[Congressional Record (Bound Edition), Volume 147 (2001), Part 8]
[Senate]
[Pages 10975-11001]
[From the U.S. Government Publishing Office, www.gpo.gov]



    BIPARTISAN PATIENT PROTECTION ACT--MOTION TO PROCEED--Continued

  The PRESIDING OFFICER. The Senator from New York is recognized.
  Mr. SCHUMER. I thank the Chair.
  Before I get into the substance of my remarks on the Patients' Bill 
of Rights, I wish to salute my colleagues, the Senator from 
Massachusetts, the Senator from North Carolina, and the Senator from 
Arizona, for working so long and hard on a bipartisan compromise 
provision, one that I am proud to support.
  Mr. President, we hear a lot about this Patients' Bill of Rights, and 
there are many discussions about legal issues, medical issues, et 
cetera, but what hits home with most of us is when we travel our States 
and we hear stories about what has happened under present law.
  When there is a conflict, which constantly arises in these days of 
HMOs, between what a doctor believes is best for the patient and what 
the insurer believes is best for the health plan, who makes the final 
call? That is what this bill is all about. It is about decisionmaking, 
and not decisionmaking on a Saturday afternoon whether you go to the 
beach or go to the ball park. It is about decisionmaking when all of us 
are at our most strained, when a loved one is in a health care problem 
or with a health care crisis. That is when the decisionmaking really 
matters.
  When a child becomes sick or a parent becomes ill, when a spouse 
discovers a lump on her breast, and a judgment call needs to be made 
about care, who has the deciding vote? Is it your doctor or is it an 
actuary somewhere hundreds of miles away who has not had one jot of 
medical training? That is what this boils down to.
  Those six of us supporting the McCain-Edwards-Kennedy bill believe 
the decision should be made by the doctor; the decision should be made 
by someone who is trained to make medical decisions, not a managed care 
bureaucrat whose primary interests--do not blame these individuals, but 
their primary interest, what they are instructed to do, is look at 
cost, not health. Health may be in the equation but cost comes first. 
That is why that actuary is getting paid, whereas for the doctor who 
has taken the Hippocratic oath, health care comes first.
  We want to pass this Patients' Bill of Rights to restore the 
pendulum. I am not against HMOs. They were brought in with a purpose. 
Medical costs were climbing out of control. Something had to be brought 
in to help. But the pendulum has clearly swung too far, away from the 
decision based on health made by the doctor in the hospital, and the 
nurse, towards a decision made on cost, made by an actuary, an 
insurance company, an HMO.
  So we believe we must pass a Patients' Bill of Rights to provide real 
protection for patients, one that allows for the doctor to decide; one 
that allows the insurance company, the actuaries' decision to be 
challenged on a health-related basis. We must end the practice of 
health plans putting the bottom line before the Hippocratic oath. We 
must restore balance when every one of us is faced with the awful 
choice of what medical decision to make for ourselves or for a loved 
one.
  As this debate gets underway, I hope to bring up the cases of some 
families I come across as I travel the State of New York. These are not 
unique cases. These are not isolated cases. They happen, unfortunately, 
every day.
  Let me talk about Tracey Shea, from Long Island, in my State. Tracey 
complained to her doctor about chronic headaches. The tests discovered 
a tumor in her brain. It was unclear what that tumor was and her 
doctors ordered further tests. But the HMO refused to pay for them, 
arguing that the tumor was not malignant and further tests were 
unnecessary. Four months later, Tracey died. She was 28. She was 
engaged to be married.
  She is gone and her parents and her fiance ask every day: Why wasn't 
her doctor allowed to give Tracey what she needed? Even if it was 50-
50, or 25-75, why didn't she get what she wanted?
  For those who think McCain-Edwards-Kennedy is some kind of abstract 
debate, the difference this bill, this proposal would have made to 
Tracey Shea, under McCain-Edwards-Kennedy, is Tracey would have had a 
hearing and an answer in a few days. Under the Frist-Breaux-Jeffords 
proposal, Tracey may not have lived long enough to get an answer.
  A case in Binghamton: Rene Muldoon-Murray's little boy Logan was born 
hydrocephalic, a condition that many of us have seen. It is when the 
spinal fluid builds up and puts pressure on the brain. It is terribly 
painful. The Muldoon-Murray's health plan contained no pediatric 
neurosurgeons, the very people who should have looked at little Logan. 
The one adult neurosurgeon, one who did not have experience with 
children--the brain of a child is quite different than the brain of an 
adult--the one adult neurosurgeon available in the plan could only work 
under supervision because his license was suspended.
  Imagine, the only person you can go to when your child is in agony, 
the only one the HMO will let you go to, is someone whose license was 
suspended. That is the only one the HMO in Binghamton provided as 3-
year-old Logan was in pain, pain, pain.
  What did Miss Muldoon-Murray do? She was not a wealthy woman but she 
refused treatment. She wasn't going to let her son be operated on by 
someone whose license was suspended. When a medical crisis required an 
emergency room, a lifesaving spinal surgery, the place they found was 
New Jersey. It cost them $27,000. The HMO refused to pay the bill.
  Again, the huge difference between the two pieces of legislation: 
Under McCain-Edwards-Kennedy, Rene would have had the right to take 
little Logan to a pediatric neurosurgeon, even though her plan did not 
include one, and the plan would be required to cover the treatment just 
as if it had been administered by a plan doctor.
  Under Frist-Breaux-Jeffords, the health plan would decide whether or

[[Page 10976]]

not to cover an out-of-plan specialist and Rene would have most likely 
ended up in the same place, in an emergency room hundreds of miles 
away, stuck with a $27,000 bill.
  Again, the difference between these two bills is not simply paper and 
pencil. It is not some abstract idea, argued by lawyers. It is real. 
People would be alive, people would be not suffering if this bill had 
been in effect.
  How about in Buffalo, at the other end of our State: Bailey Stanek. 
Bailey suffers from apnea. This is a sometimes fatal condition in which 
a little one stops breathing while sleeping. The HMO refused to pay for 
a heart monitor which would warn Bailey's parents if his breathing 
ceased. If you have a child with apnea, it is a heart monitor that can 
save you. His life depended on it. Who would not do this for their 
little 8-week-old boy? The Staneks, again not wealthy people, now pay 
$400 a month out of pocket for a heart monitor.
  These cases go on and on. If McCain-Edwards-Kennedy were around, the 
Staneks could appeal the decision. They could go to an independent, 
objective review board--not someone sponsored by the HMO who is told by 
the HMO: if you approve bills of more than a certain amount all told, 
you are out. This would be an independent, objective review board. Then 
we would know if little Bailey needed this heart monitor, which most 
physicians think he would, and they would get a decision.
  Under the Frist-Breaux-Jeffords plan, this would not have happened. 
Why? Listen to this, for everyone concerned about this issue. Who 
chooses the review board under the Frist-Breaux-Jeffords plan? The HMO. 
And the board cannot make independent decisions about medical 
necessity. So the choice is very clear.
  These are just three cases in my State. Look at the case of little 
Logan Muldoon-Murray from Binghamton; the case of the late Tracey Shea, 
from Long Island; the case of little Bailey Stanek in Buffalo. In all 
three cases, because there was not a fair review, because we do not 
have protections so the doctors could make the decisions--not 
actuaries, not insurance companies--we have had untold suffering. 
Multiply that suffering, not just by the individual child or the young 
woman in Tracey's case, who suffered, but their parents and brothers 
and sisters, their friends and the community.
  Mr. DORGAN. I wonder if my friend will yield.
  Mr. SCHUMER. I am happy to yield.
  Mr. DORGAN. The Senator from New York probably remembers the hearing 
we held about a year ago, when a constituent from New York came to the 
hearing. Her name was Mary Lewandowski. Mary is the mother of the late 
Donna Marie McIlwaine who died when she was only 22 years old. Mary 
came to tell us the story about her daughter and her experience with 
the HMO.
  I will not soon forget Mary's testimony. Mary is not getting paid to 
come to Washington but she desperately wants the Congress to pass this 
patient protection legislation. Mary told us that her daughter passed 
away on February 8, 1997. Donna had been to the doctor four times in 5 
days for an upper-respiratory infection. The doctors couldn't quite 
figure out what was happening, but her symptoms kept worsening.
  On the evening of February 8, she was in a tremendous amount of pain, 
her mother said. She called the hospital. The hospital said: No, you 
can't bring your daughter to the hospital unless it is absolutely life 
or death, or unless you have a doctor's referral. She tried in vain to 
reach Donna's doctor, and an hour later her daughter, Donna, collapsed 
into a coma and died.
  After she died, as my colleague from New York will remember, her 
mother told us that she discovered that Donna had a blood clot the size 
of a football in her lung.
  Donna's doctor later told her mother that a $750 lung scan would 
likely have identified that blood clot and saved her daughter's life. 
But the lung scan was not ordered because it could not be justified by 
the HMO.
  These are the kinds of problems that are raised related to the 
development of for-profit medicine. Too often the practice of managed 
care medicine becomes an enterprise of looking at a patient in terms of 
profit, rather than evaluating what doctors should provide in terms of 
needed medical services to patients.
  The Patients' Bill of Rights, or Patient Protection Act, is a piece 
of legislation that says you ought not have to fight your illness or 
your disease and have to fight the insurance company as well. You ought 
not have to lose your life because someone said it wasn't worth $750 to 
do a lung scan on a 22-year-old girl who had a blood clot the size of a 
football in her lung. That ought not happen to people.
  My colleague from Nevada, Senator Reid, and I held a hearing in Las 
Vegas, NV, for one day. I will never forget that hearing. A mother 
named Susan gave riveting testimony. She stood and held up a picture of 
her son, Christopher Thomas for us to see. Christopher Thomas died on 
his 16th birthday of leukemia. His parents' health plan denied him the 
investigational chemotherapy drug he needed. At the end of her 
testimony Susan held up a large colored picture of her handsome 16-
year-old son. She was crying. She said Christopher Thomas had looked up 
at her from his bed as he lay dying of cancer, and said, ``Mom, I don't 
understand how they can do this to a kid.''
  Do what? This young man never got the treatment he needed to help 
fight the cancer that he had. This young boy and his family were put in 
a circumstance of having to fight cancer and fight the managed care 
organization at the same time. That was not fair.
  That is what our patient protection legislation is about. This 
legislation is about empowering patients who expect to get the health 
care they are promised.
  When I heard my colleague from New York speaking, I simply wanted to 
come to the floor and say that we have had plenty of hearings. 
Discussion has gone on for some while on the issue of a Patients' 
Protection Act, or Patients' Bill of Rights.
  I will never forget the testimony offered at the hearing during which 
Mary, the mother from New York came and talked about her daughter 
Donna, and the hearing in Las Vegas when Susan came and talked about 
her son, Christopher Thomas Roe. I could stand here and cite examples 
from testimony after testimony of patients not getting the care they 
needed. I could discuss endless tragic stories and untimely deaths we 
have been told about. The sheer numbers of testimonies that reveal 
needless suffering make me so angry because none of it should have had 
to happen. People should have gotten the health care they deserved. 
They should have been able to get to an emergency room when they had an 
emergency, or been able to get the treatment they needed when they were 
suffering from cancer and trying to fight it. Yet in case after case, 
we discover that someone made a bad decision, and no one was held 
accountable for that decision. The patient wasn't given the medical 
treatment they deserved.
  Let me quickly say, if I might, to my colleague, that there are some 
wonderful organizations around this country--yes, managed care 
organizations, some insurance companies, and health care 
organizations--that do great work. God bless them every day. But there 
are some who look at patients as profit centers and decide against 
providing treatment that a patient thinks they are going to get. 
Sometimes it is too late when they discover the consequence of that. It 
was too late for Donna and for Christopher.
  We are trying, with a piece of legislation, to say it ought not be 
too late for any more Americans at any other time to not get the 
medical care they need. Let us pass this legislation, the Patients' 
Protection Act, so that people in this country can rely on getting the 
care that they deserve.
  When I heard the Senator from New York, Senator Schumer speak, I 
wanted to speak and to mention Donna because I know he knows her 
mother, Mary Lewandowski. I know that all of

[[Page 10977]]

us have the same passion to want to do the right thing. We can do this. 
This will take some time. There will be people coming to the floor 
saying they don't want to do it. They will have objections to our 
Patients' Bill of Rights.
  Mark Twain was once asked if he would be involved in a debate. He 
replied: Yes; of course, as long as I can be on the opposing side.
  They said: We never told you about the subject matter.
  Mark Twain said: It doesn't matter. It doesn't take any preparation 
at all to take the opposing side and to argue it effectively.
  We will have some people in Congress say we should not pass this 
patients' protection legislation. They are naysayers.
  We know in our hearts that this is important legislation for the 
American people. We must do this now.
  Mr. SCHUMER. Mr. President, I thank my colleague from North Dakota. 
Along with the story I told about three New Yorkers, he added Mary 
Lewandowski and her daughter, Donna.
  I want to add something. Mary has been down here three or four times. 
Each time she comes into my office with her husband. They are not 
wealthy people. They are humble people. A trip from Rochester to 
Washington is not easy for them.
  But the memory of Donna and what happened to her burns within them. 
They come and sit by my desk. They try and I try to talk about when 
this bill might come up and what is preventing it from coming up. I was 
happy to let them know that since we took over the majority, Senator 
Daschle decided to make this our highest priority. In fact, I have 
asked them if they want to come down and watch a little bit of this 
debate. It will never bring Donna back, but it will make them feel good 
that future Donnas will not die in vain.
  Imagine what they are thinking now--that there is an attempted 
filibuster to prevent this bill from coming up. This is not legislative 
gamesmanship. It is not an exaggeration in this case to talk about life 
and death. Every one of us, as we traverse our States, hear these 
stories and share the embraces and the tears with the people who have 
been damaged more irreparably than any of us have. The only thing we 
can do is bring our passion, our knowledge, our work, and our sweat, 
blood, and tears to this floor and move this bill.
  I was glad to hear our leader say that if we have to, we will stay 
here every day through the Fourth of July break or through the summer 
to get this bill finished. All of us have concerns and our families. We 
want to be with them. We want to be back in our States. But what could 
be more important than this?
  We are so close to the precipice of passing a real bill--the kind of 
bill that has been put together by our colleagues from Massachusetts, 
Arizona, and North Carolina. We are right on the edge. How dare we give 
up. How dare we let ourselves be diverted by extraneous issues and 
political games.
  I thank the Senator from North Dakota as well as so many others. The 
Senator from North Carolina spent the last year working out this 
compromise with the Senator from Massachusetts because this is so 
important.
  There used to be a slogan in the 1970s. You don't need a weatherman 
to know which way the wind blows. Yes, you are right. We will hear a 
lot of arguments from the other side. But look at every group that is 
represented here--the Mary Lewandowskis, the Tracy Sheas, and all of 
the others. They are on our side. They are for this bill.
  It is very simple. The only people who seem to be against us are the 
very people out there who have done these things, not by design but the 
way the system is set up--done these things that have left the gaping 
wounds in so many as they have needlessly lost people.
  It is bad enough to lose somebody you love, but when you know you did 
not have to lose them, and somebody made a decision somewhere based on 
dollars, the hole in your heart never goes away. We have examples such 
as Mary Lewandowski from Rochester, NY, who has come down here and 
said: Please, please, please.
  I would like to say to Mary--and I think I speak on behalf of the six 
of us in this Chamber--we are not going to give up. We are going to 
make this fight until we pass this bill, no matter what it takes.
  With that, I thank my colleagues. I know my time has expired. And I 
thank my friend from Iowa for waiting.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada is recognized.
  Mr. REID. Mr. President, I wish to make a brief statement. And I ask 
unanimous consent that the Senator from Iowa be recognized for 15 
minutes after my statement, and then, with the patience of my friends 
from North Carolina and Massachusetts, Senator Clinton was planning to 
be here at 3 o'clock to speak for up to 15 minutes.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. REID. Thank you, Mr. President.
  I say to my friend from North Dakota, and everyone within the sound 
of my voice, we were able to give specific examples of situations that 
developed in New York and Nevada, and other places, as a result of 
something very unusual that happened around here; and that is, Senator 
Dorgan, as chairman of the Democratic Policy Committee, held a series 
of hearings around the Nation. Why? That isn't the ordinary role of the 
Democratic Policy Committee. But because we were in the minority, we 
were unable to hold hearings in the committees that had jurisdiction 
over the Patients' Bill of Rights. So Senator Dorgan came up with the 
idea to hold these hearings around the country.
  I am sure the hearings around the country went as well as the hearing 
in the State of Nevada. If that is the case, which I am certain it is, 
the Senator from North Dakota deserves all kinds of accolades because 
if he did nothing other than the hearing in Nevada, it said reams about 
what is going on in this country regarding the delivery of health care.
  So I will never, ever forget the hearing we held at the University of 
Nevada at Las Vegas on the Patients' Bill of Rights. The men and women, 
the boys and girls, the doctors and nurses who testified there told us 
why we need this bill.
  So I say to my friend from North Dakota, thank you very much for 
coming up with this unusual procedure so that the American people, and 
the people of Nevada, know how the rendition of health care is not 
going properly--not all the good things, but you were able to put, in a 
very direct perspective, what was going on in the country in regard to 
health care. So I personally appreciate very much you doing what you 
did because, but for this, we were stymied from explaining to people 
what was going on around the country with health care.
  Mr. SCHUMER. Will the Senator from Nevada yield?
  Mr. REID. I am happy to yield.
  Mr. SCHUMER. I just want to add my thanks to my friend from North 
Dakota. Again, just as was the hearing in Nevada, the hearing in New 
York was moving, factual, and brought the case to real life as to why 
we need this proposal. And the Senator did. He went around the country, 
everywhere, like Paul Revere, letting people know they didn't have to 
just curse the darkness; that they could actually get something done 
with legislation that would really matter to people, knowing that this 
is not just a political game.
  I add my voice to thank the Senator from North Dakota, as chair of 
the Policy Committee, for the great work he has done.
  Mr. DORGAN. Mr. President, let me ask the Senator from Nevada to 
yield for a moment. Then I know the Senator from Iowa has a statement 
to make. Will the Senator from Nevada yield for a question?
  Mr. REID. I am happy to yield.
  Mr. DORGAN. I did want to take the time to show the picture of the 
young 16-year-old man mentioned earlier, named Christopher Roe. The 
Senator from Nevada and I both told his mother, Susan, that her 
testimony would make a difference. This is the picture Susan held up at 
our hearing in Las

[[Page 10978]]

Vegas, NV. As she held up this picture of her 16-year-old son, Susan 
described the difficulties obtaining treatment for Christopher through 
their managed care organization. Susan's family faced these 
difficulties in addition to the fight Christopher was trying to win in 
his battle against cancer. It was a battle this young boy lost, and it 
was a battle that had become an unfair fight because he had to fight 
cancer and he and his family had to fight the managed care organization 
at the same time.
  This is the boy who died on his birthday. This is the boy who looked 
up from his bed and said to his mother: Mom, I don't understand how 
they can do this to a kid--``this'' meaning, how could they not have 
allowed him to get all of the treatment that was necessary to give him 
a shot at beating cancer? He died on his 16th birthday.
  To his mother Susan, who also is a tireless fighter, and who believes 
also that there must be change, we say your son's memory, I hope, will 
give all of us in this Chamber the incentive and the initiative and the 
passion to do the right thing and to pass a Patients' Protection Act.
  I mentioned yesterday that I, too, have lost a child. And I get so 
angry--so angry--sometimes when I hear these stories. I didn't lose a 
child because of a decision by a managed care organization, but I lost 
a child to a disease. And you never, ever get over it.
  When I see mothers such as Susan, holding up a picture of her son, 
saying, ``this death should not have happened, I should not have lost 
my son, my son should have had a chance to live, my son should have 
been given the opportunity to fight this cancer that was invading his 
body'', then I say we ought to have enough passion and we ought to have 
enough determination and grit to stay here until we pass a piece of 
legislation that says no more Christopher Roes in this country will lie 
in bed dying of cancer having treatment withheld from them; it will 
never happen again because we will make sure it does not.
  Patients in this country have basic protections and rights, and they 
have the right to the treatment they need at the time they need it. 
They have the right to see specialists, and they have the right to know 
all their options for medical treatment, not just the cheapest. They 
have the right to go to an emergency room when they have an emergency.
  There are basic protections and rights that are in this legislation 
that every American deserves to have. We are going to see that we get 
Americans protected and their rights ensured by the time we finish the 
debate on this important legislation.
  I thank my colleague from Nevada. And again I say to Susan, and all 
of the other mothers and fathers who have testified at the hearings I 
have held, your testimony was not in vain. We have put together a 
record that demonstrates the need to pass this legislation, and we 
intend to do just that.
  The PRESIDING OFFICER. The Senator from Iowa is recognized.
  Mr. HARKIN. Mr. President, I first say a big thank you to Senator 
Kennedy for his many years of leadership on this issue, and also thank 
Senator Edwards for his leadership and sponsorship of this bill, along 
with Senator McCain.
  This is not a new issue in this Chamber. Senator Kennedy led the 
battle on this, starting about 5 years ago, if I am not mistaken. We 
passed it last year, as you know. The House passed a good bill, but the 
Senate passed a rather bad bill. We went to conference, and we could 
not get anything out of conference. We used to meet periodically over 
here in a room, in Senator Nickles' room, to try to hammer things out, 
but it became clear that the more we met, the less that was going to 
get done. So now we have a chance, this year, to catch up on all that 
and to pass this meaningful legislation.
  I believe we are on the verge of a big victory for the American 
people. They have been waiting too long for this in the waiting rooms--
about 5 years--where mothers, fathers, and children have been forced to 
spend countless hours negotiating the massive bureaucracy of their 
managed care plans, desperately trying to get the health care services 
they need and deserve.
  Unfortunately, it is clear that the opponents of a Patients' Bill of 
Rights are not giving up their fight. They may succeed in convincing a 
few to delay it for a few more days, but they are not going to be 
successful in stopping the Senate from passing the protections that 
patients should have had years ago.
  Right now, as I understand, we have an objection from the Republican 
side to proceed to the bill, an objection from the Republican side to 
not even take the bill up. That is unfortunate, but I think it 
indicates that we have to be resolute in our determination to answer 
the call of our patients all over America.
  We do not have to look too hard to see that there are too many people 
being denied appropriate care. We have all heard the horror stories of 
individuals unable to see their doctor in a timely manner, of patients 
unable to access the specialists they need. We just heard a number of 
stories from the Senator from North Dakota and the Senator from New 
York. I am certain we will hear many more as we are here in this 
Chamber during this debate.
  These are all individuals who have been denied the treatment their 
doctor has recommended or their health specialist has recommended 
because the HMO simply doesn't want to pay the bill.
  I hope we will all remember, as we hear all these stories coming out, 
that those are the ones we know about. That is just the tip of the 
iceberg. Think about the many more Americans who have been denied the 
care but in their desperation they went elsewhere. Maybe they paid for 
it out of their pocket; they moved on with their lives. The stories we 
hear are the tip of the iceberg. There are many more about which we 
don't know. These are real stories and these are real people. These are 
real hurts they have.
  It is very simple: Your HMO either fulfills its promises to pay for 
medically necessary services or it doesn't. We have heard enough to 
know that in too many cases it doesn't. As I said, I didn't have to 
look very far to find such situations in my own State of Iowa.
  Let me relate the story of Eric from Cedar Falls who has had health 
insurance through his employer. Eric is 28 years old with a wife and 
two children. He suffered cardiac arrest while helping out at a 
wrestling clinic. He was rushed to the hospital where he was 
fortunately resuscitated. But tragically, while in cardiac arrest, 
Eric's brain was deprived of sufficient oxygen. He fell into a coma and 
was placed on life support. The neurosurgeon on call recommended that 
Eric's parents get him into rehabilitation.
  It was then that the problems began. Although Eric's policy covered 
rehabilitation, his insurance company refused to cover his care at a 
facility that specialized in patients with brain injury. Well, 
thankfully, Eric's parents were able to find another rehabilitation 
facility in Iowa. Eric began to improve. His heart pump was removed, 
his respirator was removed, and his lungs are now working fine. But 
even with this progress, Eric's family received a call from his 
insurance company saying they would no longer cover the cost of his 
rehabilitation because he was not progressing fast enough.
  Eric's mother wrote to me and said:

       This is when we found out we had absolutely no recourse. 
     They can deny any treatment and even cause death, and they 
     are not responsible.

  In the coming weeks in this Chamber, we have a critical choice before 
us. We can choose for Eric and his family. We can choose between real 
or illusionary protections. We can choose between ensuring health care 
for millions of Americans or perpetuating the burgeoning profit margins 
of the managed care industry.
  I have been working on this issue with my colleagues for over 5 
years. Last year I was a conferee trying to work out this bill with the 
House. It came to naught. We have debated this issue for years. We have 
negotiated differences of opinion to find common ground. We have worked 
across party

[[Page 10979]]

lines to develop the best bill possible. I am delighted to say that 
amendments I offered during the past debates, such as access to 
specialists and provider nondiscrimination, have been incorporated into 
the underlying bill. S. 1052 truly represents the best of all of our 
collective ideas and, most importantly, meets the needs of the American 
people.
  Our bill establishes a minimum level of patient protections by which 
managed care plans must abide. States can, and it is my hope that they 
will, provide even greater protections, as necessary for individuals in 
HMOs in their States. As a starting point, we need to pass a strong and 
substantive Patient Protection Act.
  S. 1052, our Patients' Bill of Rights Act, delivers on what Americans 
want and what they need: Real protection against abuse; direct access 
to needed specialists, especially pediatrics specialists and OB/GYNs 
for women; the right for patients to see a doctor not on their HMO 
list, if the list does not include a provider qualified to treat their 
illness; access to the closest emergency room; the right for patients 
with ongoing serious or chronic conditions such as cancer or arthritis 
or heart disease to see their medical specialist without asking for 
permission from their HMO or primary care doctor every time they need 
to see their specialist; the right for patients to continue to see 
their doctor through a course of treatment or a pregnancy, even if the 
HMO drops their doctor from its list or their employer changes HMOs.
  This is so important. Right now, so many people in managed care plans 
are seeing a doctor for a course of treatment. It could be a difficult 
pregnancy. The mother-to-be has every confidence in this specialist. 
Then her employer changes HMOs and this doctor is not on their approved 
list, not on their list for HMOs. Many HMOs will just drop that.
  What this bill says is: If you started on a course of treatment, you 
can continue to see the doctor of your choice through that course of 
treatment even if the HMO has changed or if they have dropped the 
doctor from their list.
  This bill has the right for patients to get the prescription drug 
their doctor says they need, not an inferior substitute that the HMO 
chooses because it is cheaper.


                     Congratulating Senator Cleland

  Mr. DASCHLE. Mr. President, will the Senator yield for just a moment?
  Mr. HARKIN. I am delighted to yield.
  Mr. DASCHLE. I appreciate very much the senior Senator from Iowa 
yielding. The hour is almost over, and I do want to call attention to 
an important matter for me personally, for our caucus, and certainly 
for the Senate.
  Our colleague from Georgia, Senator Cleland, has never had the 
opportunity to preside before, in large measure because we have not 
been in the majority during the time he has been in the Senate. I want 
to call attention to the fact that Max Cleland, our colleague from 
Georgia, has been the Presiding Officer for this last hour. I 
congratulate him. I wish him well as he pursues his golden gavel of 100 
hours of presiding. I compliment him on the way he has presided and 
thank him very much for his willingness to do so.
  The PRESIDING OFFICER. The Chair thanks the majority leader.
  Mr. DASCHLE. I thank the Senator for yielding.
  Mr. HARKIN. I thank our leader for pointing that out. I, too, 
congratulate my friend and dear colleague from Georgia for being a good 
friend of mine and for being a great Senator.
  A patient should have the right to appeal an HMO's decision to deny 
or delay care to an independent entity and to receive a binding and 
timely decision and, finally, the right to hold HMOs accountable when 
their decisions to deny or delay care lead to injury or death.
  It was my friend from North Carolina, Senator Edwards, who said 
earlier that there are only two groups in the United States that can't 
be sued--diplomats and HMOs. It is time to end the HMO diplomatic 
immunity in this country and to allow them to be held accountable.
  I know there is a lot of talk about the right to sue. Let's face it: 
Most of the situations will be resolved through the strong and binding 
appeals process that is in the bill. But the HMOs should not have 
special immunity when they harm patients. The reality is that unless 
HMOs are held accountable when they make inappropriate medical 
decisions that harm a patient, there is no guarantee that they will 
change their ways and stop putting profits before patients.
  As this debate unfolds, I know that I and others will be coming to 
the floor to point out the tremendous profit margins some of these 
managed care industries have. When you think about it, that is hundreds 
of billions of dollars a year being sucked out of medical care that 
people need in this country and given to their shareholders or 
sometimes to a very small group who happen to own the HMO or the 
managed care system.
  I don't mind HMOs making profits--that is fine--but they should not 
be able to make these unconscionably high profits by disallowing 
appropriate care for patients. That is what I mean. The HMOs cannot 
continue to put profits ahead of patients.
  Mr. EDWARDS. I wonder if my colleague will yield for a question.
  Mr. HARKIN. I am delighted to yield to my colleague and friend and a 
great leader on this issue.
  Mr. EDWARDS. Mr. President, one of the reasons we are beginning this 
important discussion of an issue that will affect the lives of so many 
Americans is that for years now you have helped lead the fight on HMO 
reform, on a real Patients' Bill of Rights and on patient protection. I 
had the honor last year, during the Presidential campaign, of visiting 
in the Senator's State.
  I say to my colleague, I heard over and over everywhere I went around 
the State the passionate feelings people in your State have for the 
fight that you have waged on behalf of real people and families and 
children to try to protect them against HMO abuses.
  I wonder if the Senator would mind sharing with us what the people in 
his State have said to him in town hall meetings, visits on the street 
corner about how they feel about a clerk sitting behind a desk 
somewhere overruling experienced, well-trained doctors and nurses as to 
health care decisions that can literally affect the lives of their 
families.
  Mr. HARKIN. First, I thank my friend from North Carolina for his kind 
words and for visiting my State. I invite him back soon and often. I 
thank the Senator from North Carolina for his great leadership on this 
issue, and I am delighted to be a soldier in his army to fight this 
battle and make sure our patients get decent care.
  Mr. REID. Will my friend yield for a unanimous consent request?
  Mr. HARKIN. Sure.
  Mr. REID. Mr. President, I ask unanimous consent that following the 
statement of Senator Clinton--she will speak for 15 minutes when she 
arrives--the Republicans be recognized for 1 hour following that time 
to make up for the time we have used.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, the one thing I ask of my friends on the 
minority side today, Senator Zell Miller has asked to come over. When 
he shows up, after a Republican speaker finishes his statement, perhaps 
Senator Miller can speak, and you would wind up getting your full hour.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. HARKIN. Mr. President, I was at a town hall meeting in Iowa, 
where I first heard this comment made by a gentleman who I think really 
brought it all home. He said to me: I don't want my doctor doing my 
taxes, and I don't want my accountant deciding my health care needs. To 
me, that sort of brought it all home and pointed out what we are trying 
to do: let the doctors and health care professionals make the 
decisions, and not the accountants, on what kind of health care we 
need.
  As I said earlier, the stories we hear about the lack of medical care 
from people in HMOs in Iowa--again, this is the tip of the iceberg. We 
are going to

[[Page 10980]]

hear a lot of stories. These are real people with real injuries and 
real hurt. We have to keep in mind that these are just the ones we know 
about. How many more that we don't know about are out there?
  I retold a story here about Eric, a 28-year-old man who was working 
and had a wife with two kids. He was helping out at a wrestling clinic 
and he had cardiac arrest. They rushed him in and he was resuscitated. 
His brain had been denied sufficient oxygen, so he needed special 
rehabilitation. The neurosurgeon recommended to his family to get him 
into rehabilitation. His insurance policy covered rehabilitation, but 
his insurance company refused to cover his care at a rehabilitation 
facility that specialized in brain-injured rehabilitation. So his 
family took him to another place in Iowa. He began his rehabilitation.
  The good news is that he had progressed very well. The heart pump was 
removed, the respirator was removed, and his lungs are now working 
fine. But just at this point, the HMO calls his family and says they 
will no longer cover the cost of his rehabilitation because he is not 
making enough progress fast enough. I would never have known about this 
except that his mother wrote me a letter and said: This is when we 
found out we had absolutely no recourse. They can deny any treatment 
and even cause death and they are not responsible.
  I hear stories such as this all over my State. That is why we need to 
move ahead aggressively and why we have to keep in mind, when this 
debate occurs and we hear all these amendments being proposed, that we 
are talking about real people, real consequences, and real hurt that is 
happening to these families. The need is clear.
  This bill is not about doctors, nurses, or politicians; it is about 
patients, about our friends and our families when they get sick and 
they need to have the peace of mind that the health care they need and 
deserve--and that they have already paid for--will be available in a 
timely manner.
  We have a chance to pass real and responsible legislation. The time 
is now. The American people have been in the waiting room for far too 
long. It is time to pass a meaningful Patients' Bill of Rights. Let's 
not delay any longer. We will have the debate. Let's have the 
amendments that are pertinent. Let's get it done once and for all.
  Mr. KENNEDY. Will the Senator yield for a question?
  Mr. HARKIN. I yield to the Senator.
  Mr. KENNEDY. Mr. President, I thank the Senator for his strong 
leadership in this battle over a very long period of time. As the 
Senator was mentioning in the beginning of his remarks, this has been a 
5-year pilgrimage, where those who have fought for this legislation 
have effectively been denied the opportunity to bring this measure up 
on its own in the Senate. The Senator can remember last year when we 
had actually a numerical majority in this body, bipartisan in nature, 
who would have voted for this. But we were denied that opportunity. 
Now, as the first order of business under the leadership of Senator 
Daschle--I think it was the first comment he made after assuming 
leadership, that this was going to be a first priority following 
completion of the education bill.
  I have a couple of questions because I, too, have had the good 
opportunity, as the Senator from North Carolina has, to travel to Iowa. 
More importantly, I have had the good opportunity of working closely 
with the Senator in the development of this legislation. The Senator 
can agree with me that the protections we have in this bill are 
basically pretty mainstream kinds of protections that I think families 
could recognize right at the outset. I don't have the particular chart 
here. We will have an opportunity to get into those as the debate 
proceeds.
  We are talking about emergency room coverage and about specialty 
care, and we are talking about clinical trials and OB/GYN; and we are 
talking about prohibiting gagging doctors and talking about continuity 
of care and about point of service, so we can make sure we can get the 
best treatment for families needing those kinds of protections. The 
list goes on: prescription drugs, the right kinds of prescription 
drugs, and then appeals, internal and external, and then accountability 
provisions.
  Doesn't the Senator, at times, wonder with me what are the particular 
protections in there to which the opponents object? What are the 
protections to which they most object? They say: We can't do this; we 
oppose this; we won't let you bring this up.
  These are basic kinds of protections which, as the Senator knows, are 
either protections that exist under Medicare or Medicaid or have been 
recommended by the insurance commissioners who are not known to be 
Democrats or necessarily Republicans--pretty bipartisan and nonpartisan 
in most States. The only provisions that we have taken in the Patients' 
Bill of Rights--additional protections--were those that were 
unanimously recommended by a bipartisan commission that was set up 
under President Clinton. They were unanimously recommended, without 
dissent effectively.
  They recommended that the HMO association adopt them. We said, 
because they were so important, to protect them we would put them in as 
a floor to make sure they are accepted. Does the Senator not wonder 
with me what the principal objectives are?
  Finally, let me ask, does the Senator not believe that every day we 
fail to pass this legislation people are being hurt?
  I took the opportunity yesterday to mention briefly what the Kaiser 
Foundation has found and what the various studies show. They show that 
every day we fail to take action, families, real people--parents, 
mothers, fathers, sons, daughters--their injuries are being expanded 
and their hurt and suffering is increased and enhanced because we are 
failing to pass this legislation.
  Doesn't the Senator agree that for all of these reasons, and others, 
the importance of passing this legislation in a timely way, the 
importance of passing it now, the importance of supporting our leader 
and saying let's finish before we consider other work, deserves the 
support of everyone in this body?
  Mr. HARKIN. I thank my friend from Massachusetts for postulating this 
question because it is really important. Before I answer it, I again 
thank the Senator for his 5 years of leadership. The Senator from 
Massachusetts was the leader on this issue when it started 5 years ago. 
He was our leader last year, and he is our leader again this year 
trying to bring to the American people commonsense decency.
  As the Senator said, there is nothing in the bill that would not meet 
the test of good old common sense.
  Yes, I want to know if those on the other side who oppose this are 
going to offer an amendment that says, no; if a woman is seeing an OB/
GYN, if she is having a difficult pregnancy--this may be a specialist 
in whatever the difficulty might be. But then the woman's employer 
changes HMOs and drops the doctor. Right now they can refuse to pay 
that specialist. She would have to go to someone else and start over.
  Doesn't it make common sense that she should at least be able to see 
that specialist through the end of her pregnancy, the birth, and have 
that same specialist see her? That is common sense.
  I question out loud, will someone on the other side offer an 
amendment to disallow that? Fine, if they want to do that, if that is 
their opinion. I want to see how many people vote against something 
such as that. That is just common sense.
  Or a person with a disability who has to see a specialist on a 
continuing basis, I cannot tell the Senator--he knows this as well as I 
do; he has been very supportive.
  Mr. KENNEDY. Madam President, has the time expired?
  The PRESIDING OFFICER (Mrs. Lincoln). The time has expired.
  Mr. THOMAS. Madam President, the time is to change at 3:15 p.m. We 
ask that be done.
  Mr. HARKIN. Madam President, I will finish with 1 more minute.
  As I was saying to my friend from Massachusetts, many people with 
disabilities have to see a specialist, but so

[[Page 10981]]

many times it is hard for a person with a physical disability to get 
out, get the bus, get special transportation. Now they have to see the 
gatekeeper every time.
  The HMO says: No, you have to come in and qualify for each and every 
time you want to see that specialist. This bill does away with that.
  Will someone offer an amendment that says to someone with a 
disability: I do not care; you have to go through that gatekeeper time 
after time to see the specialist you need to see.
  I agree with the Senator from Massachusetts; the bipartisan 
commission worked this out. These are commonsense approaches. You can 
take this bill to any townhall meeting in Massachusetts, Iowa, or 
Arkansas and lay it out for average Americans, and they will say: Yes, 
this makes sense. This bill makes sense and that is why we have to do 
it.
  Mr. KENNEDY. I thank the Senator.
  The PRESIDING OFFICER. The time of the Senator has expired. The 
Senator from Nevada.
  Mr. REID. Madam President, I have spoken with the manager of the 
bill, the Senator from New Hampshire. He made a very valuable 
suggestion. I ask to revise the unanimous consent agreement that is 
before us. I ask unanimous consent that the Republicans have control of 
the time speaking as in morning business until 4 o'clock, and 
thereafter, until direction of the majority leader, we will go on the 
half hour; from 4 to 4:30 p.m. will be Democrats, from 4:30 p.m. to 5 
p.m. will be Republicans, until we decide we have had enough for the 
night.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from New Hampshire.
  Mr. GREGG. Madam President, I thank the assistant majority leader for 
helping organize the speeches this afternoon. There are a lot of 
Members who want to talk on this bill. That is reflective of the fact 
and one of the reasons why we cannot move immediately into the 
amendment process. It is not that we on this side are not interested in 
moving to the amendment process; we honestly are. There are many on our 
side champing at the bit to get into this bill and amend it and address 
fundamental issues.
  We also on our side want to have the opportunity to bring forward 
substantive and thoughtful approaches on how to address this issue in 
an even more effective way than the bill before us that has been 
drafted by Senator McCain and Senator Kennedy.
  The point, however, is that we just got this bill. It was one bill on 
Wednesday of last week. Then it was a different bill on Thursday. We 
have had 2 working days. We are talking about the bill, but it is a 
moving target for us. To get up to speed on it takes a little time, and 
there are a lot of people who want to talk about that, a lot of people 
who have had intimate knowledge with what has been going on with this 
issue for a long time but are not familiar with the specifics of the 
McCain-Kennedy bill and, therefore, believe they need some time to be 
brought up to speed before getting into the amendment process.
  I note as an aside, and I think it is important to note, this is one 
of the most far-reaching and important pieces of legislation we will 
address as a Senate this year, certainly on the authorizing level. We 
just completed another major piece of legislation, the education bill, 
which is extremely important legislation. We spent 2 weeks--actually 
2\1/2\ weeks--on the motion to proceed to the education bill. That was 
when the Republican Party held the majority in the Senate. At that 
time, I did not hear Senators from the other side saying we were moving 
too slowly as we are now hearing today from Senators on the other side, 
even though we have not spent more than 6 hours on the issue of whether 
we should proceed. It seems to me there are a few crocodile tears on 
that issue.
  There is a legitimate reason for not immediately moving to the bill, 
and that is we do not know what the bill is, and we do not know the 
specifics of the bill. We should have a chance to read it before we 
proceed to it.
  I use the very excellent example of the position of Members of the 
other side of the aisle when we were taking up the education bill when 
they suggested we do 2 weeks. We are not going to suggest 2 weeks, but 
we are going to suggest a reasonable amount of time to proceed on the 
issue of reviewing the bill before we address it.
  This probably would not have been necessary if we had had hearings on 
this bill. One must remember, there has not been a hearing on this bill 
that is being brought before us even though it is extremely important 
legislation. In fact, in the Senate, there have been no hearings on the 
issue of patients' rights in 2 years--since March of 1999.
  We have taken up the language of the Patients' Bill of Rights a 
couple of times, but we have not done any hearings in the committee 
that has jurisdiction or responsibility in the last 2 years.
  That is important because at those hearings, we could have gotten 
constructive input. If we had had hearings on this bill, for example, 
we would have seen a number of people from communities across this 
country coming forward--small business people, people who are running 
mom-and-pop businesses with 9, 10, 15, 20, 30 employees saying: Listen, 
the hardest thing I have in my business is the cost of health 
insurance. I want to insure my employees. I want health insurance for 
them, but if the McCain bill passes, I will not be able to afford 
health insurance because I suddenly will not only be buying health 
insurance, I will be buying lawsuits. Instead of the present law which 
insulates the small employer especially from being sued for medical 
malpractice or medical malfeasance or medical events that their 
employees incur in the process of dealing with the health insurer with 
which the small business individual has contracted, instead of having 
that insulation, that goes down, the wall goes down.
  Under this bill, those employers, those small mom-and-pop employers 
especially--all employers for that matter--will suddenly find 
themselves being sued for medical issues.
  A person who runs a restaurant with 30 employees is probably saying: 
I don't mind being sued if I put out a bad meal and somebody gets sick. 
That is my responsibility. But if one of my employees to whom I have 
given health insurance, which I think is important to them, goes to the 
local doctor and the doctor doesn't treat them correctly or they get 
bad advice from their insurance company on the way they should have 
been treated or their options, why should I, as the owner of the little 
restaurant, end up being drawn into that lawsuit? But I will be under 
this law, under this proposal as it is structured.
  I find it consistently ironic that the Senator from North Carolina, 
who has his name on this bill, continues to say employers are not 
subject to suits when the bill specifically says employers are subject 
to suits. It says it in two places that are very significant.
  He suggested I read his bill. I did read his bill. I might suggest he 
also take a look at his bill because it does not appear he has, if he 
continues to conclude employers are not subject to liability. No. 1, 
the language is, as we mentioned earlier on page 144, very specific. 
Granted, the headlines for the language are ``exclusion of employers 
and other plan sponsors.'' But when it gets to part (B), it says, 
``notwithstanding [anything] in subparagraph (A), a cause of action may 
arise against an employer or other plan sponsor. . . .''
  That is the term, ``employer.'' I define ``employer'' as employer, 
not insurance company. I think anybody else would, too. So right there, 
at the base of it, employers are sued under this bill, and for a 
significant amount of responsibility here, because the definition of 
what an employer is going to be sued for goes on to say, ``where the 
employer participated--had direct participation by the employer or 
other sponsors in the decision of the plan.''
  Direct participation has become an extremely broad term, as I 
mentioned earlier today. Basically, if the employer says, as you are 
heading off to the hospital--you are working for the restaurant; there 
are 30 people at the restaurant and you get burned in the kitchen and 
the employer says, you have to get down to the hospital, let

[[Page 10982]]

me make sure you get to this hospital versus that hospital, the 
employer is libel. The employer is libel for how you are treated at 
that hospital under this bill.
  Then there is this new cause of action, which is a massive new 
expansion of the ability of people to be sued, employers specifically, 
under this bill. This new cause of action is created by subsection 302, 
subsection (A)(ii), I think it is the right cite, on page 141 of 
Senator McCain's bill:

       . . . otherwise fail to exercise ordinary care in the 
     performance of a duty under the terms or conditions of a plan 
     with respect to a participant or beneficiary.

  Then, the agent or the plan sponsor is subject to be sued. Plan 
sponsors are, by definition of ERISA, employers. That is very clear, 
unequivocal in ERISA. So we are talking about the fact that there is 
now a new Federal cause of action for what amounts to the failure of a 
plan, the insurer, to give information which traditionally had been 
managed through regulatory activity--the failure of that plan to do a 
whole series of things.
  I put up a list earlier of potentially 200 different places, between 
COBRA, HIPAA, and ERISA, that you would have a cause of action that 
could be brought on an activity of the insurer or people who are 
involved in the plan in a ministerial way as employers. They would now 
be subject to lawsuits in a Federal action. There would now be a 
Federal action against them on that in over 200 different places--not 
quite 200, somewhere around 200 different places where employers could 
be sued.
  I understand--I was not here but it was represented to me by people 
who were here--that, once again, the Senator from North Carolina said 
that is not true; that only counts if it is a medically reviewable 
event. Then that brings in the employer.
  I don't know. I think I can read language. The language is abundantly 
clear, and I don't think you can reach that conclusion because the 
language is clear. The language the Senator quoted in support of that 
position, which actually is a 180 degree exact opposite conclusion of 
what the Senator from North Carolina said, the point he was making, if 
it was correctly represented to me.
  Under clause (2), again of 302, it says:

       In General.--A cause of action is established under 
     paragraph (1)(A) only if the decision referred to in clause 
     (i) or the failure described in clause (ii) does not 
     [``not''] include a medically reviewable decision.

  Just the opposite. It is not because there is a medically reviewable 
decision that you get brought into this. It is because there was no 
medically reviewable decision, which means all these ministerial 
events, which have unlimited liability attached to them, can create the 
lawsuits against employers.
  So employers are going to be hit with a plethora of new lawsuits from 
attorneys across this country. This is a whole new industry. We will 
have to probably build another 20 or 30 law schools across this country 
just to take care of all the new lawyers who are going to join the 
trade in order to make money suing people under this McCain-Kennedy 
bill. We are going to have to expand law schools radically, which may 
be good for law schools but I am not sure it is good for our society as 
a whole.
  I want to go into a little more depth here, if I have a minute--I 
understand somebody else is coming to speak--on the specifics so I get 
it right, especially on this whole issue of the Federal tort claim, 
this new Federal action. This is a huge event which should not be 
underestimated. It is technical but it is huge and the implications are 
radical. We are going to get a chart put up just to make it a little 
easier for people to understand.
  Basically what this bill does is it creates two new types of lawsuits 
in Federal court. Under the first type of action, participants can sue 
over a failure to exercise ordinary care in making nonmedically 
reviewable claims determinations. The second Federal cause of action 
broadly allows suits for failure to perform a duty under the terms and 
conditions of the plan. Remedies available under the two new claims, 
these two new ERISA claims, include unlimited economic and noneconomic 
damages and up to $5 million in what this new euphemism is, ``civil 
penalties,'' otherwise known as punitive damages. I guess that was too 
punitive a word to put into this bill so they used the words ``civil 
penalties.''
  They have created these claims. They have taken the tops off the 
liability and basically said, OK, go find an employer and shoot him 
dead with unlimited economic damages, unlimited noneconomic damages, 
and $5 million in punitive damages.
  The second new ERISA claim, the terms and conditions in the one I 
just talked about, is extremely broad, covering virtually any 
administrative action that does not involve a claim for benefits, 
including the S. 1052 McCain bill new patient protection requirements 
under COBRA and HIPAA.
  The McCain bill establishes a complicated scheme which attempts to 
limit Federal and State suits against employers provided the employer 
does not directly participate in the decision in question. It is a very 
complicated scheme, but what is the effect of it? The effect of this 
direct participation at this time will mean that employer protections 
are essentially meaningless for suits alleging a failure under the 
terms and conditions of the plan.
  Further, the McCain-Kennedy bill continues to allow unfettered class 
action suits--including suits against employers--where no limits on 
damages would apply under the current law provisions of ERISA or other 
Federal statutes, including the RICO statute.
  So you have, first, a whole new set of Federal claims created against 
employers, unlimited economic damages, unlimited noneconomic damages 
and $5 million of punitive damages, which essentially have a figleaf 
entry level that any good lawyer is going to be able to punch through 
called directed participation. Then you have the continuation of class 
action suits giving lawyers another forum with things such as the RICO 
statute.
  Because employers inherently carry out their duties under the ERISA's 
statutory scheme, the McCain-Kennedy bill will leave employers wide 
open to new Federal personal injury suits. Employers will be sued based 
on alleged errors in:
  Offering continuation coverage and providing notices under COBRA;
  Providing certification of prior credible coverage under HIPAA's 
portability rules;
  Distributing summary plan descriptions; describing the plan's claim 
procedures under the plan; and describing the plan's medical necessity 
or experimental care benefit exclusions.
  Here are some of the others:
  Also, providing notices of material reduction in group health plan 
benefits as required by ERISA.
  These are all areas where they can be sued.
  Also, responding to requests for additional group health plan 
documents under ERISA; and, finally, group health plan reports under 
the Department of Labor.
  In all of these areas they can be sued. The list goes on and on. 
Employers cannot be sued on this today. All of this is new. This is a 
brand new litigation area.
  As I said, we will need to add many new law schools in order to 
absorb all the new lawyers we will need in order to bring all of these 
lawsuits.
  The McCain-Kennedy bill proposes up to $5 million for punitive 
damages for COBRA, HIPAA reporting, and disclosure violations despite 
the fact that all of these requirements have their own specific ERISA 
enforcement provisions.
  In other words, under present law, there are already enforcement 
provisions for this activity and the ones I just listed. But they don't 
run to the employer to benefit the patient. The patient doesn't have an 
individual cause of action in this area. Rather, these are strong 
administrative procedures which keep the employer from violating the 
purposes of ERISA. But now we have punitive damages up to $5 million, 
unlimited economic damages, and unlimited noneconomic damages.
  Some of the things that occur today in order to enforce these laws 
but which do not involve private cause of

[[Page 10983]]

action as created under the bill are as follows:
  There is a $100 per day excise tax penalty under Code section 
4980B(b) violations of the COBRA requirements--tax penalties are up to 
$500,000 for employers and $2 million for insurers. There is an 
additional $100 per day civil penalty under ERISA section 502(c) for 
failing to satisfy the COBRA notice requirements. Plan participants may 
sue employers and insurers--for benefits and injunctive relief under 
ERISA section 502.
  There is a $100 per day excise tax penalty under Code section 
4980D(b) and a $100 per day penalty under section 2722(b)(2) of the 
Public Health Service Act for violations of the HIPAA preexisting 
conditions limitations provisions. In addition, plan participants may 
sue for benefits and injunctive relief under ERISA section 502.
  Willful violations of ERISA's reporting and disclosure rules, 
including the requirements relating to the provision of SPD and 
documents upon request, are subject to criminal fines and imprisonment 
under ERISA section 501.
  Failure to provide documents upon request is subject to civil 
penalties under ERISA section 502(c).
  So you already have a very extensive administrative and legal 
liability situation for employers and insurers that do not meet the 
conditions of COBRA, HIPAA, and ERISA. But what you are now layering on 
top of that is a brand new concept where you have a private right of 
action, where individuals can go out and allege these violations as 
part of the injury they claim they received and have a whole new cause 
of action against the employer.
  What small-time employer--what employer, period--is going to want to 
keep a health plan if they have that level of liability facing them?
  McCain-Kennedy 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.
  Practically what you have here is a decision by the drafters of this 
bill to say we are not really so much interested in delivering better 
health care and in giving patients better health care; we are really 
interested in creating a massive new opportunity for lawsuits.
  In doing that, I think they are accomplishing one of the goals--which 
I believe is a subliminal goal and maybe a more formal goal in truism--
which is to create more people who are not ensured because that can be 
the only conclusion from their lawsuit structure. The only thing that 
can come from all of these lawsuits, from all of these new causes of 
action, and from all of the new pressures it will put on employers is 
that fewer employers will insure their employees, especially small 
employers.
  Inevitably, there will be more uninsured. Why would anybody be for 
more uninsured? If you are around here and you want to pass a national 
health care plan, the biggest argument you have in your favor is that 
there are too many uninsured in our country, that the only way to 
handle the uninsured is to nationalize the system and put everybody 
into a national plan so everybody is covered.
  We heard that argument interminably in 1993 when there were only 23 
million uninsured. After 8 years of the Clinton administration, there 
are now something like 42 million uninsured. We have increased the 
number of uninsured people by 19 million over this approximately 8-year 
period when we were supposed to be improving our health care delivery 
system. And the call for a national plan will grow and grow as the 
number of uninsured grow.
  If you pass this proposal, because of the costs it will create on 
employers and because of the increased cost in the insurance premiums, 
which the Congressional Budget Office scored at 4.2 for every 1 percent 
of increased cost, CBO estimates that 300,000 people will drop 
insurance. So 1.2 million people are going to drop their health care 
insurance.
  Couple with that this huge, newly built, unintended consequence--
intended consequence; it is not unintended at all--which will be that 
employers, and especially small employers, will simply say, I am not 
going to run the risk of being put out of business by these lawsuits 
which bring me personally into the fray.
  Then you have the result that more and more people will become 
uninsured. Thus, more and more pressure is created in the marketplace 
of politics for a nationalized plan.
  You have to remember, if you are a small businessperson and you are 
employing 20, 30, or 50, or even 100 people, and you are confronted 
with one of these law lawsuits--which you suddenly find you are 
confronted with because the Federal law has the ability of making you 
personally liable because you happen to be the employer or the health 
plan sponsor--what is your alternative? What are your alternatives as a 
small businessperson? You have to go out and hire an attorney. How much 
is that going to cost you? It will cost literally tens of thousands of 
dollars probably to defend yourself in court or you have to settle the 
suit. Even though you don't believe you owe anything, you have to 
settle the suit rather than pay the attorneys or you decide to pay the 
person who brought the suit. That is going to cost you a lot of money.
  Either way, as a small employer, if you are running a mom-and-pop 
restaurant, it will probably wipe out your profit because you suddenly 
find that you are subject to lawsuits to which you were never subject 
before simply because you gave health insurance to your employees. It 
is absolutely the wrong result. We have heard a lot from the other side 
of the aisle about individuals who had serious problems with HMOs. We 
are all sympathetic to those individuals. Photographs that have been 
brought to this Chamber--and brought to this Chamber last time--by 
Members from different States are very moving photographs. But you have 
to remember, that is not the issue here because the proposal put 
forward by Senator Nickles last time, the proposal put forward by 
Senators Frist, Breaux, and Jeffords, and the proposal from Senators 
Kennedy and McCain, all take care of those individuals' concerns. Those 
are straw men. None of those folks, I suspect--or the vast majority of 
them; I suspect none of them--would have the problems they had with 
their HMO if any one of those three bills passed because all those 
bills had a very aggressive procedure for redress for the person who 
believes they are not getting fair treatment from their HMO--very 
aggressive.
  All of those bills had very extensive proposals for coverage of 
different types of services which people believe they have a right to, 
and should be able to get, and should not have to have their HMO 
telling them what it is they should have and what it is they should not 
have--whether it is their OB/GYN or specialists or a primary care 
provider. All of them have that language or rely on State law which has 
that language and which is equal to the language in the bill that is 
being proposed.
  So those issues, as compelling as they are, truly are not relevant to 
the debate in this Chamber because under anything that passes this 
Chamber, you have a 100-percent vote to take care of those issues.
  The question before this Chamber is whether or not we are going to 
drive up the costs of health care by creating new liability for 
employers, forcing employers to drop health care, and whether or not we 
are going to usurp the authority of States to set out their ideas as to 
how to address this issue, where many States have already done an 
extraordinarily good job and really do not need a Federal law in order 
to protect their citizenry because the protections have already 
occurred.
  There are a lot of other issues in here, too--lesser issues. But 
those are

[[Page 10984]]

the two big ones. That is what this debate is about. It is not about 
the folks who have not been treated well because those folks are going 
to be treated well under whatever bill passes. And it is not about 
people not being able to go to their health care provider and get the 
type of specialists or the type of treatment they want in a context 
which everyone would describe as reasonable because that is in every 
one of these bills.
  It is about the cost of health care, the liability of employers, and 
the usurpation of States rights with States having the opportunity to 
legislate in the area of insurance which for years is something that 
has been a tradition in this country.
  So as we go down the road--and hopefully we will get a final form of 
a bill to debate from--I believe that is the proper framing of this 
debate. I look forward to it.
  I yield the remainder of our time to the Senator from Texas.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. GRAMM. Madam President, I thank our dear ranking member for 
yielding to me.
  I wanted to come over today in the 15 minutes we have left to talk 
about this version of the Patients' Bill of Rights. Lest this stack of 
legislation on my desk fall over and kill me, let me make the point 
that it seeks to make. This stack on my desk demonstrates our big 
problem in trying to bring up one of the most important bills we are 
going to consider in this Congress; a bill that, by the definition used 
by its principal authors, will cause net pay of American workers to 
decline by $55 billion over the next 10 years. Senator Kennedy talks 
about the bill costing a Big Mac. It really is 25 billion Big Macs. It 
is a lot of hamburgers and a lot of dollars.
  Looking toward the debate on one of the most important bills that we 
will consider, after having spent several weeks trying to analyze and 
understand the old version of the bill, S. 872, we now have a new 
version, S. 1052, and we understand that there is yet another version 
which is coming.
  Why is this important? It is important because if we are going to 
debate an issue that will have a profound effect on every working 
American and every user of health care--which is everybody alive--it is 
vitally important that we know what the proposal is that we are going 
to debate. A perfect example of why that is important is the Clinton 
health care debate that we had in 1993 and in 1994. We kept hearing a 
debate from the White House about their bill, and what it did; but in 
reality, as that debate was in the process of beginning, we had one, 
two, three, four, five, six, seven, eight, then nine different versions 
of the bill.
  Why was it changing so much? It was changing so much because it was 
indefensible. The problem is--at least the problem I had--is that every 
time I studied a new version, by the time we got to the floor of the 
Senate to debate it, the version had changed dramatically. It was not 
an insurmountable problem because each and every one of these versions 
wanted the government to take over and run the health care system. When 
the American people knew what they were trying to do, they were not for 
it.
  But I think we can expedite this debate if we simply know what is 
being proposed. So I would like to propose to our colleagues a solution 
to our problem; and that is, if there is about to be a new version, and 
if the authors of the bill would give us their final version, then I 
believe that we could, with a couple of days' study, be in a position 
to debate the bill. And we could get on with it.
  Why is this issue so important? You are going to hear a lot of debate 
about what this could mean to health care in America, what it could 
mean to the availability of health insurance. Why is that so important? 
First of all, it is important because I think people need to realize 
that when we debated the Clinton health care bill in 1993 and in 1994, 
the argument that was made throughout that debate was: Don't worry 
about the right to have choices. Don't worry about a point-of-service 
option. Don't worry about the right to sue. Worry about access to 
health care because the figure that was used in that debate was the 
latest number we had, as a good number, which was that 33 million 
people did not have health insurance. Today, 42.6 million people do not 
have health insurance.
  What was the solution to that problem that Senator Kennedy proposed 
in presenting the Clinton health care bill? The solution was to have 
the Government, through health care purchasing collectives--which would 
be these giant HMOs run by the government that everybody would be 
forced to be a member of--that the government was going to set 
standards for health care, and they were going to give these 33 million 
people access to health insurance.
  The price we were going to pay was that you did not have any choice 
about joining this government-run HMO. You are going to hear Senator 
Kennedy and others talk about forcing these private HMOs to have a 
point-of-service option. But he is not going to point out that in the 
original Clinton bill, the point-of-service option was that if the 
health care purchasing collective in your area did not approve a 
treatment, and the doctor provided that treatment, he was fined 
$10,000. And if you paid him separately for the treatment, he was sent 
to prison for 5 years.
  You are going to hear a lot of debate about the right to sue HMOs, 
but you are not going to hear that 7 years ago, Senator Kennedy, on 
behalf of Bill Clinton, proposed a bill that severely limited the right 
of anybody to sue a doctor or any health care provider or any faceless 
bureaucrat running a health care purchasing collective.
  The argument 7 years ago was, forget about freedom. Instead, worry 
about the fact that 33 million people don't have health insurance and 
give up your freedom and let the government run the system, and we will 
solve that problem. That was the argument 7 years ago.
  When people understood it meant that when your mama got sick she was 
going to talk to a bureaucrat instead of a doctor, the American people 
killed that proposal. But notice the 180 that has occurred in those 7 
years. Today 42.6 million people do not have health insurance, almost 
40 percent more than in 1989. But now we have a proposal before us that 
simply assumes that every employer absorbs part of the cost of 
increased health care that will come from the bill before us, however, 
we know that the increased costs will guarantee at a minimum that 1.2 
million people will lose their health insurance.
  Why, if we were willing to let the government take over the health 
care system 7 years ago because people didn't have health insurance, do 
we now, in the name of giving them the very rights we would have taken 
away from everybody 7 years ago, make it so that 1.2 million people, at 
a minimum, don't have health insurance who have it today?
  I will explain the answer. I am deeply worried about people losing 
health insurance and I want to preserve private medicine in America. 
But if 7 years ago you wanted the government to take over the health 
care system, then if you destroy the health care system we have today, 
if more people lose their health insurance 2 or 3 years from now, you 
can come back and say: let's allow the government take it over to solve 
a problem which, in fact, you have created with a bill like the bill 
before us that vastly expands lawsuits and expands cost.
  Now, why is this such a big deal? Why is there so much passion about 
this? Let me explain why. This simple chart explains why. This simple 
chart tells us how unique America is in all the world, and how 
different we are than any other developed country in the world. We have 
all heard of the G-7 nations. Those are the seven richest countries in 
the world.
  What I have done in this simple chart is to take the G-7 nations and 
ask a simple question: What percent of the population in the seven most 
developed countries in the world get their health care through the 
government and what percentage get it through private choice, private 
health insurance and decisions that they actually control

[[Page 10985]]

that relate to their family and their children? If this chart does not 
scare you, then I think there is something wrong.
  What does this chart show? It shows that of the seven most developed 
and richest countries in the world, the United States is profoundly 
different in health care. Sixty-seven percent of Americans buy health 
care as a private purchaser through private health insurance and 
through individual choice; 33 percent of Americans get their health 
care through a government program.
  When you look at the next freest country in terms of private 
decision-making regarding health care in the developed world, next to 
America, which has 67 percent of its people buying health care through 
their choice, through private health insurance, and individual 
decision-making, the next freest country is Germany, where 92 percent 
of health care is purchased through government programs and government 
decision-making.
  As we go into this debate, why am I so concerned about driving up 
health care costs and forcing people to give up their private health 
insurance and forcing companies to cancel insurance? I can tell you why 
I am concerned. I don't want, 10 years from now, the United States to 
be up to 92 percent of its health care run by government or 99 percent 
of its health care run by government or 100 percent of its health care 
run by government. If you want America to be at the top of this list, 
then you don't care if the bill before us produces a situation where 
companies cancel health insurance because you have the answer already. 
The answer is government.
  This is a big issue. This is one I believe deserves thoughtful 
deliberation.
  Finally, I will pick three issues. I will use the old bill because 
that is the one I know. I have checked out the new bill and, with one 
exception, there is not a change. There has been one word dropped. I 
will explain why it is so important that we have a copy of the final 
bill so we know what is in it. Let me take three issues that will make 
my point.
  The first issue is the one that there was a lot of talk about on the 
weekend talk shows. In fact, one of our Democrat colleagues was asked 
about suing employers. He responded: under our bill, you can't sue 
employers. Sure enough, if you open their bill up to page 144, right in 
bold headlines, it says that you can't sue employers. In fact, in a 
super-bold headline it says: Exclusion of employers and other plan 
sponsors. And then a subhead line called paragraph (A), it says: Causes 
of action against employers and plan sponsors precluded. Gosh, it sure 
looks like it precludes suing employers.
  Then it says: Subject to subparagraph (B), paragraph (A) does not 
authorize a cause of action against an employer. But guess what. When 
you get down to paragraph (B), it says: Certain causes of actions 
permitted. Notwithstanding subparagraph (A), a cause of action may 
arise against an employer or other plan sponsor or against an employee 
of such an employer or sponsor acting within the scope of employment.
  Why are we so concerned about getting to see the final bill before we 
debate it? Because the bill is full of these bait-and-switch 
provisions. Here in one paragraph it says you can't sue an employer, 
and then in another paragraph it says you can.
  Let me give two more examples. One is, can you force an insurance 
company to pay for a benefit that is specifically excluded in the 
policy? Let's say the policy says that the plan does not provide 
coverage for heart and lung transplants and, as a result, the plan is 
cheaper. And so my small little company I work for buys the plan, and I 
know in advance it does not cover that. So the question is, are you 
bound by the contract? If you look at the bill on page 35, it sure 
looks like you are. In fact it says no coverage for excluded benefits. 
And then it has a paragraph that tells you if they are specifically 
excluded, they are excluded. Until you turn over to the next page and 
it says: Except to the extent that the application or interpretation of 
the exclusion or limitation involves a determination under paragraph 2.
  Then you turn back two pages and you see that anything that is 
medically reviewable or has to do with necessity or appropriateness can 
be mandated, even if the contract specifically excludes it. In other 
words, another bait and switch.
  The PRESIDING OFFICER. Under the previous order, the time controlled 
by the minority has expired.
  Mr. GRAMM. Let me say, we will have plenty of time to debate this and 
I will continue my examples later. However, the point I wanted to make 
now was that we need to see the final version of the bill so we can 
prepare to debate it.
  Maybe if we can take some of these inconsistencies out, we could be 
closer to having an agreement than we think we are. I thank the Chair.
  The PRESIDING OFFICER. The Senator from New York is recognized.
  Mrs. CLINTON. Mr. President, I only caught the tail end of the 
remarks by the Senator from Texas. But I will just point out that this 
bill, which we are hoping to consider today, has been in the works for 
years. It has gone through a number of drafts; it has been voted on in 
previous incarnations. It is not a new issue. It is ready for the full 
debate and disposition in the Senate. It is not like a budget bill that 
is presented without any debate and without any adequate preparation, 
as we experienced a few months ago. This is an issue that is more than 
ripe for the consideration of this body.
  I thank Senator Daschle for making the McCain-Edwards-Kennedy 
Patients' Bill of Rights the first bill he has brought to the floor as 
our Senate majority leader.
  I really rise today on behalf of the countless New Yorkers, and 
really millions of Americans across our country, who have been waiting 
for this day for a very long time. I heard some remarks by the Senator 
from Texas about the efforts that were made, I guess, 6, 7 years ago 
now, to try to provide health care coverage to every single American. I 
was deeply involved in those efforts, and although we were not 
successful, the goal was one that I think we should still keep at the 
forefront of our minds and hearts because when we began our work in 
1993, there were approximately 33 million Americans without insurance; 
today we are up to 42 million. This is after the so-called managed 
care/HMO revolution occurred, where people have been finding it harder 
to afford coverage, afford the deductibles, afford the copayments, with 
the result that we have more people uninsured today than when many of 
us tried to address this problem some years ago.
  There are many urgent health care issues before us as a nation such 
as sky high prescription drugs for our seniors, too many without 
adequate coverage, and once they have Medicare they can't afford the 
additional coverage that is required in order to give them the kind of 
health care they should have. There are gaps in our health safety net, 
a shortage of nurses in our hospitals and nursing homes, and the very 
difficult conditions under which so many of our nurses now labor. And, 
of course, there is the growing crisis of the uninsured. So we have our 
work cut out for us in order to deliver on the promise of quality, 
affordable, accessible health care for all Americans.
  That is why I am urging we proceed without further delay or 
obfuscation and pass a Patients' Bill of Rights--the bipartisan 
Patients' Bill of Rights that Senators McCain, Edwards, and Kennedy 
have worked so hard to present, which has bipartisan support in the 
House.
  We have to finish this job. We have been laboring over it since 1996, 
in earnest with the efforts within both Houses of Congress since 1997. 
We have now been waiting and waiting for the Congress to act. Now is 
the time.
  I believe we should act not because it has been on the agenda for a 
long time, although it has, and not because it is one of those issues 
to which finally the stars seemed aligned and with the Democratic 
majority now in charge of the Senate we can actually get it to the 
floor but because of the patients and their families who are out there

[[Page 10986]]

waiting and literally praying for us to act.
  Each of the patients I have met and heard from, and each of the 
families whom all of us have heard from, tell a story that describes an 
urgent situation needing timely and responsive care. That is why this 
bill is so important.
  It is about getting the care you need when you need it. It is about 
getting care in a timely manner from doctors you trust and choose. It 
is about having doctors and nurses in charge of your health care, not 
accountants and bookkeepers.
  My colleague, Tom Harkin from Iowa, had a memorable phrase today at 
the press conference. He said, ``The American people don't want their 
doctors doing their taxes and they don't want their accountants 
providing their health care.''
  Each of us should be able to look to our doctors, our nurses, our 
health care professionals for the care that we trust and need. This is 
about access to an emergency room when we need it.
  I recall being in Ithaca, NY, about 2 years ago and meeting a young 
woman who came to see me with a stack of medical records, literally a 
foot high, just desperate. She had been in a very dangerous, nearly 
fatal accident on one of those winding roads that go through that 
beautiful part of New York. Some of you may have traveled through 
Ithaca or may have gone to Cornell. You know what beautiful country it 
is, but it has also a lot of winding roads. She was in a devastating 
accident, lying unconscious on the side of the road. Luckily, someone 
came upon her and called for aid and they were able to medivac her out 
with a helicopter, save her life, and she was in hospital care and 
rehab for nearly a year. She gets out and what does she find? She gets 
a bill from her HMO for the helicopter medivac emergency service 
because--get this--she didn't call for permission first. She is 
unconscious on the side of the road and they want to charge her $10,000 
because she didn't call for permission.
  So this is about getting the emergency care you need when you need 
it. It is about seeing a specialist when you need it, when your doctor 
says: I have gone as far as I can go; you need to go see a specialist. 
It is about women being able to designate their OB/GYN as their 
specialist, and about mothers and fathers being able to designate their 
pediatrician as their child's general practitioner as well. It is about 
all of these and more--the kinds of issues that are not just written 
somewhere in a headline but are lived with day in and day out, which 
are talked about around the kitchen table, around the water cooler--the 
life-and-death issues that really make a vital difference to families 
all over New York and America--families such as that of Susan Nealy, 
from the Bronx, whose husband had a serious heart condition but whose 
referral to a cardiologist was delayed a month. The day before the 
appointment was finally scheduled, Mr. Nealy died of a massive heart 
attack, leaving behind his widow and two young children, ages 5 and 3.
  It is like the family of the 15-year-old boy from New York who 
developed complications from heart disease, but his health plan refused 
to allow him to see an out-of-network specialist familiar with the case 
and instead sent the teenager to a network provider who did not see him 
for 4 months, and then the boy's lungs were filling with blood, and 2 
days later he collapsed in the street and died.
  These are just two of the stories I could pick from my innumerable 
conversations and letters that I have received. There are so many more 
we could tell.
  For every one of these stories, there are untold stories of families 
whose struggles for the care they needed were denied or delayed. 
According to patient reports, health plans delay needed care for 35,000 
patients every day. In fact, delayed care and payment is a business 
practice that health plans have perfected.
  I have heard from many doctors who tell me that each day a health 
plan withholds payments represents literally thousands of dollars in 
interest that a health plan could earn. The practice of delay is so 
widespread that there is a term for it. It is called ``living off the 
float.'' Unfortunately, not everyone who is subject to it actually ends 
up living.
  Look, I don't blame the accountants and the bookkeepers. They are 
trying to maximize their shareholders' return, their profits. That is 
the business they are in. But this cannot go on. There have to be rules 
that say you must, regardless of your being in business and regardless 
of having to make quarterly returns, put patients, doctors, and nurses 
first.
  The physicians and nurses I speak with are so frustrated about this. 
They are caught between the sharp conflict, between business practices 
that I personally think are unscrupulous, but nevertheless they are 
engaged in, and the principles of the oaths that they take to do no 
harm, to get the health care to the patient when the patient needs it 
when it can do some good. Life-or-death situations rarely wait for 
prior authorization.
  Last summer, I met Dr. Thomas Lee, a neurosurgeon at the Northern 
Westchester Hospital Center, just up the road from where we live in 
Chappaqua. Dr. Lee was called to the emergency room one day about a 
year ago because a patient--not his patient; it was someone he had 
never seen before--a young woman in her early thirties collapsed at 
work. She was brought to the emergency room.
  Dr. Lee did his neurosurgical analysis, did the tests that were 
necessary, and discovered this young woman had a very serious tumor 
that was pressing on vital parts of her brain and needed to be operated 
on.
  They found her husband, thankfully, and they called the HMO that 
insured the family and asked for permission to perform the surgery 
right then. Dr. Lee said it was, if not a matter of life and death, a 
matter of paralysis and normal life, and they were denied. They were 
told that because Dr. Lee was not one of their network physicians, 
because the Northern Westchester Hospital Center was not the hospital 
center they preferred to use, he could not do the surgery.
  For 3 hours, Dr. Lee, his nurse, and the hospital staff were engaged 
in an argument with the HMO instead of performing the lifesaving 
surgery. It breaks one's heart to think about this neurosurgeon who 
could be saving lives getting on the phone trying to get permission to 
do what he is trained to do.
  Finally, he was so fed up, he said: Look, this young woman's life is 
at stake. I will perform the surgery free of charge so long as you will 
cover the hospitalization. With that deal struck, the HMO let him 
proceed.
  I am very proud Dr. Lee is practicing medicine in my neck of the 
woods, but I do not expect doctors and neurosurgeons to perform 
lifesaving heroic surgery for free. That is not the way the system is 
supposed to work. These are people who go to school for decades to do 
this work, and they deserve the respect and compensation we should be 
putting into our health care system, not to satisfy HMOs but to pay for 
the services of trained physicians and health care professionals.
  For the past 5 years patient advocates have worked on this bill, and 
we have seen every delaying tactic one can imagine. I had a front seat 
to this when I was down at the other end of Pennsylvania Avenue. We 
were working very hard to get this bill through the Congress. Every 
excuse one can come up with was thrown in the way. It became so 
frustrating to all of us who knew that lives were at stake, care was 
being denied and delayed; that passage of needed protections was being 
derailed.
  We come to this day. Luckily for us, we are here not only because it 
is the right thing to do but because States and courts have realized 
they just cannot wait any longer. They have seen firsthand what is 
going on in our country.
  New York passed a State managed care protection bill in 1996; they 
even passed a law in 1998 to strengthen the protections--all before the 
Congress chose to act. Many more States have passed such protections, 
including Texas, specifically aimed to permit injured patients to hold 
their health plans accountable for their injuries.

[[Page 10987]]

  President Clinton signed an Executive order giving 85 million 
Americans with federally sponsored health care, such as Medicare and 
Medicaid, protections similar to what we are trying to give to all 
Americans through a 1998 act.
  Even Federal courts, notably in the case of Andrews-Clarke v. 
Travelers Insurance, have urged the Congress to act. In that case, 
Judge William Young states:

       Although the alleged conduct of Travelers and Greenspring 
     in this case is extraordinarily troubling, even more 
     disturbing to the Court is the failure of Congress to amend a 
     statute . . . that has come conspicuously awry from its 
     original intent.

  Yet because of our failure to enact such a statute, at least 43 
percent of all Americans with employer-sponsored private coverage are 
still left out in the cold. These Americans cannot afford to wait any 
longer. Forty percent of Americans know that passing a law today is 
even more urgent than it was 2 years ago, and a majority of them 
thought it was urgent then.
  Let's work in a bipartisan way. This bill is bipartisan. Senator 
McCain, Senator Edwards, and Senator Kennedy have all worked to get to 
this point. They have all made compromises. Their bill is the only bill 
before the Senate that applies to all 190 million Americans with 
private health coverage. It is the only bill before the Senate that has 
all the protections of Medicare and Medicaid. It is the only bill that 
has the support of over 500 consumer and provider advocates.
  Anybody who knows anything about some of these provider groups, such 
as the American Medical Association, knows that Congress is not their 
preferred venue. They are not keen on having the Congress tell them to 
do or not do anything, but doctors are so frustrated that even the 
American Medical Association has come time and again asking that this 
bill be passed.
  It is the only bill that guarantees coverage for the routine costs of 
FDA-approved clinical trials which are so important to patients with 
cancer and so important particularly to children with cancer.
  This is the only bill that guarantees an internal and external review 
as soon as it is medically necessary.
  In sum, this is the only bill before the Senate that protects 
patients, not HMOs.
  Just as delaying tactics by managed care organizations have injured 
and even killed millions of Americans over time, delaying tactics by 
the opponents of this bill have taken their toll.
  I want my colleagues to look at this patient survey that is behind 
me. Each day, 35,000 patients have a specialty referral delayed or 
denied; 18,000 every day are forced to change medications as a result 
of their health plan's determinations--not their doctors but their 
health plans.
  When I say ``health plans,'' I mean somebody sitting in an office, 
usually hundreds of miles from where the patient or doctor is, second-
guessing the doctor, saying; I am sorry, your doctor may have 30, 40 
years of practice and experience, but I am going to sit in this office 
without ever having seen you and decide that I can second-guess what 
kind of prescription medication you should have.
  Forty-one thousand patients a day experience a worsening of their 
condition because of actions by their HMOs.
  One can go through this list and see what patients are saying. Then 
one can look at another list that comes from surveys of doctors, those 
who are on the front lines. They are saying they believe their patients 
are confronting serious declines in their health from plan abuse. This 
is the kind of information that concerns me because when I go to the 
doctor, I expect my doctor to take care of me. He or she has sworn an 
oath, they have been well trained, and I have checked them out. I feel 
like I am putting myself in someone's hands whom I can trust, and 
doctors are saying they are not being permitted to practice medicine. 
They are being told they have to subject their decisions to people they 
have never met nor seen.
  It is because of the desire of HMOs to slow down payment, to deny 
payment, to keep that float I talked about going, basically to use the 
money they should be paying to doctors and hospitals for taking care of 
us for their own purposes, for their own profits, for their bottom 
lines.
  In my office I keep a picture of a young, beautiful woman named Donna 
Munnings. This is Donna. This is a young woman who reminds me every 
single day when I look up at her picture in my office of what can 
happen when the system does not respond until it is too late. Donna's 
mother Mary is a school bus driver from Scottsville, NY. She has been 
lobbying and advocating for this bill for years. Her daughter Donna 
died February 8, 1997, after having visited her primary care physician 
repeatedly, only to be told that she had an upper respiratory infection 
and suffered from panic attacks and that no diagnostic tests were 
necessary. Had the doctors performed a $750 lung scan in time, they 
would have seen not an upper respiratory infection but a football-sized 
blood clot in her lung.
  Her mother Mary said:

       In my subsequent research I found that HMOs can and do 
     penalize doctors for ordering tests which HMOs feel are 
     unnecessary. But all for the sake of money [all for the sake 
     of a $750 test] we lost a vital, beautiful young lady who had 
     only begun her life.

  We are going to hear a lot of debate. In fact, we are debating 
whether we can even proceed with this bill: Yet more delaying tactics, 
yet more efforts to obstruct the kind of care that every one of us 
needs. I can guarantee the people out in that lobby and the people in 
the offices they represent, they would not stand for not getting the 
care their child needs. If they had a daughter who was suffering day 
after day after day, and the doctors could not tell her what was wrong 
and they kept sending her home, I can guarantee that those executives 
and those lobbyists would get some other source of care for their 
daughter.
  But Mary is a school bus driver. She didn't know where else to turn. 
Having insurance was a pretty big deal. They didn't know what else to 
do, other than just keep going back, as Donna's condition got worse and 
worse and worse.
  Patients buy health insurance in order to feel assured that when they 
seek care under the benefits for which they have paid, that care will 
be available and it will be available in time to be effective. Yet we 
know that that does not happen. In one State, the State of New York, 
according to Department of Insurance statistics, of the nearly 18,000 
HMO decisions challenged on appeal, over 10,000 were reversed. This 
means that when patients can test their HMO's decision to deny needed 
care, over half the time the patients are right.
  Yet, through a loophole in Federal law, there are too many consumers 
in New York--over 2.25 million--who still are not protected against 
these incorrect and dangerous decisions. They have no recourse. There 
is nothing they can do because we have not given them a Patients' Bill 
of Rights. They need a Federal law to give them the parity and 
protection their neighbors and coworkers have.
  Mr. DURBIN. Will the Senator yield for a question?
  Mrs. CLINTON. I am happy to yield.
  Mr. DURBIN. I believe the Senator from New York was at a briefing 
this morning where we discussed the experience in the State of Texas. 
In 1997, a certain Governor of Texas, who has now moved to Washington, 
had a Patients' Bill of Rights established in Texas. Maybe the Senator 
from New York can help me with these numbers, but I believe in the 4-
year period of time that the State Patients' Bill of Rights has been in 
effect in Texas, there have been 1,300 appeals of decisions by 
insurance companies and only 17 lawsuits filed in 4 years.
  So the argument that giving the people the right to go to court will 
mean a flood of cases brought in court has been disproven in the home 
State of the President. Does the Senator from New York recall that?
  Mrs. CLINTON. Indeed, the Senator from New York does recall that. I 
appreciate the Senator from Illinois raising that because that, of 
course, is one of the objections the opponents are trying to throw up, 
that this bill will open the floodgates for lawsuits. In Texas

[[Page 10988]]

that has not happened. It has not happened anywhere in the country 
where these protections have been afforded under State law.
  People are not rushing to the courthouse. They want the care that 
they need. They don't want a lawyer; they want a doctor; and they want 
the doctor to take care of them according to the doctor's best 
judgment. That is what doctors are telling us. They are not being 
permitted to do that.
  I appreciate my friend from Illinois raising that point because, as 
this debate proceeds, you are going to hear a lot of arguments about 
why we just cannot do this. You know, we just cannot take care of Donna 
and her mother Mary and all the other Donnas and Marys in our country. 
There will be all sorts of red herrings and all kinds of arguments made 
that just do not hold water. There is no basis in fact for them, but 
they sound good. Maybe they will scare some people. But we are tired of 
being scared and intimidated. This is no longer just a political issue, 
this goes to the very heart of who we are as Americans.
  Are we going to take care of each other? Are we going to let doctors 
and nurses practice their professions? Or are we going to turn our 
lives over to HMO accountants and bookkeepers and the like?
  I am hoping we will not only proceed to this bill, which deserves a 
full hearing, deserves a full debate, and deserves a unanimous vote in 
this Chamber. I hope when we pass this, we will be sending a very clear 
message to all the mothers and fathers and family members that this 
will never happen again. This beautiful young woman whose life was cut 
short tragically would still be with us today if that HMO had just 
said: maybe we should let you go ahead and have that test.
  I look forward to working with my colleagues. This has been 5 years 
in the making. Let's end the politics of delay and move forward with 
the motion to proceed.
  The PRESIDING OFFICER. The Senator from Nevada.
  (Disturbance in the visitors' gallery.)
  The PRESIDING OFFICER. The galleries will cease making a display. Any 
expressions of approval or disapproval are not permitted in the Senate 
gallery. The Sergeant at Arms will enforce it.
  Mr. REID. Mr. President, I propounded a unanimous consent request 
some time ago that the Senator from New York was to be recognized until 
4:15, the Senator from New Jersey from 4:15 to 4:30. There is no one 
here on the other side. The Senator will proceed until Republicans show 
up.
  The PRESIDING OFFICER. The Senator from New Jersey is recognized.
  Mr. TORRICELLI. Mr. President, this debate is symbolic in many ways. 
It holds the prospect of ending a five-year effort to pass meaningful 
HMO reform.
  A Patients' Bill of Rights that recognizes, that while the move to 
HMO based health care may have started with the best of intentions, the 
results have been less than spectacular.
  Beyond the prospect of finally enacting HMO reform, this debate marks 
the beginning of the tenure of Tom Daschle as majority leader. It is a 
testament to the priority that he and our caucus have given to this 
issue, that it is the first legislation we have brought to the floor. 
For too long this debate has been one-sided and bottled-up by 
partisanship.
  I was hopeful that Majority Leader Daschle's earlier commitment to a 
full and fair debate on amendments would begin this debate on a 
positive note. However, I am disappointed that my colleagues on the 
other side have objected to the motion to proceed and that it 
potentially will be days before we can begin the debate on amendments.
  The Senate HELP Committee has done a study and found that each day of 
delay on this issue has very real consequences. Every day 41,000 
patients experience a worsening of their condition, 35,000 patients 
have needed care delayed, 10,000 patients are denied a diagnostic test 
or treatment, and 7,000 patients are denied a referral to specialist.
  As important as the education debate over the past month has been, no 
issue will touch more families than what we do on HMO reform.
  Today, more than 90 percent of working Americans receive insurance 
from their employer. Most do not have a choice about the type of 
coverage. This means that many working families are stuck with an HMO 
despite any concerns they may have with the quality of care they 
receive. There are over 160 million Americans with HMO insurance.
  Mr. President, 33 percent of the residents of my state--2.3 million--
are in an HMO. A vast majority of these Americans are in favor of and 
are demanding fundamental change in the way HMOs provide care.
  A poll by the Kaiser Family Foundation conducted just 60 days ago 
found that 85 percent of Americans want comprehensive HMO reform. These 
Americans believe, as I do, that doctors, not HMO accountants should be 
in control of medical decisions.
  The reality is that HMOs are a product of the runaway health care 
inflation of the 1970's and 1980's that drove the ranks of the 
uninsured.
  It was hoped that by providing a pre-determined list of doctors and 
medical coverage, the costs of medical care could be contained and 
coverage provided to more people. But after three decades of cutting 
costs and services to keep costs low, it is clear that HMOs have failed 
to strike the necessary balance.
  Today, we are faced with a situation where medical decisionmaking is 
disproportionately in the hands of insurance company bureaucrats. That 
is why, from patients to doctors, there is unanimity in making some 
common sense reforms.
  While Washington has been paralyzed by partisan gridlock, state 
legislatures have been debating and acting on this issue for years.
  For example, my state of New Jersey became a national health care 
reform leader with the passage of the Health Care Quality Act in 1997.
  The law now prohibits gag clauses, provides an independent health 
care appeals program and requires that insurers provide clear 
information on covered services and limitations. These reforms, long 
sought by Democrats and consumers, were passed by a Republican 
legislature and signed by a Republican governor.
  But no matter how many individual states act, the reality is that an 
overwhelming number of Americans won't be protected because their state 
laws are exempt under ERISA.
  Mr. President, 83 percent--124 million--of Americans who get their 
health care from their employer are not covered by state laws, and 50 
percent of people enrolled in an HMO in New Jersey are exempt from 
State protections.
  Originally designed to protect employees from losing pension benefits 
due to fraud, the Employee Retirement Security Act of 1974 has provided 
HMOs with immunity from state regulations for their negligent behavior. 
So despite the progress in states like New Jersey, complaints about the 
quality of care by HMOs continue to rise.
  A survey by Rutgers University and the state Department of Health 
found overall that one in four New Jerseyans enrolled in an HMO was 
dissatisfied with their health plan. Last October a state report card 
found that patients in NJ were less satisfied with their HMO care than 
the previous year.
  The bipartisan legislation being brought to the floor this week, is 
supported by more than 500 doctor and patient rights groups, and will 
finally extend patient protections to all Americans in an HMO.
  This promises to be a long debate and while I look forward to dealing 
with many of the important details, I want to outline the fundamental 
principles we must address.
  Under current practices, many HMOs force a patient with a chronic 
condition like heart disease to be treated by only the family doctor. 
The Kennedy-Edwards bill will guarantee access to a cardiologist or 
other needed specialist, even one outside his or her network.
  Currently, if your sick or suffer an injury while traveling or on 
vacation

[[Page 10989]]

you must get prior approval from your HMO before going to the emergency 
room. Our plan will ensure that a patient could go to the nearest 
emergency room without having to first get permission from the HMO.
  Under current HMO policies, many women must obtain a referral from 
their primary care doctor before seeing an OB/GYN. This bill will 
guarantee access to an OB/GYN without a referral.
  HMOs often force a child with a chronic, life threatening condition 
to seek approval from a primary care doctor before seeing a specialist. 
The Kennedy-Edwards plan would ensure a child with cancer, for example, 
would have the right to see a pediatric oncologist whenever the care is 
needed.
  Today, many HMOs restrict physicians from discussing all treatment 
options with their patients and cut reimbursement rates for doctors who 
advocate with the HMO on behalf of their patients. This bill will 
prohibit HMOs from financially penalizing doctors who provide the best 
quality care for their patients.
  HMOs typically have the last word when they decide to deny a needed 
test, procedure or treatment. We will guarantee medical decisions by 
HMO bureaucrats will be subject to a swift internal review and a fair 
external review process.
  And when reckless medical decisions made by HMOs injure or kill, they 
are shielded from any responsibility. Now we will finally ensure that 
all Americans will have the right to hold HMOs accountable in court.
  These protections will provide a new sense of health care security 
but undoubtedly over the next weeks we will hear arguments that the 
price for these protections will be higher cost and increases in the 
uninsured. But the CBO report on this legislation states that it would 
increase premiums by only 4.2 percent over 10 years, this will mean a 
little over $1 per month for the average employee.
  There will be arguments that this is unnecessary because HMO's have 
responded to criticisms and already provide these protections. If this 
were truly the case, then costs should not rise at all.
  They will also argue that with every one percent increase in 
premiums, approximately 300,000 Americans lose their health insurance 
coverage. But in 2000, when overall health insurance premiums increased 
10 percent, the number of uninsured actually dropped.
  Mr. President, we will debate many issues in this Congress but none 
with more impact on more people than this.
  I want to thank our new majority leader, Senator Daschle, for 
bringing this to the floor so quickly and I look forward to its debate.
  The PRESIDING OFFICER. Under the previous order, the time controlled 
by the majority has expired.
  Mr. TORRICELLI. Thank you, Mr. President.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. FRIST. Mr. President, I rise to address the issue of a Patients' 
Bill of Rights. As a physician, and as one who has participated very 
directly in this debate over the past several years, I am one who 
welcomes the opportunity to have discussion on this important issue 
over the coming hours and days and over, I assume, the next couple of 
weeks.
  We do have a unique opportunity, I believe, to pass a strong bill of 
rights for patients, an enforceable bill of rights for patients, under 
the leadership of President George Bush as he outlined in his 
principles last February.
  As the American people listen to us discuss this legislation this 
afternoon, tonight, and over the coming days, I hope they will 
understand broadly that we, as a body, whether it is Democrat or 
Republican, will come together in this session and pass a bill that I 
am very hopeful will be signed by the President of the United States. I 
am confident that he will sign it if it is consistent with the 
principles that he outlined.
  The bill that is going to be brought to the floor, the McCain-
Edwards-Kennedy bill, is a starting place. We can't end there because, 
yes, it has the patients' protections and appeals process, external and 
internal, but at the same time it opens floodgates to a new, massive, 
repetitive wave of frivolous lawsuits which very quickly translate down 
into increased costs and increased charges.
  Much of that money that is taken out of the health care system goes 
into the pockets of trial lawyers. Increased costs translate very 
directly down to loss of insurance, as we talked about the uninsured 
that are increasing 900,000 to 1 million every year.
  We absolutely must, as we address gag clauses, access to specialists, 
admission to emergency rooms, and clinical trials, and as we look at 
patient protection, bring some sort of balance to the system to make 
sure that if there is harm or injury--after exhaustion of internal and 
external appeals processes--that compensation to that patient is full, 
if there has been injury or if there has been damage. But we can't 
allow exorbitant, out-of-control lawsuits because they drain money out 
of the system itself. It drives premiums up and punishes the working 
poor. They are the ones right now who are having a hard time struggling 
to even buy that insurance, even when it is in part covered by their 
employer. That is why when we drive these premiums up--whether it is 1, 
2, 3 or 4 percent for every 1 percent--the increased cost drives those 
premiums up, and about 300,000 people lose their health insurance.
  When we get into the business of mandating patient protection, those 
rights cost money. Somebody has to pay that money in some way. It is 
the people. It is distributed throughout the premiums. When those 
premiums go up, some people can't afford to buy them anymore, and they 
forego that insurance.
  That is the sort of balance that we need to at least be aware of as 
we are on this floor debating.
  I look forward very much to participating in that debate as we go 
forward on having this strong, enforcement patient bill of rights, 
which has strong access to emergency room, access to clinical trials, 
access to specialists, and elimination of gag rules. If there is any 
sort of concern about whether or not benefit is given when there is 
harm or injury--with strong internal and external appeals with an 
independent physician making that final decision, and then, yes, at the 
end of the day, if there has been harm or injury--the external review 
system of the physician says the plan made a mistake, sue the HMO, but 
do not sue the employer. Sue the HMO and not the employer.
  I see my colleague from Wyoming is with us today. I am going to yield 
my time and look forward to participating either later tonight or 
tomorrow in this debate.
  Just as an aside, I enjoyed very much working with the Senator from 
Wyoming over the last several years as we have addressed this issue. 
Everybody has been so entrenched. At the same time, we have been 
studying this issue and working hard. He is one of our colleagues who 
has invested a tremendous amount of time putting together a Patients' 
Bill of Rights that really meets the balance of getting health care to 
people when they need it rather than focusing on these frivolous 
lawsuits which might potentially hurt the patient.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. ENZI. Thank you, Mr. President. I thank the Senator from 
Tennessee for his comments. I thank him for the tremendous job he has 
done. He is the only doctor in the Senate. He has done a tremendous job 
of educating us in all of the areas of a Patients' Bill of Rights and 
medical care and has saved quite a few people along the way. We really 
appreciate that. I particularly thank him for the education he has 
given me.
  Mr. President. I rise today to join all of my colleagues in calling 
for a Patients' Bill of Rights. The President has clearly stated his 
desire to sign a bill into law, but has also been very clear on what he 
won't sign. I support his goal of protecting Americans that have been 
mistreated by their HMO, and I also support his goal of only enacting a 
bill that will preserve access

[[Page 10990]]

to insurance for those that already have it, and increase access for 
those Americans that are uninsured. The legislative and political 
history on this matter stretches back a ways. In fact, in three of the 
four-and-a-half years I have been in the Senate, we have passed a 
Patients' Bill of Rights. I hope to keep that streak going this year, 
only I hope what we pass finally gets signed into law to the benefit, 
not the detriment, of consumers.
  While there is a lot of consensus between all parties on the need for 
a number of patient protections, a strong internal and external appeals 
process, a right to hold health plans accountable in certain instances, 
and an assurance that all Americans be afforded such protections, there 
remains some disagreement on key issues.
  First, the appeals process should be meaningful and required because 
it gets people the right care, right away.
  Second, limitless lawsuits help lawyers, not patients.
  Third, turning state regulation of health care on its head is a 
losing prospect for consumers whose needs have historically been better 
served by their own state insurance commissioner. While I would like to 
spend my time today making a general statement about the need for a 
Patients' Bill of Rights, I plan to revisit in detail the issues I just 
mentioned as the debate moves ahead.
  During both the Floor debate and earlier in the Health, Education, 
Labor, and Pensions Committee consideration of the Patients' Bill of 
Rights, I asserted strong positions on several key components of the 
managed care reform debate. I wish, once again, to reiterate my support 
for adoption of a bill that protects consumers, improves the system of 
health care delivery and shrinks the rolls of the uninsured. I will do 
everything I can to prevent increasing the number of uninsured.
  I believe that as we consider a bill as important as the Patients' 
Bill of Rights, we must never lose sight of our shared goal of having a 
strong bill. The politics should be left at the door in our effort to 
emerge with the best policy for patients. That was the commitment the 
principals in the conference made to the public more than a year ago.
  I really cannot go further without commenting on that conference. I 
have been told by my more senior colleagues that Members have never 
logged as many hours in trying to thoroughly understand and work a bill 
as we did last year. The effort was not in vain. We learned a 
tremendous amount about the value of enacting a good Patients' Bill of 
Rights. We also learned that preserving access to quality health care 
is the most important patient protection we can provide to consumers.
  Together, Senators Gregg, Frist, Gramm, Jeffords, and Hutchinson, 
Chairman Nickles, and I demonstrated every day our commitment to doing 
the right thing for patients. I offer a special thanks to Senator 
Nickles for being a patient gentleman as he led us through this 
negotiation process.
  I do think, as that process went on, some saw the possibility that we 
would complete it. Most of us thought it would be completed. Some 
thought it was better as an issue than a solution and jumped out of the 
processes and started bringing votes back here in this Chamber. We 
could have had this done last year.
  All of the bills we have ever considered, including the bill before 
us today, have offered a series of patient protections to consumers--
direct access to OB/GYN and pediatric providers, a ban on gag clauses, 
a prudent layperson standard for emergency services, a point-of-service 
option, continuity of care, and access to specialists--that would 
provide all consumers many of the same protections already being 
offered to State-regulated health plan participants.
  This is a bill for managed care. There are already State protections 
for State-regulated health plan participants.
  Additionally, health plans would be required to disclose extensive 
comparative information about coverage of services and treatment 
options, networks of participating physicians and other providers, and 
any cost-sharing responsibilities of the consumer.
  All of these new protections are crowned by the establishment of a 
new, binding, independent external appeals process, the linchpin of any 
successful consumer protection effort.
  While I still do not believe that suing health plans is the biggest 
concern of consumers, holding health plans accountable for making 
medical decisions is a key component of a Patients' Bill of Rights.
  For the record, I believe the biggest concern of patients is getting 
the best health care they can get, right when they need it most, not 
the ability to sue. Most people I know value their health over all 
else. Money does not buy happiness, but good health can make a nice 
downpayment.
  Our success will absolutely be measured by whether we get patients 
the medical treatment they need right away. Everyone agrees that the 
essential mechanism is an independent, external appeals process. The 
last thing we should do is establish a system that would require 
patients to earn their care through a lawsuit. It is for this very 
reason that the bill I will support securely places the responsibility 
for medical decisions in the hands of independent medical reviewers 
whose standard of review is based on the best available medical 
evidence and consensus conclusions reached by medical experts. These 
decisions would be binding on health plans.
  One of the specific concerns that will be directly addressed by the 
independent review process is that of the ``medical necessity or 
appropriateness'' of the care requested by the patient and their 
physician. Consumers and health care providers have repeatedly 
requested that there be a prohibition on health plans manipulating the 
definition of ``medical necessity'' to deny patient care. I think all 
of the bills have attempted to address this concern. I do have 
concerns, however, about how the bill before us goes beyond addressing 
this concern and obviates the health care contract altogether, 
eliminates the contract altogether. Imagine trying to price the 
contract if you do not know what the contract contains. That provision 
will have to be fixed in the final bill.
  The issue of ensuring that patients receive medically necessary and 
appropriate care they have been promised in their contract has been 
addressed by a number of States already through the appeals processes 
they have established. Many employers and health plans already 
voluntarily refer disputed claims to an independent medical review. But 
when it comes to formal Federal action pertaining to the employer plans 
regulated solely by the Department of Labor, we are just now examining 
how to proceed. In other words, it works at the State level; it has not 
worked at the Federal level. Now we are considering a Federal solution.
  Since its inception in 1974, this is the first major reform effort of 
ERISA, the Employee Retirement Income Security Act, as it pertains to 
the regulation of group health plans. The focus of the mission--
regardless of politics--should be to protect patients. Protecting 
patients means not only improving the quality of care but expanding 
access to care and allowing consumers and purchasers the flexibility to 
acquire the care that best fits their needs.
  This leads me to another concern I have with the bill before us. It 
requires States to forsake laws they have already passed dealing with 
patient protections included in the bill if they are not the same as 
the new Federal standards. The technical language in the bill reads 
``substantially equivalent,'' ``does not prevent the application of,'' 
and under the process of certifying these facts with the Secretary of 
Health and Human Services, the State will have to prove that their laws 
are ``substantially equivalent and effective patient protections.''
  The proponents of this language say it will not undo any existing 
State laws that are essentially comparable. But that is not what their 
bill requires. Instead, when I see the requirement of ``substantially 
equivalent,'' I read that if there is any difference, then they are 
obviously not equivalent and do not meet the test. What does 
``substantial''

[[Page 10991]]

mean? And how does it modify ``equivalent'' at the end of the day? 
These questions are not being answered.
  Is it that the proponents aren't overly concerned with the 
implementation of the law versus being able to say that their bill 
meets the political test of covering all Americans, regardless of 
existing meaningful protections that State legislatures have enacted? 
If the laws just have to be comparable, then why don't we use that 
phrase?
  I am very leery of one-size-fits-all legislation. Every State has 
differences, geographical differences, differences in the mix of 
people, differences in distance, differences in climate, and, more 
particularly, differences that affect medical care.
  In Wyoming we have few doctors, we have few people, and we have lots 
of miles. We do not have competing hospitals anywhere in the State. And 
we have a need for doctors--I love this--we have a need for doctors, 
including veterinarians, in every single county.
  I will get into this issue in more detail as the debate proceeds. I 
do believe we can strike a compromise on the matter of scope, but I 
cannot state strongly enough my objection to wrenching from States 
their authority to regulate on these matters.
  The only hard proof we have right now is that States are, by and 
large, good regulators, while the Federal Government has done a lousy 
job regulating on behalf of its health care consumers. The General 
Accounting Office has been reporting that to us since we passed the 
Health Insurance Portability and Accountability Act, HIPAA, in 1996. 
And that is the consumer enforcement protection mechanism around which 
the bill is written.
  I know I am on the verge of sounding like a broken record, but I 
would like to sketch out the effect of the bill's scope, as it is 
currently drafted. It is done best with a story about Wyoming. Wyoming, 
as I mentioned, has its own unique set of health care needs and 
concerns. Every State does. For example, despite our elevation, we do 
not need the mandate regarding skin cancer that Florida has on the 
books.
  My favorite illustration of just how crazy a nationalized system of 
health care mandates would be comes from my own time in the Wyoming 
Legislature. It is about a mandate for which I voted and still support 
today. You see, unlike in Massachusetts or California, in Wyoming we 
have few health care providers, and their numbers virtually dry up as 
you head out of town. We can see every single town by driving outside 
of it. They do not run together anywhere.
  So we passed an ``any willing provider'' law that requires health 
plans to contract with any provider in Wyoming that is willing to do 
so. While that idea may sound strange to my ears in any other context, 
it was the right thing to do for Wyoming. I know it is not the right 
thing to do for Massachusetts or California. I wouldn't dream of asking 
them to shoulder that kind of a mandate for our sake, when we can 
simply responsibly apply it within our borders.
  What is even more alarming to me is that Wyoming has opted not to 
enact health care laws that specifically relate to HMOs because there 
are no HMOs in the State, with one exception, which is very small and 
is operated by a group of doctors who live in town. They are not a 
nameless, faceless insurance company. Yet under the proposal the 
Democrats insist is best for everybody, the State of Wyoming would have 
to enact and actively enforce at least 15 new laws to regulate a style 
of health insurance that doesn't exist in the State.
  What Wyoming does currently require is that plans provide information 
to patients about coverage, copays, and so on, much as we would in this 
bill; a ban on gag clauses between doctors and patients; and an 
internal appeals process to dispute denied claims. I am hopeful the 
State will soon enact an external appeals process, too.
  This is a list of patient protections that a person in any kind of 
health plan needs, which is why the State has acted. But requiring 
Wyoming to enact a series of additional laws that don't have any 
bearing on consumers in our State is an unbelievable waste of a citizen 
legislature's time and resources.
  Let me explain a citizen legislature. In Wyoming, they meet for 20 
days one year and 40 days the next year. They do no special sessions. 
If you are only employed as a legislator--and I use that term loosely 
on being employed because they hardly get paid anything--for 20 days 
one year and 40 days the next year, you have to have a bona fide job. 
You have to have real work in the real world. And they do. So they meet 
for 20 days one year--and incidentally, the 20 days is the year that 
they do the budget work, and they make it balance every time--20 days 
one year and 40 days the next. You have to live the rest of the year 
under the laws that you passed, which gives you a different perspective 
on laws than perhaps in States where the legislature meets for longer 
periods of time and definitely a different perspective than we have in 
this body. That is a citizen legislature.
  Speaking of limited resources, I would be remiss if I didn't touch 
once more on our most important charge in the debate; that is, to 
preserve Americans' access to health insurance. If we make it too 
difficult for employers to voluntarily provide health care to their 
employees, then it should come as no surprise to any of us that they 
will simply stop volunteering to do so. Insurance for most businesses 
is a volunteer effort. I won't support a bill that denies people access 
to health care. If my colleagues don't believe me now, they can bet 
their constituents will come calling when they lose their insurance or 
have it priced forever beyond their reach.
  Sometimes changes we make in the Senate drive up the cost, as the 
Senator from Tennessee was explaining earlier. For every 1 percent that 
costs go up, 300,000 people in this country lose their insurance.
  I will make a promise to my own constituents right now that I will 
work hard to enact a Patients' Bill of Rights. I will fight any measure 
that threatens their access to health care. I will reserve further 
remarks until we delve into the process of considering the different 
provisions of the bill.
  I, again, extend the hand of compromise and the offer to all of my 
colleagues that we rally around our common position on many of the 
patient protections and forge ahead on the rest of the bill towards an 
end that has an eye on what is best for the patients. This bill is 
about them. If someone else is benefiting from a provision, then I 
would suggest that our drafting is not quite done. There are some of 
those provisions.
  I look forward to my continued role in the process. I thank the Chair 
and reserve the remainder of any time we have.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, I see no others on the side of the minority 
so I will proceed.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, Las Vegas has two daily newspapers. One is 
the Las Vegas Daily Journal; The other is the Las Vegas Sun. I was very 
impressed with the editorial in the Las Vegas Sun newspaper yesterday. 
The newspaper is a relatively new newspaper by American standards. It 
is 40, 50 years old. It was started by an entrepreneur by the name of 
Hank Greenspun who was a real pioneer in Las Vegas. He developed a 
newspaper that was feisty. It was a newspaper that took on Senator 
McCarthy before it was fashionable to do so. He took on the gaming 
interests when it was a very small newspaper and won an antitrust suit 
against them for their failing to advertise and they, in fact, 
boycotted his newspaper.
  So I give this background to indicate it is a great newspaper. It 
was. It still is.
  The editorial they wrote yesterday can be paraphrased but not very 
well. It is a short editorial. I will read the editorial into the 
Record. It is entitled ``Patient rights get some life.''
  The subtitles say:

       The Senate is expected to take up this week a patient's 
     bill of rights.

  They have under that:

       Our take: It is unfortunate that so far President Bush 
     opposes the Democratic plan,

[[Page 10992]]

     which also is favored by some Republicans, that finally would 
     make HMOs accountable.

  The editorial begins as follows:

           [From the Las Vegas Daily Journal, June 18, 2001]

       President Bush's campaign pledge to be ``a uniter, not a 
     divider'' has been a bust in the early going of this 
     administration. The White House's embracing of 
     extraordinarily conservative views, which are far removed 
     from the mainstream, have given the president some real 
     problems in living up to his conciliatory vow, especially on 
     environmental issues. Now Bush will soon face another test of 
     his ability to bring warring sides together on another 
     divisive matter: a patient's bill of rights.
       The Senate, which recently came under Democratic control, 
     plans this week to take up a patient's bill of rights, which 
     for years has been stymied by Senate Republican leaders. It's 
     not just Democrats supporting the plan, notable Republicans 
     such as John McCain also back the bill. It also is important 
     that last week Rep. Charlie Norwood, R-Ga., signed on to a 
     similar Democratic measure in the House. Norwood for years 
     had championed a patient's bill of rights, but he had held 
     off his support this year in deference to the White House, 
     which said it wanted to work out a compromise. But even 
     Norwood's loyalty wore thin, finally causing him to break 
     company with Bush on this issue. The president, who has 
     threatened to veto a patient's bill of rights that allows 
     lawsuits in state courts against HMOs, just wouldn't budget 
     on this key provision.
       The patient's bill of rights isn't that complicated: It's 
     all about accountability. Currently, health insurance 
     companies are the only businesses in the nation that are 
     immune to lawsuits if they harm someone. No one else gets 
     such special treatment. In light of how HMOs have wrongly 
     denied care to patients in the past, this is an industry that 
     needs some accountability. While the lawsuit provision is 
     essential if a patient's bill of rights is to carry any 
     weight, few patients would ever want to pursue this option. 
     What they want is immediate care. The Democratic plan tries 
     to ward off people from heading to court, requiring patients 
     to first go to an independent review panel before seeking 
     relief through the courts.
       If there is a glimmer of hope it is that Bush has softened 
     some of his earlier hard-line positions on the environment 
     after hearing quite a bit of criticism. In the same vein, the 
     president should listen to reason and endorse a patient's 
     bill of rights that requires HMOs to finally be held 
     accountable for their actions.

  Mr. President, that is an editorial from a Las Vegas newspaper. It is 
simple. It is direct. It is to the point. It is what this debate is all 
about. If, as I have heard today, the minority thinks the bill has some 
things that they don't like, don't understand, wish weren't there, 
let's debate this bill. Let's not hide behind some procedural gimmick 
that prevents us from bringing this matter to the fore for the American 
people.
  The people of Minnesota, the State the Presiding Officer represents, 
the people of New Jersey, the junior Senator from New Jersey being on 
the floor, the people of the State of Nevada and the rest of the 
country need this legislation. This is about patient protection. It is 
about having a doctor take care of a patient, something we used to take 
for granted--that if a doctor thought a patient needed something, the 
doctor ordered it for the patient. They can't do that anymore. That is 
too bad.
  Patient care has been hindered, harmed, and damaged. What we want to 
do with the Patients' Bill of Rights is reestablish the ability of a 
doctor and a nurse to take care of my daughter, my sons, my wife, my 
children, my neighbors. Anyone who needs a doctor's care should be able 
to have the doctor's care. I don't want a doctor doing my taxes. I also 
don't want an accountant doing my medical care. That is what we have in 
America, in many instances, and it is wrong. This legislation that we 
are trying to bring up--and we will get to it; it is just a question of 
when--is supported by many organizations. I will soon read into the 
Record the entities that support this legislation. Virtually every 
health care entity in America, every consumer group, every doctor 
group, including the American Medical Association and, surprisingly, 
because I have never known them to agree on anything, the AMA and the 
American Trial Lawyers agree this legislation is necessary.
  Who opposes it? The people providing the care, the managed care 
entities do not support this legislation. They are the ones paying for 
the millions of dollars worth of ads on television trying to confuse 
and frighten the American people--just as they did with the health care 
plan in 1993. They spent $100 million or more in advertising to 
frighten and confuse the American people. I have to hand it to them; 
they did a great job. They did frighten the American people. We are not 
going to let them do that.
  We are going to complete this legislation. We are going to complete 
this legislation very soon. What is very soon? By next Thursday, a week 
from this Thursday, and then if we finish it by that date, we are going 
to do our Fourth of July recess. If we do not complete our legislation 
by a week from Thursday, we are going to work here, according to the 
majority leader, Tom Daschle, until we finish it. We are going to work 
Friday, Saturday, and we are going to work Sunday; the only day we are 
going to take off is July 4.
  Mr. President, this legislation is overdue. It is important, and we 
are going to pass this legislation before we go back to be in parades 
for the Fourth of July.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Corzine). Without objection, it is so 
ordered.
  Mr. REID. Mr. President, we have heard utterances in this Chamber 
today about the Patients' Bill of Rights by Senator John McCain that we 
have a lot of groups that support this legislation. I don't have a 
total because it is growing every day. I am going to read into the 
Record a partial list of those entities and organizations that support 
the Patients' Bill of Rights, the legislation before this body:

       Abbott House of Irvington, NY; Abbott House, Inc. in SD; 
     AIDS Action; Alliance for Children and Families; Alliance for 
     Families & Children; Alpha 1 Association; Alternative 
     Services, Inc.; American Academy of Child and Adolescent 
     Psychiatry; American Academy of Dermatology; American Academy 
     of Emergency Medicine; American Academy of Facial Plastic and 
     Reconstructive Surgery; American Academy of Family 
     Physicians.
       American Academy of Neurology; American Academy of 
     Ophthalmology; American Academy of Otolaryngology; 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 Centers; American 
     Association of Neurological Surgeons.
       American Association of Nurse Anesthetists; American 
     Association of Pastoral Counselors; American Association of 
     People with Disabilities; American Association of Private 
     Practice Psychiatrists; American Association of University 
     Affiliated Programs for Person with Developmental 
     Disabilities; American Association of University Women; 
     American Association on Health and Disability; American 
     Association on Mental Retardation; American Board of 
     Examiners in Clinical Social Work; American Board of 
     Examiners in 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 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 of 
     Physicians--American Society of Internal Medicine; American 
     College of Surgeons.
       American Congress of Community Supports and Employment 
     Services; American Council on the Blind; American Counseling 
     Association; American Dental Association; American Family 
     Foundation; American 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

[[Page 10993]]

     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 of Cataract & Refractory Surgery.
       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 Urogynecologic Association; American 
     Urological Association; American Urological Society; 
     Americans for Democratic Action; Anxiety Disorders 
     Association of America.
       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 Psychiatrists; 
     Association of Academy Physiatrists; 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; and Auberle 
     of McKeesport, PA.

  Those are the A's. I have completed the groups beginning with the 
letter A. I will come back later and start with the B's and go through 
the hundreds of groups that support this legislation. The overwhelming 
number of American people support this legislation, as referenced by 
those organizations that begin with the letter A.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. CORZINE. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Reid). Without objection, it is so 
ordered.
  Mr. CORZINE. Mr. President, I am honored to rise today, particularly 
with the Presiding Officer who is in the Chair, to support a motion to 
proceed to S. 1052, the Bipartisan Patients' Bill of Rights.
  I commend Senators McCain, Edwards, and Kennedy for the tremendous 
effort they put in to develop a strong, enforceable, and bipartisan 
bill with the support of over 500 consumer provider and health care 
groups, as the Presiding Officer just demonstrated to us with the A's.
  More importantly, I commend the American people because the American 
people know what makes common sense with regard to the need to provide 
everyone quality health care that puts the relationship between the 
doctor, the nurse, and the patient first.
  Over the last 30 years, managed care organizations have come to 
dominate our health care system. These organizations both pay for and 
make decisions about medical care, often preempting the fundamental 
relationship in the health care equation between doctor and patient.
  However, unlike doctors, nurses, or almost anybody in our society, 
HMOs, managed care institutions, are not held accountable for their 
medical decisions and treatment decisions.
  We just spent 8 weeks in the Senate talking about education and 
accountability. We need to talk about accountability within the context 
of the patient-doctor relationship, and that is what this debate will 
be all about if we can ever get to the bill.
  Unfortunately, in the case of some HMOs, they have sometimes skimped 
on care that undermines the health of our patients, the health of the 
American people for the preemption and benefit of the bottom line, and, 
in fact, it is all about protecting the bottom line.
  That is why this legislation is absolutely critical. The McCain-
Edwards-Kennedy bill will ensure at long last that managed care 
companies are held accountable for their actions. Just as in all of 
industry--every doctor and, frankly, every individual in America--
everyone is held accountable.
  We cannot afford to wait any longer before passing legislation to 
curb insurance company, managed care abuses. According to physician 
reports, every single day we delay passage of this legislation, 14,000 
doctors see patients whose health has seriously declined because an 
insurance plan refused to provide coverage for a prescription drug; 
10,000 physicians see patients whose health has seriously declined 
because an insurance plan did not approve a diagnostic test or 
procedure; 7,000 physicians see patients whose health has seriously 
declined because an insurance plan did not approve a referral to a 
medical specialist; 6,000 physicians see patients whose health has 
seriously declined because an insurance plan did not approve an 
overnight hospital stay. Think about that. That is 35,000 folks a day 
who are left with diminished and substandard care because we do not 
have the right relationship between doctors and patients in place with 
the interference of bureaucrats at insurance companies and HMOs.
  This legislation has all the key components that Americans have 
demanded to respond to these problems. It contains strong, 
comprehensive patient protections.
  It creates a uniform floor of protections for all Americans with 
private health insurance, regardless of whether something has been done 
in the States.
  It provides a right to a speedy and genuinely independent external 
review process when care is denied. It is not guaranteeing a lawsuit, 
it is guaranteeing a speedy independent external review.
  Finally, it provides consumers with the ability to hold managed care 
plans accountable when plan decisions to withhold or limit care result 
in injury or death, harm and pain to the patient.
  I wish to speak briefly about a few of the most important provisions 
in this bill, but this is all about common sense.
  First, this bill protects all Americans in all health plans. If we 
are serious about providing consumers with protections, we must be 
serious about covering all Americans. The McCain-Edwards-Kennedy bill 
does just that. No person is left without rights because they live in a 
State with weaker protections.
  Second, the legislation ensures a swift, internal review process is 
followed and a fair and independent external appeals process if it is 
necessary. This will guarantee that health care providers, not health 
plans, will control basic medical decisions. It does not guarantee a 
lawsuit; it provides a process for a legitimate review of a patient's 
claims.
  Third, the legislation guarantees access to necessary care. Patients 
should not have to fight their health plan at the same time they are 
fighting an illness. That is why the legislation guarantees access to 
necessary specialists, even if it means going out of a plan's provider 
network. It seems pretty simple we ought to get to the right doctor for 
the disease that is diagnosed.
  Chronically ill patients will receive the speciality care they need 
with this bill.
  Patients will have access to an emergency room, any emergency room, 
when and where they need it.
  Women will have easy access to OB/GYN services without unnecessary 
barriers.
  Children will have direct access to pediatricians and, most 
importantly, pediatric specialists.
  Patients can participate in potentially lifesaving clinical trials. 
This is a critical protection for patients with Alzheimer's, cancers, 
or other diseases for which there are no sure cures.
  Fourth, the legislation protects the crucial provider-patient 
relationship--doctor-patient, nurse-patient.
  It contains antigag rule protections ensuring health plans cannot 
prevent doctors and nurses from discussing all treatment options with 
their patients. It sounds like common sense, and it limits improper 
incentive arrangements by the insurance industry.
  Finally, this legislation makes sure that the rights we seek to 
guarantee

[[Page 10994]]

are enforceable. Yes, this legislation allows individuals harmed by an 
HMO to sue their HMO. This is a critical provision because, let's face 
it, a right without a remedy is no right at all.
  Again, that fundamental accountability issue we have been talking 
about, whether it is with regard to education, we also ought to be 
talking about it with health care.
  No matter what health care treatment protections are passed into law, 
unless patients can enforce their rights, the HMO is free to ignore 
those requests. Health insurers must understand that unless they 
deliver high-quality health care that protects the rights of patients, 
they can and will be held accountable.
  I wish to address for a moment the argument that this legislation 
will lead to more uninsured Americans.
  There is perhaps no issue about which I am more passionate than the 
uninsured, about 44 million in America. I believe health care is a 
basic right, and neither the Government nor the private sector is doing 
enough to secure that right for everyone. I hope one day we will have 
that debate. But let me be clear; if I believed this bill would 
increase the number of uninsured--I believe a number of Senators 
believe the same--we would not support this.
  Let me also point out the hundreds of health care and consumer groups 
that support this legislation are also the very groups that are working 
the hardest to expand coverage for the uninsured. They also would not 
support this legislation if they believed it would result in more 
uninsured. That issue is nothing but a diversion, a red herring, a 
scare tactic, because the CBO itself has said this legislation would 
only increase premiums by 4.2 percent over a 10-year period.
  This legislation will not result in higher numbers of uninsured. It 
will result in better quality for patients. I heard Senator Kennedy 
today saying, whether it was about family medical leave or minimum wage 
or a whole series of things, people are just trying to scare folks into 
believing that taking action that is going to help the people of 
America is somehow going to result in very negative results that ought 
to keep us from doing this and moving forward. It is just a bad 
argument. They are scare tactics at their worst.
  In sum, I believe health decisions should be made based on what is 
best for the patient. We need to assure the American people that the 
practice of medicine is in the hands of the doctors. We trust them with 
our lives. We should trust them to decide what care we need. I urge my 
colleagues to agree to take up the bipartisan McCain-Edwards-Kennedy 
Patients' Bill of Rights. I see one of the authors now. I congratulate 
him and the other sponsors for moving an important part of what needs 
to be done to make America's health care more secure for everyone.
  The PRESIDING OFFICER. The Senator from North Carolina.
  Mr. EDWARDS. Mr. President, let me first thank my colleague from New 
Jersey for his passionate support for this important piece of 
legislation, the Patients' Bill of Rights. I want to talk about several 
subjects briefly, if I may.
  First, some people have argued, in the press, the media, and on the 
floor of the Senate during this debate today, that the only difference 
between the McCain-Edwards-Kennedy Patients' Bill of Rights, the 
Patients Protection Act, and the bill that has been proposed by Senator 
Frist and others, is on the issue of accountability, taking HMOs to 
court.
  There are multiple differences between these bills. There are 
differences in how you determine whether a State can opt out of the 
protections covered by the Patient Protection Act, i.e., how much 
coverage there is, how many people are covered by the bill.
  There are differences in access to specialists outside the plan. Our 
bill specifically provides you can have access to a specialist. If a 
child needs to see a pediatric oncologist, a child with cancer, the 
child has a right to do that. Under their bill, the HMO is in charge of 
that decision. Under our bill, there is a true independent review by 
the independent review panel. If a claim has been denied by an HMO, 
that question has been appealed within the HMO, and then if that was 
unsatisfactory, the next appeal is to an independent review panel. Our 
bill specifically provides that panel must in fact be independent. The 
HMO can't have anything to do with choosing them. Neither can the 
patient or the physician involved in the care.
  Unfortunately, the Frist bill does not provide the HMO cannot have 
control over that panel, which means the HMO essentially can have 
control. It is like picking their own judge and jury in a case 
involving somebody's health, health care that could affect the family.
  The bottom line is, from start to finish, whether it is coverage, 
access to specialists, access to a true independent review, if, as a 
matter of last resort a case has to go to court, having that resolved 
quickly and efficiently or having it dragged out over years and years 
and years in a Federal court--on every single issue of difference, 
there is a simple thing. Our bill protects patients. Our bill is on the 
side of families and doctors. Their bill is slanted to the HMOs.
  So it is not an accident that the American Medical Association and 
over 300 health care groups--virtually every health care group in 
America--support our bill. It is not an accident that the majority of 
the Senate supports our bill. It is not an accident that the majority 
of the House of Representatives supports our bill. All these 
organizations that deal with these issues every day--I am not talking 
about Members of the Senate, I am talking about doctors who practice 
medicine every day, who deal with problems with HMOs, I am talking 
about patients groups who hear these horror stories regularly about 
HMOs, who have analyzed this legislation, looked at it word by word by 
word from start to finish and have come to a simple conclusion: Our 
bill is a true patient protection act. Their bill is an HMO protection 
act. Our bill protects patients, doctors and families. Their bill, 
instead of being a Patients' Bill of Rights, is a patient's bill of 
suggestions because the rights contained therein are not enforceable.
  To the extent there is an argument made during the course of this 
debate that there are no differences, there are differences. There are 
important differences. From the beginning to the end of this bill, 
there are important differences. The best evidence of those differences 
is the fact that the American Medical Association and doctors and 
health care providers and nurses groups all over America support our 
bill. They know what the problems are. They want to be able, along with 
families, to make health care decisions. They want these decisions made 
by health care providers and families and not by some bureaucrat or 
clerk with no training and experience, sitting behind a desk somewhere, 
who has never seen the patient. That is the difference between these 
two pieces of legislation.
  As to the issue of accountability, that means what happens if you 
have gone through the internal appeal at the HMO. The HMO denies care 
to a family. You go to the HMO and you attempt to appeal that. They 
deny it again. Then you go to a truly external independent appeal, 
under our bill, and that is not successful. As a matter of last resort, 
if, after all of that, the patient has been injured, the patient can go 
to court.
  The whole purpose of that is to treat HMOs as every other health care 
provider, as every small business, as every large business in America, 
as every individual who is listening to this debate. All the rest of us 
are responsible for what we do. We are held accountable, and we are 
responsible. The HMOs are virtually the only entity in America that can 
deny care to a child and the family can do nothing about it. They 
cannot question it; they cannot challenge it; they cannot appeal it; 
and they cannot take the HMO to court because the HMOs are privileged 
citizens in this country.
  I have to ask, if you were to send out a questionnaire to the 
American people and say: Here are 10 groups of Americans--physicians, 
doctors, patients--and on that list were HMOs, and you

[[Page 10995]]

said, on this list, whom would you want to protect from any 
accountability, from ever being able to be taken to court, to be 
treated as privileged citizens, I suggest the likelihood that the HMOs 
would end up at the top of that list is almost nonexistent.
  What we have is an anachronism. We have a law that was passed in 
1974, before the advent of managed care, before HMOs were making health 
care decisions. Then after the passage of this law, with the passage of 
these protections that gave managed care companies privileged status, 
they started making health care decisions.
  We have a situation that needs to be corrected. All this is about is 
treating HMOs as every other entity and individual in America. We want 
them to be like all the rest of us. It is just that simple. They are 
not entitled to be treated better than the rest of us. But, surprise, 
surprise; they don't like it. They are being dragged, kicking and 
screaming every step of the way, and they are spending millions and 
millions of dollars on television ads, on public relations campaigns to 
defeat our bill. Why? They like being privileged. They like being 
treated like nobody else in America is treated. They like the fact that 
they can decide something and nobody can do anything about it. Why 
wouldn't they like it? Why wouldn't they want to keep things exactly as 
they are?
  That is what this debate is about. Ultimately, we are going to have 
to decide on the floor of the Senate and at the end of Pennsylvania 
Avenue, hopefully, if we can get this bill through the Senate and the 
House, whether we are on the side of the big HMOs or whether we are on 
the side of patients and doctors.
  Earlier today I made reference to a story of a man in North Carolina 
named Steven Grissom. He was a young man who developed leukemia. He 
became sicker and sicker. He got to the point where his specialist at 
Duke University Medical Center had to put him on 24-hour-a-day oxygen.
  This is Steve Grissom, the man I referred to earlier.
  His wife's employer HMO covered Steve Grissom. Unfortunately, his 
wife's employer changed HMOs. Some clerk sitting behind a desk 
somewhere who had never seen Steven and had never met him and with no 
medical expertise said: We are not paying for this. We don't think he 
needs it. They literally cut off his oxygen.
  What was Steve Grissom going to do? He was like every family, every 
child, and every patient in America with an HMO that makes a decision. 
He couldn't do anything about it. He couldn't challenge it. He couldn't 
appeal it. He couldn't take them to court. He was absolutely helpless.
  That is what this legislation is about. It is about giving Steve 
Grissom--when the HMO says we are not giving you your oxygen that your 
specialist says you need--the ability to do something about it. It is 
about allowing him to go to an appeal, and most importantly to a truly 
independent review panel of doctors who, in every single case such as 
Steve's, will reverse the decision.
  When his heart specialist at Duke University Medical Center says you 
need this oxygen 24 hours a day, and you put that question to a panel 
of three doctors, what do you think the result is going to be? They are 
going to order that the HMO pay for the oxygen that Steve needs.
  That is what this debate is about.
  There are real differences between our bill and the Frist bill.
  For example, when Steve's care was denied, we go to a panel that the 
HMO can have no control over; that a truly independent patient can't 
have anything to do with; that Steve couldn't have any connection with; 
and that the HMO can't have any connection with. It is objective and 
fair.
  Unfortunately, under the Frist bill the HMO could choose the people 
on the review panel. There is absolutely nothing to prohibit that. 
Steve will be making his case to a judge and jury picked by the HMO.
  That is an important difference between our bill and this bill.
  The bottom line is that what we are about is trying to empower 
patients and empower doctors to make health care decisions; have people 
who are trained and experienced to make those decisions and the people 
who are impacted by them. That is what this legislation is about.
  To the extent that people suggest this is going to result, No. 1, in 
employers being sued, we will debate this issue going forward. But it 
is very clear in our legislation that we protect employers. It is 
equally clear that we abide completely by the President's principle on 
this issue. The President said only employers who retain responsibility 
for and make final medical decisions should be subject to suit.
  That is exactly what our bill does. Our bill does exactly what the 
President's principle provides. On this issue of employers being 
protected from lawsuits, we are in complete agreement with the White 
House.
  As to the cost issue, the difference in cost between our bill and 
Senator Frist's bill--the bill that the White House has endorsed--is 37 
cents per employee per month. This is what they contend is going to 
result in a massive loss of insurance coverage, 37 cents a month. The 
difference between the bills on taking the HMO to court--the 
accountability provision--is 12 cents a month. Between 12 and 37 cents 
a month is not going to cause people not to be insured.
  More importantly, we will give people a better price. We give them 
real quality health care. The reason that it is 37 cents a month more 
for employees is because they get better care. They get better access 
to clinical trials, better access to specialists, and better access to 
emergency rooms. When the HMO does something wrong, they can get that 
decision reversed by the independent review panel.
  That is what this debate is about.
  We have a decision to make over the course of the next few weeks. I 
hope for the sake of the Steve Grissoms all over this country--many of 
whose stories have been told today and will continue to be told on 
behalf of these families--that we will do what is necessary to make 
sure that HMOs and insurance companies in this country are treated just 
as everybody else, and that families and doctors can make health care 
decisions that affect their lives.
  I yield the floor.
  Mr. NICKLES. Mr. President I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Corzine). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. NICKLES. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. NICKLES. Mr. President, I rise to speak on the issue of the 
Patients' Bill of Rights. I love the title. It is a great title. I hope 
we can pass a positive and good Patients' Bill of Rights--one that 
really provides patient protections but doesn't increase costs and 
doesn't scare employers away.
  Unfortunately, I don't think that is the case with the bill we are 
considering today, S. 1052.
  I haven't quite figured it out. Last week, we were on the McCain-
Edwards-Kennedy bill, S. 871. That was last Wednesday. I was reviewing 
it and trying to become more familiar with the sections and what that 
bill meant to employers, to people providing health care, to Federal 
employees, and so on. Now we are considering a different bill, S. 1052. 
It is important for us to know as Senators because we are going to be 
voting on the legislation. This is one of a few bills. Every once in a 
while we consider legislation that will have a significant impact on 
everybody's lives. We did that when we passed the tax cut package 
recently. That will change everybody's taxes. People are going to see 
tax refunds coming in the mail in the next couple of months. I think 
that is very positive. People are going to see their rates reduced 
effective July 1. I think that is positive. That is a positive impact 
bill. This is a bill that will have a significant impact on everybody 
who has health care.
  A lot of people have health insurance. Then some people have health 
care. There is a difference. A lot of people are uninsured.

[[Page 10996]]

  When we wrestle with the problem of health care, we need to address 
the number of people who are uninsured, and we need to reduce that 
number. By all means, we shouldn't pass any legislation that is going 
to increase the number of uninsured.
  Everybody realizes when we have 42,500,000 uninsured people, that is 
too many. I think Democrats and Republicans, conservatives and 
liberals, agree with that. We ought to be working to reduce the number 
of uninsured as much as we possibly can. We probably will never get it 
down to zero, but we ought to make some improvement. But for crying out 
loud, let's not pass legislation that will increase the number of 
uninsured.
  Unfortunately, I believe that is what would happen if we passed this 
so-called McCain-Edwards-Kennedy bill.
  I believe if we pass this bill in its present form, we are going to 
increase the number of uninsured, probably in the millions. I wish that 
were not the case. I hope by the time we finish the debate and 
amendment procedure in this Senate Chamber that will not be the case. I 
very much hope President Bush can join with us and sign a bill and we 
can be shaking hands. I have mentioned this to Senator Kennedy--we have 
been adversaries on this issue for a couple years now--I hope we can be 
shaking hands and saying we have done a good job; we have protected 
patients, and we did it in a way that did not really increase costs 
very much, and maybe we did some things that would increase the number 
of insured in the process, so that we did not do any damage.
  We should do no harm. Congress would be much better off not to pass 
any bill than to pass a bill that greatly increased the cost to people 
buying health care and/or increasing the number of uninsured.
  Let's say we want to pass a Patients' Bill of Rights. Great. But 
let's do no harm. Let's not increase costs dramatically. Let's not 
increase the number of uninsured, especially if we are talking about 
millions. And that is what we are talking about in the bill before us 
today. I wish that were not the case.
  Let's go through the bill. And I think we will have some time. We 
need some time since we have not had any hearings on this bill. This 
bill has never been through a Senate markup.
  In the last Congress, we did mark up the Norwood-Dingell bill. We did 
not pass Norwood-Dingell in the Senate. We passed a substitute bill on 
which many of us worked. I thought it was a positive piece of 
legislation. I thought it had a lot of good things. It would have 
addressed the problem our friend, the Senator from North Carolina, just 
addressed.
  He said an individual, Steve Grissom, was denied health care. That 
was unfortunate. The bill we passed last year had internal-external 
appeals. That external appeal would have been quick. That person would 
have had health care and would not have had to go to court and would 
not have had to choose between State court and Federal court, seen 
trial attorneys--would not have had to do any of that. They would have 
had health care. They would have had an appeals process, and that 
appeals process would have been binding.
  Somebody said: We need accountability. We need enforceability.
  We had it binding where, if the plan did not comply with the external 
appeal, they would be fined $10,000 a day.
  So I think in that case--and that is a terrible case, where maybe 
somebody, unfortunately, was denied care--they would have gotten the 
care; and they would have gotten it quickly; and they would not have 
gone to court. They would not have received the care in the courtroom 
but would have received it by doctors. I agree. Let's solve that 
problem.
  We were very close to an agreement on internal-external appeals to 
resolve 99 percent of these cases. That is not the case with the bill 
we have before us. In the bill we have before us, I would say, for the 
128 million private-sector Americans who are in private health care, 
who receive their health care from their employer, look out, because 
there is legislation coming, with a very good name, that makes the 
employer liable in almost all cases, not just the HMOs, and it makes 
them liable to the extent that a lot of employers are going to be 
scared to offer their employees health care. Some may opt out.
  In addition, it will increase costs so significantly that a whole lot 
of people are going to say: Wait a minute, these costs are so high, I 
can't afford it. My employees didn't appreciate how much money we were 
spending on health care. So I asked them, instead of me spending $5,000 
or $6,000 a year per family on health care--up to $7,000 now--would you 
prefer the money and you can buy health care on your own? A lot of 
employees will say: Yes, count me; I would like to have that money. 
Maybe they will buy health care on their own, and maybe they won't.
  Unfortunately, a lot of employees would not, so the number of 
uninsured would rise, and I believe rise dramatically. So employers 
would be scared from the cost standpoint, and they would also be 
frightened because there would be unlimited liability.
  There has been some misrepresentation by some, saying: This bill has 
caps on liability. It does not have any caps on noneconomic damages. 
There are all kinds of damages. And this bill has new causes of action 
for Federal lawsuits. It has new causes of action for State lawsuits. 
It allows people to be able to jury shop: Let's find a good jury in a 
good county. With one good jury, you can become a billionaire nowadays. 
Wow. A lot of employees would say: Thank you very much, but I can't 
afford that exposure; I can't afford that liability, the fact that one 
jury case, for something I had nothing to do with whatsoever, could put 
me into bankruptcy. So they might say: We are just going to opt out. We 
don't have to provide this benefit.
  Some people would like to mandate that employers provide health care, 
but that is not going to pass, and they know that is not going to pass.
  So the net effect is, a lot of employers will say: I don't have to 
provide this benefit. I want to, but I can't afford the exposure.
  I just met somebody today who owns a restaurant. Actually, today, I 
met with two people who own a restaurant each. I heard people say: Hey, 
you are going to choose between the HMOs and the people. I met with two 
people today who each owns and operates a restaurant. One owns a small 
restaurant in Maryland. They said, if this bill passes, because of the 
liability provisions, they probably won't provide health care for their 
employees. They just started providing health care for their employees. 
Restaurants are the type of business where not everybody provides 
health care for their employees.
  All the major automobile manufacturers provide health care for their 
employees. They will probably continue to do so because of collective 
bargaining agreements. Interestingly, there is a little section that 
exempts collective bargaining agreements. Whoops. I thought we were 
providing all these protections for everybody. But there is a 
protection for organized labor here that kind of exempts the organized 
labor contracts for the duration of their contracts. So they might be 
exempt for years.
  We will get into some of the loopholes left in this provision. But 
this small restaurant owner said: I don't think I can afford the 
liability. I am afraid of doing that. And this person--female--operates 
her own business, which is family operated, I believe second 
generation, and they have had the business for 30-some-odd years, I 
believe. It is not all that large. About half her employees now have 
health care. She said today, she does not think she can continue 
providing health care if this bill passes.
  I met with a restaurant owner who has a larger restaurant not too far 
from here in Northern Virginia. This person started providing health 
care for their employees and said: No way, not with this liability. You 
would make it impossible.
  Wait a minute; employers are exempt. I heard that today. Oh, 
employers are exempt? Yes, there is a section in this bill exempting 
employers, on page 144: ``Causes of Action Against

[[Page 10997]]

Employers and Plan Sponsors Precluded.'' Great. That will make Don 
Nickles happy, and others happy. That sounds pretty good. That is 
paragraph (A).
  Paragraph (B): ``Certain Causes of Action Permitted. Notwithstanding 
subparagraph (A), a cause of action may arise against an employer or 
other plan sponsor. . . .''
  Look out, employers. You had better read paragraph (B). You are 
liable. Oh, there are a few little exemptions. If they do this, this, 
and this, they will not be liable. But it does not cover everybody. I 
promise you, as an employer, if they complete their fiduciary 
responsibilities, they are liable. And when employers find out they are 
liable, they are going to be scared of this bill and the results of 
this bill, and a lot of them will quit providing health care for their 
employees. In other words, if we take legislative action, maybe with 
very good intentions, there may be very adverse results.
  They did that in the State of California on energy. They passed a 
bill that had a great title calling it a deregulation bill, but it had 
all kinds of regulations, and it had a lot of adverse results. This 
bill, I am afraid, if we passed it today, and it became law, would have 
a lot of adverse results.
  President Bush has said he would veto this bill. And he is right in 
doing so. And we have the votes to sustain that veto.
  Some people said: Why not pass this bill as it is, let the President 
veto it, you sustain his veto, and, hey, you have covered the subject? 
I do not think that is responsible legislating. Maybe it would be the 
easy way out. That way, we can just raise a few objections, vote no, 
and let him veto the bill. I do not think that is responsible.
  I think we need to review this bill. I think every Senator should 
know what is in this bill. I will tell you, from the public comments I 
have heard, in some cases the sponsors of this bill may not know what 
is in this legislation.
  So we need to consider what is in this bill. We need to talk about 
it. We need to see if we can improve it. Hopefully, we can improve it 
to the degree that we will have bipartisan support for a solution with 
perhaps 80 sponsors of the bill and have overwhelming support. I would 
love to see that happen. I will work to see that happen. I have 
invested a lot of time on this issue. I want to pass a good bill. This 
bill does not meet that definition.
  I heard a couple people say this bill is consistent with the 
principles the President outlined. That is factually inaccurate. That 
is a gross misinterpretation of the President's principles. They were 
not written that fuzzily. I will outline in another speech what are the 
President's principles and where this bill falls fatally short--not 
short in a gray area but fatally short.
  I am just concerned that maybe some people are a little loose in 
their statements, saying this is consistent with what the President 
wants, and so on, this is consistent with the Texas plan, and so on. I 
do not think that is factually correct. So I wanted to mention that.
  I want to do a good bill. This does not fit the pattern.
  What about a couple of other things? Should the Federal Government 
take over what the States are doing in the regulation of health care? 
Some people obviously think we should. As a matter of fact, I look at 
the scope sections of the bill, and I am almost amused. We are going to 
have a preemption: State flexibility. It says, on page 122, ``[nothing 
shall] be construed to supersede any provision of State law which 
establishes, implements, or continues in effect any standard or 
requirement solely relating to health [insurers]. . . .''
  Boy, that sounds good. I like that section. I don't know if there is 
a bait-and-switch section in here or what, but that sounds so good. 
That sounds like something I would put in there. But it doesn't stop 
there. It goes on.
  Then it says, on the next couple pages: If the State law provides for 
at least substantially equivalent and effective patient protections to 
the patient protection requirements which the law relates. In other 
words, we are not going to mess with the States unless the States, of 
course, have to provide at least substantially equivalent and effective 
patient protections as this bill does.
  Well, what does substantially equivalent and effective mean? It 
means, States, you need to do exactly what we tell you to do. We are 
going to preempt everything you have. If you have an ER provision, it 
has to match our ER provision, our emergency room provision. If you 
have access to OB/GYN, you have to match our access provision to OB/
GYN. And there is a lot of difference.
  If you have clinical trials in your State, you have to match these 
clinical trials, which are enormously expensive clinical trials, which 
are covered by anything that NIH would offer or anything by FDA or 
anything by DOD or anything by the VA. There are a lot of clinical 
trials. You have to pay for them. It may be the State of New Jersey did 
pay for them or did not.
  Under this bill, there is not one State in the Union that meets the 
clinical trial provisions of this bill. Why? Because they are very 
expensive provisions; because they are unknown provisions; because no 
one knows how much they would cost. And so the States have been kind of 
cautious on putting in clinical trial provisions. They have done it 
rather cautiously. The State of Delaware is considering clinical trials 
today, legislation on a patients' bill of rights. They have a clinical 
trial provision, and it is not nearly as expensive as the one that is 
mandated in this bill.
  The essence of this bill is, State, we don't care what you have 
negotiated. We don't care how many hearings you had. We don't care if 
the legislature worked on this for months and negotiated it with the 
Governors and the providers in your State. We don't care because we 
know what is best. One size fits all. I guess two or three Senators 
decided they know what is best. They know better than every single 
State insurance commission. They know better than every State 
legislature. They know better than every Governor, every person who is 
in the buying business. We are going to mandate that these have to be 
in your contract, in your coverage.
  I accidently said the word ``contract.'' Most of this is done by 
contract. There is a provision in here that says you don't have to 
abide by the contract. That is a heck of a deal. So when people try to 
have a contract, here is what we will cover, here is what we don't 
cover, so you can have some kind of limitation on cost.
  There is a little provision in the bill that says the reviewer shall 
consider but ``not be bound by the definition used by the plan or 
issuer of medically necessary and appropriate.'' Not be bound--in other 
words, they can provide anything they want to provide. It doesn't make 
any difference what is in the contract. That is in this little bill.
  How do you get a cost estimate of how much this bill is going to 
cost? Because no one knows. The contracts aren't binding. Wow. There 
are a lot of things in here.
  Then I have heard people say: We are going to make sure the States 
have provisions that are substantially equivalent and as effective. Who 
is going to determine if something is as effective? We are going to 
have the Federal Government. HCFA is going to review the State 
standards. HCFA will determine whether or not you are substantially 
equivalent and as effective. The only way you are going to get there 
with any certainty is to have identical language. And then who is going 
to know whether or not it is as effective? That is as subjective as it 
could possibly be.
  You have a standard that is higher than HCFA. You have a standard 
higher than anybody has ever imposed. It says: Here is everything we 
mandate. If you want Federal, nationally dictated health care, it is in 
this bill. Wow. I didn't know we were taking over for the State. I 
didn't know we had the people to do it.
  Guess what. We don't. There is no way in the world the Federal 
Government has the resources in HCFA, the Health Care Finance 
Administration--which now has a new name which I can't remember and 
won't for the time being--there is no way in the world they could do 
this. Every State has insurance commissioners or regulators

[[Page 10998]]

that are in charge of making sure the insurance companies in their 
State are adequately financed, meet their fiduciary responsibilities, 
that they meet their insurance responsibilities, that they uphold what 
they say they are going to do in the contracts, every State. I would 
imagine in New Jersey, it is hundreds of people--hundreds. I am sure it 
is in the hundreds. My State of Oklahoma is in the hundreds.
  HCFA, the Health Care Finance Administration, couldn't enforce that. 
There is no way in the world. There is a list of patient protections 
that every State has done. In my State, it is 40 some; in most States 
it is 30, 40, 50 different State protections. We are going to say: We 
don't care what you have done. Those aren't good enough. We are going 
to basically say these protections are preeminent. These will supersede 
what your State has done. You must do as we tell you to do. If you 
don't, the Federal Government will take over enforceability of those 
provisions.
  Then you will have the awkward situation of having the Federal 
Government enforce some provisions in your health care contract but not 
all the provisions. That is really going to make a lot of sense. Then 
there is going to be this little period of time where the State has 
been enforcing these State regulations. Now we have a new Federal 
regulation, and it is supposed to be prevailing. But the State 
regulation, we are used to enforcing it. Which one do we abide by? They 
are not familiar with the Federal enforceability. No one has ever 
enforced this one before. So should the State enforce the Federal 
regulation? They can't do it. The HCFA person hasn't signed off. 
Therefore, HCFA is going to take over, and they don't have anybody to 
enforce it.
  Now what you have is language saying you have these protections, but 
you don't have anybody to enforce it because HCFA can't do it. They 
absolutely can't do it.
  Somebody should ask the Secretary of Health and Human Services, do 
you have the capability to regulate State insurance to enforce these 
provisions that the McCain-Kennedy-Edwards bill would do? The answer is 
no. No, they couldn't do it. So we are going to have a long list of 
protections that we supposedly are telling everybody they have: look 
what we have done for you, but there is no enforceability because the 
Federal Government doesn't have the wherewithal to do it.
  And we shouldn't do it. That is not our responsibility. Yet we are 
going to have that kind of takeover. I think that would be a serious 
mistake as well.
  Then what about this comment: Under this bill, we insure all 
Americans. Wow, sounds really good. We are really going to provide 
protections for all Americans.
  First, I should ask: Are we disabusing Federal employees? Are we 
disabusing our families, Senators' families who are under the Federal 
employees health care plans? Do they have such a crummy deal that we 
need to change their plans? The truth is, we don't change Federal 
employees. We change State employees. I hope everybody knows that we 
are going to go out and tell every Governor, every State insurance 
commissioner: we are going to change your public employees' health care 
plans. We are going to mandate you do all these things. We exempted 
Federal employees. Whoops.
  You mean we are going to mandate all State employees, all teacher 
plans. We are going to mandate that all of those have to have what we 
have decided big government knows best. Yet for Federal employees, 
whoops, we exempted them. Organized labor, if they have a contract, we 
exempted them. Medicare, for we exempted them. Medicaid, low-income 
individuals, whoops, these don't apply to Medicaid. They don't apply to 
Medicare. They don't apply to Federal employees. They don't apply to 
union members, until their contract is renewed, maybe 5 years or so 
before that happens, if they have a long-term contract.
  There are a lot of little gaps. If this is so good for the private 
sector, why don't we put it on the public sector? Why don't we put it 
on the Senate? A Senator or their family members, can they sue the 
Government? If they are aggrieved, can you sue the Government? The 
answer is no. You still can't. Even if this bill passes, you can't sue 
the Government. Everybody else can sue their employer. You can't sue 
yours.
  I wonder if cost has anything to do with it. There are some things 
that just don't fit. It is fine for us to do this on all private sector 
plans, act as if that will only cost 37 cents a day. Maybe they said a 
week. The cost of health care right now for a family is about $7,000. 
At 4.2 percent of $7,000, figuring this up, you are talking about $300 
a year. Some people say: That is just cents; that is a dollar a week or 
something. It is not a dollar a week. It is $300 a year. Maybe that is 
about a dollar a day. That is about the equivalent of the tax cut that 
a lot of Americans are going to receive this year. We are just going to 
take it away. So we give a tax cut with one hand and we take it away 
with higher health care costs in the next by this bill? We can sure do 
that.
  Somebody said: I broke even for the year. What if you are one of the 
1 or 2 million people who lost your health care because your employer 
dropped it? You came out on the real bad end of the deal.
  This didn't cost you a dollar a day. This didn't cost you a Big Mac. 
This cost you your health care--probably to a person who needs health 
care the most. A lot of people who are in that low-income bracket, 
maybe working for a small restaurant in Montana, or someplace, and 
maybe their employer just started to provide health care, or wants to 
provide it, and they could not do it because they could not afford it, 
or because they are afraid of the liability.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. NICKLES. I ask unanimous consent for an additional 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. NICKLES. My point is, let's be very careful not to do damage to 
the system, not to do damage to a quality health care system that is 
far from perfect. Let's do some things to make sure that we increase 
the number of people who have insurance. Let's not do anything that 
would increase the number of uninsured. That is doing a very serious 
harm. If anybody says, hey, this bill has so much momentum, so let's 
pass it regardless of what it costs or what the consequences are, I beg 
to differ. It is worth spending a little bit of time to try to be at 
least responsible in this area. Let's not do damage. Let's not 
supersede the States. Let's not act as if the Federal Government knows 
best: Sorry States, we are going to take over the regulation of your 
health care system because we know better.
  Every person here who works in this system for very long knows that 
we do not know better. We do a crummy job. HCFA does a crummy job in 
administering Medicare. They are way behind even in enforcement and 
compliance with the Health Insurance Portability Act. Some States still 
aren't in compliance. HCFA is supposed to take over regulation of that 
act. If they haven't done that, how in the world can they do it for 
private care? They could not do it.
  Let's pass a positive bill. I stand ready to work with my colleagues 
on both sides of the aisle to do that. I am willing to spend a lot of 
time to work out a real bipartisan bill, one that has support by a 
majority of the Members on both sides. To say that this is a bipartisan 
bill when you have 3 Republicans sponsoring it and 40-some odd 
vigorously opposed to it is stretching it. That is not bipartisan. 
Let's have a bipartisan bill where you have a majority of both 
Democrats and Republicans supporting the bill. That is real bipartisan 
bill. Let's get a bill that President Bush will sign and become law, 
not just have campaign rhetoric. Let's make something happen that we 
can say we have passed a positive bill. I hope we can do so. It remains 
to be seen.
  There is going to have to be some willingness to compromise. Some 
people say we have compromised enough. This bill is not a compromise. 
This bill

[[Page 10999]]

is to the left of the Norwood-Dingell bill that we had last year. It is 
more expensive than that bill. The liability provisions are more 
intrusive and expensive than the bill Congressmen Norwood and Dingell 
and Senator Kennedy were pushing last year. It is not a compromise. It 
is a move in the wrong direction.
  Let's move toward the center. I have shown a willingness--maybe more 
than I should have--to compromise and try to come up with a positive 
bill. Let's work together as both Democrats and Republicans to come up 
with a bill that we can all be proud of, that President Bush can sign, 
and one that can become law.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Stabenow). The Senator from Massachusetts 
is recognized.
  Mr. KENNEDY. Madam President, I see my friend from Nevada on the 
floor. I wanted to make a few comments at the end of our first day of 
discussion.
  Madam President, I just hope those who are watching this debate have 
some understanding about the history of this legislation and what it 
really is all about. This legislation was first introduced 5 years ago. 
So that is why we hear on the Senate floor that our colleagues are glad 
to consider the legislation. We should be eager to consider this 
legislation because every day that we let go by there are more than 
50,000 people who are experiencing increased suffering and injury.
  There are 35,000 people today who didn't get the specialist they need 
in order to help them mend and get better. There are 12,000 patients 
who, tonight, will be taking prescription drugs that were not what the 
doctor ordered, but what the HMO is giving them.
  There are countless illustrations where the HMOs' decisions are being 
made by bureaucrats and bean counters in cities many miles away from 
the highly trained professional medical personnel who are trying to 
provide care. These health care professionals are making decisions that 
are being countered by accountants and bean counters who aim to enhance 
the bottom line of the HMOs.
  The real issue, when it is all said and done, is whether we are going 
to put into law some rather minimum standards that are already 
effective in Medicare and Medicaid. These fundamental standards have 
been recommended by the insurance commissioners, and unanimously by a 
bipartisan panel.
  I have listened carefully to a number of the statements that have 
been made out here recently. I did not detect any statements directly 
before the Senate that are critical of the proposal that has been 
advanced here. Yet there has been an objection made. I haven't heard 
them say: let us not have that protection for the people, or let's not 
give them the emergency care protection, let's not give them the 
specialty protection, let's not give them the clinical trials in there. 
Did anybody hear that during the course of the afternoon? I did not 
hear that.
  That is what this is about. That is what this is about. As we all 
know, people try to make the best case they can in opposition. And at 
the end of this first day, I find I am very much encouraged by the 
range of speakers who have spoken in favor of this legislation. I think 
there is increasing understanding by the American people, as in the 
debate here in the Senate, about the importance of this legislation.
  We know the HMOs are spending millions of dollars on distortion and 
misrepresentation. They ought to be spending that on patients' care, 
but they are not. We welcome the opportunity to get to the bill before 
us and then have a full debate on these matters. There are some who 
wonder whether this is a bipartisan bill. I was listening to my friend 
and colleague from Oklahoma say he really wonders whether this is a 
bipartisan bill. Well, Congressman Norwood, Congressman Ganske, and 63 
Republican Members of the House of Representatives certainly believe 
that it is a bipartisan bill. We are certainly proud of the Republicans 
who have supported this measure in the Senate. I think that gives us 
hope.
  I see the Senator from Nevada.
  Mr. REID. I want to ask the Senator a question when he has a minute.
  Mr. KENNEDY. At the end of this discussion today, we ought to realize 
that virtually every single medical organization--the American Medical 
Association, children's health, women's health, disability 
organizations, senior health organizations, and patient organizations--
is supporting this bipartisan proposal. There are but a handful of 
organizations that support our opponents' proposal, and virtually all 
of these organizations have also endorsed our bill. I put that out as a 
challenge. I hope those who are opposed to this bipartisan proposal are 
going to at least give us the credit for the very breadth of support 
that comes to this proposal. This comes from people who have studied 
this issue, worked this issue, and whose livelihood is affected by this 
issue in terms of the type of care they can provide for families all 
across this country.
  So, Madam President, I look forward to the debate.
  Mr. REID. Will the Senator yield for a question?
  Mr. KENNEDY. Yes.
  Mr. REID. I have been interested in the debate from the other side. 
Isn't it interesting that they are so concerned about the uninsured now 
with the Patients' Bill of Rights? As the Senator from Massachusetts 
will recall, we tried to do something about the uninsured, and no one 
was too interested then.
  Mr. KENNEDY. That is right.
  Mr. REID. In fact, it has gone up since then.
  I also ask the Senator if he recognizes that one of the things they 
are saying is HCFA is understaffed and would not be able to handle the 
new duties given to them by this legislation. Who has been cutting back 
their budget all these years, strangling these organizations so they 
cannot render appropriate care to the constituency they are delegated 
to serve?
  Has the Senator heard them complaining about understaffing?
  Mr. KENNEDY. The answer is yes, not only have I heard it, but I 
remember debating with my good friend from Oklahoma on the increase for 
HCFA, which was recommended by the General Accounting Office--that 
there would be an $11 million increase for HCFA to administer. He 
opposed that. He fought it tooth and nail. So they did not get the 
additional support. And then they complain when they are inadequately 
staffed to do the job.
  Thankfully, $2 million came out of the committee, even though we were 
unable to get anything on the floor. I said this to my friend, Senator 
Nickles, so I do not mind mentioning it here in his absence because--he 
is here now. He remembers his battle against giving additional funding 
to HCFA to implement the Kassebaum-Kennedy bill, and he took great 
relish in that opposition. The Senator from Nevada has pointed that 
out.
  I agree HCFA is a challenge because we have given them a great deal 
of additional responsibility in recent times. We have given them the 
CHIP program which is working in the States. They are doing a good job. 
They have Kassebaum-Kennedy, which is the portability legislation to 
help those who are disabled move around through jobs and not be 
discriminated against.
  I am reminded by my staff that the latest GAO report shows HCFA is 
doing a good job, and virtually every State is effectively 
administering the Mothers and Infants Protection Act and the Women's 
Cancer Act, which have been additional responsibilities for HCFA. They 
are doing a good job with that as well.
  I know it is easy to have whipping boys around here. HCFA is out 
there. We all can probably find instances in our own States where we 
wish they had made other decisions. That certainly should not be used 
as an excuse in opposition to this legislation.
  Mr. NICKLES. Will the Senator yield for a question?
  Mr. KENNEDY. Yes.
  Mr. NICKLES. Did I understand my friend and colleague to say the 
State of Massachusetts now complies with the Health Insurance 
Portability Act?
  Mr. KENNEDY. Not completely. What the State of Massachusetts complies 
with is the CHIP program. Massachusetts is the No. 1 State in the Union

[[Page 11000]]

with the lowest number of uninsured children. We have done an 
outstanding job with that. We still have work to do in other areas, 
such as HIPAA. Rather than take the spirit of the legislation that 
Senator Kassebaum believed to be the case--I had serious doubts about 
it--which was that there would not be a significant increase in 
premiums--we find a number of States, with the support of the insurance 
industry, have raised rates so high as to undermine the effectiveness 
of the program.
  Mr. NICKLES. So the State of Massachusetts still does not comply with 
the Health Insurance Portability Act we passed several years ago?
  Mr. KENNEDY. Parts of it they do; not all of it, I say to the 
Senator.
  Mr. NICKLES. I was just wondering.
  Mr. KENNEDY. That is fine. I am not going to get into whether the 
Republican Governors in my State were in opposition to enforcing it. 
That is not relevant here tonight.
  The point is, Mr. President, this legislation we have before us 
tonight protects children, women, and families. It is about doctors, 
nurses, and families making decisions that will not be overridden by 
bureaucrats and HMOs. That is what this legislation is about.
  We welcome the chance finally, finally, finally, to have it before 
the Senate. We look forward to the amendments to begin.
  I suggest the absence of a quorum.
  Mr. REID. Will the Senator withhold for a minute? While the Senator 
is here, I want to ask him another question. We talked about the 
uninsured, and we heard the other side talk about the shortage of 
staff. We have heard now a new one that has been going on all afternoon 
on the other side about States rights--how are the Governors going to 
put up with this terrible bill?
  I say to my friend from Massachusetts, isn't it interesting that no 
matter what happens, there are always excuses that we cannot pass a 
Patients' Bill of Rights? This has been going on for 5 years. We now 
have a bipartisan piece of legislation. I acknowledge the first 
legislation that came out was partisan, just the Democrats authored it, 
even though some Republicans supported it. Now we have bipartisan 
legislation. Senators McCain, Kennedy, and Edwards have written this 
legislation. They are the chief sponsors of it. But now it is still not 
good enough.
  Have we not heard in the 5 years we have already spent on this 
legislation about States rights? I ask the Senator from Massachusetts, 
do you not think we resolve these States rights problems with this 
legislation?
  Mr. KENNEDY. The Senator is exactly correct. Under the proposal 
before us, if there is substantial compliance, then the State 
provisions will rule the responsibility and liability provisions. That 
is why I was so interested in what the Senator from Oklahoma said about 
not being able to decide this in Washington, DC, because it is one size 
does not fit all; we have all learned that.
  That is not, of course, what this legislation does. It lets the 
States make the judgments about liability.
  I am very interested in the fact there are a number of Senators on 
the other side who do not want to permit their States to make the 
judgments with regard to liability issues. That is where the liability 
and negligence issues have been decided for over 200 years. The States 
have the knowledge about these issues, and transferring responsibility 
into the Federal system does not make a lot of sense. There are long 
delays, more distance, and it is more costly to the patients.
  We will have a full opportunity to debate those issues. I look 
forward to that debate.
  The Senator is quite correct, we have in this legislation, in the 
liability provisions, shown very special deference, as has been stated 
during the course of the day. Effectively 90 percent of these cases 
will be tried in State courts. Only 10 percent will actually be tried 
in Federal courts, and those will be limited to contract cases.
  The Senator is quite correct that we are relying upon the State 
system of justice, and that is the way it ought to be in this case. 
Senator McCain, Senator Edwards, and others involved in the development 
of that proposal found a good solution to it.
  Mr. REID. Our majority leader is in the Chamber now, and I want to 
make a brief statement and see if the Senator will agree with me.
  We heard this harangue that this is legislation that deals with 
lawyers. The fact is, as to the two States where there is a Patients' 
Bill of Rights, in 1 State there has been no litigation whatsoever; in 
the State of Texas, where the President is from, in 4 years there have 
been 17 lawsuits filed. That is about four a year. That does not sound 
outrageous to me. Does it to the Senator from Massachusetts?
  Mr. KENNEDY. The Senator is correct, and I will end with this note. 
We can speculate and theorize, but under these circumstances we ought 
to look at the record. We have 50 million Americans who have 
protections like what we are trying to provide for 170 million 
additional Americans in the liability provisions. Those who have 
protections are State and local employees and individuals who purchase 
insurance. They have the right to sue. There is absolutely no evidence 
that there has been a proliferation of lawsuits. There has not been any 
kind of abuse of the system, although those who are opposed to our 
legislation have alleged that.
  Second, there is absolutely no evidence that the costs for these 
various policies are in any way more costly than those without the 
liability provisions.
  I yield the floor.
  The PRESIDING OFFICER. The majority leader.
  Mr. DASCHLE. Madam President, as I indicated earlier today, Senator 
Lott and I and others have been discussing the manner under which we 
might be able to proceed to the bill. Earlier today, the unanimous 
consent request to proceed to the bill was not agreed to. We have been 
discussing the matter throughout the day. I think I am now prepared to 
propound a unanimous consent agreement that reflects an understanding 
about the way we might proceed later this week.
  I ask unanimous consent that at 9:30 on Thursday, June 21, the Senate 
vote on a motion to proceed to S. 1052, the Patients' Bill of Rights, 
and that the time between the completion of that vote and 12 noon be 
equally divided between the two leaders or their designees for debate 
only, and that at 12 noon the Republican manager or his designee be 
recognized to offer an amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DASCHLE. Madam President, it is my intention, then, to stay on 
the motion to proceed until the 9:30 time that we have now just agreed 
to on Thursday. Should there be any interest in accelerating that, we 
would certainly entertain it. However, at least now we know we will 
have a vote at 9:30, and that our Republican colleagues will be 
recognized to offer their first amendment at noon on Thursday.
  I appreciate very much the willingness of Senator Nickles and 
certainly the Republican leader and others who have been discussing 
this matter with me for the last couple of hours.
  Mr. REID. Could I ask the majority leader a question?
  Mr. DASCHLE. Yes.
  Mr. REID. In that we will start this debate this coming Thursday, is 
it still the intention of the leader to finish this bill before we take 
the Fourth of July recess.
  Mr. DASCHLE. There are two matters I think it is imperative we 
finish. This is the first of the two, I answer my colleague, the 
assistant Democratic leader; and the other is the supplemental. I think 
2 good weeks of debate on this issue is certainly warranted.
  We have had a debate on this matter in previous Congresses. I think 
we should be prepared to work late into the night Thursday night. We 
will be here on Friday. We will be in session on Friday, with 
amendments and votes. We will stay on the bill throughout next week. As 
I say, we will hopefully set at least a desirable time for final 
consideration Thursday of next week. Should we need Friday, we can 
certainly accommodate that particular schedule, and if we need to go 
longer

[[Page 11001]]

into the weekend to do it, my intention is to stay here until we 
complete our work.
  So, yes, I emphasize, as I have the last couple of days, that the 
Senate will complete this work, and hopefully the supplemental prior to 
the time we leave for the July recess.
  Mr. REID. We will work this Friday with votes, no votes on Monday, 
but we will work on Monday.
  Mr. DASCHLE. Correct.
  Mr. NICKLES. I heard the leader say we would be working on the 
legislation, considering amendments on Friday. Did the leader clarify 
whether or not there will be votes on Friday?
  Mr. DASCHLE. There will probably be votes on Friday but no votes on 
Monday.
  Mr. NICKLES. I thought I understood the majority leader to say we 
would hold votes ordered on Friday to Tuesday.
  Mr. DASCHLE. If I misspoke, I apologize. I intended to say, if I 
didn't say, we would have votes and amendments offered on Friday but 
that there wouldn't be any votes on Monday, but there would be 
amendments considered and hopefully we can make some arrangement to 
consider these votes as early on Tuesday morning as possible.
  Mr. NICKLES. Does the leader have any indication how late we will 
vote on Friday?
  Mr. DASCHLE. We certainly wouldn't have any votes scheduled after 
around 1 o'clock on Friday.
  Mr. NICKLES. To further clarify, I heard the intention that you would 
like to have this completed by the Fourth of July, but correct me if I 
am wrong. We spent a little over 2 weeks on the education bill just on 
the motion to proceed. I believe on the education bill in total we 
spent 6 or 7 weeks, and the education bill is a very important bill. 
Likewise, this is a very important bill. And this bill, like the 
education bill, in my opinion, needs to be amply reviewed.
  I don't know the period of time, but at least it is this Senator's 
intention we thoroughly consider what is in the language and how it can 
be improved. Some Members want to have significant changes so the bill 
can be signed. I am not sure if that can be done or completed in the 
time anticipated or hoped for. I appreciate the dilemma the majority 
leader is in and his desire to conclude it a week from Thursday or 
Friday, but I am not sure that is obtainable. We will see where we are 
next week.
  Mr. DASCHLE. I agree. I don't know whether it is attainable or not. 
But I do know this: We will continue to have votes into the recess 
period to accommodate the completion of this bill.
  My concern is, very frankly, we will come back after the Fourth of 
July recess--and I have talked to Senator Lott about this--with the 
realization we have 13 appropriations bills to do and a recognition 
that we have a very short period of time within which to do them. I 
know the administration wants to finish these appropriations bills and 
Senator Lott has indicated he, too, is concerned about the degree to 
which we will be able to adequately address all of the many 
complexities of these bills as they are presented to the Senate.
  I want to leave as much time as possible during that July block for 
the appropriations process to work its will, and it is for that reason, 
in particular, that I want to complete our work on this bill so we can 
accommodate that schedule.
  Again, I appreciate the desire of the Senator from Oklahoma to vet 
this and to debate it. I hope we can find a way to resolve it prior to 
the time we reach the end of next week.
  There will, therefore, be no votes today.



  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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