[Congressional Record (Bound Edition), Volume 147 (2001), Part 8]
[Senate]
[Pages 10963-10975]
[From the U.S. Government Publishing Office, www.gpo.gov]



          BIPARTISAN PATIENT PROTECTION ACT--MOTION TO PROCEED

  Mr. DASCHLE. Mr. President, I ask unanimous consent that the Senate 
now proceed to the consideration of Calendar No. 75, S. 1052, the 
Patients' Bill of Rights.
  The PRESIDING OFFICER. Is there objection?
  Mr. THOMAS. Mr. President, I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. DASCHLE. Mr. President, I now move to proceed to S. 1052.
  The PRESIDING OFFICER. The motion is debatable.
  The Majority Leader.
  Mr. DASCHLE. Mr. President, I regret we are not in a position to 
begin consideration of this important legislation at this time. I 
remain hopeful that by the end of the day we will be able to do so. In 
the event that the Senate cannot proceed to the bill today, it is my 
intention to file cloture on the motion. Under the rules, this cloture 
vote would occur on Thursday morning 1 hour after the Senate convenes.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I reiterate my support for the majority 
leader's unanimous-consent request. I believe it is fair and also 
crucial for allowing us to finally engage in a real and meaningful 
debate that will get Americans the protections they need and want.
  This unanimous-consent request is exactly along the lines of that 
which governed the campaign finance reform debate. Most Americans, no 
matter how they felt on that issue, believed that it was a fair, open, 
and honest debate in which the issues were ventilated and the majority 
of the Senate worked its will. That is how most Americans think we 
should function and, unfortunately, all too often we do not.
  Under this unanimous-consent agreement, unlimited amendments can be 
offered, and each one will be provided a significant period of time, 2 
hours, and after debate the amendment would be voted on by the full 
Senate.
  I am struggling to understand why we can't agree that this is not 
only a fair proposal but truly it affords each and every one of us with 
an opportunity for engaging in a free and spirited debate. This format 
embodies the full spirit of the traditional Senate and should not be 
ignored or misconstrued as anything but a reasonable and honest 
proposal.
  I think Americans are watching us to see if we can come together on 
an issue of great importance to everyone across our Nation. I don't 
think delay is warranted. We should not obstruct.
  I am confident that engaging in a truly open debate on this issue, 
without stringent time restraints or limits on amendments, will result 
in the passage of a strong bipartisan patients' protection bill that 
can be signed into law by President Bush.
  I want to reiterate, it is my sincere and profound commitment to see 
that we enact a bill that the President of the United States can sign. 
It would serve no one's purpose to go through the debate and amending 
process in the Senate and in the other body and conference and then 
have a bill the President will not sign.
  I will make a couple of additional comments. There has been some 
debate as to who supports and who does not support this legislation. I 
have a list of over 300 organizations that are in support of this 
legislation--not only the nurses and doctors of America but traditional 
consumer advocacy groups, including health groups such as the American 
Cancer Society, the American Dental Association, the American Nurses 
Association, a long list of organizations that have traditionally 
advocated for the health of Americans either in a specialized or 
general way.
  We have a clear division here between the health maintenance 
organizations, which according to a CNN USA Today poll enjoy the 
approval of some 15 percent of the American people, and the nurses and 
doctors and those who are required to and do commit their lives to 
taking care of the health of our citizens.
  I have been asked many times why is it that I am involved in this 
issue, why is it that I have worked very hard to try to fashion a 
bipartisan agreement that we could use as a base for amending and 
perfecting a bill that we can have signed by the President. In my 
Presidential campaign, in hundreds of town hall meetings attended by 
thousands and thousands of Americans, time after time after time after 
time, average citizens stood up and talked about the fact that they 
have been denied reasonable and fair health care and attention they 
believe they deserve and need.
  This is an issue of importance to some 170 million Americans who 
would be covered by this legislation. This is an issue to average 
Americans who are members of health maintenance organizations. This is 
a challenge and a problem.
  These Americans want the decisions made by a doctor and not an 
accountant. These Americans want and need and deserve a review process 
that is fair. These Americans are not receiving the fundamental health 
care they deserve as members of health maintenance organizations and, 
frankly, that is available to other Americans who have larger incomes.
  Mr. President, this is not something we should delay any longer. This 
is an issue we should take up and address, amend, debate, and then come 
to a reasonable conclusion. I want to repeat my commitment to working 
with the White House, to working with all opponents of the legislation 
in its present form. For us to do nothing, as has been the case over 
the last several years, as time after time this issue has been brought 
up and blocked through parliamentary procedures, is not fair. It is not 
fair and honest to the American people to refuse to address the issue.

[[Page 10964]]

  As I said with campaign finance reform, if the result of the debates 
and amendments is not to my liking and I don't agree with the result, I 
will respectfully vote against it. But I will not try to block it. I 
hope Members on both sides of the aisle will make that commitment as 
well because of the importance of the issue to the American people. It 
deserves a full and complete debate and vote.
  I want to work together with my colleagues on both sides of the 
aisle. We have had meaningful negotiations. We have had good 
discussions. As a result of amendments, we will have further 
discussions. I hope that over time we will be able to reach an 
agreement. I again express my support for the unanimous consent request 
the majority leader propounded because I think it is a fair and honest 
way, providing no advantage to either side on this debate.
  Again, I thank my colleagues for their commitment and involvement in 
this issue, but most of all I want to thank these 300-some 
organizations--the nurses and the doctors of America, in particular--
who have committed themselves to addressing this issue so that all 
Americans can receive the health care they deserve.
  I ask unanimous consent that a list of organizations supporting the 
bill be printed in the Record.
  There being no objection, the list was ordered to be printed in the 
Record, as follows:

Professional Groups and Grassroots Organizations Supporting the McCain-
      Edwards-Kennedy Bill--The Bipartisan Patient Protection Act

       Abbott House of Irvington, NY; Abbott House, Inc. in South 
     Dakota; AIDS Action; Alliance for Children and Families; 
     Alliance for Lung Cancer Advocacy, Support and Education; 
     Alpha 1; Alternative Services, Inc; Amalgamated Transit 
     Union; American Academy of Child and Adolescent Psychiatry; 
     American Academy of Dermatology Association; American Academy 
     of Emergency Medicine; American Academy of Facial Plastic and 
     Reconstructive Surgery.
       American Academy of Family Physicians; American Academy of 
     Mental Retardation; American Academy of Neurology; American 
     Academy of Ophthalmology; American Academy of 
     Otolaryngology--Head and Neck Surgery; American Academy of 
     Pain Medicine; American Academy of Pediatrics; American 
     Academy of Physical Medicine and Rehabilitation; American 
     Association for Geriatric Psychiatry; American Association 
     for Marriage and Family Therapy; American Association for 
     Psychosocial Rehabilitation; American Association for the 
     Study of Liver Diseases.
       American Association of Children's Residential Center; 
     American Association of Neurological Surgeons; American 
     Association of Nurse Anesthetists; American Association of 
     Oral and Maxillofacial Surgeons; American Association of 
     Pastoral Counselors; American Association of People with 
     Disabilities; American Association of Private Practice 
     Psychiatrists; American Association of University Affiliated 
     Programs for Persons with Developmental Disabilities; 
     American Association of University Women; American 
     Association on Health and Disability; American Association on 
     Mental Retardation; American Bar Association.
       American Board of Examiners in Clinical Social Work; 
     American Cancer Society; American Children's Home in 
     Lexington, NC; American Chiropractic Association; American 
     College of Cardiology; American College of Gastroenterology; 
     American College of Legal Medicine; American College of Nurse 
     Midwives; American College of Nurse Practitioners; American 
     College of Obstetricians and Gynecologists; American College 
     of Osteopathic Emergency Physicians; American College of 
     Osteopathic Family Physicians.
       American College of Osteopathic Pediatricians; American 
     college of Osteopathic Surgeons; American College of 
     Physicians--American Society of Internal Medicine; American 
     College of Surgeons; American Congress of Community Supports 
     and Employment Services--ACCSES; American Council on the 
     Blind; American Counseling Association; American Dental 
     Association; American Family Foundation; Federation of 
     Teachers; American Foundation for the Blind; American 
     Gastroenterological Association.
       American Group Psychotherapy Association; American Headache 
     Society; American Health Quality Association; American Heart 
     Association; American Lung Association; American Medical 
     Association; American Medical Rehabilitation Providers 
     Association; American Medical Student Association; American 
     Medical Women's Association, Inc.; American Mental Health 
     Counselors Association; American Music Therapy Association; 
     American Network of Community Options and Resources.
       American Nurses Association; American Occupational Therapy 
     Association; American Optometric Association; American 
     Orthopsychiatric Association; American Osteopathic 
     Association; American Pain Society; American Pharmaceutical 
     Association; American Physical Therapy Association; American 
     Podiatric Medical Association; American Psychiatric 
     Association; American Psychiatric Nurses Association; 
     American Psychoanalytic Association.
       American Psychological Association; American Public Health 
     Association; American Small Business Association; American 
     Society for Clinical Laboratory Science; American Society for 
     Therapeutic Radiology and Oncology; American Society of 
     Cataract and Refractive Surgery; American Society of Clinical 
     Oncology; American Society of Clinical Pathologists; American 
     Society of Gastrointestinal Endoscopy; American Society of 
     General Surgeons; American Society of Internal Medicine; 
     American Society of Nuclear Cardiology.
       American Speech-Language-Hearing Association; American 
     Therapeutic Recreation Association; American Thorasic 
     Society; American Urogynecologic Association; American 
     Urological Association; American Urological Society; American 
     for Democratic Action; Anxiety Disorders Association of 
     America; Arc of the United States; Association for Ambulatory 
     Behavioral Healthcare; Association for Education and 
     Rehabilitation of the Blind and Visually Impaired; 
     Association for the Advancement of Psychology.
       Association of Academic Physiatrists; Association of 
     Academic Psychiatrists; Association of American Cancer 
     Institutes; Association of Community Cancer Centers; 
     Association of Persons in Supported Employment Association of 
     Women's Health, Obstetric and Neonatal Nurses; Assurance Home 
     in Roswell, NM; Auberle or McKeesport, PA; Baker Victory 
     Services In Lackawanna, NY; Baptist Children's Home of NC; 
     Barium Springs Home for Children in Barium Spring, NC; 
     Bazelon Center for Mental Health Law.
       Berea Children's Home and Family in OH; Bethany for 
     Children and Families; Bethesda Children's Home/Luthera of 
     Meadsville, PA; Board of Child Care in Baltimore, MD; Boys & 
     Girls Country of Houston Inc., TX; Boys & Girls Homes of 
     North Carolina; Boys and Girls Harbor, Inc. in TX; Boys and 
     Girls Home and Family Services in Sioux City, IA; Boys' 
     Village, Inc. of Smithville, OH; Boysville of Michigan, Inc.; 
     Brain Injury Association; Brazoria County Youth Homes in TX.
       Brighter Horizons Behavioral Health in Edinboro, PA; 
     Buckner Children and Family Service in TX; Butterfield Youth 
     Services in Marshall, MO; Cal Farley's Boys Ranch and 
     Affiliates; California Access to Speciality Care Coalition; 
     Cancer Care, Inc.; Cancer Leadership Council; Cancer Research 
     Foundation of America; Catholic Family Center of Rochester, 
     NY; Catholic Family Counseling in St. Louis, MO; Catholic 
     Social Services of Wayne County, in IN; Center for Child and 
     Family Services in VA.
       Center for Families and Children in OH; Center for Family 
     Services, Inc. in Camden, NJ; Center for Patient Advocacy; 
     Center on Disability and Health; Chaddock; Charity Works, 
     Inc.; Child and Family Guidance Center in TX; Child and 
     Family Service of Hawaii; Child and Family Services in TN; 
     Child and Family Services of Buffalo, NY; Child and Family 
     Services, Inc. in VA; Child Care Association of Illinois.
       Child Welfare League of America; Children & Families First; 
     Children & Family Services Association; Children and Adults 
     with Attention Deficit/Hyperactivity Disorder; Children's Aid 
     and Family Service in Paramus, NJ; Children's Aid Society of 
     Mercer, PA; Children's Alliance; Children's Board of 
     Hillsborough; Children's Choice, Inc. in Philadelphia, PA; 
     Children's Defense Fund; Children's Home & Aid Society of 
     Chicago, IL; Children's Home Association of Illinois.
       Children's Home of Cromwell; Children's Home of Easton in 
     Easton, PA; Children's Home of Northern Kentucky; Children's 
     Home of Poughkeepsie, NY; Children's Home of Reading, PA; 
     Children's Home of Wyoming Conference; Children's Village, 
     Inc.; ChildServ; Christian Home Association-Child; Clinical 
     Social Work Federation; Coalition of National Cancer 
     Cooperative Group; Colon Cancer Alliance.
       Colorectal Cancer Network; Committee of Ten Thousand; 
     Community Agencies Corporation of New Jersey; Community 
     Counseling Center in Portland, ME; Community Service Society 
     of New York; Community Services of Stark County in OH; 
     Community Solutions Association of Warren, OH; Compass of 
     Carolina in SC; Congress of Neurological Surgeons; 
     Connecticut Council of Family Service; Consortium for 
     Citizens with Disabilities; Consuelo Foundation.
       Consumers Union; Cornerstones of Care in Kansas City, MO; 
     Corporation for the Advancement of Psychiatry; Council of 
     Family and Child Caring Agencies in NY; Counseling and Family 
     Services of Peoria, IL; Court House, Inc. in Englewood, CO; 
     Covenant Children's Home and Families; Crittenton Family 
     Services in Columbus, OH; Crossroads of Youth; Cure for 
     Lymphoma Foundation; Cystic Fibrosis Foundation; Daniel, Inc.
       Denver Childrens Home; DePelchin Children's Center in TX; 
     Digestive Disease National Coalition; Dystonia Medical 
     Research

[[Page 10965]]

     Foundation; Easter Seals; Edgar County Children's Home; El 
     Pueblo Boys and Girls Ranch; Elon Homes for Children in Elon 
     College, NC; Epilepsy Foundation of America; Ettie Lee Youth 
     and Family Services in Baldwin Park, CA; Excelsior Youth 
     Center in WA; Eye Bank Association of America.
       Facing Our Risk of Cancer Empowered; Families First, Inc.; 
     Families USA; Family & Children's Center Council; Family & 
     Children's Center in WI; Family & Counseling Service of 
     Allentown, PA; Family Advocacy Services of Baltimore; Family 
     and Child Services of Washington; Family and Children's 
     Service in VA; Family and Children's Services of Tulsa, OK; 
     Family and Children's Services of San Jose; Family and 
     Children's Agency Inc. in Norwalk, CT.
       Family and Children's Association of Mineola, NY; Family 
     and Children's Center of Mishawaka, IN; Family and Children's 
     Counseling of Louisville, KY; Family and Children's Service 
     in Minneapolis, MN; Family and Children's Service in TN; 
     Family and Children's Service of Harrisburg, PA; Family and 
     Children's Service of Niagara Falls, NY; Family and 
     Children's Services in Elizabeth, NJ; Family and Children's 
     Services of Central, NJ; Family and Children's Services of 
     Chattanooga, Inc. in TN; Family and Children's Services of 
     Fort Wayne; Family and Children's Services of Indiana.
       Family and Community Service of Delaware County, PA; Family 
     and Social Service Federation of Hackensack, NJ; Family and 
     Youth Counseling Agency of Lake Charles, LA; Family Centers, 
     Inc. in Greenich, CT; Family Connections in Orange, NJ; 
     Family Counseling & Shelter Service in Monroe, MI; Family 
     Counseling Agency; Family Counseling and Children's and 
     Children's Services; Family Counseling Center of Central 
     Georgia, Inc.; Family Counseling Center of Sarasota, FL; 
     Family Counseling of Greater New Haven, CT; Family Counseling 
     Service in Texas.
       Family Counseling Service of Greater Miami; Family 
     Counseling Service of Lexington; Family Counseling Service of 
     Northern Nevada; Family Counseling Service, Inc. in 
     Lexington, KY; Family Guidance Center in Hickory, NC; Family 
     Guidance Center of Alabama; Family Resources, Inc. in IA; 
     Family Service Agency of Arizona; Family Service Agency of 
     Arkansas; Family Service Agency of Central Coast; Family 
     Service Agency of Clark and Champaign Counties in OH; Family 
     Service Agency of Davie in CA.
       Family Service Agency of Genesee, MI; Family Service Agency 
     of Monterey in CA; Family Service Agency of San Bernardino in 
     CA; Family Service Agency of San Mateo in CA; Family Service 
     Agency of Santa Barbara in CA; Family Service Agency of Santa 
     Cruz in CA; Family Service Agency of Youngstown, OH; Family 
     Service and Children's Alliance of Jackson, MI; Family 
     Service Association Greater Boston; Family Service 
     Association in Egg Harbor, NJ; Family Service Association of 
     Beloit, WA; Family Service Association of Bucks County in PA.
       Family Service Association of Central Indiana; Family 
     Service Association of Dayton, OH; Family Service Association 
     of Greater Tampa; Family Service Association of Greater 
     Tampa, FL; Family Service Association of Howard County, Inc., 
     IN; Family Service Association of New Jersey; Family Service 
     Association of San Antonio, TX; Family Service Association of 
     Wabash Valley, IN; Family Service Association of Wyoming 
     Valley in PA; Family Service Aurora, WI; Family Service 
     Center in SC; Family Service Center in TX.
       Family Service Center of Port Arthur, TX; Family Service 
     Centers of Pinellas County, Inc. in Clearwater, FL; Family 
     Service Council of California; Family Service Council of 
     Indiana; Family Service Council of OH; Family Service in 
     Lancaster, PA; Family Service in Lincoln, NE; Family Service 
     in Omaha, NE; Family Service in WI; Family Service Inc. in 
     St. Paul, MN; Family Service of Burlington County in Mount 
     Holly, NJ; Family Service of Central Connecticut.
       Family Service of Chester County in PA; Family Service of 
     El Paso, TX; Family Service of Gaston County in Gastonia, NC; 
     Family Service of Greater Baton Rouge, LA; Family Service of 
     Greater Boston, MA; Family Service of Greater New Orleans, 
     LA; Family Service of Lackawanna County, PA; Family Service 
     of Morris County in Morristown, NJ; Family Service of Norfolk 
     County, MA; Family Service of Northwest, OH; Family Service 
     of Racine, WI; Family Service of Roanoke Valley in VA.
       Family Service of the Cincinnati, OH; Family Service of the 
     Piedmont in High Point, NC; Family Service of Waukesha 
     County, WI; Family Service of Westchester, NY; Family Service 
     of York in PA; Family Service Spokane in WA; Family Service, 
     Inc. in SD; Family Service, Inc. in TX; Family Service, Inc. 
     of Detroit, MI; Family Service, Inc. of Lawrence, MA; Family 
     Services Association, Inc. in Elkton, MD; Family Services 
     Center in Huntsville, AL.
       Family Services in Canton, OH; Family Services Cedar 
     Rapids; Family Services of Central Massachusetts; Family 
     Services of Davidson County in Lexington, NC; Family Services 
     of Delaware County; Family Services of Elkhart County, IN; 
     Family Services of King County in WA; Family Services of 
     Montgomery County, PA; Family Services of Northeast 
     Wisconsin; Family Services of Northwestern in Erie, PA; 
     Family Services of Southeast Texas; Family Services of Summit 
     County in Akron, OH.
       Family Services of the Lower Cape Fear in NC; Family 
     Services of the Mid-South in TN; Family Services of 
     Tidewater, Inc. in VA; Family Services of Western PA; Family 
     Services Woodfield; Family Services, Inc. in SC; Family 
     Services, Inc. of Layfette; Family Services, Inc. of Wintson-
     Salem, NC; Family Solutions of Cuyahoga Falls, OH; Family 
     Support Services in TX; Family Tree Information, Education & 
     Counseling in LA; Family Violence Prevention Fund.
       FamilyMeans in Stillwater, MN; Federation of Behavioral, 
     Psychological & Cognitive Sciences; Federation of Families 
     for Childrens Mental Health; FEI Behavioral Health in WI; 
     Florida Families First; Florida Sheriffs Youth Ranches; 
     Friends Committee on National Legislation; Gateway in 
     Birmingham, AL; Gateways for Youth and Families in WA; George 
     Junior Republic in Indiana; Gibault; Girls and Boys Town in 
     NE.
       Goodwill-Hinckley Homes for Boys; Greenbrier Childrens 
     Center in Savannah, GA; Growing Home in St. Paul, MN; 
     Haddasah; Heart of America Family Services in Kansas City, 
     KS; Hemochromatosis Foundation; Hereditary Colon Cancer 
     Association; Highfields, Inc. in Onondage, MI; Holy Family 
     Institute of Pittsburgh, PA; Home on the Range in Sentinel 
     Butte in Sentinel Butte, ND; Hubert H. Humphrey, III--Former 
     Minnesota Attorney General; Human Services, Inc. in Denver, 
     CO.
       Huntington's Disease Society of America; IARCCA An 
     Association of Children; Idaho Youth Ranch; Indiana United 
     Methodist Children; Infectious Disease Society of America; 
     International Association of Psychosocial Rehabilitation 
     Services; Jackson-Field Homes in VA; Jane Addams Hull House 
     Association in Chicago, IL; Jeffrey Modell Foundation; Jewish 
     Board of Family & Children in New York, NY; Jewish Community 
     Services of South Florida; Jewish Family & Career Services in 
     Atlanta, GA.
       Jewish Family & Children's Service in TX; Jewish Family and 
     Children's Service in Minnetonka, MN; Jewish Family and 
     Community Service in Chicago, IL; Jewish Family Service in 
     Providence, RI; Jewish Family Service in Teaneck, NJ; Jewish 
     Family Service in TX; Jewish Family Service of Akron, OH; 
     Jewish Family Services of Los Angeles; Julia Dyckman Andrus 
     Memorial Children's Center in NY; June Burnett Institute; 
     Kemmerer Village; Kentucky United Methodist Homes.
       Kidney Cancer Association; KidsPeace National Centers, Inc. 
     in PA; Lakeside, Kalamazoo, MI; LaSalle School, Inc. in 
     Albany, NY; League of Women Voters; Leake and Watts Services, 
     Inc. in Yonkers, NY; Learning Disabilities of America; Lee 
     and Beulah Moor Children's Home in TX; Leukemia and Lymphoma 
     Society; Lupus Foundation of America, Inc.; Lutheran Child & 
     Family Service in Bay City, MI; Lutheran Child & Family 
     Services in River Forest, IL.
       Lutheran Social Services of Wisconsin; Manisses 
     Communications Group in RI; Maple Shade Youth & Family 
     Services; Maryhurst, Inc.; Maryland Association of Resources 
     for Families & Youth; Massachusetts Council of Family; MediCo 
     Unlimited, LLC; Mental Fitness Center; Mental Health America, 
     Inc.; Mental Health Liaison Group; Methodist Children's Home 
     in TX; Metropolitan Family Service of Portland, OR.
       Metropolitan Family Services of Chicago; Michigan 
     Federation of Private Child & Family Agencies; Michigan State 
     Medical Society; Mid-South Chapter of the Paralyzed Veterans 
     of America; Milton Hershey School in Hershey, PA; Missouri 
     Baptist Children's Home; Missouri Coalition of Children's 
     Agencies; Missouri Girls Town; Mooseheart Child City and 
     School in IL; Morning Star Boys' Ranch in WA; Mountain 
     Community Resources; Namaqua Center in CO.
       Natchez Children's Home in Natchez, MS; National 
     Association of Public Hospitals and Health Systems; National 
     Alliance for the Mentally Ill; National Alliance of Breast 
     Cancer Organizations; National Association for Medical 
     Direction of Respiratory Care; National Association for Rural 
     Mental Health; National Association for the Advancement of 
     Orthotics and Prosthetics; National Association of Children's 
     Hospitals; National Association of County Behavioral Health 
     Directors; National Association of Developmental Disabilities 
     Councils; National Association of People with AIDS; National 
     Association of Physicians Who Care.
       National Association of Private Schools for Exceptional 
     Children; National Association of Private Special Education 
     Centers; National Assoicaiton of Protection and Advocacy 
     Systems; National Association of School Psychologists; 
     National Association of Social Workers; National Black Womens 
     Health Project, Inc.; National Breast Cancer Coalition; 
     National Catholic Social Justice Lobby; National Coalition 
     for Cancer Survivorship; National College of Osteopathic 
     Emergency Physicians; National Committee to Preserve Social 
     Security and Medicare; National Community Pharmacists 
     Association.
       National Consumers League; National Council for Community 
     Behavioral Health; National Depressive and Manic-Depressive

[[Page 10966]]

     Association; National Down Syndrome Congress; National Family 
     Planning and Reproductive Health Association; National Health 
     Council; National Hemophilia Foundation; National Marfan 
     Foundation; National Mental Health Association; National 
     Multiple Sclerosis Society; National Organization for Rare 
     Disorders; National Organization of Physicians Who Care.
       National Organization of State Association for Children in 
     MD; National Parent Network on Disabilities; National 
     Partnership for Women and Families; National Patient Advocate 
     Foundation; National Psoriasis Foundation; National 
     Rehabilitation Association; National Therapeutic Recreation 
     Society; National Transplant Action Committee; National 
     Women's Health Network; National Women's Law Center; Nation's 
     Voice on Mental Illness; Nazareth Children's Home in 
     Rockwell, NC.
       NETWORK; Neurofibromatotis, Inc.; New Community Corporation 
     in Newark, NJ; Newark Emergency Services for Families in New 
     Jersey; NISH; Norris Adolescent Center in WI; North American 
     Brain Cancer Coalition; Northeast Parent & Child Society in 
     New York; Northern Virginia Family Service; Northwest Chapter 
     of Paralyzed Veterans of America; Northwest Childrens Home, 
     Inc.; Northwood Children's Services in Duluth, MN.
       Oak Grove Institute Foundation; Oakland Family Services; 
     Olive Crest Treatment Centers; Omaha Home for Boys in 
     Nebraska; Oncology Nursing Society; Organization of 
     Specialist in Emergency Medicine; Outcomes, Inc. in 
     Albuquerque, NM; Ovarian Cancer National Alliance; PA 
     Alliance for Children and Families in Hummelstown, PA; 
     Pacific Lodge Youth Services; Paget Foundation; Pain Care 
     Coalition.
       Palmer Home for Children in Columbus, MS; Pancreatic Cancer 
     Action Network; Paralyzed Veterans of America; Patient Access 
     Coalition; Patient Access to Responsible Care Alliance; 
     Patients Who Care, Inc.; Pediatric Orthopaedic Society of 
     North America; Pennsylvania Council of Children in 
     Harrisburg, PA; Perkins School for the Blind; Personal & 
     Family Counseling Service of New Philadelphia, OH; 
     Philadelphia Health Management Corporation in PA; Planned 
     Parenthood Federation of America;
       Presbyterian Home for Children; Pressley Ridge Schools in 
     PA; Provident Counseling, Inc. in St. Louis, MO; 
     Rehabilitation Engineering and Assistive Technology Society 
     of North America; Religious Action Center of Reform Judaism; 
     Research Institute for Independent Living; RESOLVE; Riverbend 
     Head Start & Family Service; Salem Children's Home; Salvation 
     Army Family Services; San Mar, Inc. of Boonsboro, MD; 
     Scarsdale Edgemont Family Counsel in NY.
       School Social Work Association of America; Seattle 
     Children's Home in WA; Seedco/Non-Profit Assistance,; Service 
     Net. Inc. in PA; Sheriffs Youth Programs of Minneapolis; 
     Sipe's Orchard Home in Conover, NC; Sjogren's Syndrome 
     Foundation; Society for Excellence in Eye care; Society for 
     Maternal-Fetal Medicine; Society of Cardiovascular & 
     Interventional Radiology; Society of Gastroenterology Nurses 
     and Associates, Inc.; Society of Gynecologic Oncologist;
       Southmountain Children's Homes in Nebo, NC; Spina Bifida 
     Association of America; St. Anne Institute of Albany, NY; St. 
     Colman's Home in Watervliet, NY; St. Joseph Chilren's Home; 
     St. Joseph's Indian School in SD; St. Mary's Home Home of 
     Beaverton, OR; St. Vincent's Services, Inc. of Brooklyn, NY; 
     Starr Commonwealth; Sunbeam Family Services of Oklahoma City, 
     OK; Sunny Ridge Family Center; Susan G. Komen Breast Cancer 
     Foundation.
       Tabor Children's Services, Inc. of Doylestown, PA; Teen 
     Ranch, Inc. Marlette, MI; Tennessee Citizen Action; Texas 
     Association of Leaders in Children & Family; Texas Medical 
     Association; The Arc of the United States; The Bradley Center 
     in PA; The Center for Families, Inc.--Shreveport, LA; The 
     Children's Home in Catonsville, MD; The Endocrine Society; 
     The Family Center; The Hutton Settlement in WA.
       The Learning Disabilities of America; The Mechanicsburg 
     Children's Home of Mechanicsburg, PA; The Omaha Home for Boys 
     in NE; The Organization of Specialists in Emergency Medicine; 
     The Paget Foundation for Pagets's Diseases of Bone and 
     Related Disorders; The Pressley Ridge Schools in PA; The 
     Village Family Service Center in Fargo, ND; The Woodlands in 
     Newark, OH; Third Way Center; Thornwell Home and School for 
     Children in SC; Title II Community AIDS National Network; 
     Tourette Syndrome Association.
       Treatment Access Expansion Project; Triangle Family 
     Services in Raleigh, NC; Tulsa Boys' Home in Tulsa, OK; 
     Turning Point Center; Uhlich Children's Home; United Auto 
     Workers; United Cerebral Palsy Association; United Community 
     & Family Service; United Family Services in Charlotte, NC; 
     United Methodists Childrens Home; United Ostomy Association; 
     United States Public Interest Research Group (U.S. Pirg).
       US TOO International, Inc.; USAction; Vera Lloyd 
     Presbyterian Home & Family Services in AR; Verdugo Mental 
     Health Center; Village for Families & Children; Virginia Home 
     for Boys; Webster-Cantrell Hall; Wellness Community; Whaley 
     Children's Center; Wisconsin Association of Family and 
     Children; Wisconsin Paralyzed Veterans of America; Woodland 
     Hills in Duluth, MN; Yellowstone Boys and Girls Ranch in 
     Billings, MT; Youth Haven, Inc. in Naples, FL; Youth Service 
     Bureau in Portland, IN; YWCA of Northeast Louisana.

  Mr. McCAIN. Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from North Carolina is recognized.
  Mr. EDWARDS. Mr. President, I ask unanimous consent that at the 
conclusion of my remarks I be followed by Senator Kennedy, who is also 
a sponsor of this legislation.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. EDWARDS. Mr. President, I thank my friend from Arizona, who 
worked with me over a period of many months to help put together this 
legislation--after work had been done for many years by a number of 
Members of the Senate, led by Senator Kennedy.
  The law for many years in this country has been on the side of big 
HMOs and insurance companies. They have been treated like no other 
person in America is treated, like no other business, small or large; 
they are privileged citizens. The American people want to take away 
that privileged status from HMOs and insurance companies. They are the 
only group in America that can say to a family: Your child is not going 
to get the medical care your doctor thinks they need.
  They can overrule the decision of a medical doctor that has been made 
after many years of training and experience, even though they may have 
no experience or training whatsoever. Some young clerk sitting behind a 
desk somewhere can overrule a medical expert, and if they do it, there 
is absolutely nothing that can be done about it.
  The HMOs, the insurance companies, are accountable to no one. Their 
judgment can't be questioned; their decision can't be reversed; and 
they can't be challenged anyplace, including in court.
  That is what this bill is about. What we are about--Senator McCain, 
Senator Kennedy, I, and all of the sponsors of this legislation--is 
changing the law. We want to move the law from the side of big 
insurance companies and HMOs and finally put the law on the side of 
patients, nurses, and doctors.
  Every one of us, in traveling around our home States, has heard 
horror story after horror story of families and patients being run over 
by big HMOs. Let me recount one I heard in North Carolina.
  A young man, Steve Grissom, contracted leukemia. In the course of his 
treatment, he had to get a blood transfusion. As part of the blood 
transfusion, he got AIDS. He got sicker and sicker and sicker. He was 
being seen by a heart specialist at Duke University Hospital. That 
doctor prescribed 24-hour-a-day oxygen for Steve because he needed it. 
This was a doctor with many years of training at one of the leading 
medical institutions in the country. Steve's wife's employer changed 
HMOs. Some clerk sitting behind a desk somewhere, without medical 
training, having never seen Steve Grissom, knowing nothing about it, 
decided they weren't going to pay for this oxygen anymore. They 
literally cut off his oxygen.
  Steve had nowhere to go. Why? Because under the law of the land, as 
we stand here today, HMOs can do exactly what they did to Steve 
Grissom, and no one can do a single thing about it. You can't question 
their decision; you can't question their judgment; you can't reverse 
it; and you can't take them to court. So somebody such as Steve, who 
has a terrible time trying to pay for this oxygen himself, is stuck--
even though they have paid premiums and paid for coverage, and any 
reasonable physician in America knows he needs this care.
  That is what this act is about. The Bipartisan Patient Protection Act 
changes that. We are going to change the law so that finally patients, 
nurses, doctors, and health care providers who know how to make these 
medical decisions and families who are involved and whose children are 
being affected by these decisions will have some power of the law on 
their side.
  Let me talk briefly about some specifics of our legislation. We 
provide and

[[Page 10967]]

guarantee access by women to OB/GYNs as their primary care provider. 
They don't have to get permission from anybody. They can do that. If a 
child needs to see a specialist, a pediatrician--a child with cancer 
who may need to be seen by a pediatric oncologist--that child has an 
absolute right to go see that specialist if they need it for their 
life-sustaining care.
  Emergency room care. If a patient or a family experiences an 
emergency and they need to get to the doctor, to the hospital, to the 
emergency room, they don't have to call a 1-800 number; they don't have 
to call the HMO; they don't have to get written permission. What any 
family will do when under an emergency situation such as that and they 
need care quickly, quality care, they can go straight to the nearest 
emergency room without worrying about whether the HMO will cover. Under 
our law, they are covered, period.
  Scope. Our bill specifically provides that every American who has 
health insurance or HMO coverage is covered by our bill, period. They 
have at least the protections provided in this bipartisan legislation. 
If a State has better protections for the patient, better protections 
for the doctor, those protections stay in place. But our bill provides 
a floor below which no State can go.
  So the basic protections provided in our bill--access to specialists, 
women being able to go see an OB/GYN, going to the nearest emergency 
room, access to clinical trials, which is critical to many Americans--
they will have under this legislation an absolute right to those 
protections.
  Finally, accountability. Mr. President, these rights mean nothing if 
they are not enforceable. If they are not enforceable, this is not a 
Patients' Bill of ``Rights;'' it is a patients' bill of 
``suggestions.'' But because we have accountability and we have 
enforceability, these are substantive rights that in fact can be 
enforced. Finally, HMOs are going to be treated as everybody else in 
America. They are going to be held accountable, held responsible, which 
means at the outset that they have an incentive to do the right thing, 
which is what this legislation is about--having the HMO do the right 
thing from the beginning and having the patient, if they don't, be able 
to do something about it.
  What we do is set up a system that is designed to avoid lawsuits. We 
have, first, an internal review process so that if the HMO says they 
are not going to cover a particular kind of care or treatment, the 
patient can go through an internal review at the HMO. Second, if that 
process is unsuccessful, the patient can then go to an independent 
external review. This is a panel of doctors, health care providers, who 
aren't connected to the HMO, aren't connected to the patient or the 
treating doctor, who can make a fair and objective decision about 
whether this treatment is necessary. So the patient now has two 
different ways to get the HMO's decision reversed.
  If that is unsuccessful, if for whatever reason the appeals process 
does not work, as a last resort, if the patient has been unsuccessful 
after doing all of that and if the patient has been injured as a result 
of what the HMO did, then as a matter of last resort the patient can go 
to court.
  Now, first of all, with respect to employers, we specifically provide 
that employers cannot be held responsible. They cannot be sued; they 
cannot be liable. Employers are specifically protected under our bill. 
The only exception to that is if the employer actually makes a medical 
decision--if they step into the shoes of the HMO and do what no small 
or medium-sized employer in America would do if they actually make a 
medical judgment.
  By the way, this provision that employers can only be held 
responsible if they make a medical decision and otherwise they are 
protected is identical to President Bush's principle on this issue. His 
principle provides that employers may only be held responsible if they 
make medical decisions. That is precisely what our bill does.
  On this issue, the protection of employers, the President's 
principles and our bill are exactly the same.
  If it becomes necessary after a patient has gone through the appeals 
process--internal and external review--and a patient has been injured 
for the case to go to court, we start with a very simple principle. 
That principle is this: We want to treat HMOs and insurance companies 
just as the other health care providers. They are making health care 
decisions. They have decided to overrule a doctor who decided a patient 
needed a particular kind of care. When they decide to overrule the 
doctor and step into the shoes of the doctor, we think they ought to be 
treated like the doctor, just like the hospitals, just like the nurses.
  What we provide is they can be taken to State court, just like the 
doctors, just like the hospitals, and they are subject to whatever 
limitations exist under State law by way of recovery.
  The majority of the States in this country have caps or limits on 
recovery, limits on noneconomic damages, in some cases, what is called 
pain and suffering, limits on punitive damages, and some States provide 
you cannot recover punitive damages.
  The bottom line is this: Whatever the State law is, that law applies 
to the HMO, just exactly as it applies to the doctor, to the nurse, to 
the hospital, to everybody else in the State. We start with the basic 
idea that HMOs are not privileged citizens; that they are just the same 
as the rest of us and ought to be treated the same as the rest of us. 
That is what our bill does: It treats the HMOs the same as the other 
health care providers when they, in fact, overrule a doctor and make a 
health care decision.
  That structure--sending those cases to State court--is what has been 
recommended by the Judicial Conference of the United States headed by 
Chief Justice Rehnquist. It is what is recommended by the American Bar 
Association. It is what is recommended by the State attorneys general.
  People who understand the court system but are objective, not on one 
side or the other of this debate, have decided this is the place these 
cases should go for a variety of reasons. No. 1, it treats the HMOs the 
same as doctors and hospitals are treated. No. 2, they are courts 
accustomed to handling these types of cases. It makes it more likely 
the patient can get their case heard more quickly.
  It is fair. It is equitable. It is supported by every group of 
objective experts--Judicial Conference, the ABA, the State attorneys 
general--and, by the way, follows exactly the outline set forth by the 
U.S. Supreme Court in the Pegram decision.
  This idea of sending these cases to State court is an idea that is 
supported by the big legal organizations across the country and as 
outlined by the U.S. Supreme Court in the Pegram case.
  The basic principle is we treat HMOs exactly the same way we treat 
doctors and hospitals if they are going to be in the business of making 
medical decisions.
  The only cases that would go to Federal court under this bill are the 
cases that have, since 1974, been decided in Federal court. Those are 
the cases involving pure language of the contract. For example, whether 
a particular provision has been met or whether the 90-day waiting 
period has been met. Those cases go to Federal court. They have always 
been in Federal court. We leave them exactly where they are.
  What we do not do is what has been proposed by some, which is to send 
every case against an HMO to Federal court. The Federal courts are 
backlogged so that is a way to bury the cases and assure they never get 
heard. It is more difficult to get attorneys because many attorneys do 
not practice in Federal court, and many people are a long way from the 
nearest Federal courthouse. There is almost always a State courthouse 
close by, but Federal courthouses, especially in rural America, are 
hundreds of miles away in many cases.
  We have a system that works. It has been outlined by the U.S. Supreme 
Court. It is what legal experts say should be done. Most importantly, 
it is fair. It treats the HMOs the same as everybody else, which is the 
goal of this legislation.

[[Page 10968]]

  Finally, we do require, in order for a case to be brought to court, 
that, first, all appeals be exhausted. That is, the patient must first 
go to the internal review and, second, to the external review. What we 
have learned from the two States that have served as models for this 
legislation--Texas and California--is almost all cases are resolved by 
that process. The reason is we structured the bill to avoid lawsuits. 
It has, in fact, worked in the two States that have followed our 
model--California and Texas, two of the biggest States in the country, 
two of the States where there has been historically the largest amount 
of litigation in the country.
  There have been 16, 17 lawsuits since those bills have been enacted 
in those two States. The vast majority of cases have been resolved 
exactly as our bill provides. They have been resolved through the 
process of the appeal.
  There has been some argument made about health care costs going up 
and people losing their insurance. The majority leader spoke to this 
earlier. Our bill, according to the Congressional Budget Office, raises 
insurance premiums about 4 percent over 5 years. Not 4 percent 
annually, 4 percent over 5 years.
  The competing bill, the Frist-Breaux provision, raises insurance 
premiums about 3 percent over 5 years. So there is very little 
difference between the two bills.
  In addition to that, of the 4 percent increase in our bill, the vast 
majority of that has to do with better health care. It has nothing to 
do with lawsuits, nothing to do with litigation.
  Mr. President, .8 percent, less than 1 percent, has to do with 
litigation. The remainder, over 3 percent, has to do with better access 
to the clinical trials, better access to specialists, better access to 
emergency rooms.
  It specifically provides better care. When people get better care, it 
costs a little bit more, and they will get a better product.
  On balance, both bills increase costs slightly--3 percent in 1 case 
over 5 years; 4 percent in our case over 5 years. But as a direct 
result of this legislation being passed, people will have better 
quality care, and the cost has very little to do with the fact the HMOs 
can now be held accountable and be taken to court.
  It is not an accident that the American Medical Association and over 
300 health care and consumer groups in America support our bill. It is 
not an accident that the big HMOs and their lobby are spending millions 
of dollars to defeat our bill. It is not an accident that the HMOs like 
the Frist-Breaux bill and do not like our bill.
  As we go through this debate, it will become clear that on every 
single difference, between the legislation we have offered and the 
competing legislation, whether it is coverage and whether States can 
opt out, whether it is access to specialists outside the plan, whether 
it is a truly independent review that the HMO can have no control over, 
whether it is going to court and which court you go to, in every single 
difference we protect the patients, they protect the HMOs.
  Their bill, as Dr. Norwood, a Republican House Member from Georgia 
who has fought on this issue for years, has described it, is an HMO 
protection act. It is not an accident that all the health care groups 
in America and the American Medical Association support our bill.
  These are people who deal with these issues every single day, and 
they know that on all these important issues--access to specialists, 
who is covered, emergency room, access to a true independent review 
process--our bill protects the patients; their bill protects the HMOs.
  All of us have worked long and hard on this issue for a substantial 
period of time. Some have worked on it, including Senator Kennedy, for 
many years. It is time to quit talking about doing something about HMOs 
and HMO reform and actually do something about it. The American people 
are not interested in the politics--Republicans, Democrats, 
Independents--and their positions politicizing this issue. What they 
care about is that when their child needs to see a specialist, they 
want to be sure that child can see that specialist. When they need to 
go to the emergency room, they need to know they can go to the 
emergency room without having to worry if the HMO is going to pay for 
it. If the HMO does something wrong and runs over them and runs over 
their family and overrules a doctor's medical decision, they want to be 
able to do something about that. They want the HMOs to be treated just 
as all the rest of us.
  Ultimately that is what this bill is about. The bottom line question 
is, with whom do we stand? Do we stand with the big HMOs and the big 
HMO lobbies or do we stand with the doctors, nurses, and families of 
America?
  I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Massachusetts is recognized.
  Mr. KENNEDY. Mr. President, before the Senator leaves, I wonder if he 
might respond to a question or two as one of the principal sponsors.
  First of all, I wonder if he shares with me a certain degree of 
disappointment that we are not going to have the opportunity to debate 
these protections that are so important for American families. Every 
day that we fail to take action, families are being hurt. Without this 
legislation, more than 50,000 of our fellow citizens today are going to 
suffer further injury or pain. This is the result of failing to take 
action.
  I want to make some general comments along the lines of those that 
the Senator made. I first say that that was an outstanding presentation 
with regard to the substance. It is difficult for me to understand the 
opposition to this, other than, as the Senator pointed out, the special 
interests of the HMO industry do not want it. I have not heard the 
administration or the Senators who are in opposition, indicate what 
protections in this legislation they would not want to give to the 
American people.
  We were informed by the Republican leadership that because this bill 
has been changed so many times, we need to hold further hearings to 
find out what is in it. There have been no hearings since March of 
1999.
  One of the leaders pointed to paragraph (C) in the legislation, where 
employers can be held accountable. Then they talked about the rising 
costs of 20 percent a year and talked further about employer liability.
  As I understand, the changes that had been made over the weekend were 
basically in response to some of the observations that were made about 
the underlying legislation. One question was about whether you could be 
sued in Federal or State court. The opposition claims our bill allows 
them to be sued in Federal and State courts at the same time. This was 
never the intention. I understand there was an attempt to explicitly 
clarify that proceeding so there would not be two forums. I understand 
that was one of the clarifications made. It was never intended to 
permit forum shopping and that was clarified.
  I might mention the rest, since there were only four of them, and 
then get the reaction of the Senator since he was very much involved in 
this.
  No. 2 was the question about the exhaustion of appeals before going 
to court. The opposition claims our bill made it too easy to go to 
court, arguing that patients can bypass the appeals process simply by 
alleging harm. Since it was not our intent to make it easy to bypass 
appeals, we resolved this matter by eliminating the word ``alleged.''
  The third was about making it easier to sue doctors. The other side 
has been claiming our bill makes doctors liable for plan 
administration. This is a rather technical issue, being sued in State 
court and now in Federal court again. That wasn't the intent. We 
clarify that the positions are protected. We also included language to 
extend civil protections to hospitals and insurance agents. There was 
some question about the application of the language. The change was 
specifically included to clarify that, to demonstrate the protections 
for those groups.
  In the fourth change, regarding protecting the State cause of action, 
we added clarifying language to protect

[[Page 10969]]

existing State court jurisdiction from inadvertent preemption under our 
bill. A rather extraneous example or two were given that might have 
created some confusion. As I understand it, that was the fourth piece 
of clarifying language.
  Finally, the IRS enforcement language was dropped, including an 
additional enforcement provision that we understand has a revenue 
impact and a blue-slip problem. To avoid the blue-slip issue, we 
dropped the provision.
  Those are the totality of the changes. Evidently they are being used 
to somehow represent that there were major kinds of alterations or 
changes to the bill which are difficult to understand. Therefore, the 
other side refuses to permit us to begin the debate on the bill.
  If the Senator would be good enough to indicate to me whether it is 
his understanding that these were the areas in which adjustments were 
made and whether the representations that were made, in terms of the 
clarifications? Was that his understanding as well?
  Mr. EDWARDS. Will the Senator yield for me to reply to the question?
  Mr. KENNEDY. I am glad to yield.
  Mr. EDWARDS. In response to the question, the areas that were changed 
were all changes in the direction of the objections of our opponents. 
In other words, they raised concerns and we made changes to clarify so 
there would be no question but that we intended exactly what they 
intended.
  For example, the first one the Senator mentions: exhaustion, which 
means you have to go through the appeals before you can take somebody 
to court, both sides intended that that be required because we want 
cases to be decided by the appeal without having to go to court, to 
avoid unnecessary lawsuits. We made it clear in this clarification that 
there is no question about that. We intend for that to be true. That 
was the purpose of the clarification.
  Second is the cases being brought in State and Federal court. The 
purpose for the change was to make it clear we want nobody to be sued 
in both State and Federal court; to clarify the language so there was 
no doubt in anybody's mind about which cases go to State court and 
which cases go to Federal court.
  Third, they complain that under our bill some physicians, perhaps, 
could be subject to lawsuits to which they otherwise would not be 
subject. So we made a change to eliminate that possibility.
  Our bill, as the Senator well knows, is intended to empower doctors, 
to empower nurses, to make the health care decisions that only they 
have the medical training and experience to make, that they have the 
qualifications to make, not some bureaucrat sitting behind a desk at 
some HMO somewhere. That is the purpose of this clarifying language.
  Mr. KENNEDY. Let me speak to this point. I am confused as to why 
there is an attempt by the Republican leadership to misrepresent what 
is in the employer provisions of the bill on page 144. I think all of 
us who have been around here find language is misrepresented and 
subsequently individuals disagree with the misrepresentation. It 
appears that is what is happening.
  The Senator has stated my understanding. Then if we look at page 144, 
regarding the responsibility of the employer in the plans, it says:

       Causes of action against employers. . . .

  Then it says:

       Subject to subparagraph (B), paragraph (1)(A) does not 
     authorize a cause of action against an employer or other plan 
     sponsor maintaining the plan (or against an employee of such 
     an employer or sponsor acting within the scope of 
     employment).

  That is extremely clear. In the President's language, which he sent 
to the Congress, and I have here, the President lists his requirement 
in his bill of particulars, which says:

       Only employers who retain the responsibility for and make 
     final medical decisions should be subject to the suit.

  That is what President Bush said is the principle. It is my 
understanding that that exact point is stated in the legislation on 
page 145, line 8:

       . . . to the extent there was direct participation by the 
     employer. . . .

  That talks about when they would be open to the responsibility.
  But as I understand it, and I welcome the comments of the Senator, 
that completely conforms with what President Bush himself has 
established. Is that correct?
  Mr. EDWARDS. The Senator is correct. The President specifically 
provided he does not want employers to be sued unless they make medical 
decisions. Our legislation does exactly that. The language completely 
conforms, in almost identical language, to the President's principle. 
We do not want employers to be sued unless somehow they step in the 
shoes of the HMOs and make a medical decision. That is exactly what the 
President is suggesting. The Senator is correct, to the extent our 
opponents--who, by the way, are trying to prevent this bill from ever 
being considered at this point in this Chamber--to the extent our 
opponents suggest under our legislation lawsuits against employers are 
allowed, they need to read the President's principles because, in fact, 
our legislation is identical to the President's principle on this 
issue.
  Mr. EDWARDS. Mr. President, if the Senator will allow me one final 
comment, the Senator well knows, having fought on this issue for many 
years and having led the fight, as Senator Daschle, our majority leader 
pointed out in his earlier comments, the American people can get a 
lesson from what is happening at this moment. We made it clear we 
intended to bring bipartisan patient protection to the floor of the 
Senate, a bill supported by Republican Senators in this Chamber and 
also in the House.
  What has been the response by our opponents? Has the response been to 
debate this issue in an open way before the American people and to make 
their case to support the HMOs' position on the floor of the Senate? 
No. Their response is to try to prevent an issue that affects millions 
and millions of Americans every year from even being heard on the floor 
of the Senate.
  I think it becomes clear who wants to provide real and meaningful 
patient protection and who wants to keep this issue from ever getting 
to the floor of the Senate so HMOs maintain their privileged status.
  Mr. KENNEDY. Mr. President, I thank the Senator.
  In the press conference of the Republican leadership, it was 
represented that there were complicated changes and alterations to the 
bill. The Senator responded to questions raised as to what these 
changes and clarifications are. This is a result of the White House 
asking the principals to work out some clarification in these areas and 
to accommodate these kinds of requests.
  Those changes were made. Now they are being used as an excuse for 
failing to bring this matter up.
  Mr. GREGG. Mr. President, will the Senator yield?
  Mr. KENNEDY. Yes; briefly.
  Mr. GREGG. I know that the Senator from Massachusetts and the Senator 
from North Carolina said the employer is not subject to liability under 
this bill. The Senator cited section 5 on page 144, subparagraph (A). 
The Senator didn't cite subparagraph (B), which says, notwithstanding 
subparagraph (A), the cause of action may arise against an employer, or 
other plan sponsor--it goes down the list--as directed participation in 
the employer's plan, and the decisions of the plan under section 102.
  So, very clearly, an employer is subject to liability under that 
section, and that ``directed participation'' is an extremely ambiguous 
phrase, I believe. I would be happy to discuss that.
  Then, if we go to page 141, where a new Federal cause of action 
against employers is created, subsection (ii) on that page says, 
``otherwise fails to exercise ordinary care in the performance of a 
duty under the terms and conditions of the plan with respect to a 
participant'' in the plan. That action creates a new cause of action, 
which is a new cause of action against the plan's sponsor, and, by the 
terms of ERISA, section 3 definition, plan sponsor is defined as--lo 
and behold--the employer.
  I believe it is very clear under this bill that employers are subject 
to the right to be sued. They are subject to the right to be sued for 
what I expect

[[Page 10970]]

are going to be multiple opportunities for a creative attorney. In 
fact, the Congressional Budget Office has basically rated this as a 
lawsuit against employers and has in fact rated the costs in this bill, 
which is significant and will lead to employers giving up their 
insurance.
  I would be interested in the Senator's definition and explanation of 
why, when the bill says in part (B) on page 144 that cause of action 
may arise against an employer or other plan sponsor, the language means 
something other than cause of action arising against the employer or 
other plan sponsor.
  Mr. KENNEDY. I am glad to respond. I hope we can do this briefly 
because we are going to recess. I will let the Senator from North 
Carolina respond to that, if I may.
  Mr. EDWARDS. Mr. President, I respond to the Senator's question by 
saying, first of all, I suggest that he read the principles because the 
language of this legislation comes directly from the President's 
principles.
  Mr. GREGG. If the Senator will yield, I am not asking the President.
  Mr. EDWARDS. Excuse me. Do I have the floor? Excuse me.
  The PRESIDING OFFICER. The Senator from Massachusetts has the floor.
  Mr. KENNEDY. Mr. President, I think we only have 2 or 3 more minutes. 
I wanted to give the opportunity for a response. I think the answer, as 
the Senator pointed out, is read from President Bush's own words. Only 
employers who retain responsibility for or make final medical decisions 
should be subject to suit. It is that language and that principle that 
has been included in the language.
  If the Senator from New Hampshire thinks that is in some way 
ambiguous, or doesn't achieve that objective, that is the objective 
that we had. That is the language that was drafted in the Senate to 
carry that purpose forward. But we are open.
  Does he agree with that principle? I ask the Senator. Does the 
Senator agree with that fundamental principle or differ with the 
President on it?
  Mr. GREGG. No. I actually agree with the principle. I think the 
President's point was that employers generally should not be subjected 
and opened up to massive liability. And this bill does that. That is 
why I asked the Senator to explain the section.
  Mr. KENNEDY. I will have to reclaim the floor.
  Mr. GREGG. The Senator asked me a question. Doesn't he want me to 
respond?
  Mr. KENNEDY. I asked specifically whether the Senator agreed with the 
President's principles. The Senator said yes, he did.
  He went on to say that the language in the legislation opens up 
massive opportunity for suing employers, which is different. He 
answered my question. I am reclaiming my time since I only have about a 
minute and a half left.
  I wish we had the opportunity to debate this because it is very clear 
what has been done with the drafting of this legislation. The 
employers, outside of those who are actually going to be making medical 
decisions affecting patients, are excluded.
  I have been going to the conferences with those who are opposed to 
it. They say, oh, no, that is not what it does.
  It is a favorite whipping provision in this language. They keep 
saying that isn't what it does. That is what we intend to do. That is 
what we have done in this language. We will have more of an opportunity 
to debate that later.
  Mr. GREGG. Will the Senator yield for a question?
  Mr. KENNEDY. I only have about 5 or 6 minutes to be able to make some 
presentation on this. I look forward to that time. I will be glad to 
yield. Could I ask that we defer the recess time from 12:30 until 
12:35?
  Mr. GREGG. Mr. President, I ask unanimous consent that at the 
expiration of the discussion of the Senator from Massachusetts I be 
given 10 minutes.
  Mr. KENNEDY. We are about to recess.
  Mr. GREGG. I am asking that the time for the recess be extended 
beyond the Senator's period for 10 additional minutes and that I be 
recognized.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Massachusetts.
  Mr. KENNEDY. Fine.
  Mr. President, so how much time remains? It is now 12:30.
  The PRESIDING OFFICER. The Senator from Massachusetts has another 5 
minutes by the previous unanimous consent agreement. Then the Senator 
from New Hampshire will have 10 minutes, and then we will recess until 
2:15.
  Mr. KENNEDY. Fine.
  Mr. President, this whole debate should remain focused on what it is 
really about. What this debate is really all about is that doctors, 
nurses and families are going to make decisions. And those decisions 
ought to be carried out. They should not be overturned by bean counters 
and accountants working for HMOs thousands of miles away. These 
accountants do not have the training, do not know the patient, and do 
not know the complete medical circumstances surrounding the patient's 
case. That is what this legislation is really all about.
  We have taken the kinds of protections which have been outlined now 
by the Senator from Arizona and the Senator from North Carolina and 
indicate what those protections are. There are 26 different protections 
which have been included. We have yet to hear from the other side, as 
we have had these debates now for 2 or 3 years, regarding which 
protections they do not agree with. Is it the emergency room? Is it the 
clinical trials, specialty care, or the OB/GYN protections? Is it the 
gag rules? We have not heard what particular guarantees and protections 
that are there for the American families to which they object.
  They talk a good deal about the cost of this legislation. They want 
to do the bidding, I guess, of the HMOs, and have them be the one 
industry in this country not held accountable for actions they take 
that can harm, kill, or maim children and workers in our country.
  What we are basically saying is, if HMOs make decisions which put 
individuals at risk, then they ought to be held accountable. The HMOs 
should be held accountable. If there is an employer making a similar 
decision which is going to result in the same kind of pain and 
affliction to that individual, they ought to be held accountable. 
Otherwise, employers that just go out and make the contracts should not 
be. If there is a question of clarification of language, we would work 
that out.
  Over the period of time, one of the attacks that has been made on 
this legislation is its potential cost. I want to say that is an old 
red herring. I was here not long ago when we passed the Family and 
Medical Leave Act. We had the Chamber of Commerce stating the cost of 
the Family and Medical Leave Act was going to be $27 billion a year on 
American industry. It is not. It has been an enormous success, and 
companies have welcomed it. And there is going to be the opportunity to 
expand it.
  I was here when we debated the portability of health care for those 
individuals with disabilities, the Kassebaum-Kennedy bill. We heard at 
the time that it was going to increase premiums by billions and 
billions of dollars. It has not. It is working, and there is no one 
here to suggest that we should not have gone ahead on it.
  I was here when we heard the question: Should we increase the minimum 
wage? There were those who said it was going to mean hundreds of 
thousands of people were going to lose their jobs, and that it was 
going to add inevitably to the problems of inflation. It has not.
  We know the scare tactics that were being used in terms of the cost 
in the past, and they are the same kinds of scare tactics that are 
being used at the present time.
  The CBO, as the Senator from North Carolina has pointed out, 
indicates that last year premiums went up 10 percent, and the top four 
or five HMOs had $10 billion in profits in our country. They estimate 
that 20 percent of every premium dollar paid goes to advertising, 
administrative expenses, and large salaries for these individuals. It 
went up 10 percent last year. It went up 8 percent the year before.

[[Page 10971]]

  As the CBO estimates, under the Breaux-Frist bill, it will go up 2.9 
percent over 5 years; and under the McCain-Edwards bill, 4.2 percent--a 
1.3-percent difference. As the Senator from North Carolina pointed out, 
if you look at those figures, the difference is in the additional kinds 
of expanded opportunities for patients, such as for clinical trials. 
For example, women need those clinical trials in relation to breast 
cancer. We need to make sure they are going to be able to have those 
trials.
  We have to have greater access to specialists. If a child has, as my 
child had, an osteosarcoma--which only 1,200 children in this country 
have--they need a pediatric oncologist. They shouldn't go to a general 
practitioner to make the recommendation for the kind of treatment that 
resulted in the saving of my son's life. We are talking about access to 
those kinds of specialists. We see there is a difference between the 
bill we have before us and that which the opposition favors.
  The PRESIDING OFFICER. The Senator's additional 5 minutes have 
expired.
  The Senator from New Hampshire is recognized for 10 minutes.
  Mr. GREGG. Mr. President, I had not intended to speak right now, but 
I do think some of the things that have been said in this Chamber do 
need to be responded to because it is very obvious there is a 
significant disagreement, and it is a disagreement which is core to 
this issue.
  First off, let's begin with the question of how this bill is coming 
forward. You have to remember, this bill has not had a hearing since 
March of 1999. We have not had any hearings on this particular bill. 
And this is one heck of a complicated bill. The bill on Wednesday was 
not the bill we got on Thursday.
  So when the other side says we are delaying, I think that is a little 
bit of a straw man debate primarily because, as a matter of 
responsibility, we have to at least read the bill. And then we have to 
figure out what is in it.
  One of the big issues in relation to what is in it is what effect 
this will have on employers. I think the language is unequivocal on 
that point. The language in section (B), as I cited before, 144, says: 
A cause of action may arise against an employer. Sure they have the 
nice title, ``Exclusion of Employers,'' but they wipe out that language 
with the language which says: Notwithstanding anything in subparagraph 
(A)--that is the one with the nice title on it, ``Exclusion of 
Employers''--a cause of action may arise against an employer or other 
plan sponsor--and then it lists why.
  One of the standards here is if the employer had direct 
participation. And ``direct participation'' has become a word of art 
that is incredibly broad. ``Direct participation'' just means an 
employer had to maybe wink at his employee, as he headed off to his 
doctor's office, and say: Hope you get better.
  As a practical matter, today direct participation essentially brings 
in every employer in this country that has a plan. That is why a lot of 
employers are going to drop their plans. That is why no employer group 
supports the McCain bill--none--because it is an attack on employers, 
as versus a legitimate effort to try to get at malfeasance, misfeasance 
negligence in the areas of HMOs.
  We all want to make sure that people who are poorly treated by their 
HMO have a right for recovery. We put together proposals which 
accomplish that. But let's not draw all the employers into the process 
and stick them with lawyers running around them in circles, suing them 
like crazy, shooting arrows at them, trying to recover from them 
because then we will drive the employers out of the insurance market, 
and more people will be uninsured. That is why it is projected that 
this bill will increase the number of uninsured by over 1.2 million 
people.
  I am a little surprised that some of the sponsors of this bill want 
to expand the number of uninsured in this country. I think some 
supporters of this bill may want to because there is, I believe, a 
belief that nationalization of the health care system is a good idea, 
and one way to energize support for nationalization is to have a lot of 
uninsured. But I am hopeful some of the other folks who look at this 
bill and are supportive will say: Hold it. That was not our intent. We 
didn't want to drive employers out of the business of insuring and 
cause more people to be uninsured. We wanted to do just the opposite.
  So this language is extremely broad, extremely pervasive, and will 
attack the employers of America--small employers, employers with 10 
employees, with 5 employees, with 25 employees, with 50 employees. 
There is no exemption in this bill. Then there is other language in 
this bill. This bill creates a whole new cause of action against 
employers that has never been seen before, a whole new Federal cause of 
action. And it is a biggy. This is one where lawyers can really have a 
good time because, under this bill, it makes the employers responsible 
for the performance of the duties under the terms and conditions of the 
plan. This is a brand new concept under Federal law.
  It defines the people responsible, as I said earlier, as plan 
sponsors. Plan sponsors, under ERISA, are defined as employers. It 
brings in the employers. We went through the different obligations 
under a plan that an insurance company has that offers that plan and 
which are enforceable, not today by the individual but by a variety of 
different processes. We calculate that there are potentially 200 new 
opportunities for private causes of action against employers as a 
result of this language. There are a lot of lawsuits because there are 
a lot of lawyers who can take those 200 opportunities and multiply 
them. That is one of those factors which has an infinity symbol beside 
it as to the number of potential lawsuits, that little circle you 
learned in eighth grade when you took physics, a little infinity circle 
connecting the lawyers to lawsuits as a result of this language.
  I would rename this bill ``the lawyers who want to be a millionaire 
act'' because that is essentially what it is. This representation that 
employers are not subject to liability is absolutely inaccurate. Under 
the clear terms of the bill itself, it is absolutely inaccurate.
  What is the practical effect of this bill? This issue is not about, 
as the Senator from Massachusetts outlined, a whole series of coverages 
that people need. This is not about that. We give those coverages in 
our State. Most States have those coverages as a requirement in their 
States. It is not about that. It is not about whether or not a patient 
has access to a specialist, and it is not about whether or not a woman 
has access to an OB/GYN. All of that is available and should be 
available. Those are being thrown up as red herrings to try to develop 
support. That issue is not even on the table because there is hardly a 
State in the country that does not give those types of coverages and 
require those types of coverages of their HMOs.
  It is not about whether a patient should have a timely right to 
appeals, both internal and external, because all the laws, all the 
proposals that have come forward have done that. It is not about that.
  It is not about whether a patient should be compensated if they get 
harmed by their doctor or their HMO. All of the bills that have come 
forward, all the proposals that have come forward have had that as part 
of their language. All these bills share those same goals.
  This is about a dramatic expansion in the opportunity to sue. That is 
what the bill is about, as it is brought forward; specifically, to sue 
employers, with the practical effect being that more people will be 
uninsured in our country today because more employers will drop their 
insurance. The number of new opportunities in this bill for lawyers to 
create havoc is significant.
  You have the fact that you can basically forum shop between States 
and Federal law. You have States stepping into the area of ERISA. ERISA 
is an incredibly complex piece of legislation on which Federal courts 
have spent a lot of time developing expertise. There has been over 
10,000 cases on ERISA decisions. Suddenly Federal and State courts are 
going to take on this issue. Not only are they going to get to take it 
on, but they are going to get to take it on without any liability caps. 
Essentially, there are no liability caps

[[Page 10972]]

against health plans. There may be caps against doctors in some States, 
but take California; they don't have caps against health plans.
  There are no liability caps.
  You are going to have punitive damages, economic damages without 
caps. The implication of what that means is that you are going to have 
forum shopping from State to State, depending on which State makes the 
most sense for a person, which structure makes the most sense for a 
lawyer to pursue. Then you are going to have them proceeding in that 
structure. And you are going to have the employer brought in.
  Plus this concept that you have to go through an appeals process 
before you get to bring a lawsuit is also totally subjugated in this 
bill. The way this bill is structured, all you have to do is show harm 
and you are out of the appeal process--or alleged harm. Originally it 
was ``alleged'' harm. Basically, you get into court and claim you show 
harm and then everything else gets to the table. No more appeals 
process of any nature. The concept of trying to reduce the amount of 
litigation by having a reasonable appeal process is totally undermined 
by this bill.
  It should also be noted that the economic impact of this bill has 
been scored not by me, not by some political organization, but by CBO. 
This bill costs 4.2 percent. That is not over 5 or 10 years, as was 
represented here earlier. That is an annual cost on top of the health 
care costs which are inflating fairly rapidly right now. A 4.2 percent 
increase translates into a very significant increase, as has been 
mentioned earlier, in the uninsured because employers will have to drop 
their insurance because they can't afford it. That should not be our 
goal here.
  What should our goal be?
  The PRESIDING OFFICER. The Senator from New Hampshire has used his 10 
minutes.
  Mr. GREGG. I ask unanimous consent for 2 more minutes.
  Mr. REID. Mr. President, reserving the right to object, I have no 
objection to my friend using 2 extra minutes. Following that, I would 
like to be recognized and then the Senator from North Carolina would be 
recognized for 5 minutes and then we will go to our party conferences.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from New Hampshire now has 2 minutes, to be followed by a 
statement from the Senator from Nevada, and then 5 minutes to the 
Senator from North Carolina.
  Mr. GREGG. Mr. President, the goal here should be this: When you go 
to see a doctor and you go to your HMO, if that is who covers you, you 
should expect to get good treatment. If you don't get good treatment, 
you should have relief. And you should expect to have a certain amount 
of flexibility as to who you see and especially with some very common 
events such as OB/GYN and areas such as that, where you should have the 
capacity as the patient to make some choices: your primary care 
provider, things such as that.
  That is all accomplishable. In fact, the bills that have been brought 
forward from our side of the aisle--some of them in a bipartisan way, 
such as the Breaux-Frist-Jeffords bill, last year's, the Nickles 
amendment, which did not have any Democratic support--have accomplished 
that. In the process of accomplishing that, we should not fundamentally 
undermine the interests of employers to participate in health insurance 
for their employees, which is what, unfortunately, the McCain bill 
does. And we should not do unnecessary and significant damage to States 
rights which is, unfortunately, what the McCain bill does. That is a 
whole other discussion. There are a variety of other problems.
  The goal can be accomplished, which is better health care and better 
protection of our patients and people who use our health care system 
without this very egregious, very intrusive, very litigious piece of 
law being passed.
  To reiterate, this is not a debate about whether patients should have 
rights.
  This is not a debate about whether patients should be able to go the 
nearest emergency room without being penalized.
  This is not a debate whether a patient should be able to access a 
specialist with appropriate expertise and training; prescription drugs 
that are medically necessary and appropriate; or comprehensive 
information about their health plan.
  This is not a debate about whether a female patient should be able to 
directly access OB/GYN without prior authorization, nor is it a debate 
whether the parents of a child should be able to designate a 
pediatrician as their child's primary care provider.
  This is not a debate about whether a pregnant, sick, or terminally 
ill patient is able to continue receiving care from her physician 
through the entire course of treatment--even if the plan terminates her 
physician from the network.
  This is not a debate about whether physicians are able to tell their 
patients about all treatment options without being gagged by the health 
plan.
  This is not a debate about whether there should be procedures to 
ensure that health plans make timely decisions and patients have the 
right to both an internal appeal to the plan and an independent 
external review when a plan denies coverage. And this is not a debate 
about whether the external review is independent from the plan and the 
reviewer makes a decision based on the best medical evidence and 
highest standard of care.
  This is not a debate about whether all Americans should enjoy these 
types of rights.
  This is not a debate about whether patient rights should be 
enforceable or even whether a patient should be fairly compensated when 
harmed or killed by the decision of his or her health plan or HMO.
  We agree on all these issues. Both sides share these goals. Democrats 
and Republicans.
  The real debate is about how we can best achieve these common goals. 
It's about putting patients first--ahead of special interests. It's 
about accomplishing these goals without driving up health care costs, 
giving employers more reasons to drop health coverage, adding millions 
more Americans to join the ranks of the uninsured, or dismantling our 
private, employer-based health care system.
  The bill we are about to debate--the Bipartisan Patient Protection 
Act sponsored by Senators McCain, Edwards, and Kennedy--fails on all 
these counts.
  I believe we can accomplish our common goals without inviting these 
unintended consequences. Unfortunately, there appears to be no interest 
from the majority in addressing these concerns. Senator Daschle said 
recently that he sees no reason to compromise or address these 
concerns. I think that is very unfortunate for consumers and for 
patients.
  I would like to highlight the very real problems in this bill, S. 
1052 which was just introduced on June 14.



  The McCain bill creates two opportunities to take a bite at the 
apple. First, it allows unlimited lawsuits against health plans and 
employers under state law. Second, it creates an expansive new remedy 
with very large damages under federal law.
  The dual Federal-State scheme under the McCain bill will encourage 
dual claims and forum shopping. Plaintiff's lawyers will shop around 
for the forum with the highest limits on damages. And there is nothing 
in the bill that would prohibit suits based on the same or a similar 
set of facts from being filed simultaneously or consecutively in both 
State and Federal court.
  This dual Federal-State scheme will raise complicated and costly 
jurisdictional questions and will ensure that plan benefits and 
administration will vary from State to State. This will only serve to 
confuse patients who are already faced with the task of navigating a 
complex health care system.
  This scheme will also impose needless and excessive costs that will 
discourage employers from sponsoring health plans. It will ultimately 
increase the ranks of the uninsured.
  Federal courts have been routinely hearing cases involving 
complicated employee benefit cases. The McCain bill would essentially 
remove all coverage and claims decisions from Federal court and place 
them under State

[[Page 10973]]

jurisdiction, even though States have no experience with ERISA and 
employer-sponsored benefits.
  Federal courts have honed their expertise in resolving complicated 
employee benefits issues since they were given exclusive jurisdiction 
over such cases in the Employee Retirement Income and Security Act of 
1974, ERISA. Approximately 10,000 ERISA cases are filed each year in 
Federal court.
  In order to provide high quality and affordable benefits to 
employees, employers that sponsor health plans across State lines must 
be able to administer their benefits in a uniform, consistent and 
equitable manner. The McCain bill will produce multiple and conflicting 
State laws, regulations and court interpretations, making it difficult 
for employers to administer their health plans.
  Congress' rationale for giving Federal courts exclusive jurisdiction 
with respect to remedies is as applicable today as it was in 1974. From 
ERISA's legislative history: ``It is evident that the operations of 
employee benefit plans are increasingly interstate. The uniformity of 
decision which the Act is designed to foster will help administrators, 
fiduciaries and participants to predict the legality of proposed 
actions without the necessity of reference to varying state laws.''
  Proponents of the McCain-Edwards bill would have you believe that 
they have compromised by adding a $5 million cap on punitive damages 
for the Federal cause of action. But this cap is merely illusory.
  The bill has no caps on Federal or State economic or non-economic 
damages.
  Plus, there are no caps on damages specified for the numerous 
lawsuits that would fall under State jurisdiction. And there is no 
evidence to suggest that State law caps would be applied to these 
various causes of action. In fact, most State medical malpractice law 
damage caps only apply to physicians and other health professionals--
not health plans. California is one such example.
  Excessive damage awards only harm physicians and patients. According 
to a study by Tillinghast-Towers Perrin, health plan liability will 
increase physician medical malpractice liability premiums by 8 to 20 
percent because plaintiffs will target all possible defendants, 
including physicians. These costs will be passed on to patients in the 
form of higher premiums or reduced coverage.
  Health plans will also pass on the increased costs of being exposed 
to large damage awards to employers who will in turn pass the costs on 
to employees or reduce or terminate coverage.
  The McCain bill allows patients to go straight to court--for the 
purpose of collecting monetary damages--without exhausting 
administrative remedies first.
  The independent medical review process is the best, most efficient 
remedy for the majority of patients. It ensures that patients get the 
medical care when they need it. In contrast, tort damages are only 
available to patients after they are injured.
  The ``go straight to court provision'' creates a perverse incentive 
for patients, encouraged by their attorneys, to bypass the review 
process in order to seek the big damages awards in court.
  Proponents of the exhaustion loophole argue that external review is 
``not enough.'' They would have you believe that an exhaustion 
requirement somehow precludes the ability of an injured patient to seek 
recourse in court. But this is not the case. The external review 
process is merely a required and beneficial step before going to court.
  The high standards that the medical reviewer is required to follow 
will help inform the court's decisions in determining whether the plan 
decision was the right one. Just as a medical expert is not versed in 
the specifics of the law, the court is not well versed in medicine and 
will benefit from the finding of the independent, external review--as 
will the patient.
  The McCain bill allows the medical reviewer to consider but ``not be 
bound by'' a plan's definition of medical necessity which may be used 
to determine whether a plan covers a benefit. In effect, this allows 
the medical reviewer to ignore contract definitions of medical 
necessity and substitute their own definitions or opinions as a basis 
for overturning a health plan's decision.
  This provision would lead to routine reversals of health plan 
decisions and generate increased litigation. Employers and health plans 
would have no predictability in administering their plans or estimating 
their exposure to liability. Alternatively, this may cause plans to 
routinely approve all coverage thereby driving up premiums 
astronomically and raising quality and safety concerns for the patient. 
Employers may reconsider their commitment to offer and administer 
health benefits if the McCain bill becomes law.
  Health plans and employers that honor their contractual obligations 
could be on the losing end of a lawsuit when an external medical 
reviewer decides to disregard a term in the health plan contract. Even 
plans that adhere carefully to the terms of their contracts, no matter 
how generous those terms are, could be held liable if the reviewer 
decides to apply a different standard.
  Contrary to continued assertions by its proponents, the McCain bill 
does not protect employers from open-ended liability. In fact, the bill 
specifically authorizes certain types of lawsuits to be brought against 
employers in Federal court for failing to perform a duty under the 
terms and conditions of the plan.
  Because employers are required to carry out a broad range of 
administrative duties under ERISA's statutory scheme, the McCain bill 
will leave them wide open to new Federal personal injury suits. 
Employers will be sued for all types of alleged errors such as issuing 
notices required by the Health Insurance Portability and Accountability 
Act, HIPAA, and the COBRA, regardless of whether such errors result in 
a denial of a covered benefit.
  The McCain bill would impose potentially huge new compensatory and 
punitive damages remedies for violations of COBRA, HIPAA, and ERISA's 
disclosure requirements. Moreover, under the statute's own 
requirements, the employer is specifically required to carry out COBRA 
and disclosure requirements. The employer is almost always the 
administrator. Thus, McCain-Kennedy imposes a huge new liability on 
employers that employers cannot avoid; despite the fact that when 
Congress adopted COBRA and HIPAA with large bipartisan majorities no 
discussion was given to the need for punitive damages to enforce the 
new requirements.
  The ``direct participation'' provision in the McCain bill provides 
little comfort to employers who will still be dragged into court on 
every case. Employers who do not ``directly participate'' in such 
decisions are not protected from being sued; they are only provided 
with a defense to raise in court.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, I disagree with what my friend from New 
Hampshire has said about the content and the direction of the McCain-
Edwards legislation. Why don't we decide if he is right or I am right. 
And how you do that is you come to the Senate and you debate the issue.
  We are being prevented from doing that today. The Republicans have 
objected to our going forward to consider this bill. So this will 
necessitate our going through the procedure of filing a motion to 
invoke cloture which we will vote on Thursday. I believe rather than 
wasting that time, we should be here debating the principles enunciated 
by the Senator from New Hampshire and what we have been saying on this 
side all day.
  That seems to be the fair way to do it, rather than talking about all 
the scary points of this bill from their perspective and the positive 
points from our perspective. Let's debate the issues. This bill has 
been around for 5 years in one version or another. We believe that we 
have refined this legislation. Because of the courageous actions of the 
Senator from Arizona and the brilliant input of the Senator from North 
Carolina, we now have a piece of legislation that is extremely good. It 
is

[[Page 10974]]

better than the ones that have come before us before. It is so good 
that on our side we are going to offer very few, if any, amendments 
because we believe this legislation is so good.
  This legislation deals with accountability. We spent 8 weeks in this 
body talking about education. What were we trying to establish? We 
wanted students and teachers and administrators to be accountable and 
to make sure we had good education in our public schools.
  Accountability: That same argument should be and will be carried over 
into this legislation dealing with the Patients' Bill of Rights.
  I have a lot of other things to say and I will not say them now. I 
showed to the Presiding Officer in the Senate that we have only a 
partial list of those organizations that support this legislation. 
These are business groups, nurses groups, physician groups, starting 
with the Abbott House, Inc.--Abbott House in Irvington, NY. That is No. 
1 on the list. At the end of this list we have the YWCA of northeast 
Louisiana. Of the 300-plus groups we have listed here, we have groups 
that should know the difference between good and bad medical care. For 
example, there is the Wisconsin Paralyzed Veterans of America. They 
believe what we want to do is right.
  It is not often that you find legislation in the Senate that is 
supported by hundreds and hundreds of groups. Every consumer group in 
America supports our legislation. We have the physician organizations, 
specialties and subspecialties, that support this legislation. We have 
the American Medical Association that supports this legislation.
  You know, for the first time that I can ever remember, we have the 
doctors and the lawyers thinking this is good legislation. So I say to 
my friend from New Hampshire, who is going to be the manager for the 
Republicans on this legislation--I believe he should listen to what he 
said if he believes this--and I know he does--let's debate it, as my 
dad would say, ``like men,'' and now women because they are a vital 
part of the Senate. Let's debate this issue as grownups, not hiding 
behind procedural matters. If they think our legislation is so bad, let 
them prove it out here.
  I am willing to take my chances on an up-or-down vote on the Senate 
floor. That is how we should decide issues. We should not be hiding 
behind some procedural prohibition that prevents us from moving this 
legislation forward.
  One last thing. The majority leader said today, right here at 11:30, 
that this legislation, the Patients' Bill of Rights, is going to be 
completed before we leave for the recess--if we have a Fourth of July 
recess. That is what he said. He is not playing games. He is majority 
leader of the Senate. He said today that if we don't finish this bill 
by next Thursday night--if we do, we are off Friday. We have the Fourth 
of July recess. If we don't finish this bill by next Thursday evening, 
we are going to work Friday, Saturday, Sunday, and we are going to work 
Monday--every day except the Fourth of July. Then we will come back on 
the fifth. We are going to be here until we finish this legislation. So 
all staff members here in Washington and people watching this on C-SPAN 
should understand that we, the Senators, may not be home for our Fourth 
of July break. We may be here doing the people's work, trying to work 
our way through this legislation, through all the obstacles being 
thrown up procedurally by the money interests of this country--the HMOs 
who think they own the medical care of this country. They don't. It is 
owned by the people--the patients, nurses, and doctors.
  The PRESIDING OFFICER. The Senator from North Carolina is recognized.
  Mr. EDWARDS. Mr. President, the great thing about debate on the floor 
of the Senate--particularly extended debate--is that we get past the 
high-pitched rhetoric and actually get to the facts. I want to respond 
briefly to some of the comments of my friend and colleague from New 
Hampshire.
  He argues that under our bill employers can be held responsible--
citing a particular page of the legislation--if they make a comment to 
an employee going out the door on the way to their doctor saying, 
``hope you feel better''.
  First of all, President Bush has issued a set of principles that are 
specific to this issue. His principles say, ``Only employers who retain 
responsibility for and make final medical decisions should be subject 
to suit.'' So the President himself, in his principles, has said 
employers that are making medical decisions about individual cases are 
subject to sue and should be subject to sue.
  My colleague from New Hampshire cited language on page 141 of the 
bill referring to, ``otherwise, calls of action created by failing to 
exercise ordinary care in the performance of a duty.'' Two pages later 
in the bill, which unfortunately my colleague didn't talk about, there 
is language at the bottom of the page, subsection (A), that says: 
``This section does not authorize a cause of action against an 
employer.''
  What I suggest to my colleague is that he read the entirety of the 
section to which he refers.
  The language of what constitutes making a medical decision in a 
specific case is very clear in our legislation. It includes none of the 
general things that the Senator from New Hampshire talked about. What 
has to happen under the specific language of our bill, and as set forth 
by the President of the United States, is that the employer has to 
actually override and make the decision as an HMO would in a particular 
case. Otherwise, under the language of our bill, and under the 
President's principle, the employer is protected, period.
  We want to protect employers. That is the whole purpose of this 
language. It is why Senator McCain and Senator Kennedy and I have 
worked for months and months in crafting this language.
  The second argument my colleague made is that there would be forum 
shopping between State and Federal court. The language is clear. If an 
HMO makes a medical decision, that case goes to State court. If the 
question is on the specific provisions of the plan the employee is 
covered by, that case goes to Federal court, period. It is where the 
cases have always been. The reason the other cases--the medical 
decision cases--go to State court is because when they make a medical 
judgment and overrule a doctor, we want them to be treated just as the 
doctors and the health care providers.
  Third, he argues that ERISA is a very complicated law that will be 
difficult for State courts to apply. Well, the State courts won't be 
applying ERISA. What the State courts would be doing is applying their 
own State law because what our bill provides is that when a medical 
judgment is made by an HMO and some child is hurt as a result, and they 
take their case to State court, that State's law applies, so that if 
there are recovery limits--and there are, I think, 30-some-odd States 
in the country. And the argument was made that there are no caps in our 
legislation; there will be an outrageous explosion of litigation.
  First of all, it ignores the fact that State law applies, and the 
vast majority of States have limits on recoveries.
  Second, the evidence shows that in California and Texas--the two 
States that use legislation similar to ours--virtually no cases have 
ever gone to court. The cases get resolved in the appeals process. It 
is the way our legislation is designed. Cases go to court only as a 
matter of absolute last resort.
  Finally, he suggests there will be forum shopping from State to 
State, where a patient will choose to go to another State to file a 
case because somehow that is more beneficial to them. Well, 
unfortunately, that has nothing to do with the real world. Patients 
will be required to file their case in the State where they live, which 
is exactly where you would expect them to file. It is where they got 
their care, where they were hurt by the HMO. That is where their case 
would be filed.
  So what we have done, ultimately, is set up a system whereby HMOs are 
treated the same as everybody else, as all the rest of us. That is its 
purpose. We want to take away the privileged status that HMOs have 
enjoyed for so long, while protecting employers, giving patients 
substantive rights, access

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to specialists, access to emergency rooms, access to clinical trials, 
and having those rights be enforceable. It is so important that these 
rights we create in this bill have teeth in them, and the only way they 
have teeth in them is if the force of law is behind them and those 
rights are enforceable.

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