[Congressional Record (Bound Edition), Volume 147 (2001), Part 9]
[Senate]
[Pages 12424-12452]
[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.
       Warner modified amendment No. 833, to limit the amount of 
     attorneys' fees in a cause of action brought under this Act.
       DeWine amendment No. 842, to limit class actions to a 
     single plan.
       Grassley amendment No. 845, to strike provisions relating 
     to customs user fees, and Medicare payment delay.
       Santorum amendment No. 814, to protect infants who are born 
     alive.
       Nickles amendment No. 846, to apply the bill to plans 
     maintained pursuant to collective bargaining agreements 
     beginning on the general effective date.
       Brownback amendment No. 847, to prohibit human germline 
     gene modification.
       Ensign amendment No. 849, to provide for genetic 
     nondiscrimination.
       Ensign amendment No. 848, to provide that health care 
     professionals who provide pro bono medical services to 
     medically underserved or indigent individuals are immune from 
     liability.


                           Amendment No. 814

  The ACTING PRESIDENT pro tempore. Under the previous order, there 
will now be 4 minutes of debate prior to a vote in relation to the 
Santorum amendment No. 814.
  Who yields time? The Senator from Pennsylvania.
  Mr. SANTORUM. Thank you, Mr. President.
  Mr. KENNEDY. Mr. President, could we have order. We have a series of 
votes now.
  The ACTING PRESIDENT pro tempore. The Senate will come to order.
  Mr. KENNEDY. We had good debates on them last evening. They are 
important votes. The Senator is entitled to be heard, and we want to 
give all those who worked on these amendments an opportunity for 
Senators to hear them.
  The ACTING PRESIDENT pro tempore. The Senate will be in order. The 
Senator from Pennsylvania.
  Mr. SANTORUM. My amendment is simple. My amendment says anybody born 
alive, any child born alive is entitled to protection under the laws of 
the United States of America.
  Unfortunately, this amendment is necessary for two reasons. No. 1, 
because of the treatment of children who are delivered as a result of 
an abortion that was botched. We have ample testimony to, 
unfortunately, show that children born alive as a result of induced 
abortions are not cared for and are discarded, not cared for as 
appropriate to their gestational age. So we think it is important to 
make it clear there is Federal protection; that the laws of the land 
apply to even children who are born as a result of abortion--born 
alive.
  The second reason is because of our courts in this country, 
particularly the Supreme Court, where two Supreme Court Justices in the 
most recent abortion decision, the Nebraska decision, stated that any 
procedure that the doctor would permit is OK in this country. This is 
just two of the nine. But they said the Federal Government and our 
Constitution does not allow regulation of any procedure that the doctor 
believes is in the best health interests of the mother. That, to me, 
leaves open the possibility, if the doctor decides in the health 
interest of a mother that the best thing is to deliver the baby alive 
and then kill the baby, two Justices on this Court would suggest that 
would be OK because we cannot regulate any procedure, and they use 
``any procedure,'' that the doctor believes is the best interests of 
the mother.

[[Page 12425]]

  So I think it is important for us to draw a line at least here. I am 
hopeful we will have unanimous support for this amendment. It is one 
that seems obvious on its face, but because of the courts and because 
of the practice in abortion clinics, it is necessary to make this 
statement again on the floor of the Senate.
  The ACTING PRESIDENT pro tempore. Who yields time?
  Mr. KENNEDY. We yield 2 minutes to the Senator from California.
  Mrs. BOXER. Mr. President, it is nice to see you in the Chair.
  I say to my friend from Pennsylvania, our side has no disagreement 
with this whatsoever. Of course, we believe everyone born should 
deserve the protections of this bill. The Senator, in his amendment, 
mentions infants who are born and that they deserve the protections of 
this bill. Of course they deserve the protections of this bill. Who 
could be more vulnerable than a newborn baby? So, of course, we agree 
with that.
  But we go further. We believe everyone deserves the protection of 
this bill: babies, infants, children, families, all the way up until 
you are fighting for your life because you may have a dreaded disease; 
you may be elderly. Everyone deserves the HMOs to act in the right way 
and to put your vital signs ahead of their dollar signs. That is key.
  Maybe in the spirit of our Chaplain who called for unity this morning 
we start off this morning together, saying everyone who is born 
deserves the protections of this bill. We all know that, regardless of 
what age, we have heard stories of patients who are really disregarded 
in the name of the bottom line.
  During times when we see CEOs in these HMOs drawing down hundreds of 
millions of dollars, we see little children and elderly people and 
those in between denied the needed care, denied the kinds of 
prescriptions they need.
  We join with an ``aye'' vote on this. I hope it will, in fact, be 
unanimous. I also hope the underlying bill will get a very strong vote 
and we will say that all of our people deserve protection, from the 
very tiniest infant to the most elderly among us.
  I urge an ``aye'' vote.
  The ACTING PRESIDENT pro tempore. The time on the amendment has 
expired. The Senator from Nevada.
  Mr. REID. Mr. President, during this vote, I will be conferring with 
the manager of the bill on the Republican side to determine what are 
the next two amendments after this series of votes.
  I also plead with Members--the first vote is 15 minutes; the others 
10 minutes--if everyone will stay where they are supposed to be, we can 
speed right through these votes. Senator Daschle has advised me and 
everyone here that we are going to try to maintain as close to the time 
for the votes as possible. So there might be some people missing votes. 
Everyone should know now that we are not going to keep these votes open 
for a long period of time.
  The ACTING PRESIDENT pro tempore. The question is on agreeing to 
Santorum amendment No. 814. The yeas and nays have been ordered. The 
clerk will call the roll.
  The bill clerk called the roll.
  Mr. NICKLES. I announce that the Senator from Alaska (Mr. Murkowski) 
and the Senator from New Mexico (Mr. Domenici) are necessarily absent.
  The ACTING PRESIDENT pro tempore. Are there any other Senators in the 
Chamber desiring to vote?
  The result was announced--yeas 98, nays 0, as follows:

                      [Rollcall Vote No. 208 Leg.]

                                YEAS--98

     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
     Dorgan
     Durbin
     Edwards
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham
     Gramm
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Helms
     Hollings
     Hutchinson
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stabenow
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Voinovich
     Warner
     Wellstone
     Wyden

                             NOT VOTING--2

     Domenici
     Murkowski
       
  The amendment (No. 814) was agreed to.
  Mr. KENNEDY. I move to reconsider the vote, and I move to lay that 
motion on the table.
  The motion to table was agreed to.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. KENNEDY. Mr. President, we have a series of votes coming up. We 
anticipate eight votes. We are trying to move the process along.
  Mr. REID. Mr. President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. 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 ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                           Amendment No. 842

  The ACTING PRESIDENT pro tempore. Under previous order, there will 
now be 4 minutes of debate prior to a vote in relation to the DeWine 
amendment No. 842.
  The Senator from Ohio is recognized.


                     Amendment No. 842, As Modified

  Mr. DeWINE. Mr. President, I have a modification of my amendment at 
the desk. I ask unanimous consent that it be accepted.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Without objection, it is so ordered.
  The amendment is so modified.
  The amendment (No. 842), as modified, 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.''.

  The ACTING PRESIDENT pro tempore. The Senator from Ohio is 
recognized.
  Mr. DeWINE. Mr. President, this amendment is a very simple one. It 
limits class actions filed under this bill to suits filed within one 
company involving one plan. It is a commonsense approach. No 
individual's rights are in any way violated. Individuals have the right 
to file suits pursuant to this bill.
  In addition to that, class actions can still be filed, but they must 
be filed within one company, one plan. What it basically would prohibit 
is the big national class action suits that would possibly be filed.
  We are simply trying to balance the rights of the individual and the 
protection of the patient with the whole problem of increasing costs.
  We believe that the elimination of these national class action suits 
will certainly help to keep the costs down.

[[Page 12426]]

  Mr. President, I reserve the remainder of my time.
  The ACTING PRESIDENT pro tempore. The Senator from North Carolina.
  Mr. EDWARDS. Mr. President, we appreciate very much the work by the 
Senator from Ohio. We appreciate him working with us. This is another 
example of what can be accomplished when we work together. We will be 
supporting this amendment.
  I yield the remainder of my time to the Senator from North Dakota.
  Mr. DORGAN. Mr. President, I rise only to say that in previous 
debate, a story was referenced about a young patient named Christopher 
Roe, who tragically died on his 16th birthday. It was alleged that this 
had nothing to do with the Patients' Bill of Rights. That, of course, 
is not true. Nevada, where Christopher Roe died, does not have clinical 
trial provisions, and this boy would have clearly benefitted from such 
provisions. This would have given him another chance for survival with 
the help of experimental treatments.
  When this Patients' Bill of Rights is enacted, either Nevada would 
have to enact a substantially compliant clinical trial provision or the 
provisions in this bill would apply. I don't want people 
misrepresenting the notion of what is happening to some of these 
patients who deserve and ought to be able to expect to receive the 
protections under this legislation.
  Young Christopher Roe died at age 16 because he was required to fight 
both cancer and the managed care organization at the same time. That is 
not a fair fight, and it should not happen in the future. If we pass 
this legislation, it will not happen in the future.
  The ACTING PRESIDENT pro tempore. Who yields time?
  Mr. DeWINE. Mr. President, I yield back my time.
  Mr. KENNEDY. We yield back our time.
  The ACTING PRESIDENT pro tempore. All time is yielded back.
  The question is on agreeing to the DeWine amendment No. 842.
  The yeas and nays have been ordered and the clerk will call the roll.
  The legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from New Mexico (Mr. 
Domenici) and the Senator from Alaska (Mr. Murkowski) are necessarily 
absent.
  The ACTING PRESIDENT pro tempore. Are there any other Senators in the 
Chamber desiring to vote?
  The result was announced--yeas 98, nays 0, as follows:

                      [Rollcall Vote No. 209 Leg.]

                                YEAS--98

     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
     Dorgan
     Durbin
     Edwards
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham
     Gramm
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Helms
     Hollings
     Hutchinson
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stabenow
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Voinovich
     Warner
     Wellstone
     Wyden

                             NOT VOTING--2

     Domenici
     Murkowski
       
  The amendment (No. 842) was agreed to.
  Mr. KENNEDY. I move to reconsider the vote by which the amendment was 
agreed to.
  Mr. BROWNBACK. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 845

  The ACTING PRESIDENT pro tempore. Under the previous order, there 
will now be 4 minutes of debate prior to a vote in relation to the 
Grassley amendment numbered 845.
  Mr. GRASSLEY. I yield myself 1 minute.
  A point was made last night that extending the user fees in section 
502 has no impact on the U.S. Customs Service budget. That is baloney. 
If it has no impact, why is it in the bill in the first place? 
Obviously, it is in the bill because it has an impact on budget 
scoring. Once CBO scores these funds against the Patients' Bill of 
Rights, these funds cannot be used by the U.S. Customs Service for 
customs modernization. These funds then are no longer available to 
offset the costs of customs modernization. We will have to find funds 
somewhere else; perhaps we can get them from the Health, Education, 
Labor, and Pensions Committee.
  The U.S. Customs Service recognizes this problem: Any scoring which 
would limit in any way the ability to fund or offset customs activity 
would likely cause a critical funding shortfall in the Customs Service.
  I think it is very clear.
  Mr. KENNEDY. I yield 2 minutes to the Senator from North Dakota.
  Mr. CONRAD. Has all time been yielded back on the other side?
  The ACTING PRESIDENT pro tempore. It has not.
  Mr. CONRAD. I rise for the purpose of bringing a point of order; that 
point of order will not be available until time has been used up on 
both sides.
  Mr. GRASSLEY. I know the chairman is going to raise a point of order, 
and I want 1 minute to respond to the point of order.
  Mr. KENNEDY. I ask consent that both sides yield back the time and 
the Senator be permitted to make a point of order and each side have 2 
minutes to explain the point of order and 2 minutes to respond to that.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The Senator from North Dakota.
  Mr. CONRAD. Mr. President, sections 502 and 503 of the bill help to 
ensure that the Social Security surplus is not affected by the costs 
associated with providing expanded patient protection.
  The bill extends customs user fees beyond 2003. That is all. The bill 
does not change the current nature, structure, or purpose of these 
fees. Customs operations will not lose funds as a result of the 
extension of these fees. However, the net effect of accepting the 
Grassley amendment would be that over $6 billion in spending contained 
in this bill would not be offset. That is spending that represents a 
transfer of funds to protect the Social Security trust fund. Deleting 
that offset would cause the Health, Education, Labor, and Pensions 
Committee to exceed its committee budget allocation.
  As a result, at the appropriate time I will raise the point of order.
  The ACTING PRESIDENT pro tempore. The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, there will be a point of order made. If 
a point of order is made, I am obviously going to waive it. I make 
clear my motion to strike would essentially allow us to replace the 
revenues taken from the Finance Committee's jurisdiction with general 
funds that are still available in the off-budget surplus. All Finance 
Committee members, Republicans and Democrats alike, including my 
respected chairman of the Senate Budget Committee, a senior member of 
the Senate Finance Committee, should beware, a vote against my motion 
is a vote for weakening the Finance Committee's jurisdiction. If your 
membership on the Finance Committee means anything, you need to vote in 
favor of my motion to strike.
  Mr. CONRAD. Mr. President, this goes beyond the question of 
jurisdiction. This is the first test of fiscal discipline in this 
Chamber. Do we adhere to the Budget Act or do we abandon fiscal 
discipline? That is the question on this vote. Are we going to spend 
money that is not offset and thereby violate the allocation that has 
been made to this committee and exceed the allocation that has been 
made to this committee? I hope this body will stick with fiscal 
discipline and require we offset spending that is over and above the 
allocation to this committee. Spending, after all, is actually a 
transfer of funds

[[Page 12427]]

to protect the Social Security trust fund.
  Mr. President, I bring, therefore, a point of order that the pending 
amendment violates section 302(f) of the Congressional Budget Act of 
1974.
  The ACTING PRESIDENT pro tempore. Senator from Iowa.
  Mr. GRASSLEY. I move to waive the point of order under section 904 of 
the Budget Act. I 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. NICKLES. I announce that the Senator from New Mexico (Mr. 
Domenici) and the Senator from Alaska (Mr. Murkowski) are necessarily 
absent.
  The PRESIDING OFFICER (Ms. Landrieu). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 46, nays 52, as follows:

                      [Rollcall Vote No. 210 Leg.]

                                YEAS--46

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

                                NAYS--52

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Byrd
     Cantwell
     Carnahan
     Carper
     Cleland
     Clinton
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Graham
     Harkin
     Hollings
     Inouye
     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

                             NOT VOTING--2

     Domenici
     Murkowski
       
  The PRESIDING OFFICER. On this vote, the yeas are 46, the nays are 
52. Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is rejected. The point of order is 
sustained and the amendment falls.
  Mr. KENNEDY. I move to reconsider the vote.
  Mr. NICKLES. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 846

  The PRESIDING OFFICER. Under the previous order, there will now be 4 
minutes of debate prior to the vote in relation to the Nickles 
amendment No. 846.
  The Senator from Oklahoma.
  Mr. NICKLES. Madam President, the amendment we have before us now 
says this should apply to all private-sector plans, including union 
plans. For the private-sector plans, the effective date is October 1, 
2002. But for collective bargaining plans, there is a little section on 
page 174 that says it shall not apply until the collective bargaining 
agreement terminates. In many cases, collective bargaining agreements 
do not terminate for years and years, or they may be renegotiated.
  My point is, we should make these protections apply, and hope they 
will apply--if they are so positive--to all Americans, including union 
members. Union members should have these protections.
  My colleague from Massachusetts asked: Was the Senator trying to 
punish the unions? I am not trying to punish anybody. Shouldn't union 
members have the same appeals process? Shouldn't they have the same 
patient protections we have for all private-sector plans?
  To say we are going to exempt them for the duration of their 
collective bargaining agreements I think is a mistake, especially when 
some of these agreements may not terminate for years--maybe 10 years or 
more. We should make this apply for all plans at the same time.
  Madam President, I yield the remainder of my time to the Senator from 
Nevada.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. ENSIGN. Madam President, this morning the Senator from North 
Dakota got up and spoke about a young man by the name of Chris Roe from 
my State. He said this young man's parents would have been covered 
under this bill. But according to the Department of Labor, the 
protections in this bill do not apply to collective bargaining 
agreements. Because Chris Roe's parents were under a collective 
bargaining agreement--as a matter of fact, that collective bargaining 
agreement does not expire until years from now--the Roes would not be 
covered.
  Chris Roe is no longer with us, but people in the future like him 
should be able to be covered under the same patient protections as 
everybody else under this bill.
  I urge the adoption of this amendment.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Senator from Massachusetts.
  Mr. KENNEDY. Madam President, this is language on page 173. It is 
basically boilerplate language, which means we have used identical 
language in the HIPAA program and also in OBRA, the pension reform. It 
is basically out of respect for contracts. If you read the language it 
says ``for plans beginning on or after October 1.'' ``For plans'' 
refers to insurance. Most of the insurance, 60 percent of insurance 
plans start in January; 40 percent go over until the next year. So this 
will apply at the first opportunity when those plans expire and also 
when collective bargaining expires.
  That is our purpose, to do it in a timely way. I hope the Nickles 
amendment will be defeated. I will offer an amendment that will say 
irrespective of collective bargaining, it will have to be done within 2 
years, and rollovers will not be permitted. That is the best way to do 
it. That respects the contracts. It was really done with the support of 
the insurance industry. It has been boilerplate language that has been 
used in a number of different bills as a way of addressing respect for 
contracts.
  I hope the Nickles amendment will be defeated. We give assurance to 
the membership that the follow-on amendment will say that every 
contract has to be done within 2 years and that there is no 
possibility, even within that period of time, for a rollover agreement.
  Madam President, I move to table the Nickles amendment, and I ask for 
the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be.
  The question is on agreeing to the motion. The clerk will call the 
roll.
  The legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from New Mexico (Mr. 
Domenici) and the Senator from Alaska (Mr. Murkowski) are necessarily 
absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 54, nays 44, as follows:

                      [Rollcall Vote No. 211 Leg.]

                                YEAS--54

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Byrd
     Cantwell
     Carnahan
     Carper
     Chafee
     Cleland
     Clinton
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     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--44

     Allard
     Allen
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Cochran
     Collins
     Craig
     Crapo
     DeWine
     Ensign
     Enzi
     Fitzgerald
     Frist
     Gramm
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson

[[Page 12428]]


     Hutchison
     Inhofe
     Kyl
     Lott
     Lugar
     McConnell
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner

                             NOT VOTING--2

     Domenici
     Murkowski
       
  The motion was agreed to.
  Mr. KENNEDY. Madam president, I move to reconsider the vote.
  Mr. BURNS. I move to lay that motion on the table.
  The motion to table was agreed to.


                      Amendment No. 847, Withdrawn

  The PRESIDING OFFICER. Under the previous order, there will now be 4 
minutes of debate in relation to the Brownback amendment No. 847.
  Who yields time?
  The Senator from Kansas.
  Mr. BROWNBACK. Madam President, I want to say that I will not be 
requiring a vote on this amendment. At the end of a short statement, I 
will ask unanimous consent that the vote be vitiated. I am doing this 
because a number of people who looked at this amendment have said they 
are very interested, intrigued, and supportive, but they are not sure 
about the language. I think it needs to be tightened up some and 
reviewed.
  Indeed, the chairman stated to me his desire to look at this issue in 
further depth later in the year. That is why I will be pulling this 
from a vote. We are talking about prohibiting the taking of genetic 
material from outside the human species and injecting it into the human 
species, to where it can be passed on to future generations.
  I point out to my colleagues that this is the modern face of 
eugenics, the desire to create perfect people, as if we can become a 
biologically perfectible artifact. This is a dangerous thing. It is an 
ugly thing that has reared its head in history previously, and its 
modern face involves taking genetic material wherever we can find it 
and putting it in. It should be banned. It is currently allowed. It is 
currently being researched in this country. It should be stopped.
  I look forward to working with the chairman of the HELP Committee to 
see if we can tighten up the language to address it in the Congress in 
the near term before people start actually doing this. It is completely 
allowed now, with no prohibitions. We limit it more in other species 
than we do in humans.
  I ask unanimous consent that the rollcall vote on the Brownback 
amendment be vitiated and that the amendment be withdrawn.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 849

  The PRESIDING OFFICER. Under the previous order, there will now be 4 
minutes of debate in relation to the Ensign amendment No. 849.
  Who yields time? The Senator from Nevada.
  Mr. ENSIGN. Madam President, I am going to ask unanimous consent in a 
moment to temporarily lay this amendment aside so we can work out the 
language. There seems to be support on both sides of the aisle for this 
amendment. There is just slight disagreement on the language.
  I ask unanimous consent that my amendment No. 849 be temporarily laid 
aside to recur at the concurrence of the bill managers.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 848

  The PRESIDING OFFICER. Under the previous order, there will now be 4 
minutes of debate on amendment No. 848 by the Senator from Nevada.
  Mr. ENSIGN. Madam President, we can actually have a vote on this 
amendment. This amendment is about protecting health care providers who 
voluntarily give of themselves, give of their services, and this 
amendment will protect them from being sued.
  Last night in the debate, the Senator from North Carolina mentioned 
the Volunteer Protection Act of 1997 already takes care of the health 
care providers. In fact, it does not. It defines a volunteer as ``an 
individual performing services for a nonprofit organization or 
governmental entity who does not receive compensation or any other 
thing of value in lieu of compensation.''
  I was speaking to one of my neighbors. He is a general surgeon. He 
was just in an emergency room last week. He saw a patient who did not 
have health insurance, could not afford to pay, and he voluntarily saw 
this patient. I do not think it would be right for people to volunteer 
and then be sued.
  My amendment says if, out of the goodness of your heart, you work at 
a clinic, such as Dr. Chanderraj, a friend of mine who is a 
cardiologist in Las Vegas--he takes care of the poor on the weekends, 
and yet he has to carry malpractice insurance.
  Many doctors and health care providers who volunteer their services 
for the poor should be encouraged, not discouraged, to give their 
services.
  I urge the adoption of this amendment. It is the right thing to do, 
just as the Good Samaritan Act and the Volunteer Protection Act of 1997 
were the right things to do.
  The PRESIDING OFFICER. Time has expired. Who yields time in 
opposition? The Senator from North Carolina.
  Mr. EDWARDS. Madam President, Senator Coverdell offered legislation 
in 1997, as the Senator referred to, called the Volunteer Protection 
Act that does what this amendment is aimed at. It provides specific 
protection for people who provide volunteer services. Physicians are 
included in that legislation.
  Further, there is a specific provision in that legislation which 
provides that State laws can remain in effect and States are given wide 
latitude to opt out and enact their own legislation on this issue. 
There is no such provision in this amendment.
  Legislation, offered by Senator Coverdell and passed in 1997, covers 
this issue. If the Senator wants to attempt to amend that legislation, 
that would be the appropriate vehicle, not this vehicle. This 
legislation we are debating today is the Bipartisan Patient Protection 
Act. It is about HMO accountability and HMO reform. These issues that 
are not directly related to HMO reform and HMO accountability do not 
belong on this legislation. For that reason, we oppose this particular 
amendment.
  I yield the floor. I yield back the remainder of my time.
  The PRESIDING OFFICER. All time has been yielded back.
  Mr. EDWARDS. I move to table the amendment and ask for the yeas and 
nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is on agreeing to the motion. The clerk will call the 
roll.
  The senior assistant bill clerk called the roll.
  Mr. NICKLES. I announce that the Senator from New Mexico (Mr. 
Domenici) and the Senator from Alaska (Mr. Murkowski) are necessarily 
absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 52, nays 46, as follows:

                      [Rollcall Vote No. 212 Leg.]

                                YEAS--52

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Cantwell
     Carnahan
     Carper
     Cleland
     Clinton
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     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
     Stabenow
     Torricelli
     Wellstone
     Wyden

                                NAYS--46

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

[[Page 12429]]



                             NOT VOTING--2

     Domenici
     Murkowski
       
  The motion was agreed to.
  Mr. KENNEDY. Mr. President, I move to reconsider the vote.
  Mr. STEVENS. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, as a point of information, we have the 
Thompson amendment. It is agreed by the managers we would have a minute 
on either side and then go to a rollcall vote. We ask our Members to 
remain in the Chamber, if they would. We are prepared.
  Mr. GREGG. Madam President, if the Senator will yield, I would like 
to also note after the Thompson amendment it is expected the order of 
amendments will be Senator Smith of Oregon for 30 minutes, Senator 
Nickles for 30 minutes, Senator Santorum for 40 minutes, and Senator 
Allard for 30 minutes. We will enter into a unanimous consent agreement 
after the vote, hopefully, to get that order worked out.
  The PRESIDING OFFICER. Who yields time?


                           Amendment No. 819

  Mr. KENNEDY. Mr. President, I ask unanimous consent that on the 
Thompson amendment we have 4 minutes equally divided. I ask unanimous 
consent it be in order to consider the yeas and nays for a vote.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KENNEDY. I ask for the yeas and nays.
  The PRESIDING OFFICER. The amendment is now pending. Is there a 
sufficient second? There appears to be.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. Who yields time? The Senator from Tennessee.


                     Amendment No. 819, As Modified

  Mr. THOMPSON. I call up amendment No. 819 and I send a modification 
to the desk and ask for its immediate consideration.
  The PRESIDING OFFICER. The amendment is so modified.
  The amendment (No. 819), as modified, is as follows:

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

     The court in any action commenced under this subsection shall 
     take into account any receipt of benefits during such 
     administrative processes or such action in determining the 
     amount of the damages awarded.
       ``(D) Admissible.--Any determination made by a reviewer in 
     an administrative proceeding under section 103 of the 
     Bipartisan Patient Protection Act of 2001 shall be admissible 
     in any Federal court proceeding and shall be presented to the 
     trier of fact.
       On page 165, strike line 15 and all that follows through 
     page 168, line 3, and insert the following:
       ``(4) Requirement of exhaustion.--
       ``(A) In general.--Except as provided in subparagraph (D), 
     a cause of action may not be brought under paragraph (1) in 
     connection with any denial of a claim for benefits of any 
     individual until all administrative processes under sections 
     102, 103, and 104 of the Bipartisan Patient Protection Act of 
     2001 (if applicable) have been exhausted.
       ``(B) Late manifestation of injury.--
       ``(i) In general.--A participant or beneficiary shall not 
     be precluded from pursuing a review under section 104 of the 
     Bipartisan Patient Protection Act regarding an injury that 
     such participant or beneficiary has experienced if the 
     external review entity first determines that the injury of 
     such participant or beneficiary is a late manifestation of an 
     earlier injury.
       ``(ii) Definition.--In this subparagraph, the term `late 
     manifestation of an earlier injury' means an injury sustained 
     by the participant or beneficiary which was not known, and 
     should not have been known, by such participant or 
     beneficiary by the latest date that the requirements of 
     subparagraph (A) should have been met regarding the claim for 
     benefits which was denied.
       ``(C) Exception for needed care.--A participant or 
     beneficiary may seek relief exclusively in Federal court 
     under subsection 502(a)(1)(B) prior to the exhaustion of 
     administrative remedies under sections 102, 103, or 104 of 
     the Bipartisan Patient Protection Act (as required under 
     subparagraph (A)) if it is demonstrated to the court that the 
     exhaustion of such remedies would cause irreparable harm to 
     the health of the participant or beneficiary. Notwithstanding 
     the awarding of relief under subsection 502(a)(1)(B) pursuant 
     to this subparagraph, no relief shall be available as a 
     result of, or arising under, paragraph (1)(A) unless the 
     requirements of subparagraph (A) are met.
       ``(D) Failure to review.--
       ``(i) In general.--If the external review entity fails to 
     make a determination within the time required under section 
     104(e)(1)(A)(i), a participant or beneficiary may bring an 
     action under section 514(d) after 10 additional days after 
     the date on which such time period has expired and the filing 
     of such action shall not affect the duty of the independent 
     medical reviewer (or reviewers) to make a determination 
     pursuant to section 104(e)(1)(A)(i).
       ``(ii) Expedited determination.--If the external review 
     entity fails to make a determination within the time required 
     under section 104(e)(1)(A)(ii), a participant or beneficiary 
     may bring an action under this subsection and the filing of 
     such an action shall not affect the duty of the independent 
     medical reviewer (or reviewers) to make a determination 
     pursuant to section 104(e)(1)(A)(ii).
       ``(E) Receipt of benefits during appeals process.--Receipt 
     by the participant or beneficiary of the benefits involved in 
     the claim for benefits during the pendency of any 
     administrative processes referred to in subparagraph (A) or 
     of any action commenced under this subsection--
       ``(i) shall not preclude continuation of all such 
     administrative processes to their conclusion if so moved by 
     any party, and
       ``(ii) shall not preclude any liability under subsection 
     (a)(1)(C) and this subsection in connection with such claim.
       ``(F) Admissible.--Any determination made by a reviewer in 
     an administrative proceeding under section 104 of the 
     Bipartisan Patient Protection Act of 2001 shall be admissible 
     in any Federal or State court proceeding and shall be 
     presented to the trier of fact.''

  Mr. KENNEDY. Can we have order, Mr. President? We have had great 
cooperation of the Members. We have made good progress during the 
morning. We thank Senator Gregg for outlining the series of amendments 
and the time that will be necessary. We are moving along with 
consideration of the legislation. The Senator from Tennessee is 
entitled to be heard. Can we have order in the Senate?
  The PRESIDING OFFICER. The Senate cannot proceed until there is order 
in the Senate. The Senator from Tennessee.
  Mr. THOMPSON. Mr. President, this amendment has to do with the 
exhaustion of administrative remedies. As stated the other day, we have 
in this underlying legislation quite an elaborate procedure for 
administrative review so independent entities, at at least two 
different levels, have an opportunity to make a determination on a 
claim. Then the underlying bill allows a claimant to go to court if 
they are not satisfied. The problem we saw in the underlying bill is in 
many cases there was not a requirement that that administrative process 
be gone through, that very easily you could jump right to the court.
  I think no one really wants to do that. We have set up this 
administrative appeal process, which is a good one, and we want to use 
it.

[[Page 12430]]

  What we seek to do in this amendment is to basically require the 
exhaustion of administrative review, administrative remedies, before a 
claimant goes to court.
  We had a good discussion with the other side. The concern was 
expressed that the modification should recognize an injury for which a 
claim has been denied might later become more serious, after the 
timeframe for exhausting external review has expired.
  That is a legitimate concern. If someone has a later-developed injury 
that did not manifest itself early on, there should be a provision so 
they are not deemed to not have exhausted administrative review so they 
could never go to court. So we have addressed that in this 
modification.
  The other concern was what if the external entity simply sits on the 
matter and doesn't come within the 21 days allowed under the bill to 
make its determination. We say in this modification, if the external 
entity takes longer than that, we give them another 10 days and then we 
allow the claimant to go to court.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. THOMPSON. I ask for an additional 20 seconds.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. THOMPSON. Under those circumstances, the claimant would still 
have to exhaust their administrative appeal, but they could go ahead 
and file the lawsuit in the meantime under, what I think are very rare 
circumstances. So with that modification I think we have a good process 
set up so this elaborate administrative process we have established in 
the bill will actually be utilized.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from North Carolina.
  May we have order in the Chamber, please.
  Mr. EDWARDS. I thank the Senator from Tennessee. This is another 
example of what can be done when we tackle these problems together and 
try to find solutions. As the issue of scope and employer liability, 
with a number of Senators on both sides of the aisle, now we are doing 
it on the issue of exhaustion of administrative remedies, exhaustion of 
appeals.
  This amendment meets the very principle by which we began this 
legislative drafting, which is we want patients to get the care they 
need. The most effective way to do that is to have an effective appeals 
process.
  What we have done in this process is, No. 1, require that the 
patient, the claimant, go through the appeal before going to court, 
exhausting those appeals. That is the easiest way and the most 
efficient way to get them the care they need.
  The second thing we do is provide an outlet in case the appeals 
process drags on and it does not operate the way it should. If it is 
longer than 31 days, then the patient will be able to go to court. But, 
as the Senator from Tennessee points out, they will have to 
simultaneously exhaust the administrative appeal.
  Third, we have now provided specifically that the result of the 
administrative appeal will be admissible in any court proceeding, which 
is another important element of this amendment.
  I thank my friend from Tennessee. I thank him for working with us on 
this issue. I think we have an issue about which we now have consensus 
and we are pleased to be there.
  I yield the remainder of my time.
  I ask for the yeas and nays.
  Mr. NICKLES. Were the yeas and nays ordered on the amendment or the 
modification?
  The PRESIDING OFFICER. They were ordered on the amendment.
  Mr. NICKLES. Mr. President, I ask unanimous consent the yeas and nays 
be vitiated on the amendment and they be ordered on the modification.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Is there a sufficient second? There is a sufficient second.
  The question is on agreeing to the Thompson amendment No. 819, as 
modified.
  The clerk will call the roll.
  Mr. NICKLES. I announce that the Senator from New Mexico (Mr. 
Domenici) and the Senator from Alaska (Mr. Murkowski) are necessarily 
absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 98, nays 0, as follows:

                      [Rollcall Vote No. 213 Leg.]

                                YEAS--98

     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
     Dorgan
     Durbin
     Edwards
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham
     Gramm
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Helms
     Hollings
     Hutchinson
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stabenow
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Voinovich
     Warner
     Wellstone
     Wyden

                             NOT VOTING--2

     Domenici
     Murkowski
       
  The amendment (No. 819), as modified, was agreed to.
  Mr. KENNEDY. Mr. President, I move to reconsider the vote.
  Mr. THOMPSON. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. KENNEDY. Mr. President, how long did that vote take?
  The PRESIDING OFFICER. Fifteen and a half minutes.
  Mr. KENNEDY. I thank the Chair.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I thank the Senator from Tennessee and the 
Senator from North Carolina. The last amendment was an important 
amendment. It was a major step forward. That amendment, along with the 
Snowe amendment and several others that have passed, has immeasurably 
helped this legislation.
  I thank the Senator from Tennessee and the Senator from North 
Carolina.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. GREGG. Mr. President, I join with the comments of the Senator 
from Arizona. In the trades, that was ``a biggie.'' It was a very 
positive action to make sure that the exhaustion of the appeals process 
is a true exhaustion of the appeals process and we don't go straight to 
the court system. I congratulate the Senators from North Carolina and 
Tennessee for achieving that resolution.


                           amendment no. 847

  Mr. HATCH. Mr. President, I rise to oppose amendment No. 847 offered 
by my friend from Kansas, Senator Brownback.
  This amendment purports to establish safeguards with respect to 
medical treatments that encompass therapies directed at genetic 
defects. The amendment would impose criminal sanctions, including 
imprisonment of up to 10 years, on those who violate the restrictions 
on modifying the human genetic structure.
  Not only is this the wrong time to consider this amendment, it is 
also the wrong piece of legislation on which to consider this 
amendment. In all candor, I must tell my colleagues that in my view, 
based on my preliminary reading of this amendment, I greatly doubt 
there will ever be a right time for this proposal.
  I have no doubt that this amendment is well-intentioned.
  I have worked with Senator Brownback many times in the past on many 
issues, including many important right-to-life issues, such as 
outlawing partial birth abortion. Both he and I are proud to call 
ourselves pro-life Senators.
  But, as my colleagues are aware, Senator Brownback and I happen to

[[Page 12431]]

disagree on the issue of federal funding for embryonic stem cell 
research. I understand and completely respect his views on this issue.
  In a nutshell, the Brownback amendment attempts to regulate genetic 
research. But I am afraid that it might regulate this critical avenue 
of research right out of existence.
  This is an exceedingly complex and dynamic field of science.
  It is certainly not the type of legislation that we want to attach as 
a non-germane amendment to a bill that does not directly relate to 
biomedical research.
  My goodness, we have our hands full enough with HMOs and the 
Patients' Bill of Rights. We do not need to further complicate an 
already complex bill with this language.
  Why do we need to take floor time on this proposal? Have there been 
hearings on this language? Has there been a committee mark-up on this 
bill?
  Isn't the reason why we have committee hearings and committee mark-
ups so that complex issues can be adequately aired by members of the 
critical committees before the full Senate debates an issue?
  There is much virtue for letting legislation ripen and be scrutinized 
in committee before the entire body debates the merits of proposals 
such as this amendment.
  I think we should defeat this amendment today so that the relevant 
committees can thoroughly review this legislation.
  While I strongly believe that we should defeat this amendment on 
strictly procedural grounds, I do want to make a few comments on some 
initial problems that I have with respect to the substance of the bill.
  First, because there are over 300 diseases thought to be caused by a 
defect in a single gene, we must be extremely careful that we do not 
cut off or unduly impede vital research on such diseases.
  As a co-sponsor of the Orphan Drug Act of 1984, I know very well how 
millions of American families must struggle each day with small 
population but highly debilitating diseases such as multiple sclerosis, 
ALS, and Fragile X Syndrome.
  The problem with the Brownback amendment is that it appears to thwart 
research on gene therapies that may lead one day to cures for many of 
these single-gene diseases. It would not be right for the Senate to 
hastily adopt language that derails research on such crippling diseases 
as Alzheimer's or Parkinson's.
  I am concerned with what the definition of human germline gene 
modification in section 301 of the Brownback bill could do when it is 
read in context of section 302 of his legislation. The amendment's 
definition of human germline modification is ambiguous.
  As one attorney representing the biotechnology industry has 
characterized the reach of this definition:

       Among other problems, which of the examples listed are 
     ``sources'' of ``forms'' of DNA and why does it matter? 
     Moreover, the sentence--and he is referring to the first 
     definition in section 301 which describes human germline 
     modification--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 the 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 part of the amendment prohibit 
     or allow in vitro fertilization? What genetic technologies 
     does ``normal'' cover, if any?

  Without objection, I would like to place in the Record a copy of this 
legal memorandum prepared by Edward Korweck of the law firm of Hogan & 
Hartson. As I understand it, this memorandum was written on behalf of 
BIO, the biotechnology industry association.
  I also ask unanimous consent to place in the Record a copy of a 
letter from BIO to Senator Lott opposing the Brownback amendment. This 
letter voices its opposition to the amendment by stating:

       Let's not cripple essential medical research for a host of 
     chronic and fatal diseases such as diabetes, Parkinson's 
     disease, Alzheimer's disease, and various cancers. The 
     patients and families who suffer from these diseases are 
     looking to advances in medical research to develop cures and 
     better treatments for them.

  This argument must be considered by all members of the Senate.
  The question of how in vitro fertilization relates to the normal 
process of sexual reproduction is a question of great importance 
because it appears to directly implicate the science of embryonic stem 
cell research.
  Specifically, we need to know this language would treat research with 
human pluripotent stem cells.
  We all know where Senator Brownback stands on that issue. While I 
generally agree with my friend from Kansas, I disagree with him on 
embryonic stem cell research.
  This is an issue that deserves careful consideration by each Senate. 
I welcome this debate. But today is not the time. We simply need to 
know all the implications of the Brownback language before we even 
consider such legislation.
  In my view, this Senate should go on record as supporting federal 
funding for embryonic stem cell research. And we certainly do not want 
to turn back the clock on the type of gene therapy research that has 
been conducted for over 20 years.
  This is simply not the kind of measure that you try to slip into an 
unrelated bill.
  All interested parties--patient groups, religious and advocacy 
organizations, scientists, health care providers, biotechnology firms--
deserve to be fully consulted on how the language of this measure will 
affect their interests.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:

                          Biotechnology Industry Organization,

                                    Washington, DC, June 27, 2001.
     Hon. Trent Lott,
     U.S. Senate,
     Washington, DC.
       Dear Senator Lott: On behalf of the Biotechnology Industry 
     Organization (BIO), I am writing to express BIO's opposition 
     to an amendment that may be offered by Senator Brownback 
     regarding germ line gene modification. This amendment may 
     come up for a vote on the Senate floor as early as today 
     during consideration of S. 1052--the McCain, Kennedy, Edwards 
     Bipartisan Patient Protection Act. I urge you to vote against 
     the Brownback amendment if it comes up for a vote.
       BIO opposes germ line gene modification and we support the 
     moratorium on germ line gene modification that has been in 
     place for over a decade. This moratorium has allowed critical 
     genomic research to continue while prohibiting unsafe and 
     unethical work. To our knowledge, all scientists have 
     complied with this moratorium.
       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. This proposal also could prohibit 
     research on human pluripotent stem cells. Since these cells 
     have been demonstrated to form any cell in the body they hold 
     enormous therapeutic potential.
       Let's not cripple essential medical research for host of 
     chronic and fatal diseases such as diabetes, Parkinson's 
     disease, Alzheimer's disease and various cancers. The 
     patients and families who suffer from these diseases are 
     looking to advances in medical research to develop cures and 
     better treatments for them.
       Furthermore, to our knowledge there has been no 
     consultation with the scientific community, researchers, 
     physicians, or patient groups prior to the filing of the 
     Brownback amendment. This is particularly troubling because 
     the amendment calls for severe sanctions, including 
     imprisonment of biotech researchers.
       I urge you to vote against this amendment. If you have 
     questions, please call me at 202-857-0244. Thank you for your 
     consideration on this important matter.
           Sincerely,
                                                     W. Lee Rawls,
                             Vice President, Government Relations.

                               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.

[[Page 12432]]

       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, mito-chondrial, 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.


                           amendment No. 848

  Mr. ENSIGN. Mr. President, this pro bono amendment will benefit 
doctors across the country. A prime example is my neighbor, Dr. Dan 
McBride. Dr. McBride has provided medical care to individuals and 
families free-of-charge for years. He understands that not all Nevadans 
can afford health care insurance each month, and that many cannot even 
afford to go to the doctor once each year; but that does not mean that 
they are not deserving of proper health care. This amendment will 
ensure that doctors such as Dan McBride can continue providing free 
health care to the less fortunate without fear of lawsuits.


                           amendment no. 849

  Mr. KENNEDY. Mr. President, today we are at the threshold of 
astonishing new progress in medicine. New discoveries in genetics and 
other areas of biomedical research will revolutionize the diagnosis and 
treatment of countless disorders. This astonishing potential to relieve 
suffering will be squandered if patients fear that their private 
genetic information will become the property of their insurance 
companies and their employers, where it can be used to deny people 
health care and deny workers their jobs.
  To protect all Americans against genetic discrimination in health 
insurance and employment, I am proud to support the important 
legislation that Senator Daschle has introduced on this issue. I 
commend my colleague, Senator Ensign for bringing this basic issue to 
the floor of the Senate, and I look forward to working closely with him 
in the days to come.
  However, Senator Ensign's amendment has several shortcomings that 
lead me to believe that it is not the right policy for us to adopt to 
end genetic discrimination. Yet in the interests of stimulating debate 
on this important issue and to speed the termination of debate on the 
Patients' Bill of Rights, I am prepared to accept it as an amendment to 
the bill. But next month, in our Committee, we will have a full and 
thoughtful discussion of this issue in our committee and a thorough 
debate on the Senate floor.
  Senator Ensign's amendment fails to provide protections that are 
essential. The amendment does not address the important issue of 
discrimination in the workplace. Genetic discrimination in employment 
is real and it's happening all across America. Effective legislation on 
this issue must include protections for workers.
  We must realize that genetic information will be commonplace in 
medicine and we must ensure that our definitions adequately protect 
genetic information in all its forms. Unfortunately, the definitions of 
genetic information contained in the Ensign amendment do not properly 
protect genetic information. The definitions in this legislation allow 
employers and others to find dangerous loopholes in the protections 
offered by the legislation.
  Finally, the remedies in the Ensign amendment do not provide adequate 
remedies for those whose rights have been violated. We should make sure 
that we allow those whose rights have been violated to seek proper 
recourse.
  Despite these and other flaws in the Ensign amendment, I am prepared 
to accept the measure as a spur to future debate on this important 
issue. We will start from a clean slate in our committee deliberations 
and we will give this issue the thorough exploration it deserves. I 
look forward to a fresh debate and to taking action on Senator 
Daschle's important legislation.
  Mr. DASCHLE. Mr. President, in an effort to move forward and complete 
debate on the Patient's Bill of Rights, the Ensign amendment on genetic 
discrimination, along with several other proposals, were included in a 
managers' package without a full vote of the Senate. It must be 
clarified that there are several problems with the Ensign proposal as 
offered, and we do not support this approach for dealing with genetic 
discrimination.
  First, the Ensign amendment does not comprehensively address the 
problem of genetic discrimination. This amendment only covers genetic 
discrimination in health insurance and is silent on discrimination in 
the workplace. Simply prohibiting genetic discrimination in health 
insurance, while allowing it to continue in employment is no solution 
at all. Employers will simply weed out employees with a genetic marker. 
Additionally, the protections the amendment provides are so riddled 
with loopholes that health insurance providers would still have 
substantial access to individuals' private genetic information.
  Recently, employees working at Burlington Northern Railroad were 
subjected to genetic testing without their knowledge or consent. The 
company was attempting to determine if any of the employees had a 
genetic predisposition for carpal tunnel syndrome--in an attempt to 
avoid covering any costs associated with the injury. Giving up your 
private genetic information shouldn't be the price you pay for being 
employed.
  The Ensign amendment also fails to comprehensively cover all of the 
insured. We must create protections for all Americans regardless of 
where an individual gets his or her health insurance coverage. It is 
unconscionable to allow genetic information to be used to discriminate 
against anyone--access must be limited appropriately to ensure that no 
American is left vulnerable.
  Finally, the Ensign amendment does not create a private right 
action--leaving individuals without an adequate remedy. Clearly, 
providing protections without proper enforcement provisions makes any 
protection meaningless.
  We've seen a revolution in our understanding of genetics--scientists 
have finished mapping our genetic code, and researchers are developing 
extraordinary new tests to determine if a person is at risk of 
developing a particular disease. But with increased understanding of 
the possibilities of the genome uncovers, comes increased 
responsibilities. We simply cannot take

[[Page 12433]]

one step forward in science while taking two steps back in civil 
rights.
  The HELP committee will move forward with consideration of this issue 
this summer. We welcome the opportunity to work with Senator Ensign and 
other Republicans on a comprehensive genetic non-discrimination bill 
that can command bipartisan support. It is our hope that we can bring 
up and pass a bill later this summer.
  Mr. GREGG. I now propound a unanimous consent request relative to the 
order of the following amendments to which we will be proceeding. The 
first would be Senator Smith for 30 minutes equally divided. The second 
would be Senator Allard, 30 minutes equally divided. The third 
amendment would be Senator Nickles, 30 minutes equally divided. The 
fourth would be Senator Santorum, 40 minutes equally divided. And the 
fifth would be Senator Craig, 30 minutes equally divided.
  The substance of the amendments or the purposes of the amendments 
have been presented to the other side. I can run through those if 
Members wish to hear them.
  The PRESIDING OFFICER. Is there objection?
  The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, the Senator has shared the substance. 
Members will hear the explanations, but the Smith amendment deals with 
tax credits; the Allard amendment, with exclusions for smaller 
businesses in terms of the numbers of employees; the Nickles amendment 
is an expansion to other Federal health programs; Santorum deals with 
punitive damages; and the Craig amendment deals with medical savings 
accounts. We are familiar with the subject matter. We have no objection 
to that as an order, and we believe the time recommended will help us 
move this process along and will be sufficient to evaluate the 
amendments.
  Mr. REID. Mr. President, we want to just make sure that the vote is 
in relation to the amendments offered in the usual form with no second-
degree amendments in order prior to the vote.
  Mr. GREGG. That is acceptable----
  Mr. REID. And also that the time limit be as outlined and the time 
for debate--there would be an opportunity to file a motion prior to the 
vote in relation to the amendment.
  Mr. GREGG. Do you mean a motion to table?
  Mr. REID. Yes.
  The PRESIDING OFFICER. The Senator so amends his request?
  Mr. GREGG. Yes.
  The PRESIDING OFFICER. Is there objection?
  Mr. GREGG. Mr. President, I inquire of the Senator from Nevada 
whether or not it would be possible to stack these votes or whether the 
jury is still out on that?
  Mr. REID. We should wait on that. We have a number of people on this 
side who want to vote after every amendment. We will work on that.
  Mr. GREGG. I point out to the Senator, as I know and he knows, by not 
stacking the votes we add a considerable amount of time to this 
exercise. We are trying to move these amendments in a prompt and 
reasonable fashion. I think that has been shown in the process 
throughout the weeks here. We end up delaying if we don't stack votes.
  Mr. REID. The managers have worked so hard and the leaders have 
conferred about this legislation. We will work on that. We hope that 
the Senator from New Hampshire will give us a finite list of 
amendments. Once that happens, I am sure we can quickly arrive at a 
time to dispose of this and the votes could be stacked.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Oregon is recognized.


                            motion to commit

  Mr. SMITH of Oregon. Mr. President, I send a motion to the desk.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Oregon [Mr. Smith] moves to commit the 
     bill, S. 1052, as amended, to the Committee on Finance with 
     instructions to report H.R. 3 back to the Senate forthwith 
     with an amendment.

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

       Mr. Smith of Oregon moves to commit the bill S. 1052, as 
     amended, to the Committee on Finance with instructions to 
     report H.R. 3 back to the Senate forthwith with an amendment 
     that--
       (1) strikes all after the enacting clause and inserts the 
     text of S. 1052, as amended,
       (2) makes the research and development tax credit permanent 
     and increases the rates of the alternative incremental 
     research and development tax credit as provided in S. 41,
       (3) provides that H.R. 3, as amended pursuant to paragraphs 
     (1) and (2), does not negatively impact the social security 
     trust funds or result in an on-budget surplus that is less 
     than the medicare surplus account, and
       (4) provides that H.R. 3, as so amended, is not subject to 
     a budget point of order.

  Mr. SMITH of Oregon. Mr. President, for myself, Senator Hatch, 
Senator Allen, and others, I have sent to the desk a motion to commit 
S. 1052 to the Finance Committee with instructions to make permanent 
the research and development tax credit. We are joined in this also by 
Senators Crapo, Craig, Bennett, Brownback, Burns, Hutchinson, Allen, 
and Enzi.
  As a Member of the Senate high-tech task force, I believe that the 
R&D tax credit is essential to the technology community, and also to 
the pharmaceutical community.
  This credit encourages investment in basic research that, over the 
long term, can lead to the development of new, cheaper, and better 
technology products and services. The research and development is 
certainly essential for long-term economic growth.
  Innovations in science and technology has fueled the massive economic 
expansion we have witnessed over the course of the 20th century. These 
achievements have improved the standard of living for nearly every 
American. Simply put, the research tax credit is an investment in 
economic growth, new jobs, and the important new products and processes 
that we need in our lives.
  The R&D tax credit must be made permanent. This credit, which was 
originally enacted in 1981, has only been temporarily extended 10 
times. Permanent extension is long overdue.
  Because this vital credit isn't permanent, it offers businesses less 
value than it should. Businesses, unlike Congress, must plan and budget 
in a multiyear process. Scientific enterprise does not neatly fit into 
calendar or fiscal years.
  R&D development projects typically take a number of years, and may 
even last longer than a decade. As our business leaders plan these 
projects, they need to know whether or not they can count on this tax 
credit.
  The current uncertainty surrounding the credit has induced businesses 
to allocate significantly less to research than they otherwise would if 
they knew the tax credit would be available in future years. This 
uncertainty undermines the entire purpose of the credit.
  Investment in R&D is important because it spurs innovation and 
economic growth. Information technology, for example, was responsible 
for more than one-third of the real economic growth in 1995 through 
1998.
  Information technology industries account for more than $500 billion 
of the annual U.S. economy. R&D is widely seen as a cornerstone of 
technological innovations which, in turn, serves as a primary engine of 
long-term economic growth.
  The tax credit will drive wages higher. Findings from a study, for 
example, conducted by Coopers & Lybrand show that workers in every 
State will benefit from higher wages if the research credit is made 
permanent.
  Payroll increases as a result of gains in productivity stemming from 
the credit have been estimated to exceed $60 billion over the next 12 
years.
  Furthermore, greater productivity from additional research and 
development will increase overall economic growth in every state in the 
Union. Research and development is essential for long-term economic 
growth.
  The tax credit is cost-effective. The R&D tax credit appears to be a 
cost-effective policy instrument for increasing business R&D 
investment. Some recent studies suggest that one dollar of

[[Page 12434]]

the credit's revenue cost leads to a one dollar increase in business 
R&D spending.
  There is broad support among Republicans for the credit, and 
President Bush included the credit in the $1.6 trillion tax relief 
plan.
  I urge my colleagues to support this amendment, and I thank Senator 
Hatch and Senator Allen, the chief cosponsors, for providing us with 
the opportunity of increasing the size of the tax cut to include this 
important priority but which, unfortunately, was left out of the tax 
bill that we recently passed.
  Before I yield to Senator Allen for his comments, 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. SMITH. I yield the remainder of my time to Senator Allen.
  The PRESIDING OFFICER. The Senator from Virginia is recognized.
  Mr. ALLEN. Mr. President, I rise in support of the amendment and very 
much thank Senator Gordon Smith of Oregon for his leadership and for 
giving us the opportunity to vote on this very important amendment and 
principle and tax policy that is essential for the United States to 
compete and succeed in the future. I also commend the Senator from 
Utah, Mr. Orrin Hatch, for all his work over the years, and especially 
this year, in advocating this measure.
  As chairman of the high-tech task force on the Republican side of the 
Senate, we have endorsed this idea. We have been working on this idea. 
Unfortunately, as the Senator said, it was not included in the tax 
bill. But the reason that this is so important is that research and 
technology--generally speaking, research in biotechnology and 
pharmaceuticals--is at stake with this amendment and this research and 
development tax credit.
  Up here in Washington, we are making decisions for a year or so, or 
even a 5-year budget, and even once in a while we do projections over 
10 years. In private industry and business, their planning needs to be 
long-term. In particular, when you think of research and development 
into pharmaceuticals, the amount of research that goes into putting 
forward a drug before getting it to patent, to the market, and so 
forth, it is not just the research and the labs; there are clinical 
trials that go on year after year, and hopefully you will get a patent; 
and for a short period of time you will have a window of opportunity on 
that prescription drug, for example.
  So this tax policy is very important so that businesses have 
certainty, that there is credibility, stability, predictability to 
devote the millions and, indeed, in some cases, billions of dollars to 
research and development and technology.
  The issue is jobs and competition for the people of the United 
States. We, as Americans, need to lead in technological advances. The 
R&D tax credit is very important in microchips or semiconductor chips. 
It is important in communications research and development. It is 
important in life sciences and medical sciences and, obviously, that 
includes biotechnology and pharmaceuticals.
  Making the R&D tax credit permanent, as Senator Smith says, actually 
is cost effective. It makes a great deal of sense. Studies suggest 
every dollar of revenue cost leads to a $1 increase in business R&D 
spending. These are good jobs and it also allows us as a country to 
compete.
  A permanent extension is long overdue. As Senator Smith said, it has 
been extended every now and then for a few years. Once in a while it 
lapses. Businesses cannot plan that way. They have to make sure it 
stays constant. Publicly traded companies have their quarterly reports, 
their shareholder reports, and the amount of investment they get in 
their companies based on how they are operating and managing that 
company.
  If you have changing tax laws or lack of credible, predictable tax 
policies that foul up that whole system, that makes them less likely to 
want to invest and take the risk of billions of dollars in research and 
development if they are not certain of the long term.
  This amendment to make the research and development tax credit 
permanent will spur more American investment; it will create more 
American jobs--and they are good paying jobs--and that will lead us to 
better products, better devices, better systems, and better medicines.
  I hope the Senate will work in a unified fashion on this amendment by 
Senator Smith to make permanent the research and development tax credit 
so Americans get those good jobs, but, most importantly, allow America 
to compete and succeed and make sure America is in the lead on 
technological advances, whether they are in communications, in 
education, in manufacturing, or the medical or life sciences.
  I again thank the Senator from Oregon, Mr. Smith, for his great 
leadership, as well as that of Orrin Hatch.
  I yield back the time I have at this moment and reserve whatever time 
may remain on our side.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. BAUCUS. Mr. President, this is a Patients' Bill of Rights bill. 
This is not a defense bill. This is not a foreign aid bill. This is not 
an agriculture bill. This is not a tax bill. This is the Patients' Bill 
of Rights bill.
  The amendment offered by my good friend from Oregon is not a 
Patients' Bill of Rights amendment. It is a tax amendment. In fact, he 
would like to report out of the Finance Committee, by his amendment, a 
bill that is currently in the Senate Finance Committee, a tax bill. Tax 
legislation does not properly lie at this moment on this bill. Pure and 
simple. Full stop. That ends it.
  I also say to my good friend from Oregon, I agree with permanent 
extension of the R&D tax credit. I daresay a majority of Senators 
agree. I cosponsored legislation in the past. The Finance Committee 
reported out a permanent extension, and the Senate-passed tax bill, 
that huge tax bill of $1.35 trillion, included permanent extension of 
the tax credit. Unfortunately, it did not survive in conference, but it 
is clear that the R&D tax credit has enormous support in this body.
  Does anybody here think there is not going to be another tax bill? Of 
course, nobody here believes there will not be another tax bill. There 
will be tax legislation this year. That is clear. The appropriate time 
for this Senate to appropriately include considering permanent 
extension of the R&D tax credit is when the tax legislation comes up.
  The current provision expires December 31, not 2001, not December 31, 
2002, not December 31, 2003; it expires December 31, 2004, over 3 years 
away. In all the years we have been extending the R&D tax credit, that 
is probably the longest extension that has existed.
  I agree with my good friend; it should be permanent. This yo-yo, up-
and-down, back-and-forth, on-again off-again application of the R&D tax 
credit by this body does not make good sense. It is wrong.
  This is not a tax bill; this is a Patients' Bill of Rights bill. 
There will be tax legislation. When there is tax legislation before 
this body, that is the time we can appropriately consider permanently 
extending the R&D tax credit.
  I wish my good friend would withdraw his amendment because this is 
not the proper time and place for it. If he does not wish to withdraw 
it, I urge my colleagues to not support it because this is not the time 
and place. Were it to pass, the door would be open and we would be 
writing another tax bill. We have already passed a big tax bill. We 
passed a tax bill of 1.35 trillion bucks. That is a big tax bill. This 
is not the time and place.
  Mr. REID. Will the Senator yield for a question?
  Mr. BAUCUS. I yield to my good friend from Nevada.
  Mr. REID. Mr. President, as chairman of the Finance Committee, the 
Senator from Montana made commitments to a number of people, including 
this Senator, that he is going to do everything in his power as 
chairman of the Finance Committee to make sure there are other tax 
vehicles this year; is that true?
  Mr. BAUCUS. That is absolutely true. There are many Senators who

[[Page 12435]]

wanted to offer tax provisions to this bill but deferred, recognizing 
this is not the time and place. It is Ecclesiastes, Mr. President: 
Essentially there is a time and place for everything. This is not the 
right time and place for tax legislation.
  Mrs. BOXER. Will my colleague yield to me for a question?
  Mr. BAUCUS. I ask how much time is remaining on both sides?
  The PRESIDING OFFICER. Eleven minutes to the opponents; 4 1/2 minutes 
to the proponents.
  Mr. BAUCUS. I yield to my good friend from California.
  Mrs. BOXER. I want to ask the distinguished chairman of the Finance 
Committee this question. As someone who comes from the largest State in 
the Union, on the cutting edge of high tech, making the R&D--or R&E 
sometimes called--tax credit permanent has been a priority of mine for 
a long time.
  Will my friend tell me, if this is such an important priority to 
those who, in fact, had the majority at the time the tax bill was 
written, namely, the Republicans, and the President certainly was 
working at that time with Senator Grassley, could they not have put the 
extension of the R&D tax credit into the big tax bill that was brought 
to this Chamber?
  Mr. BAUCUS. Mr. President, the Senator from California makes a very 
good point. Clearly, the President could have included a permanent 
extension of the R&D tax credit in his proposed tax legislation. The 
Senate was then controlled by the Republican Party, and it certainly 
could have put in the R&D tax credit, and it probably would have 
survived conference if they pushed it.
  I say to my friend from California, this is only speculation, but 
that was not provided for because the current extension, the current 
provision is in place at least until December 31, 2004. So there is 
time for the R&D tax credit to take effect, and at a later date we can 
make it permanent.
  Mrs. BOXER. I say to my friend, then that is the same comment we can 
make to our colleagues who are trying to put this on a Patients' Bill 
of Rights. The R&D tax credit is in effect until 2004. Let's get an 
appropriate vehicle where we can all walk together and support the R&D 
tax credit and not put it on the Patients' Bill of Rights.
  I thank my friend for yielding.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. SMITH of Oregon. Mr. President, I say to my friend from Montana, 
I want to put this on whatever moves. I know it does not expire until 
2004. I also know President Bush did include this in his original tax 
bill, but that was moved down then. It was unfortunate it was moved 
down.
  I want to see us do it as quickly as we can for the simple reason 
that businesses need to make planning and expenditures that last an 
awful long time. The year 2004 does not fit with some of those plans 
that need to be made.
  This is not unrelated to medicine and patients' health. Part of the 
technological development we are hoping to continue to provide to our 
people is in the pharmaceutical and biotechnological areas which do 
have a direct bearing on patients' health. The best right a patient can 
have is good health. This will facilitate that a great deal, perhaps as 
much as anything else in the bill.
  I ask unanimous consent to send a modification of my motion to the 
desk.
  Mr. BAUCUS. Reserving the right to object, could the Senator share 
with the Senate the contents of the modification; otherwise, I will be 
constrained to object.
  Mr. SMITH of Oregon. It is simply to comply with the 
Parliamentarian's request to be consistent with Senate requirements.
  Mr. BAUCUS. I do not object.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The motion, as modified, is as follows:

       Mr. Smith of Oregon moves to commit the bill S. 1052, as 
     amended, to the Committee on Finance with instructions to 
     report S. 1052 back to the Senate within 14 days with an 
     amendment that--
       (1) makes the research and development tax credit permanent 
     and increases the rates of the alternative incremental 
     research and development tax credit as provided in S. 41,
       (2) provides that S. 1052, as amended pursuant to paragraph 
     (1), does not negatively impact the social security trust 
     funds or result in an on-budget surplus that is less than the 
     medicare surplus account, and
       (3) provides that S. 1052, as so amended, is not subject to 
     a budget point of order.

  Mr. REID. Has everyone yielded back their time?
  Mr. SMITH of Oregon. I yield 1 minute to the Senator from Virginia.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. ALLEN. To wrap up in response to some of the assertions and 
comments made in opposition to this amendment, the reason this 
amendment is necessary is, unfortunately, the other side of the aisle 
knocked out the amount of the tax cut we wanted and omitted small 
family farms and small businesses against the research and development 
tax credit. Senator Hatch was working mightily, with the support of 
many Members, to try to get this into the tax cut bill.
  More important than all the procedure is the fact that our economy is 
going very slowly. I am trying to be positive at this moment. The 
technology sector is obviously going very slowly. In fact, it is in 
some regards frozen, especially in new investment. The research and 
development tax credit being made permanent now matters because now and 
in the next few quarters is when technology companies, pharmaceuticals, 
biotechs, all folks in tech, will be making decisions, and those 
decisions need to be made so they can create the jobs, get our economy 
going again, and improve our lives.
  I thank the Senator from Oregon for this amendment and hope my 
colleagues will support this amendment.
  Mr. SMITH of Oregon. We yield back the remainder of our time.
  Mr. BAUCUS. I ask, is all time yielded back?
  The PRESIDING OFFICER. The Senator from Montana has 8 minutes 50 
seconds.
  Mr. BAUCUS. Mr. President, I yield back my time and I make a 
constitutional point of order against Senator Smith's motion on the 
grounds that the motion would affect revenues on a bill that is not a 
House-originated revenue bill.
  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. I ask permission to enter a request for unanimous consent 
with the Senator from New Hampshire. I ask that the vote on the motion 
made by the Senator from Montana be set aside and we next go, as has 
been already ordered, to the Allard amendment, the Nickles amendment, 
we debate the Allard and the Nickles amendment, and vote on those three 
amendments at the conclusion of debate.
  Mr. GREGG. We have 2 minutes equally divided prior to the Allard 
amendment and Nickles amendment to explain.
  The PRESIDING OFFICER. Does the Senator so amend his request?
  Mr. REID. Yes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Colorado is recognized.


                           Amendment No. 821

  Mr. ALLARD. Mr. President, I call up amendment No. 821.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Colorado [Mr. Allard], for himself, and 
     Mr. Gregg, Mr. Craig, Mr. Nickles, Mr. Allen, Mr. Inhofe, Mr. 
     Smith of New Hampshire, Mr. Gramm, Ms. Collins, Mr. Sessions, 
     Mr. Enzi, and Mr. Campbell, proposes an amendment numbered 
     821.

  Mr. ALLARD. 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 exempt small employers from causes of action under the 
                                  Act)

       On page 148, between lines 23 and 24, insert the following:
       ``(D) Exclusion of small employers.--
       ``(i) In general.--Notwithstanding any other provision of 
     this paragraph, in addition

[[Page 12436]]

     to excluding certain physicians, other health care 
     professionals, and certain hospitals from liability under 
     paragraph (1), paragraph (1)(A) does not create any liability 
     on the part of a small employer (or on the part of an 
     employee of such an employer acting within the scope of 
     employment).
       ``(ii) Definition.--In clause (i), the term `small 
     employer' means an employer--

       ``(I) that, during the calendar year preceding the calendar 
     year for which a determination under this subparagraph is 
     being made, employed an average of at least 2 but not more 
     than 15 employees on business days; and
       ``(II) maintaining the plan involved that is acting, 
     serving, or functioning as a fiduciary, trustee or plan 
     administrator, including--

       ``(aa) a small employer described in section 3(16)(B)(i) 
     with respect to a plan maintained by a single employer; and
       ``(bb) one or more small employers or employee 
     organizations described in section 3(16)(B)(iii) in the case 
     of a multi-employer plan.
       ``(iii) Application of certain rules in determination of 
     employer size.--For purposes of this subparagraph:

       ``(I) Application of aggregation rule for employers.--All 
     persons treated as a single employer under subsection (b), 
     (c), (m), or (o) of section 414 of the Internal Revenue Code 
     of 1986 shall be treated as 1 employer.
       ``(II) Employers not in existence in preceding year.--In 
     the case of an employer which was not in existence throughout 
     the preceding calendar year, the determination of whether 
     such employer is a small employer shall be based on the 
     average number of employees that it is reasonably expected 
     such employer will employ on business days in the current 
     calendar year.
       ``(III) Predecessors.--Any reference in this paragraph to 
     an employer shall include a reference to any predecessor of 
     such employer.

       On page 165, between lines 14 and 15, insert the following:
       ``(D) Exclusion of small employers.--
       ``(i) In general.--Notwithstanding any other provision of 
     this paragraph, in addition to excluding certain physicians, 
     other health care professionals, and certain hospitals from 
     liability under paragraph (1), paragraph (1)(A) does not 
     create any liability on the part of a small employer (or on 
     the part of an employee of such an employer acting within the 
     scope of employment).
       ``(ii) Definition.--In clause (i), the term `small 
     employer' means an employer--

       ``(I) that, during the calendar year preceding the calendar 
     year for which a determination under this subparagraph is 
     being made, employed an average of at least 2 but not more 
     than 15 employees on business days; and
       ``(II) maintaining the plan involved that is acting, 
     serving, or functioning as a fiduciary, trustee or plan 
     administrator, including--

       ``(aa) a small employer described in section 3(16)(B)(i) 
     with respect to a plan maintained by a single employer; and
       ``(bb) one or more small employers or employee 
     organizations described in section 3(16)(B)(iii) in the case 
     of a multi-employer plan.
       ``(iii) Application of certain rules in determination of 
     employer size.--For purposes of this subparagraph:

       ``(I) Application of aggregation rule for employers.--All 
     persons treated as a single employer under subsection (b), 
     (c), (m), or (o) of section 414 of the Internal Revenue Code 
     of 1986 shall be treated as 1 employer.
       ``(II) Employers not in existence in preceding year.--In 
     the case of an employer which was not in existence throughout 
     the preceding calendar year, the determination of whether 
     such employer is a small employer shall be based on the 
     average number of employees that it is reasonably expected 
     such employer will employ on business days in the current 
     calendar year.
       ``(III) Predecessors.--Any reference in this paragraph to 
     an employer shall include a reference to any predecessor of 
     such employer.''

  Mr. ALLARD. Mr. President, my amendment provides another opportunity 
for the Senate to protect the country's employees of small businesses. 
Yesterday, the Senate voted on an amendment I offered that would have 
protected employees of small businesses from losing their health care 
insurance.
  I am offering another amendment that gives Members another chance to 
protect those employees. My amendment, cosponsored by 12 Senators, 
protects employees of small businesses from losing their health 
insurance. My amendment exempts employers with 15 or fewer employees 
from unnecessary and unwarranted lawsuit.
  We must protect small business employees from losing their health 
care insurance. Small business represents over 99 percent of all 
employers in America. If the Kennedy bill passes in its current form, 
small business employees will be subject to increased health care 
premiums and to the possibilities of losing their health care insurance 
altogether.
  Based on studies from the Congressional Budget Office and the Lewin 
Group, the Kennedy bill will cause more than 1 million Americans to 
lose their health insurance. The White House estimates--and that is 
rather conservative, I believe, because the White House estimated even 
more Americans will lose their health care insurance--the Kennedy bill 
could cause 4 to 6 million Americans to lose their health care.
  The least the Senate can do to protect small business employees from 
losing their health insurance and protect small employers from 
unnecessary liability is to pass this amendment. We are talking about 
employers that have 15 to 2 employees. Currently, numerous Federal laws 
provide exemption for small businesses and their employees.
  In my previous amendment we talked about the 50 employee exemptions. 
The other side made the point it was unfair because we were creating a 
bright line and those with 49 employees would not have an opportunity 
to take advantage of benefits provided in the amendment as those with, 
say, 51 employees. This amendment draws a bright line. We are 
addressing the very small employers of the small business sector; that 
is, 15 employees or fewer. True, we have a bright line, but it is not 
unusual in Federal law to draw bright lines trying to differentiate 
where the respective law should deal with different sizes of employees, 
trying to draw a line between small employers and the larger employers.
  Let me cite for Members some examples. The Occupational Safety and 
Health Act exempts businesses of 10 or fewer employees, workers, in 
certain low-hazard industries. The Americans with Disabilities Act 
defines the term ``employer'' as a person who has 15 or more employees 
engaged in an industry affecting commerce. This is the area where we 
have decided in this amendment to differentiate the very small 
employers from the other small businesses of this country. The Worker 
Adjustment and Retraining Modification Act, commonly referred to as the 
Plant Closing Act, defines the term ``employer'' as any business that 
employs 100 or more employees. The Family and Medical Leave Act, which 
requires employers to grant leave to parents to care for a newborn or 
seriously ill child, exempts businesses with fewer than 50 employees. 
The Fair Labor Standards Act, which established the minimum wage 
standards, exempts certain employers with minimum gross income--they 
did not use the number of employees--of less than $500,000 as an 
indication of what a small employer might be as it applies to that 
statute.
  The Walsh-Healy Public Contracts Act, which contains minimum wage and 
overtime for federally contracted employers, exempts employers that 
have Federal contracts for materials exceeding $10,000, which also is 
indicative of a small employer. The Age Discrimination and Employment 
Act of 1967 exempts employers of 19 or fewer workers.
  These numerous employee protections are currently in place as Federal 
law. The Senate should extend similar protections to employees of small 
business. If we do not protect employees from frivolous lawsuits, more 
than a million--some estimate up to 9 million employees--will lose 
their health care insurance.
  Again, I am offering this amendment to provide the Senate with 
another chance to protect employees of small business from losing their 
health care insurance.
  I inquire the time remaining on my side?
  The PRESIDING OFFICER. The Senator has 9\1/2\ minutes.
  Mr. ALLARD. Mr. President, I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
  Mr. KENNEDY. Mr. President, this is the third bite of the apple. The 
first bite was Senator Gramm's amendment, where we were going to 
provide protection for all employers. Then we had the Allard amendment 
to protect an employer with 50 employees or less. Now with this 
amendment, we are down to 15.

[[Page 12437]]

  The fact is, yesterday, if there was any question about what this 
legislation was really all about, it was well debated, discussed and 
addressed. That was in the amendment offered by Senator Snowe of Maine 
and Senator DeWine of Ohio. In their amendment, the Wall Street Journal 
says:

       Employer protection makes gains. Senate passes rule to 
     shield companies from workers' health plan lawsuits.

  It is very clear now that the only employers, large or small, that 
are going to be vulnerable are those that take an active involvement in 
disadvantaging their employees in health care and putting them at 
greater risk of death or serious injury. That is it. The rest of this 
has been worked out. We have done it with 100 employees, we have done 
it with 50, and now we are down to 15. It makes no more sense today. 
Those employees should be adequately protected in these companies. I 
imagine, if the Senator is not successful with 15, we will be down to 
10, we will be down to 5, and then we will be down to 3.
  We have addressed this issue. Every Member of this body ought to know 
it. I think this is a redundant amendment, one that we have addressed. 
The arguments are familiar. I yield to the Senator from Nevada.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, this is clear filibuster by amendment. I 
have been here a long time. I have seen this happen. As the Senator 
from Massachusetts pointed out, we have been here; we have done that. 
Next, as the Senator from Massachusetts indicated, it will be 10 
employees, 5 employees, 4 employees, 3 employees.
  When the time has expired on this amendment, I will offer a motion to 
table. This amendment should not be discussed. It should not take up 
the serious time of the Senate that has been so well used these past 9 
days.
  The PRESIDING OFFICER. Who yields time?
  Mr. ALLARD. I yield 2 minutes to the Senator from New Hampshire.
  Mr. GREGG. I join the Senator from Colorado on this amendment. This 
bill is incredibly complex--to be kind. It has thousands of moving 
parts. The bureaucracy, which is going to be created and empowered as a 
result of it, is going to be massive. The lawsuits are going to be 
massive. The number of litigable events is going to be massive. It is 
going to be incomprehensible to large amounts of the American working 
public and their employers.
  It is only elementary fairness that we say, to at least the smallest 
employers that are the ones creating the jobs in America today, you are 
not going to have to pay what will undoubtedly be your entire profit 
margin in order to try to comply with this new piece of legislation.
  For employers that have 15 or fewer employees, it is simply fairness 
that we take them out from this cloud and give them the opportunity to 
give their people jobs and not be overwhelmed by the cost of this bill.
  We have talked a lot about the costs of this bill, but let me cite a 
couple of figures. The cost to defend the average malpractice suit is 
$77,000. There are very few employers in this country that have less 
than 15 employees that are making more than $77,000. They are running a 
small business, a grocery store or restaurant, gas station, small 
retailer. These are the smallest businesses that create the most energy 
in our economy. That is where our jobs are created; they are created in 
these small businesses.
  Let's not have those folks who are willing to be entrepreneurs for 
the first time in their lives, the first-time entrepreneurs who are 
willing to step into the risk pool of the capitalist system and, as a 
result, create jobs, let's not burden them with the bureaucracy and 
cost of this bill which we know is going to be extraordinary. Let's 
pass the Allard exemption for employers with 15 or fewer employees.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, let's just go back over what we are 
talking about this afternoon. First of all, the majority of small 
businessmen and women in this country are not involved in 
decisionmaking that affects the well-being of the employees. We know 
that. They basically are busy enough. It has been explained by Members 
that they are involved in running their businesses. This is really not 
an issue so much in terms of small business.
  The only people that will be affected by this are the small 
businessmen or women who get hold of the HMO where they have the 
insurance and says, look, if any of my employees are going to run up a 
bill more than $25,000, call me up because I want to know. When that 
HMO calls up, the employer says: Don't give them the treatment. As a 
result of not giving that treatment, the child of an employee is put at 
risk, and perhaps dies, or the wife of an employee, who has breast 
cancer, is denied access into a clinical trial and may die as a result. 
This is only if you can demonstrate the employer is actively involved 
in denying the benefits to those employees. Are we going to say that 
all these employers, with 15 or fewer employees, are going to be 
completely immune from this when the only employer that has to worry 
about this is one who is going to be actively involved in making a 
decision that puts their employees at risk? We built in the protections 
with the Snowe-DeWine amendment. We built them in and we have supported 
them. But it seems to me that workers in these companies, which make up 
about 30 percent of the American workforce, ought to be given the same 
kinds of protections against the employers that are going to make that 
decision.
  Make no mistake about it. The great majority of employers do not do 
that today. Only a very small group do. But if the small group that do 
do that are able to get away with it, there is an open invitation to 
other small businessmen and women, in order to keep their premiums 
down, to get involved in similar kinds of activities. This will offer 
carte blanche so that 30 percent of the American workforce will not be 
covered one bit with this legislation. It makes no sense. It didn't 
make any sense when it was first offered by Senator Gramm; it didn't 
make any sense when it was offered previously by Senator Allard; and it 
makes no sense at this time.
  The only people who have to worry are those employers that are going 
to connive, scheme, and plot in order to disadvantage their employees 
in ways that are going to bring irreparable harm, death, and injury to 
them. If you want to do that to 30 percent of the workforce and put 
them at that kind of risk, this is your amendment.
  I do not think we should. I hope the amendment will be defeated.
  The PRESIDING OFFICER (Mr. Carper). The Senator from Massachusetts 
has 9 minutes 23 seconds remaining. Who yields time?
  Mr. ALLARD. Mr. President, I yield 3 minutes to the Senator from 
Oklahoma.
  Mr. NICKLES. My friend and colleague from Massachusetts said if you 
want to do this, you should sponsor this amendment. I am not sure I 
want to do what he just described, but I want to sponsor this amendment 
with my colleague and friend from Colorado. I ask unanimous consent to 
be listed as a cosponsor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. NICKLES. This amendment is vitally important for small business. 
This bill, the underlying bill, says employers beware, we are coming 
after you because we do not exempt employers.
  Interestingly enough, we exempt Federal employees, we exempt 
Medicare, we exempt government plans, but we do not exempt private 
plans. Anybody who has a private plan, employers beware because they 
can sue you and they can sue the plan.
  Oh, I know we came up with a little cover, and maybe you can put the 
liability under the form of a designated decisionmaker, and they can 
assume it. But guess what? They are going to charge the employer for 
every dime they think it is going to cost. And my guess is, the 
designated decisionmaker will want to have enough cover so they don't 
go bankrupt, so they are going to charge a little extra to make sure 
they

[[Page 12438]]

have enough to protect them from the liability and the costs that are 
associated with this plan.
  The cost of health care is exploding. Health care costs went up 12.3 
percent nationally last year. They are supposed to go up more than that 
this year. That is not for small businesses. The cost of health care 
for small business is 20, 21, 22 percent, and that is without the cost 
of this bill.
  CBO estimates the cost of this bill is 4.2 percent. But if you assume 
there is going to be a whole lot of defensive medicine, you can 
probably double that figure. And with the liability, you are probably 
looking at another 9 or 10 percent on top of the 20 percent for small 
business. Those are not figures I am just grabbing out of the air, I 
think they are the reality.
  My friend and colleague from Colorado, Senator Allard, is saying: 
Wait a minute. Let's exempt small employers, those people struggling to 
buy health care for the first time. Let's protect them and make sure 
they won't be held to the liability portions.
  Federal employees are not able to sue the Federal Government. Why 
should we say: Oh, yes, you can have a field day on small employers. 
The only way to purely protect them--to surely protect them--is to 
adopt the Allard amendment.
  I urge my colleagues to vote in support of the Allard amendment to 
protect small businesses.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. ALLARD. Mr. President, I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Colorado has 4 minutes 25 
seconds remaining.
  Who seeks time?
  Mr. ALLARD. Mr. President, I say to the majority I would like to be 
able to wrap up on my amendment, if I might.
  Mr. KENNEDY. Why don't you wrap up.
  Mr. ALLARD. If you have finished, I will wrap up and then yield the 
time.
  Mr. KENNEDY. Don't get too provocative.
  Mr. ALLARD. Don't get too provocative? Maybe the Senator from 
Massachusetts would like to respond?
  Mr. KENNEDY. That is all right.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. ALLARD. Thank you, Mr. President.
  Mr. President, I have had the experience of starting a business from 
scratch and having to meet a payroll. As far as I am concerned, too few 
Members of the Senate have ever had the opportunity to be in business 
for themselves and had to meet the challenges of meeting a payroll. But 
I personally know how legislation such as this can affect your 
business. I have had to face those tough decisions. They are not 
pleasant.
  There are a lot of small business employers all over this country 
that are sending letters to Members of this Senate about the very same 
concerns that have been expressed by the Senator from Oklahoma, the 
Senator from New Hampshire, and numerous other Senators, at least on 
this side of the aisle, about the impact of this particular piece of 
legislation on small business.
  Let me take one example. There is a Mr. Terry Toler, for example, of 
Greeley, CO. I represent the State of Colorado. He runs a small 
construction business. He employs three workers. The health insurance 
he provides to his employees also helps take care of the needs of his 
family. Terry cannot afford the costs that would come with the Kennedy 
bill in its current form.
  Last year, Terry's company had a 65-percent increase in health 
insurance premiums and costs. This increase was on top of Terry's other 
insurance costs, including equipment insurance, professional liability 
insurance, and general liability insurance. If this bill is passed in 
its current form, the company's health insurance rates will increase 
even further. As a result, he may have to drop the health insurance he 
provides for his employees and his family.
  My amendment will protect Terry and his employees from losing their 
health insurance. Terry is one of hundreds of small employers in 
Colorado that would be forced to jeopardize their health care 
insurance. We need to protect hard-working employees from losing their 
health insurance.
  Let me share some further concerns of this small businessman. Large 
employers can obtain health insurance at a much lower rate. As a 
result, small business employers cannot compete with larger companies. 
In a tight labor market, employers compete for the best employees. 
These are all competitive issues about which a small businessman is 
concerned. When this kind of legislation moves forward, you can 
understand their concerns.
  I have heard comments from another small businessman in Springfield, 
CO, who has expressed his concern. He writes:

       Health care costs are already prohibitive. Adding the law-
     given right to sue for punitive damages can only increase 
     costs. A patient bill of rights is important, but not at the 
     price of Kennedy's bill.

  He further states:

     . . . liability limits are a good way to help cap rising 
     health care costs.

  As an employer, he must evaluate the price tag that comes with paying 
for health care. He believes it is prohibitive.
  According to a recent survey of some 600 national employers, 46 
percent of employers would likely drop health care coverage for their 
workers if they were exposed to new health care lawsuits.
  This is not a good bill for small business. The adoption of the 
Allard amendment would make it better. So I am asking my colleagues in 
the Senate to join me in protecting employees of small business, thus 
protecting the employees' health care they currently enjoy. If the 
Kennedy bill passes in its current form, the health care protection of 
more than 1 million Americans will be jeopardized. Colleagues should 
support this amendment to protect employees' health insurance and limit 
small employer liability.
  Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator from Colorado has 3 seconds 
remaining.
  Mr. ALLARD. I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. KENNEDY. I say to the Senator, I am going to make a brief 
statement, and then he can wind up. I will yield him 2 minutes after I 
make a brief statement.
  The PRESIDING OFFICER. The Senator has 9 minutes.
  Mr. KENNEDY. I yield myself 4 minutes.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, first of all, we acknowledge the burden 
that is placed upon small business and the costs of their insurance. 
The Senator is quite correct that they pay anywhere from 20 to 30 
percent more. They are constantly having to look at newer kinds of 
companies as they are being knocked off the insurance rolls. We 
understand that. We are prepared to work with the Senator on this.
  This is an important issue. I am amazed that small businesses in my 
own State can really survive with the problems they have. We ought to 
be able to find ways to help and assist them; but this is not it.
  We had $3.5 billion of profits last year from the industry. They have 
already asked for a 13-percent increase in their premiums this year. 
They were 12 percent last year. That is generally, without this.
  We have been over this during the debate, that the cost of this is 
less than 1 percent a year over the next 5 years. We have also gone 
over this and found out that some of the wealthiest Americans are the 
heads of these HMOs. Mr. McGuire makes $54 million and got $350 million 
in stock value last year--$400 million. That has something to do with 
the premiums for those companies.
  This is a very simple kind of question. He talks about protecting the 
employers. We are interested. They are protected unless they go out and 
change and manipulate their HMO to disadvantage the patients who are 
their employees and deny them the kinds of treatments that would be 
protected and with which we are all protected.

[[Page 12439]]

  I am reminded, myself, that my son had cancer. I was able to get a 
specialist for him and to be able to get into a clinical trial. I want 
those employees who are represented by the 15 not to be denied that 
same opportunity. I did not have someone who was riding over that and 
denying me that. But that is happening in America. It might not be 
happening in Colorado, but it is happening in America, where employers 
are calling up and saying: Don't put them in those clinical trials. We 
are here to stand and say: We are going to protect them. We will work 
with you, with the small business, but let us protect the women who 
need that clinical trial for cancer and the children who need that 
specialist. Why deny them those protections? That is what this 
amendment is all about.
  I am prepared to yield the last 2 minutes to the Senator from 
Colorado.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. ALLARD. Mr. President, I thank the Senator from Massachusetts.
  I am continuing to hear from small business employers. And other 
Members of this Senate, as well, are hearing the same message I am. 
They are concerned about the rising cost of health care and the impact 
it will have on their business and the impact this particular piece of 
legislation is going to have on costs.
  They are also concerned about the increased number of lawsuits that 
will be faced by small business employers if this particular piece of 
legislation passes.
  My amendment provides some relief for small businesses of 15 
employees or fewer. When you first glance at this bill, as I did, you 
say: It looks as if the employer has been exempted. But when you read 
the fine print, then you see there is a circle around it, and you find 
that the small businessman gets pulled in and becomes subject to 
lawsuits, more lawsuits than he is facing now. That puts at jeopardy 
the health care he is currently providing for his employees.
  I am asking the Members of the Senate to join me to make sure small 
business doesn't get pulled into this ever-expanding web of tangled 
lawsuits into which they are going to be pulled if this particular bill 
passes.
  The Allard amendment is a good amendment. I hope Members of the 
Senate will join me in protecting small business, those of 15 employees 
or fewer.
  Mr. President, I yield back the remainder of my time.
  Mr. KENNEDY. Mr. President, I yield back my time.
  The PRESIDING OFFICER. All time is yielded back.
  Mr. ALLARD. Mr. President, I ask unanimous consent to print in the 
Record an editorial run in the Fort Collins Coloradoan.
  There being no objection, the editorial was ordered to be printed in 
the Record, as follows:

       Patients' Bill of Rights Not End-All to Health Care Issues

       Physician (and consumer), heal you, should be the motto for 
     the Patients' Bill of Rights now under consideration by 
     Congress.
       The legislation, which actually includes several 
     amendments, focuses on whether consumers can sue their health 
     care providers for not approving treatment deemed medically 
     necessary. Congress should restore that power to consumers, 
     but only if the suits are based on actual damages, rather 
     than punitive penalties. Those penalties have led to some 
     outrageous settlements, and those legal costs have been 
     passed on to employers and employees.
       But consumers would be unwise to believe that this 
     legislation can solve the broader issues of the rising cost 
     of health care.
       Many symptoms combine to make medical care costly: 
     Pharmaceutical companies are advertising directly to 
     consumers rather than doctors, which means patients may 
     demand the more expensive brand-name medicines. Low 
     deductibles for doctor office visits benefits consumers 
     upfront, but health care providers shift their expenses by 
     demanding higher premiums, which have increased sometimes 10-
     fold in the past decade for employers.
       Publicly owned health care providers face the sometimes-
     conflicting mission of answering to stockholders, who want 
     profits, and their customers, who demand lower premiums and 
     broader access to care. All the while, health care CEOs are 
     receiving bonuses worth millions.
       Managed care is not all negative. Without a cooperative 
     system, many individuals could not afford even simple 
     doctor's visits to maintain their health. Those without 
     insurance usually have to turn to acutely expensive emergency 
     rooms for health care. The focus on preventive care came 
     about, in part, from health care providers who were seeking 
     to keep their costs down, but the process also keeps patients 
     healthy.
       Legislation will not replace the need for innovation and 
     close scrutiny by consumers and health care professionals 
     regarding how the system works. Some providers are using a 
     triage-type system to evaluate and treat patients 
     efficiently; employers are shopping around to find health 
     plans that fit their needs; providers are considering tiered-
     cost plans; and patients bear responsibility for keeping 
     themselves as healthy as possible.
       Congress should allow patients the right to sue providers 
     and exempt employers who have no control over medical 
     decisions. Still, turning the decision over to the courts in 
     expensive and unwieldy, with lawyers seeing the most benefit. 
     Another option is to rely on a binding mediation process or 
     an independent panel to weigh medical coverage decisions to 
     keep the focus on health care and off litigation.

  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, I move to table the Allard amendment and ask 
for the yeas and nays. Under the previous agreement, that will be set 
aside and we will go to the Nickles amendment now.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be.
  The yeas and nays were ordered.


                           Amendment No. 850

  The PRESIDING OFFICER. Under the previous order, the pending 
amendment is set aside and the Senator from Oklahoma is recognized.
  Mr. NICKLES. 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 Oklahoma [Mr. Nickles] proposes an 
     amendment numbered 850.

  Mr. NICKLES. 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 apply the patient protection standards to Federal health 
                           benefits programs)

       On page 131, after line 20, insert the following:

   TITLE III--APPLICATION OF PATIENT PROTECTION STANDARDS TO FEDERAL 
                          HEALTH CARE PROGRAMS

     SEC. 301. APPLICATION OF PATIENT PROTECTION STANDARDS TO 
                   FEDERAL HEALTH CARE PROGRAMS.

       (a) Application of Standards.--
       (1) In general.--Each Federal health care program shall 
     comply with the patient protection requirements under title 
     I, and such requirements shall be deemed to be incorporated 
     into this section.
       (2) Cause of action relating to provision of health 
     benefits.--Any individual who receives a health care item or 
     service under a Federal health care program shall have a 
     cause of action against the Federal Government under sections 
     502(n) and 514(d) of the Employee Retirement Income Security 
     Act of 1974, and the provisions of such sections shall be 
     deemed to be incorporated into this section.
       (3) Rules of construction.--For purposes of this 
     subsection--
       (A) each Federal health care program shall be deemed to be 
     a group health plan;
       (B) the Federal Government shall be deemed to be the plan 
     sponsor of each Federal health care program; and
       (C) each individual eligible for benefits under a Federal 
     health care program shall be deemed to be a participant, 
     beneficiary, or enrollee under that program.
       (b) Federal Health Care Program Defined.--In this section, 
     the term ``Federal health care program'' has the meaning 
     given that term under section 1128B(f) of the Social Security 
     Act (42 U.S.C. 1320a-7b) except that, for purposes of this 
     section, such term includes the Federal employees health 
     benefits program established under chapter 89 of title 5, 
     United States Code.

  Mr. NICKLES. Mr. President, this amendment expands the coverage of 
the bill basically to all Americans.
  I have heard countless sponsors of the bill say we should cover 
everybody who needs basic protections. I have heard it time and time 
again. I have heard it on national TV shows, Sunday morning shows: We 
should make this apply to everybody. Some argue, shouldn't these 
protections be reserved to the States because they have historically 
done it? But the legislation

[[Page 12440]]

before us says, no, the Federal Government will do it; we will do it 
for all private plans. Usually they don't even say all private plans. 
They usually say for all plans.
  The truth is, the legislation we have is a mandate on the private 
sector, but we have exempted the public sector.
  It is amazing to me, almost hypocritical--I don't want to use that 
word, impugning anybody's motives--but it bothers me to think we are so 
smart and wise that we are going to mandate these patient protections 
on every plan in America, supersede State protections already present, 
and we don't give them to a group of employees over whom we really have 
control. We do have control over the Federal employees health care 
plan. We can write that plan. We have control. We write the checks. 
Federal employees pay about a fourth, but the Federal Government pays 
three-fourths. We have direct control over Federal employee plans, but 
they are not covered by this bill.
  Federal employees in the State of Delaware or California or Oklahoma 
usually get their health care from Blue Cross or Aetna or whomever. 
They get it just like any other employee, but they are Federal 
employees. They don't get the patient protections under this bill. They 
don't have the appeals process under this bill. They don't have the 
legal recourse that is under this bill. They don't have the patient 
protections that are dictated in this bill. All other private sector 
employees will. Does that really make sense? Is that equitable? I am 
not sure.
  My friend and colleague Senator Kennedy just talked about clinical 
trials, and maybe they help somebody. I looked at the language for 
Federal employees. We are getting ready to mandate a very expensive 
provision, probably fairly popular, that says under the McCain-Kennedy 
bill we pay for all trials, for all purposes, if it has any Federal 
connection whatsoever. Federal employees aren't covered by the clinical 
trials section of this bill. They may be under individual plans, but 
they are not by mandate, by patient protections. Some plans may offer 
them; some plans may not. There is not a dictate.
  We are getting ready to mandate a very expensive comprehensive list 
of clinical trials for every private sector plan in America, but not 
for Federal employees. I find that interesting.
  We are getting ready to mandate an emergency room provision that 
includes prudent layperson, poststabilization, and ambulance care 
provisions. I mention this for the Senator from Delaware because I 
believe the State of Delaware is passing a patient protection program 
but they only cover prudent layperson. That is what Federal employees 
do. Federal employees don't have poststabilization and ambulance. That 
means our staffs, our employees, don't have the same patient 
protections that we are getting ready to mandate on every other health 
care plan in America. I find that to be very inconsistent.
  I could go on and on and on. The OB/GYN provision: Federal employees 
get to have one visit. This is dictated or mandated--one visit to an 
OB/GYN. Under the bill we have before us, it basically allows the OB/
GYN to authorize any OB/GYN care, without any other authorization 
requirements. That sounds unlimited to me, a much more expensive 
provision than what we have for Federal employees.
  It is almost the case all the way through the bill. For pediatricians 
under the McCain-Kennedy bill, we allow parents to designate a 
pediatrician for their children. That sounds fine. I am sure if we 
voted on that, it would be unanimous. That is not a dictate for Federal 
employees. Some plans may have it; some plans may not.
  My point is, Federal employees don't have these patient protections. 
We are getting ready to mandate something on the private sector that we 
forgot to do for the public sector.
  It is interesting because I know President Clinton made a big deal 
out of the fact, saying: Congress is not acting. I am going to have an 
Executive order and make Federal employees have these patient 
protections. I will do it by Executive order. Well, he didn't do as 
much as we are getting ready to do on the private sector. That is my 
point.
  I expect that what we are getting ready to do, that the patient 
protections we are passing, the examples I have listed--and that is not 
the total--are much more expansive than what has already been done. The 
same thing would apply for Medicare. If all these patient protections 
that have been espoused are so important, shouldn't we give those to 
senior citizens? Shouldn't senior citizens have the same expedited 
review process, internal/external appeal process, as we are going to 
mandate on all the private sector? I would think so. We all love our 
senior citizens, our moms and dads and grandparents. Surely we should 
give them the same protections we are getting ready to mandate. They 
don't have it. They can spend days in an appeals process and never get 
out of the appeals process.
  What about Indian Health Service? What about our veterans? Our 
veterans aren't covered by this bill. They don't have the same patient 
protections. They don't have the same expedited review process. 
Shouldn't they be covered?
  Granted, this amendment could cost a lot of money, but this bill will 
cost a lot of money. I have heard a lot of people say this bill only 
costs a Big Mac a month, it is not all that expensive, it is only just 
a little bit. I disagree with that. I am also struck by the fact that 
we are quite willing to mandate this on every city, every State, every 
private employer, but we don't mandate it on Federal employees. We 
don't do it on Federal programs. We do it on State programs. We do it 
on city programs. We don't have any objection to dictating how other 
governments have to do it. We will tell them how to do it. We just 
don't think the Federal Government should do it. We don't think the 
programs under Federal control should do it. I find that very 
inconsistent.
  If this is that great of a program, and I have some reservations. I 
think this bill goes too far.
  I think we are superseding State regulations, and I have stated that. 
I lost on that amendment. Maybe that amendment can be fixed in 
conference, but for crying out loud, we should be consistent. I have 
heard proponents say time and time again that this bill is not at all 
expensive. If so, shouldn't it apply to Federal employees? If we are 
going to mandate Blue Cross/Blue Shield in Virginia to provide this for 
all private sector plans, union plans, nonunion plans, and they also 
have governmental plans--the same Blue Cross--shouldn't they apply to 
governmental plans? They have to do it for Virginia. Shouldn't they 
have to do it for the Federal Government? That is my point.
  There is some inconsistency here. If these are such great protections 
and they are not that expensive, we should make sure they apply to our 
employees as well. Senator Kennedy mentioned clinical trials, as if 
that was a mandate. Some of the Federal plans cover clinical trials. 
Not all do. We are getting ready to mandate them for every plan in the 
country. Shouldn't we have it for Federal employees as well--maybe for 
the sons and daughters of the staff members working here? Shouldn't 
they have access to those just as the private sector will now have 
access to them?
  The appeals process: This is one of the real keys. There have been 
hours of debate on the floor saying that on appeals every individual 
should have rights of internal review, and then the external review 
should be done by an independent entity not controlled by the employer. 
Guess what Federal employees have? If they are denied care, they can 
appeal. But to whom? They appeal to the Office of Personnel 
Management--to their employer. The employer might subcontract it, but 
basically it is the employer, the Federal Government. It is not totally 
independent when the Federal Government might be making that decision. 
Shouldn't we give Federal employees that same independent external 
review?
  My amendment would make this bill applying to the public sector 
include

[[Page 12441]]

Federal employees, Medicare, Medicaid, Indian health, veterans, and 
civil service. I think it would help show that if we are going to 
provide these protections for the private sector and, frankly, mandate 
them, they should apply to the public sector as well.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I have listened closely. I will come to 
the substance of the Senator's amendment in just a minute. I listened 
to him very carefully about his great enthusiasm for the Federal 
employee program. It is a fact that 100 Members have that program here 
in the Senate. It is interesting because the taxpayers pay for 75 
percent of it. So it is always interesting for those of us who have 
been trying to get a uniform, or a national health insurance program. I 
favored a single payer for years. I am glad to do it any way that we 
are able to do it.
  But I am glad to hear from my good friend from Oklahoma how much he 
believes in the value of the Federal employee program of which 75 
percent is paid for every Member in here by the Federal Government. 
When any of us talk about trying to expand health insurance to try to 
include all Americans, oh, my goodness, we are going to have the 
Federal Government pay for any of these programs? My goodness. I 
welcome the fact that the Senator from Oklahoma is so enthusiastic 
about that concept, about having a uniform concept. It is interesting, 
you know, Mr. President. Many Americans probably don't know it. When 
you come in and sign on, there is a little checkoff when you become 
employed in the Senate. You check it and you are included in the 
Federal employee program. You have probably 30 or 35 different options. 
I wish the other American people had those kinds of options. No, we 
don't get any kind of support for trying to give the American people 
those kinds of options.
  But do you know what, Mr. President? All these Senators who are 
always against any kind of health insurance for all Americans are down 
there checking that off as quick as can be to get premiums subsidized 
75 percent by the taxpayers. Wonderful. Now they come up and say, well, 
they don't have all of the protections on it.
  I want to say to the good Senator that I am very inclined to take the 
amendment. I would like to take the amendment. We are studying now the 
budget implications because I don't want to take it and then find out 
that we have the Senator from Oklahoma come over and say we have 
exceeded the budget limitations and then you have a blue slip and 
therefore the whole bill comes down. We know what is happening now. The 
basic protections of this legislation, according to the Congressional 
Research Service--the patient protections in the McCain-Edwards-Kennedy 
bill would apply, with the exception of the right to sue. That is what 
we are checking out at the present time in terms of what would be the 
estimation. Otherwise, I am all for it.
  We have now in the Medicare systems that are involved in HMOs, they 
have the right to sue on this. As we saw some of those elements on the 
executive order, they have not been altered by the administration. I 
would like to make them statutory. No one would like to make them 
statutory more than I. I am about to wrap my arms around the Senator 
and bring him in and say I am in on this.
  Hopefully, as our leader pointed out, after all the lectures that I 
have had--I don't say that in a derogatory way to my friend from 
Oklahoma--about health insurance--we heard about how we are going to 
increase the numbers of those who are going to lose their health 
insurance. We are not dealing with that problem, with the 43 million.
  We will have an opportunity to invite your participation on these 
issues. We had some votes on the extension last year in terms of the 
parents on the CHIP program and virtually every Republican voted 
against it. To the extent that we saw progress made with the good 
support of Senator Smith and Ron Wyden, we now have about $28 billion, 
$29 billion in the Finance Committee that can be used for the expansion 
of health care. We certainly want to utilize that. That is only a drop 
in the bucket. Our attempts in the past to get reserve funds out of the 
Finance Committee, which the Senator is on, so we could move ahead with 
a health insurance program have fallen on deaf ears.
  I hope that all those--I will have a talk on that later on because I 
am taking all of those statements and comments made by our Republican 
friends over the period of the past days, all talking about health 
insurance, and we will give them a good opportunity. Hopefully, they 
won't have to eat their words. We will welcome some of their 
initiatives. We know what they are against. We want to know what they 
are for in terms of getting some health insurance.
  Well, I will say that I am going to recommend to our side that we 
accept the Nickles amendment. So I am prepared. The Senator made such a 
convincing argument, and it has taken a little while. He left out HCFA. 
That was the only thing he left out. That is why we have been so 
persuaded. I know HCFA is not going to have anything to do with this 
amendment the Senator offers because, otherwise, I know he would not 
offer it.
  Mr. REID. Will the Senator yield?
  Mr. KENNEDY. Yes.
  Mr. REID. Would the Senator from Oklahoma agree to a voice vote 
because it appears he is going to win so overwhelmingly?
  Mr. NICKLES. I will think about that. How much time remains?
  The PRESIDING OFFICER. Five minutes. The Senator from Massachusetts 
has almost 9 minutes.
  Mr. NICKLES. Mr. President, I neglected to do this earlier and I 
meant to do it. I wanted to compliment Senator Gregg and Senator 
Kennedy for their leadership on this bill and their leadership on the 
education bill because it is kind of unusual that we have two committee 
chairmen and two people who are responsible for moving two major pieces 
of legislation consecutively. So they combined and spent about the last 
2 months on the floor. That is not easy.
  I have always enjoyed debating and working with my friend and 
colleague from Massachusetts, and we are good friends. Occasionally, we 
agree. We have had two or three amendments, and we have had great 
oratory and, occasionally, we still agree on amendments. I appreciate 
that. We ended up coming together basically on covering union plans 
today. We got very close to an agreement. We will make that, I guess, 
in the managers' amendment. I appreciate that. I appreciate his 
willingness to accept this amendment.
  I will be very frank and say we don't know how much this is going to 
cost, but frankly, we don't know how much this costs in the private 
sector. There is a point to be made. The Senator said maybe we can 
accept it, and possibly it can work out to give patient protections, 
but I don't know about the right to sue. That might be pretty 
expensive. We are doing that on the private sector as well. We do not 
know how much that is going to cost, but it will be very expensive.
  Federal employees have a lot of protections, but they do not have 
near the protections we are getting ready to mandate on the private 
sector.
  Medicare has some patient protections. They do not have near the 
patient protections that we will be mandating on the private sector. 
They do not have an appeals process that is as expedited as this. I do 
not have a clue whether Medicare can comply with this language. It 
takes, in many cases, hundreds of days to get an appeal completed in 
Medicare. We have a very expedited appeals process in this bill. I 
happen to support that appeals process, and it would be good if 
Medicare could have a very concise, complete, final appeals process and 
one, hopefully, that would be binding. We improved the appeals process 
in this bill today with the Thompson amendment, and I compliment 
Senator Thompson for his leadership on that bill.
  I would be very troubled to go back to my State of Oklahoma and have 
a town meeting and tell employers they have to do this, this, this, and 
this;

[[Page 12442]]

they have to have this in their plans; if things do not work out, they 
might be sued for unlimited damages, and have one of them raise their 
hand and say, ``Did you do that for Federal plans,'' and say, ``No, we 
didn't. We just did it for you. We think maybe we are not going to do 
it for ourselves.''
  We have control over Federal plans. Those are the ones over which we 
really have control. I would find it very troublesome. I was one of the 
principal sponsors of the Congressional Accountability Act a few years 
ago who said Congress should live under the rules like everybody else. 
I remember some of my colleagues saying: Don't do that; if we make the 
Capitol comply with OSHA, it is going to be very expensive. If you walk 
into the basement of the Capitol today, you will find a lot of 
electrical wires that would not pass any OSHA inspection.
  It bothers me to think we are going to mandate on every private 
sector health care plan: You have to have this, this, this, and this, 
all very well-intentioned, I might add, but some of which will be 
pretty expensive. I would find it troubling if we mandate that on the 
private sector and say: Oops, we forgot to do it for Federal employees.
  That is the purpose of my amendment. I appreciate the willingness of 
my colleague from Massachusetts to accept the amendment.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I listened to the Senator talk about 
being in a town meeting and the questioner says: How in the world, 
Senator, can you apply all these provisions to our small business and 
you are not doing that to the Federal employees?
  I would think at a town meeting in my State of Massachusetts someone 
might stand up and say: Senator, how come your health care premium is 
three-quarters paid by the taxpayers; why don't you include me? That is 
what I would hear in my State of Massachusetts. That is what I hear.
  Maybe they are going to ask you about the right to sue where hard-
working people have difficulty putting together the resources to get 
the premiums and get the health care. They wonder why the Federal 
Government is paying for ours. If we are being consistent with that, I 
say to the Senator from Oklahoma, we ought to be out here fighting to 
make sure their health care coverage is going to be covered. I do not 
see how we can have a town meeting and miss that one.
  It is interesting, as we get into the Federal employees, we have 34, 
35 different choices. What other worker in America has that kind of 
choice? The people say, what about your appeal? Generally speaking, you 
do not need an appeal; you can just go to another health care policy. 
We have that choice, but working Americans do not. They are stuck with 
the choices in the workforce. We can get on with those differences. But 
I am still in that wonderful good moment of good cheer for my friend 
from Oklahoma. I urge all our colleagues to support this well-thought-
out, well-considered amendment. I look forward to working with him on 
other matters on health care to make sure we are going to do for the 
others, the rest of the people of Massachusetts and Oklahoma, as well 
for them as we do for ourselves in health care.
  I am ready to yield back the time or withhold my time.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. NICKLES. Mr. President, I thank my colleague. He mentioned the 
fact that the Federal Government pays three-fourths of the cost of 
health care for Federal employees. That is correct. With some companies 
it is more and some companies it is less.
  The Federal Government pays 100 percent of my salary. The Senator 
from Massachusetts might want the Federal Government to pay 100 percent 
of the salaries in Massachusetts; I don't know. I appreciate his 
willingness to accept the amendment. I am not going to ask for a 
recorded vote.
  The PRESIDING OFFICER. Does the Senator yield back his time?
  Mr. NICKLES. I yield back my time.
  The PRESIDING OFFICER. The Senator from Massachusetts has 6 minutes 
remaining.
  Mr. KENNEDY. I yield back my time.
  The PRESIDING OFFICER. All time having been yielded back, the 
question is on agreeing to amendment No. 850.
  The amendment (No. 850) was agreed to.
  Mr. KENNEDY. I move to reconsider the vote.
  Mr. NICKLES. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. REID. Regular order, Mr. President.


                            Motion to Commit

  The PRESIDING OFFICER. Under the previous order, there are now 4 
minutes evenly divided prior to the vote on the point of order on the 
motion to commit. Who yields time?
  Mr. REID. Mr. President, the participants are not here. We ask the 
roll be called.
  The PRESIDING OFFICER. All time is yielded back.
  Under the precedents and practices of the Senate, the Chair has no 
power and authority to pass on such a point of order. The Chair, 
therefore, under the precedents of the Senate, submits the question to 
the Senate: Is the point of order well taken? The yeas and nays have 
been ordered. The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from New Mexico (Mr. 
Domenici) and the Senator from Alaska (Mr. Murkowski) are necessarily 
absent.
  The yeas and nays resulted--yeas 57, nays 41, as follows:

                      [Rollcall Vote No. 214 Leg.]

                                YEAS--57

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

                                NAYS--41

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

                             NOT VOTING--2

     Domenici
     Murkowski
       
  The PRESIDING OFFICER (Mr. Brownback). On this vote, the yeas are 57, 
the nays are 41. The point of order is sustained and the motion falls.


                           Amendment No. 821

  Under the previous order, there are now 4 minutes evenly divided 
prior to voting on a motion to table the Allard amendment No. 821.
  Who seeks time?
  Mr. KENNEDY. Mr. President, Senator Allard isn't going to use his 
time. I would be glad to yield back at this time.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. ALLARD. Mr. President, if I might, I would like to give a brief 
explanation of what this amendment is all about. The Allard amendment 
says that if you are a small businessman--you have between 2 and 15 
employees--you are exempt from the provisions of this bill. That means 
you do not have to face the increased burdens of having to face 
lawsuits. And it means you will not have to face the increased burdens 
of higher premium costs on your insurance.
  So it is a very straightforward amendment. It is an amendment that is 
strongly supported by the small business community. Probably most of 
you have been getting calls into your

[[Page 12443]]

offices from small businesspeople concerned about how this is going to 
impact their small business. So it is an important small business vote.
  I ask for a ``nay'' vote on the motion to table.
  The PRESIDING OFFICER. Who seeks time?
  The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, over the past several days, Members, in a 
bipartisan way, have worked very hard and successfully in shielding 
employers from frivolous suits. As the Wall Street Journal today points 
out: ``Senate passes rule to shield companies from workers' health plan 
lawsuits.''
  When this bill is passed, the only employers that have to worry in 
this country are going to be those employers that call their HMOs and 
tell them to discontinue care when their workers run up a bill of more 
than $20,000 or $25,000. They are not going to let women into the 
clinical trials. They won't let children get their specialty care. They 
will not let the other employees get the rights that they have.
  Employers, today, overwhelmingly do not do that; but a few do. If we 
adopt this amendment, this is going to be an invitation to other 
employers. The ones that are violating the spirit of the law will get 
lower premiums, and this will be an incentive for others as well.
  This will be the third time we have voted on this issue. It seems to 
me we have a balance now as a result of a bipartisan effort. We ought 
to respect that and guarantee to those employees across this country--
the workers--the absolute patients' rights which this bill provides.
  So I hope we will support the tabling motion by the Senator from 
Arizona.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. I move to table and ask for the yeas and nays.
  The PRESIDING OFFICER. The yeas and nays have already been ordered on 
the motion to table the Allard amendment.
  The question is on agreeing to the motion.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from New Mexico (Mr. 
Domenici) and the Senator from Alaska (Mr. Murkowski) are necessarily 
absent.
  The result was announced--yeas 55, nays 43, as follows:

                      [Rollcall Vote No. 215 Leg.]

                                YEAS--55

     Akaka
     Baucus
     Bayh
     Biden
     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
     McCain
     Mikulski
     Miller
     Murray
     Nelson (FL)
     Nelson (NE)
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Snowe
     Stabenow
     Torricelli
     Wellstone
     Wyden

                                NAYS--43

     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
     Lincoln
     Lott
     Lugar
     McConnell
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner

                             NOT VOTING--2

     Domenici
     Murkowski
       
  The motion was agreed to.
  Mr. KENNEDY. Mr. President, I move to reconsider the vote.
  Mrs. BOXER. I move to lay that motion on the table.
  The motion to table was agreed to.
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
  Mr. KENNEDY. Mr. President, we have an order that has been worked out 
by our friend and colleague. We are in the process now of working 
toward that. I think we go to Senator Santorum next, for 40 minutes, 
Senator Craig for 30 minutes after that, and then Senator Breaux after 
that. The general intention is to go to the Senator from Pennsylvania 
for 40 minutes equally divided, followed by Senator Craig.
  Mr. REID. If my friend from Massachusetts will yield for a brief 
inquiry, it is my understanding--Senator Judd Gregg is not on the 
floor, but I think he has agreed to this. If there is a problem, I will 
be happy to reverse it--that the matter to come up would be Senator 
Breaux's amendment after Senator Santorum, with 1 hour evenly divided. 
If there is any problem, we will reverse it. Judd Gregg and I have 
spoken about that.
  Mr. WARNER. Reserving the right to object, I had discussed with one 
of our managers the appropriate time at which we could consider the 
amendment which I have at the desk, in sequence, and the yeas and nays 
have been ordered. What would be a time that you could indicate to the 
Senator from Virginia it could be taken up?
  Mr. REID. We can do it after Breaux.
  Mr. WARNER. Will the leader put that in, that it be taken in sequence 
after Senator Breaux? Could it be amended so my amendment could be 
brought up after Senator Breaux?
  Mr. REID. Reserving the right to object, it is my understanding that 
the Senator wanted a half hour.
  Mr. WARNER. Equally divided.
  Mr. REID. We have not seen the amendment of the Senator from 
Virginia, so maybe we should not agree on time but agree on the 
sequence.
  Mr. WARNER. We can have it sequenced. I will submit the amendment and 
the Senator can establish a time.
  The PRESIDING OFFICER. Is there objection to the unanimous consent 
request?
  Mr. FRIST. Reserving the right to object, I would like to talk to 
Senator Gregg on the time agreement and also restrictions on the 
amendment with Senator Breaux. If I can have an opportunity to check 
with Senator Gregg.
  Mr. KENNEDY. We are operating on good-faith agreements. We have done 
very well. This is the intention. We will wait to hear from the 
Senator.
  I understand Senator Craig and Senator Santorum want to change the 
order. Senator Craig will be the next amendment, followed by Senator 
Santorum.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, I ask unanimous consent that the order of 
the Santorum amendment and the Craig amendment be switched and that the 
time allotted be the same. Senator Santorum is still perfecting a 
portion of his amendment.
  Mr. REID. Mr. President, we were planning on the other order. The 
person who will be responding to the Senator from Idaho is not here.
  Mr. KENNEDY. We prefer to go the other way. We announced the order, 
and this has changed. We will need to put in a quorum call to get the 
personnel who will be addressing this amendment.
  Mr. CRAIG. I am sorry for this delay.
  Mr. KENNEDY. We are moving along, and we will do the best we can. I 
suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CRAIG. 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. 851

  Mr. CRAIG. Mr. President, there was an agreement that the Santorum 
amendment would proceed and I would follow. We agreed we would switch 
those. I think that is the current agreement that has been accepted. I 
see the Senator from Montana is on the floor, the chairman of the 
Finance Committee, so with that, I send my amendment to the desk.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The legislative clerk read as follows:
  Mr. CRAIG. Mr. President, I ask unanimous consent that further 
reading of the amendment be dispensed with.

[[Page 12444]]

  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

 (Purpose: To express the sense of the Senate regarding making medical 
              savings accounts available to all Americans)

       At the appropriate place insert the following:

     SEC.  . SENSE OF THE SENATE REGARDING FULL AVAILABILITY OF 
                   MEDICAL SAVINGS ACCOUNTS.

       (a) Findings.--The Senate finds:
       (1) Medical savings accounts eliminate bureaucracy and put 
     patients in control of their health care decisions.
       (2) Medical savings accounts extend coverage to the 
     uninsured. According to the Treasury Department, one-third of 
     MSA purchasers previously had no health care coverage.
       (3) The medical savings account demonstration program has 
     been hampered with restrictions that put medical savings out 
     of reach for millions of Americans.
       (b) Sense of the Senate.--It is the sense of the Senate 
     that a patients' bill of rights should remove the 
     restrictions on the private-sector medical savings account 
     demonstration program to make medical savings accounts 
     available to more Americans.

  Mr. CRAIG. Mr. President, I had planned up until an hour ago to offer 
a detailed amendment on medical savings accounts that I think fits 
appropriately into any discussion about patient's rights in this 
country. The first and foremost right is access to health care, 
relatively unfettered access to health care. The problem with that 
under the current scenario on the floor is it would bring about a point 
of order and I do not want this issue to fall based on that.
  Certainly it is appropriate we are here and we are taking the 
necessary and adequate time to debate patient's rights in American 
health care. I am proud of my party. Republicans have a solid record on 
protecting patients and their rights. We have fought for patients' 
rights from the very day we defeated the Clinton health care plan a 
good number of years ago, which was a massive effort to use government 
to take over our health care system, which would have largely let 
bureaucrats decide whether your family would get the medical care they 
need.
  It was a Republican Congress that stood up for patients' rights by 
creating medical savings accounts for the first time. Medical savings 
accounts, in my opinion, are the ultimate in patient protection for 
they throw the lawyers, employers, and bureaucrats out of the examining 
room and leave decisions about your health between you and your doctor.
  What has been most fascinating under the current medical savings 
account scenario in our country is that we have limited them to about 
750,000 policies. Yet, a good many people have come to use them even 
though we have made it relatively restrictive and we have not opened it 
up to the full marketplace.
  What is most fascinating about the use of medical savings accounts is 
the category that all Members want to touch. We hear it spoken of quite 
often. That is the large number in our country of uninsured. Since we 
offered up a few years ago this pilot program, 37 percent of those who 
chose to use it were the uninsured of America. In other words, it 
became one of the most attractive items to them because it offered them 
at a lower cost full access to the health care system.
  It proves something many colleagues do not want proved: That given 
the opportunity, Americans can afford to health coverage if the price 
is right and the strings are not attached and they can, in fact, become 
the directors of their own health care destiny. I think it is 
fascinating when you look at this chart. Under the current scenario, of 
over 100,000 MSA buyers, one-third were previously uninsured.
  With medical savings accounts, you choose your own doctor. Also, if 
you believe you need a specialist, you have direct access to a 
specialist. You don't need an HMO or an insurance company working with 
or telling your doctor what you may or may not do. Of course, the 
debate for the last week has been all about that, all about the right 
of a patient to make the greater determination over his or her destiny 
and to have that one-on-one relationship with the health care provider. 
There is no question that if you are independent in your ability to 
insure or you have worked a relationship with your employer so you are 
independent through a medical savings account, then you can gain direct 
access to an OB/GYN. If your child is ill, you have direct access to a 
family pediatrician. With MSAs there are no gatekeepers; you are the 
gatekeeper. There are no mandatory referrals; you are the one who makes 
the decision, you and your doctor. The only people involved in your 
personal decisions, once again: Your family, you, and the medical 
professional you have chosen or to whom your doctor has referred you. 
That is the phenomenally great independence to which we are arbitrarily 
deciding Americans cannot have free access.
  I hoped to offer a much broader amendment, but I knew it would have 
to face that tough test of dealing with the Senate rules and all of 
that because it would deal with taxes and it would deal with revenue. 
As a result, instead of making the changes in the law that ought to be 
made because even the program I am talking about that has been so 
accepted expires this year and it is the responsibility of this 
Congress to expand it and make it available, here instead we are still 
talking about the rights of lawyers, not the rights of the patient.
  The rights of the patient are optimized if you provide the full 
marketplace access to medical savings accounts. Since we introduced the 
limited pilot program, wonderful things have happened. The very people 
we were trying to reach, the uninsured, are able to afford health 
coverage. And, in our society today, many of the uninsured are the 
children of working men and women who can't afford to add them as an 
extra beneficiary to their health care coverage because of the costs. 
Yet they found they were able to do that when their employer that 
allowed them to have a medical savings account.
  Medical savings accounts combine low-cost insurance, and a tax-
preferred savings account for routine medical expenses. The 
catastrophic insurance policy covers higher cost items beyond what the 
savings account covers.
  That is why I think it is important that this Senate now express its 
will and its desire to continue to support medical savings accounts. 
That is why it appropriately fits inside the broad discussion of a 
Patients' Bill of Rights.
  I do not question any Senator's motive on the floor. Republican and 
Democrat alike want to make sure all Americans have access to health 
care. We want a Patients' Bill of Rights that works. We have had a 
President say very clearly, unless you can provide us with a Patients' 
Bill of Rights that creates stability, that allows the kind of 
flexibility we need to assure that employers can continue to provide 
health care without the risk of being dragged into court because of a 
health care program that they may be a sponsor of, then he will veto 
it.
  But here is a President who also supports maximizing choices in the 
marketplace. How you maximize choices in the marketplace for the 
patient today is to allow open access to a medical savings account 
program that optimizes all the flexibility we have talked about. You 
reach out and bring in the uninsured of America and allow them to 
develop the one-on-one relationship with their doctor that has 
historically been the standard of health care in our country.
  I retain the remainder of my time.
  The PRESIDING OFFICER (Ms. Stabenow). Who yields time?
  Mr. BAUCUS. I yield 5 minutes to the Senator from Arizona.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Madam President, I appreciate the efforts of the Senator 
from Idaho for small businessmen and women, for families who are unable 
to afford health care costs to be able to invest in a medical savings 
account. But I would like to put this issue in the context of this 
entire debate.
  One of the first amendments proposed in this debate was to provide 
tax relief--not a sense of the Senate but an actual amendment to the 
pending legislation to provide tax relief for small businessmen and 
women to get deductibility for their health care plans, at

[[Page 12445]]

that time 100-percent deductibility on their health care plans.
  At that time I said I was willing to support the amendment and I was 
willing to support two additional tax incentives for low-income 
American families so they could afford health care. That offer was 
rejected. That offer was rejected by the opponents of this legislation 
as not being enough. They needed a multitude of tax provisions in this 
bill.
  At that time I said OK, then I will not support them unless we have 
some kind of narrowing--as I said, as many as three. That offer was 
rejected.
  Here we are at 2 o'clock on Friday afternoon, after many days of 
debate, and we are talking about a sense-of-the-Senate resolution on 
medical savings accounts.
  I am sorry. They should have taken advantage of the opportunity that 
I and the sponsors of this legislation would have provided to provide 
legislative--not sense of the Senate --relief for small businessmen and 
women, for allowing families to establish medical savings accounts, and 
perhaps another bill. That offer was rejected.
  At this time I would then have to oppose this sense-of-the-Senate 
resolution. I yield the floor.
  The PRESIDING OFFICER. Who yields time? The Senator from Montana.
  Mr. BAUCUS. Madam President, I yield myself such time as I consume.
  This is a Patients' Bill of Rights bill. This is not a tax bill. This 
is not a Department of Defense bill. This is not a agriculture bill. 
This is not a foreign policy bill. This is a Patients' Bill of Rights 
bill.
  The amendment offered by my friend from Idaho is not a Patients' Bill 
of Rights amendment; it is a tax amendment. We will have ample time 
this year to take up tax legislation. We will take up tax legislation 
at some time, even though we had a huge tax bill already this year. 
When I say ``we,'' I mean the Finance Committee. That is because the 
budget resolution provides $28 billion for health insurance benefits 
for Americans who are now uninsured.
  I guess the committee will report out legislation this year which 
will include expansion of some benefits, perhaps under CHIP, but 
perhaps also some tax provisions. There are many Senators who have good 
ideas to encourage Americans to have more health insurance--credits, 
deductions, and so forth. MSAs is just one way. MSAs, I might say, are 
actually, under the law, reserved for the most wealthy Americans. It is 
a particular kind of savings account which enjoys very lucrative, very 
beneficial status with respect to our tax laws; that is, contributions 
are not deductible, inside buildup is not taxed, withdrawals for 
medical purposes are not taxed, and only withdrawals for nonmedical 
purposes are, but not in the case when a person reaches the age 65. 
Essentially, they can be converted by wealthier people into a 
retirement account beyond a savings account.
  They are just one way of, perhaps, providing health insurance for 
Americans. The main point being this is not a tax bill. The Finance 
Committee will take up health insurance legislation this year as 
provided under the budget resolution. At the time we consider MSAs, we 
will consider other appropriate ways to encourage Americans to have 
more health insurance. That is the appropriate time for this body to 
consider health insurance legislation. That is when the Finance 
Committee can consider all the various ideas and report out a bill to 
the Senate which, in a more orderly way, because it is a tax bill which 
is dealing with tax matters, particularly health insurance, will help 
more Americans.
  I also say to my good friend from Idaho, as referred to by my friend 
from Arizona, it is now 2 o'clock Friday afternoon. We have been on 
this Patients' Bill of Rights bill a long time. It is very good 
legislation. We are going to finally pass a Patients' Bill of Rights, 
after I don't know how many years, tonight. That is my guess.
  We will not pass it tonight--who knows when we will ever get to 
finally pass it--if we start going down this road of adopting sense-of-
the-Senate resolutions.
  This is the first sense of the Senate. We have not had one before. 
This particular resolution says this bill should include expansion of 
medical savings accounts. If we are not going to add savings accounts 
here, we are, in effect, deciding we should not add medical savings 
accounts, a tax bill, on this bill.
  I respectfully suggest to all my colleagues, the proper vote here is 
to vote no because it is, in effect, a tax provision. It is a sense of 
the Senate. We have not done that before. We are about ready to 
conclude passage of this bill and we will take up health insurance, tax 
legislation, at an appropriate time later.
  I reserve the remainder of my time.
  Mr. GRASSLEY. Mr. President, I want to discuss my vote on the Criag 
amendment that it is the sense of the Senate that the Senate act to 
expand access to Medical Savings Accounts.
  I commend Senator Craig for offering this amendment. I support 
expanding access to MSAs. I recently introduced S. 1067, the Medical 
Savings Account Availability Act of 2001, with my colleague from new 
Jersey, Senator Torricelli. My support for MSAs is long standing. 
Senator Torricelli and I introduced in the last Congress a comparable 
bill to expand access to Medical Savings Accounts. I think we will 
improve access to MSAs with the support of Senator Craig and many other 
Senators, particularly on my side, who I know want to see MSAs within 
the reach of everyone.
  As my colleagues know, I have argued during this debate that tax 
material should not be included in this bill. I do not consider this 
amendment a tax amendment because, if adopted, it would not have the 
effect of changing tax law.
  Earlier in this debate, I sought and received agreement from the 
Chairman of the Finance Committee that health related tax matters will 
be considered at a markup of the Finance Committee in the near future. 
I look forward to pursuing this issue at that time.
  The PRESIDING OFFICER. Who yields time?
  Mr. CRAIG. Madam President, I inquire how much time remains on my 
side.
  The PRESIDING OFFICER. The Senator has 6 minutes 20 seconds.
  Mr. CRAIG. I inquire if the Senator has anyone else who would wish to 
speak to it on his side. If not, I will wrap up.
  Mr. BAUCUS. Madam President, I will wait until the Senator concludes 
and then I will make a judgment whether I want to make another 
statement.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. I allocate myself 5 minutes so I would like to conclude 
the debate of my amendment. Let me speak briefly to what the chairman 
of the Finance Committee said.
  First of all, I ask him to read my sense of the Senate. It has 
nothing to do with taxes at this moment. His underlying argument that 
the responsibility for MSAs, when you are making substantive changes in 
current law, is a finance responsibility and a tax provision, is 
correct. My amendment is not a tax provision.
  It is asking the Senate to speak to the importance of doing what the 
Senator from Montana has said he will do this year. That is what my 
amendment says--that medical savings accounts are important. Do they 
belong in a Patients' Bill of Rights? Absolutely they do. If you want 
to optimize the rights of a patient or of a potential patient in 
America's health care system, then you give them full access--not 
limited and restricted access to medical savings accounts.
  Let me correct one other thing that I think is important. As to this 
old bugaboo ``it is just for the rich'' that we heard coming from the 
chairman of the Finance Committee, will he tell me that one-third of 
the 100,000 people who are uninsured and have never had insurance 
before because they couldn't afford it are somehow ``closeted rich'' 
people? I doubt it very much. These are the working poor of America--
not the working wealthy--who found an opportunity to provide health 
care for themselves, their spouses, and their families

[[Page 12446]]

because the Federal Government, through the Congress, opened up a 
limited window of opportunity for them to use a medical savings account 
to their advantage.
  That is what that is all about. The House is looking to provide 
medical savings accounts in their Patients' Bill of Rights. The 
President supports medical savings accounts. It is not an agriculture 
bill. It is not a bill for the Interior Department. It is a bill for 
Americans seeking health care in the system today.
  Why shouldn't we debate that right to have optimum access to the 
market on a Patients' Bill of Rights? Because it doesn't involve a 
lawyer? That is a good reason to debate it, because it doesn't involve 
a lawyer and it doesn't involve a Federal bureaucrat at HCFA, and it 
doesn't involve an HMO or an insurance company. It involves the patient 
who holds that medical savings account and his or her doctor.
  That is what this issue is all about. You darned well bet it is 
important that our Congress express to the American people that we 
should make medical savings accounts increasingly available.
  I am pleased to hear the chairman of the Finance Committee speak 
about addressing that this year because this year it expires. We should 
not allow that to happen.
  I retain the remainder of my time.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. BAUCUS. Madam President, I will make a couple of points.
  If you read it, it makes clear that this is a sense-of-the-Senate tax 
provision. It says sense of the Senate, and the Patients' Bill of 
Rights should remove the restrictions on the private sector medical 
savings account demonstration program to make medical savings accounts 
available to more Americans.
  Medical savings accounts is a tax provision. This says remove 
restrictions to make it more available; to, in effect, change the tax 
law to make it more available.
  It is clearly a sense-of-the-Senate tax bill.
  Second, it has been asserted that it is for the working poor. I have 
a distribution chart furnished by the President which indicates what 
income groups of Americans utilize medical savings accounts. By far, 
the greatest income level to use medical savings accounts is that with 
adjusted gross income--the total gross is a lot more--of between 
$100,000 and $200,000. Those people are hardly the working poor. For 
those in the lowest category--those with adjusted gross incomes of 
under $5,000--you get 111 returns. For those in the earlier category 
that I mentioned--those in the $100,000 to $200,000 adjusted gross 
income--you get 9,400 returns.
  It is not for the working poor. That is not the main point. The main 
point is that this is a sense-of-the-senate tax provision.
  We should not go down this road. We will at the appropriate time 
later this year in the Finance Committee work on a measure to protect 
and provide more health insurance for those who do not have health 
insurance and report that legislation at the appropriate time to the 
floor.
  I yield the remainder of my time. If the Senator from Idaho will 
yield the remainder of his time, I will make a motion with respect to 
this amendment.
  Mr. CRAIG. Madam President, I believe that we have the opportunity to 
express the will of the Senate. The Congress has moved slowly but 
grudgingly toward medical savings accounts and has created flexibility. 
We have a good opportunity to do so this year. Today, we have an 
opportunity to express our will to do that once again. I hope we will 
do so.
  I yield the remainder of my time, and I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  Mr. BAUCUS. Madam President, I am going to move to table.
  The PRESIDING OFFICER. There is a sufficient second.
  The yeas and nays were ordered.
  Mr. BAUCUS. I move to table the Craig 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 assistant legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from New Mexico (Mr. 
Domenici) and the Senator from Alaska (Mr. Murkowski) are necessarily 
absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 53, nays 45, as follows:

                      [Rollcall Vote No. 216 Leg.]

                                YEAS--53

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

                                NAYS--45

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

                             NOT VOTING--2

     Domenici
     Murkowski
       
  The motion was agreed to.
  Mr. REID. I move to reconsider the vote and to lay that motion on the 
table.
  The motion to lay on the table was agreed to.
  Mr. REID. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. SANTORUM. 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. 841, As Modified

  Mr. SANTORUM. Madam President, I call up my amendment No. 841, with 
the modification I send to the desk.
  The PRESIDING OFFICER. Without objection, the amendment is so 
modified.
  The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Pennsylvania [Mr. Santorum] proposes an 
     amendment numbered 841, as modified.

  Mr. SANTORUM. 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 dedicate 75 percent of any awards of civil monetary 
  penalties allowed under this Act to a Federal trust fund to finance 
     refundable tax credits for uninsured individuals and families)

       At the end, add the following:

     SEC. __. REFUNDABLE TAX CREDITS FOR THE UNINSURED FINANCED 
                   WITH CERTAIN CIVIL MONETARY PENALTIES.

       (a) Payment of Certain Penalties to Secretary of the 
     Treasury.--
       (1) In general.--Notwithstanding any other provision of 
     law, 75 percent of any civil monetary penalty in any 
     proceeding allowed under any provision of, or amendment made 
     by, this Act may only be awarded to the Secretary of the 
     Treasury.
       (2) Civil monetary penalty.--For purposes of this section, 
     the term ``civil monetary penalty'' means damages awarded for 
     the purpose of punishment or deterrence, and not solely for 
     compensatory purposes. Such term includes exemplary and 
     punitive damages or any similar damages which function as 
     civil monetary penalties. Such term does not include either 
     economic or non-economic losses. Such term does not include 
     the portion of any award of damages that is not payable to a 
     party or the attorney for a party pursuant to applicable 
     State law.

[[Page 12447]]

       (b) Establishment of Trust Fund.--

     ``SEC. 9511. HEALTH INSURANCE REFUNDABLE CREDITS TRUST FUND.

       ``(a) Creation of Trust Fund.--There is hereby established 
     in the Treasury of the United States a trust fund to be known 
     as the `Health Insurance Refundable Credits Trust Fund', 
     consisting of such amounts as may be--
       ``(1) appropriated to such Trust Fund as provided in this 
     section, or
       ``(2) credited to such Trust Fund.
       ``(b) Transfer to Trust Fund of Amounts Equivalent to 
     Certain Awards.--There are hereby appropriated to the Health 
     Insurance Refundable Credits Trust Fund amounts equivalent to 
     the awards received by the Secretary of the Treasury under 
     section __(a) of the Bipartisan Patient Protection Act.
       ``(c) Expenditures From Trust Fund.--Amounts in the Health 
     Insurance Refundable Credits Trust Fund shall be available to 
     fund the appropriations under paragraph (2) of section 
     1324(b) of title 31, United States Code, with respect to 
     assistance for uninsured individuals and families with the 
     purchase of health insurance under this title.''.
       (2) Effective date.--The amendments made by this subsection 
     shall take effect on the date of the enactment of this Act.

  Mr. SANTORUM. Madam President, one of the things I have repeatedly 
stated when I have spoken on this bill is that in S. 1052 there isn't 
any provision that provides for access to insurance. There is nothing 
that increases the number of insured. There are pages and pages and 
pages in this legislation that will decrease the number of insured and 
increase the rate of insurance in this country. If you would take a 
public poll, or take one in this Chamber, and were to ask people what 
is the biggest problem in the area of health care in this country, I 
think the overwhelming response would be the lack of insurance for 43 
million Americans.
  The bottom line is that we should be discussing how we are going to 
solve the biggest problem in the health care system, and that is 
providing some assistance for those who don't have employer-provided 
health insurance. We do not do that in this bill.
  In fact, it has been stated over and over again that this bill will 
add to the ranks of the uninsured. That is not a positive step forward. 
We can talk about the positive things--and there are positive things in 
this legislation, which I have been historically in favor of but in my 
mind they are counterbalanced--in fact, overwhelmed--by the increase in 
the uninsured that will happen as a result of several provisions of 
this act.
  One of the things I am going to do with this amendment is I hope to 
take one of those negative provisions--that being unlimited punitive 
damages in State court and a $5 million cap on punitive damages in 
Federal courts--and channel some of that cost that is going to be borne 
by the insurance system and employers, and put that back into the 
system in the form of a trust fund for those who do not have employer-
provided health insurance. So this is an amendment that will take 75 
percent of all punitive damage awards that occur as a result of the 
causes of action provided for in this bill and create a trust fund 
which will be used to finance those who do not have employer-provided 
health insurance--in other words, the uninsured.
  I think that is a way to ameliorate some of the damage caused by this 
legislation. The cost pulled out of the health care system through 
litigation, and through punitive damages in particular, will drive up 
the cost of health insurance. That money will go to lawyers, to a 
select few--principally the lawyers, but to a select few clients, 
patients, such as the gentleman from California who a couple of weeks 
ago hit the ``lottery,'' with a $3 billion punitive damage verdict.
  If that kind of award occurs within the health care system, imagine 
the impact on all of the insured in this country. Imagine the cost that 
is going to have to be borne by the millions of people who have 
insurance with a $3 billion punitive damage award. How much are your 
insurance rates going to go up if an award such as that is given?
  The least we can do is take the potential of a back-breaker award, or 
a series of back-breaker punitive damage awards, and put that back into 
the system in a way that helps those who do not have insurance.
  So what I am suggesting is really a way to avoid some of the 
criticism that has been leveled against this bill, that this is full of 
litigation and costs, without any benefit coming back into the system. 
Remember, what we are concerned about here--yes, we are concerned about 
individual cases, obviously. But we also have to be concerned about the 
greater picture, which is making sure the public generally has 
insurance and has quality health insurance.
  As you can see from this chart, there is a real difference between 
the kind of health care people get when they are insured versus when 
they are not insured. This says ``nonelderly adults with barriers to 
care by insurance status.'' In cases where they had procedures needed, 
but did not get the care for a serious problem, only 3 percent of the 
people who had insurance ended up in that category. So if they have 
insurance, if they have a serious problem and a prescribed solution, 
they basically get the care. But if they are not insured, 20 percent--
almost seven times the number of the uninsured--do not get the care 
they need. This says ``skipped recommended test or treatment.'' If they 
are insured, 13 percent of the people skip those tests. If you are not 
insured, almost 40 percent skip that.
  Did not fill a prescription: 12 percent if you are insured; 30 
percent if you are not insured.
  Had problems getting mental health care: 4 percent versus 13 percent.
  If we are concerned about quality care being provided to everyone, 
then we have to address the issue of the uninsured. This bill just 
deals with those who have insurance. I remind people, this bill only 
deals with people who have insurance. The biggest problem with patient 
care is those who do not have insurance, and that is displayed on this 
chart. We all know that is the fact from our own lives, knowing people 
who do and do not have insurance.
  We cannot walk out of here with our arms raised high saying we have a 
great victory for patients when we accomplish two things: No. 1, we 
provide a little bit of protection--and that is what we do, provide a 
little bit of protection--for those who have insurance but cause 
millions of people who have insurance to lose their insurance and end 
up with vastly inferior care. We provide a little bit of benefit for a 
lot, but we harm a lot of people profoundly in the process.
  Again, this is a pretty minimal amendment. We allow for 25 percent of 
the punitive damages to stay with the lawyer--to stay with the client 
so they get a little piece of this pie. The lawyer gets paid, although 
if they have a big punitive damage award, they probably get a big 
settlement in a lot of other areas, too. In this $3 billion award, they 
got $5.5 million in compensatory damages. Nobody is going poor, from 
the lawyer's perspective, on filing this case.
  When it comes to potential enormous awards for punitive damages, we 
need to plow some of this money back into the system. I am hopeful the 
Senate will take a step back and say this is one of the reasonable 
suggestions that can come about if we are willing to take seriously 
this matter of providing quality health care, not just for those who 
have insurance but plowing that money back for those who do not.
  Madam President, I reserve the remainder of my time.
  The PRESIDING OFFICER. Who yields time? The Senator from North 
Carolina.
  Mr. EDWARDS. Madam President, I will first talk about what exactly 
the Senator from Pennsylvania is talking about when he talks about 
punitive damages. Punitive damages can only be awarded in a case where, 
in this context, an HMO or a health insurance company has engaged in 
virtual criminal conduct. They have to have acted maliciously, 
egregiously, outrageously for there to be a punitive damages award.
  Now let's talk about it in the context of a real case. Let's suppose 
some young child needs treatment or a test and the insurance company 
executives meet and say: We are not paying for that test, and we do not 
care what the effect is. If something bad happens, so

[[Page 12448]]

be it. We will live with that, but we are not paying for it. Even 
though it is covered by our policy, even though we know we are supposed 
to pay it, we refuse to pay it, period.
  Let's suppose because that child fails to get some treatment or test 
that they should have gotten, the child was paralyzed for life. Then a 
group of Americans sitting on a jury listens to the case, as they do in 
criminal cases every day in this country, and decides the HMO has 
engaged in criminal conduct and awards punitive damages on that basis.
  First of all, I say to my friend from Pennsylvania, I doubt if the 
parents of that child crippled for life believe they have hit the 
lottery. That child's life has been destroyed because of intentional 
criminal conduct on behalf of a defendant, in this case the HMO and the 
health insurance company.
  It is not abstract. This is conduct that was specifically aimed at 
that child. It is not abstract to the world. This is something that was 
aimed specifically at the child who is sitting in that courtroom, and 
the jury found--in order for this to be possible, the court requires 
that the jury find that the HMO has engaged in outrageous, egregious 
conduct.
  This is what this amendment does: It says we are going to take away 
75 percent of that child's punitive damages award. That is what it 
says. We are going to impose a 75-percent tax on that child.
  That is a real case. This is not an abstract academic exercise. This 
is reality. I say to my colleague, if we are going to start taxing 
people around this country 75 percent of their money--that would be 
that child's money in this case. It does not belong to the Senator from 
Pennsylvania; it does not belong to me and, by the way, it does not 
belong to the Government unless this amendment is adopted. It belongs 
to that child. If we are going to start taking 75 percent of people's 
money, let's not stop at that child. Why don't we consider taking 75 
percent of the $400 million that the CEO of one of these HMOs 
apparently made last year? That will help. We can go around the country 
and start picking all kinds of groups of people and put that money in a 
pot and do what we choose with it.
  This is not a serious response to a serious problem. My friend from 
Pennsylvania and I agree that the uninsured are a very serious problem 
in this country. It is an issue we need to address, and we need to 
address it in a serious way. None of us suggest that what we are doing 
with this Patient Protection Act will solve that problem. It will not. 
We have work left to do. There is no doubt about that. But we need to 
do that work in a serious, thoughtful, comprehensive way that will deal 
with the kids and the elderly in this country who do not have access to 
health insurance and who, as a result, do not have access to quality 
health care. The way to accomplish that is not by imposing a 75-percent 
tax on people, families who have been hurt by HMOs.
  Mrs. BOXER. I ask the Senator to yield me 5 minutes.
  The PRESIDING OFFICER. Who yields time?
  Mr. EDWARDS. I yield 5 minutes to the Senator from California.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, I thank Senator Edwards for using a 
hypothetical example of why this is a very cruel amendment which I hope 
will be voted down overwhelmingly. But I have a real case I can talk 
about in a moment.
  This morning--it seemed like a very long time ago, and it was--I 
voted for an amendment by Senator Santorum to protect infants, to say 
that infants who are born should have the protections of this bill. I 
said to him: I certainly agree that infants, children, and teenagers 
all the way up to the elderly, the most frail, should be covered by 
this bill.
  What does my friend now suggest? A 75-percent tax on pain and 
suffering to go to the Federal Government for a Government program. 
This is unbelievable to me. A 75-percent tax on families who may be 
suffering because a child is permanently disabled, made blind, 
paralyzed, forever in a wheelchair, and then having to pay 75 percent 
of a punitive damage award that could go to help ease the pain of that 
child, that could hire people to take care of that child.
  This is a cruel amendment. My friend always says he is for the 
children. This is not for the children. This is not for the families. 
This is not for the patients. This amendment will take the funds away 
from those families who are in desperate need of money to build a life 
for someone deeply harmed by an HMO that had no conscience.
  As my friend says, punitive damages are not gotten lightly. It has to 
be proven that you were willful, that you were vicious in your intent. 
And then to say to that family: No, you have to give up 75 percent of 
that fund that you won because you were a victim. It is a victim's tax. 
It is a victim's tax that goes to a Federal fund, to a Government 
program.
  I always thought my friends on the other side trusted local people, a 
jury of our peers. They say: A local judge, someone from the community 
who can look at that family and understand what it means when they have 
a child permanently disabled.
  A family with a little child in a wheelchair was coming to my office 
several years ago. The child was hooked up to every conceivable tube 
imaginable. The child was blind. There were caps on those punitive 
damages. And there was not enough money to hire the people that family 
needed to give their child the most decent life possible.
  Now on top of this, as I understand this amendment, even in cases 
where there is a cap on punitive damages, this amendment still takes 
away 75 percent of the punitive damage. That is a slap at that victim, 
that child, the parents, the very children my friend said he cared 
about just 7 hours ago. This is an amendment that says the Federal 
Government is more important than your family. The Federal Government 
will reach into a local jury; the Federal Government will take 75 
percent of your award, of your punitive damages award, and put it into 
a Government fund.
  This is a terrible amendment. I hope it will be defeated.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. Madam President, I make one clarification: There are 
eight States that currently do this. One of them is the State of the 
Presiding Officer. The State of Georgia takes 75 percent of punitive 
damages, less attorney fees, and puts them in the State treasury. That 
is the State law in at least eight States. Georgia was, in fact, the 
model we used for this legislation.
  By the way, those States are exempt from this provision so we don't 
take both the State and the Federal. If there is a State law, those are 
excluded under this act. This is hardly punitive. These are punitive 
damages, not compensatory damages. These are not pain and suffering.
  I yield 2 minutes to the Senator from Louisiana.
  Mr. BREAUX. I was not going to say anything, but the arguments have 
nothing to do with the substance of the amendment. Everybody ought to 
realize punitive damages have nothing to do with awarding a person who 
has been injured. A person who has been injured is compensated for 
economic losses, and there is no cap on economic losses. They are 
compensated by pain and suffering. There are no caps on pain and 
suffering. Punitive damages have one purpose. That is to punish the 
person who has caused the injury. That is the only purpose for punitive 
damages, to say to a company or an HMO, your conduct has been so 
outrageous, so egregious, you will be punished. That has nothing to do 
with the compensation for the injured plaintiff or child. They have 
already been taken care of.
  The concept of taking punitive damages and saying, we will use those 
damages to help people who do not have insurance, is a novel idea. 
Other States have done it. It is a good approach. I think we should 
support it because it

[[Page 12449]]

has nothing to do with taking away anything to which an injured person 
is entitled. They have already been compensated in this bill with 
unlimited, uncapped economic and noneconomic pain and suffering 
damages. The arguments that I have heard have no merit considering the 
nature of the amendment.
  Mr. SANTORUM. I make clear a couple of issues. Eight States have 
already passed legislation that redirects punitive damages to specific 
purposes. I mentioned Georgia is one; Florida allocates money into the 
medical assistance trust fund; Illinois, into the department of 
rehabilitative services; Iowa puts money into the civil reparations 
trust fund; Kansas puts money directly in the State treasury; Missouri, 
to the tort victims compensation fund; Oregon, to the criminal injury 
compensation account; Utah, anything in excess of $20,000 in punitive 
damages goes to the State treasury.
  This is not a brand new concept but a concept States have adopted 
because they understand, as the State of Georgia, that these are 
punitive damages, not compensatory damages. These are to punish people. 
We are saying, if you punish a guy who does a bad thing, who is a 
criminal, the crime is against everyone. Those who are not in the 
courtroom should be benefiting from this. That is the uninsured.
  What will happen if those punitive damages are awarded to the 
individual or to the lawyer--because they get a big chunk? There will 
be more uninsured because the cost of health care will go up. This is 
punishing people who have insurance with higher premiums and higher 
rates. As the Senator from Louisiana said, we are already compensating 
the victim. They are getting unlimited compensation. There are no 
limits in State or Federal court for any compensation that is due this 
person. Who we are punishing here with punitive damages are the people 
who are going to lose their insurance because of high rates of 
insurance because of these punitive damages, and we will punish people 
who are going to keep their insurance and have to pay a lot more.
  This is a modest amendment that tries to lessen the heavy hammer of 
cost that this bill puts in place. I am hopeful we get bipartisan 
support for it.
  I reserve the remainder of my time.
  Mr. EDWARDS. I will respond briefly to the Senator from Pennsylvania 
and the Senator from Louisiana.
  First, I suggest to the Senator from Louisiana, when an HMO does 
something egregious, criminal, to a child, and in my example that child 
is crippled for life, that crime is not against all of us; it is 
against that child. It is that child who is in court. It is that child 
to whom the jury has awarded these damages. They didn't award it to us 
or the people in the gallery; they award it to that child. When we go 
in and take 75 percent of that child's money, it is a tax any way you 
cut it.
  We can talk around this and talk about it for the next 15 minutes or 
15 hours. That money does not belong to us. It belongs to that child 
and that crime was committed against that child and that is whose money 
we are taking. It is a tax.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I yield myself 4\1/2\ minutes.
  I have listened to my friend from Pennsylvania talk about the 
uninsured. But where was the Senator from Pennsylvania when President 
Bush asked for $80 billion to develop a program to cover the uninsured 
in this country, and they reported back $1.6 trillion and wiped that 
program out? We could have had a real program for the uninsured, but I 
didn't hear the Senator from Pennsylvania talk about that.
  I didn't hear the Senator from Pennsylvania talk about when we were 
trying to develop the CHIP program; let's get behind it and fight for 
that program and take on the tobacco companies. They are the ones that 
are basically funding the CHIP program now, which has been extended to 
cover 6 million children in this country. I didn't hear the Senator 
from Pennsylvania talking about that.
  Where was he last year when we had the family care, $60 billion to 
cover 8 million Americans, the parents of the CHIP programs? The 
Senator from Pennsylvania opposed that.
  So with all respect, to offer an amendment to try to help the 
children of this country with their health insurance has no relevancy 
in terms of the voracity of the commitment of that side of the aisle in 
terms of trying to do something for the children of this country.
  The record has not been there. To try to offer some amendment this 
afternoon and cry crocodile tears all over the floor about what we are 
doing for children when they basically have refused to address this 
issue in a serious way is something the American people see through.
  We understand what is happening, even in this bill where you could 
have an important impact in terms of children who are covered. They 
have been supporting the attempts to water it down in terms of the 
HMOs.
  That has been the record: Opposition to this HMO--the Patients' Bill 
of Rights, to guarantee the children who do have health insurance are 
going to get protections. And they have been fighting it every step of 
the way. Then they say: Oh, well, we are really interested in children 
because we are going to give them this refundable credit on it.
  It doesn't carry any weight. The American people can see through 
this. Let's get about the business of passing a real Patients' Bill of 
Rights and then let's go out and try to pass a real health insurance 
bill that will do something about the remainder of the children who 
need the care and also the parents of those children who need it in 
long-term family care. Let's do something to look out after our fellow 
citizens.
  I withhold the remainder of my time.
  Mr. SANTORUM. I just want to remind the Senator from Massachusetts 
that the Smith-Wyden amendment that provided $28 billion for those who 
do not have insurance passed and that is now law. It was in the budget. 
So I have been a supporter of money and a substantial amount of money 
for those who do not have insurance.
  I have sponsored a piece of legislation, with Senator Torricelli, 
that is called Fair Care, which provides tax credits for the uninsured 
at the cost of around $20 billion a year.
  So I suggest to the Senator from Massachusetts----
  Mr. KENNEDY. Will the Senator yield on my time?
  Mr. SANTORUM. One second--I just suggest to the Senator from 
Massachusetts, to impugn me personally and suggest I am disingenuous by 
proposing that we provide some money in punitive damages, not damages 
to compensate for injury but damages to punish someone who did a 
wrong--why should that go to an individual as opposed to society, which 
was wronged by that activity, as all criminal activity is. It is a 
crime against society. We do not compensate, as you know, when we 
prosecute someone criminally. The individual does not get benefit from 
that punishment.
  So punitive damages are there to punish, not to compensate. I know 
the Senator from North Carolina knows that. That is why they are called 
punitive--punish; compensatory--compensate. There is a difference. That 
language is not there for window dressing; it is there for substantive 
difference.
  What I am suggesting is that these punitive--punishment--damages 
should not further punish people who have insurance because they are 
the ones ultimately to be punished. Several States have recognized this 
and have plowed that money back into the system to help those who would 
otherwise be punished by this money coming out of the system of health 
insurance.
  So I just suggest that my commitment here is sincere and my object 
here I think is worthy of support.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from North Carolina.
  Mr. EDWARDS. First I say to my colleague, we can keep talking about 
this. The truth of the matter is the criminal

[[Page 12450]]

conduct we are describing here is committed against a particular 
patient; in my example, against that particular child. We are taking 75 
percent of that child's money, any way you cut it. It is a tax. The 
Government is taking their money, and there is no reason to do that. It 
makes no sense whatsoever.
  I yield 5 minutes to the Senator from Illinois.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. I thank the Senator from North Carolina for yielding 5 
minutes.
  Let me say I am one of the few Members on the floor of the Senate who 
practiced law before he was elected to Congress, who was in a 
courtroom, involved in a case which had a punitive damage verdict. That 
is very rare in American law. It happened to me. I was on the defense 
side. I was defending a railroad in a lawsuit brought by the survivors 
of an elderly man who was killed at a railroad crossing in November of 
1970 near Springfield, IL.
  There was a row of cars, train cars, parked near this crossing. This 
elderly man, late at night, crept up on the crossing to see if he could 
get across. His car stalled in the crossing. He tried to get out, 
couldn't, and the train came through and killed him.
  When the jury in Illinois sat down and looked at it, they said if you 
measure the value of an elderly man's life, there is not a lot of 
compensation. But when they looked at the railroad I was defending and 
found out we had done the same thing time and time and time again, they 
decided this railroad needed to receive a message. So they imposed a 
punitive damage verdict of over $600,000 on the railroad I represented, 
to send a message to this railroad to stop parking these train cars so 
close to a crossing that people could get injured and killed. That was 
a punitive damage verdict in a relatively small town in Illinois.
  The Senator from Pennsylvania now wants us to say that three-fourths 
of the verdicts just like that should be taxed and taken by the Federal 
Government. He does not believe the family of the person who was killed 
at the crossing should get the money. He thinks the Federal Government 
should take the money.
  He has some good purposes for the money to be spent. I don't question 
that. But this is a rather substantial tax which he said we should take 
to deal with the uninsured in America. Why is it the Senator from 
Pennsylvania did not suggest we tax the profits and salaries of the 
HMOs and the health insurance executives? According to Senator 
Kennedy's statement the other day, one of these HMO executives, in 1 
year, made $54 million in salary and over $300 million in stock 
options.
  I do not hear the Senator from Pennsylvania suggesting we tax that to 
pay for the health insurance needs of America. No, let's take it away 
from the families of those who were killed at railroad crossings. Let's 
take it away from the families of children who were maimed, with 
permanent injuries they are going to face for a lifetime. He would not 
dare reach into the pockets of the executives of these health insurance 
companies and tax them.
  Come to think of it, just 6 weeks ago we gave them a tax break here, 
didn't we?--a $1.6 trillion tax break for those executives. But a new 
tax on the family of those who come to court looking for compensation 
for real injuries and death in their own family?
  We should reject this amendment. We know what it is all about. We are 
this close to passing a Patients' Bill of Rights with two fundamental 
principles, principles that say: First, doctors make medical decisions, 
not health insurance companies in America; and, second, when the health 
insurance companies do something wrong, they will be held accountable 
as every other business in America.
  There are those on the other side of the aisle who hate those 
concepts just as the devil hates holy water. But I will tell you, 
families across America know they are sensible, sound values and 
principles. All of this fog and all this smokescreen about taxing 
punitive damages for the good of America--why aren't you taxing the 
executives' salaries at the health insurance companies who are ripping 
off people across America? Instead, you are passing tax breaks for 
those very same people.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, I will be happy to work with the Senator 
from Illinois to tax HMO executives and lawyers who get big awards out 
of the health care system equally. If you would like to propose an 
amendment, I will work with you so all lawyers and all health 
executives who profit from the health care system will have that money 
plowed back in. I did not hear that. I don't think I heard that. I 
think I just heard one side of that argument.
  I will be happy to yield a minute to the Senator from Texas.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. GRAMM. Listening to all this screaming and hollering, obviously 
somebody has been stuck by this amendment. What does this amendment do? 
The bill before us, under the best set of circumstances, is going to 
cost 1.2 million people in America their health insurance by driving up 
the cost of health care. And one of the primary factors driving up that 
cost is litigation.
  What the Senator from Pennsylvania has proposed is to take the part 
of these massive settlements that has nothing to do with compensating 
the person who has been injured--it has to do with punishing reckless 
and irresponsible behavior--and using that to help buy health insurance 
for the very people who will lose their health insurance as a result of 
all of these lawsuits.
  Are we concerned about people without health insurance or are we 
concerned about plaintiffs' lawyers? It seems to me I hear more 
screaming about plaintiffs' lawyers than I do health insurance.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. SANTORUM. I yield a minute to the Senator from Alabama.
  Mr. SESSIONS. Mr. President, I would like to agree with the Senator 
from Texas. Essentially, with these increased damages from punitive 
damages, oddly enough, the way insurance works in America, the premium 
payers are going to pay more. The more big verdicts that are rendered, 
the more premium payers will pay, raising rates for innocent people who 
had nothing to do with the misconduct that resulted in the punitive 
damages, resulting in higher costs so more people economically will 
drop off the insurance rolls.
  We have a real problem with the uninsured in America. It seems to me 
this is a solution that is very creative. It is a solution that has 
been talked about by legal scholars for some time--what to do with 
punitive damages. Why, the part of it you pay for pain and suffering, 
you pay for contract laws--the victim gets that. But what about the 
money that is to punish the company? Where should it go?
  I suggest the Senator is correct; it go to the uninsured and help 
people be insured.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SANTORUM. Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. Two and one-half minutes.
  Mr. EDWARDS. Mr. President, I yield 1 minute to the Senator from 
Connecticut.
  Mr. DODD. Mr. President, I thank my colleague for yielding. I see my 
good friend from Texas. He and I have worked over the years on 
litigation matters and have authored litigation reform bills and a 
variety of other measures to reform the legal system.
  I think it is important to remember that we have had great debates 
over the years about victims' rights and how important it is that 
victims be remembered when crimes are committed.
  It seems to me that on this particular proposal and in this case when 
a person is subject to criminal conduct--that is what this amounts to--
they have been victimized. This is not just compensatory damage for a 
mistake that is made. If you have been a victim of criminal conduct and 
are going to be deprived of the award that a jury provides you, that is 
fundamentally wrong. It ought to be defeated on just that point.

[[Page 12451]]

  I have listened to and have engaged in debates on victims' rights. 
Victims are sick and tired when criminal behavior is committed and they 
are not considered when the matters have come before the bar of 
justice. When an individual, a child, or an adult is found to be 
injured as a result of criminal conduct, that is what punitive damages 
are. I think they deserve to receive that award.
  Mr. EDWARDS. Mr. President, the Senator from Connecticut is exactly 
right. When we have a victim, such as a child who has been injured by 
the criminal conduct of an HMO, it is fundamentally wrong to take 75 
percent of that child's money. And that is to whom it belongs. No 
matter what they say, and no matter how long we talk about it, it 
belongs to that child. To take 75 percent of that child's money is 
wrong, and we should vote against this amendment.
  I yield the remainder of my time.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, I yield to the Senator from Tennessee.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. THOMPSON. Mr. President, I have been listening to this debate, 
and I think some good points have been made on both sides. But is the 
standard for recovery of punitive damages in this case criminal 
conduct, or wanton misconduct, or intentional infliction of distress? I 
would be surprised if the standard for punitive damages is criminal 
conduct.
  Is that the case?
  Mr. SANTORUM. No. If it takes a long time to answer, I am not going 
to yield the rest of my time to define that answer.
  Mr. EDWARDS. If the Senator will yield time to me, I will be happy to 
answer that question. I can't answer it yes or no.
  The answer is reckless, intentional, outrageous conduct.
  Mr. SANTORUM. Which is not criminal.
  Mr. EDWARDS. Of course, it is criminal conduct.
  Mr. THOMPSON. No, no, no. Reclaiming my time, let's not gild the 
lily. I think you have some good points. Let's not try to convince 
people that wanton misconduct and willful misconduct is the same as 
criminal misconduct. It is not.
  Mr. SANTORUM. Mr. President, let me reclaim my time. It is quickly 
running out.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. EDWARDS. Will the Senator yield for a response to that question?
  Mr. SANTORUM. Mr. President, I ask unanimous consent for an 
additional minute to finish this colloquy so it doesn't impinge on my 
time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. EDWARDS. The language of the legislation is that reckless, 
intentional conduct is criminal conduct--all over America.
  Mr. THOMPSON. No. It isn't.
  Mr. EDWARDS. I respectfully disagree. Somebody who engages in 
reckless conduct in the operation of an automobile has engaged in 
criminal conduct. Somebody who engages in reckless conduct that causes 
the death of another person has engaged in criminal conduct. I 
respectfully disagree with the Senator.
  Mr. THOMPSON. If I could respond, conduct that is subject to civil 
litigation versus conduct that is subject to criminal litigation, the 
conduct that the Senator described may, in fact, turn out to be also in 
addition to having civil exposure having criminal exposure, or it may 
not. But the conduct very well may be reckless, or even intentional, 
and constitutes conduct that is subject to punitive damages which can 
still not be criminal.
  My only point is that it is not the same. It is not the same. The 
same conduct can in some cases be both, but in the civil context if----
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. THOMPSON. All right.
  The PRESIDING OFFICER. The Senator from Pennsylvania has 1 minute.
  Mr. SANTORUM. Mr. President, I reiterate that this amendment is about 
taking money. The concern of this bill is that excessive costs will 
drive up the rates for insurance. We are taking some of this excessive 
cost that is built into this bill and plowing it back into the system 
to make sure that we don't have more uninsured if we don't take care of 
it.
  I wish to make one additional point. Back in 1992, the House sponsor 
of the McCain-Kennedy bill, John Dingell, proposed using 50 percent of 
punitive damage awards to help compensate people--in this case, to 
prevent medical injuries. This is not a punitive damage measure. This 
is a measure that understands that punitive damages should go to 
benefit those in society who could be hurt by their increased cost of 
insurance. That is what this amendment does.
  I hope we can get some bipartisan support for it.
  I ask for the yeas and nays.
  The PRESIDING OFFICER. All time has expired.
  Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, I move to table and 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.
  Mr. REID. I announce that the Senator from Arkansas (Mrs. Lincoln) is 
necessarily absent.
  I further announce that the Senator from Hawaii (Mr. Inouye) is 
absent on official business.
  I further announce that, if present and voting, the Senator from 
Hawaii (Mr. Inouye) would vote ``aye.''
  Mr. NICKLES. I announce that the Senator from New Mexico (Mr. 
Domenici) and the Senator from Alaska (Mr. Murkowski) are necessarily 
absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 50, nays 46, as follows:

                      [Rollcall Vote No. 217 Leg.]

                                YEAS--50

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

                                NAYS--46

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

                             NOT VOTING--4

     Domenici
     Inouye
     Lincoln
     Murkowski
  The motion was agreed to.
  Mr. DASCHLE. Mr. President, the distinguished Senator from New 
Hampshire has been working with colleagues on his side of the aisle to 
come up with a finite list. We have an amendment to be offered by 
Senator Carper and an amendment to be offered by Senator Kennedy. Those 
are the only two amendments on our side. I yield the floor for purposes 
of describing the list on the Republican side.
  Mr. GREGG. Mr. President, the list on our side includes the following 
amendments. If there is somebody else who has an amendment and I have 
not spoken to them, raise your hand.
  The amendments are: Senator Craig, long-term care; Senator Craig, 
nuclear medicine; Senator Kyl, alternative insurance; Senator Santorum, 
uninsured; Senator Bond, punitive damages; Senator Frist, liability. 
There are pending

[[Page 12452]]

in the order we talked about, Senator Warner; Senator Ensign on 
genetics, and I understand his pro bono amendment is being agreed to; 
and Senator Thompson, which I understand also has been agreed to.
  Mr. THOMPSON. No.
  Mr. GREGG. It has not. And then Senator Frist has a substitute.



  Is there anybody else who has an amendment?
  That appears to be our list.
  Mr. DASCHLE. Mr. President, I ask unanimous consent that be deemed as 
the finite list of amendments to be offered to this bill.
  Mr. CRAIG. Reserving the right to object.
  Mr. DASCHLE. Mr. President, is there an objection?
  Mr. NICKLES. Reserving the right to object.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. NICKLES. I just tell the majority leader, we have not had a 
chance to run that by our colleagues. We have been shopping amendments, 
and the Senator from New Hampshire is to be congratulated that he has 
reduced the number of amendments substantially. We will need a few 
minutes at least to run this by the rest of our colleagues to make sure 
they know that if they have additional amendments to be considered, 
they need to get them on our list.
  If the majority leader will please withhold the request, we will shop 
it around.
  Mr. DASCHLE. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BYRD. 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. BYRD. Mr. President, while Senators are working out their 
amendments, I think there ought to be an Independence Day speech. I 
assume we are going home for the Fourth of July. So if there is no 
objection, I have a speech in hand. (Laughter.)
  Mr. McCAIN. Reserving the right to object. (Laughter.)
  In admiration of the Senator's tie, how long is the speech?
  Mr. BYRD. Well, now, in the face of that extraordinary compliment, I 
would say it is just half as long as it would have been otherwise. 
(Laughter.)
  Mr. McCAIN. No objection.
  The PRESIDING OFFICER. The Senator from West Virginia is recognized.

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