[Congressional Record (Bound Edition), Volume 147 (2001), Part 8]
[Senate]
[Pages 10957-10961]
[From the U.S. Government Publishing Office, www.gpo.gov]



                              HEALTH CARE

  Mr. DURBIN. Mr. President, I want to address in morning business an 
issue, which will be the focus of debate in the Senate for the next 2 
weeks. Many times our debates in this Chamber are about issues that a 
lot of people across America wonder what can this possibly mean to me, 
my family, or my future. This debate, believe me, will affect every 
single one of us.
  What we do--whether we pass a law or fail to pass a law--can have a 
direct impact on everyone witnessing this debate and virtually everyone 
living in this country. What could that issue possibly be? Health care. 
It is about whether or not our health insurance will be there when we 
need it.
  Yesterday in Springfield, IL, my hometown, I had a press conference. 
I invited three local doctors and two local nurses to talk about health 
care today. They came and told stories which were chilling, stories of 
their efforts to provide quality medical care to the people of my 
hometown and how time and again they ran into roadblocks, obstacles, 
and barriers from HMOs, and other health insurance companies, which 
tried to overrule medical decisions.
  A cardiologist who came forward said: I brought a person into my 
office who was complaining of pain, thinking he suffered a heart 
attack. I was prepared to provide emergency care and I did, only to 
learn that his health insurance company would not pay me because I did 
not happen to be in their network. This person who showed up at my 
office, afraid he was going to die, was supposed to read his health 
insurance policy, look for the appropriate doctor, and make an 
appointment.

[[Page 10958]]

  That is the reality of dealing with HMOs and health insurance 
companies today.
  A lady who is an OB/GYN in my hometown talked about women under her 
care preparing to deliver a baby who, because the employer of that 
woman changed health insurance companies, were told in the closing days 
of the pregnancy that she could no longer be treated by her 
obstetrician, but had to go to a new doctor, an approved doctor, 
someone who had never seen her during the course of her pregnancy 
simply because this health insurance company thought it could save a 
dollar by referring this care to a different obstetrician.
  The cases went on and on and on. Frankly, it should not come as a 
surprise. We have known for years that HMOs, health maintenance 
organizations, are really cost containment organizations. Their job is 
to reduce the cost of health care. What is secondary in their 
consideration is really quality medical care that all of us count on 
when we go to a doctor or a hospital or rely on a nurse's advice. That 
has been the casualty in this debate.
  Yesterday, in Springfield, IL, these health professionals came 
forward. They joined ranks with 500 organizations which have endorsed a 
bill we will begin debating today on the floor of the Senate. Let me 
add just a postscript to that--I hope we will begin debating it today. 
Yesterday we tried to take up this bill, to talk about a Patients' Bill 
of Rights. There was an objection from the Republican side of the 
aisle. They wanted more time.
  I suggest to those who are following this debate, this particular 
issue has been debated for a long time. In 1973, the Health Maintenance 
Organization Act became law, allowing employers to offer managed care 
insurance options. That was 28 years ago.
  In 1995, our current President, then Governor George Bush, vetoed a 
Texas bill providing protection for HMO patients.
  By 1996, the first Federal law regulating private insurance, this one 
allowing workers to keep coverage when changing their jobs, opened the 
door to patients' rights. The battle went on from there.
  We have known for years that we need to provide patients and their 
families and people working for businesses across America the 
protection of a Patients' Bill of Rights. What we have before us today, 
what we will be debating this week, is a bipartisan Patients' Bill of 
Rights. Senator John McCain, a leading Republican, is one of the 
leading sponsors of this bill; Senators Arlen Specter and Lincoln 
Chafee also Republicans support the bill as well; and virtually every 
Democratic Senator. On the House side the same can be said. Republican 
leaders, as well as Democrats, and some 60 Republicans voted for this 
bill when it came up.
  So this is a bill that has been here for a long time. It is a bill 
that now has strong bipartisan support, and it has been subjected to a 
lot of give and take and compromise to come up with a reasonable 
approach. Yet still we run into the obstacles that are being presented 
by its opponents, the major opponents, of course, the health 
maintenance organizations.
  Why are they opposed to this bill? Why don't they want to create a 
Patients' Bill of Rights? Frankly, they think it is going to cost them 
in terms of their profits. They don't want to give up the rights they 
have to make life-and-death decisions and overrule doctors and nurses 
to save a buck. That is what this debate comes down to.
  If you happen to visit Washington, DC, and turn on television, you 
are likely to see their television advertising. These HMOs are going to 
dump millions of dollars into advertising, trying to tell the people 
across America that giving you the right to have your doctor make a 
medical decision is not in your best interests, that they are the ones 
who should be entrusted with our health care, they are the ones who 
should make the call in life-or-death decisions when it comes to 
medical treatment, when it comes to prescription drugs that are 
necessary to sustain your life. They say, frankly, we don't need a 
Patients' Bill of Rights.
  That is understandable, because do you know what is at issue here? 
What is at issue here is accountability. We just finished 7 weeks of 
debate about education. The key word in that debate was 
``accountability.'' People should be held accountable, students by 
tests, teachers by the results of those tests, principals--everyone to 
be held accountable. But when it comes to health care, the HMOs do not 
want to be held accountable. They believe they should take their 
profits and not be accountable.
  Let's take a step back and look at the big picture. Who in the United 
States can be held accountable for their conduct in a court of law? 
Frankly, all of us--every individual, every family, every business--
with only two exceptions. There are two special classes in the United 
States who cannot be brought into court and held accountable for their 
wrongdoing:
  One, diplomats. You have heard of those cases. Diplomats who come to 
the United States, get involved in traffic accidents, and race away to 
their home country, never having to face a court of law. That happens 
to be part of a treaty. We are stuck with it.
  What is the second special and privileged class in America that 
cannot be held accountable for its wrongdoing? HMOs, health insurance 
companies. That is right. If they make a decision denying you coverage 
and you suffer bodily injury or die as a result of it, the HMO or the 
health insurance company cannot be sued. That is why they oppose the 
Patients' Bill of Rights. They want to maintain their special status.
  The HMOs think they are royalty in this country, that they should be 
above the law. I disagree with that completely. This bipartisan Patient 
Protection Act protects all patients across America. It doesn't pick 
and choose like the Republican alternative. It says that you should 
have access to specialists. If your doctor says your son or daughter 
has cancer and that a pediatric oncologist is the right person for your 
child, that should be the final word. You should not leave it to some 
bean counter, some accountant, some clerk in an insurance company 100 
miles away.
  It says you should be able to go out of network for a specialist. In 
other words, if the HMO does not have that doctor on the list, that 
should not be the deciding factor when determining who is the best 
doctor for your wife or your husband when they are facing a serious 
illness.
  Care coordination, standing referrals--all of these mean that you can 
get good health.
  Coverage for clinical trials. Clinical trials are efforts a lot of 
people get into when they receive a diagnosis of a condition or disease 
that might otherwise be incurable. They take a drug that is being 
tested by the Food and Drug Administration to see how it might apply to 
your cancer, your heart disease, your special problem. A lot of 
insurance companies say: We will not pay for clinical trials, you are 
on your own. Well, who can pay for it? Who in their right mind can say 
an average person in an average family in America can pay the tens of 
thousands of dollars necessary for life-or-death treatment in a 
clinical trial?
  That is what is at issue here; that is what is behind this bill. The 
Patients' Bill of Rights say these insurance companies must cover the 
clinical trials that are necessary to save your life.
  What about coverage for emergency care? Imagine your son falls out of 
a tree in the backyard and breaks his arm while you are visiting 
somebody, and you race to the nearest hospital only to learn they 
cannot treat you because you don't happen to be on the approved list 
for your health insurance. Who in the world is going to carry their 
health insurance policy around in the glove compartment of their car to 
find out which is the hospital that the HMO will allow you to go to? 
When it comes to emergency care, people should not be second-guessed. 
You go where you need to go when you are in an emergency situation. You 
should not have to face some insurance company clerk who is second-
guessing that.
  Direct access to OB/GYN providers--I mentioned the illustration in 
Springfield.

[[Page 10959]]

  Access to doctor-prescribed drugs. Do you know what the HMOs do? They 
put down a list of drugs for which they will pay. They pick and choose 
the ones where they get the deepest discounts from the pharmaceutical 
companies. So you come in with a problem and your doctor takes a look 
and says: This is the drug. You need it. Is a breakthrough drug, and it 
is available, and I think I can get it for you. I say: Doctor, is it 
expensive? And he says it is because it is new, but it is just what you 
need. Then he says: Will your company cover this? Is it on their 
approved list, their formulary?
  Sadly, a lot of HMOs have picked a list that doesn't include all the 
good drugs a doctor can prescribe. The Patients' Bill of Rights says 
the doctor has the last word. If this is the right drug that can cure 
your disease and give you a good life, you should not have to get into 
a debate or an appeals process with an HMO or a health insurance 
company over it.
  Finally, access to point-of-service plans. We have to make certain 
that people across America, when they need access to good health care, 
have it. The HMOs and health insurance companies that put up these 
obstacles should not have the final word.
  This is the debate we are about to have for the next 2 weeks. This is 
what the Senate will focus on. Is there anything more important than 
our health? What would you give up for your health? I don't think 
anyone would give up anything for their health. That is the most 
important thing in your life. Now we face an onslaught of opposition 
from the HMOs and the health insurance companies that say no to the 
Patients' Bill of Rights.
  I salute Senator Tom Daschle, the majority leader, because he said 
this at a rally that we just held on the steps of the U.S. Capitol. He 
said the Senate will stay in session until we pass a Patients' Bill of 
Rights. He has given notice to all of us in the Senate: Put on hold 
your Fourth of July parades and your picnics back at the ranch. We are 
all talking about staying here and getting the job done.
  There are going to be fireworks on The Mall, if you want to stick 
around here and you don't want to pass a Patients' Bill of Rights. We 
can look out the back window here, skip the parades and picnics, and 
stay at work until we pass a Patients' Bill of Rights. I guarantee, you 
may or may not see fireworks on The Mall, but we will see fireworks on 
the floor of the Senate because the HMOs and health insurance companies 
are not going to give up easily. They are going to fight us every step 
of the way.
  Who are on the different sides in this debate? On one side are 550 
health organizations and consumer organizations, standing for families 
and individuals across America--doctors and nurses and consumer groups.
  Who is on the other side, opposing our bill? One group, and one group 
only, the HMOs, the health insurance companies. They know what is at 
stake here. What is at stake is their profit, and they are going to 
fight us tooth and nail to try to stop this bill.
  I can guarantee this. We are going to fight for a real Patients' Bill 
of Rights, not a bill of goods. We are not going to pass some phony law 
and say to America we have solved your problem. We are going to fight 
and stay here for this fight until we pass it. For everyone who 
witnesses this debate, I cannot think of a more important topic for us 
to face.
  Mr. REID. Will the Senator yield for a question?
  Mr. DURBIN. I am happy to yield to my colleague from Nevada.
  Mr. REID. I have been here this morning listening to the Senator's 
statement, and of course it is very good and beautiful. But I would 
like to ask the Senator a couple of questions.
  We have been working on this bill for years. I have been impressed 
with a couple of people who have stood out in recent weeks. They are 
Republicans--one by the name of John McCain and the other by the name 
of Charlie Norwood. They are both Republicans. One is a dentist from 
Georgia, the other is a Senator from the State of Arizona who, among 
other things, spent 5 or 6 years in a prisoner-of-war camp, most of 
that time in solitary confinement.
  The Senator from Illinois and I came with Senator McCain to the House 
of Representatives in 1982. We have long acknowledged his courage; have 
we not?
  Mr. DURBIN. Absolutely.
  Mr. REID. I have been impressed with the courage of Charlie Norwood 
from Georgia. Is the Senator from Illinois also impressed?
  Mr. DURBIN. The fact that he has stood up and announced last Friday 
that he has tried to work with the HMOs, tried to work with the 
Republican leadership and with the White House and has virtually given 
up because they, frankly, will not support a real Patients' Bill of 
Rights. Congressman Norwood, a Republican, has said he will openly 
support the Democrats. If I am not mistaken--perhaps I am--the Senator 
from Nevada can correct me--I think every medical doctor in the House 
of Representatives now supports the Democratic approach, the bipartisan 
approach we are offering on the floor.
  Mr. REID. The reason I asked the Senator this question is that the 
Senator in his chart said it is a bipartisan bill. McCain a Republican, 
Edwards a Democrat from the South, Kennedy a Senator from 
Massachusetts, they are the chief sponsors of this legislation. This is 
bipartisan legislation. We have some courageous people who have said we 
have had enough of this.
  This legislation, I have heard the Senator say, is supported by every 
consumer group in America plus every medical group in America, 
subspecialty group, specialty group, the American Medical Association, 
and even the lawyers support this. I don't know of a time in the past 
where you have the American Medical Association and the trial lawyers 
together. Does the Senator know another occasion?
  Mr. DURBIN. I certainly don't. Usually they fight like cats and dogs. 
When it comes to this bill, both sides believe the HMOs and the health 
insurance companies should not be above the law. They should not be a 
special class. They should be held accountable like every other 
American and every other business for their wrongdoing. They should, in 
being held accountable, understand when they make life-or-death 
decisions and they are wrong, they may face a jury of a dozen Americans 
who will decide whether or not it was fair.
  Mr. REID. The Senator made reference to the advertisements being paid 
for by the HMOs. They are running in Washington and all over America. 
What they are focusing on is this is a bill that the lawyers want. 
Would the Senator agree with me that those managed care entities that 
oppose this legislation are trying to divert attention away from the 
consumer protections in this bill and making it a lawyer-versus-the-
rest-of-us piece of legislation?
  Mr. DURBIN. There is no question about it. I often try to reflect on 
whether or not the Congress of the United States could have enacted 
Social Security or Medicare or the Americans with Disabilities Act if 
some of the most well-financed special interest groups in America 
decided they wanted to buy large amounts of TV airtime on television of 
America. That is what is happening. They have done it before. They are 
trying to do it now. They are trying to twist and distort this debate 
to try to undermine the public's sentiment for real change and real 
protection for patients.
  They are going to lose because the people of America know stories in 
their own family and their neighbor's family. I will share for a 
moment--I see two of my colleagues coming to the floor--with my 
colleague from the State of Nevada one of the things I think really 
tells the whole story. You can listen to Senators come and go on the 
floor of the Senate. We can talk about politics and law and all the 
rest of it. Let me introduce you to a little fellow I met a year or so 
ago named Roberto Cortes from Elk Grove Village, IL. This wonderful 
little kid is fighting for his life every single day on a respirator.
  His mom and dad are real-life American heroes. They get up every 
morning and try to make a life for themselves and their family. They 
dedicate every

[[Page 10960]]

waking moment so this little boy stays alive. This is a fight that goes 
on every minute of every day. If you can imagine, if his respirator 
stopped he would die, and they know this. They have him at home, and 
they watch him constantly. This is a fight they are willing to take on. 
They didn't know when they were fighting for Roberto's life that they 
would also have to fight the insurance companies. His problem is spinal 
muscular atrophy, a leading genetic cause of death in kids under the 
age of 2.
  Last year, they sent me an e-mail to talk about the battles they have 
had with their health insurance company. He needs a drug called Synagus 
to protect him against respiratory infection. Do you know what the 
insurance company said? No. No. His doctor said, this little boy needs 
this drug to protect him against an infection when he is on a 
respirator, and the health insurance company said no.
  Imagine that for a minute. Imagine that you are battling every single 
day to save this beautiful little boy, and meanwhile you have a health 
insurance company denying you access to a drug that his doctor says he 
needs to stay alive. Can it get any worse than that?
  That is what this debate is all about. Forget all of us in suits and 
ties and fancy dresses in the Senate and remember Roberto Cortes of Elk 
Grove Village, IL. Remember his mom and dad. That is what the debate is 
all about.
  We can't match the health insurance industry when it comes to all the 
television advertising they are buying but, believe me, if I could tell 
Roberto's story to moms and dads across America, I know what would 
happen when this bill finally comes up for final passage. I thank my 
colleague from Nevada for joining me.
  Mr. REID. If I may ask the Senator one more question, I hope Roberto 
is doing OK. Senator Dorgan and I held a hearing in Las Vegas, NV, 
where a mother's testimony was not as optimistic. It was sad. She had 
had dealings with an HMO, and her son is now dead. That was her 
testimony. Senator Dorgan and I will talk about that more as the debate 
goes on. The Senator from Illinois is right; the HMOs deal with 
people's health: Roberto, the boy in Las Vegas, parents, mothers, 
brothers and sisters. There is nothing that is more devastating than 
having someone sick and you can't get what you know needs to be done. 
That is what the debate is all about.
  It is about accountability. Are people going to be held to a standard 
that is fair? We are not asking for a standard that is unfair or 
unreasonable or that has not been in place in the past. We are asking 
to have the standard where a doctor makes a decision as to the care 
their patient receives and it is not made by some clerk in a room in 
Baltimore or San Jose; it is made by that doctor who is taking care of 
that patient. Will the Senator agree?
  Mr. DURBIN. I agree, and I thank the Senator from Nevada for joining 
me. I see the Senator from Minnesota is here seeking recognition.
  Let me say, this is one of the most important debates of the year. 
Until the Senate leadership changed 2 weeks ago, this bill was buried 
in committee. The health insurance companies had us right where they 
wanted us. They stuck this bill in committee and said: You will not 
hear a national debate about the Patients' Bill of Rights. It is a new 
day in the Senate. There is new leadership, and there is a new agenda. 
I am proud of the fact that my party has brought forward as the first 
bill that we will debate a Patients' Bill of Rights. I am proud of it 
because I believe that is what we are all about.
  Frankly, on a bipartisan basis with Senator McCain and Congressman 
Norwood and others, we are making this a strong bipartisan fight. It 
isn't a fight so that at the end of the day we can say our party won; 
this politician won. It is a fight so that at the end of the day 
Roberto Cortes has a chance, and his mom and dad can focus on this 
little boy's life and that daily struggle, not a struggle with the 
health insurance companies.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Nelson of Florida). The Senator from 
Minnesota.
  Mr. DAYTON. Mr. President, if I might add a refrain to what my 
distinguished colleagues have been talking about, last year I helped 
set up a health care hot line in Minnesota. I started getting a flood 
of calls, just as the Senator from Illinois described, from parents who 
are fighting those same kinds of battles. I don't have pictures here, 
but I can see them in my mind's eye, the young boys and girls and the 
grieving families, fighting families who are trying to deal with the 
tragedy of their lives and have heaped on them the further tragedy of 
HMOs or insurance companies not providing or not paying for the care. 
Suddenly they are incurring tens of thousands of dollars of debt, in 
addition to God-awful personal losses.
  So I certainly rise in support of the legislation. I agree with the 
Senator from Illinois that the change in the leadership of this body--
the now-majority leader and assistant majority leader are making the 
difference in this legislation coming to the Senate floor. I hope we 
can commence debate on it today.
  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. NELSON of Florida. Mr. President, I ask unanimous consent that 
the order for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Dayton). Without objection, it is so 
ordered.
  Mr. NELSON of Florida. Mr. President, I rise on this first day of 
consideration of the Patients' Bill of Rights to say that this is a 
glorious day, that finally, after a 5-year wait, the Senate can take up 
this important legislation.
  It is my hope that our colleagues on the other side of the aisle will 
not block this legislation, as has been rumored all over the Capitol 
today. We have heard that there will be all kinds of efforts to delay 
and distract.
  This issue is way too important for this country to withstand such 
potentially dilatory tactics. Indeed, the people of this country 
embrace patient protection and they embrace it in a bipartisan and, 
indeed, a nonpartisan fashion.
  What does this bill do? It simply addresses a grievous wrong under 
American law. Currently, health care providers are held accountable for 
their mistakes and their malpractice, save for one type of health care 
provider--an insurance entity known as a health maintenance 
organization.
  An HMO is exempt under the law. So this Patients' Bill of Rights 
brings to the floor of this Senate the opportunity to change the law so 
that HMOs are held accountable for their grievous mistakes. This is 
just common sense and clearly, a standard of fairness. This is why we 
are seeing wide acceptance of the principles of this legislation 
reflected in the polls all over this country.
  Now let's not be deceived. Those who want to torpedo this legislation 
say that they support a Patients' Bill of Rights, and then they get all 
mired in the discussion of the technical details. But it is clear cut: 
Either you are for the patient or for the HMO when it comes down to the 
question of accountability for grievous mistakes.
  Now there has, in the course of this discussion, arisen a very 
legitimate concern. HMOs are a major provider of insurance for 
employers. Therefore, an employer is quite concerned that they might 
have some liability because they engage the particular HMO as their 
insurance company. So, quite naturally, an employer does not want to 
have joint liability with an HMO that has perpetrated some grievous 
malpractice.
  In this bipartisan legislation offered by Senators McCain, Edwards, 
and Kennedy, there is protection for the employer, and the employer 
would only be liable if the employer had participated in that grievous 
malpractice.
  So as that issue arises, particularly among the business community, 
which legitimately ought to be concerned with that issue, don't be 
deceived, because you are protected. As we get into the discussion of 
this legislation, let's remember what this is all about. You are either 
for protecting patients or

[[Page 10961]]

you are for the status quo, which protects HMOs. Current law states 
that an HMO cannot be sued for any grievous wrongs, whereas a 
physician, a nurse, a hospital, or any other health care provider who 
commits a grievous wrong against a patient can be held accountable.
  So it is a stark choice: Do you want to protect the patients, or do 
you want to protect HMOs? You will get all the other arguments about 
whether or not this is going to increase the cost to patients. There 
will be some increase, but often as we consider the formulation of law, 
we have to consider the tradeoffs. Is this protection of a patient's 
right worth the tradeoff of a small--a very small--increase in the 
cost? Eighty percent of the American people clearly say they want the 
rights of a patient protected.
  I am glad that we finally have this issue before us.
  One of the greatest experiences in my professional life and a great 
honor for me was having served for the last 6 years as the elected 
insurance commissioner of the State of Florida. In that capacity, I 
dealt weekly with insurance companies, health insurance rates, and what 
it took to keep those insurance companies and HMOs financially viable, 
while at the same time being able to protect patients' rights.
  I see this discussion of a Patients' Bill of Rights as the tip of an 
iceberg in a discussion of the overall reform of the entire health care 
delivery system. Ultimately, this will become a discussion of the 
reform of the Medicare system in this country. I hope and have clearly 
had assurances from our great assistant majority leader, the Senator 
from Nevada, and our great leader, the Senator from South Dakota, that 
we are going to take up Medicare reform later this year.
  We have a great opportunity for taking the first steps addressing the 
comprehensive question of health care reform and health insurance 
reform that will ultimately address the fact that 44 million people in 
this country do not have health insurance, 2\1/2\ million of these 
people are in my own State of Florida. Clearly, they get health care. 
They often get it at the most expensive place, which is the emergency 
room, and at the most expensive time when the sniffles have turned into 
pneumonia. But that is a discussion for another day.
  The discussion, however, starts today along the long, tortuous road 
of health care reform with a most important first step; that is, 
enacting a Patients' Bill of Rights.
  I am proud to come to the floor and be able to address this. I intend 
to speak out on this important issue again and again over the course of 
the next several days, and the next couple of weeks, until we pass this 
important piece of legislation.
  Thank you, Mr. President. I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.

                          ____________________