[Congressional Record (Bound Edition), Volume 147 (2001), Part 8]
[Senate]
[Pages 11731-11747]
[From the U.S. Government Publishing Office, www.gpo.gov]



              BIPARTISAN PATIENT PROTECTION ACT--Continued


                           amendment No. 810

  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. I thank my good friend and colleague from West Virginia and 
thank the Chair. I also thank my good friend from Iowa who has agreed 
to let me speak for a few minutes and who is also helping with the 
easel. He is what you would call a full service Finance Committee 
ranking member.
  I am here today to talk about the Gramm amendment to the McCain-
Kennedy patient protection bill. I have been in this Chamber before to 
talk about this issue as it affects small businesses.
  In my role as ranking member, and formerly as chairman, of the Small 
Business Committee, I have had the opportunity to hear from lots of 
small businesspeople, men and women from around the country. There are 
an awful lot of them from Missouri who have called me to express their 
concerns. Let me tell you they have some very real concerns about this 
McCain-Kennedy bill.
  The particular issue before us today deals with whether or not 
employers should be able to be sued through new lawsuits permitted by 
the McCain-Kennedy patient protection bill which is supposed to be 
targeted against HMOs.
  We keep hearing how they want to sue the HMOs. Our colleagues on the 
other side of the aisle seem to be of two minds on this issue. Some 
adamantly refuse to admit that their bill actually permits litigation 
against employers at all. They claim that only HMOs can be targeted. 
That is simply flat wrong. This has been pointed out numerous times in 
this Chamber by me and by my colleagues who have actually read the 
language from the McCain-Kennedy bill, which I have before me.
  I encourage any American who has been confused by the claims and 
counterclaims on whether the McCain-Kennedy bill allows any suits 
against employers to get a copy of the legislation. Go to the bottom 
half of page 144 and read the truth for yourself. Page 144 has the good 
news that:

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

  That is the good news.
  The bad news is that part (B) says: ``Notwithstanding subparagraph 
(A), a cause of action may arise against an employer or other plan 
sponsor'' under certain clauses and pages and exceptions; and it goes 
from the bottom of page 144 to pages 145, 146, 147, and 148. That is 
how you can be sued if you are an employer.
  There are some on the other side of the aisle who admit their 
legislation allows trial attorneys to go after employers but claim 
these lawsuits are only permitted in narrow circumstances. I give those 
colleagues and friends credit for greater honesty, but I fault them, 
nevertheless, for bad analysis because the fact is, the so-called 
employer exemption from lawsuits in the McCain-Kennedy bill is an 
extremely complicated and confusing piece of legislative language that 
will inevitably subject large and small employers to lawsuits and the 
high cost of defending them.
  Before I came to this body, I practiced law. I know what a gold mine 
of opportunity rests in this language. Oh, boy, if I were on the 
outside and this were the law, and I wanted to sue an employer, this 
would be an interesting but not difficult challenge.
  We all know you really cannot protect anyone 100 percent from being 
sued. For better or for worse, any American, with just a little help 
from a clever attorney, or just an average attorney, can file a lawsuit 
against any person or any business. The case may be dismissed almost 
immediately, but they can still file it.
  What this means is, if we want to protect employers from frivolous 
litigation--and this is what everybody says they want to do--we need to 
give employers protection that will help

[[Page 11732]]

them get the frivolous lawsuits dismissed immediately, before the 
lawyers' fees really start to build up. To get these immediate 
dismissals, you really need clear, distinctive language that makes 100 
percent clear what types of lawsuits are and are not allowed.
  How does the Gramm amendment make that clear distinction? By saying 
that you cannot sue your employer, period.
  How does the McCain-Kennedy bill try to make a clear distinction on 
which they say employers can rely? They have a basic guideline that 
says employers can't be sued, but then they have four entire pages of 
exceptions, definitions, and clarifications that substantially weaken 
and confuse that protection. In those four pages there are enough 
ambiguous words, phrases, and concepts to keep trial attorneys in 
business for years.
  If a plaintiff's lawyer is clever enough--and whatever else I think 
about them, I know my friends in the trial bar are clever--they are 
going to find ways to bring lawsuits against employers. In their zeal 
to get at deep-pocket employers, trial lawyers are going to poke and 
prod at every word of these four pages looking for weaknesses. Many, or 
most, will be able to find something to convince a judge not to dismiss 
a case. The result: A raft of new lawsuits against employers, added 
expenses, and an enhanced fear of being sued.
  That scares the devil out of employers all across the country, as it 
should, because if there is one thing our legal system has shown 
employers, it is that their fear is justified; they are not paranoid; 
they really are coming after them.
  The cost to defend a single lawsuit can easily extend into the tens 
or hundreds of thousands of dollars. Particularly for these small 
employers, these expenses are difficult, if not impossible, to bear and 
could put them out of business. Even if the employer has some type of 
insurance to cover this legal exposure, the cost of insurance can be a 
scary prospect in and of itself.
  I mentioned before in this Chamber I have received hundreds of 
letters from small businesses in Missouri. The first issue that almost 
all of them bring up is whether they can be sued under the McCain-
Kennedy bill. Let me read just a few points from a few of them. Simply 
put, this issue is their No. 1 concern when it comes to patient 
protection legislation.
  Here is one from a lumber company:

       We are currently extending health insurance coverage to our 
     25 employees. We pay two-thirds of the premium; employees pay 
     one-third. At our last renewal, we were faced with an 18-
     percent increase, some years in the past being even greater. 
     Future increases will force us to continue to offer less 
     coverage. If Senator Kennedy's bill passes, this may just be 
     the nail in the coffin. We are willing to suffer with higher 
     prices to an extent, as long as they are fair and justified, 
     but we are not willing to open ourselves up to the liability 
     that this bill may subject us to.

  Here is another one, a small business, a fabricator:

       We are a small company with less than 25 enrollees in our 
     health plan. With the increase in health care costs, 
     utilities, and supplies, we are not making much of a profit. 
     And if this continues, we may not be able to stay in 
     business. We employ between 50 and 75 employees. We also do 
     not see how an employer can be held legally responsible for 
     medical court cases. We will eventually be forced, by Mr. 
     Kennedy's bill, to cancel our health plans because of the 
     liability and cost.

  In fact, the National Federation of Independent Businesses--one of 
the strong voices for America's small businesses--believes so strongly 
about this amendment that they are going to list it as a key vote: Are 
you with us or are you against us? Small businesses are going to know 
by how our colleagues vote on this amendment.
  For those folks fortunate enough not to be familiar with the ways of 
Washington, that means that they believe the vote on this amendment 
will be one of the most important votes cast during the entire year. 
They intend to use it in their evaluation of Senators' voting records.
  All this begs the question: If employers are so well protected by the 
McCain-Kennedy bill, why are they so scared? Why is NFIB placing such a 
level of importance on this vote? Why are small businesses in Missouri 
sending me these letters? Is it because they are not protected? The 
answer is, they are not well protected.
  The McCain-Kennedy bill made a half-hearted try and failed. I related 
last week several times what the running score was of small businesses 
that said that they would be forced by this measure to get rid of 
health care coverage for their employees. Here is today's total: 1,751. 
That is just a small sample nationwide. These are the number of 
employees whose employers have written us since they saw the details of 
the McCain-Kennedy legislation to say they don't want to be involved in 
tort reform roulette on health care costs. If McCain-Kennedy passes 
unamended, if their exposure is as written in this compendium of 
exceptions, exclusions and qualifications, they will terminate their 
health care plans. Total number of employees covered to date: 1,751.
  I suggest that is just a microcosm of small businesses across the 
country. I have talked to others who have not written in. In our 
country, most employers voluntarily offer health care coverage, and 
they are the source of health insurance for the majority of Americans. 
Overwhelmingly, Americans are employed and get their health care 
coverage from their employer. The quickest way to destroy the system we 
now have is to create an atmosphere where employers stop their 
voluntary willingness to offer coverage. Sure, it is an important 
benefit, but who wants to be hauled into court if one of their 
employees has a medical or health care complaint?
  Right now we have 43 million Americans who are not covered by health 
insurance. We have debated many measures in the Senate to find out how 
to cover those employees. I was terribly disappointed that on a party-
line vote last week, this body voted to reject my effort to give 100-
percent deductibility for self-employed people. We have been fighting 
to get that done for a long time. This is a tax bill. It is going to be 
a tax bill. There is no question about that. That tax provision to get 
more people covered should have been included.
  What we are talking about now is expanding significantly the number 
of uninsured Americans. Sixty percent of the 43 million who are not 
covered now are employees of small business. We don't want to add to 
that number and add to the 43 million. Given the lottery nature of our 
current legal system, I can't think of anything that would make the 
employers more fearful and more likely to drop coverage than to say: 
Hey, you are not authorized to file suit against your employer but 
notwithstanding subparagraph (A), cause of action may arise against an 
employer or other plan sponsor, et cetera, et cetera, page after page.
  If we want to avoid American businesses dropping coverage on a 
wholesale basis, employers need to be protected from lawsuits. That is 
quite simply what the Gramm amendment does. We need to get good health 
care coverage for all Americans. Yes, we need to give them internal and 
external appeals. We need to make sure they do not get shortchanged. If 
they get denied coverage, they need to go to another doctor who is 
independent, who could order their HMO or their health plan to provide 
them coverage. What they don't need is to start suing their employers 
because employers will drop health care coverage like a bad habit, if 
they think they are going to be subjected to a whole range of lawsuits 
as a result of the dissatisfaction of an employee with health care 
coverage.
  I hope our colleagues will take a look at the impact of this on small 
businesses and their employees and accept the Gramm amendment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, if I could enter into a colloquy with my 
friend from North Carolina, the manager of the bill, I have been on the 
floor now for a week relative to this legislation. It is interesting to 
see how the scapegoats come and go.
  Does the Senator from North Carolina remember last week that the big

[[Page 11733]]

boogeyman was the fact that this was a disguise to get socialized 
medicine, that what the intent really was was to have this onerous bill 
pass and everyone would drop their insurance and we would have 
socialized medicine? Does the Senator remember that?
  Mr. EDWARDS. I do remember that.
  Mr. REID. Does the Senator remember that they were talking about a 
States rights issue; that it was none of the business of the Congress; 
that all of these States were doing a good thing; let them do what they 
want with how they handle patients and doctors. Does the Senator 
remember that debate?
  Mr. EDWARDS. I do remember it.
  Mr. REID. There was a significant period of time last week when there 
was some discussion about this legislation allowing HMOs to be sued, as 
if that were some novel approach to the law, to the world. Does my 
colleague remember that, when it was a surprise that they read the bill 
and, lo and behold, HMOs could be sued? Does the Senator remember that 
discussion?
  Mr. EDWARDS. I do.
  Mr. REID. The assertion regarding socialized medicine is, for lack of 
a better description, kind of foolish. Regarding States rights, they 
learned very quickly that wasn't much of a winner. Then the fact that 
they were surprised about the lawsuits, of course, that was a surprise 
that they were surprised.
  I also was here, as the Senator from North Carolina was, when they 
spent a great deal of time talking about this novel concept they came 
up with, that you should be able to deduct 100 percent of the cost of 
an employer's health insurance. What they failed to tell us is that is 
something we have been pushing for a long time. In fact, it was put in 
the tax bill of the former chairman of the committee who is now 
present. That was put in the tax bill. Of course, it was taken out in 
conference. My colleague remembers that. As a result of the games being 
played, that amendment was defeated.
  Today, starting the second week of this debate, I now see a new ploy; 
that is, they suddenly are saying that now you can file lawsuits--and 
we are OK with that--but what you are doing is, all the employers in 
America are going to be sued as a result of having health insurance for 
their employees, and they are going to drop all their insurance.
  With this as a background, I want the Senator from North Carolina to 
comment about the latest direction; that is, that employers will be 
sued to death.
  Prior to addressing that, I want the Senator to recognize that I have 
been here longer than the Senator from North Carolina. I have heard 
this NFIB argument for almost 20 years. If you do this, the NFIB is 
going to send out a note that you are a bad legislator and they should 
not vote for you.
  In my approximately 20 years in the Congress--I could be mistaken 
because I am sure once in a while they do it just to look good--I have 
never known the NFIB to support a Democrat. So all these threats about 
``you do this and we are not going to support your candidacy,'' the 
vast majority of the time, the NFIB is a front for the Republicans. I 
am saying that; the Senator does not have to agree with me. To this 
Senator, the threats we have heard today that ``the NFIB is not going 
to support you'' is no threat to me. They have never supported me, no 
matter what I did or didn't do.
  I would like the Senator to respond to the several questions I have 
asked. But prior to responding, I have the greatest respect for the 
senior Senator from Texas. He is a fine man, a good legislator. He has 
a Ph.D. in economics. He taught economics. If he were here--he knows me 
well enough and I know him well enough--I would say that with his being 
in the Chamber. As to his reference to his friend Dicky Flatt, which he 
uses all the time, I think Dicky Flatt and others better be very 
careful of people such as my friend, the senior Senator from Texas, 
giving legal advice. He can stand here and give some good economic 
advice, but the legal advice we should look at very closely. I think 
Dicky Flatt should look at that.
  I ask my friend from North Carolina, to whom I can't give sufficient 
superlatives as being more than renowned in the law, a person who has 
made a reputation around the country as being a good lawyer, to give 
some comment to the Senate and to those within the sound of our voices 
as to what he thinks about these continual statements made today--in 
fact, people are reading the same information. The same person wrote 
the same speech for several people. I would like the Senator to tell me 
and the rest of the Senate the fear that an employer who has health 
insurance for his employee should have as a result of this legislation.
  Mr. EDWARDS. I will respond to the Senator's question. I say to my 
colleague from Iowa, who has been waiting for some time, that I will be 
brief and I will yield the floor to my friend because he has been 
waiting to speak.
  First of all, the arguments being used serially, one after another, 
are all arguments that have been trotted out by the HMOs for years now. 
They are the arguments they make to avoid any kind of reform. They like 
it just the way it is now. They are different than every other business 
entity or individual in America, and they want to maintain the status 
quo. The Senator knows very well that they are spending millions of 
dollars on lobbyists, public relations, and on television to defeat any 
kind of HMO reform. So these arguments go to a really fundamental 
question: Are we going to move forward or are we going to stay where we 
are?
  There is a consensus in this country among the American people, among 
the Members of this body, among the Members of the House of 
Representatives, and among virtually every health care group and 
consumer group in America, that this needs to be done--``this'' being 
The Bipartisan Patient Protection Act.
  There is a reason for that consensus--because we need to do something 
about this issue that has lingered for so long. For every day that 
passes, while we engage in what sometimes is high rhetorical debate on 
the floor of the Senate, there are thousands of American citizens, 
children and families, who are being denied the care for which they 
have paid.
  Now, it is all well and good for us to have an academic discussion in 
the Senate about this issue. But there are families and kids all over 
this country who are not getting the tests they need, not getting the 
treatment they need, not getting the medical care they need because 
this legislation has not been passed.
  Now, having said that, let me respond specifically to the Senator's 
question. First, as to the employer liability issue, the Senator knows 
that John McCain and I worked for months on it. There was a bill in the 
House of Representatives--the Norwood-Dingell bill--which passed and 
provided somewhat broader exposure of employers to liability. Senator 
McCain and I worked, because we are concerned about this issue and we 
want employers to be protected, to draft our bill with that goal in 
mind.
  President Bush has issued a written principle which is almost 
identical to our bill. He says, as we say, that unless an employer 
actually makes a medical decision on an individual patient, they should 
be exempted from liability. We believe that is what our bill does. The 
Breaux-Frist bill--the other bill--has another model, what is called a 
``designated decisionmaker.'' But it also holds employers, through the 
designated decisionmaker, responsible where they make individual 
medical decisions.
  So what we have is our bill, the Norwood-Dingell bill that already 
passed the House, President Bush's principle, and the Breaux-Frist 
bill, all of which start with a very simple concept; that is, employers 
ought to be protected unless they step into the shoes of the HMO and 
make medical decisions.
  The only different position is that of Senator Gramm in his 
amendment. His position is inconsistent with all those positions, 
including the President's, inconsistent with the legislation that 
passed the House, inconsistent with the Breaux-Frist bill. His position 
is the extreme position. What we are working

[[Page 11734]]

on as I speak--and we worked on it this past week and over the weekend, 
Republican and Democratic Senators both--is language that we believe 
will be appropriate and will help provide more protection for 
employers.
  But what can't be left out of this discussion is the patients; you 
can't forget the patients. I listened to my friend from Missouri speak 
a few minutes ago. I didn't hear the words ``patient,'' ``employees,'' 
or ``families'' spoken by him. I think his concern about employers is 
to be respected, and that is the reason we want to work together on 
this issue. We have to always keep in mind, when we are trying to 
protect employers, that we also have the rights of employees and 
patients to take into account.
  So the right approach is an approach that allows us to provide 
maximum protection for the employers, without completely ignoring the 
interests and, in fact, protecting the interests of the patients at the 
same time. We believe that is what we do. We believe that is what the 
President has suggested.
  There are issues in this debate about which there is great 
disagreement, but this is not one of them. This is one where regarding 
the President in his principle, us, and the Breaux-Frist proposal, 
there are minor differences between them. The bottom line is that all 
of those start with a simple concept and principle. It is a matter of 
making sure the language works in an effective day-to-day way.
  Mr. REID. I heard the Senator say right now the legislation, in his 
estimation, protects employers, but if there can be more refinement to 
that, he will be happy to work with whoever can give him that language; 
is that true?
  Mr. EDWARDS. That is true. We will continue to work on it, going 
forward. We are continuing to work on it as we speak. If we can find a 
way to maximize protection for employers with appropriate language and, 
at the same time, not ignore the interests of the patients, we will do 
that. I believe that can be done. So do Senators on both sides of the 
aisle who are talking about this particular issue.
  Mr. REID. If, however, we didn't change it in any manner, you could 
still rest well at night that you and Senator McCain had worked very 
hard to take care of this issue on employer liability.
  Mr. EDWARDS. We have. We worked long and hard. I believe we have 
protected employers from many of the concerns that those across the 
aisle and on both sides of the aisle have raised. But I am the first to 
say this is an issue on which we should work together to make sure we 
have language that works to protect America's employers.
  I yield to my friend from Tennessee.
  The PRESIDING OFFICER (Mr. Hollings). The Senator from Tennessee is 
recognized.
  Mr. THOMPSON. Mr. President, the Senator from Iowa has graciously 
agreed to let me hold forth here for just a few minutes. If no one has 
an objection, I ask unanimous consent that he be recognized immediately 
after me. I don't expect to take more than 5 minutes.
  Mr. REID. Reserving the right to object, I could not hear the 
Senator.
  Mr. THOMPSON. I will speak about 5 minutes and then the Senator from 
Iowa will speak for himself on how long he wants.
  Mr. GRASSLEY. I intended to speak as long as I wanted to speak just 
as everybody else has been doing all afternoon.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. THOMPSON. Mr. President, I have been listening to the debate, and 
it sounds to me as if we are making progress with regard to this 
employer issue. We started out without a recognition that this bill 
provided substantial exposure to employers. The statements that were 
made by the sponsors of the bill were that they really didn't intend to 
hold employers liable, except under very limited circumstances. Now, 
apparently, they agree that perhaps there was more exposure there than 
was originally intended.
  So, as I understand it, some discussions are taking place now to, 
hopefully, bridge the difference and provide additional protection for 
employers because what we are doing--what I understand the purpose of 
the legislation is--is to provide some judicial access, judicial relief 
against health care plans and against HMOs, and that the thrust of this 
legislation was not to hold employers liable because employers don't 
even have to provide these plans if they don't want to.
  While it is all well and good to suggest that we give people new 
remedies and rights, we have to balance that out with the realization 
that it is going to have some repercussions.
  If we go too far and do too much to penalize employers, they are 
going to walk away from health care coverage. Instead, as pitiful as 
some of these stories are that we have heard over the last several days 
about what has been done to individual patients, I hope we do not come 
back in a couple of years and have to listen to people who have no 
insurance at all because of legislation we passed driving employers--
and small employers--out of the health care business. That is a real 
possibility, and nobody wants that. We need to be careful.
  I suggest that if we really want to carve employers out of the 
lawsuit business, if we did not mean to cover employers, all we need to 
do is say so. All we need to do is provide an exemption for employers 
the same way we provide exemptions for doctors and the same way we 
provide exemptions for treating hospitals. We provide blanket 
exemptions for them, but we have to go through all these various pages 
of rigmarole and definition to try to figure out when an employer who 
is providing this health care coverage can be sued and when he cannot 
be sued.
  The law of Texas has been upheld. The President's name has been 
invoked. The law of Texas has been used as an example. The law of Texas 
exempts employers from their plan.
  The concern is there is a group of employers who are basically self-
insured who handle these claims on the front end themselves. They do 
not hire this out. They do it themselves. I believe if you talk to 
professionals in the industry, they will say that some of the best 
plans with some of the most comprehensive coverage of any of the plans 
out there are these self-insured plans. One of the reasons may be that 
they cut out the middleman. They do not have an HMO to deal with at 
that stage of the game, and they provide good, comprehensive coverage 
for their employees.
  By definition, they are making decisions on the front end. By 
definition, under this bill, from the day it is passed, they will have 
exposure. One might argue that is a good thing or one might argue that 
is not a good thing, but there is no question with regard to those 
plans, some of the better plans out there--because employers decided to 
provide these plans, they wanted to cover their employees, they wanted 
to do it themselves--that they will be exposed.
  One has to ask oneself, what are they going to do the day after this 
legislation is passed? Are they going to continue to hold themselves 
for this kind of additional liability? Are they going to contract it 
out to a third person and pay the additional freight to get them to 
assume the liability, driving up costs all along the way? I do not know 
what they will do. I know what they will not do. They will not stand 
pat.
  The things we do in this Congress have an effect on the lives of the 
American people, whether it be raising taxes, lowering taxes, or 
whatever. There will be some repercussions in terms of the behavior of 
these employers. I hope it is not to wind up with less coverage and 
fewer of these good plans.
  One says: They are not going to have anybody to sue if you do not 
have HMOs and the employers are involved on the front end of it. This 
bill has set up an elaborate external review entity.
  My colleagues say we do not talk enough about patients. This 
legislation sets up a review entity that allows an independent 
qualified individual or group of individuals to make decisions with 
regard to whether or not that employee is being treated fairly. That is 
a strong move in the direction for patient protections. If we stopped 
right

[[Page 11735]]

there and did not do anything else, that would be a major move in this 
legislation, away from the simple ERISA coverage we have right now.
  This bill spends 10, 12 pages setting up this external review process 
and the external review entity on how they have to be qualified, how 
they have to be independent, how we have the Secretary looking over 
their shoulder, all of which is designed to protect the patient.
  Under this system, if the entity rules against coverage, then they 
can go to court and sue, or if he rules for coverage, it goes to 
another independent individual who is the independent medical reviewer. 
So there is another level of independent protection for the employee.
  It is not as if they are out there hopeless and helpless and totally 
at the mercy of the employer. The employer may have had some discretion 
on the front end for sure and made some decisions for sure, but then he 
goes through this independent appeals process where people who have no 
relationship with the employer make the decisions as to whether or not 
there is coverage.
  We have exempted doctors. We have exempted hospitals. HMOs are not 
different in this country from many other entities and entities that 
have been created in this bill. We exempt States from certain lawsuits. 
We exempt the Federal Government from certain lawsuits.
  The Senator from North Carolina and I are exempted from the things we 
say in this Chamber. We are protected because there are tradeoffs. 
Everybody knows that. We make decisions because of public policy 
reasons to make tradeoffs. If we want to encourage certain conduct, we 
are willing to make tradeoffs the other way.
  It is unfair, when we are in the context of a particular area, 
legislation dealing with health care, to pick and choose as to among 
whom we are going to make those tradeoffs, especially if we are giving 
exemptions to the people who are providing health care--doctors and 
hospitals--and we do not give exemptions for the people who are 
providing the health coverage, the employers.
  That is the gist of what we are dealing with, and hopefully we can 
work out some agreement.
  My bottom line is, if you do not want to cover employers, and if you 
believe we may be in danger of causing some good folks to say it is not 
worth the additional headache, it is not worth the additional exposure, 
it is not worth the additional expense to set up different entities to 
protect ourselves, if we are concerned about that, we need to take that 
into consideration with any resolution, not to mention the exposure 
this bill has under other provisions of ERISA.
  We have not even talked about that. At least I have not. I have not 
heard any discussion about that. Employers have exposure under COBRA, 
under HIPAA, under other areas of ERISA that have nothing to do with 
health coverage. They have employer exposure if they make any mistakes 
in dealing with that.
  Remember we debated Kennedy-Kassebaum, and we decided people needed 
to have more portability with their insurance. We decided the fair 
thing to do was to give them more portability for their insurance and 
included a penalty of $100 a day plus injunctive relief for an employer 
who did not behave himself. We debated this liability issue then, and 
we decided not to do it.
  Now what we are doing parenthetically in this HMO bill is bringing 
back Kennedy-Kassebaum and bringing back COBRA and saying in addition 
to these penalties we put on the employers when we considered that, we 
are now going to open that up to litigation and lawsuits. That is a 
major step, and it should be done only with maximum consideration, and 
it must be considered in the context of any treatment of employer 
liability in any compromise we might fashion.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, I thank the Senator from Tennessee for 
what he just said. It was very good for me to let him respond to the 
other people who have spoken. I particularly suggest to the Senator 
from Tennessee that there is probably not as much concern on the part 
of the proponents of this legislation as to whether or not some of the 
self-employed plans will be abandoned if this bill passes because the 
Washington bureaucrat has an answer to that problem.
  That problem is, we will do what President Clinton suggested in 1993 
in his health care plan. We will mandate that every employer has to 
have insurance for their employee. Just mandate, don't worry about 
whether or not they can afford to do it. Just pass a Washington mandate 
that you have to offer this type of insurance.
  However, 42 million people in America today do not have health 
insurance. That number will increase if this bill passes as it 
currently reads. There will be things done in this bill that will not 
cause that to happen, if people on the other side of the aisle are 
willing to compromise. However, if they don't compromise, for these 56 
million people who are in self-insured plans, if some of those are 
abandoned by employers because they don't want the threat of a lawsuit 
hanging over their head, that number will be increased.
  That was suggested in 1993. That was not well received.
  It has been suggested after Senator Bond spoke that he never 
mentioned the word ``patient,'' as if he has no concern about patients 
being treated fairly and right. That is what Senator Bond's speech was 
all about. He was concerned that if this legislation passes as it is 
written, that employers that have self-insured plans--that don't have 
to offer those plans if they don't want to, but they do offer them 
because they want to have a good fringe benefit package for their 
employees--if they drop those for their employees, there are employees 
who will become patients some day who will not have coverage.
  This bill is all about concern for patients. It is not about concern 
for employers. It is concern for employers that want to offer plans in 
a self-insured fashion, that they will be encouraged to do it as they 
have already done for 50-some million employees, and continue, and keep 
the plans viable.
  Why would a family-owned ma-and-pa's plastic corporation, or a ma-
and-pa's family-owned machine shop providing self-employed plans for 
employees, why would they jeopardize the continued existence of the 
family-owned business if they could be sued under this legislation? 
What they are going to do is protect what they worked hard for: 
building up a business, employing people, being the backbone of their 
local community. That is what the ma-and-pa plastic shop and the ma-
and-pa machine shop is all about. They have created this business. 
Maybe it was created by a grandma and grandpa or mom and dad. It could 
be in its third generation. This is a family-held business that 
provides jobs, perhaps for dozens or hundreds of people. They want to 
provide fringe benefits for their employees, of which health insurance 
is the most important fringe benefit. They offer it in a self-insured 
fashion because that is the best way for them to do it. Why would we 
want to jeopardize it?
  Senator Bond was followed by the remarks of the Senator from 
Tennessee, that this is what this legislation is all about, making sure 
employees have the fringe benefits of health insurance, with all 
Members imploring we want to do something for the 42 million people in 
America who don't have it. If we want to do something for the 42 
million people who do not have insurance, and pass legislation as we 
did with tax credits to incentivize them to buy health insurance, why 
would we want to put in jeopardy the 50-some million people who already 
have it through self-insured plans?
  It is talking out of both sides of Congress's mouth. On the one hand, 
we are concerned about 52 million people. We have legislation 
introduced to do something else about it; on the other hand, we are 
dealing with a piece of legislation that could put in jeopardy the 
health care plans of 50-some million people who already have what we 
think the other 42 million people ought to be encouraged to have.

[[Page 11736]]

  It is concern over employees having health insurance, and giving 
those people, if they become patients, the treatment they deserve.
  I don't hear concern about patients getting treatment. I hear concern 
about lawyers getting tribute. We should be concerned about the patient 
and protecting the self-employed health insurance plans that 50-some 
million people have as part of that process.
  I hope we will consider the speeches by the Senator from Missouri, 
the Senator from Tennessee, to be speeches concerned about the 
employees and concerned about those people who become patients getting 
treatment. That is exactly to what they are speaking. I don't know how 
anybody could miss that point.
  I didn't come to the floor to speak about that aspect of this bill. I 
came to the floor to speak about a motion filed by my friend, Senator 
Frist, on Friday, to commit the bill before the Senate, the Kennedy-
McCain bill, to the Health, Education, Labor, and Pensions Committee on 
one hand and the Finance Committee on the other hand, and to do it with 
specific instructions from the entire Senate that this bill be reported 
back to the Senate within 14 days. I come to this conclusion because I 
am troubled that the Kennedy-McCain bill has bypassed these relevant 
committees and has been brought directly to the floor without one 
hearing, without one markup, and most importantly, without the public 
input into this particular bill that every bill ought to have.
  First, I strongly believe patients' protections are critical to every 
hard-working American who relies on the managed care system. We need a 
strong and reliable patients' rights bill, and I am supportive of this 
effort 100 percent. What we don't need is a bill such as the Kennedy-
McCain bill that exposes employers to unlimited liability and either 
eliminates that insurance or dramatically drives up the cost of that 
health insurance or perhaps being cut back or eliminated. Instead, I 
believe we should protect patients by ensuring access to needed 
treatment and specialists, by making sure each patient gets a review of 
insurance claims that may be denied, and above all, by ensuring that 
Americans who rely on their employers for health care can still get 
this covered. I am confident we can reach these goals. However, the 
very fact that our leadership brought the Kennedy-McCain legislation 
directly to the floor, without proper committee action, violates the 
core of the Senate process.
  I know my colleagues on the other side will waste no time in accusing 
me of delaying this bill. But the truth is, had the relevant committees 
been given the opportunity to consider Kennedy-McCain legislation in 
the first place, I would not be raising these objections. By bringing 
this bill directly to the floor, the message seems to be very loud and 
clear that the new chairmen--meaning the people who just have become 
chairmen because of the Democrat majority in the Senate, and under new 
leadership--are somehow merely speed bumps on the road to the floor.
  During my tenure as Finance chairman, Senator after Senator urged the 
committee process be upheld regarding tax legislation. I listened and I 
acted. I resisted strong pressures to bypass the Finance Committee as 
we considered the greatest tax relief bill in a generation. I forged a 
bipartisan coalition and a consensus, which I believe made it a much 
better bill. Ultimately, we were able to craft a bill that benefitted 
from the support of a dozen Members from the Democrat side.
  The Finance Committee has proven it can operate in a bipartisan 
fashion and craft good legislation in a timely manner. We are committed 
under this motion to report legislation out of the Finance Committee in 
14 days. The fact that the chairmanship of the committee has changed I 
do not believe will in any way affect our ability to work in a good, 
bipartisan manner. So I stand before the Senate as someone who has seen 
the importance of the committee process.
  The Kennedy-McCain legislation treads on the Finance Committee 
jurisdiction in ways that are by no means trivial, so I will explain. 
The Kennedy-McCain bill reduces Federal revenues by $22.6 billion, 
something that should only be done if that motion comes from the Senate 
Finance Committee. Nearly one-third of this revenue loss is offset by 
changes in programs within the jurisdiction of the Finance Committee. 
Section 502 of the bill before us extends customs user fees generating 
$7 billion in revenue over 8 years.
  You may recall when Congress first authorized these customs user 
fees, the avowed purpose was to help finance the cost of customs 
commercial operations and improvements. If these fees are to be 
extended--and I emphasize ``if''--it should be done in the context of a 
customs reauthorization bill. This is clearly an issue under the 
jurisdiction of the Finance Committee.
  Most of my colleagues know firsthand the financial pressures put on 
the Customs Service. From Montana to Delaware to Massachusetts, Texas 
and California, there is a dire need for funds to modernize the Customs 
Service. Yet the Kennedy-McCain legislation diverts money intended for 
customs and uses it to pay for this bill. This is not what Congress 
intended when these customs fees were increased.
  Before authorizing the collection of $7 billion in customs user fees, 
it seems to me the full Finance Committee should have an opportunity to 
carefully review, carefully analyze, and of course debate the 
implications of this move on the future of the Customs Service and 
customs modernization.
  Anybody who has been through customs knows how much time is wasted 
there, how much gets by the customs officials because they do not have 
the electronic and technical equipment that is necessary to do their 
job right, in a fashion that does not inhibit the free and easy 
transiting of American citizens into and out of our country.
  In addition, section 503 of the Kennedy-McCain bill delays payments 
to Medicare providers, which generate $235 million to help offset the 
losses of this bill.
  No. 1, customs fees; No. 2, delaying payments to Medicare providers 
to the tune of $235 million.
  Let me remind my colleagues, when they hold their town meetings, 
invariably they have to have people from doctors' offices, from 
hospital organizations, and from nursing homes already complaining, why 
doesn't the Federal Government pay its bills on time? Why are they a 
cash cow, an operating fund for the Federal Government while they are 
borrowing money at the local bank to keep their operation going because 
the Federal Government does not pay its bills on time?
  It is ironic that while many of us are spending significant amounts 
of our time working to improve Medicare's effectiveness and efficiency, 
this bill actually takes steps to exacerbate the frustrations so many 
providers already experience with delayed payments in Medicare today. 
So, as you can see, the provisions of this bill go a long way to 
undermine the Finance Committee's jurisdiction, not only on customs but 
also in the area of Medicare.
  In this first action by new leadership, the committee system and the 
committee jurisdiction are being tossed aside. I have heard once or 
twice from the other side that the justification of this behavior is 
based on the patients' rights debates in 1999, 2 years ago. There is 
continued talk about how the 1999 patients' rights bills were rammed 
through this Senate by Republicans.
  I want to say that is simply not the case. In 1999, the patients' 
rights legislation underwent a series of hearings in the Health, 
Education, and Labor Committee, and ultimately there were 3 days of 
markup. Let me repeat: 3 days of markup in the Health, Education, 
Labor, and Pensions Committee. Only after the bill was reported out of 
committee was it then brought up.
  Let me hear no discussion on this point. There is no justification 
for the conduct we are having on this bill. It is a fact that the 
Kennedy-McCain bill before us today has never undergone the committee 
process that the 1999 Patients' Bill of Rights did.
  Finally, let me repeat that for those who argue that this is just a 
delaying

[[Page 11737]]

tactic, they are simply wrong. The motion to commit instructs the 
Health, Education, Labor, and Pensions Committee on the one hand and 
the Finance Committee on the other to report this legislation within 14 
days. I repeat, if this bill had been handled properly through the 
committee in the first place, this motion would not have been 
necessary.
  This motion is not about delaying, it is about ensuring that we have 
a good patients' rights bill with bipartisan support that is subject to 
the benefits of the committee process and that the jurisdictions of the 
Health, Education, Labor, and Pensions, and the Finance Committees are 
respected. In other words, it pursues a point of view I tried to raise 
so much when we had the tax bill on the floor in late May. As I managed 
that bill, I said I hoped the work of Senator Baucus, on the part of 
Democrats, and myself on the part of Republicans, would bring a 
bipartisan bill before this committee that would serve as somewhat of 
an example of not only what can be done in an evenly divided Senate to 
promote good public policy but to promote good public policy in a 
divided body. Obviously, it must be done in a bipartisan way.
  We showed that it could be done in the largest tax bill to pass this 
body in 20 years. If we did it on taxes, surely we can do it on a 
Patients' Bill of Rights. I say that not just for the Finance 
Committee. It is my belief the Health, Education, Labor, and Pensions 
Committee can do that as well on their part, serving 100 Senators 
rather than having just a handful of people in this body decide the 
committee system ought to be thrust aside in the case of a Patients' 
Bill of Rights, and bringing a bill directly to the floor of the 
Senate.
  I have talked a lot about jurisdiction, but I want to talk about why 
I am raising these jurisdiction issues because that is a very important 
point.
  For me, the question isn't about inside baseball kind of topic like 
jurisdiction, which is necessarily important. But it is about two 
deeper issues that are even bigger than this bill.
  I know the public watching this debate, as we are told, is pretty 
disturbed when they only hear about Members of the Senate talking about 
the intra-institutional issues. That is what I have been talking about 
today to some extent. But on the other hand, I know the people of this 
country are interested in making sure that we protect patients' rights 
when they are up against the insurance company and feel hopeless about 
the insurance company not giving them the proper treatment which they 
are entitled to. The proper treatment the doctor-patient relationship 
demands. People want to know that what we are doing is improving their 
life.
  So I spend a little bit of time on intra-institutional procedure to 
say that having this bill go through the Health, Education, Labor, and 
Pensions Committee on the one hand, and the Finance Committee on the 
other hand, has something to do with drawing up a piece of legislation 
that will get these patients the protections to which they are 
entitled.
  What I am talking about can be summed up in two related questions.
  The first is: Why are we here? The second is: What is my specific 
role with respect to the people I serve in my State of Iowa and each 
Senator in their respective States in the larger national interest of 
seeing that patients are protected when they are up against an 
insurance company?
  The first question gets at our role as Senators with respect not only 
to this bill but any legislation. The second refers to our role as 
committee Members.
  So the first question: Why are we here?
  Just like the other 99 Members of this body, I wake up every morning 
and thank the people of my State for the privilege of representing them 
here in the Senate. Every action I take is an effort to improve the 
lives of folks back home. Many times I improve it by reducing the role 
of the Federal Government in their lives. As a conservative, that is 
generally my preference. On the other hand, there are times that 
Federal legislation is needed to expand the Federal role to help on a 
particular problem. This is an example--the Patients' Bill of Rights.
  With respect to any legislation but not just this one, if I believe 
it helps folks back home, I am going to push as hard as I can to see 
that the legislation becomes law. There is no more satisfying event 
than seeing the fruits of our labor revealed in ways that changes the 
lives of real folks back home.
  When I approach an idea and I think it is a good idea, my goal is to 
get it across the goal line. That is true with respect to this bill, 
the Patients' Bill of Rights.
  I think at this particular point in history the American people want 
results, and particularly on this issue. They want less partisanship, 
more action, and more thoughtful debate. People in Iowa expect 
Republicans and Democrats to work together, and to work together in 
conjunction with the President of the United States to get things done. 
They expect us as their Senators to do the same thing.
  Iowans expect us to refrain from playing partisan politics and to be 
serious legislators.
  I offer that as friendly political advice to many colleagues, 
particularly those on the other side of the aisle who seem to be 
visiting Iowa frequently these days. In fact, a surprising large number 
of Democrat Senators are coming to Iowa.
  I approach the tax cut bill as a serious legislative effort. My goal 
was to work with Republicans and Democrats to get a bill out of the 
Finance Committee. With Senator Baucus' support I did so. That bill 
improved President Bush's basic proposal.
  With respect to the particular policy areas that is the focus of the 
Patients' Bill of Rights, I start off with a view of how I can make 
good public policy become law. That particular policy is the arena of 
Senator Kennedy on the one hand, and Senator Gregg on the other in the 
Health, Education, Labor, and Pensions Committee.
  If my motion is agreed to, it is up to Senators Kennedy and Gregg to 
use the Health, Education, Labor, and Pensions Committee to process the 
bulk of this legislation through their committee. That is their call.
  This legislation faces a potential Presidential veto. That potential 
Presidential veto doesn't need to be there. It doesn't need to be 
hanging over our head as a cloud as we work on legislation.
  That is where the committee process is very important because maybe 
the product of the Health, Education, Labor, and Pensions Committee 
markup would not face a potential Presidential veto. Maybe some of the 
ambiguities that we have heard debated on the floor of the Senate this 
afternoon would be cleared up.
  Does anyone really think that by following regular order and going 
through the committee process the bill before us would be in worse 
shape? Would we have better known the administration's position if it 
had been in committee? Would we be sitting here wondering where this 
bill might be going, as we have heard countless numbers of Senators 
talk about how we can work out a compromise?
  Would we be hearing something more compelling from the bill's 
advocates other than that anyone who opposes the bill is delaying this 
bill?
  I guess one could argue that there is not much use in delaying a bill 
that the President is going to veto; that we ought to just quickly pass 
it.
  With the proper preparation and the proper compromise--and the 
committee system is the place to do that--we could avoid a veto, and we 
should work to avoid a veto.
  You can understand that the Finance Committee knows how to do this. 
Senator Baucus and I put a bill out, and we defeated all of the 
amendments to destroy that bill--close to 50--over the course of 3 days 
on the floor of this Senate. So it can be done right in committee.
  I would like to go back to the question of why we are here in this 
particular shape.
  I tell the folks in Iowa who sent me here that I am trying to get a 
Patients' Bill of Rights that we will have signed; in other words, that 
doesn't have a potential veto hanging over its head as

[[Page 11738]]

the bill we are debating today does. We would get a bill that would 
become law and provide them with real protections; most importantly, a 
bill to guarantee treatment for patients, not tribute for attorneys.
  In my view, bad process has impaired what could otherwise be a good 
product, a bipartisan, broadly supported Patients' Bill of Rights.
  But, once again, my motion defers the exact language of the bill to 
the Members of the Health, Education, Labor, and Pensions Committee to 
resolve these issues. That is the place it should be done.
  My second question: What is my specific role as a committee member?
  My role is to best use my position as a senior Republican on the 
Finance Committee to protect and to promote policies that help Iowans 
and the Nation at large. I have a responsibility to advance and to 
protect policy interests within the jurisdiction of the Finance 
Committee.
  There are policy implications in this legislation that are within the 
jurisdiction of my committee, the Finance Committee. These policies 
deal with three major subjects of the Finance Committee: trade, 
Medicare, and tax.
  It is my responsibility to Iowans and also to my Finance Committee 
members and to Members of the Senate as a body to be vigilant on these 
Finance Committee matters. I cannot let these things slip by, nor 
should I let them slip by. That would be very easy to do. But it would 
also be very irresponsible.
  My motion provides the Finance Committee with the opportunity to do 
its job on trade, Medicare, and health-care-related tax issues. This 
bill affects each of these to some extent.
  So I note that I am in some pretty good company when it comes to the 
value of the committee process.
  I would like to refer to a couple quotes that illustrate the 
importance of my point that we should not bypass the relevant 
committees of jurisdiction. These quotes come from Members who are very 
critical of the way the Senate acted by bypassing the Budget Committee 
on the budget resolution process a couple months ago.
  I remind those Senators of some of their comments about the 
importance of going through the committee process in the Senate. These 
comments, as I said, were related to the budget. Now let me quote the 
new chairman of the Budget Committee, Senator Conrad. This is a quote 
from a couple months ago:

       I think it would be a profound mistake for us to miss the 
     chance to have the Budget Committee do what it was designed 
     to do, which is to make the work of the larger body easier 
     because of the concentration of efforts of the members of the 
     committee on the responsibility they have.

  I quote the distinguished Senator from West Virginia, the now-
chairman of the Senate Appropriations Committee. He always shows great 
eloquence and devotion to this institution in his comments:

       Why have we seen fit in our constitutional system to have 
     committees? Why? If we are going to have committees, why 
     don't we have markups on bills and let Republicans and 
     Democrats hammer it out, hammer out the measure on the anvil 
     of free debate? Why does any chairman want to say to the 
     committee, I am not going to have a markup, period?

  These comments are relevant no matter whether Democrats or 
Republicans are in the majority in this body. Now, in a sense, since 
the changes of 3 weeks ago on the chairmanships and the majority of 
this body, the shoe is on the other foot. I will be curious to see 
whether these Members, and others who were so critical of the budget 
resolution process, will stick to the same rationale now that the 
committee process is being short-circuited for a measure they might be 
supporting.
  I bring up these comments because they reflect a well-founded 
sentiment of two very serious legislators whom I respect, Senator Byrd 
and Senator Conrad. The committees are kind of like laboratories or, as 
Senator Byrd said, like anvils. They are a place to test ideas. They 
are a necessary part of serious--and I underline the word ``serious''--
legislating.
  Senator Conrad indicated that there is a concentration of member 
knowledge and expertise in each of these committees. Is it exhaustive? 
Absolutely not. Am I saying that a bill cannot be improved with 
amendments on the floor? Of course, no legislation is perfect from that 
standpoint. But my point is, the legislative product, especially on 
something as important as health care, should start in the relevant 
committee.
  So my motion would allow the Finance Committee to assert its proper 
role.
  Let's turn to the specific Finance Committee matters that are 
implicated with this legislation and, hence, the reason for my motion 
to commit. The first is trade. As I said previously, the customs user 
fees have been extended to offset the cost of the Patients' Bill of 
Rights. We are talking about money that was raised by the Senate 
Finance Committee. Customs fees--getting in and out of the country, 
getting your baggage inspected, getting your boxes inspected--that 
money was raised to help the Customs Service and particularly for their 
modernization. Now they are talking about taking some of that money and 
putting it over here to finance a Patients' Bill of Rights. So should 
customs people be concerned? Should the Senate Finance Committee be 
concerned because we have jurisdiction over that legislation? Should 
passengers and travelers in and out of the United States be concerned 
when they are in long lines to go through customs? Of course they 
should be concerned.
  The Finance Committee authorizes and oversees the Customs Service. 
Customs may not be as politically compelling right now as a Patients' 
Bill of Rights, but it is very important to all of our constituents. 
Millions of us, and our goods, come through customs. Customs also 
protects our people from the entry of illegal products. For instance, 
customs checks for illegal drugs. Also, customs protects our farmers 
and consumers from diseased plants and animals.
  Just think of the ground zero attitude that is taken by customs today 
to make sure that the BSE disease, the mad cow disease, prevalent in 
England and Europe does not come into the United States.
  We need to have a customs operation that protects America. It is to 
be done at the point of entry. The amount of money we spend on that, 
and the technology our customs employees have, has something to do with 
whether or not they can do their job right and protect us. The quality 
of the Customs Service affects us all. So those of us on the Finance 
Committee do not approach customs matters haphazardly.
  As those of you who have traveled recently know, customs systems 
modernization is a problem we have to tackle. If we are to extend the 
fee, we should modernize the Customs Service. Customs fees should not 
be used to finance a Patients' Bill of Rights.
  The Health, Education, Labor, and Pensions Committee has had no 
hearings on Customs fees. There is a reason for that. The committee 
does not have jurisdiction over the Customs Service. Yet here we are 
with a bill that has not even been through the Health, Education, 
Labor, and Pensions Committee, and that bill is offset by a revenue 
source from another committee, our Finance Committee. Any Finance 
Committee member should be disturbed with this usurpation of our 
jurisdiction. Any Finance Committee member who supports this action has 
ceded away his or her role with respect to an important Finance 
Committee matter.
  The bottom line is, the Finance Committee, including all 20 of its 
members, has a duty to our constituents, and all of America, to make 
sure that the Customs Service isn't dealt with in a faulty manner. To 
the degree that we ignore this duty, we are being negligent. Again, 
that is the main reason for my motion: To let the committee members do 
our job.
  There is a second Finance Committee policy item covered by my motion. 
This legislation moves the payment date for certain Medicare providers 
by just one day. No big deal? Put it in its context. Medicare reform is 
something we are talking about right now in the Finance Committee. It 
is an important

[[Page 11739]]

topic, particularly because we want to give a prescription drug program 
to seniors under Medicare. Payment structure and dates are important 
questions that should be considered in the context of Medicare policy, 
not as some sort of an offset--which is the word we use--for unrelated 
legislation, because, in fact, this is an offset for an unrelated 
subject, the Patients' Bill of Rights.
  We ought not to mess with Medicare this way. This bill, pulled from 
the calendar by the majority leader, gets around Senate rule XV. That 
rule provides a point of order if one committee treads on the territory 
of another committee. The reason for the rule is to allow committees, 
such as the Finance Committee, with the expertise on a subject, such as 
Medicare, to develop the policy first.
  Why would Senate leaders, who expect the Finance Committee, in a 
bipartisan way, to report out a prescription drug bill for senior 
citizens connected with the Medicare Program, and, hopefully, with some 
dramatic improvements in Medicare, expect us to do that but not ask our 
advice on changing the payment date for Medicare?
  We ought to develop it within a policy context by the people on the 
committee who know how to do it and do it right. Then again, as with 
trade, my motion preserves the right of the Finance Committee to deal 
with Medicare. It would allow Finance Committee members to review the 
change in Medicare provider payment dates and make judgments of whether 
such a date change is sensible or not.
  As I said before, all of us have heard complaints from doctors, 
hospitals, and nursing homes that the Federal Government never makes 
Medicare payments timely. Our health providers already feel as though 
they are financing the Federal Government because of these late 
payments. This bill exacerbates that problem by creating further 
delays. The Finance Committee understands this problem. We will do it 
right if it needs to be done. My motion simply lets the Finance 
Committee members do the job they were appointed to do by the 100 
Members of the Senate.
  Now I turn to the third Finance Committee policy area implicated by 
this legislation, and that is the tax policy area. There are no Tax 
Code changes in this bill. The history of this legislation is an 
important element. The history of this legislation is that an important 
element is greater health care affordability and access. That objective 
has, in past legislation, been met through tax incentives.
  This bill's principal sponsor, for instance, the Senator from 
Arizona, Mr. McCain, recognized the importance of these tax incentives 
in the debate, as you heard him speak eloquently over the last several 
days. I also happen to believe that tax incentives for health care 
access and affordability are a very important part of health care 
reform. They are the basis for helping 42 million Americans who do not 
have health insurance today to get some health insurance. To this end, 
I have, for instance, proposed changes in the tax treatment of long-
term care insurance and expenses.
  Some might ask: Why, if I support health care-related tax cuts, did I 
oppose Senator Hutchinson's amendment on self-employed insurance? Well, 
it is a very good question, one I should be responsive to and answer.
  The answer is, most obviously, that Senators Hutchinson and Bond have 
an excellent proposal, one I strongly support as a policy of their 
amendment. But I opposed the amendment last week because the underlying 
bill is not a Finance Committee bill. In this case, the underlying bill 
is not a tax bill. So the third reason for my motion is to provide the 
Finance Committee with its rightful opportunity, through its tax-
writing powers, to add a health care-related tax cut title to this 
legislation.
  If this bill had gone through our committee, that would have been 
done. Or if it hadn't gone through our committee but we had had time, 
our committee would have voted out such an amendment, I am sure. There 
is no doubt that Senator Hutchinson's amendment, along with a number of 
other good health care-related tax cuts, would be on the floor right 
now being debated as part of this package.
  Once again, my motion let's us do this legislation the right way, by 
letting the Finance Committee members do their job. From that 
standpoint, again, I stress the bipartisanship of the Senate Finance 
Committee.
  At my urging, Chairman Baucus agreed to consider a package of health 
care-related tax cuts in an upcoming Finance Committee markup. So even 
if my motion fails, we will be back on the Senate floor in the near 
future with a Finance Committee package of health care-related tax 
incentives.
  In explaining the reason behind my motion, I talked about what the 
Finance Committee might or might not do if this motion is adopted. Just 
as importantly, I believe there are some serious negative implications 
if my motion is defeated in terms of how the Senate does the people's 
business. Let me turn to a couple hypotheticals to illustrate the 
problem my motion gets at. These hypotheticals, hopefully, will disturb 
all Members.
  Turn the clock back a couple months and hypothesize that Senator 
Lott, with my cooperation, were to move a version of the Finance 
Committee's education tax relief proposal. Also, let me say that the 
revenue loss from those tax cuts were offset by a change to a HELP 
Committee program, something like student loans. In other words, I am 
saying let's just suppose hypothetically that Senator Lott wanted some 
proposals from our committee to bring to the Senate floor and we were 
going to offset them with programs under the jurisdiction of the HELP 
Committee.
  Under this scenario, obviously, people on that committee could be 
very angry. They would have every right to be angry because that kind 
of maneuver on my part, as a member of the Finance Committee, would be 
wrong. They would have a right, then, in the Health, Education, Labor, 
and Pensions Committee, to be outraged. The Finance Committee would 
have no business in a bill pulled off the calendar such as this one of 
undoing a student loan policy under the jurisdiction of another 
committee. It would be wrong from two points, both substantive and 
procedural.
  What has happened here is just as bad. The Finance Committee members 
who support the process that has brought this bill before us should 
take a ``beware'' position. Supporting the process means they support 
disenfranchising their own committee. By contrast, anyone who supports 
my motion recognizes the legitimacy of the committee system.
  I have one last hypothetical. This time let's talk about another 
sponsor of this bill. Let's go back to Mr. McCain, the good Senator 
from Arizona, and his Commerce Committee. Under this hypothetical 
scenario, Senator Daschle, with Senator Baucus's cooperation, would 
bring a bill to create a special form of tax credit bond for Amtrak. 
That issue has been before us before. A part of that legislation pulled 
from the calendar, such as this bill, would suspend the Amtrak reforms. 
That is within the jurisdiction of Senator McCain's Commerce Committee 
or, as I could say, the Presiding Officer now, the Senator from South 
Carolina.
  I hope these Senators would be angry and rightfully so. I would 
expect them to protect a policy important to the Commerce Committee. 
Amtrak reform is that policy and that subject. These Senators would not 
want an alteration of the Amtrak reforms railroaded through the Senate 
on an unrelated bill drafted by a committee other than their own 
committee, the Commerce Committee, I would suspect.
  In both of these hypotheticals, the rights of committee members would 
be violated. These cases are no different than the case before us, the 
case of jurisdiction and sources of revenue from the Finance Committee 
being robbed without the consideration of the Finance Committee to fund 
a piece of legislation, the Patients' Bill of Rights, coming out of the 
Health, Education, Labor, and Pensions Committee.

[[Page 11740]]

  The two hypotheticals are disturbing because both involve dubious 
procedural and substantive policy decisions. Both hypotheticals short 
circuit important policy decisions and discussions.
  A faulty process usually leads to faulty substance. So I have taken a 
long time to tell you what my motion is all about. It corrects the 
faulty process that has ensnared this Patients' Bill of Rights, which 
should otherwise move to the floor only after debate in the committee. 
And if it had gone through the committees, I believe it would move 
through the floor proceedings very expeditiously.
  Mr. THOMPSON. Will the Senator yield for a question?
  Mr. GRASSLEY. Yes.
  Mr. THOMPSON. Let me make sure I understand the Senator. This bill 
that we have been considering has not gone through the committee 
process this year; is that correct?
  Mr. GRASSLEY. That is correct.
  Mr. THOMPSON. The Senator mentioned the prerogative of the committee. 
Having been a chairman, I understand what he is talking about. From the 
standpoint of patients and the Patients' Bill of Rights, which we have 
been here discussing today and Friday in terms of who was covered and 
who wasn't covered, when employers had liability and when they did not, 
are these the kinds of things that get hashed out in committee?
  Mr. GRASSLEY. Obviously. From the standpoint of the Health, 
Education, Labor, and Pensions Committee, these things were debated and 
hashed out in 1999 before the bill came to the Senate floor.
  Mr. THOMPSON. But not this year.
  Mr. GRASSLEY. Not this year.
  Mr. THOMPSON. In 1999, were there any liability provisions in that 
bill? I don't believe there were any liability provisions in that bill.
  Mr. GRASSLEY. Right, because I think there was due consideration to 
the tradeoff between the people who don't have insurance now--42 
million people--and the people who do have insurance through self-
employed plans, and that there was within the committee a real concern 
about whether or not those employers might drop their insurance--not 
that we are concerned about the employer, but we are concerned about 
the employee if they are not going to have health insurance.
  Mr. THOMPSON. What I am getting at is, is it not true that the 
liability parts of these bills have not been referred to the Judiciary 
Committee?
  Mr. GRASSLEY. That is absolutely right. I thought the Senator was 
talking about the Health, Education, Labor, and Pensions Committee. 
These would also be within their jurisdiction.
  Mr. THOMPSON. Not only has the Finance Committee not had a chance to 
consider their portion, the Judiciary Committee has not had the 
opportunity to consider the liability portion, which is so 
controversial. We are hashing out right now what this thick bill means 
regarding liability. It has never been in the appropriate committee to 
go through the natural, normal committee process on a bill of this 
importance; is that correct?
  Mr. GRASSLEY. Yes. I am a member of the Judiciary Committee, and we 
would look at these things and give them the due consideration they 
ought to have. I know the Senator from Tennessee has served on the 
Judiciary Committee and he knows that is a very important part of our 
work.
  I thank the Senator from Tennessee for bringing those points to us 
because he reminds me that not only has it not been considered by the 
Health, Education, Labor, and Pensions Committee, which I have been 
talking about, and the Finance Committee, because I am a member and the 
senior Republican on that committee, but also a third committee should 
have considered perhaps the most controversial part of this legislation 
before us, and that has not had the due consideration that important 
changes in law and liability ought to have in this Chamber.
  I am just about done. I have spoken now for a long time on my motion 
to commit to the respective committees. I guess I am being reminded my 
motion to commit is to the Health, Education, Labor, and Pensions 
Committee on the one hand and to the Finance Committee on the other. 
Maybe my motion should be broadened--although I am not going to do that 
at this point--to the point of the Judiciary Committee taking a look-
see at the liability provisions as well.
  A vote for the motion to commit would put this bill on the right 
track. It lets members of these committees do the job that we were sent 
here to do. The Health, Education, Labor, and Pensions Committee and 
the Finance Committee have a great track record in this Congress. They 
will continue to do so. Taking this bill through the relevant 
committees will only improve it and ultimately make it a better law, 
and one that is not in any way subject to a potential--I predict, not 
subject to a potential veto threat, as the legislation now is.
  After all, isn't getting the job done, getting a good Patients' Bill 
of Rights, what the people really want--a good law that is produced in 
a proper way, a bill that will guarantee treatment for patients, not a 
tribute for lawyers?
  I yield the floor.
  The PRESIDING OFFICER. The Senator from North Carolina is recognized.
  Mr. EDWARDS. Mr. President, let me say a few words about the bill and 
tell a story about a patient in North Carolina, and we will have an 
amendment to offer. First of all, the entire purpose of this 
legislation is to change the law so that the law is on the side of 
patients and doctors instead of being on the side of the big HMOs, 
where it has been for many years. We want health care decisions made by 
families who are affected by them, and by doctors and nurses who have 
the education and training to make those decisions. It is just that 
simple.
  That is the reason we create the rights among all Americans with 
health insurance or HMO coverage to have more control over their health 
care decisions. That is what this is about--having those rights be 
enforceable because if they are not enforceable, they don't mean 
anything. That is why we have specifically provided for access to 
specialists by families; access to clinical trials, if they need that; 
and being able to go to the emergency room directly without having to 
call an HMO or a 1-800 number before going to the emergency room--that 
is the last thing in the world any family ought to have to worry about 
before going to the emergency room--making sure a woman can see an OB/
GYN as a primary care provider.
  These rights are aimed at giving patients and families more control 
over health care decisions. We have all heard the horror stories of 
legitimate claims being denied by HMOs. That is what this bill is aimed 
at--putting the law on the side of the patients and on the side of the 
doctors.
  In addition to these substantive rights, we have provisions to make 
those rights enforceable, so that they mean something. We have an 
internal review process. First of all, the HMO decides in the first 
instance whether they are going to cover a claim. If that is 
unsuccessful, then we have an internal review process within the HMO to 
get that decision reversed. So if a child is denied the care that child 
needs, then the family has somewhere to go. These families who are up 
against big insurance companies, big HMOs, big bureaucracies, under 
present law they can't do anything. I say this to my colleagues who 
have been here.
  Some say we need to spend more time on this issue. This issue has 
been around for years now. Every day that we fail to enact legislation 
and have it signed by the President, there are thousands of people in 
this country who are being denied the care they need. This is an issue 
that we need to do something about and stop talking about. It should 
not be a political issue.
  Senator McCain and I have bipartisan support, consensus support for 
our bill here in the Senate and in the House of Representatives. We 
have virtually every health care group and consumer group in America, 
including the American Medical Association, supporting our legislation. 
These people deal with these issues every day. Doctors get to see what 
is happening to

[[Page 11741]]

their patients, and there are bureaucrats sitting behind desks 200 
miles away, never having seen their patient, telling them what their 
patient needs. We have families all over this country who know that 
their child needs a test, but some bureaucrat five States away, sitting 
behind a desk somewhere, says they are not going to pay for it.
  That is what this legislation is about--so that when people have 
health insurance and they have HMO coverage, it means something. If 
they get rejected arbitrarily and are treated unfairly and improperly 
by a big HMO, they would have the power, finally, to do something about 
it.
  That is why we have an internal review process--to reverse the 
decision within the HMO--and then if that does not work, we have an 
independent third party review, a panel of doctors, who can come in and 
say, that is wrong--the doctor was right, the HMO was wrong--and order 
the treatment be provided.
  None of these things exists today. Today, if a doctor orders a test 
for a 5-year-old child with cancer and if an HMO says, ``We are not 
paying for it,'' they are stuck. There is no internal review process; 
there is no external review process.
  What chance does that family have against a huge insurance company? 
That is what this bill is about. It is about a very simple idea: that 
HMOs and insurance companies ought to be treated as everybody else; 
more importantly, putting the law finally back on the side of patients, 
families, and doctors so they can do something about a wrongful 
decision by an HMO or an insurance company. That is what this debate is 
about.
  The HMOs have been trotting out every conceivable obstacle to 
something happening. Anybody who turns their television on will see the 
ads they are running right now, all these scare tactics and old 
rhetoric. They have been using it for years. They just want to do 
everything they can to keep their special status, their privileged 
status. They like things the way they are. They do not want patients 
and families to have any power.
  We are going to do something about it. I will tell you something 
else: The families, the children, the patients do not have lobbyists in 
Washington; they do not have millions of dollars to buy ads on 
television. They are counting on us to represent them. They are 
counting on us to do something for them. That is what this debate boils 
down to: You are either on the side of maintaining the big HMO special 
status or you are on the side of letting families, doctors, trained 
people, make health care decisions.
  It is not an accident that the American Medical Association, hundreds 
of health care groups, doctors groups, and consumer groups support our 
bill. It is not an accident that most of the Senate supports our bill. 
It is not an accident that most of the House of Representatives 
supports our bill.
  There is a consensus in this country that something needs to be done. 
What we have to make sure that we get past all the old rhetoric, all 
the old scare tactics, all the propaganda that is put out by the HMOs. 
They have huge resources and their voice is heard loudly and clearly in 
this debate.
  Our responsibility is to make sure the voices of the families of this 
country who do not have big money, who do not have anybody lobbying for 
them in Washington, are being heard. That is what this is about. 
Stalemate and nothing occurring is exactly what the HMOs want. That is 
the easiest result. We have to overcome that. We have to overcome their 
rhetoric. We have to overcome these obstacles because we are fighting 
for the children and families of this country who need to make their 
own health care decisions.
  Today I want to talk about one such family. This is a young woman 
from Wilmington, NC. Her photograph with her husband is behind me. Her 
name is Terri Seargent. She suffers from a fatal genetic disorder known 
as alpha one. Alpha one keeps Terri's liver and lungs from working 
properly. Her body is not able to fight off viruses or pollutants in 
the air, and if it is left untreated, alpha one eventually destroys the 
lungs and causes the patient to die. Terri is still fighting this 
disease, but she is at the point where she only has 43 percent lung 
capacity.
  The problem is Terri is not just fighting this serious disease; she 
is also fighting her HMO. Ever since she was diagnosed with alpha one, 
she has been treated by specialists who put her on medication to keep 
her lungs working as well as they can, to keep her from getting worse. 
With that medication, she is able to lead a fairly normal life even 
though she has a serious problem.
  She continues to work. She switched jobs, so she has a new HMO, a new 
health plan. Her HMO first would not let her see the specialist she had 
been seeing. Second, they would not pay for her medication. They told 
her she ought to switch to a generic drug because it was cheaper, but 
then they would not pay for the generic drug.
  Here is a young woman who has a very serious medical problem; she is 
continuing to fight through it courageously to go to work and do 
everything she can to be productive for herself and her family, and her 
HMO will not let her see a specialist and will not pay for her 
medicine. Her medication costs $4,000 a month. It is expensive, but it 
is critical to the quality of her life and being a contributing member 
of her family.
  What good is her health insurance--she has been paying premiums for 
years now--what good is that if, when it actually comes time that she 
needs this medication to allow her to continue to live and stay as 
healthy as she can and continue to work, the insurance company will not 
pay for these prescription drugs she desperately needs?
  Unfortunately, Terri's case is one in a long list of what we hear 
every day. When I have townhall meetings or when I am standing on a 
street corner talking with people, over and over they come up to me and 
say: You won't believe what the insurance company did to me; you won't 
believe what the HMO did to my child.
  These people need a chance; they need a fighting chance, and that is 
all we are trying to do, to level the playing field. Let's give these 
families and young women such as Terri who have serious diseases a 
chance when their insurance company or HMO says: You are out of luck; 
we are not paying for it. When a child with cancer needs a test or 
specialized care and the HMO or insurance company says, ``We're not 
paying for it,'' even though they have been paying premiums for years, 
all we are trying to do is give that family a chance. It gets to be 
pretty simple.
  In many cases, it is an individual, a child, a family against a big 
insurance company, the same big insurance companies that are spending 
millions of dollars on lobbyists and television ads right now to make 
sure people such as Terri cannot take them on. That is what this fight 
is about. It gets to be about a very simple problem.
  I have worked with my colleagues on this issue all the time I have 
been in the Senate--some worked on it very hard before I came to the 
Senate. I believe when we finish this debate--hopefully this week, but 
if not this week, for whatever period of time it takes--that we will 
finally be able to say the big HMOs and all their money and all their 
power have been overcome and doctors, patients, and families in America 
finally have a chance.
  Mr. REID. Will my friend yield for a question?
  Mr. EDWARDS. Yes.
  Mr. REID. The Senator has done a great job of explaining how 
important this bill is to patients, but it is also important to 
doctors. If the Senator will allow me to read a letter I received from 
a Las Vegas physician, this physician is formerly head of the State 
medical society and is chief of staff to the largest hospital in 
Nevada, about an 800-bed hospital. This letter is addressed to me.
  After the first paragraph saying hello to me, he said:

       As you have heard from so many Nevadans over the past 
     several years, we need a mechanism where patients have 
     options where care is denied. The following case is a clear 
     illustration.
       On April 20th 1999, Joseph Greuble died at the age of 47 
     from malnutrition. Joseph's malnutrition was a direct 
     complication of

[[Page 11742]]

     his life long battle with Crohns Disease. Joseph's 
     gastrointestinal problem was quite complex. His disease was 
     complicated by ulcerations, fistulae, bleeding, obstruction, 
     electrolyte disturbances, seizures, and chronic pain, and 
     Joseph required multiple operations. Continuity of care is 
     most important when dealing with an incurable, chronic, 
     debilitating disease. In Joseph's case, the system's failure 
     to provide continuity of care proved tragic and fatal.
       I served as Joseph's personal physician for 11 years. As 
     Joseph's conditioned worsened he was no longer able to live 
     independently, and he moved into his mother's small apartment 
     in Las Vegas. His mother would accompany him to my office for 
     all of Joseph's visits and as a result, I came to know his 
     mother Marion quite well.
       For over a decade, I performed needed physical 
     examinations, arranged for appropriate diagnostic studies, 
     wrote Joseph's prescriptions, and attended to him in the 
     hospital whenever he required admission due to complications 
     of his disease. One of Joseph's most pressing needs was for 
     nutritional support. Joseph had become malnourished as a 
     complication of his Crohns Disease, and required TPN 
     (intravenous nutrition). Joseph's weight had fallen to just 
     over 110 pounds, and a 5'10" tall Joseph needed the TPN to 
     maintain his weight and prevent death due to malnutrition.
       In January of 1999, Joseph was told by his HMO that I could 
     not longer treat him. Appeals by both myself and Joseph to 
     have this decision reversed were denied. My offer to see 
     Joseph free of charge was rejected by the HMO, as I still 
     would not have been permitted to write his prescriptions, 
     direct his nutritional support, order any diagnostic testing 
     or request needed consultations.
       While I do not have any of the medical records of Joseph's 
     treatment for the three months after he left my care, 
     Joseph's mother informs me that his TPN had been 
     discontinued, that his malnutrition worsened, his weight 
     dropping to less than 100 pounds. Joseph, malnourished and 
     unable to fight off infection, subsequently developed 
     pneumonia, sepsis, and died.
       I have received permission from Mrs. Grouble to share this 
     story. Morion hopes that sharing her son's story will help 
     achieve the needed legislation to prevent this from happening 
     in the future. Holding health plans accountable when they 
     harm patients is not about suing insurance companies and 
     driving up the cost of health care, it is about stopping 
     abuses and bringing compassion back to medicine. Until the 
     health plans are accountable, people like Joseph and his 
     family will continue to suffer.

  I say to my friend from North Carolina, this is his bill before the 
national legislature. This legislation, the Senator would agree, would 
help patients, but also would help physicians such as my friend, Dr. 
Nemec, prescribe and give appropriate care to patients. Is that a fair 
statement?
  Mr. EDWARDS. That is absolutely a fair statement. When I have town 
hall meetings in North Carolina, we often have physicians show up and 
share horror stories, including ordering care for a patient, with some 
clerk sitting behind a desk 300 miles away reversing it and overruling 
a doctor with many years of education and training because they thought 
they knew better; there was no way they would pay for the particular 
care.
  Mr. REID. Dr. Nemec stated this is one of many cases. He could write 
me letters on case after case, but he wanted me to indicate he feels 
this is just about the straw that breaks the camel's back. A man 5 foot 
10, weighing less than 100 pounds, and they prevented him from eating, 
in effect: You are going to die anyway; what is an extra few months or 
a year.
  I want the Senator from North Carolina to know how much I and the 
people of Nevada appreciate the work the Senator is doing, spending 
weeks of his time working with Senator McCain, coming up with 
legislation that allows the Frank Nemecs of the world to give proper 
care to patients and will allow people such as this lovely woman, 
pictured behind me, to know when she pays for her insurance for years, 
when it comes time she needs help, that help will be there.
  I want the Senator to know how much I appreciate what is being done. 
Not only do I appreciate it but so do the people of the State of 
Nevada. Hundreds of organizations all over the country have contacted 
us. I have read into the Record already, and I will continue reading 
when we have time on the floor, the names of the entities that support 
the work done by the Senator from North Carolina. The Senator has been 
here a short period of time. The impact he has made and the impact he 
will make adding his name to this legislation will give people hope for 
generations to come. I appreciate the Senator's work.
  Mr. EDWARDS. I thank the Senator for his comments.
  I point out, as the Senator well knows, the American Medical 
Association strongly supports our legislation. Having met with them 
many times about this issue, they want their doctors to be able to 
provide the quality care they need to provide to their patients. It is 
a simple thing from their perspective. For health care providers, 
doctors and nurses, this is not a money issue. This is not an issue of 
what their earnings or salaries will be. This is purely an issue of 
whether they are going to be able to provide the care they have been 
educated and trained and have spent their life preparing to provide. 
That is what this is about. They are committed to doing something.
  Every day their members all over this country see in their offices 
patients who need treatment, who need care, who are being arbitrarily 
denied by people far away who have never seen them, who have no idea 
what they need.
  The horror stories go on and on. We have a young man in North 
Carolina who is severely sick. They quit paying for his oxygen. We had 
a young boy with cerebral palsy who needed physical therapy and other 
therapies on a daily basis and they said it would not do any good; they 
were not paying. The stories go on and on and on.
  With respect to our colleagues on both sides of the aisle, we will 
work our way through the intricacies of this legislation, whether the 
issue of exhaustion of administrative remedies, legal terms that may 
not mean a lot to the American people, we will work our way through 
those issues and find a bipartisan way to get that done.
  What we shouldn't do is leave the Senate without having done 
something about this issue. The issue has been around for years and has 
been fought vigorously by the HMOs. We have a responsibility to empower 
the families of this country to have more control over their health 
care decisions. That is what this debate is about. Hopefully, by the 
time we finish this debate, whether this week or next week or the 
following week, however long it takes--and I believe Senator Daschle 
indicated he is willing to stay as long as we have to--we will be able 
to walk out of here and be proud of what we have done in giving 
families, doctors, and patients more control over their health care 
decisions and the power to do something when they have been treated 
improperly. That is what this is about.


                           Amendment No. 812

  Mr. President, pursuant to the previous order, I call up the 
amendment at the desk by Senator McCain and myself.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from North Carolina [Mr. Edwards] (for Mr. 
     McCain (for himself and Mr. Edwards)) proposes an amendment 
     numbered 812.

  Mr. EDWARDS. I ask unanimous consent reading of the amendment be 
dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

    (Purpose: To express the Sense of the Senate with regard to the 
             selection of independent review organizations)

       At the appropriate place, insert the following:

     SEC.   . SENSE OF THE SENATE REGARDING FAIR REVIEW PROCESS

       (a) Findings.--The Senate finds the following:
       (1) A fair, timely, impartial independent external appeals 
     process is essential to any meaningful program of patient 
     protection.
       (2) The independence and objectivity of the review 
     organization and review process must be ensured.
       (3) It is incompatible with a fair and independent appeals 
     process to allow a health maintenance organization to select 
     the review organization that is entrusted with providing a 
     neutral and unbiased medical review.
       (4) The American Arbitration Association and arbitration 
     standards adopted under chapter 44 of title 28, United States 
     Code (28 U.S.C. 651 et seq.) both prohibit, as inherently 
     unfair, the right of one party to a dispute to choose the 
     judge in that dispute.

[[Page 11743]]

       (b) Sense of the Senate.--It is the sense of the Senate 
     that--
       (1) every patient who is denied care by a health 
     maintenance organization or other health insurance company 
     should be entitled to a fair, speedy, impartial appeal to a 
     review organization that has not been selected by the health 
     plan;
       (2) the States should be empowered to maintain and develop 
     the appropriate process for selection of the independent 
     external review entity;
       (3) a child battling a rare cancer whose health maintenance 
     organization has denied a covered treatment recommended by 
     its physician should be entitled to a fair and impartial 
     external appeal to a review organization that has not been 
     chosen by the organization or plan that has denied the care; 
     and
       (4) patient protection legislation should not pre-empt 
     existing State laws in States where there already are strong 
     laws in place regarding the selection of independent review 
     organizations.

  Mr. EDWARDS. We have talked about the need for an independent review 
once there is an internal review and the HMO or insurance company 
denies the claim, to be able to go to a truly independent panel to get 
the case decided and the decision reversed if a wrongful decision has 
been made. This sense-of-the-Senate amendment simply provides we all 
believe that review panel needs to be truly independent in that the HMO 
and the insurance company should not be able to appoint the members of 
that panel nor have control over who goes on that panel.
  We will debate this amendment tomorrow, but its underlying purpose is 
to support the notion that I think a majority of the Senate, maybe the 
vast majority, supports, which is if you are going to have an 
independent review by a panel of health care providers or doctors, that 
panel needs to be truly independent, not connected to the HMO, not 
connected to the insurance company, and also not connected to the 
patient or the doctor involved, so you have a fair and impartial group 
to decide whether the claim or treatment should be paid.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. THOMPSON. Mr. President, I was listening to the description of 
the sense of the Senate and I wish to compliment my colleague from 
North Carolina for introducing it. It is extremely important in the 
administrative process that the procedures we set up are guaranteed to 
be qualified and guaranteed to be independent. This bill goes a very 
long way towards doing that. Obviously, I have some problems with this 
bill. With regard to the provision setting forth these independent 
entities, the qualified external review entity is established. That 
means when we have these cases where there is an issue as to whether or 
not there is coverage, it is the independent person who decides.
  We hear about a lot of terrible cases. We get letters from people. We 
talk to people when we go back home. We hear about people who are sick; 
in some cases there is absolutely nothing anybody can do, and certainly 
not us. We hear about people who have terrible accidents. We hear about 
people who are victims of crimes. We hear about a lot of misfortune. 
But, in the health care area, we have a system in this country where 
people can get insured for a lot of things. The deal is, your employer 
provides this for you. The deal is, your wages are affected by it, of 
course. The deal is, we are going to provide you insurance to cover 
certain things in exchange for a premium that the employer is going to 
pay.
  If you cover absolutely anything, and you have a contract--which has 
never been drafted--that says whatever happens to you, however you get 
sick, however much it costs, however onerous your injuries, we are 
going to cover you, no questions asked--the premium for that would be 
astronomical. Nobody could afford that. It is unfortunate. It doesn't 
make that person any less sick. It doesn't make that person any less 
deserving. But that is just the way it is.
  We got into managed care because we, in this body, encouraged the 
creation of these HMOs. The reason for that wasn't because we liked 
HMOs. The reason was that health care costs were becoming astronomical 
and people were losing their health care. As tragic as these stories 
are, they would have been just as tragic had their employers never 
bought the health insurance. There would not be any dispute over 
whether or not there was coverage. This would not even be a policy to 
start with. That would not help these poor people.
  So we have a system where certain things are covered for a certain 
premium. In a free market, those things work out. If somebody is 
messing up on one side, the other side will take care of it. That is 
the way the system works. As I say, if you are going to have a system 
where the Federal Government says that, regardless of whatever the 
claim is, it has to be paid, you can have a system like that. Nobody 
has suggested that. I wonder why no one has suggested that. Our hearts 
go out to people because of these stories. Our hearts go out for all 
these sick people. Why don't we just say the Federal Government will 
see to it, either directly out of the Federal Treasury or we will make 
an insurance company take care of whoever is sick for whatever reason? 
It is a nationalized health care system. You can debate that. You can 
argue that. Some people would argue on behalf of that.
  Nobody is suggesting that. Why not? Because we do not want to take 
care of these people? Of course not. It is because we know the effects 
of that. Because for everything we do, for which we can make a case, to 
help people and give rights and give benefits and make other parts of 
our society give third parties of our society certain rights and 
benefits so the Federal Government doesn't have to do it--we make other 
citizens, other companies, do it for us--we can do all that, but there 
are always effects from that. We were elected to look at all that and 
try to balance it and try to come up with something that is reasonable. 
Not something that will come up and cover every hypothetical case that 
may ever come about, because that cannot be done, but something that 
will reasonably balance the coverage we want people to have, I want my 
family to have, something the average person can afford, something the 
average small employer can afford. Otherwise, they are not going to buy 
any insurance at all.
  The point I am getting to is that there are some cases, where 
coverage is at issue, in which everybody is operating in good faith. It 
is not a matter of the big guy and little guy and the big guy is always 
wrong and the little guy ought to be paid. It is a matter of reasonable 
people sitting down and having a consideration, discussion, and 
sometimes a disagreement as to whether or not a particular procedure is 
medically appropriate.
  Honest doctors disagree about that all the time, whether or not a 
particular procedure is experimental or not. If a policy covered all 
kinds of experimental things that we did not think would help you--
there is a 99-percent chance it is not going to help you any, but it is 
experimental; we can spend $1 million to see what it is; policies just 
don't cover that--prices would be astronomical. Nobody could afford 
that. So you get into the question, Is it medically called for? Is it 
an experimental thing?
  Honest people can disagree about things such as that. We do it all 
the time. We are talking about lawsuits, and that is what happens in 
lawsuits. You would not have any lawsuits in the medical area, in the 
malpractice area, unless you had doctors on both sides of the cases 
taking different views of these matters. We have to resolve these 
matters. We cannot just predetermine that because a case is meritorious 
and our heart bleeds for an individual case, all of it is covered any 
time for anything. Nobody could afford it. It is a practical, hard part 
of life with which we have to deal. And we are doing a disservice to 
our constituents if we do not remind them that there are tradeoffs and 
there is a bigger picture with which you have to deal.
  Here is where we are going. We are getting down to the fact that, as 
I said, we have in some cases a dispute as to whether or not something 
is medically called for. What this bill does, and what this resolution 
supplements, is that it says when you have a situation such as that, 
let's set up an independent person, an independent entity.

[[Page 11744]]

In the bill it is called a qualified external review entity. It is 
external because it is not a part of any employer's process; it is not 
a part of the employer's deal. The employers do not control this.
  The bill takes several pages setting up, I think very skillfully, an 
independent entity that is highly qualified, that is very independent, 
that is monitored by the Federal Government to make sure they take a 
look at that issue to see whether or not there is coverage on an 
individual incident.
  Once again, if you were going to say on the front end everybody who 
needs coverage has to be covered, regardless of whether or not it is in 
the insurance policy or anything else, you would not need this external 
review and your premiums would go through the ceiling and everybody 
would be calling for nationalizing the health care system in this 
country. But we are not doing that.
  This bill calls for this external review process. That entity 
determines whether or not this is a medically reviewable decision or 
not. That entity determines whether or not there is coverage. If that 
entity decides that it is a medically reviewable matter, there is 
coverage, it goes to another independent level. And this bill sets up 
an independent medical review. This first reviewer doesn't have to be a 
doctor, necessarily. But on the second review it has to be a doctor. He 
is independent. He has nothing to do with the employer. He is 
qualified. He is supervised and overseen by the Federal Government. He 
takes a look at it and he makes a decision.
  So far so good. Again, this is a reasonable response to these sad, 
sad stories that we know people tell and we all hear about from time to 
time. If you are not going to say: Cover everything all the time and we 
are going to, depending on how sick a person is, determine coverage--if 
you are not going to do that, you have to have some way of reasonably 
and fairly deciding what is right. This bill sets up two levels of 
independent review. I think that is an appropriate way to balance the 
need to cover people for what they contract for, for what coverage is 
for--for which you are paying a premium commensurate with the coverage, 
on the one hand, and a need to make sure there is at the end of the day 
some coverage that is affordable for somebody so we do not add to the 
40 million people who have no insurance at all.
  So far, so good.
  The problem I have is not with the bill I just described. The problem 
I have is not with this resolution which reinforces the idea that we 
need independent review. The problem I have is that you can go through 
that entire process and, if a claimant is turned down, they can ignore 
that entire process and still sue in State court, they can still sue in 
Federal court, and they can still sue in any jurisdiction where the 
defendant has a place of business or is doing business for unlimited 
damages. They can still sue an employer who gave them the insurance.
  That is what I have trouble with--not that we are setting up an 
independent review process. It is that we are not honoring the 
independent review process. We are saying we are going to set it up. 
But if it turns out one way, we are going to adhere to it. If the 
claimant wins, then it is binding on the employer. But if these 
independent entities decide that the claimant does not win, because it 
is one of those 99 percent deals, and it is an experimental thing: we 
just do not cover that; our heart goes out to you, but you just didn't 
pay for that much--if they decide that, then it is as if all of that 
independent stuff doesn't count. Here is where the lawsuits start.
  That is the problem I have with this bill.
  We must recognize that there are tradeoffs for everything we do in 
this field. It is easy to give new rights, and establish new rights, 
either out of the Treasury of the Federal Government or making some 
company pay for something else. But it has an effect on people's 
conduct. People do not just sit still. If you triple somebody's taxes, 
it is going to affect their behavior. If you cut their taxes in half, 
it is going to affect their behavior. If you place new liabilities on 
employers--some of them are small employers trying to furnish decent 
health care packages to their employees--they do not have to. But if 
you make things tough enough on them, they are just going to say: We 
are either going to drop coverage or we are going to give you some 
money. You go get your own health insurance and I don't have any 
liability. And that employee may or may not take that money and buy 
health insurance; he can do whatever he wants to with it.
  What we do affects people's behavior. It is not enough to talk about 
sad story after sad story and say that is fact. We all agree to that. 
All of us are looking for a way to balance the approach so people can 
be properly covered to the extent possible where folks can still afford 
coverage in this country. Health care prices are already going up at 
double-digit rates before this bill is passed. If we make the lawsuit 
liability so great that people can't afford coverage, it is going to go 
up even higher.
  We already have 40 million people in this country who have no 
insurance at all. Our job is to try to come up with a balanced approach 
so that we don't add to those 40 million people. We can't just sit out 
here and talk about one sad story after another without considering the 
effect of the public policy we are putting into place.
  We had before this body, before I got here, when President Clinton 
was President, the Clinton health care plan. It had noble motives, too. 
We heard about people who needed help and needed coverage, and so 
forth, at that time. The whole Nation did. This body considered that 
bill. This body decided not to go in that direction because in many 
people's minds it was a nationalizing of our health care system; that 
as much as we have instances sometimes where things fall through the 
cracks, on the whole, people do not fly to England in order to get 
their medical coverage. The rich people of the world fly here. We have 
the best overall medical system in the world. We didn't want to 
nationalize our health care system. We turned that down. It wasn't 
because our heart didn't go out. It wasn't because there were some 
pitiful stories out there where people needed more help than they were 
getting. But it was, on balance, because we didn't believe it would be 
good for those same people if we nationalized our health care system.
  I do not know if we have changed our minds about that or not. I don't 
think so. But that is what we are doing here with this bill the way it 
is now drafted. We are nationalizing our health care system in a 
significant respect by other means. We are doing it by an unfunded 
mandate on corporations. The Government is not sending people checks 
for their health care, but they are requiring other people to. We can't 
think we can do things such as that without having an effect on 
people's conduct.
  Health care costs got out of hand in this country. We responded with 
a managed care response to it and tried to make that balance to provide 
enough care that would cover people in most cases but would not be so 
costly that it would drive people out of the system. It didn't always 
work. There were some excesses. Some of these HMOs did some bad things. 
States got into the act. My State of Tennessee covers more things than 
the McCain-Kennedy bill does in many respects--it is not as if the 
States are not addressing these issues--and in response to that, health 
care costs went back up a little bit. We can live with that. But now we 
are coming along and laying a whole new Federal layer on top of that, 
double-digit increases in health care costs being present today. And we 
have no idea what that is going to do to costs when we are saying we 
are going from a system where there is no redress, right past the 
system of independent review, which would be a major beneficial change 
where independent doctors would be deciding the right to unlimited 
lawsuits.
  We have no idea what that is going to mean to the cost of health care 
in this country. If we think employers are going to sit still for that, 
that small employers are not going to change

[[Page 11745]]

their conduct, that prices are going to remain the same and that these 
HMOs are not going to protect themselves in terms of price increases to 
cover their new exposure, we are fooling ourselves.
  I am not saying we shouldn't respond to current circumstances. I am 
just saying we are hearing too much of this side of the story and 
nothing about the other. We are doing the American people a disservice. 
It doesn't take a lot for Members of this body to grant new rights and 
extend our sympathy. Sometimes it takes a little more to say that is a 
relevant part of this discussion. But let's talk about the effects of 
what we are about to do.
  I hope we don't have this debate 2 years from now and we have these 
same sad stories coming in about my problem wasn't that we got into a 
dispute over coverage and they were not covering it, but they cut me 
off. My problem was I didn't have insurance to start with because my 
employer couldn't afford it.
  I commend the Senator for offering the sense of the Senate. I think 
these independent entities ought to be strong. We have set them up now 
in this bill. My problem is we don't use them. They can be circumvented 
without exhausting the administrative remedies. It goes straight to 
court. Or we can go through and use them, but if you get an adverse 
decision and the best independent minds look at this and say, sorry, 
but there is no coverage, it doesn't matter; it is as if they didn't 
exist. You can then begin a whole realm of lawsuits against HMOs, 
against employers in some cases, and even against these independent 
entities that have made the determination. Both the external reviewer 
and the doctor can be sued because they decided against coverage.
  There is in this bill a higher threshold of proof against them to 
prove they are guilty of gross misconduct. But when we use these 
independent entities that we are bragging about and we are talking 
about how strong and important they are, let's use them. Let's not just 
use them as a starting place and a debating point and go through a year 
or two of that and a decision that everybody admits was objective and 
untainted, and then totally treat it as if it didn't exist because we 
want to open the door to unlimited lawsuits for unlimited amounts for 
everybody in sight. That is not helping those poor people. That is not 
going to help those poor people who need medical attention and medical 
coverage.
  They have exempted doctors and lawyers. A lot of doctors support the 
bill because when they get sued, they want the HMO also to be right 
there beside them. I understand how that works. So the doctors support 
them. The doctors were exempted. The doctors are exempted in this bill, 
and so are the hospitals. People who are giving the health care have 
been exempted. But the people who are furnishing the health care, the 
employers, have not been exempted. It doesn't seem right to me.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Stabenow). Who yields time?
  The Senator from Montana.
  Mr. BURNS. I thank the Chair.
  Madam President, I know there are a lot of folks who want to go home 
about now. I have listened to this debate on the television with a 
great deal of interest. We have heard all kinds of examples of bad 
things that can happen to people. Of course, we could talk about those 
kinds of things in any field because there are certain circumstances 
where you could sometimes find victims of circumstance and sometimes 
find victims of greed.
  We have also heard that our health care system is very complicated. I 
will tell you, I do not think our system is complicated. I think we are 
moving a piece of legislation that is going to complicate it.
  Since the introduction of Medicare and Medicaid, it has grown more 
complicated all the time. If one thinks HMOs are hard to deal with, I 
am wondering if anybody has had the opportunity to deal with HCFA 
lately. Just try to get some things done for an elderly mother or 
father. I do not see anything in the three proposals right now that 
deals with the real and perceived problems with private insurance plans 
or HMOs.
  We have advertising that is on every radio station in this town. They 
have lots of facts, some of which are a little misleading. Patients' 
rights are assured to those who are covered by HMOs and insurance plans 
now, but it seems to me where the dispute begins is either the insured 
did not understand what he or she was buying or what the specific 
coverages were to which they thought they are entitled.
  I am not going to stand here and defend the HMOs or the insurance 
companies, but what has happened to the industry is making them more 
cautious about the kinds of contracts they issue. And again, with the 
consumer, as in all areas of the American way, the buyer has to be 
concerned. It has always been that way. But as plans were gamed and 
abused, insurance companies and HMOs became more precise in the 
offering of their coverages; in other words, the fine print became even 
finer and smaller. Patients have rights, but not for compensation for 
specific health care problems that are clearly exempted from coverage.
  So what I am saying is, when you are buying something, buyer beware. 
Again, with regard to this problem of companies being driven to that 
kind of a situation, how far they can go, and how far they will go, we 
do not know. We do not know how much they can stand.
  A Patients' Bill of Rights is nothing new for me. In 1994, along with 
my distinguished colleague from Minnesota, Senator Wellstone, we had a 
Patient Protection Act. The goal of that bill was to assure fairness 
and choice to patients and providers under managed care health benefit 
plans.
  I still believe it is essential we ensure that managed care 
techniques and procedures protect patients and guarantee the integrity 
of the patient-physician relationship. Let me repeat that. We have to 
guarantee that the integrity of the relationship between the physician 
and the patient is protected.
  I am not without a physician in my family, and we talk quite 
frequently of these and other issues related to the Patients' Bill of 
Rights and the problems she faces as she attempts to administer quality 
and necessary medical care to her patients. It is an area in which I am 
particularly interested.
  I believe all Americans should have access to quality, affordable 
health care and to be able to select the health care plans of their 
choice. I support legislation that requires HMOs to be more responsive 
and accountable to their patients. We must ensure choice, quality, and 
access at all times.
  I think it is fair to state we have reached general agreement over 
many of the consumer protection aspects of all three of these bills 
that have been presented to the Senate.
  Doctors must be able to discuss the full range of treatment options 
to their patients. I continue to believe that gag clauses in health 
care provider contracts attack the heart of the doctor-patient 
relationship, and they eat into the most important factor in the 
healing process, and that is trust.
  In addition, customers should be fully informed about the financial 
arrangements, if any, between their doctors and the insurers. Patients 
in need of emergency care must be free to go to the emergency room to 
receive the care they need, uninhibited.
  Customers must be fully informed about the costs and limits of the 
coverage they buy, they should have complete information about 
treatment options, a complete list of the benefits and costs of each 
plan, a full choice of doctors, and access to specialists.
  Finally, patients who are denied care, or receive word that their 
plan will not pay, must have a right--and they have the right--to a 
fair, binding, and timely appeals process.
  A great deal of debate has and will likely continue to center around 
this appeals process and how it is structured and having access to the 
courts. I believe access to the courts should be the last resort. First 
we should structure a fair, timely, credible, and independent appeals 
process.
  Independent, qualified reviewers should be able to draw upon the 
broadest and best possible medical guidelines when determining the care 
patients need that is covered under the

[[Page 11746]]

contract. Physicians should be able to set the timeframe within which 
the treatment should be provided. When this process fails or is 
exhausted, then we should turn to the courts. In the cases where an HMO 
defies an order of the independent reviewers to provide a benefit--or 
acts in bad faith to delay making the necessary treatment available--I 
believe the HMO should be held liable. After all, no American should be 
denied access to our court and justice system, as it is a 
constitutional right.
  On the other hand, we cannot let the practice of medicine be governed 
by the fear of lawsuits and, of course, trial lawyers. This will surely 
add to the cost of care. I am afraid that as the cost of obtaining care 
increases, so too will the number of uninsured. That is what I have 
heard most in my State of Montana. That is a price that no one can 
afford, especially small business. We do not have big companies in the 
State of Montana. We are a State with a lot of small businesses. Those 
employers are telling us to be very careful of the action we are 
taking.
  Any bill that passes this Congress cannot contain provisions which 
would make the employers liable when they have nothing to do with the 
decision made by their provider of medical coverage. I will tell you, 
trial lawyers are very imaginative. When they sue, no one is exempt. So 
our language has to be specific. I was struck that even though it has 
been shown in this Chamber that the legislation we are considering has 
that concern--where they say it doesn't say one thing, but there it is 
in black and white--nobody has offered to change it and make it 
palatable to either side.
  Any such provision is extremely dangerous for any employer, whether 
it be a small Montana business with two employees or a larger employer 
such as a hospital or doctor's office or clinic.
  There are many native people who do not understand how imaginatively 
and broadly trial lawyers can interpret statutory provisions to include 
businesses as defendants in lawsuits when it was not the intention of 
the drafters of this legislation. To be very specific, I want to make 
sure that the innocent small businesses that are trying to provide much 
needed health care for their employees do not find themselves in court 
for their good intentions. I have always heard the old saying that no 
good deed shall go unpunished.
  Twenty percent of Montanans currently lack health coverage. I don't 
want to see that number rise either. We cannot add to that number. I 
cannot support provisions which would threaten to do so. As a practical 
matter, it seems unreasonable to potentially give one or two people and 
their lawyers millions of dollars in punitive damages and as a 
consequence destroy thousands the ability to obtain health insurance 
coverage. It just doesn't make a lot of sense.
  For many the greatest obstacle we face in health care today in this 
country is the cost of insurance, It is not that we don't want it; we 
can't afford it. What is driving those costs? It is not the person who 
tries to take care of themselves. It is the coverage of some extraneous 
programs or plans that drives the cost.
  Since way back in 1993 and 1994, we have been talking about health 
care. We want three things when it comes to health care in this 
country: We want top quality, which we have; we want it fast; we want 
it low cost. If one would think just for a little bit, we can only have 
two of the three.
  I believe we ought to start looking at the best way we can control 
costs and make health care more accessible and affordable to those who 
need it.
  My primary and overriding concern is that any Patients' Bill of 
Rights is indeed in the best interest of all my folks in Montana and 
all Americans. I am deeply concerned about those thousands of hard-
working folks who are self-employed or employed by small businesses 
throughout my wonderful State. These people desperately need our 
protection. I do not want to act in haste or irresponsibly, 
jeopardizing their present health coverage by higher premium costs.
  I, therefore, will support a bill that will assure the maximum 
patient protection to all and ensure that patients get the health care 
they need when they need it.
  I absolutely agree that a real Patients' Bill of Rights needs to be 
enacted as soon as possible. These are complex issues. We have come a 
long way. I am confident we will be able to arrive at a fair and 
reasonable bill in the very near future.
  We have to look at just exactly what we can do because in this piece 
of legislation, there could be and probably will be some unintended 
consequences, as there always is when we pass major legislation.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Madam President, we have heard a number of statements over 
the past week about what is wrong with this legislation that is now 
before the Senate.
  One of the arguments that has been made is that the real purpose 
behind this legislation is to create socialized medicine in America, 
that that is the whole purpose. That is why this bipartisan bill was 
introduced, so that we would have socialized medicine in America. The 
purpose was to drive all the employers out of insuring their employees.
  That argument didn't last very long because it was so fallacious on 
its face.
  Then there was a statement that this was all about lawyers, that 
there would be thousands of new lawsuits. Well, we looked at a couple 
of States where they have something comparable to what we want to pass.
  Senator Miller from Georgia came to the floor and said: I don't know 
what they are talking about. In Georgia, since we have had a Patients' 
Bill of Rights, there has not been a single lawsuit filed.
  In Texas the law has been in effect for over 4 years, even though 
Governor Bush--now President Bush--vetoed that. In 4 years there have 
been 17 lawsuits. So they dropped that debate. I will no longer debate 
that issue.
  Then they spent some time on States rights: What was being attempted 
in this bipartisan legislation is to take away the rights of States to 
settle their own problems. Example after example was brought to the 
attention of the Senate that was simply not true, but they wouldn't let 
up on that. They said: Well, we think all lawsuits in this matter 
should be filed in Federal court.
  We knew that wasn't the right way to go because people should be able 
to go to court in the place where they live. Again, Senator Miller from 
Georgia laid that out very clearly. Why should someone have to travel 
hundreds and hundreds of miles to file a lawsuit when they can do it in 
their own community?
  Senator Zell Miller of Georgia really put this debate on the right 
track. After Senator Miller spoke, they dropped that ``let's use the 
Federal court for all of our litigation.''
  This boils down to a very simple proposition. Why should HMOs be 
treated differently than anyone else in America except foreign 
diplomats? As a result of our Constitution, foreign diplomats cannot be 
sued. HMOs are not in our Constitution. They should be treated no 
differently than anyone else. Why in America should there be the 
abnormal situation that the only people who can't be sued are foreign 
diplomats and HMOs?
  There are a number of suggestions floating around here. In fact, one 
of the sponsors, Senator Frist of Tennessee, said:

       The Patients' Bill of Rights leans toward protecting trial 
     lawyers, not toward protecting patients.

  President Bush said, when he was running for President:

       If I am the President, people will be able to take their 
     HMO insurance company to court.

  He said this on October 17 of last year.
  Fact: As a candidate George Bush promised voters their insurance 
companies would be held accountable.
  Fact: George Bush took credit for a law that allowed Texans to sue 
their insurance companies in State court even through he vetoed that. 
Now his administration is saying that holding HMOs accountable in State 
court is a terrible idea. He can't have it both ways.

[[Page 11747]]

  Another of the fixes on this legislation that is being passed around, 
again, by the Senator from Tennessee, Mr. Frist: ``You sue employers 
under this bill.''
  What the President has said in February of this year: ``Only 
employers who retain responsibility for and make final medical 
decisions shall be subject to suit.''
  That sounds reasonable. That is what the McCain-Edwards bill does.
  Fact: The McCain-Edwards legislation does not authorize a cause of 
action against an employer. In short, employers are protected from 
lawsuits relating to harm caused by an insurance company.
  Another fix, again by the Senator who is sponsoring the other bill, 
Mr. Frist. His statement: ``Their bill will drive people to the ranks 
of the uninsured.''
  That is the socialized medicine argument. Here is what the Census 
Bureau said: ``After Texas enacted a patients right law, the number of 
uninsured in the State actually decreased.''
  This is the U.S. Census Bureau.
  Fact: 2 years after the State of Texas gave Texans the right to sue 
HMOs in State court, the ranks of the uninsured in the State of Texas 
actually decreased.
  George W. Bush, in October of 2000:

       I support a National Patients' Bill of Rights and I want 
     all people covered.

  One of the fictions stated here by my colleague, the Republican whip, 
the Senator from Oklahoma, was:

       The United States will be considering a bill which could 
     preempt some of the good work States have done in the States 
     to protect patients.

  That is fiction. Here are the facts: The McCain-Edwards legislation 
provides a Federal floor for patient protections, not a ceiling. 
Stronger unrelated patient protections enacted by the States would 
remain untouched by this bill.
  The other argument they have used--and I touched on this before--is 
that this is so expensive and how could you possibly ask people to pay 
for this exorbitant cost that is going to be created by this 
legislation? The Congressional Budget Office says:

       Real patient protection costs about 37 cents more than the 
     GOP-backed Frist legislation.

  Not hundreds of thousands or millions or billions but 37 cents.
  Senator Frist:

       We know this is going to drive up the cost of health care 
     premiums.

  He is right, 37 cents. But last year--the facts are that last year 
insurers increased premiums by an average of 8.3 percent, 10 times the 
1-year cost of this legislation. So it is no wonder that 85 percent of 
the American public support the Patients' Bill of rights. That is why 
in a movie--when you hear HMO in a movie, people sneer and shout out in 
derision.
  The Patients' Bill of rights is something we must do. The majority 
leader has said we are going to finish this legislation before we have 
the Fourth of July break. Why? Because as the Senator from North 
Carolina indicated, every day that goes by, there is more grief and 
pain to patients and doctors because the doctors can't render the care 
they believe is appropriate for patients. Every day we wait is a day 
people will be harmed as a result of our not passing this legislation.
  Madam President, I read into the Record hundreds of names of 
organizations that support this legislation. The time is late and I am 
not going to do that tonight. From time to time, I am going to read the 
names of organizations supporting this legislation. I already read in 
the names of hundreds. I would start tonight with the D's. It would 
take a long time because the organizations that support this 
legislation that have the name ``family'' connected with them goes for 
five pages.
  Literally, our bipartisan Patients' Bill of Rights is supported by 
hundreds and hundreds of organizations. I hope we--and I am confident 
that we can as legislators, Democrats and Republicans--pass this 
legislation soon because the sooner we do it, the better off America 
is.
  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. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________