[Congressional Record (Bound Edition), Volume 147 (2001), Part 9]
[Senate]
[Pages 12298-12365]
[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:

       Thompson amendment No. 819, to require the exhaustion of 
     administrative remedies before a claimant goes to court.
       Collins amendment No. 826, to modify provisions relating to 
     preemption and State flexibility.
       Breaux amendment No. 830, to modify provisions relating to 
     the standard with respect to the continued applicability of 
     State law.

                          ____________________

               recognition of the acting majority leader

  The ACTING PRESIDENT pro tempore. The Senator from Nevada is 
recognized.
  Mr. REID. Mr. President, I ask that the time I use not be charged 
against either side.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                                Schedule

  Mr. REID. Mr. President, we will resume consideration of the 
Patients' Bill of Rights. We are going to have a vote at approximately 
10 to 10. We have a unanimous-consent agreement in effect that will 
take us throughout the early afternoon, with votes scheduled throughout 
that period of time. We expect votes all evening. The leader would very 
much like to finish this bill today. Certainly the end is in sight. If 
not, we will work through the night--into the night, not through the 
night--we will come back tomorrow, and hopefully we don't have to come 
back Saturday.
  What the leader has said is that we are going to complete this 
legislation. We are going to complete the legislation, plus the 
supplemental appropriations bill before we go home.
  He said he would work Saturday, Sunday, Monday, and Tuesday and 
Wednesday, the 4th--take that off--and come back after that to complete 
our work. We are cooperating and doing our very best to meet the 
requests of Senators Byrd and Stevens. Their last unanimous consent 
request has been cleared on this side as far as the filing of 
amendments. We applaud the four managers who have been working on this 
bill. We look forward to continuing to work today.


                           Amendment No. 826

  The ACTING PRESIDENT pro tempore. Under the previous order, there 
will now be 30 minutes for debate to be equally divided between the 
Senator from Maine, Ms. Collins, and the Senator from Louisiana, Mr. 
Breaux, prior to a vote on or in relation to the Collins amendment No. 
826.
  Who yields time? The Senator from Maine.
  Ms. COLLINS. Mr. President, I ask unanimous consent that the Senator 
from Virginia, Mr. Allen, be added as a cosponsor of the Collins-Nelson 
amendment.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Ms. COLLINS. I yield 6 minutes to the Senator from Kansas, Mr. 
Roberts.
  The ACTING PRESIDENT pro tempore. The Senator from Kansas is 
recognized.
  Mr. ROBERTS. Mr. President, here is the issue: The ability of States 
to determine what is best for themselves. That is the issue. Sure, the 
issue is the Patients' Bill of Rights. But if Kansas or Nebraska or 
Maine or Massachusetts or Louisiana or Connecticut--as I look at 
Members in the Chamber--have an effective patient protection system 
that is working, why impose new Federal regulations that will force 
them to overhaul the system they have in place?
  The Collins-Nelson-Roberts, and others, amendment would simply give 
the State of Kansas and other States the flexibility to provide patient 
protection required under this bill in a way that best fits each State. 
For example, last year in Kansas we implemented a new law that assists 
patients who get into a dispute with their insurance company over the 
refusal to pay for medical procedures. It is a long process, but the 
independent reviewer will make a decision and reply within 30 business 
days after an appeal procedure.

[[Page 12299]]

  According to Kathleen Sebelius, our very good Kansas State Department 
of Insurance Commissioner, there were 22 cases that were closed last 
year; 12 decided in favor of the HMO and 10 overturned the decision 
made by the HMO. Now that more Kansans are aware of their ability to 
receive this external appeal and receive independent review, more cases 
have been filed with the Kansas Insurance Department. Simply put, our 
State commissioner, Kathleen Sebelius, and the Kansas State Department 
of Insurance are doing a good job looking out for the best interests of 
Kansans covered by HMOs.
  So the question is, Why does the Federal Government need to tell our 
State we have to completely scrap what we are doing and put into place 
a Federal layer of new Washington-knows-best requirements? How good is 
this really for families in Kansas, or your States' families? In fact, 
Kansas has a large number of patient protections that have been in 
place for years, and the list is impressive. The list includes a 
comprehensive bill of rights, the internal and external appeals I have 
already described, consumer grievance procedures, emergency room 
services, OB/GYN access, prompt payment, continuity of care, a ban on 
gag clauses and financial incentives, screening and breast 
reconstruction, prostate cancer screening, maternity stay, drug and 
alcohol abuse treatment, standing referral, and the list goes on and on 
and on.
  Under the bill we are debating today, many of these effective 
consumer protections Kansas has in place will have to be thrown out and 
we will have to start all over.
  Our Kansas State Insurance Commissioner, Kathleen Sebelius, also 
serves as the president of the National Association of Insurance 
Commissioners. Kathleen has written a letter that clearly lays out the 
devastating effects the Washington one-size-fits-all plan will have on 
State insurance markets, and she warns--listen to this, colleagues--
that this is going to be administered by an outfit called the Center 
for Medicare and Medicaid Services. It used to be called HCFA. If you 
really want to turn over your state regulations to HCFA, that is 
another issue that we can talk about for at least an hour or two. The 
commissioner stated in her letter:

       The proposed patient protection bills are far more 
     complicated than the Health Insurance Portability and 
     Accountability Act, or HIPAA, and will require considerable 
     oversight. To resolve these issues, the National Association 
     of Insurance Commissioners urges Congress to include in any 
     patient protection legislation provisions that would preserve 
     State laws and enforcement procedures, such as internal and 
     external review processes. Failure to maintain State 
     authority in this area could lead to implementation of 
     regulations that are inconsistent with the needs of consumers 
     in a State and that are not enforced effectively.

  I think she nailed it right on the head. I am an original cosponsor 
of the Collins-Nelson amendment because it would allow States to do 
what they are already doing well. If these standards are not met, only 
then would the Federal Government come in and impose its standards, and 
the State would then be required to meet a higher standard in order to 
be made eligible for the Patient Quality Enhancement Grant Program. 
Other amendments will have a stick; this is a carrot. I prefer a 
carrot; other Senators may prefer a stick.
  Let me just say, in summing up, can any other Member of this body 
honestly tell me what is in this bill is better than what the State of 
Kansas already has in terms of patient protection? Do you know better 
than our commissioner, Kathleen Sebelius, or Governor Graves, and the 
Kansas State Legislature? The answer is no.
  My colleagues, support this amendment and give States a chance to 
apply the standards they have currently in place, that are working. The 
external and internal appeals process is working. Don't make us 
reinvent the Federal wheel.
  I thank the Chair and my colleagues.
  The ACTING PRESIDENT pro tempore. Who yields time?
  Mr. BREAUX. I yield myself 5 minutes.
  Mr. President, I rise in strong support of the so-called Breaux-
Jeffords compromise amendment. We are dealing with a question of how 
are we going to allow the States to continue to operate their own 
patient protection bills that many of them have already instituted. My 
own State of Louisiana has passed over 35 different patients' bills of 
rights guarantees, and they are working fairly well. I think my 
colleague, Senator Jeffords, wants to continue to allow those States to 
have their State plans in effect when they are substantially complying 
to what we are trying to do here on a national level.
  As Senator Kennedy said last night, if you had the Collins amendment, 
there would be no guarantee that States would have a Patients' Bill of 
Rights. They would not have to do anything if they so chose. A State 
could say they are not interested in guaranteeing patients within their 
borders any rights at all, period. We don't think it is the right thing 
to do. We are not doing it. The only thing that they would suffer, if 
they decided to take that approach under the Collins-Nelson amendment, 
is that they would lose grant money that is being authorized in this 
legislation.
  Well, I think that is unfortunate in the sense that we are talking 
about a national program to guarantee patients the rights they should 
have under this legislation. I think there is strong agreement 
nationwide that there is a need to have some kind of a national 
guarantee that covers all Americans, not just some Americans, not just 
a few Americans, not just a handful of Americans, but all Americans, in 
dealing with their health insurance program.
  Our compromise amendment does accomplish that goal, and it does it in 
a way that gives the maximum ability of the States to do what they 
think is necessary in crafting their Patients' Bill of Rights. The 
language that we have put forth says that State plans would not be 
superseded. They will continue to operate as they do today, if they 
substantially comply with the patient protection requirements that we 
are instituting on a national level for all Americans.
  That doesn't mean their plan has to be exactly the same as the 
Federal requirements. It has to substantially comply. That is a legal 
term used in Congress on many other occasions. On the SCHIP program for 
providing insurance to children, which we have enthusiastically 
supported, the requirement is that a State can run their own program if 
it substantially complies with the Federal requirements for all 
Americans that were instituted by this Congress.
  On the Medicare Program, folks here in Washington understand how to 
apply that terminology.
  It is working. My State of Louisiana runs its own plan. I am very 
confident that my State of Louisiana will continue to run the plan we 
have in place right now under the Breaux amendment because it clearly 
would, in my opinion, substantially comply with what we are talking 
about here.
  We have a definition of what ``substantially comply'' means by saying 
a State law would have the same or similar features as the patient 
protection requirements and would have a similar effect. That is not an 
unbearable standard at all. It does not have to be exactly. It just has 
to have the same or similar features.
  They can design those rights on States that will be tailored to the 
needs of that particular State, and the only requirement is that it 
have the same or similar features. That is not too strong a guideline 
to the States or a requirement on behalf of the States. I think it can 
work. Most of the States, if not every single State, that have adopted 
a Patients' Bill of Rights will find their plans in their respective 
States will stay intact and will still be the State Patients' Bill of 
Rights under this legislation.
  If a State decides for some reason they do not care, they are not 
going to do anything, there should be the ability for us to make sure 
all Americans are guaranteed the rights we are talking about today; 
that they are enforceable; there is an opportunity to go to court to 
enforce them; and that there is an appeals process when they are being 
abused.

[[Page 12300]]

  This is what the Breaux-Jeffords amendment will allow. That is why it 
is a realistic compromise compared to the amendment of my good friends, 
Senator Nelson and Senator Collins, with whom I have worked on many 
occasions and will continue to do so in areas such as health. They are 
trying to do the right thing. Their amendment will allow some States to 
do nothing. Potentially thousands of Americans will not have any 
coverage whatsoever if that is the decision of the State.
  We are writing legislation for all Americans, and I suggest the 
Breaux-Jeffords bill is a proper compromise that can bring this about.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator's time has expired.
  The Senator from Maine is recognized.
  Ms. COLLINS. Mr. President, how much time is remaining on our side?
  The ACTING PRESIDENT pro tempore. Nine minutes.
  Ms. COLLINS. I yield 5 minutes to the Senator from Nebraska.
  The ACTING PRESIDENT pro tempore. The Senator from Nebraska is 
recognized for 5 minutes.
  Mr. NELSON of Nebraska. I thank Senator Collins for her strong 
support for this amendment, and I commend my colleague, Senator Breaux 
from Louisiana, for his strong support and consistent efforts to find a 
compromise.
  Certainly, the effort is an improvement over where we had been. One 
area I want to point out I disagree with my friend from Louisiana is 
his suggestion that maybe the States will not do anything. If you take 
a look at the charts that Senator Collins and I have up, when you look 
at all the checks, I suggest the States have been doing something and 
they will continue to do something if the Federal Government does not 
come in and take away both the incentive and the opportunity by putting 
in what is termed affectionately ``a floor,'' a minimum.
  The problem is these minimums very often become the ceiling or they 
become, if you will, the top of whatever is being done because the 
States will not have the same opportunity, nor will they have the same 
willingness with the Federal deregulation, of the federalization of the 
regulation of State insurance as it applies to these health plans.
  Generally preemption occurs when the States have not acted. I cannot 
imagine we are now preempting what the States have done on the basis of 
they have done such a good job that we were able to pick and choose 
from the best of those protections to create this bill and now we say 
to them: It's a job well done; thank you very much, and, by the way, we 
will impose these on you and we will make sure your laws will have to 
be either substantially equivalent or consistent with, according to 
Frist-Breaux, or, with the compromise, substantially compliant.
  I can understand our desire to take over the role of the States in 
this area if the States have not done anything, but I cannot understand 
the desire to do it when the States have done such a good job that we 
have picked and chosen from the best of those efforts to comprise our 
bill.
  It does not make sense to preempt under these circumstances. That is 
why many of us would like to see the States have the opportunity to opt 
out so we will have continuing experimentation under the Jefferson 
principle that the States are the laboratories of democracy. I am not 
against all preemptions, but I do have a question about this 
preemption, whether it makes sense under the circumstances with the 
progress that the States have made.
  The charts will show the States have been active. They have worked 
very hard and diligently and are continuing to do so. Delaware just 
last week enacted additional patient protection laws. What we need to 
do is make sure we continue to permit the States to experiment.
  I am also worried that with the application of these standards to the 
States, we will not have further experimentation, we will not have 
further development of patient protections. I hate to think we are at a 
point where the status quo will be sufficient for today as well as for 
tomorrow. I worry this effort in having a floor will result in it 
becoming a ceiling.
  If you look at the charts, you will see to one degree or another, 
whether it is emergency room or whether it is the external appeals or 
the internal appeals, that nearly every State is doing it. Many States 
have decided not to do everything under every set of circumstances. I 
do not think they ought to be penalized where they have made a 
conscious decision that that is not going to work within their State. 
We ought not to have, in my judgment, a one-size-fits-all approach. We 
have not found, if you will, the Holy Grail as it relates to what 
patient protection truly is. If we allow the States to continue to 
experiment, we will find that they will be innovative and they will 
come up with new methods of providing even better patient protections. 
After all, this is coming from the grassroots; this is coming from the 
bottom up.
  I think we are making a mistake trying to drive it from the top down 
which will stifle and create the opportunity for stagnation rather than 
experimentation. I hope that will not be the case, but I do not see it 
really any other way.
  The National Association of Insurance Commissioners, the president of 
the National Association of Insurance Commissioners, the National 
Council of State Legislators all agree with this approach.
  The ACTING PRESIDENT pro tempore. The Senator's time has expired.
  Who yields time?
  Mr. BREAUX. I yield 5 minutes to Senator Jeffords.
  The ACTING PRESIDENT pro tempore. The Senator from Vermont is 
recognized for 5 minutes.
  Mr. JEFFORDS. Mr. President, I commend the Senator from Maine for 
keeping this issue alive. It is critically important that we defer as 
much as we can to the States because they are already set up for it. 
Why not let them do it?
  On the other hand, this is a Federal Patients' Bill of Rights. That 
means equal rights to everyone in this country, so there is a 
requirement for uniformity as well as to make sure we get a firm and 
even enforcement of this bill.
  A lot has been said about HIPAA and using HIPAA as an example of bad 
policy, and it was bad policy, but it was totally different. HIPAA 
dealt with portability of insurance in the case of people being laid 
off work.
  They said, if you do not do it, HCFA will come in and do it, and five 
States said let HCFA do it, and it made a mess of it. This is 
different. We are talking about the enforcement of rights, an even 
enforcement across the country. Yet we do recognize it is important for 
the States to do it themselves. Many, if not most of them, are already 
doing a legislative enforcement to require the appropriate and fair 
enforcement of the rights of individuals on health care.
  This is an important difference. HIPAA was a mess, but this has 
nothing to do with that. This is quite different from HIPAA.
  We all support the Patients' Bill of Rights. The question is who 
ought to enforce it. We say, yes, let the States that want to do it do 
it. On the other hand, we need to make sure it is done fairly and 
uniformly across this country. We do give the authority to the 
Secretary to review it, and we also say he should lean over backwards 
to make sure the States do it if at all possible. It is not a HIPAA-
type situation; we ought to differentiate that.
  It is important that we also recognize that the compromise requires 
States to have protections that are ``substantially compliant with'' 
Federal protection and defines this standard as having the ``same or 
similar provisions and the same or similar effect.''
  The Secretary must approve the State's certification of compliance in 
a manner that is in deference to existing State laws. If he does not 
act on the State application within 90 days, it is automatically 
approved. States that have their certification disapproved may 
challenge that disapproval in court.

[[Page 12301]]

  The amendment developed by Senator Breaux and myself requires States 
with additional flexibility to implement strong patient protections 
while guaranteeing a basic level of protection for all Americans in all 
health plans. Requiring the States to be in substantial compliance with 
the Federal law--not exact compliance but substantial compliance--
provides States with the flexibility they need to implement strong 
patient protections while ensuring that all patients receive the 
Federal floor of protections. Under this amendment, States can keep 
their own laws as long as their basic intent is similar to the Federal 
standard and will have a similar effect.
  The Secretary is required to be deferential to the States--give them 
every break you can but make sure that the bill of rights will be 
enforced. Give them every possible opportunity to do it themselves 
rather than having to go to court. However, this requirement does not 
infringe upon the Secretary's authority to determine whether current 
State laws will provide the basic level of protection promised to all 
Americans in the health plans under the Patients' Bill of Rights.
  So HIPAA is just a totally different situation. It is a mess; we 
agree with that; but it is totally different. Do not get confused on 
the HIPAA example.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. Who yields time?
  The Senator from Maine.
  Ms. COLLINS. How much time is remaining on my side?
  The ACTING PRESIDENT pro tempore. Three minutes forty-seven seconds.
  Ms. COLLINS. Mr. President, I yield 2\1/2\ minutes to the Senator 
from Ohio, Mr. Voinovich.
  The ACTING PRESIDENT pro tempore. The Senator from Ohio is 
recognized.
  Mr. VOINOVICH. Mr. President, I thank my friends from Maine and 
Nebraska for offering this important amendment. I believe the Collins-
Nelson amendment will allow the Senate to move forward and pass a 
strong Federal patient protection bill without suffocating the patient 
protections States have adopted over the last several years.
  I wholeheartedly agree that the Senate should take action to protect 
those Americans not covered under state plans. While the states were in 
front protecting the majority of those insured individuals through 
state regulation, the federal government has dragged its feet.
  However, a federal patient's bill of rights should not preempt the 
patient protections that have already been passed by the states. There 
are more than 117 million Americans who are covered under fully insured 
plans, governmental plans and individuals policies, which are all 
regulated under state law.
  My colleagues supporting the McCain-Kennedy legislation believe that 
the federal mandates in the bill should apply not only to ERISA plans, 
but also to those 117 million Americans in state regulated health 
plans. Apparently, they do not think that the states, which have 
already acted and are already protecting millions of Americans, are 
competent enough to do the job. Instead, they think that the federal 
government will do a much better job.
  My colleagues on the other side of this debate want the public to 
believe that all Americans need to be covered under a federal patient 
protections bill or else the quality of their health care will be 
jeopardized. The fact of the matter is that the majority of Americans 
are already covered under very good, very comprehensive state health 
care laws.
  As a former Governor of Ohio, I was on the front lines in the fight 
to give working men and women in Ohio real health care choices. As 
governor, I signed into law five legislative measures and pushed 
through several administrative improvements to protect families who 
relied on state-regulated plans for their health care coverage.
  The majority of states, including Ohio, have moved aggressively--
certainly more quickly than the federal government--to reduce health 
care inflation, expand access for the working poor, enhance consumer 
protections and bring greater accountability to the system.
  If the states had waited for the federal government to step up to the 
plate to provide patient protections, 117 million Americans would not 
have the patient protections they currently enjoy.
  The simple truth is that the states have been out in front of the 
federal government in providing sound protections for its citizens. The 
following facts prove this point:
  42 states have already enacted a comprehensive Patient's Bill of 
Rights;
  50 states have mandated strong patient information provisions;
  50 states already have an internal appeals process and 41 states have 
included an external appeals process;
  48 states already enforce consumer protections regarding gag clauses 
on doctor-patient communications;
  47 states already have regulations regarding prompt payment; and
  44 states already enforce consumer protections for access to 
emergency care services.
  The states are already getting the job done for the majority of 
insured Americans. But if we do not pass this amendment, we will be 
turning over to the Health Care Financing Administration (HCFA) the 
enforcement of state sponsored protection plans that are not 
substantially equivalent with the federal bill.
  The fact is, HCFA already has its hands full. Administering and 
regulating Medicare and Medicaid has already overburdened this federal 
agency. Think about it. HCFA already has under its purview over 70 
million Americans through these federal programs. Now, my colleagues 
want to place the health care of an additional 170 million Americans on 
HCFA's shoulders.
  The simple fact is that HCFA cannot handle the burden.
  Those individuals on the front lines of protecting the 117 million 
Americans with state regulated insurance know what will happen if the 
federal government is given the responsibility to oversee these state 
regulated health insurance plans.
  In fact, the National Conference of State Legislatures has described 
the McCain-Kennedy bill as, ``. . . federal legislation that will 
largely preempt important state laws and replace them with federal laws 
that . . . the federal government is ill-prepared to monitor and 
enforce.''
  Additionally, the National Association of Insurance Commissioners has 
made clear its concerns about the McCain-Kennedy bill: if the federal 
government unilaterally imposes a one-size-fits-all standard on the 
states, it ``could be devastating to state insurance markets.''
  The amendment that Senators Collins and Nelson have offered will give 
true deference to state laws and the traditional authority that states 
have had to regulate insurance.
  By ``grandfathering'' all state patient protection laws, Senators 
Collins and Nelson recognize that the vast majority of states have 
enacted comprehensive patient protections laws, as Ohio has done.
  The amendment also encourages states, through Patient Quality 
Enhancement Grants, to review their current patient protection and, if 
the state legislature and governor so desire, take action to mirror 
federal patient protections.
  I want to relay to my colleagues that I truly believe that this will 
be the most important federalism vote that the Senate takes this year.
  In conclusion, it has been the traditional role of States to regulate 
the needs of our States. However, both the McCain-Kennedy bill as 
written and the Breaux amendment seek to preempt what the States have 
accomplished in protecting patients. The underlying bill as written 
would step over the 10th amendment which says: the powers not delegated 
to the United States by the Constitution, nor prohibited by it to the 
States, are reserved to the States respectively, or to the people.
  The bottom line is that the States have been involved in protecting 
patients a lot longer than the Federal

[[Page 12302]]

Government, and they are doing a good job with the protections they 
have put in place. They debated them in their State legislatures. Their 
insurance departments are doing a good job of enforcing those laws. The 
Breaux amendment and the underlying bill gets the States out of their 
role. We will have a dual system of enforcement--State insurance 
commissioners and HCFA. And I can tell you, anyone who knows anything 
about HCFA in terms of the responsibilities they have, knows they have 
a hard-enough time doing their job now. We should not get them involved 
in a system that is already working on the State level.
  I beg my colleagues not to go along with federalizing this issue. 
Let's take care of the Federal people who have been exempted over the 
years because we haven't done the job we are supposed to do, and let 
the States continue to do the job they have been doing.
  I thank the Chair.
  The ACTING PRESIDENT pro tempore. Who yields time?
  Mr. BREAUX. I yield 2\1/2\ minutes to my good friend, the Senator 
from Connecticut.
  The ACTING PRESIDENT pro tempore. The Senator from Connecticut is 
recognized.
  Mr. DODD. Mr. President, I thank my colleague from Louisiana. I 
commend him and the Senator from Vermont for their compromise proposal 
we will be voting on shortly. I reluctantly oppose my friend from 
Maine, my fellow New Englander. I have joined with her on so many 
issues and have such great respect for her.
  There is a title to this bill. It is not titled casually; it is 
called the Patients' Bill of Rights. We talk about a bill of rights. 
Obviously we are all most familiar with our Constitution and the Bill 
of Rights we embrace and cherish so richly as American citizens. But if 
we are going to have a bill of rights when it comes to basic 
fundamental health care, as has been pointed out by the Senator from 
Louisiana and the Senator from Massachusetts and others, then there 
ought to be a floor that applies across the country to all 50 States. 
That is what we are really advocating.
  If the Collins amendment is adopted, then what you are developing is 
a trapdoor in that basic floor that exists. Let me make the case just 
by pointing to one particular provision of this bill. That is the 
access to emergency room care, Mr. President.
  I have this chart to make the point. In the States that are in red in 
this chart, they have laws that are weaker than the underlying bill 
when it comes to access to emergency rooms. We are not talking about 
some grandiose new plan. We are talking about a fundamental right that 
you can have access to the closest emergency room. In 27 States, they 
have a much weaker provision than is in this law. We are saying when it 
comes to a Patients' Bill of Rights, access to clinical trials, 
specialists, emergency rooms, this is the floor across the country. If 
you want to pass laws at the State level that are substantially in 
compliance with that, we welcome that. If you want to do something more 
than we are doing here, we welcome that. But if you are going to say 
that we are going to allow weaker laws to exist in the access to a 
gynecologist, to a pediatrician, to a clinical trial, to a specialist, 
or to an emergency room, then we don't think that is right.
  If you are for the Collins amendment, in many ways you are going 
against this bill. I understand that. I appreciate the fact that people 
do not want to pass a Patients' Bill of Rights and just leave it up to 
each State to decide. But if you believe, as a majority of us do, and 
an overwhelming majority of the American public, that there ought to be 
a Patients' Bill of Rights, a basic floor that provides these basic 
standards, then you must vote to adopt the Breaux-Jeffords compromise 
amendment and retain the integrity of this bill.
  The ACTING PRESIDENT pro tempore. The Senator's time has expired. Who 
yields time?
  Mr. KENNEDY. I imagine the Senator would like to close the debate, 
would she not?
  I believe I have 2\1/2\ minutes.
  Mr. President, the issue is very simple and very basic and very 
fundamental. It is whether all Americans are going to be covered as 
included in this legislation. We do not believe it should depend upon 
where you live. We believe it should depend necessarily on where you 
work. If a child needs a specialist to treat cancer, he or she ought to 
be entitled to see the specialist and receive the treatment. If a woman 
needs to be enrolled in a clinical trial that could be lifesaving, she 
ought to be entitled to participate. If a breadwinner who is crippled 
with arthritis needs a specialty kind of drug from a formulary, he or 
she ought to be able to obtain it.
  Now, our bill guarantees these kinds of protections, but with the 
Collins amendment it is a roll of the dice. President Bush believes 
that all Americans should be covered. Every Republican bill that was 
introduced and considered in the House of Representatives said all 
Americans are covered. She covers about 40 percent of them; 60 percent 
of Americans are left out. We believe if you are interested in assuring 
that all Americans be covered, you ought to support the Breaux-Jeffords 
amendment. That will be doing the right thing.
  The ACTING PRESIDENT pro tempore. The Senator from Maine is 
recognized.
  Ms. COLLINS. Mr. President, one of the myths in this debate is that 
unless the Federal Government preempts State insurance laws, somehow 
millions of Americans will be unprotected in their disputes with HMOs. 
That is simply untrue. Ironically, my friend from Connecticut makes the 
point on emergency room care. Forty-four States have enacted 
legislation guaranteeing access to the nearest emergency room. But they 
have crafted their laws in different ways depending on the needs of 
those States. Why should the Federal Government second-guess those 
laws, substitute its judgment for the judgment of State legislators and 
Governors' offices all over this country? It does not make sense. The 
proposal of the Senator from Louisiana would be both burdensome to 
States and ineffective for consumers.
  Does anyone really believe that a consumer with a problem with his or 
her insurance policy is better off calling the HCFA office in Baltimore 
than dealing with their own State bureau of insurance?
  The States have more than 50 years of experience in regulating 
insurance. They have acted without any prod or mandate from Washington 
to enact good, strong patient protection laws. Let's honor their work. 
Let's build upon the good works of the States rather than preempting, 
second-guessing, and superseding their laws.
  The ACTING PRESIDENT pro tempore. Who yields time?
  Ms. COLLINS. Is there any time remaining?
  The ACTING PRESIDENT pro tempore. The Senator from Maine has 24 
seconds.
  Ms. COLLINS. I yield back the remainder of my time if the other side 
is ready to yield back.
  I ask for the yeas and nays on the amendment.
  The ACTING PRESIDENT pro tempore. All time is yielded back. Is there 
a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. REID. Mr. President, I move to table the Collins amendment and 
ask for the yeas and nays.
  The ACTING PRESIDENT pro tempore. Is there a sufficient second? There 
is a sufficient second.
  The question is on agreeing to the motion.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Delaware (Mr. Biden) is 
necessarily absent.
  Mr. NICKLES. I announce that the Senator from New Mexico (Mr. 
Domenici) and the Senator from Alabama (Mr. Shelby) are necessarily 
absent.
  The PRESIDING OFFICER (Mr. Reed). Are there any other Senators in the 
Chamber desiring to vote?
  The result was announced--yeas 53, nays 44, as follows:

[[Page 12303]]



                      [Rollcall Vote No. 202 Leg.]

                                YEAS--53

     Akaka
     Baucus
     Bayh
     Bingaman
     Boxer
     Breaux
     Byrd
     Cantwell
     Carnahan
     Carper
     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
     Lincoln
     McCain
     Mikulski
     Miller
     Murray
     Nelson (FL)
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Stabenow
     Torricelli
     Wellstone
     Wyden

                                NAYS--44

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

                             NOT VOTING--3

     Biden
     Domenici
     Shelby
  The motion was agreed to.
  Mr. KENNEDY. I move to reconsider the vote.
  Mr. INOUYE. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           amendment no. 830

  The PRESIDING OFFICER. Under the previous order, there will now be 2 
minutes for debate equally divided prior to a vote on or in relation to 
the Breaux amendment No. 830.
  Who yields time?
  Mr. BREAUX. Mr. President, I do not mind using the time allocated for 
remarks, but in light of the previous vote, after the remarks could we 
just vitiate the rollcall vote and have a voice vote on this amendment? 
I ask unanimous consent that that be in order.
  The PRESIDING OFFICER. The yeas and nays have not been ordered on the 
Breaux amendment No. 830.
  Mr. BREAUX. That would be my suggestion. We have the time allocated 
for comments on it, and then have a voice vote on it afterward.
  Mr. KENNEDY. Mr. President, I think we will have the Senator from 
Minnesota speaking for 2 minutes, and then I think we will voice vote 
the Breaux-Jeffords amendment.
  The PRESIDING OFFICER. Who yields time?
  Mr. BREAUX. I yield 2 minutes to the Senator from Minnesota.
  Mr. WELLSTONE. I thank my colleague for his graciousness.
  Mr. President, I understand the need to compromise, and I think we 
are moving forward in a very positive way. I do want to point out for 
the record that what we are now saying is that a State need only be 
``substantially compliant'' with Federal protections as opposed to 
``substantially equivalent to.'' My big worry is that if you look at 
this amendment, we are also saying we need to give deference to the 
State's interpretation of its own law and its compliance with Federal 
protections.
  I say two things to colleagues. No. 1, I think, in the best of all 
worlds, consumers would also have a right to appeal if they believe the 
State is in error.
  To be fair, we want to give deference to what States are doing, as 
long as we have strong consumer protections for everyone regardless of 
where they live. I also believe if we are going to do that, we have to 
make sure not only that the States are given their proper due but so 
are consumers.
  This amendment weakens the bill somewhat. I have said that to Senator 
Breaux. Frankly, more than anything, it would be helpful to have an 
ombudsman office or something such as that in every State, where people 
would know where to make a phone call, know what their rights are. 
There are ways we can strengthen this.
  I do not believe this amendment takes us in a strong consumer 
direction. It is a good compromise in terms of where we are. I wanted 
to speak out and express my concerns.
  The PRESIDING OFFICER. All time on the amendment has expired.
  The question is on agreeing to amendment No. 830.
  Mr. KYL. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second. The clerk will call the roll.
  The assistant legislative clerk called the roll.
  The result was announced--yeas 64, nays 36, as follows:

                      [Rollcall Vote No. 203 Leg.]

                                YEAS--64

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Byrd
     Cantwell
     Carnahan
     Carper
     Chafee
     Cleland
     Clinton
     Cochran
     Conrad
     Corzine
     Daschle
     Dayton
     DeWine
     Dodd
     Dorgan
     Edwards
     Ensign
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham
     Harkin
     Hollings
     Hutchison
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     McCain
     Mikulski
     Miller
     Murray
     Nelson (FL)
     Nelson (NE)
     Reed
     Reid
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Smith (OR)
     Snowe
     Specter
     Stabenow
     Stevens
     Torricelli
     Warner
     Wyden

                                NAYS--36

     Allard
     Allen
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Collins
     Craig
     Crapo
     Domenici
     Durbin
     Enzi
     Gramm
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Inhofe
     Kyl
     Lott
     McConnell
     Murkowski
     Nickles
     Roberts
     Sessions
     Shelby
     Smith (NH)
     Thomas
     Thompson
     Thurmond
     Voinovich
     Wellstone
  The amendment (No. 830) was agreed to.
  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. Under the previous order, the Senator from New 
Hampshire, or his designee, is recognized to offer an amendment 
relative to liability on which there will be 1 hour of debate.
  Mr. REID. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BOND. Mr. 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. 831

  Mr. BOND. Mr. President, I send an amendment to the desk on behalf of 
myself, Mr. Roberts, and Mr. Helms, and ask for its immediate 
consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:
       The Senator from Missouri [Mr. Bond], for himself, Mr. 
     Roberts, and Mr. Helms, proposes an amendment numbered 831.

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

   (Purpose: To ensure that patients receive a minimum share of any 
        settlement or award in a cause of action under this Act)

       On page 154, between lines 2 and 3, insert the following:
       ``(11) Minimum share of settlement of award.--
       ``(A) In general.--Except as provided in subparagraph (B), 
     a participant or beneficiary (or the estate of such 
     participant or beneficiary) shall receive not less than 85 
     percent of any award made as a result of a cause of action 
     brought by the participant or beneficiary (or estate) under 
     this subsection, after subtracting the amount of any 
     attorneys' fees from the total amount of such award.
       ``(B) Exception.--This paragraph shall not apply where the 
     amount awarded as a result of a cause of action brought by a 
     participant or beneficiary (or estate) under this subsection 
     is less than $100,000.

[[Page 12304]]

       ``(C) Definitions.--In this paragraph:
       ``(i) Attorneys' fees.--The term `attorneys' fees' means 
     any compensation for the direct or indirect representation or 
     other legal work performed in connection with a cause of 
     action brought under this subsection. Such term shall not 
     include reimbursements for any expenses incurred in 
     connection with such representation or work.
       ``(ii) Award.--The term `award' means the sum of--

       ``(I) any monetary consideration provided to a participant 
     or beneficiary (or the estate of such participant or 
     beneficiary) by a fiduciary of a group health plan, a health 
     insurance issuer offering health insurance coverage in 
     connection with a group health plan, or an agent of the plan, 
     issuer, or plan sponsor in connection with a cause of action 
     brought under this subsection, including any monetary 
     consideration provided for in any--

       ``(aa) final court decision;
       ``(bb) court order;
       ``(cc) settlement agreement;
       ``(dd) arbitration procedure; or
       ``(ee) alternative dispute resolution procedure (including 
     mediation); plus

       ``(II) any attorney's fees awarded under subsection (g)(1) 
     with respect to the participant or beneficiary (or estate); 
     less
       ``(III) any reimbursement for any expenses incurred in 
     connection with direct or indirect representation or other 
     legal work performed in connection with a cause of action 
     under this subsection.

       On page 169, between lines 12 and 13, insert the following:
       ``(11) Minimum share of settlement of award.--
       ``(A) In general.--Except as provided in subparagraph (B), 
     a participant or beneficiary (or the estate of such 
     participant or beneficiary) shall receive not less than 85 
     percent of any award made as a result of a cause of action 
     brought by the participant or beneficiary (or estate) under 
     this subsection, after subtracting the amount of any 
     attorneys' fees from the total amount of such award.
       ``(B) Exception.--This paragraph shall not apply where the 
     amount awarded as a result of a cause of action brought by a 
     participant or beneficiary (or estate) under this subsection 
     is less than $100,000.
       ``(C) Definitions.--In this paragraph:
       ``(i) Attorneys' fees.--The term `attorneys' fees' means 
     any compensation for the direct or indirect representation or 
     other legal work performed in connection with a cause of 
     action brought under this subsection. Such term shall not 
     include reimbursements for any expenses incurred in 
     connection with such representation or work.
       ``(ii) Award.--The term `award' means the sum of--

       ``(I) any monetary consideration provided to a participant 
     or beneficiary (or the estate of such participant or 
     beneficiary) by a fiduciary of a group health plan, a health 
     insurance issuer offering health insurance coverage in 
     connection with a group health plan, or an agent of the plan, 
     issuer, or plan sponsor in connection with a cause of action 
     brought under this subsection, including any monetary 
     consideration provided for in any--

       ``(aa) final court decision;
       ``(bb) court order;
       ``(cc) settlement agreement;
       ``(dd) arbitration procedure; or
       ``(ee) alternative dispute resolution procedure (including 
     mediation); less

       ``(II) any reimbursement for any expenses incurred in 
     connection with direct or indirect representation or other 
     legal work performed in connection with a cause of action 
     under this subsection.''

  Mr. BOND. Mr. President, several days ago in debate in this Chamber, 
I talked about how the employees of small businesses might lose their 
health care coverage if the provisions of McCain-Kennedy went into 
effect unamended. The junior Senator from North Carolina indicated that 
I was interested only in protecting the businesses.
  Unfortunately, he misconstrued my arguments because we are concerned 
about patients. We hope the employees of small businesses will continue 
to get the benefit of health insurance coverage by their employers.
  I spoke about employees, however, because if this bill is not 
significantly amended, there are not going to be patients covered by 
this bill; they are going to be thrown out of health care coverage. We 
are concerned about patients.
  It is not only small businesses that should be worried about this 
bill, but employees of small businesses should also be worried about 
this bill.
  This amendment I offer today provides additional protection to 
patients. It provides protection to patients from trial lawyers, so we 
will find out whether my colleagues are more interested in taking care 
of patients or ensuring that the rights to sue by trial lawyers are 
unabated.
  There are a lot of words in the McCain-Kennedy bill, but there are 
also some heavy-duty new lawsuits that are authorized.
  The Federal claim of action really begins on page 140. It starts off:

       In General.--In any case in which
       (A) a person is a fiduciary of a group health plan, a 
     health insurance issuer offering health insurance coverage in 
     connection with the plan, or agent of the plan, issuer, or 
     plan sponsor--. . . .

  Cause of action starts off, No. 1, regarding whether an item of 
service is covered under the terms; No. 2, regarding whether an 
individual is a participant or beneficiary; No. 3, application of cost-
sharing requirements.
  Then there is the real hooker; there is the bombshell that opens this 
baby up to anybody who really likes to file lawsuits. It says:

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

  There are tons of laws that are covered here--HIPAA and COBRA. This 
is a wonderful opportunity for our brothers and sisters of the trial 
bar to file lawsuits. That is the Federal side.
  Then on page 157, it talks about State causes of action. It starts 
off, as this bill does--my good friend, the Senator from Texas points 
out all the bad stuff they do to providers of health insurance begins 
with ``does not apply,'' ``except.''
  Preemption does not apply. ``nonpreemption of certain causes.'' It 
begins on page 157:

       Except as provided in this subsection, nothing in this 
     title . . . shall be construed to supersede or otherwise 
     alter. . . .

  It goes on page after page. There are exceptions for wrongful death, 
exceptions for willful disregard of safety of others; their definition 
of certain causes of action permitted. Somewhere around page 172 it 
gets to the point: Certain actions are allowable.
  Basically, these pages of this bill provide tremendous opportunities 
to bring lawsuits. We should be talking about protecting patients, not 
about protecting trial lawyers.
  I believe it is appropriate now that we consider some protection 
against the HMOs and the insurance companies, important as that is, and 
instead make sure that we protect patients against trial lawyers.
  There are a lot of stories going on about trial lawyers: they are 
taking advantage of their clients; some attorneys ask for 40 to 50 
percent of any settlement; refuse to negotiate with clients; 
contingency fees of 33 or 40 percent are common. Some trial lawyers 
flat out refuse to take a case based on an hourly fee, and they demand 
they be able to take a huge percentage of the award. They also take 
their out-of-pocket expenses off the top before the contingency fee is 
applied, and that means in some circumstances the injured party, the 
plaintiff, gets less than the plaintiff's attorney.
  I think that is outrageous. As a former attorney, as a recovering 
attorney, I realize lawyers perform useful services when someone is 
harmed. They should be justly compensated.
  However, this amendment says enough is enough. The amendment is very 
simple. Any patient who gets a monetary award through all the new 
lawsuits permitted in the McCain-Kennedy bill must get at least 85 
percent of the award. If you are hurt, doesn't it make sense to receive 
85 percent of it? I can't see that being objectionable. The amendment 
effectively prohibits obscene contingency fees where large judgments 
are won and the plaintiff's attorney takes 30 or 40 percent after 
deducting all the expenses.
  Some may say lawyers will not take the cases. When we talk about 
setting a patient minimum, we need to be cautious. Just as it doesn't 
help to have a right to sue your HMO when your employer drops health 
care coverage, as would happen under this bill if it is not amended, it 
doesn't help to have a strong patient minimum requirement if it means 
no attorney will take your case. This amendment includes two strong 
protections to make sure access to attorneys is not threatened.

[[Page 12305]]

  First, before the patient minimum is applied, the amendment allows 
the attorney to be reimbursed for expenses incurred during the case. 
Only after expenses are deducted from the award will a patient minimum 
apply. In practice, this means an attorney can never lose money on a 
lawsuit that results in an award.
  Second, we exempt certain lower level awards from the patient minimum 
requirement. This ensures that the simpler cases that don't promise 
large awards can still be pursued and are not limited by the 
requirement that the patient gets 85 percent. We have set $100,000, 
which is above the median judgment normally entered in malpractice 
cases, as the limit.
  I am not sure any State has taken the exact approach this amendment 
establishes with a patient minimum, but 14 States have established caps 
on attorney fees. The strictest cap is in New York where lawyers are 
limited to 10 percent of awards over $1.25 million. That is the 
equivalent of a 90-percent patient minimum. California has the most 
well-known cap on attorney fees. In California, lawyers are limited to 
15 percent of any award in excess of $600,000. When you add Florida and 
Indiana, which also have a 15-percent cap for the highest level awards, 
4 of the 14 States that established caps on awards of attorney fees 
essentially require that plaintiffs get at least 85 percent of an 
award.
  Have these caps served as a barrier for plaintiffs? Have they denied 
access to the courts? From the data we have, we conclude they 
definitely have not. The State with the toughest cap, New York, 
produces almost twice as many malpractice awards per capita as the 
national average. The national malpractice per year per million 
residents, the U.S. average, is 49.2; California is 47.2; New York is 
99.5, more than twice the normal national level. From the other States 
with tough caps, Florida has an average number of malpractice awards 
per capita and California's rate is about the average. Indiana, with a 
15-percent cap, falls below the national average.
  It is hard to argue that the caps threaten access to the courts 
through attorneys. The California law has existed for at least a 
decade. By not changing the law, the State legislature seems to have 
come to the same conclusion.
  Why do we take 85 percent? When you take out expenses and exempt 
lower level awards, patients should get the overwhelming amount of an 
award. For a patient who has been harmed, it is perfectly reasonable to 
ask that that patient get 85 percent. For States with similar 
requirements, there does not seem to be a barrier to finding attorneys 
and bringing a lawsuit if you believe you have been harmed. To my 
knowledge, none of these States has repealed their caps, demonstrating 
that at least the State legislatures think they are working. By 
choosing 85 percent as the absolute minimum amount to which a patient 
is entitled, this amendment simply reconciles Federal law with laws 
that seem to be working in four of the largest States in this country.
  We know of the horror stories. We have heard too many horror stories. 
I point out an August 16, 2000, article in the Los Angeles times about 
Rodney King, who was brutally beaten by Los Angeles police. He is 
taking a beating from his lawyers, he says. They made more money on his 
case than he has. By his reckoning, they cheated him out of more than 
$1 million. In a nutshell, the man whose 1991 videotaped beating made 
him an international symbol of police abuse said he thought he had a 
deal with his lawyer to pay them only 25 percent of the award but they 
wound up showing King's lawyers received $2.3 million while he got only 
$1.9 million.
  Another lawyer in California won a class action suit for police 
brutality and civil rights and took a $44,000 verdict in the case, a 
$19,800 contingency fee, and collected $378,000 in fees awarded by the 
trial court; the client received $810.
  I have other examples. But one of my favorites is the Lawyers Weekly 
report that a growing number of lawyers are putting arbitration clauses 
in the fine print, shielding them from being sued by another trial 
lawyer if the clients say they botched a case. The lawyers themselves 
who are making the money off the large judgments prefer their disputes 
go to private arbitration because arbitration is faster, cheaper, 
decisions are made by other lawyers rather than juries, and there is no 
public record. So they have recognized that there are certain instances 
in which it does not make sense to allow unfettered access to the 
courts for people with a claim.
  If a patient is harmed and wins an award through a lawsuit, it is 
perfectly reasonable to expect the patient will receive at least 85 
percent of the money. Almost 180 pages of the bill protect patients 
from HMOs and insurance companies. I simply propose we add a few pages 
to the bill to protect patients from trial lawyers.
  I see the Senator from North Dakota is on the floor. I ask after the 
other side finishes speaking that my colleague from Iowa be recognized 
for 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from North Dakota is recognized.
  Mr. DORGAN. Mr. President, this amendment is one more in a series of 
amendments designed to try to derail the Patients' Bill of Rights, or 
the Patient Protection Act.
  There is no evidence of unfairness in the attorney fee portion of the 
bill that we brought to the floor of the Senate. No one has alleged 
that; no one has discussed that with us. This is the first moment in 
which there is an amendment offered and we have been working on this 
legislation for five years. It is interesting that the amendments are 
always designed to try to take the ground out from under patients, to 
diminish the opportunity for the patients to address the enormous 
problems they face in confronting a managed care organization that does 
not want to give the care promised the patients.
  This amendment ultimately prevents injured patients from finding the 
adequate legal protection they need in order to confront a managed care 
organization. Congress has passed over 300 laws allowing attorney fees, 
and the laws are described for every Senator to see in a Congressional 
Research Service report No. 94-870-8. I commend anyone to that CRS 
report which describes these laws.
  I have not found any Federal law on attorney's fees that is as 
restrictive as is proposed in this amendment. I repeat, there isn't any 
Federal law on attorney's fees that is as restrictive as that proposed 
this morning on the Patient Protection Act.
  Why, when we have this issue of managed care organizations not 
providing the care required for patients and we have the opportunity in 
this legislation to hold the managed care organization accountable, why 
is it that those who don't like this Patient Protection Act try to 
carve the ground out from under patients once again with a restrictive 
proposal that almost certainly would diminish the opportunity of a 
patient to acquire access to an attorney to make that HMO accountable?
  I find it also interesting that the concern behind this Bond 
amendment is apparently excessive attorney fees. There are striking 
excesses with respect to managed care organizations. Let me mention 
just a couple.
  What about excessive salaries, excessive stock options? I don't hear 
anyone coming to the floor of the Senate complaining about $50 million 
in compensation that the CEO of a managed care organization receives. I 
don't hear anybody saying that is an excessive salary for an individual 
to receive. How is it these CEO's get to be rewarded in amounts a large 
as $50 million? By pinching on access to care that ought to be 
delivered to patients.
  The opponents of our patients protection bill are not here on the 
floor saying that $50 million paid to the president of a managed care 
organization is excessive. We just hear them come out here to say we 
are worried about an excessive fee received by an attorney who is 
representing a patient trying to hold an HMO accountable.
  Mr. REID. Will the Senator yield for a question?
  Mr. DORGAN. I will be happy to yield, of course.

[[Page 12306]]


  Mr. REID. Is the Senator aware that William McGuire of UnitedHealth 
Group earned $54.1 million last year?
  Mr. DORGAN. I am aware of that.
  Mr. REID. Is the Senator aware that there were unexercised stock 
options worth an additional $68 million by various people with that 
company, but McGuire held the most stock options, worth $358 million? 
Is the Senator aware of that?
  Mr. DORGAN. I am aware of published reports that say that, yes.
  Mr. REID. Did I hear the Senator say he has not heard any debate on 
the Senate floor this past 10 days about this excessive, exorbitant 
amount of dollars to the people who run these companies and not helping 
the patients? I have not heard that; has the Senator?
  Mr. DORGAN. The Senator from Nevada is correct. We have not heard one 
word from opponents to our patients protection bill about the salaries, 
stock options, and the compensation paid to those who run the managed 
care organizations.
  Let me go back to the intention of our Patients' Bill of Rights, and 
then bring it to this amendment. The reason we are here in the first 
instance is because too many people in managed care organizations are 
not getting the care they need. Too many people do not get the care 
they need or expect from their health care plan, and they are not able 
to hold the health care plan accountable for it.
  This legislation says there ought to be protections in place for 
patients. Patients ought to be able to know all their options for 
medical treatment, not just the cheapest option. That is a patient's 
right. That is what we say in this legislation.
  Some people do not want that. The managed care group does not want 
that. The insurance companies do not want that. We say a patient ought 
to have a right to emergency room treatment when they have an 
emergency. That is a right that is in this bill that we are trying to 
get passed. I understand why the managed care groups don't want that. I 
understand why there are some who oppose it here in the Senate because 
they stand with the insurance companies and the managed care groups. We 
stand with the patients saying there ought to be basic protections in 
place.
  This amendment is one more attempt, by our opponents, in a series of 
attempts just to undermine this bill, to say no, we don't stand with 
patients, we don't stand with patients in order to allow them to 
exercise the rights that are in this bill. What our opponents would 
like to do is chip away and carve away at the foundation of this bill 
so at the end of the day the patients do not have these protections and 
the patients do not have these rights.
  This amendment, if it were genuine, if it were really concerned about 
fees, would not just address attorney's fees. They would address the 
compensation paid to those who run these organizations, who make $50 
million, $10 million, or $250 million in stock options. Is that 
excessive? We don't hear anyone on the floor of the Senate talking 
about that.
  Why? Because this is not about fees. It is about with whom do you 
stand. It is about people who really do not want this legislation to 
pass. They have been dragging their feet now, day after day after day, 
bringing out amendments to try to defeat the Patients Protection Act. 
In every case, in every circumstance, they have failed. This amendment 
is the latest attempt to do that. The amendment limits attorney's fees 
in circumstances where patients would try to hold a managed care 
organization accountable. It limits attorney's fees, as I understand 
it, to an amount below all other attorney's fees that are now written 
in Federal law. We have it in a number of places in Federal law. I have 
referenced the CRS report. All Senators can look at it.
  This amendment proposes we limit attorney fees below all those other 
areas mandated by federal law. Why? Because here we are talking about 
patients. We are trying to advocate on behalf of patients. Why would 
anyone want to take away the patients' rights when they are confronting 
big organizations?
  One of the interesting things is I hear all this talk about a patient 
who would hire an attorney to make a managed care organization 
accountable. I hear no discussion about the legion of attorneys who are 
hired by managed care organizations to deal with patients--none. Do you 
think the big insurance companies and big managed care organizations do 
not have a battalion of lawyers they pay? Of course they do. Maybe you 
want to limit their opportunity to use lawyers? I don't think so. I 
don't propose that.
  Then why would you want to limit the opportunity of patients to use 
attorneys to make an HMO accountable? This just makes no sense on its 
face. It is one more step, one more attempt to try to defeat this bill. 
We have had it day after day after day, amendment after amendment. I 
hope my colleagues will understand the last thing we ought to do is 
weaken the ability of the American people, who as medical patients 
expected certain care but did not get it, to be able to hire an 
attorney and make that managed care organization accountable.
  I would say one more thing. I would like those who offered this 
amendment, who are indeed concerned about ``fees,'' to be concerned 
about all fees. If they are concerned about lawyer's fees, good for 
you. Then be also concerned about $50 million, and $250 million in 
compensation paid to a CEO who runs a managed care organization. Be 
concerned about those fees as well. You want to be consistent, bring 
both amendments to the floor and let's debate both amendments.
  I reserve the remainder of my time and yield the floor.
  The PRESIDING OFFICER (Mrs. Carnahan). Under the previous order, the 
Senator from Iowa is recognized for 10 minutes.
  Mr. REID. The two leaders are on the floor. I think they are about 
ready to propose a unanimous consent request. If they are not now, 
would the Senator mind yielding when they are ready?
  Mr. GRASSLEY. I would rather wait. Hopefully, they will do it right 
now.
  Mr. REID. Madam President, I suggest the absence of a quorum and I 
ask unanimous consent to have the time run equally on this amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. GRASSLEY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Iowa.
  Mr. GRASSLEY. Madam President, I support the Bond amendment and want 
to speak specifically to that point. It also deals with the point I 
have made in other speeches--that this is a very good bill. But during 
the process of considering giving patients a bill of rights against 
insurance companies, I think we always have to keep our eye focused 
upon the fact that we want to give treatment for patients and not 
tribute for lawyers.
  This amendment takes a very good approach in fixing the Kennedy-
McCain bill's provisions dealing with the liability parts of the bill, 
which, in my view, amount to nothing less than a trial lawyer's pot of 
gold.
  I have always believed that medical malpractice liability laws should 
provide adequate compensation for those who are truly injured while 
reducing frivolous lawsuits.
  I firmly believe that it is a principle of any case, including 
patients against insurance companies, that people who are harmed ought 
to be made economically whole. But there has to be a balance between 
frivolous lawsuits and making sure that people can be made whole if 
harmed.
  I think the Kennedy-McCain bill fails to strike that very carefully 
needed balance and instead creates a lottery for trial lawyers, which 
not only inflates the cost of health insurance for all of us but also 
leads to more and more hard working Americans losing health coverage.
  We shouldn't do anything in this bill that will cause people to lose 
their

[[Page 12307]]

health insurance. We already have 42 million uninsured Americans. The 
best opportunity for affordable health insurance as well as coverage is 
in employer-related health insurance programs.
  Don't forget that we have over 50 million insured Americans under the 
self-insured plans that employers offer. The case is that most of these 
self-insured plans come from small business more so than large 
corporations. We should not be putting these employers and their 
employees in a situation where that employer, because of the threat of 
suit under this bill and losing a generation and a lifetime of savings 
in that family business, will not want to take a chance of losing his 
investment which has been built up through a family working together 
and investing everything back into the business because of a threatened 
lawsuit. If that is a threat, then you can understand why the employer 
might just eliminate their self-insurance and in the process throw the 
employees into a situation of having no health insurance, resulting 
increases in the number of 42 million people in this country who now do 
not have such insurance.
  Here is how I believe this will inflate costs, and thus cause 
employers and employees to not have health insurance coverage. Except 
for the $5 million cap that is in this bill on punitive damages in 
Federal courts, the Kennedy-McCain bill sets absolutely no limits on 
what damages trial lawyers can collect.
  When it comes to patients and those harmed because of lawsuits, it 
ought to be an axiom of all of our public policy that the people 
harmed, not lawyers, should get most of the money from a lawsuit.
  Of course, the Bond amendment then makes this more true than under 
the existing practice. You have to consider that trial lawyers 
generally collect 40 percent of their clients' recoveries. In fact, in 
many cases, you can have the lawyer's fees plus other court costs work 
out to where the person harmed is getting less than 50 percent of what 
the jury might award.
  Trial lawyers generally collect 40 percent of their clients' 
recoveries. Incentives for bringing cases regardless of merit are then 
extremely high. It is a perverse incentive to go to court and to go to 
trial.
  But the real jewel in the trial lawyer's crown is this bill's 
provision that allows the same suits for the same claims brought by the 
same trial lawyers, whether they proceed in State or Federal courts.
  Even though this debate is supposed to be about patients, the 
Kennedy-McCain liability scheme isn't about patients at all. It is 
about trial lawyers. In fact, as you can see, I call this the ``trial 
lawyers lottery ticket.'' I want to show where five out of six 
opportunities for monetary awards are virtually jackpots for lawyers.
  Take a closer look. I would like to just scratch the trial lawyer's 
lottery ticket and see what the lawyer gets. Let's start with medical 
costs.
  Peel off the lottery ticket top, both for State court and Federal 
courts, you will see ``bingo''--no limit on what trial lawyers can 
collect in both State and Federal court. That is a jackpot that ought 
to make any lawyer happy.
  But why quit when you are ahead? Let's take a look at what is in 
store on pain and suffering. Peel that lottery ticket, and you can see 
what you get on pain and suffering. It is another jackpot--unlimited 
damages in State and Federal courts.
  The sky is the limit. That is where the trial lawyers are really 
winning big.
  Now, for the trial lawyer's favorite damages, punitive damages, they 
stand to reap tens of millions of dollars.
  Let's see what this ticket offers the trial lawyers. So we pull off 
the punitive damages square. You can see: unlimited damages in State 
court, and up to a $5 million cap in damages as far as the Federal 
courts are concerned.
  This is another big win. Talk about good luck: unlimited punitive 
damages in State courts, and in the Federal courts almost unlimited--a 
$5 million cap. If you ask me, that is hardly any limit at all.
  Mrs. BOXER. Will the Senator yield for a question?
  Mr. GRASSLEY. No, I will not. I only have 10 minutes. And we lost 
some other time on this situation of waiting for the leader.
  Mrs. BOXER. On my time. I would ask a question on my time.
  Mr. GRASSLEY. Finally, if I could, let's not forget about class 
action lawsuits where multimillion-dollar damages are the name of the 
game. So here again we peel off the lottery ticket. You can have class 
action lawsuits in State courts. You can have class action lawsuits in 
Federal court.
  So bingo again. Kennedy-McCain has no limits on class action 
lawsuits. It even creates new grounds for bringing class action cases.
  As you can see, everybody wins--every lawyer, that is--with the trial 
lawyers' lottery ticket.
  What we get back to then is that we are more concerned about 
treatment for trial lawyers, not treatment for patients. It seems 
ironic that the very individuals this bill claims to protect are the 
ones who lose. Despite what its sponsors say, the bill before us 
exposes employers to the constant threat of litigation, even for simple 
administrative tasks and clerical errors.
  What is the ultimate result? What everybody says they do not want to 
ever happen. People lose coverage. When this sort of perverse incentive 
is out there to threaten small business, particularly those that are 
self-insured--because they do not want to put in jeopardy their 
lifetime of work but want to create jobs, so they can be part of the 
community, so they can have good workers and pay their workers well--
and, most importantly, workers want good fringe benefits; and the No. 1 
fringe benefit they want is health insurance--it puts it in jeopardy 
employer-based coverage. Then the ranks of the uninsured go up 
tremendously.
  I yield myself 1 more minute.
  Mrs. BOXER. Reserving the right to object, I would ask for 1 minute 
as well upon the conclusion of the Senator's remarks.
  Mr. GRASSLEY. I object to that. There is plenty of time on that side 
for the Senator to take her time. I am taking time off our side.
  Madam President, how much time do I have left?
  The PRESIDING OFFICER. There are 3\1/2\ minutes left for the sponsor.
  Mr. GRASSLEY. I would like to take 1 minute of that 3\1/2\ minutes.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. So the ranks of the uninsured are going to go up. There 
are 42 million uninsured now. Do we want to increase that? No, nobody 
wants to increase that, but that is going to be the end result when 
these self-insured plans are dropped. Then, of course, the employees 
become the biggest losers in this lottery.
  So I urge my colleagues to reject this lottery and to support the 
Bond amendment, which creates much needed patient minimums and ensures 
that patients, not lawyers, get fair compensation for their losses.
  I reserve the remainder of the time and yield the floor.
  The PRESIDING OFFICER. Who yields time?
  The majority leader.
  Mr. DASCHLE. Madam President, I will use my leader time and not take 
any time off the agreed-upon time allocated for the amendment.
  Madam President, I would just say on the amendment, there is nothing 
in there that would limit the lawyers' fees for the insurance industry. 
Those are unlimited. While they limit the legal fees for lawyers 
defending patients, there is nothing to limit the legal fees for 
lawyers defending HMOs and insurance companies. I find that quite 
ironic.


                      Supplemental Appropriations

  Madam President, I want to propound a unanimous consent request. I 
will not do that at this time because I have been talking with the 
distinguished Republican leader. But I want to propound a request, as I 
had indicated I would, to lock in the debate for the supplemental.
  There are a number of amendments that have been suggested. I know the 
unanimous consent agreement has been

[[Page 12308]]

cleared on our side now for I think 3 days. We have been unable to get 
consent from our Republican colleagues for the last 3 days.
  Now I am told they may object to even going to the supplemental, at 
least initially. If that happens, of course, I will be forced to file a 
motion to proceed. But I think it is important.
  There was a story in the Washington Times dated June 26, and I think 
for the Record it would be helpful if I just read it because I think it 
does capture the urgency with which we address the supplemental. So I 
will take just a moment to read it:

       The U.S. military would be forced to curtail or cancel 
     training exercises, facility repairs and equipment 
     maintenance if Senate Majority Leader Tom Daschle holds up a 
     pending emergency budget until late July, according to 
     Pentagon projections.
       The Pentagon provided a list of hardships at the request of 
     Senate Minority Leader Trent Lott. He used the list yesterday 
     to criticize Mr. Daschle for threatening to delay action on a 
     $6.5 billion supplemental budget bill until the Senate 
     completes work on a contentious patients' bill of rights. 
     That delay would push approval of the fiscal 2001 defense 
     legislation until late July or beyond.
       ``If we don't get this bill completed by . . . mid-July, 
     we're going to have canceling of base-property maintenance, 
     [and] holding some of our deployed units where they are 
     overseas until the end of the fiscal year,'' said Mr. Lott. 
     ``So we're really pushing the envelope when it comes to the 
     needs of our military personnel in health as well as in 
     steaming hours.''
       Picking his first confrontation with Democrats since they 
     took control of the Senate, Mr. Lott also accused Mr. Daschle 
     of sacrificing the nation's urgent energy needs 
     in order to push through the health
     care bill. . . .
       Nearly all the budget bill's funding goes for replenishing 
     military training accounts depleted by peacekeeping missions 
     in the Balkans and elsewhere. Without emergency funding soon, 
     the military will be forced to:
       Curtail all nonessential operations such as pilot training, 
     steaming hours, fleet exercises, and air combat training 
     maneuvers. The Air Force and Navy would ground some pilots 
     and aircraft.
       Perhaps hold deployed units overseas until the new fiscal 
     year begins October 1.
       Cancel training for units getting ready to deploy for 
     peacekeeping duties.
       Stop or slow down maintenance of equipment at large 
     regional depots.
       ``This will lead to the loss of jobs for many Americans,'' 
     Mr. Lott's office said.
       The Joint Chiefs of Staff originally wanted about $9 
     billion in [requests].

  Madam President, I ask unanimous consent that the entire article be 
printed in the Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

               [From the Washington Times, June 26, 2001]

                     Daschle Delays; Military Waits


                     Pentagon needs emergency funds

                 (By Rowan Scarborough and Dave Boyer)

       The U.S. military would be forced to curtail or cancel 
     training exercises, facility repairs and equipment 
     maintenance if Senate Majority Leader Tom Daschle holds up a 
     pending emergency budget until late July, according to 
     Pentagon projections.
       The Pentagon provided a list of hardships at the request of 
     Senate Minority Leader Trent Lott. He used the list yesterday 
     to criticize Mr. Daschle for threatening to delay action on a 
     $6.5 billion supplemental budget bill until the Senate 
     completes work on a contentious patients' bill of rights. 
     That delay would push approval of the fiscal 2001 defense 
     legislation until late July or beyond.
       ``If we don't get this bill completed by . . . mid-July, 
     we're going to have canceling of base-property maintenance, 
     [and] holding some of our deployed units where they are 
     overseas until the end of the fiscal year [Sept. 30],'' said 
     Mr. Lott, ``So we're really pushing the envelope when it 
     comes to the needs of our military personnel in health as 
     well as in steaming hours.''
       Picking his first confrontation with Democrats since they 
     took control of the Senate, Mr. Lott also accused Mr. Daschle 
     of sacrificing the nation's urgent energy needs in order to 
     push through the health care bill.
       Neglecting energy and defense has ``very dangerous 
     implications for the security and prosperity of the American 
     people,'' the Mississippi Republican said.
       Nearly all the budget bill's funding goes for replenishing 
     military training accounts depleted by peacekeeping missions 
     in the Balkans and elsewhere. Without emergency funding soon, 
     the military would be forced to:
       Curtail all nonessential operations such as pilot training, 
     steaming hours, fleet exercises and air combat training 
     maneuvers. The Air Force and Navy would ground some pilots 
     and aircraft.
       Perhaps hold deployed units overseas until the new fiscal 
     year begins Oct. 1.
       Cancel training for units getting ready to deploy for 
     peacekeeping duties.
       Stop or slow down maintenance of equipment at large 
     regional depots.
       ``This will lead to the loss of jobs for many Americans,'' 
     Mr. Lott's office said.
       The Joint Chiefs of Staff originally wanted about $9 
     billion in emergency funding in January. But incoming Defense 
     Secretary Donald H. Rumsfeld nixed the request. The White 
     House scrubbed the numbers and presented the $6.5 billion 
     proposal. The House already has approved that number, as did 
     the Senate Appropriations Committee.
       Mr. Lott said he suggested the Senate OK the emergency 
     defense bill by unanimous consent, since both chambers 
     approved Mr. Bush's list of spending requests without adding 
     home-state projects, as was the practice with supplemental 
     bills the past few years. But Mr. Lott said Mr. Daschle, 
     South Dakota Democrat, rejected that idea.
       Mr. Dashle, despite earlier indications that he would allow 
     a speedy vote on the spending bill, told colleagues Friday 
     that he would not bring it to the floor until the Senate 
     completes work on a patients' bill of rights.
       Republicans have been slowing down final passage of that 
     legislation, raising concerns about employer liability and 
     increasing premiums. Their tactics could derail Mr. Daschle's 
     stated goal of finishing the bill by Friday.
       The fate of the health care bill is particularly sensitive 
     for Mr. Daschle because it is his first test of his ability 
     to move legislation since becoming majority leader. Senate 
     committees remain unable to take up new legislation due to 
     prolonged negotiations between the parties on how to 
     reorganize and whether to guarantee votes on Supreme Court 
     nominees.
       Daschle spokeswoman Molly Rowley said Mr. Daschle wants to 
     complete the patients' bill of rights, the spending bill and 
     the reorganization before the Senate adjourns for the Fourth 
     of July recess.
       ``We think all three of these things can be done this week 
     before we leave,'' she said.
       Sen. Robert C. Byrd, West Virginia Democrat and chairman of 
     the Appropriations Committee that approved the spending bill 
     last week, said yesterday he was ``not in a position to 
     comment'' on Mr. Daschle's intentions.
       ``The leader has to balance a lot of things,'' Mr. Byrd 
     said, ``I'm sure he'll get to the [spending bill] when he 
     thinks he can.''
       Mr. Lott said Mr. Daschle rejected his suggestion to 
     approve the spending bill by today, making it unlikely that a 
     conference bill could be worked out before the House adjourns 
     Friday for a weeklong Independence Day vacation.
       ``We need to get this defense and other issues supplemental 
     done before we leave, because it is critical for nonessential 
     operations like pilot training, steaming hours, fleet 
     exercises,'' Mr. Lott said, ``I'm very worried that by not 
     acting this week on the defense supplemental appropriations 
     bill we're asking for more delay and even more problems with 
     our defense needs.''
       Mr. Daschle has been threatening to cancel the Senate's 
     vacation to compel Republicans to finish work on the health 
     care bill.
       Republicans and Democrats have been sniping politely about 
     legislative priorities ever since the power shift in the 
     Senate. Republican lawmakers have been pressing for passage 
     of President Bush's energy plan, but Mr. Daschle has 
     expressed more interest in the health-care legislation, as 
     well as increasing the minimum wage and passing a hatecrimes 
     bill.
       Mr. Lott said yesterday that Democratic leaders do not 
     intend to address the energy issue by the end of July.
       Congress is in recess for the entire month of August, 
     meaning the Senate would not take up the administration's 
     energy plan unitl September at the earliest.
       House and Senate Republicans met with White House 
     representatives late yesterday and agreed to call attention 
     to Democrats' inaction on an energy plan over the recess next 
     week. The meeting took place in the office of House Majority 
     Whip Tom DeLay, Texas Republican.

  Mr. DASCHLE. Madam President, Senator Stevens and Senator Byrd came 
to me a couple of weeks ago and asked for a special exemption from the 
understanding we have been working under here in the Senate that no 
official action can take place on any legislation until we have broken 
the impasse on the organizing resolution and assigned each committee 
its full complement of members. I, of course, agreed, in the interest 
of urgency, to allow the Appropriations Committee to work its will and 
to finish this supplemental, which is what it did. I applaud both of 
them for taking the action they did.
  The House, of course, has now acted. Now it is up to us. A couple of 
days ago the President called me and said: Above all, I hope that you 
will pass the supplemental before you leave. I gave

[[Page 12309]]

the President my personal assurance that we would pass the supplemental 
here in the Senate before we leave.
  Now I am told that there are some who would prefer to take vacation 
rather than finish the work. Madam President, we can't do that. We 
can't take vacation until the work is done. We can't take vacation 
until the Patient Protection Act is done. We can't take vacation until 
the supplemental is done. We can't take vacation until the organizing 
resolution is done. It is as simple as that.
  I will propound a unanimous consent request at a later time because I 
know Senator Stevens wanted to come to the floor. We have been working 
through this. As I say, I thought we had an agreement. In fact, I was 
told we were able to propound the request an hour or so ago. 
Unfortunately, that report apparently was in error.
  I am going to do what we have to do, in part because as Senator Lott 
has said so clearly--and forcefully--the alternative to not acting is 
to risk what the Washington Times has reported, to wreak havoc with the 
military, to keep them from getting their job done, to actually 
endanger our military personnel in some ways. We are not going to be 
accused of endangering the military. We have to do what the President, 
the Commander in Chief, requested. That is what we are doing here.
  We will offer the unanimous consent request to proceed. If that 
fails, I will file a cloture motion on the motion to proceed, and when 
it ripens we will have the vote. But we will have the vote.
  Mr. DORGAN. Will the Senator from South Dakota yield?
  Mr. DASCHLE. I am happy to yield.
  Mr. DORGAN. I ask the majority leader, isn't it the case that the 
three issues that are outstanding--finishing the Patients Protection 
Act, passing the supplemental, and the organizing resolution--could be 
done rather quickly? We have, after all, been debating the Patients 
Protection Act for some long while. We have gone through most of the 
major amendments. We started debating this issue 5 years ago. It has 
now been on the floor for some while. We have done most of the major 
amendments. If we could complete the Patient's Bill of Rights later 
today we could move on to other business. I am a member of the 
Appropriations Committee. When we passed the supplemental bill, it was 
passed almost with no amendments in the House of Representatives; that 
bill is very important--we did it with very little debate in the full 
Appropriations Committee. The organizing resolution can be completed, I 
understand, with perhaps one vote.
  It is the case, isn't it, that all of this could be done perhaps this 
evening if we had cooperation? Is that not the case?
  Mr. DASCHLE. The Senator is correct. As I understand it, this bill 
was not subject to amendment in the House. It passed overwhelmingly in 
a very short period of time. I don't know why we would have to elongate 
or unnecessarily prolong the debate on this side.
  Whatever length of time may be required to consider this bill, we 
will do that. All I am saying is that we have to do it before we leave.
  I see both the ranking member of the Appropriations Committee and the 
distinguished Republican leader are on the floor.
  I ask unanimous consent that the majority leader, following 
consultation with the Republican leader, may proceed to the 
consideration of Calendar No. 76, S. 1077, the supplemental 
appropriations bill and that the bill be considered under the following 
limitations: That only first-degree amendments in order other than a 
managers' amendment be the following list which is at the desk--I won't 
read the list at this point--that any listed first-degree amendment be 
subject to relevant second-degree amendments, that any time limitation 
for debate on a first-degree amendment be specified in this agreement; 
then any second-degree amendment to that amendment be accorded the same 
time limit; that upon disposition of the above amendments, the bill be 
advanced to third reading; the Senate then proceed to the consideration 
of Calendar No. 77, H.R. 2216; that all after the enacting clause be 
stricken and the text of S. 1077, as amended, be inserted in lieu 
thereof; that the bill be advanced to third reading, and the Senate 
then vote on passage of the bill with no intervening action or debate.
  Finally, I ask unanimous consent that S. 1077 be returned to the 
calendar.
  The PRESIDING OFFICER. Is there objection?
  Mr. LOTT. Reserving the right to object, Madam President.
  The PRESIDING OFFICER. The Senator from Mississippi.
  Mr. LOTT. First of all, I think it is important that we dispose of 
this issue as quickly as possible so that we can get back to the debate 
on the amendments that are pending. There are still a number of very 
important amendments that Senators wish to offer with regard to the 
Patients' Bill of Rights. I know the Senator from Nevada has been 
working on this issue and knows that. These are substantive and 
important amendments.
  When it was suggested by the Senator from North Dakota that most of 
the major amendments have already been offered and considered, I don't 
believe that is accurate. Of course, I guess how important they are is 
in the eye of the beholder or the offeror of the amendment. I think it 
is important that we address this issue and get back to having debate 
and hopefully votes this afternoon and into the night, however long it 
takes to deal with important issues that still need to be addressed.
  We still believe very strongly that this bill has not been corrected 
in terms of its major problems in the likelihood of loss of coverage 
and increased premiums, and when, how, and where lawsuits are going to 
be filed instead of making sure patients get the health care coverage 
they need. We can resolve this relatively quickly and then go back to 
that.
  With regard to the organizational resolution, we continue to exchange 
ideas. I think it is possible that it could be handled with only one 
vote, or it may take three, but we are hoping we can get that worked 
out. I know there are a couple of letters that are being reviewed now 
on both sides that might make it unnecessary to have three recorded 
votes. I think we are going to have two letters dealing with the 
question of public disclosure of the blue slips which can be used by 
Senators to block a judicial nomination. There is a strong belief on 
both sides that those should be made public and not just handled 
secretly, as has sometimes been the case but not always the case, in 
the past.
  Also, we are looking to see if we can get some agreement in writing 
that we would continue to do what the precedents are with regard to 
Supreme Court nominees. I believe going back all the way to 1881, the 
whole Senate has voted on Supreme Court nominees even when the 
committee has voted on a tie or negatively. But we are working on that, 
and I would like us to get that resolved in the next 24 hours myself.
  With regard to this unanimous consent request, I had really hoped we 
could do it Monday. I thought it could have been, I believed it could 
have been done Monday in a very limited period of time without this 
rash of amendments. I think we could have gotten an agreement that 
there be no amendments. That didn't happen for whatever reason.
  Senator Byrd and Senator Stevens had indicated they would like to 
have done it even last night so that we could have done it quicker and 
so we could perhaps have gotten into a conference with the House. The 
problem now is that if we don't take this up immediately, right now, we 
are not going to be able to get a conference agreement. There is no 
chance of a conference agreement until after the Fourth of July recess, 
even if the Senate should act sometime tomorrow or Saturday. I really 
had hoped we could do it earlier so we could get into conference, get 
it completed, and send it to the President. That now appears not to be 
likely, unless the Senate wants to turn

[[Page 12310]]

right now to consider this very important supplemental appropriations 
resolution. I would like that to be considered.
  Failing that, I think we are not going to object to agreeing to this 
unanimous consent request, but there are 35 amendments now--34 or 35. 
Some of them clearly are important to Senators involved on both sides 
of the aisle. Senator Bond has a couple of them. Senator Boxer has one 
I think she probably feels very strongly about. Senators Cleland, 
Roberts, and others have amendments with regard to the B-1 bomber. 
Senator Conrad, I haven't talked to him, but he has one on Turtle 
Mountain Indians. As you look down the list, some of them are not just 
relevant, some of them are amendments about which Senators are going to 
care greatly. And it looks to me as if you are talking about an 
extended period of time at this point to complete action on this 
legislation. I regret that.
  If we could get an agreement to go to it now--I see Senator McCain; I 
know he has an amendment he feels very strongly about--if we could do 
that now, maybe we could get some time agreements and move to 
completion.
  I see the distinguished Senator from Alaska, the senior member of the 
Appropriations Committee on the Republican side, who wants to speak. I 
am glad to yield under my reservation, Madam President.
  Mr. STEVENS. Madam President, I am here to urge that the Senate take 
the bill up now. I think if we took it up now, working with the people 
who have those amendments, we ought to be able to finish it today. I 
think if we finish today, the House will stay, and we could complete 
this before the recess. If we wait until Monday after the House has 
already gone home, it will be very difficult to get them back, even 
from the point of view of getting travel arrangements for the House to 
come back on Monday or Tuesday.
  I cannot speak for the chairman, but I can say that we both have 
sought for the last 2 weeks to try to have this bill become law in time 
to meet the needs of the armed services. Very clearly, they have been 
demonstrated now. There is no question that if we do not get this bill 
passed, there is going to be an impact on the armed services. I will 
commit myself to both leaders to work with all Members to see what we 
can work out, to constrict the time and finish it tonight, if we can 
take it up now. That might put pressure on the other bill, too.
  I urge that the organization resolution get resolved. I personally 
say to both leaders, my Kenai Peninsula is on fire. That is where I 
want to go fishing next week, too. So there is a disaster and the 
urgent call of the pink salmon to respond to.
  I pledge myself to work even harder than Senator Reid does to find 
some way to constrict this time so we can vote on this and get it to 
the House and bring it back so we can all vote on the bill before we go 
home. I plead with the leaders to let us have the reins for a few hours 
and see what we can do. I think we can finish this bill tonight.
  Mr. LOTT. Madam President, under my reservation, I will propound as 
an alternative unanimous consent agreement the same proposal the 
majority leader has made, except that in the first paragraph under 
consultation with the Republican leader, I would add ``may proceed 
immediately to the consideration of Calendar No. 76, S. 1077.'' I make 
that in the form of a unanimous consent request.
  The PRESIDING OFFICER. Is there objection?
  Mr. DASCHLE. Madam President, reserving the right to object, I have 
offered this to our Republican colleagues now for several days. I have 
said, give me a definitive list that will allow us to finish our work 
on the Patients' Bill of Rights. We will proceed immediately to the 
supplemental, finish it, and then return to the Patients' Bill of 
Rights with the understanding that we will complete work on that as 
well.
  Unfortunately, our Republican colleagues have been unable to do that. 
My offer still stands. Give me a definitive list that we can complete 
before we leave, and I will go immediately to the supplemental. I have 
offered it privately to Senator Lott. I have offered it to our other 
colleagues. That offer still stands. Until we get that assurance, I 
will object.
  Mr. LOTT. Under my reservation, I have one inquiry. I thought we had 
a definitive list. It may be big, but I thought we had a list of 
amendments still pending out there.
  Mr. DASCHLE. I have not seen it.
  Mr. LOTT. We will work on that.
  The PRESIDING OFFICER. Is there objection to the original request?
  Mr. REID. While the two leaders are here, if I may chime in, first of 
all, Senator Daschle has read the importance of this supplemental. If 
it is as important as has been read into the Record, it would seem to 
me the House should hang around a little while longer.
  I say to the Republican leader and our majority leader, I haven't 
seen a list of amendments. Everybody knows we have just a few important 
amendments to finish the Patients' Bill of Rights. If we are given a 
list of amendments that is large in number, I don't think that is in 
keeping with what I think should be the general agreement to finish the 
legislation. If we are given a list of 10, 20, 30, 50 amendments, I 
suggest to the majority leader, that is not part of the deal. We have a 
few amendments left to go.
  Mr. LOTT. If Senator Daschle will yield to respond briefly, I thought 
you had been given a list. I am going to make sure you have it and then 
we can evaluate that and work on it.
  Mr. DASCHLE. Madam President, I offer a unanimous consent request 
that the Senate complete its work on the Patient Protection Act by 6 
o'clock tonight, and we have final passage by 6 o'clock tonight. If we 
can agree to that right now, I will move to the supplemental at 12 
o'clock this afternoon.
  Mr. LOTT. Madam President, I object to that. Obviously, I have to 
consult with the managers of the legislation on our side about the 
amendment list, which is very long, and I have it now, and about what 
is possible in terms of completing it. I don't think it is possible at 
all to set an arbitrary time, in view of the very serious amendments 
that are pending on the Patients' Bill of Rights. So I object to that 
request.
  The PRESIDING OFFICER. The original request of the majority leader is 
still pending. Is there objection?
  Mr. STEVENS. Reserving the right to object, Madam President, I am 
constrained to say with due respect to the leader and the majority 
leader and majority whip, I find it very difficult to deal with the 
concept putting ahead of this supplemental the completion of two very 
controversial items. We know the House is going home, and having spent 
8 years here on the floor as leader, I can tell you I have never seen 
the time when any Senate could dominate the House. We have a bipartisan 
agreement to go home. They have told me they will stay if we get this 
bill done and over there today.
  I do believe that the interest of national defense should come ahead 
of concepts that we are dealing with here in terms of whether it is the 
Patients' Bill of Rights or organization of the Senate. We know people 
will be told they cannot train in July and August unless we get this 
bill done this week. It is not something on which we have been 
dilatory. We have been trying for a long time.
  I have great respect for the leader and the assistant leader, but I 
cannot stay silent and have a concept that because the leader has 
stated these things must be done, they must be done before the 
supplemental is brought up. That is unacceptable to this Senator. I 
think it is unacceptable to the Senate. I hope it is.
  I say with great humility now that the needs of our people in the 
armed services must come ahead of concepts of scheduling or 
prerogatives here on the floor. These needs are very real. We have 
twice held hearings now where the chiefs have told us what is going to 
happen if this bill is not signed by the President before the Fourth of 
July.
  Even the concept of taking up and passing it now and letting it wait 
for the House to come back is unacceptable to me because, again, we all 
travel and we know you can't let the House go home and expect they will 
come back

[[Page 12311]]

here on July 3 just before the Fourth of July. You can't travel in this 
country that easy during that period.
  So I plead with the Senate, let us proceed with this bill. We should 
put aside all other desires. There is no timeframe on the Patients' 
Bill of Rights that matters to this country. It is a bill that must be 
passed, and I am going to vote for it. But it does not have the urgency 
of this supplemental.
  This supplemental deals with more than that. It now deals with 
matters that are emergencies coming out of the disasters that have 
happened in this country this spring.
  I hope the leader will accept my comment that I mean no offense to 
him. I have served under several leaders, and I admire both Senator 
Daschle and Senator Reid for what they are doing. But it is 
unacceptable to me to say no in terms of a request that has come on a 
bipartisan basis to put this bill aside for a few hours and pass a bill 
as important to the military of this country as is this supplemental.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. DASCHLE. Madam President, I remind my dear friend and colleague, 
the Senator from Alaska, in 1999, we took up the Patients' Bill of 
Rights under a unanimous consent request and passed it in 4 days, with 
17 amendments. Now we are told we can't do it in 2 weeks. While we may 
differ on whether the supplemental is more or less important than the 
Patients' Bill of Rights, I would hope we could all agree that 
completing action before we leave on a supplemental dealing with the 
safety of our troops is a top priority. The Pentagon places an 
extraordinary priority on this legislation--so much so that the 
Commander in Chief called me to ask that it be done this week. 
Certainly we can agree it is more important than fishing or any other 
kinds of vacation we could be taking next week. While there may be some 
differences on other issues, I would think there would be unanimity 
that getting the supplemental done is more important than taking a 
vacation.
  So that is what the issue is. We are not going to take a vacation 
until we have completed action on the supplemental. We are not going to 
leave until this is done. This is something that not only has been 
requested by the Pentagon but by the Commander in Chief as well; I 
would hope if the President makes additional calls, he will call the 
House and say: Don't leave until we get this done. You have heard the 
Pentagon. Don't leave until this is done. Vacations are secondary to 
work. We have to get it done.
  I yield the floor.
  The PRESIDING OFFICER. Has an objection been heard?
  Mr. STEVENS. Reserving the right to object, that is a little bit of a 
cheap shot. I am not talking about a vacation. I am willing to stay 
here as long as any other Senator. I am talking about the realities of 
the House. Leader, I am not going to forget that. That was a cheap 
shot, and for the time being, I object to the request.
  The PRESIDING OFFICER. Objection is heard.


                           Amendment No. 831

  The PRESIDING OFFICER. Who yields time on the amendment? The Senator 
from Missouri.
  Mr. BOND. Madam President, I reserve the remainder of my time. I 
believe there is more time on the other side. I want to give the other 
side their remaining 19 minutes, but I believe we only have 2 minutes. 
I reserve those 2 minutes for the end of the debate, and I do have a 
couple of minutes after they have had an opportunity to present their 
case.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Madam President, with the consent of Senator Kennedy, I 
yield myself such time as I may consume, recognizing the Senator from 
North Dakota wishes to be recognized. I will not take long.
  Many years ago, before I came to Congress, I practiced law. I was a 
lawyer. I was a trial lawyer. I am very proud of that fact.
  With that brief background, I received a call last night from a 
lifetime friend. I have not talked with him in a while, but we went to 
high school together. We played ball together. We were inseparable 
friends. He did not have my phone number. I had moved. He called my 
office and said it was urgent.
  He called because his son was in trouble. Why? Because they had hired 
a cheap lawyer. His son was in trouble, and they hired a cheap lawyer. 
The young man is now in jail.
  My friend from Missouri is a lawyer, a fine lawyer, I am sure. I 
refer to the pending amendment as the ``cheap lawyers amendment.'' You 
cannot find decent lawyers to take a case for 15 percent. Almost 50 
percent of the cases in our Federal court system take 4 years to 
litigate, with files stacked as high as my desk. People work to prepare 
those papers representing people who are injured, hurt, and need an 
attorney. That is why we have contingent fees. It is hard to find 
lawyers to take even a good contingent fee case because they have to 
consume so much time and effort.
  Of course, there are some people who are paid too much, I am sure, 
because they put in the time and it is a contingent fee. I sold my home 
in Virginia within the past year. The woman who sold my home was a good 
realtor. I tried to find the best I could. I signed a contract with 
her. She made a ton of money on my home. She worked about a week. I 
don't know, but she probably took a lot of time off during that week. 
My home sold in a week. She made a lot of money for the few hours she 
spent on my home, but that is the way America works.
  If we have people who need help, we need to have the full panoply of 
lawyers available so they can get a good lawyer.
  My friend from Iowa had a chart and peeled off medical bills: These 
people are going to get their medical bills. Well, isn't that too bad. 
If someone does something wrong, should they not pay your medical 
bills? Do you need to have a lotto, as he says, a lottery to get your 
medical bills paid? I hope not.
  We have heard mentioned several times, if we are concerned about 
attorney's fees, how much are these attorneys for these big HMOs making 
to prevent people from getting medical care? Let's take a look at that.
  We talk about these cases in the abstract, but the fact is that 
attorneys, whom everyone wants to hate, are necessary; they help. I am 
proud of the fact I was a lawyer. I have four sons. Every one of them 
is a lawyer, and I am proud of the fact that they followed in the 
footsteps of their father. My daughter is a schoolteacher. She married 
a lawyer. I am very happy for that.
  We do not have to be shameful, concerned, or embarrassed about some 
lawyers getting paid a contingent fee. That is how people who are 
injured and hurt are allowed to take those cases.
  Fifteen percent will discourage representation by good lawyers. My 
friends on the other side of the aisle talk about the sanctity of 
contracts. Why do we want to step in and tell States what lawyers can 
be paid based on a contract they get?
  This amendment is only to protect HMOs, as all the other amendments 
from the other side, to try to derail this legislation. This amendment 
is a frivolous amendment. It has nothing to do with the merits of this 
legislation.
  Mr. DORGAN. Mr. President, will the Senator from Nevada yield?
  Mr. REID. I will be happy to yield to my friend from North Dakota.
  Mr. DORGAN. The Senator from Nevada and I had a brief discussion 
previously about this issue. He is correct that this amendment attempts 
to limit the ability of patients to hold HMOs accountable.
  The discussion by those on the other side who have offered this 
amendment talks about lawyers in a pejorative way on behalf of 
patients. Does the Senator know of any attempts by those who have 
offered this amendment to limit HMOs, managed care organizations, from 
using lawyers, or is this just saying we will limit patients from using 
an attorney to go after a managed care organization that did not 
provide the care they promised, but we will not limit managed care 
organizations from using attorneys to do whatever they want to do?

[[Page 12312]]


  Mr. REID. Madam President, I answer as follows: Of course, there is 
nothing in the way of amendment to limit what attorneys for these 
wealthy, big, sometimes brutal HMOs are paid. But remember, I say to my 
friend, that people who are seeking help from a lawyer are looking for 
a lawyer who will do it not on an hourly basis but who will do it on 
what is called a contingent-fee basis. They have no money to hire one 
of the big HMO lawyers, so they look around and find somebody who will 
take their case on a contingent-fee basis.
  I say to my friend, a 15-percent contingent fee will not get a good 
lawyer. It will be like my dear friend who called me last night. In 
effect, the client will not wind up in jail but will end up with no 
compensation.
  Mr. DORGAN. I ask my friend from Nevada to yield further for a 
question.
  Mr. REID. I will be happy to yield to my friend for a question.
  Mr. DORGAN. Is it not the case that this entire process, this debate 
on the Patient Protection Act, is an attempt to balance things a bit; 
that patients do not have the ability to confront a big managed care 
organization?
  The Senator from Nevada knows the story we have talked about coming 
from his State: Christopher Roe, a circumstance where a 16-year-old boy 
was fighting cancer at the same time he was fighting his managed care 
organization for treatment and care he needed. That is not a fair 
fight, asking a young boy to fight an insurance company and fight for 
his life at the same time. That young boy lost his life on his 16th 
birthday.
  The question is, Do those patients and their families have the right 
to get an attorney to hold the managed care organization accountable to 
deliver the care they promised? Do they have that right?
  We have an amendment pending that says: No, we are going to limit the 
rights of the patients, we are going to limit the rights of citizens, 
but we are not interested in limiting the rights of the managed care 
organizations because we want to stand for them rather than standing 
for patients, and that is the issue.
  Mr. REID. In answer to my friend, I have a CRS report that talks 
about awards of attorney's fees by Federal courts and Federal agencies. 
It is big. I know of no other Federal attorney fee statute that affects 
a State system.
  This amendment is wrong. I appreciate very much my friend from North 
Dakota, who is not a lawyer, standing up and speaking for the injured 
people and the potentially injured people of America.
  Mr. KENNEDY. Madam President, I ask for 3 minutes.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Madam President, I rise in opposition to the amendment 
that has been offered. We have seen the efforts of the HMOs to 
undermine this legislation in different ways over the last few years. 
We were unable to bring this matter up for consideration by the Senate 
and get full consideration of the bill when we wanted to. This happened 
even during the last term when a majority of the Members would have 
supported a good, tough, effective Patients' Bill of Rights. We have 
seen over the past days constant efforts to undermine this legislation.
  We see another effort to try to appeal to the Members about the 
excessiveness of decisions made in the courts to reimburse individuals 
in terms of wrongdoing by other industries.
  The fact is, as we are reminded by our colleagues, we have spent 3 
days talking about the sanctity of the contract between the HMO and the 
patient. We have had amendment after amendment saying, look, this is 
enormously important. We do not want to permit any changes in that 
contract. We want to stick with that contract. We want to hold to that 
contract. Now with the Senator's amendment we are saying basically that 
we are going to ride roughshod over contracts that are decided, 
permitted, and authorized by law in the States between attorneys and 
their clients.
  I have listened a great deal to talk about how Washington doesn't 
know best; how we don't want just one solution to solve all of our 
problems. We had that debate early this morning and last night. We now 
have one solution: to override States in terms of what decision the 
States make for compensation going to court.
  The fact is, how many working families, and how many middle-income 
families are going to be able to go out and hire lawyers? For the time 
it will take to get some kind of recovery after they have been wronged, 
how many are going to be able to do that and follow this through the 
State courts? How many will be able to do it after they have been hurt, 
after their child has been disabled, after a wife or husband has been 
killed? How many? Very few. The fact is, they are not going to be able 
to be compensated unless they are able to convince a jury they are 
right, that there has been wrongdoing.
  Does that bother people in the Senate? Evidently it does. There are 
only a very few Americans who can afford the high-priced lawyers to go 
into court and pursue this. This amendment undermines it for the rest 
of the people. It undermines it for working families, undermines it for 
middle-income families. That is the record. That is what has been done.
  It doesn't surprise me. We have seen the powerful special interests 
overturn ergonomic regulations which were there to protect working 
families. Then we have the undermining of funding for the enforcement 
for protecting our air. There has been undermining of funding for 
protecting OSHA, effectively cutting back on the protection of workers. 
We are undermining regulations to protect workers, undermining the 
enforcement mechanism to protect consumers, and now they want to take 
this right away from individuals who will be harmed because of HMOs.
  It is a common pattern. It is all targeted by the major financial 
special interests versus the consumer. That is what this is about. They 
don't like to hear about it. They keep offering amendments that are 
couched in other language about all the people that will be unemployed. 
However, it is the power of the HMOs against the little guy.
  This amendment says the little guy will not be able to defend their 
interests in court. That is what this is about.
  Make no mistake. They can't deal with us in giving protections to the 
consumers. They are going to take them away by denying them the rights 
to enforce them. That is what this is about.
  Expect that after we have this percentage, it will go a little 
higher, and then try to go even higher. Every time it does, it is an 
insult to middle-income and working families and individuals who will 
be harmed. Make no mistake, it is another assault on the fundamental 
protections of this act. That is what this amendment is about. I hope 
it will be defeated.
  The PRESIDING OFFICER. Who yields time?
  Mr. BOND. How much time remains?
  The PRESIDING OFFICER. The Senator from Missouri has 3 minutes.
  Mr. BOND. I want to respond. Does the other side desire more time?
  Mr. KENNEDY. I don't think so. It depends on what the Senator says. 
We don't intend to at this time.
  Mr. BOND. How much time remains on the other side?
  The PRESIDING OFFICER. Five and a half minutes.
  Mr. BOND. I yield myself the remaining time. I think some of the 
things that have been said deserve to be answered.
  Our efforts are not to undermine a bill but to deal with very bad 
provisions in the bill which skipped the committee, did not go through 
committee markup. We are marking up a bill now which we should have 
marked up in committee. It has come to the floor and we are a committee 
of the whole.
  There are things that are in there that are very bad for patients, 
employees, particularly of small business. Why are we inserting the 
Federal Government into restricting attorney's fees? The States in this 
Nation have limited attorney's fees because they recognize the abuses 
of the trial lawyers. Under this bill, we are inserting

[[Page 12313]]

the Federal Government into areas that the States have already acted 
on, and they have acted on them and provided limits on the amount that 
trial attorneys can take so the injured party can recover.
  We have heard about the powers of special interests. Let me state who 
the special interests are that have a big stake in this, the four top 
trial lawyer PACs: Trial Lawyers Association of America; Williams & 
Bailey; Ness, Motley; and Angelos Law Offices, have given over $8 
million, more money than all the HMOs together have given in politics.
  If you want to talk about special interests, there are special 
interests on the other side, as well.
  We believe the measures we brought forth are good for employees, for 
people who not only want to be able to appeal the decision of an HMO, 
but they want to have health coverage.
  Somebody suggests there have not been problems with fee structures. 
They are not in this bill. We know from the State experiences that 
there can be a tremendous amount of wasted money.
  I urge my colleagues to support this measure.
  I yield to my distinguished colleague from Tennessee.
  Mr. FRIST. Madam President, I rise in support of the Bond amendment. 
This is a Patients' Bill of Rights and we should focus on the patient. 
We are talking about a patient who has been harmed or injured, gone 
through an appeals process and through the court. If there is a 
multimillion-dollar suit, it should be to help the patient, not to fund 
the pockets of the trial lawyers.
  This is a Patients' Bill of Rights, not a trial lawyer bill of goods.
  Mr. KENNEDY. Madam President, every time you pay the HMO lawyers, 
that comes out of patient protections. So the point raised is, if you 
put a limitation on the trial lawyers because they are going to get the 
benefits, why not put a limitation on the attorneys for the HMOs so it 
doesn't come out of patient protections?
  But they won't do it. They won't do it.
  I yield the remainder of our time.
  Mr. REID. What is the matter before the Senate now?
  The PRESIDING OFFICER. Amendment No. 831.
  Mr. REID. All time is yielded back?
  The PRESIDING OFFICER. Time has been yielded back.
  Mr. REID. I move to table the amendment, and I ask for the yeas and 
nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second. The question is on agreeing to the motion.
  The clerk will call the roll.
  The legislative clerk called the roll.
  The result was announced--yeas 62, nays 38, as follows:

                      [Rollcall Vote No. 204 Leg.]

                                YEAS--62

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

                                NAYS--38

     Allard
     Allen
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Craig
     Ensign
     Enzi
     Fitzgerald
     Frist
     Gramm
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Kyl
     Lott
     Lugar
     McConnell
     Murkowski
     Nickles
     Roberts
     Santorum
     Sessions
     Smith (NH)
     Smith (OR)
     Snowe
     Stevens
     Thomas
     Thurmond
     Voinovich
  The motion was agreed to.
  Mr. KENNEDY. I move to reconsider the vote and 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 Nevada.
  Mr. REID. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. WARNER. Madam President, I ask unanimous consent the order for 
the quorum call be rescinded.
  Mr. REID. Objection.
  The PRESIDING OFFICER. Objection is heard.
  The clerk will continue the call of the roll.
  The assistant legislative clerk continued the call of the roll.
  Mr. WARNER. 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. 833

  Mr. WARNER. Madam President, in consultation with the managers of the 
bill, it has been indicated to me this will be an appropriate time for 
this amendment to be raised. I send it to the desk and ask that it be 
given immediate consideration. However, we have to set aside, as I 
understand it, the standing order with regard to the Snowe amendment. I 
first ask unanimous consent that it be set aside.
  The PRESIDING OFFICER. Is there objection?
  Mr. REID. Madam President, reserving the right to object--and I will 
not object--we have been in consultation for the last hour or so. 
Senator Snowe of Maine is in the process of having her amendment 
drafted. She is a half hour away from being able to present something 
in writing that we can give to the Senator from New Hampshire. I have 
no objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The legislative clerk read as follows:

       The Senator from Virginia [Mr. Warner] proposes an 
     amendment numbered 833.

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

 (Purpose: To limit the amount of attorneys' fees in a cause of action 
                        brought under this Act)

       On page 154, between lines 2 and 3, insert the following:
       ``(11) Limitation on award of attorneys' fees.--
       ``(A) In general.--Subject to subparagraph (C), with 
     respect to a participant or beneficiary (or the estate of 
     such participant or beneficiary) who brings a cause of action 
     under this subsection and prevails in that action, the amount 
     of attorneys' fees that a court may award to such 
     participant, beneficiary, or estate under subsection (g)(1) 
     (not including the reimbursement of actual out-of-pocket 
     expenses of an attorney as approved by the court in such 
     action) may not exceed the sum of the amounts described in 
     subparagraph (B).
       ``(B) Amounts described.--For purposes of subparagraph (A), 
     the amounts described in this subparagraph are as follows:
       ``(i) With respect to a recovery in a cause of action 
     described in subparagraph (A) that does not exceed $100,000, 
     the amount of attorneys' fees awarded may not exceed an 
     amount equal to \1/3\ of the amount of the recovery.
       ``(ii) With respect to a recovery in such a cause of action 
     that exceeds $100,000 but does not exceed $500,000, the 
     amount of the attorneys' fees awarded may not exceed an 
     amount equal to 25 percent of such excess recovery above 
     $100,000.
       ``(iii) With respect to a recovery in such a cause of 
     action that exceeds $500,000, the amount of the attorneys' 
     fees awarded may not exceed an amount equal to 15 percent of 
     such excess recovery above $500,000.
       ``(C) Equitable discretion.--A court in its discretion may 
     adjust the amount of an award of attorneys' fees required 
     under subparagraph (A) as equity and the interests of justice 
     may require.
       On page 170, between lines 21 and 22, insert the following:
       ``(9) Limitation on attorneys' fees.--
       ``(A) In general.--Notwithstanding any other provision of 
     law, or any arrangement, agreement, or contract regarding 
     attorneys' fees, subject to subparagraph (B), a court shall 
     limit the amount of attorneys' fees that may be incurred for 
     the representation of a participant or beneficiary (or the 
     estate of such participant or beneficiary) who brings a cause 
     of action under paragraph (1) to the amount of attorneys' 
     fees that may be awarded under section 502(n)(11).
       ``(B) Equitable discretion.--A court in its discretion may 
     adjust the amount of attorneys' fees allowed under 
     subparagraph (A) as

[[Page 12314]]

     equity and the interests of justice may require.''

  Mr. WARNER. Madam President, I will do something unusual. I am 
actually going to read the amendment myself such that colleagues and 
those observing floor operations from their offices can have a clear 
understanding of exactly what is in the amendment.
  Further, I do not desire to consume a great deal of time in the 
debate because we have just had a very thorough debate on the generic 
subject of attorney's fees. Therefore, the Senate has pretty well 
framed in their minds the parameters in which they will or will not 
accept an amendment that has the effect of, in my judgment, preserving 
a reasonable amount of attorney's fees and at the same time allowing 
such awards as those attorneys obtain for their clients to be given; 
again, with the thought that it is a Patients' Bill of Rights and they 
have a right to get a reasonable amount of such recovery as is obtained 
from them.
  I shall read from the amendment--it is very short--and say a few 
words, and then rest my case:
  On page 154, insert the following: Limitation on award of attorneys' 
fees----

       (A) In general.--Subject to subparagraph (C), with respect 
     to a participant or beneficiary (or the estate of such 
     participant or beneficiary) who brings a cause of action 
     under this subsection and prevails in that action, the amount 
     of attorneys' fees that a court may award to such 
     participant, beneficiary, or estate under subsection (g)(1) 
     (not including the reimbursement of actual out-of-pocket 
     expenses of an attorney as approved by the court in such 
     action)--

  In other words, that would be awarded by the court without any 
restriction except to the court itself----

     may not exceed the sum of the amounts described in paragraph 
     (B).

  The sums I am about to recite, we carefully researched all types of 
actions similar to this to get a scale of attorney fees which I felt 
was clearly reasonable.

       (B) Amounts Described.--For purposes of subparagraph (A), 
     the amounts described in this subparagraph are as follows:
       (i) With respect to a recovery in a cause of action 
     described in subparagraph (A) that does not exceed $100,000, 
     the amount of the attorneys' fees awarded may not exceed an 
     amount equal to one-third of the amount of the recovery.

  In years previous to coming to the Senate and other various jobs, I 
was actually a member of the bar and practiced law. I was assistant 
U.S. attorney in a modest trial practice myself. That has sort of been 
a standard for many years in the bar, the one-third.

       (ii) With respect to recovery in such a cause of action 
     that exceeds $100,000 but does not exceed $500,000, the 
     amount of the attorneys' fees awarded may not exceed an 
     amount equal to 25 percent of such excess recovery above 
     $100,000.
       (iii) With respect to recovery in such a cause of action 
     that exceeds $500,000, the amount of the attorneys' fees 
     awarded may not exceed an amount equal to 15 percent of such 
     excess recovery above $500,000.
       (C) Equitable discretion.--A court in its discretion may 
     adjust the amount of an award of attorneys' fees required 
     under subsection (A) as equity and the interests of justice 
     may require.

  In other words, a judge may look at this fee schedule and decide, 
this particular counsel has done a great deal of work and, therefore, I 
believe I should raise his fee within the parameters of the section 
itself.
  Further:

       (9) Limitation on Attorneys' Fees.--
       (A) In general.--Notwithstanding any other provision of 
     law, or any arrangement, agreement, or contract regarding 
     attorneys' fees, subject to subparagraph (B), a court shall 
     limit the amount of attorneys' fees that may be incurred for 
     the representation of a participant or beneficiary (or the 
     estate of such participant or beneficiary) who brings a cause 
     of action under paragraph (1) to the amount of the attorneys' 
     fees that may be awarded under section 502(n)(11).
       (B) Equitable discretion.--A court in its discretion may 
     adjust the amount of attorneys' fees allowed under 
     subparagraph (A) as equity and interests of justice may 
     require.

  This amendment simply sets, in my judgment, a reasonable category of 
fees. I have tried, as best I can, not to tread, by virtue of States 
rights, on the right of the State to administrate its own bar and the 
like. I felt that discretion should be given to the trial judges, 
Federal and State, such as they can adjust that schedule of fees as 
they see fit.
  The Senate, again, has, in a very thorough discussion under the Bond 
amendment, covered these issues and has in mind, again, its own 
framework wherein we can legislate on this matter by amendment or not 
legislate.
  At this point, I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Madam President, I thank the Senator from Virginia for 
his efforts. I think there is an agreement that there needs to be a cap 
on attorney's fees. It is my strong sense and belief that if we had a 
cap of 33.3 percent that applied to Federal and State courts, that 
would be accepted by the majority of this body.
  What I worry about is us just going back and forth with escalating 
amendments. There are very few benefits of old age. One of them is to 
remember what happened in the past. When we were doing the tobacco 
bill, we had amendment after amendment, a series of amendments, on caps 
on lawyer's fees. It got a little ludicrous. We finally had a majority 
vote for $1,000 an hour. It was clearly not an effort at legislating, 
but it was an effort at some kind of political advantage. I know that 
is not the intention of the Senator from Virginia.
  I hope that once this is debated and, if it is not accepted, that 
perhaps we could move to an amendment after Senator Snowe's amendment 
that would be around 33.3 percent, State, Federal court, end of it. 
That is going to make everybody unhappy, but I think it would be 
something that we could all support and then get this issue off the 
table and get to the very important issues such as resolution of 
exhaustion of appeals that Senators Thompson and Edwards are working 
on, liability issues. Senator Frist has some important amendments, 
again, on liability issues, which we are narrowing down.
  Hopefully, we can move forward. I thank the Senator from Virginia for 
his input.
  Mr. WARNER. Madam President, if I might reply to my friend and 
colleague, there was no intention of the Senator from Virginia to 
repeat what is an historically important case on tobacco. I studied 
that case very carefully. There were, I think, three votes. My 
recollection is it was $4,000 per hour, at which time the Senate 
finally accepted. I would not participate in such a process. I just 
struck the one-third for the lower amounts of the recovery and 
basically scaled it to 25 and the other percentage as the rate of 
recovery increase. I would be happy to work with colleagues.
  It goes to the question of just how much will be eventually given to 
the recipients who need these funds.
  Mr. REID. Will the Senator yield for a question?
  Mr. WARNER. Yes, of course.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. The Senator from Arizona and the Senator from Virginia are 
on the right track.
  This amendment, with all due respect to my dear friend from Virginia, 
is really--we have another 15-percent limitation in here above a 
certain amount. I think that the most expeditious thing to do would be 
to set this aside, for the time being, and get some of the lawyers and 
nonlawyers to sit down and see if they can work out something 
acceptable to the managers. I am sure if it were acceptable to the 
managers, we could accept this.
  I ask my friend from Virginia, who believes he has talked enough on 
this, that we withdraw this amendment, for the time being, in 
anticipation of working something out that is clear and more concise.
  Mr. WARNER. That is exemplified by the leadership the Senator shows 
time and time again on this floor. I don't view this as a partisan 
issue. This is an honest effort by the Members of the Senate to 
recognize that individuals should be given their rewards and the 
attorneys should be given fair compensation. Therefore, Madam 
President, unless other Senators wish to speak at this time, I will----

[[Page 12315]]


  Mr. McCAIN. If the Senator will yield, I say to my colleague from 
Virginia, if the outcome of this amendment is not to the Senator's 
satisfaction, then I hope we can enter into negotiations that on a 
reasonable level--again, I just plucked 33\1/3\ percent because it is 
in there in one category, across the board, simple, two lines, and 
perhaps we can move on.
  I know the Senator from Virginia, as well as the rest of us, doesn't 
want to be hung up on a series of votes that are iterations over the 
same issue. It seems that we can sit down and come to some reasonable 
agreement, which the other side of the aisle would strongly resist 
applying to State court, and this side would resist it on Federal 
court. It is something to have a substantial majority vote for. I hope 
the Senator agrees to enter into those negotiations.
  Mr. WARNER. Madam President, I ask for the yeas and nays before I 
take the action.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is not a sufficient second.
  Mr. REID. Madam President, if the Senator really wants a vote on 
this, we will be happy to give it to him right now. I don't think it is 
the right thing to do. I suggest to the manager and my friend from 
Virginia, why don't we set this aside for a few minutes to see if we 
can work something out to get the matter resolved. I think as the 
Senator from Arizona indicated----
  Mr. WARNER. I am agreeable. I ask unanimous consent that this 
amendment be set aside.
  The PRESIDING OFFICER. Without objection, the amendment is set aside.
  The Senator from Nevada.
  Mr. REID. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mrs. Clinton). Without objection, it is so 
ordered.
  Mr. REID. Madam President, it is my understanding, under the order 
that is in effect, we will go to the Snowe amendment with the purpose 
of offering the amendment under a 4-hour time agreement.
  The PRESIDING OFFICER. The Senator is correct.
  The Senator from Maine.


                           Amendment No. 834

  (Purpose: To modify provisions relating to causes of action against 
                               employers)

  Ms. SNOWE. Madam President, 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. Snowe], for herself, Mrs. 
     Lincoln, Mr. DeWine, Mr. Nelson of Nebraska, Mr. Specter, and 
     Mr. McCain, proposes an amendment numbered 834.

  Ms. SNOWE. 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.'')
  Ms. SNOWE. Madam President, I rise today to offer an amendment along 
with my colleagues Senator DeWine, Senator Lincoln, and Senator Nelson, 
who worked so hard, so diligently in crafting this compromise. Senator 
McCain and Senator Specter are coauthors of this amendment as well.
  The amendment we are offering today is designed to bridge the gap 
that exists between the supporters of the McCain-Edwards-Kennedy 
approach to employer liability in the Breaux-Frist-Jeffords bill.
  I commend Senators McCain, Edwards, and Kennedy for their willingness 
as well as their patience to work with us on resolving the many issues 
that are associated with employer liability.
  Everyone involved has had the same goal essentially, and that is to 
protect employers from liability when they are not participating in 
making decisions concerning the health care of employee beneficiaries.
  The discussion has really focused on how best to achieve that goal. 
This is an incredibly complex liability issue that has far-reaching 
consequences, and everyone who has been part of this discussion and 
this effort to reach this consensus recognizes that fact and has worked 
in good faith to arrive at a solution that we can live with and, more 
importantly, employers can live with and not denying care that patients 
rightly deserve.
  This is an issue that is significant on a number of different levels. 
First of all, to what extent will employers that voluntarily offer 
health insurance be exposed to liability. To what extent will employers 
be involved in the decisionmaking process in terms of the provisions of 
health care for their employee beneficiaries, and perhaps more 
important, will patients have legal recourse should they have a 
grievance concerning the care they receive through their health care 
plan.
  The goal we all share in designing and crafting this amendment to the 
McCain-Kennedy-Edwards legislation is how best we protect patients for 
their medical care without creating an expansive bureaucracy adding to 
the cost of providing that health care and generally creating an 
incentive to drive away employers from providing health care insurance 
to their employees which, as I said earlier, they do so on a voluntary 
basis. We should be commending employers for providing these benefits, 
not penalizing them.
  We should also take great care to write a provision under which 
employees remain insured through their employers, while also protecting 
the employees' rights under their health insurance plans. What we do 
not want to do is create unintended consequences for employers by 
leaving legal questions open that can leave employers exposed to 
liability over matters in which they have no control and over matters 
in which they have not participated and having the resulting decision.
  That is all the more significant when we realize there are more than 
43 million Americans who remain without any insurance, and of those who 
have insurance, employers voluntarily provide health coverage to more 
than 172 million Americans. Obviously, what we do today is significant, 
and it will matter.
  We cannot afford to have employers suddenly opting out of providing 
insurance to their employees because we do not want to create the 
unintended consequence that adds to the rolls of the uninsured in 
America. I think that is something on which we all can agree, and that 
is a very real risk. In fact, there was a recent poll taken of 
businesses in America, and it said that 57 percent of small businesses 
said they would drop coverage rather than risk a lawsuit.
  As one businessman in my State wrote to me recently:

       We're not an HMO or an insurance company. We are an 
     employer. We cannot afford the time, expense, and aggravation 
     of litigation. And, please, make no mistake, that is what 
     this is about.

  So we approach the issue of reconciling the differences between the 
two approaches by addressing the question: What language will deliver 
us to that mutual goal? We assess what was really the best qualities of 
the McCain-Edwards-Kennedy legislation, as well as the Breaux-Frist-
Jeffords issues.
  Ultimately, the solution we came to was a melding of the two 
approaches. The result was to provide employers with varying levels of 
liability protection depending on their involvement in the 
decisionmaking process but regardless, patients will have the legal 
recourse they deserve, no matter what.
  There are many other issues that need to be resolved in this 
legislation. I realize this represents one facet, the liability 
question, that has been raised by others with respect to this 
legislation, and this is not intended to address all of those 
questions, but clearly it does address a most important issue when it 
comes to subjecting employers to litigation and liability.
  Let me take a moment to explain the differences between the McCain-
Edwards-Kennedy legislation and the Breaux-Frist-Jeffords approach and 
the approach we are taking in the amendment we have offered to S. 1052 
and

[[Page 12316]]

how our amendment affects the underlying legislation and addresses the 
concerns that have been raised about the net legal impact on employers.
  Essentially, there are several categories we are attempting to 
address today when it comes to employer-sponsored health care 
insurance.
  First, there are employers that contract with an insurance company 
that, in turn, pays beneficiary claims and administers the plans and 
the benefits.
  Second, there are employers that fund a plan but leave the actual 
administration of the plan to an outside entity, generally an insurance 
company.
  Third, there are those who both self-insure and self-administer, in 
essence creating their own insurance company within their existing 
business.
  The McCain-Edwards-Kennedy legislation as written allows a suit 
against any employer if it directly participates in a decision that 
harms or results in the death of a patient. Direct participation is 
defined as the actual making of a medical decision or the actual 
exercise of control in making such a decision or in the conduct 
constituting the failure.
  The bill then goes on to offer specific circumstances that do not 
constitute direct participation, including any participation by the 
employer or other plan sponsor in the selection of the group health 
plan or health insurance coverage involved or the third party 
administrator or other agent, or any engagement by the employer or 
other plan sponsor in any cost-benefit analysis undertaken with the 
selection of or continued maintenance of the plan or coverage involved.
  While the bill language does not provide an exhaustive list of 
exceptions, it does allow an employer to offer into evidence in their 
defense that they did not directly participate in decisions affecting 
the beneficiaries of the health care plan.
  That suggests while employer protections would be provided under the 
legislation, an employer would still have to go to court to make its 
defense. As with any such legal language, direct participation 
obviously can be open to legal interpretation, and that precisely is 
the circumstance which we are seeking to avoid and prevent.
  Under the Breaux-Frist-Jeffords legislation that was introduced, the 
language provides for a designated decisionmaker, or DDM, which in most 
cases would be the insurance company an employer contracted with to be 
the party that is liable for medical decisions and, therefore, the 
party could be subject to liability. In other words, the employer would 
designate the DDM as the responsible party to shield itself from that 
liability. If an employer chose not to designate a DDM, they would have 
no protection from that liability.
  An argument that has been made against the Breaux-Frist-Jeffords 
language is if the DDM is a person designated within a company that 
self-insures, for example, they could under the employment law attempt 
to escape liability by claiming that ultimate decision came from the 
employer; that they, as a DDM, did not make a final decision on a 
particular beneficiary's case. In an effort to improve the Breaux-
Frist-language, we designate that when a contract is signed with the 
employer, the DDM cannot mount any such defense, that somehow they 
defer the liability, defer the suggestions that the employer somehow 
participated in making the decision.
  In an effort to improve the employer liability provisions, we 
encompassed key provisions of both models in the legislation while 
addressing their inherent weaknesses so we can attain our shared goals.
  First, our amendment allows employers that turn their health care 
coverage to outside insurance companies, that their insurance company 
will automatically be their designated decisionmaker unless they 
specifically choose not to have a DDM. This is built directly on the 
Breaux-Frist-Jeffords model in which the decisionmaking authority 
shifts to the DDM, which will in most cases be the insurance company. 
Under this approach, an employer would not have to take the extra steps 
to secure a designated decisionmaker and would not be required to go to 
court to file papers or to make defenses against any actions they may 
have taken. In other words, they would not have to do anything 
different than what they are doing today with a contract with an 
insurance company.
  When they sign up with an insurance carrier that will provide 
benefits to their employees and administer the benefits, they are then 
signing up with, essentially, a designated decisionmaker, and they are 
signing up as well for a safe harbor from liability in both medical as 
well as contractual decisions.
  Where we depart from the existing Breaux-Frist language is we clarify 
since the DDM, which is also the insurance company, has assumed full 
responsibility at the time the employer and the insurance company 
signed a contract, the designated decisionmaker would be prevented from 
turning around and assigning the employer for some failure that 
resulted in a lawsuit from a beneficiary. In other words, the dedicated 
decisionmaker can't transfer liability to the employer because of 
something the employer does or failed to do.
  The legislation we have introduced today to modify the McCain-
Edwards-Kennedy legislation delineates specifically that the dedicated 
decisionmaker is responsible for a contractual arrangement as well as 
exclusive authority for any medically reviewable decisions.
  For employers that choose not to have a dedicated decisionmaker, for 
whatever reason, and for those employers that prefer to continue to be 
self-insured but contract out the administration of their health care 
plan, we leave in place the general McCain-Edwards model in the 
underlying bill that protects employers insofar as they do not directly 
participate in the medical decisionmaking process.
  Again, as I outlined earlier, direct participation is defined as the 
actual making of a medical decision, the actual exercise of control in 
making such a decision or in the conduct constituting the failure. 
These are two of the changes we have made in the amendment we are 
presenting today from the underlying McCain-Edwards legislation.
  In our amendment, we eliminate one element of the bill that would 
have potentially led to the filing of lawsuits on a variety of grounds 
unrelated to specific medical decisions impacting individual 
beneficiaries. The language is, in layman's terms, broad and 
nonspecific and potentially exposes a defendant to a wide array of 
nonlegal actions. If additional grounds for lawsuit should be added to 
the legislation, we should delineate and specify them and not have 
broad language that essentially leads to a legal potpourri.
  Striking this language does not affect the ability of the patient to 
seek remedy in court for medical decisions made in their particular 
circumstance. But it does prevent a whole new arena of lawsuits from 
being created that would heighten an employers' exposure to liability.
  In addition, our amendment also modifies the underlying legislation 
to ensure that self-insured, self-administered plans, employers, and 
union health care plans will not be subject to lawsuits under Federal 
law simply because of contractual disputes. This change is critically 
important when considering that self-insured, self-administered plans 
do not have the ability to assign liability to a dedicated 
decisionmaker. As a result, they may opt to simply stop offering 
insurance for employees altogether rather than risk a substantial 
judgment on a contractual matter. That is a result, again, we simply 
cannot afford if we are going to ensure that people have the kind of 
health insurance plans in America in which they will continue to be 
insured, and that employers are the ones providing predominantly the 
health insurance in America today.
  To describe our amendment in another way, we essentially are saying 
as an employer that is not self-insured, you can hand over all your 
decisionmaking and therefore your liability to a dedicated 
decisionmaker which will, in all likelihood, be your insurance company 
when you sign your contract with your insurance company. There is

[[Page 12317]]

nothing more you need to do to protect your business from liability for 
the decisions that are made.
  For the self-insured and for those who do not self-insure as an 
employer, you would still have the protections afforded under the 
underlying legislation if you don't directly participate in those 
decisions. In other words, employers who contract out their health 
insurance have a clear choice under our amendment, although once again 
I stress that under this amendment patients will still have the legal 
recourse regarding questions over appropriate medical care and medical 
decisions related to the beneficiary's plan, no matter which option the 
employer chooses.
  The bottom line is we seek to protect employers from liability in 
cases where they are not making the medical decisions that harm 
patients or result in death while still protecting parents rights, 
which after all is the goal of this legislation.
  Finally, let me assure my colleagues, under this amendment, dedicated 
decisionmakers would have to demonstrate they are financially capable 
of fulfilling their responsibilities as the party liable in causes of 
action. They could not be shell entities or sham individuals or 
organizations without the ability to actually pay the event of 
lawsuits.
  The criteria the Secretary of Health and Human Services will require 
relating to the financial obligations of such an entity for liability 
should also include an insurance policy or other arrangements secured 
and maintained by the dedicated decisionmaker to effectively insure the 
DDM against losses arising from professional liability claims, 
including those arising from service as a designated decisionmaker. A 
DDM would have to show evidence of minimum capital and surplus levels 
that are maintained by an entity to cover any losses as a result of 
liability arising from its service as a designated decisionmaker. It 
would have to show that they themselves have coverage adequate to cover 
potential losses resulting from liability claims or evidence of minimum 
capital and surplus levels to cover any losses.
  Once again, I think we have designed an amendment that represents a 
workable approach, that addresses some of the more serious and 
significant concerns that had arisen in the various pieces of 
legislation that had been introduced here in the Senate and with the 
underlying legislation we are seeking to amend today.
  We try to meld the best of both approaches, to balance the concerns 
of businesses that do seek to voluntarily provide this most important, 
critical benefit to their employees. That is an incentive we want to 
maintain and reinforce in every possible way. But we also understand 
there are going to be those circumstances in which the employee has 
received inappropriate care that has resulted in significant harm, 
injury, or even death, and that they should have the opportunity to 
seek legal redress for that inappropriate care or denial of care. That 
is the kind of consideration we want to ensure in this legislation, 
without creating the unintended consequences or the disincentive for 
employers to say we just simply cannot afford to provide this health 
insurance for our employees anymore because we are going to be subject 
to litigation, to endless losses, and we do not want to put ourselves 
in the position of that kind of exposure.
  I think this approach has been examined on both sides of the 
political aisle. More important, I think it has been embraced by this 
bipartisan group in the Senate, my colleague Senator DeWine, who has 
worked so hard, Senator Lincoln whom I see on the floor, and Senator 
Nelson. They have worked very diligently on behalf of this amendment to 
assure that we address all facets, all potential implications and 
ramifications associated with this approach, to hopefully address it in 
a way that will ultimately yield the best effect for both the employer 
as well as the employees.
  I yield the floor. I will be glad to yield time to my colleague.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. Madam President, let me thank my colleagues, Senator 
Snowe and Senator Lincoln, whom I see on the floor, and Senator Nelson, 
who have worked long and hard on this amendment.
  The issue in front of us today is how do we help shield businessmen 
and businesswomen from liability at the same time providing access to 
the courts for people to sue HMOs. Everyone I think agrees, one of the 
things we worry about as we deal with this legislation is that we will 
do something that would cause businesses in this country to decide not 
to insure employees. That would be a very bad unintended consequence, 
so we have to be very careful as we write this legislation.
  The amendment in front of us today is really a compromise. It is a 
compromise based on the Frist-McCain bills. It is a compromise on the 
issue of employer liability, how we best protect the employers while at 
the same time ensuring people their right in court. I think we have 
really blended these bills. I think we have the best of both worlds. 
The situation and the language are clarified and made simpler.
  We started this debate with some basic principles on which everyone 
agreed. In both bills we agreed we wanted to try to protect businesses 
but at the same time we wanted to allow suits in limited circumstances 
against HMOs. The President agreed to that principle, and the two 
underlying bills do as well. This amendment, I believe, achieves that. 
This amendment effectively takes out 94 percent of businesses and 
provides them great protection. When you compare our amendment versus 
the underlying bill, it helps and improves the situation for the other 
6 percent. We will talk about that in a moment.
  My colleague from Maine has talked about this concept of the 
designated decisionmaker. What do we mean by that? What we mean is 
let's just make it simple and let's make it plain; let's have the 
employer say who is going to make those decisions and therefore who 
will be sued. In essence, what we are saying is once that decision is 
made, that employer is no longer going to be subject to suits; the 
designated decisionmaker will be.
  How will this work in the real world? Let's say we have a small 
hardware store in Greene County, OH. Let's say they employ 12 people, 
and let's say what they do is they provide some health insurance and 
they do that by going out in the market, finding the best deal they 
can, and buying this group coverage for their 12 employees. Under this 
amendment, once they contracted with that insurance carrier, they would 
have automatically made that designated decisionmaker decision. They 
would have designated that automatically, that group as being the 
designated decisionmaker. They would have to do nothing. They cannot 
make a mistake. It takes no affirmative action on their part. That is 
going to improve the language we have in front of us.
  The other way of doing it, the way the underlying bill did it, was to 
talk about direct participation. Frankly, I think the language in the 
bill was pretty good. But I think it needs to be improved. By having 
the designated decisionmaker, it is a lot more clear. What will happen 
as a practical matter is this. As we all know, anybody can sue anybody. 
We cannot prevent suits, but we certainly can discourage them, and we 
certainly can provide when suits are filed against a business, the 
business has the ability to get out of that lawsuit very quickly. So by 
using the concept of the designated decisionmaker, as a practical 
matter, if a suit were brought against a businessperson, if a lawyer 
were foolish enough to file that suit, the business would simply have 
to go into court and file a copy of that designated decisionmaker 
decision and would be dismissed from the case. As a practical matter, 
this language significantly improves the underlying bill and will make 
a big difference.
  Our amendment does build on the two bills in front of us, the two 
bills we have been talking about and have been considering, the Frist-
Breaux bill and the underlying bill we have in front of us today, the 
McCain-Kennedy bill.

[[Page 12318]]

  I believe our amendment would protect business owners from needless 
lawsuits as well as protect patients who rely on employer-sponsored 
health care plans for their medical needs. I believe this amendment 
brings together the best of all worlds by providing certainty, much-
needed certainty to employers, employees, and, yes, to health care 
providers. That is something we desperately need in any patient 
protection bill.
  Based on the designated decisionmaker concept in the Frist-Breaux-
Jeffords bill, our amendment would automatically, as I have indicated, 
remove liability from small business owners and shift it to health care 
providers or other designated entities. In addition, our amendment 
stipulates this designated decisionmaker must follow strict actuarial 
guidelines and be capable of assuming financial responsibility for the 
liability coverage. This means the designated decisionmaker could not 
be a hollow shell, unable to come up with the money, the assets, to 
defend against potential lawsuits and financial damages and be able to 
satisfy those losses. Our language ensures that the designated 
decisionmaker cannot be a straw man, cannot be a sham that has no 
ability to pay a patient in the event a lawsuit is filed and that 
damages are in fact awarded.
  In creating the designated decisionmaker process, it makes it easier 
for employers that provide health insurance coverage to be protected.
  We think that is a major step forward for businesses, and especially 
for patients.
  I say that because the fear of being sued often becomes so great that 
employers simply stop offering health care coverage. We don't want that 
to happen under this bill. We simply can't let that happen. The reality 
is in this country that already there are more than 42 million 
Americans, including 10 million children, who have no health care 
coverage. The last thing we want to do is add to this number.
  Our amendment greatly diminishes the likelihood that employers will 
stop offering health care coverage. Again, we believe it is the best of 
both worlds as it allows patients the ability to sue the designated 
decision maker if they are denied medical benefits to which they are 
entitled by their health plans. But at the same time it protects 
employers from unnecessary and costly lawsuits.
  Under our amendment, employees would have the comfort of certainty 
and the comfort of knowing that the designated decisionmaker is 
ultimately responsible for health care decisions and, therefore, that 
individual or that entity bears the liability for a lawsuit.
  In another effort to keep employees insured, our amendment also adds 
language to the underlying McCain-Kennedy bill to limit the liability 
of businesses to self-insure and self-administer their health care 
plans. The fact is that these employers are assuming additional risk by 
financing and by administering health care coverage to employees. To 
that extent, I believe we must take their unique circumstances into 
consideration. This amendment does that.
  Ultimately, our objective is to encourage employers to offer and to 
continue to offer their employees health care coverage. We don't want 
to discourage them out of fear that they will be sued.
  The reality is that these self-insured and self-administered plans 
are doing some very good things for their employees. We want them to 
continue to do these good things. Our amendment will help them keep 
their employees, their families, and their children insured. That is 
what the Patients' Bill of Rights should be all about.
  Further, our amendment improves the original Frist language by making 
very clear exactly who is liable. The amendment leaves no room for 
ambiguity because it would not allow the designated decisionmaker to be 
broken into sub-decisionmakers. One, and only one, entity would be the 
sole bearer of liability. We think that is an improvement.
  Finally, our language would strike vague and ambiguous language in 
the underlying McCain-Kennedy bill that is of great concern to 
employers. This language is a catch-all section of the bill that could 
open employers to a flood of lawsuits simply because of the imprecise 
nature of the language.
  Let me read the exact language currently in the Kennedy-McCain bill 
in regard to the cause of action relating to provisions of health 
benefits. There is the (ii) section. This is what is in the underlying 
bill:

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

  We believe this language is simply too vague. We eliminate it in 
regard to businesses and their potential liability.
  This language that I just quoted creates an explicit cause of action. 
This means employers could be the subject of lawsuits that none of us 
currently has any way to anticipate. The language is broad. It is too 
broad as currently drafted. Our amendment would completely remove this 
section.
  Finally, I think we must recognize what this amendment does, but also 
we need to be very clear about what it does not do. Does this amendment 
solve every problem with this bill? The answer is that it does not. It 
does what we have said it does. It deals with the heart of the 
liability problem in regard to businesses, but it does not solve all 
the problems.
  I think it is important for us to have truth-in-labeling with this 
amendment. It is a good amendment. It is a probusiness amendment. It is 
an amendment that will encourage business men and women to do what we 
want them to do, which is good public policy, to insure their 
employees. It will give them important protections. It will give them 
more assurances.
  That is why we ought to pass this amendment. It is a significant 
improvement over the underlying bill that is in front of us.
  But it does not solve all the problems. It only deals with a portion 
of the pie. It does not deal with the caps issue. It does not deal with 
where the lawsuits should be brought and the issue of whether they 
should be brought exclusively in the Federal court or in the State 
court. It does not deal with the class action question, about which I 
am very concerned. And I know my friend from Tennessee has been working 
on this issue as well. It does not deal with the class action issue. I 
intend to have an amendment later today or tomorrow in regard to the 
class action issue.
  We want to say what it does. It helps businesses do the right thing. 
It encourages people to continue to insure their employees. But there 
are many things it does not do.
  I would be more than happy to yield to my colleague.
  Mr. GREGG. Madam President, I appreciate the Senator's effort. I 
haven't had a chance to digest all of it. I understand the intent and 
the thrust as described by the Senator from Ohio, which I think is 
appropriate and good.
  As I look at the first section, I am wondering. It appears to me that 
under the definition section it draws union plans in, and they are 
being given a special status which is really higher than a self-
employed plan is given. I am wondering why union plans are suddenly 
being raised to a special status under the amendment.
  Mr. DeWINE. I would be more than happy to answer the question.
  In the original language that we have been negotiating for the last 
few days, we could not figure out any way to really help the roughly 6 
percent of businesses that self-insure and self-administer.
  My colleague Senator Lincoln has brought to our attention and 
businesses have brought to our attention the fact that this amendment 
as originally written really did not help those 6 percent. Why? Why 
originally didn't it help? The basic problem is they do make medical 
decisions. They are really effectively operating as their own HMO.
  We thought about how to protect them and give them some help while at 
the same time preserving their employees' rights to sue just as 
everybody else has. We came up with a compromise. My colleague Senator 
Lincoln may want to get involved in this and explain it a little bit. 
But basically it

[[Page 12319]]

says for those self-insured, self-administered plans, we carve out a 
special exemption for them because of the special status. We say they 
are excluded and exempted from lawsuits brought in the Federal court on 
the nonmedical decisions based on the contract decisions. That is a 
break they are getting. We think it can be justified by what they do 
because we want to encourage them to continue to do what they do.
  Why is the other group that you have mentioned included? They are 
included because they operate basically the same way the self-insured, 
self-administered businesses do. They basically take the risk. They 
basically make the medical decisions.
  I appreciate the question, but I would disagree with my colleague the 
way he has categorized it. This is no special break for unions. This is 
treating people who operate the same way the same way in the language. 
I cannot come up with any way to justify carving them out and not 
giving them the exception because they are operating under the same 
principles that they are basically self-insured and are basically 
making the medical decisions, and doing it the same way.
  So when you compare apples to apples, you ought to treat them the 
same. That is why we did it. We think it is justified. We think it 
makes sense. The option, candidly, would be not to give the 6 percent 
of businesses this break, not to give them the encouragement to try to 
get them to continue to do what they are doing. But we came to the 
conclusion that we should try to help them. We are not helping them 
immensely, but we are helping them.
  Mr. GREGG. If the concept here is to treat everybody in the basket 
the same, then you have not necessarily done it, because union plans do 
use third-party administrators and therefore can designate, and a 
single-employer plan would therefore be more identifiable with the 
union plan. Yet, under your proposal, the single-employer plan 
basically is still liable. And that is 56 million people, by the way. 
Fifty-six million people fall into that category.
  So you have exempted out the Wal-Marts of the world, maybe, that 
allow people to go out and get their health care, and then they come 
back and get their approval. And that exemption makes sense, but that 
exemption is not consistent with what unions do. So don't come here and 
represent to this Senate that it is because it is not. You have raised 
the unions to a brand new level of independent liability protection. So 
please do not make that representation.
  Mr. DeWINE. I will reclaim my time. I thank my colleague for his 
comments.
  The intention of the language is to treat people equally. If a union 
does in fact make the medical decisions and if they are operating in 
the same way that the Wal-Marts of the world are, they ought to be 
treated the same way. If they are not operating the same way, then they 
should not be treated the same.
  Ms. SNOWE. Will the Senator yield?
  Mr. DeWINE. Yes.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. SNOWE. The Senator from Ohio is exactly correct. We are treating 
all employers the same. In this instance, in this particular category, 
it is those employers who do not have a designated decisionmaker. That 
is the intent of this particular provision: To treat them equally so 
they are not subjected to liability when it comes to contractual 
matters, whereas other employers are not who contract with insurance 
companies and have a designated decisionmaker. That is what the intent 
is of this legislation. It is to treat them all equally and to draw 
that bright line.
  We could say, let's not address the self-insured and self-
administered programs. I do not think that is fair either because, 
obviously, they have a different kind of program, and we want to 
encourage that. We commend them for the kind of benefits they are 
providing their employees. They happen to be large employers, and they 
want to design their own internal program. But we don't want to subject 
them to litigation to which other employers are not going to be 
subjected. So that is the reason for the intent of this particular 
provision that happens to include union plans that are designed 
similarly.
  Mr. FRIST. Will the Senator yield?
  Mr. DeWINE. I am more than happy to yield to the Senator from 
Tennessee.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. FRIST. This is an important point, and therefore I think the 
colloquy is important so we can address it.
  We have just seen the language for the first time a few minutes ago. 
The way I understand it, we have about 170 million people out there we 
are talking about in an employer-sponsored plan. There are about 6 
million people who are in what are called self-insured, self-
administered plans. Over the last 2 to 3 years, as we have tried to 
figure out how to treat these 6 million people in a fair way, we have 
struggled because it is hard. We have produced the designated-decision-
maker model--which I am a great believer in; and I believe most people 
in this body, if they step back and look at it, are great believers 
in--but what you have in your bill is you have carved out those 6 
million people and addressed the issue directly, but in addition to 
that, you carve out the unions.
  The argument that was made is that the unions are self-insured, self-
administered plans like the other 6 million; that these are union 
plans, and therefore they should be treated the same as self-insured, 
self-administered plans.
  I think the Senator from New Hampshire and I would argue that the 
unions should not be carved out as well because--while a few may be 
self-insured and self-administered--the majority of the union plans are 
not self-insured and self-administered. Therefore, why are you giving 
this privileged position to the unions that are not self-insured and 
self-administered like the 6 million whom you targeted initially? That 
is the question I think the Senator from New Hampshire and I wish to 
ask you, because we like very much more the designated-decision-maker 
model.
  I guess the question is, Are you contending that the union plans that 
you carved out are self-insured and self-administered plans?
  Mr. DeWINE. If I could reclaim my time to answer the question.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. I can tell you what the intent was. And, as you know, we 
have been drafting the language, and it has been going on and on. I can 
only tell you what the intent was.
  I am more than happy to take a minute and look at that language again 
with your comments in mind.
  The intent was to treat people who operated one way equally. In 
regard to unions, the intent was we would cover union plans that were 
the same as the Wal-Marts of the world which are self-insured and self-
administered. That was the intent. It was not the intent to go one inch 
beyond that or to cover one group or one plan beyond that.
  I will bluntly say, if the language in here is not consistent with 
that intent, we need to go back to the drawing board and look at the 
language. That was the intent of the four or five of us who were 
working on this issue. That was the specific intent, and that was the 
instruction that was given to staff.
  If the lawyers did not come back with that language, and I did not 
catch it when I read it, I apologize, and we will look at that. But it 
is going to take us a few minutes to get the language out.
  My understanding of what my colleague has said is that if a union 
does in fact operate a plan, and they are in fact self-insured and 
self-administered, he believes they should be treated the same way; 
anybody who runs a plan with those two qualifications should be treated 
the same way. Is my understanding correct?
  Mr. FRIST. We have to be very careful.
  Mr. DeWINE. If those are the facts.
  Mr. FRIST. We have to be very careful whom we carve out. And then 
whatever definition we use for the carve-out, we need to apply 
consistency to it.
  Mr. DeWINE. I agree.

[[Page 12320]]


  Mr. FRIST. I believe we should go back and look at the way the bill 
is written.
  Mr. DeWINE. Let me suggest we take a look at that as we continue this 
debate. We have a little time to debate. Let us look at the language.
  I again want to reiterate something, though. And I do not want any of 
my colleagues who are watching this back in their office or who are in 
this Chamber to misunderstand this. This is a limited carve-out. This 
is not a huge carve-out.
  Basically, what this carve-out says is, because of the unique 
situation of the self-insured, self-administered plans, we are going to 
exempt them from lawsuits, based on contract, in Federal court--they 
are not going to be exempt from other lawsuits and in State courts, and 
based on medical decisions. So it is a limited carve-out. I do not want 
anybody who is watching this debate to think this is some huge carve-
out. It is a carve-out on a limited basis. Our intent was to treat 
people equally who were in that unique circumstance.
  I know my colleague from Tennessee has been wrestling with this for a 
couple years: How do you deal with these folks who have this unique 
problem?
  I say to my colleague from New Hampshire, this may not be perfect, 
but we think it improves the status quo. That is sort of what we are 
about today: Trying to improve the status quo.
  Mr. GREGG. Will the Senator yield?
  Mr. DeWINE. No, I will not yield yet.
  We have had criticism of this amendment from people who say it does 
not solve all the problems. I came to this Chamber and said, no, it 
does not solve all the problems, but we are trying. And we are trying 
with this amendment. If we can improve the amendment, and if we can get 
the language more precise that does it, I will be more than happy to do 
it.
  Yes, I yield to my colleague.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. GREGG. I think the language, as presently drafted, is in your 
definitional section of the amendment where you find ``(ii) (II).'' It 
says:

     a group health plan that is maintained by one or more 
     employers or employee organizations described in [this 
     section].

  That essentially encompasses all union plans. Very few union plans do 
not use a third-party administrator, very few. So I think you want to 
tighten up that definition to make it clear that you are applying it to 
the self-insured, self-funded, self-administered plans, and then you 
would be picking up the same people that you are picking up under the 
Wal-Mart exception.
  Mr. DeWINE. Reclaiming my time, that was our intent. If that is not 
reflected in the language, we will change the language.
  I yield to my colleague from Maine.
  Ms. SNOWE. The Senator from Ohio is making exactly the correct point. 
This particular provision was intended for those insurers, self-insured 
and self-administered plans, that obviously do not have a designated 
decisionmaker. I should further emphasize, all employers are treated 
equally when it comes to the idea that they participate in medical 
decisions on behalf of their employees. They are all treated the same. 
This particular area of the legislation is with respect to contractual 
decisions. We are attempting to craft out for self-administered, self-
insured plans, and that includes union health plans that conform to 
that particular organization, that they would not be subjected to 
litigation that other employers would not be subjected to because they 
had designated decisionmakers.
  We know self-insured, self-administered plans do not have designated 
decisionmakers. So we did not want to expose them to that kind of 
litigation in this particular section that delineates the causes of 
action. We were trying to treat all of the employers equally.
  Mr. DeWINE. Madam President, I reclaim my time.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. Madam President, we have stated our intent. I think we 
ought to get about our business and come up with the language to do 
that, some possible language that we could use. It is always dangerous 
to try to draft language on the fly on the Senate floor.
  I will at least throw this out for possible discussion. We could add 
``to the extent the Taft-Hartley Plan Act as self-insured, self-
administered plans,'' something to that effect of basically qualifying 
so that you would get down to whatever the number is--I don't know what 
the number is--that are self-insured and self-administered. We 
certainly could do that. There is no reason that cannot be done.
  Mr. GREGG. Is the Senator suggesting that additional definition? Is 
the Senator suggesting that definition, that expansion of the 
definition, that expanded language be placed on the definition section?
  Mr. DeWINE. We could do it that way. If the Senator has a suggestion 
of how better to do it, I would be more than happy to take the 
suggestion.
  Mr. GREGG. That may well resolve the problem.
  Mr. BREAUX. Will the Senator yield for a question?
  Mr. DeWINE. I yield to my colleague from Louisiana.
  Mr. BREAUX. I ask the Senator from Ohio, I think the discussion has 
been very helpful. Two points are important to have on the record. A 
self-insured and self-administered plan by this amendment would not 
relieve themselves of being subject to litigation for decisions made 
based on medical necessity under the Patients' Bill of Rights bill we 
are adopting.
  Mr. DeWINE. The Senator is absolutely correct. We believe the 
language does reflect that, but that is clearly the intent.
  Mr. BREAUX. If the Senator would further yield, the point made by the 
Senator from New Hampshire is absolutely correct in the sense that on 
page 3 of the Senator's amendment, line 18, when he talked about that 
group health plan--basically the Taft-Hartley group health plans, as I 
understand it--you didn't have that limitation of those that would also 
be self-insured and self-administered. I think if you added that to 
that definition, you would correct the problem. I think it would be in 
keeping with what the Senator wants to do and certainly something I 
could support.
  Mr. DeWINE. I appreciate my colleague's comments. I think they are 
well taken. We will get about the business of dealing with that. The 
point is very well taken.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time? The Senator from Tennessee.
  Mr. FRIST. Madam President, I yield myself approximately 15 minutes 
on the opposition time for the time being.
  The PRESIDING OFFICER. The Senator from Maine has 7 minutes remaining 
in her time on the proponent's side.
  Mr. FRIST. Madam President, is this 4 hours evenly divided?
  The PRESIDING OFFICER. There are four 1-hour segments. The Senator 
from Tennessee controls 1 hour of the 4-hour time. The Senator from 
Maine controls 1 hour. She has 7 minutes remaining on her hour. The 
Senator from New Hampshire controls 1 hour, and the Senator from 
Massachusetts controls 1 hour.
  Mr. FRIST. Madam President, I ask unanimous consent that for the 
first hour, it be equally divided so we can continue the debate for 
those in opposition.
  Mr. REID. Madam President, I am sorry. What was that request?
  Mr. FRIST. For the first hour of the debate, which we are about, I 
guess, 20 or 30 minutes into, the opposition has not had the 
opportunity to speak. I was saying for the first hour, in which about 
25 minutes has been used, if we can have 30 minutes on either side.
  The PRESIDING OFFICER. The debate has already consumed 53 minutes on 
the proponent's side controlled by the Senator from Maine.
  Mr. REID. The Senator from Tennessee has an hour. He can use it any 
way he wants.
  Mr. FRIST. Madam President, I understand I have an hour on my side. I 
will use time off our side at this juncture. I yield myself such time 
as necessary.

[[Page 12321]]

  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. FRIST. Madam President, first of all, let me put perspective on 
this because we have had the amendment introduced, and there are 
basically three points I want to make.
  No. 1, I applaud the Senator from Ohio and the Senator from Maine 
because they have, for the first time in the debate, addressed this 
issue of suing employers--this issue of who is responsible, who gets 
sued, if there is harm or injury or cause of action. As one can tell 
from their earlier discussion, there has been a lot of debate in 
struggling with how best to address who you sue and when you sue them 
and what entity. There is not very much certainty out there. Do you sue 
the plan? Do you sue the employer? Do you sue the agent of the plan? Do 
you sue the physician or the hospital when there has been harm or 
injury?
  In the McCain-Edwards-Kennedy bill, there are exclusions for the 
physician and the hospital. However, the argument and the debate over 
the last 4 or 5 days has made it clear that you can sue the employers 
if they directly participate. And what has now been brought to the 
floor in a very positive way, I believe, is this concept of giving 
certainty to all that through a model that is called the designated-
decision-maker.
  Really all that means is that since somebody is going to be sued--and 
the way it is designed now, you don't know who it is; that doesn't give 
anybody certainty--the easiest thing to do is for an employer to walk 
away. It might be me that is sued. It might be the entity that is 
administering my plan. It might be an agent of that plan. That is so 
confusing and puts so much risk out there, and you never know whether 
you are at risk or not, or somebody else, or who the lawyers will be 
going after. The designated-decision-maker says: We are going to all 
get in a room and say there is one entity responsible. If there is a 
lawsuit, you are going to go after that entity. That entity has to bear 
the risk, and also whatever value there is for that risk will have to 
be either purchased or sold. That gives certainty to the overall 
liability issue.
  The second point--I will come back to this--that is very positive in 
the underlying amendment is this broad cause of action which is being 
struck from the underlying bill. That is where the underlying bill, 
when you go to the Federal level in the underlying bill, there is a 
cause of action called ``duty under the plan.'' Unfortunately, if you 
leave that cause of action in there, it sweeps in all sorts of things, 
whether it is the HIPAA regulations or the COBRA regulations, and all 
of a sudden for those sort of indications, you don't have just 
compensation, but you are exposed to these unlimited lawsuits out 
there. So it is very positive, in the amendment that has been put on 
the floor by the Senators from Maine and Ohio, to take that cause of 
action out of the underlying bill.
  The third point is that the Senator from Ohio made the point that 
this is not the answer to liability. Liability involves exhaustion of 
appeals. And we have an amendment pending on the floor addressing 
whether there should be caps; and that entire debate, once you get to 
courts, whether it is noneconomic damages or punitive damages, involves 
whether you to go Federal court or State court and then this whole idea 
of who do you sue. Can the employer be sued? And that last point is 
what the designated decisionmaker selectively looks at, that sliver of 
the pie of liability.
  So far in the debate, over the last 4 or 5 days, we have not 
addressed Federal versus State jurisdiction, whether or not there are 
caps, full and completion exhaustion, or should there be class action 
suits. The Senator from Ohio made that point. It is critically 
important to address. If you read the press on this, this decision-
maker model will take care of the liability. But it does not answer the 
questions on the part of myself and many others.
  The history of the designated-decision-maker model is interesting as 
well. It is in the Frist-Breaux-Jeffords bill. The amendment on the 
floor is very similar to what is in the Frist-Breaux-Jeffords bill in 
that you give certainty; you have to name an entity to be the 
designated-decision-maker. That is who you sue. The Frist-Breaux-
Jeffords bill based that on what already passed the Senate about a year 
and a half ago. A designated-decision-maker amendment passed this body. 
That amendment came from the conference last year, where you had 
Democrats and Republicans sitting around a table addressing how to come 
up with a system that best addresses this problem of having employers 
being sued out here when you really want to go after HMOs. How do you 
delink employers versus HMOs?
  Basically, you make one entity responsible. It could be the employer, 
if they meet certain financial criteria; it could be the HMO; or the 
HMO might contract with another entity. But somebody has the risk. They 
have to have the financial wherewithal that equals that risk or the 
potential of that risk. So I love the designated-decision-maker model. 
It is clearly needed and necessary.
  Let me take a minute. We keep drawing references to the Frist-Breaux-
Jeffords bill and the way that worked, because whether or not I can 
actually end up supporting the amendment of the Senators from Maine and 
Ohio really depends on how close in my own mind we get to the 
underlying model that is in the Frist-Breaux-Jeffords bill. I believe 
that gives the most certainty--certainty to the employer and also 
certainty to the employee, at both levels.
  The way that process works is there is an internal and external 
appeals process. Under the Frist-Breaux-Jeffords bill, you can't opt 
out of that and go directly to the court as you can in the McCain-
Edwards-Kennedy bill. We are trying to fix that through another bill.
  In the Frist bill, once you go through the internal and external 
appeals and you go to court, you are going to end up going to Federal 
court. If there is a lawsuit in advance, prospectively--not after the 
fact--a designated-decision-maker has been identified. If there is a 
lawsuit, there is no question of whether you sue the employer or the 
HMO or the agent of the plan or the hospital or the doctor. Indeed, you 
sue one person. There is no choice. It is the designated-decision-
maker. That is decided in advance.
  The Snowe-DeWine amendment takes that concept. Again, I think it is 
the right way. I think most people would agree that is the most 
appropriate way to address this issue of employer liability. But what 
they have done is given a choice, from direct participation, of the 
decision-maker model. To me--and I will have to be honest--that leads 
to some sort of uncertainty because instead of having real certainty in 
the employer's mind and employee's mind, the beneficiary of the plan, 
that there is one person, and you know in advance a year before, 6 
months before, that they have the responsibility, and somebody has paid 
for it. Instead of having that certainty, you introduce more choice. 
Again, are they directly participating? Are they in the decision-maker 
model? The debate we just heard--are they a self-insured, self-
administered plan which is carved out of the Federal cause of action, 
or are they a union plan? We just heard that debate. Some are self-
insured. Some are not. Why carve unions out there? We will look at that 
particular language. All of that uncertainty is avoided with the 
designated-decision-maker model.
  Now, that second point that I have already mentioned, which is very 
positive in this bill--probably more positive, I believe, in the 
amendment introduced by the Senators from Maine and Ohio, is the part 
of their amendment which deletes the provision in the underlying 
McCain-Edwards-Kennedy bill that would allow lawsuits against employers 
and insurers for unspecified failures--and I quote from the bill--``in 
the performance of the duty under the terms and conditions of the 
plan.''
  That is the language which is going to be deleted. That is important 
because if you don't take that out of the underlying bill, employers 
will still be highly vulnerable to lawsuits based on alleged failures 
in the whole realm of administrative duties. That could be under HIPAA, 
the Health Insurance

[[Page 12322]]

Portability and Accountability Act, which we passed in this body 
several years ago, and COBRA, whereby employers are not allowed to 
delegate administrative duties, under those laws, to anyone else, by 
law. You can't. So the liability for those administrative duties, 
because you can't delegate, would fall on the employer, thus allowing 
the employer to be sued. So that is very positive, I think. It was 
addressed directly in the amendment, and I commend them for that.
  Third is that we need to understand throughout this debate, as we 
hopefully can refine this amendment and pass it if we can resolve some 
of the specific issues in the language. We need to be crystal clear 
again that addressing the designated-decision-maker addresses the 
employer aspect of liability but does not address the many other 
factors of liability, which I think we have a responsibility to address 
on this floor, since this bill never went through committee and, in 
truth, we are marking up and writing this bill for the first time on 
the floor. We need to talk about Federal versus State courts, class 
action suits, whether or not there should be caps in a noneconomic 
damage or should there be punitive damages. All of those other issues 
have not yet been addressed. Now I am quite pleased we are addressing 
the designated-decision-maker aspect of employers being sued.
  Several quick examples. There need to be clear and effective limits, 
I believe, on class action lawsuits. There need to be firm requirements 
that we fully exhaust internal and external reviews before initiating 
any lawsuits. There are a lot of broad exceptions. We talked about some 
of them as the Thompson amendment was on the floor; we have addressed 
it. We have to have complete exhaustion as we go through.
  Second, if an independent external medical reviewer, who is a doctor, 
which is in the Frist-Breaux-Jeffords plan, as well as in the McCain-
Edwards-Kennedy plan, upholds the plan's denial, then the plan should 
not be subject to liability. We need to discuss that on the floor. In 
the underlying McCain-Edwards-Kennedy bill, a patient can still sue, 
even though that independent medical reviewer, a physician with age-
appropriate expertise, has decided that the plan made the right 
decision in internal and external appeals and the physician says 
everything was right going through. I believe the Frist-Breaux-Jeffords 
bill says, no, you can sue for care, injunctive relief, but not for 
extraordinary rewards. That has to be addressed.
  Also, the underlying McCain-Edwards-Kennedy bill would allow the 
independent reviewer to ``modify''--I believe that is the word used--
the plan's denial. And this is just as a physician. What it means is 
that in a paper review you never see the patient. You read records and 
hope they are complete, and the reviewer is going to have the 
opportunity to maybe do thousands of these, maybe hundreds, maybe 10. I 
don't know. I was with a doctor a few minutes ago who has done 
thousands of these reviews.
  The point is that you never see the patient. You never get the 
subtleties of clinical diagnosis, which all of us know is science, but 
there is also art to it. You are asking somebody to look at this paper 
and review it and say, yes, it was right or, no, it was wrong.
  With the information written on that paper, you are allowed to come 
in and modify the treatment of that patient. I can say as a physician 
the fact that based on that paper review, a reviewer could require that 
the plan cover treatment that neither the treating physician nor the 
plan ever contemplated or ever recommended, this reviewer who maybe 
over the telephone is reading it, is going to be able to modify it 
bothers me.
  It bothers me because it becomes binding, and we all know it becomes 
binding. When it becomes binding and you have not had that direct 
experiential observation, to me it is not right. It needs to be 
corrected.
  I will give another example: The employer in the plan would be 
subject to simultaneous litigation in Federal and State court. Again, 
speaking to the underlying bill, we have to address that because we all 
know when we have lawsuits which result in--take a $120 million damage 
award such as there was 2 years ago. A $120 million award is a large 
award. Some will say it is too much; some will say it is too little. 
But a $120 million damage award results in total premiums being paid 
for about 55,000 enrollees on average.
  I do not want to correlate the two, but $120 million is a lot of 
money, and, at least in my mind, I come back to the uninsured and the 
number of enrollees who could go out and buy insurance.
  We need to be careful about encouraging shopping between the Federal 
courts and State courts, and once you get to the State courts, from 
State to State. Maybe tomorrow, Saturday, Sunday, or Monday we will 
come back to that and talk about it. Clearly, if you are an attorney, 
for a single event, you have multiple causes of action, you can 
question that, but in addition to that, you have multiple venues: the 
Federal court, the State court, or from State to State to State. That 
is our interpretation. That is our attorneys' interpretation. It has to 
be fixed.
  In closing, I support the designated-decision-maker model. The 
Senators from Maine and Ohio are to be congratulated for the first time 
in this Chamber addressing in a sophisticated, appropriate way how to 
clarify the uncertainty about suing employers versus suing HMOs.
  I support the model. It is in the underlying Frist-Breaux-Jeffords 
bill. We are looking at the language, as we speak, on the issue of 
unions and why they are specifically carved out. That needs to be 
addressed. We hope to have factual information. We will read the 
language, and I look forward to working aggressively with the authors 
of this amendment so we can all rally around it.
  Mr. DeWINE. Will the Senator yield?
  Mr. FRIST. Yes.
  Mr. DeWINE. If I can respond to the Senator's comments about why we 
crafted the bill, it was to give the employer a choice as to whether or 
not they would go under the designated decisionmaker or under the 
language of the other bill, which is direct participation.
  Frankly, I do not think this is a huge deal. The reality is that the 
vast majority of businesses will go under designated decisionmaker, 
and, in fact, we provide in the bill that it is automatic. That will 
just happen unless they make a conscious decision to say: We do not 
want to do the designated decisionmaker; we want to go under the direct 
participation language.
  We are in an unknown area, and I do not think anyone knows how this 
is going to play out entirely in the real world and what decisions they 
are going to make. Some people come up with some scenarios under which 
they would not want to designate someone as a designated decisionmaker. 
The vast majority are. We wanted to provide this as a fallback 
position, more options.
  I do not think it is going to make it more ambiguous or less definite 
because we provide automatically it is going to be designated 
decisionmaker unless they make an action and say: No, we do not want 
designated decisionmaker; we want to go with our model because for some 
reason it works that way. We can look at the language and talk about 
it.
  In explanation to our colleague from Tennessee, that is what our 
thinking was. We do not know where the world is going with this new 
language, and we wanted to give as many options to businesses as we 
could. That is why we did it.
  Mr. FRIST. Mr. President, I claim my time.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. FRIST. I guess this decision of certainty--I usually like choice 
coming through, and it appeals to me. I am a 50-person convenience 
store operator and have three or four convenience stores in the area, 
and I have people barely scraping by, working minimum wage, but I 
recognize giving people some insurance goes a long way. Some people say 
it does not matter; you still have your care. If you have insurance, 
you end up getting better care in the

[[Page 12323]]

United States of America, it gets you in the door. We talk about the 43 
million uninsured, and we all care. It bothers me in a direct way.
  I am that operator and I know I am going to have to find a 
designated-decision-maker. That is going to cost money because it is 
liability; it is increased liability. I do not know, but if I have a 
choice, I am going to say I am barely scraping by and it is just easier 
for me not to play at all. Dealing with designated-decision-maker, you 
have that choice. If that is the case, I fall back to the direct 
participation language, and the direct participation language has all 
of the other problems. The pressure of the system is going to be such 
because direct participation does not cost you much, but if you get 
sued for $120 million or in 1993 for $89 million or in the year 2000 
for $80 million. That is real; just one case.
  If I am sitting in my convenience stores and I say designated, this 
is the new model created by the U.S. Congress; I am not going to 
participate in it; it is too expensive. Thereby I go back to direct 
participation, and we are where we are now.
  It is easier to walk away and not give even those 30 employees 
insurance out of fear, out of risk. That is why with the direct 
participation model, as long as everybody plays and everybody is 
certain it has prospective certainty for the employer and employee, 
people are not going to drop their insurance.
  I will be happy to yield the floor.
  Mr. DeWINE. To respond, as envisioned by the Senator's original 
bill--and the Senator from Tennessee is the one who came up with the 
language of the designated decisionmaker and I applaud him for it 
because no one has come up with one better. This is the model. This 
language is pretty much the Frist bill. But in the Senator's example, 
the designated decisionmaker is going to automatically--you have this 
company that has three or three convenience stores; they have who knows 
how many employees; they buy insurance. Their designated decisionmaker 
is automatically going to be the group handling the insurance. They 
will not have to make a conscious decision at all. It will just happen. 
That is the glory of the way it is written and of the Senator's 
original language, that it is automatic; it is going to happen. They 
are not going to have to look for a designated decisionmaker.
  Under the language of the Senator from Tennessee, it is going to take 
care of itself. That is the strength of it.
  Mr. FRIST. May I use 1 minute and then I will yield on that issue. I 
want to respond to that.
  Mr. KENNEDY. May I ask a question? We have two other cosponsors of 
the amendment. They have yet to have a word.
  Mr. FRIST. How much time has been used by this side?
  The PRESIDING OFFICER. The Senator from Tennessee has consumed about 
22 minutes.
  Mr. FRIST. How much has the other side used since we have been on the 
amendment?
  The PRESIDING OFFICER. The other side has used 53 minutes.
  Mr. FRIST. They have used 53 minutes, and we have used 22 minutes.
  Mr. KENNEDY. How much have we used?
  The PRESIDING OFFICER. The Senator from Massachusetts has used none.
  Mr. FRIST. I was speaking in opposition to the amendment.
  Mr. KENNEDY. I think the presenters ought to be entitled to whatever 
time they have remaining. I am a strong believer in that. I would like 
to invite our cosponsors to have a word.
  The PRESIDING OFFICER. The Senator from Tennessee still has the 
floor.
  Mr. FRIST. Thank you, Mr. President. A matter of clarification, in 
speaking in opposition to the amendment, yielded by Senator Gregg, we 
have used how much time?
  The PRESIDING OFFICER. Twenty-three minutes.
  Mr. FRIST. Twenty-three minutes since we have been on the amendment. 
Clarification: The proponents have used how much?
  The PRESIDING OFFICER. Fifty-three minutes.
  Mr. FRIST. I will be happy to yield the floor in a moment. 
Clarification on the designated-decision-maker model: We would not 
necessarily assume the insurance company is the designated-decision-
maker. You would have to designate that, and that is part of our Frist-
Breaux legislation, just to clarify that.
  Ms. SNOWE. Will the Senator yield?
  The PRESIDING OFFICER. Who yields time?
  Ms. SNOWE. Will the Senator yield on that point?
  Mr. FRIST. I will be happy to.
  Ms. SNOWE. It is important to emphasize in this amendment as we have 
drafted it includes a provision that starts out with automatic 
designation: That a health insurance issuer shall be deemed to be a 
designated decisionmaker for purposes of subparagraph (A) with respect 
to participants and beneficiaries of an employer or plan sponsor.
  That is important to emphasize, and it automatically occurs so we 
remove the ambiguity, extra steps, cost, and so on, with respect to 
that particular requirement.
  Mr. KENNEDY. I yield such time as he desires to the Senator from 
Nebraska and then the Senator from Arkansas, two lead sponsors.
  The PRESIDING OFFICER. The Senator from Nebraska.
  Mr. NELSON of Nebraska. Mr. President, I thank the Senator from 
Massachusetts for the opportunity to speak to this amendment. There has 
been a lot of discussion recently and I think most people's heads are 
swimming about what a DDM is and what the purpose of this amendment 
truly is.
  The purpose of this amendment is to make sure, whether you are a plan 
sponsor or an employer, if you are self-insured and self-administered, 
that you are treated the same. You have to treat one and all the same. 
That is what this is about. I believe there is some language being 
worked on that probably will be offered shortly to make it clear that 
is exactly what is intended by this amendment. It does not specifically 
carve out one group or another. It carves out all groups where there 
are plan sponsors or employers who are self-insured and self-
administered. All other employers are in a position to have a DDM, 
designated decisionmakers, or they have an insurer which is a 
designated decisionmaker.
  The whole purpose of this legislation is to be able to provide 
additional rights and opportunities for insurance. This does it. What 
it also does is make sure that employers are not entrapped in 
unnecessary litigation and that if they don't make decisions about 
health care and make decisions about claims, they are not involved in 
litigation.
  Specifically, this amendment narrows it down to not being brought 
into Federal causes of action. It does not absolve employers or plan 
sponsors from any kind of litigation that may come through State 
courts.
  While it may be difficult to follow the roadmap, there is one thing 
that needs to be clarified and that is, it does not treat any one group 
in any special way. It treats all plan sponsors and all employers who 
self-insure and self-administer, the same way. If they choose to get a 
third party administrator, which becomes a designated decisionmaker, 
they will be absolved from liability from litigation unless they 
somehow participated in the claim-making process, which they would not 
do if they had a designated decisionmaker. This is intended to make 
sure we balance the interests of the right of the individuals, the 
right of the patients to sue, with the opportunity for employers not to 
be entangled in litigation where they should not be entangled. It also 
means that in balancing these interests, there will be fewer cases of 
uninsureds, and there will be fewer employers deciding to get out of 
the business of providing health insurance benefits to employees.
  We have heard from employer after employer about their concern--as a 
voluntary provider of these benefits, now suddenly they can be sued. 
This makes it clear they will not be sued and it also makes it clear 
that those who are plan sponsors will not also be sued unless they 
participate in making decisions about health care claims. That is what 
this is all about.

[[Page 12324]]

  I hope this clarifies it for some of my colleagues on the other side 
of the aisle who have raised questions. It is important to raise 
questions and certainly ask the question whether there is any special 
treatment. But if you look at the language and you look at what is 
being done, there is not any special treatment for one group over 
another. The category is the same. If you self-insure and self-
administer you will be open to some exposure. However, we will make 
certain that exposure is limited when it comes to Federal actions. That 
is what this is about.
  I yield to my colleague from Arkansas and say before departing, thank 
you to my colleagues and cosponsors from Maine and Ohio. I believe this 
is the right way to proceed to improve this bill.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mrs. LINCOLN. I am the last of four children and I am the last in 
this line of four, and I am delighted to have waited patiently to rise 
today and speak in support of an amendment I am offering with Senator 
Snowe, along with Senator DeWine and Senator Nelson, to protect 
employers from liability.
  The good Senator from Tennessee, Dr. Frist, would certainly join and 
agree, as we have taken a good bit of his designated decisionmaker 
language, that our ultimate goal is to protect the rights of patients 
while ensuring that employers who provide health care are not subject 
to frivolous lawsuits.
  The objective is to those individuals, the good guys in this bunch, 
the employers reaching out and providing the kind of health care that 
Americans need; that we can work within the confines of this bill and 
within this amendment to ensure they can continue doing that. That is 
exactly what we have attempted to do. I think we have worked long and 
hard. I know my colleagues and I have worked long and hard to develop 
language to do just that, in working with those employers who want to 
provide the much needed health insurance that Americans want.
  Employers that are offering health insurance are the good guys. We 
don't want to discourage them from offering health insurance. This 
amendment provides the assurance they need to those offering health 
insurance, that if they do not make medical decisions or override 
medical decisions, they are not liable. Again, I know the good Senator 
from Tennessee, Dr. Frist, understands that in terms of making sure 
those who are not making medical decisions are not going to be held 
liable.
  We have worked hard on the underlying bill, as the Presiding Officer 
knows, as we have talked in many press conferences on some of the most 
important issues to the American people. This Patients' Bill of Rights 
is one of those issues. We have reached out.
  The opponents of the Bipartisan Patient Protection Act have argued 
that the Patients' Bill of Rights will drive up health care costs by 
subjecting employers to increased liability and frivolous lawsuits, and 
in turn they argue rising costs will force employers to drop health 
insurance. Our amendment presents an innovative solution to this 
potential dilemma. We have been able to provide the protection needed 
by these individuals who are already out there doing the right thing.
  By allowing these employers to design this designated decisionmaker, 
a term presented from the Breaux-Frist legislation, to oversee medical 
care decisions, we remove most large and small business owners from the 
threat of liability. They have that option of choosing a designated 
decisionmaker. We make it possible for employers to contract with a 
third party to administer health benefits and protect themselves from 
unnecessary and crippling lawsuits. This amendment makes it crystal 
clear that employers will not have to open themselves up to new 
liability as a result of providing health insurance to their employees.
  When we began discussing the Patients' Bill of Rights years ago, we 
wanted to ensure that patients would be able to choose their own 
physicians and their medical professionals--not accountants, not 
bureaucrats, not insurance company executives, but the medical 
professionals--would make the medical decisions. We never, absolutely 
never, intended to open employers up to liability. And we certainly 
don't want to do anything in this bill that would discourage these 
employers from providing health insurance to their employees.
  We are delighted to work out the clarifying language that Members 
believe is needed to assure everyone is treated fairly.
  The amendment I offer today refutes the charge that the Patients' 
Bill of Rights is a trial lawyers employment act. Today we make it 
clear that we have absolutely no intention of subjecting employers to 
new liability or frivolous lawsuits. We want to encourage our employers 
in this country to provide health care coverage for their workers.
  In 1993 when we began the discussion of health care, we made it our 
objective to get more individuals covered under health insurance 
provided by their employers. We were able to do that. Unfortunately, we 
have more uninsured in this country today, and we do not want to 
exacerbate that problem. We want to give these employers the comfort 
that they need, to feel confident in keeping that employee insurance 
available.
  This amendment is our pledge of good faith to American employers and 
business owners that we will protect their needs as well as the needs 
of their employees.
  I applaud the work of my colleagues. I have enjoyed working with 
them. I appreciate everyone's patience and endurance in this process. 
We hope to be very inclusive, to bring others in to make sure this 
language is exactly that: It is giving the protection and the comfort 
level to the employers of this Nation that are doing an excellent job 
in providing health care to their employees.
  I also ask unanimous consent that Senator Baucus be added as a 
cosponsor to this amendment, and I yield.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Massachusetts.
  Mr. KENNEDY. I yield the Senator from Michigan 5 minutes.
  Ms. STABENOW. Mr. President, I rise first of all to ask unanimous 
consent to add my name as a cosponsor to this amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. STABENOW. Mr. President, I thank my colleagues on both sides of 
the aisle for their hard work and the innovative language that is put 
together in this amendment. For those of us who are sponsors of the 
Patients' Bill of Rights, we have said since the beginning this was in 
no way intended to allow lawsuits to be brought against employers, this 
was about making sure those who make medical decisions were held 
accountable for those medical decisions.
  As we said so many times on the floor, it is really about closing a 
loophole in the law as well. We have indicated over and over again, 
when you have only two groups of people in this country who are not 
held accountable for their behavior and their decisions, one being 
foreign diplomats, the other being HMOs, it doesn't make any sense. We 
know this was a loophole that was created by the outgrowth of HMOs and 
development of new ways of managing health care, and basically the 
Patients' Bill of Rights is meant to clarify that and make sure those 
who are making medical decisions are held accountable for the outcomes 
of those medical decisions, just as are doctors and nurses and other 
medical professionals.
  What I think is important about this amendment is it very clearly 
states to each and every employer, large and small, that in fact we 
will make sure if they are not making medical decisions--and in the 
vast majority of times an employer is not making a medical decision--
the intent of the Patients' Bill of Rights is not to create a liability 
for the employer. We have employers, many in Michigan--hundreds of 
thousands of them--who are responsible employers, providing insurance 
for their employees. We want to encourage and support and salute them 
for doing that and make sure nothing gets in the way of that 
continuing.
  I again thank my colleagues from both sides of the aisle who have put 
in

[[Page 12325]]

a tremendous amount of work on this amendment. There has been a 
wonderful job done clarifying this. I hope we have now been able to put 
to rest what was unfortunately a common misperception, something said 
over and over again to employers of this country, that somehow this 
opens them up to lawsuit. It never was the intent. This amendment 
clarifies that and reiterates it.
  I hope this will allow us to move forward, to pass this very strong 
Patient Protection Act that says to each and every family: When you 
have insurance you can have the confidence, whether it is in the 
emergency room or the doctor's office or the hospital, that you will 
have the care available that your family needs.
  I will yield the floor.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I yield myself 3 minutes.
  Both the Snowe amendment and the Frist amendment attempt to protect 
lawyers using the designated decisionmaker language. However, the fact 
that they use similar names can't mask the dramatic differences between 
these two amendments. Senator Snowe's amendment helps employers without 
hurting patients.
  There are two important differences between the designated 
decisionmaker language in the Snowe amendment and the Frist amendment. 
Senator Snowe's amendment ensures that the person an employer 
designates as responsible and will be liable for all damages caused by 
any wrongful benefit determinations the patient gets under our bill. 
This is exactly what employers want and deserve, a clear way under the 
law to protect themselves.
  The Snowe amendment allows employers to name an HMO or health insurer 
or plan administrator as their designated decisionmaker and not have to 
worry anymore about being sued. That is what President Bush wants, and 
that is what we want. If employers give up all control over medical 
decisions in individual cases such as this, Senator Snowe's language 
helps guarantee employers will not be sued, period.
  Senator Frist's designated decisionmaker language is much weaker. 
Under his proposal, the only entity that can be sued is the designated 
decisionmaker. While the designated decisionmaker is supposed to have 
exclusive authority to make benefit determinations, a court or jury 
remains free to find in fact another person or company influenced the 
decision that caused the harm. People who are not designated 
decisionmakers may in fact influence decisions and share liability. But 
the Frist language leaves victims no way to hold these outsiders 
accountable. That is because, unlike the amendment of Senator Snowe, 
the Frist amendment never deems the designated decisionmaker liable for 
the acts or omissions of other parties who affect benefit 
determinations. This is the most critical difference between the two 
proposals.
  The other important difference is that under Senator Snowe's 
amendment, only employers can name designated decisionmakers; HMOs 
cannot. After all, the entire point of having designated decisionmakers 
is to ensure employers have a clear, easy way to avoid all possibility 
of being sued, not to protect HMOs.
  Of course, the effect of allowing HMOs to have a designated 
decisionmaker is to enable them to escape liability for part or all of 
their actions. Under the Frist-Breaux amendment, if a judge or jury 
finds someone in an HMO harmed a patient and that person working for 
the HMO was not a designated decisionmaker, the HMO escapes liability.
  I think the amendment is sound. I think it has been a matter of 
discussion and debate. I think those of us who were involved in the 
development of the initial legislation sought to achieve what this 
amendment does enormously fairly. It also treats the various Taft-
Hartley aspects equally with the other parts, so we have equality for 
one and equality for the other.
  Another important feature of Senator Snowe's amendment is that it 
protects employers and Taft-Hartley plans which self-insure and self-
administer claims. The Frist alternative contained in S.889 fails to 
address this issue. The Taft-Hartley plans have a long history of 
providing quality health care for their members. In their unique 
structure, employee advocates comprise half of the members of the 
board. The record shows that this has been an excellent protection even 
for beneficiaries who have extraordinary health care needs. In 
structuring this legislation, we wanted to be certain that we didn't 
impose any inappropriate burdens on these plans.
  I commend the Senators. They spent a great deal of time on this 
amendment. One would think it would be easy in the drafting of it, but 
I know they have been challenged with it. I commend them for really 
advancing this whole issue in a very positive, constructive way, a way 
which really reflects what this President has enunciated and a way 
which we had hoped to include in our legislation. There was a 
significant question about it. Legitimate issues were raised. I think 
this is one of the important contributions in helping move this 
process. I commend all those on both sides who were very much involved 
in its development.
  The PRESIDING OFFICER. Who yields time?
  Mr. KENNEDY. Mr. President, I yield 5 minutes.
  The PRESIDING OFFICER. The Senator from North Carolina.
  Mr. EDWARDS. Mr. President, this amendment is a wonderful example of 
what can be done when we work together to solve problems. The 
beneficiaries of the work that has been done by Senators Snowe, Nelson, 
DeWine, and Lincoln are not the Members of the Senate but the people of 
this country, the families who need quality health care, and the 
employers that need to be protected from unnecessary lawsuits and 
unnecessary litigation.
  First, I thank Senator Snowe for her leadership. She has taken the 
lead on this issue from the beginning. Her work has been absolutely 
crucial.
  My friend, Mr. DeWine, the Senator from Ohio, has also lent 
tremendous leadership and expertise to the work on this effort.
  I also thank my colleague seated near me, Senator Nelson from 
Nebraska, who not only brings great expertise to this issue both as 
Governor and as insurance commissioner of the State of Nebraska, but he 
has been dogged in his determination to ensure that the small 
employers, particularly, and employers generally, of America are 
protected in this legislation.
  This effort could not have been achieved without his leadership and 
without his dogged involvement in this issue. He has been involved in 
so many of the issues with respect to this legislation. He and I have 
worked together. He and I and Senator McCain have worked together. He 
has been involved in this patients' rights protection act from the very 
beginning. We thank him for all of his work and important contribution.
  Also, the Senator from Arkansas, who has expressed a concern about 
employers from the very first moment, and I have talked about this 
issue. She cares deeply about patients and deeply about doctors making 
medical decisions, having a very well-trained physician in her own 
family, that being her husband. She has firsthand experience with that. 
But in addition to that, she has shown great concern for small 
employers and, as has Senator Nelson, has made it very clear to Senator 
McCain and myself and Senator Kennedy that the only way she could 
support this legislation is if we did what was necessary to protect 
employers. She has been absolutely crucial in achieving that goal.
  Without the work of Senators Lincoln, Nelson, Snowe, and DeWine, the 
employers of this country would be in a different place than they are 
today. I think they will be after this amendment is voted on.
  They have achieved two very important purposes:
  No. 1, they have insured that there are real and meaningful 
protections for employers through the designated decisionmaker model 
which we have already talked about, which essentially

[[Page 12326]]

means the small employers that we have talked about are 100-percent 
protected. They cannot have liability under the language of this 
amendment, which is crucial. It is a goal and a principle that we have 
all shared from the beginning but, again, couldn't have been done 
without their work. They have also managed to do it in a creative and 
innovative way that, while protecting employers, does not leave the 
patients and the families high and dry, which is exactly what needed to 
be done.
  Honestly, it is a very difficult task, but they have worked doggedly 
on this issue. All of them managed to reach a bipartisan agreement.
  The most important thing from the perspective of the overall 
legislation is that this is another in a series of obstacles about 
which we have now been able to reach some consensus.
  They have followed sort of one by one by one, starting with the issue 
of scope, which Senator Breaux, Senator Jeffords, I, and others worked 
on, reaching a crucial compromise going to the issue of independence of 
medical panels to make sure that those panels are, in fact, 
independent.
  We have reached a resolution of that issue. On the issue of medical 
necessity, the Presiding Officer from Delaware, along with my friend, 
the Senator from Indiana, were crucial in being able to reach a 
resolution that shows proper respect for the sanctity of the contract 
and the specific language of the contract but some flexibility, where 
necessary, for the independent review panel with respect to patients, 
keeping in mind the interest of patients on the one hand, which I know 
you care about deeply, and the importance of the contract in keeping 
costs under control.
  Without your work and Senator Bayh's work, that would not have been 
achieved.
  The Senator from Tennessee and I, as we speak, are attempting to 
finalize an agreement on the exhaustion of appeal. Both of us believe, 
as do most Members of this body, that it is a sensible thing to have a 
patient go through the internal and external appeal before any case 
goes to court. We have tightened up that language; working together on 
it. We know it is important.
  The Senator from Tennessee, Mr. Thompson, and I are resolving this 
issue of the exhaustion of appeal. All of us believe that the appeals 
process is crucial to getting patients the care they need.
  If this bill works the way Senator McCain and Senator Kennedy and I 
believe it should, the ultimate goal will be achieved if there were 
never a lawsuit filed because what would have happened is the appeals 
process would have worked and the patients would have received the care 
they needed. That is what this is about.
  We want patients to use this appeals process. The Senator from 
Tennessee and I are finalizing an agreement on exhaustion of 
administrative remedies.
  I also want to thank our colleagues on this specific amendment 
because that is another crucial obstacle. Scope, independence of the 
panel, protecting employers, medical necessity, and exhaustion of 
appeals are crucial issues in this legislation about which we have been 
able to reach consensus.
  As I said earlier, the important result is not what is happening 
within this Chamber but that the families of this country will have 
more control over their health care, and we will actually have a more 
realistic possibility of getting the legislation they so desperately 
need passed.
  I thank all of my colleagues for all of their hard work. Without 
them, this could not have been achieved.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. GREGG. Mr. President, let me begin by saying that this amendment 
is moving in the right direction. I believe, with some of the changes 
which we have discussed with the Senator from Ohio and the Senator from 
Maine, that we can make real progress on improving it. Unfortunately, 
the amendment came late. It is complicated. The issues involved are 
considerable. But before getting into the specifics of the amendment 
and how it may or may not play out in a positive way relative to 
producing a quality bill, let me make the point that this amendment 
addresses an important but not a broad part of the issue.
  This amendment doesn't, for example, address some very real and 
significant issues in the area of liability. It doesn't address the 
issues of the 56 million people who are in self-insured plans.



  It does not, therefore, solve the overall liability question, which 
if you were to rate the five issues that I think the Senator from North 
Carolina has appropriately highlighted, although I am not sure he 
mentioned liability--he probably wasn't thinking in those terms, but he 
certainly hit the floor if you put liability on the table--liability is 
probably the key issue for a lot of people in this Chamber.
  Issues such as forum shopping, class action, damages, punitive versus 
compensatory damages, are major issues that we still have to address. I 
think we recognize that there is still a fair amount of distance to go 
in the liability area.
  But this amendment takes up the designated decisionmaker language. It 
takes a portion of the Frist-Jeffords-Breaux bill in this area and 
tries to basically graft that on to what is the McCain-Kennedy bill--a 
good and appropriate attempt, although I must admit that with just a 
quick reading of it I think there is going to be some real confusion on 
the part of employers between what they can do as a designated 
decisionmaker versus direct participation. I had hoped that the 
language would have a firewall in there. But as a practical matter, at 
least the movement is in the right direction to give some insulation 
for designated decisionmakers and people who use designated 
decisionmakers.
  As to the issue of union liability, there has been a lot of talk 
around here about making businesses liable. And they are liable. Small 
businesses and large businesses are all liable--and making HMOs liable.
  If you are a union employee and have a union plan, and your union 
tells you you can't get some sort of treatment that you need and should 
get, unfortunately, the way the bill was originally drafted, you would 
not have been able to sue that union plan, any more than if you had 
been employed by a company, and the company had sponsored your plan, 
and you would be able to sue them or, under this bill, the HMO. But 
ironically the unions ended up, under the original draft, of being 
completely taken out of the picture.
  The Senator from Ohio and the Senator from Maine made clear that was 
not their intent. I understand they are going to adjust some language 
so union plans, which are in the same basic position as those plans 
which are self-funded and self-administered, will be the ones which are 
taken out of the liability picture. That is reasonable. That is the way 
it should be. We look forward to that modification.
  Another issue that this bill raised, which has not been really talked 
about at all, is the fact that it basically has Federal usurpation of 
what has been a very traditional State responsibility of determining 
the viability of the insurance agency, whether the insurance agency has 
adequate financial strength to cover the projected losses which may 
occur. This has been something on which States have spent a huge amount 
of time. It is a real specialty. It is an art form to look at these 
insurance companies and determine whether or not they have the depth 
and the ability to cover the costs if they get hit with a whole series 
of claims.
  I would hate to see the Federal Government step into this arena where 
the States have been responsible and suddenly take it over. But under 
this amendment, as originally drafted, that would be the case; the 
Federal Government would now basically take all that responsibility 
away from the States.
  We discussed this with the Senator from Maine and the Senator from 
Ohio and their staffs to try to straighten this out. They recognize the 
issue.
  I think the Frist model in this area is the right model. It 
essentially says: Where the States have responsibility, where they are 
the insurer, then they

[[Page 12327]]

will have the ability--and retain the ability--to evaluate the insurer. 
But where it is a new Federal cause of action, a new Federal event, 
then the Federal Government will come in and do the evaluation. That 
seems to be a reasonable bifurcation of responsibility and will be an 
improvement if it is accepted.
  I understand language is being developed which hopefully will be 
accepted. That is all very positive, in my opinion.
  As I mentioned, this amendment, if we can get these issues worked 
out--and there are one or two other small ones--becomes a much more 
positive event for moving the bill in the right direction. The question 
becomes: What do we have left to do in that we have taken up a lot of 
amendments? Unfortunately, we still have a lot of amendments to go. 
Most of them are in the liability area. Some of them are in tangential 
areas. But I do expect we will have amendments, as we move into the 
evening, which will address such issues as the small employer who 
decides to cash out their employees and what type of protection they 
get. Senator Enzi happens to have that amendment.
  There will be amendments dealing with class action suits. I think 
Senator DeWine actually has an amendment in that area. There will be 
amendments dealing with coverage and liability. I have an amendment on 
punitive damages which essentially says if an employer lives by the 
terms of the external review, they should not be subject to punitive 
damages. There are a variety in that area. There will be amendments on 
forum shopping. I think Senator Specter has an amendment in that area 
that he may bring forward.
  So there are still a fair number of issues, especially involving the 
liability questions, which have to be resolved, after we get past the 
language which the Senator from Maine and the Senator from Ohio have 
brought forward, which, as I mentioned, I think with some adjustment--
which is major to the amendment, but which would be positive; and it 
appears to be acceptable to the sponsors--hopefully, will move the 
process in a better direction.
  At this time I will yield to the Senator from Wyoming such time as he 
may need from my time.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. If the Senator from Wyoming will yield for a brief inquiry 
of the Republican manager, it is my understanding that because of some 
people being at the White House and a conference that is going to be 
held by the minority at 3 o'clock, the minority does not wish to vote 
until 3:45 or 4 o'clock.
  Mr. GREGG. I believe there is still approximately an hour and a half 
left on the amendment. I would hope that once we reach an agreement, 
and we have the language from Senator Snowe and Senator DeWine relative 
to the issue of coverage for union plans and liability--and State 
versus Federal responsibility for reviewing the adequacy of liability, 
and there is one other issue--once we have that language, I personally 
would think we could start yielding back time and go to a vote.
  I think it would be hard to get to a vote before 4 o'clock because of 
other commitments. It would be my hope we could vote at around 4 
o'clock on this amendment.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. ENZI. Mr. President, this bill is really a strange one for me to 
be working on at all. Wyoming has one HMO. It is owned by some doctors. 
So far as I know, there are not any complaints on it. But there are 
some basic problems here that people in Wyoming are asking about.
  Because of Wyoming's makeup, I usually talk about small companies, 
because under the Federal definition of ``500 employees or less,'' we 
do not have a single company headquartered in Wyoming that would be 
considered ``big business.'' But on this amendment I have to talk about 
big business.
  I have been hearing from the accountants of a number of these 
companies. They are a little bit concerned about what is going to 
happen to their health care. They work for those companies. They can 
see what the costs are going to be on their companies. I have to say 
that this amendment before us now does not address the problem. I would 
like to think that it did.
  I would like to be able to pass this. I would like to not have to 
talk about a big company. There are the Caterpillers and Motorolas and 
the Pitney Bowes and the Hewlett Packards. There are about a dozen of 
these big companies in the United States. Again, none of them is 
headquartered in Wyoming. I am pretty sure that none of them operates 
in Wyoming. But I am still concerned about them because there are 6 
million people who get their insurance that way.
  I would suspect that almost everybody in this Chamber, with the 
exception of my friend from Wyoming, has one of these big companies in 
their State. Six million people are getting their insurance from these 
companies.
  What we are talking about is having a designated decisionmaker. It 
does sound like baseball season, doesn't it?
  Let me tell you how this insurance works. Right now they work it in-
house. They are able to keep their administrative expenses down to 5 
percent. Now they are faced with the possibility of having liability. 
These are the companies that are providing the Cadillac insurance in 
this Nation.
  I am not aware of complaints of these companies on their insurance. 
The insurance these people have is far better than the plan we have in 
the Senate. But they are self-funded, and they are self-administered. 
Where they make their big savings is in self-administration.
  Now we are talking about having a designated decisionmaker. That 
means they are going to shift the administration to somebody else, 
which might still be done at 5 percent, but there is this new liability 
factor that goes with it. The guy that is over here, who is the 
designated decisionmaker, is going to have to charge them for his 
potential liability in the decisions that he makes incorrectly. He will 
not do that for 5 percent. He will need a lot more because what he is 
selling is liability insurance. So it is going to drive up the costs.
  I have asked some of these companies what those costs would be. They 
have said that, quite frankly, what they will have to do is get group 
plans for their employees that have less benefits, to fit in the same 
cost level that they have right now, because this little bit of a 
liability factor drives up the price astronomically. So in this 
particular provision that is before us, we are not taking care of the 
self-insured and the self-administered.
  I do have a proposal that I may offer after this one is finished, one 
that will provide some mechanism for them to continue to do that, and 
for those employees who they have, who are more concerned about their 
ability to sue than they are about the current benefits that they have, 
would have a choice. In exchange for that choice, this company would 
not have to hire a designated liability holder because that is what a 
designated decisionmaker would be.
  For most of the firms that have the Cadillacs of the industry, most 
of them will have to change to a designated decisionmaker. That 
additional cost will be considerably more than the 5 percent they are 
currently paying to handle administration, that 5 percent that they do 
partly because they have employee committees that get involved in the 
decisions. And those employee committees are not going to want to be 
sued, so they are going to need some relief. I am here in the 
uncomfortable position of speaking up for the companies that are in 
your States, not mine, to protect the kind of health insurance they 
have at the present time and not drive up the cost, forcing them to go 
to a lower benefit plan with a designated decisionmaker.
  This is not the solution. I hope you will pay attention to the 
solution when that amendment comes forward.
  Mr. DeWINE. Will the Senator yield for a moment?
  Mr. ENZI. I will yield on the time of the Senator from Ohio. I was 
just given pretty limited time.
  The PRESIDING OFFICER (Mrs. Lincoln). Who yields time? The Senator 
from Wyoming still has the floor.

[[Page 12328]]


  Mr. ENZI. I yield the floor and reserve the remainder of my time.
  The PRESIDING OFFICER. Who yields time? The Senator from Maine has 
approximately 7 minutes remaining.
  Ms. SNOWE. Madam President, we are awaiting modifications to the 
underlying amendment. Unless there are any other speakers on the floor, 
I suggest the absence of a quorum.
  The PRESIDING OFFICER. On whose time?
  Ms. SNOWE. I ask unanimous consent that the time not be taken from 
either side at this point.
  The PRESIDING OFFICER. Is there objection?
  Mr. REID. I object. We have to move this thing along.
  The PRESIDING OFFICER. Objection is heard.
  Ms. SNOWE. I yield the floor.
  The PRESIDING OFFICER. The Chair notes, if no one yields time, time 
is charged equally to all sides of the debate.
  The PRESIDING OFFICER (Mr. Dayton). The Senator from New York is 
recognized.
  (The remarks of Mrs. Clinton pertaining to the introduction of S. 
Res. 117 are located in today's Record under ``Submission of Concurrent 
and Senate Resolutions.'')
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. 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.
  Mr. REID. Mr. President, I ask that the time be charged equally 
between the parties since we still have time left under the agreement 
which is before the Senate.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, I suggest the absence of a quorum and ask 
the time be charged equally.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. GREGG. 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. GREGG. Mr. President, for the edification of our colleagues, the 
projected order of events is that Senator Gramm and Senator McCain are 
going to offer an amendment which I believe is agreed to and will 
require no vote. We will lay aside the Snowe amendment, and then 
Senator Enzi is going to offer an amendment. We will debate the Enzi 
amendment for whatever time he requires. I am not sure it will be that 
long. Then Senator Specter will offer an amendment after laying aside 
the pending amendments. We will debate that and then probably go to a 
vote on the Specter, Snowe, and Enzi amendments later this evening--
hopefully early evening.
  Mr. REID. Mr. President, I would like to speak to the majority 
leader, but this sounds fine. It is my understanding--I have spoken 
with the principals; I have spoken with Senator Kennedy and Senator 
Snowe, and that matter appears to have been worked out so we can have a 
satisfactory resolution of that tonight as soon as Senator Frist gets 
back.
  Senator Frist had to leave the Hill for a minor matter. He has some 
dental work that has to be done tonight. We understand that certainly. 
It is a valid reason for leaving.
  What the Senator from New Hampshire has suggested is appropriate. We 
will go to another McCain amendment and then the Enzi amendment and 
then the Specter amendment.
  Mr. GREGG. I think it is a Gramm amendment actually.
  Mr. REID. There is no unanimous consent request at this time, but I 
think what the Senator from New Hampshire has outlined is appropriate. 
I will check with the majority leader. If he has any problems, I will 
report back accordingly.
  Mr. GREGG. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The 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.
  Mr. REID. I ask that the Senator from Alaska be recognized and the 
time used not be charged against the time before the Senate.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                         explanation of absence

  Mr. MURKOWSKI. Mr. President, I ask unanimous consent, to be excused 
from the voting in the Senate because there is a wedding in the family 
that requires me to travel to Juneau, AK. I will try to be responsive 
to the leadership in whatever the calendar turns out to be. But I 
wanted to put the Record on notice of my absence and the reason for my 
absence.
  I suggest the absence of a quorum.
  Mr. REID. As under the previous order, I ask unanimous consent that 
the time be equally charged.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. GREGG. 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. GREGG. Mr. President, I ask unanimous consent the Senator from 
Wyoming be recognized to offer an amendment and that we debate that for 
up to 30 minutes with the time equally divided and no second-degree; 
that thereafter, we go to an amendment from Senator Gramm, which I 
understand is agreed to, and that debate will be up to 10 minutes; then 
we go to an amendment from Senator Specter.
  Mr. REID. Reserving the right to object, we have been told the Gramm 
amendment is substantially agreed to but one or two other people have 
to look at it first. I am sure that will work out fine.
  Mr. GREGG. I didn't say it was agreed to; I just said they had 10 
minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is temporarily set aside, and the Senator from Wyoming 
is recognized.


                           amendment no. 840

  Mr. ENZI. Mr. President, I call up amendment No. 840.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Wyoming [Mr. Enzi] proposes an amendment 
     numbered 840.

  Mr. ENZI. 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 provide immunity to certain self-insured group health 
              plans that provide health insurance options)

       On page 172, between lines 15 and 16, insert the following:

     SEC. 304. IMMUNITY FROM LIABILITY FOR PROVISION OF INSURANCE 
                   OPTIONS.

       (a) In general.--Section 502 of the Employee Retirement 
     Income Security Act of 1974 (29 U.S.C. 1132), as amended by 
     section 302, is further amended by adding at the end the 
     following:
       ``(p) Immunity from Liability for Provision of Insurance 
     Options.--
       ``(1) In general.--No liability shall arise under 
     subsection (n) with respect to a participant or beneficiary 
     against a group health plan described in paragraph (4) if 
     such plan offers the participant or beneficiary the coverage 
     option described in paragraph (2).
       ``(2) Coverage option.--The coverage option described in 
     this paragraph is one under which the group health plan, at 
     the time of enrollment or as provided for in paragraph (3), 
     provides the participant or beneficiary with the option to--
       ``(A) enroll for coverage under a fully insured health 
     plan; or
       ``(B) receive an individual benefit payment, in an amount 
     equal to the amount that

[[Page 12329]]

     would be contributed on behalf of the participant or 
     beneficiary by the plan sponsor for enrollment in the group 
     health plan (as determined by the plan actuary, including 
     factors relating to participant or beneficiary's age and 
     health status), for use by the participant or beneficiary in 
     obtaining health insurance coverage in the individual market.
       ``(3) Time of offering of option.--The coverage option 
     described in paragraph (2) shall be offered to a participant 
     or beneficiary--
       ``(A) during the first period in which the individual is 
     eligible to enroll under the group health plan; or
       ``(B) during any special enrollment period provided by the 
     group health plan after the date of enactment of the 
     Patients' Bill of Rights Plus Act for purposes of offering 
     such coverage option.
       ``(4) Group health plan described.--A group health plan 
     described in this paragraph is a group health plan that is 
     self-insured and self-administered prior to the general 
     effective date described in section 401(a)(1) of the 
     Bipartisan Patient Protection Act.''.
       (b) Amendments to Internal Revenue Code.--
       (1) Exclusion from income.--Section 106 of the Internal 
     Revenue Code of 1986 (relating to contributions by employer 
     to accident and health plans) is amended by adding at the end 
     the following:
       ``(d) Treatment of Certain Coverage Option Under Self-
     Insured Plans.--No amount shall be included in the gross 
     income of an individual by reason of--
       ``(1) the individual's right to elect a coverage option 
     described in section 502(o)(2) of the Employee Retirement 
     Income Security Act of 1974, or
       ``(2) the receipt by the individual of an individual 
     benefit payment described in section 502(o)(2)(A) of such 
     Act.''
       (2) Nondiscrimination rules.--Section 105(h) of such Code 
     (relating to self-insured medical expense reimbursement 
     plans) is amended by adding at the end the following:
       ``(11) Treatment of certain coverage options.--If a self-
     insured medical reimbursement plan offers the coverage option 
     described in section 502(o)(2) of the Employee Retirement 
     Income Security Act of 1974, employees who elect such option 
     shall be treated as eligible to benefit under the plan and 
     the plan shall be treated as benefiting such employees.''

  Mr. ENZI. Mr. President, we have spent more than a week debating this 
version of a Patients' Bill of Rights which would affect the health 
care coverage of more than 160 million working families who are 
currently provided insurance by employers on a voluntary basis. We have 
specifically debated the matter of protecting employers from the new 
liability in the bill. To that end, Senators Gramm and Hutchison 
offered an amendment that mirrored the employer protection provision of 
Texas law by completely carving it out. That amendment was 
unfortunately defeated. So we are still in the same predicament. We 
have employers that are providing health care coverage that may think 
twice about doing so if this bill passes as it currently reads.
  Now everyone, including the sponsors of the bill, acknowledges that 
this bill's stab at an employer protection from frivolous lawsuits 
needs to be fixed. The Senators are now talking about how we protect 
the good actors. Those are employers that are doing right by their 
employees, offering health coverage but not playing a role in denying 
medical care to which their employees are entitled under the insurance 
contract.
  My hope is that in the course of these discussions everyone will 
settle on a comprehensive liability fix that includes the designated 
decisionmaker model presented in the Frist-Breaux-Jeffords bill. As 
many of my colleagues have said, that certainly seems to do the job. I 
agree it certainly seems to. In fact, I agree that the designated 
decisionmaker mechanism must be part of an amendment to successfully 
resolve the problems in the underlying bill.
  However, while the designated decisionmaker model does present itself 
as the most reliable proposal for protecting most employers, there 
remains a small segment of the market that will continue to go 
unprotected. Ironically, this handful of employer health plans may 
represent the best of the best. These are the plans that we all should 
envy. They are plans better than we have in the Senate. They are 
referred to as the self-insured, self-administered employer plans. They 
comprise roughly 5 percent of the entire ERISA market.
  Five percent is not a small number because that is still 6 million 
people, but the problem under the Kennedy-McCain direct participation 
model and even a designated decisionmaker model as we have been 
debating in the last few minutes is that these employers will have to 
dramatically alter their health plan because they do the plan 
administration in-house. That means they are participating in 
everything, and it means they cannot just designate their third party 
administration or insurance company because they don't currently 
contract with such entities for the purpose of processing claims. That 
is the difference between the self-administered and the fully insured 
employer plan.
  We can reasonably expect the fully insured employer plan to be able 
to designate the final decision on a claim for benefit because that is 
generally how they function now, having the insurance company 
administer the plan, with the employer participation ranging from full 
plan design to advocating for a sick employee. But that is not the way 
the self-administered plan operates. So none of the proposals protects 
them.
  My fear is that none of the proposals even preserves that kind of a 
plan. Let me explain why that is a problem. These companies that self-
administer are few and far between, probably a dozen in the entire 
United States. But they are the big companies, the companies that 
operate probably in everybody's State but mine. Usually I am the 
advocate for small businesses because all of my businesses are small. 
There is not a single company headquartered in Wyoming that would be 
considered big business by the Small Business Administration. This 
issue has come to my attention from companies that participate all over 
the United States, and they have brought me the stories of how it will 
affect their plan, what the costs will be. It does require a fair bit 
of capital to administer a health plan and also requires that the 
employer wants to be actively involved in the caliber and range of 
benefits their employees receive. They receive more benefits than 
almost anyone else. And they want to design a wide, often unique range 
of benefits to suit the specific needs of their employees. Because the 
employers have the in-house resources to do so, they are actually able 
to be more cost-effective in what they provide than if they provided a 
fully insured health plan. They would rather have the health benefits 
than the administration benefit. It is not that they can just provide 
the same benefits cheaper and more efficiently; they actually provide a 
richer benefit package for less.
  The benefits some of these employers provide include extensive mental 
health counseling, on-site wellness clinics, routine screenings, they 
include cancer, osteoporosis, and domestic violence counseling, and the 
list goes on. These employers often use employee review boards to 
evaluate disputed claims for benefits, which is also a practice used by 
a number of employee union operated health plans. These are clearly 
benefits and administrative practices designed to help employees get 
the highest quality health care available. In fact, these employer 
plans are often referred to as the Cadillac of plans. As I said before, 
isn't it ironic that these are the health plans hardest hit by this 
bill? That doesn't make any sense to me. And it clearly doesn't make 
any sense to me to leave these employers unprotected as we identify a 
way to protect employers.
  For that reason, the amendment I offer today is a solution that I 
think is reasonable and will force us to ask ourselves a few tough 
questions about the purpose of a Patients' Bill of Rights. The 
amendment would require a self-insured, self-administered employer to 
offer their employees one or both of the following options, in addition 
to the self-administered, self-funded plan, and thereby gain a 
``shield'' around that self-administered plan from the new cause of 
action. The logic of this amendment is to provide employees with the 
option of choosing a different health plan, which would also afford 
them access to a cause of action. The employee chooses if he or she 
wants that to be a component of their health benefit.

[[Page 12330]]

  Under the amendment, self-administered, self-insured employers would 
be required to offer at least one of the following options. The first 
would be a fully insured product, under which an employee could 
exercise the cause of action in this bill against the insurance company 
administering the health plan; or, the employer would provide the 
option of receiving, in the form of an ``individual health benefit,'' 
the amount of their employer's annual premium contribution under the 
self- administered employer plan. This would have to be used to buy 
health care, which is done in the State regulated individual market. 
They have the right to sue.
  If an employer offers one or both of these choices to employees, then 
the employer would not be subject to the new cause of action under the 
Patients' Bill of Rights. Any new civil monetary penalties would apply 
to these employers for violations of the act, and the external appeals 
determination would be binding on the employer, but enrollees would not 
be able to pursue damage awards against the employer under the new 
cause of action. As under the Frist-Breaux-Jeffords bill, this 
provision would not preempt any medical malpractice action currently 
available in state court.
  It would not do that. This is very clear. An employee makes the 
choice to either keep the caliber of benefits under the self-
administered plan, or to choose a plan specifically for the right to 
sue. Those employees that choose the fully insured product will be able 
to hold their plan accountable under the new cause of action. And, 
those employees that choose to purchase their own plan through the 
``individual health benefit'' are similarly able to hold their plan 
accountable under state law.
  The argument has always been that ERISA is unfair because it 
``traps'' employees in the employer sponsored plan, affording that 
option alone, where damage lawsuits aren't available. This proposal 
solves that dilemma without jeopardizing access to top-notch employer 
sponsored health care for those employees. Have any of you been hearing 
from the major companies that provide the self-insured, self-
administered employer plan? No, you have not. They have not been asking 
for that right to sue. They like the range of benefits they have. They 
like the personal way it is handled.
  The arguments you will hear against the amendment, I believe, 
actually make the case for it. It is very simple. It will be argued 
that employees will never be able to get the rich benefit packages that 
their employer's self-administered plan currently provides if they opt 
into the individual market by taking the ``individual benefit,'' and, 
while it may be better than the individual market under the fully 
insured option, surely it won't compare to the self-administered 
option.
  That is absolutely right. If they spend the same amount of money and 
add a liability part to it, you do not get as much insurance. I am 
trying to preserve their insurance, not the right to sue, by giving 
them the flexibility. Any employer that ever had a bad actor incident 
in their company would have all of their people go out into the 
individual market under this plan.
  This bill would eliminate the best employer plans out there because 
we feel compelled to sue them instead of making the decision to 
eliminate self-administered plans by a lawsuit from Washington. Why 
don't we let the employees make the choice for themselves? Every time a 
window of choice comes open they can opt into this other plan if they 
think it is a good way to go.
  But I will tell you why the businesses cannot do what is being 
mandated under this bill. If they have to have a designated 
decisionmaker, they are hiring somebody to take the liability risk. 
They are not just hiring somebody to administer the plan. That is only 
a 5-percent cost. This will drive their prices up dramatically if we do 
not give this option, and people who are receiving the best care in the 
United States at the present time will have to settle for something 
else.
  I believe we have made a concerted effort through the amendment. It 
is one we talked about a lot last year in the Patients' Bill of Rights 
conference committees. We made an attempt to amend the process, to 
remedy the problems of the entire liability section under the 
underlying bill, including protecting employers and including 
protecting small employers.
  It is not worry about the small ones; this is worry about the big 
ones who are providing the best of the best. I do not believe we will 
be doing a good job unless we include this amendment.
  I yield the floor and reserve the remainder of my time.
  The PRESIDING OFFICER. If no one yields time, time will be charged 
against both sides.
  The Senator from North Carolina.
  Mr. EDWARDS. Mr. President, I understand what my friend from Wyoming 
is trying to do. We appreciate his work on this issue. This is a 
subject matter that was covered previously by the Snowe-Nelson-DeWine-
Lincoln amendment on which we reached consensus on the floor a few 
hours ago. That amendment was specifically designed to strike the 
proper balance between protecting employers on the one hand and making 
sure we also protected the rights of employees. So this is an issue 
that has already been covered, about which there has already been great 
discussion, work, and compromise across party lines, Democrats and 
Republicans, and about which we are soon to have a vote. It is an issue 
about which we already have consensus. We have widespread support for 
that consensus.
  The reason for that widespread support is we have protected employers 
while at the same time kept alive the rights of employees and patients. 
We have struck in a very creative way a solution to that problem.
  This specific amendment has at least two major problems. No. 1, what 
it does is take away the rights of employees, patients, and families, 
to hold anybody accountable if one of two things occurs. The problem 
with that concept is that it is in violation of the President's 
principle, which we have talked about at great length on the floor of 
the Senate, which is that employers be protected but that somebody be 
held accountable if the employee, the patient, is injured as a result 
of a medically reviewable decision. The President specifically said 
that in his principle. That principle is completely complied with in 
the Snowe-DeWine-Nelson amendment because in that amendment we create a 
situation where we protect the employees right to recover if, in fact, 
they are injured by a medically reviewable decision, while at the same 
time providing protection for employers. So that is the reason that 
consensus was reached. That is the reason both Democrats and 
Republicans support it across party lines, and that consensus is 
consistent with the President's principle.
  This is an issue about which we have already talked and an issue 
about which we have reached some agreement.
  In addition to that, there are at least two other problems with this 
specific amendment.
  No. 1, it provides the employees with a false option. It says for 
self-insured, self-administered plans, if either of two things occurs, 
the employee, the family, and the patient lose their right to hold 
anybody accountable. One of those options is that they go out, get a 
voucher, and buy their own health insurance. But there is absolutely no 
requirement that the voucher be adequate to buy quality health 
insurance plans.
  Second, they may provide a comparable plan. But there is nothing to 
require that the benefits of that plan be equal to the benefits the 
employee would otherwise have.
  The bottom line is there are no protections that require that under 
these options the employee or the patient end up with the same quality 
health care plan. In many regards, it is a false option that is being 
provided to them.
  Another fundamental problem is that there is a provision in the 
amendment--this is the B-1 exclusion from income--which says section 
106 of the Internal Revenue Code of 1986 is amended by adding at the 
end the following. Of course, an amendment to

[[Page 12331]]

the Internal Revenue Code creates a blue slip problem. This issue has 
to originate in the House, which means, if adopted, that this entire 
legislation could be sent back to the Senate from the House.
  We have a number of problems. I understand what my colleague is 
trying to do. I think his purpose is very well intentioned. But I say 
to my colleagues, No. 1, this is an issue about which we have already 
reached consensus in the Snowe-DeWine-Nelson amendment. We have reached 
that consensus for an important reason. We have complied with the 
President's principle. We have complied with the fundamental principle, 
with which many of us on both sides of the aisle agree, which is we 
need to protect employers and provide the maximum protection for 
employers but, in that process, not leave the patients behind. That is 
the reason we have an amendment to be able to reach consensus.
  No. 2, the choices that are being provided in this particular 
amendment we believe are false choices, and they would not require that 
the employee or the patient receive the same quality plan they would 
get with the employer.
  No. 3, it creates a blue slip problem, which means the entire Patient 
Protection Act could be sent back to the Senate since it involves an 
amendment to the IRS Code.
  There are a number of fundamental problems. I appreciate my 
colleague's work on this issue. I think this does not move us in the 
right direction. We have an amendment that already addresses this 
issue. It is an amendment that provides protection for employers while 
at the same time keeping alive the rights of patients and employees.
  I urge my colleagues to vote against this amendment.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Wyoming.
  Mr. ENZI. Mr. President, I want to quickly refresh the memory of the 
Senator from North Carolina.
  I would not have entered into the time agreement had I known he 
wasn't listening when I debated the Snowe-DeWine arrangement where I 
clearly pointed out that it is not considered thereunder. I think this 
is a sticking point that the President would see as being very 
difficult.
  We are talking about companies such as Hewlett-Packard, Firestone, 
Motorola, Caterpillar, Pitney Bowes--big companies that are providing 
this. I have checked on the costs. Their costs will go up from $40 
million to $70 million if the Snowe-DeWine amendment is the only 
defense they have.
  I yield the remaining time to the Senator from Texas.
  Mr. GRAMM. Mr. President, first of all, this problem has not been 
fixed. The amendment we will adopt is window dressing and has no impact 
on this problem. What the Senator has proposed is a solution to an 
assault on the best health care plans in America. The biggest companies 
with self-insured plans that employees love will be destroyed by this 
bill.
  All the Senator is saying is that if Wal-Mart employees love their 
plan, and they want to keep it and agree to not require Wal-Mart to be 
liable to be sued, and if Wal-Mart gives them the option of going into 
a fully-insured plan with liability so that they do not have to be in 
the Wal-Mart self-insured plan, they can choose to remain in it, and 
Wal-Mart will not be forced by liability costs to cancel their plan. 
This is an important issue that addresses a very real shortcoming in 
this bill. The incredible paradox is that this bill will do the most 
damage to the best health care plans in America--plans that are self-
insured, that are large, and that provide terrific coverage. Under this 
bill, there is no question about the fact that the employer will be 
held liable. That liability fear will end up forcing them out of these 
plans.
  The Senator has offered us a third way. The third way is if every 
employee is offered an alternative where there is liability available, 
then those who choose to stay in their health plan and say, I love my 
Wal-Mart plan and I don't want to sue Wal-Mart, would have a right to 
do it. That is what the Senator's amendment does. All of the rest of 
these arguments have nothing to do with the amendment.
  Do you want to destroy the best health care systems in America? If 
you do, you want to vote against the Enzi amendment. If you do not, 
vote for the Enzi amendment which guarantees that a Wal-Mart employee 
will have an option of another health care plan where everybody is 
liable. But if they choose a better plan with fewer lawsuits, aren't 
they better off by definition by choosing?
  The Senator from North Carolina says if you do not get lawsuits, you 
ought not to be happy. Maybe not everybody agrees with the Senator from 
North Carolina.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. GREGG. Mr. President, what is the time situation?
  The PRESIDING OFFICER. No time is remaining on Senator Enzi's side, 
the sponsor of the amendment, and 8 minutes 44 seconds remain in 
opposition to the amendment.
  Mr. GREGG. I understand the Senator from Texas has an amendment, 
which has been agreed to by both sides, and she needs about 3 minutes 
to present it. Is there any objection to setting aside the Enzi 
amendment and allowing the Senator from Texas to go forward?
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The Senator from Texas is recognized for 3 minutes.


                           Amendment No. 839

  Mrs. HUTCHISON. Mr. President, I send an amendment to the desk.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Texas [Mrs. Hutchison], for herself and 
     Mrs. Clinton, proposes an amendment numbered 839.

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

   (Purpose: To include information relating to disenrollment in the 
                   information provided to patients)

       On page 101, between lines 14 and 15, insert the following:
       (3) Disenrollment.--Information relating to the 
     disenrollment of a participant, beneficiary, or enrollee.

  Mrs. HUTCHISON. Mr. President, this amendment is a very simple one. 
There are several things that must be reported to an enrollee in a plan 
before the company can implement those things. They are major changes 
to that person's plan because you don't want a person to go into the 
doctor's office or into the pharmacy and be told they have been dropped 
from their insurance or that their spouse has been dropped from their 
insurance or their child.
  We are requiring under the basic bill 30-day notice of any material 
change. My amendment just specifies disenrollment as one of those items 
that must be given 30 days' notice.
  I have had an experience in which a person's husband was dropped from 
a plan, was not told about it, and found out when the person went to 
pick up a prescription drug for the husband, and had no way to fight it 
in the pharmacy. Later in the week, when the person called to find out 
why the husband was dropped from her plan, they found it was a mistake. 
Of course it was a mistake.
  So that is why you want the 30 days' notice, so that a person would 
not have to find out that they are not getting coverage they thought 
they had through a clerical error.
  That is all this amendment does. I urge its adoption.
  The PRESIDING OFFICER. Who yields time?
  Mr. GREGG. Mr. President, I ask unanimous consent that the amendment 
be agreed to.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The amendment (No. 839) was agreed to.
  Mrs. HUTCHISON. Thank you, Mr. President.
  The PRESIDING OFFICER. The Senator from North Carolina.

[[Page 12332]]




                           Amendment No. 840

  Mr. EDWARDS. Mr. President, let me respond briefly to a couple of the 
comments that were made about the Enzi amendment.
  First of all, no argument was made that I heard about the blue-slip 
problem, so I presume there is agreement that if this amendment is 
included, it would require the entire Patient Protection Act to be sent 
back.
  Second, I say to my friend from Wyoming, I actually did listen to his 
comments in the debate. And not only that, I sat in hours of meetings 
with Senators Snowe and DeWine, and others, working out the language of 
the Snowe-DeWine-Nelson amendment.
  The Senator is factually incorrect about one thing; that is, that 
what Snowe-DeWine-Nelson does is, No. 1, provide complete, 100-percent 
protection for 94 percent of the employers in the country. Almost every 
small employer is totally protected. But we left rights in place for 
patients. The employers are completely protected.
  For the self-insured, self-administered employers, we have also 
provided specific protections in this amendment, which we have been 
working on for several days now. No. 1, they are completely carved out. 
Self-insured, self-administered plans are totally carved out of the 
Federal cause of action in the Bipartisan Patient Protection Act. They 
cannot be held responsible for contractual, administrative 
responsibilities, period. They are out.
  Second, we have provided that if they choose to do so, they can pick 
a third party designated decisionmaker and send all liability to that 
decisionmaker by which they are completely protected.
  And finally, we have provided that if they have what many of these 
large employers have, which is a system where they simply make a 
decision, yes or no, on paying the claim after the treatment has 
already been provided--that the patient goes and gets the treatment; 
then they decide whether they are going to pay for it or not--they 
cannot be held responsible.
  So I say to my friend and colleagues, what we have done is provide 
complete protection for 94 percent of the employers in this country in 
the Snowe amendment, while at the same time not removing the rights and 
protections of patients.
  For the self-insured, self-administered employers, we provided three 
protections: No. 1, they are completely out on the Federal cause of 
action, which is contracts, administrative issues.
  No. 2, we have specifically said they can use a designated third 
party decisionmaker and remove all liability by doing that if they so 
choose.
  No. 3, we have said if they operate the plan by saying: we decide 
after the treatment just simply whether we are going to pay for it or 
we are not going to pay for it, they are completely protected.
  So after lots of work, and many hours, I say to my colleagues, we 
believe we struck the right balance in both cases--for providing 
maximum protection for the employers and keeping in place the rights of 
patients, employees, and families.
  So in addition to the blue-slip problem, which in and of itself would 
be enormous, we believe that we have dealt with this issue. We have 
dealt with it in a proper and adequate fashion. And we have addressed 
the concerns of the self-insured, self-administered plans, and the 
issues raised by small employers around the country who will be 
completely protected by this amendment.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time on this amendment?
  The Senator from Wyoming.
  Mr. ENZI. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. It is my understanding that the managers of the bill, 
including Senator Frist, would ask that this vote be put over until a 
later time. So I ask unanimous consent that be the case.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The Chair advises the Senator from North Carolina he has 4 minutes 
remaining in opposition to this amendment.
  The Senator from Texas.
  Mr. GRAMM. Mr. President, under the previous unanimous consent 
agreement, I believe I had 10 minutes to offer an amendment with 
Senator McCain, but he is not here. I am waiting for him to come back. 
So I would just like to suggest that perhaps we could modify the 
unanimous consent agreement so that when he does come back, whoever is 
speaking at that point, whenever they are finished, we would be 
recognized to do the amendment. But there is no reason we cannot 
conduct other business while we are sitting here.
  Mr. KENNEDY. Why not talk now?
  Mr. GRAMM. I am offering this with Senator McCain. I think he wants 
to be here as well. It is my understanding he is on his way.
  Let me just suggest we let Senator Nickles speak, if he would like to 
speak. We could all learn something from listening to him. And then, 
when he is finished, hopefully Senator McCain will be back, and we will 
do this long-awaited amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Oklahoma is recognized.
  Mr. NICKLES. Mr. President, I just appreciate my friend and colleague 
from Texas. I will be very brief. I understand the Senator from 
Pennsylvania wants to come and speak on his amendment. I would just 
like to make a couple general comments.
  Just for the information of our colleagues, I believe at--6:30 we 
will have three votes. So people should be cognizant of the fact we are 
going to have two or three votes--three votes, I believe--at around 
6:30.
  One, I wish to compliment the Senator from Wyoming, Mr. Enzi, for his 
enrollee choice proposal. I think it is an outstanding proposal. I urge 
my colleagues to be in favor of it.
  I would also like to make a couple comments dealing with the 
designated decision maker. Some people are acting like this is a grand 
compromise, that this is going to save employers: Employers are going 
to be exempt now because we are going to give this decision to a third 
party.
  When I ran a company, Nickles Machine Corporation, we had a third 
party administrator. They handled all the administrative claims. They 
did a decent job. So I didn't have to do it, our company didn't have to 
do it. We hired them to pay the benefits, to harass the providers, to 
make sure that benefits were paid or weren't paid. They paid the right 
benefits, didn't pay the right benefits. They were hired guns to run 
the plan, to make the decisions, to negotiate with the hospitals, 
negotiate with the doctors--all those kinds of things. That is what 
third party administrators do.
  Now we are talking about saying: They have that responsibility, and 
now they have liability, too. That's what this amendment does. Some 
people said: It is going to hold employers harmless. It will not. I 
will tell you, the net result is third party administrators are going 
to say: What am I liable for? Under the McCain-Kennedy-Edwards 
proposal, they are liable for anything and everything. They are liable 
for unlimited economic damages. They are liable for unlimited 
noneconomic damages, pain and suffering. They are liable for punitive 
damages--up to a cap of $5 million--in Federal courts. They are liable 
for unlimited economic and noneconomic damages in State courts.
  It has never been said that State court limitations for doctors and 
so on would apply to the plans and/or to the States. So now we are 
saying to a third-party administrator, we want you to assume the 
liability but the extent of the liability is not defined. It is 
unlimited. One good lawsuit and they are going to have to write a great 
big check. What are they going to do? They are going to have to charge 
a lot of money. They are going to have to

[[Page 12333]]

charge as much money as they think this will cost, and they are going 
to guess because they don't know.
  It is kind of like playing Russian roulette. They might be lucky and 
not have any suits so whatever they charge will be profit. Conversely, 
if there is one bad suit and they are found liable, they are assuming 
this liability and they could go bankrupt. So they are going to be 
trying to err on the high side.
  The net result, for everybody who thinks this is going to exonerate 
employers and all they have to do is designate somebody else to accept 
their liability, I tell my colleagues, as an employer, that is not 
going to happen. An employer may say: You handle this, third party; you 
assume our liability. And that third party is going to say: OK, but I 
am going to charge you for it, and I am going to charge you more than 
enough to make sure that we don't go bankrupt in the process.
  Maybe they can buy insurance themselves or maybe they can't. My guess 
is we are going to find out. Some people have said: CBO says that the 
liability provision under this bill is .8 percent. I would be willing 
to bet anybody the premiums that are going to come out as a result of 
this liability in third party administrators assuming liability is 
going to be a lot more than .8 percent. My guess is you are going to be 
looking at premium increases of 4 and 5 percent just to cover the 
liability before someone will take this because the liability is not 
defined. It is unlimited, unlimited noneconomic, unlimited economic.
  The contract coverage, well, you may have to cover just about 
anything. We never did tighten up medical necessity so if somebody says 
maybe it should be covered, it should be covered. So you are not even 
confined to the contract. We don't have contracts. This third party 
administrator, which is usually charged with enforcing a contract, does 
not have a defined contract and has unlimited liability. And we tell 
them they have to pay for everything. They are going to end up charging 
the employer more than they think it would cost so they don't go 
bankrupt.
  So we are going to find out how much this costs. My point is, I want 
people to be aware of the fact that just having a designated decision 
maker with no limitations on liability, with no limitations on covering 
what is in the contract can be enormously expensive.
  One other fact that people haven't considered. If you are a 
designated decision maker and you are making these decisions on what to 
cover and not to cover and you are liable if things don't work out, you 
are hardly ever going to say no. You will hardly ever say no because if 
you say no, you might be sued. Therefore, you are going to have more 
defensive medicine than you have ever had. Whereas before they were 
charged with the responsibility of enforcing a defined contract--this 
is covered; this is not covered; being more of an administrator of a 
contract and a plan--they are now going to be faced with liability. And 
they can't afford the ultimate price of being hit with a heavy lawsuit. 
So when the claim comes forward, if it is even close, they are going to 
pay it. Pay it. Pay it. They don't want to take a risk or a gamble that 
they can be sued for unlimited damages. So you will have enormous 
increases through increase of what I would call defensive protections 
so people don't have liability costs.
  And then you will have people guessing what the liability will be, 
and that will increase the cost to make sure that they have enough that 
they don't go bankrupt.
  The net result is that this designated decision maker that some 
people think is going to exonerate employers will show that this is a 
very expensive provision, and the cost of this bill, the cost of 
medicine, the cost of health care and, therefore, ultimately the number 
of uninsured will rise dramatically as a result of this bill and 
because of this provision.
  I urge my colleagues to vote no on the underlying amendment that 
deals with this provision.
  I want to mention--I hope it gets fixed--I think it is outrageous we 
could exempt union plans from this provision. I hope it is fixed.
  I yield the floor.


                           Amendment No. 843

  The PRESIDING OFFICER. Under a previous order, the Senator from Texas 
is recognized, with the agreement that his 10 minutes will be equally 
divided, 5 minutes on either side.
  Mr. GRAMM. Mr. President, I send an amendment to the desk and ask for 
its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Texas [Mr. Gramm], for himself and Mr. 
     McCain, proposes an amendment numbered 843.
  The amendment is as follows:

     (Purpose: To ensure the sanctity of the health plan contract)

       Insert at the appropriate place:
       Notwithstanding any other provision of this Act, any 
     exclusion of an exact medical procedure, any exact time limit 
     on the duration or frequency of coverage, and any exact 
     dollar limit on the amount of coverage that is specifically 
     enumerated and defined (in the plain language of the plan or 
     coverage claimants) under the plan or coverage offered by a 
     group health plan or health insurance issuer offering health 
     insurance coverage and that is disclosed under section 
     121(b)(1) shall be considered to govern the scope of the 
     benefits that may be required, provided that the terms and 
     conditions of the plan or coverage relating to such an 
     exclusion or limit are in compliance with the requirements of 
     law.

  The PRESIDING OFFICER. The Senator from Texas is recognized for 5 
minutes.
  Mr. REID. If the Senator from Texas will withhold, and no time will 
be charged against him, I want to propound a unanimous consent request.
  Mr. President, I ask unanimous consent that Senator Specter be 
recognized to offer an amendment regarding Federal courts with an hour 
for debate equally divided in the usual form; further, that Senator 
Snowe be permitted to modify her amendment; further, that the Senate 
vote in relation to the Snowe amendment at 6:50 p.m. this evening, with 
10 minutes for debate prior to the vote equally divided in the usual 
form with no second-degree amendments in order prior to the vote; 
further, that following disposition of the Snowe amendment, there be 2 
minutes for debate prior to a vote in relation to the Enzi amendment 
with no second-degree amendments in order prior to the vote; further, 
following disposition of the Enzi amendment, there be 2 minutes for 
debate prior to a vote in relation to the Specter amendment with no 
second-degree amendments in order prior to the vote.
  The PRESIDING OFFICER. Is there objection?
  Mr. GREGG. Reserving the right to object, as I understand it, as to 
the 10 minutes, because the amendment was itself divided into four 
parts, four holders of time will be given 2\1/2\ minute segments.
  Mr. REID. When I read that, I knew we should have a clarification. I 
appreciate the Senator clarifying that.
  Mr. SPECTER. Mr. President, reserving the right to object, I entered 
the Chamber and I heard my name mentioned. I would ask that the 
unanimous consent be repeated.
  Mr. REID. That the Senator from Pennsylvania would have one hour 
evenly divided in the usual form.
  Mr. SPECTER. Mr. President, I do object to that. I was asked how long 
I thought it would take, and I said 2 hours. Then I was asked if I 
thought I could do it in an hour, and I said I would do my best. This 
is a complicated amendment. This is a complicated bill. I am not 
prepared to enter into a unanimous consent request which limits my 
presentation to 20 minutes.
  Mr. REID. Will the Senator from Pennsylvania agree to have 45 minutes 
for him and 15 for us? We have Members who want to know when they are 
going to vote.
  Mr. SPECTER. That is not satisfactory. I am being importuned over 
here about what a good deal it is. This amendment, Mr. President, 
involves a question of whether there will be both Federal jurisdiction 
and State jurisdiction. It is a matter I have discussed with the 
managers of the bill again this morning and with Senator Edwards. I 
believe there is going to have to be some discussion. There are going 
to have to be some issues raised and

[[Page 12334]]

some questions answered. It simply does not lend itself to that kind of 
time constraint.
  Mr. REID. If I could say to the Senator from Pennsylvania, how about 
if he has an hour and we have 20 minutes?
  Mr. SPECTER. Mr. President, I am prepared to start the debate and to 
make it as expeditious as possible. But I am not prepared to negotiate 
time to an hour and 20 minutes total. I object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Texas is recognized for 5 minutes on his amendment.
  Mr. GRAMM. Mr. President, I have sent an amendment to the desk. The 
amendment has been read.
  Let me explain to my colleagues what the amendment does, why it is 
important, and then I will thank our distinguished colleague from 
Arizona.
  Under the bill that is now before us, under the language of the 
current bill on page 35, the bill says that contracts are binding. But 
then it makes those contracts binding unless they are subject to a 
judgment of medical facts and they are subject to medical review.
  This creates an extraordinary ambiguity and, for all practical 
purposes, makes the contract not binding. That creates a situation 
where every health insurance company in America will realize that these 
outside medical reviewers, based on medical necessity, could invalidate 
every health insurance contract in America and, as a result, put 
everybody under the high option plan whether they pay for it or not. 
The net result would be an explosion in health care costs. In fact, if 
this provision is not fixed, it is at least as explosive in potential 
cost as the liability section, which we have talked about 10 times as 
much.
  The amendment I have offered makes the contract binding, and it 
provides language that says the contract is binding as long as the 
contract does not violate the language of the bill. Let me explain very 
briefly what that means. If, as we do under the bill, we say that if 
you provide emergency room coverage, you have to have a prudent 
layperson standard for that emergency room coverage, so you have to do 
that if you provide the coverage no matter what this amendment says; or 
if we say under the bill that if the plan has pediatric care for 
children, that can be the primary physician, then it would have to be 
the law that would govern.
  Within that very limited proviso, this amendment makes the contract 
binding. I think it is a dramatic improvement in the bill.
  I thank our distinguished colleague and my old and dear friend from 
Arizona for helping me work this provision out. It is something I have 
worried about. I do think it improves the bill, and it certainly would 
not have happened without the reasonableness of our dear colleague from 
Arizona. I thank him for that.
  I yield the floor.
  Mr. McCAIN. Mr. President, I thank the Senator from Texas for causing 
this amendment to happen. It really is to ensure the sanctity of the 
health care contract. Concerns were raised that under the pending 
McCain-Kennedy legislation, independent medical reviewers can order a 
health plan to provide items and services that are specifically 
excluded by the plan.
  That was not the intention of the law. The Senator from Texas pointed 
out that it could have been interpreted in another way, and clearly 
this amendment I think tightens that language to the point where it is 
clarified that the bill doesn't do this and its specific limitations 
and exclusions on coverage must be honored by the external reviewers.
  There are 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 and that do not 
require medical judgment to understand.
  So I think this language is important in its clarification. I 
understand Senator Gramm's concerns. I know this will not bring him to 
the point where he is willing to vote for the bill, but I do hope it 
satisfies many of his concerns, and we will continue to work with him 
to try to satisfy additional concerns. I appreciate his cooperation and 
that of his staff. I believe my friend from Texas would agree this is 
probably the 35th draft we have of this maybe 9-line amendment, but 
each word is important nowadays as we work our way through this bill. I 
believe the appropriate place is on page 36, line 5.
  By the way, I thank Senator Kennedy and Senator Edwards and their 
staffs for agreeing to this amendment. I share the opinion of the 
Senator from Texas that it is an important amendment.
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
  Mr. KENNEDY. Mr. President, I urge that we accept this amendment. As 
in other areas, there has been a desire to provide clarification to the 
language we had in the bill. One of the issues that has been debated is 
the power and authority of the review medical officer in the review 
process. It was never the intention to include benefits that were not 
outlined in the contract. It was going to be limited to the contract, 
but it was also going to give discretion in terms of medical necessity. 
So this is a clarification of that, and I think it is a useful and 
valuable clarification. I hope the Senate will accept it.
  Mr. GRAMM. Mr. President, I seek only to do good, not to have it 
recorded through a recorded vote. So I ask unanimous consent that the 
amendment be accepted.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The amendment (No. 843) was agreed to.
  Mr. McCAIN. The amendment that I offered today with Senator Gramm 
helps to clarify the intent of how this bill deals with medically 
reviewable decisions.
  Mr. KENNEDY. The Senate should understand that the language in the 
McCain-Edwards-Kennedy bill is based on language from a bipartisan 
compromise between John Dingell and Charlie Norwood. Every member of 
our conference signed off on our approach the last Congress, from Don 
Nickles and Phil Gramm to John Dingell and me.
  Our approach is based on a very important concept. It assures that 
the external reviewer cannot be bound by the HMO's definition of 
medical necessity. This does not mean that the reviewer sign off on 
anything that is explicitly excluded by the health plan. If the plan 
covers 30 days in the hospital the reviewer cannot approve 100 days. 
However, where a coverage decision requires medical judgment to 
determine whether of not what the patient is requesting is the type of 
treatment or services that is explicitly excluded, we intend for that 
determination to be eligible for independent review.
  Mr. McCAIN. The amendment we are drafting here--that merely restates 
what is in the underlying bill--is not intended to change our 
fundamental approach, just to clarify our intent.
  Our overall bill still clearly states that coverage decisions that 
are subject to interpretation or that are based on applying, medical 
facts and judgment should be reviewed. This includes those decisions 
that require the application of plan definitions that require that 
interpretation.
  Mr. KENNEDY. Absolutely--the reviewer should be looking at those 
cases. The amendment is intended to clarify that we never meant to have 
the independent reviewer approving a benefit that is explicitly 
excluded in all cases. However, in the case where there is some dispute 
about whether it is a medically reviewable benefit, we do want the case 
reviewed.
  Mr. McCAIN. Right, just as in the case we have heard about a child 
with a cleft palate. The plan says they do not cover cosmetic surgery, 
but the doctor argues that there is specific health risks for not 
having this surgery. That is something the independent reviewer would 
look at to determine if it is covered in this case.
  Mr. KENNEDY. Under the bill the external review process is first 
designed to determine whether a denial by the plan or issuer is based 
on a particular

[[Page 12335]]

definition, or a specific benefit exclusion or limitation under the 
plan or contract whose meaning is unambiguous and does not turn on 
specific medical facts in an individual patient's case. An appeal will 
be dismissed in cases where the entity concludes that unambiguous plan 
language is the basis of a denial and that no set of medical facts 
either could or would result in coverage under the terms of the plan.
  Mr. REID. Mr. President, we are going to have a vote sometime from 
6:45 to 7:15, according to how much time is taken on the Specter 
amendment. We will have three votes at that time. Members should be 
ready to come and vote at or about 6:40 or 7:15, something like that.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Pennsylvania is recognized to offer an amendment.


                           Amendment No. 844

  Mr. SPECTER. Mr. President, I send an amendment to the desk.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The senior assistant bill clerk read as follows:

       The Senator from Pennsylvania [Mr. Specter] proposes an 
     amendment numbered 844.

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

(Purpose: To require that causes of action under this Act be maintained 
                           in Federal Court)

       On page 153, strike line 9 and all that follows through 
     page 154, line 2, and insert the following:
       ``(10) Statutory damages.--The remedies set forth in this 
     subsection (n) shall be the exclusive remedies for causes of 
     action brought under this subsection. In such actions, the 
     court shall apply the tort laws of the State in determining 
     damages. If such damages are not limited under State law in 
     actions brought under this subsection against a group health 
     plan (and a health insurance issuer offering group health 
     insurance coverage in connection with such a plan), then 
     State law limiting such damages in actions brought against 
     health care entities shall apply until such State enacts 
     legislation imposing such limits against group health plans 
     (and issuers). Nothing in this section shall be construed to 
     require a State to enact legislation imposing limits on 
     damages in actions against group health plans and issuers.
       On page 160, between lines 2 and 3, insert the following:
       ``(D) Actions in federal court.--A cause of action 
     described in subparagraph (A) shall be brought and maintained 
     only in the Federal district court for the district in the 
     State in which the alleged injury or death that is the 
     subject of such action occurred. In any such action, the 
     court shall apply the laws of such State in determining 
     liability and damages. If such State limits the amount of 
     damages that a plaintiff may receive, such limits shall apply 
     in such actions.
       On page 156, strike lines 15 and 16 and insert the 
     following:
     subsection.
       ``(o) Limitation on Class Action Litigation.--
       ``(1) Limitation.--
       ``(A) In general.--Any claim or cause of action that is 
     maintained under this section in connection with a group 
     health plan, or health insurance coverage issued in 
     connection with a group health plan, as a class action, 
     derivative action, or as an action on behalf of any group of 
     2 or more claimants, may be maintained only if the class, the 
     derivative action claimant, or the group of claimants is 
     limited to the participants, beneficiaries, or enrollees with 
     respect to a group health plan established by only 1 plan 
     sponsor or with respect to coverage provided by only 1 
     issuer. No action maintained by such class, such derivative 
     action claimant, or such group of claimants may be joined in 
     the same proceeding with any action maintained by another 
     class, derivative action claimant, or group of claimants or 
     consolidated for any purpose with any other proceeding.
       ``(B) Definitions.--In this paragraph, the terms `group 
     health plan' and `health insurance coverage' have the 
     meanings given such terms in section 733.
       ``(2) Effective date.--Paragraph (1) shall apply to all 
     actions that are pending and have not been finally determined 
     by judgment or settlement prior to the date of enactment of 
     the Bipartisan Patient Protection Act, and all actions that 
     are filed not earlier than that date.''.
       (2) Racketeer Influenced and Corrupt Organizations Act.--
     Section 1964(c) of title 18, United States Code, is amended--
       (A) by inserting ``(1)'' after the subsection designation; 
     and
       (B) by adding at the end the following:
       ``(2)(A)(i) No action may be brought under this subsection, 
     or alleging any violation of section 1962, if the action 
     seeks relief concerning the manner in which any person has 
     marketed, provided information concerning, established, 
     administered, or otherwise operated or provided a group 
     health plan, or health insurance coverage issued in 
     connection with a group health plan. Any such action shall 
     only be brought under the Employee Retirement Income Security 
     Act of 1974.
       ``(ii) In this subparagraph, the terms `group health plan' 
     and `health insurance issuer' have the meanings given such 
     terms in section 733 of the Employee Retirement Income 
     Security Act of 1974.
       ``(B) Subparagraph (A) shall apply to actions that are 
     pending and have not been finally determined by judgment or 
     settlement prior to the date of enactment of the Bipartisan 
     Patient Protection Act, and all actions that are filed not 
     earlier than that date.''.
       (3) Conforming amendment.--Section
  Mr. SPECTER. Mr. President, I declined to enter into a time agreement 
because this is an amendment which deals with the complex subject of 
jurisdiction. I have long been a cosponsor for a Patients' Bill of 
Rights, and I was surprised to learn many years ago of the Federal 
preemption which precluded an injured patient--for example, where a 
family doctor recommended a specialist and the HMO refused to provide 
the specialist to the person and the person was injured, or perhaps 
died, and had no redress in the Federal courts because of the so-called 
preemption under ERISA.
  It has seemed to me for many years that that was one of the problems 
that ought to be addressed. I compliment Senator McCain, Senator 
Kennedy, and Senator Edwards for the work they have done, and also 
Senator Frist, Senator Breaux, and Senator Jeffords for their companion 
bill, and what the managers have done here.
  This amendment addresses what I believe, from my experience as a 
litigator in the civil courts, to be a very fundamental question of 
concern as to what courts these cases are going to be tried in. The 
very brief history of ERISA is that cases which have been brought under 
section 502 of ERISA are governed by what is called the doctrine of 
complete preemption, and that is where the cases involve contract 
interpretation, or so-called quantity of medical care.
  Under ERISA, section 514, a plaintiff's case has been barred where it 
relates to an employee benefit plan, and that has been decided by the 
case law, and has been referred to as quality of care or medical 
malpractice. For many years, under ERISA, which was enacted in the 
1970s, that barred any action at all. But as the courts saw the 
difficulty of this matter, there gradually came to be a loosening of 
the interpretation as noted succinctly in a Fifth Circuit opinion, 
Corporate Health Insurance v. The State Department of Texas, where 
Circuit Judge Higginbotham noted that the court had ``repeatedly 
struggled with the open-ended character of preemption provisions of 
ERISA and also the Federal Employers Health Benefits Act.''
  The court noted that there had been a faithful following of the 
Supreme Court's broad reading of ``relate to'' in its opinions decided 
during the first twenty years after ERISA's enactment. Since then in a 
trilogy of cases, DeBuono v. NYSA-ILA Med. & Clinical Services Fund, 
117 S.Ct. 1747 (1997); California Div. of Labor Standards Enforcement 
v. Dillingham Constr., N.A., Inc., 117 S.Ct. 832 (1997); New York State 
Conference of Blue Cross & Blue Shield Plans v. Travelers Ins., Co., 
115 S.Ct. 1671 (1995), the Court has confronted the reality and had 
limited the application of that preemption so the cases were brought 
for medical malpractice in the State courts.
  The provisions of the McCain-Edwards-Kennedy bill provide that where 
you have an action brought on contract interpretation or ``quantity of 
medical care,'' those cases will go to the Federal court, but where you 
have a claim which is brought for the ``quality of medical care,'' or 
so-called malpractice, those cases will go to the State court.
  I suggest to my colleagues that to have the two courts handle the 
matters in that way will result in procedural

[[Page 12336]]

quagmire because if you have a case such as the following where a child 
is born to a mother who has a plan under an HMO which seeks to limit 
the hospital stay to 24 hours. The patient is then discharged and an 
unfortunate result happens to the child. There will be both claims 
under the so-called quantity interpretation of the contract and quality 
on medical malpractice.
  That is illustrated in the case of Bauman v. U.S. Healthcare, 1 F. 
Supp. 2d 420, a case which was heard in the United States District 
Court for the District of New Jersey in 1998. In that case, and this 
illustrates the kind of an issue I am referring to, the HMO plan had 
policies which encouraged the discharge of a mother and a newborn 
within 24 hours after birth. Mrs. Bauman was discharged after that time 
elapsed, and the next day the Baumans' daughter fell ill.
  The Baumans contacted the HMO and requested a home visit by a nurse. 
The HMO refused to send a nurse, and the daughter died of meningitis 
the same day. The Baumans brought an action against the HMO, the 
doctor, and the hospital, and they went into State court. The HMO 
removed the case to Federal court as they had a right to under ERISA.
  The district court made a determination that counts under the 
complaint relating to the discharge decision were ``quality-of-care'' 
decisions, and the counts would be remanded to the State court. The 
district court said that the failure to provide the nurse was a 
``quantity'' decision and, therefore, was preempted totally.
  On appeal, the United States Court of Appeals for the Third Circuit, 
in a case captioned In re U.S. Healthcare, Inc., 193 F.3d 151, reversed 
the district court holding that the claim was a quality decision.
  The Bauman case illustrates the point about how hard it is to decide 
whether a claim is a ``quantity'' claim or a ``quality'' claim.
  Under the McCain bill, the claim that the Baumans would bring if the 
McCain bill were enacted, would be in the Federal court on the issue of 
plan coverage because that is a determination of the ``quantity'' of 
medical care, but that the other claims would be brought in the State 
court. I suggest obviously that is a procedural quagmire.
  The point is further illustrated by an opinion of the Court of 
Appeals for the Third Circuit in a case called Lazorko v. Pennsylvania 
Hospital, 237 F.3d 242, decided just last year, where the underlying 
facts show the plaintiff's wife was hospitalized for attempted suicide. 
She was released but continued to have thoughts of suicide. Her doctor 
refused to readmit her to a hospital, and thereafter, regrettably and 
unfortunately, she killed herself.
  In the State court, the plaintiff sued the HMO. The case was removed 
to the Federal court where the counts on direct liability against the 
HMO were dismissed. The case was then remanded to the State court and 
then removed again by the HMO to the Federal court.
  The Federal court dismissed some of the counts against the HMO but 
remanded the case to the State court because of the various vicarious 
liability claims which the plaintiff had against the HMO. On appeal, 
the circuit court reversed the district court on one liability count 
and remanded the case to the district court.
  That is legalese, obviously, and very hard to present in the course 
of a floor statement in a Senate debate on this subject, but it is 
illustrative of a point that where you have a situation where an HMO 
covers certain kinds of treatments for medical illness and you have a 
question as to the coverage, under the McCain bill that claim would go 
to the Federal court, but if there is a claim on malpractice, failure 
of the doctor to exercise ordinary care, that case would go to the 
State court.
  There is no doubt that with the long history which the Federal courts 
have had on interpreting ERISA that there is going to be the first line 
of jurisdiction, and appropriately so, in the Federal court.
  My amendment would provide that the Federal court would have 
exclusive jurisdiction over all of the claims. In a situation where the 
HMO would have its case heard in the Federal court, the Federal courts 
frequently will retain jurisdiction over the doctors, the nurses, and 
the hospital, and the other parties where the matter would ordinarily 
go to State court on what is called pendent or supplemental 
jurisdiction.
  Again, it is very complicated. It does not lend itself to a short 
time agreement, but the upshot of it is that if you have the provisions 
of the McCain bill which give jurisdiction to the Federal court on 
contract interpretation or ``quantity of care" and jurisdictions in the 
State court on malpractice or ``quality of care'', a plaintiff is going 
to have to go to two courts to get both of the claims adjudicated which 
is, as I say, a procedural quagmire.
  The amendment which I have proposed would give appropriate deference 
to State law by providing that it would be the law of the State where 
the incident occurred which would govern the lawsuit. That is to say 
that the damages would be determined by State law and damages do vary 
among the 50 States.
  Also, if the State had a cap or a limit on the amount which could be 
collected, that would be determinative when the case is brought in the 
Federal court.
  This is very much like the diversity cases where jurisdiction resides 
in the Federal court, where the plaintiff is a resident of one State 
and the defendant is a resident of another State. A simple illustration 
would be if a patient from Camden, NJ, is treated in a Philadelphia, 
PA, hospital by a Philadelphia physician and there is an allegation of 
malpractice, negligence on the part of the physician and the hospital, 
then the resident of the State of New Jersey could sue in the Federal 
court with requisite jurisdictional amount, but it would be the law of 
Pennsylvania which would govern, or the plaintiff could sue in the 
State court of Pennsylvania. State courts would have jurisdiction.
  Once you bring the HMO into the picture and you have what is 
traditionally under ERISA, it has to start out in the Federal court at 
least as the contract interpretation and ``quantity of care.'' That is 
why it is my view, my legal judgment, that it is necessary to avoid the 
procedural quagmire to have the Federal court have jurisdiction over 
the entire matter.
  The question has been raised as to choice of law and venue, the 
question raised by my distinguished colleague from Tennessee, and I 
specified in the legislation that it would be the place of the incident 
which would determine the applicable law. Again, liability varies from 
State to State and venue has an important place. We want to avoid the 
potential of judge shopping so that the choice of law and the 
determination of venue would be where the incident occurred.
  There is another important aspect to the litigation in the Federal 
court because of a feeling of a greater confidence in the Federal 
judicial system than in some State court judicial system. This is a 
touchy point, but it is one which the Judiciary Committee examined in 
some detail last year in considering the question of amending diversity 
jurisdiction in class action cases. Class action is when plaintiffs 
join to sue a defendant. There had been, for illustrative purposes, a 
case which had been denied class action status by the Court of Appeals 
for the Third Circuit, and the plaintiffs then went to Louisiana, to a 
favored county, and instituted the class action case and had the class 
action certified.
  Diversity jurisdiction is easily defeated in a class action matter 
because if you have many plaintiffs, as you do in a class action, and a 
single defendant, all you have to do to avoid diversity jurisdiction is 
to have one of the plaintiffs a resident of the same State as the 
defendant. In order to have a diversity jurisdiction in the Federal 
court, all the plaintiffs have to be from a State other than the 
residence of a defendant.
  In the Judiciary Committee report on this subject, the following 
facts of findings were made:

       Some State court judges are less careful than their Federal 
     court counterparts about applying the procedural requirements 
     that govern class actions.


[[Page 12337]]


  That appears on page 16 of the report of the Judiciary Committee 
reporting this bill out at a 10-8 vote.
  On the next page, page 17, appears the following statement:

       A second abuse that is common in State court class actions 
     is the use of the class device as ``judicial blackmail.'' 
     That is a fairly strong condemnation in citing that criticism 
     of the State courts. I do not suggest the impugning of all 
     State court judges everywhere. But there is a considerable 
     difference in many States in the quality of the courts where 
     you have electoral process in many States, contrasted with 
     the Federal system of life tenure, where I believe it is fair 
     to say it is generally accepted that the caliber of the 
     Federal courts is better, at least as a generalization.

  There has been a great deal of concern expressed by some about the 
unlimited potential that would be present in a Patients' Bill of Rights 
in exposing defendants, HMOs, and employers to very high verdicts which 
would increase the cost of health care. So there is some assurance, I 
think fairly stated, by having the cases brought in the Federal courts.
  I think it is useful to cite a couple of other illustrations abut the 
underlying concern which I have about the procedural quagmire which 
occurs. One of the two cases I intend to cite additionally--but I shall 
not cite many of the other cases, and there are many illustrative of 
this proposition--is the case of Pryzbowski v. U.S. Healthcare, Inc., 
245 F.3d 266, decided by the Court of Appeals for the Third Circuit 
earlier this year. The plaintiff had back problems, sought surgical 
treatment, the HMO delayed a decision for months, the plaintiff went to 
State court, suing the HMO for medical complications occasioned by the 
delay. The HMO removed the case to the Federal court where the Federal 
court dismissed the claims against the HMO, finding that they were 
``quantity determinations'' and therefore preempted under ERISA section 
502. The district court also found that claims against the primary care 
provider were expressly preempted by section 514 and dismissed those 
claims, as well. The Court of Appeals for the Third Circuit vacated the 
findings and remanded the case to district court to make further 
findings. The appellate court noted that the claims against the primary 
care provider raised both ``quality'' and ``quantity'' issues and, on 
the record before it, the court could not decide which applied in this 
case.
  So not only do you have the provisions of the pending bill, which 
would send a plaintiff to two different courts on what is essentially 
the same situation, but even have the courts unable to draw a bright 
line between what is ``quantity'' and ``quality.''
  Another case which is illustrative of the problem is Corcoran v. 
United Health Care Inc., 965 F.2d 1321, heard in the United States 
Court of Appeals for the Fifth Circuit in 1992, where a patient was 
pregnant, and her doctor recommended complete bed rest and 
hospitalization so that he could monitor the fetus. The patient's 
doctor sought precertification from the HMO for a hospital stay. The 
HMO denied the request and authorized only 10 hours per day of health 
nurse services at home. Subsequently, the fetus regrettably went into 
distress and died at a time when the home health nurse was not on duty. 
The Corcorans, parents of the deceased child, brought suit in the State 
court which then had it removed to the Federal court, with the HMO 
arguing that they had not made a medical decision on ``quality'' but 
only a decision as to what benefits were covered under the health plan 
which was preempted by ERISA. The court concluded that the HMO gave 
medical advice, but in the context of making a determination about the 
availability of benefits under the plan, and as such the court found 
the Corcorans' claim was preempted by ERISA.
  So there you have a curious situation of what is viewed as a medical 
decision but again, preemption, because it was held to relate to a 
determination of benefits under the plan.
  The amendment would give jurisdiction to the Federal court on both of 
the claims so that when any one of these plaintiffs, such as a mother 
who is delivering a baby and has a limitation of 24 hours in the 
hospital and has a claim both as to coverage and as to malpractice, she 
could bring the case into Federal court, where State law would apply as 
to damages, and if there was a cap on damages in that State, that cap 
would apply.
  I am a cosponsor of the bill and I, too, intend to support the bill. 
But I do believe that this sort of a jurisdictional clarification is 
indispensable if we are to avoid having a plaintiff compelled to 
litigate in two courts with that kind of multiplicity of action.
  I ask the manager of the bill to engage in a discussion, if the 
distinguished manager would be willing to do so, or if a co-manager 
would be more appropriate to talk about the operation of the plan, if I 
may have Senator Kennedy's attention. I direct a question to my 
colleague from Massachusetts and raise the issue as to whether it would 
be more appropriate to discuss the matter with the Senator from North 
Carolina on this issue, but the question I have relates to the McCain-
Kennedy-Edwards bill where you have a case, taking the illustration of 
the underlying facts that I gave in the Lazorko case. Where you have an 
HMO, which covers medical care, and a woman being in a hospital for 
attempted suicide being released and the HMO refusing to readmit her, 
and thereafter she killed herself--isn't it true that the claims which 
were brought, say in Lazorko, which raised questions of interpretation 
of the plan, would be brought in the Federal court and the cases on 
malpractice would be brought in the State court under your bill?
  Mr. KENNEDY. Mr. President, I do not expect we will be able to 
litigate a case on the floor. I am not familiar with the facts in that 
particular situation.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Ms. Cantwell). The Senator from Massachusetts 
does not have the floor; the Senator from Pennsylvania does. Who yields 
time?
  Mr. SPECTER. Did the Senator from Massachusetts suggest the absence 
of a quorum?
  The PRESIDING OFFICER. The Senator from Pennsylvania has the floor; 
the Senator from Massachusetts does not.
  Mr. SPECTER. I do not intend to litigate a case on the Senate floor. 
So without referring to a specific case, I ask the Senator from 
Massachusetts, is it true that under his bill a claim which calls for 
interpretation of coverage of the insurance contract for so-called 
``quantity of care'' would be brought in the Federal court, and a claim 
which might--which would arise out of the same occurrence, which 
involved malpractice, or a ``quality'' case--would that not, under his 
bill, be brought under the State court?
  Mr. KENNEDY. I say to the Senator, it is my understanding of the 
case, the facts we have to date with that particular issue, following 
the Supreme Court holdings in the Pegram case, this would be tried in 
the State court.
  Mr. SPECTER. Madam President, I would press the question as to the 
interpretation of the insurance contract, which defined the rights of 
the parties under the contract. Isn't it plain, under your bill, I say 
to Senator Kennedy, that this is a matter which goes to the Federal 
court?
  Mr. KENNEDY. The understanding of our position on this issue is that 
the Supreme Court in Pegram said, when there is a dual issue involved 
in terms of the medical decision and the contract decision, as the 
Senator knows, on medical issues decided in the State contract, in the 
Federal courts, and where there is a mix of those, the predominance of 
these issues being medical, it would be tried in the State court.
  Mr. SPECTER. Madam President, I suggest that is at variance with the 
provisions of the Senator's bill. I will cite the exact citation here.
  At page 140, if I might call it to the attention of the Senator from 
Massachusetts, section 502 of ERISA, which is brought in the Federal 
court, and at the bottom, line 24:

       (I) regarding whether an item of service is covered under 
     the terms and conditions of the plan or coverage,

  So that is a section where you have Federal court jurisdiction, and 
that

[[Page 12338]]

would be the issue, as to interpretation of a contract to determine 
coverage.
  I ask the Senator from Massachusetts if that is not an accurate 
citation of the Senator's bill?
  Mr. KENNEDY. No. No, it is not. The Senator would be reading it out 
of context:

       Cause of action must not involve a medically reviewable 
     decision.

  The Federal cause of action excludes the medically reviewable 
decision. That is on page 142, line 6.
  Mr. SPECTER. If I might have the attention of the Senator from 
Massachusetts, on the preceding page, 139, section 302 talks about the 
``availability of civil remedies.''

       (a) Availability of Federal Civil Remedies In Cases Not 
     Involving Medically Reviewable Decisions.

  Mr. KENNEDY. Yes.
  Mr. SPECTER. Going on to 140.
  Mr. KENNEDY. The Senator is correct, and that is consistent with my 
earlier remarks.
  Mr. SPECTER. If I may be permitted to finish my sentence, since I do 
have the floor----
  Mr. KENNEDY. If the Senator wants a response, I am trying to respond 
to those highly technical questions the best way we can.
  Mr. SPECTER. I do want a response, but not in the middle of my 
sentence or the middle of my question.
  But to go forward here on the availability of Federal civil remedies 
in cases not involving medically reviewable decisions, this covers, 
line 24-25:

     regarding whether an item of service is covered under the 
     terms and conditions of the plan or coverage,[.]

  My question to the Senator from Massachusetts: Isn't that an explicit 
conclusive statement that, if it is a matter of interpreting a contract 
as to what service is covered under the terms and conditions of the 
plan or coverage, that is a Federal remedy? That is what it says in 
black and white, doesn't it? I ask Senator Kennedy.
  Mr. KENNEDY. The Senator is wrong. That is taking it out of context. 
The fair way is to read the complete paragraph and go on to the next 
page.
  Mr. SPECTER. Madam President, if the Senator cares to read the next 
paragraph, where he makes a claim of being taken out of context, I 
would be interested in hearing him read any such paragraph.
  Mr. KENNEDY. I have referred to that earlier, page 142, line 6. The 
coverage decision depends on a medically reviewable issue. On the 
matters dealing with the medically reviewable issue, the Supreme Court 
has indicated that it would be decided in the State courts. That is 
essentially what we have included in this language.
  Mr. SPECTER. Madam President, I agree with the general delineation 
that it was a medically reviewable decision. That is called ``quality 
of care,'' as I have said before, and is a malpractice issue. But the 
question which I have directed to the Senator from Massachusetts is a 
much narrower question.
  To repeat, is this not a question on the interpretation of the 
contracts, specifically where an item of service is covered under the 
terms and conditions of the plan for coverage? That is my question. The 
interpretation of ``an item of service is covered under the terms and 
conditions of the plan for coverage'' is a matter for the Federal 
court.
  I believe it is plain from the language on 139 to 141 that it is a 
Federal matter. But if you move to an interpretation of what is medical 
malpractice or a breach of duty by a doctor on what is a medically 
reviewable decision, then that is a matter which goes to the State 
courts. And this legislation does not continue the preemption of 
existing law.
  If I might have the attention of the Senator from North Carolina, 
Madam President, this is an issue which my distinguished colleague from 
North Carolina and I have been discussing for several days. And this 
morning in my hideaway we discussed the complications, at least as I 
saw them, on having the provisions of the pending bill which deal with 
this complex dichotomy of an interpretation of contract coverage, which 
is set forth at line 24, 25 on page 140 over to lines 1 and 2 on 141, 
which comment regarding an item of service covered under the terms and 
conditions of the plan for coverage which comes under the category of 
availability for Federal civil remedies. Then if you move over to a 
medically reviewable decision on medical malpractice, there is the 
difference.
  Is my interpretation correct that the legislation provides for cause 
of action in different courts, No. 1? It is the coverage of the 
contract, or what the courts have called ``quantity'' malpractice and 
what the courts have called ``quality.''
  Mr. EDWARDS. If the Senator would repeat the question, it is 
difficult for me to hear.
  Mr. SPECTER. I would be glad to repeat the question. As the Senator 
and I were talking this morning, isn't it accurate that the courts have 
made a distinction in ERISA, section 502, on what is contract coverage 
or ``quantity'' with complete preemption under existing law?
  Mr. EDWARDS. My understanding is--as the Senator said, we talked 
about this earlier today--that has traditionally been the case. I think 
there has been, I think, some erosion on that during the last few 
years. I think the Senator is correct. There have been a number of 
court rulings in that respect.
  Mr. SPECTER. Madam President, I agree with the Senator from North 
Carolina. There has been erosion on the preemption of 514 where the 
courts have really seen the inequities of denying injured parties 
relief, and instead of being under 502 with ``quantity'', they have 
tried to move the cases into ``quality'' with the broader 
interpretation where some relief has been granted.
  I am a cosponsor of the amendment. As I said earlier, one of the 
concerns that I candidly expressed a decade ago was my surprise over 
the reach of the preemption of ERISA. It seemed to me to be unfair to 
deny injured plaintiffs redress in the courts because of the 
preemptions which were really designed originally under other kinds of 
benefit plans and not under health maintenance organization plans. When 
the HMOs came into being, they took the benefit of the same kind of 
preemption.
  But in this legislation you have the dichotomy where some cases are 
heard in the Federal courts as they relate to ``quantity care'' or 
interpretation of the contract, and other cases or the same case may be 
heard in the State court as it relates to a medical malpractice or the 
``quality of care.''
  My question to the Senator is, isn't that an accurate statement?
  Mr. EDWARDS. Again, I am having a little trouble hearing you. If the 
Senator said that the separation under our legislation between the 
contract causes of action, which have traditionally been considered 
ERISA causes of action, go to Federal court and in the case of the 
medically reviewable decision cases go to State court, that would be 
accurate.
  Mr. SPECTER. The concern I have, having gotten an understanding on 
the applicability of the statute, which the Senator and I are in 
agreement with, is, how is it going to work? I characterized it, while 
the Senator was off the floor, as a procedural quagmire.
  If you have a case--and I cited a couple of them--where a child is 
born, and the mother has an HMO which encourages release from the 
hospital within 12 hours, and the child, unfortunately, dies--and I 
cited a specific case--and then you have a series of claims which were 
brought by the plaintiff and one of the claims involves interpretation 
of the contract, is that care covered by the contract?
  Then if there are other claims for negligence on the part of the 
doctor or hospital, that would then fall under the amendment of the 
Senator from North Carolina under State court jurisdiction.
  I cited another case where you had a woman who was suicidal, she was 
released from the hospital, the doctor wanted to put her back in, and 
the HMO wouldn't let him do that. She committed suicide. A suit was 
brought and the HMO defended it on the ground that it wasn't covered. 
That went from

[[Page 12339]]

the Federal court. They dealt with the exclusive preemption under 502. 
But the aspect of ``quality of care'' is a State court action. You have 
perpetuated that.
  It is very difficult, obviously, to move totally away from Federal 
jurisdiction under ERISA on the interpretation of the contract because 
there is so much law on the subject. I know my colleague will agree 
with me on that generalization.
  What happens when you have the suicide? The mother of the infant is 
released from the hospital within 24 hours, and the claims are made. 
They are essentially the same claims. They are claiming that they are 
covered under the contract. They are claiming personal injuries, loss 
of earning potential, or for the woman who has committed suicide, loss 
of earnings, loss of consortium, the whole range.
  Having litigated some of these cases, you more recently than I. But 
the essential claims are going to be the same: Personal injuries for 
both the claim for coverage and ``quantity of care" as opposed to the 
claim for ``quality of care'' or malpractice.
  So how is it going to be resolved with two separate courts, Federal 
court having jurisdiction over ``quantity,'' and State court having 
jurisdiction over ``quality?''
  Mr. EDWARDS. I think----
  The PRESIDING OFFICER. The Chair reminds Members to address each 
other in the third person and to address the questions through the 
Chair.
  Mr. SPECTER. Nunc pro tunc.
  Mr. EDWARDS. I would answer the Senator's question by saying that 
under the examples given, if I understood them correctly, most of those 
examples would involve interpretation of contract language in the 
context of a medically reviewable fact.
  So I believe under our legislation those, in fact, go to State court. 
I say to my colleague, if there is any medical fact interpretation 
involved, I believe those cases go to State court. So I think under the 
examples given, all of the cases would end up in State court.
  Having said that, though, in fairness to the Senator, I can imagine 
circumstances--I don't think the Senator's examples meet it--where 
there could be a medically reviewable decision which would go to State 
court and also there could be a claim that the contract was breached 
separate and apart from that, which I think is the issue the Senator is 
raising.
  Mr. SPECTER. Madam President, I would accept the modification by my 
colleague from North Carolina. I think the citation I gave has a 
contract claim. But rather than disagree about that, since the Senator 
from North Carolina acknowledges there could be some cases, I will take 
another case whereas the Senator from North Carolina says there could 
be that kind of distinction.
  I ask the Senator, through the Presiding Officer, then in your bill 
what do you do in that situation where you have the Federal court 
controlling--in the language of the statutes--``whether an item or 
service is covered under the terms and conditions of the plan or 
coverage'' and other aspects of the same set of facts are covered under 
medically reviewable factors?
  Mr. GREGG. Madam President, will the Senator yield for a question?
  Mr. SPECTER. I would be glad to yield as soon as I get this answer.
  Mr. GREGG. It is just a technical question. The answer might be 
better if he has time to think about it.
  Mr. SPECTER. Well, it is too late now to retain the continuity 
without yielding, so I do yield.
  Mr. GREGG. I thank the Senator and apologize for breaking the 
continuity. I think building the record on this issue is very 
important.
  We are trying to get a sense of the situation, so we can tell our 
membership what they are going to be doing this evening. After your 
amendment is completed, we will have three votes lined up. I wonder if 
we could agree that we would begin the vote on those amendments at 
sometime around 6:45.
  Mr. SPECTER. Madam President, I am not able to specify when because 
the Senator from North Carolina and I are in the midst of what I 
consider to be an important colloquy. But I will try to keep it as 
brief as possible.
  Mr. GREGG. I thank the Senator.
  Mr. SPECTER. The question, Madam President, that I ask the 
distinguished Senator from North Carolina is, in taking his conclusion 
that there are some cases which would involve contract interpretation, 
and the same case would involve a medical malpractice determination, 
what do you do when the contract interpretation has jurisdiction in the 
Federal court and the medical malpractice has jurisdiction in the State 
court?
  Mr. EDWARDS. Madam President, I would say, in answering my 
colleague's question, that in fact I am having difficulty imagining a 
case right now. The vast majority of cases similar to what we have just 
been discussing would fall within the category of a contract 
interpretation involving a medically reviewable fact. So I think, at 
least of all the examples that occur to me as I stand here, those cases 
would all end up in State court.
  As the Senator and I have spoken about on a number of occasions, he 
has a concern--and I understand it--about the possibility of there 
being some confusion about which cases go to State court and which 
cases go to Federal court. We think we have defined that fairly well in 
our bill.
  I might add, in response to the Senator's question, that there is a 
principle involved in this which we have not discussed, which is that 
physicians, hospitals, and health care providers believe--and I agree 
with them--if an HMO is going to overrule their decision and engage in 
the practice of medicine, they ought to be treated the same way they 
are treated.
  As the Senator knows, their cases are normally handled in State 
courts. So I think conceptually we start with the principle that HMOs 
should be treated the same as other health care providers when they 
make medical decisions.
  No. 2, I say to my colleague that what we are doing is taking a 
Federal protection curtain that was unintended for HMOs when it was 
passed--because they basically did not exist--and lifting it. The 
effect of lifting it is they become subject to State court law.
  So I think it is consistent in that respect. As the Senator and I 
have talked about before, it is also consistent with the fundamental 
concept that HMOs, if they are going to engage in the practice of 
medicine, ought to be treated as other health care providers.
  I yield back to my colleague.
  Mr. SPECTER. Madam President, I agree completely with my colleague 
from North Carolina that when HMOs engage in the practice of medicine, 
they ought to be treated like physicians.
  But coming back to the distinction in the Edwards bill, which does 
have a provision on coverage as distinguished from medically reviewable 
decisions, there are two thoughts which occur to me. You have a whole 
body of case law--dozens of cases--which have wrestled with factual 
situations on coverage, whether a plan covered the specific item: The 
infant in the hospital for 24 hours; or the woman who was suicidal, 
whether the plan covered further hospitalization for her. And then 
those cases also involve counts on medical malpractice, on ``quality.''
  So it seems to me it is very hard for my colleague from North 
Carolina to argue that it is not a commonplace occurrence to have 
specific cases arise where under his bill they would go to different 
courts. And then the express language of the Edwards bill has a 
delineation between medically reviewable decisions on malpractice and a 
category--``whether an item or service is covered under the terms and 
conditions of the plan or coverage.''
  So I would direct perhaps only two more questions to my colleague 
from North Carolina--and I say perhaps.
  The first question is--and I address this question through the 
Chair--isn't it conclusive where the Edwards bill has language which 
distinguishes ``whether an item or service is covered under the terms 
and conditions of the plan or coverage,'' as distinguished from 
medically reviewable decisions, that the Edwards bill contemplates 
these two categories, which under the Edwards bill are going to go to 
two different courts?

[[Page 12340]]


  Mr. EDWARDS. Again, if I correctly understand the Senator's 
question----
  Mr. SPECTER. I can understand the difficulty, Madam President, when 
people are whispering to him all the time. That is why I keep my people 
off the floor.
  Mr. EDWARDS. I am trying very hard to listen to the Senator.
  Madam President, if I may respond to the Senator's question, the 
answer to the question is: I really think there is a fundamental 
question that the Senator and I may have some disagreement about, which 
is contract interpretations that involve medically reviewable facts 
under our legislation go to State court. I believe that all of the 
examples the Senator has mentioned and all the examples I can think of 
would fall in that category.
  Specifically as related to his concern about the possibility of there 
being two separate courts with jurisdiction, I think, in fact, that is 
not only highly unlikely but I can't think of a fact situation, as I 
stand here now, that would meet that criteria.
  What we have done is to have a principle, and we have designed this 
bill around that principle. The Senator knows very well that this is 
the principle that was discussed in the Pegram case, a U.S. Supreme 
Court case, principle supported by the State attorneys general, the 
American Bar Association, this separation. It is a concept that makes 
sense in this context.
  No legislation is perfect. We certainly can't eliminate the 
possibility that there may be in a hypothetical case some joint 
jurisdiction, but I can't think of such an example.
  Mr. SPECTER. Madam President, I will direct this question to my 
colleague from North Carolina: How do you account for the many, many 
cases which have been litigated distinguishing between contract 
coverage, where really the language in the Edwards bill ``whether an 
item for service is covered under the terms and conditions of the 
plan,'' and a medically reviewable decision, where so many courts on so 
many cases labored with those distinctions, if, in fact, there aren't 
many cases where they are going to end up in different courts under the 
Edwards bill?
  Mr. EDWARDS. Madam President, if I may respond to the Senator's 
question briefly, I believe it is because we have created a presumption 
that if the contract interpretation involves a medically reviewable 
fact, which is going to be the vast majority of cases--all the cases I 
can think of, as I stand here--those cases go to State court.
  Those are the kinds of cases to which I believe the Senator is 
referring. I don't think the problem the Senator is addressing is one 
that is likely to occur in real life. We have specifically dealt with 
the issue of when there is a question, if it involves a medically 
reviewable fact, those cases go to State court.
  Mr. SPECTER. Madam President, if it is unlikely, even with the 
brilliance and conceptual imagination of the Senator from North 
Carolina--he can't think of one--to occur in real life, why put this 
jurisdictional provision in the bill?
  Mr. EDWARDS. Because there are two separate categories, if I may 
answer the Senator's question. There are two potential causes of 
action. If it involves any issue relating to medical care, specific 
medical fact, those cases go to State court. We treat the HMOs just as 
the doctor because they are engaging in the practice of medicine. If, 
on the other hand, the issue is one of were they covered for 60 days as 
the contract provided, do they meet some other specific contractual 
requirement, those are purely contractual issues that have been decided 
in Federal court for many years under ERISA. So we left those cases 
where they have traditionally been decided, which I think is the 
appropriate place to leave them.
  Mr. SPECTER. Madam President, if you do have those contract 
decisions, isn't it entirely possible that there may be a factual 
situation arise where there is a matter of malpractice or a medically 
reviewable decision involved in the same occurrence?
  Mr. EDWARDS. I would answer my colleague's question exactly the way I 
have before, which is, absent a presumption in our bill that if there 
is an involvement of a medically reviewable fact, I think the Senator's 
concern would be one that I would share. But we have dealt with that 
issue by specifically saying where the contract interpretation involves 
a medically reviewable fact, those cases go to State court. Those, in 
my experience and in my judgment, I believe will be the same cases that 
the Senator is describing as cases, I think he used the term, of 
medical malpractice.
  Mr. SPECTER. Madam President, as they say in Oklahoma, we have gone 
about as far as we can go on this colloquy. I would advise the managers 
of the bill that I will be prepared to conclude my argument by 6:45.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. GREGG. Madam President, I ask unanimous consent that if the other 
side does not require any additional debate, we begin the votes on the 
three pending amendments, which would be, in order, the Snowe 
amendment, the Enzi amendment, and the Specter amendment, beginning at 
6:45.
  The PRESIDING OFFICER. Is there objection?
  Mr. REID. Madam President, reserving the right to object, we need 
Senator Snowe to have 10 minutes, and she needs to offer a 
modification.
  Mr. GREGG. We also need to have 2 minutes on Senator Enzi's amendment 
prior to his vote. So we would have 10 minutes prior to the Snowe 
amendment and 2 minutes prior to the Enzi amendment. And Senator Snowe 
would have the right to modify her amendment.
  Mr. REID. I accept that as a unanimous consent agreement in line with 
what we previously offered except for the time.
  Mr. GREGG. I would have to add that it is my understanding Senator 
Enzi may divide the question on his amendment. That is his right, as I 
understand it; is that correct?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. REID. If the Senator desires to divide his amendment, he may do 
so.
  The PRESIDING OFFICER. Does the Senator wish the 10 minutes dedicated 
to Senator Snowe to start at 6:45 or to begin now?
  Mr. GREGG. It should begin prior to the vote.
  Mr. REID. We are going to vote on the Specter amendment at 6:45.
  Mr. GREGG. We are going to vote on the Specter amendment.
  Mr. REID. At 6:45.
  Mr. GREGG. We are going to vote on Snowe and then Enzi and then 
Specter.
  Mr. REID. We do need Senator Snowe here.
  Mr. GREGG. She will be here. So 10 minutes on the Snowe amendment 
would begin at 6:45.
  Mr. REID. Or when she arrives.
  Mr. GREGG. Or when she arrives. And the votes would begin thereafter.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Madam President, these are on or in relation to the 
amendments as per the previous oral agreement?
  Mr. GREGG. Right.
  Mr. REID. I thank the Chair. The Senator from Pennsylvania has the 
floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Madam President, I believe the colloquies with the 
Senator from Massachusetts and the Senator from North Carolina have 
made my point. That point is that there is jurisdiction created under 
the McCain-Edwards-Kennedy bill in two courts. There really is no doubt 
about that because section 302 provides for the availability of Federal 
civil remedies, and that covers whether an item of service is covered 
under the terms and plans and conditions, and later there are medically 
reviewable decisions in State courts.
  Although there can be an inconclusive colloquy, as there is no 
confession or admission on the floor of the U.S. Senate, I think it is 
pretty plain that there are cases--and I have cited a whole series of 
specific cases in my presentation, Bauman, Pryzbowski, Lazorko, and 
Corcoran--where you had factual situations where you have an 
interpretation of a plan which would

[[Page 12341]]

come under Federal jurisdiction--such as the mother's stay covered for 
more than 24 hours, the suicidal woman's coverage extended for 
hospitalization under that circumstance--then a combination of failure 
to have a plan coverage and also medical malpractice. And you have both 
claims brought.
  And under the McCain-Kennedy-Edwards bill, it is plain that those two 
claims would be brought in separate courts beyond any question. It is 
not a matter of what the distinguished Senator can imagine. You have 
case after case which have had these interpretations, contract 
interpretation and ``quantity of care,'' and that goes to the Federal 
court. And then you have ``quality of care,'' and that goes to the 
State court.
  I am not unaware of the realities of votes in this Chamber where a 
coalition has been formed, and there is a mindset. But I do hope that 
the managers of this bill will revisit this situation after this vote 
and when the bill goes to conference because having both these courts 
available is going to double the burden on plaintiffs who are injured--
to make a contract interpretation claim in the Federal court and to go 
to the State court to make a medical malpractice claim--and it is going 
to require double expenses by the HMO, by the doctors, and by the 
hospitals--although you might have the doctors and hospitals eliminated 
from the Federal litigation, but the HMOs will certainly be there; and 
that is highly undesirable.
  I have a grave concern about the speed of passage of this bill. Now, 
it is true we have been considering the Patients' Bill of Rights for a 
long time--many years. Too long. But this bill has come to the floor 
without the benefit of committee action, without the benefit of a 
markup; and what there has been is sort of a moving target markup of 
this bill on the floor by the committee of the whole, as we have gone 
through many amendments. But it simply cannot be denied that there are 
two sections of this bill, one conferring Federal jurisdiction and one 
conferring State jurisdiction, and the same factual situation would 
raise questions under both court systems, and this bill would require 
litigation in two courts.
  That is very wasteful and very confusing. To call it a procedural 
quagmire is not an overstatement. The answer is fundamental, and that 
is to provide for exclusive Federal court jurisdiction, which I have in 
this legislation. You might argue that it could go to the State court 
and that would be an improvement rather than have both State and 
Federal courts. But it is very hard to move exclusively to the State 
courts where you have the long body of law built up under ERISA as to 
what is a plan's coverage. So given the fact that you are going to 
inevitably end up in the Federal court, the Federal court ought to be 
exclusive jurisdiction. And as the amendment provides, the damages will 
be determined by State law, no new Federal caps, but whatever State 
caps there were would be in effect.
  I see my colleague from Illinois on the floor. He commented to me 
that he agreed with the provision that there ought to be unitary 
jurisdiction, but thought it ought to be in the State court. I will 
yield to the Senator from Illinois if he cares to use the limited time 
remaining.
  The PRESIDING OFFICER. The Senator from Illinois is recognized.
  Mr. FITZGERALD. Madam President, I did want to, in part, agree with 
my colleague from Pennsylvania. I think he has identified an important 
problem that exists in the underlying bill. I have long favored 
creating liability for HMOs that harm someone because of their 
negligence. Right now, HMOs are protected. They are immune from 
liability, and that is a protection that almost no other individual or 
corporation has in this country, and I don't think it is defensible.
  For the last 2 years, I have been voting regularly to make HMOs 
liable where they have been negligent. But I do think we have a problem 
in this bill in that we create State court tort liability by repealing 
the ERISA immunity in one part of the bill. That is on page 157, I 
believe. But then, at the same time, we create also tort liability, as 
well as more contract liability, and there already is contract 
liability under ERISA in Federal court.
  The problem I see is that there are tort causes of action authorized 
in this bill both in State court and in Federal court. I have always 
thought the playing field was tilted in favor of HMOs, and that playing 
field needs to be leveled. But I am concerned now that if this effect 
in the underlying bill is not remedied, the playing field will be 
tilted in the opposite direction.
  The PRESIDING OFFICER. The hour of 6:45 having arrived, under the 
previous order, the Senator from Maine is to be recognized.


                     Amendment No. 834, As Modified

  Ms. SNOWE. Madam President, I ask unanimous consent to modify the 
amendment that has been offered by Senator DeWine, Senator Lincoln, and 
Senator Nelson and send a modification to the desk.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered. The amendment is so modified.
  The amendment (No. 834), as modified, is as follows:

 (Purpose: To make technical corrections concerning the application of 
               Federal causes of action to certain plans)

       On page 2 of the amendment, between lines 9 and 10, insert 
     the following:
       ``On page 144, lines 7 and 8, strike `or under part 6 or 
     7'.''.
       On page 3 of the amendment, strike line 14 and all that 
     follows through line 21 and insert the following:
       ``(ii) Definition.--A group health plan described in this 
     clause is--

       ``(I) a group health plan that is self-insured and self 
     administered by an employer (including an employee of such an 
     employer acting within the scope of employment); or
       ``(II) a multiemployer plan as defined in section 3(37)(A) 
     (including an employee of a contributing employer or of the 
     plan, or a fiduciary of the plan, acting within the scope of 
     employment or fiduciary responsibility) that is self-insured 
     and self-administered.

       On page 11 of the amendment, line 16, insert after the 
     period the following: ``The provisions of this paragraph 
     shall not apply in the case of a designated decisionmaker 
     that is a group health plan, plan sponsor, or health 
     insurance issuer and that is regulated under Federal law or a 
     State financial solvency law.''.

  Ms. SNOWE. Madam President, it is modified in the following way. 
First of all, the question was raised about the original intent of the 
amendment in regard to the self-insured, self-administered plans. 
Specifically, with regard to contractual dispute, it will only exempt 
from liability employer and union plans that are self-insured and self-
regulated, again applying symmetry to all of the plans regarding self-
insured and self-administered, so we do not make any exceptions. So we 
address that by modifying it to ensure that both employer and union 
plans are consistent with the legislation.
  Secondly, because insurance plans are already regulated at State and 
Federal level with regard to assets and other issues, we assure that 
these regulated plans are not subject to a new Federal solvency plan to 
qualify as a designated decisionmaker. As a result, the solvency 
standard in this amendment will appropriately apply to nonhealth 
insurance designated decisionmakers.
  Finally, we also make a technical correction in the legislation to 
ensure that the causes of action are not inadvertently opened to other 
statutes that are already a matter of law. This change reflects the 
intent of our amendment to prevent the filing of lawsuits in a broader, 
more undefined number of issues.
  I urge adoption of the modification as well as the underlying 
amendment.
  Again, I remind my colleagues that this was an effort to address many 
of the legitimate issues that were raised regarding employer liability. 
It was a consensus that was drafted along with my colleague from Ohio, 
Senator DeWine, Senator Lincoln, and Senator Nelson. I also thank 
Senator McCain, Senator Kennedy, Senator Edwards, as well as Senator 
Gregg and Senator Frist, for working together to make this amendment 
possible. We thought it essential that we develop precise and clear 
guidelines in terms of how we establish employer liability but at the 
same time protecting patients' rights

[[Page 12342]]

with their ability to seek legal redress when there is inappropriate 
care or denial of care.
  We think we have developed and crafted the amendment in a way that 
creates the bright line and the firewall so that we do provide the 
necessary protection to employers, so that we limit and, in fact, in 
most instances I think prevent any exposure to liability. They can 
confer that liability and risk to the designated decisionmakers and 
therefore they will have that kind of liability protection, and 
patients will have their ability to be able to sue in those instances 
where they have been denied care or there has been wrongful injury, 
personal injury, or even death.
  I think it strikes the right balance. The consensus represents the 
optimum approach to providing the kind of basis for removing an 
employer's exposure to litigation when they are not directly 
participating in medical decisions.
  We hope this will satisfy the concerns that have been raised by the 
original legislation. We think we crafted the best approach, borrowing 
both from the McCain-Edwards-McCain legislation as well as the Breaux-
Frist-Jeffords approach.
  Again, I urge adoption of this amendment, as modified, and I ask for 
the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  Mr. BAUCUS. Mr. President, I am proud to cosponsor amendment No. 834 
with Senator Snowe and my other colleagues. It addresses an issue 
important to all of us here--protecting employers from undue liability. 
This amendment clarifies any confusion about who is responsible for 
medical decision-making.
  Under this amendment, employers who generally do not make medical 
decisions anyway--will be able to name a designated decision maker. If 
they contract with an insurance company, that company is automatically 
given the status of designated decision maker. The employer doesn't 
have to take any further action.
  Once designated, this entity will have the authority to make medical 
decisions. And with this authority, the designated decision maker--not 
the employer--will have the responsibility for those decisions if they 
result in harm to the patient.
  I believe this amendment serves as an important compromise. It 
enables employers to feel more comfortable offering their employees 
health benefits. And that's certainly something we want to encourage. 
But it also protects patients, and ensures that they receive all the 
protections provided under the Patients' Bill of Rights.
  Mr. GREGG. Madam President, I understand the Parliamentarian has 
ruled that I have 5 minutes.
  The PRESIDING OFFICER. There is 5 minutes in opposition.
  Mr. GREGG. Madam President, unless somebody else is seeking that 
time, I will speak. I congratulate the Senator from Maine and the 
Senator from Ohio for adjusting this amendment. The changes they made 
in this amendment are very positive. The amendment moves in the right 
direction.
  However, it must be made clear this amendment targets one narrow 
aspect of the concerns of this bill, and, in fact, there are still some 
issues in that aspect. Specifically, employers are going to have a very 
difficult problem figuring out whether they are a direct participant or 
whether they fall under the designated decisionmaker safe harbor.
  There are issues within this narrow issue that are very significant.
  The greater issues on the question of liability still remain very 
viable. It is of serious concern to those of us who look at this as 
extremely expensive legislation in the sense it will drive up health 
care costs and result in a lot of people losing their health insurance. 
Employers will drop the health insurance because of the liability 
aspects being thrown at employers in this bill and the costs employers 
simply are not going to bear. They will drop health insurance or reduce 
the quality of health insurance.
  The estimates of CBO are in the range of 3.1 million, and OMB 
estimates are in the range of 1 million to 4 million people will lose 
health care. I think it will be literally tens of millions of people 
who will see the quality of their health care insurance degraded as 
their employers start to adjust.
  As to this specific amendment, which is a narrow amendment, not an 
expansive amendment, the movement by the Senators from Maine and Ohio 
is to be congratulated. I thank them for it.
  I yield back my time, and I yield the floor.
  The PRESIDING OFFICER. Time is yielded back. The question is on 
agreeing to amendment No. 834, as modified. The yeas and nays have been 
ordered. The clerk will call the roll.
  The bill clerk called the roll.
  The result was announced--yeas 96, nays 4, as follows:

                      [Rollcall Vote No. 205 Leg.]

                                YEAS--96

     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
     Gregg
     Hagel
     Harkin
     Hatch
     Helms
     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)
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stabenow
     Stevens
     Thomas
     Thurmond
     Torricelli
     Voinovich
     Warner
     Wellstone
     Wyden

                                NAYS--4

     Grassley
     Hollings
     Nickles
     Thompson
  The amendment (No. 834), as modified, was agreed to.
  Mr. GREGG. Madam President, I move to reconsider the vote.
  Mr. REID. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER (Ms. Stabenow). There are now 2 minutes equally 
divided on the Enzi amendment.
  The Senator from Wyoming is recognized.


                           Amendment No. 840

  Mr. ENZI. Madam President, under the amendment we just agreed to, we 
made some progress on handling liability. But there is a group of 
businesses that were left out. You will never hear me in this Chamber 
talk about big businesses. I always talk about the small ones. None of 
these is headquartered in Wyoming. But I am compelled to put in an 
amendment that will take care of a major problem which will take care 
of health care at the level they know it for 6 million people in the 
U.S. who work for the big, self-insured, self-administered companies, 
such as Hewlett-Packard, Caterpillar, Wal-Mart, and Pitney Bowes. None 
of those is in my State.
  This provides an option to allow one of two ways of providing 
insurance to their people so individuals can get the right to sue if 
they want that right or they can stay with the plan which they 
presently get all the benefits from without any difficulty. This 
provides that option for them.
  This is providing an option so that the company can avoid liability 
by providing a liability option for their people.
  I ask for your support on this amendment to clear up what the people 
in your State need.
  I also believe it is my right to divide the amendment on page 3, line 
18.
  The PRESIDING OFFICER. The amendment is so divided.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Madam President, let me just mention what this amendment 
is all about.
  If an employer gives options to any employee, it can offer a program 
that

[[Page 12343]]

is very inferior or it can provide a voucher that is inferior. You 
can't buy a good health insurance policy. If it offers those two 
options to any employee, and that employee denies it, then the employee 
who stays with that company is virtually excluded from bringing any 
action against the employer, no matter how involved the employer is in 
making medical decisions that can cause adverse reaction to that 
employee--either death or injury.
  That is a lousy choice. This is an option many companies will take. 
It will be at the expense of the employees. They can get two inferior 
options. If they reject it and stay with the company, they are excluded 
from the benefits and the protections of this bill. It is going to open 
up a great exclusion for millions of hard-working Americans and their 
families. It should be rejected.
  Mr. ENZI. Madam President, I ask for the yeas and nays.
  The PRESIDING OFFICER. The yeas and nays have already been ordered.
  The question occurs on division I.
  The Senator from Nevada.
  Mr. REID. Madam President, I move to table the whole amendment, and I 
ask for the yeas and nays.
  The PRESIDING OFFICER. The yeas and nays have been ordered.
  Mr. GREGG. Madam President, parliamentary inquiry: As I understand 
it, the question was divided. Is this a motion to table on the first 
part?
  Mr. REID. Yes. That is true.
  The PRESIDING OFFICER. That is correct.
  Mr. GREGG. I thank the Chair.
  The PRESIDING OFFICER. The question is on the motion to table 
division I.
  The yeas and nays have been ordered, and the clerk will call the 
roll.
  The assistant legislative clerk called the roll.
  The result was announced--yeas 55, nays 45, as follows:

                      [Rollcall Vote No. 206 Leg.]

                                YEAS--55

     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)
     Nelson (NE)
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Specter
     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
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Kyl
     Lott
     Lugar
     McConnell
     Murkowski
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner
  The motion was agreed to.
  Mr. KENNEDY. Madam President, I move to reconsider the vote.
  Mr. REID. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                Amendment No. 840 Division II Withdrawn

  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. ENZI. Madam President, I ask unanimous consent to withdraw 
division II of the amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The majority leader.
  Mr. DASCHLE. Madam President, I announce to our colleagues that this 
will be the last vote of the evening. We will begin voting tomorrow 
morning at 9 o'clock on a series of votes on amendments that will be 
offered this evening. There is one more vote, but after that there will 
be no more votes.


                           Amendment No. 844

  The PRESIDING OFFICER. There are 2 minutes now evenly divided on the 
Specter amendment.
  Who yields time? Who seeks time?
  The Senator from Pennsylvania.
  Mr. SPECTER. Madam President, this amendment provides for exclusive 
jurisdiction in the Federal courts. Under the bill, there would be 
jurisdiction in the Federal courts for interpretation of the contract's 
coverage or what is referred to as ``quantity of medical care'', and 
jurisdiction in the State courts for what is called medical malpractice 
or ``quality of care.'' That means that for a plaintiff to bring a 
claim, they would have to go into two courts, enormously more 
expensive, and it would involve removal to the Federal courts and 
bouncing back and forth.
  This amendment gives due deference to the States by using any State 
caps which are in effect and provides for State law on the computation 
of damages. With the life tenure of Federal judges, the probability is 
high that the verdicts will be more realistic and more reasonable than 
we have seen in some of the State courts.
  In the colloquies with the managers of the bill, it is obvious that 
there are many of these cases which involve both ``quantity'' and 
``quality.'' During the floor presentation, I went over a number of 
cases where they bounced back and forth.
  I urge adoption of this amendment.
  The PRESIDING OFFICER. The Senator from North Carolina.
  Mr. EDWARDS. Madam President, I have great respect for my colleague's 
expertise in this area. I appreciate very much his work. He and I have 
talked about this a number of times. The problem is that this amendment 
violates a fundamental principle on which we have based this entire 
legislation. That is, when HMOs and health insurance companies make 
medical decisions and overrule doctors, they should be treated exactly 
the same way doctors are treated. That is the reason our bill sends 
these cases to State court. It is the reason this is so critical for 
the AMA and medical groups all over this country.
  They want the HMOs, if they are going to be in the business of 
overruling doctors' decisions, to be treated exactly the same as 
doctors and exactly the same as other health care providers.
  For that reason, I reluctantly must oppose this amendment.
  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
844.
  Mr. SPECTER. Madam President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second. The clerk will call the roll.
  The legislative clerk called the roll.
  The result was announced--yeas 42, nays 58, as follows:

                      [Rollcall Vote No. 207 Leg.]

                                YEAS--42

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

                                NAYS--58

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Byrd
     Cantwell
     Carnahan
     Carper
     Chafee
     Cleland
     Clinton
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Edwards
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Graham
     Harkin
     Hollings
     Hutchison
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     McCain
     Mikulski
     Miller
     Murray
     Nelson (FL)
     Nelson (NE)
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Shelby
     Snowe
     Stabenow
     Torricelli
     Wellstone
     Wyden
  The amendment (No. 844) was rejected.
  Mr. KENNEDY. I move to reconsider the vote.
  Mr. SANTORUM. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  (Mr. DURBIN assumed the chair.)

[[Page 12344]]


  Mr. KENNEDY. Mr. President, in just a few moments, I believe there 
will be a consent request by the minority floor leader to outline a 
series of amendments to consider and outline the order in which to take 
them up this evening, with disposition of those on the morrow.
  It is not the intention, as we have gone through amendments, to 
second degree them. We are not prepared to say that until we have an 
opportunity to see those amendments. We are trying to work through the 
amendments at the present time. I hope perhaps we can get started on 
the discussion, and then in a few moments time when we have a chance to 
see each of the amendments, we can come back with the leadership 
proposal for an agreement on time and order this evening.
  Mr. GREGG. Mr. President, we are ready to enter into an agreement 
relative to time and reserve the issue of second-degree amendments 
until the Democratic leader has had the opportunity to review the 
amendments. If we can get times locked in, that will be very helpful.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, parliamentary inquiry: Does the Senator 
from Virginia have an amendment pending at the desk?
  The PRESIDING OFFICER. The Senator is correct.


                     Amendment No. 833, As Modified

  Mr. WARNER. Mr. President, I send to the desk a modification to that 
amendment.
  The PRESIDING OFFICER. The amendment is so modified.
  The amendment (No. 833), as modified, is as follows:

       On page 154, between lines 2 and 3, insert the following:
       ``(11) Limitation on attorneys' fees.--
       ``(A) In general.--Notwithstanding any other provision of 
     law, or any arrangement, agreement, or contract regarding an 
     attorney's fee, the amount of an attorney's contingency fee 
     allowable for a cause of action brought pursuant to this 
     subsection shall not exceed \1/3\ of the total amount of the 
     plaintiff's recovery (not including the reimbursement of 
     actual out-of-pocket expenses of the attorney).
       ``(B) Determination by district court.--The last Federal 
     district court in which the action was pending upon the final 
     disposition, including all appeals, of the action shall have 
     jurisdiction to review the attorney's fee in accordance with 
     subparagraph (C) to ensure that the fee is a reasonable one 
     and may decrease the amount of the fee in accordance with 
     subparagraph (C).
       ``(C) Determination of reasonableness of fee.--
       ``(i) Initial determination of lodestar estimate.--

       ``(I) In general.--To determine whether the attorney's fee 
     is a reasonable one, the court first shall, with respect to 
     each attorney representing the plaintiff in the cause of 
     action, multiply the number of hours determined under 
     subclause (II) by the hourly rate determined under subclause 
     (III).
       ``(II) Number of hours.--The court shall determine the 
     number of hours reasonably expended by each such attorney.
       ``(III) Hourly rate.--The court shall determine a 
     reasonable hourly rate for each such attorney, taking into 
     consideration the actual fee that would be charged by each 
     such attorney and what the court determines is the prevailing 
     rate for other similarly situated attorneys.

       ``(ii) Consideration of other factors.--A court may 
     increase or decrease the product determined under clause (i) 
     by taking into consideration any or all of the following 
     factors:

       ``(I) The time and labor involved.
       ``(II) The novelty and difficulty of the questions 
     involved.
       ``(III) The skill required to perform the legal service 
     properly.
       ``(IV) The preclusion of other employment of the attorney 
     due to the acceptance of the case.
       ``(V) The customary fee of the attorney.
       ``(VI) Whether the original fee arrangement is a fixed or 
     contingent fee arrangement.
       ``(VII) The time limitations imposed by the attorney's 
     client on the circumstances of the representation.
       ``(VIII) The amount of damages sought in the cause of 
     action and the amount recovered.
       ``(IX) The experience, reputation, and ability of the 
     attorney.
       ``(X) The undesirability of the case.
       ``(XI) The nature and length of the attorney's professional 
     relationship with the client.
       ``(XII) The amounts recovered and attorneys' fees awarded 
     in similar cases.

       On page 170, between lines 21 and 22, insert the following:
       ``(9) Limitation on attorneys' fees.--
       ``(A) In general.--Notwithstanding any other provision of 
     law, or any arrangement, agreement, or contract regarding an 
     attorney's fee, subject to subparagraphs (C) and (D), the 
     amount of an attorney's contingency fee allowable for a cause 
     of action brought under paragraph (1) shall not exceed \1/3\ 
     of the total amount of the plaintiff's recovery (not 
     including the reimbursement of actual out-of-pocket expenses 
     of the attorney).
       ``(B) Determination by court.--The last court in which the 
     action was pending upon the final disposition, including all 
     appeals, of the action may review the attorney's fee to 
     ensure that the fee is a reasonable one. In determining 
     whether a fee is reasonable, the court may use the 
     reasonableness factors set forth in section 502(n)(11)(C).
       ``(C) Equitable discretion.--A court in its discretion may 
     decrease the amount of an attorney's fee determined under 
     this paragraph as equity and the interests of justice may 
     require.
       ``(D) No preemption of stricter state law.--Subparagraph 
     (A) shall not apply with respect to a cause of action under 
     paragraph (1) that is brought in a State that has a more 
     restrictive law with respect to the amount of an attorney's 
     contingency fee that may be incurred for the representation 
     of a participant or beneficiary (or the estate of such 
     participant or beneficiary) who brings such a cause of action 
     than the limitation on such fee under subparagraph (A).''

  Mr. WARNER. I ask for the yeas and nays on the amendment, as 
modified.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  Mr. WARNER. Mr. President, it will be voted on whenever the managers 
desire.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. GREGG. Mr. President, I ask unanimous consent that the following 
Members be recognized this evening: Senator DeWine, 15 minutes, with 
the time equally divided, on class actions; Senator Grassley for 30 
minutes, with the time equally divided, on customs fees and other 
matters; Senator Santorum for 30 minutes, with the time equally 
divided, on the Born Alive Infant Protection Act; Senator Brownback, 1 
hour equally divided on a germline genetic amendment.
  Mrs. BOXER. I ask my friend to repeat the Santorum amendment.
  Mr. GREGG. Born Alive Infant Protection Act.
  Mrs. BOXER. The Born Alive Equal Protection----
  Mr. GREGG. Born Alive Infant Protection Act.
  I presume it passed the House.
  Mr. KENNEDY. On that there will be an objection to a time limit.
  The PRESIDING OFFICER. Objection is heard.
  Mr. GREGG. Why don't we begin with the DeWine amendment for 15 
minutes, followed by the Grassley amendment for 30 minutes, and we will 
work on the rest.
  The PRESIDING OFFICER. Is there objection?
  Mr. KENNEDY. Reserving the right to object, and I do not intend to 
object, I appreciate what the Senator from New Hampshire is attempting 
to do. We have every inclination to support that proposal up to this 
point, but we reserve possible second-degree amendments and a tabling 
motion. We do not intend at this time to exercise those until we see 
the amendments, but we are going to operate on a good faith measure.
  We are thankful for the leadership of the Senator from New Hampshire 
proceeding with those first two.
  There are some others we might be able to get a time agreement on, as 
well, if the Senator wants to mention them.
  Mr. GREGG. Of course, at this time we cannot proceed past the 
Santorum amendment until we get an agreement on that. At least I renew 
my request subject to the reservations of the Senator from 
Massachusetts, to which I have no objection.
  The PRESIDING OFFICER. Is there objection to the unanimous consent 
request, as modified, for consideration of the amendments of Senators 
DeWine and Grassley?
  Without objection, it is so ordered.


                           Amendment No. 842

           (Purpose: To limit class actions to a single plan)

  Mr. DeWINE. Mr. President, I have an amendment at the desk.

[[Page 12345]]

  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Ohio [Mr. DeWine] proposes an amendment 
     numbered 842.

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

       On page 171, between lines 14 and 15, insert the following:

     SEC. 303. LIMITATION ON CERTAIN CLASS ACTION LITIGATION.

       (a) ERISA.--Section 502 of the Employee Retirement Income 
     Security Act of 1974 (29 U.S.C. 1132), as amended by section 
     302, is further amended by adding at the end the following:
       ``(o) Limitation on Class Action Litigation.--
       ``(1) In general.--Any claim or cause of action that is 
     maintained under this section in connection with a group 
     health plan, or health insurance coverage issued in 
     connection with a group health plan, as a class action, 
     derivative action, or as an action on behalf of any group of 
     2 or more claimants, may be maintained only if the class, the 
     derivative claimant, or the group of claimants is limited to 
     the participants or beneficiaries of a group health plan 
     established by only 1 plan sponsor. No action maintained by 
     such class, such derivative claimant, or such group of 
     claimants may be joined in the same proceeding with any 
     action maintained by another class, derivative claimant, or 
     group of claimants or consolidated for any purpose with any 
     other proceeding. In this paragraph, the terms `group health 
     plan' and `health insurance coverage' have the meanings given 
     such terms in section 733.''.
       ``(2) Effective date.--This subsection shall apply to all 
     civil actions that are filed on or after January 1, 2002.''.
       (b) RICO.--Section 1964(c) of title 18, United States Code, 
     is amended--
       (1) by inserting ``(1)'' after the subsection designation; 
     and
       (2) by adding at the end the following:
       ``(2)(A) No private action may be brought under this 
     subsection, or alleging any violation of section 1962, where 
     the action seeks relief concerning the manner in which any 
     person has marketed, provided information concerning, 
     established, administered, or otherwise operated a group 
     health plan, or health insurance coverage in connection with 
     a group health plan. Any such action shall only be brought 
     under the Employee Retirement Income Security Act of 1974. In 
     this paragraph, the terms `group health plan' and `health 
     insurance issuer' shall have the meanings given such terms in 
     section 733 of the Employee Retirement Income Security Act of 
     1974.
       ``(B) Subparagraph (A) shall apply to private civil actions 
     that are filed on or after January 1, 2002.''.

  Mr. DeWINE. Mr. President, I allowed the clerk to read because I 
wanted my colleagues to hear the essence of the amendment. It is a very 
simple amendment.
  My amendment in a very rational way limits class action suits that 
could be filed as a result of this bill. The goal of the patient 
protection legislation under consideration, both the McCain-Kennedy 
bill and the Frist-Breaux-Jeffords bill, is, of course, to protect 
patients. We cannot be unmindful of the cost. Obviously, we have to be 
concerned about the cost, and we have to worry if any parts of this 
bill do in fact drive up the cost because ultimately this will impact 
how many employers do in fact offer health insurance. It is something 
with which we have to be concerned.
  I believe my amendment offers a very simple way to curtail some of 
these increased costs. The problem is that the underlying bill will 
increase the cost of health care because the bill currently contains no 
language to limit the scope of class action lawsuits. This very 
possibility could lead to increases in the filing of onerous, 
burdensome, costly class action suits.
  My amendment ensures that class action lawsuits are used in a very 
responsible way. I think my colleagues would agree that class actions 
can be very effective and can be efficient and can be a valuable tool 
to achieve justice.
  As we also know, unfortunately, these suits sometimes are subject to 
abuse. That is why I believe we need to limit the target of these class 
actions. That is what our amendment does.
  The reality is that our amendment is needed. Let me explain for a 
moment what our amendment does and then talk about what it does not do. 
Our amendment permits a class action to be filed with regard to the 
HMO, in regard to a plan, as long as we are only dealing with one 
company and the employees of that specific company. It says we cannot 
go beyond that.
  The reality is that within every company there exists unique 
relationships between the company, the employees, and the health care 
plans. Because of that, it is impossible to compare different companies 
that happen to offer similar health care plans. The fact is that every 
company negotiates every contract differently. There may be 
similarities. Every situation is, obviously, different.
  Now, at the same time, employees within the same company, with the 
same health care plan, who suffer the same way as a result of being 
denied entitled benefits, should have the right to band together to 
form a class and to file suit. That is why our amendment would 
recognize class actions within one company against one plan.
  Our language essentially says this: One employer, one health care 
plan, one class action suit. It is that simple.
  Here is how our amendment works if adopted. Suppose Ford Motor 
Company offers its employees the hypothetical Aetna Health Care Plan A. 
General Motors has this plan. Assume, also, that Chrysler has the same 
plan. Now, if employees at Ford have reason to band together in a class 
action against Aetna because they all believe they suffered harm 
because of the same denial in entitled benefits, they can go ahead 
under our amendment and do that. Similarly, if employees at GM or 
Chrysler also believe they have suffered as a result of denial of the 
same benefits, GM and Chrysler employees can file their own class 
actions against Aetna. But employees at Ford, GM, and Chrysler can't 
join together in one suit against the health care provider.
  This means class actions would be limited to employees within one 
company against one health care plan. Ultimately, we need this because 
abuse of class action lawsuits is not a road to assuring access to 
quality health care. If we want the bill before the Senate not to add 
unnecessary litigation and costs, I encourage my colleagues to adopt 
this amendment.
  I reserve the remainder of my time.
  I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is not a 
sufficient second.
  Mr. McCAIN. I repeat the request for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is not a 
sufficient second.
  Mr. REID. If the Senator from Ohio wishes the yeas and nays, we would 
be happy to give those to him with the agreement that we will vote 
tomorrow.
  Mr. DeWINE. I renew my request for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. Are Senators prepared to yield back time on 
the amendment?
  Mr. DeWINE. I believe we have an understanding to reserve several 
minutes tomorrow morning for summation.
  Mr. EDWARDS. Mr. President, there are a couple of issues--and I have 
just seen this amendment--a couple of issues raised immediately.
  One, the entire Patients' Bill of Rights is about treating everybody 
the same. This, of course, carves out a special treatment for HMOs on 
the issue of accountability.
  Second, this amendment makes a special exception under RICO for HMOs 
and under rules of procedure.
  Third, it has been some time since I looked at the rules, I confess, 
but I seem to recall under class action law, rule 23 of the Federal 
Rules of Civil Procedure, there is a numerosity requirement, that you 
have to have a sufficient number of employees involved to satisfy the 
class action requirement, and I am not sure under the language the 
Senator has drafted that would be possible because I believe, if I 
understand the Senator's amendment correctly, he has limited it to one 
employer for purposes of class actions.
  Mr. DeWINE. Obviously, the amendment does not change what the rules 
say as far as the number of people required for a class action. The 
Senator

[[Page 12346]]

is correct; it does limit it to one company.
  Mr. EDWARDS. I thank the Senator for his answer.
  There is at least a serious question about that and we would need to 
go back and look. Under the Class Action Rules of Civil Procedure, it 
is my recollection there is a numerosity requirement that means a class 
has to be of sufficient size to be able to be certified as a class 
action, and I am not certain, if you limit the actions to one employer, 
that you don't effectively eliminate the possibility of a class action 
because that requirement cannot be met.
  I confess to the Senator, that is from memory, and I will have to go 
back and look to be certain.
  I have concerns about the fundamental question that the principle of 
this legislation is that we treat HMOs, for accountability purposes, as 
everyone else. And the notion of doing something specifically to 
protect them from class actions and to limit class actions and to limit 
the RICO statute is something that would violate that principle of 
which I would want my colleagues to be aware.
  I yield the floor.
  The PRESIDING OFFICER. Do the Senators yield back time?
  Mr. DeWINE. I inquire, how much time remains?
  The PRESIDING OFFICER. The Senator has 2 minutes remaining.
  Mr. DeWINE. I will respond to my colleague and I appreciate his 
comments. He is closer to the courtroom in time than I am, and it has 
been many years since I have practiced law.
  What this comes down to is that we are creating new opportunities for 
lawsuits, obviously, in this bill. What we are about is a balancing 
test, a balancing question. It is a matter of public policy. We have to 
decide. As we create new causes of action, new opportunities to file 
lawsuits, I think it is legitimate to look around and say: How 
expansive do we want to allow class actions to be under this new cause 
of action?
  It seems to me language we have included, which is basically--
basically, I say--what was in the Frist bill originally, is a rational 
way to do it. It doesn't ban class actions but basically says we are 
going to limit them. I think it is a balancing test and Members are 
going to have to make their own decision whether they think it is worth 
providing people with the opportunity to have nationwide class actions. 
Candidly, with the tremendous cost this is probably going to incur, 
that ultimately is going to be paid and ultimately going to drive up 
health care costs. I think Members have to make that decision.
  I yield the remainder of my time.
  The PRESIDING OFFICER. The Senator from Ohio yields the remainder of 
his time. The Senator from North Carolina has 10 minutes 48 second.
  Mr. EDWARDS. If I may respond briefly to the comments of my 
colleague, the one issue he did not address, at least in his last 
answer--he may have discussed it earlier--is the issue of civil RICO. I 
believe I am correct in saying there are some State medical societies 
that have pending actions against them, civil RICO actions against 
HMOs, where they believe, obviously, the requirements of that statute 
have been met and there have been improper and illegal activities by 
the HMOs. Particularly as we go forward, if any State medical society 
believes those problems continue to exist, they may want to avail 
themselves of the civil RICO statute, a law that exists in part for 
that purpose.
  Again, the trouble would be we are carving out special treatment for 
HMOs. Having said that, I do not disagree with the fundamental 
principle that is part of this process; it is public policymaking. We 
hope to balance the interests on both sides. I think that notion makes 
sense. My concern is we are carving out the HMOs from this particular 
statute when we are not carving anyone else out from this particular 
statute.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. Just to respond to my colleague--and I do appreciate his 
comments about RICO--again it is a balancing question each Member is 
going to have to decide.
  Just to clarify things, I want to make it clear, the way this is 
drafted, we do not affect any pending issues, so those suits would not 
in any way be affected.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from North Carolina.
  Mr. EDWARDS. Mr. President, I yield my time?
  Mr. DeWINE. I wonder if I may inquire whether or not there was a 
unanimous consent as far as the vote tomorrow morning at any time?
  The PRESIDING OFFICER. There was no consent.
  The Senator from Nevada.
  Mr. REID. Senator Daschle has indicated we are going to come in at 9 
o'clock in the morning and start voting. The first vote will be 15 
minutes, and if there are other votes stacked, which I am confident 
there will be, there will be 10-minute votes on whatever is debated 
tonight. There is 10 minutes for the subsequent votes. There would be 4 
minutes between each vote to debate.
  Mr. DeWINE. Would that include the first vote?
  Mr. REID. Yes.
  Mr. DeWINE. So we would have in the morning then 4 minutes evenly 
divided prior to the first vote?
  Mr. REID. That is right.
  Mr. DeWINE. I yield the floor and thank my colleague from Nevada.
  Mr. EDWARDS. We yield the remainder of our time.
  The PRESIDING OFFICER. All time has been yielded back. Under the 
unanimous consent agreement, the Senator from Iowa, Mr. Grassley, is 
recognized.
  Mr. GRASSLEY. Mr. President, I yield myself such time as I might 
consume.
  The PRESIDING OFFICER. Is the Senator sending an amendment to the 
desk?


                           Amendment No. 845

  Mr. GRASSLEY. I send an amendment to the desk and ask for its 
immediate consideration.
  The legislative clerk read as follows:

       The Senator from Iowa [Mr. Grassley] proposes an amendment 
     numbered 845.

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

   (Purpose: To strike provisions relating to customs user fees and 
                        Medicare payment delay)

       On page 179, strike lines 1 through 14.

  Mr. GRASSLEY. Mr. President, I think three times during the debate on 
this bill I have been trying to make the point that bringing this bill 
to the floor usurped the consideration of the Senate Finance Committee 
of two provisions that are in the bill and another provision that ought 
to be in the bill that is not in the bill. My amendment today deals 
with striking sections 502 and 503. It is another way of my saying, as 
I tried to in an amendment 2 days ago on this legislation, to the 
Finance Committee, that people writing this legislation ought to keep 
their hands off subject matter that comes within the jurisdiction of 
the Senate Finance Committee. If people are writing a piece of 
legislation that comes out of Health, Education, Labor, they ought to 
find sources of revenue out of programs within their own jurisdiction 
to fund bills that they think up, rather than robbing another 
committee. That is basically what has happened.
  I am opposed to both provisions on jurisdictional grounds because 
they are within the control of the Finance Committee, not the Health, 
Education, Labor, and Pensions Committee. But I also want to make it 
very clear it is not just jurisdictional, I also have concerns about 
what it does to policy, dealing with customs on the one hand and 
Medicare on the other hand. I want to review each of these in turn.
  Section 502 of the bill extends the customs user fees from the year 
2003 to 2011. This generates $7 billion over 8 years of the total 
revenue that it takes to fund this piece of legislation.
  When Congress authorized these customs user fees, the avowed purpose 
was

[[Page 12347]]

to underwrite the costs of customs commercial operations. But today in 
this bill, the fees are not being used for customs. They are being used 
to offset the cost of the Patients' Bill of Rights to the tune of $7 
billion. I think this is unacceptable and violates the comity that one 
committee ought to have towards the other.
  It also is unacceptable because when you have constituents who pay 
customs user fees for the purpose of having an efficient and effective 
operation of the Customs Service, so you can enter this country in an 
expeditious way, for those fees not to be used for what they were 
intended--for expedited entry to the country, to police illegal entry 
to the country, to police illegal drugs coming into the country, 
generally to make the customs agency's personnel more efficient and 
better able to do their job so the United States can be a sovereign 
nation protecting its borders the way it should--if these fees are 
extended, and I want to emphasize the word ``if,'' they should be 
extended in a thoughtful way, not as some budget trick to make the 
costs of this bill fit within the confines of the Federal budget.
  I am not the only one who thinks so. I have received numerous letters 
from companies, from associations that are very concerned about this--
Liz Claiborne, Inc., the National Association of Foreign Trade Zones, 
the Joint Industry Group, the National Retail Federation, the American 
Electronics Association, and also a memo from the U.S. Customs Service. 
They are all raising concerns because these are folks who pay this 
customs user fee, a fee that is meant to pay for bringing things into 
the country. They believe since the Customs Service is so outdated, so 
slow moving, not working in an expeditious way, this revenue ought to 
be used for the improvements in the customs operation that were 
anticipated when these fees were put in place. I ask unanimous consent 
these letters and memos be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                           Liz Claiborne Inc.,

                                  North Bergen, NJ, June 20, 2001.
     Hon. Charles E. Grassley,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
       Dear Senator Grassley. We write in opposition to a 
     provision in the Patients' Bill of Rights (S. 1052) that 
     would extend the merchandise processing fee, or ``mpf,'' for 
     eight additional years. This is a trade-related measure, a 
     user fee levied against importers like ourselves, that has no 
     place in this legislation. We ask you to support efforts to 
     delete the provision entirely.
       First by way of background, the merchandise processing fee 
     is an ad valorem fee levied against each import transaction, 
     or ``entry.'' When it was passed 15 years ago, it was done so 
     with the avowed purpose of underwriting the costs of 
     commercial operations at the US Customs Service. In fact, 
     however, it has never been used for that purpose. Instead, 
     proceeds have been diverted to the general fund and act as a 
     revenue source to balance the costs of other governmental 
     programs. As of FY2001, the trade community has paid nearly 
     $7.2 billion for merchandise processing, an amount far 
     exceeding Customs' commercial operations budget.
       In truth, the fee is really a tax on US imports and, from 
     the beginning, we have objected strongly. It has been illegal 
     under GATT and then World Trade Organization (WTO) rules, 
     although the federal government has indulged in the fiction 
     that it is a ``user fee.'' Now, under the terms of S. 1052, 
     all pretense has been dropped and it is being offered as an 
     offset to the costs of the Patients' Bill of Rights.
       The fee is indeed due for renewal by 2003 and it is the 
     trade communities' intention to seek its termination. While, 
     before, the nation was experiencing a serious deficit, the 
     reasons for its passage have since disappeared. Now, it is 
     simply a tax on American citizens who buy imported products, 
     whose price is inflated by the mpf. It is unconscionable to 
     continue to tax Americans in this manner and we intend to 
     seek repeal in the appropriate committee jurisdiction.
       In the meantime, however, we ask that you assist us in 
     removing the mpf funding from the Patients' Bill of Rights. 
     The merchandise processing fee has no place in this debate. 
     The fee will not be viewed on the merits in these 
     proceedings, but is instead being used--cynically--as a 
     ``pay-for'' a totally unrelated program.
           Sincerely,

                                                  Frank Kelly,

                               Vice President, International Trade
     Compliance and Government Affairs.
                                  ____

                                              National Association


                                       of Foreign-Trade Zones,

                                    Washington, DC, June 15, 2001.
     Hon. Charles Grassley,
     Hart Senate Office Building,
     Washington, DC.
       Dear Senator Grassley. The National Association of Foreign-
     Trade Zones (NAFTZ) has learned that S. 872, Sec. 602 the 
     ``Bipartisan Patient Protection Act'' provides for the 
     extension of the Merchandise Processing Fee (MPF) through 
     2011. Congress established the fee to offset the cost of the 
     commercial operations of the U.S. Customs Service. Not only 
     does the proposed legislation continue the practice of 
     allocating the MPF to the general fund of the U.S. Treasury 
     with no relationship to the purpose of the fee, it completely 
     eliminates the relationship of the fee to the Customs 
     Service. We have serious reservations as to whether this is 
     permissible through the General Agreement on Tariffs and 
     Trade, and the World Trade Organization.
       The NAFTZ is not opposed to the imposition of a fee for 
     services rendered. We do believe, however, that any such fee 
     must correlate to a discernible cost associated with the 
     service provided. We are concerned that at a time when 
     Congress is struggling to find the necessary funding to cover 
     the cost of the modernization of the Service, that funds 
     already designated by Congress for that purpose are being 
     diverted.
       Since the purpose of the MPF, as established by Congress, 
     is to fund the commercial operations of the U.S. Customs 
     Service, we are strongly opposed to any extension of the MPF 
     without designating the revenue to that intended purpose and 
     we respectfully request that you drop the merchandise 
     processing fee extension from S. 872.
       Thank you for your attention and consideration of our 
     views. If you have any questions, please feel free to contact 
     me.
           Sincerely,
                                                Randy P. Campbell,
     Executive Director.
                                  ____



                                         Joint Industry Group,

                                    June 20, 2001, Washington, DC.
     Hon. John McCain,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
       Dear Senator McCain. The Joint Industry Group (JIG) 
     expresses its opposition to a provision in the Bipartisan 
     Patient Protection Act (S. 1052) that would automatically 
     extend the U.S. Customs user fee from 2003 to 2011 (Sec. 
     502). This 8-year extension would remove any near-term 
     opportunity to debate whether the fee should be continued or 
     whether an extension could be earmarked specifically for 
     modernizing U.S. Customs operations.
       JIG is a coalition of more than 160 companies, trade 
     associations, professionals and businesses actively involved 
     in international trade. We both examine and reflect the 
     concerns of the business community relative to current and 
     proposed international trade-related policies, actions, 
     legislation, and regulations. We undertake to improve 
     policies and procedures through dialogue with government 
     agencies and the Congress. The Joint Industry Group 
     represents over $350 billion in trade.
       JIG members account for millions of dollars paid yearly in 
     merchandise processing fees (MPF). Every year, Customs 
     collects over $1 billion from companies importing goods into 
     the United States. Additionally, companies are burdened by 
     administrative costs associated with the fee, since Customs 
     imposes complex reporting and accounting requirements on 
     companies in the course of collecting fee payments. All this 
     is occurring at a time when tariffs on products are declining 
     and approaching zero.
       If the Customs Service is to continue collecting this user 
     fee it MUST directly fund improvements to Customs processing, 
     specifically the Automated Commercial Environment (ACE) and 
     other U.S. Customs initiatives that are greatly needed to 
     improve the trade process. Improving Customs' ability to 
     handle trade will become more critical as the amount of 
     commerce entering the United States is expected to continue 
     its double-digit rate of growth. While Section 502 of S. 1052 
     does not earmark user fees for health care purposes, it does 
     use the fee as de facto justification for the revenue 
     neutrality of the bill. JIG is greatly concerned that this 
     approach will prevent user fees from being applied to the 
     commercial operations of the U.S. Customs Service for which 
     they are intended.
       Use of the fee to offset the revenue impact of S. 1052 
     could also increase potential for a WTO dispute. In the late 
     1980's, a GATT panel found that the user fee was GATT-illegal 
     because it was being collected in amounts exceeding the cost 
     of Customs processing. While the U.S. addressed that problem 
     by placing certain caps on the fee, it was clear from the 
     panel finding that linkage of the fee to the cost of Customs 
     commercial operations is of seminal importance to the 
     question of GATT legality. If our trading partners believe 
     Customs user fees are being used to fund health-care related 
     goals, another GATT challenge is virtually certain to surface 
     in the WTO.
       For the reasons cited above, JIG would have no choice but 
     to support such a challenge. It is clear that the proposed 
     action in

[[Page 12348]]

     S. 1052 violates the WTO provisions to which the United 
     States is a signatory.
       We therefore urge that the user fee extender be removed 
     from S. 1052. We need the opportunity to debate the merits of 
     this fee when it comes up for renewal in 2003. If you have 
     any questions about our views on this issue or wish to 
     discuss the matter further, please contact Alan Atkinson at 
     (202) 466-5490. Thank you for your consideration.
           Sincerely,
                                                    Ronald Schoof,
     Chairman, Joint Industry Group.
                                  ____

                                       National Retail Federation,


                                                Liberty Place,

                                    Washington, DC, June 25, 2001.
     Hon. Chuck Grassley,
     Ranking Member, U.S. Senate Committee on Finance, Dirksen 
         Bldg., Washington, DC.
       Dear Senator Grassley. The National Retail Federation (NRF) 
     was surprised to learn that section 502 of the Bipartisan 
     Patient Protection Act (S. 1052) contains an eight-year 
     extension of the Customs Merchandise Processing Fee (MPF). 
     The MPF is an administrative fee leveled on imports into the 
     United States, through which U.S. retailers and other 
     importers pay hundreds of millions of dollars every year.
       NRF and the U.S. retail industry object most strongly to 
     inclusion of this provision and, for the following reasons, 
     we urge that the provision is stricken from the bill.
       The Senate Finance Committee, which has jurisdiction over 
     the MPF and other customs issues, was not consulted about 
     this provision in S. 1052 and, has had no opportunity to 
     consider the merits of extending the fee as currently 
     structured.
       The MPF was created to offset the administrative costs of 
     the U.S. Customs Services' commercial operations, and any 
     attempt to use it for other purposes, as this bill would do, 
     is against the rules of the World Trade Organization.
       The Finance and Ways and Means Committees have been working 
     for some time with Customs and the importing community on 
     renewing the MPF in a way that would ensure it be used for 
     its proper and intended function--for commercial operations, 
     including customs modernization funding.
       It is unacceptable that extension of the MPF has been 
     slipped into a health bill without the approval of the 
     Committee of jurisdiction or the knowledge of those in the 
     private sector that will be most directly affected as a 
     result. At the same time, we are struggling to provide 
     Customs Service with sufficient funds for a new computer 
     system to allow Customs to modernize its operations and 
     protect our nation's borders. If this provision in S. 1052 is 
     allowed to stay, it will be impossible for the Senate Finance 
     Committee to restructure the MPF program in the way it was 
     intended--to finance the costs of Customs' operations. 
     Accordingly, we ask for your help in insisting on the removal 
     of this provision when S. 1052 comes to the full Senate for 
     consideration.
       The National Retail Federation (NRF) is the world's largest 
     retail trade association with membership that comprises all 
     retail formats and channels of distribution including 
     department, specialty, discount, catalog, Internet and 
     independent stores. NRF members represent an industry that 
     encompasses more than 1.4 million U.S. retail establishments, 
     employs more than 20 million people--about 1 in 5 American 
     workers--and registered 2000 sales of $3.1 trillion. NRF's 
     international members operate stores in more than 50 nations. 
     In its role as the retail industry's umbrella group, NRF also 
     represents 32 national and 50 state associations in the U.S. 
     as well as 36 international associations representing 
     retailers abroad.
           Sincerely,
                                                    Steve Pfister,
     Senior Vice President, Government Relations.
                                  ____



                                                          AeA,

                                    Washington, DC, June 25, 2001.
     Hon. Chuck Grassley,
     Hart Senate Office Building,
     Washington, DC.
       Dear Senator Grassley. AeA, the nation's largest high-tech 
     trade association, is opposed to the provision (section 502) 
     in the Bipartisan Patient Protection Act (S. 1052) that would 
     extend the application of the U.S. Customs user fee from 
     September 30, 2003, to September 30, 2011.
       The U.S. importing community currently has full expectation 
     that this import tax will expire as scheduled in 2003. As the 
     leading U.S. importing sector, the U.S. high-tech sector 
     would be particularly impacted by such a tax increase. Our 
     member companies already pay tens of millions of dollars 
     annually in customs user fees. In addition, there are 
     additional administrative costs associated with the fee, 
     since customs authorities impose complex reporting and 
     accounting requirements on importers in the course of 
     collecting the user fee payments. An unexpected, eight-year 
     extension of the user fee, with its associated administrative 
     costs, would be an unwelcome and unnecessary additional cost 
     burden on our industry.
       While section 502 of S. 1052 does not earmark user fees for 
     health care purposes, it does use the fee as de facto 
     justification for the revenue neutrality of the bill. We 
     believe this provision introduces the potential that the U.S. 
     Customs user fee will again be found contrary to U.S. 
     international obligations under the WTO. In the late 1980's, 
     a GATT panel found that the user fee was GATT-illegal because 
     it was being collected in amounts exceeding the cost of 
     customs services rendered. While the United States addressed 
     that problem by placing certain caps on the fee, it was clear 
     from the panel finding that linkage of the fee to the cost of 
     customs commercial operations is of seminal importance to the 
     question of GATT legality. If our trading partners believe 
     customs user fees are being used to achieve health-care 
     related goals, another GATT challenge could well surface in 
     the WTO.
       For the reasons stated, AeA urges you to remove the customs 
     user fee extender from S. 1052. This Patient Protection Act 
     is an inappropriate forum for any consideration of extending 
     the custom user fee. If you have any questions about our 
     views on this issue or wish to discuss the matter further, 
     please contact me at 202-682-4423.
           Sincerely,
                                                      Tim Bennett,
     AeA Senior Vice President International.
                                  ____


 [From the Executive Office of the President, Office of Management and 
                         Budget, June 21, 2001]

                   Statement of Administration Policy


    (This statement has been coordinated by OMB with the concerned 
                               agencies.)

       S. 1052--Bipartisan Patient Protection Act. (Sens. McCain 
     (R) AZ, Kennedy (D) MA, Edwards (D) NC) The President 
     strongly supports passage of a patients' bill of rights this 
     year and has been working with members of both parties since 
     the first week of the Administration to forge a compromise. 
     Congress has been divided on this issue for far too long at 
     the expense of patients and their families. The President 
     strongly urges Congress to pass a strong patients' bill of 
     rights this year that provides meaningful protections for 
     patients, not a windfall for trial lawyers or a threat to 
     Americans' ability to obtain and afford quality health care. 
     On February 7, 2001, the President transmitted to Congress 
     his principles for a bipartisan patients' bill of rights and 
     urged Congress to move quickly on this important issue.
       The President's principles called for passage of a 
     patients' bill of rights that ensures all Americans enjoy 
     strong patient protections, including: access to emergency 
     room and specialty care; direct access to obstetricians, 
     gynecologists, and pediatricians; access to needed 
     prescription drugs and approved clinical trials; access to 
     health plan information; a prohibition of ``gag clauses''; 
     consumer choice provisions; and continuity of care 
     protections. The President also recognizes, however, that 
     many States have passed strong patient protection laws 
     already, some of which have been in force for over a decade. 
     To the extent possible, a Federal patients' bill of rights 
     should give deference to these effective State laws.
       The President's principles emphasized the importance of 
     providing patients who have been denied medical care with the 
     right to a fair, prompt, and independent medical review, 
     which will ensure that disputes are resolved quickly and 
     inexpensively and that patients receive the quality care they 
     deserve.
       The President stated that only after this independent 
     review decision is rendered should we resort to the costlier, 
     time-consuming remedy of litigation in Federal courts to 
     ensure that health plans are held liable for wrongful 
     decisions.
       The President's principles also reminded Congress of the 
     necessity of avoiding unnecessary and frivolous lawsuits, 
     which will only serve to drive up costs and leave more 
     individuals without insurance coverage. S. 1052 will 
     significantly increase health insurance premiums and the 
     number of uninsured. According to the Congressional Budget 
     Office, health insurance premiums under S. 1052 as originally 
     drafted would increase by over 4 percent. If the effects of 
     litigation risk on the practice of medicine and of the 
     reduced ability of health plans to negotiate lower rates were 
     included, CBO's estimated cost impact could be much higher, 
     by 4-5 percent or more. This is in addition to the estimated 
     10-12 percent premium increases employers are already facing 
     in 2001. Further, leading economists have predicted that 
     employers drop coverage for appropriately 500,000 individuals 
     when health care premiums increase by 1 percent. According to 
     these estimates, S. 1052 could cause at least 4-6 million 
     Americans to lose health coverage provided by their 
     employers.
       The President is encouraged by efforts in the Senate, like 
     those of Senators Frist, Breaux, and Jeffords, to develop a 
     common sense compromise that forges a middle ground on this 
     issue and meets the President's principles.
       While the President strongly supports a comprehensive and 
     enforceable patients' bill of rights and has been working 
     with members of both parties to enact legislation this year, 
     he believes that S. 1052 would encourage costly and 
     unnecessary litigation that would seriously jeopardize the 
     ability of many Americans to afford health care coverage.
       The President objects to the liability provisions of S. 
     1052. The President will veto the

[[Page 12349]]

     bill unless significant changes are made to address his major 
     concerns. In particular, the serious flaws in S. 1052 
     include:
       --S. 1052 circumvents the independent medical review 
     process in favor of litigation. The President believes that 
     patients should be given care first--litigation should be the 
     last resort. Patients should exhaust the medical review 
     process first, allowing doctors, not trial lawyers, to make 
     decisions about medical care.
       --S. 1052 jeopardizes health care coverage for workers and 
     their families by failing to avoid costly litigation. S. 1052 
     overturns more than 25 years of Federal law that provides 
     uniformity and certainty for employers who voluntarily offer 
     health care benefits for millions of Americans across the 
     country. The liability provisions of S. 1052 would, for the 
     first time, expose employers and unions to at least 50 
     different, inconsistent State-law standards. The result will 
     inevitably be that employers and unions will be forced to pay 
     for different benefits from State to State, even within a 
     particular State, based on varying precedents set in State 
     courts and leading to inconsistent standards of care for 
     patients. Further, S. 1052 imposes no limitations on State 
     court damages, and it is not clear whether existing State-law 
     caps would apply to the broad, new causes of action in State 
     courts that S. 1052 creates.
       S. 1052 also would allow causes of action in Federal court 
     for a violation of any duty under the plan, creating open-
     ended and unpredictable lawsuits against employers for 
     administrative errors. These new federal claims do not have 
     any limitations on the amount of noneconomic damages, 
     creating virtually unrestrained damage awards that are 
     limited only by an excessive $5 million cap on punitive 
     damages.
       Moreover, S. 1052 would subject employers and unions to 
     frequent litigation in State and Federal court under a vague 
     ``direct participation'' standard, which would require 
     employers and unions to defend themselves in court in 
     virtually every case against allegations that they ``directly 
     participated'' in a denial of benefits decision. Because such 
     determinations are inherently fact-specific, any such 
     allegation will force a costly and time-consuming court 
     process and result in varying State interpretations of 
     ``direct participation,'' forcing employers to adhere to 
     different standards in every State.
       --S. 1052 fails to provide a fair and comprehensive remedy 
     to all patients. The President believes the new Federal law 
     should establish a comprehensive set of rights and remedies 
     for patients. S. 1052 instead encourages costly litigation by 
     providing no effective limitations on frivolous class action 
     suits and allows trial lawyers to go on fishing expeditions 
     to seek remedies under other Federal statutes.
       --S. 1052 subjects physicians and all health care 
     professionals to greater liability risk. S. 1052 would expand 
     liability for physicians and all health care professionals in 
     State courts well beyond traditional medical malpractice by 
     permitting new, undefined causes of action in State courts 
     for denials of medical benefits. This expanded litigation 
     against physicians and all health professionals will create 
     an opportunity to circumvent State medical malpractice caps 
     that may not apply to these new causes of action.
       --Extraneous User Fee Provision. The Administration objects 
     to inclusion in S. 1052 to an extraneous revenue-raising 
     provision (section 502), which extends for multiple years 
     Customs charges on transportation, passengers, and 
     merchandise arriving in the country.


                         Pay-As-You-Go Scoring

       S. 1052 would affect direct spending; therefore, it is 
     subject to the pay-as-you-go requirement of the Omnibus 
     Budget Reconciliation Act of 1990. OMB's preliminary scoring 
     estimate of the bill is under development.
                                  ____



                                         U.S. Customs Service,

                                    Washington, DC, June 20, 2001.

     Memorandum for James F. Sloan, Acting Under Secretary 
       (Enforcement).
     From: Acting Commissioner
     Subject: Pay-go Offset for the Patient Bill of Rights
       Congress will soon consider passage of the Patient Bill of 
     Rights. The Customs Service offers no opinion of the 
     legislation. However, we have concerns with the bill's 
     potential impact on future Customs appropriations. Section 
     502 of the bill would extend our collection of COBRA fees 
     from 2003 to 2011, but would use the revenue to offset the 
     cost of implementing this new legislation. Although we 
     support extending the collection of COBRA fees, any scoring 
     of the COBRA extension which would limit, in any way, the 
     ability to fund or offset Customs activities would likely 
     cause a critical funding shortfall for the Customs Service.
       Section 502 of the bill states: Section 13031(j)(3) of the 
     Consolidated Omnibus Budget Reconciliation Act of 1985 (19 
     U.S.C. 58c(j)(3)) is amended by striking ``2003 and inserting 
     2011, except that the fees may not be charged under 
     paragraphs (9) and (10) of such subsection after March 31, 
     2006''.
       The COBRA fees collected by Customs are used both to 
     reimburse Customs appropriation for certain costs, such as 
     overtime compensation, and to offset a portion of the Customs 
     Service Salaries and Expenses Appropriation (S&E). As an 
     example, our FY 2001 collections will offset approximately $1 
     billion or almost 50 percent of Customs appropriation this 
     year. Authorizing a COBRA extension to offset costs for 
     something other than the Customs Service could negatively 
     impact our available funding. Additionally, the Merchandise 
     Processing Fee authorized in the COBRA is a fee that is paid 
     by importers for the processing of merchandise by the Customs 
     Service. Directing the funds collected from this fee for 
     something other than Customs operations could pose GATT 
     interpretation issues.
       While Customs supports the extension of the COBRA fees, we 
     also acknowledge that changes are warranted with the manner 
     in which we collect those fees. We intend to review this 
     issue in the near term.

  Mr. GRASSLEY. I want to speak specifically to what one company wrote:

       The merchandise processing fee has no place in this debate. 
     The fee will not be viewed on the merits in this proceeding, 
     but is instead being used--cynically--as a ``pay-for'' for a 
     totally unrelated program.

  Obviously, the totally unrelated program is the Patients' Bill of 
Rights that is before us.
  Our experience today--in other words, how we handle this issue of 
customs user fees today--will only hurt us in our deliberation of what 
ought to be done to expedite and make more efficient entry into our 
country. It is going to hurt us when that policy debate comes up 
sometime down the road--weeks, months, but sometime. Customs 
modernization is a very important priority.
  My point is that there are important Customs modernization issues 
that should no longer be ignored. Let's not have a rush to pay for this 
Patients' Bill of Rights today and blind us towards the real public 
policy questions we have on the Customs Service and their problems 
tomorrow.
  Are you concerned about drugs at our borders? Are you concerned about 
illegal transshipment of textiles, import restrictions on steel and 
lumber, and backup of trucks at our borders? If you vote for extending 
fees, there will be no committee consideration if Customs is using the 
fees for these or other Congressional priorities.
  I would like to tell you that extending these fees will definitely 
have an impact on what we are able to do or not to do about 
modernization of the Customs agency and its operations around the 
borders of our country, even in the interior of the country where we 
have Customs operations.
  I would like to read what the acting Customs Commissioner had to say 
about this. He wrote on June 20, this year:

       Any scoring which would limit in any way the ability to 
     fund or offset Customs activities would likely cause--

  And it is highlighted--

     a critical funding shortfall for the Customs Service.

  Experience a critical funding shortfall when you want to get in and 
out of Chicago with some Customs operations and people are complaining 
because it takes so long to get it done because of a shortage of 
personnel and not having the technical equipment that ought to be there 
to help efficient operation. Then you know that maybe you made the 
wrong decision when you took $7 billion out of Customs to do this.
  Also, I have a statement, which was submitted for the Record, from 
the President himself, dated June 2001, clearly opposing section 502 of 
the bill.
  I would like to raise one other issue, and that is it is not at all 
clear that using Customs user fees to offset revenue is consistent with 
the World Trade Organization rules.
  Think about that. We are making a decision to take $7 billion out of 
Customs user fees under the jurisdiction of the Senate Finance 
Committee, and we may be doing this in a way that does not meet our 
obligation under the World Trade Organization. Under that organization, 
Customs fees are to be used as payments for Customs services, not as a 
source of general revenue to the Federal Government.
  In a sense, as we would say to our constituents back home, you pay a 
gas tax, and we use the gas tax for transportation, to build highways. 
When people pay Customs fees, they pay those Customs fees for 
facilitating entry of product into the country and

[[Page 12350]]

the policing of that entry of product into the country. A fee levied 
for a certain purpose ought to be used for that purpose or it might 
violate the WTO because it should not be a source of general revenue 
any more than taking money from the gas tax and putting it into the 
general fund of the United States.
  Here is what the Customs Service writes on this issue.

       The merchandise processing fee is a fee that is paid by 
     importers for the processing of merchandise by the Customs 
     Service. Directing the funds collected from the fee for 
     something other than Customs' operations could pose GATT 
     interpretation issues.

  While it is not clear that a WTO case would arise or that a challenge 
would be successful, it seems to me that this is a warning bell that 
should certainly be heard.
  No Senator should vote against this motion to strike unless they are 
prepared to face the possibility of a WTO challenge and take 
responsibility accordingly.
  We should strike this provision from the bill. Before blindly 
supporting section 502, we should have time to consider its broader 
implications.
  I urge my colleagues to support this amendment to strike.
  Turning to the other provision of their bill that my amendment 
strikes, section 503, that would delay payments to Medicare contractors 
by one day thereby shifting $235 million in Medicare part B spending 
from fiscal year 2002 to fiscal year 2003 is simply a budget gimmick.
  I am troubled by this provision because it comes within the 
jurisdiction of the Senate Finance Committee and also because we are 
trying to work to make Medicare a better program, not do things to harm 
it.
  First, I point out to my colleagues that, again, the Finance 
Committee has jurisdiction, not the Committee on Health, Education, 
Labor and Pensions. It is the Finance Committee that authorizes and 
overseas the Medicare Program and the Federal agency that runs it, now 
known as the Center for Medicare Services.
  It is the Finance Committee and not the Health, Education, Labor, and 
Pensions Committee that is in the best position to know how changes in 
the Medicare Program, such as this one-day payment delay in section 503 
of this bill that will affect our senior citizens, will affect our 
health care providers and will affect the integrity of the Medicare 
trust fund.
  With all due respect, when it comes to Medicare and Medicaid and 
other Federal entitlement programs, it seems terribly ridiculous to 
ignore the committee that has the very expertise in these programs, 
meaning the Senate Finance Committee.
  The second reason that I am proposing to strike the Medicare payment 
delay in section 503 of the bill is that the delay itself, which may 
not seem serious to some, could actually have consequences for Medicare 
contractors and providers.
  Delaying payments by one day and moving them into the next fiscal 
year just to finance this bill is fuzzy math, to say the least. But it 
unfairly subjects the already fragile Medicare Program and its health 
care contractors to accounting disruptions and to administrative 
uncertainties.
  Medicare providers already have it hard enough just dealing with the 
Medicare Program in the first place. They are overwhelmed by paperwork, 
confused by conflicting regulations, and frequently left hearing that 
``the check is in the mail.''
  Can you imagine the Federal Government saying ``the check is in the 
mail'' when it comes to timely payments of their reimbursements?
  Subjecting those providers to any additional delay, even if just for 
a short period of time, is simply unfair. We need to make it easier for 
providers to do business with Medicare.
  Think about it. No one wants to do business with late payers, and 
health care providers are no exception.
  Think about it for a minute. No one wants to do business with late 
payers, and health care providers are no exception. We should not be 
giving Medicare an additional opportunity to delay for one minute--let 
alone a longer period of time--their obligations to promptly pay 
providers.
  For the last 3 months, Senator Baucus and I have been working hard to 
develop a Medicare reform proposal that strengthens and improves the 
program by adding prescription drug coverage and making the entire 
benefit package more modern.
  Part of this bipartisan effort also includes an initiative to make 
Medicare more responsive and accountable to both seniors and providers. 
We want to send a message to providers that they will be treated fairly 
and professionally by Medicare.
  Unfortunately, the delay provision in section 503 does exactly the 
opposite. It sends an entirely wrong message and undercuts our 
bipartisan effort to make Medicare a better business partner for 
today's providers.
  For these reasons, I cannot support the inclusion of section 503 in 
this bill. Neither 502 nor 503 belong in this bill. They are both 
outside the jurisdiction of the Health, Education, Labor Committee and 
a long way away from the subject of this debate, which is patients' 
rights. Both sections should be stricken from this bill entirely.
  Consequently, I urge my colleagues to support my amendment.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Who yields time in opposition?
  The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I will take just a few moments of the 
Senate's time.
  The fact is, this provision, as stated on page 179, does not even go 
into effect until the year 2003. There is plenty of time for the 
Finance Committee to work it out if this isn't a satisfactory way of 
dealing with this issue. It is basically a bookkeeping issue. There is 
a judgment that is made by CBO that the value of a wage package is 
``X,'' and if you are going to guarantee additional kinds of benefits 
in terms of health care, then the wages are going to go down, which is 
going to mean less money in terms of Social Security.
  This is actually a balance from the Budget Committee's point of view 
to make sure that the bookkeeping will be balanced.
  Tomorrow, we will hear from the chairman of the Budget Committee who 
will describe this and, at the appropriate time, make the point of 
order.
  I point out, though, it is my understanding that this has no impact 
or effect on the Customs Service. They will still receive the money. If 
they want to go through with their modernization, they will still be 
able to do that. But it basically ensures that this is going to conform 
to the budget consideration. That is the reason that this was put in 
there. There will be sufficient time for the Finance Committee to make 
any other kinds of adjustments and changes.
  To make it very clear, the resources that are collected in this are 
not to pay for the bill. It is basically a bookkeeping offset to what 
will be anticipated to be the shortfall in terms of the payments under 
the CBO estimate of the wage package because of the enhanced value, 
which I think ought to be encouraging for workers of their health 
benefits. So we will hear more from the Budget Committee tomorrow. At 
that time, the chairman of the Budget Committee will make a further 
comment, speaking for the Budget Committee. They are in support of our 
position.
  Mr. GREGG. Is the Senator yielding back his time?
  Mr. KENNEDY. I am glad to yield back the time.
  The PRESIDING OFFICER. The Senator from Massachusetts yields back the 
remaining time on the Grassley amendment.
  Mr. GRASSLEY. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. GREGG. I ask unanimous consent that this amendment and all 
amendments that have the yeas and nays ordered tonight be stacked for a 
vote tomorrow morning, with the appropriate time of 2 minutes to each

[[Page 12351]]

side, or whatever is agreed to, before each amendment is voted on.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. GREGG. Mr. President, at this time I would like to outline the 
remainder of the evening, if acceptable to the parties, relative to our 
side, which would be that Senator Santorum would go next with his 
amendment. He would have 10 minutes; the Senator from California, Mrs. 
Boxer, would have 10 minutes. Then we would go to Senator Nickles. He 
would have 10 minutes; and 10 minutes to whoever is in opposition. 
Senator Brownback would come next. He would have an hour divided, as is 
traditional. And Senator Ensign would then follow with two amendments, 
the physician pro bono amendment and the genetic discrimination testing 
amendment.
  I believe the Democratic membership has all these amendments. I would 
hope we could also agree there would be no second degrees.
  Mr. KENNEDY. The Ensign amendment we have just received. I have no 
objection to the earlier request. I am sure we will agree with this, 
but we would like for that, as far as it being locked in in terms of no 
second-degree amendments, just to have an opportunity to----
  Mr. GREGG. I would reserve my request on the second degrees relative 
to the Ensign amendments but ask unanimous consent that the unanimous 
consent agreement include that there be no second degrees on DeWine, 
Grassley, Nickles, Santorum, or Brownback.
  The PRESIDING OFFICER. Is there objection?
  The Chair hears none, and it is so ordered.
  The Senator from Pennsylvania is recognized.


                           Amendment No. 814

  Mr. SANTORUM. Mr. President, I have amendment No. 814 at the desk and 
ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The assistant legislative clerk read as follows:

       The Senator from Pennsylvania [Mr. Santorum], for himself, 
     Mr. Smith of New Hampshire, and Mr. DeWine, proposes an 
     amendment numbered 814.

  Mr. SANTORUM. 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 protect infants who are born alive)

       On page 179, after line 14, add the following:

     SEC. __. DEFINITION OF BORN-ALIVE INFANT.

       (a) In General.--Chapter 1 of title 1, United States Code, 
     is amended by adding at the end the following:

     ``Sec. 8. `Person', `human being', `child', and `individual' 
       as including born-alive infant

       ``(a) In determining the meaning of any Act of Congress, or 
     of any ruling, regulation, or interpretation of the various 
     administrative bureaus and agencies of the United States, the 
     words `person', `human being', `child', and `individual', 
     shall include every infant member of the species homo sapiens 
     who is born alive at any stage of development.
       ``(b) As used in this section, the term `born alive', with 
     respect to a member of the species homo sapiens, means the 
     complete expulsion or extraction from his or her mother of 
     that member, at any stage of development, who after such 
     expulsion or extraction breathes or has a beating heart, 
     pulsation of the umbilical cord, or definite movement of 
     voluntary muscles, regardless of whether the umbilical cord 
     has been cut, and regardless of whether the expulsion or 
     extraction occurs as a result of natural or induced labor, 
     caesarean section, or induced abortion.
       ``(c) Nothing in this section shall be construed to affirm, 
     deny, expand, or contract any legal status or legal right 
     applicable to any member of the species homo sapiens at any 
     point prior to being born alive as defined in this 
     section.''.
       (b) Clerical Amendment.--The table of sections at the 
     beginning of chapter 1 of title 1, United States Code, is 
     amended by adding at the end the following new item:

``8. `Person', `human being', `child', and `individual' as including 
              born-alive infant.''.

  The PRESIDING OFFICER. Under the unanimous consent agreement, the 
Senator from Pennsylvania is recognized for 10 minutes.
  Mr. SANTORUM. Mr. President, this is an amendment that I think really 
goes to the heart of this bill: Patient protection. This bill is 
purported to deal with trying to take care of patients. What this 
amendment does is make sure that every living human being is protected 
by this act as well as all other acts of Congress.
  This is a very simple amendment that says--I am quoting from the 
amendment--

       In determining the meaning of any Act of Congress, or of 
     any ruling, regulation, or interpretation of the various 
     administrative bureaus and agencies of the United States, the 
     words ``person'', ``human being'', ``child'', and 
     ``individual'', shall include every infant member of the 
     species homo sapiens who is born alive at any stage of 
     development.

  That is a rather simple amendment. Obviously, I think it is an 
amendment that should be broadly accepted.
  The reason I offer this amendment is really twofold. No. 1 is the 
concern about how certain little children--little infants--are treated, 
particularly those who are born alive after an abortion, an abortion 
that was not successful in the sense that the child was not killed 
before the child was delivered outside of the mother's womb.
  So what we want to do is make sure those children in particular, as 
well as others, are treated with the same dignity and are covered by 
the same laws as all other people in America.
  There are, unfortunately, many disturbing examples of how these 
little children are not treated the same and not given the proper care 
and, frankly, the proper respect that is required under the laws that 
we have passed in this Congress.
  I am going to use a couple of examples that were given by nurses in 
congressional testimony.
  Last year, we had testimony from Allison Baker, who is a registered 
nurse, who witnessed three induced abortion survivor incidents. For one 
of them, she says:

       I happened to walk into a ``soiled utility room'' and saw, 
     lying on the metal counter, a fetus, naked, exposed and 
     breathing, moving its arms and legs. The fetus was visibly 
     alive, and was gasping for breath. I left to find the nurse 
     who was caring for the patient and this fetus. When I asked 
     her about the fetus, she said that she was so busy with the 
     mother that she didn't have time to wrap and place the [baby] 
     in the warmer, and she asked if I would do that for her. 
     Later I found out that the fetus was 22 weeks old, and had 
     undergone a therapeutic abortion because it had been 
     diagnosed with Down's Syndrome. I did wrap the fetus and 
     place him in a warmer and for 2\1/2\ hours he maintained a 
     heartbeat, and then finally expired.

  The second incident involved a 20-week-old fetus with spina bifida 
who lived for an hour and 40 minutes until she died.
  She continued:

       The third case occurred when a nurse with whom I was 
     working was taking care of a mother waiting to deliver her 16 
     week Down's Syndrome fetus. Again, I walked into the soiled 
     utility room and the fetus was fully exposed, lying on the 
     baby scale. I went to find the nurse who was caring for this 
     mother and fetus, and she asked if I could help her by 
     measuring and weighing the fetus for the charting and death 
     certificate. When I went back into the soiled utility room, 
     the fetus was moving its arms and legs. I then listened for a 
     heartbeat, and found that the fetus still was alive. I 
     wrapped the fetus and in 45 minutes the fetus finally 
     expired.

  We have other stories, disturbing stories of cases where children 
were born alive and basically discarded as trash in soiled utility 
closets or laying on tables fully exposed at a very tender age.
  This is a story from Jill Stanek, another registered nurse:

       One night, a nursing co-worker was taking an aborted Down's 
     Syndrome baby who was born alive to our Soiled Utility Room 
     because his parents did not want to hold him, and she did not 
     have time to hold him. I couldn't bear the thought of this 
     suffering child lying alone in a Soiled Utility Room, so I 
     cradled and rocked him for the 45 minutes that he lived. He 
     was 21 to 22 weeks old, weighed about \1/2\ pound, and was 
     about 10 inches long. He was too weak to move and very much 
     expending any energy he had to breathe.

  This is the current problem, and this is the reason we are 
introducing this legislation. Frankly, I have concerns that this may be 
even more of a problem in the future based on court decisions. The 
court decision I refer to is

[[Page 12352]]

the recent decision by the U.S. Supreme Court in the Nebraska partial-
birth case. In that case, in a concurring opinion, two Justices said 
two things: One, Justice Stevens with Justice Ginsburg concurring, and 
the other, Justice Ginsburg with Justice Stevens concurring. I am going 
to quote two things that should send a chill down the spines of people 
here when it comes to what the future could have in store for us if we 
do not pass legislation such as this.
  This is what Justice Stevens said in this decision:

       The holding [of Roe]--that the word ``liberty'' in the 14th 
     Amendment includes a woman's right to make this difficult and 
     extremely personal decision--makes it impossible for me to 
     understand how a State has any legitimate interest in 
     requiring a doctor to follow any procedure other than the one 
     he or she reasonably believes will best protect the woman in 
     her exercise of this constitutional liberty.
       For the notion that either of these two equally gruesome 
     [abortion] procedures performed at this late stage of 
     gestation is more akin to infanticide than the other, or that 
     the State furthers any legitimate interest by banning one or 
     not the other, is simply irrational.

  What that says very clearly is, according to these two Justices, that 
any procedure that the doctor determines is in the best ``health 
interest of the mother'' can be used without question. So if the doctor 
believes the best way to safely perform this abortion is to deliver a 
live baby and then subsequently kill it because it is the safest way 
for the mother's health to have that done, under this rationale, under 
this reasoning, that would be legitimate. I think we have to make it 
very clear that that is not legitimate; that after delivering a baby, 
once the baby is outside the mother, it is no longer legitimate to 
consider that child just a piece of property to be disposed of, or 
massive cells to be disposed of when it is a living, breathing 
individual.
  Justice Ginsburg's opinion says the following:

       Such an obstacle [to abortion] exists if the State stops a 
     woman from choosing the procedure her doctor ``reasonably 
     believes will protect the woman in [the] exercise of [her] 
     constitutional liberty.''

  Again, it is an open door to whatever procedure the doctor wants to 
use, irrespective of the baby, which again leaves the door open 
certainly for the doctor to say that he or she reasonably believes that 
the mother's health will be served if the baby is delivered and then 
killed because that is the safest way. This was not the majority 
opinion, thankfully, of the Court, but it does show that there is a 
possibility, at least, out there for this kind of ruling within our 
court systems at the highest level, much less what some district or 
appellate court might do.
  I think it is important for us to clearly draw the line, if that is 
called drawing the line, that once a child is born, it is no longer a 
health threat to the mother, and that we have a legitimate interest in 
protecting this child from being killed at that point or, shall we say, 
treat that child within the context of the law as we would treat any 
other child or any other person in America.
  With that, I reserve the remainder of my time.
  The PRESIDING OFFICER. Who yields time in opposition?
  The Senator from California.
  Mrs. BOXER. Mr. President, my colleague, in his discussion of this 
amendment, does attack the landmark case of Roe v. Wade which simply 
said, in the 1970s--and women have had the right since then--that in 
the early stages of a pregnancy, the government should play no role in 
the very personal, private, moral decision that a woman and her family 
and her doctor and her God would make without the interference of 
government. But his amendment certainly does not attack Roe in any way.
  His amendment makes it very clear that nothing in this amendment 
gives any rights that are not yet afforded to a fetus. Therefore, I, as 
being a pro-choice Senator on this side, representing my colleagues 
here, have no problem whatsoever with this amendment. I feel good about 
that. I feel good that we can, in fact, vote for this together. It is 
very rare that we can.
  Simply put, this amendment says it all in its purpose: ``To protect 
infants who are born alive.'' Of course, of course. My colleague goes 
on to say that simple statement, which is very important, is in fact, 
he said, the heart of this bill. I think the heart of this bill is even 
more than that. The heart of this bill is, yes, protecting infants; it 
is also protecting children, protecting teenagers, protecting people as 
they get older, until they are very old and very frail and are fighting 
for their life.
  So this bill really should protect us all at every stage of our life, 
from the earliest days until the final days. I hope that my colleague 
will join with us in supporting this Patients' Bill of Rights because 
it does, in fact, protect all of us. And it will, in fact, give all of 
us at any stage, at any age, the quality health care that we need.
  I can tell my friend, and I think I have mentioned it to him before 
and on the floor before, that I gave birth to two premature babies, one 
quite premature. And I can say right here and now that I will never, 
ever forget the experience of those doctors. This was a long time ago, 
I say to my friend; this was way back. Now my kids are taking care of 
me. And the doctor came in and grabbed my firstborn son and, before 
they could even take a cloth to clean him, ran him into the incubator 
where he had to stay for 1 month. Had I not had that kind of dedication 
from a pediatrician, that kind of concern, a hospital that knew at that 
time we didn't have the money to pay the $1,000 a day that it costs--
now it is way more than that--I don't know if today I would have a 
beautiful healthy son who is married and the pride of our lives.
  My daughter was also born premature, a similar circumstance, same 
thing--dedicated people, dedicated hospital, quality care.
  I join in voting for this amendment, with the understanding that all 
of us at every stage of our life deserve that kind of quality care. In 
other words, if my friend were to expand it and say every human being 
deserves quality health care, deserves, when they are in the hospital, 
to be protected, I would join with him as well. That is what I think 
the larger bill does do.
  He believes it is necessary to single out infants. Fine. That is 
fine.
  Again, I say to my friend in the chair that we will be voting for 
this amendment, I hope unanimously. If we have to have a recorded vote, 
that is fine. And we will state that we feel very strongly that every 
person deserves protection from this health care system and that this 
Patients' Bill of Rights should give us all the care that we deserve 
and all the care our families deserve, regardless of whether we are a 
helpless newborn baby or whether we are an elderly person who is 
fighting and struggling against illness.
  If 100 people vote for this amendment, which I think will be the 
case, then 100 people should vote for the Patients' Bill of Rights 
because it will afford the families of those vulnerable infants and all 
of us the protections that we need against HMOs that oftentimes put 
dollar signs ahead of our vital signs. That is wrong to do. Some of 
these babies are born into families who don't have a lot of money, who 
don't have a lot of power, who are going against HMOs where the CEO 
makes hundreds of millions of dollars. But they say: Gee, we are not 
going to give that little baby the care he needs.
  I had a case I talked about on the floor where a child was denied a 
medicine. She was 3 years old and had cancer. It was $54 for the 
medicine and the HMO denied that medicine. That child suffered so with 
nausea and all the rest, while the head of that HMO, because of a huge 
merger--and I asked my staff to check this because I could hardly 
believe it--made $800 million in the course of that merger. But they 
denied a drug to a little baby suffering from cancer--$54.
  I heard my colleagues on the other side--some of them against this 
bill-- say: We can't legislate by anecdote. Well, I have to tell you, 
when you hear one story, and then another and another, from people you 
never heard of, and you hold hearings and the people come out and tell 
the stories, then we know there is a need to pass this Patients' Bill 
of Rights. So I would vote

[[Page 12353]]

for this to protect the infants, and then I will vote to protect 
everyone in this country because everyone deserves protection from HMOs 
who put their bottom line ahead of people's health.
  The PRESIDING OFFICER (Mrs. Feinstein). The Senator from 
Massachusetts is recognized.
  Mr. KENNEDY. Madam President, I am going to urge the Senate to accept 
the amendment tomorrow. I think we have had a good discussion about it. 
I hope that we will move ahead and accept it. I am prepared, when the 
Senators yield the time or use the time, to do that.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. Madam President, I thank the Senator from California 
for her comments and support of this amendment.
  I ask for the yeas and nays on the amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.


                           amendment no. 846

  Mr. NICKLES. Mr. President, I send an amendment to the desk.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Oklahoma [Mr. Nickles], for himself and 
     Mr. Ensign, proposes an amendment numbered 846.

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

(Purpose: To apply the bill to plans maintained pursuant to collective 
     bargaining agreements beginning on the general effective date)

       Beginning on page 173, strike line 19 and all that follows 
     through line 14 on page 174, and insert the following:
       (2) Treatment of collective bargaining agreements.--The 
     amendments made by sections 201(a), 301, 302, and 303 (and 
     title I insofar as it relates to such sections) shall apply 
     to group health plans maintained pursuant to one or more 
     collective bargaining agreements between employee 
     representatives and one or more employers beginning on the 
     general effective date.

  Mr. NICKLES. Madam. President, I will be brief. I hope this amendment 
can be agreed to. In the underlying bill on page 173, it has 
``effective dates'' for implementation of the legislation. The 
effective date for everybody, all plans in America, is by October 1, 
2002. So that is when all the plans in America will have to comply with 
this bill. They will have to have the patient protections in line, the 
appeals process, the liability sections--all are mandated to be 
effective by October 1 next year. That is about 14 months from now.
  If you continue reading on page 173, you find out that the plans that 
are covered by collective bargaining agreements are exempt. They are 
exempt from the legislation. It says they ``shall not apply to plan 
years beginning before the later of--(A) the date on which the last 
collective bargaining agreements relating to the plan terminates.''
  Some of these plans may not terminate for months. Some may not 
terminate for years. As a matter of fact, looking at a couple of 
examples, one is the Plumbers and Pipefitters Union, with 2,200 
employees, has a 128-month contract. It doesn't expire until 2010. The 
International Union of Electric Workers, with 1,800 employees, has a 
148-month contract that doesn't expire until the year 2007. I could go 
on and on. There are lots of examples.
  The point is that there are about 30 million lives that would be 
exempt from this bill for years. If we are going to make it apply to 
everybody else in the private sector, I think we should make it apply 
for collective bargaining plans as well.
  There is also something else that is troubling to me. It says it 
would not apply until the plan terminates, and then the language says 
if they adopt these patient protections, that still doesn't count as a 
plan termination, a collective bargaining agreement termination. So, in 
effect, even though a plan adopts it, it hasn't terminated and, 
therefore, it is still not covered or enforced by the terms of this 
bill. I find that troubling. I also am troubled by the fact that when 
it says ``relating to the plan terminates,'' a lot of plans or 
contracts don't terminate. They are renegotiated. So they never get to 
termination. They are actually renegotiated and extended. That is well 
and good. That means there is peace and harmony and no labor shortages 
and so on.
  My point is that it is very important for us not to be exempting 30 
million workers who happen to be in collective bargaining agreements 
from the protections in these plans. If we are going to give these 
protections to 170 million workers in the private sector, in that 170 
million are included 30 million who happen to be members of a 
collective bargaining agreement. They should have the patient 
protections that Congress is in the process of determining which are so 
vital for everybody else in the private sector. They should not be 
exempt because they happen to be members of the collective bargaining 
unit. We are asking every other plan in America to comply by October 1. 
Why would we not ask members of collective bargaining agreements to 
also comply? Why should we have them have different expiration dates, 
some of which might be 5, 10 years, or even longer?
  Maybe this is an oversight, a mistake from a previous drafting; but, 
clearly, if these are such valued protections that we want to extend 
them to the private sector, we should certainly extend them to members 
of collective bargaining agreements as well.
  I urge my colleagues to support this amendment.
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
  Mr. KENNEDY. I yield myself 5 minutes.
  Madam President, I direct my colleagues' attention to the lines 15 
and 16 on page 173. They talk about ``for plan years.'' That is an art 
of words that applies to insurance companies, and it says, ``beginning 
on or after'' plan years. As we know, the insurance starts generally at 
the first of every year. So with regard to insurance companies, the 
Senator is completely wrong. This does not apply for insurance 
companies because there are existing contracts.
  We have heard a great deal in this debate about the sanctity of the 
HMO contract and how we are not going to permit--in terms of the 
standards for the treatment of patients--they are going to be tied 
completely to the contract. I don't know how many hours I listened to 
that. Now we see that we are respecting the contract in insurance and 
we expect the same--to respect the contract in terms of collective 
bargaining. It is simple as that.
  This is boilerplate, Madam President. We did this in the HIPAA 
program, and there was no row about it at that time. People understood. 
There was a normal transition, and we didn't have objections at that 
particular time. So that is what we have done here. There are existing 
contracts in insurance, and we take it to the next time when the 
insurance plans are going to be implemented. There are existing 
collective bargaining agreements. We are going to take it at the next 
time when they are going to be renegotiated because of the respect for 
the existing contracts.
  So what is sauce for the goose should be sauce for the gander, Madam 
President, particularly when we are listening to so much about the 
importance of contracts and that we ought not interfere with them, even 
if it is going to be as a matter of medical necessity, and that we are 
going to be bound by them because they are so important and sacred. 
There is a sanctity of the contracts.
  I listened to that for 5 hours, and now we find out in the final 
hours of this that, oh no, that is not true regarding collective 
bargaining. We are going to interfere with ongoing collective 
bargaining agreements. That just doesn't make sense. This is what we 
have done at other times. It says insurance, generally, at the start of 
a year--some are longer and they will be respected in that way just as 
we do regarding collective bargaining. I hope this amendment will not 
be accepted.


[[Page 12354]]

  Mr. NICKLES. Madam President, I appreciate my colleague's statement, 
but I totally disagree. Some of us have argued for contract sanctity, 
but we haven't been totally successful, I might add. Almost all those 
contracts would begin, if not by October 1, certainly by January 1 of 
the year 2003. So maybe there are a few more months. But under 
collective bargaining agreements, if you read the language on page 174, 
it is not until the contract or the agreement terminates. And then the 
second part of it says that even if they comply, it shall not count as 
a termination.
  You could have collective bargaining agreements exempt under this 
provision indefinitely for 12 years. They may never terminate the 
agreement. They may continue rolling it over, so it is never 
terminated. It might be readjusted; it might be renegotiated; but it is 
never terminated. Are we going to take 30 million Americans and say: 
You are not covered by these patient protections?
  Some of these contracts will last 10 years, 15 years. The average 
contract I was looking at had a schedule of 5 to 6 years. One I 
mentioned does not expire until the year 2010. If they renegotiate it 
between now and next year, the duration of the contract will be exempt. 
We are telling everybody else in the private sector: Get your act in 
order, and by the end of next year you have to have these new patient 
protections, oh, unless you are a member of a collective bargaining 
agreement.
  This is not the only exemption we found. We did not cover Federal 
employees. Maybe I will have an amendment dealing with Federal 
employees. All these great patient protections do not apply to Federal 
employees. They do not apply to Medicare. They do not apply to Indians 
in our hospitals. They do not apply to veterans.
  These are patient protections that are so important for the country, 
but we do not give them to publicly funded plans; we only do it for 
private sector plans.
  What about unfunded mandates? What about union plans, collective 
bargaining? We leave them out. We leave out Government plans; we leave 
out union plans; but it is fine we are going to hit the private sector. 
Unions, this does not apply for the duration of your collective 
bargaining agreement, and if it does not terminate, you are never 
covered.
  I think that is a serious mistake, so I urge my colleagues to support 
the amendment.
  I thank my friend and colleague from Nevada for his support of the 
amendment as well.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Madam President, the Senator ought to read page 174 
because this language is very clear, precise, and exact. It does not 
permit what he just said it permitted, and that is the rollovers. It 
just does not permit it.
  The Senator can state it, and he can misrepresent it, which he just 
has, but it is not the fact. On line 5, it says: ``relating to the plan 
terminates,'' and that is when it ends. That is when it has to be 
implemented.
  This idea that it can roll over and over, for 10, 15 years, is not 
what the legislation says. The fact is, with insurance, many start in 
January, many others start in July. We have tried to say when that 
contract plan year, which is a term of art that refers to when that 
insurance transitions, we will implement it at that time, and the same 
should be true with the collective bargaining agreements.
  I would think the overwhelming majority of the workers and employers 
would be eager to get these protections. We are going to find out many 
will work out arrangements so they get the protections even earlier.
  The PRESIDING OFFICER. Who yields time?
  Mr. NICKLES. I yield to the Senator from Nevada such time as he 
desires.
  The PRESIDING OFFICER. The Senator from Nevada is recognized.
  Mr. ENSIGN. Madam President, I have a story that was told by the 
junior Senator from North Dakota on the Senate floor the other day. It 
is about a young man, Christopher Thomas Roe, who is from Nevada. He 
was attending Durango High School and was diagnosed with acute 
lymphocytic leukemia. As anybody who has had a child with that terrible 
disease knows, sometimes the treatments are not very successful.
  During the course of his treatment, the doctors were recommending a 
certain type of experimental treatment, and as we have heard throughout 
this bill, sometimes that experimental treatment has to be had at a 
certain time of treatment, and waiting for its approval sometimes leads 
to that treatment not being able to be given to that patient. That is 
exactly what happened to Christopher Thomas Roe. He was not able to 
receive this type of a treatment in a timely manner.
  His father is a school district employee in the State of Nevada. He 
is not a teacher, but he is an employee of the school district. There 
is an employee trust fund that has been set up to provide health 
insurance to school district employees. Based on our discussions with 
the Department of Labor, this trust fund, because of the way it was set 
up, would not be covered under the provisions of this bill.
  Similarly, the 30 million people Senator Nickles is talking about who 
deal with collective bargaining agreements are not covered adequately 
under this bill. If we are going to say to other people that they 
deserve these rights, we believe that people who are in unions deserve 
the same patient protections.
  These patient protections right now do not just deal with lawsuits, 
they deal with provisions that everybody agrees with in the bill: The 
right of a woman to choose an OB/GYN as her primary doctor; the right 
of a family to say their children's primary care doctor is a 
pediatrician; the right to a reasonable layman's interpretation of 
whether emergency room care should be paid for when they have an 
emergency.
  These patient protections we believe are very important to give not 
only to the 170 million people who are covered by the underlying bill, 
but also those who are covered in collective bargaining agreements.
  If there is tweaking of the language that needs to happen with this 
amendment, then let's tweak the language. The bottom line is this is 
not an anti-union agreement. This amendment says we want union workers 
to have the same rights as other people.
  I would think the other side of the aisle, who are generally in favor 
of union workers, would be on our side on this amendment. If the other 
side thinks this amendment needs a little tweaking, maybe we can do 
that, but right now as we read the bill, as we have had some of the 
legal experts look at the bill, collective bargaining agreements would 
supersede and not allow union workers who are covered under those 
collective bargaining agreements to be covered under this Patients' 
Bill of Rights.
  I urge our colleagues to work with us and to make sure those union 
workers get the same protections as other people in America are going 
to receive.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Madam President, how much time do I have?
  The PRESIDING OFFICER. Six minutes.
  Mr. KENNEDY. I did not understand, did the Senator say that public 
employees were not covered? Does he understand that to be the case?
  Mr. NICKLES. The Senator is correct. Federal employees are not 
covered by the underlying McCain-Kennedy bill.
  Mr. KENNEDY. I understand he was talking about teachers in Nevada; 
public employees is the example he gave. I find this enormously 
interesting because both Senators voted for the Collins amendment that 
excluded 139 million Americans. They only included 56 million. They 
were going to have the protections. The others were going to be 
dependent upon whether the States actually moved ahead and passed the 
various protections.
  One of the groups that was left out of the Collins amendment was 
public employees, such as firefighters, schoolteachers, and others. We 
resisted that. No one has fought harder to make sure

[[Page 12355]]

we are going to have comprehensive coverage since day 1 of this 
program. Now we are being flyspecked because somehow there are some 
who, under certain circumstances, are going to come into these 
protections on a different calendar.
  Madam President, we have tried to include people who are going to 
have coverage from insurance. We are going to respect the contract. 
When those insurance contracts expire, whether it is in January, 
whether in July, the protections go into effect. The same is true of 
the collective bargaining agreement. We have done that in other times. 
It has worked, and worked effectively. As I say, I believe the 
consumers, as well as employers--the employers from whom we have heard, 
and we have had many examples--indicate they cannot wait to get these 
protections in place. It isn't that people will delay getting in; it 
will be because they want to get in and get in more quickly.
  The PRESIDING OFFICER. Leader time has expired.
  Mr. NICKLES. I ask unanimous consent for 2 additional minutes.
  Mr. KENNEDY. Then I ask for 4, 2 each side.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. NICKLES. A couple comments. The average length of collective 
bargaining agreements: 66 percent of collective bargaining agreements 
with over 1,000 employees--that is over 1,200 collective bargaining 
agreements--the average length is 3 to 5 years; 28 percent are 5 to 6 
years; an additional 7 percent are 6 to 8 years.
  My point is these things last for years. People renegotiate their 
health care plan. Federal employees do this every year. Almost 
everybody does it every year. So for the health care plan for everybody 
else in the private sector, you have to comply by next October, 12 
months from now, maybe even January of next year; you will have to 
comply. But if you are in a collective bargaining plan, you wait until 
the plan terminates.
  We asked the Department of Labor, does the plan terminate if 
renegotiated and rolled over? Not necessarily.
  In collective bargaining, you are talking about 30 million Americans 
who will not receive the so-called benefits under this bill. That is a 
fact.
  Another fact: My colleague said we supported an amendment by Senator 
Collins that said let the States use their State protections. I 
strongly agree with that. That is a reason I will vote against the 
underlying bill, because I don't think we should preempt States as the 
Kennedy-McCain bill does. I believe in that strongly. I know my friends 
and colleague from Massachusetts have a different belief. We could 
debate that for hours.
  My point is, if the patient protections are so good--and I heard many 
sponsors say we should cover all Americans--the bill does not cover all 
Americans. As a result of the language we have been debating, 
collectively bargaining agreements are exempt for years. The bill we 
are debating now does not cover public plans; it does not cover 
Medicaid; it does not cover Medicare; it does not cover public 
employees; it does not cover the military; it does not cover veterans; 
it does not cover Federal employees.
  We have control over Federal employees. If the patient protections 
are so good for the private sector, why not for collective bargaining 
plans as well?
  Mr. KENNEDY. Madam President, it is interesting to listen to my 
friend and colleague. The fact is, the last President, President 
Clinton, put those in through Executive orders to cover those because 
of the delay of the Republican leadership in letting us get through 
this bill over the last 5 years. So rather than wait and wait and wait, 
we had a Democratic President put them into effect.
  Now if a collective bargaining unit or contract expires on October 2, 
they go in prior to the time of the insurance coverage. They will go in 
months ahead of the insurance. If the contract expires on October 5, 
that goes in before July of the next year. So they get more protections 
than those being covered by the insurance.
  This is just a way of saying if the contracts are out there, we are 
going to respect the termination of those contracts, whether it is in 
the insurance or in collective bargaining. Evidently, the Senator wants 
to use this as a device to punish some of their enemies, the unions in 
this case, to try to use the legislative process to do so. I hope we 
will reject that.
  Mr. NICKLES. I yield myself 5 minutes off the leader time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. NICKLES. I thank my friend, Senator Brownback. I am the third 
Senator squeezed in front of him, and he has shown great patience. I 
will be brief.
  My colleague from Massachusetts said President Clinton gave these 
protections to Federal employees because he couldn't wait for the 
Republican Congress to pass them.
  The facts are, Federal employees do not have patient protections that 
are nearly as expensive, as aggressive, as intrusive as we are getting 
ready to impose on the rest of the private sector. I may have an 
amendment tomorrow to address that so we can save that for tomorrow's 
debate.
  The patient protection that President Clinton passed is not nearly 
this big. Federal employees cannot sue their employer. When they have 
an appeal process, they do not go to an independent party; they go to 
OPM, Office of Personnel Management; they go to their employer. We do 
not do that in this bill. Maybe we will debate that tomorrow.
  Finally, he said in collective bargaining plans, they have to be 
covered when the plan terminates. My point is the plan can be 
renegotiated. You are talking years. Sixty-six percent of collective 
bargaining plans are 3 to 5 years.
  Then it says if they go ahead and implement it, it is not counted as 
a plan termination; therefore, it is not effective. Let's give union 
members the same protections we give all other private sector 
employees.
  I thank my colleagues and my colleague from Massachusetts and 
particularly my colleague from Kansas for his patience in allowing us 
to go forward.
  Mr. KENNEDY. I am prepared to yield back the time.
  The PRESIDING OFFICER. All time is yielded back.
  Mr. NICKLES. Madam President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The Senator from Kansas.


                           Amendment No. 847

  Mr. BROWNBACK. I send an amendment to the desk for immediate 
consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Kansas [Mr. Brownback] proposes an 
     amendment numbered 847.
  Mr. BROWNBACK. 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 prohibit human germline gene modification)

       At the end of the bill, add the following:
                TITLE--HUMAN-GERMLINE GENE MODIFICATION

     SEC.   01. SHORT TITLE.

       This title may be cited as the ``Human Germline Gene 
     Modification Prohibition Act of 2001''.

     SEC.   02. FINDINGS.

       Congress makes the following findings:
       (1) Human Germline gene modification is not needed to save 
     lives, or alleviate suffering, of existing people. Its target 
     population is ``prospective people'' who have not been 
     conceived.
       (2) The cultural impact of treating humans as biologically 
     perfectible artifacts would be entirely negative. People who 
     fall short of some technically achievable ideal would be seen 
     as ``damaged goods'', while the standards for what is 
     genetically desirable will be those of the society's 
     economically and politically dominant groups. This will only 
     increase prejudices and discrimination in a society where too 
     many such prejudices already exist.
       (3) There is no way to be accountable to those in future 
     generations who are harmed

[[Page 12356]]

     or stigmatized by wrongful or unsuccessful human germline 
     modifications of themselves or their ancestors.
       (4) The negative effects of human germline manipulation 
     would not be fully known for generations, if ever, meaning 
     that countless people will have been exposed to harm probably 
     often fatal as the result of only a few instances of germline 
     manipulations.
       (5) All people have the right to have been conceived, 
     gestated, and born without genetic manipulation.

     SEC.   03. PROHIBITION ON HUMAN GERMLINE GENE MODIFICIATION.

       (a) In General.--Title 18, United States Code, is amended 
     by inserting after chapter 15, the following:

                ``CHAPTER 16--GERMLINE GENE MODIFICATION

``Sec.
``301. Definitions
``302. Prohibition on germline gene manipulation.

     ``Sec. 301. Definitions

       ``In this chapter:
       ``(1) Human Germline Gene Modification.--The term `human 
     germline gene manipulation' means the intentional 
     modification of DNA in any human cell (including human eggs, 
     sperm, fertilized eggs, zygotes, blastocysts, embryos, or any 
     precursor cells that will differentiate into gametes or can 
     be manipulated to do so) for the purpose of producing a 
     genetic change which can be passed on to future individuals, 
     including inserting, deleting or altering DNA from any 
     source, and in any form, such as nuclei, chromosomes, 
     nuclear, mitochondrial, and synthetic DNA. The term does not 
     include any modification of cells that are not a part of and 
     will not be used to create human embryos. Nor does it include 
     the change of DNA involved in the normal process of sexual 
     reproduction.
       ``(2) Human haploid cell.--The term `haploid cell' means a 
     cell that contains only a single copy of each of the human 
     chromosomes, such as eggs, sperm, and their precursors.
       ``(3) Somatic Cell.--The term `somatic cell' means a 
     diploid cell (having two sets of the chromosomes of almost 
     all body cells) obtained or derived from a living or 
     decreased human body at any stage of development. Somatic 
     cells are diploid cells that are not precursors of either 
     eggs or sperm. A genetic modification of somatic cells is 
     therefore not germline genetic modification.
       Rule of Construction: Nothing in this Act is intended to 
     limit somatic cell gene therapy, or to effect research 
     involving human pluripotent stem cells.

     ``Sec. 302. Prohibition on germline gene modification

       ``(a) In General.--It shall be unlawful for any person or 
     entity, public or private, in or affecting interstate 
     commerce--
       ``(1) to perform or attempt to perform human germline gene 
     modification;
       ``(2) to intentionally participate in an attempt to perform 
     human germline gene modification; or
       ``(3) to ship or receive the product of human germline gene 
     modification for any purpose.
       ``(b) Importation.--It shall be unlawful for any person or 
     entity, public or private, to import the product of human 
     germline gene modification for any purpose.
       ``(c) Penalties--
       ``(1) In general.--Any person or entity that is convicted 
     of violating any provision of this section shall be fined 
     under this section or imprisoned not more than 10 years, or 
     both.
       ``(2) Civil Penalty.--Any person or entity that is 
     convicted of violating any provision of this section shall be 
     subject to, in the case of a violation that involves the 
     derivation of a pecuniary gain, a civil penalty of not less 
     than $1,000,000 and not more than an amount equal to the 
     amount of the gross gain multiple by 2, if that amount is 
     greater than $1,000,000.''.
       (b) Clerical Amendment.--The table of chapters for part I 
     of title 18, United States Code, is amended by inserting 
     after the item relating to chapter 15 the following:
``16 Germline Gene Modification..............................301''.....

  Mr. BROWNBACK. Madam President, I rise today to offer an amendment to 
the Patients' Bill of Rights. This amendment is about human germline 
gene modification. That is a long way of saying--and I will go into 
this for a period of time--stopping people from attempting to modify 
the human species with outside genetic material. It may seem strange. 
It happens in livestock, genetically modified organisms. Some people 
are researching and discussing doing this within the human species to 
create better people. I think it should be stopped, prohibited, 
removed.
  I looked for a better vehicle for this amendment, for another bill 
that was a closer fit. It is a medical issue on the medical front. If 
we get an agreement that I get a freestanding bill, I will do it that 
way. Having not been able to do that, we offer it as an amendment now.
  My amendment prohibits human germline gene modification. What is 
that? Technically, it is the process by which the DNA of an individual 
is permanently changed in such a way that it permanently affects his or 
her offspring. Normally this is a DNA modification in either the egg or 
the sperm within the human species, so when they combine, that genetic 
modification is carried in that person and in future organisms, in 
future people. So it starts at this single stage, the egg or the sperm, 
molded together and multiplied in future generations.
  This is not about genetic therapy; it is not about stem cell 
research; it is not about human cloning. All those are other issues for 
another day that do need to be considered but not here. My amendment in 
no way hinders genetic therapy or other medical interventions that 
treat patients suffering from diseases.
  My amendment is about eugenics. For those not familiar, that is the 
process or means of race improvement previously tried by many 
diabolical methods or schemes, generally looked at as restrictions of 
mating, of so-called superior people together, and now being attempted, 
talked about, pressed forward by adding genetic material of humans from 
outside the species.
  This is ugly stuff, and it should be stopped. It is about what we as 
a society are willing to allow and not to allow. The issue of germline 
genetic modification is about our ability to create designer babies, 
choose eye color, height, or IQ. I offer this amendment, well aware 
that many of my colleagues understandably may be unaware of these so-
called advances being made in the field of biotechnology and the impact 
those advances will inevitably have on the human race.
  I come from an agricultural background. I used to be a Secretary of 
Agriculture in Kansas. These are things we commonly do now in plants, 
and we are having research done extensively in animals. People are 
talking about bringing some of the same technology to humans. It has to 
be stopped and should be stopped.
  Many of the advances promise great achievement for mankind and a 
betterment of human conditions. Some of the advancements in 
biotechnology do not. Human germline gene manipulation is one of those. 
It is one of those advances discussed mostly in theoretical terms until 
recently. More disturbingly, it is the realization of the age-old quest 
to design better people. Germline gene manipulation is the summit of 
the eugenics movement. One of the groups we have consulted with prior 
to preparing this amendment is a group chaired by Claire Nader, the 
sister of former Presidential candidate Ralph Nader. It is a group she 
has been associated with, the Council for Responsible Genetics. They 
are unequivocally opposed to human germline gene modification.
  The Council states this:

       We strongly oppose the use of germline gene modifications 
     in humans.

  They continue:

       Today, public discussion in favor of influencing the 
     genetic constitution of future generations has gained new 
     respectability with the increased possibility for 
     intervention. Although it is once again espoused by 
     individuals with a variety of political perspectives, modern 
     eugenic programs are now defended as driven by individual 
     need, choice. But the doctrine of social advancement through 
     biological perfectibility underlying the new eugenics is even 
     more potent than the older version. Its supporting data seem 
     more scientifically sophisticated and the alignment between 
     the state, through its support of the market and the 
     individual exercising so-called free choice, is 
     unprecedented.

  The Council goes on to state further:

       These considerations make the social and ethical problems 
     raised by germline gene modification very different from 
     those raised by genetic manipulations, that target certain 
     nonreproductive deficiencies in organs of patients, again in 
     somatic cell gene modification.

  As the Council states in very clear terms:

       The underlying political philosophy of those who support 
     germline gene modification has been sanitized with new terms, 
     but is in reality the same old eugenic message with which the 
     20th century was deeply and direly afflicted. In numerous 
     conversations that I have had with Dr. Francis Collins, who

[[Page 12357]]

     heads the National Human Genome Research Institute here in 
     Washington, who has had a fantastic report that was out last 
     year on the Human Genome Project, reported out a beautiful 
     array of the complexity of the genetic structure in each and 
     every one of our 10 trillion cells and if we printed out that 
     genetic structure and had it in front of us, it would be a 
     stack of paper 100 feet taller than the Washington monument.

  We have talked about the beauty of the human genome and also talked 
about the potential for problems in its manipulation, as that could be 
carried onto future humans.
  Madam President, human germline gene modification is not needed to 
save lives or alleviate suffering of existing people. Its target 
population is prospective people who have not been conceived. The 
cultural impact of treating humans as biologically perfectible 
artifacts would be entirely negative. People who fall short of some 
technically achievable ideal would be seen as damaged goods, while the 
standards for what is genetically desirable would be those of the 
society's economically and politically dominant group. We have heard 
these themes before. This will only increase prejudices and 
discrimination in a society which already has too many of these.
  There is no way to be accountable to those in the future generations 
who are going to be harmed or stigmatized by the wrongful or 
unsuccessful human germline gene modification of their ancestors. The 
negative effects of human germline modification would not be fully 
known for generations, if ever, meaning that countless people will have 
been exposed to harm, probably often fatal, as a result of only a few 
instances of germline manipulations.
  All people have the right to be conceived, gestated, and born without 
genetic manipulation. Human germline gene manipulation will only serve 
to turn human beings into commodities with traits that are bought and 
sold, with attributes that are determined by technicians, and parents 
who want to exert genetic tyranny over their offspring. This is a step 
too far. This is grossly unethical for it to happen. I urge the Senate 
to adopt my amendment to prohibit it once and for all.
  Again I put forward, in layman's terms, what this is about. This is 
about getting and adding outside genetic material into the human 
species, whether it be plant--tomato--or animal--chicken--from a tree 
somewhere that a snippet of genetic material would be added in, at the 
egg or the sperm level. Once added in there, when the union occurred it 
would be in that human and also then passed on to future generations. 
That is what we are talking about here. It is not about any sort of 
gene therapy or any of the other issues. It is not about cloning 
either, which is the identical replication. This is adding in the 
outside genetic material.
  I think everybody would look at this and say that is not a road we 
want to go down. Yet some people today are contemplating doing this.
  I want to add a couple of other points. The European Council on 
Biomedics has stated its opposition to this human germline gene 
modification. I think the civilized world really needs to step up right 
now, before people get going and moving forward, saying: We could make 
people taller. We could make people live longer by this modification. 
We found a gene line in trees that we could put in earlier, to the 
human species, and cause this to happen. We have a way to manipulate or 
change this--without knowing in any way down in future generations what 
this impact is.
  We can send a strong, clear signal at this point in time that we want 
nothing to do with this, that this is wrong, this is eugenics, this is 
the height of eugenics, and it should not take place. The Europeans are 
moving that way. We should as well as much of the rest of the civilized 
world, and say we want no part of this, and we can do that with a 
clear, I hope unanimous, vote of the Senate, saying this is wrong.
  I know people differ on some of these other biotechnology issues, 
such as cloning. That is left for another day. The language in this 
bill is clear, specific; it is easy to understand. We may have 
differences on some of the other issues we may get into over a period 
of time, but this is one, as I have searched around, where there is a 
broad coalition, left and right, that says yes, this one should be 
banned. That is why we worked closely with Ms. Nader's group, consulted 
with biotechnology groups, who were saying: Yes, this is not a place we 
should be going either. Here is a place we can stop this.
  This is the only vehicle I could see where there was some connection 
bringing this up. If we could do it on a freestanding bill at some time 
on the floor, I would be happy to do that, but absent that, I would 
like to get this considered on this bill.
  I yield the floor. I don't know that there is a time agreement on 
this amendment. Is that correct?
  The PRESIDING OFFICER. There is a time agreement. There is 1 hour 
evenly divided.
  Mr. BROWNBACK. Thank you, Madam President.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Madam President, I want to express a great deal of 
respect for my friend and colleague for his concern and interest in a 
great variety of different public policy issues, and also their ethical 
implications. He studies these issues. He is concerned about them. He 
brings them into the public debate and discussion. We always listen 
with great interest to his presentations on these matters because he 
has given this a great deal of thought.
  Even so, I must rise to oppose this amendment. I can understand the 
good Senator's frustration that we do not have a real opportunity to 
have the kind of debate on a freestanding bill that could give the 
Senate the benefit of a good discussion on this issue. Unfortunately, 
we are here at 20 minutes of 10. There are just a few of us here at 
this time, and we will only have a few minutes tomorrow to deal with an 
issue of enormous importance and consequence.
  Millions of American children are born with deadly diseases such as 
cystic fibrosis and muscular dystrophy that result from flaws in the 
DNA code. One of the most promising ways to cure these afflictions is 
to correct these DNA errors using gene therapy. If these flaws could be 
corrected before birth, millions of children could live their entire 
lives free of the debilitating symptoms of cruel genetic disorders.
  Yet the Brownback amendment would ban any attempt to cure children of 
deadly disorders such as cystic fibrosis and muscular dystrophy by 
correcting their DNA flaws before birth.
  It even goes so far as to imprison doctors who try to save their 
lives and relieve their suffering.
  The Brownback amendment is opposed by a wide range of organizations 
representing patients, doctors, scientists, and the biotechnology 
industry. They know this amendment would have a chilling effect on the 
biomedical research that gives hope to millions of Americans at risk 
for genetic diseases.
  The amendment is so broad that it will criminalize several promising 
areas of biomedical research, even including gene therapy in adults.
  This important, complex topic deserves a thoughtful and measured 
response, and not the indiscriminate prohibition that the Brownback 
amendment proposes.
  The American people do not support the sweeping prohibitions that the 
Brownback amendment would impose.
  A recent study funded by the NIH conducted by the University of 
Michigan found that 65 percent of the public opposed a ban on prenatal 
gene therapy, and only one in five of those support such a ban.
  There are great numbers of genetic diseases, and there are great 
numbers of inherited diseases. Those that come to mind quickly are 
cystic fibrosis and muscular dystrophy, Tay-Sachs, Cooley's disease, 
and many others in the cystic fibrosis area.
  It is basically an issue involving a single gene. That is also true 
in muscular dystrophy.
  Just think if we were able to get to the point where a parent would 
be able to see the alteration of that gene so that the child that was 
going to be born would be free from muscular dystrophy or from cystic 
fibrosis by altering the DNA.

[[Page 12358]]

  We can easily understand where the language that is included may not 
be the purpose of the Senator, but certainly the language I think is 
sufficiently vague as to prohibit some promising research.
  At this time, I think this is a matter of enormous importance. I 
don't think we really ought to be dealing with this issue on this bill.
  I can understand the Senator's frustration in not being able to have 
the debate in the Senate and to hear the different views on this issue. 
But I believe we ought to defeat the amendment for now, have additional 
review and study and hearings, and that we ought to then consider the 
various public policy issues and the ethical issues that surround it.
  Mr. REID. Madam President, will the Senator yield?
  Mr. KENNEDY. Yes.
  Mr. REID. I would like to ask the Senator a question. A couple of 
years ago when I was chairman of the Democratic Policy Committee, one 
of the issues at the time was cloning, for lack of a better 
description. We had a luncheon at the Democratic Policy Committee. This 
may not be directly in point, but it points up what the Senator is 
saying. This is a very complex issue. We need more time and medical 
expertise to respond to this.
  But the Senator will remember that we had a hematology professor from 
Harvard. We had the leading expert on gene therapy at NIH. The Senator 
will recall a number of things. The thing that is so vivid in my mind 
is the Harvard professor, who was of course a practicing physician, 
gave an example of how progress is being made in the medical field and 
in the areas that need more study.
  He said that a young woman with leukemia was referred to him. I do 
not know the scientific name nor the type of leukemia. He did the 
examination and looked at the information he had been given.
  The Senator will recall that the doctor asked this young lady if she 
had a brother or sister. She said no. He said that right then he knew 
she was in big trouble. She probably couldn't make it and would die.
  The next day, the Senator will recall, another teenager came in with 
leukemia. It was the same process. He asked this young man if he had a 
brother or sister. He said no, and paused for a second. He said: I am a 
twin. The doctor said that he knew right then that the young man was 
going to live as long as anybody in this room because they could do a 
bone marrow transplant and regenerate those cells.
  I don't fully understand what the Senator from Kansas is advocating 
with his amendment. I know he is candid and is well placed. I know 
after having listened to the woman from NIH and the professor from 
Harvard that I have great hope progress is being made on some of the 
most dreaded diseases that face especially children in America today.
  The Senator from Massachusetts and I know how well-intentioned the 
Senator from Kansas is. I think we should defeat this amendment and 
wait for a later day so we can have more opportunity to examine this 
more closely.
  The Senator remembers that meeting in the room right down the hall 
here?
  Mr. KENNEDY. I do remember. All of us as Members of this body get a 
chance to go out to NIH and visit with the researchers and listen, 
watch, and hear about those extraordinary, dedicated men and women who 
are dealing with so much of the cutting edge research.
  I think we want to make sure that we are very careful in the steps we 
are going to take that in some way would inhibit research. There are 
obviously strong ethical issues which we constantly have to examine and 
consider.
  But I am very much concerned about the kind of prohibition that this 
type of amendment would include.
  I want to make it clear that the amendment that the Senator from 
Kansas puts forward does not ban cloning, but it would ban similar 
cutting edge research.
  That is what our concern is and why we will oppose it tomorrow.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. BROWNBACK. Madam President, I would like to correct some 
miscalculation with the Senator from Massachusetts. I want to read from 
the amendment because he represented a couple of examples that we 
specifically state in the bill we are not prohibiting.
  On page 4 of the amendment under ``construction,'' it states 
specifically that:

       Nothing in this Act is intended to limit somatic cell gene 
     therapy, or to effect research involving human pluripotent 
     stem cells.

  This somatic cell gene therapy is what you are talking about where 
you have already the sperm and egg, and you have a full chromosome. 
That is where you may want to make changes, and that is where the 
research is focused. Now they can deal with some of the dreaded 
diseases the Senator from Massachusetts says we should rightly try to 
deal with. I agree that we should.
  We specifically added that. We covered that point the Senator raised 
and about which he has concern because we don't want to impact that 
area. We talk about this on page 3. It says:

       The term ``human germline gene modification'' means the 
     intentional modification of DNA in any human cell for the 
     purpose of producing a genetic change which can be passed on 
     to future individuals.

  In this amendment we are saying: Do we really want to change the 
human species without knowing what the impact is going to be down the 
road? Maybe we have a shot at changing this one, but what is it going 
to do to the next generation, the second one, the third one, the fourth 
one, and after that?
  I also point out to the good Senator who has worked tirelessly to get 
this bill through to passage--I appreciate both his work and the work 
of the Senator from Nevada on just continuing to press forward. They 
have done a very good job. But I point out to them that we have 
significant limitations on doing this to animals. Right now, if you 
wanted to take a fish and put a tomato germline in it, or something 
from a tomato gene--actually this is being done--this is a heavily 
regulated area by FDA, and the USDA, as well it should be. My goodness, 
do we want to get super fish out here that could swim and do things and 
take over a whole area of species? They are actually concerned. It may 
sound scientific, like this is just off the wall. But this is happening 
today.
  We have these deep concerns within our society. You do not have to 
listen to me. The Senator from California knows what is taking place 
this week in southern California. People are deeply concerned about 
this being done with animals and plants.
  All I am talking about with this amendment is to say, the careful 
thing for us to do right now is to prohibit it in humans.
  As the Senator from Massachusetts knows, in any future legislative 
session we can remove that prohibition. We could do that next year. But 
wouldn't the careful, thoughtful thing be to say right now: ``We don't 
want to modify the human species''? It has no regulation, no 
limitation, no review on it today. People are out there doing these 
things.
  Wouldn't the really thoughtful position be that we should stop this 
because we don't know its impact down the road--stop this now--and 
then, if the researchers really convince us this is the right thing to 
do, we can open it back up? I think we open up an incredible Pandora's 
box if we allow this unregulated area of human experimentation to 
continue at this time. And that is what is being defended here.
  I think this should give us some thoughtful consideration. This is 
limited in its drafting. We have worked with a number of groups on its 
drafting. It is very specific. This has to do with it being passed down 
to future generations. This is something that we should prohibit at 
this time.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Madam President, there are several organizations that 
draw different conclusions about the Senator's amendment. You have the

[[Page 12359]]

Biotechnology Industry Organization that says:

       Unfortunately, the Brownback amendment reaches far beyond 
     germ line gene modification. It attempts to regulate genetic 
     research--a complex and dynamic field of science that holds 
     great potential for patients with serious and often life-
     threatening illnesses.

  And from the Association of American Medical Colleges:

       Much more troubling, however, the amendment reaches far 
     beyond germ line therapy. Taken on its face, the amendment 
     would prohibit other areas of research into gene therapy as 
     well.

  I ask unanimous consent an analysis be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                               Memorandum

                                                    June 28, 2001.
     To: Michael Werner, Esquire, BIO Bioethics Counsel.
     From: Edward L. Korwek, Ph.D., J.D.
     Re: Some Initial Comments/Analysis of the Brownback 
         Amendment.
       The Brownback Amendment is poorly worded and confusing as 
     to its precise coverage. It uses a variety of scientific 
     terms and other complex language both to prohibit and allow 
     certain gene modification activities. Many of the sentences 
     are composed of language that is incorrect or ambiguous from 
     a scientific standpoint. A determination needs to be made of 
     what each sentence of the Amendment is intended to 
     accomplish.
       As to a few of the important definitions, the term 
     ``somatic cell'' is defined in proposed section 301(3) of 
     Chapter 16, as ``a diploid cell (having two sets of the 
     chromosomes of almost all body cells) obtained or derived 
     from a living or deceased human body at any stage of 
     development.'' What does ``of almost all body cells'' mean? 
     Is this an oblique reference to the haploid nature of human 
     sex cells, i.e., sperm and eggs? Also, why is it important to 
     describe in such confusing detail from where the cells are 
     derived (in contrast to simply saying, for example, a somatic 
     cell is a human diploid cell)? From a scientific standpoint, 
     the definition of a somatic cell is not dependent on whether 
     the cell is from living or dead human beings. More 
     importantly, as to this human source issue, when does a 
     ``human body'' exist such that its status as ``living'' or 
     ``dead'' or its ``stages of development'' become relevant 
     criteria for determining what is a ``somatic cell.''
       Similarly, the definition of ``human germline 
     modification,'' especially the first sentence, is very 
     convoluted. The first sentence states:
       ``The term `human germline gene modification' means the 
     intentional modification of DNA of any human cell (including 
     human eggs, sperm, fertilized eggs (i.e., embryos, or any 
     early cells that will differentiate into gametes or can be 
     manipulated to do so) for the purpose of producing a genetic 
     change which can be passed on to future individuals, 
     including DNA from any source, and in any form, such as 
     nuclei, chromosomes, nuclear, mitochondrial, and synthetic 
     DNA.''
       Among other problems, which of the examples listed are 
     ``sources'' or ``forms'' of DNA and why does it matter? 
     Moreover, the sentence ends by referring to ``including DNA 
     from any source, and in any form, such as nuclei, 
     chromosomes, nuclear, mitochondrial, and synthetic DNA.'' To 
     what part of the first sentence defining ``human germline 
     modification'' is this language referring? Does the last 
     sentence of the definition, ``Nor does it include the change 
     of DNA involved in the normal process of sexual 
     reproduction'' prohibit in vitro fertilization? Does any 
     other part of the Amendment prohibit or allow in vitro 
     fertilization? What genetic technologies does ``normal'' 
     cover, if any?
       Similarly, the second sentence in the definition, stating 
     what is not covered by the definition of ``human germline 
     modification,'' contains three ``not'' words, leaving the 
     reader to decipher what exactly is ``not'' ``human germline 
     modification'': ``The term does not include any modification 
     of cells that are not a part of and will not be used to 
     construct human embryos'' (emphasis added). Also, what is an 
     ``embryo'' for purposes of this Amendment and what does 
     ``part of'' mean? Are (fertilized) sex cells ``part of'' an 
     embryo?
       These and other problems leave the bill unsupportable in 
     its current form. Due to this imprecision, the amendment's 
     impact is unclear and seemingly far reaching.

  Mr. KENNEDY. Madam President, a memorandum by Hogan & Hartson says:

       The Brownback Amendment is . . . confusing as to its 
     precise coverage. It uses a variety of scientific terms and 
     other complex language both to prohibit and allow certain 
     gene modification activities.

  And it gives a several-page analysis of this.
  The fact is, as I understand it, there is a moratorium now at NIH. 
NIH does not permit any of the research in transferring of the 
materials in terms of genes at the present time.
  I just mention quickly, on page 3 of the amendment, on lines 10 and 
11, it talks about ``for the purpose of producing a genetic change 
which can be passed on to future individuals . . .'' That ought to be a 
matter of concern to parents because that is an area of very great 
potential in terms of parents who have the gene--in terms of cystic 
fibrosis, muscular dystrophy--in trying to impact that kind of DNA so 
that they will not pass this on. Yet this is talking about restricting 
the research for ``producing a genetic change which can be passed on to 
future individuals . . .'' That very area is a matter of enormous 
importance and consequence.
  I know the Senator has given this a lot of thought. It is enormously 
important. I respect him for it. I know that he revisits these issues 
continuously. We will look forward to continuing to work with him. I 
know he is incredibly concerned about the broad areas of ethical 
issues. In those areas of ethical concerns there are no simple, easy 
answers. There is enormous division, significant divisions, in many 
different areas.
  But it does seem to me that in the time that we have available to 
consider this, and on this particular legislation, and with the very 
strong opposition of the research community generally, that it would be 
unwise for us to add this at this time to the legislation.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. BROWNBACK. Madam President, I would just note once more for my 
colleagues that the area of genetic manipulation, germline therapy, is 
regulated in animals and in plants but is completely unregulated--there 
is nothing on it--in humans.
  Is that a responsible way for us to go? There is nothing on it. If we 
want to do it right now on the human species in the United States, go 
ahead, fine. If you want to do that, release that into us, into the 
human species, fine, go ahead. If you want to do it in fish, we have a 
series of hoops that you have to jump through and filings that you have 
to make and limitations on where this can take place all up and down, 
everywhere. But for humans, fine. I guess if we are going to eat it, we 
are concerned about it. But if it is one of us, OK.
  I have deep respect for the Senator from Massachusetts. He is very 
thoughtful and one of the most productive Members of this body, 
probably in the history of this body. But I would really seriously ask 
him to look at this area. Is this something we want to do in this 
society? This is not only technically or theoretically feasible today; 
it can be done today. It has been done in the animal line for years 
now. This has been going on for 10 years-plus, 15 years in animals. The 
genetic lineup in animals versus humans is not that much different. 
Totally unregulated, no limitations--go ahead and do it in humans, not 
in cattle.
  I would hope we could at least get some agreement that this is going 
to be further considered sometime during this legislative session. If 
we want more limited language, I am more than happy to work with 
individuals in drafting more limited language. If there is concern 
about gene therapy on it, I am willing to draft it as tight as they 
want to on gene therapy. That would be just fine by me. But to let this 
go on now, you are inviting people to step up. If we need to work with 
the groups the Senator listed to draft it more tightly, I am happy to 
do that.
  This is a serious matter. We have more and more people in the streets 
protesting about this very thing. I think we should wake up on that 
particular point, if nothing else. We saw the protest that took place 
in Seattle. We saw what it did to the World Trade talks. That was on 
food. We are seeing what is taking place in the Biotechnology Expo in 
Southern California right now. That is on humans.
  This issue is not going away. It is something that we are going to 
have to confront. I would hope and I would think we would be far wiser 
to do it sooner rather than later. I am happy to work with anybody on 
drafting the language to see that that takes place.
  The PRESIDING OFFICER. The Senator from Massachusetts.

[[Page 12360]]


  Mr. KENNEDY. I will include the regulations which are in existence 
now. I ask unanimous consent they be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 [From pages 90-92--NIH Guidelines for Research Involving Recombinant 
                             DNA Molecules]

       Appendix K-VII-K. Pathogen. A pathogen is any 
     microbiological agent or eukaryotic cell containing 
     sufficient genetic information, which upon expression of such 
     information, is capable of producing disease in healthy 
     people, plants, or animals.
       Appendix K-VII-L. Physical Barrier. A physical barrier is 
     considered any equipment, facilities, or devices (e.g., 
     fermentors, factories, filters, thermal oxidizers) which are 
     designed to achieve containment.
       Appendix K-VII-M. Release. Release is the discharge of a 
     microbiological agent or eukaryotic cell from a containment 
     system. Discharges can be incidental or accidental. 
     Incidental releases are de minimis in nature; accidental 
     releases may be de minimis in nature.
     Appendix L. Gene Therapy Policy Conferences (GTPCs)
       In order to enhance the depth and value of public 
     discussion relevant to scientific, safety, social, and 
     ethical implications of gene therapy research, the NIH 
     Director will convene GTPCs at regular intervals. As 
     appropriate, the NIH Director may convene a GTPC in 
     conjunction with a RAC meeting. GTPCs will be administered by 
     NIH/OBA. Conference participation will not involve a standing 
     committee membership but rather will offer the unique 
     advantage of assembling numerous participants who possess 
     significant scientific, ethical, and legal expertise and/or 
     interest that is directly applicable to a specific gene 
     therapy research issue. At least one member of RAC will serve 
     as Co-chair of each GTPC and report the findings of each GTPC 
     to RAC at its next scheduled meeting. The RAC representative 
     for each GTPC will be chosen based on the participant's area 
     of expertise relative to the specific gene therapy research 
     issue to be discussed. All RAC members will be invited to 
     attend GTPCs. GTPCs will have representation from other 
     Federal agencies, including FDA and OPRR. GTPCs will focus on 
     broad overarching policy and scientific issues related to 
     gene therapy research. Proposals for GTPC topics may be 
     submitted by members of RAC, representatives of academia, 
     industry, patient and consumer advocacy organizations, other 
     Federal agencies professional scientific societies, and the 
     general public. GTPC topics will not be limited to discussion 
     of human applications of gene therapy research, i.e., they 
     may include basic research on the use of novel gene delivery 
     vehicles, or novel applications of human gene transfer. The 
     RAC, with the Director's approval, will have the primary 
     responsibility for planning GTPC agendas. GTPC findings will 
     be transmitted to the NIH Director and will be made publicly 
     available. The NIH Director anticipates that this public 
     policy forum will serve as a model for interagency 
     communication and collaboration, concentrated expert 
     discussion of novel scientific issues and their potential 
     societal implications, and enhanced opportunity for public 
     discussion of specific issues and potential impact of such 
     applications on human health and the environment.
     Appendix M. Points to Consider in the Design and Submission 
         of Protocols for the Transfer of Recombinant DNA 
         Molecules into One or More Human Research Participants 
         (Points to Consider)
       Appendix M applies to research conducted at or sponsored by 
     an institution that receives any support for recombinant DNA 
     research from NIH. Researchers not covered by the NIH 
     Guidelines are encouraged to use Appendix M (see Section I-C, 
     General Applicability).
       The acceptability of human somatic cell gene therapy has 
     been addressed in several public documents as well as in 
     numerous academic studies. In November 1982, the President's 
     Commission for the Study of Ethical Problems in Medicine and 
     Biomedical and Behavioral Research published a report, 
     Splicing Life, which resulted from a two-year process of 
     public deliberation and hearings. Upon release of that 
     report, a U.S. House of Representatives subcommittee held 
     three days of public hearings with witnesses from a wide 
     range of fields from the biomedical and social sciences to 
     theology, philosophy, and law. In December 1984, the Office 
     of Technology Assessment released a background paper, Human 
     Gene Therapy, which concluded that civic, religious, 
     scientific, and medical groups have all accepted, in 
     principle, the appropriateness of gene therapy of somatic 
     cells in humans for specific genetic diseases. Somatic cell 
     gene therapy is seen as an extension of present methods of 
     therapy that might be preferable to other technologies. In 
     light of this public support, RAC is prepared to consider 
     proposals for somatic cell gene transfer.
       RAC will not at present entertain proposals for germ line 
     alterations but will consider proposals involving somatic 
     cell gene transfer. The purpose of somatic cell gene therapy 
     is to treat an individual patient, e.g., by inserting a 
     properly functioning gene into the subject's somatic cells. 
     Germ line alteration involves a specific attempt to introduce 
     genetic changes into the germ (reproductive) cells of an 
     individual, with the aim of changing the set of genes passed 
     on to the individual's offspring.
       The RAC continues to explore the issues raised by the 
     potential of in utero gene transfer clinical research. 
     However, the RAC concludes that, at present, it is premature 
     to undertake any in utero gene transfer clinical trail. 
     Significant additional preclinical and clinical studies 
     addressing vector transduction efficacy, biodistribution, and 
     toxicity are required before a human in utero gene transfer 
     protocol can proceed. In addition, a more thorough 
     understanding of the development of human organ systems, such 
     as the immune and nervous systems, is needed to better define 
     the potential efficacy and risks of human in utero gene 
     transfer. Prerequisites for considering any specific human in 
     utero gene transfer procedure include an understanding of the 
     pathophysiology of the candidate disease and a demonstrable 
     advantage to the in utero approach. Once the above criteria 
     are met, the RAC would be willing to consider well 
     rationalized human in utero gene transfer clinical trials.
       Research proposals involving the deliberate transfer of 
     recombinant DNA, or DNA or RNA derived from recombinant DNA, 
     into human subjects (human gene transfer) will be considered 
     through a review process involving both NIH/OBA and RAC. 
     Investigators shall submit their relevant information on the 
     proposed human gene transfer experiments to NIH/OBA. 
     Submission of human gene transfer protocols to NIH will be in 
     the format described in Appendix M-1, Submission 
     Requirements--Human Gene Transfer Experiments. Submission to 
     NIH shall be for registration purposes and will ensure 
     continued public access to relevant human gene transfer 
     information conducted in compliance with the NIH Guidelines. 
     Investigational New Drug (IND) applications should be 
     submitted to FDA in the format described in 21 CFR, Chapter 
     1, Subchapter D, Part 312, Subpart B, Section 23, IND Content 
     and Format.
       Institutional Biosafety Committee approval must be obtained 
     from each institution at which recombinant DNA material will 
     be administered to human subjects (as opposed to each 
     institution involved in the production of vectors for human 
     application and each institution at which there is ex vivo 
     transduction of recombinant DNA material into target cells 
     for human application).
       Factors that may contribute to public discussion of an 
     human gene transfer experiment by RAC include: (i) new 
     vectors/new gene delivery systems, (ii) new diseases, (iii) 
     unique applications of gene transfer, and (iv) other issues 
     considered to require further public discussion. Among the 
     experiments that may be considered exempt from RAC discussion 
     are those determined not to represent possible risk to human 
     health or the environment. Full RAC review of an individual 
     human gene transfer experiment can be initiated by the NIH 
     Director or recommended to the NIH Director by: (i) three or 
     more RAC members, or (ii) other Federal agencies. An 
     individual human gene transfer experiment that is recommended 
     for full RAC review should represent novel characteristics 
     deserving of public discussion. If the Director, NIH, 
     determines that an experiment will undergo full RAC 
     discussion, NIH/OBA will immediately notify the Principal 
     Investigator. RAC members may forward individual requests for 
     additional information relevant to a specific protocol 
     through NIH/OBA to the Principal Investigator. In making a 
     determination whether an experiment is novel, and thus 
     deserving of full RAC discussion, reviewers will examine the 
     scientific rationale, scientific context (relative to other 
     proposals reviewed by RAC), whether the preliminary in vitro 
     and in vivo safety data were obtained in appropriate models 
     and are sufficient, and whether questions related to relevant 
     social and ethical issues have been resolved. RAC 
     recommendations on a specific human gene transfer experiment 
     shall be forwarded to the NIH Director, the Principal 
     Investigator, the sponsoring institution, and other DHHA 
     components, as appropriate. Relevant documentation will be 
     included in the material for the RAC meeting at which the 
     experiment is scheduled to be discussed. RAC meetings will be 
     open to the public except where trade secrets and proprietary 
     information are reviewed (see Section IV-D-5, Protection of 
     Proprietary Data). RAC prefers that information provided in 
     response to Appendix M contain no proprietary data or trade 
     secrets, enabling all aspects of the review to be open to the 
     public.
       Note: Any application submitted to NIH/OBA shall not be 
     designated as `confidential;' in its entirety. In the event 
     that a sponsor determines that specific responses to one or 
     more of the items described in Appendix M should be 
     considered as proprietary or trade secret, each item should 
     be clearly identified as such. The cover letter (attached to 
     the submitted material) shall: (1) clearly

[[Page 12361]]

     indicate that select portions of the application contain 
     information considered as proprietary or trade secret, (2) a 
     brief explanation as to the reason that each of these items 
     is determined proprietary or trade secret.
       Public discussion of human gene transfer experiments (and 
     access to relevant information) shall serve to inform the 
     public about the technical aspects of the proposals, meaning 
     and significance of the research, and significant safety, 
     social, and ethical implications of the research. RAC 
     discussion is intended to ensure safe and ethical conduct of 
     gene therapy experiments and facilitate public understanding 
     of this novel area of biomedical research.
       In its evaluation of human gene transfer proposals, RAC 
     will consider whether the design of such experiments offers 
     adequate assurance that their consequences will not go beyond 
     their purpose, which is the same as the traditional purpose 
     of clinical investigation, namely, to protect the health and 
     well being of human subjects being treated while at the same 
     time gathering generalizable knowledge. Two possible 
     undersirable consequences of the transfer of recombinant DNA 
     would be unintentional: (i) vertical transmission of genetic 
     changes from an individual to his/her offspring, or (ii) 
     horizontal transmission of viral infection to other persons 
     with whom the individual comes in contact. Accordingly, 
     Appendices M-I through M-V request information that will 
     enable RAC and NIB/OBA to assess the possibility that the 
     proposed experiment(s) will inadvertently affect reproductive 
     cells or lead to infection of other people (e.g., medical 
     personnel or relatives).
       Appendix M will be considered for revisions as experience 
     in evaluating proposals accumulates and as new scientific 
     developments occur. This review will be carried out 
     periodically as needed.
     Appendix M-I. Requirements for Protocol Submission, Review, 
         and Reporting--Human Gene Transfer Experiments

     Appendix M-I-A. Requirements for Protocol Submission
       The following documentation must be submitted (see 
     exemption in Appendix M-VI-A, Footnotes of Appendix M) in 
     printed or electronic form to the: Office of Biotechnology 
     Activities, National Institutes of Health, 6705 Rockledge 
     Drive, Suite 750, MSC 7985 Bethesda, MD. 20892-7985 (20817 
     for non-USPS mail), 301-496-9838, 301-496-9839 (fax), E-mail: 
     [email protected]. NIH OBA will confirm receipt within 
     three working days after receiving the submission. 
     Investigators should contact OBA if they do not receive this 
     confirmation.
       1. A cover letter on institutional letterhead, signed by 
     the Principal Investigator(s), that (1) acknowledge that the 
     documentation submitted to NIH OBA compiles with the 
     requirements set forth in Appendix M-I-A, Requirements for 
     Protocol Submission: (2) identifies the Institutional 
     Biosafety Committee (IBC) and Institutional Review Board 
     (IRB) as the proposed clinical trial site(s) responsible for 
     local review and approval of the protocol; and (3) 
     acknowledges that no research participant will be enrolled 
     (see definition of enrollment in Section I-E-7) until the RAC 
     review process has been completed (see Appendix M-I-B, RAC 
     Review Requirements); IBC approval (from the clinical trial 
     site) has been obtained; IRB approval has been obtained; and 
     all applicable regulatory authorizations have been obtained.
       2. The scientific abstract.
       3. The non-technical abstract.
       4. The proposed clinical protocol, including tables, 
     figures, and relevant manuscripts.
       5. Responses to Appendices M-II through M-V, Description of 
     the Proposal, Informed Consent, Privacy and Confidentiality, 
     and Special Issues. Responses to Appendices M-II through M-V 
     may be provided either as an appendix to the clinical 
     protocol or incorporated in the clinical protocol. If 
     responses to Appendixes M-II through M-V are incorporated in 
     the clinical protocol, each response must refer to the 
     appropriate Appendix M-II through M-V.

  Mr. KENNEDY. Finally, the reason there is a moratorium is there isn't 
reason to believe that this kind of research is safe today. But it may 
very well be safe tomorrow or the next day. And the possibilities, as I 
say, are unlimited. The action of the Senator may effectively close 
that window, close that door. I do not think that we ought to be in the 
position of doing that. So I have included the current state of the 
regulations that are in effect now in NIH and the reasons for those 
regulations.
  Unless there is someone else who wants to speak on this----
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. BROWNBACK. Madam President, I would like to respond on that point 
as well. The FDA is saying they have authority over this. One of the 
groups they are seeking to regulate is saying they do not have 
authority, and they are going to sue them to keep the FDA from 
regulating them.
  So regulations have been proposed, but it is a very open question 
about whether or not this applies to groups that are seeking to do this 
or seeking legal injunction prohibiting the FDA from regulating this. 
So we can put those on forward.
  The fact is, this has not been dealt with, and it is of utmost 
importance to people in this country and around the world, and it 
should be. This should not happen during our watch.
  The PRESIDING OFFICER. Does the Senator yield the remainder of his 
time?
  Mr. BROWNBACK. Madam President, I ask for the yeas and nays.
  The PRESIDING OFFICER. The yeas and nays have been requested.
  Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. BROWNBACK. Madam President, I yield back the remainder of my 
time.
  The PRESIDING OFFICER. Does the Senator from Massachusetts yield back 
his time?
  Mr. KENNEDY. I yield back the remainder of my time.
  The PRESIDING OFFICER. Who seeks recognition? The Senator from Nevada 
is recognized.


                           Amendment No. 849

          (Purpose: To provide for genetic nondiscrimination)

  Mr. ENSIGN. Madam President, I call up amendment No. 849 and ask for 
its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The senior assistant bill clerk read as follows:

       The Senator from Nevada [Mr. Ensign] proposes an amendment 
     numbered 849.

  Mr. ENSIGN. Madam President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The text of the amendment is printed in today's Record under 
``Amendments Submitted.'')
  Mr. ENSIGN. Madam President, the amendment that I have proposed 
really is entitled the ``protection against genetic discrimination 
act.'' The Senator from Massachusetts is one of the cosponsors of a 
bill that contains this particular amendment, along with 22 other 
Senators.
  The mapping of the human genome is one of the most amazing scientific 
breakthroughs in recent history. Information that is embedded in the 
genome holds the key to understanding the illnesses and diseases that 
affect millions of people across the world every day.
  I would like to note, this has nothing to do with the amendment that 
Senator Brownback just proposed. We want to keep the controversies 
separate. What our amendment deals with is whether you can take this 
genetic information and use it to determine whether or not to provide 
health insurance coverage.
  When the map of the human genome is completed, we will have all of 
the information that is contained in the 23 pairs of chromosomes in the 
human body. This information will be instrumental for finding the cure 
for diseases such as breast cancer, cystic fibrosis, Alzheimer's 
disease, and hundreds of other debilitating illnesses.
  However, this breakthrough also carries great dangers. Current law 
does not provide any protections for individuals to keep their own 
genetic information private. Currently there is no law prohibiting a 
health plan from requiring an applicant to provide genetic information 
prior to the approval for insurance. In other words, any individual 
with a genetic marker for a specific disease would most likely not be 
able to receive health insurance coverage for the treatment of that 
disease.
  A joint report by the Department of Labor, Department of Health and 
Human Services, the Equal Employment Opportunity Commission, and the 
Department of Justice summarized the various studies on discrimination 
based on genetic information and argued for the enactment of Federal 
legislation.
  The report stated that:

       Genetic predisposition or conditions can lead to work force 
     discrimination, even in cases where workers are healthy and 
     unlikely to develop disease, or where the genetic condition 
     has no affect on the ability to perform work.

[[Page 12362]]

       Because an individual's genetic information has 
     implications for his or her family members and future 
     generations, misuse of genetic information could have 
     intergenerational effects that are broader than any 
     individual incident of misuse.

  Dr. Francis Collins, the director of the National Human Genome 
Research Institute, has stated:

       While genetic information and genetic technology hold great 
     promise for improving human health, they can always be used 
     in ways that are fundamentally unjust. Genetic information 
     can be used as the basis for insidious discrimination.
       The misuse of genetic information has the potential to be, 
     and is, a very serious problem both in terms of people's 
     access to employment and health insurance and the continued 
     ability to undertake important genetic research.

  This amendment takes the first step toward providing individuals with 
the protections they need for their individual genetic information.
  This amendment, as I mentioned before, is part of a larger bill that 
Senator Daschle has introduced on this very same subject. Simply put, 
this amendment prohibits health insurance companies from using genetic 
information when deciding whether or not to provide health insurance 
for an individual.
  Insurance companies would not be able to use genetic information to 
deny an individual's application for coverage or charge excessive 
premiums.
  Think about diseases such as Tay-Sachs, sickle-cell anemia, breast 
cancer, colon cancer, cystic fibrosis, and other diseases in which we 
have identified genes that predispose people to these diseases. Just 
think about how many Americans this affects now and will affect in the 
future as we discover new genes that predispose people to certain 
diseases. It is because of this that we must include this amendment if 
we are truly going to call this bill a Patients' Bill of Rights.
  Madam President, my wife and I helped co-found the Breast Cancer 
Coalition of Nevada. Many of the women who are actively involved in 
this wonderful organization are breast cancer survivors or family 
members of women who have died from breast cancer. A wonderful friend 
of my wife and I, one of the most incredible women I have ever met, 
died in my wife's arms several years ago. She died of breast cancer. To 
think about women such as her who have had a gene identified, or maybe 
her daughter the same, to think about her someday being discriminated 
against getting health insurance is just unconscionable.
  I encourage all of my Senate colleagues, including the sponsors of 
the bill, to accept this amendment. It is the right thing to do. I urge 
its adoption.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Carper). The Senator from North Carolina.
  Mr. EDWARDS. Mr. President, we yield back the remainder of our time.
  Mr. ENSIGN. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be.
  The yeas and nays were ordered.
  Mr. ENSIGN. Mr. President, I yield back the remainder of my time on 
this amendment.


                           Amendment No. 848

  Mr. ENSIGN. Mr. President, I call up amendment No. 848 and ask for 
its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Nevada [Mr. Ensign] proposes an amendment 
     numbered 848.

  Mr. ENSIGN. Mr. President, I ask that further reading of the 
amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

  (Purpose: To provide that health care professionals who provide pro 
bono medical services to medically underserved or indigent individuals 
                       are immune from liability)

       At the end, add the following:

     SEC. __. IMMUNITY.

       (a) In General.--Notwithstanding any other provision of 
     law, no health care professional shall be liable for the 
     performance of, or the failure to perform, any duty in 
     providing pro bono medical services to a medically 
     underserved or indigent individual.
       (b) Definitions.--In this section:
       (1) Health care professional.--The term ``health care 
     professional'' has the meaning given the term in section 151.
       (2) Medically underserved or indigent individual.--The term 
     ``medically underserved or indigent individual'' means an 
     individual that does not have health care coverage under a 
     group health plan, health insurance coverage, or any other 
     health care coverage program, or who is unable to pay for the 
     health care services that are provided to the individual.

  Mr. ENSIGN. Mr. President, this next amendment I am offering comes 
once again from personal experience. I have a very close friend, Dr. 
Tony Alamo. He is a few years younger than me, and is an internist in 
Las Vegas. Our parents have known each other for a long time. He 
graduated from USC medical school. I don't know that I have ever seen 
anybody work harder.
  Internists today don't make nearly the money that a lot of surgical 
specialists make, but the compassion that they have for their patients 
is just incredible. I remember a few years ago talking to him and what 
he had to tell me was amazing. As a practicing veterinarian, we get to 
choose who we take, who we don't take, and when they come into our 
offices. But as a physician, when he happens to be there treating 
another patient, if somebody comes in and he happens to be the 
attending physician, he has to treat that person, regardless of whether 
they have insurance or no insurance, can pay or cannot pay.
  When he takes that person on as a patient, he cannot get rid of that 
patient. So he has to continue through the course of the disease, if he 
is in the hospital, has a heart condition, he has to continue 
regardless of whether he gets reimbursed or not.
  The purpose of my amendment is to say we want them to continue that 
kind of care, but if out of the goodness of their heart they are 
treating for free, we just want to eliminate the possibility that they 
can be sued for such a matter.
  We are looking at this as a situation that is similar to Good 
Samaritan laws. For example, when somebody stops on the side of the 
freeway because somebody is hurt and they don't know exactly what to do 
but they want to help and they happen to do more harm than good, we 
have passed laws across the country that helps a Good Samaritan in that 
regard.
  The practice of medicine, as anybody who has practiced knows, whether 
it is veterinary medicine or human medicine, is both an art and a 
science. As a matter of fact, it is more art than science. Things go 
wrong. Sometimes things go wrong that may look like malpractice. And 
sometimes it is something the doctor had nothing to do with, yet they 
can still be taken to court.
  Our amendment says that if health care professionals are going to do 
this, we want to protect those people from lawsuits.
  It seems to me that if somebody is providing something out of the 
goodness of their heart on a pro bono basis, they could not be sued. In 
fact, I would support a similar proposal that granted lawyers the same 
protection. If they are providing pro bono services, they could not be 
sued. I think if this was a lawyer's bill of rights, we would include 
that as well. But this happens to be a Patients' Bill of Rights, and 
for the physicians that are treating these patients, we want to make 
sure they are protected.
  We have spoken to Senator McCain's staff and, apparently, they think 
the language is acceptable. I think in the long run this is going to go 
a long way. I have spoken to Senator Frist who, as many of you know, is 
a heart surgeon. He does volunteer work in clinics, both overseas and 
also here in the United States. He doesn't get paid for these services. 
Yet, he has to maintain medical malpractice insurance. He pays premiums 
out of his pocket each year so that if he gets sued, he is covered.
  This is probably the only amendment in this entire bill that actually 
will lower--it will only lower it slightly--the cost of health 
insurance. It would help lower both the cost of medical malpractice 
premiums and eventually the cost of coverage premiums for consumers as 
well.

[[Page 12363]]

  Mr. President, I don't know if anybody is going to oppose this 
amendment. I can't understand why they would. I would be more than 
happy to engage in a debate on this if anybody has a problem with it.
  I yield the floor at this time.
  The PRESIDING OFFICER. The Senator from North Carolina is recognized.
  Mr. EDWARDS. First, I say to the Senator from Nevada that Senator 
Coverdell had a bill that he passed called the Volunteer Protection Act 
of 1997. It specifically provides protection for volunteers, including 
physicians, who provide pro bono services. So I suggest to my 
colleague, I don't know if he thinks there is a problem with that law 
or the way it is written. There is no way for me to know that based on 
this amendment. But a specific law already covers this subject matter. 
It was passed by the Senate and signed into law in 1997. So, first, I 
suggest that my colleague look at that law and make sure what he is 
concerned about is not covered by it.
  Second, this Bipartisan Patient Protection Act is about HMO reform. 
It is not about physician liability or the lack thereof--either of 
those. We would certainly have a problem with adding an amendment to 
this legislation that is not related to the issue of HMO reform.
  So I say to my colleague, again, understanding that we are just 
seeing his amendment, in fairness, I will be happy to talk with him 
about it, but those were my immediate concerns. There appears to be a 
law that already covers this subject matter. We would always be 
concerned, of course, even under those circumstances, about a health 
care provider who acted recklessly. I don't know whether his amendment 
covers that or not.
  Third, the general issue of adding these kinds of provisions to an 
HMO reform bill, which is what this bill is about, would also be a 
concern.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. ENSIGN. First of all, physicians I have spoken to do not think 
the bill the Senator is talking about adequately covers them. That is 
why they still have to carry medical malpractice insurance, similar to 
what Senator Frist has to carry. My amendment would help lower the cost 
of this type of coverage, so we think this bill is necessary. I don't 
understand--if this is already covered in law, why would it be a 
problem to include it to make sure we are saying to the courts that we 
absolutely want to cover people who are providing pro bono services to 
the needy.
  Mr. EDWARDS. I say to my colleague that if there is already a law in 
place that covers this issue, it seems as a matter of procedure that 
the appropriate thing to do would be to amend the already existing law 
that covers the subject matter, as opposed to adding this measure to an 
HMO reform piece of legislation.
  So I guess, just as a matter of orderly process, that would make 
sense to me.
  Mr. ENSIGN. We have been looking for a vehicle to include this in. We 
have wanted to deal with this for some time. This is a Patients' Bill 
of Rights, and I know it deals mostly with HMOs, but we are looking at 
our health care system and providing rights to patients. This is part 
of the health care bill that I think appropriately should have an 
amendment such as this, simply because I don't think there is any 
question that we are driving up health care costs in this country. If 
anything can help drive down, even a small amount, the cost of health 
care, I think we should do it.
  If between now and tomorrow morning, if there is other language the 
Senator thinks we need to massage into our amendment, I would be more 
than happy to work with the Senator from North Carolina. But as it 
stands, we think this is an important amendment.
  Mr. EDWARDS. Mr. President, I say to my colleague, I appreciate his 
comments. He and I are friends, and I would like to find a way to work 
on this. I will be happy to talk to him about this when we adjourn.
  Having said that, I continue to have a significant concern about 
raising an issue on the HMO reform bill that is not related to HMO 
reform. We have pretty consistently throughout this debate opposed and 
defeated amendments unrelated to the coverage of this bill. There are 
obviously many subject matters that are related to the general area of 
health reform and health care. If we start adding amendments on all 
subjects of health care, we would never get this legislation completed 
and passed. I continue to have that concern.
  I am happy to work with my colleague and listen to his concerns and 
work on language, although at this moment this is an amendment we would 
be compelled to oppose.
  Mr. ENSIGN. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. REID. Mr. President, I ask unanimous consent that when the Senate 
resumes consideration of the Patients' Bill of Rights on Friday, June 
29, at 9 a.m., the Senate proceed to vote in relation to the following 
amendments, and it be disposed of in the following order, with no 
second-degree amendments in order prior to the votes; further, that 
there be 4 minutes of debate prior to each vote, and that the first 
rollcall vote be 15 minutes in length and subsequent rollcall votes be 
10 minutes in length. The order of the votes tomorrow morning would be: 
Santorum, DeWine, Grassley, Nickles, Brownback, Ensign No. 849, and 
Ensign No. 848.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. REID. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, I indicated earlier in this debate that I 
would complete reading into the Record the names and titles of 
organizations that support the Patient Protection Act. Therefore the 
following is the final list:

       Gateway; Gateways for Youth and Families in WA; George 
     Junior Republic in Indiana; Gibault; Girls and Town in NE; 
     Goodwill-Hinckley Homes for Boys; Greenbrier Children's 
     Center; Growing Home in St. Paul, MN; Haddasah; Heart of 
     America Family Services; Hemochromatosis Foundation; 
     Hereditary Colon Cancer Association; Highfields, Inc. in 
     Onondaga, MI; Holy Family Institute of Pittsburgh, PA; Home 
     on the Range in Sentinel Butte in Sentinel Butte, ND; Hubert 
     H. Humphrey, III--Former Minnesota Attorney General; Human 
     Services, Inc.; IARCCA An Association of Children.
       Idaho Youth Ranch; Indiana United Methodist Children; 
     Infectious Disease Society of America; International 
     Association of Psychosocial Rehabilitation Services; Jackson-
     Feid Homes in VA; Jane Addams Hull House Association; Jeffrey 
     Modell Foundation; Jewish Board of Family & Children in New 
     York, NY; Jewish Community Services of South Florida; Jewish 
     Family & Career Services; Jewish Family & Children's Service 
     in TX; Jewish Family & Children's Service in Minnetonka, MN; 
     Jewish Family and Childrens Services; Jewish Family and 
     Community Service; Jewish Family Service in Providence, RI; 
     Jewish Family Service in Teaneck, NJ; Jewish Family Service 
     in TX; Jewish Family Service of Akron, OH; Jewish Family 
     Services of Los Angeles; Julia Dyckman Andrus Memorial 
     Children's Center in NY; June Burnett Institute.
       Kemmerer Village; Kentucky United Methodist Homes; 
     KidsPeace National Centers, Inc. in PA; Lakeside, Kalamazoo, 
     MI; LaSalle School, Inc. in Albany, NY; League of Women 
     Voters; Leake and Watts Services, Inc. in Yonkers, NY; 
     Learning Disabilities of America; Lee and Beulah Moor 
     Children's Home in TX; Lupus Foundation of America; Lutheran 
     Child & Family Service in Bay City, MI; Lutheran Child & 
     Family Services; Lutheran Social Services of Wisconsin; 
     Manisses Communications Group in RI; Maple Shade Youth & 
     Family Services; Maryhurst, Inc.; Maryland Association of 
     Resources for Families & Youth; Massachusetts Council of 
     Family; Mental Fitness Center; Mental Health Liaison Group; 
     MentalHealth AMERICA, Inc.; Methodist Children's Home in TX; 
     Metropolitan Family Service of Portland, OR; Metropolitan 
     Family Services of Chicago.
       Michigan Federation of Private Child & Family Agencies; 
     Mid-South Chapter of the

[[Page 12364]]

     Paralyzed Veterans of America; Milton Hershey School in 
     Hershey, PA; Missouri Baptist Children's Home; Missouri 
     Coalition of Children's Agencies; Missouri Girls Town; 
     Mooseheart Child City and School; Morning Star Boys' ranch in 
     WA; Mountain Community Resources; Namaqua Center; Natchez 
     Children's Home in Natchez MS; National Alliance for the 
     Mentally Ill; National Association for Rural Mental Health; 
     National Association for the Advancement of Orthotics and 
     Prosthetics; National Association of Children's Hospitals; 
     National Association of County Behavioral Health Directors; 
     National Association of Development Disabilities Councils; 
     National Association of People with AIDS; National 
     Association of Private School for Exceptional Children; 
     National Association of Private Special Education Centers; 
     National Association of Protection and Advocacy Systems; 
     National Association of School Psychologists.
       National Association of Social Workers; National 
     Association of Wholesaler-Distributors; National Black 
     Women's Health Project; National Breast Cancer Coalition; 
     National Catholic Social Coalition; National Catholic Social 
     Justice Lobby; National College of Osteopathic Emergency 
     Physicians; National Community Pharmacists Association; 
     National Consumers League; National Council for Community 
     Behavioral Health; National Depressive and Manic-Depressive 
     Association; National Down Syndrome Congress; National Family 
     Planning and Reproductive Health Association; National Health 
     Council; National Hemophilia Foundation; National Marfan 
     Foundation; National Mental Health Association; National 
     Multiple Sclerosis Society; National Organization of 
     Physicians Who Care; National Organization of State 
     Association for Children in MD; National Parent Network on 
     Disabilities; National Partnership for Women and Families; 
     National Patient Advocate Foundation; National Psoriasis.
       National Rehabilitation Association; National Therapeutic 
     Recreation Society; National Transplant Action Committee; 
     National Women's Health Network; Nation's Voice on Mental 
     Illness; Nazareth Children's Home in Rockwell, NC; NETWORK; 
     New Community Corporation in Newark, NJ; Newark Emergency 
     Services for Families in New Jersey; NISH; Norris Adolescent 
     Center in WI; Northeast Parent & Child Society in New York; 
     Northern Virginia Family Service; Northwest Chapter of the 
     Paralyzed Veterans of America; Northwest Children's Home, 
     Inc.; Northwood Children's Services in Duluth, MN; Oak Grove 
     Institute Foundation; Oakland Family Services; Olive Crest 
     Treatment Centers; Organization of Specialist in Emergency 
     Medicine; Outcomes, Inc. in Albuquerque, NM; PA Alliance for 
     Children and Families in Hummelstown, PA.
       Pacific Lodge Youth Services; Paget Foundation; Pain Care 
     Coalition; Palmer Home for Children in Columbus, MS; 
     Paralyzed Veterans of America; Patient Access Coalition; 
     Patient Access to Responsible Care Alliance; Pediatric 
     Orthopedic Society of North America; Pennsylvania Council of 
     Children in Harrisburg, PA; Personal & Family Counseling 
     Service of New Philadelphia, OH; Philadelphia Health 
     Management Corporation in PA; Planned Parenthood Federation 
     of America; Presbyterian Home for Children; Provident 
     Counseling, Inc. in St. Louis, MO; Rehabilitation Engineering 
     and Assistive Technology Society of North America; Religious 
     Action Center of Reform Judaism; Research Institute for 
     Independent Living; Riverbend Head Start & Family Service; 
     Salem Children's Home; Salvation Army Family Services; San 
     Mar, Inc. of Boonsboro, MD; Scarsdale Edgemont Family Counsel 
     in NY; School Social Work Association of America.
       Seattle Children's Home in WA; Seedco/Non-Profit 
     Assistance; Service Net. Inc. in PA; Sheriffs Youth Programs 
     of Minneapolis; Sipe's Orchard Home in Conover, NC; Sjogren's 
     Syndrome Foundation; Society for Excellence in Eye care; 
     Society for Women's Health Research; Society of 
     Cardiovascular & Interventional Radiology; Society of 
     Excellence in Eye Care; Society of Gynecologic Oncologists; 
     Society of Maternal-Fetal Medicine; Southmountain Children's 
     Homes of America; St. Anne Institute of Albany, NY; St. 
     Colman's Home in Watervliet, NY; St. Joseph Children's Home; 
     St. Joseph's Indian School in SD; St. Mary's Home Home of 
     Beaverton, OR; St. Vincent's Services, Inc. of Brooklyn, NY; 
     Starr Commonwealth; Sunbeam Family Services of Oklahoma City, 
     OK; Sunny Ridge Family Center.
       Tabor Children's Services, Inc. of Doylestown, PA; Teen 
     Rancyh, Inc. Marlette, MI; Texas Association of Leaders in 
     Children & Family; Texas Medical Association; The Arc of the 
     United States; The Bradley Center in PA; The Center for 
     Families, Inc.--Shreveport, LA; The Endocrine Society; The 
     Family Center; The Hutton Settlement in WA; The Learning 
     Disabilities of America; The Mechanicsburg Children's Hoe of 
     Mechanicsburg, PA; The Mill; The Omaha Home for Boys in NE; 
     The Organization of Specialists in Emergency Medicine; The 
     Paget Foundation for Pagets's Disease of Bone and Related 
     Disorders; The Pressley Ridge Schools in PA; The Village 
     Family Service Center in Fargo, ND; The Woodlands in Newark, 
     OH; Third Way Center; Thornwell Home and School for Children 
     in SC; Title II Community AIDS National Network.
       Tourette Syndrome; Tourette Syndrome Association; Treatment 
     Access Expansion Project; Triangle Family Services in 
     Raleigh, NC; Tulsa Boys' Home in Tulsa, OK; Turning Point 
     Center; Uhlich Children's Home; United Cerebral Palsy 
     Association; United Community & Family Service; United 
     Methodist Children's Home; United Ostomy Association; United 
     Methodists Children's Home; US Public Interest Research 
     Group; Vera Lloyd Presbyterian Home & Family Services in AR; 
     Vera Lloyd Presbyterian Home; Verdugo Mental Health Center; 
     Village for Families & Children; Virginia Home for Boys; 
     Webster-Cantrell Hall; Whaley Children's Center; Wisconsin 
     Association of Family and Children; Wisconsin Paralyzed 
     Veterans of America; Woodland Hills in Duluth, MN; 
     Yellowstone Boys and Girls Ranch in Billings, MT; Youth 
     Haven, Inc.; Youth Service Bureau; and YWCA of Northeast 
     Louisiana.
  Mrs. FEINSTEIN. Mr. President, I rise today in support of the 
Bipartisan Patient Protection Act of 2001. Put simply, I believe this 
is a good bill.
  If the Senate approves this bill, we could offer health care 
protections to all 190 million Americans in private health plans within 
a week. It's that simple.
  Congress has a duty to pass a comprehensive Patients' Bill of Rights 
to make HMOs accountable to patients, and to ensure less HMO 
interference with medical decision making. We need to ensure, for 
example, access to emergency rooms, specialists, and clinical trials. 
Patients should be able to go to the emergency room closest to their 
home in the event of a medical emergency. This bill does just that.
  Each day, 10,000 physicians see patients harmed because a health plan 
has refused services. Patients and doctors feel that getting quality 
care is a constant battle. It is time for this to stop. And the time is 
now.
  Each day we wait to approve a comprehensive Patients' Bill of Rights, 
35,000 patients are denied access to the speciality care they need to 
manage or diagnose their illness.
  I want to read to you a heart-wrenching letter I received from a 
California mother who has had difficultly getting her health plan to 
approve medically necessary services for her disabled daughter.
  I believe this letter really highlights the humane reasons Congress 
must enact a strong Patients' Bill of Rights this year. This mother 
writes:

       My daughter is a total-care patient. She was in a terrible 
     car accident approximately 14 years ago and sustained brain 
     stem injuries and is a quadriplegic. I chose to keep her at 
     home. Her licensed care coverage is to be 24-hour care. In 
     the past two years, her insurance company has unilaterally 
     cut back on her nursing care to 5.5 hours a day.
       This is one of many unilateral decisions the insurance 
     provider has made regarding her care--disregarding her 
     doctor's and other medical providers' assessments.
       I, as her mother and conservator, who is not trained in 
     medical practices or care, am expected to cover the remainder 
     of the 18.5 hours a day. This has caused me to quit my job, 
     file bankruptcy, and most importantly, it has seriously 
     affected my health.
       I am a senior citizen and am not supposed to lift, however, 
     because of the practices of the insurance company, I have no 
     choice. I cannot tell you when I last had a full night's 
     sleep in the past several years.
       The insurance company not only cut back on her nursing 
     care, they stopped approving her therapy which included 
     physical, speech, and occupational.
       I received a letter from her current insurance carrier 
     stating that she was considered to be a normal employee and 
     in August of 2001 all the aforementioned items would be 
     stopped.
       This is not based on my daughter's current doctor's orders 
     nor her needs. This is not based on an assessment from an 
     independent medical establishment or by an experienced, 
     licensed nurse that was selected by the insurance company for 
     a complete assessment which supported the necessity of 24-
     hour nursing care.
       This decision is being made unilaterally by the insurance 
     company officials. Is this what insurance companies can do to 
     critically ill patients without any accountability or 
     liability on their part?

  I commend this mother for her commitment to providing her daughter 
with the best care available.
  This letter highlights the importance of giving doctors the power to 
make medical decisions about coverage and care rather than the ``green 
eye shade'' of the insurance companies.
  I strongly believe that doctors should be making the medical 
decisions. This

[[Page 12365]]

bill includes several provisions to help physicians determine what is 
medically necessary and to prevent insurance plans from defining 
medical necessity.
  These provisions are necessary because doctor after doctor has told 
me their ``horror stories'' of how plans try to arm twist, coerce, 
countermand, interfere with and even deny treatments that they have 
determined are medically necessary and appropriate.
  The bill prohibits plans from punishing providers for advising 
patients about their options for medical treatment.
  The bill also establishes, as the standard for review, that decisions 
should be made based on the medical condition of the patient and valid, 
relevant scientific evidence and clinical evidence and expert opinion.
  It also requires internal and external reviews of appeals of medical 
necessity to be made by physicians with expertise in the area of 
medicine being appealed.
  It requires reviewers in the independent review process to be a 
physician or health care professional who is licensed and ``typically 
treats the condition, makes the diagnosis, or provides the type of 
treatment under review.''
  On prescription drugs, the bill requires plans to make exceptions to 
restrictive drug formularies for medical necessity, if prescribed by 
the treating physician.
  It is my hope that these provisions will give doctors and other 
providers the legal underpinnings they need to make the professional 
medical judgments they are trained to make in their effort to give 
patients the best care possible.
  I also want to briefly speak to two other very important provisions 
included in this bill: First, this bill provides coverage to all 190 
Americans in private health plans. The competing bill in the Senate 
(Frist-Breaux) excludes approximately 20 million Americans because they 
are enrolled in a self-insured State and local government health plans. 
It is important we pass a bill that provides protections to all 
Americans.
  Second, I believe this bill offers a responsible approach to 
liability.
  Today, patients have few opportunities for recourse against the 
health plans that harm them. This is wrong.
  This bill gets rid of a health plan's special privileges. A health 
plan would bear responsibility only if it makes a medical decision and 
the patient dies or is harmed as a result.
  Doctors and other health practitioners are already held accountable 
for their mistakes under State law. If a ``green eye-shade'' overrules 
a doctor's medical judgement and harms a patient, the plan too should 
be held responsible.
  At the same time, this bill protects employers. If an employer does 
not make medical decisions, the employer can't be held liable. It is 
that simple.
  This bill does not overturn or preempt existing State liability laws. 
It specifically exempts doctors and hospitals from new causes of 
action. These are reasonable provisions. In States like California that 
have strong patient protections there has not been an explosion of 
lawsuits.
  In fact, since the inception of California's right-to-sue law in 
January 2001 and the unlimited damage it provides for, there has not 
been a single lawsuit filed.
  Instead, HMOs appear to be deferring more to patients' requests for 
treatment, according to the first data to emerge from the State's HMO 
regulator.
  California has the longest history in managed care and the highest 
number of insured people in HMOs nationwide. Over 70 percent of 
Californians are enrolled in either a commercial HMO or a preferred 
provider organization, PPO. Approximately 20 million non-elderly 
Californians have access to health insurance through their job or 
privately purchase coverage.
  So for California, these protections are critical.
  Due in part to the high penetration of managed care, California's 
health care system is on the verge of collapse. Resources are stretched 
to the limit and patients, as a result, are not getting the services 
they need.
  For example, California's capitation rate, the rate paid to doctors 
for treatment, is one of the lowest in the Nation. The average 
capitation rate in California reached its peak in 1993 at $45 per 
month. Last year, the rate dropped to $29 (PriceWaterhouse Coopers).
  These low reimbursement rates undoubtedly impact quality of care and 
access to services.
  Many California hospitals and other health care providers have been 
forced to limit hours of operation and discontinue services. The burden 
to provide care is put on those that have remained open, and many of 
these facilities are now facing financial problems of their own.
  I know that California's health care system is not unlike other 
systems across the country. The bottom line is that patients should not 
be the one's made to suffer at the hands of a failing health care 
system.
  People pay monthly premiums. They expect their health insurance to be 
there when they need it. That is what insurance is. It insures against 
loss from an unforeseen illness or injury.
  But with HMOs today, the certainty of good health care is being 
seriously eroded. Many people feel that every time they need care, it 
is a tremendous hassle.
  The bottom line is that people feel they have to fight to get the 
quality care they have paid for. Americans are tired of jumping through 
hoops to get good care.
  People should not have to fight for their health care. They pay for 
it out of their monthly paycheck. It should be there for them when they 
need it.
  I would like to close with a very tragic story about a young, 16 year 
old girl from Irvine, California who did not get the care she needed 
from her HMO in a timely manner. I think her story provides a poignant 
summary of the problem with managed care providers. Unfortunately, her 
story does not have a happy ending.
  Serenity Silen was diagnosed with acute myeloid leukemia, or AML, in 
late February 1998. She had gone to her HMO four times, to four 
different HMO doctors, since the beginning of 1998. Each time she 
complained of the exact same symptoms, all of which could indicate 
leukemia.
  Over the course of the four visits, Serenity's condition was never 
diagnosed. Finally, in the middle of February 1998, Serenity was taken 
to the emergency room of an out-of-network hospital because her mother 
was so frustrated with the care at their HMO.
  The emergency room doctor was the first doctor, in the five weeks 
since the symptoms arose, to order a complete blood count test. The 
blood count test indicated a dangerously high white blood cell count 
that was symptomatic of leukemia. With a much delayed diagnosis, 
Serenity's leukemia was now going to be much more difficult to treat.
  Fed up with the HMO, Serenity's parents sought a second opinion from 
a highly recognized oncologist at an out-of-network hospital. Serenity 
was transferred to that hospital to be under the oncologist's care. 
After being at the new hospital only a few days, Serenity explained to 
her parents that she did not realize how much pain she was in until the 
new hospital helped to take it away. After 2\1/2\ months at the new 
hospital, Serenity died. The disease had not been diagnosed in time.
  I urge my colleagues to support this bill. Support this bill for the 
children like Serenity in your State. The constituents who battle with 
their HMOs daily to get the quality care they need and deserve. Many of 
these patients are too sick to fight with their HMOs to get access to 
the services necessary to treat their illnesses. How many more lives 
are we going to have to lose to the HMO battle before Congress wises up 
and passes a Patients' Bill of Rights that protects the patient?
  This bill has been a long time in the making. Let's get it done this 
session.




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