[Congressional Record (Bound Edition), Volume 147 (2001), Part 9]
[Senate]
[Pages 12011-12058]
[From the U.S. Government Publishing Office, www.gpo.gov]



                   BIPARTISAN PATIENT PROTECTION ACT

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

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

  Pending:

       Kyl amendment No. 818, to clarify that independent medical 
     reviewers may not require coverage for excluded benefits and 
     to clarify provisions relating to the independent 
     determinations of the reviewer.
       Allard amendment No. 817, to exempt small employers from 
     certain causes of action.

  THE ACTING PRESIDENT pro tempore. Under the previous order, there 
will now be 60 minutes of debate in relation to the Allard amendment, 
No. 817, prior to a vote on or in relation to the amendment.
  The Senator from Nevada.


                                SCHEDULE

  Mr. REID. On behalf of Senator Daschle, the Senate is advised that 
the Senate will resume consideration of the Patients' Bill of Rights 
that has been called by the Chair. There is going to be an hour of 
debate on the Allard amendment and thereafter on the Kyl amendment. 
There will be votes on those two matters this morning.
  Madam President, I have been advised by the managers of this bill 
that there has been progress made during the night. If things go as 
expected, we should be able to meet the deadline that has been set by 
the leadership; that is, we are going to finish this bill by the Fourth 
of July break and we can also do the supplemental bill and organizing 
resolution.
  Mr. ALLARD. Will the Senator yield?
  Mr. REID. I will be happy to yield.
  Mr. ALLARD. My understanding is we have an hour for the Allard 
amendment equally divided between both sides; is that correct?
  Mr. REID. That is true.
  I would just say, Madam President, the managers of this legislation, 
the Senator from Arizona, Mr. McCain, and the Senator from North 
Carolina, Mr. Edwards, and the Senator from Massachusetts, Mr. Kennedy, 
have done outstanding work. Senator Gregg and the people he has been 
working with have been very cooperative. I think this is a good sign 
for this legislation and movement of this legislation generally.
  The ACTING PRESIDENT pro tempore. Who yields time?
  Mr. ALLARD. Madam President, I would like to yield 2 minutes to the 
senior Senator from Arizona.
  The ACTING PRESIDENT pro tempore. The Senator from Arizona.
  Mr. McCAIN. I thank the Senator from Colorado. I will be very brief. 
I would just like to say to all my colleagues, on this issue I think we 
have made significant progress. Overnight we have the outlines of an 
agreement, thanks to Senators Snowe and DeWine, Nelson, Lincoln, and 
others, on the issue of employer liability. We hope we can get the 
final details of that ironed out soon. I thank those four Senators and 
others on this issue.
  On the issue of scope, I think we are close to an agreement on that 
major issue.
  I thank all involved, including Senator Frist and many others, for 
the serious negotiations that have been ongoing.
  We may end up with a couple of issues that simply require votes on 
the floor to resolve them and the majority of the Senate will prevail. 
But I am very hopeful, and frankly very pleased at the progress we have 
made. All parties are seriously negotiating. That is the only way you 
can resolve an issue that has this much detail and this much complexity 
associated with it.
  Again, I echo the sentiments of the Senator from Nevada. I think we 
could easily complete this in the next couple of days with the kind of 
willingness that has been displayed so far.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Nevada.
  Mr. REID. One thing I forgot to mention, Senator Kennedy and I, late 
last night, spoke to Senator Judd Gregg--well, it wasn't late; it was 
in the evening. He indicated he would try today to get a list of 
amendments so we would have a finite list of amendments so we could 
work through those.

[[Page 12012]]

If we can do that, it will be very easy to schedule what we will be 
doing in the next couple of days. If that doesn't happen, there is no 
question we will have to work late tonight and tomorrow night. Everyone 
should be advised Senator Gregg said he would try to get a finite list 
of amendments to us this morning.
  The ACTING PRESIDENT pro tempore. The Senator from Massachusetts.
  Mr. KENNEDY. If I could just proceed for a moment, I just thank all 
our Members for their cooperation. We have made some progress. There is 
a lot of work to do on this. We are encouraged by the cooperation of 
all our Members. But having been around here a long time, we have a lot 
of work to do. We have to keep at this job. There are very important 
matters before us.
  We ought to just recognize we have a lot of work to do and we will 
have a chance to see where we are as we take this step by step. We have 
important debates this morning, and we have some additional issues on 
employer liability that we will address, on medical necessity, and 
hopefully on the areas of scope.
  Those are being worked out; I hope are being drafted. As we all know, 
the key is in the details. I don't want to have any false sense of 
anticipation. We have still some very important policy issues that have 
to be resolved. But we are making progress. We are very grateful to all 
the Members for their help and cooperation, and we look forward to this 
morning's debate.
  The ACTING PRESIDENT pro tempore. The Senator from North Carolina.
  Mr. EDWARDS. Madam President, I want to echo the words of my 
colleagues, the Senator from Arizona and the Senator from 
Massachusetts.
  There is certainly significant work to be done. Important issues need 
to be resolved. But we spent a good part of the day yesterday working 
on the issue of scope, making sure that every American is covered by 
this bill. I think we have, in fact, made great progress on that issue.
  On the issue of medical necessity, which is one of the pending 
amendments--the Kyl-Nelson amendment--we expect to offer our own 
compromise amendment on that issue later today, something that was 
worked out yesterday through the process of discussions. As I think 
everyone knows, Senators Snowe, DeWine, and Nelson have worked very 
hard, along with the three of us, to work out an agreement on employer 
liability--all of us believing that employers all over this country 
need to be protected. That is not what this legislation is about. It is 
about giving patients rights and putting health care decisions back in 
the hands of doctors and patients and not in the hands of big HMOs. All 
of us are in agreement that in that process it is important to protect 
employers so they continue to provide coverage for employees all over 
this country.
  So I echo the words of my colleagues. I do think it is true that we 
have made great progress. I think it is also true there is work left to 
be done. We will continue to work diligently with our colleagues. We 
have had colleagues on both sides of the aisle working on all these 
issues. We will continue to work on them as we go forward with these 
votes and this debate. But we are optimistic that we will be able to 
conclude this bill this week.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. Who yields time?
  The Senator from Colorado.
  Mr. ALLARD. How much time does this side have?
  The ACTING PRESIDENT pro tempore. Twenty-eight and a half minutes.
  Mr. ALLARD. Madam President, I yield 18 minutes to the junior Senator 
from Arizona. And I would like to reserve the last 10 minutes for 
myself.
  The ACTING PRESIDENT pro tempore. The Senator from Arizona.


                           Amendment No. 818

  Mr. KYL. Madam President, I do not intend to take the full time right 
now. There may be others who wish to speak.
  Senator Allard has been kind enough to allow those who support the 
Nelson-Kyl-Nickles amendment to take some of the time right now. I 
would like to change the subject back to that amendment which we 
brought before this body last night and debated for about an hour, and 
then we will also have an opportunity to conclude the debate on it 
after the vote on the Allard amendment. But now that we have a few 
moments, I would like to discuss that.
  For those who were not in this Chamber last night to hear the debate, 
let me make it clear that there were two essential problems that we saw 
that needed resolution. We had worked with Senator Kennedy, Senator 
Edwards, and others--and Senator Nelson had extensive conversations--
about how to resolve these issues. One of the issues has apparently 
been resolved by agreement, although no amendment has yet been proposed 
to deal with it; and that all has to do with reviewing a case by the 
external reviewer. In other words, the insurance company has an 
internal review of an issue, and then if that isn't resolved, it goes 
to an external reviewer.
  I think everybody agrees that if we can resolve the case at that 
stage and not have to go to litigation, it is better for everybody. So 
the question is, what exactly can be considered by that independent 
reviewer? The first problem that we saw was that the independent 
reviewer actually had the authority, under the bill, to order that 
benefits be provided to a patient that were excluded by the contract--
legally excluded. The insured bought a certain set of benefits, and 
there were certain benefits excluded, but the independent reviewer 
would theoretically have the right to order excluded benefits to be 
provided for a patient.
  I think everybody realized that was not what was intended, and it is 
at least the representation of those on the other side--and 
specifically Senator Edwards has made the point--that there is a way to 
fix that, and a very specific way, which we all understand. If that 
amendment is offered, then I think it will be a satisfactory conclusion 
to that particular matter.
  The other matter that remains has to do with the other kind of issue 
that can come up. There is a benefit which is covered but the question 
is, what exactly is the appropriate medical service in this case? Here 
is a very simplistic example. The plan says: We are not sure exactly 
what is wrong with this person. We will take an x-ray to find out. But 
the doctor and the patient say: Look, we already had an x-ray, and the 
x-ray was not definitive enough. We think we need a CAT scan or an MRI.
  Those are pretty expensive. The plan says: Look, we just don't think 
we need the MRI.
  That is the dispute. There is no question that the diagnostic service 
is covered. The question is, which diagnostic service is appropriate or 
medically necessary in this particular case? So it goes to the internal 
reviewer. Let's say the internal reviewer says that an x-ray is good 
enough, but that is not what the doctor or the patient wants to hear. 
So they go to the independent or external review and make their case.
  What is the standard for the external reviewer to decide whether or 
not an x-ray is good enough or whether or not there should be a CAT 
scan or an MRI, for example? There should be some kind of standard that 
is relatively uniform, unless the States have adopted a specific 
standard for review of plans within their particular State.
  I will read the language in the bill that causes us concern because 
this is the deficiency as we see it. It is on page 37 of the bill. 
Under ``Independent Determination.--'':

       In making determinations under this subtitle, a qualified 
     external review entity and an independent medical reviewer 
     shall--

  Let me read the two subparagraphs here.

       (i) consider the claim under view without deference to the 
     determinations made by the plan or issuer or the 
     recommendation of the treating health care professional . . 
     .; and
       (ii) consider, but not be bound by the definition used by 
     the plan or insurer of ``medically necessary and 
     appropriate'' or ``experimental or investigational''. . . .

  ``Consider, but not be bound by the definition used by the plan''--of 
course, that could raise a question of abrogation of contract. When the 
insurer

[[Page 12013]]

says: Look, this is the insurance that you bought, and here is the 
definition under the plan, who has the right to go in and change the 
definition? So we think that language is inappropriate. The independent 
reviewer should not be able to just ignore the definition in the plan. 
But that then raises the question of whether or not a plan's definition 
could be overly restrictive.
  What we basically agreed to, at least some of us believe is an 
appropriate compromise, is to say: You have to use the definition of 
the plan, but the plan has to have a reasonable definition. What would 
that definition be?
  First of all, if a State mandates certain language, then obviously we 
need to use that language. So for the 13 or so States that actually 
mandate language, that would have to be applied. But for the rest of 
the States, there would be a definition, and the definition that we use 
is the definition that the Federal Employees Health Benefits Plan has 
used, approved by the Office of Personnel Management for fee-for-
service plans.
  So, Madam President, you and I, and the other Members of this body 
have an opportunity to acquire health insurance through the Federal 
Employees Health Benefit Plan just as all other Federal employees do. 
And there are basically two standards that they use for these 
contracts. One is for managed care. We consider that to be 
insufficiently protective of the patients. The other is for the fee-
for-service. It is a more strict standard. That is the standard that we 
use.
  For 49 percent of the people who are covered by a Blue Cross-Blue 
Shield contract--and that language, we believe, is also used by another 
23 percent. So almost three-fourths of the people are covered by very 
specific language. That is exactly the language we have included in the 
bill.
  There are five specific elements of it. The one that matters the most 
is the second one, which is: ``Consistent with standards of good 
medical practice in the United States.''
  So the reviewer--if you are in a State that does not have a mandatory 
definition--would then apply this definition. You might say: 
``Consistent with standards of good medical practice.'' That is pretty 
broad. That could be almost anything. It is not almost anything. What 
it is is good medical practice. And good medical practice can be 
determined by experts in the field, based upon the standards of the 
community, what literature suggests should be done in a particular 
case, and at least affords an opportunity for the independent reviewer 
to decide whether or not the patient needs the MRI or the CAT scan, in 
this case, whether good medical practice would ordinarily call for 
that, or whether, based on the circumstances of this case, it is just 
not that difficult and an x-ray ought to be good enough.
  There are four other elements to it as well, but that is the key one.
  There is a third opportunity here. If people do not like that 
definition, even though it covers three-fourths of us under a Federal 
plan, then we provide for a negotiated rulemaking procedure whereby all 
the stakeholders can get together and figure out a definition. I do not 
know what that would be. If they can all agree on a definition, we 
provide a mechanism for them to do so. And if they do, then that 
supplants this other definition. One year after that is agreed to, then 
this other definition is gone.
  So there is an opportunity to come up with something that all of the 
parties agree is better if, in fact, they can do that. In the meantime, 
this is the definition that would apply. We think that is reasonable. 
We think it is an improvement on the legislation. Certainly something 
has to be done with this particular section.
  Senator Kennedy last night talked to both Senator Nelson and me about 
some possible changes in that. We are very open to that. I am hoping 
that in the remaining hour of debate on the Allard amendment--and then 
we will have the vote on the Allard amendment--and then we have an hour 
of debate on the Nelson-Kyl amendment--I am hoping in that 120 minutes 
or so we can come to an agreement as to what exactly this language 
should be. If we can, we are very willing to change the amendment and 
adopt whatever we can agree to. Senator Kennedy had one particular idea 
last night that both Senator Nelson and my staff are exploring right 
now.
  If we can do this, then we will announce it to the body. We will 
explain what it is, and hopefully we will have an agreement that 
everyone can support. If not, then obviously we will need to proceed 
with this language. In any event, we have identified a problem. We have 
a reasonable solution to the problem. If somebody has a better idea, we 
are open to consider what that might be.
  I urge my colleagues who are interested to come to the floor and 
speak to it. We not only have a few remaining minutes under Senator 
Allard's time, but we have additional time when the amendment is 
debated after the vote on the Allard amendment.
  I reserve the remainder of the time. Again, I invite anyone who is 
interested in speaking to this matter to come to the Chamber and 
address it.
  The ACTING PRESIDENT pro tempore. Who yields time?
  Mr. KENNEDY. Madam President, how much time do we have on our side?
  The ACTING PRESIDENT pro tempore. Twenty-six minutes.
  Mr. KENNEDY. I yield myself 10 minutes.
  The PRESIDING OFFICER. The Senator from Massachusetts.


                           amendment no. 817

  Mr. KENNEDY. At the start of this discussion, we ought to understand 
the significance of the sort of carve-out that is offered by the 
Senator from Colorado. This effectively would eliminate 45 percent of 
all the workers in this country from the kind of coverage and 
protections we are trying to ensure through the Patients' Bill of 
Rights.
  It seems to me if you work for a company that employs 48 employees 
and you happen to have a child who needs a specialist, you should not 
be denied that protection by an HMO making bottom line decisions more 
in the interest of profits rather than in the interest of the child and 
the medical decision.
  That is what this issue is all about. Are we going to say if you work 
in a company with 49 employees, you are not covered, but if you work in 
a company with 51 employees, you are covered? What kind of fairness is 
that for the families of America?
  We recognize that small business--although employing 50 is probably 
somewhat larger than most of the small businesses we have in our 
State--needs help. They pay 30 or 40 percent more in terms of their 
premiums. They don't deal, in most instances, with the largest of the 
HMOs, many of which act responsibly. They are dealing with the marginal 
HMOs that are more driven by profits and the bottom line rather than 
services to patients.
  We know at the present time small businesses have additional burdens 
in terms of affording health insurance. We ought to address that. I am 
all for addressing it. But excluding them from this coverage is not 
addressing that particular problem. It is not going to change the 
premiums for this kind of coverage. That is the bottom line. If the 
Senator wants to give help to those small businesses in terms of 
additional kinds of financial incentives, or helping them get into 
various groups so they could purchase their health insurance at more 
reasonable levels, we are all for it. But first, this is not the way to 
go.
  As the Senator from Colorado pointed out last night, the HMO's 
premiums have gone up 13 percent last year, 12 percent this year, with 
the best cost of our proposal being less than 1 percent a year. It is a 
gross misrepresentation and a distortion to think that this is going to 
solve their particular problems; it will not.
  What we will be doing, if we accept the Allard amendment, is exposing 
working families all over the country. Families who are working should 
get the kind of protections we want through this legislation, the kind 
of protections they thought they were getting when they bought their 
health insurance. This amendment effectively puts these families on the 
sidelines and frees them from any of the protections of this 
legislation.

[[Page 12014]]


  Mr. EDWARDS. Madam President, will the Senator yield?
  Mr. KENNEDY. I am glad to yield to the Senator from North Carolina.
  The ACTING PRESIDENT pro tempore. The Senator from North Carolina.
  Mr. EDWARDS. Madam President, as the Senator is aware, we are 
continuing to work very aggressively with Members on both sides of the 
aisle, led by Senators Snowe, Nelson, and DeWine on this issue, 
specifically to provide protection for employers, including small 
employers. As somebody who has been involved with this issue for many 
years, I wonder if the Senator believes we can have a real patient 
protection act, real Patients' Bill of Rights, if, in fact, we exempt 
almost half of the employees in the country from the legislation?
  Mr. KENNEDY. The Senator is quite right. Of course, we cannot. That 
is effectively what we are doing to about 43 or 44 percent. In 
addition, many of those who have looked at the amendment think there 
will be larger companies that will break down into units of 50 or fewer 
in order to escape the protections of this legislation. That can go on 
ad infinitum. We are talking about 40, 45 employees per employer. It 
may be a lot more.
  The Senator is quite correct: This is a position that I do not think 
even the President supports. In the President's list of particulars and 
principles, he is for holding the employers accountable that are going 
to be involved in making medical decisions that ultimately work to the 
disadvantage and the harm of the various patients. That isn't what this 
is all about. More likely than not, and I will let others comment on 
this--if you are a hardware store owner who has four employees and you 
are paying your premium, you are not involved in making medical 
judgments and decisions. That defies any kind of ordinary understanding 
of what is happening with small businesses. They are not the ones doing 
it.
  The concern we have is that employers who provide HMO coverage to 
several hundred employees could say to the HMO: Let me know anytime 
there is going to be an expense over $50,000 or $75,000 because I want 
to know about it. When the HMO calls them up, they say: Don't provide 
the service. That is the real world, not the smaller business men and 
women.
  This is an amendment which undermines a basic concept. If the good 
Senator can explain to me, the proponents, why should families in small 
companies be put at more risk? Why shouldn't the family members of a 
company that has less than 50 employees be able to get the specialists 
they need? Why shouldn't a woman worker in a smaller company be able to 
get to the OB/GYN as a primary care physician? Why should the wife in a 
smaller company not be able to get the clinical trial that will save 
her life from cancer?
  What is the answer from the other side? What is possibly the answer 
from the other side? Well, the premiums have gone up.
  We have talked about the issue of premiums. The President understands 
that. It seems to me, with the Allard amendment, we are putting the 
workers in these plants and factories at enormous risk. Whatever the 
problems are today, once we give them carte blanche, the problems are 
just going to increase a thousandfold. These employers are going to be 
immune, effectively, from any kind of action.
  We are opening the barn door and inviting any employer to go with any 
HMO. It won't make any difference because there will not be a remedy 
for the workers. Is that what this whole debate and discussion is 
about? I don't think so.
  I hope this amendment will not be accepted. It is a carve-out. As the 
Senator from North Carolina has stated, there are Members on both sides 
of the aisle who are working--Senator Snowe and others--to tighten the 
language included in the basic document. We have talked about and 
debated the language during this time, in terms of the role of the 
employer and to ensure that there won't be unwarranted additional 
burdens on the employer. That is in the process. That is what we are 
dealing with as the way to go. We are going to have the opportunity to 
consider that later in the day.
  Now we have an amendment that is going to effectively eliminate 
responsibility for almost half of the employees in this country. The 
protection for those employees is not warranted and justified with the 
legislation.
  How much time do we have remaining, Madam President?
  The ACTING PRESIDENT pro tempore. Seventeen minutes.
  Mr. KENNEDY. I yield to the Senator from North Carolina.
  Mr. EDWARDS. Thank you, Madam President.
  I would like to speak briefly to the Allard amendment. Let me say 
first to my colleague, the sponsor of the amendment, who is in the 
Chamber, I have no doubt that his intentions in this amendment are 
nothing but good and he is trying to accomplish something he believes 
is important. The problem is this approach is extreme. It is extreme, 
it is outside the mainstream of all the work, essentially, that has 
been done on this issue.
  The McCain-Edwards-Kennedy bill deals specifically with protecting 
small employers. The competing legislation, the Frist-Breaux bill, also 
deals with that issue, without this kind of extreme carve-out. The 
Norwood-Dingell bill that passed the House of Representatives by a wide 
margin did not have this kind of language in it. The American Medical 
Association, the medical groups from all over the country would not 
support this kind of carve-out. The reason is, it is impossible to have 
a real Patients' Bill of Rights so all patients and families across 
this country are protected if in fact you exclude almost half the 
employees in this country.
  The more sensible approach, the more mainstream approach, which is 
the one we are taking in our legislation and as we speak, is to make 
sure you provide the maximum protection you can, keeping the interests 
of the patient in mind, for these small employers. That is the reason 
we are continuing, as we speak, working across party lines, to craft 
language that we believe is appropriate to the purpose of protecting 
employers in general and specifically to protecting small employers. 
But to exclude almost half of the employees in this country from this 
legislation means we have essentially left half the country out of 
patient protection, which I do not think anyone thinks is a sensible 
solution to the issue.
  So I understand the concern. It is a concern we believe we have 
addressed in our legislation, which is to protect small employers. But 
we are working to go further with colleagues on both sides of the 
aisle, Republican and Democrat, to make sure small businesses all over 
the country are protected. But the solution is not to penalize almost 
half the families in this country and not provide them with the same 
rights that all other Americans would have.
  It just makes no sense to have no patient protection for employees 
who work at a firm of 48, 49 employees and for a firm with 60 
employees, in fact, the protections are there. That is just illogical; 
it doesn't make any sense. Most important, it is an extreme response to 
a legitimate issue. The legitimate issue that is raised we believe we 
have adequately responded to in our legislation by specifically 
protecting employers. But in addition to that, we are taking further 
steps to make sure all employers, and specifically small employers, are 
protected.
  So I say to my colleagues, if you are concerned about employers, if 
you are concerned about small employers, we have protections for that 
group in our legislation. We are going further on that issue as we work 
across party lines on another amendment that will be offered, we 
expect, later this afternoon.
  But this measure is totally outside the mainstream. It is outside 
what we have done. It is outside the Frist-Breaux bill. It is outside 
the Norwood-Dingell bill. It is outside anything the American Medical 
Association or medical groups across this country would ever support.
  So while I understand the issue being raised by my colleague, this 
measure is

[[Page 12015]]

extreme and it penalizes almost half of the families in this country 
and leaves them out of patient protection. Those families will still be 
in the same place they are today, which is HMOs can deny them coverage 
and they cannot do anything about it; they are simply stuck. Women will 
not have the right to go to their OB/GYNs; children will not have 
access to specialists; there will be no emergency room protection if 
they need to go to the nearest emergency room; and there will be no way 
to challenge any decision that an HMO has. That 45 percent of American 
families, almost half of American families, under this amendment would 
be totally left out. They would continue to be in the place where the 
HMO held complete control over their health care.
  That is what we are trying to do something about. It is not the right 
thing to do, to exempt almost half of America from this patient 
protection. Not that the concern is not legitimate, because it is, but 
this response is extreme and totally outside the mainstream of the work 
and thinking that has been done by everyone in this area.
  The PRESIDING OFFICER (Mr. Nelson of Nebraska). The Senator from 
Massachusetts.
  Mr. KENNEDY. Will the Senator be good enough to yield for a question?
  Mr. EDWARDS. Yes.
  Mr. KENNEDY. Can the Senator conceive of a situation where the 
employer got hold of the HMO and said: Look, I have a worker who has 
been hurt. I know it is going to be a costly process to bring that 
worker back to good health, and I don't want you to spend more than 
$25,000 on this. I want to put a limit on this. We are not going to 
spend more. I don't want you to spend more.
  The HMO is going to say, if I am going to keep this as a client, I am 
going to follow that client.
  Let me ask you this. If the Allard amendment is accepted, and the 
worker was seriously injured because of the failure to give the kind of 
medical treatment that the doctors have recommended and suggested, 
would that patient be able to hold that employer accountable under the 
Allard amendment?
  Mr. EDWARDS. In answer to the Senator's question, not only under this 
amendment the employer couldn't be held accountable, in fact the HMO 
couldn't be held accountable because they would both be exempted from 
the legislation. So the family and the patient would be completely left 
out. That was my point earlier in responding to the Senator, in my 
comment that this is an extreme response. We have a response, both in 
our legislation and legislation on which the Senator has been very 
actively involved, that provides adequate protection, will make sure 
small employers are protected, but does not punish almost half the 
families in the country.
  Mr. KENNEDY. If the Senator will yield further, this is almost an 
invitation, is it not, to employers, such as the mom-and-pop stores 
that have half a dozen employees, that basically are just paying the 
premium and are not making the decisions? Someone will say to them: 
Look, not only do you get your health insurance but you can just tell 
your HMO not to spend more than $10,000 or $15,000. You can do that and 
be completely immune and save yourself in terms of the additional 
premiums, although in that way you put at risk your workers. Could they 
not do that?
  Mr. EDWARDS. Not only that, but I say to the Senator, having worked 
for and with small businesspeople for many years, I know they care 
about their employees. They care deeply about their employees, the vast 
majority of small businesses around this country. They do not want 
their employees to be in a position that they have no rights against 
the HMO.
  To small businesspeople all over this country, their lifeblood is 
their employees. They need those people to come to work every day, 
enjoy the work, and be productive. One of the critical components of 
that, as the Senator well knows after all his years of work on this 
issue, is that they have quality health care. The small employers in 
this country who care about their employees--in my judgment, the vast 
majority--will want to make sure their employees have the best product 
they could possibly have. They will want them to have the same 
protections.
  Those small employers will want to be protected from liability. That 
is a reasonable concern, and that is the concern, as the Senator knows, 
that we have addressed in our legislation and we are continuing to 
address with even stronger language with colleagues from across the 
aisle.
  Mr. KENNEDY. Finally, if I may yield myself 30 seconds--under the 
proposal that we anticipate and support, I will make the assertion that 
under this proposal and Senator Snowe's proposal later in the 
afternoon, which will be introduced with the good support of the now 
Presiding Officer, we will ensure those employees are going to be 
protected. That is the way to go. That is what we want to achieve, to 
give real protection to those employers. That is the way to proceed.
  I think it is a much more effective way, efficient way for the 
employers, a more fair way for them, and certainly a great deal more 
fair for their employees.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. ALLARD. Mr. President, I yield myself 5 minutes and then, 
following my 5 minutes, yield 5 minutes to the Senator from Missouri.
  The PRESIDING OFFICER. The Senator is recognized.
  Mr. ALLARD. I think we ought to just take a little time out here and 
summarize where we are in this debate on whether or not we exempt 
businesses of 50 employees or fewer. And this is the way I want to lay 
it out. The Democrats are arguing that 41 percent of small business 
employees will lack protection from HMOs. That argument is wrong. 
Forty-one percent of small business employees will be subject to 
increased health care premiums or even losing their health maintenance 
insurance altogether. They will not be insured.
  So this argument that there is a line being drawn between 48 and 51 
employees, the fact is, when you expose small employers and small 
businesses to increased lawsuits when they take on a program, they are 
not going to take on the program. So employees will not be insured.
  Moreover, an employee does not get protection from HMOs from suing 
their employer. If they need to sue, they should sue their HMO, not the 
employer, who happens to be, by the way, kind enough to offer the 
health insurance.
  Under S. 1052, employee health costs will increase $1.19 per month. 
Again, I believe this argument is irrelevant, and because of S. 1052 we 
will see, in my view, more than 1 million Americans will lose their 
health insurance. At least the Senate can do something to help out 
small employers by exempting them from these unnecessary lawsuits. I am 
talking about businesses with less than 50 employees.
  S. 1052 will allow a small business of five employees, for example, 
to be sued for unlimited economic, unlimited noneconomic damages, and 
up to $5 million in punitive damages. Now, that is not protecting the 
small businessman. That is not protecting those businesses that have 50 
or fewer employees.
  According to a recent survey of 600 national employers, 46 percent of 
the employers would be likely to drop health insurance coverage for 
their workers if they are exposed to new health care lawsuits, plain 
and simple.
  I will ask to print in the Record a Denver Post editorial from June 
21, 2001. I will quote a small section of it. It says:

       The competing Democrat bill, in our view, goes too far and 
     includes a provision that will allow employees to sue their 
     employers for denial of a medical request if the employer 
     helped make the decision.
       We think this type of language would have the effect of 
     encouraging more lawsuits and driving up costs instead of 
     encouraging quick, early resolution of disputes.

  It went on to say:

       We also find fault with the provisions that would authorize 
     individual lawsuits to produce punitive damage awards in the 
     multimillion-dollar range. Compensatory damages are one 
     thing; punitive damage awards are quite another.

  I ask unanimous consent that this editorial be printed in the Record.

[[Page 12016]]

  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                 [From the Denver Post, June 21, 2001]

                       Weighing Patients' Rights

       As we are so often reminded, the demands for medical care 
     are infinite while supply is not. HMOs arrived on the scene 
     some years ago and quickly became the primary form of medical 
     insurance precisely because they were designed to hold down 
     medical costs. Employers, who provide the lion's share of 
     insurance, liked them for that reason.
       Now, but a few short years later, public opinion polls 
     suggest the general public believes HMOs provide an inferior 
     form of insurance.
       Enter Congress.
       The U.S. Senate is considering bills that would establish a 
     Patients' Bill of Rights and specifically authorize a patient 
     to sue the HMO for damages incurred when medical care is 
     denied.
       The issue for the Senate and for the nation is how wide to 
     open the doors to the courts.
       President Bush has offered what seems to be a sensible 
     compromise. He supports a bill sponsored by Sens. John 
     Breaux, D-La., Bill Frist, R-Tenn., and James Jeffords, 
     former Republican turned independent from Vermont. The bill 
     would establish an independent review process to resolve 
     disputes before a lawsuit could be filed. Thus, a person who 
     wants a particular medical service and is denied would be 
     required first to submit his complaint to a review panel, 
     which, in turn, would consider the facts and make a timely 
     decision.
       This approach recognizes the legitimate interest of the 
     medical provider in controlling costs by delivering only 
     necessary medical treatments. At the same time, it provides 
     for a second set of eyes to review the quality of the 
     decision.
       The competing Democratic bill, in our view, goes too far 
     and includes a provision that would allow employees to sue 
     their employers for a denial of a medical request if the 
     employer helped make the decision.
       We think this type of language would have the effect of 
     encouraging more lawsuits and driving up costs instead of 
     encouraging quick, early resolution of disputes. We also find 
     fault with the provisions that would authorize individual 
     lawsuits to produce punitive damage awards in the 
     multimillion-dollar range. Compensatory damages are one 
     thing; punitive damage awards are quite another.
       It would be nice if we could all have medical care provided 
     on our terms alone. Somewhere a balance must be struck.
       We favor something closer to the president's position than 
     to that endorsed by the Democratic leadership, but remain 
     optimistic that--given the high political stakes--the nation 
     will see a bill signed this year.

  Mr. ALLARD. Mr. President, the employer is not protected. In fact, he 
is exposed to more lawsuits--multimillion-dollar lawsuits. In order to 
protect himself, he is not going to provide health insurance. That 
means the employees will not be covered. The argument was made, why 
don't you provide coverage for small employers? Why don't you provide 
coverage for emergency service? Why don't they provide coverage for 
medical needs that occur in families and what not? The employer isn't 
going to provide that coverage if he has to face lawsuits. It is 
optional. He will decide not to offer health insurance.
  I was a small businessman and I had to face the challenge of medical 
costs. We had between 10 and 15 employees. The health care costs were 
eating us alive. So finally we went to the employees and said what we 
would like to do is this: We can't afford this, so we will pay you more 
in a salary and then, hopefully, that will be enough of an increase 
that you can buy your own health insurance. We could not afford to do 
that. That was in times that weren't as challenging as they are today.
  We are seeing horrendous increases in premiums to small business 
employers. Now we are going to tack on top of that these mandates and 
increased costs and the increased threat of a lawsuit. It is not hard 
for me to believe that we are going to have at least a million more 
workers out there who are not going to be insured if this bill passes.
  Now, it is 41 percent of the workforce that we are talking about with 
this amendment. But I look at it a different way. I think we are 
helping assure that they will have health care coverage with this 
amendment because we are exempting them from the lawsuits.
  I think this amendment is a very responsible one. It is needed. If it 
is not adopted, the small business community of 50 employees or less 
will suffer.
  I yield 5 minutes to the Senator from Missouri.
  Mr. BOND. Mr. President, I thank my friend from Colorado and I 
commend him for this amendment, which I think is very important because 
it goes to one of the real key areas in this Patients' Bill of Rights.
  We want to make sure that people have good health care coverage and 
that they get what they deserve from their HMO, their insurance 
company. That is what this debate is all about. How do we get there? 
One of the most important parts of that question is how we deal with 
the small businesses that provide health care coverage now for their 
employees and who may not in the future.
  My colleagues on the other side of the aisle insist that employers 
will not drop coverage due to the McCain-Kennedy bill. For some 
employers, that is probably true. Virtually all large companies offer 
health care, and even if we pass this legislation and dramatically 
increase costs, they will probably have to do so. They will have to pay 
more and their employees will have to pay more. But they are likely to 
have coverage. But from everything I am hearing from the small business 
community, it is much less likely that small businesses--even those who 
now provide health care coverage--will be able to do so.
  I heard a colleague on the other side of the aisle say that the 
McCain-Kennedy bill has taken care of small employers--the small 
employers health care provision. Right. Just like a herbicide takes 
care of a bed of flowers, it is going to kill small business health 
care at the roots. I know what ``taken care of'' means in that context. 
I have sprayed herbicide; I know what they do to a flower bed or a 
lawn. That is how McCain-Kennedy takes care of the health care coverage 
of small business. They drive them out.
  Small businesses are the ones that are struggling to survive. Small 
businesses are the ones that struggle to provide health care. They are 
at the heart of the problem that the McCain-Kennedy bill totally 
ignores--the 43 million Americans who have no health insurance. Of that 
43 million Americans who have no health care insurance, approximately 
60 percent are small businessowners, employees and their dependents, 
the family members. That is 25.8 million Americans, either small 
businessowners, employees, or family members, who are not covered by 
health insurance. They can't be a patient under the Patients' Bill of 
Rights. In Missouri, we have 570,000 uninsured, and 342,000 are in 
families headed by a small businessperson, man or woman.
  If we drive more of the small businesses out of health care coverage, 
those numbers are going to go up. That is a disaster. That is the wrong 
way to go. Many small businesses do not offer coverage. Why is that? 
Well, there are still many barriers to small businesses providing 
health care coverage.
  First, they have higher premium costs.
  Second, they have higher annual premium increases.
  Third, there are more difficult administrative hurdles. In mom and 
pop operations, neither mom nor pop usually has the administrative 
skills to set up health care and other benefit plans.
  Limited deductions for the self-employed, we voted on that last week. 
Unfortunately, my colleagues chose to turn a blind eye to the needs of 
the self-employed and their families and said we are going to skip them 
in this bill. That is one more mistake in this bill. Here are the 
problems. Under McCain-Kennedy, there would be a 4.2 percent cost 
increase--slightly more. That is going to make health care coverage 
more expensive for the small business and the small business employee. 
That means fewer patients, because 300,000 lose coverage for every 1 
percent increase.
  Exposure to liability is the big one. Employers throughout Missouri 
are writing: we cannot afford the continuing cost increases in health 
care and we will not tolerate those plus exposure to liability.

[[Page 12017]]

  The PRESIDING OFFICER. The Senator has used 5 minutes.
  Mr. ALLARD. I yield the Senator an additional 3 minutes.
  Mr. BOND. I ask for 1 minute.
  Most small businesses in America are only one lawsuit away from going 
out of business. This lawsuit, under the multitude of causes of action 
provided in the McCain-Kennedy bill, could drive any single small 
business out of business. They are one lawsuit away from going out of 
business. Small businesses are smart enough to know if they are one 
lawsuit away from going out of business because they provide health 
care, they are one McCain-Kennedy bill away from getting out of the 
health care coverage business.
  The 43 million Americans who are now uninsured--watch those numbers 
increase. Yesterday I noted 1,895 Missouri employees of small 
businesses would lose health care coverage because their small business 
employer could not take the risk. That number is going to be higher. It 
is much higher nationally.
  I commend the amendment offered by my colleague from Colorado. I 
offer this as a suggestion: If Members care about small businesses and 
the health care coverage they provide their employees, vote for the 
Allard amendment. This is the only way to save small businesses from a 
knife in their back, making health care coverage for their employees 
unaffordable.
  Mr. ALLARD. I yield 2 minutes to the Senator from Texas.
  Mr. GRAMM. Mr. President, I congratulate Senator Allard. Yesterday we 
had an amendment on exempting employers from being sued. That amendment 
was important. This amendment is important, as well.
  Our basic point yesterday was, when an employer, because they care 
about their employees and because they want to attract and hold good 
employees, puts up their own money to help people buy health insurance, 
we should not reward that voluntary activity by making them liable to 
being dragged into court and sued.
  The bill before the Senate is a classic bait and switch bill, make no 
doubt. It says you cannot sue employers, and then it says you can sue 
employers, and it has 7\1/2\ pages of conditions under which employers 
can be sued, including conditions where they exercise control, which is 
a little trick phrase because ERISA, the program that governs employer 
benefits to employees, guarantees that the employers are always deemed 
to be in control. So the bill before the Senate is written to guarantee 
every employer in America can be sued. If anybody doesn't understand 
that, it is because they don't want to understand it.
  This amendment does not fix the problem. This amendment simply makes 
a plea that if you are going to force companies such as Wal-Mart to 
cancel their insurance--at least they have smart lawyers and they have 
lots of money and can figure out a way to get around this provision by 
changing their plans. Some of them won't. They will cancel their health 
insurance. And the proponents of this bill will be back a year from 
now, 2 years from now, saying, well, the number of uninsured has gone 
up and we need to have the Government take over and run the health care 
system.
  This amendment is simply a last gasp effort to introduce some reason 
into this bill which says while clearly this bill is aimed at allowing 
employers to be sued, and clearly large employers are going to be hit 
with this liability and they are going to be forced either to drop 
their plan or change it, they have some ability to make a change. It is 
not smart. It is counterproductive. It is hurtful to America. But that 
is the way it is. That is the majority position.
  The point is, this amendment says, if the company has 50 or fewer 
employees. We are talking about small business; we are not talking 
about companies that can go out and hire a legion of lawyers; we are 
not talking about companies that have the ability to junk their health 
care plan and to figure out a clever way to try to get around the 
devastating provisions in this bill. If you vote against this 
amendment, you are saying to every small business in America, we don't 
care if you are sued; we don't care if you provide health insurance.
  It is unimaginable we would not adopt this amendment and say that 
while we are willing in the name of bringing lawsuits to the doorstep 
of every employer in America, we are not willing to destroy the ability 
of small business to provide health insurance, and therefore we are 
going to adopt this amendment. This does not fix the problem. This is 
an amendment that should bring out some degree of shame as to what we 
are willing to do. I urge my colleagues to vote for this amendment.
  I yield the floor.
  Mr. ALLARD. How much time remains?
  The PRESIDING OFFICER. Two minutes, and the other side has 7 minutes 
16 seconds.
  Mr. KENNEDY. I yield myself 4\1/2\ minutes.
  Mr. President, the issue is the protection of these workers. We have 
had 22 days of hearings; we have had this legislation for 5 years, 
trying to get it before the Senate; and now we have the opportunity to 
provide real protections to families in this country.
  Now this amendment wants to say, we will provide protections for some 
but we will eliminate 45 percent of the protections for families in 
this country. What possible sense does that make?
  There is a representation that somehow employers will be at risk. 
They will not be at risk unless they are making medical decisions that 
will result in harm or injury to the patient. If they are not, they are 
free, in spite of all the agitation we have heard from those supporting 
this amendment.
  I have been around here long enough to realize that when we take on 
the special interests--and that is the HMO in this case--we hear dire 
consequences. When we worked on the Family and Medical Leave we heard 
the estimates that it would cost American business $25 to $30 billion a 
year. That was all malarkey. We worked on the Kassebaum-Kennedy bill 
regarding portability of health insurance, particularly for the 
disabled. They said it would increase the premiums 30 percent, it would 
be the end of small business and the end of the American economy. That 
was a lot of baloney. We worked on increasing the minimum wage. We 
heard it would put small business out of business, and that there would 
be hundreds of thousands out of work all over this country. That was 
baloney.
  The burden we hear that would be put on small business is baloney. 
They have nothing to fear. They have nothing to fear in this. But the 
HMOs have something to fear if they are not going to permit doctors and 
nurses and trained personnel to provide for their patients.
  The facts belie these representations that have been made. If you 
look at the States that have tough HMO legislation, as we have gone 
through repeatedly, the message should become clear. For instance, in 
Texas with their tough HMO law, there have been 17 cases in 5 years.
  California has a tough law that has been in effect now 9 months, and 
no cases. No cases. Do you hear me? No cases. No small businessmen, 
nobody with 50 or less, none, no cases on it. And what has happened? 
The employees are getting the protections they need.
  Now we hear, well, what about the premiums? I read into the Record 
yesterday that the total cost of this amounts to 1 percent a year over 
the period of the future--4.2 percent over 5 years. That amounts to 
about $1.19 a month. Let me tell every premium payer in this country 
about what is happening in terms of their premiums, why they are going 
up.
  We have Mr. McGuire, United Health Group, who got $54 million in 
compensation last year and $357 million in stock options for a total 
compensation of $411 million. That is $4.25 a month for every premium. 
We are talking about $1.19 a month.
  You want to do something about the increase in terms of your 
premiums, tell Mr. McGuire he does not need $411 million a year in 
annual compensation

[[Page 12018]]

and stock options. We know what is happening. They had $3.5 billion--
$3.5 billion--in profits last year. Fine. Well and good. But when you 
see the millions of dollars that they are spending out there on the 
airwaves every single day, don't cry crocodile tears in this Chamber 
about what is going to happen to the HMOs.
  We are going to ensure that small businesses will be protected. I 
will join with the Senators from Colorado and Texas if they want to try 
to assist small business with help through the Tax Code to offset the 
25 to 30 percent increase in premiums. The reason they are getting that 
25 or 30 percent increase is because they are getting gouged by the 
major HMOs. That is the real reason. That is what we ought to be about, 
the real business of that, not taking it out on the injured patients in 
this country who are not getting the health care they need. How much 
time do I have?
  The PRESIDING OFFICER. Two minutes forty seconds.
  Mr. KENNEDY. I yield that time to the Senator from North Carolina.
  The PRESIDING OFFICER. The Senator from North Carolina.
  Mr. EDWARDS. Let me just conclude from our side by saying a couple 
things about what the Senator from Colorado is trying to accomplish. We 
understand his concern about this issue. We do not believe this is the 
appropriate response or the appropriate measure. This is an extreme 
response to a legitimate issue. The legitimate issue is making sure 
small business people all over this country are in fact protected. We 
have provided in our legislation that unless they make an individual 
medical decision, which small businesspeople do not, then they are 
immune from responsibility.
  No. 2, in addition to that, we are continuing to negotiate with our 
colleagues--Senator Snowe, the presiding Senator, and others--on this 
issue, and we expect to have an amendment to offer later today that 
also will provide further protection for small businessmen.
  I know that the Presiding Officer and many others on both sides of 
the aisle care deeply about this issue. This is an extreme response. It 
will have an extraordinarily bad effect on almost half of the employees 
in this country. It is outside the mainstream, outside our legislation, 
outside the Frist-Breaux bill, outside the Norwood-Dingell bill, not 
supported by the American Medical Association, not supported by any of 
the health care groups in this country. This is not what needs to be 
done. So I urge my colleagues to defeat this amendment, to vote against 
it, to vote with the patients, and we will continue to address the 
issue of ensuring that small businesses all over America are protected.
  I thank the Chair.
  Mr. ALLARD. Mr. President, has time expired on the other side?
  The PRESIDING OFFICER. The majority has 42 seconds. The Senator from 
Colorado has 1 minute 50 seconds.
  Mr. ALLARD. I reserve my time until the majority has used their time 
on the amendment.
  The PRESIDING OFFICER. Who yields time?
  The Senator from North Carolina.
  Mr. EDWARDS. Very quickly, with the remaining 40 seconds that we 
have, we urge our colleagues to vote against this amendment. We are 
doing the things necessary to protect small businesspeople all over 
this country, but that can be done without leaving almost half of the 
families of America uncovered by the necessary patient protections that 
are in our legislation. For that reason we urge our colleagues to vote 
against the Allard amendment.
  We yield back the remainder of our time.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Senator from Colorado.
  Mr. ALLARD. Mr. President, I yield myself the remainder of the time.
  First of all, I would like to thank my colleagues from Texas and from 
Missouri for their very cogent comments on small business and the 
adverse impact of this particular bill on small business. My particular 
amendment exempts businesses of 50 employees or less. This is important 
because what we do in this bill is we expose businesses to more 
lawsuits. The consequences are that businesses will not insure their 
employees. They will not provide health coverage. The other side is 
trying to make the point that somehow or the other this amendment will 
hurt health care coverage for employees. Just the opposite will happen. 
If this amendment is not adopted and the bill is passed, small 
employers all over America will cancel their health care coverage and 
turn to the employee and ask them to provide for their own health care 
coverage. That is not more health care coverage; that is less health 
care coverage.
  I am a small businessman. I have had to face those tough decisions, 
and it is not hard for me to believe that a million employees will lose 
health care coverage if this particular bill is passed. I am going to 
ask my colleagues in this Chamber to vote for this Allard amendment 
because we want to make sure that we have a viable small business 
community in America. We want to assure that coverage for employees now 
covered by health plans of their small business employers continues.
  If this bill passes, there is a good chance they are going to lose 
that coverage and that is going to mean less health care coverage for 
employees, not more.
  This is a key amendment. It is a key vote for the small business 
community.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. ALLARD. I ask Senators to join me in supporting the Allard 
amendment. It is important to the small business community. It is 
important to health care in this country.
  The PRESIDING OFFICER. All time has expired.
  Mr. ALLARD. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be.
  The question is on agreeing to the amendment No. 817. The clerk will 
call the roll.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Delaware (Mr. Carper) and 
the Senator from New York (Mr. Schumer) are necessarily absent.
  The PRESIDING OFFICER (Ms. Cantwell). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 45, nays 53, as follows:

                      [Rollcall Vote No. 199 Leg.]

                                YEAS--45

     Allard
     Allen
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Cochran
     Collins
     Craig
     Crapo
     Domenici
     Ensign
     Enzi
     Frist
     Gramm
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Kyl
     Lincoln
     Lott
     Lugar
     McConnell
     Murkowski
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner

                                NAYS--53

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Byrd
     Cantwell
     Carnahan
     Chafee
     Cleland
     Clinton
     Conrad
     Corzine
     Daschle
     Dayton
     DeWine
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Fitzgerald
     Graham
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Leahy
     Levin
     Lieberman
     McCain
     Mikulski
     Miller
     Murray
     Nelson (FL)
     Nelson (NE)
     Reed
     Reid
     Rockefeller
     Sarbanes
     Snowe
     Stabenow
     Torricelli
     Wellstone
     Wyden

                             NOT VOTING--2

     Carper
     Schumer
       
  The amendment (No. 817) was rejected.
  Mr. REID. I move to reconsider the vote.
  Mr. DORGAN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. Madam President, could we have order in the Senate.
  Mr. STEVENS. Madam President, it is a very serious matter we would 
like

[[Page 12019]]

to discuss with the Senate. I do hope the Senate will come to order.
  The PRESIDING OFFICER. The Senate will be in order. Members will take 
their conversations off the floor.
  The Senator from West Virginia.


                      Supplemental Appropriations

  Mr. BYRD. Madam President, I have asked for recognition at this time 
so that I might inquire of the joint leadership as to when we might 
expect to take up the supplemental appropriations bill. That bill was 
reported from the Appropriations Committee several days ago. It is on 
the calendar. We only have a little time left this week.
  The administration has asked for this bill. The amount in the bill is 
within the request of the President of the United States--not one cent, 
not one thin dime over the President's request.
  The bill has had the joint support of the distinguished Senator from 
Alaska, Mr. Stevens, and myself, and our respective sides.
  I will be able, at a later time, to compliment the members of the 
committee. Right now I want to inquire. This is a very serious matter. 
The administration says it wants this bill before we go out because of 
the need in the military for moneys for services, for training, and so 
forth. I do not want us to be out through this recess and have this 
bill hanging out there, and have it there when we get back.
  Now we are ready to go. I would suggest we try to get a time 
agreement that would be amenable to the feelings of the two leaders and 
our respective sides. I think we can do that. I have every confidence 
we can do that. I just take the floor now to inquire as to what the 
chances are for us to move this supplemental appropriations bill before 
we go home for the Independence Day recess.
  Mr. STEVENS. Will the Senator yield for one moment?
  Mr. BYRD. I gladly yield.
  Mr. STEVENS. Madam President, I just received word from the House of 
Representatives that they are scheduling two appropriations bills on 
the floor, and they have bipartisan agreement to finish by Thursday 
night. That is why this dialog right now is very important. We do have 
to go to conference with the House before they leave.
  I join the Senator in making the inquiry.
  Mr. BYRD. Madam President, I thank the distinguished Senator.
  Mr. DASCHLE addressed the Chair.
  Mr. BYRD. Madam President, I yield to the distinguished majority 
leader.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. DASCHLE. Madam President, I thank the distinguished chairman for 
yielding.
  I reply that it would be my intention to complete the supplemental 
prior to the time we leave. I do not think we ought to leave Washington 
prior to the time the supplemental has been satisfactorily disposed of. 
I do not think we ought to take vacation until this legislation has 
been completed.
  I have indicated, just now, to Senator Lott that if we could reach 
some agreement--a finite list of amendments remaining on this bill, 
with an understanding of how long these amendments would require for 
debate--that I may be willing to enter into something I was not 
prepared to do earlier, which is to move to the supplemental prior to 
the time we complete our work on the Patients' Bill of Rights. We will 
complete our work on the Patients' Bill of Rights this week, and we 
will finish the supplemental this week, and the organizing resolution 
this week --or before we leave, whatever time it takes.
  I hope our House colleagues will choose not to leave town until the 
conference has been completed and until we have been able to deal with 
the conference as well. It should not take long in conference. But 
clearly that work must be done. As I say, if we could reach that 
agreement with regard to a finite list, I would be prepared then to 
find a way with which to schedule and then perhaps take up a unanimous 
consent agreement that would allow us to consider the supplemental over 
a designated period of time.
  Mr. STEVENS. Will the Senator yield?
  Mr. BYRD. I yield to the Senator.
  Mr. STEVENS. Madam President, the leader is correct about the timing. 
We should all stay until we finish this matter. But if we don't finish 
it by Thursday, and the House is already scheduled, I can tell you, you 
are not from as far west as I am, but you can't get reservations out of 
this place over the Fourth of July now. It is going to be very 
difficult for all of us and our staffs to get out of town for the 
Fourth of July unless we know now what we are going to be able to do. I 
am confident they will stay if they know we are sincere about 
finishing.
  I am prepared to stay tonight. We have a Republican dinner tonight, 
but I think we can stay tonight. That would be a time when we normally 
would not have votes, but we can have our debates on whatever 
amendments might be offered and get an agreement to vote tomorrow at 
the leader's discretion. We have to get this bill to the House by 
tomorrow noon or it is not fair to ask them to stay to complete it. We 
should not expect them to just stay here, cancel all their 
reservations, not knowing whether we are going to finish by Thursday.
  Mr. DASCHLE. Madam President, will the chairman yield?
  Mr. BYRD. I yield to the distinguished majority leader, with the 
understanding I not lose my rights to the floor.
  Mr. DASCHLE. I thank the chairman for yielding.
  Let me just say, the whole purpose in my announcement early last week 
that we would have to finish the supplemental, the organizing 
resolution, and the Patients' Bill of Rights was to accommodate 
Senators who had reservations. It is not my desire to inconvenience 
Senators or Members of the House with regard to this schedule. I do 
believe that the President believes, and many of us believe, that 
vacations are important, reservations are important, but not as 
important as finishing the supplemental, not as important as the 
Patient Protection Act, certainly not as important as the organizing 
resolution. We will stay here. I hope our House colleagues will share 
the same view we have with regard to the importance of getting our work 
done on the supplemental.
  I announced that last week. I don't know if people believed I was 
serious about it, but we are serious. We are resolute. That will be the 
order for whatever length of time it takes to complete our work.
  I thank the chairman for yielding.
  Mr. STEVENS. Will the Senator yield?
  Mr. BYRD. I thank the distinguished majority leader.
  I yield to my counterpart.
  Mr. STEVENS. I know the Senator from Oregon wishes to have a 
conversation. I am prepared--I think the Senator should be prepared--to 
present to the Senate now our wishes with regard to the agreement.
  From my own point of view, we have a very limited managers' amendment 
which Senator Byrd and I are working on, and I think we disclosed it 
with most people. But other than that, I know of only one amendment 
that is certain to be offered. That is an amendment of the Senator from 
Arizona.
  I am prepared to enter into an agreement of no more than an hour on 
an amendment, and amendments be disclosed here by noon. We will debate 
them tonight and vote tomorrow.
  Mr. BYRD. Madam President, may I first yield to the distinguished 
Senator from Oregon who has been waiting. Then I want to respond to the 
distinguished Senator from Alaska.
  Mr. SMITH of Oregon. I thank the chairman of the Appropriations 
Committee. Senator Byrd does not have a bigger fan in this Chamber than 
I when it comes to the way he defends the people of West Virginia.
  I am one of those who would like not to be holding up this bill, but 
I am looking at a situation in the Klamath Basin of Oregon and 
California that is in a drought condition. Drought is typical in the 
western United States. It is regular. You can count on it. Unlike past 
droughts, the people of Klamath Basin have had the Government magnify 
their drought by cutting off every

[[Page 12020]]

drop of water. There are probably 1,500 farm families who have no 
income because of a Government policy which has exalted a bottom-
feeding sucker fish above their welfare.
  That is the Government's choice, if it wants to save the sucker fish, 
but my plea is that in this bill, as the President has asked, that at 
least the $20 million he has asked for be included or else I can't get 
out of the way.
  I do this in the spirit of Robert Byrd and the way I have seen him 
operate. I admire it so much because I can't go home and look into the 
faces of these desperate people who are without now because of the 
Federal Government. The truth is, they need $200 million, if we want to 
be right by them. But the President only asked for 20. I am asking that 
we do at least that much.
  I thank the Senator for his consideration.
  Mr. BYRD. Madam President, I know about the Klamath problem. I would 
be happy to discuss that. I also know that the administration wants 
this bill. I hope the Senator will not stand in the way of final action 
on it. There are many things I have wanted over the years, and the 
Senator has every right to stand on the floor as long as his feet will 
hold him and speak as long as he wants. I will be here listening when 
he speaks. I have a sick wife. She has been in the hospital now for 10 
days--9 days, but she is on the mend. I will be here as long as the 
Senator wants to talk. If he wants to stay in the way of the bill, I 
will be here listening. But we will talk about this.
  I am not saying no, but I am saying that when anyone wants to stand 
in the way, they are going to have the administration to compete with 
there. The President wants this bill. And my friend Ted Stevens and I 
have busted a gut to get this bill to the floor and to keep it within 
the President's limits.
  If any Senator is contemplating calling up an amendment, if it is a 
money amendment, that Senator ought to be ready to find an offset in 
the bill. That Senator ought to be ready to have the administration 
call that amendment an emergency on this bill. Now, if the 
administration wants to call it an emergency or if there is an offset, 
I am sure the Senator probably won't have a great deal of trouble. But 
I want to do what the President has asked for in this instance. This 
money is needed now.
  That is a long story, but I say to the distinguished Senator from 
Oregon that he won't be by himself if he wants to hold up the bill.
  Mr. LOTT. Madam President, will the distinguished Senator from West 
Virginia yield?
  Mr. BYRD. Yes, I will.
  Mr. LOTT. I apologize to my colleagues for not being here to hear the 
discussion earlier. I have been briefed on basically what has been 
said.
  I commend the chairman of the Appropriations Committee and the 
ranking member for the work they have done on this very important 
defense, and other issues, supplemental appropriations bill. They have 
worked hard. They did bust a gut to get it out, and they held it within 
the area of the President's request. They have done a credible and 
formidable job.
  I would like to get a time agreement, a tight time agreement, and a 
limit on amendment or amendments, and would, in spite of the fact that 
there is a very important conflict tonight, be willing to work with the 
managers of the legislation to see if we could get an agreement to do 
it tonight so that a conference would be possible with the House and 
this very important matter could be completed in the conference and the 
money be available for the needs of our defense and the health care of 
our military men and women.
  I will be glad to work with the Senator from West Virginia and with 
his leader, the majority leader, and to work with Senators who do have 
concerns to make sure we address those, that they are heard.
  The important thing is that we push to try to get this done. I 
appreciate that effort. I know the President wants it. I have spoken to 
him, and Senator Daschle has spoken to him. Clearly, we need to get 
this business done. I make my commitment to the Senator that I will 
work with him and others to see if we can't work out an agreement to 
handle the bill tonight and then we can do the conference tomorrow. I 
will be working on that and will confer with Senators as we go forward.
  Mr. BYRD. Madam President, I thank the Republican leader. Let me 
close by urging that our respective staffs--I thank both leaders for 
the assurances they have given of cooperation and of desire to get the 
bill finished. I would like to suggest that the proposal by Senator 
Stevens go forward, that our respective staffs get together, work out a 
time agreement, and any Senators who want to offer amendments under the 
constrictions that have been stated here, by which we are bound, let's 
have those Senators come forward by noon today and tell us about their 
amendments.
  Mr. REID. Madam President, if the Senator has finished----
  Mr. BYRD. I thank all Senators.
  Mr. STEVENS. If the Senator will yield for a moment, because of my 
negotiations with the House, I urge that we set a time limit on when we 
are coming back, if that is agreeable to the leadership, and that we 
announce that amendments must be presented to us at the desk by noon.
  Mr. BYRD. Madam President, I make that request.
  Mr. REID. Reserving the right to object and I will object, I haven't 
had an opportunity to confer with the majority leader. He should be in 
on this. We will be happy to try to work something out. I object until 
Senator Daschle is apprised of this.
  The PRESIDING OFFICER. Objection is heard.
  Mr. BYRD. Madam President, I still have the floor. I don't lose it on 
an objection to a unanimous consent request. Let me simply say that I 
will just express the hope that we can know by noon. I have discussed 
this with our leader during the break. I certainly want to work with 
our distinguished whip between now and then. There hasn't been any 
Democratic whip in my time here that is any better, and few have been 
as good as Mr. Reid. I am not one of those who is any better. I am one 
of those who hasn't been as good a whip as Mr. Reid. So I thank him. I 
am sure that we will work together.
  Mr. STEVENS. Will the Senator yield for one more inquiry?
  Mr. BYRD. Yes.
  Mr. STEVENS. Is there some way to set a time limit so we can go to 
the House and let them know? They have schedules to meet, too. I urge 
that we have some way to get an agreement that we have this bill called 
up tonight and we debate any amendments tonight and all amendments must 
be debated tonight and that we vote tomorrow. That seems to be 
agreeable with the majority leader. I hope it is. But the main thing is 
to get us some way that we know how many amendments are out there, I 
say to my good friend. I spent 8 years as a whip. I know your task is 
difficult. I think we have a right to ask for disclosure of the 
amendments that would be offered to the supplemental and have it done 
by a specific time today.
  Mr. REID. If the Senator from West Virginia will yield.
  Mr. BYRD. Yes, but I retain my right to the floor.
  Mr. REID. I say to the two chairmen, I am also a member of that 
committee, and I would like to finish the business at hand. Senator 
Daschle has been very clear. He has stated for more than a week now 
that we must move forward with the Patients' Bill of Rights. We are 
doing that. He said this morning--and I have been in conference with 
Senator Kennedy and Senator Edwards. I have spoken to Judd Gregg, 
manager of the Patients' Bill of Rights bill. I indicated to him we 
need a finite list of amendments on the Patients' Bill of Rights. That 
seems simple. We are very interested in doing that, and that should be 
able to be accomplished quickly. Everybody knows the contested issues 
on this matter. We need a finite list of amendments.
  When that is done, Senator Daschle said he would be happy to work 
with the two Senators and work out something that is fair. We can do 
that as quickly as possible. I think there could

[[Page 12021]]

be a finite list given to us in the next hour. It should not be very 
hard to do at all.
  Mr. BYRD. Madam President, I want to make sure the distinguished whip 
understood my request. My request was not that we take up the bill by 
noon. My request is only that Senators who have amendments make it 
known by 12 noon, that we close out after they have made it known as to 
what amendments they want to call up, and that we close out the 
amendments at that point. The leader would still retain, of course, his 
right to call up the bill whenever he wishes.
  Having said that, might I make the request again?
  Mr. REID. Madam President, as the Senator knows, I have come to him 
on many occasions on various bills saying we need to enter into an 
agreement when the amendments can be filed. We want to do this. I am 
saying that we will do this as quickly as possible. You need not be on 
the floor. I will try to get the agreement as soon as possible. We have 
time limited to the supplemental, but there are certain people I have 
to check with, and we will do that as quickly as possible.
  Mr. BYRD. I yield to the Senator from Alaska.
  Mr. STEVENS. My question to the distinguished whip is plain and 
simple. Is the Senator from Nevada saying that the finite list of 
amendments to the Patients' Bill of Rights must be reached before we 
can get the finite list for the supplemental?
  Mr. REID. No. If the Senator allow me to respond.
  Mr. BYRD. I yield for that purpose.
  Mr. REID. We need a finite list on the Patients' Bill of Rights so a 
time can be arranged to do the supplemental.
  Mr. STEVENS. Respectfully, that is not how I understood my discussion 
with the majority leader. We discussed doing this bill tonight. There 
will be a window. This is the night of the Republican dinner. Some of 
us have agreed to stay and debate the amendments on the supplemental so 
that it might be voted on in a very short window tomorrow and get it to 
the House tomorrow so they can finish it so we can get it back by 
Thursday or Friday. Unless we do that today, I for one am going to give 
up on the supplemental.
  Mr. REID. If the Senator from West Virginia would allow me to answer.
  Mr. BYRD. Yes.
  Mr. REID. First of all, probably if you are something like me, that 
would be a good excuse so you would not have to go to the dinner if you 
had to be here.
  Mr. STEVENS. Better not said, but you are right.
  Mr. REID. But there is no reason that we cannot have a finite list of 
amendments on the Patients' Bill of Rights within the next hour or so. 
I am sure Senator Daschle would be happy to work with Senator Lott and 
arrange a time. Give us a little time on this.
  I repeat to my friends again, the question on the list of amendments 
should be filed and we will work on that very quickly.
  Mr. BYRD. Madam President, I hope we have reached an understanding. I 
have been at this work for many years. I have learned a long time ago 
that when you are within reach and you have both leaders having 
expressed their desire for a unanimous consent request, and with the 
work that the Senator from Alaska and I have already done with respect 
to arriving at such a request, that other amendments, other Senators, 
and other requests can come out of the woodwork. I would like to get 
this nailed down by noon, or earlier, because the longer we wait, the 
more Senators there will be that will say, ``This is my chance.''
  In closing, I hope we can go forward with this request soon. I yield 
the floor.


                           Amendment No. 818

  The PRESIDING OFFICER. Under the previous order, there will now be 15 
minutes for debate on the Kyl-Nelson amendment No. 818.
  The Senator from Arizona is recognized.
  Mr. KYL. Madam President, I will speak and then yield time to Senator 
Nelson of Nebraska, my colleague on this amendment. In discussing this 
proposed amendment with some of the stakeholders involved, a couple 
questions have been raised. I want to clarify my intention and turn the 
time over to Senator Nelson.
  One question asked was, With respect to the external review, is this 
a de novo hearing? That is to say, does the external reviewer begin 
with whatever record is before it, but can bring in other witnesses, or 
consider other material or other factors or records in addition to that 
which may have been considered by the internal reviewer. The answer to 
that question is yes. I believe that is what the underlying bill 
provides. Our amendment intends the same. To the extent that would need 
to be clarified, we are willing to do that.
  Secondly, there is concern that with respect to the negotiated 
rulemaking procedure that is provided for in the amendment, that the 
composition of the stakeholders be fair.
  Obviously, we believe that should be fair. We believe that the 
providers need to have adequate representation in such rulemaking 
procedure, that all stakeholders should be represented.
  I do not know what we can do to make our commitment any more firm, 
but to the extent anyone has a suggestion about how we ensure that 
fairness, it would certainly be our intention to do so.
  In summary, we have identified a specific problem with the bill, a 
need to add a standard that is uniform and to ensure that the two 
extremes do not represent what occurs here. One extreme is that the 
external reviewer has no guidance and can just ignore the contract. The 
other extreme is that an HMO can draft a contract that is so strict 
that the reviewer has no ability to provide medically necessary care 
for the patient.
  We are proposing a standard of care that can be utilized by the 
external reviewer to ensure that the patient receives the necessary 
care and that neither ignores the terms of the contract nor is so 
pinched that it would not be able to provide the care. That is why we 
have chosen the terms that apply to over 73 percent of Federal 
employees under the FEHBP that serves all the Members of Congress, our 
families, as well as other Federal employees. That is the language we 
have.
  I ask my colleague, Senator Nelson, to speak to this. Senator Nelson 
has probably as much experience as anybody in this body with insurance 
contracts at the State level from his previous positions in Nebraska, 
as well as being Governor of the State of Nebraska.
  It has been a pleasure for me to work with Senator Nelson who had the 
idea for this and brought a group together and expressed his idea. It 
made sense to me at the time. The more I work with him, the more sense 
it makes to me, and what he is proposing is desirable for us to do.
  I urge my colleagues to respect the experience he brings to this 
issue from his perspective from the State of Nebraska which, I might 
add, is my State of birth. I am very pleased to have worked with 
Senator Nelson on this. Again, I just hope my colleagues respect the 
experience he brings to this particular issue.
  I yield to the Senator from Nebraska.
  The PRESIDING OFFICER. The Senator from Nebraska.
  Mr. NELSON of Nebraska. Madam President, I appreciate the opportunity 
to join with my colleague, Senator Kyl from Arizona, to support and 
pursue the opportunity for making certain there is a definition and a 
standard in the Patients' Bill of Rights legislation that will give 
certainty and clarity to the standard by which medical claims can be 
submitted and the providing of medical care can be made.
  There is some concern about whether or not the Federal Employees 
Health Benefits Plan definition of ``medical necessity''--which is 
essentially the definition, the standard, if you will, that is being 
proposed in our amendment--is something where the Office of Personnel 
Management would be bound by the plan's determination.
  We have never said that the plan, in this case the medical reviewer, 
would have to be bound by the plan, but they would have to be bound by 
the definition. That is what this is about. It is

[[Page 12022]]

making certain there is certainty, clarity, and an understanding, a 
meeting of the minds, about what will be covered and to what extent, 
always subject to outside standards, outside review.
  I support having a Patients' Bill of Rights that provides the kind of 
patient protections that are included within this bill. I support the 
opportunity for a patient to have a review from the internal side and 
from the external side, and I support the opportunity and the right of 
the patient to sue the HMO to ensure the medical decisionmaker in 
conjunction with any questions that are provided for in the level of 
support that is provided within the current bill.
  It is important as the decisions are made about the claims that there 
is at least certainty and clarity as to a standard. I do not think even 
the proponents of the legislation would deny it is important to have a 
standard. As a matter of fact, I understand the history of this bill to 
some degree, and I know that in the past there was an effort to arrive 
at a standard. There were two groups with two different pieces of 
legislation, and they could not quite achieve an understanding as to 
what the standard should be or the definition. Perhaps out of 
frustration, and certainly out of not coming together, the decision was 
made to leave this open.
  The problem with leaving it open is there is no basis of a standard; 
there is no way to know what the definition of ``medical necessity'' 
can be. It can be about anything. When you have a contract and when you 
have two parties to it, an insurer and insured, you need some degree of 
certainty. That is what we are asking for, so you can know of what 
medical necessity truly consists.
  As to the question about whether or not this language, which is taken 
right out of OPM's definition that is included in the Federal Employees 
Health Benefits Plan--as to whether or not that is adequate language, 
it seems to me there should be no question about it. This is to what 
the Federal employees are subject. You and I, those who are insured, 
are subject to the language, the standard, and the definition that is 
included within this amendment.
  I find that it would be unusual if somebody objected to this 
standard, but our plan provides, even if there is a concern about this 
standard, that under the rulemaking and the negotiations of regulations 
another standard could be arrived at with the stakeholders to this 
legislation. The stakeholders, about 19 of them, would all be 
assembled, and if they did not like this particular standard, then they 
could achieve, upon agreement, another standard.
  This is about having a standard, and there seems to be very little 
concern about whether or not the current standard that is included 
within this amendment is an adequate standard, certainly from the 
standpoint of Federal employees. In other words, if it is good enough 
for me, it ought to be good enough for other people. If it is good 
enough for the thousands of Federal employees, then it ought to be good 
enough to be included.
  What does it provide? It provides that the determination of services, 
drugs, supplies, be provided by hospital or other covered provider 
appropriate to prevent, diagnose, treat, a condition, illness, or 
injury, and that they must be consistent with standards of good medical 
practice in the United States. That is a standard we can all live by 
because we cannot ask for more than having care that is consistent with 
standards of good medical practice in the United States.
  There are some other requirements as well, but they are essentially 
the same as what I just read.
  I cannot imagine anyone would want to argue for not having a standard 
or having a contract that is open-ended and not know that would, in 
effect, leave uncertainty, a lack of clarity, and an openness that 
nobody wants to propose or support.
  I hope my colleagues will take a look at this as we fight to keep 
down the high cost of health care, the availability of health care, and 
that we work toward making this standard the kind of standard that can 
be included as part of the Patients' Bill of Rights.
  Anything that establishes clarity and certainty is desirable in the 
context of this legislation, and certainly that is included within this 
amendment.
  There are some who thought the standard might consist of something 
such as a cost benefit. This does not involve any kind of cost-benefit 
analysis regarding medical care. There are some who were concerned 
about that. I would be concerned about that. This does not do that. 
There is some concern that somehow the plan might not be bound by the 
decisionmaking. It is not, but it ought to be bound by the definition.
  I realize this is a very complex area that the average person is not 
going to deal with every day, so I apologize for the complexity, but I 
do not apologize for having something that will simplify it, that will 
give us the certainty and the clarity of having a definition and a 
standard that we can all understand and one with which we can agree and 
against which good medical care, under good medical practice in the 
United States, might be compared. That is what we are looking for.
  There is a proposal that I understand will be coming forth for 
consideration this afternoon that will solve part of this problem, but 
it does not solve the problem of the standard of care and the 
definition.
  The PRESIDING OFFICER. Who yields time?
  Mr. NELSON of Nebraska. I yield time to the Senator from Oklahoma.
  The PRESIDING OFFICER. The Senator from Oklahoma is recognized.
  Mr. NICKLES. Madam President, I compliment my friend and colleague 
from Nebraska, Senator Nelson, for his expertise in this field. He and 
Senator Collins are probably more qualified in this field because they 
both worked in their respective States in their insurance departments, 
I think, as commissioners of insurance and they also have expertise in 
the field from years of experience. When Senator Nelson or Senator 
Collins talk about medical necessity, or being bound or exempt from 
contracts, they have a certain degree of expertise that the rest of us 
do not have.
  I remember visiting with Senator Nelson and he brought up the medical 
necessity and the fact this bill before the Senate unfortunately voids 
contracts. It goes so far as to even say you have to cover things that 
are excluded.
  Page 35 of the bill says: No coverage for excluded benefits.
  That sounds fine.
  But page 36 says: Except to the extent . . .
  In other words, you don't have to cover items excluded in contracts. 
Except to the extent somebody considers it medically necessary--and so 
on, even if specifically excluded in contracts. Part of the Nelson-Kyl 
amendment clears that up.
  On contract sanctity, I concur 100 percent. I mentioned a few things 
excluded under the CHAMPUS program for VA, specifically excluded in 
contracts under this bill someone might have to pay. They might even be 
sued if they do not provide a benefit specifically excluded in their 
contract. That sounds absurd but in reading the language, that could 
happen. The Nelson-Kyl amendment fixes this. Things excluded under 
CHAMPUS include: Acupuncture, exercise equipment, eyeglasses, contact 
lenses, hearing aids, hypnosis, massage therapy, physical therapy 
consisting of exercise programs, sexual dysfunction, smoking cessation, 
weight control or weight reduction programs.
  The point is, almost every medical health care plan says we will pay 
for this list of benefits; we will not pay for these benefits. Those 
benefits would be excluded. This bill says they will be excluded, but 
maybe they should be paid for anyway and they will be subject to 
review. And if the reviewer says it is needed, it should be paid.
  Part of Nelson-Kyl says no, we will strike the language that deals 
with ``except to the extent,'' allowing contracts to be contracts that 
would not cover excluded benefits.
  That is exactly what the Federal Government does. Many people want to 
model private health care after the Federal employees health care 
benefits. We have many different plans. They work. Employees are happy.

[[Page 12023]]

  Federal employees cannot sue their employer, and Federal employees 
have to be bound by the contract. If you look at the consumer bill of 
rights and responsibilities, in OPM's guidelines dealing with the 
Federal Employees Health Benefit Program, it says if someone wants to 
appeal, OPM seeks to determine whether the enrollee or family member is 
entitled to the services under the terms of the contract. It is bound 
by the contract.
  Blue Cross/Blue Shield, 2001, it says OPM will review your disputed 
claim requests and use the information it collects from you to decide 
whether our decision is correct. OPM will determine whether we 
correctly applied the terms of our contract when we denied your claim 
or request for service. OPM will send a final decision within 60 days. 
There are no other administrative appeals.
  Interesting to note, the Federal Employees Health Benefits Plan, they 
appeal to OPM, appeal through their employer. This is not an 
independent review entity. Again, OPM will make their determination 
based on the contract.
  The Senator from Nebraska and the Senator from Arizona say a contract 
should be a contract. We should adhere to the contract and have 
contract sanctity. We should have some definition, some certainty in 
the definition, and we even use the definition for Federal employees' 
fee-for-service plans as one option, as well as the rulemaking process 
that the Senator from Nebraska spoke about.
  I think there are too many people voting ``remote control,'' 
thinking, I will vote with Senator Kennedy or with Senator McCain on 
this issue. I hope they look at this amendment. Should you have 
contract sanctity? Should you look at the guidelines we use in the 
Federal Employees Health Benefits Plan to have some contract sanctity? 
It is obliterated by the underlying bill. I think so.
  This is an excellent amendment, an important amendment. If you want a 
bill that preserves some sanctity of contract, I think it is most 
important we pass this amendment. I urge my colleagues to vote in favor 
of the Nelson-Kyl amendment.
  Mr. ENZI. Will the Senator yield 4 minutes?
  Mr. NELSON of Nebraska. I yield.
  Mr. ENZI. Madam President, I thank the Senator from Nebraska for the 
care and concern that has gone into this amendment. I support it along 
with him. I know how important it is for businesses to be able to nail 
down the prices so they can provide this voluntary insurance to people. 
If they don't know how much it will cost, if it is going to rise 
astronomically, I guarantee the small businesses will bail out. That is 
what the discussion has been about this week and last week--how to 
continue to have insurance for people.
  I am an accountant, the only accountant in the Senate. I like dealing 
with numbers. The people who really deal with numbers are the 
actuaries. They are the ones who have to figure out what the odds are 
that something is going to happen to people. The smaller the plan, the 
tougher it is to figure the odds. But those odds have to be calculated 
in order to figure out the price. If the actuary said figure the whole 
universe of things that could happen, normally we exclude the ones that 
are difficult to calculate, but you don't get to exclude those anymore. 
You have to figure it as though those could happen to the person, and 
some reviewer will charge your plan with that. So we cannot tell you 
what you are going to have to pay. We guarantee it will have to be a 
higher number because of the uncertainty.
  It is extremely important we avoid the Russia syndrome or the China 
syndrome, where they don't have contracts worth anything. In this 
country we maintain the sanctity of contracts. It is time to do that 
again. It is time to do that, particularly to protect the people 
working for small businesses in this country so they will continue to 
have insurance.
  This amendment is particularly important because it does several 
things. First, it allows both the employer and the employee to be 
certain about what benefits are covered under the health plan. If they 
can't know that, then what's the point of the contract. Second, the 
amendment will virtually guarantee that all health plan contracts will 
now have a great definition of medical necessity, which is the clause 
in a contract that's used to make many decisions on claims for 
benefits. If a health plan or employer chooses not to adopt a strong 
definition, as defined in this amendment, then they forgo their right 
to rely on that definition in making decisions on claims for benefits. 
That's achieved by allowing the independent reviewer in the external 
appeals process to ignore that definition if it's not among those 
listed in the amendment.
  This amendment brings to bear two important consequence that go a 
long way helping this bill become law. Again, the contract, upon which 
not just the breadth of benefits is determined, but also the cost of 
health coverage to both the employer and employee is based, is made 
whole. And, the quality of health care in this country is set at a 
standard that will assure patients receive medically necessary care as 
determined by the standards in the best programs, namely the Federal 
Office of Personnel Management's definition for fee-for-service plans.
  Mr. President, I again commend my colleagues for their work. Enacting 
this amendment is as important to preserving the employer sponsored 
health care system as anything else we may do on this bill. There's 
simply no reason why Members would vote to undo a health plan contract 
or against requiring that health plans adopt a strong definition of 
medical necessity.
  Mr. NELSON of Nebraska. We reserve our time.
  Mr. KENNEDY. We have 30 minutes?
  The PRESIDING OFFICER. That is correct.
  Mr. KENNEDY. I yield myself 10 minutes.
  I agree with our friends and colleagues, the Senator from Oklahoma, 
about the competency of my good friend, Senator Nelson, as well as the 
Senator from Wyoming, Senator Enzi. I learned, as I worked with Senator 
Enzi on a number of different issues, including OSHA, about his 
enormous capabilities as an accountant in dealing with numbers. I have 
also had the good opportunity to work with Senator Nelson on this 
issue. I think there are few Members of this body outside the committee 
or inside the committee that have taken more time than the Senator to 
understand the details of this legislation. He has a commanding 
knowledge of this legislation and a very healthy understanding and 
respect about what is happening in the State and local communities. He 
has been enormously attentive to detail and concept.
  We do not always agree on every provision, but I have certainly 
developed a deeper understanding of the impact of this legislation from 
my conversations with him.
  Even though we differ on the substance on this particular issue, 
which I think is an important issue, I have enormous respect for what 
he has brought to this whole debate on the Patients' Bill of Rights. I 
value, very much, his continued involvement in this debate.
  I will mention briefly what we have in the legislation and why I 
believe it is wise to retain the approach we have currently. It has the 
complete support of the American Medical Association, the cancer 
organizations--I will refer to those later--and the overwhelming 
support of the medical community. It has evolved over a period of time. 
I will reference that in just a moment or two as well.
  But it does, I think, meet the standard that has been mentioned here 
about certainty, clarity, and predictability. That is what the 
proponents of this amendment have asked for. We have just done that on 
page 35, in establishing the particular details of our standard. I will 
give brief reasons that we ought to retain this.
  The McCain-Edwards-Kennedy bill allows the doctors, not the HMO 
accountants, to make the important medical decisions and it prohibits 
the HMOs from using arbitrary definitions

[[Page 12024]]

of medical necessity. Unfortunately, the proposed amendment would 
undermine this crucial protection and allow plans to use definitions of 
care that may harm the patients.
  Our legislation asks every Senator the basic question: Do you support 
the doctors making the critical medical decisions or do you want the 
HMOs to continue to deny care based on language that puts dollars 
before lives?
  The independent medical reviewer should consider the definition 
decided by the health plan. However, we should not bind their hands by 
arbitrary definitions by an HMO. Senators McCain, Bayh, and Carper will 
offer an amendment later today that reflects the bipartisan belief that 
reviewers cannot approve services that are not explicitly covered under 
any circumstances. If a plan covers 30 days of hospital care, a plan 
cannot say they should cover 100 days. This amendment underscores the 
premise in our bill that a reviewer should not be bound by an unfair 
HMO definition of medical necessity. In circumstances where explicit 
coverage decisions are subject to interpretation, the reviewer should 
have the opportunity to weigh all the relevant medical facts.
  I gave the example last evening. If the plan says ``no cosmetic 
surgery'' and there is a cleft palate on a child, I could see an 
independent reviewer saying as a matter of medical necessity it is 
imperative that we correct the cleft palate and would be justified in 
doing so. If, in the plan, it said ``no cosmetic surgery and no cleft 
palate,'' the medical reviewer would be prohibited from doing so. So 
there is that degree of interpretation in terms of medical necessity, 
that aspect of judgment that we want to give to the doctors in dealing 
with this issue.
  The Kyl amendment, once again, I believe gives the HMOs the 
opportunity to deny critical care by allowing them to use definitions 
of medical care that are stacked against the patients. This amendment 
also prevents independent reviewers from weighing all the relevant 
factors needed to make a fair decision. In addition, the amendment 
proposes to institute a complex rulemaking process to define medical 
necessity. However, administrative rulemaking is only as fair as the 
participants. If the participants are hostile to patients' rights and 
sympathetic to HMOs, they could undermine care for millions.
  As Charlie Norwood said, if reviewers are forced to wait on 
regulation at the speed HCFA moves, leeches might still be considered 
medically necessary and appropriate.
  Also, under this amendment the plan gets to choose any of the 
numerous definitions for medical necessity. It can seek out the worst 
of the worst, but consumers get no comparable rights to demand the best 
of the best. All you have to do is look at the range of definitions and 
it is easy to see why the disability community, the cancer community, 
the American Medical Association, and other groups are so vehemently 
opposed to this amendment. It fails to protect the patient and allows 
the health plans to continue to deny medically necessary care. That is 
why the overwhelming number of medical groups support our language.
  Some of the standards that they could pick from say cost-
effectiveness should help determine whether care should be provided. It 
might be cost-effective, for example, for an HMO to amputate a young 
man's injured hand, but what about the cost of having to spend the rest 
of your life without the full use of limbs? It might be effective for 
an HMO to pay for older, less effective medication for depression, but 
what about the cost to a mother trying to raise her family while 
dealing with the harmful side effects that could have been prevented by 
newer medication? Why should we subject the American people to them?
  I urge my colleagues to reject this amendment. Passing it would 
reverse the strong bipartisan efforts we have worked out in this 
legislation.
  Let me mention here the letter from the National Breast Cancer 
Coalition:
       On behalf of the National Breast Cancer Coalition and the 
     2.6 million women living with breast cancer, I am writing to 
     urge you to oppose the Kyl amendment and to support the 
     McCain-Bayh-Carper amendment on medical necessity. The 
     National Breast Cancer Coalition is a grassroots advocacy 
     organization made up of more than 600 organizations and 
     10,000 individual members all across the country who are 
     dedicated to the eradication of breast cancer through 
     advocacy and action. With regard to the enactment of a 
     strong, enforceable Patients' Bill of Rights, the NBCC 
     believes the determination about what is medically necessary 
     must remain in the hands of physicians, not HMOs. The 
     coalition is concerned the Kyl amendment would weaken the 
     provisions in the McCain-Edwards-Kennedy Patients' Bill of 
     Rights and would allow financial decisions to override the 
     medical judgments on patient care.

  Let me just mention some of the definitions which have been used. 
Here is a definition that is used in terms of medical necessity. As I 
mentioned, the history of this is that we did have a definition in the 
previous legislation that was passed. What we used for medical 
necessity at that time was this:

       Medically necessary or appropriate means a service or 
     benefit which is a generally accepted principle of medical 
     practice.

  That is what virtually every Democrat voted for. That gives the 
maximum flexibility to the doctor.
  When we got to the conference and began to work this out, the HMO 
industry said this definition was so broad and wide, in terms of 
interpretation, that it could mean anything. Therefore, it would 
completely override the contract terms of the HMOs.
  Then we altered it and said: In the internal review they will use the 
definition of the HMO, but in the external we will use a different 
definition. That is what is in the legislation. That is basically what 
is in the Breaux-Frist, as well as in the McCain-Edwards-Kennedy.
  Basically, it says ``a condition shall be based on the medical 
condition of the participant''--therefore you look at the medical 
condition of the principal--``and valid, relevant scientific evidence 
and clinical evidence including peer review, medical literature or 
findings, and including expert opinion.''
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. KENNEDY. I yield myself 3 more minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KENNEDY. The expert opinion is critical. The essential element of 
that--which I know has been questioned--was talked about and 
essentially agreed to in the conference last year.
  This is the concern we have. Here are some of the definitions which 
have been used in various HMOs, and even in Federal health insurance. 
The difference, in Federal health insurance is if there is an appeal of 
it, they leave it completely open. I asked staff to get the standard 
that is used. It is completely left to the doctor. That is where we 
want it, to the greatest extent possible. We have limited it as I have 
defined it. But these are some of the concerns.
  This is in CIGNA, in terms of medically necessary:

       . . . that are determined by our medical director to be no 
     more required than to meet your basic health needs.

  So this definition is going to be what the plan's medical director 
decides. Clearly, they are going to be biased in the HMO.
  This is the Hawaii State plan: Cost effective for the medical 
condition being treated compared to alternative health intervention, 
including no intervention.
  Cost effectiveness is unacceptable. It is more cost effective for the 
HMO to put someone in a wheelchair rather than for them to have hip 
surgery. But it is more effective to the individual to have the hip 
surgery.
  Here is another one:
  A treatment that could reasonably be expected to improve the member's 
conditions or level of functioning.
  Even though it is used by the Health Alliance HMO in the Federal 
health insurance, the problem is that for people with disabilities, the 
treatment may not be for a condition that can improve, but it certainly 
may improve the quality of life.
  Here are the Pacific Care Health plans furnished in the most 
economically efficient manner.

[[Page 12025]]

  ``Economically efficient'' is a problem.
  Again, it is what procedures are the most cost effective.
  We have to be very sure about what we are going to have. We have a 
good definition in this proposal. It is supported by McCain-Edwards and 
myself and is also essentially the provision in Breaux-Frist.
  It has the overwhelming support of the American Medical Association, 
as well as the Cancer Association, and is spelled out in this 
legislation. So there is certainty.
  If there is a change on this, we can come back and revisit it. I give 
the assurances to my friends that we can. But the idea that we are 
going to give the authority to a panel that will be set up by the 
Secretary--the makeup of which we don't know--which can propose 
something, still indicates that we don't know what is going to come 
out. That doesn't seem to me to be the way we ought to go in giving 
predictability and certainty to patients. If we are interested in that, 
we ought to get criteria that is sound, responsible, and gives medical 
professionals the ultimate ability to make judgments to protect the 
patient.
  That is what we do in this legislation. That is why I don't believe 
we should alter or change the proposal.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Madam President, how much time remains on our side?
  The PRESIDING OFFICER. Ten minutes.
  Mr. KYL. I yield myself 2 minutes.
  I am very sorry to have to say this, but the amendment that Senator 
Kennedy has just proposed is not our amendment. I want to be very clear 
about what our amendment does. The amendment that Senator Kennedy has 
been talking about was part of last year's bill.
  When Senator Nelson came forward this year, he said: Let's try to 
come up with something new. We did that. So the language we have before 
us today is not the language to which Senator Kennedy has been 
referring.
  When he talks about the Signet language and the other plan language, 
that would be absolutely prohibited by what we are talking about here. 
That was last year. We would absolutely prohibit that. When he talks 
about the plans choosing from among a range of definitions that could 
include cost effective, that would be absolutely prohibited under our 
language. That was last year.
  Let me again restate what we did this year.
  Mr. KENNEDY. Will the Senator yield on my time?
  Mr. KYL. Absolutely.
  Mr. KENNEDY. What I read here is ``what is determined by our medical 
director to be no more required than to meet your basic needs.'' That 
is in the Federal health insurance program. That would be included. The 
language I have read is ``the treatment that can reasonably be expected 
to improve the member's condition or level of functioning.'' The 
Federal employees' plans are included.
  The last one, ``furnish in the most economically efficient manner,'' 
that is Federal employees. That is included. All three are included 
because the Federal employees' insurance has been included as well.
  What is not included is discretion that is given to the medical 
doctor. The review of that is provided in the Federal employees' plans, 
and OPM is using it. It is not included in the underlying.
  Mr. KYL. If the Senator will allow me to answer, that is a factual 
matter. I will not argue with his answer. I think I can explain the 
reason for the confusion. But the answer to the Senator's question is 
no. What the Senator said is not correct. That was correct a year ago 
because a year ago the language of the amendment was that you took the 
FEHBP standard. And the Senator would have been correct a year ago 
because it was both the fee-for-service standard as well as the managed 
care contract standard.
  So the criticism that the Senator levels would have been correct 
criticism a year ago. And to some extent, I agree with the Senator from 
Massachusetts about that criticism. We threw that aside. Instead, we 
asked: What is the contract that governs the fee-for-service FEHBP 
plans? The contract that governs, we think, 73 percent of the people--
in other words, about 6 million people--is the language that they have 
approved for the Blue Cross/Blue Shield fee-for-service contract, as 
well as some others. We didn't want to allow any discretion whatsoever. 
So we took the five specific provisions of that contract. Those are 
embodied in the legislation. There is no discretion.
  If you want a safe harbor now under this amendment, you would have to 
write your contract with those five items, and only those five items. 
That is what the reviewer then would be able to review.
  If I could just continue on with respect to the negotiated 
rulemaking, it was our idea that if anyone didn't like those five 
items, and all of the stakeholders would want to get together and 
negotiate something different, we would be very amenable to that. So we 
set up this voluntary rulemaking procedure.
  If the Senator from Massachusetts and others think there is something 
wrong with that and they would not want to create that option in the 
bill, we are very amenable to dropping that out. We thought we were 
doing people a favor by putting that option in so that if somebody 
didn't like these five items, they could engage in this negotiated 
rulemaking. But anybody in the negotiations could veto it so that it 
wouldn't go into effect.
  But if people somehow fear that, it is not our intention to try to 
superimpose some nonspecific standard.
  If the Senator would like to engage further on that, we can certainly 
discuss that. I indicated to the Senator last night our willingness to 
discuss that. I hope I have cleared it up. I understand the reason for 
the confusion because that was last year's amendment.
  Our amendment language was only available a couple of days ago. So it 
is understandable that one might not have been able to read our 
amendment language. But I assure the Senator that our language is very 
specific and very different from that which he criticized.
  The PRESIDING OFFICER. The Senator from Nebraska.
  Mr. NELSON of Nebraska. Madam President, I understand the passion of 
my colleague from Massachusetts. He has done such great work in this 
area, and I truly appreciate and respect what he has done and the fact 
that he has taken a very careful look at what we are proposing.
  I suspect, though, that he would maybe look at me as a person who 
came to the party late and wants to rewrite the invitation. You can't 
try to change something where there has been such a history without 
encountering some resistance to it. I understand there is resistance to 
wanting to change this because it was dealt with last year. But you 
don't weaken this bill by making it more certain.
  I don't believe there is a problem. But if there is a problem within 
the Federal Employees Health Benefits Plan because there is not a good 
standard there, we can correct that by passing this amendment and this 
Patients' Bill of Rights, and make Federal employees subject to the 
Patients' Bill of Rights.
  My colleague from Massachusetts mentioned that there is perhaps a 
different manner of review for Federal employees where they have to go 
directly to the Office of Personnel Management rather than getting an 
internal or external review. We can correct that. We can make that plan 
subject to the Patients' Bill of Rights, and we can correct that. Or we 
ought to take a look at that independently.
  But this does not change anything that would be detrimental to those 
individuals my colleague from Massachusetts mentioned.
  For example, of the list of people, such as a person with a cleft 
palate, the only question about a person with a cleft palate is whether 
that treatment, in the judgment of the medical professional, the 
doctor, would be consistent with the standards of good medical practice 
in the United States. That

[[Page 12026]]

is the dynamic, and I am sure that it would. There is nothing static 
about this definition. It will continue to change as the good standards 
of medical practice in the United States change.
  My good friend also mentioned something about making sure that we 
have our loved ones well protected. I agree with him and include the 
Federal employees as part of our loved ones. I think we want these 
standards to apply to all Americans. The way in which you can do that 
is by adopting this amendment on medical necessity.
  What it does not do is, it does not change the doctor's 
decisionmaking in relation to what kind of care to provide. What it 
does say is that it has to be consistent with the standards of good 
medical practice in the United States.
  I, for the life of me, do not see what the resistance to this 
language is, other than the fact that we tried to do it a year ago. We 
had the Stanford definition. We talked about other definitions a year 
ago. Now we have come up with a definition which I think is an 
excellent definition that will do it, that will establish the standard 
for certainty, for predictability. And now we are saying it may weaken 
the Patients' Bill of Rights. But certainty will strengthen this. There 
is no effort here to do anything that would not be consistent with--as 
a matter of fact, the language requires that the medical profession do 
something consistent with the standards of good medical practice. 
Whether it is an amputation, whether it is a cleft palate, whether it 
is deciding on cancer care, or whether it is deciding on other kinds of 
care, all we are saying is it ought to be subject to these standards. 
That is the only point that is being made.
  Mr. President, how much time remains?
  The PRESIDING OFFICER (Mr. Carper). The Senator from Nebraska has 
about 4\1/2\ minutes remaining. The opposition has 13 minutes 
remaining.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. I am glad to yield----
  Mr. McCAIN. Will the Senator allow me a couple minutes of time?
  Mr. KENNEDY. Yes. Absolutely. The Senator from North Dakota was 
looking forward to talking, but whatever.
  Do you want me to yield 3 minutes?
  Mr. McCAIN. How much time?
  Mr. KENNEDY. I yield 3 minutes to the Senator.
  Mr. McCAIN. I thank the Senator from Massachusetts, and also the 
Senator from North Dakota. I would be glad to wait until after the 
Senator from North Dakota speaks, if he prefers.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I have major concerns about the Kyl-Nelson 
amendment and unfortunately, must oppose it. While I certainly respect 
the intentions of my dear friend and fellow Arizonian, Jon Kyl, I 
respectfully disagree with him regarding this proposal.
  I simply can't support mandating a Federal statutory definition of 
``medical necessity'' that is vague and creates further confusion and 
barriers for patients attempting to get the medical care their doctor 
deems appropriate, and is covered by their HMO plan.
  This amendment would put into statutory language a vague definition 
that allows health plans to determine whether services, drugs, 
supplies, or equipment are appropriate or necessary to prevent, 
diagnose, or treat a patient's condition, illness, or injury.
  While this appears reasonable, it simply is not.
  One of the major hurdles currently facing patients is the repeated 
denial of their medical care on the basis that it is not medically 
necessary based on a vague or constraining definition. The health plans 
are intentionally denying care to constrain costs by hiding behind 
cleverly crafted definitions.
  This amendment would allow this practice to continue.
  For example, part of the definition allows a plan to determine 
whether the recommended medical care is, ``primarily for the personal 
comfort or convenience of the patient, the family or the provider . . 
.''
  It sounds reasonable, but it is not. This is already being used to 
prevent patients from receiving palliative care for managing the 
intensive pain they encounter while battling cancer or other serious 
illnesses.
  Another portion of the proposed definitions reads, ``Consistent with 
standards of good medical practice in the United States . . .''
  Again, appears harmless, but it isn't. Who establishes the standards 
of good medical practice? What basis is used for developing them? How 
current, considering the pace of new technology and medical research 
will these standards be?
  Another portion of the proposed Kyl-Nelson Federal definition reads, 
``In the case of inpatient care, [the care] cannot be provided safely 
on an outpatient basis . . .''
  Legally, this creates an opportunity for retrospective reviews by 
HMOs thereby leaving the patient and/or medical provider responsible 
with the incurred costs from the inpatient care that the HMO determines 
should have been provided on an outpatient basis.
  These are just a few of the problems facing patients if this 
amendment is adopted.
  I wholeheartedly agree with my colleagues that we can't create a 
method that obviates health plan contracts and that is not what our 
bill does.
  Our bill does not empower the independent medical reviewer to 
override existing health plan contracts or force HMOs to cover anything 
and everything despite a service being specifically excluded in the 
contract.
  Our bill relies on the independent medical reviewer to give patients 
a second medical opinion when such a medical opinion is necessary to 
interpret the plan's coverage, but it does not empower them to 
disregard the plan's specific coverage exclusions and limitations.
  I will be offering an amendment after the scheduled vote on the Kyl-
Nelson amendment that will further clarify this and protect the 
sanctity of the plan's contract with a patient.
  I urge my colleagues to reject the Kyl-Nelson amendment and allow 
patients to have their medical decisions made by doctors and nurses and 
not by HMO lawyers or bureaucrats.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, how many minutes do I have remaining?
  The PRESIDING OFFICER. The Senator from Massachusetts controls 10\1/
2\ minutes.
  Mr. KENNEDY. I yield 8\1/2\ minutes to the Senator.
  The PRESIDING OFFICER. The Senator from North Dakota is recognized 
for 8\1/2\ minutes.
  Mr. DORGAN. Mr. President, this is a well-intentioned amendment, but 
it must be defeated because it is aimed right at the heart of this 
patients' rights bill, right at the core of the bill. The question is, 
Who is going to make the decisions? Who will make decisions about 
medical care? An MBA or an MD? Who do we want to make the decisions 
about medical care?
  The McCain-Edwards-Kennedy bill allows doctors and patients to make 
fundamental decisions about their care. It will be based on medical 
necessity and appropriateness and supported by valid, relevant 
scientific and clinical evidence. In other words, if an HMO makes an 
arbitrary decision about some kind of a treatment they believe is not 
medically necessary, based on its own inadequate definition of 
``medical necessity,'' the reviewers would be able to overturn that and 
advocate treatment.
  Under this amendment put before the Senate, the patient would be 
bound to the HMO's decision and have literally no options; the 
independent reviewer would have no authority whatsoever to recommend 
treatment if it was needed.
  The Senator from Massachusetts read a list, and he was challenged on 
that list. But the fact is, the list he read is absolutely correct.
  Let met do this in English, if I can. The amendment, as I understand 
it, allows an HMO or managed care organization several different 
approaches to deal with the issue of what is medically necessary. How 
do you define medically necessary? Several different ways. One

[[Page 12027]]

is a mechanism described by the Senator from Massachusetts. He read 
some of those definitions. He was accurate about that. But there are 
two other mechanisms by which an HMO could describe what is medically 
necessary.
  Do any of us think the HMO will pick the more stringent approach? Of 
course not. They will pick the least effective approach, the approach 
that poses the least cost to them. They will pick the weakest of the 
options. That is what the Senator from Massachusetts was saying.
  Give the HMO the opportunity, and they will pick the least possible 
option, the least costly option for themselves. That is why we are in 
this Chamber with this patients' protection bill. This amendment 
strikes a blow right at the heart of the patients' rights legislation. 
The reason we are in this Senate Chamber is to work on providing 
patients' rights, not take them away.
  Let me do this in a bit more dramatic way.
  One of our colleagues has used this photo from time to time. This 
photo shows a young baby with a cleft lip and cleft palate, which is a 
very severe problem. We are told that about 50 percent of the time 
fixing this would be described as ``not medically necessary'' by an 
HMO. Can you imagine a health care plan saying: ``No, fixing this 
disfiguring defect is not a medical necessity, therefore, we will not 
cover it''.
  Let me describe what this child will look like with that problem 
fixed. This photo is of a child with reconstructive surgery. This other 
photo is of a child with the severe problem before it is repaired. 
Fifty percent of the time managed care organizations have told those 
requesting reconstructive surgery for a cleft lip or palate: ``No, you 
are wrong. This is not medically necessary. And we will not cover it''.
  Is that how we want our health care system to operate? It will be 
allowed if this amendment is adopted.
  Let me describe another case. I am going to describe how this case 
relates to this amendment.
  This is a photo of Ethan Bedrick. We have spoken about Ethan before. 
Ethan was born on January 28, 1992. He had a partial asphyxiation 
during birth, a very significant problem in delivery. He has suffered 
from severe cerebral palsy and spastic quadriplegia, which impairs 
motor functions in all his limbs. At the age of 14 months, his managed 
care organization abruptly cut off coverage for all of his speech 
therapy, and limited his physical therapy to 15 sessions in a year. A 
doctor from his managed care organization performed a ``utilization 
review.'' He said that there was only a 50-percent chance of Ethan 
being able to walk by age 5, which is ``insignificant'' and, therefore, 
they would restrict coverage.
  So let me say that again. A 50-percent chance of being able to walk 
by age 5 was ``insignificant'' and, therefore, they would not cover the 
therapy.
  His parents went to court 3 years later. A judge said:

       The implication that walking by age 5 . . . would not be 
     ``significant progress'' for this . . . child is simply 
     revolting.

  But in the meantime, it took 3 years, and this child did not have the 
therapy he needed for 3 long years.
  My point about this is, young Ethan Bedrick, or a young child with a 
cleft lip and a cleft palate, running into a plan that has a provider 
service saying: ``These are not medically necessary procedures, and we 
will not cover them,'' will have no ability to have an independent 
reviewer overturn that under the amendment that is offered today.
  Mr. KENNEDY. Will the Senator yield?
  Mr. DORGAN. I am happy to yield.
  Mr. KENNEDY. For the benefit of the membership, we had scheduled a 
vote at 12:30. With the agreement of the leadership, that vote will be 
postponed until 2. At 1 o'clock, Senator Gregg will be here to offer an 
amendment for himself. At 2, it is the anticipation of the leadership 
that there will be two rollcall votes. We have not made the unanimous 
consent request yet, but that is the intention of the agreement of the 
two leaders. After the time expires, we will make that unanimous 
consent request.
  Mr. REID. Will the Senator yield for a question?
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. From 12:30 until 1 o'clock there will be general debate on 
the bill.
  Mr. McCAIN. If the Senator will yield?
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. I note the presence of the Senator from New Hampshire on 
the floor. We really have an issue of scope, an amendment we need to 
bring up, and of course the so-called Snowe compromise amendment as 
well. I hope we will be able to put both of those in some kind of order 
in some way today.
  Mr. REID. Mr. President, the Senator from Arizona is absolutely 
right. Progress has been made but not nearly enough. Since Senator 
Gregg is here, I wonder if we could restate the unanimous consent 
request and have that entered at this time. The only suggestion I would 
make to Senator Kennedy is that we should have general debate from 
12:30 to 1 on the legislation.
  Mr. KENNEDY. That is fine.
  Mr. GREGG. Is there a unanimous consent request pending?
  Mr. KENNEDY. As I understand, the time will expire in how many 
minutes for the debate on this amendment?
  The PRESIDING OFFICER. The Senator from Massachusetts has 3 minutes 
to go, and the other side has 4 minutes.
  Mr. KENNEDY. As I understand it, there has been agreement to vote on 
that amendment when the time is used or yielded back; am I correct?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. KENNEDY. I ask unanimous consent that the vote on that amendment 
be put off until 2 o'clock.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. KENNEDY. It is the anticipation of the leadership that between 
12:30 and approximately 1 o'clock there will then be general debate on 
the legislation. At 1 o'clock an amendment will be laid down by the 
Senator from New Hampshire or his designee. It is anticipated there 
will be a second vote at 2 which will be on that amendment.
  Mr. GREGG. Mr. President, I can't guarantee that there would be a 
second vote at 2 on that amendment, unless the parties to that 
amendment are agreeable to that.
  Mr. KENNEDY. Then I withdraw my request. I was asked to make that 
request; if there was going to be no objection, that was going to 
proceed. Otherwise, we will go ahead.
  Mr. GREGG. Mr. President, I suggest the absence of a quorum.
  Mr. KENNEDY. I had asked if the Senator would yield. The Senator from 
North Dakota has the floor.
  Mr. DORGAN. Mr. President, how much time remains?
  The PRESIDING OFFICER. The Senator from North Dakota has about 2 
minutes.
  Mr. DORGAN. Let me continue by saying, I understand that those who 
have framed this amendment will not agree with my assertion. But I also 
understand that they are trying to craft something that defines what is 
medically necessary in a manner that would give a managed care 
organization three different options to restrict care.
  In my judgment, the managed care organization will clearly select the 
option that has the least amount of coverage or the least cost to them. 
That is precisely why we are here in the first instance. We are trying 
to see if we can create a Patients' Bill of Rights that allows a doctor 
and health care professionals to make judgments about what kind of 
treatment is appropriate. We have story after story after story about 
health care professionals making a decision about what kind of health 
care is necessary for a patient only to be told later that someone 
1,000 miles away an insurance office decided, no, this was not 
medically necessary at all, and we won't cover it. We don't agree with 
the physician's decision or recommendation for treatment.
  The reason the AMA and nurses and others support this legislation of 
ours is they believe very strongly that health care professionals ought 
to be the ones practicing medicine. The American Medical Association is 
very strongly opposed to this amendment.

[[Page 12028]]

  I ask unanimous consent to print a letter the AMA has sent objecting 
to this amendment in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

         [From the American Medical Association, June 26, 2001]

AMA Opposes Kyl-Nelson Amendment That Lets MBAs--Not MDs--Make Medical 
                               Decisions


        After 7 years, the debate has suddenly come full circle

       Washington.--Today the American Medical Association (AMA) 
     called on Congress to defeat a Kyl-Nelson amendment that 
     would negate a core provision of the patients' bill of 
     rights. This new medical necessity amendment would allow 
     insurance company bean counters to make medical decisions.
       ``Today, after seven years of debate, it seems some 
     lawmakers want to start over at the beginning, with the core 
     question: Who should make your medical decisions--MDs or 
     MBAs?'' said Dr. Thomas R. Reardon, MD, AMA past president. 
     ``For patients and physicians there's no debate: Decisions 
     about the health care a patient needs must be left to those 
     who are focused on patients--not on the bottom line.''
       ``The Kyl-Nelson amendment uses a medical necessity 
     definition that allows health plans to determine whether 
     services, drugs, supplies or equipment are appropriate to 
     prevent, diagnose or treat a patient's condition, illness or 
     injury.'' Dr. Reardon said. ``This is a big step backward.''
       Insurers and business have repeatedly opposed defining 
     medical necessity in legislation: ``A federal standard of 
     medical necessity will raise premiums, threaten quality, and 
     jeopardize efforts to prevent abuse.'' (Blue Cross/Blue 
     Shield, 2/99); ``We fear a congressionally mandated 
     definition of medical necessity, and therefore do not support 
     it.'' (Ford Motor Company 2/99).
       ``It's clear that health plans put profits before patients 
     when they define medical necessity as the `shortest, least 
     expensive or least intense level of treatment,' Dr. Reardon 
     said. ``People get health insurance so that they're not 
     limited to the cheapest care--no matter what the outcome.''
       ``The McCain bill allows physicians to make medical 
     decisions and allows an independent panel of reviewers to 
     determine disputes. AMA calls on the Senate to reject the 
     Kyl-Nelson amendment that guts the patients' bill of 
     rights,'' Dr. Reardon said.

  Mr. DORGAN. They are opposed precisely because they understand this 
amendment absolutely unravels the central and vital section of this 
bill dealing with medical necessity. Our patients' rights legislation 
provides a structure by which doctors make decisions and then you have 
the opportunity for independent review if needed. But in the 
circumstance as proposed in the amendment up for debate, if we create 
definitions that allow diminishment of the level of care in terms of 
what is medically necessary, the independent reviewer will have their 
hands tied and patients will not get the care they deserve or need.
  This is a very carefully drafted bill. I am not in any way ascribing 
mal-intent to anyone who offers this amendment. This amendment will 
unravel the bill in a very significant way. We must defeat this 
amendment. We should defeat this amendment and preserve the patients' 
protections legislation that we have brought to the floor of the 
Senate. This has been going on 5 years. This is good legislation. We 
ought to pass it and defeat the amendment.
  I yield the floor.
  The PRESIDING OFFICER. The time controlled by the manager of the bill 
has expired.
  Mr. KENNEDY. Mr. President, I think the Senator has 2 minutes. I have 
2 minutes; is that correct?
  The PRESIDING OFFICER. The sponsor of the amendment has 4 minutes 
remaining. All time has expired in opposition to the amendment.
  Mr. DORGAN. Mr. President, that cannot be the case. The Senator from 
Massachusetts allotted 8 minutes to me. At that point, he had 10\1/2\ 
minutes remaining. It cannot be the case that we have exhausted our 
time.
  The PRESIDING OFFICER. The time of the colloquy back and forth 
between the Senator from Massachusetts and the Senators from New 
Hampshire and Nevada was charged to the manager.
  Mr. GREGG. I ask unanimous consent that the Senator from North Dakota 
have another 10 minutes, if he desires.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. DORGAN. Mr. President, I yield my time to the Senator from 
Massachusetts.
  Mr. KENNEDY. Mr. President, I will take the 2 minutes which I 
otherwise might have had if we hadn't entered into the request.
  Here we go again with greater hope in our hearts that we will be 
successful.
  After the yielding back of the time, we intended to vote on the 
Nelson amendment. At the request of the leadership, I ask unanimous 
consent that that vote be put off until 2 o'clock.
  Mr. REID. Reserving the right to object, I have been informed that 
there will be a motion to table made on the amendment. That will be 
done at the appropriate time.
  Mr. KENNEDY. At 2 o'clock. It is anticipated that at 1 o'clock there 
will be an amendment from the Senator from New Hampshire or his 
designee. I am informed that it will probably be the Senator from 
Tennessee, Mr. Thompson; and that we will begin the debate on that at 1 
o'clock and that the time between 12:30 and 1 will be used for general 
debate.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. KENNEDY. Mr. President, I apologize to my friend for the 
interruptions because the Senator has been patient during his 
presentation and is typically kind and generous to permit the workings 
here.
  I believe we have a good, solid definition in terms of medical 
necessity that has been reviewed, evaluated and has gotten broad 
support. It has bipartisan support. It also has the very, very strong 
support of the medical community: The American Medical Association, all 
of the cancer organizations, as well as the disability community. They 
all have great interest in what that definition is.
  In too many instances in the past there have been definitions that 
have been offered and accepted that work to the disadvantage of 
patients. For example, definitions have been made that do not include 
palliative care for patients who have cancer or don't recognize the 
very special needs of the disabled.
  We have a definition here. It is defined in the legislation. It has 
been reviewed. It is careful. It is predictable. It is certain. It does 
provide for doctors to exercise their best medical judgment. It is 
completely consistent with the purposes of the legislation.
  As I mentioned, I have great respect for my friend and colleague. I 
think on this we should stay with the language which should be included 
and which has the broad support, virtually the unanimous support of the 
medical community.
  The PRESIDING OFFICER. The Senator from Nebraska is recognized.
  Mr. NELSON of Nebraska. Mr. President, I appreciate the opportunity 
to engage in a dialog with my colleague from Massachusetts. As I 
indicated earlier, I respect his work and many years of effort in this 
field. I certainly respect his judgment. If I would disagree with him, 
it would be that somehow there is a standard that is currently in 
place. As a matter of fact, last year they tried on numerous occasions 
to achieve a standard. They could not come up with one where they 
agreed. So they agreed to disagree and left the standard out.
  We have an opportunity now to come up with a standard that is good 
enough for Federal employees and put that in this bill. If it is good 
enough for Federal employees, then of course I think it ought to be 
good enough for the rest of America.
  As to the charts that were shown, I ask, is there anybody in this 
Chamber today who believes that under the definition of consistent with 
standards of good medical practice in the United States, any doctor 
would not have ordered that the cleft palate be treated?
  I understand the importance of having charts. I understand the 
importance of having faces put on the patients. But I think it is 
important that, as we do that, it be very clear that we understand that 
these cases would be treated appropriately under the standards of good 
medical practice in the

[[Page 12029]]

United States. So I think we really have an opportunity today to 
provide more clarity, so that doctors who will have the opportunity to 
make medical decisions and order care will be able to do so consistent 
with standards.
  There is no way that this amendment today is designed to take away 
any of the authority of the doctor at all, or any other health care 
provider. All that it is aimed at providing is a standard. If they had 
come up with a standard last year and it were included in the bill, I 
would not be raising the question this year. This issue today is about 
whether to have the standard or not. I can't imagine we are even 
debating it. We ought to be debating what the standard is. That isn't 
the debate we have today.
  As a matter of fact, some of the objections raised earlier about this 
amendment could be equally said of an amendment that I suspect the 
Presiding Officer will be supporting today a little later, and that is 
to make sure you don't have those exclusions from a policy, those 
exclusions from a contract, ignored by a medical examiner in the whole 
process of the review.
  The important point here is that this will provide an opportunity, 
upon an internal or external review, for a medical reviewer to make 
good decisions consistent with good medical practice, consistent with 
the needs of the patient, so that the conditions in those pictures that 
were shown here--very vivid descriptions--can and will be taken care of 
and will not be left open without a definition, without a standard. The 
boundaries would be set, but they would be far broad enough to cover 
that and any other condition that was discussed here as an example this 
afternoon.
  It seems to me it is important that we establish a standard, and if I 
wanted to oppose what I am proposing today, I would come in and I would 
say that it was going to do something bad, that it was not going to 
permit something good. But that doesn't make it so. It is important to 
point out the language and deal with the reality of the words of this 
amendment, rather than setting up a straw man to attack and say that it 
is doing something or it won't do something that it is in fact doing.
  Mr. President, how much more time is there?
  The PRESIDING OFFICER. The Senator has about 8 seconds.
  Mr. NELSON of Nebraska. I ask my colleagues to support this amendment 
and move forward with the important work of the Patients' Bill of 
Rights. We can do that. This will improve it and will not detract from 
it.
  The PRESIDING OFFICER. The Senator from New York is recognized.
  Mrs. CLINTON. Mr. President, I have the greatest respect for my good 
friend, the Senator from Nebraska, and I rise reluctantly, but firmly, 
to oppose the amendment he is sponsoring, along with Senators Kyl and 
Nickles, because I am concerned not only about the general issues that 
have been raised by other opponents, I am concerned also by the 
American Medical Association's very strong and vigorous opposition to 
this amendment, which they have made very clear to me and my office, as 
well as, I believe, every other Senator, because of their deep concern 
that this would be a step backward, permitting health plans to 
determine the services, drugs, supplies, or equipment necessary to 
prevent, diagnose, or treat a patient's condition, illness, or injury.
  But I have a very specific reason for opposing it. I direct this to 
my good friend from Nebraska because this is something that deeply 
concerns me. This amendment allows health plans to define ``medically 
necessary and appropriate'' in a way that poses a great threat to all 
patients and families who require hospice and palliative care to treat 
the suffering associated with terminal illness.
  The Washington Post, just a week ago, published a story outlining the 
various ways in which recent advances and end-of-life care have not yet 
reached children with terminal illnesses, causing an enormous amount of 
suffering for dying children and their parents and loved ones who have 
to watch that suffering at the end stages of a terminal illness. The 
article quotes one mother who says, looking back on her daughter's 
death, that ``pain is such a huge problem.''
  There are two specific phrases within the safe harbor of the 
``medically necessary care'' language in the Kyl-Nelson-Nickles 
amendment that directly undermines the needs of dying patients. First, 
the amendment declares that care provided ``for the comfort of the 
patient'' is not medically necessary care.
  Any health care professional--or really any person, such as myself--
who has stood at the bedside of a dying friend or a loved one knows 
that comfort of the patient is absolutely necessary and is often the 
most appropriate goal of care in those last days, weeks, and even 
months sometimes. At the very center of palliative care, and 
particularly in the hospice movement, is the belief that each of us has 
a right to die free of pain and with our human dignity as intact as 
possible.
  The Institute of Medicine released a ground-breaking report in 1997 
that concluded ``too many people suffered needlessly at the end of 
life.'' A second Institute of Medicine report released last week also 
concluded that patients are suffering unnecessarily. Furthermore, 
studies have shown that specific types of patients--patients who are 
elderly, female, African-American, or children--are less likely to have 
their pain adequately controlled at the end of their lives.
  The Kyl-Nelson-Nickles amendment is legislation that could be termed 
as declaring that the comfort of dying patients is not a legitimate 
goal of medicine. But to me, that has it backwards. Isn't the relief of 
suffering exactly what doctors are supposed to be concerned about?
  A second and related problem is that this amendment allows plans to 
define as ``medically necessary'' care that is appropriate ``to treat a 
medical condition, illness, or injury.'' This narrow definition 
compromises the delivery of appropriate care to dying patients by 
failing to recognize the legitimacy of care that focuses on the 
palliation of pain rather than a cure. This definition actually 
encourages overuse of invasive--and often futile--medical treatment and 
the underutilization of hospice and palliative treatment.
  The Institute of Medicine report released this month concludes that 
``policies and practices that govern payment for palliative care hinder 
delivery of the most appropriate mix of services.'' A chapter of that 
report focuses on the terrible effect these policies have had on 
children. It found that services necessary to provide dying children 
and their parents with comfort and counseling are not recognized and 
certainly not even reimbursed by many insurance programs.
  I believe the definition of ``medically necessary care'' proposed by 
this Kyl-Nelson-Nickles amendment would further obstruct access to 
hospice and palliative care services for patients suffering from 
terminal illness.
  We have not done enough to relieve pain and suffering at the end of 
life. I served for many years on the board of a children's hospital. 
Back in those days, the idea of giving strong medication to a dying 
child was really not even considered a possibility for many reasons. 
People were not sure about the appropriate dosage. Some people were 
worried even with a dying child that the child might become addicted to 
strong pain relief medicine.
  I have also seen friends who, at the end of their lives, had to cry 
out for and demand pain relief from an almost unbearable burden. They 
did not want to leave this wonderful life, but they knew that was going 
to happen and they wanted to do it in a way that relieved both them and 
their loved ones of the agony that comes at the end of so many 
devastating illnesses.
  There are many wonderful hospice programs in our country, and many 
academic development centers are developing comprehensive palliative 
care programs specifically to focus on patient comfort at the end of 
life.
  The Kyl-Nelson-Nickles amendment places the comfort of dying patients 
and their families beyond the language of the legislation, really 
rendering it illegitimate; providing this comfort would no longer be 
medically necessary or appropriate.

[[Page 12030]]

  I ask unanimous consent to print in the Record the article I referred 
to earlier from the Washington Post called ``Children of Denial.''
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

               [From the Washington Post, June 19, 2001]

Children of Denial--Recent Advances in End-of-Life Care Haven't Reached 
                         the Youngest Patients

                         (By Abigail Trafford)

       The leukemia had come back. Liza Lister, 5, leaned on her 
     mother's shoulder. As her mother later recalled, Liza asked, 
     ``Will I die soon?'' She quickly went on, ``I want to die on 
     your lap. I want to have my lullaby tape on.'' Just days 
     after her fourth birthday, Liza had been diagnosed with acute 
     lymphocytic leukemia. Now her last chance for a cure, a bone 
     marrow transplant, had failed.
       Her parents, both physicians in New York City, had access 
     to the most advanced therapies to wage war against her 
     disease. But when a cure was no longer possible, they found 
     themselves outside the mainstream of modern medicine.
       Hospitals had no formal support system for families caring 
     for a child who was going to die. There was no one health 
     professional to offer consistent guidance throughout the up-
     and-down course of Liza's illness. The medical team never 
     mentioned a hospice program.
       At a time when strides have been made in easing the pain of 
     death for adults, most children who die of chronic illness do 
     not receive state-of-the-art care at the end of their lives--
     mainly because no one wants to admit they're dying. The 
     majority die in hospitals, often in intensive care units 
     where they are hooked up to life support machines. Drugs that 
     could ease pain go unprescribed.
       Yesterday the Institute of Medicine, in a report on end-of-
     life cancer care, called for a stronger focus on children, 
     for better relief of suffering, education of doctors and 
     changes in health plans to cover supportive services.
       ``Kids are suffering. The ones who are sensing they are 
     dying and haven't been told are suffering from loneliness, 
     from a lack of permission. Kids are suffering pain because 
     people are reluctant to give narcotic pain relief to 
     children,'' said pediatric oncologist Joanne Hilden, who 
     founded the end-of-life care task force for the Children's 
     Oncology Group, a national network of pediatric cancer 
     specialists.
       ``Parents are suffering because they feel they have failed 
     their child. Doctors and nurses are suffering for wanting to 
     do better in a system that is getting in the way at every 
     turn.''


                          the invisible death

       Death in childhood can be a taboo subject in the United 
     States. The roughly 28,000 children who die every year of 
     chronic illness such as cancer, heart disease, degenerative 
     disorders and congenital anomalies are like medical orphans 
     in a health care system dedicated to cures and longevity.
       ``Childhood death is completely invisible,'' said nurse 
     Cynda Rushton, director of the palliative program for 
     children at John Hopkins Children's Center. ``People don't 
     want to be reminded of it. The grief is so profound, it's 
     almost unspeakable.''
       The medical team generally recognizes that a child is dying 
     several months before the parents do--but doesn't usually 
     tell them. In a study published last November in the Journal 
     of the American Medical Association, physicians tended to 
     realize there was no chance of recovery nearly seven months 
     before a child's death from cancer; parents, on the other 
     hand, did not come to that realization until about 3\1/2\ 
     months before. Only about half the parents learned it in a 
     discussion with the doctor.
       The communication gap between physicians and parents is a 
     major barrier to quality end-of-life care, pediatric 
     specialists said.
       No one at the hospital could bear to discuss death with 
     Liza Lister. She had pressed her doctors: ``What will happen 
     when I die? How will I know I'm dying?'' Her oncologist 
     promised to let her know when death was imminent. But on the 
     final night, as she lay in her mother's arms next to her 
     father and older sister, and everyone knew the end was near, 
     Liza asked, ``Why didn't the doctor call to tell me?''
       The Listers were able to put together hospice care for Liza 
     for the last three months of her life. But fewer than 10 
     percent of children who die in the United States receive such 
     care, according to the National Hospice and Palliative Care 
     Organization.
       Palliative programs, focused on pain control and quality of 
     life, are aimed at making patients comfortable rather than 
     curing their disease. In addition to doctors and nurses who 
     treat pain and other symptoms, counselors, social workers and 
     spiritual advisers address the patient's emotional and 
     developmental needs. The team also supports the parents and 
     siblings, and helps the bereaved family after the child dies.
       A study published last year in the New England Journal of 
     Medicine concluded that many children with cancer ``have 
     substantial suffering in the last month . . .  and attempts 
     to control their symptoms are often unsuccessful.''
       Researchers interviewed the parents of 103 children who had 
     died between 1990 and 1997 and were cared for at Boston's 
     Children's Hospital and the Dana-Farber Cancer Institute. 
     Nearly half the children died in the hospital--half of those 
     in the intensive-care unit. Overall, nearly 90 percent of the 
     children suffered ``a lot,'' according to the parents.
       Thirty years ago, when childhood cancer was generally 
     fatal, ``we were experts in end-of-life care,'' said 
     oncologist Joanne Wolfe at Dana-Farber, an author of the 
     study. Today, 70 percent of patients survive. ``We have to 
     turn our focus on the percent who are not cured,'' she said. 
     ``We have to focus on palliative care.''
       A more recent review of children who died in hospitals in 
     Canada showed similar results. These children suffered from a 
     range of conditions including AIDS, organ failure, cystic 
     fibrosis, heart disease and cancer. Of the 77 patients 
     studied, more than 80 percent died in the ICU and most were 
     attached to tubes and ventilators. The children were rarely 
     told they were dying, according to the report in the December 
     issue of Journal of Pain and Symptom Management.


                           moment of decision

       When a life-threatening illness is diagnosed in a child, 
     most families start out with aggressive treatments.
       Terri Wills, a single mom in the East Texas town of Newton, 
     thought her son's swollen face was due to allergies. It 
     turned out to be a rare, devastating kidney disease called 
     focal segmental glomerulosclerosis.
       Adam, 5, was treated with heavy doses of corticosteroids 
     and other drugs. He gained weight from the drugs, his height 
     was stunted, his moods were in flux. He lived for almost 10 
     years with his disease--and lived well, his mother said, 
     pitching for his baseball team and trying not to ``let anyone 
     see he was sick.''
       In 1996, at the age of 12, Adam went into renal failure and 
     had a kidney transplanted from his mother. The disease 
     recurred almost immediately. A second transplant failed in 
     1998. At that point Wills and her son knew his death was 
     inevitable. ``I'd rather he die on a bicycle than in the 
     hospital,'' she told his doctors at the Children's Medical 
     Center in Galveston, and she took him home.
       For many other children, the prognosis is not so clear. 
     Chronic conditions are highly unpredictable. Many formerly 
     fatal diseases are now curable. Parents are naturally eager 
     to give their child every chance for survival.
       Derrick Csati, 9, of Angola, N.Y. has been battling brain 
     cancer since he was 2. His first surgery lasted 17 hours. 
     Since then, he's had several relapses and more surgeries, 
     courses of chemotherapy and radiation, experimental therapies 
     including monoclonal antibodies and a round of stem cell 
     transplants.
       He's now on his way to Duke University to receive another 
     stem cell transplant, his fifth in the last year. His family 
     has declared bankruptcy and his mother quit her job to stay 
     with him.
       The Csatis are supported with home care nurses and social 
     workers from the Center for Hospice and Palliative Care in 
     Buffalo. They have been on the brink before. Four years ago. 
     Derrick relapsed with tumors invading his spine, causing 
     horrific pain. They were offered several options; one was to 
     stop aggressive treatment and make him comfortable. They 
     chose instead an experimental regimen of chemotherapy and 
     radiation. The tumors disappeared.
       ``He's had four years of quality life,'' said his mother, 
     June Csati. Derrick goes to school and has a close 
     relationship with his older brother, Ben. His mother knows 
     ``we could always tell them we're done.'' But ``I keep the 
     faith. I think he could pull this off. He's willing. He's not 
     being hurt by this.''
       ``How can you stop? It's so worth fighting.''


                            the pain factor

       For many families, the crucial decision of whether to treat 
     aggressively or let go takes place in the pediatric 
     intensive-care unit (PIC). Doctors and nurses on the front 
     lines remember the hard cases: The teenager with aplastic 
     anemia who was in so much pain she couldn't be touched. The 
     13-month-old who was born prematurely and stayed on life-
     support machines virtually all her life until the technology 
     was turned off.
       ``I wouldn't put my own children through what we put 
     children through here,'' said Ivor Berkowitz, Director of the 
     PICU at Johns Hopkins. ``It is very wrong when you look at it 
     in retrospect.''
       But he quickly adds that each case is unique and that there 
     are no overall guidelines on how to treat patients with 
     advanced illness in an era of expanding biomedical options. 
     Many children survive crisis that would be fatal for adults.
       ``At what point do you change your goals?'' Berkowitz 
     continued. ``Where do we set the bar? This is the biggest 
     struggle in the ICUs.''
       ``The discussions are hard,'' said cancer specialist 
     Hildenof the Cleveland Clinic Foundation. ``Are we going to 
     do experimental chemo for leukemia? Or shall we stop? Do you 
     want to go on or off the ventilator? That's the down-and-
     dirty stuff. That's not a 10-minute conversation.''

[[Page 12031]]

       Nor is it covered by insurance, Hilden noted. ``How 
     politically incorrect is it to say I don't get paid to talk 
     to parents about the death of their child?''
       All the while, children with debilitating illness need the 
     medical team to address symptoms such as fatigue, nausea, 
     shortness of breath and depression.
       Managing pain is difficult in children, especially in those 
     who are not able to talk. Physicians get virtually no 
     training in pediatric palliative care. Doctors and nurses 
     watch for increasing heart rates, crying, agitation, 
     irritability.
       ``It's very hard to tell what they're feeling,'' said 
     physician Charles Berde, director of pain treatment services 
     at Children's Hospital in Boston. ``The parents say, `My 
     child screams all the time.' Is the child screaming from pain 
     or something else?''
       ``Pain is such a huge problem,'' remembered psychiatrist 
     Elena Lister, who described her daughter's death in the March 
     issue of the Journal of Pain and Symptom Management. Liza, 
     who died four years ago, suffered severe bone pain even in 
     her skull.
       When Liza was in the hospital, one of the doctors raised 
     the concern that narcotic pain medicines are addictive. ``To 
     me--who the hell cares?'' said Lister. ``She is going to die. 
     The pain is such an inhibitor for any remaining pleasure.''


                           continuity of care

       Several studies have shown that the involvement of the same 
     physicians and nurses from beginning to end helps to minimize 
     a child's pain and suffering.
       ``Continuity of care was key. To which I say, `Duh?' '' 
     said neonatologist Suzanne Toce, director of the palliative 
     Footprints program at Cardinal Glennon Children's Hospital. 
     Whether a child is cured or succumbs to a life-threatening 
     condition, ``we need to integrate palliative care into 
     mainstream medicine,'' said Toce.
       Sometimes when parents want to stop aggressive therapies 
     before their physician does, they have to change doctors--
     accelerating their sense of isolation and abandonment at a 
     crisis point in the child's illness.
       That's what happened to Kevin and Brandi Schmidt of St. 
     Augustine, Fla. When their daughter Kourtney was 4 months 
     old, she was diagnosed with a severe form of spinal muscular 
     atrophy, a rare inherited disease. The Schmidts quickly 
     learned that such children die within a year. As the muscles 
     weaken, the child can't eat, swallow, cough, even breathe.
       Kourtney underwent surgery to have a feeding tube inserted. 
     She received extra oxygen to breathe. She was revived several 
     times.
       But the Schmidts did not want to put Kourtney on chronic 
     ventilation. ``We went to see a little boy. He was 2 years 
     old and hooked up to a machine. We couldn't see doing that to 
     Kourtney,'' said Brandi Schmidt. ``We wanted her to have a 
     better quality of life. We didn't want to do any measures 
     that would only extend her life.''
       The low-tech approach did not sit well with their 
     physicians, especially the lung specialist. ``It was like all 
     or nothing,'' said Schmidt. ``He wanted to take the big guns 
     out.''
       When the Schmidts refused to use more technology to take 
     over Kourtney's breathing, the lung specialist withdrew from 
     the case, ``I don't have the knowledge and experience to 
     counsel the family,'' he said, and he recommended hospice 
     care.
       That meant the Schmidts had to find a new physician. The 
     local hospice program was not geared to children. The hospice 
     nurse was afraid to touch Kourtney. After negotiating a 
     special arrangement with their health insurance, the Schmidts 
     were able to keep their home care nurse and still receive 
     hospice benefits.
       Kourtney died in her parents' king-size bed. She was 8 
     months old. ``She wasn't in any pain,'' said Schmidt. ``It 
     was very peaceful.''


                           Focus on Children

       In a national survey by oncologist Hilden, bereaved parents 
     were asked what they most wanted from their doctors in a 
     palliative care program. She summed it up:
       ``Tell us exactly what different options mean. . . . Some 
     parents, for example, didn't know that patients could talk on 
     a ventilator. . . . Tell us you can control pain, even at 
     home. . . . Tell us that not pursuing curative therapy is 
     okay. . . . Tell us the truth about prognosis. . . . Tell us 
     you won't abandon us. . . . Tell us how to prepare for the 
     funeral.''
       The American Academy of pediatrics called last summer for 
     regulatory changes in Medicare, Medicaid and private health 
     plans to improve access to end-of-life services for children. 
     Several comprehensive programs have been developed in such 
     cities as St. Louis, Seattle, Buffalo, Boston and Baltimore. 
     These programs offer supportive care from the time of 
     diagnosis and follow some children for years. A study on end-
     of-life care for children is underway at the Institute of 
     Medicine.
       ``We have to acknowledge that some kids are going to die,'' 
     said Houston pediatrician Marcia Levetown, founder of the 
     palliative Butterfly Program in Texas.
       Research suggests that when children have an opportunity to 
     discuss death, they are less anxious and feel less isolated 
     from their parents and caregivers.
       ``What Liza taught us was not only can you talk about this, 
     you must,'' said psychiatrist Lister. ``Otherwise, the child 
     dies and there's never been a chance for intimacy.''
       For many families, the intimate bonding that can occur 
     during the dying process is what constitutes a ``good'' 
     death.
       Teenager Adam Wills of Texas lived another year and a half 
     after the second kidney transplant failed. ``When I die, you 
     wear hot pink or bright red,'' he told his mother. He got a 
     new bike. He made friends at the dialysis center. Just before 
     he died, he gave an elderly man at the center a harmonica. 
     Then he ordered a lemon tree for his mom.
       ``He was saying his goodbyes,'' said Terri Wills. Adam 
     suffered a massive stroke in October 1999, and was rushed to 
     Children's Hospital in Galveston, where he died in his 
     mother's arms in the Butterfly room. ``It was the most 
     beautiful thing I've ever experienced,'' she said. At Adam's 
     funeral, the elderly man from the dialysis center played the 
     harmonica. Four months later, the lemon tree arrived.

  Mrs. CLINTON. Mr. President, I urge my colleagues to oppose this 
amendment not only for all the reasons others have enumerated but for 
this very specific issue. We are at the beginning of work that needs to 
be done in hospice care and palliative care, and I would hate to see us 
turn back the clock before we really started the race to determine what 
we should do to care for those who are in the last stages of life.
  I urge all of my colleagues to join me in opposing this amendment and 
to support the ongoing efforts to provide more pain relief, more 
palliative care and, yes, more comfort to those who are leaving this 
life.
  I thank the Chair.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. GRAMM. Mr. President, I want to make two points. One has to do 
with a colloquy that was underway when I had to leave to introduce 
someone in committee about moving to the Defense supplemental 
appropriations and an effort to tie limitation of amendments on this 
bill to that effort. I also want to address the underlying amendment.
  It never ceases to amaze me that when we debate these issues, we talk 
all around the issue, but we never get to the heart of the issue and 
why it is important. We have 1,001 examples of terrible things that 
happen to good people, but we never talk about what is the issue.
  Let me make it clear that I am going to vote for the pending 
amendment. I think there is a better way of fixing this problem than 
the way they fix it. I am working on what might hopefully be a 
compromise to fix the problem, but I want to be absolutely certain that 
it is clear to anyone who has any intent to be objective that there is 
a big time problem with the bill on this issue. Let me clearly define 
the problem.
  The question is: For example, I have entered into a contract on 
behalf of my family with standard option Blue Cross/Blue Shield. I 
could have bought the high option, but I looked at cost and benefits. I 
made what I thought was a rational judgment, and I decided not to pay 
more to get the extra coverage. I made a decision, and it involved cost 
and benefits.
  Every day in America, people enter into contracts to buy health care. 
Obviously, a big question in the bill before us is: Are those contracts 
binding? Are they binding on the purchaser of the health care? Are they 
binding on the seller?
  As is usual with this bill, on page 35, gosh, it sure looks like they 
are binding. On page 35, line 14, it says in a bold headline: ``No 
Coverage For Excluded Benefits.''
  Then you read on. It says:

       Nothing in this subsection shall be construed to permit an 
     independent medical reviewer to require that a group health 
     plan, or a health insurance issuer offering health insurance 
     coverage, provide coverage for items or services for which 
     benefits are specifically excluded. . . .

  Gosh, it seems in this bill they are saying contracts are binding, 
but when you read on, as is true over and over in this bill, you find 
that exactly the opposite is true. When you read on, it says:

     . . . except to the extent that the application or 
     interpretation of the exclusion or limitation involves a 
     determination described in paragraph (2).


[[Page 12032]]


  Then you go back two pages to find paragraph (2) and you find that 
paragraph (2) has to do with anything that is medically reviewable and 
anything that has to do with necessity or appropriateness.
  Let me explain what this language says. This is a classic bait and 
switch. The language says that if something is precluded in a contract, 
it is not covered, except if it is medically reviewable--and all 
medical decisions are medically reviewable--and unless it has to do 
with ``necessity and appropriateness.''
  What this provision actually says is the contract is not binding. The 
medical reviewer can determine that someone needs care, and even if it 
is precluded by the contract, the plan is required to provide it.
  Gosh, that may sound wonderful to some people. Let's take the 
standard option Blue Cross/Blue Shield policy. I have a limit of 60 
days in the hospital. Let's say I have the misfortune or someone in my 
family does that they are in for 90 days. The plan says you are not 
covered. I go before a reviewer and say: Look, I want the medical 
reviewers to determine as to whether I need this care or not. They 
determine I need it, they override the contract, and so I paid for the 
standard option Blue Shield policy, but I got the high option. Is that 
great and wonderful?
  What do you think is going to happen when it is time for me to renew 
that insurance policy? What is going to happen is then I am going to 
have to pay for the high option. That is not going to be such a big 
deal for me because I can afford to pay the high option, but what about 
millions of Americans who cannot pay the high option?
  If we let these external review committees decide what people need, 
independent of the contract they entered into to provide care--I got a 
lower price by saying I did not want heart and lung transplant services 
in my policy, and yet I come down with an acute heart problem and my 
physician stands up in front of this board and says, I am going to die 
if I do not get this surgery. Then the review committee says it is 
medically necessary and under this bill it is covered, even though my 
plan I paid for did not include it. The net result of this is to cause 
health insurance costs to skyrocket.
  Also, if I am a health care provider as an employer and I have joined 
my employees in buying health insurance, now the contract is not 
binding, so the health insurance company obviously is going to want to 
change the amount they charge us because they are not going to have the 
protections of their contract.
  I do not think the way we are doing this is the right way to do it. I 
think there is a cleaner way to do it. I hope to do it better later if 
this succeeds or fails, but this brings us to a fundamental question of 
this bill, and that is, Are contracts binding?
  What we are saying in this bill is, no, not if they relate to health 
care. I think that is very dangerous. This is another reason, if we 
don't fix it, the explosive cost of this provision unfixed is greater 
than the liability cost about which we spent most of our time talking.
  I hope my colleagues vote for this amendment.
  Now the final point. Senator Byrd and Senator Stevens were talking 
about the necessity of passing a supplemental for national defense. I 
am for this defense supplemental. I want it to come forward. I don't 
see why we can't do it tonight and get it over with, provide the money 
for national security. I know there will be one controversial 
amendment. I intend to vote against it; maybe some will vote for it. 
However, there is no reason that tonight we cannot settle this issue 
and vote first thing in the morning.
  Several of the people who spoke on the issue suggested we will not be 
allowed to go to that defense supplemental bill unless we have set out 
a limit on amendments to this patients' bill of rights. I urge the 
majority leadership to not commingle this bill with the defense 
supplemental. It may well be that in the end we will reach compromises 
on the 6 to 10 major issues on which we will have to reach some 
accommodation to see the bill go forward. I am encouraged by the 
willingness of Senator McCain to sit down and talk. I hope it is the 
beginning of a recognition that this bill is not perfect and it can be 
improved.
  This morning when we voted down an amendment that exempted small 
employers with 50 or fewer employees from this massive liability burden 
that they can be sued for simply helping their employees buy health 
insurance, I took that as a very bad sign for this bill. I have to 
congratulate the majority. Oh, that I could be in an army that had that 
kind of discipline. I can't imagine there is a city in America where 
Members could defend the provisions of this bill, which basically say 
that if you are covered by ERISA, you are subject to being sued as an 
employer for helping people buy health insurance.
  There was an amendment that said just exempt the little employers 
because they will almost certainly have to cancel their health 
insurance if they are subject to lawsuit. I don't believe there is a 
city in America that any Member of the Senate could go into and 
successfully defend a vote against that provision. Yet that provision 
was defeated. I am afraid we are moving in the wrong direction in terms 
of building a consensus.
  I want to see this bill completed. I don't think anybody benefits 
from holding this bill up. There are going to have to be certain 
accommodations. If we don't deal with some of these issues, the 
President will end up vetoing the bill, and what have we achieved? 
unless your objective is simply a political issue so one can say, well, 
we were for this bill, the President was against it, Republicans were 
against it.
  If we really want to pass this bill, we are going to have to deal 
with the sanctity of contracts, we are going to have to come to grips 
with suing employers and the liability question, we are going to have 
to come to grips with scope.
  If States have good functioning plans, should they be able to stay 
under their own plan or should they be forced under the Federal plan? 
There are a handful of issues that could be counted on your 10 fingers 
on which we will have to come to some accommodation.
  My concern is, the clock is running. Today is Wednesday. Unless we 
begin to reach an accommodation on these issues, we are headed for a 
train wreck at the end of the week, and it is because of that I urge 
those in positions of leadership to please not try to tie stampeding 
Members on this bill, by limiting their rights to offer amendments, to 
passing a defense supplemental appropriation that I assume we are all 
for.
  Why not pass this bill? I would be willing to pass it on a voice vote 
so it could be done tonight, get it over with, and then focus our 
attention on this bill. I hope we don't have an effort to tie limiting 
our rights on this bill to even bringing up the defense supplemental. 
If that happens, the net result will be the defense supplemental will 
not be brought up. No one will benefit from that. It is not good public 
policy. I urge the two not be tied together.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. I will respond to the plea from my friend from Texas, his 
plea that we finish this bill. No one wants to finish this bill more 
than the authors of the bill, Senators McCain, Kennedy, and Edwards. 
They have been working to compromise; they have been working with 
Republicans. That is the reason we are winning these votes on 
amendments, because we are getting Republican and Democratic votes and 
carrying the majority. We also want to finish this bill and do things 
the right way.
  Why do folks stand up and talk about issues that are already taken 
care of in this bill? I know there is a disagreement on the fine print. 
That is what the frustration level is. I hope my friend will work with 
Senator Snowe as she seeks to craft a bipartisan amendment dealing with 
the employer liability.
  Right now, as I read the bill, employers do not have liability; they 
cannot be sued unless they personally make

[[Page 12033]]

the decision to withhold care from the patient. Most employers do not 
do that. They contract with providers, and those providers will be held 
responsible.
  I find it very interesting that my friends on the other side of the 
aisle--most of them, certainly not all of them; and we are happy to 
have Senator McCain and other Senators joining with us on many of these 
amendments--I find it intriguing that they keep talking about these 
poor HMOs and insurance companies. We know, and we have said it a 
number of times, all we want is to see HMOs treated the same way in our 
society as we treat every other business, every other individual. If 
any of us goes outside this Chamber and we knock into someone and we 
hurt them, we are responsible. We are held accountable if it was our 
fault.
  The reason we have the safest products in the world is that we have 
the toughest liability laws and they act as prevention. People make 
safe products, one, because most of them in their hearts want a good, 
safe product. But we have harsh laws if you intentionally hurt someone. 
If the brakes on the car don't work, if the crib bars are too wide, 
wide enough so a child can be strangled, we have laws on the books. All 
we are saying to HMOs is, if you in fact hurt people, you should be 
held accountable as well.
  Members can stand up and pick apart one sentence in the bill, but the 
fact is this debate goes much deeper. It is not about paragraph 1 on 
page 2; it is about the essence of what we are trying to do. Do 
patients deserve care that is prescribed by their physician or should 
they be at the mercy of some accountant wearing a green eyeshade 
saying, no, that is money we cannot spend because our CEO will not make 
his $200 million this year.
  Patients deserve to have their care prescribed by physicians. 
Certainly, physicians are making that statement to us, and almost every 
group in the country, and certainly every respected group, makes those 
decisions to support the McCain-Kennedy-Edwards bill. Patients deserve 
to be able to know their doctor is taking care of them. You would not 
go to a doctor to get a tax form filled out; you would not go to an 
accountant to get your health care. We should keep medicine with the 
people who went to school, with those who know what good care is, and 
we should keep the bean counting and the bookkeeping with the people 
with the green eyeshades; they don't have white coats. I would rather 
go to someone in a white coat if I am in trouble and need a course of 
treatment.
  Do patients deserve the medications the doctor prescribe? The HMO 
says: We have another one we can substitute. If the doctor believes you 
need a certain medication, you should have it.
  Do patients deserve to get into a clinical trial if, in fact, they 
have no other recourse? Absolutely they do. That is why the McCain-
Edwards-Kennedy bill is so important.
  Let's face it; HMO executives are making millions of dollars while 
denying needed care to our people. This is about who you stand up for, 
who you fight for. I have many stories.
  I ask the Chair what is the order now? It is 1 o'clock.
  The PRESIDING OFFICER (Mr. Wyden). The Chair advises that the Senator 
from Tennessee is expected to be recognized to offer an amendment.
  Mrs. BOXER. I will yield then in 1 minute, if I might, and leave the 
floor at that time. But I want to sum up.
  On Monday morning early I held a hearing in San Francisco. I had 
patients and families of patients testify. I had doctors testify. I 
heard stories that absolutely brought tears to my eyes--not just to my 
eyes but to those of everyone in that room.
  No. 1, a husband whose wife was diagnosed with breast cancer had to 
literally put his work aside. He is in his 50s. He had to fight for her 
to get the treatment she deserves and needs because the HMO was trying 
so hard to save money. He had to threaten to go to the Los Angeles 
Times and tell his story--threaten--in order to get the care she needs.
  I had the mother of a little girl who was diagnosed with cancer in 
her eyes. She had to struggle and fight. She said: I gave up everything 
else I was doing. I could not be with my daughter.
  This is wrong. Senators can offer amendments until the cows come home 
and I know one thing: It is delaying passage of this bill. It is 
delaying the chance to vote on a strong Patients' Bill of Rights.
  Bring your amendments on. We are voting them down, most of them. If 
some of them are good, we will support them. But we want a strong 
Patients' Bill of Rights that says to our people: You are paying for 
this care. You deserve this care. If you are turned down for care, you 
deserve the right to a speedy appeal, and then for sure we want to hold 
the HMOs accountable if they hurt you or your family. We say: Treat 
them as we would anyone else in society.
  I am grateful for the honor to speak on behalf of the underlying 
bill. I yield the floor.
  The PRESIDING OFFICER. The Senator from Tennessee is recognized.


                           amendment no. 819

  Mr. THOMPSON. Mr. President, I do intend to offer an amendment 
shortly. I believe it is being finalized as we speak. We will have that 
before the Senate in a moment.
  Listening to the debate, listening to the discussion this morning, I 
am once again reminded of what passes for policy discourse nowadays. I 
was reminded of the article that was written by David Broder in the 
Washington Post yesterday. Mr. Broder is obviously one of the most 
respected members of the press corps. Some refer to him as the dean. He 
is certainly not right of center. I don't know what you would call him 
except a very thoughtful, highly respected individual.
  As I listened to this debate this morning, I thought a few of his 
words would be appropriate. He says this:

       The Senate debate over the Patients' Bill of Rights has 
     become, in large part, a battle of anecdotes. . . . Backers 
     of the Kennedy-McCain-Edwards bill, the sweeping legislation 
     President Bush has threatened to veto, come armed each day 
     with stories about the youngsters whose brain tumor was 
     missed because an HMO denied his parents' request for a 
     specialist referral or the mother whose breast cancer was 
     ignored until it was too late.

  Mr. Broder goes on later in the article and says:

       Would that the issue were that simple and straightforward. 
     But it is not. Anecdotal evidence, no matter how powerful, 
     gives no guidance to the scope of the problem being 
     addressed.

  Later on in the article he says:

       Still less do the anecdotes define the proper remedy. 
     Instead, by narrowing the question to dramatic horror 
     stories, they pull the debate away from the genuine policy 
     tradeoffs that must be made.

  I could not agree with him more. The incessant recounting of horror 
stories and the using of these poor and helpless people as instruments 
in this debate, indeed, pull us away from the genuine policy decisions 
that have to be made.
  I would like to discuss one of those briefly this morning. That is 
the subject of the amendment I intend to introduce. It has to do with 
the exhaustion of administrative remedies.
  That sounds to be an arcane legal issue that should not be of much 
interest to very many people. I think the contrary is the case. 
Basically what the exhaustion principle is saying is that under the 
law, generally speaking, if you have a remedy before you get to court, 
go ahead and use it before you go to court. The importance of that 
principle of exhausting your administrative remedies--going through the 
administrative process before you leap to court--is firmly embedded in 
our system. We see it working all the time with regard to run-of-the-
mill kinds of lawsuits.
  We have lawsuits in State court where you have to go through a 
commission or some body or some bureau has a chance to make a 
determination--usually because that entity has some expertise in the 
area. We give the entity, under looser rules of evidence and a lot less 
expense for litigants, an opportunity to take the first pass at this 
problem. In the process of doing that, a lot of things shake out, a lot 
of frivolous claims are made obvious and

[[Page 12034]]

are dropped at that level. A lot of times the merits of a particular 
claim are seen and the State or whoever it is--oftentimes it is in the 
State system--sees that and they settle.
  It is designed to have someone with some expertise, some objectivity, 
hash out the facts in a way that would be much faster than a court 
system, much less expensive than a court system, and would be to the 
benefit of everyone involved. It still doesn't mean you can't go to 
court later, but a lot of things get winnowed out in the process.
  We know how clogged up our court systems are in many cases. In our 
Federal system, under the speedy trial act, the courts have to consider 
all the criminal cases first. With all the drug cases we have in 
Federal court and everything else, sometimes in some jurisdictions it 
takes a long time to get your case heard in the Federal court system. 
So this administrative process before you ever go to court, in 
winnowing those cases down to the ones that really belong in court and 
providing expedited expertise to the litigants, is very important.
  In our system, also, when we go through that process and we get that 
determination made by those who have the first look, so to speak, with 
the expertise, then you give some credence to what they found. Then you 
can go to court, but you do not turn your back on the fact that this 
process has been followed and they came up with a certain result. The 
court can live with that result, usually, or it doesn't have to if it 
doesn't want to. But it is out there and it has served its purpose.
  That is the general, overall system we have through our system. Not 
everything goes through this administrative process before it goes to 
court, but a lot of things do. This Health Care Bill of Rights we are 
considering today does that.
  It sets up independent decisionmakers to consider these claims in a 
rather elaborate and detailed way before they ever get to court. The 
process that is set out in this bill is a good one. It sets forth a 
several-step process where experts who are independent and objective 
have a chance to take a look at a claim. We all know, with as many 
horror stories as are paraded around here by those who support this 
bill, that we cannot cover everything, all the time, for everybody, at 
any cost whether or not it is in the plan or it is something you have 
contracted for or something your employer covers or not.
  If we did that, the cost would be so high that nobody could afford 
insurance, and nobody would be covered for anything. So it is a 
tradeoff. It is the kind of tradeoff that David Broder is talking 
about. Yes, we want these pitiful people to have coverage, but we also 
want to have it so that people are not totally driven out of the market 
because the cost doesn't match the benefit for the amount of money they 
expend.
  That is the process and the balance that we are trying to achieve.
  We got into the health care business because the medical costs were 
going up at almost 20 percent. We created their managed care system. We 
like to deride it now, but we created it because health care costs were 
going up at almost 20 percent and we tried to respond to that.
  Assuming that, if it is not in the plan, if it is not in the deal, 
and if it is not in the contract, there will be some cases that are 
legitimately, after being looked at by all experts, not appropriate, 
this bill assumes there will properly be some cases that are not. If 
you are going to have some that aren't and some that are, what do you 
do? You set up a process to find out what is just. You set up a process 
to find out what is right.
  How do you do that? This bill does a lot of things. It has an 
internal review process. It is an internal process, first of all, to 
even grant or deny a claim.
  Let's say under the plan that someone comes in and their claim is 
denied. Maybe they haven't worked there long enough. Maybe they don't 
even work there at all. Maybe a determination is made that this is not 
a medical procedure that is covered or it is experimental. For whatever 
reasons, there are many cases that are denied.
  Under this bill, there is a process to review that denial, even at 
the internal stage when the employer still has some say-so with regard 
to some of these plans. Especially even at that stage, this bill begins 
to set up expertise and objectivity.
  At the internal review level, it says the person making that review 
cannot be associated with the prior decision. He has to be someone who 
is independent of that prior decision. It also says it has to be 
someone with expertise. It also says if it is a medical issue, it has 
to be a physician.
  Even before we get to the external review, while it is still an 
internal review, this bill sets up expertise and independence in the 
process to make sure this claim is adjudicated or decided in an 
appropriate manner. All right. You go through that.
  Let's say the claim in this external review process is still denied. 
This person denies the claim. Then, under this bill, there is an 
external review process. At this stage of the game, the person is 
totally independent of the plan. The legislation demands that he be 
totally independent, that he have expertise, and that he have nothing 
to do with the plan or the employers or anybody else. The bill spent 
several pages of setting up a procedure whereby he is objective and 
independent.
  The Secretary here in Washington has authority to review what he is 
doing and to look at the cases he has considered to make sure he is not 
prejudiced in any way, where it looks as though maybe he is denying too 
many claims or something such as that. There are elaborate processes to 
make sure this external appeals process is fair, independent, and 
objective. All right.
  Let's say we go through that level. Let's say that entity decides 
that there is a medical issue. Then they hand it over to yet another 
level of independent review. That is the independent medical review.
  Once again, the bill sets up someone who is totally independent, 
totally objective, sets forth supervision by the Secretary, and sets 
forth how he is to be compensated to make sure he is well qualified.
  That is the third level, you might say, in terms of some degree of 
independence and objectivity--totally at the last two levels and 
somewhat at the first level.
  You have the internal review; you have the external review; and you 
have the independent medical review--all set up to make sure that 
someone who comes with a medical claim gets fair consideration, and you 
don't have these big, bad, mean HMOs that we hear so much about making 
these decisions. They are not. These people are under this act.
  What we do, and what we say in this amendment that I am going to 
submit is, let's use it. What I have just described, let's use it.
  After setting up this process that ought to be used because it is a 
good process, this bill also says it can be circumvented at any time. 
It can be. A claimant can stop it if he doesn't like the way things are 
looking and go to court by alleging that they have received irreparable 
injury or damage--not that they are about to but that they have 
received it.
  There are two things wrong with that: No. 1, you obviously lose the 
benefit of the administrative process. For example, part of the problem 
could be or may be the sole problem could be a question of coverage. 
You have this process set up. You are maybe in the middle of it. Why 
not just decide whether or not you are really covered under this bill? 
It is a factually intensive exercise under this plan: how long you have 
been working here, and that sort of thing.
  The second thing that is wrong with the bill as it is now, and 
allowing them to circumvent this process that I have discussed by 
alleging irreparable injury--they do not use the word ``allege,'' but 
it is the same thing. The only way you can get into court is by 
``alleging.'' That is the way you get into court. It is a low 
threshold.
  You can circumvent this plan at any time, or this process at any time 
along the way.

[[Page 12035]]

  The second thing wrong with it is it doesn't have a claimant in it 
because we are talking about money damages. To circumvent this process 
in order to allow a claimant to go over here in the middle of it and 
file a lawsuit for money damages, all he is doing is getting in line 
over at the courthouse. He doesn't get any expedited treatment for 
that. It doesn't help him. Why would you do that when you are in the 
midst of this, admittedly, excellent, objective, costly administrative 
process?
  I don't think that it makes any sense. Costs are relevant because it 
is going to show up in somebody's price for insurance.
  This plan costs money. This process is expensive to set up. If you 
are going to have it, you ought to use it. Of course, if the result 
goes in the claimant's favor, it is binding on the plan. But if the 
results of the independent process go against the claimant, then of 
course he can go to court.
  But my problem this morning or today is not that he can go to court. 
It is that he can go to court before he exhausts administrative 
remedies.
  My friends who oppose this--I am going to anticipate this a bit 
because we have had some prior discussions about this. Some of my 
friends have pointed out that there obviously can be a need from time 
to time for emergency care. What if you are in the midst of this 
process and you have some kind of an emergency situation that ought to 
justify your circumvention of it?
  My first answer is, the bill, as drafted now, is not going to help 
any claimant with regard to an emergency because, as I say, we are 
talking about money damages. All he can do is file a lawsuit. If that 
makes him feel better, 2 years later he may get into court to try his 
case. That might help him. But other than that, that is not going to 
help the person with some kind of an emergency.
  What will help that person, though, is in this bill. It is already 
provided for. In the first place, you have a provision that is in 
ERISA, that we adopt in this amendment, that says you have all of the 
coverage that is given under ERISA, which allows you to go into court 
at any time to recover benefits that are due you, to get a mandatory 
injunction or to whatever you might be entitled under ERISA, under 
current law. That remains. That will be the same. We have adopted that 
and made that clear in this bill.
  The second thing is, under section 113 of the bill, the claimant has 
access to emergency care. There is a provision in the bill that if you 
have an emergency--of course, the general law requires hospitals to 
take care of you anyway, but if it is an emergency-type situation, 
under this bill already, under section 113, an emergency is taken into 
account.
  What if you have a situation that is not an emergency, not an 
immediate thing, but you do not want to go through the administrative 
process for just and reasonable reasons? What kind of situation could 
that be?
  That could be a situation in the middle that is not an emergency but 
maybe you are entitled to an expedited review or determination. There 
is a provision in the bill that covers that situation also, under 
section 103 on internal appeals.
  At the internal appeals level, if the initial claim is turned down 
and if a person believes they are entitled to an expedited 
determination, even at that level, they can go forth and pursue that. 
Then, at the next level, at the external appeals level, if they believe 
they are entitled to an expedited determination, if a physician 
certifies that they are entitled to expedited consideration--at either 
of those levels--they can get that. So the claimant is covered.
  The claimant is covered under those situations, which allows us to go 
back to the basic legal proposition that I mentioned in the very 
beginning in relation to the exhaustion of the administrative remedies, 
which work so well in so many aspects of our judicial system, which is 
set up under this bill but then has massive carve-outs. That process 
should be allowed to work.
  There is one other point in this amendment, and then I will offer it; 
and that is, after you go through this process, after you exhaust your 
administrative remedies, after you go through the internal appeal, the 
external appeal, the independent medical review, and after you get a 
result--whatever that result is--the trier of fact, when you go to 
court, ought to know about that result. It is not determinative on the 
trier of fact--whether it be the judge or the jury in the court--but it 
is relevant.
  If you are not going to do that, you are really wasting a whole lot 
of time, money, and expertise and creating additional problems for 
yourself in terms of cost in reaching a just result. So that is what it 
does.
  I think we all agree we want doctors making medical decisions. When 
these claims are made, in this review process, if it is a medical 
claim, doctors are going to be making that medical decision. But if you 
do not like it, then you can go to court. But let that doctor, let that 
independent, qualified physician make the first determination before 
you go to court.
  Are we so desirous of speeding everything to court, with the 
attendant costs that we know are going to come about? And these are not 
costs to some HMO, these are costs to the American people. We have 44 
million people who already are uninsured in this country. Even if we 
add just 1 million to the uninsured in this country because of what we 
do here, that ought to bother us. We should not be in the business of 
doing that.
  So let's let doctors make that initial determination instead of 
lawyers. This is one of those issues that is doctors versus lawyers.
  If you want to go to court, if you want to rush to court at any time 
in the process, regardless of what has happened--regardless of whether 
or not anybody independent has had a chance to look at this--you are 
going to decide, with a lawyers' bill, to do that. The way it is 
constructed right now, you can sue anytime, for anything, in any 
amount. We can discuss those issues later.
  But with regard to this issue, exhausting administrative remedies, 
let's let the doctor, let's let the medical people have the first crack 
at it. Who knows. When we get that result in, it might resolve a lot of 
these potential lawsuits.
  Mr. President, I send an amendment to the desk and ask for its 
immediate consideration.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The legislative clerk read as follows:

       The Senator from Tennessee [Mr. Thompson] proposes an 
     amendment numbered 819.

  Mr. THOMPSON. 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 require exhaustion of remedies)

       On page 150, strike line 17 and all that follows through 
     page 153, line 8, and insert the following:
       ``(9) Requirement of exhaustion.--
       ``(A) In general.--A cause of action may not be brought 
     under paragraph (1) in connection with any denial of a claim 
     for benefits of any individual until all administrative 
     processes under sections 102 and 103 of the Bipartisan 
     Patient Protection Act of 2001 (if applicable) have been 
     exhausted.
       ``(B) Exception for needed care.--A participant or 
     beneficiary may seek relief exclusively in Federal court 
     under subsection 502(a)(1)(B) prior to the exhaustion of 
     administrative remedies under sections 102, 103, or 104 of 
     the Bipartisan Patient Protection Act (as required under 
     subparagraph (A)) if it is demonstrated to the court that the 
     exhaustion of such remedies would cause irreparable harm to 
     the health of the participant or beneficiary. Notwithstanding 
     the awarding of relief under subsection 502(a)(1)(B) pursuant 
     to this subparagraph, no relief shall be available as a 
     result of, or arising under, paragraph (1)(A) or paragraph 
     (10)(B), with respect to a participant or beneficiary, unless 
     the requirements of subparagraph (A) are met.
       ``(C) Receipt of benefits during appeals process.--Receipt 
     by the participant or beneficiary of the benefits involved in 
     the claim for benefits during the pendency of any 
     administrative processes referred to in subparagraph (A) or 
     of any action commenced under this subsection--
       ``(i) shall not preclude continuation of all such 
     administrative processes to their conclusion if so moved by 
     any party, and

[[Page 12036]]

       ``(ii) shall not preclude any liability under subsection 
     (a)(1)(C) and this subsection in connection with such claim.

     The court in any action commenced under this subsection shall 
     take into account any receipt of benefits during such 
     administrative processes or such action in determining the 
     amount of the damages awarded.
       ``(D) Admissible.--Any determination made by a reviewer in 
     an administrative proceeding under section 103 of the 
     Bipartisan Patient Protection Act of 2001 shall be admissible 
     in any Federal court proceeding and shall be presented to the 
     trier of fact.
       On page 165, strike line 15 and all that follows through 
     page 168, line 3, and insert the following:
       ``(4) Requirement of exhaustion.--
       ``(A) In general.--A cause of action may not be brought 
     under paragraph (1) in connection with any denial of a claim 
     for benefits of any individual until all administrative 
     processes under sections 102, 103, and 104 of the Bipartisan 
     Patient Protection Act of 2001 (if applicable) have been 
     exhausted.
       ``(B) Exception for needed care.--A participant or 
     beneficiary may seek relief exclusively in Federal court 
     under subsection 502(a)(1)(B) prior to the exhaustion of 
     administrative remedies under sections 102, 103, or 104 of 
     the Bipartisan Patient Protection Act (as required under 
     subparagraph (A)) if it is demonstrated to the court that the 
     exhaustion of such remedies would cause irreparable harm to 
     the health of the participant or beneficiary. Notwithstanding 
     the awarding of relief under subsection 502(a)(1)(B) pursuant 
     to this subparagraph, no relief shall be available as a 
     result of, or arising under, paragraph (1)(A) unless the 
     requirements of subparagraph (A) are met.
       ``(C) Receipt of benefits during appeals process.--Receipt 
     by the participant or beneficiary of the benefits involved in 
     the claim for benefits during the pendency of any 
     administrative processes referred to in subparagraph (A) or 
     of any action commenced under this subsection--
       ``(i) shall not preclude continuation of all such 
     administrative processes to their conclusion if so moved by 
     any party, and
       ``(ii) shall not preclude any liability under subsection 
     (a)(1)(C) and this subsection in connection with such claim.
       ``(D) Admissible.--Any determination made by a reviewer in 
     an administrative proceeding under section 104 of the 
     Bipartisan Patient Protection Act of 2001 shall be admissible 
     in any Federal or State court proceeding and shall be 
     presented to the trier of fact.

  Mr. THOMPSON. Mr. President, the amendment has been offered. I have 
made my statement. I hope we have adequate time to deliberate with 
regard to this important amendment.
  I yield back my time and yield the floor.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. TORRICELLI. Mr. President, during my nearly 5 years in the Senate 
I have heard the debate of managed care reform many times. I have 
participated in repeating statistics, engaged in legal analyses, 
participated in political analyses, all of which convinced me a long 
time ago of the need for this Patients' Bill of Rights.
  But there is no substituting that which many of my colleagues have 
brought to this Chamber; that is, the life experience of American 
families with the system as it is currently designed and how it has 
dealt with the tragedies of their own lives.
  Many of my colleagues have brought the experiences of frustrated 
families: People who get up every morning, go to work, pay for medical 
insurance, and participate in a managed care plan, only to find that in 
a moment of crisis in their own families, that which they purchased, 
that which they have relied upon, was not available to them.
  As do my colleagues, I want to now share with you just two stories 
that give meaning to all the statistics and illustrate all the failures 
of the system.
  I begin with Kristin Bollinger, a young girl from Spottswood, NJ. 
Kristin's experiences illustrate some of the troubling practices of 
HMOs and how ineffective and unresponsive they can be in dealing with 
the needs of a child who requires long-term care when chronically ill.
  Kristin suffers from a unique condition of seizures and scoliosis, 
both of which can be managed with proper treatment and care. Her family 
was forced in an HMO by their family's employer in 1993. Kristin's 
parents have been fighting to ensure their daughter receives 
specialized services ever since.
  The HMO told Kristin's family she could no longer see a pediatrician 
and the specialists who had treated her all of her life. From birth, 
she had this condition. She saw a certain specialist, received 
specialized care. When Kristin needed to see a neurologist and other 
specialists, her parents had to pay for the specialists because they 
were not in her managed care plan. After a major surgery in 1997, 
Kristin's specialized nursing care was canceled without notice. She 
wasn't even told. The HMO even discontinued coverage for physical 
therapy because it was deemed medically unnecessary.
  Eventually, after fighting months and even years, the care was 
restored. But here is a family dealing with repeated seizures, a child 
who was not able to function, massive medical bills, although they were 
in a managed care plan, an inability to get the specialists who were 
deemed medically necessary, and they had to fight their way back to 
coverage while caring for a child--case in point.
  What would have worked? First, a right to get to a specialist; 
second, after you have been receiving care from a specialist and your 
plan changes, the right to keep the specialist; third, when you are 
denied the right to an appeal, for someone without an interest to hear 
your need where you can explain the need. In three important ways, this 
Patients' Bill of Rights would have addressed Kristin's problem and 
dealt with the problem of her family. None of those three rights exists 
in law, and so she was failed three times.
  Second, Morgan Earle, a 10-year-old from Chatham, NJ, born with 
cortical dysplagia, a devastating developmental brain injury that 
causes severe seizures. Morgan's parents, like any parents, were 
unprepared for dealing with the care of an infant experiencing these 
seizures--sometimes every 6 minutes--making it impossible for her to 
even eat or sleep.
  When Morgan was 3 months old, her parents sought treatment from a 
team of pediatric neurologists and neurosurgeons to develop a strategy 
for dealing with Morgan's lifelong medical needs. By the time she was 
8, Morgan had endured extensive tests, clinical trials, and two major 
brain surgeries.
  Through the unbelievable genius of medical science, her team of 
specialists reduced her seizures that were interrupting her life. But 
in 1999, one of the specialists who headed Morgan's medical team, 
through changes in his own career, abruptly transferred to another 
hospital in Chicago. Morgan's parents were shocked to learn that the 
specialists selected by her new medical team were not part of the HMO. 
Throughout her life, she had relied upon these same doctors. Medical 
science had found a way to control these continuing seizures that were 
interrupting her own life and the life of her family. She had found an 
answer. But the new team was not part of her managed care.
  Imagine the frustration, that the genius of medical science found a 
way to deal with the suffering of your child in continuous seizures 
only to find that now you could not avail yourself of it.
  Morgan's parents appealed the decision to the HMO. They were denied. 
Doctors wrote that they and only their specialists could provide an 
answer. They were denied. In fact, the doctors report their letters 
weren't even answered.
  The HMO provided Morgan's parents instead with a list of in-network 
specialists. They were not even board certified. They could not 
perform. They were not capable. They could not even understand the kind 
of medical care Morgan was receiving.
  Last Friday, after 2 years of fighting an appeal, Morgan's parents 
received a two-sentence e-mail from her HMO that her original 
specialists, the doctors they had requested, would now be covered--2 
years, no money, no care, no answers. It isn't right. It is not a 
system that anyone in this Chamber can defend, to Kristin, to Morgan, 
to her parents, or to millions of other Americans who are paying for 
this managed care or whose employers are paying for it, believing they 
are covered, and tomorrow morning they are but a single tragedy in life 
away from Morgan's or Kristin's experience. It could be anyone in this 
Chamber. It could be anyone we

[[Page 12037]]

represent. That is what this legislation is about.
  It is not a gift. It is not some benefit provided by the larger 
society, as if that in itself would not be right or fair. It is 
something that has been earned and paid for, but it is not being 
provided. That is why we call it a Patients' Bill of Rights. It is not 
a gift. It is a right. It is a contract. And it is our responsibility 
to provide it.
  That is what this legislation is about:
  One, ensure that patients with disability conditions have standing 
referrals to specialists so they don't have to get permission; the 2-
year wait of suffering and bills and lost care never happens.
  Two, allow patients in these circumstances to designate a specialist 
as their primary care doctor. It is right, and it is efficient.
  Three, require HMOs to allow access to out-of-network specialists, if 
in-network specialists are inadequate, at no cost. It just makes sense.
  Four, ensure that chronically ill patients can keep their doctors 
even if they are forced to change plans or their doctors leave the HMO. 
That is not only right and fair; it is just not being cruel to patients 
and children in these circumstances.
  The truth is, the alternative Republican plan does not allow these 
decisions to be made by patients and doctors. It means that an HMO that 
does not have a pediatric neurologist can force a child to see someone 
who is not trained or capable.
  What are the costs of all this? If you take this one element of the 
Patients' Bill of Rights I have addressed, just this one narrow, 
critical element for the chronically ill who need these specialists and 
a continuum of care, if you just take this small element I have 
addressed, CBO estimates that it would add .2 percent to the cost of 
insurance.
  Is there a family in America, given these circumstances, who would 
not bear that burden? Is there an employer in the country that would 
not want their employees to have this peace of mind in coverage, just 
knowing that what they are already purchasing might now be relevant and 
available in a moment of need?
  Mr. President, I have participated in this debate over these years. I 
have offered the statistics. I have offered the case. I have argued the 
politics. I have discussed the merits. I have reviewed the bill. Now I 
submit Kristin and Morgan's cases as the most compelling cases of all 
of why there is only one piece of legislation available on this floor 
that truly addresses these circumstances. It is offered by Senators 
Kennedy, McCain, and Edwards.
  The case is overwhelming, and I urge my colleagues across the aisle 
to join us. They will be proud and pleased that they did it.
  I yield the floor.
  Mr. REID. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant bill clerk proceeded to call the roll.
  Mr. KENNEDY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KENNEDY. Mr. President, for the benefit of our colleagues, we are 
now still committed to voting at 2 o'clock on the Nelson amendment 
which we debated earlier today. We will then return to a conclusion of 
the Thompson amendment. We just saw that amendment a short while ago, 
and we are trying to study that more closely.
  After the completion of the vote on the Nelson amendment, we will be 
able to indicate to Members when we will either vote on or dispose of 
the Thompson amendment.
  There has been a proposal made to our colleagues on this side for 
votes going through the afternoon and times allocated to the different 
amendments and then into the evening, also being sensitive to the needs 
of our colleagues on the other side of the aisle for a window, and then 
returning to the Senate for consideration of legislation.
  Hopefully, at the end of the vote at 2:30 p.m., we will be able to 
give the Members a clearer idea both of the substance and the time for 
moving the process along. We have had good debates on these issues to 
date. We still have work to complete on the issue on medical necessity. 
Also, our colleagues, Senators Snowe and DeWine, held a press 
conference at 11:30 this morning on their proposals, which hopefully we 
will consider later this afternoon, to tighten up language in the area 
of employer liability. We are familiar with the thrust of the proposal. 
It seems to be extremely valuable and helpful in resolving some of 
these issues.
  We will move on hopefully to the issues of scope later in the 
afternoon and into the early evening.
  This is how we hope to proceed. We are never sure until the actual 
proposal is made, but we want to give assurance to Members we are 
making progress, and we will continue to move as rapidly as we can on 
the measure.
  Again, the liability issue will be the last outstanding issue. There 
is still no consensus on that particular proposal. We will consider the 
alternatives in a timely way and hopefully be able to conclude the 
legislation in a timely way as the majority leader has stated.
  I thank all of our colleagues for their cooperation. These have been 
good substantive debates. We have had very few interludes. A number of 
our colleagues welcome the opportunity to express their views on the 
legislation, and we will try to accommodate as best we can when we see 
the opportunity to have a focused debate on a particular subject matter 
and dispose of that matter in a timely way. I thank all of our 
colleagues.
  At the conclusion of this next vote, which we expect will start in 
just a very few moments, we will then have further news for Members.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant bill clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                       Vote On Amendment No. 818

  Mr. McCAIN. Mr. President, I move to table amendment No. 818 and ask 
for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is on agreeing to the motion. The clerk will call the 
roll.
  Mr. NICKLES. I announce that the Senator from North Carolina. (Mr. 
Helms), is necessarily absent.
  The PRESIDING OFFICER (Mr. Ensign). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 54, nays 45, as follows:

                      [Rollcall Vote No. 200 Leg.]

                                YEAS--54

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Byrd
     Cantwell
     Carnahan
     Carper
     Chafee
     Cleland
     Clinton
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Fitzgerald
     Graham
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     McCain
     Mikulski
     Miller
     Murray
     Nelson (FL)
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Snowe
     Stabenow
     Torricelli
     Wellstone
     Wyden

                                NAYS--45

     Allard
     Allen
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Cochran
     Collins
     Craig
     Crapo
     DeWine
     Domenici
     Ensign
     Enzi
     Frist
     Gramm
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchinson
     Hutchison
     Inhofe
     Kyl
     Lott
     Lugar
     McConnell
     Murkowski
     Nelson (NE)
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner

                             NOT VOTING--1

       
     Helms
       
  The motion was agreed to.
  Mr. KENNEDY. I move to reconsider the vote.

[[Page 12038]]


  Mr. KYL. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, it is our understanding that the Senator 
from Arizona is going to offer an amendment at this time on behalf of a 
number of our colleagues.
  Hopefully, we can have order, Mr. President. This is a very important 
amendment.
  The PRESIDING OFFICER. The Senate will be in order.
  The Senator from New Hampshire.
  Mr. GREGG. Mr. President, I ask unanimous consent that the pending 
Thompson amendment be laid aside without prejudice so that the Senator 
from Arizona may proceed.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Nevada.
  Mr. REID. Mr. President, it is my understanding that the Senator from 
Arizona would agree to an hour of time evenly divided on his amendment.
  Is that right?
  Mr. McCAIN. That would be agreeable. But I think we can do it in a 
shorter time than that, depending on the view of the Senator from New 
Hampshire on the amendment.
  Mr. GREGG. I am not sure I have seen the amendment.
  Mr. McCAIN. I say to the Senator, I will get it to you right away. 
Why don't we do that.
  Mr. REID. I would also say, it is my understanding, having spoken to 
all the managers, that Senator Snowe of Maine is ready to offer the 
next amendment, whenever the time arrives that we complete this McCain 
amendment.
  Mr. BYRD. Mr. President, would the distinguished Senator from Arizona 
yield to me so I might ask a question without his losing his right to 
the floor?
  Mr. McCAIN. I am always pleased to yield to the Senator from West 
Virginia.
  Mr. BYRD. I thank the Senator.
  The PRESIDING OFFICER. The Senator from West Virginia.


                      SUPPLEMENTAL APPROPRIAITONS

  Mr. BYRD. Mr. President, earlier today the distinguished Senator from 
Alaska, Mr. Stevens, and I entered into a colloquy with several other 
Senators here anent the possibility of reaching an agreement on the 
amendments that would be considered at such time as the majority leader 
calls up the supplemental appropriations bill. I have asked the 
distinguished Senator from Arizona to yield for that purpose again.
  I wonder if it might be possible at this point to get an agreement, 
or at least to get ourselves on the way to an agreement, that would 
limit the number of amendments to be called up to the supplemental 
appropriations bill to those amendments that we have ascertained are 
out there via the hotline in the Cloakroom and a managers' amendment, 
the contents of which Senator Stevens and I are ready to reveal to any 
Senator who wishes to know what is in the managers' amendment.
  May I ask, with the permission of the Senator from Arizona--I am 
about to lose my voice for the second time in 83 years--the 
distinguished majority leader for a reaction to this request?
  Mr. DASCHLE. Mr. President, I appreciate the chairman's concern for 
moving the process along. And since we discussed this matter this 
morning, we have issued a hotline request for amendments. We have now 
received the response. A number of Senators have indicated a desire to 
ensure that they have been included in the managers' amendment. Once 
that confirmation can be made, I think on our side we would be prepared 
to then enter into a unanimous consent agreement which would take on or 
schedule the debate with an appreciation for a managers' amendment and 
a designated list of amendments that could be accommodated.
  So we are just about at a position where I think a unanimous consent 
request could be propounded. If Senators could just check with the 
distinguished senior Senator from West Virginia and the Senator from 
Alaska to ensure that the managers' amendment is as it has been 
reported to them, we will be able to move forward.
  Mr. BYRD. Mr. President, I thank the distinguished majority leader. I 
wonder if we can't set the hour of 3 o'clock as the time when the 
majority leader could propound a request in this regard.
  Mr. DASCHLE. Mr. President, I would be happy to attempt to propound 
an agreement at 3 o'clock and see what happens. No harm done in making 
the effort.
  Mr. BYRD. Yes. The distinguished Republican leader has already 
indicated his strong support for such an effort.
  So I thank the majority leader. And I thank the distinguished Senator 
from Arizona for yielding.
  The PRESIDING OFFICER. The majority leader.
  Mr. DASCHLE. Mr. President, just to clarify, I would be happy to 
enter into a unanimous consent agreement that would limit the number of 
amendments and provide for an understanding about how the supplemental 
would be addressed. But, of course, we cannot schedule the supplemental 
until we have completed our work on the Patients' Bill of Rights. I 
know the senior Senator from West Virginia understood that.
  Mr. BYRD. Yes, I do.
  Mr. DASCHLE. But I wanted to clarify that for the sake of anybody who 
may have misunderstood.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.


                           amendment no. 820

  Mr. McCAIN. Mr. President, I have an amendment at the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Arizona [Mr. McCain], for himself, Mr. 
     Bayh, Mr. Carper, and Mr. Edwards, proposes an amendment 
     numbered 820.

  Mr. McCAIN. Mr. President, 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 clarify that nothing in the bill permits independent 
 medical reviewers to require that plans or issuers cover specifically 
                      excluded items or services)

       On page 36 line 5, strike ``except'' and all that follows 
     through ``(2)'' on line 8.
       On page 62, between lines 10 and 11, insert the following:

       (V) Compliance with the requirement of subsection (d)(1) 
     that only medically reviewable decisions shall be the subject 
     of independent medical review and with the requirement of 
     subsection (d)(3) that independent medical reviewers may not 
     require coverage for specifically excluded benefits.

       On page 62, line 20, after the period insert the following: 
     ``The Secretary, or organization, shall revoke a 
     certification or deny a recertification with respect to an 
     entity if there is a showing that the entity has a pattern or 
     practice of ordering coverage for benefits that are 
     specifically excluded under the plan or coverage.''.
       On page 62, between lines 20 and 21, insert the following:
       (vii) Petition for denial or withdrawal.--An individual may 
     petition the Secretary, or an organization providing the 
     certification involves, for a denial of recertification or a 
     withdrawal of a certification with respect to an entity under 
     this subparagraph if there is a pattern or practice of such 
     entity failing to meet a requirement of this section.
       On page 66, between lines 10 and 11, insert the following:
       (5) Report.--Not later than 12 months after the general 
     effective date referred to in section 401, the General 
     Accounting Office shall prepare and submit to the appropriate 
     committees of Congress a report concerning--
       (A) the information that is provided under paragraph 
     (3)(D);
       (B) the number of denials that have been upheld by 
     independent medical reviewers and the number of denials that 
     have been reversed by such reviewers; and
       (C) the extent to which independent medical reviewers are 
     requiring coverage for benefits that are specifically 
     excluded under the plan or coverage.

  Mr. McCAIN. Mr. President, I say to the Senator from New Hampshire, I 
hope he and his people will examine this amendment. I apologize for not 
getting it to him sooner. Perhaps we could agree on this amendment and 
not have to have a rollcall vote.

[[Page 12039]]


  Mr. KENNEDY. Would it be agreeable to have an hour, so we could get--
--
  Mr. McCAIN. Mr. President, I ask unanimous consent that there be 1 
hour on this amendment evenly divided.
  I withhold my unanimous consent request.
  Mr. GREGG. Reserving the right to object, in just a minute I believe 
I will be able to respond.
  Mr. REID. I did not hear the Senator.


  Mr. GREGG. I said, I believe we will be able to respond to the 
Senator in about a minute.
  Mr. McCAIN. I thank the Senator.
  Mr. President, concerns have been raised that under this legislation, 
independent medical reviewers can order a health plan to provide items 
and services that are specifically excluded by the plan's contract.
  The amendment I am offering clarifies that the bill does not do this, 
and that specific limitations and exclusions on coverage must be 
honored by the external reviewers.
  There are a numerous safeguards already in the bill to ensure that 
external reviewers cannot order a group health plan or health insurer 
to cover items or services that are specifically excluded or expressly 
limited in the plain language of the plan document.
  First, the external review entity who is responsible for determining 
which claims require medical review and which do not, may refer claims 
to independent medical reviewers only if the coverage decision cannot 
be made without the exercise of medical judgment.
  I repeat: The external review entity, the one that is responsible for 
determining which claims require medical review and which do not, may 
refer claims to independent medical reviewers only if the coverage 
decision can't be made without the exercise of medical judgment. For 
example, the plan document says that the plan doesn't cover heart 
transplants. Even if the patient has no other treatment options, the 
external review entity should not forward the claim for a heart 
transplant to an independent medical reviewer because no medical 
determination is needed to understand that the procedure is not 
covered.
  Second, even if the external review entity makes a mistake and 
forwards to the independent medical reviewer a claim for an item or 
service that is specifically excluded or expressly limited under the 
plan, the legislation states that the independent medical reviewer 
cannot require the health plan or insurer to cover such excluded 
benefits.
  The amendment I am offering clarifies this limitation on the 
independent medical reviewer to make it perfectly clear that although 
we are relying on the independent medical reviewer to give us a second 
medical opinion when such a medical opinion is necessary to interpret 
the plan's coverage, we are not empowering them to disregard the plan's 
specific coverage exclusions and limitations.
  The third safeguard and the one we are further strengthening with 
this amendment is designed to ensure the objectivity and quality of the 
external reviewers. The bill provides already for their certification 
and sets out factors that must be considered before they can be 
recertified, including the external reviewer's compliance with 
requirements for independence and limitations on compensation. To the 
recertification considerations already in the bill, this legislation 
additionally requires the certifying authority, before recertifying an 
external reviewer, to consider whether the external reviewer has 
breached the other safeguards by ordering a provision of items or 
services that are specifically excluded by the plan.
  The amendment allows a health plan or insurer to petition the 
certifying authority to revoke an external reviewer's certification or 
deny recertification and requires the certifying authority to do this 
upon a showing of a pattern or practice of wrongfully referring for 
medical review claims that don't require medical decisions or of 
ordering the provision of specifically excluded benefits.
  Finally, the amendment requires the General Accounting Office, within 
1 year after the bill takes effect, to report to Congress on the number 
and the extent to which independent medical reviewers are requiring 
coverage for benefits that are specifically excluded under the plan or 
coverage.
  I guess what we are saying here is that we are trying to make the 
language as tight as possible. We know there may be a temptation on the 
part of reviewers to violate the plan with regard to those procedures 
which may be specifically excluded. We will have follow-up action, 
including a requirement for taking into consideration, on 
recertification or even revocation of certification, a study by the 
General Accounting Office which will tell us about the extent to which 
independent medical reviewers are requiring coverage for benefits that 
are specifically excluded.
  My friend from Arizona, Senator Kyl, had a very good amendment. We 
could not quite go that far, and we came close to agreement. I hope 
this amendment does clarify some of the concerns.
  It strikes the language on page 36 of the bill that says: Except to 
the extent that the application or interpretation of the exclusion or 
limitation involves the determination described in paragraph 2.
  This removes what was viewed by many as a possible loophole. So we 
were willing to strike that portion of the bill in order to try to 
inspire some confidence that in no way does this legislation expect or 
anticipate or even allow in any way exclusions on coverage that are not 
specifically listed in the medical plan, in the insurance plan.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Indiana.
  Mr. BAYH. Mr. President, before my colleague Senator McCain leaves 
the Chamber, I thank him for his leadership on this issue. He has 
demonstrated his courage in battle and in service to country and is 
doing so again by leading this important battle for patient care for 
all Americans. I thank Senator McCain for his leadership once again.
  I thank my colleague Senator Carper from Delaware. We served together 
as Governors for many years, and we now have the privilege of serving 
in this body. I thank him for his leadership on this issue, for his 
insight. There is no deeper thinker who cares more about the public 
policy details of what we do in the Senate than Senator Carper. He is 
new to this body but has already made a substantial contribution to the 
Senate and to the laws that govern our country.
  I express my appreciation to Senators Edwards and Kennedy for their 
leadership in this important battle on behalf of patients. I express my 
gratitude to two of our colleagues who are not on the floor at this 
time: Senator Nelson of Nebraska and Senator Kyl from Arizona.
  In particular, I thank Senator Nelson for his heartfelt work on the 
last amendment. Although unsuccessful, I know he cared deeply about 
striking the right balance. We share many of the same objectives, 
although we differ in terms of how we go about achieving those 
objectives. I salute Senator Nelson for his work in this regard. I hope 
our amendment will meet many of his concerns. I believe it does in 
terms of striking the right balance for the American people.
  Our amendment accomplishes both of the important objectives that the 
American people seek in debating and enacting this Patients' Bill of 
Rights. First, we ensure that all decisions that involve the practice 
of medicine, all decisions that involve medical discretion will be 
fully reviewable by an independent panel to ensure the quality of 
health care for all insured Americans across our country.
  Second, this amendment seeks to accomplish quality medicine at 
affordable cost, keeping the prices as reasonable as possible for 
consumers and patients across the country. We do this by removing 
unnecessary ambiguity from this bill, thereby ensuring that we can 
accomplish quality medical treatment but keeping the risks, the 
uncertainty, and therefore the costs to patients and consumers as low 
as possible.

[[Page 12040]]

  The bottom line will be quality health care for all Americans at an 
affordable cost. That is the balance all of us should be seeking to 
strike in this debate. That is the balance this amendment will help us 
to accomplish.
  Very simply, we seek to honor the original intent of this bill, that 
doctors should make medical decisions, that lawyers should draft 
contracts and practice law, but neither should be in the business of 
practicing the other's profession. We have removed through this 
amendment ambiguous language that ran the risk of one encroaching on 
the other's territory.
  Specifically, let me read the provisions that will remain in the 
bill. They are explicit and unambiguous. I quote from the legislation:

       Nothing in this subsection shall be construed to permit an 
     independent medical reviewer to require that a group health 
     plan or health insurer offering health insurance or health 
     insurance coverage provide coverage for items or services for 
     which benefits are specifically excluded or expressly limited 
     under the plan or coverage in plain language of the plan 
     document.

  Under the bill before this amendment, Mr. President, there had been 
several exceptions which had consumed the rule, making this clear 
exception for express limitations or prohibitions under the terms of 
the contract null and void. We put a period at the end of this 
language, removing the exception language, thereby making it very clear 
that the terms of the contract, in terms of contract language, will 
govern. This helps to keep the costs low because the uncertainty and 
the ambiguity will be removed.
  At the same time, there can be no uncertainty or ambiguity that 
medical decisions involving the practice of medicine, anything 
involving medical discretion, will be fully reviewable by the external 
appeals process, as it should be.
  In addition, there are other precautionary measures included in our 
amendment that I was interested in and I know the Senator from Delaware 
was interested in. He may elaborate on these provisions in just a few 
moments. These ensure that the independent reviewers are truly 
independent. We want to make sure they adhere to the provisions of this 
legislation, hopefully as amended by this amendment, and that we don't 
have the risk of panels exceeding their authority by changing the terms 
of the contract where they are expressly provided for, and there is no 
ambiguity in the language in terms of limitations or exclusions from 
the terms of the contract.
  Once again, this amendment will ensure that independent review panels 
do not exceed their authority, inappropriately driving up costs without 
improving the quality of health care for the American people.
  Finally, we have a rare opportunity to achieve bipartisan consensus 
on this amendment.
  Not only is Senator McCain helping to lead the charge once again, for 
which we are very grateful, but I listened with great interest and 
gratitude to something that the Senator from Oklahoma, Mr. Nickles, 
said last evening. He recited the very same language that I recited 
about exclusions and limitations in the contract. And then he said if 
you put a period at the end of those provisions and remove the 
exception language, that would be--to use his word--``great.''
  Mr. President, that is exactly what we have done. We have placed a 
period there and removed the exception language, thereby removing the 
ambiguity, the risk, the unnecessary cost to consumers without a health 
care benefit. Senator Thompson, earlier today on the floor of the 
Senate, indicated that this action we have proposed in this amendment 
would also go a substantial way toward correcting what he thought was a 
potential defect in the legislation.
  So I ask all Senators, regardless of political affiliation, who seek 
to strike the right balance between quality health care on the one hand 
and affordability on the other hand to support this amendment. We have 
taken a step that some of those who have been concerned about the 
ambiguity in the language have encouraged us to do, thereby ensuring 
quality affordable health care for every American. We can accomplish 
that with this legislation, with this amendment. I urge my colleagues 
to vote in the affirmative.
  I yield the floor, and I thank my colleagues for their patience and 
attention.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. CARPER. Mr. President, I rise in support of the amendment. I am 
pleased to be an original coauthor with Senators Bayh and McCain. The 
Senator from Indiana is very modest in giving to others the credit, but 
this is really an idea that I first heard from him. Early this week, 
Senator Ben Nelson and Senator Bayh and myself were trying to deal with 
issue of medical necessity. It is a difficult issue around which there 
are competing interests--doctors, nurses, insurers, patients--who 
really find consensus hard to reach.
  I thank Senator Bayh for helping us to find this middle ground on 
which I am encouraged that maybe we will have strong bipartisan 
support. I express my thanks to Senators McCain and Kennedy and Edwards 
for their leadership in getting us here this day, and to my friend, 
Senator Gregg from New Hampshire, for his thoughtful comments, as well 
as those I heard on the floor yesterday, alluded to by Senator Bayh, 
from Senator Nickles. As I recited, earlier today Phil Gramm of Texas 
echoed almost those same comments.
  Before I return, I want to step back a little bit and go back in 
time. I used to be State treasurer of Delaware before I was a 
Congressman, before I was Governor, before I became a Senator. Senator 
Bayh was Governor of Indiana and was the secretary of state. We worked 
in those venues before we came here to work. With our State treasurer 
at the time, we administered benefits of State employees. Among the 
things I was mindful of was health care costs.
  In the 1970s and 1980s, health care costs went up enormously. It was 
not uncommon to see increases then of 20, 25, or even 30 percent 
annually in the cost of health care for State employees. These really 
mirrored increases that inured to other employees outside the State of 
Delaware.
  Along about the late 1980s, a dozen or so years ago, a number of 
people began working seriously in this town to figure out how to 
introduce some competition into the provision of medicine. In a fee-
for-service approach in medicine, I might see my doctor and he says, 
``You are not well; I will order tests A, B, C and D, and to be sure we 
will order E, F, G and H,'' and he owns the lab where the tests are 
administered. Then he says, ``Come back and we will see how you feel 
next week.'' There really wasn't much impetus for containing costs. As 
a result, costs spiraled out of control.
  Managed care was designed and conceived to try to stop that spiraling 
and introduce some market forces and competition in order to control 
the cost of health care. It really succeeded better than I think any of 
its proponents had imagined. Those costs that were going up 20, 25, 
even 30 percent, back in the 1980s, by the time we got to the end of 
the 1990s, were going up by 2, 3 percent, in some years nothing at all. 
As we went about controlling costs, the concerns switched to a 
different area, and that different area was quality of health care.
  Instead of a lot of our doctors and nurses making decisions, a lot of 
decisions for the care to be offered or given to us was made within the 
HMOs running the managed care operation. In some cases, they were 
doctors and nurses, and in some cases they were not.
  What we are trying to do in the context of the Patients' Bill of 
Rights legislation is restore some balance to the system. We don't want 
to see costs spiral out of control or employers cutting off health care 
for employees. By the same token, we want to make sure that more of the 
medical decisions that affect us if we are covered by an HMO, 
especially if it falls under a Federal regulation, which ERISA is--we 
want to make sure we are getting the kinds of protections that inure to 
folks who are in State HMOs.
  How do we do that and not lead us back to spiraling, out-of-control 
costs

[[Page 12041]]

in a way that is fair to doctors and nurses, and in a way that is fair 
to employers and at the same time fair to the HMOs? The issue we are 
trying to address is this: I am in an HMO; I don't like the decision my 
HMO renders with respect to my health care. I appeal that decision, and 
it is reviewed by an internal mechanism within the HMO. If they don't 
provide a decision my doctor and I like, we can appeal to an external 
reviewer. In some cases, certainly in my State, an external reviewer 
can override the HMO's decision and mandate the provision of that 
health care under a State-regulated plan.
  What about in a case where there is a federally regulated HMO, one 
that falls under ERISA? What do you do in a case when the language of 
the plan explicitly excludes the treatment that a member of that plan 
desires? What do we do when the language of the plan explicitly 
excludes the very treatment that I or the member of a managed care plan 
desires?
  Unintentionally, the language of the bill as drafted says to the 
external reviewer that you have license to go beyond that which is 
explicitly excluded in treatment for a patient. That external reviewer 
can order additional explicitly excluded treatment for a patient. That 
might be great for the patient, might be appreciated by the patients' 
doctors and nurses. But how fair is that to the insurer who is trying 
to cost out a plan, to charge for that plan and have a sum certain to 
operate with?
  What Senator Bayh has fashioned, something that he and Senator Nelson 
and I worked on, is a way to provide that certainty for the insurer and 
also to provide certainty for the consumer, the patient, and the health 
care providers. It is a simple change--one endorsed, at least 
indirectly, by Senator Nickles and today by Senator Gramm. By simply 
striking a couple lines in his bill and putting a period where a period 
ought to appear, we helped solve a problem. It doesn't solve all of the 
problems in this bill, but it solves one of the problems. It is clear, 
clean, and easy to understand.
  Let me close my remarks with some comments about another one of our 
colleagues who, before he was in the Senate, was a Governor, Ben Nelson 
of Nebraska. Before he was Governor, he was insurance commissioner for 
his State. He has forgotten more about these insurance matters than 
most of us will ever know. His insights and perspectives on these 
issues have been enormously helpful to me in this debate. I thank him 
for joining with Senator Bayh and me and others in the conversations 
that really led to the emergence of this proposal.
  Senator Nelson offered an amendment with Senator Kyl a little bit 
earlier today to try to define medical necessity, which is really the 
kind of issue we are talking about here. People have been trying to do 
that for years without a lot of success. While we are not going to 
agree to change the language in the bill with respect to that, we can 
say here clearly, if a health plan that falls under the jurisdiction of 
ERISA explicitly excludes a particular kind of coverage, then in all 
fairness the external review committee in reviewing an appeal, cannot 
override the explicit exclusion in that health care plan. That is fair; 
that is reasonable; it provides certainty for the insurer, and I think 
it is fair to consumers as well.
  I am pleased to rise in support of it, and I hope that all of us in 
this Senate, Democrats and Republicans, and Independent as well, can 
support this amendment. Thank you very much.
  I yield back my time.
  The PRESIDING OFFICER. The Senator from North Carolina.
  Mr. EDWARDS. Mr. President, before he leaves the floor, I thank my 
friend from Delaware for all his work on this issue. It is very 
important to the progress we are making to finally protect patients in 
this country, along with Senator Bayh, who led this effort, and Senator 
Nelson and others involved in this issue. We very much appreciate all 
of their input.
  The issue of medical necessity, which means how we determine whether 
any particular care is covered and is medically necessary for the 
treatment of the patient, is a critical issue in the bill. We have now 
agreed on language that we believe appropriately balances the interests 
of the contract between the insurance company or the HMO and the 
employer on the one hand, and the interest of the patient and having 
some flexibility on the other.
  Basically what we have said in this amendment is if the contract 
explicitly excludes a particular treatment, a test, then that will be 
excluded from care, period, and the independent reviewers are bound by 
that language.
  On the other hand, to the extent we need some flexibility in what is 
proper and good medical care, we have managed to maintain that. I think 
we have struck the right balance between the sanctity of the contract 
on the one hand, so people know they can rely on the provisions of the 
contract and, secondly, allowing enough flexibility to provide the 
proper care to patients when they go through the review process.
  More important is this is another step in a very important process. 
When we began last week, we were confronted with trying to get real 
patient protections in this country with numerous obstacles--
disagreement among our colleagues, different issues being raised by 
Members of the Senate and a written veto threat from the President.
  As we have moved forward through the end of last week and through the 
mid part of this week, we have continued to make progress every step of 
the way. We keep resolving issues. We keep making progress.
  On the issue of employer liability, about which many of our 
colleagues have expressed concern, making sure that employers around 
this country are protected from liability, we have worked with our 
colleagues--Senator Snowe, Senator Nelson, Senator DeWine, and others--
to work out compromise language that satisfies a large number of 
Senators on both sides of the aisle so that there is consensus on the 
need to protect the employers, on the one hand, but keeping in mind the 
rights of the patients on the other. Issue resolved.
  No. 2, scope: What this legislation covers and who it covers. Senator 
Breaux and I and others have been working very hard on this issue. We 
believe we have reached a resolution that will result in an amendment 
being offered later today that strikes a compromise and a balance 
between the interests of the States, being able to maintain the work 
they have done in the area of patient protection, while at the same 
time making sure every single American has a floor on the level of 
patient protection.
  On the issue of medical necessity, as a result of the work of many of 
my colleagues, we have been able to reach consensus. On the issue of 
scope, who is covered, we have been able to reach consensus. On the 
issue of employer liability, we have been able to reach consensus.
  Every day we have continued to make progress, but the importance of 
this is not for what is happening specifically within this Chamber and 
what is happening in Washington, DC, and what is happening among 
Senators. The winners in this process are the families of America 
because it is now becoming clearer and clearer that we may finally be 
able to provide those families with the protections they so desperately 
need and to which they are entitled.
  That is what this debate has been about. That is what all this work 
among Republicans and Democrats in the Senate has been about. We have 
shown over the course of the last week that we can work together, we 
can find ways to provide real patient protection in this country. Up 
until now, we have a model in problem solving, in trying to give real 
protection to the families of this country so they can make their own 
medical decisions. That is what this debate has been about; that is 
what our work has been about.
  We are not finished. We have important issues left to resolve, but I 
am confident, given the good will and hard work that has already been 
done, that if we continue in that same way, we will be able to reach a 
resolution and hopefully be able to put a bill on the

[[Page 12042]]

President's desk and that he will sign a real Bipartisan Patient 
Protection Act that gives power to patients and lets them make their 
own health care decisions.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. NELSON of Florida. I thank the Chair. Mr. President, over the 
past few days of debate on this Patients' Bill of Rights, we have heard 
the many horror stories of what happens to people when HMOs put profits 
ahead of patients. We have heard of one man in a wheelchair whose HMO 
ordered his oxygen tanks removed from his house; we heard of a 
youngster whose brain tumor was missed because the HMO refused to allow 
the necessary test; and we heard of others pleading with their HMO to 
get coverage for critical procedures either for themselves or their 
families.
  These, unfortunately, are not isolated examples. They are happening 
every day all across this country which is why the people of America 
are demanding reform and why we are seeing the public surveys now 
showing support for this legislation to the tune of 81 percent in favor 
of this legislation.
  The people also realize the system is not working for the doctors 
either. Just last week, I learned of a doctor who is assessing his 
existing patients a $1,500 annual membership fee for the privilege of 
continuing their treatment. He wants to cull his current patient list 
from 3,000 patients down to 600, and by charging this annual membership 
fee, the doctor shrinks his practice and yet he maintains his profits. 
The patients who cannot afford the annual membership fee have to find 
another doctor. I find this outrageous and unethical, and it sets a bad 
precedent for the future of our health care industry.
  All of these incidents and the debate over this legislation have made 
one thing very clear: Our health care system is failing most of the 
people in the country.
  Mr. President, I rise today to reiterate my strong support for this 
Bipartisan Patient Bill of Rights. It represents a critical first step, 
an important first step in a long journey of a thousand miles of 
reforming America's health care system.
  In short, this legislation puts medical decisions back in the hands 
of doctors and patients instead of HMO bureaucrats. It gives patients 
the right to see a specialist when needed, fixing a system that so 
often blocks a woman's access to necessary care. This legislation will 
ensure direct access for a woman to an OB/GYN if that is who she wants 
as a primary care physician. This bill gives patients access to the 
emergency room without first seeking clearance from their health care 
provider. We have heard many horror stories recounted in the Senate of 
people denied access to a certain emergency room because they had to go 
to another.
  This legislation also protects the doctor-patient relationship, a 
very sacred relationship, by ending restrictions on which health care 
options doctors can recommend. Currently, we know doctors say they fear 
retribution from the health insurance industry if they pursue more 
costly medical treatment for their patients.
  This bill also prohibits HMOs from offering financial incentives to 
doctors for recommending limited care. It prohibits HMOs from punishing 
doctors who seek top-notch care for patients.
  What we are trying to do in this legislation is reinject common sense 
and good medical practice in protecting the doctor-patient relationship 
so the patient knows the doctor is going to prescribe what is the very 
best medical treatment appropriate for the circumstances.
  In spite of claims to the contrary, yesterday the American Medical 
Association and other health groups reported in States with recently 
enacted accountability and legal remedies, the new laws did not produce 
any documented increase in the number of uninsured, one of the specious 
arguments that the opponents to this legislation have advanced.
  The most crucial issue is whether a patient can seek legal recourse 
for the wrongdoing by a managed care company. This bill will enable 
patients to hold their insurance companies accountable for harmful 
actions. Under current law, if malpractice is committed, if there are 
grievous wrongs, a patient can recover from a doctor, from a hospital, 
from other providers, but under current law they cannot recover from an 
HMO. That is one of the main fundamental principles of this 
legislation, to change that, so they can hold those HMOs accountable.
  Before I came to the Senate, I was the elected insurance commissioner 
of Florida for 6 years. I saw how some insurance companies--and I don't 
say all because I am proud of those insurance companies that would 
stand up for the rights of their patients and would stand up to protect 
their patients, but I saw how some insurance companies tried to put 
profits ahead of patients. Unfortunately, many patients often have 
little or no recourse.
  There is no reason why HMOs should have special protection from 
lawsuits. The AMA has so stated and endorsed a patient's right to sue. 
It is estimated more than 190 million Americans are enrolled in health 
plans, and 75 percent of them under current law are unable to sue their 
health plans for anything but the cost of denied treatment. Clearly, 
the status quo works for the industry, but it fails consumers. We need 
this legislation to enable people to be able to redress their wrongs in 
State courts for damages limited only by State regulations.
  It has been a long time coming. It has taken 5 years to get this 
legislation to the floor because for 5 years special interests have 
prevented this bill from becoming law. As a result, the people of 
Florida and the people throughout this Nation have suffered. We must 
end the industry strangle hold on this legislation and we must take the 
first meaningful steps toward overall health care reform. I submit that 
this legislation is a major first step in the overall journey toward 
health care reform. We must put the people before the special 
interests. We must put an end to these consumer horror tales that we 
have heard with all too much frequency during the course of debate on 
this legislation.
  I thank colleagues for the privilege of addressing this issue and for 
indulging me in my comments.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Corzine). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. NELSON of Florida. Mr. President, I ask unanimous consent the 
order for the quorum call be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Nelson of Florida are located in today's Record 
under ``Morning Business.'')
  Mr. NELSON of Florida. Mr. President, I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Johnson). Without objection, it is so 
ordered.
  Mr. REID. On behalf of the majority leader, I ask unanimous consent 
that at 5 p.m. the Senate vote in relation to Senator McCain's 
amendment No. 820; that prior to that vote, when the quorum call is 
ended and the unanimous consent agreement is reached, Senators Breaux 
and Collins be recognized to offer a first-degree amendment on scope--
they can, after the vote tonight, either stop or come back tonight, but 
we will have a vote at 5 o'clock for the convenience of some Senators--
that the Breaux and Collins debate occur concurrently today; and when 
the Senate resumes consideration of the bill tomorrow, Thursday, at 
9:15 a.m., there be 30 minutes for debate equally divided between 
Senators Collins and Breaux prior to votes in relation to these two 
amendments; that there be 2 minutes for debate equally divided before 
each vote with the first

[[Page 12043]]

vote occurring in relation to the Collins amendment; that upon the 
disposition of these amendments, Senator Gregg be recognized to offer 
an amendment relative to liability; that there be 1 hour for debate 
equally divided prior to a vote in relation to that amendment; that 
upon the disposition of Senator Gregg's amendment, Senators Snowe and 
Frist each be recognized to offer a first-degree amendment, and that 
will be on liability; that there be 4 hours for debate equally divided 
in the usual form to run concurrently; that at the conclusion or 
yielding back of time, the Senate vote in relation to Senator Snowe's 
amendment; that after disposition of her amendment, the Senate vote in 
relation to the Frist amendment; that no second-degree amendments be in 
order to any of the amendments listed in this agreement prior to the 
vote in relation to the amendments.
  Mr. GREGG. Reserving the right to object, I ask if the Senator from 
Nevada would be willing to amend the agreement, so it would be Senator 
Gregg or his designee.
  Mr. REID. Absolutely.
  Mr. GREGG. I have no objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. COLLINS. I ask unanimous consent that the pending amendment be 
set aside.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 826

    (Purpose: To modify provisions relating to preemption and State 
                              flexibility)

  Ms. COLLINS. On behalf of myself, Senator Nelson of Nebraska, Senator 
Enzi, Senator Voinovich, Senator Hutchinson, and Senator Roberts, I 
send an amendment to the desk.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Maine [Ms. Collins], for herself and Mr. 
     Nelson of Nebraska, Mr. Enzi, Mr. Voinovich, Mr. Hutchinson, 
     and Mr. Roberts, proposes an amendment numbered 826.

  Ms. COLLINS. I ask unanimous consent reading of the amendment be 
dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The amendment is located in today's Record under ``Amendments 
Submitted.'')
  Ms. COLLINS. I am very pleased to join with my colleague from 
Nebraska as well as the other Senators whom I mentioned in offering 
this amendment. Our amendment will give true deference to State laws 
and the traditional authority of States to regulate insurance while 
ensuring that each State addresses the specific patient protections 
provided in this legislation.
  We should pass a strong, binding Patients' Bill of Rights. We should 
pass a bill that holds HMOs accountable for promised care and that 
ensures that patients receive the health care they need when they need 
it. However, we should do so in a responsible way that does not add 
excessive costs and complexity to an already strained health care 
system.
  Congress should act to provide the important protections that 
consumers want and need without causing costs to soar and without 
preempting State insurance laws. We can do so by passing a carefully 
crafted bill.
  I strongly believe we should not preempt or supersede but, rather, 
build upon the good work the States have done in the area of patients' 
rights and protections. States have had the primary responsibility for 
regulating insurance since the 1940s. For more than 60 years, States 
have been responsible for protecting insurance consumers. As someone 
who has overseen a bureau of insurance in State government for 5 years, 
I know firsthand that our States' bureaus of insurance do an excellent 
job of protecting consumers' rights.
  One of the myths in the debate on this legislation is that unless the 
Federal Government preempts State insurance laws, millions of Americans 
will somehow be unprotected in their disputes with HMOs. That simply is 
not true. For example, as this chart demonstrates, the States have been 
extremely active in passing patient protections. In fact, they have 
been way ahead of the Federal Government and they have acted without 
any prod or mandate from Washington. Look at this activity: 44 States 
have dealt with the issue of emergency room access; 49 States have 
passed laws prohibiting gag clauses in insurance contracts that 
restrict what a physician can tell a patient. Whether it is access to 
OB/GYNs, continuity of care, or many of the other issues such as 
internal or external appeals or patient information, the States have 
been extremely active in this area. Every single State has acted to 
pass some sort of patient protections.
  As is so often the case, it has been the States that have led the 
way. They have been the laboratories for insurance reform. Moreover, we 
know one size does not fit all. What may well be appropriate for one 
State simply may be unworkable or unneeded or too costly in another. 
What may be appropriate for California, which has a high penetration of 
HMOs, may simply not be necessary in a State such as Alaska or Wyoming 
where there is virtually no managed care. In such States, a new blanket 
of heavyhanded Federal mandates and coverage requirements simply drives 
up costs that impede rather than expand access to health insurance. 
That is why the National Association of Insurance Commissioners and the 
National Conference of State Legislators are very concerned about the 
language in the McCain-Kennedy bill. The language in that bill will 
force all States to adopt virtually identical Federal standards.
  I recently received a letter from the president of the National 
Association of Insurance Commissioners. She writes that States have 
faced the challenges and produced laws that balance the two-part 
objectives of protecting consumer rights and preserving the 
availability and affordability of coverage. For the Federal Government 
to unilaterally impose its one-size-fits-all standards on the States 
could be devastating to State insurance markets.
  I think we should heed that caution. I think we should heed that 
warning. The Federal Government does have an important role to play in 
regulating the self-funded plans under ERISA. That is where our effort 
should be focused.
  States are precluded from applying patient protections to these 
federally regulated plans, and that is why we need a Federal law to 
ensure that consumers, enrolled in insurance plans beyond the reach of 
State regulators, have strong patient protections. But the Federal 
Government should not be in the business of second-guessing and 
overriding and preempting the carefully crafted patient protections 
that have been negotiated by our State legislators and Governors to 
meet the needs of their States' citizens. States which seized the 
initiative and acted on their own should not have to revise their 
carefully tailored laws simply to comply with a one-size-fits-all 
Federal mandate.
  Under the McCain-Kennedy bill, the Federal Government would preempt 
existing State laws unless the State has enacted protections that are 
``substantially equivalent to and as effective as'' the Federal 
standard.
  A reasonable person's interpretation of that standard is the States 
will have to pass new laws wiping out their carefully crafted work, 
that are virtually identical to the standards in the McCain-Kennedy 
bill.
  The approaches taken by the 50 States to the same type of patient 
protection vary widely, and with good reason in many cases. Why should 
States that have already acted on their own to provide strong, workable 
patient protections have to totally change and make extensive changes 
in their laws? That is why the National Council of State Legislators 
supports the Collins-Nelson amendment. It is extremely important to 
State legislators that they do not have to spend valuable time 
recrafting and rewriting and reenacting laws already on the books that 
meet the needs of their citizens.
  In a recent letter to Senator Nelson and myself, the National Council 
of State Legislators wrote:

       [We] support this amendment. States are best situated to 
     provide oversight enforcement of the patient and provider 
     protections

[[Page 12044]]

     established in this legislation. The record of the states is 
     strong. We are looking for an approach that supports the 
     traditional role of States in the regulation of insurance and 
     that recognizes the differences in State insurance plans and 
     provides a mechanism for States to protect those markets.

  Again, let me be clear. There is a role for the Federal Government, 
and that is to make sure that those plans, regulated under ERISA, 
beyond the reach of State regulators, include patient protections. That 
is why we need a Federal law to accomplish that goal.
  It is all well and good and appropriate if Congress decides it wants 
to impose a specific requirement or mandate on these federally 
regulated insurance plans. But the Federal Government needs to be 
careful in respecting the good work the States have done.
  Moreover, let's look at the practical consequences of what would 
happen under the McCain-Kennedy bill. If a State fails to revise its 
laws to conform to the Federal standard, under the McCain-Kennedy bill 
the Health Care Finance Administration, HCFA, would displace the State 
as the enforcer of insurance patient protection.
  Talk about a right without a remedy. If there is no enforcement, 
there is no protection, and experience has already shown that HCFA is 
completely incapable of carrying out this responsibility.
  The Health, Education, Labor, and Pensions Committee on which I serve 
has held yearly hearings to examine the problems that HCFA has 
experienced as it has attempted to implement and enforce the 1996 
Health Insurance Portability and Accountability Act. There are many GAO 
reports. This one is entitled: Progress Slow In Enforcing Federal 
Standards in Nonconforming States. That is because HCFA is totally ill-
equipped to take on this task.
  Our States' bureaus of insurance know how to do the job. They have 
been doing it for 60 years, and they have been doing it well. Consumers 
should be very concerned, since HCFA has already proven that it is not 
capable of enforcing existing Federal insurance standards in States 
that don't conform. In fact, HCFA has shown it cannot even assess the 
degree of compliance with those Federal laws, where HCFA does play a 
role. We should be very concerned that we are proposing an empty 
promise.
  The States have the systems, the infrastructure necessary to receive 
and process consumer complaints in a timely fashion and to hold 
insurers accountable to ensure that they comply with State laws. To me, 
the bottom line is very simple. My constituents would much rather call 
the bureau of insurance in Gardiner, ME, than have to deal with the 
HCFA office in Baltimore if they have a problem with their insurance.
  Another problem of the McCain-Kennedy approach is that it would 
create a dual enforcement structure that would be extremely confusing 
for consumers and, frankly, completely unworkable. Under this bill, if 
some State laws met the new standards but others did not, who would be 
the regulator? Would it be HCFA or would it be the bureau of insurance? 
Would it be HCFA for some parts of the insurance contract and the 
bureau of insurance in the State for other parts of it?
  This simply does not work. We would be creating a situation where a 
patient may have to go to a State bureau of insurance for questions or 
problems associated with certain patient protections and then try to 
deal with HCFA if the patient has problems or questions with other 
parts.
  Therefore, Senator Nelson and I, supported by a number of our 
colleagues, are offering an amendment that will give true deference to 
State laws and the traditional authority of States to regulate 
insurance. At the same time, we will ensure that each State considers 
and addresses the specific patient protections proposed by this 
legislation.
  First, our amendment would grandfather all State patient protection 
laws that are in place prior to the effective date of this act. That is 
October 1 of next year. A State would just certify to the Secretary of 
HHS that it has addressed one or more of the patient protection 
requirements to be in compliance with the law. This provision would 
also give States that have not considered these patient protections an 
incentive to act before the effective date to avoid Federal intrusion 
and challenges to their laws.
  Second, if by the effective date a State has been certified as 
compliant with all the patient protections in the legislation, it will 
immediately become eligible for funds from a new patient quality 
enhancement grant program. States that are not in full compliance by 
the effective date of the legislation would be required to meet a 
higher standard in order to be eligible for funds under this new 
program. If a State has not acted by the effective date, it would have 
to certify to the Secretary, for each of the remaining protections, 
that either the State has enacted a law that is ``consistent with the 
purposes of the Federal standard'' or decline to enact a law because 
the adverse impact of the law on premiums would lead to a decline in 
coverage or simply because the existence of a managed care market in 
the State is negligible; it is just not relevant to that State.
  Our amendment would recognize the States are the experts in this 
area. They have led the way. Consumers are best protected if we 
continue to respect the work that the States have done and give 
deference to the State's traditional authority to regulate insurance.
  I reserve the remainder of my time but yield to the Senator from 
Nebraska, my principal cosponsor, who is a true expert in this area. He 
knows more than any other Senator. I hope my colleagues will listen 
very carefully. It has been a great pleasure to work with him on this 
issue about which we both care a great deal.
  The PRESIDING OFFICER. The Senator from Nebraska.
  Mr. NELSON of Nebraska. I thank my colleague from the New England 
State of Maine for such a glowing recommendation. I hope my colleagues 
do not think I believe I know more than they do. But it is a subject I 
have spent a good deal of my life involved in as an insurance regulator 
and as a Governor, somebody who has dealt with the business of 
insurance.
  I appreciate so much the opportunity to join with Senator Collins to 
bring this amendment to the attention of our colleagues.
  It typically is a lot more instructive to talk about the importance 
of patient care and to talk about those who aren't getting good patient 
care and certainly to bring to our attention those folks who suffered 
great injustices under their current health care system. I respect 
that. I certainly am interested in that aspect. That is why I support a 
Patients' Bill of Rights. That is why I continue to do that.
  But I have found that any bill which comes before this body or that 
comes before any legislative body is hardly ever such without some 
amendment and some improvement. I think what Senator Collins and I are 
offering today is in that category of an improvement.
  When our founders created this Union they established a system of 
Government that, pursuant to our Constitution, provided for a divided 
Government, a Government consisting of our States, and under a well-
considered principle of Federalism, a Federal Government. We have been 
best served by this Government when we have permitted it to work for 
us. While pursuant to the 10th amendment, the Federal Government may 
preempt States in certain respects, it seems clear from that amendment 
and from the practice over the last 200-plus years that such preemption 
should be limited to those areas where the States have failed to act in 
some manner. This is not one of those cases.
  The bill before us presents a dilemma for me and for my colleagues 
because most of us believe that, with some modifications, this is a 
good bill. The same may be said of the Frist-Breaux-Jeffords bill.
  At the outset, let me state unequivocally that I support the purpose 
and the protection of this bill. What I don't support is its preemption 
of State laws in an unnecessary manner. Let me explain.
  As my colleague has indicated by the chart, the States have acted. 
They

[[Page 12045]]

have acted rather aggressively and consistently and in many ways. As a 
matter of fact, they acted so aggressively and so consistently that the 
best of those protections which the States passed were assembled to 
create this bill. Let me ask you if that isn't some action on the part 
of the States.
  When Congress passed the ERISA preemption in 1974, it did so because 
some multi-State employers were having problems complying with the 
diversity of the State regulation of health insurance.
  First, it was described as a pension issue to which they couldn't 
quite comply. Then they said, as long as we are getting a preemption, 
let's grant it in the health insurance area as well. So Congress 
exempted certain plans from State law. That level of exemption involved 
fewer insured than were continued to be served by State regulated 
insurance plans.
  What we are faced with today is dealing with the problem that began 
in 1974 with the exemption from consumer protections of these Federal 
plans. Now we are faced with solving that problem.
  Some have said, as long as we are solving that problem, let's move 
away from diversity and go to uniformity. I am not opposed to having 
uniformity. But to serve uniformity for uniformity sake and ignore what 
the States have done, the fact is that under the principles espoused by 
Thomas Jefferson States have only been acting as laboratories of 
democracy by experimenting. Fortunately--and thank goodness--the States 
have experimented because it is from these experiments and from this 
diversity that we are now able to assemble for the protection of the 
ERISA plan this group of patient protections.
  That is what is important about this. If we look at it to a certain 
extent that virtually all content is taken from various State laws, 
that is at least some form of congratulations to the States for their 
efforts. But they ought not to be rewarded by that great effort by the 
preemption where it is unnecessary.
  The framers of the legislation that is before us as well as those of 
the Frist-Breaux-Jeffords bill have really worked hard to try to find a 
way to balance this out. I commend them for that. Their work does not 
go unnoticed. I appreciate their efforts. But whether the standard is 
substantially equivalent as in the McCain-Kennedy Edwards bill or in 
the Frist-Breaux bill consistent with or in a compromise that is under 
consideration right now which says substantially compliant, the fact is 
the States are going to have to come to the Federal Government with the 
plans and say, ``Please let us out'' or they will not be able to get 
out from under the requirements of this legislation unless they are 
``substantially equivalent to.''
  ``Substantially equivalent to'' means the filings of these State 
protections would have to be made by their Governors to the health and 
human services agency, and they will have to find out whether or not 
the plans they are submitting are substantially equivalent--not whether 
they are good or bad but whether they are substantially equivalent.
  The theory is, if they are substantially equivalent, they are at 
least as good as or better. But I don't know why we should engage 
bureaucracies in the Federal Government to try to look over the 
shoulders of the States that have seriously considered each and every 
one of these protections.
  Why are we doing it? Because we want to solve the problem that 
exists. Why should we try to solve a problem where there is no problem?
  Under the Collins-Nelson effort, we give the States the opportunity 
to opt out if their plan is consistent with the purposes of this law.
  It seems to me that we just simply make it clear that the States can 
continue to experiment. It is easy to suggest that if you take away the 
incentive of the State to experiment, the experimentation will either 
wither or will at least stagnate.
  We want to continue to be sure that there are incentives for the 
States to continue to experiment because I suggest to you right now 
this is a dynamic process. Over the next several years, we are going to 
find some better patient protections, and we are more likely going to 
find those from the States than we are engaged in the body of this 
legislative Chamber trying to find those answers.
  I would prefer that experimentation continue. Then we can pick and 
choose the best of the class in each case.
  I spoke today with the Secretary of Health and Human Services, Tommy 
Thompson, also a former Governor, and I asked him whether he thought 
his agency could do this. He said simply that he doesn't think that it 
can.
  Let me add that I think that translates into, ``I can't unless I have 
a larger bureaucracy of several dozens or more Federal bureaucrats and 
more staff to look over and second-guess Governors and second-guess 
State legislatures.''
  I asked if that is necessary. Quite frankly, I don't believe that it 
is. And with the stroke of the pen this bill can be amended so that it 
won't become law so States can opt out and Governors will have the 
opportunity, as State legislatures, to decide what is the policy that 
will work within their State.
  We are looking for balance with this legislation. All of us want to 
balance being able to have the right kind of protection for patients 
and the availability and affordability of insurance. The last thing we 
need to do is to tip the balance one way or the other and end up with a 
more severe problem than we are trying to solve with this effort.
  I suggest to you that Thomas Jefferson might be looking at us at the 
moment. Furthermore, I think he would be pleased if we had a dual 
system that recognized that this Federal bill and these Federal 
protections would apply to the Federal plan, and we would allow the 
States to continue as they have to protect the people at that level and 
to serve to provide experimentation and better ideas along the way and 
permit us to allow them to continue as they have to protect the 
citizens.
  I truly believe that government, when it is functioning at the local 
level, will function best and certainly can function better in this 
area than we can function.
  We have already taken the step of exempting the Federal plans. Let us 
not now make a mistake of applying what we need to permit for those 
State plans where there is already much protection and probably even 
more protection.
  Just this week, Delaware added additional patient protections. It 
seems to me that we ought to continue to support that. We ought not to 
do anything that detours it or takes away the incentive for the States 
to continue to do as they have been doing.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Mr. President, I thank the Senator from Nebraska for his 
comments. He has stated the case extremely well. He has had the 
experience not only of being a Governor but of actually being a 
commissioner of insurance.
  I spent 5 years in State government overseeing a bureau of insurance. 
We have confidence in our State's abilities to protect the rights of 
insurance consumers. Indeed, the States have been way ahead of the 
Federal Government in this area.
  I have shown my colleagues the charts of the numerous laws that the 
States have passed during the past decade dealing with patients' 
rights. Each State has taken action on some of these consumer 
protections. They have done so without any mandate from Washington. 
They have done so because they want to make sure that in State 
regulated insurance plans these kinds of protections have been 
included.
  In fact, the States have passed over 1,100 laws and regulations 
dealing with patient protections. So this is not a case where the 
States have failed to act and the Federal Government has to come to the 
rescue. Rather, it is a case where the States have been far ahead of 
the Federal Government. We have been slow to provide these kinds of 
State protections to federally regulated plans under ERISA. That should 
be the primary focus of this legislation.

[[Page 12046]]

  Both the Senator from Nebraska and I support a strong Patients' Bill 
of Rights. We want to make sure, in writing this legislation, we do not 
wipe out the good work of State governments.
  Every single State has at least one law on the books dealing with 
portions of the McCain-Kennedy bill. But no State law is identical to 
the provisions in the McCain-Kennedy bill. States have dealt with these 
issues in different ways, depending on the negotiations between the 
State legislatures and their Governors, to meet the needs of that 
particular State. There is no need to impose a one-size-fits-all 
Federal mandate on the States when they are already doing a good job.
  When I was Commissioner of Professional and Financial Regulation in 
the State of Maine, we had a very active bureau of insurance that lead 
the way in proposing many reforms in insurance and health insurance 
that were enacted by our State legislature. In fact, I believe that 
Maine was the first State in the Nation to pass legislation requiring 
automatic continuity of coverage, renewability of insurance contracts. 
We did that way back this the 1980s. We were ahead of the Federal 
Government by many years in this area.
  Why should the State of Maine, which has been a leader in insurance 
regulation, have to go back and revisit its laws, recraft them, and 
rewrite them to meet the dictates of the McCain-Kennedy bill? That just 
does not make sense.
  I think we should respect the work that has been done by the States 
in this area by honoring the laws that already exist and are on the 
books. We can encourage those few States--and they are just a handful--
that have not acted in some area to do so, and then to bring their plan 
to the Federal Government or to tell us why they chose not to.
  Why does it make sense for a State such as Wyoming or Alaska, which 
has virtually no managed care, to have to adopt a host of new laws that 
are irrelevant to their insurance market?
  States have been strong in this area. They have worked hard to 
protect their health care consumers. I think we should be assisting 
them, providing incentives for them to act still further in this area, 
not preempting their good work.
  I yield the floor but reserve the remainder of the time on the 
Collins-Nelson amendment.
  The PRESIDING OFFICER. There is no time on this amendment.
  The Senator from Nebraska.
  Mr. NELSON of Nebraska. I again commend my colleague from Maine who 
has a wealth of experience in the regulation of insurance by having 
dealt with the professional agencies in her State. I suggest to you 
that she knows exactly of which she speaks, that the States have been 
active and have taken a very strong role in trying to protect the 
patients within their States.
  The legislatures, the Governors, and the regulators have all worked 
together to try to create an environment in which patients are 
protected. They have succeeded in doing that.
  The one missing piece, though, is not in what the States have failed 
to do but in what the Government today at the Federal level, in 
Congress, is now trying to do, and that is to cover the federally 
exempted plans.
  There would not be any discussion in this Chamber today about this 
bill if it had not been for the exemption granted in 1974, as a result 
of Congress' action to exempt certain plans from State laws.
  There is no criticism of what the States have or have not done. There 
isn't any suggestion that the States have not been active or that the 
States have not attempted to do a good job or that they have not done a 
good job.
  What we have is, overcoming an omission, taking care of something 
that has not been done; that is, applying these protections to the 
Federal laws that have been exempt from State law. That is exactly what 
this is about.
  I certainly want to praise, again, Senator Kennedy, who has been 
extraordinarily tolerant of those of us who have had something to say 
about his labor of love. He has been very tolerant. He has been very 
helpful. And he has been very suggestive about solutions along the way. 
I want him to know that I personally appreciate that.
  I am somewhat embarrassed to be suggesting that I might have some 
area of improvement, given the fact that he has worked on this for so 
long. It is a fact that I come fresh. I said this morning, I feel like 
somebody who came to the party late who now wants to rewrite the 
invitation.
  It seems to me that this bill is such that it can involve some 
additional improvement. This is an area where I think it could be 
greatly improved, by giving the States the opportunity to make their 
case--not that they need to be treated as though their laws are 
substantially equivalent--but to give them the opportunity to come in 
and say: We have done this. We chose not to do this in our State after 
carefully considering it. The Governor may have wanted it, but the 
legislature, in its infinite wisdom, chose not to do it, or vice versa. 
It works that way. That system ought to be continued.
  It will serve the people of our great Nation very well: The people of 
South Dakota, the people of Maine, the people of Nebraska, the people 
of Massachusetts, the people everywhere, because it has served this 
Nation so very well and has served the people so very well.
  That is a minor modification. I think it has major implications, but 
it is a minor modification to say that the Governors can certify, and 
they can seek to support that they have attempted to deal with these 
issues in their way, that they do not have to do it our way. That is 
the difference.
  I hope that my colleagues will see it that way and will find the 
capacity to continue to recognize that States have done, are doing, and 
can continue to do a good job. Even though there is an effort made to 
limit the amount of the preemption, I believe this preemption simply 
goes further than is necessary and further than we certainly would like 
to have it go.
  That is what the National Conference of State legislatures have said 
and other State organizations have said. They would prefer to have less 
preemption and a better recognition of their efforts and a recognition 
that they will continue to work to increase the level of patient 
protection.
  I yield to my colleague from Maine.
  The PRESIDING OFFICER (Mrs. Murray). The Senator from Maine.
  Ms. COLLINS. Madam President, I know we are about to vote shortly on 
another amendment.
  Let me just summarize this part of the debate--we will be resuming 
the debate after the vote--by quoting a letter from the National 
Association of Insurance Commissioners to Senator Nelson and myself. 
They raise exactly the point that Senator Nelson and I have raised:

       Members of the NAIC are also concerned about enforcement. 
     As you know as a former state regulator, if there is no 
     enforcement then there is no protection. States have 
     developed the infrastructure necessary to receive and process 
     consumer complaints in a timely fashion and ensure that 
     insurers comply with the laws. The federal government does 
     not have this capability, and [these] proposals [before the 
     Senate] do not provide any resources to federal agencies to 
     develop such capability. It has taken the Health Care 
     Financing Administration (HCFA) years to develop the 
     infrastructure required to enforce the Health Insurance 
     Portability and Accountability Act (HIPAA) which included 
     only six basic provisions that most states had already 
     enacted. The proposed patient protection bills are far more 
     complicated than HIPAA and will require considerable 
     oversight.

  If we pass the McCain-Kennedy bill without this amendment, we are 
holding forth a hollow promise to consumers.


                           Amendment No. 820

  The PRESIDING OFFICER. The hour of 5 o'clock has now arrived. Under 
the previous order, the question now is on agreeing to the McCain 
amendment No. 820.
  Mr. REID. Madam President, on behalf of Senator Daschle, this will be 
the last vote of the evening. There will be further debate on the two 
amendments now pending. The next vote will be at 9:45 a.m. tomorrow.
  I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?

[[Page 12047]]

  There appears to be a sufficient second. The clerk will call the 
roll.
  The legislative clerk called the roll.
  The result was announced--yeas 100, nays 0, as follows:

                      [Rollcall Vote No. 201 Leg.]

                               YEAS--100

     Akaka
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Cantwell
     Carnahan
     Carper
     Chafee
     Cleland
     Clinton
     Cochran
     Collins
     Conrad
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Domenici
     Dorgan
     Durbin
     Edwards
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham
     Gramm
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Helms
     Hollings
     Hutchinson
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stabenow
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Voinovich
     Warner
     Wellstone
     Wyden
  The amendment (No. 820) was agreed to.
  Mr. REID. I move to reconsider the vote.
  Mr. DURBIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. REID. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BREAUX. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 830

(Purpose: To modify provisions relating to the standard with respect to 
               the continued applicability of State law)

  Mr. BREAUX. Madam President, I ask for the reporting of an amendment 
that is at the desk.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Louisiana [Mr. Breaux], for himself, Mr. 
     Jeffords, Mr. Kennedy, Mr. McCain, and Mr. Edwards proposes 
     an amendment numbered 830.

  Mr. BREAUX. Madam President, I ask unanimous consent that the reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The text of the amendment is located in today's Record under 
``Amendments Submitted.'')
  Mr. BREAUX. Madam President, this amendment is offered on behalf of 
myself, Senator Jeffords, Senator Kennedy, and Senator Edwards as well. 
It attempts to deal with the question of whether States would be 
allowed to continue their programs dealing with Patients' Bill of 
Rights or will it be dealt with on a Federal level.
  We have tried to bring about an agreement between all of the parties 
and, to a large extent, we have been successful in the sense that we 
have taken ideas and concepts that have been brought before this body 
on previous occasions and implemented them in this amendment, a 
provision that I think makes a great deal of sense.
  A great deal of the credit should go to the staffs who have been 
negotiating this amendment for several days in order to bring it to the 
attention of our colleagues.
  Most of our colleagues recognize the need that States have addressed 
this problem in a fashion that guarantees to patients that they will 
have certain rights, and they should be allowed on a State level to run 
and manage these programs. Very few people would be suggesting the 
Federal Government knows the answers to all of these problems.
  My State of Louisiana, for example, is a State that has already 
enacted into law some 39 guarantees under our State program, 
guaranteeing to patients they will be protected when they deal with 
their insurance companies and their managed care companies. They can be 
assured that these rights, in fact, are in place.
  There are a number of other States that have done the same thing. The 
point is that while we in Washington are passing a national Patients' 
Bill of Rights, there are many States that have already done this. They 
were ahead of the Federal Government. They did it before us, and these 
States should be allowed to continue to run their State programs as 
they see fit.
  What we had suggested in the original Frist-Breaux-Jeffords 
legislation is that a State would not have their programs superseded by 
the Federal Government if their plans were consistent with the Federal 
statute.
  The Senator from Massachusetts, the Senator from North Carolina, and 
the Senator from Arizona took the approach that States could only allow 
their plans to continue if they were substantially equivalent with the 
Federal program.
  Our staffs have come up with a realistic compromise, a compromise 
between those two standards, something that I think makes a great deal 
of sense.
  The amendment at the desk tries to reach an agreement and compromise 
that recognizes the role of the States is very important. Our language 
simply says the State plan will not be superseded by the Federal 
Government when the State plan substantially complies with the patient 
protection plan we have written on the Federal level.
  Where do we get that language, ``substantially complies''? I think 
that is very important. ``Substantially complies'' is the test that we 
instituted when we passed the so-called SCHIP programs for children's 
health insurance. We basically said in that legislation the States 
would be able to carry on their State programs for insuring children if 
it substantially complied with the guidelines of the Federal 
Government. That language is in the existing law of this Government; it 
is being interpreted by HHS, and they interact with the States now on 
the ``substantially comply with'' test. They know how to handle it; 
they know what it means; they have interacted with the States on this 
basic test.
  We take that language from that legislation and incorporate it into 
what we are doing with the Patients' Bill of Rights. Senator Jeffords 
was a major author of that SCHIP program, and he will speak to this 
issue. We took the language, the test of ``substantially comply,'' and 
we now have that in place in this amendment.
  The decision on ``substantially comply,'' whether it is or is not 
being complied with, is a decision of the Secretary of Health and Human 
Services, who will look at the State plans and make a determination as 
to whether or not they substantially comply with the Federal statute. 
They have time lines within which they have to make that decision. I 
think that is appropriate so they do not just languish in Washington. 
They have a certain time period in which they have to make a decision 
on a request by the State to be in substantial compliance with the 
Federal statute.
  It is important to note we want the State to move in this direction. 
There has to be an enforcement mechanism. As in the original Frist-
Breaux-Jeffords bill and the original McCain-Kennedy-Edwards bill, if 
the States decide to do nothing, they will have to be in compliance 
with the Federal standards on a patients' protection bill of rights.
  The difference in our approach and my colleague from Maine and my 
colleague and friend from Nebraska is, if States decide to take a walk 
on this, if a State decides, we don't care what you are doing in 
Washington, folks, we are not going to pass any Patients' Bill of 
Rights in this State, and we are not listening to anything you are 
suggesting, their bill is defective in that there is no enforcement 
mechanism to get the States to move in a direction which is in the 
interests of everyone in this country.
  One defect in their amendment is that the only penalty the State can 
potentially suffer is to have grant money for this program terminated. 
Therefore, you could have a situation where

[[Page 12048]]

the State simply thumbs its nose at the concept of a national patient 
protection right and does not enact anything if they don't want to, and 
yet I think that would be a serious mistake.
  I think it is in the interests of this Nation to have a Patients' 
Bill of Rights that can be enforced, and what we have offered as a 
reasonable compromise between the Kennedy bill and the Frist-Breaux-
Jeffords bill I think is one that is balanced, it has been well thought 
out, and uses language that is already in Federal law as the 
``substantially comply'' test is already being enforced by the 
Secretary of Health and Human Services.
  I encourage Members, after having a chance to look at what we have 
offered, to be supportive of this compromise effort.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. JEFFORDS. I will follow up on the Senator's explanation of what 
we are trying to do, to make sure we have a less complicated situation 
with respect to who is in charge and with whom to deal.
  We have some problems, but the biggest problem, in what was the 
Kennedy-Kassebaum bill called HIPAA, was we made the mistake of using 
such language that it ended up that many of the States declined to do 
anything, in which case the Federal Government, under the bill, came in 
and tried to do it. That has not worked out. This comes from experience 
in trying to recognize the States will do good a job and want to do a 
good job and this is the best place to do it. We will do nothing that 
prevents that from continuing.
  Senator Collins has worked hard on this over the year to make sure we 
come up with something that will be signed into law and allow the 
President to sign it into law. The protections in the Frist-Breaux-
Jeffords Patients' Bill of Rights apply to all 170 million Americans 
covered by the private sector group health plans, individual health 
plans, and fully insured State and local government plans. It covers 
all of them.
  At the same time, our legislation recognizes the Federal Government 
does not have all the answers. States need to play the primary role in 
enforcing the bill's requirements with respect to health insurers. 
However, if a State does not have the law or does not adopt the law 
similar to the new Federal requirements, Federal fallback legislation 
will apply.
  Our amendment strikes a new compromise under scope between the Frist-
Breaux-Jeffords standard of ``consistent with'' and the much more 
preemptive standard in the McCain-Edwards-Kennedy bill that states laws 
``be substantially equivalent to'' and ``as effective as'' the new 
Federal patient protections. This leaves a lot of indefiniteness in the 
situation. The Breaux-Jeffords amendment uses a new standard that the 
State law would be certified if it ``substantially complies,'' meaning 
that the State law has the same or similar features as the patient 
protection requirements and has a similar effect.
  Also, we require that the Secretary give deference--try your best to 
make sure the State can do it if they want to do it --to the State's 
interpretation of the State law involved and the compliance of the law 
with the patient protection requirement. This amendment represents a 
true compromise. We believe it will make it less likely that the 
Federal Government will have to enforce these new standards and more 
likely that it will get signed into law.
  I think we have made a good improvement. I am hopeful it will be 
accepted. I urge its acceptance. I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. NICKLES. Madam President, I will make a couple of comments. I 
compliment my colleagues, Senator Collins and Senator Nelson, for 
offering an amendment which does recognize State roles in enforcement 
of insurance contracts. Unfortunately, I don't believe that is the case 
under the Breaux-Jeffords amendment. We will have to make a decision: 
Do we believe States should regulate insurance? Or should the Federal 
Government? Do we believe one size fits all?
  I understand there is a little change and there may be some 
improvement over the underlying bill, but the improvement is very 
small. The underlying bill, the McCain-Kennedy-Edwards bill, has 
language in it that says all these protections that we are getting 
ready to tell the States they have to do, the States have to have 
``substantially equivalent'' and ``as effective as'' the standards we 
are getting ready to pass in the bill.
  I think the Senator from Maine said there are 1,100 State 
protections--State protections dealing with ER, State protections 
dealing with OB/GYN, State protections dealing with clinical trials, 
and so on. Almost none of the States has identical protections as what 
we are getting ready to mandate.
  Unfortunately, the language that now is being talked about may be an 
improvement. Instead of ``substantially equivalent,'' it says 
``substantially compliant'' with the Federal standard. ``Substantially 
compliant'' was written under the SCHIP program, and that was, if they 
did this, they would get a pot of money. That is a little different 
scenario than coming up with: States, you must do this or we will 
regulate your State insurance--even though the States have always done 
it. Historically, the Federal Government has never regulated State 
insurance.
  Under the McCain-Kennedy bill or now under the Breaux-Jeffords 
substitute, you are still going to have the Federal Government telling 
the States, comply with what we are telling you substantially or else 
we will supersede your regulation and the Health Care Finance 
Administration is going to do it.
  There are a couple of problems with that. HFCA can't do it. Maybe 
nobody cares. Maybe we should just go ahead and pass this. We might 
just pass it and laugh at it because I absolutely know, with certainty, 
HFCA can't do it.
  The Secretary of HHS, Secretary Thompson, basically made that 
statement before the Finance Committee on June 19. HFCA is already 
overloaded. They haven't even enforced the Medicare rules we passed 
years ago. They are not even enforcing HIPAA that we passed several 
years ago.
  Under HIPAA that is the Kennedy-Kassebaum bill that deals with 
portability--there are five States that have not complied. We have 
testimony that HFCA is not enforcing that. They are supposed to. We 
passed a couple of other bills. Guess what. HFCA is still not enforcing 
those. There is one dealing with mental parity. They have never 
enforced it. They never have. They are well aware they are not 
enforcing it; that they are not compliant. We have records of that. I 
will submit a bunch of these for the Record tomorrow. HFCA cannot do 
it.
  Yet what are we doing? We are getting ready to say if it is not 
substantially compliant with the new Federal regulations, HCFA is going 
to come running at the charge and enforce these regulations, which they 
were not doing.
  The National Association of Insurance Commissioners basically says 
the same thing. These are State insurance commissioners who work on 
this issue full time. They are not part time. I should not say we are 
part-time Senators. As Senators, we are working part time on regulating 
insurance and we are getting ready to mandate a lot of things to the 
States they will not be able to do, or we are getting ready to say 
States do it the way we tell you to do it or the Federal Government is 
going to come charging in and take over. I want everyone to know that 
is what we are doing and even ``substantially compliant'' is going to 
have a State takeover.
  Here is one of their paragraphs. They say:

       Members of the National Association of Insurance 
     Commissioners are also concerned about enforcement. As you 
     know --

  And this letter is written to Senator Collins--

     as a former State regulator, if there is no enforcement, then 
     there is no protection. States have developed the 
     infrastructure necessary to receive and process consumer 
     complaints in a timely fashion and ensure that insurers 
     comply with the law. The Federal Government does not have 
     this capability and the proposals do not provide any

[[Page 12049]]

     resources to Federal agencies to develop such capability. It 
     is taking the Health Care Finance Administration years to 
     develop the infrastructure required to enforce the health 
     insurance portability and accountability act, HIPAA, which 
     included only 6 basic provisions that most States already had 
     enacted. The proposed patient protection bills are far more 
     complicated than HIPAA, and will require considerable 
     oversight.

  HIPAA had a few patient protections that almost all States already 
had, a few States still do not have, and HFCA has yet to really enforce 
those protections. Now we are going to give dozens of protections and 
have HFCA determine whether or not the States are substantially 
compliant with our new protections.
  I will give an example. In the State of Delaware, they are in the 
process of passing a patient protection bill. They have an emergency 
room provision. In the emergency room provision that the State of 
Delaware is passing, they don't have poststabilization care included in 
their provision. We do, under this bill. This bill requires ambulance 
coverage. Guess what. The State of Delaware did not include ambulance, 
for whatever reason. So we are going to tell the State of Delaware, a 
bureaucrat at HFCA is going to say: State of Delaware, you did not do 
it good enough. Your legislature is going to have to go back, pass a 
bill, have the Governor sign it, have some expansion to make sure that 
your ER provision is as good as the one we are getting ready to 
mandate.
  I could go on and on.
  There is an OB/GYN patient protection that basically has unlimited 
access to OB/GYN and gynecologists. Great. Guess what. The protection 
we have given to beneficiaries, patients in the Federal Employees 
Health Benefits Plan, gives one visit. It is not nearly as aggressive.
  As a matter of fact, that points out something that maybe a lot of 
people have missed about all these patient protections. I have heard 
countless people say we want these protections applied to all 
Americans. I will inform my colleagues, we did not apply them to 
Federal employees. We do not provide these protections we are getting 
ready to mandate on every private sector plan in America. We forgot to 
include Federal employees. We forgot to include Medicare beneficiaries. 
We forgot to include low-income people such as those on Medicaid. We 
forgot to include people who work at the Department of Defense. We 
forgot to include veterans. We forgot to include Indians, who are under 
Indian Health Care.
  All these patient protections--everybody said we want those to apply 
to everybody. They apply to the private sector, but we did not include 
the public sector. Did we just sort of forget that, or are we afraid 
maybe that would cost too much money? We are going to give all these 
great patient protections and basically have a Federal takeover of 
State-regulated insurance unless the States are substantially compliant 
with it or, in other words, States, you do as we tell you or the 
Federal Government is going to take charge. Can Federal employees sue 
the Federal Government? The answer is no. Can a military officer who 
happens to be serving overseas, or maybe in the United States, and they 
have something go wrong and they have poor care, can they sue the 
Federal Government? The answer is no.
  Are they entitled to the patient protections that are being mandated 
on every private sector plan in America? The answer is no.
  So there are some things that are really wrong. I think one of the 
things that is wrong is saying we are going to have the one-size-fits-
all Federal Government supersede the States. States, you are 
substantially compliant with what we tell you to do or else we are 
going to take over.
  I have had the pleasure of chairing the conference last year, where 
we negotiated patient protections. I negotiated them with my friend and 
colleague from Massachusetts and other Democrats. We came up with a 
basic agreement on most of the patient protections. But we never agreed 
whether or not they should supersede the patient protection laws that 
are in the States. I would never agree with that and I still will not 
agree with it.
  For whatever reason, I fail to see, when you have 44 States, as the 
Senator from Maine has shown, that have ER protections in their 
States--I fail to see that we can write an emergency room provision 
that is so much better than every State, that we know best what should 
be in Maine or Oklahoma or the State of Washington or in Massachusetts, 
what should be in the ER provision in those States.
  I really do not like the idea of having a bureaucrat at HFCA 
determining whether or not those laws are substantially compliant and 
if that bureaucrat determines they are not substantially compliant, 
then they have to rewrite their law.
  There are legislators who were elected in the various States. The 
insurance commissioners work with these laws and the application of 
those laws and the enforcement of the laws day in and day out. I doubt 
we have the infinite wisdom, when we are coming up with mandated 
provisions, to know we should supersede all those States.
  I do not doubt there are a lot of patient protections in the States 
that do a much better job than what we have done on the Federal level. 
I don't doubt there are State protections that are not as aggressive 
and/or not as expensive as that with which we are getting ready to 
mandate that they be in substantial compliance.
  Again, I urge my colleagues to support the Nelson-Collins amendment. 
I think it is an excellent amendment. It is one that has been well 
thought out. It is one that is supported by two of our colleagues who 
had enormous experience in the insurance field. Both Senator Collins 
and Senator Nelson worked as insurance commissioners in their States. 
They worked at those jobs for years. They know what they are talking 
about. They know the Federal Government cannot enforce it. They know 
the Federal Government should not regulate insurance within the States.
  Unfortunately, that is what we are getting ready to do. So this is a 
most important amendment, and I urge my colleagues to use a little 
common sense. If we end up passing this amendment and, heaven forbid, 
should it become law, I will just make a little prediction. Two years 
from now we will be back here saying you know what, the States are not 
in compliance. They were not substantially compliant, but HFCA could 
not tell them that. Or if HCFA told them that, they said they still 
couldn't be in compliance and so you have a lot of States that are 
theoretically not in compliance. But the Federal Government couldn't 
really regulate it anyway. So did they get any additional protection? 
No. They have a verbal assurance: Here is a bill; you are supposed to 
have this protection. But it is not regulated by the State and it is 
not enforced by the Federal Government because the Federal Government 
could not do it.
  Tommy Thompson, Secretary of HHS, and HHS enforcement, they have 
thousands of employees. They spend billions of dollars and they still 
can't do it.
  They still can't do it. They couldn't do it if we gave it to them. I 
hope we don't give it to them. You didn't actually extend patient 
protection. What you give is kind of a false protection. It is not 
real. You have a whole lot of confusion. Oh, wait a minute. The State 
has been doing this for 40 or 50 years. Now the Federal Government is 
supposed to be doing it, and they can't do it. There is no real patient 
protection in the first place. Maybe it makes politicians feel good if 
we are telling the States to do this. I sure hope they do it. What is 
the remedy if they don't do it? The Federal Government is going to take 
over. That is not a very good remedy if the Federal Government can't do 
it, especially since the Federal Government should not do it.
  I want to again compliment my friends and colleagues, Senator Collins 
and Senator Nelson, for offering an outstanding amendment.
  I urge my colleagues to vote no, regrettably, on the Breaux-Jeffords 
amendment.
  I think ``substantially compliant'' may be a tad better than 
``substantially equivalent,'' but not much. It is still a Federal 
takeover. It still has

[[Page 12050]]

Federal enforcement. It still has HCFA making a determination whether 
or not you are substantially compliant, and that is not a good 
solution.
  I urge my colleagues to support the Collins-Nelson amendment. That 
would be a giant step, and one which I might mention that Governors 
around the Nation are going to wake up to. They have been asleep. But 
Governors around the Nation, Democrats and Republicans, who want to 
maintain State control and regulation over insurance are going to wake 
up to what we are doing one of these days and they are going to be 
coming up saying: What are you doing? Congress, you can't regulate 
insurance. You haven't been doing that. You don't know how to do it. 
What in the world do you think you are doing?
  We are going to hear from them. I would venture to say that 
Democratic as well as Republican Governors are going to be outraged 
should this provision invade the scope, preempting the State, and 
mandating to the States that the Federal Government knows best when it 
comes to patient protection--and not even giving real credibility to 
what the States have already done; not giving them a grandfather. They 
have already enacted legislation dealing with those particular patient 
protections. The Collins-Nelson amendment grandfathers States that have 
done patient protections. We should recognize what they are doing and 
give them credit for it--not try to supersede it with a Government-
knows-best solution.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa is recognized.
  Mr. GRASSLEY. Madam President, I rise in support of the Collins-
Nelson amendment. I thank them for their foresight and pointing out to 
this entire body that Washington doesn't always know best. In this 
particular case, they are not only saying Washington does not always 
know best but Washington is incapable of doing the job that this bill 
gives them to do, even if Washington knew best.
  This is a very important amendment. The people who are proposing this 
bill ought to look at the overburdened responsibilities that the Health 
Care Financing Administration already has and it is not able to do.
  It is from that point that I want to speak about my support for the 
Collins-Nelson amendment.
  I want to make very clear that, as most of my colleagues, I believe 
that any patient protection we pass must be meaningful and enforceable. 
But the provisions that the Collins-Nelson amendment deals with, and 
that they strike and change, are the provisions of the bill that 
delegates most of its new enforcement responsibilities to an agency 
that is one of the most overburdened bureaucracies in Washington, DC.
  The Washington bureaucrats who work there are not going to be able to 
take the action necessary to give patients the protections that are 
determined by the authors of this amendment they ought to have, and 
that we all would agree ought to be there. But it can be done under 
State supervision, and it can be done much better and much more 
expeditiously than it can be done through the Health Care Financing 
Administration.
  It is the difference between going to Des Moines, IA, to get the 
protections or coming to the Baltimore headquarters of the Health Care 
Financing Administration--because, historically, this agency has been 
already slow in publishing regulations, and it lacks in its enforcement 
of existing Federal laws that we passed putting responsibilities on its 
back.
  Of course, I have high hopes that our new Secretary of Health and 
Human Services, Governor Thompson, and the new Administrator of the 
Health Care Financing Administration, Tom Scully, will turn things 
around. While I hope that and I believe that, I don't expect a radical 
change is going to be necessary for the Health Care Financing 
Administration to carry out the responsibilities that the authors of 
this legislation want them to do, nor that it will be radical enough to 
change overnight to get the job done of administering this portion of 
their bill the way it should be.
  At this time, shouldering the Health Care Financing Administration 
with a task of enforcing broad new Federal patient protections is 
clearly inappropriate.
  Our new Secretary and Administrator have walked into myriad backlog 
regulations, hundreds of unanswered letters, and burdensome internal 
policies that hinder already efficient and effective work that the 
taxpayers expect to be done by this agency.
  Just last week at a hearing we were having on agency reforms before 
the Senate Finance Committee that deals with this issue, we had 
Secretary Thompson and Administrator Scully pleading with us to keep 
new tasks away from the agency so that the catchup work on these 
existing responsibilities can be done.
  I quote Secretary Thompson on that very point. He used the new name, 
the Center for Medicare Services. He said:

       The Center for Medicare Services right now is overloaded 
     with HIPAA and with the privacy rules and regulations, with 
     Medicare and Medicaid, and SCHIP, and so on.

  Rather than listing all of the other responsibilities, he said:

       I do not think we can really take on any more 
     responsibilities.

  That is the Secretary who has the responsibility of carrying out the 
laws that we already passed, along with the regulations that have to be 
written to enforce those laws. He would like to get those out of the 
way before he gets any additional new responsibilities.
  I want to take just a few minutes to share some important examples of 
how this agency in the past has been unable to meet its existing 
obligations.
  In 1996, Congress passed the Health Insurance Portability and 
Accountability Act. That is the act that Secretary Thompson referred to 
as HIPAA. We passed it. To date, the agency is over 3 years behind on 
implementing major provisions of that 1996 act.
  The agency is almost 2 years behind in implementing a fee schedule 
for ambulance services that was mandated in the Balanced Budget Act of 
1997. There were several more mandates in the Balanced Budget Act of 
1997 that have had no regulations published at all, such as how 
regional carriers will process clinical laboratory claims, and how 
durable medical equipment suppliers must comply with the surety bond 
requirements.
  And get this: In 1986, Congress passed very sweeping legislation to 
make sure that the delivery of quality care in the nursing homes of 
America, and the agency took 8 years, from the date of enactment, to 
publish the enforcement regulations on the nursing home laws.
  Even more egregious, there are no final regulations published for the 
Medicaid Drug Rebate Program, a program enacted into law over 10 years 
ago.
  So the list goes on and on. I hope you can see this is an agency that 
is already overloaded and is seriously behind on many Federal mandates 
Congress has put in place over the last decade; and in the case of 
nursing home laws, a decade and a half ago.
  We cannot expect, nor should we expect, that this agency is capable 
of enforcing patients' protections under this legislation.
  The Secretary of Health and Human Services has already told us they 
are working 24/7 to improve operations and responsiveness for their 
existing programs, such as Medicare and Medicaid.
  In the end, it is the patient who is going to suffer when patient 
protection regulations get delayed or are improperly enforced or, in 
some instances, such as the nursing home laws, for 8 years, not 
enforced at all.
  That is exactly what will happen under the Kennedy-McCain bill where 
the sole responsibility of enforcing and implementing patient 
protection certification falls on the agency that formerly was called 
the Health Care Financing Administration.
  I cannot support the Kennedy-McCain bill with these meaningless 
enforcement provisions. In fact, it would be irresponsible to do so 
when the agency itself has made very clear to the public that they will 
not be able to handle any new patient protection mandates.

[[Page 12051]]

  I do not presume that Senator Kennedy and Senator McCain meant for 
this provision of their legislation to be meaningless in its 
enforcement. But, as a practical matter, if HCFA is already overloaded, 
and if they are already not writing the regulations for legislation 
that has been passed over the past 10 years, the ultimate result of 
passing this bill this way--putting this responsibility on the Health 
Care Financing Administration--is that it will not be enforced any more 
than the nursing home laws, which as I said were left unenforced for 8 
years.
  So I have come to the conclusion that the Collins-Nelson amendment is 
the right thing to do. Why fool the American people? Washington 
bureaucrats do not always know best. And we, as Congressmen, if we have 
not lost touch with the grassroots of America, and if we exercise a 
little common sense, we ought to be able to show to a majority of this 
body--and for a majority of this body to understand--that if HCFA 
cannot carry out the law, if they have not carried out a lot of 
mandates of the Congress of the United States in the past decade, why 
would you put more responsibilities on their back? If you want patient 
protection, then let it be done where it can be done, and that is in 
those States that have meaningful enforcement laws already for patient 
protection, because this amendment allows States to maintain the hard-
fought patient protections they have put in place for their own 
citizens. And the amendment encourages States to develop even stronger 
protections.
  So I urge my colleagues to support this approach, one that recognizes 
the vital role that States play in tailoring patient protections to 
best meet the needs of their respective citizens.
  I thank the Chair.
  The PRESIDING OFFICER (Mr. Dayton). The Senator from Wyoming.
  Mr. ENZI. Thank you, Mr. President.
  I appreciate the other side allowing us this opportunity to state our 
case at the beginning because of some important considerations we have.
  I particularly congratulate the Senator from Maine, Susan Collins, 
for her tremendous efforts on this entire Patients' Bill of Rights. On 
any issue in which she gets involved, you will find that she studies it 
to a greater depth than anyone. She does additional research; she gets 
all of the help she can; she gets to the point where she understands 
what she is doing; and then she works with others to make it better. It 
does not happen a lot around here. But she is one dedicated Senator who 
is always willing to look at a better idea.
  She has teamed up, in this particular instance, with Senator Nelson, 
a neighbor of mine, from Nebraska. One of the reasons this is an 
interesting team is that they have both been State insurance 
commissioners. They both understand the State side of this. They both 
understand what is in the bill. I would not want to imply that 
everybody does not, but these are two people who absolutely understand 
what is going on in the bill. They have teamed up and said there is a 
way that we can provide the protections, that we can get the States 
involved, and that we can enlarge the scope. They put it together. I 
congratulate them for their tremendous efforts.
  For 2 weeks, I have been saying that on 80 percent of this bill both 
sides agree. On eighty percent of it we agree. It is that other 20 
percent where there are some philosophical differences.
  I have seen--both in legislating that I did before I got to the 
Senate and since I have arrived--that one of the keys to passing 
legislation is to put a good title on the bill. That is something we 
agree on 100 percent: The Patients' Bill of Rights is a great title. 
What you do with that can be an abuse of the title. And on 20 percent 
of this bill, there is an abuse of that title.
  There are some substantial changes that need to be made. One of those 
is, who is going to administer it? There are two very different 
philosophies involved in the administration of this bill. One side 
says: Washington knows best. Bring it back to Washington. If the 
bureaucracy isn't big enough now, we will make it big enough. And we 
will put enough dollars in it that we will be able to solve it.
  For anybody in America who has ever had to work with the Washington 
bureaucracy, picture the difference between Washington and your local 
and State governments.
  When you call Washington, have you ever gotten to talk to the same 
person twice? That means that when you call in today with a problem 
that you have to explain, and then when they do not take care of it--
because they really do not have the involvement that they do if they 
know you--you have to call them back. Well, you would not know by 
tomorrow; you would not know by next week. You would be lucky to know 
by next month. But next month, when you are sure Washington has not 
solved your problem, you have to call again. And I guarantee you, you 
will talk to a different person who will say: What is your problem? And 
after you have gone through all of the explanation again, they will 
say: We will get back to you on it. And you are going to spend another 
month getting back to them on it.
  Contrast that with State and local calls that you have had to make. 
You can almost always talk to the same person again, so the problem 
that you discussed yesterday they still remember today. And you do not 
have to wait a month for the decision because they are doing the job 
efficiently.
  There are various ranges of bureaucracies and efficiencies in 
Washington, also. This bill has chosen to give the jurisdiction to that 
agency that is doing the poorest job. Don't believe me. Don't believe 
the debate. What I ask you to do is call your doctor and ask them what 
they think of HCFA. Call it HCFA; it is the Health Care Financing 
Administration. But they call it HCFA because that is a four-letter 
cuss word to them. You will find that your doctor thinks HCFA is a cuss 
word. That is how impressed they are with the administration of this 
agency, the one to which we are about to turn over all of the 
jurisdiction for the problems you have worked with your State on 
before. We are going to take what the States have been doing, and doing 
well for over 50 years, where there are people you can talk to every 
day, and we are going to say, no, you are not doing a good enough job 
because there is some bureaucrat in Washington who decided that they 
know better and they want to handle your problem.
  Find out how efficient HCFA is. I am certain under the new 
administration that it will be more effective, but it will be a long 
time recovering from the problems it has right now. Yes, we can throw 
more money at it. Is that where you want your tax money to go?
  Right now, your States are paying for that. We are going to duplicate 
and supersede, without saving you a dime and in fact costing you more.
  Does the Federal Government do a better job? One of the things I have 
been working on since I have been here is OSHA. OSHA allows two 
different processes. One is State plan States. That is where the States 
do the work. The other is the Federal plan. That is where the Federal 
Government takes care. I can tell you that the accidents are less in 
the State plan States for just the reasons I mentioned before. A 
bureaucracy operating out of Washington, trying to handle the whole 
country as a one-size-fits-all problem can't do the same job as the 
people at home in your State.
  What are some of the things they have to handle? I will tell you, the 
new reason that HCFA is going to become a bigger cuss word is called 
HIPAA. This has to do with portability of insurance. The change in some 
of my phone calls this week has been calls from doctors and hospitals. 
They weren't concerned about a Patients' Bill of Rights yet. They were 
concerned about the HIPAA privacy rules. Ask your doctors and your 
hospitals what they think about that.
  Privacy is important to all of us, but they have managed to muff that 
one. The same agency that people are calling me and complaining about 
right now is related to where we are going to turn over, under the 
opposing amendment, all of the workload.
  This week and last week you heard about a number of amendments. One 
of the things I am very proud of is that

[[Page 12052]]

all of those amendments were different solutions that needed to be done 
on this 20 percent of the bill where there is a problem, different 
approaches. It was not the same amendment time after time after time, 
which we have seen here before. It was different approaches to 
different problems in the bill. There are about six problems that we 
have to get solved, that we have to get some consensus on in order to 
have a good bill, one that matches up to the title of Patients' Bill of 
Rights.
  What you are seeing here, of course, is us trying to solve in the 
committee of the whole what could have been done in committee. You are 
seeing more amendments here than what you might see on the floor with 
the bill. But that is because normally we have the committee meetings 
where we get to put forward lots of amendments in a smaller group and, 
therefore, be able to get them decided with less discussion because 
there are fewer people.
  I mentioned some phone calls. I have to add that I am starting to get 
some other phone calls now which are from my school districts, 
wondering how this bill is going to affect them. They know we just 
finished the education bill and that there might be some more money 
under the education bill for them. They are asking: But we provide 
insurance to our employees; is this going to suck up all that money, 
and how liable will we be?
  Again, I congratulate the Senator from Maine and the Senator from 
Nebraska for the tremendous work they have done in coming up with a 
solution--one we talked about last year--on which there was a lot of 
consensus. There was a lot more give, a lot more understanding, and 
even people supporting this one who seem to think HCFA is a better 
solution now.
  One of the groups supporting the Collins amendment that I want to 
point out is the National Conference of State Legislatures. They 
recognize the value of the State handling these insurance problems.
  I ask unanimous consent that there be printed in the Record after my 
remarks a letter from the National Conference of State Legislatures.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See Exhibit 1.)
  Mr. ENZI. Among the handful of principles that are fundamental to any 
true protection for health care consumers, probably the most important 
is allowing States to continue in their role as the primary regulator 
of health insurance. It is because of my commitment to preserving 
existing consumer protections that I am glad to be a cosponsor of the 
Collins-Nelson amendment. Their amendment recognizes a principle that 
has been recognized and respected for more than 50 years.
  In 1945, Congress passed the McCarran-Ferguson Act, a clear 
acknowledgment by the Federal Government that States are indeed the 
most appropriate regulators of health insurance. It was acknowledged 
that States are better able to understand their consumers' needs and 
concerns. It was determined that States are more responsive, more 
effective enforcers of consumer protections.
  As recently as last year, this fact was reaffirmed by the General 
Accounting Office. GAO testified before the Health, Education, Labor, 
and Pensions Committee saying:

       In brief, we found that many states have responded to 
     managed care consumers' concerns about access to health care 
     and information disclosure. However, they often differ in 
     their specific approaches, in scope and in form.

  Wyoming has its own unique set of health care needs and concerns. 
Every State does. For example, despite our elevation, we don't need the 
mandate regarding skin cancer that Florida has on the books. My 
favorite illustration of just how crazy a nationalized system of health 
care mandates would be comes from my own time in the Wyoming 
Legislature. It is about a mandate I voted for and still support today. 
Unlike Massachusetts or California, for example, in Wyoming we have few 
health care providers, and their numbers virtually dry up as you head 
out of town. We don't have a single city with competing hospitals. So 
we passed an ``any willing provider'' law that requires health plans to 
contract with any provider in Wyoming who is willing to do so.
  While that may sound strange to my ears in any other context, it was 
the right thing for Wyoming to do. But I know it is not the right thing 
for Massachusetts or California. I wouldn't dream of asking them to 
shoulder the same kind of mandate for our sake when we can simply, 
responsibly apply it within our borders. That is what States have been 
doing with the 1,100 laws they have passed dealing with patients' bills 
of rights.
  What is even more alarming to me is that Wyoming has opted not to 
enact health care laws that specifically relate to HMOs. But that is 
because there are ostensibly no HMOs in Wyoming. There is one which is 
very small. It is operated by a group of doctors who live in town, not 
a nameless, faceless insurance company. Yet the sponsors of the 
underlying bill insist they know what is best for everybody. So they 
want to require the State of Wyoming to enact and actively enforce--
that is what the opposing amendment does, enact and actively enforce--
what they say is the right thing for our State. They want to regulate 
under 15 new laws a style of health insurance that doesn't even exist 
in our State.
  It requires States to forsake laws that they have already passed 
dealing with patient protections included in the bill, if they are not 
the same as the new Federal standard. The technical language in the 
bill reads ``substantially equivalent,'' ``does not prevent the 
application of,'' and under the process of certifying these facts with 
the Secretary of Health and Human Services, the State will have to 
prove that their laws are ``substantially equivalent'' or some other 
variation of words. There are a whole bunch of words that could be used 
there.
  There could be a whole series of amendments to undermine the Collins 
amendment. This is one of them.
  The proponents of this language--whichever version you care to look 
at, except for Collins--say that it won't undo existing State laws that 
are essentially comparable, but that isn't what their bill requires. 
Under either amendment--the bill or the Breaux-Jeffords amendment--they 
are going to force States to change laws that they have already 
reviewed, that they believe already work in their States.
  Is it that the proponents aren't overly concerned with the 
implementation of the law versus being able to say that their bill 
meets the political test of covering all Americans, regardless of 
existing, meaningful protections that State legislatures have enacted? 
If the laws just have to be comparable, why don't they use that phrase? 
I will get into this issue in more detail as the debate proceeds. I 
believe we can compromise. I don't think this is the compromise. I like 
the language of the Collins amendment. The only hard proof that we have 
right now is that States are, by and large, good regulators, while the 
Federal Government has done a lousy job. The General Accounting Office 
has been reporting to us that since we passed the Health Insurance 
Portability and Accountability Act in 1996. And that is the ``consumer 
protection enforcement'' mechanism around which the bill before us is 
written.
  Wyoming currently requires that the plans provide information to 
patients about coverage, copays and so on, much as we would do in this 
bill; a ban on gag clauses between doctors and patients; and an 
internal appeals process to dispute denied claims. I am hopeful that 
the State will soon enact an external appeals process, too. This is a 
list of patient protections that a person in any kind of health plan 
needs, which is why the State has acted. But requiring Wyoming to enact 
a series of additional laws that don't have any bearing on consumers in 
our State is an unbelievable waste of the citizens' legislature's time 
and resources.
  As consumers, we should be downright angry at how some of our elected 
officials are responding to our concerns about the quality of our 
health care and the alarming problem of the uninsured in this country.
  We are talking about driving up the price of insurance and driving 
people

[[Page 12053]]

out of the insurance market. I keep mentioning that insurance in this 
country is provided on a voluntary basis. We have had amendments that 
dealt with small businesses to see if they could get any kind of 
relief. Most of them are strained to the maximum. The smaller your 
business, the higher your potential risk, so the higher the rates you 
pay. Insurance is risk protection. We discriminate against the smaller 
businesses on rates because it is actuarially more difficult to 
calculate that.
  Under this bill, we have had some opportunities to provide some 
relief to those small businessmen. It hasn't happened. They have been 
ignored. I will be bringing an amendment that will deal with the large 
businesses. I almost exclusively work with small businesses. Tomorrow, 
I will be bringing one that deals with the big self-insured, self-
administered companies to see if there is going to be any hope of 
relief for those people who provide the best insurance in this country.
  Mr. President, we will be committing two fouls against consumers if 
we do not adopt the Collins-Nelson amendment. The first would be to 
eliminate all meaningful patient protections that are not exactly like 
the Federal law. Second would be to put in enforcement responsibilities 
with the agency that has already said it can't do the job. Add to that 
the third foul that the rest of the bill prices millions of people out 
of health insurance and we have done anything but hit a home run for 
patients.
  I urge my colleagues to consider the valuable experience and wisdom 
of the amendment sponsors, as well as the urging of the National 
Council of State Legislatures. Think about the divergence of 
philosophy. Do you want your health care to be one size fits all in 
Washington, determined by HIPAA and HCFA, or do you still want your 
States to be involved? Do you want your States to have the control? Do 
you want your States to be able to continue the kind of service they 
have been providing through your State legislatures that can make 
decisions based on your State and your needs?
  I yield the floor.

                               Exhibit 1

                                            National Conference of


                                           State Legislatures,

                                    Washington, DC, June 27, 2001.
     Hon. Susan Collins,
     U.S. Senate,
     Washington, DC.
     Hon. Ben Nelson,
     U.S. Senate,
     Washington, DC.
       Dear Senator Collins and Senator Nelson: On behalf of the 
     National Conference of State Legislatures, I would like to 
     take this opportunity to commend you for authoring an 
     amendment to S. 1052, the pending Patients' Bill of Rights 
     legislation. Your amendment recognizes the important work 
     states have done regarding the regulation of managed care 
     entities and supports the continued role of states in the 
     regulation of health insurance.
       The amendment substantially addresses concerns we expressed 
     in our recent letter to you and your colleagues. In that 
     letter we urged you to: (1) grandfather existing state 
     patient and provider protection laws; and (2) provide a 
     transition period between the enactment of federal 
     legislation and the effective date of the Act to provide each 
     state an opportunity to preserve their authority to regulate 
     managed care entities. This amendment also addresses our 
     concerns regarding the adequacy of the federal infrastructure 
     to enforce the patient and provider protections established 
     in the bill. Finally, it is important to emphasize that the 
     proposed amendment recognizes that insurance markets differ 
     among the states and a ``one size fits all'' approach may 
     have adverse results among states and within regions of a 
     state. This amendment permits a state to certify adverse 
     impact and head off disruption in its insurance market.
       NCSL supports this amendment. States are best situated to 
     provide oversight and enforcement of the patient and provider 
     protections established in the legislation. The record of the 
     states is strong. We are looking for an approach that 
     supports the traditional role of states in the regulation of 
     insurance and that recognizes the differences in state 
     insurance markets and provides a mechanism for states to 
     protect those markets.
       NCSL supports passage of Patients' Bill of Rights 
     legislation that makes a promise that can be fulfilled. We 
     believe state oversight and enforcement is an integral part 
     of ensuring fulfillment of the promise and we look forward to 
     continuing to work with you to develop legislation that will 
     improve the quality of health care without adversely 
     affecting access to care.
           Sincerely,

                                               Garnet Coleman,

                                   Texas House of Representatives,
                                  Chairman, NCSL Health Committee.

  The PRESIDING OFFICER. The Senator from Maine is recognized.
  Ms. COLLINS. Mr. President, I will be brief because I see the Senator 
from Massachusetts also desires to speak. First, I thank my colleague 
and friend from Wyoming for his extraordinarily generous comments and 
also for his excellent statement. As a former State senator, he has a 
great deal of experience in this area. As a businessman, he knows what 
it is to provide health insurance and to try to provide good benefits 
for his employees. I am grateful for his support.
  Very briefly, I want to respond to a couple of comments that have 
been made tonight. The former chairman of the Finance Committee, 
Senator Grassley, talked about the burden on HCFA. I think this is very 
important because the McCain-Kennedy bill--and, unfortunately, the 
amendment offered by my friend from Louisiana continues this problem--
is expecting that HCFA is somehow going to be able to step into the 
role of insurance regulator, which is something the States have 
performed well for more than 50 years.
  Look at what would be required under the Breaux-Jeffords amendment. 
Let me read you one part of the burden on the Secretary under the 
provisions called ``Petition Process'':

       Effective on the date on which the provisions of this Act 
     become effective, as provided for in section 401, a group 
     health plan, health insurance issuer, participant, 
     beneficiary, or enrollee may submit a petition to the 
     Secretary for an advisory opinion as to whether or not a 
     standard or requirement under a State law applicable to the 
     plan, issuer, participant, beneficiary, or enrollee that is 
     not the subject of a certification under this subsection, is 
     superseded under subsection (a)(1) because such standard or 
     requirement prevents the application of a requirement of this 
     title.

  In other words, this sets up a process by which the Secretary of HHS 
is going to be inundated with requests for advisory opinions from 
anyone who is covered under a State-regulated insurance plan who wants 
to know whether or not a certain provision of that particular State's 
laws is superseded by the Federal law. This is just not workable. There 
is just no way that HCFA is going to be able to take over these 
responsibilities.
  My friend from Louisiana drew the analogy with the State Children's 
Insurance Plans. I am very proud of that program. I was one of the 
original cosponsors of the legislation that the Senator from 
Massachusetts and the Senator from Utah proposed to create this 
important program to expand access to insurance to low-income children. 
But these are not analogous situations. We are not talking about a 
federally funded health program. We are not talking about that. We are 
talking about the regulation of health insurance.
  The Federal Government is not providing funds for this. The Federal 
Government is not involved in this traditionally. This is entirely 
different from pointing to a Federal program that happens to be 
administered by the States but which is federally funded where, of 
course, it makes sense for the Federal Government to set standards. So 
it is two entirely different matters.
  Finally, I make the point that one should look--and I encourage the 
Senator from Louisiana to look--at the provisions of his State's laws 
on consumer and patient protections. They are not identical to the 
standards in the McCain-Kennedy bill. For example, when you look at the 
Louisiana law dealing with emergency room access, we find that 
Louisiana has a law, but that it is crafted in a different way than the 
McCain-Kennedy bill. So now we have to decide, is it substantially 
compliant with the provisions of the bill, which would be the standard 
the Senator from Louisiana would have? It differs in some respects--on 
reimbursements, on how much is covered, on poststabilization care.
  If the State of Louisiana crafted a law dealing with emergency room 
access, as they have, why should we second-guess that law? Why should 
we substitute our judgment for the judgment of the good people of the 
State of Louisiana?

[[Page 12054]]

  I remind my colleagues that the States have not fallen down on the 
job. There are more than 1,100 patient protections out there far beyond 
the confines of this bill.
  Unfortunately, while the Breaux-Jeffords amendment is an improvement 
over the underlying bill, it is still fatally flawed. I urge my 
colleagues to vote no on the Breaux-Jeffords amendment and yes on the 
Collins-Nelson amendment.
  I thank the Chair, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I have great respect for my friend and 
colleague from Maine, Senator Collins. Senator Collins is a member of 
our Health, Education, Labor, and Pensions Committee. As always, she 
has demonstrated tonight that she is well informed, articulate, and 
persuasive--I hope in this instance not too persuasive--to her point of 
view.
  As always, she spends a great deal of time thinking through these 
issues. I commend her for her presentation, and I respect her for her 
position, although it is a position that I cannot support, and I will 
urge my colleagues to support the alternative, which is the Breaux-
Jeffords amendment.
  We have tried over time, although we do not receive great 
acknowledgment for it, to find ways we can work with the 
administration. We have had four or five major issues. The 
administration really did not take a position about the tax incentives 
in the legislation, although many of us saw that the tax incentives in 
the legislation, which many of us supported, would have resulted in the 
end of this legislation for reasons that have been pointed out earlier. 
The tax-raising power lies with the House of Representatives, and not 
with the Senate.
  Second, on the issue of responsibility of employers, the President 
made very clear in his statement that he wanted employers who were 
exercising their judgment in ways HMOs normally do--to bear 
responsibility if there is injury and harm to patients.
  We have been wrestling with that definition for several days. We will 
have an additional opportunity to wrestle with it, but the President 
has been very clear about wanting to hold responsible those employers 
who make judgments that interfere with the medical judgments which 
adversely affect patients. He wants to hold them responsible. That is 
what many of our colleagues have been attempting to do, and they have 
been doing it in a bipartisan way.
  We have had amendments to eliminate all responsibility for employers, 
and amendments for employers with 50 employees or less. These have been 
defeated.
  The President was talking in ways many of us understood. We may 
differ as to the language, and we do have differences with the 
President on the liability provisions, but on those other issues, we 
are very much along the same lines.
  The President, as well, in his support for the Frist-Breaux bill, 
basically supported the medical necessity provisions we had included in 
the McCain-Edwards legislation. They are virtually identical to those 
in the underlying bill, and the President indicated support of the 
medical necessity provisions. Those are enormously important.
  We come to the third of the major issues, and that is scope. Who is 
going to be covered, and for what particular protections? The President 
again indicated in his principles for a bipartisan bill that it should 
apply to all Americans--all Americans; that a Federal Patients' Bill of 
Rights should ensure that every person--not just some people, not just 
a few people in some States, not just some who are covered for certain 
protections in a few States--but that all Americans, every person 
enrolled in a health plan, enjoy strong patient protections. Those are 
words that he used.
  The Breaux amendment is consistent with that particular principle. It 
is not drafted exactly the way I would like to have it drafted. It does 
not go to the extent I would like to have gone to guarantee the strong 
protections which Americans deserve. But nonetheless, in a very 
important way, the Breaux amendment complies with this particular 
provision. It will ensure that all Americans are going to be covered 
and that they will have strong protections. The Breaux proposal also 
ensures that protections for Americans will remain in the States. They 
will be the primary regulator under the Breaux proposal. That is the 
way it was drafted, and it is a preferable way to ensure not only what 
the President has stated, but what I think I have heard stated by my 
good friend, the Senator from Tennessee, our ranking member on the HELP 
Committee, and others.
  As a matter of fact, every proposal that the House of Representatives 
considered in their debate last year--I believe there were four major 
proposals offered by Republicans--all of them included all Americans. 
That was not a debatable point. It is tonight, and tomorrow morning, we 
will have the opportunity to see where the Senate is going to stand.
  I will make a few points, and if I am not correct, Senator Collins 
will correct me--we only received the amendment just prior to the time 
the Senator offered it, although clearly we were very much aware this 
amendment was coming and Senator Collins told us about that. I will 
make a statement and a point, and if I am wrong, the Senator from Maine 
will correct me.
  If her amendment is passed tomorrow, or whenever we pass the final 
legislation, there will no guarantee of one new protection for most 
Americans. Do my colleagues understand what I am saying? Mr. President, 
do they understand what I am saying? If the Collins amendment succeeds 
and is passed, when it goes into law, there will not be one new 
protection for most people in this country. There will not be any 
protection for the children who need speciality care; there will not be 
any new protections guaranteed for women who need clinical trials; 
there will be no new protections in a wide range of provisions that are 
included in the underlying legislation. None, unless--unless--the 
States go about the business of applying and providing them.
  Let me be very clear about it, with the passage of her amendment, 
there is not one new protection from an HMO making the medical 
decisions they have made in the past.
  It seems to me that is why we are here because we have, for the last 
5 years, been battling to make sure families in this country receive 
protections, whether they are in Massachusetts, Nevada, or Maine.
  Let's look at what the circumstances are of some of the States. 
First, there is an authorization for $500 million, a pool--new funds of 
$500 million. That is in the amendment. Where we are going to get the 
money for those funds is not in there. We have authorized funds on many 
other issues and they have not been appropriated. Welcome to the club. 
This relies on a $500 million appropriation.
  When this is passed, there will still be 39 States that do not 
require any access to clinical trials. In the United States, you might 
work in Massachusetts today, and maybe you will be transferred to 
Nevada next year, and then transferred to another State after that. Let 
me make it clear to you and your family you had better make sure they 
are one of the 11 States that have clinical trials. Most of the states 
that have clinical trials are for cancer, but don't include other life-
threatening diseases.
  When I came to the Senate, you worked at the shipyard, your father 
worked there, and your grandfather worked there. You graduated from 
high school and had a good life. Those in the workforce today may have 
nine different jobs over the course of their life, moving all over the 
country. We ought to get a dartboard to find out where the protections 
are in the various States for you and your family, moving from one 
company to another.
  There are 39 States that do not require clinical trials. Zero States 
affirmatively require timely access to specialists. If we pass the 
Collins amendment, there will be a signing ceremony at the White 
House--hopefully and after the bill is in effect, someone will say: I 
thought when I had a child who had cancer and we went to

[[Page 12055]]

our HMO, we would get the guarantee of accessing a specialist. And now 
that is overridden. I thought we would get the protections we needed. I 
listened to the debate in Washington that said we could get specialty 
care.
  No, no, no, that is not so, because they passed the Collins 
amendment. The Collins amendment says, only if the States provide it do 
they get access to specialists.
  We have 20 States that do not ban financial incentives for providers 
to delay or deny care. What is happening in HMOs is, as we heard in the 
numerous committee hearings we have held, there are financial 
incentives and disincentives for doctors on the procedures they 
recommend in terms of treating patients. Do we do anything about that? 
No, no, we are not going to do anything about that, not in 20 States, 
not if you live in one of those 20 States. They will have incentives 
and disincentives for the doctors.
  Tell me what consumer knows about that. Ask any Member of the Senate, 
if they didn't have a briefing sheet before them, whether their State 
does or does not ban financial incentives. They will not have to worry 
because we have good Federal employee health insurance. We will not 
have to worry. But I doubt whether any Member knows whether their State 
prohibits it or not.
  There is nothing under the Collins amendment that will make sure 
states ban inappropriate financial incentives. Under the underlying 
bill, there is a prohibition on their use. No HMO ought to provide 
incentives or disincentives to doctors in terms of providing or 
recommending necessary treatment. What do we have to learn from this? 
We have hearings, we find out, we see the affected families, and then 
do we say, no, Washington does not know best, in this case, ensuring we 
do not have inappropriate financial incentives? We ought to be able to 
agree on that. Is that a vast intrusion on States rights?
  The list goes on. We have seven States that have not adopted a 
prudent layperson standard for emergency care. If you live in one of 
those seven States and you think you are having a heart attack and go 
to the emergency room, you may end up without that care covered. We 
have seen a number of States take action. It is important to do that.
  The Breaux alternative says, when the States have taken action in 
these various areas, there will be respect for that action being taken 
in the State to protect their citizens and deference will be given to 
them. That is the way it ought to be. In areas where there is no 
protection, we are trying to establish a federal floor. If the States 
want to go beyond that, they can, but at least establish a floor of 
protections.
  I listened with interest to both the Senator from Maine and the 
Senator from Wyoming about two previous pieces of legislation, CHIP and 
HIPAA. When we passed the CHIP program we provided incentives and 
money. That is not the issue. The issue is, we gave the States the 
certain criteria that had to be met, and if they met those criteria the 
Federal provisions did not apply. Mr. President, 49 of 50 States have 
done that.
  I monitored that program closely in our HELP committee. Even when I 
was not chairman, we had meetings with the previous administration to 
find out what was happening with that program. I am familiar with it. 
We don't have complaints from the States. We are not hearing from the 
States about the heavy hand of the Federal Government for establishing 
CHIP. They can say they were getting money for that, fine; they were 
also ensuring that children would have the range of services that would 
meet needs--not the complete range of services I would like to see. We 
still don't provide the comprehensive care--eyeglasses or hearing that 
we ought to provide for children. Dental work was left out, along with 
many other services that children need, but we find States conforming 
to the package that was developed.
  The other reference was with regard to HIPAA. I have heard that 
speech from the Senator from Oklahoma now eight times. He gets better 
at it each time he talks about HIPAA and HCFA. I point out, when the 
GAO recommended $11 million so HCFA would be able to implement HIPAA, 
he was the one who led the fight against the $11 million, and he was 
successful. They put in $2 million. And he led the fight to strike out 
that $2 million so that HCFA could not implement it because they wanted 
greater flexibility in the States so the insurance companies--that is 
my conclusion--would be less interfered with. I have had that argument 
and I will not spend time on it now.
  The fact is, tonight there are only five States which are not in 
complete compliance with HIPAA. It has taken time. Many of the criteria 
placed upon the States are similar to what is in the Breaux proposal. I 
personally would like to see a stronger provision. At the time we pass 
this bill, I would like to see all Americans have protections. We have 
taken those steps in the past on other issues.
  We decided as a pattern of national policy we were going to pass 
Federal laws to outlaw child labor in this country. We didn't say: You 
can go ahead and have that up in Massachusetts if you want to. We 
passed laws. Anyone can visit now in Lawrence and Lowell, go through 
the mill, look at the museums and read the poems and letters of 9- and 
10-year-old children trapped in factories for 10 or 12 hours a day who 
wrote as they looked outside and saw other children play. We went 
through that as a nation and passed federal laws to prohibit that.
  We also said, we will pass a minimum wage law. We know there are many 
here who resented it. We passed laws in order to protect our 
environment because we recognize that environmental issues go through 
various States and the environmental issues know no borders. I make the 
same case with regard to workers today, as well. It was not that way in 
the old days, but it is that way today.
  We made the same judgment with regard to civil rights. You can say, 
well, these patient protections are not of the dimension of the issues 
on civil rights. I think there is a lot you can say about that. But if 
you listen to the HMO victims whom many of us have heard, if you see 
the failure of the recommendations of doctors and nurses and medical 
professionals--the failure of their recommendations because of an HMO 
bureaucrat many miles away, and you see how lives have been destroyed 
and how families have been absolutely destroyed--we can ask ourselves, 
why shouldn't we give that kind of protection to families in this 
country?
  Americans, I think, are under a lot of pressures today. Working 
families are under a lot of pressure. They are not asking for much. 
They are asking for good jobs with a good future. They are asking for 
schools where their children can learn. They are asking for health 
insurance that is going to cover them. They want clean water, they want 
clean air, they want safety and security in their communities, they 
want to own their own home, they want a national security and defense 
that are going to protect our interests, and they want human rights 
policies abroad that are going to represent our fundamental values.
  They are not asking for much. But one of the things we can do is 
protect them when they do get that health insurance. We will be back. 
We give the other side the assurance we will be back. All those 
speeches we have heard over these past days asking why are we doing 
this when we have so many people uninsured--we will be back with 
legislation on the uninsured. We hope for support from so many of those 
who have been speaking recently about how we ought to make sure people 
are going to be covered. We will be back to try to make sure we deal 
with those individuals.
  But when you have an opportunity to relieve families of the anxiety 
so every time they go to a doctor they are going to get the best the 
doctor can prescribe and the best the nurse can give --when you give 
that guarantee to every family in America, you are going to ease their 
anxiety when they have a sick one.
  Why are we going to play roulette? Let's say you live in 
Massachusetts today, or Florida, or New Mexico tomorrow. You shouldn't 
have to worry, which one is going to give strong patient protections?

[[Page 12056]]

  That is what this is about. I do not know what we need as a record. 
The reasons for this are so powerful, so compelling, so real. We have 
had statements from every Member in this body about the damage that has 
taken place and the disruptions to families. We have the opportunity to 
do something about it. It seems scope is a key issue, a key question. I 
hope the Senate will come down on the side of the proposal of the 
Senator from Louisiana.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Mr. President, I first want to say I very much enjoyed 
working with my colleague from New England. He is a passionate advocate 
for children on health care and education issues. He did, however, make 
a misstatement about the implications of my amendment and has invited 
me to correct the record if it was wrong. I want to take the 
opportunity to do so.
  In fact, my approach does provide new consumer protections. Let me 
expand on that because I must not have been clear in explaining it 
earlier.
  Under current law, there are federally regulated insurance plans and 
there are State-regulated insurance plans. The Federal plans, under 
ERISA, are beyond the reach of Federal regulators. So all those laws we 
have talked about, those 1,100 or more State laws and regulations, do 
not apply to consumers who are enrolled and covered by ERISA plans, the 
federally regulated plans, because State governments are prohibited 
from applying regulations to ERISA plans. They are preempted in that 
way.
  All of these great consumer protections that the States have enacted 
over the last decade do not apply to patients who are covered by ERISA 
plans. This legislation--and it is one of the reasons I strongly 
support patient protection legislation at the Federal level--would 
close that gap. It would ensure that consumers who are part of ERISA 
plans receive the kinds of consumer protections that are available to 
patients whose health care coverage is provided by plans that are 
regulated by State governments.
  So it is not accurate to say my approach will not result in any new 
consumer protections. Rather, the approach my colleague from Nebraska, 
Senator Nelson, and I have proposed is intended to make sure we can 
provide the same kinds of protections for consumers in Federal plans 
that the States have done for consumers who are covered by State-
regulated plans.
  In addition, there is a requirement under the Collins-Nelson 
amendment for States that have not enacted consumer protection laws--
there are many that have in many areas, but there are some holes here 
and there. There is a requirement that those States either enact a law 
that is consistent with the purposes of those patient protections in 
the McCain-Kennedy bill by the date of enactment--we are not even 
giving them very long. They have to do it by October 1 of next year. 
That is going to be difficult for some States that have biennial 
legislatures. But we require them to either enact a law that is 
consistent with the purposes of the consumer protections in the McCain-
Kennedy law or, if they decline to do so, they have to certify their 
reasons for not doing so to the Secretary.
  It is just not true to say our approach, the Collins-Nelson approach, 
does not result in any new consumer protections. In fact, what it does 
is preserve the good work that the States have done, rather than 
requiring the States to adopt a one-size-fits-all, made-in-Washington 
approach that may not work in their particular States. We preserve the 
State laws, but then we close the gap by requiring federally regulated 
insurance plans to have similar consumer protections. That is very 
important. That does result in new patient protections for millions of 
Americans whose insurance is under federally regulated plans.
  In addition, States cannot ignore this issue. They haven't ignored 
it; they have been very active, but, as I said, there are some holes. 
What they would have to do as a State is consider this issue and No. 1, 
enact a law consistent with the purposes of McCain-Kennedy or, No. 2, 
certify to the Secretary that they did not enact a law because either 
there is no managed care in their State--such as Alaska or Wyoming, 
where it is irrelevant--or they believed the costs were such that they 
would drive people out of the insurance market and cause people to lose 
access to health insurance altogether.
  Let us remember the best consumer protection is having health 
insurance coverage. That is the best patient protection we can apply 
and provide. So our amendment, the amendment I have crafted with my 
colleague, Senator Nelson, which is supported by so many of our 
colleagues who have spoken eloquently tonight, is an important one. It 
will advance consumer protections. But it will respect the good work 
that has been done by the States, the States that have been far ahead 
of the Federal Government.
  Finally, let's remember the important point. States have been 
regulating insurance for more than 50 years. They have done a good job. 
They have acted without any prod or mandate from Washington to provide 
patient protections. They are way ahead of us in this area. Why do we 
want to second guess their work? Why do we want to supersede their 
laws? Why do we want to wipe out the good work done by the States? I 
submit we should grandfather in those good State laws and concentrate 
on the gaps.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I thank the Senator for her correction. 
The figures are, of the 195 million Americans with private health 
insurance, the 56 million who are the self-insured would have coverage. 
This would leave out the 139 million who are not in self-insured plans, 
as I understand it. These include state and local public service 
employees. These include firemen. These would be the police officers. 
These would be the self-employed. There are 139 million who would not 
have a federal floor of protections. I have read through this, so I 
appreciate what the Senator has said.
  Listen to this. Under this proposal, there is going to be some $500 
million that is going to be out there. A State can make a proposal for 
a new program, and they can receive grants for the new program.
  They say the States can pass laws which are consistent with the 
purposes of the Federal standard. But they can keep the money and 
decline to enact a law because of the adverse impact of a law on 
premiums which would lead to a decline in coverage. So they could get 
the money to pass it. But, if there is a judgment that there might be a 
decline in coverage, they could, I guess, keep the money. They do not 
have to do anything further to enact a law if the managed care market 
in the State is negligible. There is no additional responsibility for 
them to take action for additional protections. They still get money 
from their fund.
  I make the point that during the course of this debate there have 
been a lot of different ways of trying to cut the protections. We heard 
in our Health, Education, Labor and Pensions Committee about the kinds 
of abuses that are taking place across the country. The President of 
the United States recognized that. He indicated that he wanted every 
person covered. We want to have every person covered. We don't want to 
carve out a third and say they will be covered, but we will leave out 
two-thirds who will not be covered with a great many of these 
protections.
  I continue to believe in the power of this issue and its impact on 
families. Why are we going to draw a distinction between neighbors on 
the same street? One works for a fire department, their family goes to 
a doctor, and the kind of medical advice their doctor gives to them for 
their child is overridden by an HMO, and they don't have protections, 
but his neighbor is protected because his employer self-insures? What 
possible fairness is there in that? What is the possible justice in 
that?
  We should be interested in protecting all families. The President 
understands that. Hopefully the Senate will understand that tomorrow.
  If it were left up to me, I would make sure that all of these 
protections were guaranteed. But we have the Breaux amendment which 
says: Wait. We are

[[Page 12057]]

going to say if States have taken action in these areas, there is going 
to be deference given to the State. There is going to be enforcement 
and supervision by the State in protecting these areas.
  I would have liked to see it stronger. But what is very important is 
guaranteeing some floor of protections.
  Finally, we are talking about commonsense protections. We are talking 
about access to the emergency room, specialty care, OB/GYN, and 
continuity of care. If a woman is pregnant, and the HMO and her 
employer end their relationship, at least she can see her obstetrician 
until after the baby is born.
  We are talking about prescription drug formularies. If the doctor 
recommends a certain medically necessary drug and it is not included in 
the formulary, the patient can still get the needed drug. There is 
going to be a shared expense by the patient as well as the HMO. That 
has been worked out. We use the same cost sharing that is used in the 
various formularies.
  Point of service: There is a closed panel, and a need for outside 
expertise. Clinical trials are so important. Every one of the 
protections that is guaranteed are in existence today either in 
Medicare and Medicaid, or they have been recommended by the insurance 
commissioners, or they were unanimously recommended under President 
Clinton's panel, which was bipartisan and included distinguished 
representatives of all aspects of the health delivery system. Those are 
the only ones.
  Finally, as we are hopefully coming fairly close to the end of this 
debate. We have the support of almost every health organization, every 
professional medical organization, every patients' organization, every 
children's organization, every women's organization, every disability 
group, and every cancer organization for this kind of protection.
  The reason is very simple. They are out there on the firing line day 
in and day out. They understand what is happening to families. These 
are trained men and women who have given their lives for the protection 
of good health care for families in this country. They have seen what 
is happening and how many times they are being overruled. They have 
stated that is what is necessary.
  The scope and protections that Senator Breaux has included are what 
they strongly support.
  We will have a chance to say another word about this tomorrow.
  Mr. EDWARDS. Mr. President, will the Senator yield for a question?
  Mr. KENNEDY. I thank my friend from Maine.
  I am glad to yield.
  Mr. EDWARDS. Let me ask the Senator, as somebody who has been 
involved in this issue for so long, as the Senator knows, we have been 
working very closely with Senator Breaux on his amendment in an effort 
to make sure that all Americans are covered. One of the guiding 
principles of our efforts in this area is to make sure that families 
have protections provided in this legislation so that all families in 
this country can make their own health care decisions. We have worked 
with Senator Breaux very closely on his amendment to make sure there is 
a floor for every family in America.
  Will the Senator comment on whether, under the amendment of the 
Senator from Maine, every family in America will in fact get the 
minimum protections as provided in our bill as opposed to the language 
we worked out with Senator Breaux?
  Mr. KENNEDY. As the language is constructed, they will only provide 
the protections to these self-insured and not to everyone else who has 
received their health insurance through other means--the self-employed, 
those who are getting it through state and local employment, those 
working for employers who purchase health insurance plans. There are 
139 million Americans who will not have those protections.
  As I mentioned earlier, they will have to rely on protections from 
the States. There are States that do not require access to clinical 
trials. There are States that do not require timely access to 
appropriate, accessible specialists.
  I mentioned earlier the ban on inappropriate financial incentives. 
Twenty States don't ban plans from giving financial incentives and 
disincentives to doctors to delay or deny care. They won't have those 
protections.
  The point I mentioned earlier was that we are a society in movement. 
We find so many families are moving from State to State. Members of 
families are moving with jobs and going back and forth.
  We have to ask ourselves ultimately and finally--as the Senator 
pointed out, this is a federal floor of protections--if you are in a 
State with clinical trials, why should you have to make sure they have 
a similar protection requiring access to the clinical trials which your 
wife might need, but you move to another State and find there is no 
access to clinical trials?
  That is strictly because of the protections that you might have in a 
particular State.
  It makes absolutely no sense. We ought to have that basic federal 
floor. I know the Senator agrees with me.
  The way the Breaux amendment has been devised, it gives the maximum 
deference to the States if they provide protections in these areas. I 
mentioned just a half dozen different protections. We could go into 
others this evening. I will not take the time to do so, but they are 
illustrative of the protections. These are pretty commonsense 
protections.
  The PRESIDING OFFICER (Mr. Miller). The Senator from North Carolina.
  Mr. EDWARDS. Mr. President, the debate on these two amendments is 
critical to the issue of whether all Americans--all families in this 
country--will have access to the protections provided for in this 
Bipartisan Patient Protection Act. That is the reason this vote 
tomorrow morning is critical to the vitality of this bill.
  We have worked very closely with Senators on both sides of the aisle 
to ensure that two things are accomplished with respect to coverage: 
No. 1, that every American is covered by this legislation and, No. 2, 
we give deference to States that, through their own work, have 
established good systems for patient protection. We honor those State 
legislatures and that State legislation.
  So that is the purpose of this amendment, the Breaux amendment. It 
strikes the right balance between making sure every American is 
covered--every family is covered--on the one hand, and, secondly, 
giving deference to the States that have already done good work in this 
area.
  We need to ensure that we do not take away the protections we are 
providing for all Americans by exempting a huge chunk of Americans, 
which, unfortunately, the Collins amendment would do.
  The Breaux amendment, though, is one in a series of consensus 
agreements that have been reached on this legislation. Starting with 
the issue of scope, which the Breaux amendment addresses, we now have 
an agreement which I think a great majority of the Senate will be able 
to support and be comfortable with.
  On the issue of the independence of the appeals, we have an amendment 
that will be supported, I believe, by virtually all of the Senate, 
establishing the principle that we believe the HMOs should not have 
direct control over who is on the independent appeal panel.
  On the issue of exhaustion of remedies--exhaustion of the appeals 
process before a case can go to court--we are working very closely with 
the Senator from Tennessee to reach a bipartisan consensus on that 
issue. We have made great progress, and I am optimistic about it.
  On the issue of employer liability, from the outset we had--the 
sponsors of the legislation, along with the Presiding Officer--as a 
principle that it was important that employers be protected, period. We 
have worked very hard with Senator Snowe and Senator Nelson from 
Nebraska, and other Senators on both sides of the aisle, to ensure that 
that is being done. Tomorrow morning we will offer an amendment on that 
issue.
  We have worked our way through a series of hurdles, going from the 
issue

[[Page 12058]]

of scope, to the issue of exhaustion of remedies, to the issue of 
clinical trials, to the issue of medical necessity, on which we have 
worked with Senators Bayh and Carper to make sure we have a consensus 
on what is covered, giving proper deference to the contract and the 
contractual language but making sure the independent reviewers have the 
ability to make sure that if particular treatments are needed, they can 
be provided.
  So we started 2 weeks ago with a series of obstacles in front of us, 
starting with scope and running throughout the legislation. What has 
happened during the course of this debate, and the work that has been 
done, is that one by one those obstacles, those barriers, have fallen, 
and we have been able to reach consensus agreement.
  There is great momentum to do something that really matters to the 
American people. The winners in this debate are not politicians. The 
winners of this debate are not the people within this Chamber. The 
winners are the American people and the families all over this country.
  We have in this body an opportunity to do an extraordinary thing, 
which is to give people more control over their lives and more control, 
specifically, over their health care decisions, the things that affect 
their families and members of their families.
  All of us have worked very hard--Republicans and Democrats--to try to 
get to the place where we have consensus on this legislation, and one 
by one by one the barriers to passing real patient protection have 
fallen to the floor.
  We have more work to do. We will have issues of liability that remain 
to be resolved. But the reality is, we are a long way down the road. We 
have tremendous momentum for doing what there is a consensus in this 
country to do. Not just in the Senate, not just in the House of 
Representatives, but all across America, all of us who have spent time 
in our States have heard over and over that the American people expect 
us to do something about this issue.
  The time has come. It is time to quit talking about it. It is time 
for the political debate to stop. It is time to do something that can 
really affect people's lives. We have an extraordinary opportunity to 
do something important. We have made extraordinary progress toward that 
goal, but we are not quite there. We need to keep our nose to the 
grindstone, keep working, keep debating, and finish this legislation, 
get it through the House, and get it on the President's desk, with 
great hope and optimism that the President, when confronted with 
legislation that during his campaign he vowed to support, will stand by 
his vow and do what he has told us he would do. We are optimistic about 
that. We believe the President will do what is right for the American 
people.
  So I thank my colleagues for all their work on this issue.
  I ask my colleagues to vote, tomorrow morning, against the Collins 
amendment and for the Breaux amendment, which is a bipartisan consensus 
that has been reached. And we will continue our work toward providing 
the American people the protection they need and they deserve.
  Thank you, Mr. President. I yield the floor.


                          explanation of vote

  Mr. HELMS. Mr. President, I regret I was not present to cast my vote 
on the motion to table the amendment offered by the Senator from 
Arizona (Mr. Kyl) and the Senator from Nebraska (Mr. Nelson). I wish 
the Record to reflect that had I been present, I would have voted 
``nay.''
  The PRESIDING OFFICER. The Senator from Nevada.

                          ____________________