs that they cannot afford to buy in their 
own hometown, something is fundamentally wrong with that system.
  These are the percentages of those top seven drugs. The U.S. prices 
are above the Canadian prices based on that survey. That was a survey 
of prices in Detroit compared to Ontario across the border.
  For the first one, Premarin, the U.S. price is 131 percent higher 
than the Canadian price; Synthroid is 63 percent higher than for 
Ontario purchasers; Prozac is 878 percent higher for Americans than for 
Canadians; Prilosec is 132 percent higher; for Zithromax, Americans are 
paying 674 percent more than Canadians; Lipitor is 51 percent more than 
for Canadians; and Norvasc is 783 percent more than for Canadians.
  That is unconscionable. It is wrong. It is infuriating. It is costly. 
We have to do something to change the system that allows this to 
happen. But it is doubly wrong when U.S. taxpayers have paid for part 
of the research that produced those very same prescription drugs.
  I don't know which of these particular prescription drugs were 
produced with U.S. taxpayer dollars or partly with U.S. taxpayer 
dollars. I don't have that data. But that is not the point of the 
amendment of the Senator from Minnesota. For the drugs produced with 
U.S. taxpayer dollars, there should be an agreement that the 
manufacturer will charge a fair price as determined by the Department 
of Health and Human Services.
  That is a very reasonable approach, it seems to me. There are other 
approaches which have been suggested to address this issue. I think 
there are other approaches also worthy of consideration. But the 
approach before us today is an approach which I believe is eminently 
fair, which simply says if you want to use taxpayer dollars in your 
research, that you make sure your pricing system is fair to Americans 
who helped to fund that very research.
  I hope we will adopt the amendment of the Senator from Minnesota. I 
think it is a fair approach. It is based on the contribution Americans 
have made to the creation of the very prescription drugs which too many 
Americans find they cannot afford.
  We want pharmaceutical companies to be profitable. We want 
pharmaceutical companies to engage in robust research and development. 
But we do not and should not, as Americans, pay the share of research 
and development that consumers in other countries should be 
shouldering. We can't afford to subsidize other countries, and it is 
particularly wrong where we have originally done some of the subsidy of 
the very research and development which produced the drug which is now 
sold for so much less in those other countries.
  I commend the Senator from Minnesota. I support his amendment. I hope 
we will adopt it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. WELLSTONE. Mr. President, I thank the Senator from Michigan for 
his remarks. I am very proud to have his support.


                           Amendment No. 3699

                     (Purpose: To fully fund IDEA)

  Mr. HARKIN. Mr. President, I send my amendment to the desk on the 
Individuals With Disabilities Education Act.
  The PRESIDING OFFICER. The pending amendment is laid aside. The clerk 
will report the amendment.
  The assistant legislative clerk read as follows:

       The Senator from Iowa [Mr. Harkin], for himself, and Mr. 
     Wellstone, proposes an amendment numbered 3699.

  Mr. HARKIN. 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:

       On page 60, line 16, strike ``$7,357,341,000'' and insert 
     ``$15,800,000,000''.
       On page 60, line 19, strike ``$4,624,000,000'' and insert 
     ``$13,071,659,000''.

  Mr. HARKIN. Mr. President, this is a very simple amendment. It is 
very straightforward. It does not include a lot of pages of text. All 
it does is fully fund the Individuals With Disabilities Education Act. 
By passing this amendment, we meet our goal of paying 40 percent of the 
average per pupil expenditure.
  For years, many on both sides of the aisle have agreed that the 
Federal Government should increase our support for States' efforts to 
provide children with disabilities a free and appropriate public 
education. With this amendment we can do just that.
  Congress enacted the Education for All Handicapped Children Act, 
which is now known as IDEA, for two reasons. To establish a consistent 
policy of what constitutes compliance with the equal protection clause 
of the 14th amendment with respect to the education of kids with 
disabilities, and to help States meet their constitutional obligations.
  Mr. President, I ask unanimous consent to add Senator Wellstone as a 
cosponsor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HARKIN. Mr. President, there has been a lot of misperception 
about IDEA. That misperception is amplified in statement after 
statement until it almost becomes a state of fact that IDEA is a 
Federal mandate on the States. I hear it all the time: a Federal 
mandate that is not fully funded.
  IDEA is not a mandate of the Federal Government on the States. The 
fact that the Federal courts have said if a State provides a free and 
appropriate public education to its children--and States don't have to 
do that--but if a State provides a free and appropriate public 
education for all of its kids, it cannot discriminate on the basis of 
race, it cannot discriminate on the basis of sex, or national origin, 
and in two court cases the court said it cannot discriminate on the 
basis of disability.
  Simply because a child has a disability doesn't relieve the State of 
its obligation under the equal protection clause to provide that child 
a free and appropriate public education.
  In 1975, the Congress said because this would be such a burden on the 
States, we will pass national legislation to help the States meet their 
constitutional obligation to educate kids with disabilities. That is 
what IDEA is. The Federal Government said, OK, if you meet these 
certain requirements, you will be eligible for IDEA for this money. If 
we had no legislation at all, if there were no Individuals With 
Disabilities Education Act, the States would still have to fund the 
education of kids with disabilities--not because the Federal Government 
says so, but because the Constitution of the United States says so. As 
long as a State is providing a free public education to other kids, 
they have to provide it to kids with disabilities. It is not a Federal 
mandate. It is a constitutional mandate.
  We have said in the Federal Government, when we passed IDEA, we will 
help. Furthermore, we said in the authorizing legislation, that it 
would be a goal of the Federal Government to provide for 40 percent of 
the cost of the average per pupil expenditure for all other kids. We 
have never reached that

[[Page 12971]]

40 percent. It was a goal then. It is still a goal. Senators on both 
sides of the aisle talked about meeting this goal. Now we have the 
opportunity to do so.
  My amendment is a win-win situation for everyone. We are able to 
fully fund both the IDEA and our general education priorities so that 
all kids, with and without disabilities, get the education they deserve 
and they are guaranteed by the Constitution of the United States.
  Over the past 5 years, I have worked hard with my colleagues on the 
Appropriations Committee to more than double the appropriation for Part 
B of IDEA. This year we have included an additional $1.3 billion. 
Senator Specter and I, in a bipartisan fashion, worked very hard to get 
this increase. Because of the amendment offered by Senator Jeffords 
yesterday and the statements made on the floor, it became clear to me 
that there is a strong will on both sides of the aisle to fully fund 
IDEA to meet that 40-percent obligation.
  Now we can step up to the plate and do it. This week the OMB informed 
us that the non-Social Security surplus will reach up to $1.9 trillion 
over the next 10 years. I believe we ought to use these good economic 
times to prepare for the future.
  So, Mr. President, as I said, OMB has informed us we are going to 
have $1.9 trillion over the next 10 years in non-Social Security 
surplus. That means we can use some of this for a lot of different 
things: Pay down the national debt, shore up Social Security, Medicare, 
and make appropriate investments in education. One of the most 
appropriate investments we can make is to fully fund the Individuals 
with Disabilities Education Act. But there are a lot of other ways we 
can help pay for this. For example, we could save dollars by cracking 
down on Medicare waste fraud and abuse. The HHS Inspector General said 
last year, Medicare made $13.5 billion in inappropriate payments. 
Eliminating that waste alone would more than pay for the entire IDEA 
expenditure. Yet the House-passed Labor-HHS bill actually cuts the 
funding for detecting waste, fraud and abuse. I hope we can take care 
of that in conference. My point is we have a lot of waste, fraud, and 
abuse in Medicare we can cut out to help pay for this.
  We have a lot of other things we can do also: Cutting out Radio 
Marti, and TV Marti; spending by Government agencies on travel, 
printing and supplies and other items could be frozen. This could save 
$2.8 billion this year, about $12 billion over 5 years. Pentagon 
spending could be tied to the rate of inflation. This would force the 
Pentagon to reduce duplication and other inefficiencies. This change 
would save taxpayers $9.2 billion this year alone; $69 billion over 5 
years. Enhancing the Government's ability to collect student loan 
defaults would be $1 billion over 5 years.
  The reason I cite these examples is to show there is a lot of waste 
and a lot of spending we can tighten down on to help pay for IDEA. We 
have the surplus, however. All this money that we found out there--as 
we go through this year, you wait and see, transportation will take a 
little bit of that money; housing will take a little bit of that money; 
defense will take a big chunk of that; the Finance Committee will have 
tax provisions--they want to do away with all the estate taxes now. 
That will take away a big chunk. I hope we don't pass it but I assume 
something will come through.
  There is a big surplus out there and bit by bit special interests are 
going to come and take some of it away. Now is our time to get in there 
and say we are going to take enough to fully fund the Individuals with 
Disabilities Education Act. We can do it. We have the money to do it. 
And, if I listened correctly to my friends on both sides of the aisle, 
we seem to have the will to do it.
  I just point out a range of organizations fully support full funding. 
It is one of the National Governors' Association top priorities. The 
Education Task Force of the Consortium for Citizens With Disabilities 
advocates full funding. The National School Boards Association just 
sent me a letter last week requesting an increase in funding for IDEA.
  In January of 1997 the majority leader, Senator Lott, announced that 
fully funding IDEA was a major component of the Republican agenda. 
Later, Senator Gorton said that failure to fully fund IDEA is 
fundamentally wrong--Congressional Record, May 13, 1997.
  In January of 1998 the majority leader and other Republican Senators 
held a major press conference to announce they were going to introduce 
a bill, S. 1590, that would, among other things, fully fund IDEA.
  Senator Coverdell said the resolution of the issues in that bill 
were:

       As important a battle as the country has ever dealt with.

  On his Web site, Senator Gregg from New Hampshire, who has always 
been a proponent of fully funding IDEA said that:

       He will continue to lead the fight to have the Federal 
     Government meet its commitment to fund 40 percent of the 
     special education costs.

  On his Web site, Senator Santorum of Pennsylvania supports full 
funding for IDEA.
  Last night, Senator Voinovich of Ohio said it is about time we paid 
for 40 percent of IDEA. That was last night.
  And last night Senator Jeffords, with whom I have worked many years 
on this issue, said:

       This body has gone on record in vote after vote that we 
     should fully fund IDEA.

  Senator Jeffords also said:

       If we can't fully fund IDEA now with budget surpluses and 
     the economy we have, when will we do it? I do not believe 
     that anyone can rationally argue that this is not the time to 
     fulfill that promise.

  The reason I opposed the Jeffords amendment last night, and I said so 
openly last night in debate, is because his amendment would have taken 
money out of class-size reduction and out of funding for school 
modernization and construction to fund IDEA. I said we should not be 
robbing Peter to pay Paul. We need to reduce class sizes. We need 
school construction money.
  In fact, some of the biggest beneficiaries of school construction and 
modernization are kids with disabilities.
  Now we have an opportunity to fully fund IDEA because we have these 
big surpluses, as I said, $1.5 trillion on-budget surpluses over the 
next 10 years, not counting Social Security. To fully fund IDEA would 
amount to less than 6 percent of that over the next 10 years. And, like 
I said before, we wouldn't have to touch the surplus if we just 
implemented one of my proposals to close up special interest tax 
loopholes, eliminate wasteful government spending, including Pentagon 
waste, or deal with Medicare waste, fraud and abuse. If you want to 
give a gift to the States this year, if you really want to help our 
local school districts, this is the amendment with which to do it, to 
fully fund IDEA once and for all.
  I yield for any comments or suggestions my colleague from Minnesota 
might have.
  Mr. WELLSTONE. Mr. President, I am going to be very brief. Staff is 
here, and it is late. It has been a long week. I can do this in a 
couple of minutes. I wanted to stay with Senator Harkin because I think 
this amendment goes right to the heart of what we are about. It is a 
win-win-win-win amendment. I do not know how many times I said ``win.'' 
It is a win for us because we should match our budgets and our votes 
with the words we speak. Just about everybody on the floor of the 
Senate said they are for the Federal Government meeting this commitment 
of 40 percent funding of IDEA. It is also a win for children with 
special needs. It is about children. We ought to do well for all of our 
children.
  Maybe it is because I am getting a little older and have six 
grandchildren, but I think all children are beautiful and all children 
have potential and all children can make contributions. We should do 
everything we can to nurture and support them. That is what this 
program has been about.
  The Senator from Iowa has been, if not the leader, one of the great 
few leaders from early time on for kids with special needs. It is also 
a win because I do think our States and school

[[Page 12972]]

districts, if we can do better by way of our investments, I say to 
Senator Harkin, will not only be able to live up to this commitment but 
will have more resources to invest in other priority areas. One of the 
things that has troubled me is, the Senator talked about the surplus. 
What is it over 10 years, $1.9 trillion?
  Mr. HARKIN. Mr. President, $1.5 trillion, non-Social Security.
  Mr. WELLSTONE. It is $1.5 trillion non-Social Security over the next 
10 years. Some of what has been discussed is a zero-sum gain, whether 
we are faced with the choice of do you support low-income kids with 
title I or do you support IDEA or do you support a lower class size or 
do you support trying to get more teachers into our schools, or do you 
support rebuilding crumbling schools. I believe we have a chance right 
now with the surplus, with these additional resources, to make these 
decisive investments. I cannot think of anything more important than 
making this investment in children and education.
  My last point is, all of us--and I will even make this bipartisan, 
seeing Senator Chafee presiding, whom I think cares deeply about 
children and education, just like his dad did, and I mean that 
sincerely--we are all going to have to make some decisions about 
consistency.
  It is like the old Yiddish proverb: You can't dance at two weddings 
at the same time. We cannot do everything. Some people want to put yet 
more into tax cuts, including Democrats, more here and more there. 
Ultimately, we have to decide what is most important. We have this 
surplus and we have the opportunity. We have had all the debate and 
discussion, and now we have an opportunity, with this amendment--of 
which I am proud to be a cosponsor--to match our votes with our 
rhetoric. We should do that. I hope there is a strong vote for this 
from Democrats and Republicans. I am proud to be a cosponsor. I yield 
the floor.
  Mr. HARKIN. Mr. President, I thank my colleague for his words of 
support, not only tonight but for all the time I have known him and all 
the years he has been in the Senate for making kids and education, 
especially special needs kids, one of his top priorities.
  I could not help but think when I was listening to the Senator speak, 
this vote on this amendment--I do not mean to puff it up bigger than it 
is. We are going to be faced the remainder of this year with vote after 
vote on what to do with that surplus. We may disagree on whether it is 
the estate tax cut or marriage penalty--whatever it might be. There 
might be other things coming down the pike, and we will have our 
debates and disagreement, but it seems to me that before we get into 
all that, we ought to do something for our kids with disabilities and 
we ought to do something that is right and is supported broadly, in a 
bipartisan way, and supported by our States.
  I can honestly say to my friend from Minnesota, if every Senator 
voted for this amendment, they would not get one letter, one phone call 
taking them to task for their vote in support of this amendment. I 
believe I can say that without any fear that I would ever be wrong; 
that no Senator, whoever votes for this amendment, would ever get one 
letter or one phone call from anyone saying they voted wrong. I believe 
that because it is so widely supported.
  Then we can go on with our other debates on tax cuts and other issues 
with the surplus and how we will deal with it.
  At this point in time, let us say we are going to take this little 
bit and invest it in the Individuals With Disabilities Education Act 
and, once and for all, meet that 40-percent goal, and we will not have 
to be talking about it anymore.
  As I said, this is a very simple and very straightforward amendment, 
but I will admit, for the record, it is going to take 60 votes. I 
understand that. It will take 60 votes, but I believe if Senators will 
just think about what they have said about IDEA and fully funding it 
and think about that big surplus we have and all of the demands that 
will be made on that surplus in the future, they just might think: Yes, 
we ought to carve out a little bit right now and put it into IDEA. It 
would help our States and our schools and, most of all, help our 
families who have special needs children who may not have all of the 
economic wherewithal to give their kids the best education.
  As I understand it, this is the first vote up or down vote on fully 
funding IDEA ever. Let's make it our last.
  I thank the Senator from Minnesota for his support. I yield the 
floor.
  Mr. JEFFORDS. Mr. President, I rise to commend Chairman Stevens, 
Chairman Roth, and Chairman Specter for their commitment to working in 
conference to restore funding to the Social Services Block Grant (Title 
XX), the Temporary Assistance for Needy Families (TANF) program and for 
the State Children's Health Insurance Program (S-CHIP). These programs 
provide a vital safety net for our most vulnerable citizens.
  The Social Services Block Grant program provides critical services 
for abused children, low-income seniors, and other families in need of 
assistance. For example, my own State of Vermont uses 80 percent of its 
Title XX funds to help abused and neglected children. Much of this 
money goes to assist the roughly 300 children in foster care in our 
State. This block grant was created under the Reagan Administration to 
provide States with a source of flexible funding to meet a variety of 
human service needs. It was the success of the Social Services Block 
Grant that paved the way for welfare reform.
  When welfare reform was passed, Congress made several agreements with 
the states. One such agreement was that funds for the Social Services 
Block Grant would be reduced to $2.38 billion with States permitted to 
transfer up to 10 percent of allocated TANF funds into the block grant 
to ``make up the difference.''
  Since making that agreement in 1996, Congress and the Administration 
have repeatedly cut the funds appropriated for the Block Grant to its 
current year funding level of $1.775 billion. I am grateful that there 
is a strong commitment to maintain this year's funding level in 
conference. However, the reduction of the amount of TANF funds that 
States can transfer also must be addressed. Vermont is one of several 
States which transfer the entire 10 percent that is allowable under 
TANF. Unfortunately, even with full use of the transferability, many 
states are no longer able to make up for the repeated reductions in 
Social Service Block Grant funds.
  I believe that the amount of TANF funds that States are permitted to 
transfer should not be cut in half, as current law requires, but should 
be increased to help mitigate the loss of Title XX funds that States 
have experienced since the 1996 agreement. The commitment to restore 
Social Services Block Grant funds to the current level is a good first 
step, but we should keep in mind that it is just a first step.
  In creating the TANF program, the Federal Government limited the 
amount of welfare funds that would be provided to States in exchange 
for giving States more flexibility in the use of those funds. The 
booming economy combined with successful State efforts to move more 
people from welfare to work have allowed States to reduce the costs of 
welfare. Congress urged States to save a portion of their TANF grants 
for the inevitable ``rainy day'' when additional funds would be needed. 
Many States did save part of their TANF allocation, and Congress has 
threatened to reduce the TANF allocations promised to the States, 
because the funds have not been fully expended. I thank Senators 
Stevens, Roth, and Specter for their commitment to uphold the promises 
we made in 1996 during conference negotiations on the Labor-HHS 
appropriations bill.
  My home State of Vermont has an unparalleled track record in 
extending health insurance coverage to children and families, and the 
S-CHIP has played a key part in contributing to this success. While 
Vermont has achieved its enrollment goals for this program to date, it 
continues to reach out to enroll eligible children. Restoration of the 
S-CHIP funding is essential for Vermont and other States in order for 
them to continue enrolling children

[[Page 12973]]

in this program. It is essential for Congress to keep its commitment to 
the S-CHIP program, otherwise States are not likely to continue their 
aggressive outreach and enrollment efforts and children may be left 
without health care.
  I believe strongly that it is important for Congress to keep its 
agreements with the States---particularly regarding the Social Services 
Block Grant, TANF, and S-CHIP. The success of States in implementing 
these programs and the extent to which Congress and the administration 
maintain promised funding levels for these critical programs will help 
determine the future of State block grants.
  How can we expect States and advocates to agree to flexible block 
grant initiatives, if Congress cannot fulfill its promise to maintain 
adequate funding?
  Mr. ALLARD. Mr. President, I would like to make a statement 
concerning the Federally funded research that is conducted at the 
various Centers for Disease Control (CDC) around the country.
  February of this year I met with the Director of the CDC, Jeffrey 
Koplan. CDC was highlighted in newspaper articles concerning the misuse 
of research funds targeted for hantavirus disease. Because of the 
presence of this disease in our state, as with other neighboring 
states, I am very concerned at the lack of accountability from the CDC.
  I expressed my concern for the correct utilization of funding for the 
disease research programs that are mandated by Congress. I stressed the 
importance of CDC's accountability and obligation to carry out the 
letter of our laws. Mr. Koplan assured me that they have taken measures 
to complete a full audit of the misdirected funds and that they will 
follow the intent of Congress in the future.
  Being a member of Congress, I for one can fully understand that the 
process of appropriating funds for research is complicated at best. 
Although Congress designates specific funds for certain diseases, there 
are several levels of bureaucracy through which the dollars must pass 
before they are received by the appropriate agency. This still does not 
account for an agency's lack of dedication in meeting congressional 
direction that is law. Part of my responsibility as a U.S. Senator is 
the oversight of various agencies and their accountability to Congress 
to carry out the language of our laws.
  Hantavirus outbreaks have rapidly affected the U.S., reaching as far 
as Vermont. Most recently, a 12-year-old girl who lives in Loveland--my 
hometown--was diagnosed with the disease. Doctor's believe she may have 
contracted the disease while visiting a ranch in Arizona last April. 
Once hantavirus is contracted it can be anywhere from one week to as 
little as one day before symptoms appear. Once symptoms are prevalent, 
it rapidly progresses to respiratory distress as the lungs fill with 
fluid.
  Colorado has had 23 cases of hantavirus since 1998--with three cases 
already this year. It is time to act with no further delay by the CDC 
laboratory.
  I hope that the CDC has worked out it's problems and will carry out 
what Congress expects of an agency.
  Mr. FEINGOLD. Mr. President, I rise today to describe why I opposed 
the amendment offered by the senior Senator from Arizona, Mr. McCain, 
to this legislation on the issue of schools and libraries blocking 
children's access to certain materials on the Internet, and supported 
the alternative amendment on this topic offered by Senator Santorum.
  The McCain amendment prohibits schools and libraries from receiving 
federal funds under the E-Rate program if they do not install software 
to block children's access to two specific kinds of information: 
materials that are obscene and materials that constitute child 
pornography. The Santorum amendment contains a similar prohibition on 
funding, but gives the local community the flexibility to decide what 
materials are inappropriate for children's viewing and to implement a 
comprehensive policy on minors' Internet use if they want to continue 
to receive the E-Rate. I feel that local communities, not the federal 
government, should decide what materials are suitable for children's 
viewing. Wisconsin communities may want to address or restrict whether 
children have access to adult chat rooms even though the chat may not 
be about child pornography or may not contain technically obscene 
topics of conversation. They also may want to restrict whether they 
post identifying information or photographs of students on school 
sponsored web sites. I simply feel that these decisions are best made 
locally.
  Second, I am concerned that the McCain amendment imposes an 
additional cost to obtain filtering software upon schools and libraries 
without adequate input from those institutions. The McCain amendment 
relies upon the technical fix of filtering and imposes filtering 
software on all computers in a facility. The Santorum amendment allows 
a school or library to determine which computers are available for 
student access and then install blocking software upon those computers. 
Software licensing costs are not inexpensive, and requiring that 
software be installed on every machine may be financially difficult for 
small communities.
  Finally, though I am concerned about protecting children on the 
Internet, I am also concerned about the constitutionality of blocking 
material on the Internet for adult computer users. The Santorum 
amendment allows communities to develop common sense solutions to 
protect the rights of adults to access information over the Internet in 
a place like a public library. A Wisconsin community could decide, 
under the Santorum amendment, for example, that it wanted to have a 
locked room in its public library with computers in it that only adults 
could use to access the Internet and not install blocking software on 
those machines. There are ways to block children's access to computers 
that are structural, Mr. President, like a locked door, that would 
still protect the First Amendment right of adults. These options are 
not available under the McCain amendment.
  I appreciate the Senate's interest in protecting children from 
inappropriate material on the Internet, but I feel that the McCain 
amendment does not go far enough to ensure that local governments, 
libraries, schools, and individuals rights are protected.
  Mr. WELLSTONE. Mr. President, I thank Chairman Specter and ranking 
member, Senator Harkin, for working with me to see that funding is 
increased for the Perkins Loan Cancellation Program. I filed an 
amendment that would have increased the level of the Perkins Loan 
Cancellation Program by $30 million to $90 million. I am very 
appreciative that the committee increased funds for this valuable 
program by $30 million--especially given the terrible budget 
constraints on this bill. I am especially thankful that the Managers of 
this bill have agreed to raise the appropriation by another $15 
million. This will get the government half way to where it needs to be 
to reimburse Perkins Revolving Funds for what they have lost to the 
Loan Cancellation Program. It is an important step.
  The reason I asked for more is simple. If we give the extra $30 
million, the federal government can pay back what it owes to the 
universities and colleges for the loans that have been canceled. This 
amendment would simply fulfill its IOUs to the Perkins program. Mr. 
President, we have a $1.9 trillion surplus, it is ironic and probably 
an oversight that we are still in debt to America's colleges and 
universities that provide loans to low income students, but it is a 
debt that I think we can and should repay. That is why I am thankful 
for the Managers' efforts, and that is why I will continue to push for 
the full $90 million in the future.
  Both the cancellation program and the Perkins Loan Program are 
seriously undermined if the government does not fulfill its debt 
obligations to the universities and colleges that choose to administer 
it.
  The Perkins Loan Program (formerly called the National Defense 
Student Loan Program) provides long-term,

[[Page 12974]]

low-interest (5% per year) loans to the poorest undergraduate and 
graduate students. 25 percent of the loans go to students with family 
incomes of $18,000 or less, and 83% of the loans go to students with 
family incomes of $30,000 or less. Since its inception, 11 million 
students received $15 billion in loans through the Federal Perkins Loan 
Program. In the academic year 1997/98, 698,000 students received 
Perkins loans.
  Perkins is exceptional because it is a public/private partnership 
that leverages taxpayers' dollars with private sector funding. The 
yearly Federal contribution to Perkins Loans revolving funds leverages 
more than $1 billion in student loans. This is because Perkins Loans 
are made from revolving funds, so the largest source of funding for 
Perkins Loans is from the repayment of prior-year loans.
  The Perkins Loan Cancellation Program entitles any student who has 
received a Perkins loan who enters teaching, nursing and other medical 
services, law enforcement or volunteering to cancel their loans. This 
past year, more than 45,000 low income students who chose to enter 
these important professions were able to have their loans canceled. 
Last year, 26,000 teachers, 10,500 nurses and medical technicians, 
4,000 people who work with high-risk children and families, 4,000 law 
enforcement and 700 volunteers had their loans canceled under this 
program.
  This year, thanks to the efforts of Senator Durbin and others, it 
looks like we may be able to expand the professions eligible for 
cancellation to include public defenders.
  The value of Perkins loans is enormous. Since 1980 to 1998, the cost 
of higher education has almost tripled, leading to a decline in the 
purchasing power of federal grant programs. The maximum Pell grant this 
year is worth only 86% of what it was worth in 1980, making the Perkins 
program, and all loan programs, a more important part of low income 
students' financial aid packages.
  The value of the cancellation program is also enormous. It provides 
the lowest income people who want to enter public service a small break 
from the crushing debts they incur attending higher education. Offering 
loan cancellation also highlights the need for well-trained people to 
enter public service and honors those who choose to enter public 
service. This is the kind of incentive and reward we should be doing 
more of and I thank the Senate for accepting my amendment earlier that 
would provide Stafford loan forgiveness for child care workers.
  Mr. President, I am here today because the future of both of these 
programs is in great jeopardy because we are unable to repay the 
universities' revolving funds what they are owed for the cancellation 
program. There are colleges that receive only 47% of what they are owed 
by the government. They are given the rest on an IOU.
  Because Perkins loans are funded through revolving loans, the people 
who end up paying the price for this IOU are low income students who 
are eligible for Perkins loans in the future. As loans are canceled, 
and the government is unable to reimburse the revolving funds, there is 
less and less money available in the funds to generate new loans. It is 
estimated that 40,000 fewer students will be eligible for Perkins loans 
because of the declining money available in the revolving fund.
  When you combine the pressure from the unfulfilled government 
obligations with recent cuts to the Perkins program in general, I 
believe that both these key programs are at risk. Congress has cut the 
yearly Federal contributions to the Perkins Loans revolving funds by 
$58 million since fiscal year 1997. Since 1980, the Federal 
Government's contributions have declined by almost 80%. 900 colleges 
and universities around the country have cut their Perkins programs at 
least in part because they were not economically viable. In MN, 
colleges such as Metro State University have ended this valuable 
program in large part because they cannot afford to keep it going.
  This means one thing and one thing only. There are less and less 
loans available for the lowest income students. The $15 million the 
manager's package will provide will go far to reverse this situation.
  Reducing the number of loans available is not the direction we want 
to be going given what we know about the rising importance of college 
education and the increasing need for financial aid.
  A study from Minnesota indicates that for every $1 that is invested 
in higher education, $5.75 is returned to Minnesota's economy. A 1999 
Department of Education study indicates that the real rate of return on 
investment in higher education is 12% based on earnings alone. This 
does not include savings on health care and other factors. Further, a 
recent poll found that 91% of the American Public agree that financial 
aid is an investment in America's future (Student Aid Alliance, 1999).
  The numbers indicate that this is true. In 1998, men who had earned a 
bachelors degree earned 150% more than men who had received only a high 
school diploma. Women earned twice as much. (NCES, ``Condition of 
Education, 2000,'' 2000). College graduates earn on average $600,000 
more in their lifetime than people with only a high school diploma. (US 
Department of Commerce, Bureau of the Census, 1994.
  Despite the obvious benefits of investments in higher education, 
funding is declining. Since 1980 to 1998, the cost of higher education 
has almost tripled, leading to a decline in the purchasing power of 
federal grant programs. The maximum Pell grant this year is worth only 
86% of what it was worth in 1980, making the Perkins program a more 
important part of low income students' financial aid package. Yet, the 
numbers of institutes of higher education offering the Perkins Loan 
Program has declined by 80% over the past 20 years. During the last 
decade, student aid funding has lagged behind inflation, yet in the 
next ten years, more than 14 million undergraduate students will be 
enrolled in the nation's colleges and universities, an increase of 11 
percent. One-fifth of these students are from families below the 
poverty line. Many of them are the first in their families to go to 
college.
  The effect of the decline in funding has a disproportionate impact on 
low income students--the very students that Perkins is designed to 
help. Studies show that an increase in tuition of $100 lowers the 
enrollment of low income students by 1%. (McPherson and Shapiro, 1998). 
In Minnesota, students from families that make $50,000 per year or more 
are three times as likely to attend a four year college as students 
from families who make $30,000 per year or less (and I remind my 
colleagues that 83% of Perkins loans would go directly to these 
students with incomes less than $30,000.) Further, more than 1/3 of 
students who enter college drop out. Often this is because they cannot 
afford to continue.
  The Perkins Loan Program is vital to helping these low income 
students enter and stay in college. It would be a shame if the program 
failed because the government failed to pay universities back the money 
it owes this valuable program. By increasing the appropriation for the 
cancellation program, the managers have taken a strong step toward 
getting the government out of debt. I am also committed to seeing that 
this program is fully funded in the future. We have on-budget surpluses 
of $1.9 trillion. We should use this appropriation to ensure that we 
are not in debt to the 40,000 fewer students who will not receive the 
Perkins loans they once could have because the federal government did 
not meet its obligation to pay for its own cancellation program.
  These are America's poorest students who are simply trying to afford 
a college education. With a $1.9 trillion surplus, we owe it to them to 
pay it back.

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