[Congressional Record (Bound Edition), Volume 147 (2001), Part 8]
[Senate]
[Pages 11721-11730]
[From the U.S. Government Publishing Office, www.gpo.gov]



                   BIPARTISAN PATIENT PROTECTION ACT

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will now resume consideration of S. 1052, which the clerk will 
report.
  The assistant legislative clerk read as follows:

       A bill (S. 1052) to amend the Public Health Service Act and 
     the Employee Retirement Income Security Act of 1974 to 
     protect consumers in managed care plans, and other health 
     coverage.

  Pending:

       Frist (for Grassley) motion to commit to the Committee on 
     Finance and the Committee on Health, Education, Labor, and 
     Pensions with instructions to report back not later than that 
     date that is 14 days after the date on which this motion is 
     adopted.
       Gramm amendment No. 810, to exempt employers from certain 
     causes of action.

  The ACTING PRESIDENT pro tempore. The Senator from North Carolina.
  Mr. EDWARDS. Mr. President, we come back today to resume debate on a 
very important bill to the people of this country, the Bipartisan 
Patient Protection Act, which we spent the better part of last week 
debating. It is an issue about which we have talked a great deal over 
the course of the last few years in the Senate. Let me discuss what the 
McCain-Edwards-Kennedy bill does and the reason it is important.
  Fundamentally, the reason we need this bill is that the law needs to 
be taken from being on the side of the HMOs and put on the side of 
patients and doctors so health care decisions in this country are, in 
fact, being made by people who are trained and have the experience to 
make them, those being the doctors, the health care providers, for the 
families who are so dramatically affected by those decisions.
  The purpose of this legislation is to provide certain substantive and 
enforceable rights to families and to children who need quality health 
care. For example, we provide specifically that if a member of a family 
or child needs to see a specialist, particularly outside the HMO plan, 
they can have access to that specialist.
  Second, we ensure that patients who need access to clinical trials 
will have access to those clinical trials. Clinical trials are often 
the places of last resort, places where the cutting edge of medicine is 
being researched, and we want to be sure patients who have exhausted 
alternatives and need access to clinical trials--all federally approved 
clinical trials, including FDA clinical trials--will have access. We 
specifically provide that benefit in this bill.
  Third, women should have access to an OB/GYN as their primary care 
provider. Many women rely on OB/GYNs as their primary care providers. 
We provide that right in our legislation.
  Fourth, we want to make sure patients have access to emergency room 
care. If a family suffers an emergency crisis and needs to go directly 
to the hospital, the nearest hospital, we don't want people to first 
have to call the HMO, call the 1-800 number and get permission to go to 
the nearest emergency room. There have been many horror stories of 
families that could not go to the nearest emergency room because they 
couldn't afford it and the HMO would not pay for it. We want to be sure 
families have that right.
  With this group of rights we wish to provide for patients and 
families across the country, we want to make sure every individual and 
family who is covered by health insurance, covered by

[[Page 11722]]

HMO coverage, is in fact covered by this legislation. Our bill does 
that.
  These rights do not mean anything unless they are enforceable, unless 
they have the force of law behind them. Without the force of law behind 
them, they are not a Patients' Bill of Rights; they are a patients' 
bill of suggestions. We want to provide a meaningful way for patients 
to receive the rights we are giving.
  We provide several stages. If the HMO overrules the doctor and says, 
whatever your doctor says, I don't believe that treatment, that care, 
is needed, the first step is that the patient can then go through an 
internal review within the HMO to try to get that decision reversed, 
hopefully finding a group of people within the HMO who are willing to 
be more objective and support the decision the doctor has provided. If 
that is unsuccessful, the second stage is an independent review 
process, a panel of physicians with expertise who can look at the 
medical situation and decide whether or not that care should have been 
provided in the first instance. Last, if the patient has been injured 
and if these other areas have been tried, including the appeals 
process, the patient can take the HMO to court.
  There are several stages: First, the HMO hopefully will make the 
right decision, in which case none of this will be necessary; second, 
if they don't, an internal review within the HMO to reverse the 
decision that has already been made; third, if that is unsuccessful, to 
go to an independent group of doctors who can reverse the decision of 
the HMO. That is independent, meaning not connected to the patient, not 
connected to the treating doctor, not connected to the HMO. So you have 
an impartial group that can reverse the decision. All of that occurs 
before a case goes to court.
  If in fact it becomes necessary for the case to go to court, we 
simply want the HMOs--that for many years now have been privileged 
citizens that, like diplomats, get a kind of immunity in this country--
we want the HMOs treated just as everybody else.
  If they are going to reverse or overrule decisions that are being 
made by doctors, we want them to be treated exactly the way the doctors 
are treated; that is, if they make a medical judgment, reverse the 
decision of a doctor, their case will go to the same court as the 
doctor's case. Their case would be subject to the same State court 
limitations on recoveries as is the doctor's. So we leave that issue to 
State law.
  But the bottom line principle is, No. 1, HMOs should not continue to 
be privileged citizens. They ought to be treated as all the rest of us. 
There is no reason in the world that they are entitled to be treated 
better than everybody else.
  No. 2, if they are going to be in the business of reversing doctors, 
overruling doctors, making health care decisions, then they ought to be 
treated exactly the same way the doctors are treated.
  Our legislation providing real and meaningful rights, providing a way 
to enforce those rights, and as a matter of last resort providing for 
patients to go to court if in fact they have been hurt and they have no 
other choice, is supported, we believe, by a majority of this body, we 
believe a majority of the House of Representatives, and importantly, by 
the American Medical Association, and virtually every health care group 
in America.
  There is a reason for that. It is because the people who have been 
fighting for patient protection, the people who have been fighting for 
HMO reform to change this system we have in this country and to give 
patients more power to put the law on their side, are supporting our 
bill because we have real rights that are enforceable. It is a bill 
where the patient, along with the patient's doctor, gets to make most 
health care decisions. They have more control over their health care 
decisions. If the HMO does not do the right thing in the beginning, 
they have a way to do something about it to get those decisions 
overruled or changed.
  There has been some discussion over the course of the last 2 days on 
the pending amendment, the issue of employer liability. We start, I 
think, in principle, in agreement with the President of the United 
States. The President said in his written principles that he did not 
want employers to be held responsible in litigation--I am paraphrasing 
now--unless they actually made individual health care decisions. That 
is what our bill does.
  The reason for that is very simple. No. 1, we want to protect 
employers. In principle, we agree about that. No. 2, if an employer, in 
fact, overrules an HMO and stands in its shoes, or overrules a doctor, 
then and only then under our bill can they be held responsible, or if 
they overrule the HMO with respect to how the plan applies. Basically, 
what we have done is we have put a wall around employers unless they 
step into the shoes of HMOs and start making health care decisions.
  Issues have been raised. They have been raised in this debate by 
Senator Gramm with his amendment. Issues have been raised by employers 
around the country with whom we have been talking and with whom we will 
continue to talk. As a result of those discussions, consistent with the 
principle that both the President of the United States and we have 
established, we have worked and we have had meetings, I will tell my 
colleagues, over the last few days. On Friday, for example, I met with 
a number of Senators from both sides of the aisle, Democrat and 
Republican, to try to address the language, to try to craft language 
that will deal with concerns that people have about this issue--a 
bipartisan compromise on this issue. We are continuing to work on that 
compromise. There are a number of Senators involved. We will continue 
to work on it.
  But the amendment that is pending is at the extreme. It is 
inconsistent with the principles established by the President of the 
United States; it is inconsistent with our legislation, which is 
supported by virtually every health care group and consumer group in 
America. It is more extreme than the Norwood-Dingell bill that passed 
the House of Representatives last year. It is out there at an extreme.
  We believe there is a better, more reasonable middle-of-the-road 
approach that will provide maximum protection to employers and at the 
same time not completely eliminate patients' rights. That is what we 
are working on. We are working on crafting language.
  This is one of the issues on which we agree in principle with the 
President; that is, we start with the idea we would like to see 
employers protected unless they are overruling doctors and making 
individual health care decisions. Of course, the vast majority of 
employers in this country never do that. They turn over the handling of 
the day-to-day operation of their health care plan to the people they 
are paying and leave it in their hands. When they do that, they will 
not be exposed to responsibility.
  The bottom line is, what we have done in our legislation is 
consistent with what the President's principle provides. Even with 
that, since additional concerns have been raised about employers, since 
it is an issue about which we agree as a matter of principle, we are 
continuing to work with both Republican and Democratic Senators to 
craft a compromise which we hope a vast majority of the Members of this 
Senate will be able to support when we propose it.
  That issue, the issue of employer liability, as I indicated, is an 
issue on which I think we have substantial agreement. It is an issue I 
think we can resolve to the satisfaction of a majority of the Senate. 
We believe our bill as presently constructed does that. But in the 
spirit of trying to have strong bipartisan support for this bill, we 
have continued to work on it, and we will continue to do so.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Chair recognizes the 
distinguished Senator from New Hampshire.
  Mr. GREGG. Mr. President, the Senator from North Carolina has 
outlined and characterized the situation. I would like to speak to some 
of the points he made and then specifically speak to a variety of 
issues.
  To begin with, much of what the Senator said we agree with, I agree 
with,

[[Page 11723]]

and I think everybody agrees. There is no issue over access to 
emergency rooms. There is no issue over access to OB/GYNs. All those 
issues have been agreed to. They were agreed to last year. They were 
agreed to this year.
  There is no issue about the need to make sure that when someone is 
injured by their HMO or their provider or their insurer, they have 
recourse. There is no issue about that. Everybody is in agreement.
  The issues come down in the classic way, in the classic line, to 
``The devil is in the details.'' The bill as brought forth by Senator 
McCain, Senator Edwards, and Senator Kennedy is essentially a ``let's 
go to court'' bill. It is not a Patients' Bill of Rights bill. I have 
referred to it as a ``lawyers who want to be millionaires bill,'' and I 
have referred to it in other terms, but essentially it is a lawyers' 
rights bill. It creates an incredible number of new opportunities to 
bring lawsuits.
  We just happened to go through and outline some of these and this 
chart shows them. First, you can sue your employer. Under this proposal 
as it is structured. That should not be our goal. Our goal should not 
be to create lawsuits against the employers in the country. I noticed 
my colleague always used the term ``health maintenance'' organization, 
HMO. It is a pejorative--or it has become pejorative. I never heard him 
use the word ``employer.'' Yet for the 56 million people who are 
covered by self-insured plans--plans where the employer is the one who 
gets sued--the fact is, you can sue the employer. What is the practical 
effect of that? We know the practical effect is a lot of employers are 
going to drop their insurance so the people who have insurance today 
will not have it tomorrow if this bill is passed because the employers 
are going to say: Hey, I am not in the business of being sued for 
health care problems. If a doctor makes a mistake, I don't want to be 
sued. If I make a product and make a mistake, I understand I will be 
sued, but I don't want to be sued if a doctor or nurse or pharmacist or 
hospital makes a mistake. I don't want to be put out of business for 
that.
  We are talking about mom-and-pop employers. We are talking about 
employers who have 10, 15, 20 employees.
  The average cost of a malpractice suit is $77,000. So you have a 
situation where their whole profit for the year may be wiped out. Maybe 
you are running a small grocery store or a restaurant or a gas station. 
You will be wiped out because you will have to defend the suit even 
though you had nothing to do with it as an employer.
  This bill as structured has massive liability for employers. They can 
be sued in the Federal court or in the State court, which is really 
ironic.
  Brand new causes of action: There are almost 200 new causes of action 
under this bill for ministerial activities under which an employer may 
make a mistake. The damages are unlimited under those causes of action. 
It is not $100 or $200. It is not a fine from the Labor Department as 
it is under present law or a fine from HHS as is under present law. 
There is a new private cause of action that accrues against the 
employer for not sending the proper forms or for not informing you or 
for not sending you the right magazine. For anything that is under 
HIPAA or anything under COBRA or anything that is under ERISA, they are 
suddenly liable as the employer under this bill. They are brought in 
under this bill, and they are liable. There are 200 new causes of 
action.
  The damages under this bill are unbelievable. Obviously, it is a bill 
written by the trial lawyers because there are no limitations on 
economic, noneconomic, or punitive damages. By putting on a new title, 
they are trying to go around with this classy, misty, ``special 
assessment'' In Federal court, there is a limit of $100 million in 
punitive damages. Of course, they do not tell you that you can go to 
State courts, and in most States there is no limit on damages. This new 
``special assessment'' is just window dressing.
  Punitive damages are uncapped, economic damages are uncapped, and 
noneconomic damages are uncapped.
  This is a lawyer's fantasy world. It is similar to a lawyer walking 
into Disney World to pick their forum, their most interesting forum, 
State or Federal. They can pick hundreds of suits. They can pick 
unlimited damages--economic, noneconomic.
  You are going to see employers dropping their health insurance like 
hotcakes as a result of this; you can go straight to court.
  I heard the Senator from North Carolina say: Internal appeal process, 
you have an external appeal process. Then, under very similar certain 
circumstances you can go to court. Hey, with this bill you can go 
straight to court.
  There isn't a good lawyer in this country who would not skip the 
external appeals process the way this bill is structured. This is 
probably the single biggest problem this bill has because it is the 
external appeals that will settle most of the differences a patient has 
with their employer--whether it is an employer or an HMO--because, if 
you have a good external appeals process with medical expertise and 
independent resources, and if you require the two parties to pursue 
that external appeal, then at the end of the external appeal the odds 
are very good that the resolution is going to be fair, the parties are 
going to accept it, and you won't have a court action. I suspect court 
actions would be rare with a good external appeals process.
  A good external appeals process is one such as in the Nickles bill 
last year or such as is in the Frist-Jeffords bipartisan bill. It is a 
tripartisan bill. It is tripartisan because there is an independent, a 
Republican, and a Democrat on the Frist-Breaux-Jeffords bill, which 
essentially says you can skip the external appeals and go to court. But 
all you get when you do that is an opportunity to get your problem 
taken care of. You don't get awards. You don't get awards for going to 
court. You essentially get taken care of, which is appropriate if you 
have a situation where the injury is immediate and the harm is 
continuing. You should be able to go to court during the external 
appeals process and get that taken care of, if it is necessary. That is 
the way the Frist-Breaux bill is written.
  The way their bill is structured, you go to court, period. You don't 
even bother with external appeals. You allege your harm. They claim it 
is not alleged anymore. But, essentially, it is alleged, and you are in 
court. You get your damage claim going; you start suing like crazy. You 
pick the forum that is best, the jury that is the best, the courts that 
are best, and the best States, and you are off and running in the court 
system.
  That is the way this bill is intentionally structured. It is not an 
unintentional event. This bill is intentionally structured in order to 
get more lawsuits, and in order to get more opportunities to create 
lawsuits. It couldn't be done for any other reason.
  When you look at this list, ``statute of limitation''--what statute 
of limitation? For all intents and purposes, they have no statute of 
limitation under this bill because you can essentially bring a cause of 
action after 180 days. The external appeals process is eliminated. All 
you have to do is claim that you have just found the injury and you are 
off and running again. Ten years after the event, the statute of 
limitation is almost irrelevant under this bill.
  As I mentioned, forum shopping, picking your forum, is a classic 
love-fest for plaintiff's lawyers.
  The first thing you are taught in the trial practice courses when you 
go to law school is forum shopping. That is black letter education in 
law school. I was there. I know. I even passed that course. I think I 
put down ``forum shopping'' on every answer.
  This bill puts it right at the top of the list, as you might expect. 
Two bites at the apple: You can sue in both courts. They are not happy 
enough with forum shopping.
  The avarice of the trial bar in designing this bill is almost 
humorous it is so aggressive. They weren't happy to just put in forum 
shopping, which doesn't exist today. They had to go with simultaneous 
forums. You can bring the lawsuit in both courts. You can go to State 
and Federal at the same time. It is lawsuit Disney World.

[[Page 11724]]

  Of course, you can bring multiple lawsuits. I sue, you sue, and 
everybody sues under this bill.
  You can have class action suits, which is something you can't have 
under present law. There is a very good reason for that under federal 
law.
  What is the practical effect? This is the bottom line. With all of 
these lawsuits, you end up with a bill that, if it were to pass, 
according to OMB's estimates, would cause 4 million to 5 million people 
to become uninsured. According to the CBO estimate, it is 1.3 million. 
Either way, it is a huge number of people.
  They don't get patients' rights under this bill. They get no 
insurance under this bill because their employers are not going to be 
able to afford or justify giving that benefit in exchange for all the 
lawsuits to which they would be subjected.
  What is going to happen in the real world? The bigger employers will 
say: All right, I know you need health insurance, but we can't manage 
it anymore because we just can't take the adverse risk of all of these 
lawsuits. So we are going to give you some money as one of your 
compensation functions, and you can take that money and go into the 
market and buy your insurance.
  The only problem is that the employer's insurance plan is inevitably 
going to have been much better--much better for the employees than what 
they can go out and buy with the dollars or the voucher they are given 
by the employer because the employees will be out there with one 
voucher trying to buy their insurance in an open market, and they won't 
have a whole lot of market force behind them. But an employer that 
maybe employs 50, 100, or even 15,000, 20,000, or maybe even 50,000 
people, has huge market clout. They can get better rates, and therefore 
they can get better options. They can maybe get eyeglass options or 
drug options or a variety of other options that the employees can't get 
with the voucher they are going to be given by large employers.
  A lot of people may not lose their insurance altogether, but the 
quality of their insurance under this bill is going to drop radically.
  Then there are the other people who do not use employers. They are 
self-insurers who do not have a lot of employees. There are 100, 50, 
35, or 20 people. These employers are going to say to their employees: 
We are sorry; we can't afford it at all. We can't afford it at all.
  You are going to have a lot of people without any insurance, period.
  That is the practical effect of this. There are negotiations going 
on. There are ways to fix this. They are not radical. They are not 
reactionary. They are reasonable. In fact, they are so reasonable that 
they have been put forward by Senators Frist, Breaux, and Jeffords. As 
I said, it is a tripartisan bill. They have a liability section which 
makes sense. It is not just limited to designated decisionmakers. It is 
a much broader term than that. It goes to this whole issue of external 
appeal. It goes to the issue of punitive damages and to the issue of 
forum shopping. It goes to the issue of bringing in all these causative 
causes of actions under COBRA, ERISA, and HIPAA which are not 
appropriate in this bill.
  So if you want to fix this bill--I hear the other side saying that on 
occasion; I am not sure if they really mean it. But if they want to 
really fix the bill, just take the Frist-Breaux-Jeffords language en 
bloc in the area of liability and put it in the bill. The bill would be 
fixed in the area of liability and external appeals. Do we see them 
doing that? No.
  There was some discussion in this Chamber earlier about this pending 
amendment by the Senator from Texas, who I see is in the Chamber. The 
discussion from the other side essentially was: OK, you say you don't 
want employers to be liable. Texas law does not allow employers to be 
liable, so let's adopt the Texas law.
  Why was that amendment offered? Because the other side of the aisle 
specifically said they wanted to have a bill that was almost identical 
to Texas law. In fact, the Senator from North Carolina used those 
terms. He said: This bill, as structured, is almost identical to the 
Texas law. So the Senator from Texas said: If it is almost identical to 
Texas law, let's just put the Texas law language in, which is what his 
amendment does; it puts the Texas law language in. And it is pretty 
reasonable. It is the Texas language. So now the bill would not be 
almost identical; it would be identical.
  Since a number of the Members on the other side of the aisle said: We 
want the Texas law, we want what President Bush had in Texas, the Texas 
law is acceptable and what President Bush had in Texas, the Senator 
from Texas said: OK, we will put the Texas law in as an amendment. If 
the two are the same--and the two are the same--everybody will vote for 
this. We will not have to have a rollcall vote on it; we can have a 
voice vote.
  I think you will find it is opposed by Senators on the other side of 
the aisle. The simple fact is, their law does not exempt employers, as 
does the Texas law. Their law does not exempt the lawyers. Theirs makes 
the employers, carte blanche, liable and opens up all kinds of 
opportunities to sue them, without caps, with punitive damages, and in 
whatever form they want to choose. The Texas law does not allow that to 
happen. The Texas law does protect the employer and does limit damages.
  So I look forward to the vote on this amendment. I think it will test 
whether or not the statements coming from the other side of the aisle--
that they want the Texas law--are backed up by a vote.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Thomas). The distinguished Senator from 
North Carolina.
  Mr. EDWARDS. Let me respond briefly to some of the comments made by 
my colleague from New Hampshire.
  This is the same tired old rhetoric the HMOs have been trotting out 
for years now to keep any kind of reform from occurring. They are now, 
by the way, spending many millions of dollars on lobbyists and public 
relations campaigns, and on television, to try to defeat any kind of 
reform.
  These are the same arguments we have heard before. We need to get 
past that. We need to get to talking about providing real protections 
and real rights for patients. That is what Senator McCain and I did. We 
worked for many months on this legislation to address many of the 
issues about which my colleague has just talked but nothing ever 
changes. No matter what we bring to this Chamber by way of patient 
protection, we hear these same arguments made. Let me speak to just a 
couple of those arguments briefly.
  First, on the issue of forum shopping, cases going to State court, I 
say to my colleague from New Hampshire, he should see what the Chief 
Justice of the U.S. Supreme Court, by way of the Judicial Conference of 
the United States, which the Chief Justice heads, said about this 
issue. He specifically said in a written letter dated March 3, 2000:

       The Judicial Conference urges Congress to provide that, in 
     any managed care legislation agreed upon, the state courts be 
     the primary forum for the resolution of personal injury 
     claims arising from the denial of health care benefits. . . .

  What we have done in our bill is exactly what the Judicial Conference 
of the United States has said should be done. We have done what the 
American Bar Association says should be done; we have done what the 
Attorneys General of the United States say should be done; and we have 
done what the U.S. Supreme Court said, in the Pegram decision, should 
be done.
  I know it is a wild idea that Senator McCain and I have decided to 
adopt the consensus of every objective group in America on this 
subject, including the U.S. Supreme Court. I am telling you, they would 
complain no matter what we did, because this is the rhetoric of 
antireform. That is what this argument is about.
  Ultimately, this debate evolves into a very simple question: Are we 
going to do something about this problem or are we going to continue to 
kill reform legislation? We have to make a decision about whether we 
are going to make progress or whether we are going to obstruct 
progress.

[[Page 11725]]

  Another issue my colleague raises is the issue of caps and whether 
there are limitations on recovery. He had his chart, which is not here 
anymore, that had lots of information about unlimited lawsuits and that 
there were to limitations. I sy to my colleague, what we have done, 
that he does not like, is we have treated HMOs exactly the same way as 
every doctor, every hospital, and everybody else in America is treated.
  All of the rest of us, everyone listening to this debate, whether on 
television or in person, is treated exactly the way we treat HMOs in 
this bill. They do not like that. HMOs, I am sure, would like to 
maintain their privileged status. That is why they are spending 
millions of dollars to try to defeat our legislation with respect to 
the specific issue of employers.
  I say to my colleague, the President of the United States--the 
Republican President of the United States--and I am reading from his 
written principle--says:

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

  Mr. WARNER. Mr. President, will the Senator entertain a question on 
that point?
  Mr. EDWARDS. I will, yes.
  Mr. WARNER. Having had some modest comparison to my distinguished 
colleague in the trial courtroom, I know that is a key phrase. I am not 
sure just how it is going to end up, or not end up, in the legislation, 
depending on the amendments, but I think it would be helpful to have 
some legislative history on what the meaning is of an employer 
participating in the medical decisions of an employee.
  Let's take the example of a small employer. Most often, that employer 
has a great deal of personal contact with his employees, has a great 
deal of empathy for the employee or his family stricken with some type 
of problem.
  Suppose I were an employer, and my longtime secretary appears to be 
ill, and I say: I think we had better go to the hospital. So I drive 
her to the hospital. Maybe some other employee in the firm drives her. 
Then, while in the hospital, I went to call on her, and somehow I am 
involved in the discussion as to whether or not an operation should be 
performed.
  What are the circumstances by which the employer could be drawn into 
this type of litigation? Depending on how the bill is finally written 
and the law is enacted, it could well be that an employer henceforth 
just almost has to sever all personal relationships with employees for 
fear of getting drawn into a legal case.
  I say to the Senator, it would be helpful, based on his experience, 
if he would elaborate on that issue and, indeed, point to other 
references in the debate or elsewhere so that we might have a 
legislative history to guide those who are going to follow this law in 
the future.
  Mr. EDWARDS. I thank the Senator for his question. I think the 
Senator is concerned about some of the same issues others have raised 
and on which we have been working. I think it is a legitimate question.
  I say to the Senator, what we did in our bill is have language that 
was intended to protect employers unless they stepped into the shoes of 
the HMO and actually made a medical decision essentially overruling the 
HMO. That was conceptually what we did in our bill, and that is 
conceptually what the President says in his principle.
  But the practical question which the Senator asked is a legitimate 
question. That is the reason, I say to the Senator, we are working with 
our colleagues across the aisle--Republicans and Democrats--to try to 
craft appropriate language, because we do not want to create a 
disincentive. We want to protect employers, particularly the small 
business employers about which the Senator is talking. But I say to the 
Senator, it is not just the small employers.
  Although they are a very small part of the population of employers in 
this country, we also have self-insured, self-administered plans where 
basically the employer is the only entity managing the health care of 
its employees.
  What we want to do is try to find a way to provide some protection 
also for those employers. Those are the kinds of issues--the question 
the Senator asked, which is a very fair question, and the issue I just 
raised of the self-employed, self administered plan--those are the 
kinds of issues we are trying to address without leaving the patient or 
the employee completely out in the cold.
  I do believe there is a way to do that. It requires some work and 
creativity, but it can be done. Our goal in this process is the same. 
We want employers to be protected; we want to provide maximum 
protection actually for the employers without completely leaving the 
employee out, for example.
  The problem with completely carving out the employer, as this 
amendment does, is that in some cases you may have an employer, a large 
employer, where they are a self-insured and a self-administered plan. 
Let's say a bookkeeper says, we are not paying for the test for the 
child of an employee; that child suffers some serious consequence from 
that. Under this carve-out, there is nowhere that child could go 
because there is no HMO. It is a self-insured, self-administered plan. 
Under the President's language, which says ``only employers who retain 
responsibility for and make final medical decisions should be subject 
to suit,'' there would be somewhere for that child of that employee to 
go.
  What we are trying to do--and I think it can be done--is to fashion 
language that provides maximum protection for the employer but at the 
same time doesn't leave that small group of employees that would be 
impacted by it completely out in the cold.
  Mr. WARNER. Mr. President, I thank my colleague
  Let's talk about a large employer. I am simply the manager of a 
section with maybe seven or eight employees, but they are good friends. 
They have worked with me for a very long time. One suddenly becomes 
ill. Were I to drive that person to the hospital and in any other way 
participate in trying to alleviate the pain and suffering of the 
moment, would that then subject my overall firm to liability by virtue 
of my actions, say, as a good Samaritan?
  Mr. EDWARDS. That kind of unintended consequence is exactly what we 
want to avoid. The issues the Senator from Virginia is discussing in 
this colloquy are the same kinds of issues that have been addressed by 
employers to us and my colleagues who are working to try to fashion 
language to solve the problem the Senator raises and the problem raised 
in the earlier example and to make sure, for an employer that has 
improperly been brought into a case--if they have been brought into a 
case and they don't belong in the case, we provide a mechanism, a 
procedural mechanism that they can get out of the case so they don't 
get dragged through a court proceeding when they don't belong there.
  Those are the kinds of issues that need to be addressed, that we are 
attempting to address, and I believe we will find a solution to, 
consistent with the principle the President has laid out and the 
principle in which we believe.
  Mr. WARNER. I thank my colleague.
  Mr. EDWARDS. Mr. President, what we have done in the McCain-Edwards-
Kennedy bill is structured a system that, unlike my colleague 
describes, is actually intended to avoid cases going to court. If we 
didn't want to avoid cases going to court, we would not first have an 
internal appeal and then have an independent external appeal. What we 
have learned from experience is the majority of cases get resolved. In 
Texas, California, and in Georgia, for the three examples, when that 
system is in place, most cases get decided by that system. I think in 
Georgia and California there actually hasn't been a single lawsuit 
filed. That is good because the purpose is to get treatment to 
patients.
  But there will be rare cases where the HMO does something 
inappropriate, wrongful, and, as a result, somebody gets hurt. It is 
not right, under our system of justice, for a family to be responsible 
for the rest of their lives to pay for that. If the HMO is responsible, 
they should be held accountable, just as all the rest of us.

[[Page 11726]]

That is the reason we have set up this system the way it is.
  What we have ultimately is real rights that are enforceable through 
an internal review, then an external review, and then, if necessary, if 
someone gets hurt, the case can go to court. And the cases that go to 
State court, where the HMO is treated just as everybody else, are 
subject to whatever State laws and caps apply to those kinds of cases. 
So there are, in fact, limitations. The rhetoric that there are no 
limitations is, in fact, not true.
  The majority of States in this country have limitations on 
recoveries. And as the judicial conference suggested, as the American 
Bar Association suggested, as the State attorneys general suggested, we 
have sent those cases to State court, to a place where there are 
limitations on recovery but where we treat the HMOs not as privileged 
citizens anymore but just as all the rest of us. To Senator McCain and 
me, as we worked on this, it seemed the fair, right, and just thing to 
do--that HMOs get treated the same as everybody else. If they are going 
to make medical decisions, they ought to be treated as the doctors whom 
they are overruling. That is exactly what the structure of this bill 
is.
  My colleague said something that was incorrect a few minutes ago. He 
said that all you had to do to avoid the appeals process and go 
straight to court was to allege that you had irreparable harm. That is 
not the case. That word does not appear in our legislation. But if, in 
fact, someone has died as a result of what an HMO has done to them, we 
thought it was a little unreasonable to make the family of someone who 
has already died go through an appeal before they could go to court. 
There is not much reason for them to be exhausting administrative 
remedies. We think we have a commonsense approach, one that works.
  The model of California, Georgia, and Texas, and other States shows 
that these laws work. They give patients rights. They don't result in a 
lot of litigation. In fact, in those three States, in spite of the 
rhetorical arguments being made that people will lose their health 
insurance, in those three States, while those laws have been in place 
with real patient protection, the number of uninsured has gone down, 
not up. So at least the evidence, according to the three models we have 
used, is that people think this system works. Lawsuits are not created 
by it. In fact, they are avoided.
  Third, the number of uninsured, at least in those three 
jurisdictions, has not gone up. In fact, it has gone down.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. GRAMM. Mr. President, I have to say that when I listen to the 
Senator from North Carolina, I almost always agree with what he says, 
but when I read his bill, A, I never find it does what he says, and, B, 
I never agree with it.
  First of all, when the Senator chastised some for saying his bill 
simply required that there be an allegation in order to escape the 
external review process, that was not a figment of the imagination of 
critics or paid lobbyists or special interest groups, as if special 
interest groups and the trial lawyers don't also support the Senator's 
bill, as if only special interests oppose it and none supports it. But 
no one made that up. That is a word on page 149 of the previous version 
of their bill.
  In fact, I raised this very issue over and over again, and the 
Senator and his cosponsors changed their bill to drop the word. This 
was not a word made up by anybody. This was a word that appeared in the 
original bill.
  Now as for treating HMOs like everybody else, I find it a strange 
assertion that they are treated like doctors and hospitals. Let me 
explain why. First of all, I refer to the bill that is before us, the 
McCain-Edwards-Kennedy bill, and specifically to the section related to 
suing employers: ``Cause of action against employers.''
  I begin with the assertion that this bill treats doctors and 
hospitals exactly the way it does HMOs.
  In fact, the Senator says, by putting these cases back in State 
court, they are treated the same. Surely, the Senator must be aware 
that under State law, for example, in Texas and in California there are 
limits on liability for doctors and for hospitals, but there are no 
limited liabilities for health plans or employers under State law 
either in Texas or in California.
  So to assert that by putting these cases that arise under Federal 
law--ERISA is a Federal law--by putting them back into the States they 
are being treated exactly the same as doctors and hospitals is 
factually inaccurate, because State laws often do impose liability 
limits on doctors and hospitals, but almost never do they impose 
liability limits on employers, or insurance companies, or HMOs.
  Finally, so I can get on to my point, let me say that when the 
Senator says his bill treats doctors and hospitals exactly the same as 
it treats HMOs, I find that an interesting assertion. I turn to page 
148 of his bill and I see an exclusion. In fact, on line 12, 148, it 
says: ``Exclusion of Physicians and Other Health Care Professionals.'' 
This is in the section on liability for employers. I will go into that 
in some detail.
  I want to make this point. At the end of this section on liability 
for employers, it has two specific carve-outs where entities are 
treated very differently from employers. The first entity on line 12 is 
physicians: ``No treating physician or other treating health care 
professional of the participant or beneficiary, and no person acting 
under the direction of such a physician or health care professional, 
shall be liable under paragraph (1),'' which is the paragraph related 
to employer liability.
  And then on page 149, there is an exclusion for hospitals. It says: 
``No treating hospital of the participant or beneficiary shall be 
liable under paragraph (1).''
  So on page 148 it exempts the treating physician. On page 149, it 
exempts the hospital from the same liability section for the employer. 
But then, to just be absolutely certain that no one is confused, let's 
come down to the bottom of page 149 and see if employers are treated 
the same and HMOs are treated the same as doctors and hospitals. It 
says: ``Nothing in paragraph (6),'' which is the exclusion for 
physicians, ``or (7),'' which is the exclusion for hospitals, ``shall 
be construed to limit the liability . . . of the plan, the plan 
sponsor, or any health insurance issuer,'' and the plan sponsor, of 
course, is the employer.
  So to say that this bill treats doctors and hospitals the same way it 
does insurance companies, HMOs, and employers, sounds very good and 
reassuring. The problem is that it is not true.
  Now let me begin and make the point I want to make. First of all, I 
send three letters to the desk and ask they be printed in the Record.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:

                                               National Federation


                                      of Independent Business,

                                    Washington, DC, June 22, 2001.
     Hon. Phil Gramm,
     U.S. Senate,
     Washington, DC.
       Dear Senator Gramm: On behalf of the 600,000 small-business 
     owners who are members of the National Federation of 
     Independent Business (NFIB), I am writing to express our 
     strong support for your amendment to provide an employer 
     liability exemption modeled after the Texas managed care 
     legislation. As you are well aware, groups on both sides of 
     the issue agree that under Texas law, employers are 
     explicitly exempt from liability. We will work diligently to 
     ensure that members on both sides of the aisle support your 
     amendment--especially those who specifically stated that they 
     do not want employers to be held liable for voluntarily 
     offering health care to their employees.
       Small-business owners are already being forced to drop 
     health-care as a result of the high cost of premiums; of the 
     43 million uninsured Americans, 26 million (61%) are small 
     business owners and their employees. The most recent Kennedy/
     McCain/Edwards proposal actually increases the likelihood 
     that more small employers and their families will join the 
     ranks of the uninsured. For the first time, it would 
     authorize several new bases for lawsuits that could be 
     initiated under federal law for unlimited damages. Employers 
     could be sued in both state and federal courts. Their 
     proposal does not preclude any employer from being named as a 
     defendant in the growing number of cases that are now being 
     filed as class action lawsuits.

[[Page 11727]]

       If Congress enacts any legislation that exposes employers 
     to unfair lawsuits, many small-business owners would stop 
     offering health insurance altogether for fear that one 
     lawsuit could wipe out their business. Even if employers are 
     shielded from lawsuits, imposing liability on health plans 
     would lead to higher premiums, which would then be passed on 
     to employers and their families. Small-business owners and 
     their employees simply cannot afford to supplement the income 
     of wealthy trial attorneys. Fifty-seven percent of small 
     businesses said in a recent poll that they would drop 
     coverage rather than risk a suit that will undoubtedly 
     threaten the livelihood of their business. It's easy to see 
     why, given the fact that the average cost for a business to 
     defend itself from a lawsuit is $100,000.
       Again, I commend you for your continued support on behalf 
     of small-business owners and their employees. We look forward 
     to working with you to ensure that employers are not 
     penalized for voluntarily offering health-care benefits to 
     their employees.
           Sincerely,
                                                       Dan Danner,
     Senior Vice President.
                                  ____

                                         U.S. Chamber of Commerce,


                               Congressional & Public Affairs,

                                    Washington, DC, June 22, 2001.
     To the Members of the U.S. Senate:
       As the world's largest business federation representing 
     more than three million employers and organizations of every 
     size, sector and region, the U.S. Chamber of Commerce is 
     greatly concerned about the liability provisions of S. 1052, 
     the Kennedy-McCain ``Patient Protection Act of 2001'', that 
     expose employers to lawsuits and unlimited damage awards.
       The U.S. Chamber of Commerce strongly supports the 
     amendment offered by Senators Phil Gramm and Kay Bailey 
     Hutchison to S. 1052 that would exclude employers from 
     lawsuits for the actions of the health plans they sponsor. It 
     should be noted, however, that this amendment, on its own, 
     does not address other fundamental flaws in the underlying 
     legislation, nor will it protect employers from the huge 
     liability costs imposed on health plans by this proposal.
       Employers voluntarily provide health coverage to 172 
     million Americans, at an average cost of $6,351 per working 
     family. While this amendment exempts employers from being 
     party to a lawsuit, the cost of open-ended liability on 
     health plans will ultimately be borne by businesses and 
     working families. Furthermore, self-insured health plans 
     directly pay the cost of damages and litigation out of their 
     bottom line, even if they use a third-party administrator to 
     make claims decisions.
       Given our sluggish economy, employers will not be able to 
     bear the passed-on costs of litigation and unlimited damage 
     awards. Much of those costs will also be borne by employees, 
     who, studies show, are increasingly turning down their 
     employers' offer of coverage because they cannot afford the 
     higher monthly premiums and out-of-pocket deductibles, 
     coinsurance and copayments. Our health care system does not 
     need any more litigation. In addition to supporting the 
     Gramm-Hutchison amendment, we urge you to remedy the onerous 
     liability provisions of S. 1052 so that employers can fully 
     benefit from the protection offered them by the Gramm-
     Hutchison amendment.
       Because of the importance of this issue to working 
     families, the small business community and the American 
     economy, we urge you to support the Gramm-Hutchison amendment 
     to S. 1052. The Chamber will consider using votes on or in 
     relation to Gramm-Hutchison for inclusion in our annual ``How 
     They Voted'' ratings.
           Sincerely,
     R. Bruce Josten.
                                  ____



                                    American Benefits Council,

                                    Washington, DC, June 22, 2001.
     Hon. Phil Gramm,
     U.S. Senate,
     Washington, DC.
       Dear Senator Gramm: The Senate will soon vote on your 
     amendment to limit the liability of employers under the 
     Kennedy-McCain version of the Patients' Bill of Rights.
       We strongly share your view that the Kennedy-McCain bill is 
     fundamentally flawed and should not be enacted. It is certain 
     to drive up health costs well beyond the double-digit 
     increases that employers are already facing, increase the 
     numbers of uninsured Americans and place all employer-
     sponsored group health plans under the constant threat of 
     unlimited liability and inconsistent decisions made by 
     separate state courts.
       The Gramm amendment responds directly to one of the primary 
     concerns raised by both large and small employers throughout 
     the long debate over this legislation. There can be no doubt 
     that many employers who voluntarily offer this highly 
     valuable benefit to employees will be unwilling or unable to 
     do so in the future if the Kennedy-McCain bill is enacted. 
     There is no subtle way to express how profound and 
     destructive the threat of constant litigation and unlimited 
     damages would be to our nation's employer-sponsored health 
     benefit systems.
       Support for the Gramm amendment would be a vote in favor of 
     preserving health benefits sponsored today by employers and a 
     vote in favor of the millions of Americans who rely on health 
     benefits through their employer today. However, it should 
     also be clear that even if an amendment is approved to shield 
     employers from direct liability, our position on the bill 
     itself remains firm and unchanged. The Kennedy-McCain bill is 
     an extreme measure that should not be enacted and the bill 
     would still impose unacceptably high burdens on the health 
     plans and others involved in administering employer-sponsored 
     health benefits for which employers themselves would 
     ultimately shoulder the higher costs.
       We commend you and your supporters for offering this 
     amendment to protect employers from the excessive liability 
     that would result from the Kennedy-McCain bill. We urge the 
     Senate to move next to comprehensively cure the problem that 
     this bill poses by rejecting the Kennedy-McCain proposal and 
     enacting a sound Patients' Bill of Rights that meets the 
     President's principles and can be signed into law.
           Sincerely,
                                                   James A. Klein,
                                                        President.

  Mr. GRAMM. The first letter is from the National Federation of 
Independent Business on behalf of 600,000 small businessowners in 
America. They have endorsed the amendment I have offered that will be 
voted on tomorrow, which exempts employers from being sued under this 
bill.
  The second letter is from the Chamber of Commerce of the United 
States, the world's largest business federation, representing over 3 
million employers, making this vote a key vote for the Chamber of 
Commerce.
  Finally, the third letter is from the American Benefits Council, 
which is in support of this amendment.
  Let me try to explain briefly what this is all about. These are 
complicated issues and they are very easy issues to get confused. Let 
me start with the Federal bill, since there has been so much talk about 
it. Let me be sure that everybody knows exactly what we are talking 
about. This is S. 1052, which is the pending bill that was originally 
authored by Senator McCain, for himself, Senator Edwards, Senator 
Kennedy, and others.
  I will start on page 144 of the bill. A lot has been said about suing 
employers. Almost everything that has been said has been that you can't 
sue employers. I want to just go through the bill very briefly, lest 
there be any doubt about the fact of whether or not you can sue 
employers, and try to explain the concern that I have that the National 
Federation of Independent Business has, and that the U.S. Chamber of 
Commerce has about this bill, and the fact that it would expose 
employers to liability.
  Let me remind my colleagues that employers are not required by law to 
provide health insurance to their employees. There is no Federal or 
State statute anywhere that requires that employer benefits be 
provided. Employers provide benefits because they choose to, because 
they care about their employees, or if they believe that in order to be 
competitive in getting good employees and holding them they have to 
provide benefits, they decide to do it on a voluntary basis. So the 
cause of not just concern, but alarm, in the business community is that 
under this bill it will be possible to sue not the insurance company, 
not the HMO, not the people who are practicing, such as doctors and 
hospitals, but you will be able to sue the employers.
  Let me start with the language of the bill. This bill has in this 
section, as it does in many other sections, language that is very 
confusing and misleading. I want to give a simple example. Look on page 
144, on line 5, it says: ``Exclusion of Employers and Other Plan 
Sponsors,'' which implies that they are excluded, that you can't sue 
employers. And then in section (A), line 7, it says: ``Causes of Action 
Against Employers and Plan Sponsors Precluded.'' Read that sentence. 
You say you can't have a cause of action against employers and plan 
sponsors; they are specifically precluded. That is exactly what the 
headline says.
  And then it says: ``Subject to subparagraph (B),'' and that is where 
you become concerned because up here it says you can't sue them. The 
next line is ``Subject to subparagraph (B)''--I will come back to 
that--``paragraph (1)(A) does not authorize a cause of action against 
an employer''--just as

[[Page 11728]]

clear as the rising Sun. You can't sue employers. But when you get down 
to subparagraph (B), it says: ``Certain Causes of Action Permitted,'' 
and then it says: ``Notwithstanding subparagraph (A),'' which is what I 
just read, ``a cause of action may arise against an employer or other 
plan sponsor.''
  In other words, paragraph (A) says you can't sue them and paragraph 
(B) says you can sue them. And then you have seven pages of ifs, ands, 
and buts about whether you can or cannot sue employers, and under what 
circumstances you can sue them.
  And then, obviously, it gets pretty complicated. The question comes 
down to, what would a judge say? What would a jury say? What would some 
very smart plaintiff's attorney be able to do with this language?
  Then the problem gets even greater because you get down to the use of 
terms that don't jump out at you as triggering other things. But when 
you understand how they fit into Federal law, they say you can sue 
employers. I will give you an example. On line 18 of page 145, it says 
you can't sue the employer except when the employer directly 
participates--and let me read the whole paragraph:

       Direct Participation in Decisions.--For purposes of 
     subparagraph (B), the term ``direct participation'' means, in 
     connection with a decision described in clause (i) of 
     paragraph (1)(A) or a failure described in clause (ii) of 
     such paragraph. The actual making of such decision or the 
     actual exercise of control . . .

  It does not jump out at you that ``exercise of control'' means 
anything. It does not unless you know that under ERISA, which governs 
all employer benefits under Federal law, the employer is always deemed 
to exercise control over employee benefits.
  There are 7\1/2\ pages of ifs, ands, and buts, but there is a lot of 
language that when it is brought into the context of existing Federal 
law it creates the strong potential that employers could be sued and 
could be sued for nothing other than simply having tried to join with 
their employees in buying health insurance and conducting activity that 
had to do with operating their business, appointing employees to 
interface with their health plan, their insurance company, their HMO.
  Then, as if anybody would doubt the intention of this bill, it has 
this extraordinary section on page 148 and 149, having created this 
liability for employers, and then in 7\1/2\ pages talking about when 
you can sue them and when you cannot sue them, it then comes down and 
excludes physicians, excludes hospitals, and then it says:

       But nothing in excluding physicians or excluding hospitals 
     can be construed as excluding employers.

  If our colleagues on the other side of the aisle wonder why it is 
that employers are alarmed, all they have to do is to look at the 
language of their bill in the context of ERISA to understand that we 
have a very real potential for employers to be sued.
  The Texas Legislature, which has been held out to be a standard for 
patients' rights--in fact, if I am not wrong, Senator Edwards said on 
ABC ``This Week'':

       The President, during his campaign, looked the American 
     people in the eye in the third debate and said: ``I will 
     fight for Patients' Bill of Rights,'' referencing the Texas 
     law. Our bill is almost identical.

  Identical to what? The Texas law. Let me make it clear it is not 
identical. Under the bill before us, it clearly says employers can be 
sued. It has 7\1/2\ pages of circumstances under which they can be 
sued. It uses language that ties in to ERISA that suggests they might 
be sued, and then it excludes doctors and hospitals but specifically 
does not exclude employers from being sued.
  That is what the bill before us does. What does the Texas law do? The 
Texas Legislature, when it debated and passed the Patients' Bill of 
Rights, did not believe that all employers were good people. It did not 
believe there would never be an incident where employers would do the 
wrong thing. It did not believe that. They debated this extensively, 
but they did believe they had put together a system of checks and 
balances.
  In fact, this bill, the Republican alternative, the Breaux-Frist 
bill, every HMO bill, every Patients' Bill of Rights bill that has been 
introduced, is really modeled after State plans. One of the most 
prominent of those plans is the Texas plan.
  In Texas they concluded there was no way they could write it that 
would not guarantee that employers would not be subject to being sued 
other than to simply exempt employers from being sued.
  What they said was, in very simple terms:

       This chapter--

  Which relates to liability in their bill--

     does not create any liability on the part of an employer.

  There are no 7\1/2\ pages of ifs, ands, or buts after this clause. 
There is no paragraph below it that says notwithstanding this provision 
they can be sued. This is the language of the Texas law. It does not 
create any liability on the part of an employer.
  Let me review some of the points that have been made where people say 
you need to be able to sue the employer. Let me remind my colleagues 
that the Texas Legislature did not believe that for a minute that there 
would not be some employers who would be bad actors, but they concluded 
that the benefits of letting people sue the employer were much smaller 
than the potential cost because of the fear that employers might drop 
health insurance. In fact, I think the success of the Texas law bears 
out their belief that, under the Texas law, they would be better off 
not to allow the suits to be filed against the employer.
  Some people have said: What if somebody showed up at the emergency 
room and the employer called up and said don't let them in? Under the 
bill before us and every bill that has been introduced, we have a 
prudent layperson standard. The emergency room is going to get paid if 
the person, as a prudent layperson, believes they were in danger of 
being harmed or dying.
  What would the attending physician in an emergency room in Omaha, NE, 
do if some employer called up and said, my employee, Joe Brown, is 
coming in there, he thinks he is sick, I don't want him treated? The 
physician would say: Thank you, and hang up because he has no control 
over who is admitted to the emergency room and the HMO is required to 
pay.
  What about the case where the employer actually tries to intervene in 
the decision being made by the HMO? It has been suggested that perhaps 
you could have it so the employer is not the final decisionmaker and 
would be exempt. I remind my colleagues, who is the final decisionmaker 
under S. 1052? Who is the final decisionmaker under Breaux-Frist? Who 
is the final decisionmaker under the Nickles bill? Who is the final 
decisionmaker under the original Kennedy bill? The final decisionmaker 
is an independent review panel made up of health care professionals who 
are independent of the health plan. How is the employer supposed to 
affect them? The employer can have no effect over them. By definition, 
under every one of these bills, the employer is not, cannot be the 
final decisionmaker.
  I am not saying, and the Texas Legislature did not say, there were no 
bad employers, but what they said is what little benefit you might get 
by discouraging an employer from trying to interfere in a health care 
plan for which they are at least partially paying; whatever benefits 
you might get from that, you already have protections with internal and 
external review, but the cost of making the employer liable is so high 
that it is not worth it.
  Let me conclude because I see my dear colleague from West Virginia is 
here. I know a lot of other people want to speak. I want to make this 
point. It is not hard for me to envision--I hope it is not hard for my 
colleagues to envision--that there are a lot of little businesses all 
over America that scrimp and sacrifice to cover their employees with 
health insurance.
  I often talk about a printer from Mexia, Dicky Flatt, a friend of 
mine, an old supporter of mine from a little

[[Page 11729]]

town in Mexia, TX. He is an old-fashioned printer. He never quite gets 
that blue ink off the end of his fingers.
  He has about 10 employees, including his wife, including his baby 
son, and he probably has 8 or so other employees at any one time.
  They work hard to try to provide health insurance. But there is no 
way, shape, form, or fashion, Dicky Flatt is going to hire a lawyer to 
go through this bill. Once he hears from NFIB that he might be sued, he 
is going to be forced to call his 10 employees together and say: Look, 
I love you guys. You helped me build this business. But my father and 
my mother worked a lifetime to build this business. I have worked in 
it. My wife has worked in it. My brother worked in it. His brother's 
wife worked in it. My son works in it. And I am not going to put it all 
at risk in some courtroom because I might be sued because I helped you 
buy health insurance.
  Our colleagues assure us, we are not after Dicky Flatt. But the 
problem is, they have 7\1/2\ pages of language under which Dicky Flatt 
could be sued. A lot of this language is pretty confusing. I am not a 
plaintiff's attorney, but it is pretty confusing to me and I have to 
figure it is very confusing to Dicky Flatt, a printer in Mexia.
  Everybody talks about how good the Texas law is and how similar this 
bill is. I thought with all of the imperfections, I would offer an 
amendment that does exactly what the Texas law did. One of our 
colleagues pointed out that under Texas law health insurance coverage 
has gone up, not down. In Texas they did not believe that all 1 million 
employers were good, well intending people. They decided, whatever you 
get by allowing a person to try to sue the few who are bad, when people 
already have checks and balances against bad employers with internal 
and external review--an external review where the employer could have 
no impact, that whatever the benefits are of suing the employer, the 
cost in terms of inducing good employers to drop health coverage was 
more.
  I am sure everybody understands unintended consequences. I don't 
believe for a minute the authors of this bill are trying to sue Dicky 
Flatt. I don't believe it. I don't believe they have evil intent. I 
have never thought that, never said it, and I don't believe it.
  The point is, could the law produce the unintended consequence? It is 
complicated enough, it is contradictory enough, that I believe it might 
force good people such as Dicky Flatt, who might call the emergency 
room if one of his employees were taken to the emergency room, but it 
would be to say: He is coming; do everything you can to help him. Would 
that be intervening? If he called up and said: ``I want to tell you 
that Sarah Brown got her finger caught in this machine and it pulled 
her hand in, and, my God, she is on the way there and she is bleeding 
something awful. Get ready. And I want you to do everything you can. 
Don't worry about cost, I will do whatever I can to help,'' is that 
intervening? I don't know. And he won't know. Therefore, he might 
cancel his health insurance.
  I believe this is the safe way to do it. I am not saying I will not 
look at alternatives or we might not be able to work something out, but 
I am asking my colleagues, don't believe that perfection has been 
achieved, that there is no way the current bill can be improved. If we 
could change 5 or 6 things in this bill, we would get 80 Members, maybe 
90 Members to vote for it. This is something that needs to be changed. 
This is something that needs to be fixed.
  I know there are a lot of clever people who think we can still do it 
and still sue and protect Dicky Flatt. I am not sure. All I know is the 
Texas Legislature, after debating this, decided they were not sure and 
the safest thing to do was to not allow him to be sued.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Nelson of Nebraska). The Senator from West 
Virginia.
  Mr. BYRD. Mr. President, has the Pastore rule run its course for the 
day?
  The PRESIDING OFFICER. No, it has not. It will expire at 5:04.
  Mr. BYRD. I ask unanimous consent to speak out of order, 
notwithstanding the Pastore rule.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BYRD. Mr. President, I understand the Senator from Michigan 
wishes to speak. If I may be recognized, I would like to speak for not 
to exceed 20 minutes, but I yield to the Senator from Michigan for not 
to exceed 5 minutes, and not have that 5 minutes charged against my 
time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. STABENOW. Mr. President, I thank my friend and colleague for 
yielding to me for a moment to bring this discussion back to what this 
is really all about.
  First, I say to my friend from Texas, I am happy to share with his 
constituent of whom he spoke, on page 146 of the legislation, 
specifically what is meant by employers being exempted from lawsuit. It 
is very specific. I think we could satisfy his concerns if he were to 
read the bill and have an opportunity to discuss it with us. I welcome 
an opportunity to do that.
  I will take a moment and share what happened in Michigan a few hours 
ago. I went back to the great State of Michigan to be with a large 
number of constituents who were very concerned about this legislation, 
people who have been involved in the health care system, doctors and 
nurses, and family members who have had situations occur in their own 
family with themselves or their children or their parents that have 
caused them to support this legislation, the underlying bill that is 
before the Senate. They believe this is critically needed because of 
the need to guarantee the health insurance is paying for results in 
health care for their families.
  I will comment as I did on Friday about a situation about which my 
colleagues on the other side of the aisle talked, small business 
owners. There is a small business owner with whom I have worked very 
closely, a man named Sam Yamin, who, in fact, had a situation where he 
had to go to an emergency room himself.
  He owned a tree trimming business and had a severe accident with a 
chain saw and was rushed to an emergency room. The physicians were 
ready to operate, to save his leg, to save the nerves in his leg. They 
called the HMO and the HMO said, we are sorry; you are at the wrong 
emergency room. They packed him up, him and his wife, and moved him 
across town. He spent 9 hours on a gurney in the other emergency room 
and did not receive treatment until he literally pulled a telephone out 
of the wall because he was in such great pain. He ended up getting the 
most limited treatment. They simply sewed up his leg.
  Why do I mention that? I mention that because Sam Yamin lost his 
business. He is a business owner who lost his business. He is a 
business owner who is now not only permanently disabled but, I found 
out today, is terminally ill. Sam Yamin did not deserve that. He paid 
for insurance. He was a business owner who had insurance and assumed in 
an emergency he could go to the nearest emergency room.
  Now what happens? He and his wife Susan are flooded with bills. Does 
he have any recourse to go back to the HMO to hold them accountable for 
what happened for him and his family? No, he does not.
  That is not right. That is what this bill is about. We want better 
medical decisions. Sam Yamin does not want the right to sue just to 
sue. He wanted emergency health care. He wanted an operation on his 
leg. He wanted to be able to go back to work in his business. That is 
what he wanted. I truly believe that unless we hold HMOs and insurance 
companies accountable for the decisions they are making, we will not 
get that kind of guarantee of health care. We want better medical 
decisions. That is what we want. We know the States that have enacted 
these kinds of protections don't have the lawsuits being talked about. 
They have better medical decisions. That is what we are looking for. We 
want to make sure decisionmakers know they better pay attention; they 
better get it right; they better give people the health care they

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are paying for; otherwise, they will be held accountable.
  That is what this is about. That is why it is so important and that 
is why I am going to come to the floor every day and speak on behalf of 
Susan and Sam Yamin and all the other families in Michigan who are 
counting on us to get this right.
  I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
West Virginia is recognized.
  Mr. BYRD. Mr. President, I thank the Presiding Officer. I also thank 
the majority whip for his courtesy.
  Mr. President, I am speaking on a subject that is not germane to the 
debate this afternoon.
  The PRESIDING OFFICER. The Senator from West Virginia.

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