[Congressional Record Volume 145, Number 100 (Thursday, July 15, 1999)]
[Pages S8535-S8624]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

             PATIENTS' BILL OF RIGHTS ACT OF 1999--Resumed

  The PRESIDING OFFICER. The clerk will report the pending bill.
  The assistant legislative clerk read as follows:

       A bill (S. 1344) to amend the Public Health Service Act, 
     the Employee Retirement Income Security Act of 1974, and the 
     Internal Revenue Code of 1986 to protect consumers in managed 
     care plans and other health coverage.


       Daschle amendment No. 1232, in the nature of a substitute.
       Collins amendment No. 1243 (to the language proposed to be 
     stricken by amendment No. 1232), to expand deductibility of 
     long-term care to individuals; expand direct access to 
     obstetric and gynecological care; provide timely access to 
     specialists; and expand patient access to emergency medical 

  The PRESIDING OFFICER. Under the previous order, the Senator from 
Oklahoma is recognized.
  Mr. NICKLES. Mr. President, I ask the Senator from New Hampshire to 
manage this portion of the bill.
  The PRESIDING OFFICER. The Senator from New Hampshire, Mr. Gregg, is 

                Amendment No. 1250 to Amendment No. 1243

 (Purpose: To protect patients and accelerate their treatment and care)

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

       The Senator from New Hampshire [Mr. Gregg] proposes an 
     amendment numbered 1250 to amendment No. 1243.

  Mr. GREGG. 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:

       At the end of the amendment add the following:

                   AND CARE.

       (a) Findings.--The Senate makes the following findings with 
     respect to the expansion of medical malpractice liability 
     lawsuits in Senate bill 6 (106th Congress):
       (1) The expansion of liability in S. 6 (106th Congress) 
     would not benefit patients and will not improve health care 
       (2) Expanding the scope of medical malpractice liability to 
     health plans and employers will force higher costs on 
     American families and their employers as a result of 
     increased litigation, attorneys' fees, administrative costs, 
     the costs of defensive coverage determinations, liability 
     insurance premium increases, and unlimited jury verdicts.
       (3) Legal liability for health plans and employers is the 
     largest expansion of medical malpractice in history and the 
     most expensive provision of S. 6 (106th Congress), and would 
     increase costs ``on average, about 1.4 percent of the 
     premiums of all employer-sponsored plans,'' according to the 
     Congressional Budget Office.
       (4) The expansion of medical malpractice lawsuits would 
     force employers to drop health coverage altogether, rather 
     than take the risk of jeopardizing the solvency of their 
     companies over lawsuits involving health claims.
       (5) Seven out of 10 employers in the United States have 
     less than 10 employees, and only 26 percent of employees in 
     these small businesses have health insurance. Such businesses 
     already struggle to provide this coverage, and would be 
     devastated by one lawsuit, and thus, would be discouraged 
     from offering health insurance altogether.
       (6) According to a Chamber of Commerce survey in July of 
     1998, 57 percent of small employers would be likely to drop 
     coverage if exposed to increased lawsuits. Other studies have 
     indicated that for every 1 percent real increase in premiums, 
     small business sponsorship of health insurance drops by 2.6 
       (7) There are currently 43,000,000 Americans who are 
     uninsured, and the expansion of medical malpractice lawsuits 
     for health plans and employers would result in millions of 
     additional Americans losing their health insurance coverage 
     and being unable to provide health insurance for their 
       (8) Exposing health plans and employers to greater 
     liability would increase defensive

[[Page S8536]]

     medicine and the delivery of unnecessary services that do not 
     benefit patients, and result in decisions being based not on 
     best practice protocols but on the latest jury verdicts and 
     court decisions.
       (9) In order to minimize their liability risk and the 
     liability risk for the actions of providers, health plans and 
     employers would constrict their provider networks, and micro 
     manage hospitals and doctors. This result is the opposite of 
     the very goal sought by S. 6 (106th Congress).
       (10) The expansion of medical malpractice liability also 
     would reduce consumer choice because it would drive from the 
     marketplace many of the innovative and hybrid care delivery 
     systems that are popular today with American families.
       (11) The provisions of S. 6 (106th Congress) that greatly 
     increase medical malpractice lawsuits against private health 
     programs and employers are an ineffective means of 
     compensating for injury or loss given that patients 
     ultimately receive less than one-half of the total award and 
     the rest goes to trial lawyers and court costs.
       (12) Medical malpractice claims will not help patients get 
     timely access to the care that they need because such claims 
     take years to resolve and the payout is usually made over 
     multiple years. Trial lawyers usually receive their fees up 
     front and which can be between one-third and one-half of any 
     total award.
       (13) Expanding liability lawsuits is inconsistent with the 
     recommendations of President Clinton's Advisory Commission on 
     Consumer Protection and Quality in the Health Care Industry, 
     which specifically rejected expanded lawsuits for health 
     plans and employers because they believed it would have 
     serious consequences on the entire health industry.
       (14) At the State level, legislatures in 24 States have 
     rejected the expansion of medical malpractice lawsuits 
     against health plans and employers, and instead 26 States 
     have adopted external grievance and appeals laws to protect 
       (15) At a time when the tort system of the United States 
     has been criticized as inefficient, expensive and of little 
     benefit to the injured, S. 6 (106th Congress) would be bad 
     medicine for American families, workers and employers, 
     driving up premiums and rewarding more lawyers than patients.
       (b) Sense of the Senate.--It is the Sense of the Senate 
       (1) Americans families want and deserve quality health 
       (2) patients need health care before they are harmed rather 
     than compensation provided long after an injury has occurred;
       (3) the expansion of medical malpractice liability lawsuits 
     would divert precious resources away from patient care and 
     into the pockets of trial lawyers;
       (4) health care reform should not result in higher costs 
     for health insurance and fewer insured Americans; and
       (5) providing a fast, fair, efficient, and independent 
     grievances and appeals process will improve quality of care, 
     patient access to care, and is the key to an efficient and 
     innovative health care system in the 21st Century.
       (c) Nullification of Provision.--Section 302 of this Act 
     shall be null and void and the amendments made by such 
     section shall have no effect.

  Mr. GREGG. Mr. President, this amendment goes to one of the critical 
issues in the Kennedy health care bill that we have been debating for 
the last few days, which is the fact that the bill dramatically expands 
lawsuits in this country.
  Our Nation is already far too litigious; 2.2 percent of our gross 
national product goes into lawsuits every year. That is literally 
hundreds of billions of dollars every year absorbed in our legal 
system--dollars that could be used much more productively.
  Compared to other nations in the world, we are the most litigious by 
far. For example, Japan only uses about .8 percent of its gross 
national product for lawsuits. Canada, our neighbor, uses about .5 
percent of its gross national product for lawsuits. These lawsuits that 
have, for years, been used against individuals and manufacturers 
accomplish some good, but in many instances they end up chilling 
events, creating greater costs for consumers and causing such things as 
research to be retarded, especially in the area of health care. This is 
a sensitive issue because things such as the development of new devices 
and the need for doctors to practice defensive medicine are issues that 
are highlighted and aggressively expanded by the expensive use of 
  Just this week, for example, we saw a $4 billion judgment--$4 
billion--against one manufacturer in this country. That type of 
judgment against a medical manufacturer, for example, would end up 
being passed on to the consumers through an increase in premiums and an 
increase in the cost of insurance.
  We are as a society simply too litigious. In many areas we as a 
society--as a government--have decided that lawsuits should be not cut 
off but at least curtailed to some degree.
  However, the other side of the aisle has come forward with a bill 
which would dramatically expand the number of lawsuits available in 
this country. It would essentially be the ``Kennedy Annuity for 
Attorneys Act'' rather than a health care bill. This bill, as proposed 
by the other side, would create the opportunity for 48 million more 
incidents of lawsuits involving 48 million more individuals, which 
could then be multiplied in a geometric progression.
  Let's just take one situation. Right here, we have the example of how 
137 different doctors might treat one simple type of medical problem, 
``uncomplicated urinary tract infection.'' There are 82 different 
treatments from 137 different treating physicians. If one of these 
doctors picked a treatment which didn't work, under the Kennedy bill 
that would immediately open a brand new lawsuit against a variety of 
different individuals, including the employer, the HMO, and the 
insurer. That lawsuit could be multiplied literally by hundreds of 
different treatments and hundreds of different opportunities, because 
this bill dramatically expands the opportunity for lawsuits.
  Another example of the expansion of lawsuit opportunity under this 
bill is this chart. All these different blue lines are new regulatory 
actions which are available under the Kennedy bill. Fifty-six new 
causes of action are created under this bill. It is truly an explosion 
of opportunity for attorneys to bring lawsuits.
  There would be a whole new business enterprise created in this 
country, and it would be a massive enterprise, the purpose of which 
would be to bring lawsuits under the Kennedy bill. And the practical 
implications of this are that the cost of health care in this country 
would go up dramatically.
  The Congressional Budget Office has estimated that this bill, the 
Kennedy bill, because of the lawsuit language which allows attorneys to 
go out and sue in a variety of different areas--which right now they do 
not have the opportunity to sue in--would increase the cost of premiums 
by 1.4 percent.
  What does that mean? That means that approximately 600,000 Americans 
would be thrown off the insurance rolls. The practical effect of this 
expansion in lawsuits is that you would see a dramatic expansion in the 
cost of health care in this country and an equally dramatic expansion 
in the number of uninsured in this country.
  In addition, the cost of insurance for doctors would go up 
dramatically. Under a study done by the doctors' insurance agents--not 
necessarily the HMO insurance agents or the health plan insurance 
agents but, rather, the doctors--it is estimated that the premiums on 
the errors and omissions policies of doctors would go up somewhere 
between 8 and 20 percent relative to the ERISA part of their insurance.
  This means we would see a massive expansion of defensive medicine 
being practiced. We already know that defensive medicine is practiced 
excessively in this country, which means procedures undertaken not 
because the doctor believes they have to be undertaken but they are 
undertaken to protect a doctor from a lawyer. We would see a massive 
expansion of this defensive medicine by doctors.
  What does that do? That drives up the cost of medicine, and it does 
very little to improve the quality of care.
  Equally important, what we would see is a deterioration in the 
availability of doctors to practice specialties, which are unique and 
needed in rural areas--especially OB/GYN--which we have already seen 
driven out of many rural areas in this country because of the cost of 
the error and omissions policies. An 8 to 20 percent increase in the 
cost of those policies would have a devastating impact on an area of 
medicine which is already underrepresented in the rural parts of this 
  Six-hundred thousand fewer insured people, and what do we get for 
this expansion in lawsuits? What does the consumer get for this huge 
expansion in lawsuits? They get a lot more attorneys. There is no 
question about that. They get a lot more wealthy attorneys. There is no 
question about that. They will get a lot more attorneys who will be 
able to contribute to the Democratic National Committee. There is no 
question about that. The trial lawyers

[[Page S8537]]

love this Kennedy bill. They are enthusiastic for this bill. If there 
is a basic beneficiary for the Kennedy bill, it is the trial lawyers in 
this country. That is what I call this bill. It is the ``attorneys' 
annuity bill'' rather than the Patients' Bill of Rights.
  What do the consumers get when they get involved in these lawsuits? 
They will get very little. Will they get greater care? No. They will 
have to go to court to get care under this bill. A lawsuit has to be 
brought. Do they get better results? Absolutely not. The attorneys get 
54 percent of the recovery. That leaves the litigants with a combined 
46 percent after this, one-half being an economic loss and one-half 
being compensation for pain and suffering.
  It makes very little sense when you realize that the only winners 
under the Kennedy bill are actually the attorneys in the expansion of 
lawsuits that will occur as a result of the bill.
  So where does that bring us? We have come up with a better idea in 
our bill. We say that rather than creating a brand new opportunity to 
create all sorts of new lawsuits and add a lot of new attorneys to the 
American culture, who really add very little in the way of 
productivity--or better medicine, for that matter--let's let doctors 
take a look at what doctors are deciding for patients.
  Under our bill, a patient, rather than having to go to court to have 
their concerns addressed, gets to have their concerns addressed by, 
first, a doctor in the specialty dealing with the type of problem the 
patient has within the clinic or the group by which the person is being 
served. That doctor is independent. That doctor makes a decision: Did 
that patient have the right care or did that patient have the wrong 
care? Or should that patient get more care? If the patient isn't 
comfortable with that decision, then the patient can go outside the 
clinic, outside the insurance group, and have another doctor, who is 
appointed after having been prequalified by a certified either State or 
Federal agency, and have another doctor review that patient's care.
  If that doctor decides that the patient needs some other type of 
care--something that the clinic or the interests group did not decide 
that the patient should have--then that is binding. It is binding on 
the insurance group. There is an independent review at two different 
points, one inside and one outside, done by doctors who have a binding 
decision on the patient. If the patient again is uncomfortable with 
that decision, then the patient can bring a suit. But it is limited as 
to amount of damages, and it is limited to the cost of the event.
  The practical approach they have put forward is to try to get the 
patient care, and get the patient good care and efficient care quickly, 
and make sure they have gotten fair treatment and they have had a 
review by the appropriate doctors.
  As a result, we reduce the cost of health care. As a result, we keep 
more people insured. As a result, we allow more people to participate 
in health insurance in this country. As a result, I admit that we do 
not create as many opportunities for attorneys to bring lawsuits. That 
is absolutely right. We do not create a bill that basically underwrites 
the legal profession in this country. That is absolutely right. We 
assist patients in getting care.
  That is a big difference between these two bills. The Democratic 
bill, the ``Attorneys' Annuity Act,'' the ``Kennedy Patients' Bill of 
Rights,'' is essentially a bill to promote attorneys. Our bill is a 
bill to promote health care.
  Mr. President, I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, the fact of the matter is, in the United 
States of America, this great country we live in, there are basically 
two groups of people who cannot be sued: foreign diplomats and HMOs. 
That is not the way it should be. We are saying HMOs should be treated 
like every other entity in the United States.
  Today, even an HMO involved directly in dictating, denying, or 
delaying care for a patient can use a loophole in what we call ERISA to 
avoid any responsibility for the consequences of its actions. The 
American people simply do not support that. ERISA was designed to 
protect employees when they lose pension benefits to fraud, 
mismanagement, and employer bankruptcies, which occurred so often 
during the 1960s.
  The law now has the effect of allowing an HMO to deny or delay care, 
with no effective remedy for patients. What they are trying to do is 
strike a provision from our bill which simply ensures HMOs can be held 
accountable for their actions, a responsibility of every other industry 
to consumers. They talk about this in vague abstract, as if this is 
some big cabal to change the law. All we want to do is make the law 
apply to HMOs.
  Let's talk about a real person. Florence Corcoran is an example of 
the need to hold HMOs accountable. She lost a baby because the HMO 
refused the doctor's request for hospitalization in the last days of 
her pregnancy. The HMO would pay for only 10 hours of at-home care. 
During the final months of pregnancy, when no one was on duty, her baby 
went into distress and died. Because Florence received health care 
coverage through an employer, they had no recourse or remedy for the 
death of this baby. The HMO was not responsible under the law for any 
cost because the Corcorans never incurred any medical expenses for the 
loss of their baby.
  The court of appeals--the court that is highest except for the 
Supreme Court in this country--said, and I quote from a Fifth Circuit 
Court of Appeals:

       The result ERISA compels us to reach means that the 
     Corcorans have no remedy, State or Federal, for what may have 
     been a serious mistake. This is troubling for several 
     reasons. First, it eliminates an important check on the 
     thousands of medical decisions routinely made in the 
     burgeoning utilization review system. With liability rules 
     generally inapplicable, there is . . . less deterrence of 
     substandard medical decisionmaking.

  In another case, another Federal judge, Judge William Young, said:

       ERISA has evolved into a shield of immunity that protects 
     health insurers . . . from potential liability for the 
     consequences of the wrongful denial of health benefits.

  That is from the case of Andrews-Clarke v. Travelers Insurance 
Company, decided last year.
  All we want to do is be able to hold the HMOs accountable.
  What about the cost of this? We have an independent study by Coopers 
& Lybrand that found the cost to be as little as 3 cents per person per 
month. We can handle that. That is fairness.
  This is not going to touch off a flood of lawsuits. In fact, it will 
make people feel better about their health care and, in fact, make 
health care providers be more diligent in rendering adequate, complete 
care to their patients. It is not going to create massive lawsuits, as 
Coopers & Lybrand said.
  The Republican provision leaves patients with no recourse if benefits 
are denied. That is wrong.
  I yield 10 minutes to the Senator from North Dakota.
  Mr. DORGAN. Mr. President, it is Thursday and most of the week we 
have seen amendments and offerings from the majority party that do 
little or nothing for the vast majority of Americans.
  The Gregg amendment before us, however, is an amendment that would do 
something. It would prevent accountability. It would say that patients 
have no right to expect accountability on the part of HMOs and the 
insurance companies.
  USA Today, in an editorial, says there are ``100 Million Reasons that 
the GOP's Health Plan Fails.'' That is the number of people not covered 
by our opponent's health plan. The majority of the American people with 
private insurance are not helped by their proposal.
  Now, some of my colleagues say that doesn't matter because the States 
cover these folks. Mr. President, 38 States don't guarantee access to 
specialists; 48 States don't hold plans accountable; 29 States don't 
provide for continuity of care; 39 States don't provide for omsbudsmen; 
27 States don't provide a ban on financial incentives to limit care. 
The fact is, the argument that the States do this is a specious 
  Let me go back to a couple of cases I have described in the past to 
illustrate my point. I know some here in the Senate say this debate is 
not about individual cases, but I disagree. Ethan Bedrick was born in 
circumstances that were devastating, the umbilical

[[Page S8538]]

cord wrapped around his neck causing partial asphyxiation. 
Consequently, he was born with cerebral palsy and was a spastic 
quadriplegic. He began to get therapy.
  At age 14 months, the HMO said: We are going to cut back on Ethan's 
  The doctor said: You shouldn't cut back on the therapy. Ethan has a 
chance to be able to walk by age 5.
  The HMO says: A 50 percent chance of being able to walk by age 5 is 
minimal or insignificant. Therefore, we won't pay for it.
  Now, is somebody going to protect Ethan? Does anything proposed by 
anyone on the other side of the aisle in the last 3 days solve this 
problem? The answer is no. In nothing they proposed can they say they 
will have solved this problem--not just for Ethan but for all the other 
little Ethans in our country. They will deny him the rights that he 
ought to have.
  What about Jimmy Adams? We had a big debate yesterday about emergency 
care. One of my colleagues stood up and said little Jimmy would be 
covered under their amendment. That is not the case. Jimmy Adams got 
sick with a 104 degree fever in the middle of the night. His mother and 
father called the HMO. They were told to go to the Scottish Rite 
Hospital way across the city of Atlanta.
  Where is it? the mother asked.
  Find a map, she was told.
  So they got in the car at 2 in the morning and headed for Scottish 
Rite Hospital. They passed the first hospital, they passed the second 
and third hospitals--because they were not authorized to go to these 
emergency rooms by their HMO. An hour into the trip, they pulled into 
Scottish Rite Hospital, having passed three emergency rooms because the 
HMO wouldn't have paid for Jimmy's care there. At that point, Jimmy 
Adam's heart had stopped. They were able to get his heart restarted. 
They intubated him. He was a very sick young man. He survived. However, 
gangrene from that episode caused Jimmy to lose both of his hands and 
his feet.
  This is young Jimmy without hands or feet. He passed three emergency 
rooms because the HMO said: You have to be in a car an hour to go to 
the emergency room we will pay for.
  Is there anything offered by anybody on the other side yesterday that 
would have solved this problem? The answer is no because Jimmy's family 
is enrolled in an HMO that would not be covered under our opponent's 
proposal. No emergency room proposition offered by anyone over there, 
even though it was described in wonderful terms, would have done 
anything to help the Jimmy Adamses in a good many States in this 
  If you think that is wrong, I challenge anyone to tell me how you 
will receive this protection if you are among the 100 million not 
covered under the majority's bill and live in a State that doesn't have 
this coverage. That is the problem with the proposal by the majority 
  Let me give another example. This case deals with the issue of who 
determines what care is medically necessary, doctors or insurance 
company bureaucrats. This example was used by Dr. Greg Ganske, a 
Republican Congressman from Iowa, who happens to be a reconstructive 
surgeon. This is a picture of a child with a very serious medical 
problem, a cleft lip. Dr. Ganske contacted his colleagues in 
reconstructive surgery, and Mr. President, he found that 50 percent of 
them had cases such as this denied. In cases dealing with 
reconstructive surgery, 50 percent had cases denied because they were 
not medically necessary.
  Think of that. Think of being the mother or father of this young 
child and being told reconstructive surgery is not medically necessary. 
Ask yourself whether you think that is reasonable. Yet it happens in 
this country and will happen again under the Republican bill because 
they do not allow a patient's doctor to determine what is medically 
  Let me show you another picture of a child with the same cleft lip 
problem. Now let me show Members what happens when reconstructive 
surgery gives this young child a chance, an opportunity. Here is the 
same child. Take a look at what someone decides is ``medically 
necessary'' and what it will mean to this young child's life. This 
picture demonstrates what reconstructive surgery can do for this 
wonderful child.
  As these real cases illustrate, this debate is not about theory. It 
is not about arguing the terminology in some half-baked plan that 
doesn't do much. It is about providing assurance and guarantees to 
people in this country. Help this young child. Provide protection for 
Jacqueline Lee who fell off a cliff 40 feet, fractured her body in 
three places, and unconscious, is helicoptered to an emergency 
room. She is unconscious, out cold on a gurney. She survives and then 
is told by her HMO that she did not get prior approval for her 
emergency room visit and therefore they will not pay it.

  Or Ray, the father who, with tears in his eyes, told about Matthew, 
his 12-year-old son, who lost his battle with cancer because they were 
forced to fight both the cancer and the insurance company to provide 
for the treatment necessary to try to save him. Ray says, ``We could 
not fight cancer and the insurance company at the same time, and it is 
not fair to ask us to do it.''
  I say this to you, those who say you are providing wonderful 
protection --you are not. This editorial says you are not and we know 
you are not and you know you are not. Mr. President, 100 million people 
are left out of your plan and you say: Yes, they are left out of our 
plan but the States cover them. They do not and you know they do not. 
Medical necessity? Emergency room? OB/GYN? Go down the list and then 
tell the American people, tell these children, tell the women, tell the 
families why you do not think they ought to be covered.
  This last amendment says to patients, we do not think you ought to be 
protected, but we certainly think we ought to provide protection to the 
insurance companies. We certainly think insurance companies ought to be 
given protection and patients should be denied the right to hold them 
  My colleague talks about lawsuits. It is interesting. Texas passed a 
statute allowing consumers to hold HMOs accountable a couple of years 
ago. There has been one lawsuit, I understand--perhaps by now two or 
three. Where is the blizzard of lawsuits our opponents predict when you 
make health care providers accountable?
  Every Medicare patient in this country has the basic protections we 
are proposing in our Patients' Bill of Rights. Every Medicaid patient 
in this country has the same protections, and every Federal employee 
and every Senator sitting on this floor has these protections.
  But we have folks in this Chamber who decide it might be good enough 
for Senators, they voted for it for Medicare, but it is not good enough 
for the rest of the American people. And the result is too many cases, 
too many children, too many Jimmy Adamses whose parents decide they 
have to comply with the rules because they do not have the money.
  I remember the first time I saw an entertainer use the moon walk. It 
made him look as if he was moving forward when instead he was moving 
backwards. I see that on the floor of the Senate in this debate. People 
offer proposals when they want people to believe they are making 
progress, but in reality, they are not doing anything or maybe even 
moving backwards. That is not going to work in this debate. This debate 
is not about theory. It is about people's lives, about their medical 
treatment. It is about providing protection for hardworking Americans 
who have insurance and think they are protected with decent health 
coverage--only to discover at 2 a.m. that they do not have access to an 
emergency room.
  The PRESIDING OFFICER (Mr. Santorum). The Senator's time has expired.
  Mr. DORGAN. I thank the Senator from Nevada for the time and yield 
the remainder of my time.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. GREGG. Mr. President, I will yield to the Senator from Alabama in 
a second. I do want to point out the Senator from North Dakota, 
although well informed in most instances, on the issue of suing health 
care plans of Senators he is not informed. The fact is, under our plan 
we cannot sue the insurer. We are limited in our rights to sue, and our 
ability to recover is also

[[Page S8539]]

significantly limited--in fact, about the same way it is limited in our 
bill. I would point that out as a point of clarification.
  The Senator from Alabama.
  Mr. SESSIONS. I thank the Senator from New Hampshire. I will delay my 
general remarks.
  The PRESIDING OFFICER. Who yields time?
  Mr. GREGG. I yield the Senator from Alabama 10 minutes.
  The PRESIDING OFFICER. The Senator is recognized for 10 minutes.
  Mr. SESSIONS. Mr. President, I will delay my overall remarks on this 
matter to deal precisely with some of the examples that have been 
  There are a number of provisions in the law that allow the 
containment of lawsuits. Workman's comp--if a person is injured on the 
job, there are very limited matters for which they can sue. They do not 
have to prove negligence. They get compensation. They have a lot of 
advantages. They also are not able to sue their employer under those 
circumstances. Federal employees, including Senators, are not able to 
  But let me say this, first and foremost, this is not a step 
backwards. Right now we have this limitation on lawsuits--not a banning 
of lawsuits, but a limitation on lawsuits under Federal law. This 
legislation will increase significantly the power of individual 
patients to protect their rights against HMOs. It does change existing 
law. It does move the bar much lower for patients, in a way that makes 
sense, that keeps costs to a minimum, but improves their access. Now we 
talk about offering a 2- or 4-year lawsuit in exchange for the plan we 
have proposed that would allow immediate access to a panel of medical 
experts to review your claim.
  Let me mention some of the special cases that were discussed 
previously. There was a case in which the HMO had denied therapy. Under 
our bill, you would have the existing rights we have today to go to 
court, but in addition to that, you would have an internal review 
process by the insurance provider. In addition to that, you would be 
able to have an independent external review of your claim that this 
therapy is needed. It would require, and provide for, a person with 
expertise in that medical specialty who is independent of the plan. 
That is a major step forward for the rights of patients. We do not need 
to foster a jackpot justice mentality when we can get prompt, 
professional care.
  With regard to the Jimmy Evans situation, what will our bill do for 
that? Obviously, this matter has been discussed over and over again. It 
hurts me to see the emotional arguments made that ignore what this bill 
provides. This bill says you could use a ``prudent layperson'' standard 
on emergency care. That means, if you believe your child needs to stop 
at the first hospital, you can stop there. A prudent layperson means 
the parent, using normal good judgment, is allowed to use that judgment 
about where to go in an emergency.
  With regard to problem of cleft palate and medical necessity--we 
have, and have provided for, new requirements on HMOs. Ultimately, 
there would be an independent, medical expert to review that claim. 
Surgery for cleft palate is not going to be denied. That is pure scare 
tactics, and it is offensive to me to suggest that. You can still go to 
court, at any rate, for the cost of the benefit denied and still get 
coverage for the medical care you need. So I would say that really is 
  With regard to the fundamentals of the appeals process, you do have 
to have a decisionmaking process in any complex contractual 
relationship. How are we going to do it? There is a clear choice. As a 
matter of fact, many have already discussed this. Friends on the other 
side of the aisle have said from the beginning that the biggest 
difference between our parties bills is the question of how to handle 
the liability issue. They want to add new lawsuits not provided for 
under current law to allow increased lawsuits. We want to increase the 
ability of patients to get prompt, cost-free, independent medical 
reviews for benefits denied when they need it.
  I have heard doctors express to me they do not like dealing with 
bureaucrats when they need to talk about what kind of treatment their 
patient needs. They are frustrated about that. So this bill says: That 
is not good enough, HMO; if you cannot respond promptly to a 
physician's request that the patient receive a certain type of 
treatment, you are going to have to provide an independent, external 
expert, with a specialty related to that patient's particular medical 
problem, who can make a decision that is binding on the HMOs but not on 
the patient. Let me emphasize, it is binding on the HMO. If that expert 
says this treatment is needed, then it must be provided immediately.
  I think these are the protections we want to provide.
  This appeals process is a good plan. Basically, if a patient is 
denied a benefit, he or she can call the HMO for an internal review. If 
that is not satisfactory, he or she can demand an external review by an 
independent medical expert. Even after that, they still maintain the 
right to sue--a right which exists today.
  I think this is a very good policy. As a matter of fact, the Senator 
from Massachusetts who was here in 1973 pointed out the obvious when he 
supported the establishment of HMOs. He said in his remarks on the 
Senate floor at that time these words:

       Medical malpractice litigation has become an onerous and 
     protracted means to resolve medical malpractice disputes. The 
     costs are escalating with less of the medical insurance 
     premium dollar going to compensate the injured party. The 
     delays in resolving such disputes average up to 4\1/2\ years 
     from filing of a lawsuit. Litigation has failed to provide an 
     efficient means to achieve a fair result for all concerned.

  And I say amen to Senator Kennedy. He was correct about that. This is 
not working. It is not the way we can assure prompt care and responses 
to patients, doctors and injured parties when they need help.
  Senator Kennedy went on to say:

       Litigation of medical malpractice claims have not been an 
     effective method to monitor quality health care standards.

  I agree with that also.
  I believe the plan proposed by the Republicans provides for a prompt, 
professional, low-cost, independent determination of disputes. Make no 
mistake about it, lawsuits are expensive. It takes 25 months--4 years, 
as Senator Kennedy says--to bring one to a conclusion. Lawyers charge 
$200 plus an hour. The plaintiffs' lawyers charge a 40- to 50-percent 
contingent fee. That means if the plaintiff receives $100,000, the 
lawyer gets $50,000. If the plaintiff gets $1 million, the lawyer gets 
$500,000. The lawyers have junior partner lawyers, paralegals, law 
clerks, and secretaries who work with them. They take deposition after 
deposition after deposition. Medical experts are called. Testimonies, 
reports, and legal research have to be prepared. Court appearances, 
pretrial hearings, discovery conferences have to be arranged and briefs 
have to be filed.
  There is a burden on the courts when you have lawsuits. We pay the 
judges salaries. The more these cases are given to them to handle, the 
more judges we need to handle them. The judge has law clerks. Federal 
judges have at least two law clerks each, bailiffs, U.S. marshals, and 
court clerks to handle the cases--all of whom are paid for by the 
taxpayers. This does not include jurors and witnesses. Let's not forget 
the cost of the courtroom. Go to your courthouse and find out how much 
a courtroom costs to build. Figure it out on a weekly basis.
  These cases go on for 1 year, 2 years, or even 4 years before they 
ever reach a conclusion.
  That is not the way to help patients who need help. Some will win 
millions of dollars and some will win nothing. I will tell you what 
else will happen. It will be routine for plaintiff lawyers, to sue a 
doctor or hospital--which they can already do, make no mistake. 
Currently, if a physician treats you improperly or the hospital commits 
an act of negligence or a willful act of wrongdoing, you can sue them. 
Now we are questioning whether you can sue the insurance company for 
these kinds of problems.
  We have made progress in allowing a good review, a tough new review 
process. The Kennedy plan is fatally flawed. We must not allow his plan 
to happen. President Clinton's own hand-picked 34-member Advisory 
Commission on Consumer Protection and Quality in the Health Care 
Industry refused to put

[[Page S8540]]

liability reform or the Democratic liability plan in their bill when 
they did their report for the President. They did that for a reason. 
They considered the issue and decided it was not wise.

  Meanwhile, for some reason the President and the Democratic Members 
have changed their minds. I suspect they have talked with their trial 
lawyer friends in the meantime and have been convinced they ought to go 
along with this new proposal.
  It is not just the President's own review commission that has 
rejected liability expansion and more lawsuits, but major newspapers in 
this country as well.
  The Los Angeles Times:

       Bad medicine for both employees and employers driving up 

  The New York Times:

       Jury awards in State courts for malpractice are----

  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SESSIONS. I ask unanimous consent for 1 additional minute.
  Mr. GREGG. I yield 1 minute.
  Mr. SESSIONS. The New York Times:

       Jury awards in State courts for malpractice are notoriously 
     capricious and do more to reward lawyers than patients.

  The Washington Post:

       The threat of litigation is the wrong way to enforce 
     rational decisionmaking.

  This is a terrible idea. It is the wrong direction to go. It will add 
expense throughout the system and will not benefit patients by getting 
them care when they need it. This bill, as proposed, which I support, 
will do that. It will give patients immediate relief and expert 
evaluation of their claims.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.

                         Privilege Of The Floor

  Mr. REID. Mr. President, I ask unanimous consent that the privilege 
of the floor be granted to the following individuals: Kathryn Vosburgh 
and Jennifer Barker who are interns with Senator Byron Dorgan of North 
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. On behalf of the minority, I extend 10 minutes to the 
Senator from Illinois, Mr. Durbin.
  The PRESIDING OFFICER. The Senator from Illinois is recognized for 10 
  Mr. DURBIN. I thank the Senator from Nevada.
  Mr. President, this is the heart of the debate. This is what the 
Patients' Bill of Rights is all about. The insurance companies hate the 
idea of being sued in court as the devil hates holy water. They do not 
want to be held accountable for their actions. They want to be 
protected so they can make the wrong decision when it comes to medical 
care for American families and never be held accountable.
  The amendment being offered on the Republican side is an effort to 
take away from 123 million Americans the right to hold health insurance 
companies accountable. That is the bottom line: 123 million Americans 
will be denied an opportunity to go to court when a health insurance 
company makes a decision which costs them their health or their life.
  Most people are stunned to know that you cannot take a health 
insurance company to court. Since 1974, a Federal law has protected 
health insurance companies from being sued.
  What does that mean? When your doctor wants a certain procedure, a 
certain medicine, a certain specialist for your good or the good of 
your family, and that doctor is overruled by a health insurance company 
bureaucrat, the doctor is the only one who will be taken to court, not 
the health insurance company.
  If we pass nothing else in this Patients' Bill of Rights but this 
section which says health insurance companies will be held accountable 
in court, it would be a major victory for America. I trust the judgment 
of 12 citizens of this country in a jury box to decide the fairness and 
legality of an issue. Obviously, the Republican side does not. They do 
not want the health insurance companies to go to court. They do not 
want them to face a jury. They do not want them to be held accountable.

  This party, which parades and triumphs values and responsibility does 
not want to hold the health insurance companies responsible in the most 
basic form of adjudication in our country: a jury of your peers.
  Oh, they make a lot of arguments about, oh, we are just gilding the 
lily and feathering the nests of all these trial lawyers. That is not 
what it is all about. You know it and all America knows it.
  The health insurance companies, with the Republican majority, are 
determined to stop 123 million Americans from ever having a day in 
court. Ever.
  For the last 2 days, Senator Kennedy, Senator Reid, and all of my 
colleagues have brought stories to the floor--chilling, heartbreaking 
stories. Here is one. Florence Corcoran. Let me quote Florence 

       They let a clerk thousands of miles away make a life 
     threatening decision about my life and my baby's life without 
     even seeing me and overruled five of my doctors. They don't 
     get held accountable. And that's what appalls me. I relive 
     that all the time. Insurance companies don't answer to 

  That is what Florence Corcoran says: ``Nobody knows about ERISA,'' 
this Federal law that protects health insurance companies.
  If you are listening to the debate, you would think: Well, surely 
there must be a long roster of companies in America that receive the 
same kind of immunity from liability that cannot be brought to court. 
No. This is it, folks. This is the only sector of the American 
economy--maybe the only sector in America--that is going to be allowed 
to be held above the law.
  The Republican majority and the health insurance industry are 
determined to protect their immunity from a lawsuit so that Florence 
Corcoran, when her life and the life of her baby were threatened by the 
decision of a health insurance company, can't even take that health 
insurance company to court.
  The Senator from Alabama gets up and talks about: Oh, this legal 
system, it is so expensive. It takes so long. Let me tell you, when it 
is your life or the life of your baby, and this is the only place to 
turn, this is where you will turn. Yes, you will go to a lawyer because 
you are not wealthy, who will charge a contingency fee, meaning if he 
wins he gets paid; if he loses, he does not. That is part of the 
American system.
  How many times, day in and day out, do we hear about these cases--
simple, ordinary Americans, living their life, doing what they are 
suppose to do, paying their taxes, going to work every day. They get 
caught up in a situation where someone's negligence or wrongdoing hurts 
them. It could be an accident; it could be medical malpractice; it 
could be a decision by a company that was just plain doing wrong.
  Where do you turn? You write a letter to your Senator. That isn't 
worth much, I will tell you. We will read it. We will write a reply. 
But if you want justice in America, then you have a chance to go in the 
court system. But the Republican majority says, no, close the door to 
America's families so that they cannot hold health insurance companies 
accountable in court.
  For the last 2 days, we argued about all the outrages in these health 
insurance policies, that you can't go to the nearest emergency room 
when someone in your family is hurt, that you can't go to the 
specialist your doctor wants you to go to--the cases go on and on and 
on--and we try, item by item, to make these health insurance plans more 
responsive to the reality of life and more responsive to the medical 
needs of Americans.
  But let me tell you this. All of those amendments, all of those votes 
notwithstanding, this is the bottom line. This will change the 
mentality of these health insurance companies that say no, because they 
are driven by the ambition for greed and profit, say no over and over, 
regardless of the outcome.
  The Cortes family from Elk Grove Village, IL, their tiny little baby, 
Rob, who is now 1 year old, has spinal muscular atrophy. For a year 
they tried to keep their family together with this little boy on a 
ventilator at home--on a ventilator at home. They have been fighting 
this disease, and every week they fight the insurance companies. Will 
they cover this care? Will they cover this drug? The battle goes on and 

  Mark my words--and I say this to my Republican colleagues--if that 
health insurance company knew their decisions would be judged by 12 of 

[[Page S8541]]

peers, 12 American citizens, sitting in a jury box, I bet the Cortes 
family would get a lot better treatment. You know they would. They know 
they would be held accountable.
  But the health insurance industry and the Republican majority does 
not want the 123 million Americans to ever have a day in court when it 
comes to these health insurance decisions. Their arguments are as weak 
as they can be.
  The State of Texas passed a patients' bill of rights. They said you 
could take the health insurance company to court for certain insured 
people in Texas. You would think, from the arguments on the Republican 
side, that the sky fell on Texas 2 years ago. It did not happen. You 
know how many lawsuits have been filed since this law was enacted, a 
law which Governor Bush vetoed, but the legislature overrode his veto? 
Three lawsuits--three lawsuits in 2 years. Does that sound as if we are 
flooding the courts?
  But I will tell you something. In that State, for those who are 
protected by that law, I will bet you there has been a change in the 
way they do business.
  Let me give you a quote from a health insurance executive. This is 
from the Washington Post.

       . . . currently, ``We would charge the same premium to a 
     customer with the ability to sue as we do to those who do not 
     have the ability to sue.''. . .

  This is from Aetna. Have you picked up the Washington Post lately? 
Two-page ads every day begging us not to vote for the Patients' Bill of 
Rights--Aetna sponsors them, full-page ads. But their spokesman said:

       Why? Those judgments to date have been a very small 
     component of overall health care costs.

  That is what Mr. Walter Cherniak, Jr. of Aetna said.
  So the argument that this was going to flood the courts did not 
happen. It did not happen in Texas. As to the argument that it is going 
to raise premiums, according to a man who does this for a living, it 
makes no difference in the premium charged for those insured who have 
the right to sue and those who do not.
  Take a look at some of the numbers that have come out in terms of the 
estimated costs of increases in premiums if there is a right to sue. 
How much is it going to go up? The Republicans argue it is going to 
skyrocket. The Congressional Budget Office estimated the impact on 
premiums to be 1.4 percent; Multinational Business Services, less than 
1 percent; Muse and Associates, a private firm, they say .2 percent.
  Is it worth a quarter a month to you as an American with a health 
insurance policy to have the right to go to court when it is your 
baby's life?
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. DURBIN. I say to my colleagues, this is the key vote on the 
Patients' Bill of Rights. This is a vote about whether 123 million 
Americans will be precluded from court by the Republican majority and 
the health insurance industry.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. GREGG. I simply note ERISA does not cover 123 million Americans, 
so the Senator from Illinois is incorrect.
  I yield to the Senator from Iowa 10 minutes.
  The PRESIDING OFFICER. The Senator from Iowa is recognized for 10 
  Mr. GRASSLEY. Mr. President, this is a Democratic leadership war on 
health insurance coverage. This is their proposal to subject employer-
sponsored health plans, and thus employers, to lawsuits. As a member of 
the Judiciary Committee, I have worked for tort reform throughout my 
tenure in Washington. I believe our tort system is badly broken, so it 
will come as no surprise that I have grave reservations about sending 
more disputes into it.
  First, the big picture: The proliferation of lawsuits has damaged the 
efficiency, effectiveness and integrity of America's civil justice 
system. Almost as bad, it is injuring the nation's economy. Now, our 
Democratic colleagues propose to declare a ``new gold rush'' for the 
legal industry, this time in the area of health insurer liability. And 
the harm that results from doing so will not be limited to our 
judiciary or our economy--it will harm our health. It's downright 
unhealthy for America. Is that an overstatement, Mr. President? Well, 
people with health insurance are likely to have better health than 
those without it. If the Democrats are now saying that insurance 
coverage doesn't affect health status, then they'll have to explain why 
they keep coming up with all kinds of ideas on how to insure people. 
Five years ago, they thought insurance coverage was important--so much 
so that they wanted the government to insure everyone. Of course, even 
with a Democratic President and Democratic control of both Houses of 
Congress, they didn't manage to do it. It's funny how we don't hear 
about that effort anymore, but it's certainly not because we solved the 
  The President acknowledged the problem of the uninsured again when he 
proposed to allow people under age 65 to buy their way into the 
Medicare program. By the way, with a hefty subsidy from other Americans 
under age 65 who pay payroll taxes. Why does the President propose this 
unless he thinks insurance coverage will improve peoples' health 
status. Health insurance coverage is not an end unto itself, but a 
means to an end, and the end is better health. So when the Democrats 
propose things that will lessen health insurance coverage, and thus 
harm the health of the American people, we need to ask why.
  Some argue that liability laws are a good way to guarantee quality of 
care. We're certainly not hearing much from the other side in this 
debate about quality, but objective people think that ensuring quality 
of care should be the point of patient protection. I care a great deal 
about health care quality, let me tell you about research that has been 
done in the context of medical malpractice. These studies, particularly 
the well-known Harvard study, tell us that the medical liability system 
is simply not an effective way to ensure quality. There is a tremendous 
mismatch between incidents of malpractice, on one hand, and the 
lawsuits that are brought, on the other. For many reasons, instances of 
substandard medical care often do not give rise to lawsuits, while many 
lawsuits that are brought are groundless. In the malpractice context, 
it is not feasible to have immediate appeals of physicians' decisions 
when they make them, so we're stuck with the tort system.
  But when we talk about insurance coverage decisions, we do have an 
alternative to lawsuits. We can have immediate, independent, external 
reviews of these decisions. We can do better than lawsuits after-the-
fact. That's what our Republican Patients' Bill of Rights will do. It 
will get patients' claims decided when the patient needs the care. 
Isn't that the best thing for the patient? Yes--but it's not the best 
thing for the lawyers, and that's why we're here today.
  Mr. President, the other day, I heard a Senator note that only a 
handful of medical malpractice cases have ever been tried to a jury in 
his state. His point, apparently, was the lawyers don't really bring 
lawsuits: just a myth. Well, I am certain that the former trial lawyers 
in this body understand that defendants in cases sometimes pay out 
money in settlement of a claim, whether the claim was well-founded or 
not. Where do my colleagues believe that the money comes from? It comes 
out of the pockets of the people who buy tht good or service, 
  In medical malpractice cases, the cost of medical settlements, just 
like the cost of jury verdicts, is paid for by you and me. We pay in 
two ways: higher prices for medical services, and higher insurance 
premiums. When my friends on the other side say that creating a right 
to sue health plans somehow will not bring about more lawsuits, they 
should pay more attention to what their trial lawyer allies are up to. 
Who knows, maybe if they took a look at what trial lawyers are doing to 
our economy, they'd have second thoughts about supporting them all the 
  Let's see what an objective source says. The Congressional Budget 
Office has noted that the lawsuit provision of the Democrat proposal 
is, by far, the most expensive single item in their bill. More than 
anything else they are proposing, this liability piece is what will 
drive people out of their insurance

[[Page S8542]]

coverage into the ranks of the uninsured. That's a high price to pay to 
keep the lawyers happy.
  Employers are not required by law to offer health insurance coverage 
to their employees. There are tax advantages for employers to do so, 
but we're finding that those aren't enough. More and more employees are 
dropping coverage for their employees. That's not an opinion, that's a 
fact. My friends across the aisle have repeatedly noted that many 
liberal advocacy groups support their version of patient protections. 
Those groups have every right to get involved in this debate, and I'm 
glad that they are. But my point is that most Americans don't work for 
liberal advocacy groups. In fact, very few do. I'll also note that most 
Americans don't work for plaintiffs' law firms.
  Even if you're anti-business, you have to admit that businesses 
provide health insurance coverage to most Americans, and businesses are 
in a position to discontinue that coverage. The businesses that most 
Americans do work for, both large and small, are telling us that the 
Democratic bill will force many of them to drop coverage for employees; 
hence adopt the Republican Patients' Bill of Rights instead.
  Let's keep our eye on the ball. There are two goals that we should be 
trying to achieve. One is to ensure that people get the appropriate 
health care to which they are entitled under their insurance coverage. 
But the 2nd goal is to avoid taking that very insurance coverage away. 
There are many times in politics when it's impossible to achieve two 
goals at the same time, but we can this time. We have a Republican 
approach that achieves both goals. I call on my colleagues to support 
this approach, and to resist the temptation to join the other side's 
war on health insurance coverage.
  Mr. KENNEDY. Mr. President, I yield 3 minutes to the Senator from New 
  The PRESIDING OFFICER (Mr. Voinovich). The Senator from New Jersey.
  Mr. TORRICELLI. Mr. President, in the last few days, the Senate has 
revealed a lot about itself and where it stands.
  Members of the Senate have had a chance to respond to the needs of 
American women in allowing OB/GYNs to be their primary health care 
provider, and they failed. Members of the Senate have had a chance to 
protect traveling Americans across the country, allowing access to 
emergency rooms, and they declined. Americans have asked that doctors 
make final medical judgments. That issue was brought to the Senate. The 
Senate declined.
  Senator Durbin now brings to the floor of the Senate one last chance 
for the Senate to do something fair and decent for the American people 
in this plan to protect people in Health Maintenance Organizations--to 
give them the right afforded every other American with every other 
industry to bring their grievance to a court of law.
  It is ultimately the choice between a Patients' Bill of Rights or an 
insurance protection plan. If we fail, make no mistake about it, this 
debate and this vote will be noted for the fact that the Senate 
balanced the interests of 120 million Americans against several dozen 
insurance companies and made the wrong choice.
  In a nation in which we pride ourselves on access to the system of 
justice and equal rights for all people in this land, there are two 
privileged classes. By international treaty, foreign diplomats cannot 
be sued; and by ERISA, insurance companies in the health insurance 
industry cannot be sued. Here is a chance to reduce that list and make 
insurance companies and those responsible for our health accountable 
like everybody else.
  Every small business in America is responsible if they do damage to a 
customer, every dry cleaner, every trucking company, every mom and pop 
store. This industry, and this industry alone, is treated differently.
  Under the Republican proposal, that status quo is protected.
  Under Mr. Durbin's amendment, they will be held accountable. As other 
Members of the Senate, I have heard constituents come forward where an 
HMO has failed to diagnose cancer in a small child and months later, 
because they could not get access to an oncologist, a leg or an arm is 
lost. Tell that parent they cannot go to court.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. TORRICELLI. This is a great opportunity to provide fairness and 
access. It is the last chance to do something decent in this debate for 
the American people.
  Mr. KENNEDY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
  Mr. KENNEDY. Mr. President, I yield myself 8 minutes.
  The longer this debate goes on, the stranger I find those who are 
supporting the Republican proposal. Their basic proposal started out 
costing $1 billion. They will have the agreement later this morning, 
with the acceptance of the long-term care credit, that will end up 
costing $13.1 billion--$1 billion for patient protections; 100-percent 
deductibility, $2.9 billion; liberalized MSAs, $1.5 billion; flexible 
spending accounts, $2.3 billion. That adds to $7.7 billion. And the 
deductibility of long-term care is $5.4 billion, according to the 
Senator from Oklahoma. That is $13.1 billion, and not a cent of it is 
paid for.
  Their proposal has gone from $1 billion to $13 billion. Our proposal, 
according to CBO, is approximately $7 billion, which represents the 4.8 
percent figure from CBO. I certainly hope we won't hear any more about 
the cost of our proposal from our good friends. That was a hot button 
item. It didn't have anything to do with protecting patients, but it 
was a hot button item.
  Secondly, I hope we won't hear any more about one-size-fits-all. We 
listened to that line for 3 days. We will probably hear it later in the 
course of debate on many different measures. ``We don't want a solution 
of one-size-fits-all.'' Our good friend, Senator Collins from Maine, 
used that 10 times in her presentation. We are having a one-size-fits-
all with the Republican proposal because, effectively, they are 
excluding the States from making their own determination as to what 
actions the state might take in holding people accountable. The 
Republican proposal can be labelled ``one-size-fits-all'' if they are 
successful on this measure.
  They are saying to every State in the country: No, you cannot provide 
the remedies you would like for malpractice by those making health care 
decisions. We have one industry in this country that is going to be 
sacred, one industry that will not be held responsible. You can 
continue to sue doctors, but we will not permit any State in this 
country to determine whether you can sue your HMO.
  That is an extraordinary position for our good friends, the 
Republicans, who are always talking about one-size-fits-all, who are 
always saying that Washington doesn't always know best. I hope we are 
not going to continue to hear, ``Washington doesn't know best. The 
people in the hinterlands know what is going on. They can make up their 
minds in the States. The States are the great laboratories for 
innovation and creativity.''
  I can give those speeches, but they are wiping that out with this 
particular amendment. As the Senator from Illinois pointed out, this 
amendment is so basic and fundamental in protecting American citizens.
  Even my good friend from New Hampshire has addressed this issue--I am 
sure he expected to hear this, but he ought to hear it as one of the 
principals, and now as acting manager. Last year, when we had the issue 
of liability of tobacco companies, this is what he said, and we will 
include the statement in the Record:

       When you eliminate that right of redress issue--

  Which is effectively what the Republican proposal would do--

     which this bill does, when you take away the ability of the 
     consumer, of the person who has been damaged, of John and 
     Mary Jones, of Epping, NH, to get a recovery for an injury 
     they have received, you have artificially preserved the 
     marketplace, but, more importantly, you have given a unique 
     historic and totally inappropriate protection to an industry.

  The Senate accepted that position overwhelmingly. I think there were 
20-odd votes in opposition on that issue. But here we have the 
insurance industry. Evidently, the message is that the insurance 
industry is more powerful than the tobacco industry. Apparently, the 
insurance industry has the votes to get their way on this issue.

[[Page S8543]]

  Why is this issue important? This issue is important for two very 
basic and fundamental reasons. First, by making the right to sue 
available, there is an additional incentive--a powerful incentive--to 
HMOs and others in the health delivery system. There is an incentive to 
make sure they do what is medically appropriate because they know they 
may be held liable if they do not.
  You may say: That is good in theory, but is it so? Look at Medicaid. 
Under the Medicaid system, a plan may be held liable, the health 
delivery system may be held accountable. Do we have people abusing the 
liability provisions? The answer is no. The answer is no.
  As the Senator from Illinois pointed out, the State that allowed for 
liability most recently was Texas. Has there been a resulting 
proliferation of lawsuits, as the Senator from Alabama has suggested? 
The answer is no. There is one legal case that was brought and possibly 
one or two more pending.
  City and State officials have the right to sue. You can take the 
example of CalPERS, one of the largest health delivery systems in the 
country, with 1.2 million members. They have had the right to sue for a 
number of years. You can look at CalPERS premiums over the last 5 
years. The cost increase of the premium for CalPERS--whose members have 
the right to sue--has actually been below the national average for HMOs 
over the last 5 years. The Senator from Illinois has indicated, as 
well, the findings of the various studies which support this.
  Most important, the answer we get from the other side is we don't 
need accountability because we have a good internal and external review 
system under the Republican proposal. That is a phony argument. Over 
the past 3 days we have shown why this argument is phony. The 
Republican appeals proposal is a fixed system. There is no de novo 
review. There are many other problems in their appeals system which we 
have previously addressed. Yet their best answer is that the external 
review program is a substitute for the right to hold plans accountable 
in court.
  What happens when the plan drags its feet through the review process 
until it is too late for the patient? What happens when the plan 
doesn't tell the patient an external review is even available and the 
patient doesn't find out about its availability until the damage is 
done? What happens when the plan makes a practice of turning down 
everyone--this is reality--who applies for an expensive procedure, 
knowing there will be an appeal in only a fraction of the cases? 
Knowing that the worst penalty they could have is to pay the cost of 
the procedure that should have been provided in the first place?
  The PRESIDING OFFICER. The time of the Senator has expired. Fourteen 
minutes remain.
  Mr. KENNEDY. The patient never learns the procedure should have been 
provided until it is too late.
  What happens when the plan refers the patient to an unqualified 
doctor for a procedure because it doesn't want to pay for a more 
qualified specialist outside the network? What happens when the patient 
trusted the plan to do the right thing?
  According to the opponents of this proposal, those kinds of abusive 
practices should carry no penalty at all because you can't sue your way 
to quality. I would like to hear them say that to a widow who lost a 
husband--the father of her children--to a plan's greed.
  I would like to hear them say that to a young man disabled for life 
because his health plan insisted on the cheapest therapy instead of the 
best therapy.
  I would like to hear them say that to the parents whose child has 
died because the health plan mislead them about the availability of 
appropriate treatment.
  I challenge the opponents of this provision to tell the American 
people why public employees in there own States should have the right 
to hold their health plan accountable, but the equally hard-working 
family just down the street employed in the local bank or grocery store 
shouldn't have the same right.
  I challenge them to explain to the child or spouse of someone who has 
died or become permanently disabled due to HMO abuses, why they should 
have to live in poverty while a multibillion-dollar corporation gets 
off scot-free.
  I challenge those on the other side--who talked so much during the 
debate on welfare reform about the need for people to take 
responsibility for their actions--to explain why this standard should 
apply to poor, single mothers but not to HMOs.
  I challenge them to explain why every other industry in America 
should be held responsible for its actions, but HMOs and health 
insurance companies should be immune from responsibility.
  The time has come to say that this unique immunity should end.
  The time has come to say that someone who dies or is injured because 
an insurance company accountant overrules the doctor is entitled to 
  The time has come to say that profits should no longer take priority 
over patients' care.
  I withhold the remainder of my time.
  The PRESIDING OFFICER (Mr. Burns). Who yields time?
  Mr. GREGG. Mr. President, I yield 7 minutes to the Senator from 
  The PRESIDING OFFICER. The Senator from Washington.
  Mr. GORTON. Mr. President, nothing could more dramatically illustrate 
the differences in general attitudes and attitudes towards health care 
between the Senator from Massachusetts and the Members on this side 
than his statement that his bill would be preferable to ours because it 
would only ``cost'' the American people $7 billion, while ours would 
``cost'' the American people $13 billion.
  In fact, of course, overwhelmingly, the ``costs'' of his bill will be 
evidenced in higher taxes on the American people. His so-called 
``costs'' of our bill are, in fact, the reduction of taxes on the 
American people so they can use their own money to take care of more of 
their own health care costs. But to the Senator from Massachusetts, it 
is the same thing--more taxes, not less taxes.
  We do not think that is the same thing by any stretch of the 
  In addition, of course, he ignores entirely the costs imposed on the 
American people by paying higher health insurance premiums. Those 
presumably are irrelevant.
  But the subject before us primarily is lawsuits.
  There is widespread agreement in this body and across the United 
States that the medical malpractice system is simply broken, that it 
comes too late, that it costs so much, that less than half of the 
dollars that it costs ever get to victims and the rest is consumed by 
lawyers and by the administration of the system itself.
  The problem is, of course, we have never come up with a majority for 
a way in which to fix that medical malpractice system. But the 
proposition that it is broken is very widely held.
  It is into that broken system the Democrats' plan pours another 
element of our health care system and says: Oh, the system may be 
broken, but the only solution is to make it worse, is to make it more 
  Pouring good wine into a broken bottle with what impact? Better 
health care? No. We know the medical malpractice system doesn't create 
more and better health care.
  More lawsuits? Clearly, yes. One aspect of that broken system, of 
course, is the costs go not into providing better health care for the 
people of the country but into the system itself.
  But the patients--ultimately, the people who buy insurance, the 
people who consume health care--pay the entire bill, including all of 
the bills for the lawyers. With what impact? Higher costs for everyone 
who is insured and therefore fewer insured.
  But I think that is perhaps the least of the vices of the Democratic 
proposal because it allows, under certain circumstances at least, the 
employer--the person who is providing health care to his or her or its 
employees--to be sued. As well, it will drive logical and thoughtful 
employers out of the business of providing insurance at all. And it 
will do that in a devastating degree.
  I suspect that perhaps half of the employers, when they find they are 
going to be sued, will simply say: We are not interested in any more 
lawsuits. Sure. We will give each of our employees more money for the 
cost of that health insurance in cash, and the employee can do what he 
or she wishes with it.

[[Page S8544]]

  Some will ignore the cost of health care insurance and will become 
self-insured--some very much to their pain. Others will attempt to buy 
individual policies, which will inevitably cost more and give them less 
than any kind of group policy does. So we will have less insurance 
under this set of circumstances in order to have more lawsuits.
  Let's go back to this whole idea of medical malpractice as a broken 
  What we should be searching for is a better system, and the better 
system is exactly the plan that the Republican proposal has. It says 
instead of lawsuits after the harm has been done with the reward, if 
any, coming 3, 4, or 6 years later, we tell the potential patient who 
thinks his health care system has not done right by him that he has a 
right to get an answer promptly before the damage is done.
  This is the system we ought to expand to other health care systems. 
This is the system we are asked by the Supreme Court of the United 
States to apply to asbestos litigation--a unanimous Supreme Court of 
the United States.
  But instead, if the Senator from Massachusetts has his way, we will 
simply take a broken system and apply it in more areas than it applies 
to right now.
  That is a perverse answer to a very serious question. We will not 
treat the patients. They will treat the court system.
  Mr. KERRY. Mr. President, we have heard the horror stories: An HMO 
delays a breast cancer patient's treatment until the cancer has spread 
throughout her body. Parents are forced to drive their critically ill 
child to a hospital 50 miles away from their home because their insurer 
refuses to let them take the boy to a hospital 5 miles from their home. 
A patient complaining of chest pains is not allowed to see a 
cardiologist, and as a result suffers a fatal heart attack. Americans 
want their doctors--not managed care bureaucrats--to make their medical 
decisions. And when managed care wrongfully delays or denies care, 
Americans want the right to bring a lawsuit to hold managed care 
responsible for its misconduct.
  And let me tell you directly--the Gregg amendment won't do a thing to 
help Americans who suffer from the abuse of HMOs. It will maintain the 
provision in ERISA that allows patients in employer self funded plans 
to only recover damages in court from an HMO related to the cost of the 
treatment delayed or denied. It denies the right of Americans to 
receive punitive damages that send the message to insurance companies 
that when they do wrong, they'll be held accountable for the wrong they 
  The Gregg amendment sets up a weak appeals process where patients 
could first dispute the HMO's ruling with a doctor within the insurance 
plan (but not the one they saw for treatment) and if they are still not 
satisfied then they can talk to a second doctor that is outside of the 
insurance plan but regulated by either a state or federal agency. 
Whatever each of the doctors rule would then be binding. The Gregg 
amendment only exacerbates a bureaucratic nightmare. It doesn't allow 
Americans to hold insurance companies accountable in court. It doesn't 
address the real impediment to accountability in health care: ERISA.
  Today, even if an HMO has been directly involved in dictating, 
denying or delaying care for a patient, it can use a loophole in the 
Employee Retirement Income Security Act (ERISA) to avoid any 
responsibility for the consequences of its actions. ERISA was designed 
over 25 years ago, long before managed care companies became the 
powerful entity in controlling the health care of Americans that it is 
today. ERISA was originally designed to protect employees from losing 
pension benefits due to fraud, mismanagement and employer bankruptcies 
during the 1960's, but the law has had the affect of allowing an HMO to 
deny or delay care with no effective remedy for patients.
  Judge William G. Young, a Reagan appointed US District Judge, in his 
landmark opinion in one case, laid the problems out before us in clear 
language. He said, and I quote, ``ERISA has evolved into a shield of 
immunity that protects health insurers, utilization review providers, 
and other managed care entities from potential liability for the 
consequences of their wrongful denial of health benefits. ERISA thwarts 
the legitimate claims of the very people it was designed to protect.'' 
Judge Young was barred by law from awarding damages for wrongful death 
in an HMO case--his hands were tied by ERISA--but he laid out the point 
we're trying to make today. We need to end the ERISA nightmare that is 
hurting ordinary Americans.
  We have built a system that puts paperwork ahead of patients and 
ignores the real life and death decisions being made in our health care 
system. We must do better. Americans deserve better care, and deserve 
the right to hold insurers accountable if they do not receive that 

  Our opponents erroneously argue that ensuring that plans are held 
accountable will drive up premium costs and result in lost coverage. 
They fail to acknowledge however, that the timely appeals mechanisms in 
our amendment could prevent lawsuits before harm can occur. In fact, an 
independent study by Coopers and Lyband found that the Democratic 
provision to hold health plans accountable would cost a mere 3 to 13 
cents a month. Ironically, the industry's cry that liability will raise 
costs assumes that health plans are very negligent and that patients do 
indeed suffer real harm.
  History bears out our case: access to the court system for ordinary 
Americans--the right to seek redress--rescued America from Pintos that 
caught on fire, it gave us seatbelts, bumpers, airbags in cars, and 
every innovation in safety for consumers that we've witnessed over the 
last thirty years.
  So why would we oppose access to the court system for patients 
injured by runaway insurance companies? Well, some have said it will 
clog the courts and increase costs and premiums on insurance. And all 
the studies that prove otherwise aren't enough for these ideologies. 
Well, they might want to take a look at the State of Texas, where, over 
Governor George Bush's objections, they gave Texans the right to sue 
their HMO. And what's been the result? In 2 years since an external 
review process was established, only 480 complaints have been filed 
with the Texas Independent Review Organization--about 30 times less 
than the 4,400 complaints that were predicted in the first year alone 
by the Texas Department of Insurance. Even more important, only one 
medical malpractice lawsuit has been filed under this law. Mr. 
President, the Republicans have been asking America to look towards 
Texas for some answers--Mr. President, this is one issue on which I 
think we ought to follow Texas's example. It works.
  Americans overwhelmingly favor holding managed care plans 
accountable. A Kaiser Family Foundation/Harvard School of Public Health 
survey released in January of this year found that 78 percent of voters 
believe that patients should be able to hold managed care legally 
accountable for malpractice. A poll released in September of 1998 by 
The Wall Street Journal and NBC News revealed that 71 percent of voters 
favor legislation that gives patients the right to hold managed care 
accountable for improper care, even if that might increase premiums--
which studies show it would not.
  Mr. President, it is clear that accountability is the key to 
enforcing patients' rights. A right to emergency room care on a 
``prudent layperson'' standard or a right to specialty care does little 
to protect patients if such care can routinely be delayed or denied. 
Only legal remedies provide adequate protection against managed care's 
biggest abuses. And it's time we embraced those legal remedies. That is 
something about which we should all agree.
  I ask unanimous consent to have articles from the New York Times and 
the Wall Street Journal printed in the Record.
  There being no objection, the articles were ordered to be printed in 
the Record, as follows:

                [From the New York Times, July 11, 1998]

        Hands Tied, Judges Rue Law That Limits H.M.O. Liability

                            (By Robert Pear)

       Washington, July 10--Federal judges around the country, 
     frustrated by cases in which patients denied medical benefits 

[[Page S8545]]

     no right to sue, are urging Congress to consider changes in a 
     1974 law that protects insurance companies and health 
     maintenance organizations against legal attacks.
       In their decisions, the judges do not offer detailed 
     solutions of the type being pushed in Congress by Democrats 
     and some Republicans. But they say their hands are tied by 
     the 1974 law, the Employee Retirement Income Security Act. 
     And they often lament the results, saying the law has not 
     kept pace with changes in health care and the workplace.
       The law, known as Erisa, was adopted mainly because of 
     Congressional concern that corrupt, incompetent pension 
     managers were looting or squandering the money entrusted to 
     them. The law, which also governs health plans covering 125 
     million Americans, sets stringent standards of conduct for 
     the people who run such plans, but severely limits the 
     remedies available to workers.
       In a lawsuit challenging the denial of benefits, a person 
     in an employer-sponsored health plan may recover the benefits 
     in question and can get an injunction clarifying the right to 
     future benefits. But judges have repeatedly held that the law 
     does not allow compensation for lost wages, death or 
     disability, pain and suffering, emotional distress or other 
     harm that a patient suffers as a result of the improper 
     denial of care.
       Congress wanted to encourage employers to provide benefits 
     to workers and therefore established uniform Federal 
     standards, so pension and health plans would not have to 
     comply with a multitude of conflicting state laws and 
       The United States Court of Appeals for the Fifth Circuit, 
     in New Orleans, reached a typical conclusion in a lawsuit by 
     a Louisiana woman whose fetus died after an insurance company 
     refused to approve her hospitalization for a high-risk 
     pregnancy. The woman, Florence B. Corcoran, and her husband 
     sought damages under state law.
       In dismissing the suit, the court said, ``The Corcorans 
     have no remedy, state or Federal, for what may have been a 
     serious mistake.''
       The court said that the harsh result ``would seem to 
     warrant a reevaluation of Erisa so that it can continue to 
     serve its noble purpose of safeguarding the interests of 
       In another case, Judge William G. Young of the Federal 
     District Court in Boston said, ``It is deeply troubling that, 
     in the health insurance context, Erisa has evolved into a 
     shield of immunity which thwarts the legitimate claims of 
     the very people it was designed to protect.''
       Judge Young said he was distressed by ``the failure of 
     Congress to amend a statute that, due to the changing 
     realities of the modern health care system, has gone 
     conspicuously awry,'' leaving many consumers ``without any 
     remedy'' for the wrongful denial of health benefits.
       Disputes over benefits have become common as more employers 
     provide coverage to workers through H.M.O.'s and other types 
     of managed care, which try to rein in costs by controlling 
     the use of services.
       Here are some examples of the ways in which judges have 
     expressed concern:
       Judge John C. Porfilio of the United States Court of 
     Appeals for the 10th Circuit, in Denver, said he was ``moved 
     by the tragic circumstances'' of a woman with leukemia who 
     died after her H.M.O. refused approval for a bone marrow 
     transplant. But, he said, the 1974 law ``gives us no 
     choice,'' and the woman's husband, who had sued for damages, 
     is ``left without a remedy.''
       The United States Court of Appeals for the Eighth Circuit, 
     in St. Louis, said the law protected an H.M.O. against a suit 
     by the family of a Missouri man, Buddy Kuhl, who died after 
     being denied approval for heart surgery recommended by his 
     doctors. ``Modification of Erisa in light of questionable 
     modern insurance practices must be the job of Congress, not 
     the courts,'' said Judge C. Arlen Beam.
       The United States Court of Appeals for the Sixth Circuit, 
     in Cincinnati, said that Federal law barred claims against a 
     ``utilization review'' company that refused to approve 
     psychiatric care for a man who later committed suicide. 
     Because of Erisa, the court said, people who sue an H.M.O. 
     or an insurer for wrongful death ``may be left without a 
     meaningful remedy.''
       Federal District Judge Nathaniel M. Gorton, in Worcester, 
     Mass., said that the husband of a woman who died of breast 
     cancer was ``left without any meaningful remedy'' against an 
     H.M.O. that had refused to authorize treatment.
       Federal District Judge Marvin J. Garbis, in Baltimore, 
     acknowledged that a Maryland man may be left ``without an 
     adequate remedy'' for damages caused by his H.M.O.'s refusal 
     to pay for eye surgery and other necessary treatments. But, 
     Judge Garbis said, whether Erisa should be ``re-examined and 
     reformed in light of modern health care is an issue which 
     must be addressed and resolved by the legislature rather than 
     the courts.''
       The United States Court of Appeals for the Ninth Circuit, 
     in San Francisco, ruled last month that an insurance company 
     did not have to surrender the money it saved by denying care 
     to a Seattle woman, Rhonda Bast, who later died of breast 
       ``This case presents a tragic set of facts,'' Judge David 
     R. Thompson said. But ``without action by Congress, there is 
     nothing we can do to help the Basts and others who may find 
     themselves in this same unfortunate situation.''
       Democrats and some Republicans in Congress are pushing 
     legislation that would make it easier for patients to sue 
     H.M.O.'s and insurance wrong decision, he or she can be sued, 
     said Representative Charlie Norwood, Republican of Georgia, 
     but ``H.M.O.'s are shielded from liability for their 
     decisions by Erisa.''
       Changes in Erisa will not come easily. The Supreme Court 
     has described it as ``an enormously complex and detailed 
     statute'' that carefully balances many powerful competing 
     interests. Few members of Congress understand the intricacies 
     of the law. Insurance companies, employers and Republican 
     leaders strenuously oppose changes, saying that any new 
     liability for H.M.O.'s would increase the cost of employee 
     health benefits.
       Senator Trent Lott of Mississippi, the Republican leader, 
     said today that he had agreed to schedule floor debate on 
     legislation to regulate managed care within the next two 
     weeks. Senator Tom Daschle of South Dakota, the Democratic 
     leader, who had been seeking such a debate said, Mr. Lott's 
     commitment could be ``a very consequential turning point'' if 
     Democrats have a true opportunity to offer their proposals.
       But Senator Don Nickles of Oklahoma, the assistant 
     Republican leader, said, ``Republicans believe that health 
     resources should be used for patient care, not to pay trial 
       Proposals to regulate managed care have become an issue in 
     this year's elections, and the hottest question of all is 
     whether patients should be able to sue their H.M.O.'s. The 
     denial of health benefits means something very different 
     today from what it meant in 1974, when Erisa was passed. At 
     that time, an insured worker would visit the doctor and then 
     if a claim was disallowed, haggle with the insurance company 
     over who should pay. But now, in the era of managed care, 
     treatment itself may be delayed or denied, and this ``can 
     lead to damages far beyond the out-of-pocket cost of the 
     treatment at issue,'' Judge Young said.
       H.M.O.'s have been successfully sued. A California lawyer, 
     Mark O. Hiepler, won a multimillion-dollar jury verdict 
     against an H.M.O. that denied a bone marrow transplant to his 
     sister, Nelene Fox, who later died of breast cancer. But that 
     case was unusual. Mrs. Fox was insured through a local school 
     district, and such ``governmental plans'' are not generally 
     covered by Erisa.
       The primary goal of Erisa was to protect workers, and to 
     that end the law established procedures for settling claim 
       Erisa supersedes any state laws that may ``relate to'' an 
     employee benefit plan. Erisa does not allow damages for the 
     improper denial or processing of claims, and judges have held 
     that the Federal law, in effect, nullifies state laws that 
     allow such damages.

              [From the Wall Street Journal, July 8, 1998]

                Lawsuits Have Little Effect On Premiums

                          (By Laurie McGinley)

       WASHINGTON--Adding fuel to one of the most contentious 
     issues before Congress, a study found that allowing patients 
     to sue their health plans over treatment denials hardly 
     increased premiums.
       Though laced with caveats, the study could have a 
     significant impact on the managed-care debate heating up on 
     Capitol Hill, where a key question is whether injured 
     patients should be permitted to sue their plans for damages. 
     The report, by Coopers & Lybrand for the Kaiser Family 
     Foundation, is the first attempt by an independent group to 
     look closely at the costs associated with litigation. It 
     undercuts assertions by the managed-care industry and 
     employer groups that imposing legal liability on health plans 
     for wrongly denying treatment would send insurance premiums 
       After examining three big health plans for state and local 
     government employees, who already have the right to sue, the 
     study found that the cost of litigation was between three and 
     13 cents a month per enrollee, or 0.03% to 0.11% of premiums.
       ``Coopers found that in these places where patients can 
     sue, very few have and the costs have been rather small,'' 
     said Kaiser Foundation President Drew Altman. He cautioned 
     against drawing strong conclusions from the data. ``These are 
     real-life examples, but you can't necessarily use them to 
     generalize to the whole country.''

                       more cost estimates coming

       The study won't be the last word on the subject. The 
     Congressional Budget Office is working on a cost estimate of 
     a Democratic ``patients' bill of rights'' proposal that 
     includes a managed-care liability provision. And the managed-
     care industry has touted its own study, by the Barents Group, 
     which estimated that the right-to-sue provision could raise 
     premium costs by 2.7% to 8.6%.
       The report came as Senate Democrats fired the opening shot 
     in what is likely to be a protracted struggle over managed-
     care reform. Last night, Minority Leader Tom Daschle of South 
     Dakota tried to attach the Democratic bill to a funding bill 
     for the veterans and housing departments. In response, 
     Majority Leader Trent Lott of Mississippi pulled the bill off 
     the floor. Meanwhile, GOP senators are working on their own, 
     slimmer, managed-care bill.
       The Kaiser report gives the Democrats and their legislative 
     allies, including the American Medical Association, added 
     ammunition on the right-to-sue provision. ``The study strips 
     away the only serious argument against the right to hold 
     health plans accountable that has been made by the opponents 
     of change,'' Sen. Edward Kennedy (D., Mass.) said in a 

[[Page S8546]]

       Richard Smith, vice president for policy at the American 
     Association of Health Plans, which represents more than 1,000 
     managed-care plans, said the study was deficient because it 
     doesn't include the cost of ``defensive medicine''--the 
     provision of services solely to avoid lawsuits. Such 
     practices, he said, would be the ``single largest cost 
     driver'' resulting from the right-to-sue provision.
       Larry Atkins, president of Health Policy Analysts, a 
     Washington consulting group, said that ``it's impossible to 
     assess the real cost'' of liability, but its passage would 
     end managed care's success in curbing health costs.

                         suits in federal court

       Under the 1974 Employee Income Retirement Security Act, 
     injured patients enrolled in employer-sponsored health plans 
     can't sue their plans for damages under state law if they're 
     improperly denied treatment. They are permitted to bring 
     actions in federal court, but if they win they receive only 
     the value of the denied benefit.
       But the law doesn't apply to employees of state and local 
     governments, so Coopers & Lybrand examined the litigation 
     experience of the California Public Employees Retirement 
     System, the Los Angeles Unified School District and the State 
     of Colorado Employee Benefit Plan. Altogether, the three 
     plans cover 1.1 million workers. ``All three programs 
     reported very low rates of litigation ranging from 0.3 to 1.4 
     cases per 100,000 enrollees per year,'' the study said.
       Coopers & Lybrand cautioned that public employees may be 
     less likely to sue than their counterparts in the private 

  The PRESIDING OFFICER. Who yields time?
  Mr. KENNEDY. I yield 3 minutes to the Senator from Nevada.
  The PRESIDING OFFICER. The Senator from Nevada is recognized for 3 
  Mr. REID. Mr. President, our bill that is now being attempted to be 
wiped out as far as liability has not established a right to sue but 
simply says Federal law cannot break what the States say are 
appropriate remedies for patients and families who are harmed.
  Our legislation protects employers against liability.
  I repeat. Our legislation protects employers against liability.
  It allows patients who are harmed by an insurance company's decision 
to deny or delay care to hold their insurance company accountable--not 
their employer.
  There is a lot of talk about the ads that are being run that the 
employers are going to be held responsible. That is absolutely not 
  Under the Republican amendment, if someone dies of cancer because an 
insurer refuses needed tests, all the insurer is responsible for is the 
cost of that test. It may be $20 or $30. That will be the extent of 
liability. Doctors and other health providers can be sued for harm, 
pain, and suffering. Yet health plans that make decisions to deny or 
delay care will continue to be off the hook. Doctors and other health 
providers can be sued, and yet these HMOs continue to be left off the 
  It is ironic that those who defend States rights so much on the floor 
of the Senate obviously don't follow through because they are the 
loudest and the first to use Federal law to protect health insurers 
that injure patients.
  That is another way of saying the insurance industry is being 
protected by the majority.
  Democrats believe insurance companies should be held accountable when 
their decisions lead to injury or death. And our opponents claim that 
isn't the way it should be. They say they should be protected in this 
separate category, as has been pointed out about the foreign diplomat.
  In fact, I repeat what I said earlier this morning. An independent 
study by Coopers & Lybrand, the international accounting firm, found 
that the provision in our bill to hold health plans accountable would 
cost as little as 3 cents per person per month.
  Our legislation is directed toward patients, not profits. Our 
legislation wants to maintain and reestablish the party-physician 
relationship, which the Republican, the majority, have attempted to 
destroy with their protecting of the HMOs.
  The Republican, the majority, bill is an insurance protection bill; 
ours is one that protects patients.
  Mr. GREGG. Mr. President, I note for the Record that the bill 
sponsored by the Democratic side does allow employers to be sued under 
subsection A(302). It says specifically ``shall not preclude any cause 
of action described in paragraph one against employer.''
  Mr. REID. Will the Senator yield?
  Mr. GREGG. Under the Senator's time.
  Mr. REID. If the Senator is accurate in his statement, it would have 
said the only time an employer can be held responsible is when the 
employer is involved directly in a specific case and makes a decision 
that leads to injury or death.
  Of course that is fair. If an employer makes a decision--not the 
employer's HMO, not the employer's doctor, but the doctor himself is 
involved in making a decision that leads to injury or death--that seems 
fair to me.
  Mr. GREGG. Actually, the language says ``discretionary authority,'' 
which is a very broad term.
  I yield the Senator from Oregon 7 minutes.
  The PRESIDING OFFICER (Mrs. Hutchison). The Senator from Oregon.
  Mr. SMITH of Oregon. Madam President, many of the HMOs that Senator 
Reid identifies are self-funded insurance plans that are provided by 
businesses. They certainly are included.
  As Senator Gregg has noted, the language reads ``discretionary 
authority'' which is a very broad term. The potential for liability is 
very great.
  As I speak to my colleagues and the American people today, I simply 
say we have a problem. We are mortals, and no one gets out of this life 
alive. When people die and when they get sick, there are lots of tears. 
We would like to help. Often, as we reach out to help, we look also for 
people to blame for tragedy. There are plenty of people in the legal 
profession to help them find others to blame.
  I stand before the Senate as a member of the bar. But I am not going 
to speak as a member of the bar. I am going to speak as the Senator 
from Oregon and as a member who holds a somewhat unique perspective in 
this Chamber--as a businessman, also as someone who has actually paid 
the health care bills.
  Colleagues, as I have listened to Senator Frist I have been impressed 
by his skill as a physician, his nuances and his understanding of these 
issues and they have been helpful to me. As I watched Senator Edwards 
of North Carolina use his great skill and ability as a trial lawyer to 
make the case for liability, I was also impressed.
  However, there are not many people in this Chamber who have actually 
written the check to provide the health care coverage to their 
employees. My experience before coming to this Senate was as a food 
processor. I provided health insurance to hundreds of employees and 
their families. For nearly 20 years in which I managed that business, I 
saw health care costs rise three, four, even five times the rate of 
inflation. My business was not to provide health care, it was to 
produce food. It was--beyond all others--a cost out of control.
  These people who are writing the checks, trying to live up to the 
promise that we all want in this country for health care, are not the 
enemy. They are trying to do a good job, and to meet the needs of their 
employees. I cannot think of a single thing that would imperil health 
care more in this country than removing the protections provided to 
employers on the issue of liability.
  We are shown all of the terrible situations by the charts shown in 
this Chamber. But I say to you, I have a heart, too. I would like to 
help. But I also know that when you deal with an inflationary cost such 
as medicine, sometimes you don't have the ability--particularly in 
agriculture--to pass those costs on in the price of your product. So 
when you add on top of that the potential cost of liability, I fear 
that employers will not be able to bear it and will turn that benefit 
into cash for their employees and simply say to employees--you will 
have to buy it yourself.
  But people don't have the ability to buy health care coverage as 
individuals as well as when they are pooled in employer groups. I 
support employer-provided health care. I think we are imperiling it if 
we remove the protections provided to employers by ERISA.
  Now, employer-provided health care has an interesting origin in our 
country. It was very rare prior to World War II when we put on wage and 
price controls but did not limit the ability of businesses and labor to 
bargain for benefits. When the men went off to war, businesses reached 
out to many of the

[[Page S8547]]

women. They could not offer them a higher wage, so they offered them 
the benefit of health care. Then businesses began to do this more and 
more, and it became the subject of collective bargaining under Taft-
Hartley and other labor provisions. By the 1970s, nearly three quarters 
of the American people were covered by employer-provided health care 

  Congress wanted to go further. In fact, it was a Democratic Congress 
in 1974 that produced the protection called ERISA to further induce and 
incentivize businesses to expand in a multistate way to provide health 
  Folks, it has worked. Right now the frustrating thing to me is, as we 
try to legislate, we inevitably have to draw lines and make decisions.
  We once were in the position in the State of Oregon of figuring out 
how best to allocate Medicaid resources. We don't like to have 
uninsured people in our State; we want them to be insured. Our current 
Governor's name is John Kitzhaber. He is a medical doctor; he is an 
emergency room physician. He is a Democrat. He came to the Federal 
Government, along with many on the Republican side, and said: Let's 
take this Cadillac plan for a few and essentially turn it into a 
Chevrolet plan for many.
  So we got a waiver. Instead of rationing medicine through waiting 
lines and price, we did it upfront by saying: These are the health care 
procedures that are available.
  The Vice President, Al Gore, and others referred to our Governor 
sometimes in very disparaging terms. He was even called ``Doctor 
Death'' by the media. But he had the courage, and many with him, to 
make decisions that were tough.
  So when we see the pictures and the charts, I say to you that I have 
been there, I have seen and lived them before. My heart strings are 
pulled by those, too. But I also know that we don't help them by 
increasing health care costs--we uninsure them.
  What we are debating, really, is where to draw the line, how to make 
health care more affordable to more people. The last thing in the world 
we should be doing is so disincentivizing the ability of small 
businesses to afford health care that they will simply turn it into 
  I ask unanimous consent to have printed in the Record a letter on 
behalf of the National Grocers Association.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                  National Grocers Association

                                         Reston, VA, July 9, 1999.
     Hon. Gordon H. Smith,
     U.S. Senate,
     Washington, DC.
       Dear Senator Smith: On behalf of independent retail and 
     wholesale grocers nationwide, I am writing to express our 
     strong opposition to legislation that allows employers to be 
     sued for health plan decisions or that modify or eliminate 
     ERISA preemption of state regulation. The National Grocers 
     Association (N.G.A.) is the national trade association 
     representing retail and wholesale grocers who comprise the 
     independent sector of the food distribution industry. This 
     industry segment accounts for nearly half of all grocery 
     sales in the United States.
       Under current law, the Employee Retirement Income Security 
     Act (ERISA) supersedes all state laws concerning employee 
     benefits. This means that states cannot regulate or tax 
     employer health and welfare plans, and beneficiaries may not 
     sue plans or employers for violations of state law. The 
     purpose of ERISA preemption of state law is to encourage 
     businesses to offer health insurance to their employees by 
     guaranteeing a uniform national regulatory system and 
     limiting liability. It has served this purpose extremely 
       Elimination of the ERISA preemption would subject companies 
     in the food distribution industry to a patchwork of new 
     regulations in the states in which they operate, and expose 
     them to a new class of possible lawsuits in each of those 
     states. Plans would be forced to cover treatments to avoid 
     litigation, thereby driving up the cost of offering health 
     insurance. There is tremendous concern that the new costs 
     associated with removing the ERISA preemption could cause 
     many businesses to stop offering health insurance to their 
       Again, I urge you to oppose legislation to modify or 
     eliminate the ERISA preemption thereby increasing the cost of 
     health care while expanding employer liability. Thank you in 
     advance for your consideration of our concerns.
                                                 Thomas K. Zaucha,
                                                President and CEO.

  Mr. SMITH of Oregon. The letter talks about how many small grocers, 
as many in business, simply will not be in a position to bear this 
additional burden.
  I ask Members to understand, we are talking about a very significant 
thing. It is not just about price; it is about the ability to 
participate, and to continue providing health insurance to the working 
men and women of this country. I ask my colleagues to vote against 
expanding liability and in support of the Gregg amendment.
  Mr. KENNEDY. Madam President, I yield myself 5 minutes. Do we have 9 
minutes left? Please let me know when 4 minutes are up.
  Madam President, statements have been made here to the effect that we 
should not let this process go forward. Statements have been made that 
this is basically a Democratic initiative, a partisan issue. We have 
claimed it is an issue of fundamental justice.
  Let me quote Frank Keating, the Republican Governor of Oklahoma, a 
man who was so respected in his own party that he was elected chairman 
of the Republican Governors' Association. According to an Oklahoma 
newspaper, in an interview with Keating, Keating sided with 
congressional Democrats. He said health maintenance organizations 
should be open to lawsuits if they are grossly negligent. Keating said 
his oldest daughter had a heart defect since birth, but that the 
gatekeeper at her health maintenance organization in Texas told her she 
did not need to see a cardiologist. Keating said he made a call to a 
top aide to Texas Governor George W. Bush to get some action. He said 
he realized other people might not be able to pull such strings.
  That is what a Republican Governor has said is the reality in real 
  We see it in the Federal courts. I will have printed in the Record a 
series of statements from judges who are seeing these cases. Let me 
read one by Federal Judge William Young, a longtime Republican, who, 
incidentally, was appointed to the bench by President Ronald Reagan. He 
said that disturbing to this court is the failure of Congress to amend 
a statute that, due to the changing realities of the modern health care 
system, has gone conspicuously awry from its original sense. This court 
has no choice but to pluck the case out of State court and then, at the 
behest of the insurance company, slam the courthouse door in the wife's 
face and leave her without any remedy.
  Judge Young came down here and urged us to include this particular 
provision in our legislation because of what he has seen occur in the 
Federal courts.
  I could read instance after instance. Judge Spencer Letts has a long 
statement about this as well. He said that it is not just the parents. 
They are the most powerful voices, but it is the judges who are 
appalled at the inequity and outrageous injustice that is taking place 
in the Federal courts all over this country, and it is wrong.
  Most Americans would be shocked to know that HMOs enjoy immunity from 
suits. If a doctor fails to treat a patient with cancer correctly and 
if the patient dies, you can sue the doctor for malpractice. But if a 
managed care company decides to pinch pennies and overrule the doctor's 
recommendations on treating the patient and the patient dies, the 
insurance company is immune from responsibility. No other industry in 
America enjoys this immunity from the consequences of its actions. The 
HMOs do not deserve it. On this life-and-death decision, immunity from 
responsibility is literally a license to kill.
  Madam President, we ought to at least leave this matter up to the 
States, not preempt the States.
  I want to say the strongest supporters of this provision are the 
doctors. The reason the doctors are the strongest advocates of this 
position is because they are sick and tired of having their medical 
recommendations overruled by HMOs. That is the basic justification.
  Ultimately, it is basic fairness to the individual who may be harmed. 
The provision ultimately improves the quality of care by ensuring their 
accountability. Finally, we have the doctors themselves pleading, 
pleading, pleading for Congress to act.
  The American Medical Association has indicated its strong support in 
a letter. I ask unanimous consent to have that printed in the Record as 

[[Page S8548]]

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

                                 American Medical Association,

                                        Chicago, Il, July 8, 1999.
     Hon. Edward M. Kennedy,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
       Dear Senator Kennedy: On behalf of the 300,000 physician 
     and student members of the American Medical Association 
     (AMA), we are pleased that the Senate has agreed to begin 
     debate on patient protection legislation. Bipartisan 
     enactment of comprehensive legislation in this area is 
     urgently needed.

                           *   *   *   *   *

       This bill should remedy the inequity that results from 
     health plans' ability to routinely make medical decisions 
     while remaining unaccountable for the injuries they cause. 
     Health plans duplicitously argue that they should make 
     medical necessity decisions and control utilization review 
     and appeals processes while stating that they want to be 
     protected by ERISA preemption. By not removing that immunity, 
     this bill would fail to hold those health plans accountable. 
     Presently, 125 million enrollees participate in ERISA-covered 
     health plans, and despite state legislative initiatives to 
     provide adequate legal remedies, those enrollees are all 
     without effective legal recourse against their health plans. 
     This is an issue of fundamental fairness. The AMA firmly 
     believes that Americans covered by ERISA plans must have the 
     same right of redress as those who are covered by non-ERISA 
     plans. We therefore request that S. 326 be amended to remove 
     ERISA preemption for health plans.

                           *   *   *   *   *

       In conclusion, the AMA appreciates the Senate's efforts to 
     adopt legislation that would promote fairness in managed 
     care. We urge you to join us in advancing patients' rights by 
     strengthening the ``Patients' Bill of Rights Act,'' S. 326, 
     to guarantee all patients these essential protections.
                                   E. Ratcliffe Anderson, Jr., MD.

  Madam President, I hope this amendment will be defeated and that we 
let the States make the final judgment. They ought to be the ones who 
make the decision about protecting their own citizens. On this issue, 
it should not be the Federal Government or the Senate preempting and 
denying States the opportunity to protect their citizens.
  How much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 4 minutes and 29 seconds.
  Mr. KENNEDY. I yield 2 minutes on the bill to the Senator from 
  The PRESIDING OFFICER. The Senator from California is recognized for 
2 minutes.
  Mrs. BOXER. Madam President, I thank Senator Kennedy for his 
incredible leadership on this issue.
  Last night, I said the score was 8 to 0; it was 8 for the HMOs, 
patients nothing. I think this amendment is worth 2 points, so it will 
either be 10 to nothing or 8 to 2.
  Let me tell you why I think this amendment is so important. If this 
amendment is agreed to and the HMOs cannot be held accountable in a 
court of law, it means that if they kill you, if they maim you, if they 
hurt you or your family or your children due to callous and uncaring 
bureaucrats, they cannot be held accountable. We set no new Federal 
cause of action. We simply say if the States believe it is right--such 
as Texas decided it was--then they can allow these lawsuits to proceed.
  Let me tell you about an emergency room physician I met. He came 
before the Congress. He told a harrowing tale of a man who was brought 
into the emergency room with uncontrollable blood pressure. The doctor 
tried everything. Finally, by administering drugs through an IV, he was 
able to control the pressure. He felt the man needed to stay in the 
hospital at least overnight. He called the HMO. The HMO said, 
``Absolutely not. Give the man his medication and send him home.''
  The doctor begged. The doctor cajoled. The HMO was unrelenting. The 
doctor went to the patient. He said, ``Your HMO will not allow you to 
stay here, sir, but I strongly advise you to stay here.''
  The patient said, ``What will it cost?"
  The doctor said, ``About $5,000.''
  This gentleman started laughing. He said: I don't have $5,000. I have 
a family. I have to go home. I have a job. I am sure my HMO would never 
do this to me, would never put me in danger. If they say I can have the 
drugs, give me the drugs, and I will go home.
  The doctor could not prevail with the gentleman. The gentleman went 
home and had a stroke. He is now paralyzed on one side of his body.
  I ask for an additional 30 seconds on the bill.
  Mr. KENNEDY. I yield 30 more seconds.
  The PRESIDING OFFICER. The Senator is recognized for 30 seconds.
  Mrs. BOXER. So now what happens? This man is paralyzed for life. Oh, 
he could sue the doctor, that good doctor who begged the HMO. Yes, he 
could sue the hospital. The hospital had nothing to do with it.
  I am saying to my friends on the other side of the aisle, you are 
always talking about States rights. We come in here and get lectured 
every day. All this amendment, under the underlying bill, says is, if a 
State decides to allow their people the right to sue a callous, 
uncaring, and negligent HMO, as Texas decided to do and other States 
did, let them do it.
  I hope this amendment will be defeated. Remember, it is worth 2 
  Mr. NICKLES. Madam President, I ask that the Senator from New 
Hampshire yield me 1 minute.
  Mr. GREGG. I yield the Senator from Oklahoma 1 minute.
  Mr. NICKLES. Madam President, I ask unanimous consent to have printed 
in the Record a letter from the Republican Governors Association, 
signed by Governor Keating from Oklahoma, Ed Schafer, Governor of North 
Dakota, and Don Sundquist, Governor of Tennessee, all urging us to 
defeat the Kennedy bill.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                             Republican Governors Association,

                                    Washington, DC, July 14, 1999.
     Hon. Don Nickles,
     Assistant Majority Leader, U.S. Senate, U.S. Capitol, 
         Washington, DC.
       Dear Senator Nickles: As Congress begins debate on managed 
     care reform legislation, we would like to emphasize our 
     confidence in states' achievements in managed care and ask 
     that any legislation you consider preserve state authority 
     and innovation. We applaud the Republican Leadership's 
     efforts to complement the states' reforms by expanding 
     managed care protections to self-insured plans without 
     preempting state authority.
       Historically, regulating private insurance has been the 
     responsibility of the states. Many, if not all of the ideas 
     under consideration now in Congress, have been considered by 
     states. Because the saturation of managed care is different 
     throughout the nation, each state has its own unique issues 
     relative to its market place. We have concerns about the 
     unintended consequences of imposing one-size-fits-all 
     standards on states which could result in increasing the 
     number of uninsured and increasing health care costs.
       As Governors, we have taken the reports of abuses in 
     managed care seriously and have addressed specific areas of 
     importance to our citizens. As you know, some analysts 
     estimate that private health insurance premiums could grow 
     from the current 6 percent to double-digit increases later 
     this year. This does not include the costs of any new federal 
     mandates. Health resources are limited.
       We hope the Congress' well-intended efforts take into 
     account the states' successful and historical role in 
     regulating health insurance.
     Frank Keating,
       Governor of Oklahoma, Chairman.
     Ed Schafer,
       Governor of North Dakota, Vice Chairman.
     Don Sundquist,
       Governor of Tennessee, Chairman, RGA Health Care Issue 

  Mr. NICKLES. I want to be clear. The Governors do not want us 
micromanaging their health care. The Governors, frankly, do not want us 
driving up health care costs. The Governors do not want to have a bill 
that is not really for patients rights, but rather for trial lawyers' 
rights. It would be great for lawsuits, but it would be terrible for 
health care. It basically would have people dropping health care all 
across the country because, not only do you sue HMOs, but you sue 
employers as well. Maybe many people have missed that part of the 
  The Kennedy bill says, let's sue employers. If your health care is 
not good enough, sue your employers. The employers say: We do not have 
to provide health care; we are going to drop it. Employees, I hope you 
take care of it on your own. If you want to increase the number of 
uninsured, pass the Kennedy bill. This amendment would strike the 
provision. I think it would be very positive for health care in 
  Mr. GREGG. I yield, off the bill, to the Senator from Pennsylvania, 3 

[[Page S8549]]

  The PRESIDING OFFICER. The Senator from Pennsylvania has 3 minutes 
off the bill.
  Mr. SANTORUM. Madam President, I thank the Senator from New 
Hampshire. Many have said that you cannot sue your HMO. There are three 
Federal Circuit Court cases and 12 Federal District Court cases that 
have said ERISA does not preempt State law when you want to sue your 
HMO for malpractice.
  I ask unanimous consent to have this list printed in the Record.
  There being no objection, the list was ordered to be printed in the 
Record, as follows:

          ERISA Is Not a Barrier to HMO Malpractice Liability

       The key argument made time and again by sponsors of the 
     Kennedy unfunded mandates bill is that we need expanded 
     liability because managed care companies are shielded from 
     being held accountable for malpractice by the federal ERISA 
     (Employee Retirement Income Security Act).
       The fact is that in at least 15 cases since 1995, federal 
     circuit and district courts have ruled that ERISA does not 
     shield an HMO from being sued for medical malpractice.
     Federal circuit court
       In Dukes (1995), the third circuit court held that ERISA 
     did not preempt Pennsylvania state law on medical negligence 
     action involving an HMO.
       In Pacificare (1995), the tenth circuit court held that 
     ERISA did not preempt Oklahoma state law, stating, ``just as 
     ERISA does not preempt the malpractice claims against the 
     doctor, it should not preempt the vicarious liability claim 
     against the HMO . . .''
       In Rice (1995), the seventh circuit court held that ERISA 
     did not preempt Illinois state law medical malpractice 
     Federal district court
       In Henderson (1997), the court rejected claims of ERISA 
     preemption in a malpractice case against an HMO, its 
     hospitals, and treating professionals and settlement for $5 
     million was reached shortly thereafter.
       In Prihoda (1996), the court held that ERISA did not 
     preempt vicarious liability of an HMO.
       In Kampmeier (1996), the court held that ERISA did not 
     preempt Pennsylvania state law claim for medical negligence.
       In Quellette (1996), the court held that ERISA did not 
     preempt Ohio state law claim for medical negligence.
       In Roessert (1996), the court held that ERISA did not 
     preempt California state law for negligence.
       In Fritts (1996), the court held that ERISA did not preempt 
     Michigan state law for medical negligence.
       In Lancaster (1997), the court held that ERISA did not 
     preempt Virginia state law medical negligence claim.
       In Blum (1997), the court held that ERISA did not preempt 
     Texas malpractice claim against an HMO.
       In Edelen (1996), the court held that ERISA did not preempt 
     District of Columbia law in malpractice action against an 
       In Prudential (1996), the court held that ERISA did not 
     preempt Oklahoma malpractice law in an HMO case.
       In Ravenell (1995), the court held that ERISA did not 
     preempt Texas malpractice law in an HMO case.
     State court decisions
       In Pappas (1996), Pennsylvania Superior Court held that 
     medical malpractice action against an HMO was not preempted 
     by ERISA.
       In Naseimento, Massachusetts Superior Court held that ERISA 
     did not preempt liability of an HMO, and a jury awarded $1.4 

  Mr. SANTORUM. So the issue is not whether you can sue your HMO. That 
is not why we are so adamantly against the provision in the Kennedy 
bill. It is not to be able to sue your HMO. I do not have any problem 
with your being able to sue your HMO. What I do have a problem with is 
what this bill does; it allows you to sue your employer. It allows you 
to sue the employer for a decision made by an HMO, by an insurance 
company. What will that mean?
  You heard the Senator from Oregon, who is a small business owner, 
say--and, by the way, I have talked to dozens of employers who have 
said this:
  If you are going to open up the books of my corporation--I make 
widgets or I make steel or I make desks or I make pencils--you are 
going to open up my books for my employees to sue me for a decision my 
insurance company, that I hired, made. I cannot afford it. I am not in 
the business of health care. I am not managing these health care 
decisions. I hired someone to do that, but I am going to get sued for 
their decisions? Sorry, as much as I would love to provide group health 
insurance to you, I cannot allow the corporation--our corporation, our 
effort--to be jeopardized by a decision made by someone outside of what 
I do.
  I cannot let it happen. They will drop their insurance. I ask for 30 
additional seconds.
  Mr. GREGG. I yield the Senator 30 seconds.
  Mr. SANTORUM. Who will be the first person, once these employers drop 
their insurance as a result of this bill, to run to the Senate floor 
and say: These nasty employers, look at them; they are dropping their 
insurance; we need the Government to take over the health care system?
  Yes, the Senator from Massachusetts would be the first person on the 
Senate floor calling for a Government health care system.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Madam President, I ask unanimous consent that 23 cases 
emphasizing ERISA's limitations, Federal cases from most every circuit 
plus various State courts around the country, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              Court Cases Emphasizing ERISA's Limitations

                     a. federal appellate decisions

     1. Bedrick v. Travelers Insurance Company (4th Cir. 1996) 93 
         F.3d 149
       Ethan Bedrick was born with severe cerebral palsy and 
     required speech therapy and physical therapy to prevent 
     contraction of his muscle tissues. In April of 1993, 
     Travelers Insurance Company terminated the speech therapy and 
     severely restricted physical therapy when Ethan was 14 months 
     old. When Ethan's father threatened to sue, the insurance 
     company reviewed the decision. The insurance company 
     concluded, without updating Ethan's file or consulting with 
     his physicians, that intensive physical therapy would not 
     result in what the insurance company described as 
     ``significant progress'' for Ethan.
       In its ruling in 1996, the Fourth Circuit held that 
     Travelers' decision was arbitrary and capricious because the 
     opinions of their medical experts were unfounded and tainted 
     by conflict. The court observed that neither the insurance 
     plan nor the company's internal guidelines required 
     ``significant progress'' as a precondition to providing 
     medically necessary benefits. ``It is as important not to get 
     worse as to get better'', the court noted. The court noted 
     that ``the implication taht walking by age five. . . would 
     not be `significant progress' for this unfortunate child is 
     simply revolting.'' (page 153)
       ERISA left the Bedricks with no remedy to compensate Ethan 
     for the developmental progress he lost during the three years 
     and more that his parents had to litigate the benefit denial 
     by Travelers. The Bedricks' state law causes of action were 
     eliminated due to ERISA.
     2. Corcoran v. United Healthcare, Inc. (5th Cir. 1992) 965 
         F.2d 1321
       Mrs. Corcoran was in an employer-sponsored health plan 
     using Blue Cross as administrator and United Health Care 
     handling utilization review. Mrs. Corcoran was pregnant and 
     had a history of pregnancy-related problems. Although her own 
     doctor recommended hospitalization, United Health Care denied 
     that hospitalization was medically necessary and did not pre-
     certify a hospital stay. Instead, 10 hours of daily in-home 
     nursing care were authorized. When the nurse was not on duty, 
     the fetus developed problems and died. The Corcorans had no 
     remedy for damages against United under ERISA. The Corcorans' 
     claim for state damages were eliminated due to ERISA.
       The court noted: ``The result ERISA compels us to reach 
     means that the Corcorans have no remedy, state or federal, 
     for what may have been a serious mistake. This is troubling 
     for several reasons. First, it eliminates an important check 
     on the thousands of medical decisions routinely made in the 
     burgeoning utilization review system . . . Moreover, if the 
     cost of compliance with a standard of care (reflected either 
     in the cost of prevention or the cost of paying judgements) 
     need not be factored into utilization review companies' cost 
     of doing business, bad medical judgements will end up being 
     cost-free to the plans that rely on these companies to 
     contain medical costs. ERISA plans, in turn will have one 
     less incentive to seek out the companies than can deliver 
     both high quality services and reasonable prices'' (page 
     3. Cannon v. Group Health Services of Oklahoma, Inc. (10th 
         Cir. 1996) 77 F.3d 1270
       Ms. Cannon was diagnosed with elobastic leukemia. She 
     received chemotherapy treatments, and her leukemia went into 
     remission. Subsequently, her insurer amended her policy to 
     state that preauthorization would be denied for an autologous 
     bone marrow treatment if sought after the first remission.
       Ms. Cannon's doctor recommended an autologous bone marrow 
     treatment and requested preauthorization from the insurer. 
     When the insurer denied the treatment as experimental, the 
     doctors made a second request which was also denied. Through 
     persistence by the doctor and Ms. Cannon, the insurer 
     reversed its decision and authorized the treatment 
     approximately seven weeks after the first request was made. 
     It was not until 18 days after the decision to authorize the 
     treatment was made that Ms. Cannon

[[Page S8550]]

     learned of the reversal. Two days after notification, she was 
     admitted to the hospital and died the following month.
       Ms. Cannon's surviving spouse brought several state law 
     claims. The court held that the state law causes of action 
     were preempted due to ERISA and that there was no remedy 
     under ERISA for the delay in receiving the authorization. The 
     court apologized for the result and wrote ``although we are 
     moved by the tragic circumstances of this case and the 
     seemingly needless loss of life that resulted, we conclude 
     the law gives us no choice but to affirm'' (page 1271).
     4. Jass v. Prudential Health Care Plan, Inc. (7th Cir. 1996) 
         88 F.3d 1482
       Ms. Jass was in an employer-sponsored health plan using 
     Prudential Health Care Plan to administer the plan. She had 
     complete knee replacement surgery. A utilization review 
     administrator for Prudential determined that it was not 
     necessary for Ms. Jass to receive a course of physical 
     therapy following the surgery to rehabilitate the knee.
       Ms. Jass claimed that her discharge from the hospital was 
     premature since she had not received required rehabilitation 
     and she had permanent injury to her knee.
       Ms. Jass had no damages remedy against either the 
     utilization review administrator or Prudential under ERISA. 
     The court found that ERISA preempted any state claim against 
     Prudential for vicarious liability for the doctor's alleged 
     negligence in connection with the denial of rehabilitation.
     5. Comer v. Kaiser Foundation Health Plan (9th Cir. 1994) 
         1994 U.S. App. LEXIS 27358, 1994 WL 718871
       Although Ryan Comer had been diagnosed with an unusual form 
     of pediatric cancer, Kaiser denied coverage for high-dose 
     chemotherapy and denied authorization for an autologous bone 
     marrow transplant. Ryan subsequently died.
       Ryan's parents' state wrongful death action was preempted 
     by ERISA. Ryan's parents had no damage remedy available to 
     them under ERISA.
     6. Kuhl v. Lincoln National Health Plan of Kansas City, Inc. 
         (8th Cir. 1993) 999 F.2d 298
       Mr. Kuhl had a heart attack. His doctor decided on June 20, 
     1999 that he required specialized heart surgery. Because the 
     hospitals in his town did not have the necessary equipment 
     for such surgery, the doctor arranged for the surgery to be 
     performed in St. Louis at Barnes Hospital.
       When Barnes Hospital requested precertification for the 
     surgery, the utilization review coordinator at Mr. Kuhl's HMO 
     refused to precertify the surgery because the St. Louis 
     hospital was outside the HMO service area. Accordingly, the 
     surgery scheduled for July 6 was canceled. The HMO instead 
     sent Mr. Kuhl to another Kansas City doctor on July 6 to 
     determine whether the surgery could be performed in Kansas 
     City. That doctor agreed with the first doctor that the 
     surgery should be performed at Barnes Hospital. Two weeks 
     later, the HMO agreed to pay for surgery at Barnes Hospital. 
     By then, the surgery could not be scheduled until September.
       When the doctor at Barnes Hospital examined Mr. Kuhl on 
     September 2, Mr. Kuhl's heart had deteriorated so much that 
     surgery was no longer a possibility. Instead, he needed a 
     heart transplant. Although the HMO refused to pay for an 
     evaluation for a heart transplant, Mr. Kuhl managed to be 
     placed on the transplant waiting list at Barnes. Mr. Kuhl 
     died waiting for a transplant.
       The survivors of Mr. Kuhl have no damages remedy against 
     the HMO under ERISA. Mr. Kuhl's survivors' state law causes 
     of action were eliminated due to ERISA.
     7. Spain v. Aetna Life Insurance Co. (9th Cir. 1993) 11 F.3d 
         129, cert. denied (1994)
       Mr. Spain was diagnosed with testicular cancer. The 
     recommended course of treatment was three-part procedure 
     which had to occur in a short time period. Although Aetna 
     initially approved the treatment, Aetna withdrew its approval 
     prior to the third part of the procedure.
       While Aetna ultimately changed its position and authorized 
     the third part of the procedure, it was not authorized until 
     it was too late to be effective. Mr. Spain died. There are no 
     damage remedies against Aetna under ERISA. Mr. Spain's 
     survivors' state law causes of action were eliminated due to 
     8. Settles v. Golden Rule Insurance Co. (10th Cir. 1991) 927 
         F.2d 505
       Mr. Settles was in an employee-sponsored health plan. The 
     employer paid a monthly premium to Golden Rule and the 
     employer was required to give written notice to the insurer 
     in advance of terminating Mr. Settles' coverage. On October 
     24, the insurer notified Mr. Settles by a letter that it had 
     terminated his insurance unilaterally. That same day Mr. 
     Settles suffered a heart attack and he died five days later.
       The widow sued Golden Rule in state court alleging that the 
     death of her husband was caused proximately by the insurer's 
     unilateral decision to terminate his insurance. The court 
     ruled that ERISA preempted her state claims. ERISA does not 
     provide a damage remedy for her losses.

                  B. Federal District Court Decisions

     9. Wurzbacher v. Prudential Insurance Co. of America (E. 
         Dist. Ky. January 27, 1998)
       Mr. Wurzbacher received monthly injections of leupron as 
     treatment for his prostate cancer. Under his retiree health 
     plan, the treatment was fully covered (paid 100% of the $500 
     charge) and paid for. When Prudential took over as the plan 
     administrator, it changed the coverage stating the plan would 
     now only over 80% of $400 ($320) of the $500 charge for each 
     injection. Since Mr. Wurzbacher could not afford to pay the 
     additional $180, he asked his physician for alternatives. In 
     light of the aggressiveness of the cancer, the doctor said 
     the only alternative was castration. The request was approved 
     by Prudential and he was castrated.
       When he returned home, he found a letter from Prudential 
     notifying him that it had made a mistake and that the plan 
     would pay the full $500 for the monthly leupron injection.
       The court held that the Wurzbachers' claims for state 
     damages were eliminated due to ERISA. Neither Mr. Wurzbacher 
     nor his spouse have a damage remedy under ERISA for alleged 
     negligence by Prudential in denying the claim.
     10. Andrews-Clarke v. Travelers Insurance Co. (D. Mass. Oct. 
         30, 1997) 21 EBC 2137, 1997 WL 677932
       Richard Clarke's health plan covered at least one 30-day 
     inpatient rehabilitation program per year when necessary. 
     Travelers refused to approve Richard's enrollment in a 30-day 
     inpatient alcohol rehabilitation program. Instead it approved 
     two separate brief (five and eight days, respectively) 
     hospital stays. Within 24 hours after the second hospital 
     stay, Richard attempted suicide in the garage with the car 
     engine running while he consumed a combination of alcohol, 
     cocaine, and prescription drugs. His wife discovered him by 
     breaking through the garage door. Mr. Clarke was taken to the 
     hospital where he was treated for carbon monoxide poisoning.
       At his mental commitment proceeding, the court ordered Mr. 
     Clarke to participate in a 30 day detoxification and 
     rehabilitation program following his release from the 
     hospital. Travelers ``incredibly refused'' to authorize 
     admission under his plan. Instead, for his detoxification and 
     rehabilitation, Mr. Clarke was sent to a correctional center, 
     where he was forcibly raped and sodomized by another inmate. 
     He received little therapy or treatment at the correction 
     center. Following his release, he went on a prolonged, three-
     week drinking binge. He was hospitalized overnight with 
     respiratory failure. After his release from the hospital, he 
     began drinking again. He was found the following morning dead 
     in his car, with a garden hose running from the tailpipe into 
     the passenger compartment.
       Mr. Clarke's widow and four minor children sued Travelers 
     and its utilization review provider under state law. ERISA 
     was held to preempt all of these and to provide no remedy. 
     The Court noted that ``the tragic events set forth in Diane 
     Andrews-Clarke's Complaint cry out for relief'' (p. 2140) and 
     ``Under traditional notions of justice, the harms alleged--if 
     true--should entitle Diane Andrews-Clarke to some legal 
     remedy on behalf of herself and her children against 
     Travelers and Greenspring. Consider just one of her claims--
     breach of contract. This cause of action--that contractual 
     promises can be enforced in the courts--pre-dates the Magna 
     Carta'' (p. 2141).
       But the Court also noted: ``Nevertheless, this Court has no 
     choice but of pluck David Andrews-Clarke's case out of the 
     state court in which she sought redress (and where relief to 
     other litigants is available) and then, at the behest of 
     Travelers and Greenspring, to slam the courthouse doors in 
     her face and leave her without any remedy'' (p. 2141).
       In discussing the need for ERISA reform the Court was quite 
       ``This case, thus, becomes yet another illustration of the 
     glaring need for Congress to amend ERISA to account for the 
     changing realities of the modern health care system'' (pp. 
       ``It is therefore deeply troubling that, in the health 
     insurance context, ERISA has evolved into a shield of 
     immunity which thwarts the legitimate claims of the very 
     people it was designed to protect. What went wrong?'' (p. 
       ``The shield of near absolute immunity now provided by 
     ERISA simply cannot be justified'' (p. 2151).
       The Court, recognizing ``the perverse outcome generated by 
     ERISA in this particular case,'' called upon Congress for 
     11. Thomas-Wilson v. Keystone Health Plan East HMO (E.D. PA 
         1997) 1997 U.S. District court LEXIS 454, 1997 WL 27097
       In May of 1995, Ms. Thomas-Wilson was diagnosed with Lyme 
     disease. She began receiving intravenous antibiotic treatment 
     on June 6, 1995, which the HMO covered. In August of that 
     year, the HMO denied continuation of that treatment. Since 
     she could not afford to pay herself for the treatments, she 
     stopped receiving them and her condition worsened. She could 
     not work or perform household duties. Her neck and back pain 
     became so severe and persistent that she needed a full-time 
       From September through December of 1995, the HMO required 
     her to undergo extensive testing to determine if she had Lyme 
     disease. In December of 1995, the HMO reinstated coverage for 
     the intravenous antibiotic treatment.
       Ms. Thomas-Wilson filed suit alleging that she became 
     severely disabled and endured great pain, suffering, 
     depression, and changes in personality as a result of the 
     interruption of her treatment.
       The court found that Ms. Thomas-Wilson's and her spouse's 
     state tort claims against

[[Page S8551]]

     the HMO were preempted by ERISA. There was no damage remedy 
     available under ERISA.
     12. Turner v. Fallon Community Health Plan Inc. (D. Mass. 
         1997) 953 F. Supp. 419
       Mrs. Turner's HMO refused to authorize cancer treatment. 
     She died. Mr. Turner sued his spouse's HMO for allegedly 
     causing her death by refusing to authorize treatment.
       The court held that, even assuming there had been a 
     wrongful refusal to provide the treatment to Mrs. Turner, her 
     surviving spouse's state claims were preempted by ERISA. Mr. 
     Turner has no damage remedy available under ERISA.
     13. Foster v. Blue cross and Blue Shield of Michigan (E.D. 
         Mich. 1997) 969 F. Supp. 1020
       Mrs. Foster was diagnosed with breast cancer and Blue cross 
     refused to approve the treatment prescribed of high dose 
     chemotherapy with peripheral cell rescue and autologous bone 
     marrow transplantation. Because of this denial, Shelly Foster 
     did not receive the treatment and died. The court, noting 
     that this was a ``harsh result,'' held that the claims of her 
     spouse for breach of contract, bad faith and infliction of 
     emotional distress, negligent misrepresentation and fraud, 
     and wrongful death, as well as any claim under the Michigan 
     civil rights statute, were all preempted by ERISA. Mr. Foster 
     had no damage remedy under ERISA.
     14. Smith v. Prudential Health care Plan, Inc. (E.D. Pa. 
         1997) 1997 WL 587340
       Mr. Smith's contract with Prudential through the PAA Trust 
     required pre-authorization for medical treatment before 
     insurance coverage would be provided. After Mr. Smith injured 
     his leg in an automobile accident on January 18, 1995, he 
     needed surgery to reduce his heelbone. When no doctor 
     participating in the Prudential HMO was available, Mr. Smith 
     found a qualified out-of-network doctor to perform the 
     surgery. Prudential would not authorize the surgery since 
     ``surgical correction is no longer possible.'' Mr. Smith 
     filed a state action for breach of contract, negligence, and 
     negligent performance of contract. The court ruled that 
     plaintiff's claims were preempted by ERISA. Mr. Smith has no 
     remedy under ERISA.
     15. Udoni v. The Department Store Division of Dayton Hudson 
         Corporation (N.D. Ill. 1996) 1996 U.S. Dist. LEXIS 8282, 
         1996 WL 332717
       Mrs. Udoni's bone deterioration in her facial bones, caused 
     by osteoporosis, prevented her from eating food. Her bone 
     deterioration caused numerous other problems. Her doctors had 
     to replace her facial bones with bones from her hip.
       Under Mrs. Udoni's medical plan, medical conditions were 
     fully covered but treatments to correct conditions of the 
     teeth, mouth, jaw joints were excluded. The plan's 
     administrator classified Mrs. Udoni's operation as ``dental'' 
     and denied coverage for surgery.
       The court ruled the interpretation of the plan was 
     arbitrary and capricious. The physicians had provided 
     evidence repeatedly explaining the medical necessity and 
     classification of her specific surgery. Recognizing that to 
     remand the case to the administrator would be futile in light 
     of its ``continued refusals to consider (or even acknowledge) 
     substantial evidence of the merits'' of Mrs. Udoni's claim, a 
     bench trial was scheduled.
       ERISA provides no remedy for complications resulting from 
     the deterioration in Mrs. Udoni's physical condition during 
     the coverage disputes. Mrs. Udoni's claim for damages arising 
     from improper denial of benefits were eliminated under ERISA.
     16. Bailey-Gates v. Aetna Life Insurance Co. (D. Conn. 1994) 
         890 F.Supp. 73
       Mr. Bailey-Gates was hospitalized in May of 1991 for 
     physical and mental disorders. A managed care nurse for Aetna 
     ordered him released on June 18, 1991. He was released on 
     June 25 and less than two weeks later, on July 4, 1991, he 
     committed suicide.
       His survivors sued Aetna for negligently releasing him 
     while he was still in need of hospitalization for his 
     disorders. The court ruled that ERISA preempted his 
     survivors' state claims. Mr. Bailey-Gates' survivors have no 
     damage remedy under ERISA.
     17. Gardner v. Capital Blue Cross (M.D. Penn. 1994) 859 
         F.Supp. 145
       Although Ms. Wileman's tumor from her peripheral 
     neuroectodermal cancer was reduced by 70% from chemotherapy, 
     only a bone marrow transplant could possibly eliminate the 
     cancer. Blue Cross initially denied the request and refused 
     to pre-certify the procedure. Blue Cross reconsidered and 
     agreed to pay for the bone marrow transplant after it heard 
     from Ms. Wileman's lawyer and the Pennsylvania Insurance 
       Ms. Wileman's condition worsened sufficiently during the 
     delay following the denial. Her doctors decided she was too 
     weak to undergo the bone marrow transplant when they were 
     preparing for the transplant in June of 1993. In September of 
     1993, Ms. Wileman died.
       The court held that ERISA preempted her survivors' state 
     negligence claims against the HMO. Her survivors have no 
     damage remedy under ERISA.
     18. Nealy v. U.S. Healthcare HMO (S.D. N.Y. 1994) 844 F. 
         Supp. 966
       Mr. Nealy had been treated by his doctor for an anginal 
     condition. The HMO had assured Mr. Nealy that he could 
     continue the care he was receiving for his pre-existing 
     condition and be treated by the doctors he had been seeing.
       After Mr. Nealy enrolled in the HMO, he was not issued an 
     identification card. One week after first seeking an 
     appointment, Mr. Nealy was examined on April 9, 1992, by a 
     primary care physician who refused to refer Mr. Nealy to his 
     former cardiologist. The HMO explained its refusal in an 
     April 29, 1992 letter saying it had its own participating 
     cardiologists. On May 15, 1992, the primary care physician 
     authorized Mr. Nealy to see a cardiologist on May 19, 1992. 
     Mr. Nealy suffered a massive heart attack on May 18, 1992 and 
       The court ruled that Mr. Nealy's surviving spouse's state 
     claims were preempted due to ERISA. Mrs. Nealy has no claim 
     for damages under ERISA.
     19. Dearmas v. Av-Med, Inc. (S.D. Fla. 1993) 814 F. Supp. 
       Ms. Dearmas was injured in an automobile accident, and she 
     was transferred to four different hospitals in three days by 
     her HMO based on the availability of providers participating 
     in her plan at those facilities. As a result of those 
     transfers, as well as other delays in her treatment, she 
     alleged irreversible neurological damage.
       The court held that ERISA preempted her state negligence 
     claims against the HMO. Ms. Dearmas has no claim for damages 
     under ERISA.
     20. Pomeroy v. Johns Hopkins Medical Services, Inc. (D. Md. 
         1994) 868 F. Supp. 110
       Mr. Pomeroy required surgery for dilopia (double vision). 
     The HMO denied his claim. Five months later, in September of 
     1990, suffering from back pain and severe depression, the HMO 
     again denied treatment. After these denials, he became 
     addicted to a pain killer. When he sought treatment for the 
     addiction, the HMO once again denied his claim.
       Mr. Pomeroy pursued his benefits under the state Health 
     Claims Arbitration Board and the HMO removed the case to 
     federal court.
       The court dismissed with prejudice Mr. Pomeroy's state 
     claims for mental, physical and economic losses due to ERISA 
     preemption. The court also dismissed without prejudice his 
     benefit claim. Mr. Pomeroy has no claim for damages under 
     21. Kohn v. Delaware Valley HMO Inc. (E.D. Penn. 1991) 14 EBC 
       Mr. Kohn entered outpatient drug and alcohol rehabilitation 
     in 1989. His HMO primary care physician admitted him in 
     February of 1990 into an in-patient program. When the 15 days 
     concluded, the therapist determined additional inpatient care 
     was necessary. The HMO not only refused coverage for the 
     additional inpatient care but refused to allow Mr. Kohn's 
     family to pay for that additional care. While attempting to 
     cross the railroad tracks in a drunken stupor, he was struck, 
     and killed by a train two weeks after leaving the 
     rehabilitation center.
       The court found that ERISA preempted his survivors' claims 
     based on denial of additional treatment. The court also held 
     that a vicarious liability claim against the HMO based on 
     ostensible agency would not be preempted if the HMO doctors 
     committed malpractice. The survivors had no claim for damages 
     under ERISA.

  Mr. REID. I yield the final minutes we have on this amendment to the 
Senator from Illinois, the floor leader for the Democrats.
  The PRESIDING OFFICER. Four minutes 24 seconds remain.
  Mr. GREGG. Will the Senator suspend?
  Mr. REID. Will the Senator withhold?
  Mr. GREGG. I understand this is your last speaker. We have Senator 
Domenici, and then I will close. If Senator Domenici can go in between 
  Mr. REID. The Senator wants Senator Domenici to go now, if Senator 
Durbin will withhold.
  Mr. GREGG. I yield 5 minutes off the bill to Senator Domenici.
  Mr. DOMENICI. I thank the Senator from New Hampshire.
  Madam President, I want Senator Kennedy to know that I will not get 
red in the face today. My wife is watching, and she tells me I do 
better when I do not yell.
  Looking at America today, I ask this question: Is the best way to 
resolve the problem of somebody who is a patient and sick, and the kind 
of coverage and care to which they are entitled, to give it to the 
trial lawyers to resolve before juries in court cases?
  I cannot believe the best we can do to arbitrate and settle these 
disputes is to say: Let the trial court do it; let the juries do it. We 
already know, if you are looking for an egregiously inefficient way to 
resolve disputes, use the trial lawyers and use the courts of America. 
It just does not target the problem. It resolves issues in a very 
arbitrary way.
  I say to everybody here, I am convinced that letting the trial 
lawyers solve a medical problem is borderline useless. It will cost 
immeasurable amounts of money because every lawsuit will be worth 
something and because everybody will be frightened to death to try 
something before a jury,

[[Page S8552]]

not because they are guilty but because jurors and the trial system are 
apt to award a gigantic verdict. Then every case is worth something.
  Can we not figure out a better way than that? Whatever the arguments 
in this Chamber, the issue is: When people are covered by managed care 
or private health care, to what are they entitled?
  It is not an issue of whether a doctor performs malpractice. That 
litigation is wide open. It is, if they are not getting what they are 
entitled to, how do you fix that? Frankly, I believe to fix it by 
throwing every one of those decisions into the lap of a trial lawyer 
who can file a lawsuit is, for this enlightened America, borderline 
lunacy. For an intelligent, bright America, it is ludicrous to suggest 
that as a way to settle disputes about coverage and quality of care.
  Think of this: You open this up to the trial lawyers, and whatever an 
HMO or a managed care or an employer's policy provides for people is 
going to be in question unless the patient turns out healthy, safe, and 
  If it turns out that they get sick or sicker, what do you think the 
case is going to be? They should have provided a different kind of 
care; I am in court; I am going to get an expert to say it should have 
been different; I am going to get a contract lawyer, an expert, to read 
into this contract what they think I should have.
  Then they are liable for wrongful death, they are liable for any kind 
of illness, because the patient did not get well.
  Frankly, I believe that is a giant mistake, and everybody should 
understand we are adding billions of dollars to the cost of health care 
through this and maybe will not get the kind of relief the people need.
  Whatever the Republicans' final package is, I hope and pray that as 
part of the external review process we put in something that is very 
tough on HMOs and managed care and other policies, that they will 
provide what an independent medical expert says they are supposed to 
do, and it will force them to do it, not in a jury trial but in the 
process run by the States and their policymakers and insurance 
  Do we want the final decision as to the kind of coverage, the 
propriety of what was given to patients, to be decided by jurors in a 
courtroom with monstrous liability attached to it, or do we want it to 
be done by an expert as part of a review process with short timeframes 
and mandatory performance when they make a decision as to what they are 
entitled to?

  I believe an enlightened America should opt for the latter. I do not 
believe an enlightened America should even consider having contract 
disputes of this type determined by trial lawyers in courtrooms by 
  Which do we want? Do we want health care or do we want a jury 
verdict? Do we want health care as it should be or do we want a trial 
in the courts of this country? I choose the former, and you can do it 
without putting these issues into the courts of America, Federal or 
  I yield the floor.
  Mr. KENNEDY. I yield the remaining time to the Senator from Illinois.
  The PRESIDING OFFICER. The Senator from Illinois is recognized.
  Mr. DURBIN. I thank the Chair.
  Let me say at the outset that the Senator from Pennsylvania misstated 
this amendment. This amendment says an employer can be held liable only 
when that employer uses his discretionary authority to make a decision 
on a claim. If a decision is made by an insurance company hired by the 
employer, the employer cannot be held liable. That is what this 
language says clearly.
  Is there a time when an employer could be held liable? We found two 
cases. You decide whether they should be brought into court.
  The employer collected the premiums from the employee and did not 
turn them in to the insurance company. When the employee had a claim, 
the insurance company said: You are not on the books.
  In the second situation, the employee was a full-time employee and 
had worked 9 months at this firm. He filed a claim with the health 
insurance company. The insurance company said: No; we see you as a 
part-time employee. It is a dispute over part-time/full-time.
  Those are two instances under law where employers are brought into 
court. Employers do not make these medical decisions. They would not be 
subject to this lawsuit.
  Please bear with me for a minute. This is the most important 
amendment we will consider on this bill.
  The Senator from New Hampshire corrected me. He is right. It does not 
keep 123 million Americans out of court. It keeps 120 million Americans 
out of court. I stand corrected, I say to the Senator. He is right. It 
is only 120 million Americans and their families who will be denied a 
day in court by the Republican amendment, an amendment which is a 
Federal prohibition against State lawsuits against health insurance 
  Across the street at the Supreme Court building, you will find the 
phrase, ``Equal Justice Under Law.'' This amendment says to that 
phrase: Denied; denied. Equal justice under law is denied for those 
families who want to take health insurance companies into court and 
hold them accountable for their wrong decisions.
  The Senator from New Mexico said: What are we doing taking contract 
questions into courts? I do not know where that Senator went to law 
school, and I do not know whether he follows law and order in other 
programs, but that is what courts do. Courts decide questions like 
contract coverage. That is part of the law of the land for every 
business in America, except health insurance companies.
  The Republicans have come forward with this amendment, an amendment 
which the insurance industry wants dearly so that they cannot be held 
accountable in court. What this means is that families across America, 
when decisions are made, life-or-death decisions, will not have their 
day in court. The Republicans want to continue to prohibit American 
families from holding these health insurance companies accountable for 
their bad decisions.
  From USA Today: The central question is, Should HMOs, which often 
make life or death decisions about a treatment, be legally accountable 
when their decisions are tragically wrong? Right now the answer is no.
  If we pass the Democratic Patients' Bill of Rights, finally the 
courthouse doors will open to families across America. If the 
Republicans and the insurance industry prevail on this amendment, those 
doors are slammed shut. What will that mean? It will mean not just 
fewer verdicts, not just fewer settlements, but the continued attitude 
of this health insurance industry that they are held unaccountable, 
they cannot be held accountable to anyone. They will make decisions--
life and death decisions--for you and your family and never face the 
prospect of going to court.
  This is an internal memorandum from an HMO. This memorandum says it 
as clearly as can be. What they conclude is: Stick with the current law 
that keeps us out of court. This gentleman, who is in charge of 
management, said: We identified 12 cases where our HMO had to pay out 
$7.8 million. If we had it under the ERISA provisions that the 
Republicans want to protect, we would have paid between zero and 
$500,000 to those 12 families.
  This is what it is all about. Someone who is maimed, someone who 
loses their life, their family goes to court and asks for justice. 
Equal justice under the law, that is all we are asking for.
  The Republican majority and the insurance industry do not want to 
give American families that opportunity.
  Vote to make sure we have equal justice under the law.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. GREGG. I yield myself 5 minutes off the bill. I will be the last 
speaker, so Members can understand there will be a vote in about 5 
minutes--two votes. I stand corrected.
  There have been a lot of representations in this argument in the last 
hour and a half or so. Let me make a couple points.
  First off, once again, the Senator from Illinois cites the wrong 
number of people covered by this proposal. That does not really go to 
the core of the issue, but it should be clarified. The Senator from New 
Jersey said there are only two classes of people who are covered by 
this type of situation, diplomats and insurance companies. Actually 
Senators and members of the Government are covered in the same way.

[[Page S8553]]

 In fact, it was an OPM directive from the Clinton administration on 
April 5, 1996. I will simply quote from it. It says:

       Legal actions to review actions by OPM involving such 
     denials of health benefits must be brought against OPM and 
     not against the carrier or the carrier subcontractor.

  It further states those actions can only be for certain limited 
amounts of recovery. So essentially we are tracking that proposal which 
is what Senators are presently covered by.
  Also, the Senator from Massachusetts said--and this point was made by 
the Senator from Washington--that, yes, our proposals cost $13 billion 
and, yes, your proposals cost billions of dollars.
  But there is a little bit of difference. We cut taxes. We give people 
assets. We put money in their pockets. We say to your folks: You can go 
out and use that money to benefit your family. Your proposals increase 
the cost of premiums and drive people out of the health care system and 
create more uninsured people. There is a fairly significant difference 
between the two cost functions of these two bills.
  But this amendment goes to the fact that the proposal from the other 
side of the aisle essentially dramatically expands the number of 
lawsuits which will be brought in the United States, lawsuits which 
will be brought in all these different areas by aggressive and creative 
attorneys, lawsuits which today and under our bill would be settled 
under a procedure which is reasonable, which has independent doctors 
looking at the issue. Those decisions, by doctors who are independently 
chosen by independent authorities, are binding, binding on the health 
care provider group.
  So we take out all these lawyers, all these attorneys. I think of 
this one procedure I cited before where you have literally 137 doctors 
talking about 82 different ways to treat one different type of health 
complication. That can be multiplied by thousands, if not millions, 
giving literally millions upon millions of opportunities for attorneys 
to bring lawsuits because one doctor shows treatment A and another 
doctor chose treatment A-82 or B-82.
  The fact is the decision should not be made by an attorney. That 
decision should be made by an outside doctor who has independence, who 
is chosen by an independent group, and who has binding authority.
  The end product of this bill will be to create a lot of new attorneys 
in this country having a lot of new opportunities to bring a lot of new 
lawsuits. In fact, there has been an lot of hyperbole on this floor. I 
want to put it in perspective. It might be hyperbole, but it is still 
fairly accurate.
  There is a show on Saturday morning that I enjoy listening to on 
National Public Radio. Some may be surprised that I enjoy listening to 
National Public Radio, but I do. The show is called ``Car Talk.'' In 
``Car Talk,'' there is a law firm in Cambridge, MA. I know it is 
euphemistic, but they call them, so far: Dewey, Cheatum & Howe? They 
represent the folks on ``Car Talk.'' Their offices are somewhere in 
Cambridge in Car Talk Plaza, and they represent the Tappet Brothers. 
Today I think they have three attorneys: Dewey, Cheatum & Howe.

  If this bill is passed, Dewey, Cheatum & Howe are going to have to 
build a new building in Cambridge, and they are going to have all these 
attorneys working for them because that is how many people will be 
needed to bring all the lawsuits that are going to be proposed under 
this bill as a result of its expansion.
  What is the serious, ultimate outcome of this? It drives up costs. 
That is the serious ultimate outcome. It was almost treated as if that 
was an irrelevancy by one of the other speakers. Well, 1.4 percent of 
the premiums are going to go up. That does not mean anything? I say 1.4 
percent translates into 600,000 people.
  There have been a lot of pictures brought to the floor about people 
who have not gotten adequate health care, and I am sure their stories 
are compelling. But this floor would be filled if we put up the 600,000 
pictures of people who will lose their health care insurance--filled 
right up to the ceiling by people who no longer have health care 
insurance as a result of all these lawsuits driving up all these costs 
for health care.
  As the Senator from Pennsylvania pointed out, what will be the 
outcome of that? What will be the outcome of all these people being put 
out of their health care insurance because the cost has gone up so 
much? These are CBO's estimates, not mine. It will be that somebody 
will come to the floor from the other side of the aisle saying: We have 
to nationalize the whole system in order to take care of all the 
uninsured we just created by creating all these lawsuits for all these 
attorneys to pursue. What a disingenuous approach to health care, in my 
  The Republican plan has a constructive way to approach this. It 
leaves the decision of care to the patient, to be reviewed by a doctor, 
who is independently chosen, who is in the specialty where the patient 
needs the care. That decision is binding, binding on the health care 
  I hope Senators will join me in supporting my amendment which voids 
the language which expands the lawyers' part of this bill.
  I ask for the yeas and nays on my amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be.
  The yeas and nays were ordered.
  Mr. NICKLES addressed the Chair.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. NICKLES. Madam President, for the information of all Senators, I 
think we are ready to vote on the Gregg amendment, which strikes the 
liability provision. I also notify Senators that immediately following 
that vote, there will be a vote on the first-degree amendment, the 
amendment offered by Senator Collins dealing with long-term care 
deductibility and also dealing with ER and OB/GYN and access. So that 
vote will be immediately after the Gregg amendment.
  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
1250. The yeas and nays have been ordered. The clerk will call the 
  The assistant legislative clerk called the roll.
  The PRESIDING OFFICER (Mr. Fitzgerald). Are there any other Senators 
in the Chamber desiring to vote?
  The result was announced--yeas 53, nays 47, as follows:

                      [Rollcall Vote No. 206 Leg.]


     Smith (NH)
     Smith (OR)


  The amendment (No. 1250) was agreed to.
  Mr. NICKLES. Mr. President, I move to reconsider the vote.
  Mr. BROWNBACK. 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 Oklahoma.
  Mr. NICKLES. Mr. President, previously I indicated we would have two 
rollcall votes back to back. Since we found out there is a Special 
Olympics luncheon several of our colleagues wish to go to, I ask 
unanimous consent the pending Collins amendment No. 1243 be temporarily 
laid aside and the vote occur on the amendment first in the next series 
of votes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WYDEN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Oregon is recognized

[[Page S8554]]

  Mr. KENNEDY. May we have order, Mr. President? Mr. President, the 
Senate is not in order. We have done very well during the course of the 
morning. We have had good attention, a good exchange, and good debate. 
This is an important amendment. If we could make sure the Senator could 
be heard and the Senators give their full attention, we would be very 
  The PRESIDING OFFICER. The Senate will be in order. Any Senators with 
conferences, please take them off the floor. Staff will take their 
conferences off the floor.
  The Senator from Oregon.
  Mr. WYDEN. I thank the Chair.

                Amendment No. 1251 to Amendment No. 1232

 (Purpose: To prohibit the imposition of gag rules, improper financial 
incentives, or inappropriate retaliation for health care providers; to 
 prohibit discrimination against health care professionals; to provide 
 for point of service coverage; and, to provide for the establishment 
              and operation of health insurance ombudsmen)

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

       The Senator from Oregon (Mr. Wyden), for himself, Mr. Reed, 
     Mr. Harkin, Mr. Wellstone, and Mr. Bingaman, proposes an 
     amendment numbered 1251 to amendment No. 1232.

  Mr. REID. Mr. President, I ask unanimous consent that reading of the 
amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The text of the amendment is printed in today's Record under 
``Amendments Submitted.'')
  Mr. REID. Mr. President, the Senator is yielded 6 minutes.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Thank you, very much.
  Mr. President and colleagues, I offer this amendment with a number of 
our colleagues to protect the relationship between health professionals 
and their patients.
  What this amendment is all about is essentially ensuring that 
patients can get all the facts and all of the information about 
essential health care services for them and their families.
  If ever there was an amendment that does not constitute HMO bashing, 
this would be it.
  I don't see how in the world you can make an argument for saying that 
in the United States at the end of the century, when doctors sit down 
with their patients and their families, the doctors have to keep the 
patients in the dark with respect to essential services and treatment 
options for them.
  Unfortunately, that is what has taken place. They are known as ``gag 
  They are chilling the relationship between doctor and patient, and 
they are at the heart of what I seek to do in this amendment with my 
  I think Members of this body can disagree on a variety of issues with 
respect to managed care. I have the highest concentration of older 
people in managed care in my hometown in the United States. Sixty 
percent of the older people in my hometown are in managed care 
programs. We need this legislation, but at the same time we have a fair 
amount of good managed care.
  But today we are saying even though Members of the Senate will have 
differences of opinion, for example, on the role of government and 
health care, we will have differences of opinion with respect to the 
role of tax policy in American health care.
  If you vote for this amendment, you say we are going to make clear 
that all across this country, in every community, when doctors sit down 
with their patients and their families, they will be told about all of 
their options--all of their options, and not just the ones that are 
inexpensive, not just the ones that perhaps a particular health plan 
desires to offer, but all of the options.
  It doesn't mean the health plan is going to have to pay for 
everything. It means the patients won't be in the dark.
  By the way, when I talked to the distinguished Senator from 
Massachusetts shortly after coming to the Senate, a majority of Members 
of this body said these gag clauses should not be a part of American 
health care.
  Let's differ on a variety of issues--the role of government, the role 
of taxes--but let's not say, as we move into the next century in the 
era of the Internet and the opportunity to get information, that the 
one place in America where you keep patients in the dark would be when 
they sit down with their provider and cannot be told all the options.
  There are other important parts of this amendment. One that 
complements the bar on gag clauses, in my view, is the provision that 
makes sure providers would be free from retaliation when they provide 
information to their patients, when they advocate for their patients.

  This amendment is about protecting the relationship between patients 
and their health care providers. If ever there was something that 
clearly did not constitute HMO bashing, it is this particular 
  Unfortunately, across this country we have seen concrete examples of 
why this legislation is needed; why, in fact, we do have these 
restrictions on what forces health care professionals to stay in line 
rather than tell their patients what the options are with respect to 
their health care. We have seen retaliation against health care workers 
who are trying to do their job.
  It strikes me as almost incomprehensible that a Senator would oppose 
either of these key provisions. What Member of the Senate can justify 
keeping their constituents in the dark with respect to information 
about health care services? I don't see how any Member of the Senate 
can defend gag clauses. That is what Senators who oppose this amendment 
are doing. This amendment says to patients across America that they 
will be able to get the facts about health care services.
  We talked yesterday about costs to health care plans. What are the 
costs associated with giving patients and families information? That is 
what this legislation does. In addition, it says when providers supply 
that information, plans cannot retaliate against providers for making 
sure that consumers and families are not in the dark.
  We have seen instances of that kind of retaliation. It strikes me 
that it goes right to the heart of the doctor-patient relationship if 
we bar these plans from making sure patients can get the truth. It goes 
right to the heart of the doctor-patient relationship if providers are 
retaliated against, as we have seen in a variety of communities.
  Mr. KENNEDY. Will the Senator yield?
  Mr. WYDEN. I am happy to yield to the Senator.
  Mr. KENNEDY. The argument on the other side will be, Republicans will 
say: We ban the actual gagging of a doctor.
  The real distinction between the amendment of the Senator from Oregon 
and the Republican amendment is that this amendment ensures the doctor 
will not risk his job if he advocates. He might be able to tell the 
patient they need a particular process, the doctor will be permitted to 
relay that information, but then he can be fired under the Republican 
  Also, they will have the option of giving financial incentives for 
doctors not to provide the best medicine.
  The amendment of the Senator from Oregon is the only amendment that 
does the job.
  Mr. WYDEN. The Senator is absolutely right. What the Senator has 
pointed out is that you gut the effort to protect patients from these 
gag clauses unless you ensure that the providers are in a position to 
do their job and not get retaliated against and not face this prospect 
of getting financial incentives when they do their job.
  The Senator from Massachusetts is absolutely right. We are making 
sure that providers can be straight with their patients. We are 
actually giving them the chance to carry out that antigag clause effort 
by making sure they will not be retaliated against and by making sure 
they will not face the prospect of their compensation in some way being 
tied to doing their job.

  I am very hopeful all of our colleagues can support this amendment. 
It tracks what the majority of the Senate is already on record in 
voting for, the effort that the Senator from Massachusetts and I led in 
the last Congress shortly after I came here.
  I was director of the Gray Panthers at home in Oregon for about 7 
years before I came to Congress. I can see a lot of areas where 
Democrats and Republicans have differences of opinion on

[[Page S8555]]

American health care. There are a lot of areas where reasonable people 
can differ. I don't see how a reasonable interpretation of what is in 
the interest of patients and providers can allow for gag clauses and 
then give these plans the opportunity to vitiate any effort to bar gag 
clauses by saying: If you try to be straight with your patients, we 
will retaliate against you; we will tie your compensation to your 
keeping these parties in the dark.
  I hope my colleagues will support this amendment. It shouldn't be 
partisan. It doesn't constitute HMO bashing.
  I yield the floor.
  Mr. KENNEDY. I yield 6 minutes to the Senator from New Mexico.
  Mr. BINGAMAN. Mr. President, I thank the Senator.
  I strongly support the effort my friend from Oregon is making to 
ensure that there is a provision in this bill that is finally passed 
prohibiting these gag provisions. I think that is very important.
  I want to speak about a different aspect of this larger amendment. 
This is a provision that Senator Harkin has taken the lead on, that I 
am cosponsoring with him. It deals with the problem of discrimination 
against nonphysician providers of health care services.
  What am I talking about when I talk about ``discrimination against 
nonphysician providers of health care services''? I am talking about 
the people whom everyone, on occasion, wind up going to for high-
quality professional health care. I am talking about nurse 
anesthetists, about speech and language pathologists, nurse 
practitioners, physical therapists, nurse mid-wives, occupational 
therapists, psychologists, optometrists, and opticians. These are 
health professionals who are licensed to provide particular medical 
  All we are providing in Senator Harkin's amendment, which I 
cosponsor, is that a health maintenance organization cannot arbitrarily 
prevent a whole category of health care providers from providing that 
health care they are licensed and qualified to provide.
  This is an extremely important issue for a State such as New Mexico 
where we have a great many rural and underserved areas. That is where 
the impact is the greatest because we have too few physicians in my 
State. The reality is that if a person is limited in obtaining their 
health care from a physician, in many cases in many parts of our State 
they either have a choice of driving a great distance or going outside 
their health plan and paying out of their pocket for something that 
ought to be covered by the premium they are already paying.
  It is a serious issue that needs to be addressed. In my State, the 
estimate is that we are losing 30 physicians. I believe it was 30 
physicians in 1 month, according to the estimate. So we have a shortage 
of physicians. We are losing many of the ones that we have. We need to 
be sure people have access to the nonphysician health care providers 
who are very qualified to provide some of these services.
  Let me show a chart on one of the specialties I am talking about. 
This is on anesthesia providers.
  As I indicated before, nurse anesthetists are covered as one of the 
groups of health care providers. In our State, if you want anesthesia 
services, if you have to have anesthesia provided to you, your ability 
to get that strictly from a physician occurs in only one small area of 
our State. That is the area in blue. In all of the rest of our State, 
you are forced to rely upon someone other than a physician to provide 
that service.
  All we are saying is, in the case of anesthesia services, a health 
maintenance organization should have to allow those services to be 
provided by another qualified person other than a physician, where that 
person is available. This is a simple matter of fairness to patients in 
rural areas. It is something that does not involve significant costs. 
In fact, the estimate of the Congressional Budget Office is less than 
half a percent change in cost over a 10-year period.
  The reality is that many of these nonphysician health care providers 
provide these services at a much lower cost than the physician does. 
So, in fact, it is not a question of increasing the cost. In many 
cases, it is a question of decreasing the cost.
  We offered this amendment in committee when this bill was considered 
in the Health and Education Committee. I offered this exact language. 
Senator Harkin did. Several of our Republican colleagues at that time 
expressed their support--not with their votes but with their 
statements--for providing this type of guarantee. So it is nothing 
radical. This is a simple fairness issue, and it is one that makes all 
the sense in the world as far as the economics of health care is 
  If we are really concerned about getting adequate health care to the 
rural underserved areas of our country, such as I represent in New 
Mexico, such as Senator Harkin represents in his State, it is essential 
we have this amendment as part of what we pass out of Senate.
  Mr. KENNEDY. Will the Senator yield for a question?
  Mr. BINGAMAN. I am glad to yield.
  Mr. KENNEDY. President Clinton, as I understand, has insisted this be 
part of the Medicare Program. So it is in the Medicare Program. Could 
the Senator indicate to me how this is working in his own State? Is it 
working well? It would appear to me to be a precedent for this, unlike 
other public policy issues, and it appears we have a pretty good pilot 
program--more than a pilot program. Perhaps the Senator would share 
with us his experience.
  Mr. BINGAMAN. I thank the Senator for that question. It is an 
extremely good point. This is the nondiscrimination requirement that 
was put into the Balanced Budget Act in addition to Medicare.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. KENNEDY. I yield another minute.
  Mr. BINGAMAN. I thank the Senator. In relation to Medicare managed 
care plans, and in relation to Medicaid, it has worked extremely well 
in those cases. As far as I know, there has been no objection raised to 
  So I believe what has worked there makes good sense in this area as 
well. I believe it is very important we have this provision included in 
the bill we finally pass.
  One other example. In my State, certified registered nurse 
anesthetists are the sole anesthesia providers for 65 percent of our 
rural hospitals. If our rural hospitals are going to continue to 
function, as they must, then we need to be sure the nonphysician 
providers who are able to provide services in these smaller communities 
are able to do so and be compensated through these health maintenance 
  I think this is an important provision. I hope very much Senators 
support it and we can get this adopted as part of a bill we finally 
  I yield the floor.
  Mr. REID. Mr. President, the minority yields 6 minutes to the junior 
Senator from Iowa.
  The PRESIDING OFFICER. The distinguished Senator from Iowa.
  Mr. HARKIN. Mr. President, I join my friend and colleague from New 
Mexico. Together, we are cosponsoring this very important, vital 
  Again, I will repeat some of what the Senator said. The most 
important thing I heard him say was, in the State of New Mexico, only 
65 percent of the State has nurses that provide anesthesiology.
  I have a map of my State of Iowa. There are a lot of different colors 
on it, and I will not go into all the explanation, but the reality is, 
the vast majority of the State of Iowa only has certified nurse 
anesthetists to provide services to all of the State of Iowa. We have a 
few counties, about nine or 10, that have doctors, MDs. The rest are 
registered nurses. That is all. So someone up here in northwest Iowa or 
southwest Iowa, someplace up in this area, would have to drive hundreds 
of miles just to access an MD who is an anesthetist.
  Here is a letter from Preferred Community Choice PPO. I will not read 
the whole thing. It says:

       At this time, participation is limited to MD and DO degrees 

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

                                Preferred CommunityChoice PPO,

                               Mountainview, AR, November 1, 1995.
       Greetings: Thank you for recent inquiry regarding 
     participation in our network of

[[Page S8556]]

     providers. At this time, participation is limited to MD and 
     DO degrees only. We have created a file for interested 
     providers who fall outside of these two categories. Should we 
     expand the network in the future, we will use the information 
     that you have provided for future contact. We appreciate your 
     interest in Preferred CommunityChoice.

                                               Michael H. Kaufman,
                                               Provider Relations.

  Mr. HARKIN. That is what we are trying to get over with our 
amendment. As the Senator from New Mexico pointed out, this would cover 
such things as physician assistants, nurse practitioners, 
psychologists, optometrists, chiropractors, et cetera. This is not an 
``any willing provider'' amendment. We are not saying that. We are not 
saying that we require a plan to open up to any provider who wants to 
join. We are simply saying a health plan cannot arbitrarily exclude a 
health care professional based on his or her license. That is all we 
are saying: They cannot do it based upon licensure.
  Second, this provision does not require health plans to provide any 
new benefits or services. It just says, if a particular benefit is 
covered and there is more than one type of provider that can provide a 
service under their State license or certification, the health plan 
cannot arbitrarily exclude this class of providers. For example, if a 
plan offers coverage for the treatment of back pain, it cannot exclude 
State-licensed chiropractors.
  Third, and I want to make this point very clearly, this provision 
would not expand or modify State scope-of-practice laws. Decisions 
about which providers can provide which services are left where they 
belong: to the States.
  Again, I just want to remind everyone, this Congress supported this 
concept when we passed provider nondiscrimination language as part of 
the Balanced Budget Act for Medicare and Medicaid programs. The Senator 
from Massachusetts made an inquiry. He said: How is this working? I can 
tell you, it is working great in my State for elderly people under 
Medicare because now a lot of elderly people, who live in sparsely 
populated areas of my State, can access, for example, for back pain, 
chiropractors. They can access nurse practitioners, physician's 
assistants, a whole host of different providers under Medicare who are 
licensed by the State of Iowa. That is what our amendment does.
  Again, I have to ask, if people in these programs, people in Medicare 
and Medicaid, have the right to choose their provider, should not all 
  That is why this is a very simple and straightforward amendment. 
Thirty-eight States have recognized the need for this provision by 
passing similar legislation. Thirty-eight States have passed 
legislation providing that people can have their choice of providers as 
long as they are licensed or certified by the State.
  You might say, why would we do it here if 38 States already cover it? 
The problem is, the State laws do not apply to the 48 million Americans 
who are in self-funded ERISA plans. That is the problem. That is the 
loophole we are plugging.
  This provision is critically important for those who live in rural 
areas; those who do not have access to an MD or a DO; those who rely 
upon others who have State licensure or State certification to provide 
the kind of medical services they need.
  In our amendment, the amendment by the Senator from New Mexico, Mr. 
Bingaman, and me, we are basically saying we want to give people a 
little more power, to empower them a little more, and to provide 
freedom of choice for the American consumers. It is very simple. This 
provision says a managed care plan cannot arbitrarily exclude a health 
care professional on the basis of the license or the certification.
  It is a simple and straightforward amendment. It has broad-based 
support. I have a list of all the different associations supporting it. 
I would point out the broad-based support that it indeed does have, by 
everything from the American Academy of Physician's Assistants, nurse 
anesthetists, chiropractors, nurse midwives, the American Dental 
Association, American Nurses Association, Occupational Therapy 
Association of America, the American Optometric Association, the 
Physical Therapy Association, Speech, Language, and Hearing 
Association, and the Opticians Association of America. A broad range of 
providers support this provision.

  The PRESIDING OFFICER (Mr. Bunning). The Senator's 6 minutes have 
  Mr. HARKIN. Mr. President, I hope at least we can support this and 
provide our people freedom of choice.
  Mr. REID. I yield the Senator from Rhode Island 6 minutes.
  Mr. REED. Mr. President, I rise in strong support of this amendment. 
There are many very important provisions, but I want to focus on one 
provision, and that is the creation at the State level of ombudsman 
programs or consumer assistance centers. I have been working on this 
provision, along with Senators Wyden and Wellstone. We introduced 
separate legislation, and today, as part of this amendment, we are 
considering this very valuable and very important opportunity to 
empower consumers of health care services in this country.
  One of the persistent themes we have heard throughout this debate is 
how do we give consumers more leverage in the system against these huge 
HMOs, against what appears to be illogical, indifferent decisions about 
the health of themselves and their families.
  We rejected some proposals which I believe we should have embraced. 
For example, we just defeated an opportunity to give people a chance, 
in extremist, to go to court if necessary. This is something that has 
been adopted in Texas and is working very well. If we cannot do any of 
those things, then I think we must do at least this; and that is, to 
give the States the incentive to develop consumer assistance centers so 
individual health care consumers--patients--when they have frustrating 
denials, have someplace to turn.
  We all know, because we all listen to our constituents, that every 
day there are complaints about the inability to get straight answers 
from their HMO, of the inability to get coverage, the inability to get 
what you paid for. Where do they turn? Too many Americans cannot turn 
anywhere today. If we pass this amendment, we will give them a chance 
to turn to a consumer assistance center.
  I will briefly outline the provisions of the legislation. We provide 
incentives to four States to set up consumer assistance centers. These 
centers will operate as a source of information. They can give direct 
assistance in terms of advice or assistance to someone who is in a 
health care plan who has a question about their coverage. They will 
operate a 1-800 hotline. They will be able to make referrals to 
appropriate public and private agencies. They will not be involved in 
any type of litigation. This is not an attempt to provide an 
opportunity to recruit litigants. This is a consumer assistance center 
concept. I hope also that these centers will educate consumers about 
their rights.
  This is something that has been promoted by many different 
organizations. The President's health care advisory commission in 1997 
pointed out this is efficiency and every State, every region should 
have these types of centers.
  We have similar centers with respect to aging and long-term care 
ombudsman programs working very well. Several States--Vermont, 
Kentucky, Georgia, and Virginia--have adopted these programs because 
they want to give a voice and give some type of power to their 
consumers in health care. Florida and Massachusetts have programs they 
are trying to get up and running, and just a few weeks ago on this 
floor in response to profound concerns we have about the military 
managed care program, the TriCare program, we adopted legislation that 
would set in motion the creation of an ombudsman program for military 
personnel. It is not a controversial idea. We passed this idea with 
overwhelming support.
  This is something we can do. This is something we should do, and, 
frankly, if we rejected all the remedies we are proposing to give to 
consumers, we have to adopt at least this one. We have to give an 
incentive to States for working through not-for-profit agencies to set 
up these consumer assistance programs. Frankly, this is something that 
is long overdue, noncontroversial, and it should be done.

  I see the Senator from Oregon, who has been a stalwart on this issue, 
is standing. He might have a comment.

[[Page S8557]]

  Mr. WYDEN. I appreciate my colleague yielding. I so appreciate his 
leadership because this is a chance, with the Reed proposal, to make 
sure the consumers in this country can get what they need without 
litigation. I hope Members of the Senate will see this ought to be the 
wave of the future. It is a revolution in the concept of consumer 
protection because what this part of our proposal does, under the 
leadership of the Senator from Rhode Island, is essentially say: Let's 
try to help the patients and the families early on in the process. 
Let's not let problems fester and continue and eventually result in 
huge problems which can lead to litigation.
  It seems to me--I want the Senator from Rhode Island to address 
this--what he is doing is essentially changing consumer protection so 
it ought to be at the front end when problems have not become so 
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. WYDEN. I ask the Senator from Rhode Island be given 2 additional 
  Mr. KENNEDY. I yield 1 minute.
  Mr. WYDEN. I do not think there is a good health plan in America that 
cannot support the idea of a good ombudsman program so we can solve 
problems without litigation. I thank my colleague.
  Mr. REED. I thank my colleague from Oregon. Let me reaffirm what my 
colleague said. This whole concept of ombudsman and consumer assistance 
centers is designed to allow the consumer in the first few hours, or 
even minutes, when they encounter problems in the health care system, 
to get advice and assistance. This is not a theoretical concept. It 
works already in several States.
  California has a model program around the Sacramento area. People 
have benefited from this. This is what we want to see in every State in 
the country.
  Again, if we cannot be sensitive enough to recognize the need for 
consumer assistance early in the process, then I believe we are failing 
the American public miserably. I hope we can embrace, support, and 
adopt this amendment, particularly this provision with respect to the 
ombudsman consumer assistance program.
  I yield back my time.
  Mr. KENNEDY. I yield 4 minutes to the Senator from North Carolina.
  The PRESIDING OFFICER. The Senator is recognized for 4 minutes.
  Mr. EDWARDS. Mr. President, I rise in strong support of this 
amendment. I particularly want to address the issue of financial 
incentives, which this amendment addresses, which essentially is HMOs 
and health insurance companies providing financial incentives for 
physicians to provide less than appropriate care to limit the treatment 
options for patients or, in the case I am about to talk about, not 
calling in other physicians or doctors when they may be needed under 
the circumstances.
  This is the story of something that actually happened in North 
  A young mother was in labor. During the course of her labor, she was 
being overseen by an obstetrician/gynecologist who was responsible for 
her care. Unfortunately, this single OB/GYN was responsible for the 
care of a number of mothers in labor on this night.
  During the course of the evening and the morning, the mother 
developed severe complications with her labor. There were clear signs 
the baby was in serious trouble and was having trouble getting oxygen 
and needed to be delivered. Something needed to be done immediately. 
The nurses taking care of this mother did exactly what good nurses 
would do under the circumstances: They paged the doctor. They called 
the doctor who was on call. They could not get him there. They had no 
understanding of why he was not responding to the call. They notified, 
by way of the call, that it was an emergency situation. Still no 
  More and more time was passing when the child within the mother's 
womb was not receiving the oxygen it needed and continued to suffer 
injury and damage.
  Finally, the doctor appeared and delivered the baby by cesarean 
section. Unfortunately for this child and the family, it was too late. 
The child suffered severe and serious permanent brain injury. The child 
has severe cerebral palsy and, essentially, will require extensive 
medical care for the course of its life.
  Later we learned that what happened was the physician who was in 
charge of this patient's care had a financial incentive, because of his 
contract with the HMO, not to call in additional physicians. In other 
words, he was rewarded where, on a consistent basis, he did not call in 
backup help--even though in this situation he was taking care of too 
many patients, too many mothers.
  There was an emergency, and the bottom line is this: Because of a 
financial incentive, an insurance HMO credit with its doctor, we have a 
young child who will have cerebral palsy for the rest of his life. This 
is the kind of thing that should not happen in America. This is what 
this amendment addresses. It specifically deals with the issue of 
financial incentives in a thoughtful, intelligent way, limiting the 
financial incentives that can be allowed and requiring their 
disclosure--both of which are absolutely needed and absolutely 
  I might add one final thought. This child, who for the rest of his 
life will be severely brain damaged, will require extensive medical 
care, very expensive medical care, running in the many millions of 
dollars. His family, who are responsible for this child's care, who 
live with this problem 24 hours a day, day in and day out, year after 
year--this child's medical care is being paid for by Medicaid.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. EDWARDS. If I may have 30 more seconds?
  Mr. KENNEDY. I yield the Senator 30 more seconds.
  The PRESIDING OFFICER. The Senator is recognized for 30 seconds.
  Mr. EDWARDS. Since this child suffers from a severe injury as a 
direct result of an incentive that the HMO, the health insurance 
company, provided to the doctor, since this child suffers this severe 
injury and will have millions of dollars of medical problems over the 
course of his life, the question is, Who pays for this cost? The HMO is 
not going to pay for it. Who is going to pay for it is the taxpayers of 
America, through Medicaid.
  So the financial burden of what happened as a result of this 
financial incentives clause, a clause which is absolutely fundamentally 
wrong and should not be allowed, is that every American taxpayer is 
responsible for carrying the burden of these millions of dollars in 
medical costs.
  Thank you, Mr. President.
  Mr. KENNEDY. I yield 9 minutes to the Senator from Minnesota.
  The PRESIDING OFFICER. The Senator from Minnesota is recognized for 9 
  Mr. WELLSTONE. Thank you, Mr. President.
  I thank the Senator from Massachusetts, the Senator from North 
Carolina, and the Senator from Oregon for their work on the floor of 
the Senate.
  Mr. President, I say to Senator Wyden from Oregon that I did not get 
a chance to hear his remarks on the floor of the Senate, but I think 
this whole question of whether or not doctors and providers can 
advocate for their patients and speak up when they think their patient 
is being denied care unfairly is extremely important. It is a little 
shocking, but it is really true that we all hear from doctors who tell 
us that they do not believe they can do that. They have no protection. 
They are worried about losing their jobs.
  So I just say that if we are about being on the side of consumers, 
which I think is what we are about, Senator Wyden's amendment is 
extremely important.
  I will speak to another provision in this amendment which we actually 
have not discussed on the floor of the Senate. Of course, my fear is 
that Republicans will come out with a second-degree amendment and try 
to essentially wipe this amendment out. I wish--in fact, I would give 
up half of my 9 minutes if somebody from the other party would come 
down here; I would give up 4 and a half minutes just to get their other 
point of view, because the argument I am about to make goes as follows.
  This is about ``points of service,'' which actually is about consumer 
choice. What we are saying in this provision is that if you are paying 
extra or

[[Page S8558]]

are willing to pay a little extra, you should have the choice to be 
able to stay with your doctor, to be able to go to the clinic to which 
you have been going.
  For example--and this just drives people in Minnesota crazy--an 
employer may shift a plan, and then what will happen is, even though 
you have been taking your child or your children, or you yourself have 
been seeing the same doctor whom you trust, who knows you well, who 
knows your family well, all of a sudden you no longer can see them.
  What we are saying is, don't the consumers and don't the families in 
Minnesota and Oregon and Massachusetts and Kentucky--all around the 
country--have some choice? My gosh, if people are willing to even pay a 
little extra in premium, how can anybody come out on the floor of the 
Senate and say they are not entitled to some continuity of care and 
some choice when it comes to being able to continue to see their 
  I can give a lot of examples. Let me simply go through the Republican 
proposal for a moment and then come back to some examples.
  In the Republican proposal, only if the employer has 50 employees or 
more is there any discussion at all about any alternatives; and even 
there, it is two panels of providers. But two panels of providers does 
not make for choice. And if it is under 50 employees, there is no 
choice at all.
  We have gone over this over and over again. For the 115 million 
people who are excluded, they do not have any protection whatsoever.
  So again, the clock is ticking away. But if, in fact, any Republican 
wants to come and debate me, I would be pleased to give up my 4 minutes 
or 3 minutes or whatever.
  Again, this is about choice. We are saying is that if you and your 
family have been seeing a doctor and going to a clinic for 5 or 6 or 7 
years, if you have paid extra, and all of a sudden your employer shifts 
plans or your managed care plan narrows the number of doctors you can 
see, you ought to be able to continue to see your doctor, you ought to 
be able to continue to go to that clinic.
  We have all had this experience of--well, maybe we have not; I have. 
You go into the hospital; you put on one of those gowns. I think I 
could become rich by coming up with an alternative gown that does not 
tie in the back, because it just makes you nervous right away; you are 
very nervous, and you do not know what is going to happen to you.

  You know what? It sure makes a difference if it is your family doctor 
who is there with you. It sure makes a difference if you have the sense 
that there is a doctor or a nurse or people from the clinic who have 
recommended you need to have the surgery who are there with you, who 
care about you, who know you, who love you.
  I will say it again, consumer choice is what this amendment is about. 
How can the Republicans come to the floor of the Senate with a piece of 
legislation that they claim is patient protection and not give families 
this choice? If a family in Minnesota wants to pay or can pay a little 
more in premium to make sure that if their employer shifts plans they 
will be able to stay with their family doctor, or if you are an elderly 
citizen and you have Parkinson's you will be able to stay with your 
neurologist, or you have a child who is very ill with cancer you will 
be able to stay with your pediatric oncologist, I would think, for gosh 
sakes, we would want to allow a family to have that choice.
  I do not want to hear my colleagues on the other side of the aisle 
talk about freedom of choice if they are going to come out here with a 
second-degree amendment that is going to wipe out this very important 
choice that this amendment says people and families should have in our 
  Mr. President, how much time do I have left?
  The PRESIDING OFFICER. Three minutes.
  Mr. WELLSTONE. If I only have 3 minutes left, since we are in the 
last day of the debate, I want to try to pull this into focus, at least 
as a Senator from Minnesota.
  I would like to say one more time, if you take, for example, this 
amendment--and I do not have the time to read it, this amendment has 
the support of the Patient Access Coalition with 134 members. Every 
kind of consumer organization, provider organization, children's 
organization, women's organization, and advocacy organization for 
people with disabilities, all are saying: Please make sure that 
families in this country have a choice and do not get cut off from 
seeing their doctor, do not get cut off from seeing a specialist who 
can really help them. I see the same pattern in all of this. We have 
said we ought to cover all 165 million Americans. We shouldn't be 
covering 43 million Americans. We ought to have some standard of 
protection for all families in the country that States can build on. 
Republicans say no.

  We say you ought to have a guarantee of access to specialists, if you 
need those specialists. There should be a panel in the plan. If there 
isn't a specialist in the plan to help you or a member of your family, 
you ought to be able to go outside the plan and receive that care. 
Republicans vote no.
  Then we say, if you are denied care, there ought to be an appeals 
process. You ought to have a right to seek redress of grievance. When 
you do that, there ought to be an independent appeals process, and 
there ought to be some people you can go to. There ought to be some 
advocacy for consumers. On that strong consumer protection amendment, 
Republicans vote no and basically want to stop it.
  I think the logic of this debate is clear. I have seen a little bit 
of confusion in a couple of articles. I do not believe this is about 
Senators who cannot sit down in the same room and agree with one 
another, and therefore, why can't they do that. What is wrong with 
  I think this is a very honest debate where you have two different 
definitions of what is good. I think we are talking about two different 
frameworks of self-interest and power. I think there is a reason that 
every single children's consumer and provider organization has 
supported our amendment and wants to see real patient protection. There 
is a very good reason why the insurance industry is the only interest 
that is supporting the Republican proposal.
  It is because the Republican Party, the other side of the aisle in 
this debate, is marching lock, stock, and barrel with the insurance 
industry, and we are on the side of consumers and families. As 
Democrats, that is exactly where we should be.
  I yield the floor.
  The PRESIDING OFFICER. The Senator's time as expired.
  Mr. KENNEDY. Mr. President, I yield 3 minutes to the Senator from New 
  Mr. SCHUMER. I thank the Senator from Massachusetts.
  Mr. President, I rise in support of this amendment. It looks as if 
even this amendment will be defeated, if the past is any pattern. It is 
so minimal: the right to ombudsman, points of service, a gag rule so 
your physician can tell you the truth, financial incentives. It is hard 
to believe this amendment is going down, but it is, and so is every 
other reasonable provision.
  So as we come to the close of this week's debate, it is worth looking 
at what has happened in the Senate. What has happened this week can be 
summed up in one sentence: The insurance industry won; American 
families lost.
  The insurance industry won and American families lost because the 
right to emergency room treatment at the nearest hospital is not 
granted. The insurance industry has won and American families have lost 
because access to specialists is not guaranteed. The insurance industry 
has won and American families have lost because the right to appeal an 
unfair decision by the HMO is not guaranteed. The insurance industry 
won and American families lost because the right to sue, even the most 
egregious, outrageous behavior by an HMO, is not granted.
  The insurance industry won and American families lost because the 
right of so many women, the desire of so many women to have an OB/GYN 
as their primary care physician is not there. And most of all, the 
insurance industry won and the American people lost, because instead of 
covering 161 million people, we are only covering 48 million people. 
Even the minor changes that were made by those on the other side of the 
aisle are underscored by these two numbers: 161/48, 161 million

[[Page S8559]]

people covered by our proposal; 48 million by theirs.

  What about the other 113 million? They get no rights at all.
  I am going to make a prediction. This will not be the last time we 
take up the Patients' Bill of Rights.
  The PRESIDING OFFICER. The Senator's 3 minutes have expired.
  Mr. KENNEDY. How much time do I have?
  The PRESIDING OFFICER. The Senator has 3 minutes.
  Mr. KENNEDY. I yield a half minute.
  Mr. SCHUMER. I thank the Senator. I was just finishing my thought.
  The mothers and fathers of America, who have been wrestling with the 
HMO bureaucracy, struggling with it, are not going to have their 
problems solved. They will come back to us, and we will be back to pass 
a better bill.
  Mr. KENNEDY. Mr. President, I think we have 2\1/2\ minutes. How much 
remains on the other side?
  The PRESIDING OFFICER. Fifty minutes.
  Mr. KENNEDY. I will withhold the remainder of my time to respond to 
some of the points made on the opposite side.

                         Privilege Of The Floor

  Mr. WELLSTONE. Mr. President, if I may, I ask unanimous consent that 
Sofia Lidskog be granted the privilege of the floor during the duration 
of the debate.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Who yields time?
  The Senator from Wyoming is recognized.
  Mr. ENZI. Mr. President, I yield myself such time as I might take for 
some additional views.
  During the Health, Education, Labor, and Pensions Committee 
consideration of S. 326, I asserted strong positions on several key 
components of the managed care reform debate. These additional views 
are intended to reiterate my support for S. 326, provide the committee 
with a cohesive explanation of my position on specific policy, and 
express my appreciation to the committee for reporting to the full 
Senate a good bill for health consumers.
  S. 326 offers a series of patient protections to consumers in 
Employee Retirement Income Security Act (ERISA) regulated health plans. 
Direct access to OB/GYN and pediatric providers, a ban on gag clauses, 
a prudent layperson standard for emergency services, a point-of-service 
option, continuity of care and access to specialists will provide 
consumers in self-funded plans the same protections being offered to 
state-regulated plans participants. Additionally, all ERISA regulated 
plans will be required to disclose extensive comparative information 
about coverage, networks and cost-sharing. This requirement is 
complemented by the establishment of a new binding, independent 
external appeals process, the lynchpin of any successful consumer 
protection effort.
  I believe the two most contentious elements of the managed care 
reform debate are addressed favorably for consumers in S. 326. The 
first is holding health plans accountable for medical versus coverage 
decisions; the second is ensuring that health plans cannot manipulate 
the definition of ``medical necessity'' to deny patient care.
  S. 236 does not expand the liability of ERISA plans by exposure to 
state tort laws, which has been proposed as a way to hold health plans 
accountable for medical decisions. Rather, S. 326 gets patients the 
medical treatment they need right away through a timely appeals 
process. Get the care; then worry about the problems. It doesn't 
require them to earn it through a lawsuit. I do understand the 
frustration expressed by physicians who are held liable for their 
medical decisions. It is for that very reason that the bill I support 
securely places the responsibility for medical decisions in the hands 
of independent medical experts. These decisions are binding on health 
plans, who run the risk of losing their accreditation, daily fines and, 
ultimately, their stake in the market.
  Likewise, the external appeals process in S. 326 prohibits plans from 
hiding behind an arbitrary definition of medical necessity to deny 
care. S. 326 expressly establishes a standard of review, including: the 
medial necessity and appropriateness, experimental or investigational 
nature of the coverage denial; and, any evidence-based decision making 
or clinical practice guidelines, including, but not limited to, those 
used by the health plan. This is in subtitle C. Sec. 503(e)(4). In 
other words, the independent external reviewer--required by the bill to 
have appropriate medical expertise--will have access to the patient's 
medical record, evidence offered by the treating physician and all 
other documents introduced during the internal review process. 
Additionally, the reviewer will consider expert consensus and peer-
reviewed literature, thus incorporating standards of ``medical 
necessity'' clearly outside those prescribed by the plan. The bill also 
requires that, during the internal appeals process, the medical 
necessity determination is made by an independent physician with 
appropriate expertise--not by the plan.
  Since its inception in 1974, this is the first major reform effort of 
ERISA as it pertains to the regulation of group health plans. The focus 
of the mission--regardless of politics--should be to protect patients. 
Protecting patients means not only improving the quality of care but 
expanding access to care and allowing consumers and purchasers the 
flexibility to acquire the care that best fits their needs. The 
contention has been how to do this in the context of our health 
delivery system. I believe S. 326 is a responsible approach to 
protecting consumers in the managed care market.
  While bipartisanship was in short order during committee 
consideration of S. 326, it is my hope that through the balance of this 
process we will continue discussions among Members to advance needed 
patient protections without jeopardizing access to health care. While 
we have been unable to bridge some of the partisan barriers during 
floor consideration, I believe a better plan for health care consumers 
is being passed today.
  I suggest the absence of a quorum and ask unanimous consent that the 
time be charged to our side.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. KENNEDY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The PRESIDING OFFICER. Who yields time?
  Mr. FRIST. Mr. President, I yield myself 10 minutes.
  The PRESIDING OFFICER. The Senator from Tennessee is recognized.
  Mr. FRIST. Mr. President, I rise today pleased with the discussion 
and the debate which has taken place over the last 4 days, recognizing 
that we have a number of other amendments as we go forward and 
hopefully look for a vote later today for final passage.
  I want to mention a couple of things I haven't had the opportunity to 
speak on earlier yet I continue to be asked about by my colleagues and 
by various people in the media and constituents continue to call about. 
One of them has to do with an issue we debated yesterday, which will be 
voted on at 3:30; that is, access to specialty care.
  A number of issues have arisen. I think it is important that our 
colleagues all understand that the Republican bill ensures access to 
specialty care. Again, the easiest way for me to take care of that, 
without getting involved in a lot of the rhetoric that goes back and 
forth, is with the wording in the underlying bills that is a little bit 
different. ``Specialty'' versus ``specialty care'' has all kinds of 
connotations that allow people to confuse the issue.
  But in section 725 of our bill, it states that plans--and I begin my 
quotation by saying--``shall'' ensure access to specialty care as 
covered under the plan.
  What is important is that people understand that the ultimate 
decision of what is ``medically necessary and appropriate''--those 
exact words that are used in the various bills and amendments that have 
come forward to ultimately decide what is ``medically necessary and 
appropriate''--ends up being with a physician who is independent of the 
plan, who is a medical expert, who is a specialist, who is appointed 
not by the plan.
  We have heard again and again that in some way this independent 
reviewer is tied to the plan. The words are written in the bill. I 
don't know how much

[[Page S8560]]

more we can do in terms of distancing this reviewer, this physician, 
this independent reviewer, who is appointed by an entity, which is 
regulated by the Government, and is another sort of separation from the 
plan. This entity can be approved either by the Secretary of Health and 
Human Services or by the State or by the Federal Government. This 
entity appoints this third party reviewer who ultimately decides what 
is ``medically necessary and appropriate.''
  When we use those words ``medically necessary and appropriate,'' 
again and again it has come back that at least we should consider 
putting it in Federal statute and defining in Washington, DC, what 
``medically necessary and appropriate'' means.
  I reject that, and I think we should reject that because it is 
difficult--I think it is impossible, but I will say it is difficult--to 
define what is ``medically necessary and appropriate.'' To pretend that 
we can do it on the Senate floor is misleading. In fact, many think 
tanks and many Senators, Congressmen and women have tried to do it, and 
we haven't been able to define it in Medicare or in CHAMPUS. The 
President's Quality Assurance Commission was unable to define what is 
``medically necessary and appropriate.''
  Thus, we don't attempt to define it. We say it is important, but we 
say ultimately it has to be defined by an independent medical 
specialist, independent of the managed care company. Then we have a 
whole list of things that he or she has to take into consideration.
  We continue to limit what that third party independent reviewer--he 
or she--actually considers the best practice of medicine, which is very 
different, I should say, from ``generally accepted medical practices.'' 
``Generally accepted medical practices'' haven't been defined very 
well. There is not a book of ``generally accepted medical practices.''
  I say that because if your sick heart is not beating very well, there 
are procedures that may not be ``generally accepted'' but they can be 
lifesaving. They may not be done very much in a community. Whether you 
do a transplant, or you put a wrap around the heart, or you take out a 
section of it, that may not be the overall best practice, but it could 
be ``generally accepted practice'' or ``generally accepted'' but not 
the ``best medical practice.'' I don't want to get into writing these 
definitions into Federal statute.
  The distinction that has been made in several bills when we talk 
about ``medical necessity'' is also a very important issue because for 
the layperson, or the patient sitting out there, you would think that 
``medical necessity'' would be easy to define. But saying what is going 
on out there in the health care arena, what is the range of treatment--
we have seen charts on the floor that basically show that the range of 
treatment is huge in America, charts on how to treat urinary tract 
infections 80 different ways by 170 different physicians.
  What that basically says is the range of treatment is huge--the 
variety. It doesn't say whether all of those are good or whether all of 
those are bad. But the fact that it doesn't say that and the practice 
is so wide, we don't want to make that the gold standard. If we were 
going to write something into Federal statute, we shouldn't say 
``generally accepted medical practices'' because in truth it takes not 
the lowest common denominator but it takes the common denominator and 
makes that the standard.
  I think it is very dangerous to say ``best practices'' will be the 
standard. That is why I don't think ``best practices'' should be 
written into Federal statute as the definition.
  Why is that? It is because ``best practices'' are evolving over time. 
Yes, you can have studies in the New England Journal of Medicine and in 
the Journal of the American Medical Association of the greatest 
breakthrough, but you can't expect that greatest breakthrough which 
might be in truth the best practice 3 or 4 or 5 years later to 
immediately be disseminated to hundreds of thousands of physicians the 
next day across the United States of America.
  I am trying to spend a little bit of time with this because I think 
it is dangerous to try to define ``medical necessity'' in Federal 
statute. We can still use the terms. You need ``medical necessity'' in 
there--what is ``medically necessary and appropriate''--but I don't 
think we should. I think we are doing a disservice if we try to define 
it. I struggled. We tried in our committee and in our staff to come up 
with a good definition. It doesn't mean that health care plans aren't 
going to try to define what is ``medically necessary and appropriate.''
  The reason this bill is necessary is that some managed-care plans 
have terrible definitions. They say what is ``medically necessary and 
appropriate.'' They might say that it is effective and that it has had 
proven efficacy in the past. But some will go so far as to say what is 
the most efficient or what is--they don't say it this way--but what is 
the least expensive, and once they have put it in the contract, the 
people will come back and point to that.
  Those are bad definitions. But that same sort of risk of writing in 
the definition in Federal statute, again, can be very dangerous if we 
are looking for quality of care in an evolving health care marketplace.
  The beauty of our bill is that we fix the system. We go to where the 
problem is. We don't bring in a trial lawyer or a lottery where people 
wait 5 years on average to have a medical malpractice lawsuit.
  I didn't participate in the earlier discussion today. But when you 
look at medical malpractice, my experience in medicine is that when you 
look at health care and lawyers, it is in medical malpractice. 
Basically, we know that is a very costly system. Most people just want 
to get something covered and don't know how to go out and hire a 
lawyer. Most lawyers, because they are operating on contingency fees, 
aren't going to fool with the $5,000 case, or the $20,000 case, or the 
$50,000 case. They will fool with the $1 million case. Then it becomes 
very arbitrary. You have a costly system that is an arbitrary system.
  The third point is that it takes forever. It is a time consuming 
system. Earlier studies, I am sure, were quoted on the floor. The 
average malpractice case takes 5 years before recovery is made. That is 
an average of 5 years. That means some are 6, 7, 8, or 9 years.
  The American people want to fix the system. They want the reassurance 
that their managed care plan is not denying coverage.
  I yield myself 3 more minutes, and then I will yield to the Senator 
from Texas, if I may. I will finish this one thought.
  What the American people want is for us to get away from this fear 
that managed care is overriding what they or their physician, in 
consultation with each other, think and believe is appropriate and, in 
truth, provides good quality of care. The reason I believe we were 
stuck on this vote earlier is the American people are saying let's fix 
the system, but let's make sure that we remove the barrier to the 
coverage that I deserve, that I expect, and that is appropriate for me, 
and that it is delivered in a timely way.
  That is not helped by a very expensive lawsuit which is not going to 
be settled for about 5 years, at least in medical malpractice. It will 
not allow a person to get coverage for that cleft lip repair of a child 
or the appendectomy or the laryngitis.
  We want to do what is best for Americans, best for children, and 
allow that timely access of care, removing unnecessary barriers. There 
will be certain barriers. remove the unnecessary, unjustified barriers, 
so that Americans can rest assured they can, in a timely way, receive 
good, quality care. That is the purpose of this bill.
  I have been pleased with our discussions. As we accept some 
amendments and reject others, I know we can come up with a good bill 
later today.
  I yield such time as necessary to the Senator from Texas.
  The PRESIDING OFFICER. The Senator from Texas.
  Mrs. HUTCHISON. Is it possible to have 20 minutes?
  Mr. FRIST. I yield 20 minutes.
  Mrs. HUTCHISON. I thank Senator Frist for his leadership in this 
area. Certainly all Members look to the one doctor in our body to give 
us advice, not only on what we need to do to make patient care better 
but to know the system well enough to know what will cause more harm 
than good. I appreciate the steady level-headedness of

[[Page S8561]]

the Senator from Tennessee. We are fortunate to have a physician in our 
  Our Nation has the highest quality health care anywhere in the world. 
There is no question about that. In my home State of Texas, in our 
largest city of Houston, the biggest employer in the whole city is the 
health care industry, the Texas Medical Center. It contains world-class 
hospitals, including the renowned University of Texas M.D. Anderson 
Cancer Center, which is the finest cancer treatment center in the 
world. Baylor College of Medicine, too, is a world leader in the 
treatment of cardiovascular disease. Houston is the home of the fathers 
of modern heart surgery: Dr. Michael DeBakey and Dr. Denton Cooley.
  In the city of Dallas, TX, the University of Texas Southwestern 
Medical School has four Nobel laureates. They are doing research that 
is changing the quality of health care for our future. They are doing 
it because we have a system that allows for the investment in research. 
It allows for the treatment that is the best for diseases.
  We don't want to break something that isn't broken. We don't want to 
try to fix something that isn't broken. We want to make sure we are 
giving better quality health care, that we are going to continue to 
have research and be in the forefront of research and technology as we 
go into the next millennium, trying to make sure we are doing the right 
  There are problems. We have too many uninsured. Too rapid growth of 
HMOs and other service providers has caused some to be left behind. We 
must address these problems. Are there problems with HMOs? Absolutely. 
Do we need to increase the number of insured Americans? Of course.
  If the American people remember the health debate we had in 1993, 
this Nation soundly rejected an outright Federal takeover of health 
care. That bill went down once America realized that their doctor, 
their hospital, everyone involved in the health care industry in this 
country would have to answer to a massive bureaucracy in Washington, 
  Under global cost limits, total health care spending in this Nation 
would be capped by Washington. Any way you slice it, what the 
administration offered was Government rationing of health care.
  Today, we are considering legislation that would impose 350 new 
Federal mandates and regulations on our Nation's health care system. 
There has been discussion about the cost of these mandates, whether 
they will cost as much as a Big Mac or a McDonald's franchise. Either 
way, there will be increased costs, and more Americans could lose their 
  Once a mandate becomes law, a Federal agency here in Washington will 
issue regulations or interpretations of that mandate. We have only to 
look as far as the Health Care Financing Agency to see what a total 
disregard of congressional intent can do in the health care industry. 
While Congress did mandate more efficiencies, they did not mandate the 
cuts that HCFA made in our hospital industry and to our health care 
providers, such as physicians and home health care service agencies. We 
can see what Federal control of a health care industry does by looking 
at what HCFA is doing to the health care providers in this country 

  I think we need to move very carefully into the arena of more Federal 
regulations of our health care industry. We do need to do something 
more than we are doing right now. However, I think we need to be very 
aware that we could go too far and throw out the baby with the 
  I believe Democrats and Republicans want to make sure patients have 
basic rights when they and their family members need health care. It is 
wrong for an HMO to deny coverage for medically necessary treatment. It 
is wrong to allow a patient to get lost in red tape and unnecessary 
  Both of our bills seek to empower patients when they are dealing with 
their health care industry and their insurance companies. However, 
there are three major differences in the way in which Democrats and 
Republicans are approaching the issue of managed care.
  First, we believe that cost matters and that higher costs will 
translate into more Americans losing their coverage.
  Second, Republicans recognize that the Federal Government and a 
Federal bureaucracy should not impose a one-size-fits-all approach to 
ensuring quality care.
  Third, we believe good health care is better than a good lawsuit.
  With regard to costs, the Congressional Budget Office has said that 
the Democrats' plan will cause health insurance to increase in price by 
6 percent above the current rate of inflation. By some estimates, that 
could lead to an estimated 1.8 million Americans losing their health 
  Mr. President, 1.8 million people is a city the size of Houston 
relying on free clinics or charity coverage. That is what the Democrat 
bill will do.
  The new mandates in the Democratic bill will also cost an estimated 
190,000 American jobs and additional out-of-pocket costs by the average 
family of $207 a year. This is not acceptable. The average cost per 
family for employer-provided health premiums has already more than 
doubled over the last decade from $2,530 in 1988 to $5,349.
  The provisions of the Republican bill will also cost money, but the 
total cost of our bill as calculated by the Congressional Budget Office 
is less than 1 percent in increased health premiums. These increases 
are more than offset by the provisions in our Patients' Bill of Rights 
Plus that will make health care more accessible and affordable for all 
  For the self-employed, our approach will make 100 percent 
deductibility of health insurance available next year--not in 5 years, 
as currently envisioned. Next year, every small business owner, every 
stay-at-home parent with their own business, will get exactly the same 
tax treatment for health insurance that corporations presently enjoy. 
This is long overdue.
  The bill will allow employees the so-called flex plans or cafeteria 
plans to roll over to the next year up to $500 in unused funds to 
health insurance premiums or other out-of-pocket health costs. Under 
the present use-it-or-lose-it flex plans, they are not able to keep the 
money they have not spent. We want to encourage them not to spend money 
they do not need to spend by allowing them to roll it over.

  The second major difference between our two bills and our two 
approaches is that the Democratic plan assumes Washington knows better 
than individuals, States, and health care providers what is in their 
best interest. We heard so much this week about how some of the 
provisions of the Republican bill do not apply to all private health 
care insurance. That is true. For those health plans that are now 
regulated exclusively by the Federal Government, we ensure that 
patients have their rights, such as direct access to OB/GYNs, direct 
access to pediatricians, access to specialists, and access to emergency 
room care. But, for the vast majority of Americans with health care, it 
is the States that have jurisdiction over their plans. This has been 
the case for several decades, ever since there has been health 
insurance in our country. Since the advent of HMOs, more and more 
States have acted to regulate managed care plans to ensure that the 
residents of their States enjoy the same protections we are proposing 
for the federally regulated plans. Every State in America has some 
regulation of their managed care companies today.
  There are wide differences in approach by various States, but there 
are wide differences among the States. Why should there not be wide 
differences if the States are acting on behalf of their own 
constituents, which they know better than we do? Who is to say the 
patient protections and regulations in New York are the same that the 
citizens of Texas would want? I do not want to take responsibility for 
deciding that New York should be doing something because Texas likes 
  The Democratic bill is too federally centered and heavyhanded in 
other areas as well. We have heard much discussion of medical 
necessity. The Democrats say they only want to allow physicians to do 
what is medically necessary. That sounds fine, but what do they mean by 
medical necessity? It goes to an agency that will have 250 pages of 
regulations about what is a medical necessity. And there we have it 
again, one-size-fits-all.
  By trying to do this in Federal law, the Democratic plan empowers a 
Federal Government employee to make those decisions, not your doctor 
talking to you about your needs. Under our

[[Page S8562]]

system, we let an external review board of professionals, who are not 
associated with the HMO, decide who is right in making the call for the 
care. If the HMO says they are not going to cover a certain procedure, 
and the patient and the doctor decide that is not the right decision, 
the patient can internally appeal within the HMO, within a short period 
of time, and then appeal again to an outside panel of experts not 
associated with the HMO. That is the system we have in Texas, and it is 
  In 1997, Texas enacted an innovative and broad set of managed care 
reforms, including a host of patients' rights that are included in our 
bill today. The Texas plan includes the right to both internal and 
external appeal if the HMO denies a claim. In fact, in Texas, before 
you can even think of suing your HMO in court, you must exhaust your 
administrative remedies, and because the State tried to apply its 
external review provisions to federally regulated as well as State 
regulated HMOs, a Federal court has struck down part of the State law. 
But it was working very well.

  The State recently acted to revive the external review section of the 
law. Now the system is voluntary. But, surprisingly, HMOs and other 
health plans are still willing to participate and be bound by the 
external review process in Texas. And it is working.
  The Republicans' Patients' Bill of Rights Plus establishes a 
national, internal, and binding external appeals process using the 
Texas statute as a guide. It is a good system. I think it will work for 
the federally covered plans as it has worked in Texas. In fact, in 
Texas it has worked so well that, of more than 300 appeals heard under 
the external review system, only one lawsuit has emerged, and the 
appeals have gone about 50-50 in favor of both patients and health 
  This brings me to the third major difference between the Democrat and 
Republican approach, and that is they believe lawsuits are the answer 
to better care, and we disagree. Good health care is prospective. A 
lawsuit is retrospective. An adequate external review process helps 
ensure that HMOs will not arbitrarily deny coverage for benefits. It 
will make them want to improve the quality of the care and services 
they provide in the future. A lawsuit, on the other hand, only seeks to 
shift money around long after the fact, to try to determine who was at 
fault and how much they owe. At that point, patient care is obsolete. 
We are talking about fault. I would rather focus on what we can do to 
give that patient the care when the patient needs it.
  All one needs to do, if the suggestion is that more lawsuits are the 
answer, is to look at our current medical malpractice tort system. Many 
physicians in this country may be upset with the growth of managed 
care, but most of them are far more concerned with the tidal wave of 
lawsuits against doctors and other health care providers that we have 
seen in recent decades. These lawsuits, costing hundreds of billions of 
dollars, have done little to improve the practice of medicine in 
America. In fact, I wonder if they do not cause more defensive medicine 
rather than better care. In fact, in some ways, I think they have 
alienated the doctor-patient relationship.
  So look at the range of views here. The Washington Post said last 
year that expanding lawsuits in this area was probably wrong. The Post 

       There appears as well to be an impulse among congressional 
     Democrats to make insurers and companies that self-insure 
     liable for damages. The impulse is understandable but the 
     threat of litigation is the wrong way to enforce the rational 
     decisionmaking that everyone claims to have as a goal. The 
     proposed appeals system should be given a tryout. ``First do 
     no harm'' is the rule of medicine. It should be the rule on 
     legislating as well.

  Mr. President, I know my colleagues across the aisle are trying to 
address complaints they have heard from their constituents. But rather 
than again mandating new rules that will drive up the cost of health 
care, the American people would be much better served with a carefully 
tailored approach that respects the ability of patients, professionals, 
and State regulators to make their own decisions about what is best 
practice in their States and within their communities.
  The Patients' Bill of Rights Plus does just that. It makes sure that 
HMOs are accountable, without scaring employers away from even offering 
insurance to their employees. It gives patients rights without 
encouraging inflationary rises, and empowers health care providers to 
provide the care their patients need but without Washington having to 
look over everyone's shoulder. It is the right answer, and it is the 
right time.
  Mr. President, I thank the leadership, Senator Frist, and Senator 
Collins, and those who have worked closely on the task force to make 
sure we do provide the rights to patients in an affordable way that 
will not drive up costs and drive people out of the system. That should 
be our goal.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Voinovich). The Senator from 
  Mr. KENNEDY. Mr. President, we have 2 \1/2\ minutes left. I will use 
those minutes.
  I want to point out for the benefit of the membership, we have almost 
concluded our 50 minutes of debate. The debate has included a number of 
different amendments. All are very important because they all relate to 
the doctor-patient relationship. That is the heart of our entire bill. 
The heart of our bill is to make sure that medical professionals are 
able to practice the best medicine and make the best recommendations 
and that the insurance companies will comply with those 
recommendations. The heart of our bill is maintaining the relationship 
between the doctor and his or her patient. That is the heart of our 
bill. We still have not had any real criticism, observations, or 
comments on those issues.
  We had some debate in the HELP Committee when these matters were 
raised. I note the proponents of those particular amendments--those who 
were on the committee and those who were not--were on the floor ready 
to respond to questions. Nonetheless, we have heard debate on the 
overall legislation. We still have not heard a response to what I think 
has been a powerful presentation in favor of these measures. Again, I 
will mention very quickly what this amendment is about.
  This amendment is critical to preserving the relationship between 
medical professionals and patients, as well as providing fair 
information to consumers. Today, medical professionals are too often 
gagged, harassed, and financially penalized if they advocate for their 
  I am reminded in my own State of Massachusetts of Barry Adams who was 
fired for simply reporting quality of care problems to his superiors. 
This happened just 3 months after he received a glowing evaluation that 
said he was an excellent role model, conducted himself in a 
professional manner, was an advocate for patients, and channeled his 
concerns appropriately.
  Yet after he spoke up about his concerns, the facility mounted a 
campaign to oust him. The month he was fired, a woman died from a 
morphine overdose given by an unsupervised junior nurse. This was the 
very type of incident Barry reported previously, the very type of 
incident that Barry reported in the complaint that led to his firing. 
The facility also retaliated against two of his colleagues who reported 
unsafe patient conditions.
  Barry fought back, and more than a year after he was fired, a judge 
ruled that Barry's termination was unlawful. The judge ordered the 
hospital to reinstate Barry, pay all back wages and expunge his record. 
He won. But the point is, he never should have been fired in the first 
place. This amendment prevents that from happening.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. KENNEDY. Mr. President, if patients cannot count on their doctor, 
quality medical care is impossible. If doctors cannot do their best for 
their patients without fear of retaliation, quality medical practice is 
impossible, too.
  This amendment protects the relationship between the doctors and 
their patients. The Republican bill protects only the insurance 
companies. Part of the doctor/patient relationship is being able to go 
to the medical professional of your choice, not the HMO's choice.
  This amendment establishes a point-of-service option that guarantees 
that choice. The Republican bill offers no meaningful guarantee.
  Without the type of information the ombudsman program provides, too

[[Page S8563]]

many consumers will simply be unable to exercise the rights this bill 
proposes to grant. As our friend and colleague, Senator Reed, pointed 
out, giving consumers information so they will have their rights 
protected under their HMO is so important. This amendment provides 
basic, commonsense protections for health professionals and patients, 
and I know of no valid reason that it should be opposed.
  Mr. President, I reserve the remainder of my time. 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. ENZI. Mr. President, I rise in opposition to the amendment.
  I have sat here and listened to the arguments from the other side. 
There is part of this amendment the Democrats didn't even talk about. 
The problem is that this part of the amendment will make things worse, 
and not just for doctors and nurses. It will put patients at risk by 
allowing providers to release the intimate details of a patient's 
treatment without having to worry about being accurate or even 
  Here is how. Under the Democrat amendment, any provider could 
disclose any information about a patient at any time for any reason. 
This fact is so important that I want to say it again: under the 
Democrat amendment, any provider could disclose any information about a 
patient at any time for any reason. And as bad and unbelievable as that 
is, that's not even the worst of it. This amendment allows a provider 
to do the worst of all things--not only to give out information about a 
patient, but even lie about it--and not be held accountable. How can 
that be possible, you ask? Isn't that against the law? Not if this 
amendment passes, it's not. If this amendment passes, that possibility 
is a reality, and your private health records will be held hostage by a 
provider who can make an unchecked decision to disclose them without 
asking your permission and who can't be penalized for doing so.
  But that is not all. There is no requirement in the Democrat 
amendment that when a provider exposes your confidential records, that 
the provider make disclosures only within his area of expertise. So if 
an anesthesiologist wants to reveal something about the way your ear 
exam was performed, the Democrat amendment says that is okay. There is 
nothing saying that the person disclosing your information has to know 
anything about either the procedure or your case before revealing 
everything about it--in fact, he doesn't even have to witness the 
treatment or ever have met you--and there's nothing saying he will be 
held accountable if he's mistaken or just flat out wrong. Adding insult 
to injury, the Democrat amendment doesn't even say that the disclosure 
has to relate to safety and health. All the amendment says is that the 
disclosure must be based on squishy terms that aren't even defined. For 
example, the amendment says that the disclosure must be based on 
information, and I'm quoting here, that the provider ``reasonably 
believes * * * to be true.'' It is unbelievable to think that this 
flies under the Democrat amendment. It is unbelievable that the 
amendment would allow a patient's health information, records, and 
private treatment details to be jeopardized and publicized without his 
consent, based on something that a total stranger ``reasonably believes 
to be true'' and is not even related to the patient's own safety. 
Exposing patients to such a high degree of risk without tying 
disclosures to patient safety, expertise or even accuracy is not only 
unacceptable, it's just plain wrong.
  What the Democrat amendment completely ignores is that procedures 
specifically related to the health care industry are in place for 
reporting problems with patient safety and health right now. The 
amendment also completely ignores and steam rolls all the state law in 
this area. I find it fascinating that the other side has said over and 
over and over again in this debate that their bill will not shift 
decisionmaking from the state capitals to Washington bureaucrats, and 
then they propose an amendment like this.
  I want to talk about what this does to state law, and then talk about 
the procedures that are in place now.
  On the first day of this debate, I heard no less than four Senators 
on the other side of the aisle characterize our ``states rights'' 
argument as being ``tired'' and ``old.'' Well, while I might take issue 
with it being ``tired,'' I certainly agree that it is ``old.'' In fact, 
it's as old as the Constitution. And if you are tired of hearing about 
it, think about this: How many times have you been to Wyoming? What do 
you know about the folks there? I can tell you that it's true they need 
access to good health care, and I can also tell you that folks there 
don't want the Federal government to step in and trump what the Wyoming 
Legislature has done to protect them. They don't want one standard that 
applies to everyone regardless of who they are, where they're from, and 
how they live. And if those on the other side of the aisle think that 
the people I represent in Wyoming are exactly like New Yorkers or 
Californians, then I suggest you head back to Cheyenne with me this 
weekend and see if you change your mind.
  One size fits all doesn't fit when we are talking about giving 
providers ways to report patient safety problems and protecting them 
when they make disclosures. Over 25 states have their own language 
prohibiting employers from retaliating against providers who disclose 
information relating to patient safety within a recognized framework. 
That's over 25 states with different laws and different reporting 
procedures; 25 states that offer different rights and responsibilities. 
I cannot underscore the importance of this enough. To a Democrat caucus 
that has repeatedly said that their bill will not shift the 
decisionmaking from the state capitals to Washington bureaucrats, I 
challenge you to tell me how such a statement jives with an amendment 
such as this one that fully wipes out state law. Not only that, I 
challenge you to tell me how this flawed amendment is better than the 
law that exists on the state books. More on this in a minute.
  Bottom line, this amendment allows providers to file complaints 
disclosing confidential patient information without permission. These 
complaints don't need to relate to safety and health. The provider does 
not need to know anything about who or what they are disclosing--
whether it be the specific patient treatment or the patient himself. 
And finally--and most ridiculously--the provider doesn't need to be 
accurate because he can't be penalized for inaccurate statements, 
misleading information or even downright lies about the patient or 
other health care providers. How in heaven's name could any state law 
anywhere be worse, or more destructive, than this? Indeed, having no 
law whatsoever would be vastly better.
  But you do not have to take my word for it. Just take a look at some 
of the State laws. In California, for example, providers cannot 
disclose information that violates the confidentiality of the 
physician-patient privilege. An important provision. Is it anywhere to 
be found in the democrat amendment? No. The amendment ignores it 
entirely. What about a Rhode Island law that eliminates any protection 
for providers who participate or cause the problem being reported, or 
who provide false information? That one is pretty important, too. Also 
nowhere to be found in the Democrat amendment.
  The body of state law that it would destroy is incredibly vital 
whether we're talking about ERISA plans or not, because the courts have 
definitively held that where quality of care is concerned, state law 
trumps ERISA. As the Supreme Court has held, ``the historic powers of 
the State include the regulation of matters of health and safety.'' 
Another seminal third circuit case has held in citing the Supreme Court 
that, while the quality control of health care benefits might 
indirectly affect the sorts of benefits an ERISA plan can afford, they 
have traditionally been left to the states, and there is no indication 
in ERISA that Congress chose to displace general health care regulation 
by the states. It's clear: the courts have deferred to the states when 
it comes to quality of care. I think that the democrats should take a 
lesson from this.

  I have heard it said, however, that we need not worry about the 
overhaul of state law that occurs under the Democrat approach to health 
care because their bill will merely set a ``floor'' upon which States 
can build. Such a

[[Page S8564]]

statement is questionable given an amendment such as this that is so 
flawed that it actually protects those who publicize confidential 
patient information and lie about it without giving the patient or 
other accused providers an opportunity to object. As a former state 
legislator, I say respectfully, ``thanks, but no thanks.'' The only 
floor this sets for the States is the one they will stomp on when they 
take one look at this bill.
  So who should investigate claims of wrongdoing and retaliation? I 
have mentioned that lots of other procedures are in place that allow 
for reporting and are specific to the health care industry. One of the 
biggest and most far-reaching of these is the reporting mechanism in 
place at the Joint Commission on Accreditation of Healthcare 
Organizations. The Joint Commission covers over 80 percent of the 
approximately 6,200 hospitals in this country that receive Medicare 
payments. These charts I have next to me are blow-ups of information 
taken directly off of the Joint Commission's website and show not only 
how reports and concerns about patient care can be disclosed, but also 
what followup occurs in response.
  Here is how the process works. If a provider wants to report an 
alleged problem, that provider has several choices under the Joint 
Commission. He can e-mail a complaint, fax a complaint, mail a 
complaint, or call the Joint Commission directly using their toll free 
number. And there are a couple of points I want to make about why this 
process is so much better, more related to the health care industry, 
and has much stronger teeth than this amendment. First, using the Joint 
Commissions' toll free number, reporting concerns can be immediate and 
confidential. Not only that, communications with the Joint Commission 
can be made in English or in Spanish. Second--and this one's really 
important, too--all complaints must relate to quality of care issues 
and patient safety unlike the democrat amendment which can relate to 
anything. Third--and perhaps most important of all--where serious 
concerns have been raised about patient safety, the Joint Commission 
will, and I emphasize ``will'' conduct an unannounced, on site 
investigation. Period. And with the Joint Commission, there will never 
be any concern over who's investigating problems. The Joint 
Commission's standards are recognized as representing a contemporary 
national consensus on quality patient care, and these standards are 
continuously reviewed to reflect changing health care practices. This 
is a real solution that combines a proactive reporting method to make 
sure that patient quality is not compromised, with an appropriate and 
strong follow up with mandatory, unannounced, on site inspections by an 
organization that knows the health care industry as well as anyone.

  In addition to all the State laws setting up reporting procedures and 
protections for providers, and in addition to the practices in place 
such as the Joint Commission, there are other controls. Hospitals that 
receive Medicare payments and that are not accredited by the Joint 
Commission are certified by the states. All these hospitals are 
required to provide patients with a document that explains their rights 
including a phone number where they can call a state agency to make a 
complaint about quality of care issues. These rights must also be 
posted. Yet another control is that patients--and even providers--can 
anonymously complain to the Medicare Program's Peer Review Organization 
on quality of care matters. Providers may also complain to HCFA's 
regional offices, state survey agencies and professional licensing 
  I have heard the stories about providers who have disclosed 
information and then were retaliated against. What I don't know is why 
the state laws, the Joint Commission's reporting process, state 
reporting processes, Medicare reporting processes, HCFA's reporting 
processes, and the professional licensing board--among other 
protections--are not working. I have in my hand a copy of the HELP 
Committee's report on the Patients' Bill of Rights and all of the 
amendments introduced to the bill. You may remember that an amendment 
similar to the democrat amendment introduced here today was introduced 
during the markup of this bill. I happened to remember that amendment, 
too, and so I picked up a copy of the committee report and began to 
leaf through the minority comments to find their explanation of the 
amendment. I was looking for some reason--other than pure politics--
about why an amendment like this is needed, about what isn't working in 
the system that must be fixed, and about why current laws, practices 
and procedures aren't enough. This is what the committee report is for, 
right? So I looked, and I looked. Out of the report's main body of 108 
pages, 99 pages were written by the majority to explain and to support 
our bill. Only nine pages were written by the minority--nine. So out of 
nine pages, you would not think it would take too long to find some 
information--any information--about one of the minority's major 
amendments. I did not think so either, but I was wrong. I did finally 
find the minority's reference to the amendment, though. It was three 
sentences long. Three sentences out of nine pages on a major amendment. 
Let me read them to you: ``Doctors and other providers must be able to 
give every patient their best possible advice, without fear of 
retaliation or financial penalties.'' So far, so good. ``Out plan bans 
abusive insurance industry practices that undermine the integrity of 
the doctor-patient relationship. The committee legislation does not.'' 
So I kept reading. I scanned the page. What abusive industry insurance 
practices? I wanted to know. Why do providers fear retaliation? Why are 
current law, current practices, and current procedures not working? 
Nothing. Wouldn't you think that if the majority was able to spend its 
time writing 99 pages supporting its position, the minority might have 
been able to spend just a little more time adding even one paragraph to 
its nine pages on this? Not even one paragraph on an amendment that the 
democrats say is so vital. It just doesn't make any sense.
  I have heard time and again that Republicans are weeping ``crocodile 
tears'' about our bill. In fact, out of those mere nine pages in the 
minority's committee report, an entire sentence was wasted making this 
statement. But it seems to me that when you lay down amendments and 
don't share information about why we should trump state law in support 
of an amendment that protects providers who disclose misleading and 
confidential patient information unrelated to the patient's safety, 
then I think it is the democrats who are the ones crying crocodile 
tears when people like me are baffled by their empty allegations and 
outlandish solutions.
  Mr. President, I yield the floor.
  Mr. KENNEDY. I yield back any time I have on the amendment.
  Mr. FRIST. I yield back the remainder of our time on this amendment.

                Amendment No. 1252 To Amendment No. 1251

  (Purpose: Enhancing and augmenting the internal review and external 
   appeal process, covering individuals in approved cancer clinical 
  trials, improving point-of-service coverage, protecting individuals 
  when a plan's coverage is terminated, and prohibiting certain group 
  health plans from discriminating against providers on the basis of 
                       license or certification)

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

       The Senator from Tennessee [Mr. Frist], for Mr. Ashcroft, 
     for himself, Mr. Kyl, Mr. Mack, Mr. Frist, Mr. Sessions, Ms. 
     Collins, Mr. Crapo, Mr. Abraham, Mr. Jeffords, Mr. Enzi, Mr. 
     DeWine, Mr. Grassley, Mr. Hatch, and Mr. Helms, proposes an 
     amendment numbered 1252 to amendment No. 1251.

  Mr. FRIST. Mr. President, I ask unanimous consent that the reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The text of the amendment is printed in today's Record under 
``Amendments Submitted.'')
  Mr. FRIST. Mr. President, very quickly, because we have a lot of 
ground to cover over the next 100 minutes, the amendment that has been 
sent to the desk involves basically five components. I will be relying 
on a number of my colleagues coming to the floor, all of whom have 
worked for weeks and months and, in some cases, well over a year on 
these amendments.
  The first of these components is on external appeals. As we continue 
to address the issues before us, it is very important to have the 
American people

[[Page S8565]]

recognize we are going to continue to improve this bill as we go 
  A second component is the clinical trial issue, an issue Senator Mack 
and I have worked very aggressively on over the last year with a number 
of our colleagues on both sides of the aisle, an issue that had been 
addressed initially earlier in the week that, as we said before, we are 
going to come back to and lay out what we think is the most reasonable 
way to achieve a very important goal, and that is to increase access to 
important clinical trials.
  A third component a number of Senators, again Senator Collins and 
Senator Grassley, will be speaking to is on provider nondiscrimination, 
and we will be looking at some protections that are similar to those in 
Medicare and Medicaid.
  A fourth component of this amendment--again a very important one 
because it involves choice, and again we are working to improve this 
bill as we go through with the amendments--is on point of service where 
we expand choice, which again is a basic underlying principle of the 
Republican efforts in this bill.
  The fifth component that will be addressed is continuity of care, 
again a very important issue, the whole issue of extending the 
transition period for patients.

  We have a lot to cover over the next 100 minutes. To me it is very 
pleasing, having participated so much on each of these issues, that 
upon passage of this amendment with its five components, we will do a 
great deal to improve the quality of care of individual patients. That 
is where our focus must be.
  We are going to begin with the issue of clinical trials, again 
picking up on the discussion earlier in the week. I yield 12 minutes to 
the Senator from Florida.
  The PRESIDING OFFICER. The Senator from Florida.

                         Privilege Of The Floor

  Mr. MACK. Mr. President, I ask unanimous consent that Dr. Larry Kerr, 
a health fellow for the Judiciary Committee, be granted the privilege 
of the floor for the remainder of the debate on the Patients' Bill of 
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. MACK. I thank the Chair.
  Mr. President, I am pleased to be joined by Senator Frist, Senator 
Jeffords, and Senator Collins, and others, as we offer this amendment 
to provide cancer patients with coverage of health insurance benefits 
when they participate in approved clinical trials.
  Many health plans will not pay for the cost of routine patient care 
if patients want to participate in a clinical trial. As a result, 
beneficiaries with cancer are denied access to these trials of 
promising new therapies because these therapies are deemed 
``experimental'' by most health plans and, therefore, not qualified for 
coverage. This means many cancer patients have two choices when they 
have exhausted all traditional therapies: either pay the cost of 
participating in a clinical trial themselves or go without additional 
  For all but the most wealthy patients, it is cost prohibitive to take 
part in a clinical trial. This amendment will help ensure that a 
patient's decision about whether or not to participate in a clinical 
trial is based upon science and not cost.
  Clinical trials are one of the most effective ways of determining 
which treatments are beneficial. Yet cancer researchers have told me 
they have had difficulty enrolling the required number of patients to 
participate in the clinical trials they are conducting. Scientists have 
identified noncoverage by private insurers, as well as Medicare, as one 
of the primary reasons why patients do not participate in clinical 
  For example, approximately 2 percent of cancer patients are 
participating in clinical trials. This amendment will help scientists 
recruit cancer patients who wish to participate in clinical trials by 
breaking down the financial barriers which may preclude most patients 
from participating.
  Clinical trials are one of the most effective techniques for 
assessing the effectiveness of a scientific and medical intervention. 
Many of my Senate colleagues have joined with me in a bipartisan effort 
to double biomedical research funding through the National Institutes 
of Health. Last year, Congress appropriated $15.6 billion for NIH. This 
represented a $2 billion increase, the largest increase in NIH history. 
At a time when American researchers are making such tremendous progress 
in scientific areas such as cancer genetics and biology, it is 
essential that this knowledge be translated into new therapies through 
well-designed clinical trials. This amendment is a natural extension of 
the historic effort to double funding for medical research in our 
  When my brother, Michael, was diagnosed with cancer, there were only 
three basic forms of treatment--surgery, radiation, and chemotherapy. 
Today, scientists are revolutionizing the treatment of cancer by 
developing many new weapons to kill cancer, including gene therapy and 
  On a personal note again, every time I get into these discussions, 
and every time I see the new efforts that are being pursued, and the 
successes that have been developed, I cannot help but think if 
Michael's melanoma had been discovered or if he had found the disease 
much later in his life, when these new procedures--gene therapy and 
immunotherapy were available--and if he had been able to participate in 
a clinical trial, which he attempted to do throughout his treatment 
many years ago, his life may have been saved.
  This amendment will help scientists continue the unprecedented 
progress being made to find new methods of treatment.
  Coverage of cancer clinical trials is a bipartisan issue. Earlier 
this year, for example, Senator Rockefeller and I introduced 
legislation to provide for Medicare coverage of cancer clinical trials. 
I am pleased to say that 36 additional Senators, from both sides of the 
aisle, have cosponsored this legislation. I look forward to working 
with my colleagues to pass this important legislation during the 106th 
  The reason Senator Rockefeller and I targeted our legislation to 
cancer is the same reason we have targeted this amendment to cancer 
today--there is a legitimate debate about what the true cost may be. 
Senator Rockefeller and I believe the cost will be insignificant. And 
we have the studies to prove that.
  However, there are legitimate concerns with respect to cost which 
have been raised. Both the amendment we offer today and the 
Rockefeller-Mack legislation, call for a study and report to Congress 
in 2005 on the cost implications of covering cancer clinical trials.
  I support comprehensive coverage of clinical trials. But, at this 
time, we need more information before we go further. This amendment 
will help provide the information we need to make a better informed 
  During markup of S. 326, the Senate Committee on Health, Education, 
Labor, and Pensions considered an amendment offered by my friend and 
colleague, Senator Dodd, to provide clinical trial coverage.
  Since then, my colleagues and I have more thoroughly studied this 
amendment. We have examined what barriers exist that impede enrollment 
in clinical trials. We looked into the cost implications. We considered 
the best way to define the term ``routine patient costs.''
  Let me first highlight the many similarities in our amendment and the 
amendment which Senator Dodd offered during committee consideration.
  Our amendment requires plans to provide coverage of routine patient 
costs. I will get back to that term in a few minutes.
  Our amendments ensures that health plans are not required to pay for 
costs of items and services that are reasonably expected to be paid for 
by the sponsors of a clinical trial. This includes tests or 
measurements conducted primarily for the purpose of a clinical trial.
  Our amendment permits plans to require clinical trial participants to 
use in-network providers, if they are available. If coverage is 
provided by a nonparticipating provider, payment would be at the same 
rate the plan would pay for comparable services to a participating 
  Our amendment is limited to those health plans over which Congress 
has sole and exclusive jurisdiction.
  Our amendment is limited to only the highest-quality clinical trials. 
These include trials approved and funded by the National Institutes of 
Health, the Department of Veterans Affairs,

[[Page S8566]]

and the Department of Defense. Only those trials which have undergone 
the rigors of peer-review will be considered.
  Our legislation differs with Senator Dodd's proposal in three ways.
  The first difference is how to best define the term ``routine patient 
cost.'' In researching this issue, we have found that there is not a 
generally accepted definition of the term, ``routine patient cost'' 
associated with participation in a clinical trial. The Balanced Budget 
Act required the Institute of Medicine to conduct a study on the issue 
of cancer clinical trial coverage, including the definition of routine 
patient costs. This study is due in September, and it will likely help 
us to better define this highly technical term. There are other experts 
who have opinions on how to define the term ``routine patient cost.'' 
We believe it is best to leave this task to patients, employers, health 
plans and those with true expertise in the field of clinical trials.
  It is essential to remember that protocols for clinical trials vary 
widely, and routine patient costs for clinical trials also vary. 
Scientific researchers have indicated that developing one standard for 
determining routine patient costs will be a daunting task. I don't 
believe Congress is best qualified to make this important scientific 
  Therefore, our amendment provides for a negotiated rulemaking process 
to establish a time-limited committee charged with developing standards 
relating to the coverage of routine patient costs for patients 
participating in clinical trials. This way, organizations representing 
cancer patients, health care practitioners, hospitals, employers, 
manufacturers of drugs and medical devices, medical economists and 
others will be involved in the process of defining routine patient 
costs with respect to clinical trials.
  By May, this committee is required to develop standards for routine 
patient costs for individuals who are participating in those trials. If 
the committee is unable to reach a consensus, then the Secretary must 
develop these standards and publish a rule by June 30, in the year 
2000. In either case, coverage for these benefits would begin for plans 
beginning on, or after, January 1, 2001.
  We believe that a negotiated rulemaking process is the best way for 
organizations representing all who are affected to collectively 
determine what costs should be considered in ``routine patient costs.'' 
These decisions will have a major effect of the cost of covering 
clinical trials.
  I will just underscore that again. These decisions will have a major 
effect on the cost of covering clinical trials.
  Under the Democratic bill, these organizations can only submit a 
comment to the Secretary, who has broad authority to determine what 
constitutes routine patient costs. However, those comments could be 
rejected out-of-hand by the Secretary.
  By contrast, the negotiated rulemaking process ensures that all who 
have an interest in the outcome have a seat at the negotiating table to 
make the decision. We believe it is essential that cancer patients have 
an opportunity to be involved in establishing standards for routine 
patient costs, and a negotiated rulemaking procedure affords them that 
  Second, as I mentioned earlier, our amendment differs from the Dodd 
amendment in that it is limited to cancer clinical trials. There are 
more clinical trials involving cancer than perhaps any other disease. 
This targeted approach will not only provide a needed benefit to a 
large patient population, but it will also provide significant 
information for the study and report called for in this amendment.
  Finally, our amendment includes a study and report to Congress on the 
costs to health plans and any impact on health insurance premiums. 
Senator Dodd's amendment did not include this study and report, which I 
believe is extremely important. Congress can then use this important 
information to determine if they wish to expand coverage for patients 
with other diseases.
  Like most of my colleagues, I am very concerned about the ever-
increasing costs of health insurance. According to the Congressional 
Budget Office, our amendment will result in an increase in health 
insurance premiums of less than one-tenth of one percent. The Dodd 
proposal would cost five times that amount.
  I have met with thousands of cancer patients throughout Florida and 
the rest of the United States, patients desperately wanting to 
participate in clinical trials when traditional therapies are no longer 
  Let me conclude my comments here today by relating an experience 
which puts a human face on why this issue is so important.
  As my colleagues may know, I frequently visit the National Institutes 
of Health to meet with scientific reserchers so I may gain a better 
understanding of the many advances which are taking place to detect and 
treat cancer and other diseases.
  Over the years, I have been fortunate to get to know Dr. Steven 
Rosenberg, a world-renowned scientist and oncologist who is an expert 
in the field of melanoma research and treatment. I first met Dr. 
Rosenberg after reading his book, ``The Transformed Cell.''
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. MACK. I ask for 2 additional minutes.
  Mr. FRIST. I yield an additional 2 minutes.
  Mr. MACK. Last year, I was meeting with Dr. Rosenberg to learn about 
a clinical trial he is conducting on a state-of-the art melanoma 
vaccine. During our conversation, Dr. Rosenberg mentioned that one of 
my constituents was at NCI participating in that clinical trial. I 
asked if I might meet him. Before we went to his hospital room at NCI, 
Dr. Rosenberg showed me photographs which had previously been taken. 
This patient had purple, bulbous melanoma lesions several inches in 
diameter down the side of his body.
  Dr. Rosenberg introduced me to my constituent, and we engaged in 
casual conversation.
  At one point I asked him how he was doing. To show me how he was 
doing, this brave man took off his hospital gown and showed me that 
these lesions of huge size on both his arm and his side were totally 
gone. That is why I think it is so important that we have this 
amendment included in the legislation, so that other cancer patients 
will have the same opportunity.
  To conclude, what is this amendment really about? Most importantly, 
it is about giving patients fighting cancer the hope that an 
experimental therapy being tested in a well-designed clinical trial 
might save their lives. In addition to providing hope, it paves the way 
for new therapies that will, one day, not only provide hope, but a 
cure. It is about allowing cancer patients to make what may be the 
final major health care decision of their lives--whether to participate 
in a clinical trial.
  Mr. President, I've met with many patients who were participating in 
clinical trials. To me, these patients are, in many ways, like 
America's astronauts. Later this month, we will celebrate the 30th 
anniversary of man's landing on the Moon. Like the astronauts of 
Apollo, clinical trial participants are pioneers. They are heroes, who 
are helping to push science and medicine into new frontiers. We must 
provide hope to these brave Americans.
  I urge my colleagues to support this amendment.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, the facts are that the Republican majority 
have offered a number of feel-good amendments. Everyone should 
understand that these amendments, even if they pass, will only cover 
40-plus million Americans. Our amendment covers over 160 million 
Americans. Even though the provisions they have stuck in this amendment 
are weakened compared to the Democratic provisions dealing with 
external appeals, provider nondiscrimination, points of service, 
continuity of care, it is just the same as the amendment we offered for 
50 minutes. Advocates of that amendment came from the minority side and 
presented their arguments to the Senate, to each other. The majority 
was not here. They did not offer a single word in opposition to the 
amendment that was offered by the minority.
  This can best be summed up not by a Senator, not by some paid 
advertisement on television. I think the best

[[Page S8567]]

way to sum this up is by a New York Times statement by Bob Herbert 
today entitled, ``Money versus Reform.''

       Donna Marie McIlwaine was 22 when she died on Feb. 8, 1997. 
     She is buried in the Chili Rural Cemetery in upstate 
     Scottsdale, N.Y.
       The managed-care reform legislation that has been the focus 
     of a furious debate in the Senate was essentially an effort 
     to make it easier to save the lives of patients like Ms. 
       The Republican Party, flooded with money from the managed-
     care industry, gives lip service to the idea of protecting 
     patients, but then does the bidding of the companies that are 
     the source of all that cash.
       It's a tremendous scandal. No one can seriously argue that 
     lives are not being lost.
       Ms. McIlwaine went to the doctor several times in the week 
     before she died, complaining of pains in her chest and 
     shortness of breath. According to her family, she was 
     diagnosed with an upper respiratory infection and ``panic 
       In fact, she was suffering from pneumonia and a blood clot 
     in her left lung. Her mother, Mary Munnings, told me 
     yesterday that her daughter had been screaming from 
     excruciating pain before finally lapsing into unconsciousness 
     and dying at home on a Saturday night.
       There was no need for her to die. Ms. Munnings said that 
     when she contacted the office of her daughter's primary-care 
     physician the following Monday, she learned that Ms. 
     McIlwaine had not been sent for the laboratory tests that 
     would have properly diagnosed her condition. She said that 
     when she asked why not, she was told that ``they couldn't 
     justify'' the tests to her health maintenance organization.
       So we have Donna Marie McIlwaine dead at age 22.
       Most of the country understands that an unconscionable 
     obsession with the bottom line has resulted in widespread 
     abuses in the managed care industry. Simply stated, there is 
     big money to be made by denying care. It is now widely known 
     that there are faceless bureaucrats making critical 
     diagnostic and treatment decisions, that some doctors are 
     being retaliated against for dispensing honest advice, that 
     women have had an especially hard time getting the care they 
     need, and that patients have died because they were unable to 
     gain admittance to emergency rooms.

  Mr. President, that is what this debate has been about. I quote 

       The so-called patients' bill of rights, sponsored 
     by Democratic Senators Tom Daschle and Edward Kennedy, was 
     an attempt to curb these and other abuses. The managed-
     care industry wanted no part of the legislation, which 
     meant the Republicans wanted no part of it. The Democrats 
     had to virtually shut down the Senate before the 
     Republican majority would even agree to bring this matter 
     to the floor for a debate.
       The Republican whip, Don Nickles of Oklahoma, could hardly 
     have been clearer about his party's desire to avoid the 
     issue. ``I don't want our members to go through a lot of 
     votes that can be misconstrued for political purposes,'' he 
       The Democrats succeeded in forcing debate on the bill, but 
     they haven't gotten the patient protections they sought. What 
     occurred on the floor of the Senate this week was a G.O.P.-
     sponsored charade in which one Republican senator after 
     another talked about protecting the health of patients while 
     voting to protect the profits of this industry.
       It was a breathtaking exercise in hypocrisy. It was as if 
     George Wallace had spoken earnestly about the need to admit 
     black students to a public school in Alabama while standing 
     in the doorway to block their entrance.
       Some face-saving measures were passed by the G.O.P. 
     majority, but the essence of managed-care reform was 
     defeated. In the end, it didn't matter that Mary Munnings had 
     needlessly lost her daughter, or that a parade of managed-
     care victims had traveled to Washington to detail their 
     horror stories, or that organizations representing doctors, 
     patients and their families had lined up en masse in support 
     of reform.
       All that mattered was the obsession with the profits of the 
     insurance companies and the H.M.O.'s.
       Eventually substantial improvements will be made in the 
     delivery of effective and affordable health care to 
     Americans. It will take years but it will happen. And then 
     the country will look back and wonder (as we have with Social 
     Security, Medicare and the like) why anyone was ever opposed.

  Mr. President, that is what this debate is all about. It is a debate 
about protecting the insurance industry or protecting American 
patients. I am sad to report, money is going to win. Money is going to 
prevail over American patients who need help. It is as simple as that.
  It is whether or not a doctor can make a decision for a patient or a 
bureaucrat is going to make a decision for a patient. It is a question 
of whether we are going to be driven by profits or patients. Let us 
hope some day patients will prevail.
  I yield 3 minutes to the Senator from Maryland.
  Ms. MIKULSKI. I thank the Democratic whip for yielding me this time.
  Mr. President, I am troubled about the pending amendment because one 
of its components my colleagues might not be aware of is that it strips 
the Democratic provision to provide continuity of care.
  This is pretty serious because what continuity of care means. What 
does continuity of care mean? Under our proposal, continuity of care 
means just because your company changes HMOs, you should not have to 
change your doctor, or if your doctor is put out of the network, you 
shouldn't have to leave your doctor.
  I hope we can make sure that we keep continuity of care in. If we 
lose it, we are going to have our own amendment. Senator Bob Kerrey and 
I are going to offer our own amendment on continuity of care. I will 
tell you why we feel so strongly about it.
  We think the most important thing in getting well is the doctor-
patient relationship. You need to have a doctor who knows you, and you 
need to keep your doctor who has prescribed a course of treatment and 
who knows you as a person, not as a lab test, not as a chart. We do not 
believe doctors are interchangeable. We believe you should be able to 
keep your own doctor. Let me tell you what the Democratic provision 
does. Under the Democratic proposal, if your company changes HMOs, you 
get to keep your physician through at least a 90-day transition period.
  So if you are a diabetic or if you are engaged in a particular course 
of treatment, you get to keep your doctor.
  Then we have three provisions that make sure you keep your doctor 
when you are facing significant medical circumstances. What would be a 
significant medical circumstance? It means, for instance, when you are 
pregnant. We think that when you are having your baby and you have an 
OB/GYN and a course of treatment, you should be able to keep that same 
doctor all the way through your pregnancy and through your postpartum 
  Why is that important? Suppose you are a diabetic, or suppose you 
have kidney problems, or suppose you have a whole variety of other 
medically indicated symptoms that require very special monitoring; you 
can't just change your doctor. We certainly don't want to change 
doctors in late-term pregnancies. We have talked a lot on this floor 
about late-term pregnancies. Well, let's make sure you get to keep the 
same doctor during late-term pregnancies.
  Let's take another issue. If you are terminally ill, under the 
Republican school of thought you would lose your physician--if you are 
terminally ill and your company changes providers. We think if you are 
dying of cancer, if you are in the last stages of any illness, or if 
your child is in the last stages of illness, you shouldn't have to 
change your doctor. We truly believe that when a little boy or girl is 
dying of leukemia and the family is facing the heartbreak of that, they 
should at least be able to keep the same doctor through the course of 
  The other exception we provide is if you are in an institution or a 
facility. So if you are in a mental facility and you are getting well, 
you are working hard to get well, let's keep the doctor while you are 
keeping up the fight to get well. If you are also recovering from a 
stroke and you are in a rehab center, we say you should be able to keep 
your doctor and the same set of providers throughout that course of 
  We are being bashed on this floor about how we are for lawyers. Well, 
I am not for or against lawyers, but I am for doctors. I am really for 
the doctors and the other appropriate health care providers. I think 
that if you are pregnant, or terminally ill, or if you are in an 
institution trying to get better, you ought to be able to keep your 
doctors, and maybe we would not have to turn to the lawyers.
  I yield the floor.
  Mr. FRIST addressed the Chair.
  The PRESIDING OFFICER. The Senator from Tennessee is recognized.
  Mr. FRIST. Mr. President, we are currently debating an amendment that 
we have introduced on several topics. One is external appeals, 
strengthening that external appeals process.
  No. 2, and one that I have been intimately involved with, is 
expansion of cancer clinical trials, to make those

[[Page S8568]]

trials more available to the American people. We have a very important 
issue on provider discrimination and continuity of care. Senators 
Collins and Enzi will be responding later to the comments that were 
just made, which I thought were very positive in terms of what is 
necessary and what the American people expect in terms of continuity of 
  We want to address the fifth issue at this juncture, and that is the 
point of service. I yield 5 minutes to the Senator from Alabama.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.
  Mr. SESSIONS. Mr. President, I thank the Senator from Tennessee, Dr. 
Bill Frist, for his leadership and effort in this bill to craft a 
responsible and effective piece of legislation that will increase 
protections substantially for consumers' medical care and do so in a 
way that enhances the quality of that care. Dr. Frist is an 
extraordinary physician. He has given his life to medicine. He was the 
first person to do a lung transplant in the State of Tennessee--not an 
inconsiderable event. The thought of that is beyond my comprehension. 
And he has certainly provided great leadership here.

  One of the concerns I have heard a lot about from my doctors and 
dentists in the State of Alabama is that closed plans prevent patients 
from having any opportunity to go outside that plan to seek another 
physician, if that is whom they choose. As a Republican, and as an 
American, I believe in achieving freedom as much as we possibly can and 
giving people choices. So we have sought to listen to those physicians 
and dentists, to try to understand what they are saying and try to 
provide that kind of option for Americans.
  I am glad Dr. Frist and the leadership on this side have concurred 
that we can take a major step forward, that we can say that every 
American in one of these self-insured plans--not regulated by the 
State--can have the option to choose a plan that allows them to go 
outside that plan if they want to pay the extra expense to go to a 
doctor who may charge more. They would pay the difference for that 
extra privilege. I think that is good policy. It promotes freedom, and 
in this day of computers and high technology, it is not impossible to 
maintain the different accounting procedures that may be necessary to 
handle a different offering in that regard.
  So I am excited about this step. We already have a provision in our 
bill that is similar to this amendment, but it doesn't provide a 
guarantee it in the way this one would. After talking to physicians, 
dentists, and small business groups, we have decided to maintain an 
exemption from this provision for businesses with 50-employee or less. 
Small businesses may be unduly burdened administratively as it may be 
more difficult and time-consuming for them to process claims. 
Furthermore, we have discovered that fewer than 4 percent of people 
covered under our bill are employed by these small businesses.
  So, Mr. President, I am delighted to see this occur. I believe it 
will have broad-based support. The cost is negligible --almost none--
because if the person chooses the point of service option, they would 
pay the additional cost for it.
  I want to mention something and clarify an issue. The National 
Association of Insurance Commissioners testified on our bill and has 
written the Senate, a letter in March of this year, in which they state 
unequivocally that:

       It is our belief that States should and will continue 
     efforts to develop creative, flexible market-sensitive 
     protections for health consumers in fully-insured plans, and 
     Congress should focus attention on those consumers who have 
     no protections in self-funded ERISA plans. The States have 
     already adopted statutory and regulatory protections for 
     consumers and fully-insured plans and have tailored these 
     protections to meet their State's consumer health care 
     marketplace. Many States are supplementing their existing 
     protections during the current legislative session [right 
     now], based upon particular circumstances within their 
     States. We do not want States to be preempted by 
     congressional or administrative actions.

  What we are primarily concerned with regarding this piece of 
legislation is Federal ERISA plans, which States cannot regulate. That 
is why we are here. We are going to leave the other plans to the States 
who are already regulating them.
  I see my time has expired. I will again express my delight that we 
are able now to say that the individuals who come in will be able to 
receive point-of-service option.
  Mr. KENNEDY. Mr. President, I inquire on my time and will yield the 
Senator 2 minutes. This change will, of course, only be for the self-
funded program, and of course there are no changes in excluding any 
employer that has less than 50 employees. That hasn't been changed, has 
  Mr. SESSIONS. That is correct. But we know, for example, in Alabama, 
only 4 percent of the self-insured plans would fall under that group 
because most of the self-insured plans are for the larger businesses. 
We have also found that, in Alabama, for example, 75 to 80 percent of 
the state-regulated plans already offer point-of-service choice now. So 
it is not as critical as it might appear.
  We don't want to see the trend go the other way. It could turn the 
other way. Physicians are afraid that HMOs will build up walls and 
block out physicians and choice in the future. So they want this 
protection. I think it is legitimate, and I think the Senator favors 
  Mr. KENNEDY. If I could continue, I yield myself another minute. Is 
the Senator saying that of all the self-funded programs, only 4 percent 
have fewer than 50 employees?
  Mr. SESSIONS. Yes. Actually, 4 percent less than 100.
  Mr. KENNEDY. Four percent less than a hundred. So, effectively, this 
won't apply, I imagine, to any of the mom-and-pop small businesses; 
they won't have those kinds of protections, will they, in Alabama?
  Mr. SESSIONS. Only four percent under our bill will not be guaranteed 
that protection, but many are already providing it. Furthermore, 75 to 
80 percent of plans regulated by the state of Alabama plans do offer 
  Mr. KENNEDY. What percentage of Alabama, just for my own information, 
works in plants with less than 100 employees?
  Mr. SESSIONS. Most of those plants don't have self-insured, and they 
are already subject to State regulations.
  Mr. KENNEDY. So they wouldn't be affected by the Republican program 
in any event.
  Mr. SESSIONS. In the State of Alabama, and in most States, I think, 
the smaller companies use traditional plans that are subject to State 
regulations, I think our primary focus in this body has been to deal 
with those plans that are not regulated.
  Mr. KENNEDY. I thank the Senator.
  Mr. SESSIONS. I thank the Senator.
  Mr. KENNEDY. I yield the Senator from New York 3 minutes.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Thank you, Mr. President. I thank the Senator for 
  We are coming to the close of this debate. The amendment the Senator 
from North Carolina and I offered on appeal has been replaced by a much 
weaker version. We allow an independent review process. We allow that, 
if your HMO should say to you, you can't have this medicine, you can't 
have this procedure, you can't see this specialist, you would get an 
independent review as to whether that was right or wrong.
  Under the proposal that was passed by the other side, very simply, 
that review will not exist except by somebody appointed by the HMO 
itself--not independent and not real. But, in general, in this debate, 
and what has happened again is what has happened this week, which is 
simple, the insurance companies won and American families lost. As a 
result of what we have done today, the vast majority of American 
families will not get access to emergency rooms, access to specialists, 
the right to appeal an unfair decision, the right to sue, and the right 
to have an OB/GYN physician be their primary care physician.
  If we could sum up this debate, it is in two charts. It is in three 
little numbers. First, under the Democratic plan, 161 million people 
are affected. Under the Republican plan, 48 million people are 
affected--161 million or 48 million.
  What do the American people want? My guess is they want as many 
people covered as possible.
  As for cost, it is $2 a month more. As the Senator from Massachusetts 
has said repeatedly, that is not more than the cost of a Big Mac a 
month. We could cover all of these people, and we

[[Page S8569]]

could have emergency room access, we could have access to a specialist, 
and a right to appeal an unfair decision.
  I ask the American people to remember this day as a day when the 
Senate turned its back on them and their wishes; as a day when the 
special interests, particularly the insurance companies, prevailed over 
common sense and wisdom; as a day when this Senate chose to have only 
48 million people covered, not 161 million; and a day when this Senate 
said you can't get emergency room coverage, you can't get access to a 
specialist, and you can't get the right to appeal an unfair decision by 
the HMO because it cost $2 more a month per worker.
  It is a sad day for the American people. It is a day when this body 
chooses to follow the whims of the insurance industry rather than the 
desires of the American people.
  Oh, yes. There are some placeboes. In fact, the bill we are passing 
today is a placebo. But by definition a placebo is only affected when 
there is nothing wrong with the patient. If you are well and you are 
never going to get sick, you love the Republican plan. But if you have 
had to go through the agony and ordeal of having an HMO reject 
medicines, doctors, and procedures that are desperately needed by you 
or a loved one, you will rue this day.
  I say to my colleagues: Wake up. Our health care system is ill. A 
placebo won't work. This bill is a placebo. Managed care needs real 
medicine to become well again, and this placebo will not do the job.
  It seems very clear to me that this will not be the last time we take 
up the Patients' Bill of Rights. The reason this won't be the last time 
we will take up this bill is because the families of America will find 
out in the next year that the HMO beast has not been tamed, that the 
good that HMOs have brought in terms of reducing costs is being 
outweighed by the bad in terms of cookie-cutter decisions made by 
accountants and not by doctors.
  We will be back. We will argue this issue again and we will prevail 
because the American people want real medicine--not a placebo 
prescribed by the insurance industry.
  Thank you, Mr. President.
  I yield the remainder of my time.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. ASHCROFT. Mr. President, I yield up to 5 minutes to the Senator 
from Texas.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. GRAMM. Mr. President, I guess, despite the rules of the Senate, 
we all have our own rules that we apply to ourselves about what we say.
  One of the problems is that if one side of the debate insists on 
getting up and saying things that are verifiably false, we end up with 
a shouting match going back and forth.
  Our bill guarantees access to emergency care. Our bill guarantees 
that any woman at any point at any time can get access to an OB/GYN 
physician. Our bill deals with people under the Federal jurisdiction 
because the States have already done a very good job in dealing with 
the people under their jurisdiction which they cannot reach without 
Federal action.
  We have talked at great length. Our colleagues keep saying this bill 
cost $2 a month. The problem is that the Congressional Budget Office, 
the nonpartisan budgeting arm of the Congress, says this bill will cost 
$72.5 billion, this bill will take insurance away from 1.9 million 
Americans, and this bill will end up driving up costs for Americans who 
are able to keep their insurance.
  Obviously, anyone who follows the debate around here realizes that 
Democrats aren't very much worried about cost. But why are we so 
  No. 1, we are worried about 1.9 million people losing their 
insurance. We believe we can fix what is wrong with HMOs, and do it 
without driving up medical costs so much that people lose their health 
  But I would like to make two final points which I think are critical 
to this entire debate. If you came from outer space this morning and 
you listened to our Democratic colleagues, you would think they are 
opponents of HMOs. But let me read for you from congressional debate on 
February 10, 1978. I quote:

       I authored the first program of support for HMOs ever 
     passed in the Senate. The Carter administration has made the 
     promulgation of HMOs one of its major goals. Clearly HMOs 
     have done their job in proving themselves a highly desirable 
     mechanism for medical care delivery.

  That is Senator Ted Kennedy. That is not Phil Gramm.
  Our Democrat colleagues are the fathers and the mothers of HMOs. Yet 
today they have decided to vilify an institution they created. Rather 
than fixing the problems that exist, they have decided, for political 
reasons, it would be basically a good idea to destroy HMOs.
  Why are we concerned about destroying the private health care system? 
Why are we so concerned about cost? The reason we are so concerned 
about cost, the last time we had double-digit health care inflation, 
the Democrats and President Clinton sent a health care bill to 
Congress, the Clinton health care bill, that would have had the 
Government take over and run the health care system, a bill that would 
have required every American to buy their health care through a Federal 
health care collective.
  Today, our Democrat colleagues are very concerned about ``medical 
necessity.'' We have heard them talk about it all day long. When we 
open the Clinton health care bill, which they supported, on page 86, it 
mentioned ``medical necessity'' under exclusions. Let me read their 
solution to the problem of medical necessity when they wanted the 
Government to take over and run the health care system.
  Their bill says, on page 86, line 10, under ``Exclusions'':

       Medical necessity. The comprehensive benefit package does 
     not include any item or service that the National Health 
     Board may determine is not medically necessary.

  Today, our dear Democrat colleagues are all concerned about ``medical 
necessity,'' but when they wanted the Government to take over and run 
the health care system they defined medical necessity as whatever the 
National Health Board determined it to be, and the National Health 
Board was the Federal Government.
  Today, our colleagues have gone on and on about medical access and 
point of service. When the inflation rate on health care was above 
double digit and they proposed having the Government take over the 
health care system, do you know what their point of service option was? 
If you didn't join the Government plan, you got fined $5,000. The 
choice they provided in their point-of-service option is if the doctor 
who had to work for the Federal Government provided care he felt you 
needed but their Government health board felt you didn't need, he got 
fined $50,000 for doing that. If he provided a service they didn't 
allow and you paid privately for it, the physician could go to prison 
for 15 years.
  Now, the same people who proposed all these things and came within a 
heartbeat of forcing Americans into this totalitarian system because 
they wanted to deal with inflation and access, today they are proposing 
legislation that would drive the inflation rate up by 6.1 percent and 
would, by Congressional Budget Office numbers, force 1.9 million people 
to lose their health insurance.
  Why are we so concerned about starting runaway medical inflation 
again? Part of it is because we care about the people who lose 
insurance. Part of it is because we care about the $72.5 billion in 
costs for people who get to keep their insurance. But a lot of it is 
because we remember what Bill Clinton and the Democrats wanted to do 
the last time we had runaway medical inflation.
  I am sorry, but I have a very hard time listening to my Democrat 
colleagues talk about medical necessity when only a few years ago they 
proposed to let Government define what medical necessity was, and if 
their board didn't say it was necessary, you didn't get it. I have a 
very hard time listening to them talk about a point-of-service option 
when virtually every one of them supported and cosponsored a bill that 
would have put a physician in prison for 15 years for providing a 
service that their Government board said was not needed.
  In listening to our colleagues, it's easy to forget their support of 
legislation for the last 25 years that created HMOs. One forgets they 
love HMOs so much that they tried in 1994 to force every American into 
an HMO run by the Government. And one forgets that

[[Page S8570]]

they were so concerned about patients rights they let the National 
Health Board determine what was medically necessary with no review 
whatever, and they put a doctor in prison for 15 years if he didn't 
comply with their rules.
  There is a certain disconnect between what they are saying today and 
what they have proposed in the past.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. ASHCROFT. I yield myself 8 minutes, and I ask to be notified at 
the conclusion of 8 minutes, and at the conclusion of my time, I yield 
6 minutes to the Senator from Maine.
  Mr. REID. Mr. President, I respectfully suggest we have been going 
back and forth and we have had Members waiting for well over an hour. 
It is not appropriate to yield to successive people. It should be our 
  Mr. ASHCROFT. How much time does the Senator desire?
  Mr. REID. I yield 3 minutes to the Senator from Oregon, who has been 
here for about 3 hours.
  Mr. ASHCROFT. I am very sorry. I didn't intend to deprive him of that 
opportunity. When I came in, I failed to observe him in the Chamber. I 
am happy to have him go ahead.
  Mr. REID. I know the Senator from Oregon has been here a long time, 
but the Senator from Connecticut left a hearing and came to speak on 
the clinical trials.
  Would the Senator allow the Senator from Connecticut to speak next?
  Mr. WYDEN. Yes.
  Mr. REID. The Senator is yielded for 5 minutes.
  Mr. DODD. I appreciate the courtesy of the Senator from Oregon. I 
apologize for not being here during the presentation of the amendment 
dealing with clinical trials by my friend and colleague from Florida, 
Senator Mack. He made numerous references to the amendment I offered 
yesterday, and I want to address those concerns.
  While I have deep appreciation for the motivations behind the 
amendment offered by our colleague from Tennessee, Senator Frist--and I 
will speak specifically on the issue of the clinical trials--the 
amendment offered by Senator Mack, if you look at it in the totality, 
says no to 9 out of 10 people in this country. How does that work, 9 
out of 10?
  The clinical trials are limited to cancer therapies only; only for 
cancer. We all agree we ought to have clinical trials for cancer. No 
one disagrees with that. In a way, it is very cruel to say we can have 
experimental testing for cancer patients, but we cannot for people with 
AIDS, Parkinson's disease, diabetes, and heart and lung disease. A long 
list of patients are excluded.
  Today, if you are watching this debate and you have cancer and this 
amendment is adopted, you are OK, but God help you if you fall outside 
the cancer area and you need the clinical trials, or you want to get 
involved in that because it could save your life, save your wife's 
life, or your child's life. You would like to get in the clinical 
trials. If you adopt this amendment, you cannot.
  The argument is, we need to study the issue more. If we need to study 
clinical trials, why make an exception for cancer? If we don't need to 
study the clinical trials for cancer, it seems to me we don't need to 
study them when it comes to other life-threatening, devastating 
diseases where the only option can be the clinical trial.
  As I said to my colleagues yesterday, this is the only option we 
offer in our amendment. It has to be clinical trials approved by NIH or 
the Department of Defense or by the Veterans Administration. There must 
be no other alternative available, and it only picks up routine costs. 
The cost of drugs and medical devices is not included.
  I don't understand how we say to someone with mental illness, 
osteoporosis, cystic fibrosis, multiple sclerosis, stroke, blindness, 
arthritis, Lou Gehrig's disease, and more areas where clinical trials 
can make a difference for people. By adopting this amendment, we are 
excluding the option of people to utilize what may be the only avenue 
available to them to save their lives or the lives of their family.
  Obviously, we acquire necessary information that allows a product or 
a device to become available to the public at large, saving future 
  So I urge my colleagues, with all due respect, while it is hard to 
argue with this limited amendment, we will have a broader amendment 
that covers all of these areas which are so critically important to 
  Mr. KENNEDY. Will the Senator yield?
  Mr. DODD. I will be happy to yield.
  Mr. KENNEDY. The Senator pointed out for those who might be watching 
that if they had cancer, this amendment, if agreed to, would at least 
assure them of coverage. Of course, two-thirds of those individuals 
will not be in the plans that would be covered by this proposal. So 
two-thirds of those who have cancer, on the face of it, would not be 
protected. Contrast this with the amendment the Senator from 
Connecticut offered, which would have applied to all private health 
plans and would have included all diseases.
  The PRESIDING OFFICER (Mr. Fitzgerald). The time of the Senator has 
  Mr. KENNEDY. I yield 1 additional minute.
  Mr. DODD. I deeply appreciate the Senator from Massachusetts raising 
that point. He is absolutely correct. It does cover the cancer patient, 
provided you are part of that small minority that gets coverage. But if 
you are part of the 113 million and have cancer, you are out. It is an 
important point to make. If you are part of the 48 million, you are out 
there completely. You are just gone. I think this is a tragedy.
  Every single cancer group in this country does not support this 
amendment. No cancer group at all endorses this amendment because they 
understand it is a great deprivation and liability to their efforts. 
They understand how important it is to cover these other illnesses as 
well. These groups, by the way, also have supported unanimously the 
amendment we offered, which would have covered clinical trials for all 
  The PRESIDING OFFICER. The additional minute of the Senator has 
  Mr. DODD. I ask unanimous consent for half a minute.
  Mr. KENNEDY. Yes.
  Mr. DODD. On this issue, on the clinical trials, to deny people 
across the board the ability to access clinical trials is one of the 
great shortcomings of the Republican proposal here. This will do a lot 
of damage to an awful lot of people, unnecessarily. The application of 
clinical trials is the only course available to people to save their 
lives and to save future lives. By excluding AIDS and the other 
diseases I have mentioned from the clinical trial approach, not to 
mention 113 million people who are excluded, we do a great disservice, 
at the end of this century, to people who expect more of this body.
  I urge the rejection of this amendment.
  Several Senators addressed the Chair.
  Mr. REID. I yield 3 minutes to the Senator from Oregon.
  Mr. WYDEN. Mr. President, well over 2 hours ago I offered the first-
degree amendment that deals with an issue that ought to be totally 
nonpartisan, and that is protecting the relationship between health 
care professionals and their patients. The distinguished Senator from 
Texas is on the floor. I think he illustrated what the debate has now 
become. He wanted to talk about the Clinton health care plan of 1994. 
What my colleagues and I are here to talk about is giving patients and 
their families a voice in 1999.
  In over 2 hours of discussion on the floor of the Senate, there has 
not been one argument--not one argument--advanced against our provision 
involving gag clauses; not one argument advanced against our provision 
protecting the providers from retaliation; not one argument advanced as 
it relates to this matter of making sure there are not financial 
incentives to keep the patients in the dark.
  In 2 hours on the floor of the Senate, not one single argument was 
made against those positions. I think it is because the Senate 
understands that the free flow of information between patients and 
health care providers is at the heart of what we want for our health 
care system. It is also what this country is all about. It is what the 
first amendment is all about.
  I know this has been a very hard debate to follow. We have had 
discussions about HCFA. We have had discussions

[[Page S8571]]

about the Clinton health care plan of 1994. We have heard discussions 
about costs, about making sure that patients get all the information 
from their health care providers, and that providers are free from 
retaliation when they do give out that information, that is not going 
to cost a good health care plan a penny. Maybe if you are offering poor 
quality care it may end up costing you a little bit of money but giving 
people information, protecting their first amendment rights, is not 
going to cost a penny.
  I am very hopeful our colleagues, when we get back to it, will 
support the first-degree amendment that was before the Senate a little 
over 2 hours ago, and recognize that, in the space of that time, not 
one single argument--not one--has been advanced against the idea that 
there ought to be a free flow of information. We ought to protect the 
relationship between health professionals and their patients.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. ASHCROFT. Mr. President, I yield myself 6 minutes. I ask to be 
informed at the conclusion of the 6 minutes.
  By agreement, I believe Senator Collins was to have 6 minutes at the 
conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ASHCROFT. Mr. President, I thank the Republican Members for their 
effort on assembling a very good plan. It is a plan designed to protect 
the interests of individuals who receive their health care through 
HMOs. It is designed so that, if the HMO denies a particular kind of 
treatment as not being necessary, there is an appeals process, and the 
appeals process is first to the HMO, asking them to correct a faulty 
decision. But if the HMO does not respond constructively, there is an 
appeal to an independent appellate authority, an independent appeals 
  I wanted to make sure the Republican bill's effort to have this 
appeals process, which gives people the chance to make sure they are 
treated fairly, has the right enforcement to it. The right enforcement, 
in my judgment, is to send people to treatment, not to send people to 
trial. It would be possible to have a big legal arrangement where the 
person does not get treatment, they die, and the relatives then go to 
court. Instead of getting treatment, you get a trial and you may get a 
lot of money, but you have a dead relative. I think it is important to 
understand this is a health care effort we are waging.
  So I wanted to do some things to strengthen the enforcement 
provisions in the Republican proposal which relate to the external 
review. That is the final appeal to a person outside the HMO, a 
qualified individual. This is what I think we must do.

  First of all, we must make sure that the HMO acts promptly. While the 
Republican bill provides there should be certain designations within 5 
days, there is a place where the HMO has to provide the reviewer, or 
the appeal authority, with the documents of the case. We put in a time 
limit on that. We put in a stiff penalty for failure to meet that time 
limit. It simply is saying we will not allow an HMO to drag its feet in 
order to avoid the review by an independent authority. So I wanted to 
make sure we had that.
  Second, I want to make sure the person whose case is being reviewed 
has the right to present evidence to the appeal authority. I think this 
is implicit in the Republican bill, but I want it to be explicitly 
stated that when a person files a review petition, they have the right 
to say this is the reason you should set aside your judgment; this is 
the reason you should make a determination that the treatment is 
appropriate in my case--not only the person but the doctor who made the 
original decision. And that is important as well, making sure they are 
  Then I want to make sure the person conducting the review of a 
physician's work would be a qualified physician or would be a person 
who was qualified to be the same kind of specialist the treating 
physician was so we would not have some bureaucrat or some individual 
who was interested in or more well trained, perhaps, in business making 
judgments about things that were medical. That is provided for in this 
particular matter. So it makes it clear we want to have the physician 
doing the kind of assessment in the appellate process.
  However, I wanted also to make sure we had HMOs willing to carry 
through on the decision of the appeals process. I thought to myself, 
what if the patient lost the appeal in the HMO, made the appeal to the 
external authority--and this can be done very rapidly because the 
timeframes are tight in this instance, and should be, and we always 
include even expedited timeframes for medical exigencies-- what if the 
appeal goes to the external appeal authority and then the HMO refuses 
to provide the treatment in spite of the determination by the external 

  One option in that situation, I suppose, would be to say you go to 
court. But if you are sick and you call an ambulance, you expect the 
ambulance driver to take you to the hospital, not to the courtroom. 
What we need for people is not to be provided with a trial; we need 
people to be provided with treatment.
  What we have done in this amendment is simply this: If you had this 
opportunity for an expeditious appeal that has gone through the HMO and 
the external authority, the external appeal officer is to write in any 
appellate decision a date by which treatment is to be commenced. If 
treatment is not commenced as of that date, the system converts to a 
fee-for-service system so the patient has the right to get whatever 
service is needed at the expense of the provider which failed to 
provide it in accordance with the directive of the appellate officer.
  Furthermore, it provides a penalty, an immediate $10,000 payment to 
the patient--not to the Government, not to the Department of Labor, not 
to an administrating bureaucracy--to the patient for having been 
dislocated and for having arranged for other things.
  The business of the HMO is to arrange for medical services, and this 
is a plan which simply says we are going to deliver to people medical 
services. We are not going to deliver them somewhere else. We do not 
want you to end up with a good lawsuit; we want you to end up with good 
health care. And if the HMO does not provide the health care in 
accordance with the appeal, then it is time we turn loose the patient 
who paid the premium, and that patient has the right to access the care 
of his or her choice to get it done, and the responsibility of payment 
for that falls upon the noncomplying health care provider in the HMO. 
That makes sense. Instead of getting a good lawsuit because you did not 
get health treatment and you got sick, you get good treatment. It seems 
to me that should be the objective to have. That is basically what we 
have done.
  We have made sure there are time lines.
  The PRESIDING OFFICER. The Senator has used his 6 minutes.
  Mr. ASHCROFT. Mr. President, that is kind of you, and I yield myself 
an extra 30 seconds. We made sure there are enforceable time lines. We 
have made sure physicians will be the appeals officers on the work of 
physicians. We have made sure the responsibility to deliver the process 
to the appellate appeals officers, both internal and external, is 
expedited. And we have made sure, in the event of noncompliance, the 
patient gets treatment. We convert the system to fee for service, and 
you can access treatment on your own.
  It is with that in mind that I am pleased to conclude my remarks and 
yield to the Senator from Florida 5 minutes for his remarks.
  Mr. MACK. Mr. President, I am not sure I need 5 minutes. I could not 
help but listen very closely to my colleagues on the other side of the 
aisle with respect to the issue of clinical trials and the idea of 
targeting clinical trials to cancer.
  One could draw the conclusion from what they had to say either they 
never heard of the idea of targeting clinical trials to cancer or there 
was some confusion. I remind my colleagues on the other side of the 
aisle who have supported a clinical trial expansion of the Medicare 
program that is limited to only cancer --let me say that again. The 
clinical trial legislation that Senator Rockefeller and I introduced 
earlier this year is limited to cancer only; just as this amendment is 
limited to cancer: Senator Feinstein, Senator Sarbanes, Senator 
Johnson, Senator

[[Page S8572]]

Bingaman, Senator Kerry, Senator Leahy, Senator Kerrey, Senator 
Schumer, Senator Akaka, Senator Murray, Senator Breaux, Senator 
Mikulski, Senator Conrad, Senator Wellstone, Senator Moynihan, Senator 
Inouye, Senator Graham, Senator Harkin, Senator Kennedy, Senator Boxer, 
Senator Durbin, Senator Robb, Senator Biden, Senator Dodd, and Senator 
  I submit that one of the reasons we have this not only in this 
amendment but also in the Medicare approach is because there is truly a 
concern about what the true cost of clinical trials is. As I said in my 
earlier comment, Senator Rockefeller and I happen to believe the cost 
is quite small. In fact, there are arguments out there that Medicare is 
already picking up the cost of those clinical trials. We have limited 
it to cancer because we, in fact, believe we can develop information 
that will allow us to expand it.
  Mr. DODD. Will my colleague yield?
  Mr. MACK. If the Senator would wait. What I have found, as I have 
listened to this debate now for 4 days, is the term 
``compartmentalization'' comes back into my mind: The ability on the 
other side of the aisle to think of one procedure, one amendment, one 
concept at a time, as if it has no influence or no effect on the cost 
of health care and what it might do to those individuals who could lose 
their health care coverage because of increased costs. It is very 
reasonable to ask the question: What does it cost; how do you define 
certain aspects of the clinical trial that is going to take place?
  I will be glad to yield.
  Mr. DODD. I thank my colleague for yielding. I suppose the best 
evidence I can offer is, in fact, a significant number of HMOs today 
are offering full clinical trials. What we are talking about are the 
few who are not. My amendment is not designed to deal with every HMO. 
Most of them today provide clinical trials on a wide array of issues. 
We are, by our amendment, saying: Shouldn't those few HMOs that are not 
doing this do what the others are doing?
  Sloan-Kettering and M.D. Anderson cancer research centers did 
independent studies on costs. I think they are world-class 
institutions. Their conclusion was the clinical trial was less, lower 
  The PRESIDING OFFICER. The 5 minutes allotted to the Senator from 
Florida has expired.
  Mr. DODD. I ask the Senator have an additional 1 minute.
  Mr. MACK. Can I inquire who is going to use that minute?
  Mr. DODD. Two minutes.
  Mr. KENNEDY. I yield 2 minutes, Mr. President.
  Mr. DODD. I thank my colleague. Mr. President, let me know when I 
have a minute and give the Senator from Florida a minute to respond to 
what I am saying.

  The CBO estimates 12 cents per patient per month. That is their 
estimate. Sloan-Kettering and M.D. Anderson say it is lower than 
standard cost, less than the cost that would be otherwise. We limit, by 
the way, how the clinical trials are approached so that you have to 
have no other available option. It has to be life-threatening. It is 
only NIH, Department of Defense, and Veterans Affairs.
  We have narrowed it and also said, as important as cancer is--and I 
am a cosponsor of the bill of the Senator from Florida, but I hope my 
cosponsoring of clinical trials for cancer is not interpreted to mean 
that I do not think there ought to be clinical trials for diabetes or 
AIDS or mental illness or heart and lung disease or multiple sclerosis 
osteoporosis--all these other areas in which it can make a difference. 
I applaud my colleague for his bill. That was to deal with cancer, but 
we do not exclude these other options which most are doing today. Most 
are, but this is for the few that do not.
  Mr. FRIST. Mr. President, I yield myself 4 minutes. I know we have a 
number of other speakers on the floor. After our discussion two nights 
ago, I looked at the two studies the Senator from Connecticut used. 
This is one of the problems. There is not good data on what are routine 
costs. I went through this the other night. I cannot be any clearer.
  I have personally read the studies, as many as I could find. The two 
presentations you made in the data on how much money it saves is not 
peer review. It has not been published, to the best of my knowledge. 
Both are presentations made on May 7, 1999, at the National Coalition 
for Cancer Research. The data probably is good, but I cannot go back 
and see what the methodology is. Let me say that is the problem, that 
there are only three prospective, randomized clinical trials I could 
find and we were able to find in the committee. There may be more 
trials out there. But three clinical trials, not the ones you are 
talking about, that, again, show the cost, with some variation, might 
be zero--I am not sure what the lowest is--but up to 10 percent.
  Mr. DODD. Both Sloan-Kettering and M.D. Anderson, did they say it is 
lower cost? Am I accurate?
  Mr. FRIST. You are exactly right. I do not question the data. But it 
is unpublished data with no explanation given for methodology on either 
one. The cost of clinical research in the M.D. Anderson study or the 
Sloan-Kettering study--no details were given about methodology. So, 
yes, you say it is cheaper, but I have no idea how they determined 
that, whether they are accurate or not.
  To the best of my knowledge, that has not been peer-reviewed. All 
that does not matter very much, except when you go back to an earlier 
question of why we focus on just cancer. I was not on the floor, but I 
had heard the argument, why not other diseases, such as Alzheimer's and 
cardiovascular disease, and others? I think that is legitimate.
  Let me tell you my rationale for starting with something that is 
focused. The NIH has about 6,000--maybe it is 5,000; maybe 7,000--
clinical trials out there, about 6,000 and 2,000--1 out of 3--are in 
cancer. The others are scattered among different disease processes.
  So we said, since we do not know what the routine costs are --the 
other day I talked about the difficulty of defining ``incremental 
costs,'' using the example of medical devices. There are no studies--
prospective, randomized clinical trials--to know what the incremental 
costs are for devices.

  So what we are arguing is, instead of opening that door broadly, to 
start with a foundation of information about which we know. The 
clinical studies on routine costs all apply to cancer, which happens to 
be about one out of three trials that are out there today.
  That is the base we are going to start with as we get into this 
subsidy--a good subsidy--that is in our private health care system 
which is passed on by increased premiums, or some way you are taxing 
people out in the private sector who are listening to this right now. 
We are going to tax you to pay for these trials.
  We simply say, let's do it in a systematic way, starting with the 
body of knowledge we know about, which happens to be in cancer, and 
then letting it expand, potentially, over time based on our findings.
  One last thing, in our amendment, as was pointed out, we also have a 
study, a very important study, that will expand so we will not have 
three studies. You will not be presenting data that has not been 
published yet, which I think is part of our amendment.
  I will yield to the Senator from Florida, and then we will come back.
  Mr. DODD. Just to make a couple quick points.
  Mr. FRIST. I yield 1 minute to the Senator from Florida.
  Mr. MACK. I believe the Senator from Florida has been graciously 
given 1 minute by Senator Kennedy.
  Mr. DODD. If my colleague will yield at this time?
  Mr. FRIST. I yield and reserve my time.
  Mr. KENNEDY. Mr. President, I think the Senator from Florida has 1 
minute. Then I would be glad to yield another minute and a half to the 
Senator from Connecticut.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. MACK. First of all, the impression created that HMOs or most HMOs 
cover all clinical trials is inaccurate.
  There is a second component to this thing. ERISA plans versus the 
plans that we have control over may be confusing the issue as well.
  In addition, though, I think it is important to focus. Again, this 
discussion has come down to a discussion about cost. I happen to agree 
with the Senator from Connecticut about the data that we have from 
those two health organizations. But I think he knows as

[[Page S8573]]

well that there are those out there who make claims that the cost of 
the clinical trials would be substantially higher than that--from OMB, 
CBO, the administration.
  So the point is that there is a legitimate debate about the cost of 
clinical trials. I am saying I think, before we go to the full extent 
of comprehensive coverage, we ought to fully understand what we are 
getting ourselves involved in.
  With that, I yield the floor.
  Mr. DODD addressed the Chair.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. DODD. Let me just say, the Congressional Budget Office estimates 
that 90 percent of HMOs provide broad-based clinical trials. They did 
the study on the 12-cent per month cost; and 90 percent do. Our 
amendment deals with a handful who are not.
  Ironically, the adoption of this amendment may encourage some of 
these HMOs that are today providing clinical trials across the board to 
reduce actually the number they provide. That is No. 1.
  No. 2, I say to my friend and colleague from Tennessee, these HMOs, 
the 90 percent that are providing broad-based clinical trials, have 
obviously done an economic study or they would not do it. They are not 
mandated under current law to do it. So the vast majority providing 
clinical trials beyond just cancer have, obviously, made the financial 
calculation that this is something they can afford to do. So in 
addition to Sloan-Kettering, M.D. Anderson, and the Congressional 
Budget Office--the costs are relatively low. They are providing the 
  What we were saying in the amendment that was defeated yesterday is 
you ought to be for those 10 percent or 12 percent that are not 
providing the clinical trials in these other areas. You ought to do so. 
That is the distinction, and there is ample data.
  The PRESIDING OFFICER. The time has expired.
  Mr. FRIST. I ask Senator Kennedy, does he have somebody from his 
  Mr. REID. Mr. President, I yield Senators Harkin and Bingaman 1 
minute each.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. HARKIN. Mr. President, earlier today Senator Bingaman and I 
offered an amendment to provide nondiscrimination, so the plans could 
not discriminate against providers on the basis of their license or 
  Now I see the Republicans have offered that amendment. I read through 
it. It is almost word for word the same as ours. Gee, here is an 
amendment I could vote for on the Republican side, until I read the 
fine print. What is the fine print? The fine print is this: Senator 
Bingaman, in our amendment, covers 161 million people; the Republicans' 
amendment covers only 48 million people.
  It is sort of like this. A doctor prescribes an antibiotic for you to 
take every day for 7 days. The Republicans come in and say you can only 
take it for 2 days. It is probably better than nothing, but it is not 
going to cure the illness.
  The Republican amendment on provider nondiscrimination is not going 
to cure the discrimination against chiropractors, against optometrists, 
against nurses and nurse practitioners, and physicians assistants. That 
is why I cannot support it.
  The PRESIDING OFFICER. The 1 minute has expired.
  The Senator from New Mexico has 1 minute.
  Mr. BINGAMAN. Mr. President, I thank the manager of the bill.
  Let me add one other thing. We need to ask, who are the 48 million 
people who are covered under the Republican plan and under this 
amendment they have offered on nondiscrimination against providers? 
They are people who work for large employers primarily who are self-
insured. The employers have their own insurance programs.

  Unfortunately, in my State, there are very few of those large 
employers. You have to have over 100 employees, essentially, before it 
makes any sense to be self-insured.
  In New Mexico, people work for small employers, by and large. Even 
those who work for larger employers generally are not working for self-
insured employers. Essentially, the folks I am representing in the 
Senate are not going to be covered by the amendment as it is offered. I 
think this is a serious defect.
  There is one other thing I want to say in relation to Senator Dodd's 
point. The American Cancer Society does not support an amendment or 
provision that does not apply to all insured individuals, that requires 
a commission to determine routine patient costs, and delays access to 
clinical trials until the year 2001. The American Cancer Society 
maintains that all patients with a serious and life-threatening illness 
should have assured access and reimbursement for clinical trials.
  Mr. President, I yield the floor.
  Mr. JEFFORDS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. JEFFORDS. I yield the Senator from Maine 5 minutes.
  Ms. COLLINS. Thank you, Mr. President.
  This amendment includes two provisions that are intended to 
strengthen the Patients' Bill of Rights that was reported by the Senate 
HELP Committee. We do not have much time, but I would like to take a 
moment to describe two of the provisions that are of particular concern 
and interest to me.
  First, our amendment includes provider nondiscrimination language. 
During the HELP Committee markup, as the Senator from New Mexico will 
recall, I pledged I would attempt to come up with language on the floor 
because we shared many of the same concerns, reflecting, I think, the 
populations of our State. So we have done just that.
  The exclusion of a class of providers solely on the basis of their 
license or certification unfairly restricts patients' access to 
qualified professionals who are licensed and certified by the various 
50 States. This is a very important issue in rural areas because there 
may not be a sufficient supply of physicians to provide the care that 
the health plan has promised. In these areas, if, for example, a plan 
discriminates against optometrists, the result may be that patients 
have to travel long distances in order to get eye care or, conversely, 
they have to pay out of their own pockets for services that are 
supposed to be covered benefits.
  Maine, for example, has optometrists in virtually every community in 
the State, but we have very few ophthalmologists, and they are located 
primarily in southern Maine, primarily in our larger cities.
  In 1982, 17 years ago, to respond to this problem, Maine specifically 
passed legislation requiring State-regulated health plans to have 
nondiscrimination language with regard to optometrists. The Republican 
amendment tracks similar protections that are provided for Medicare and 
Medicaid beneficiaries in the Balanced Budget Act of 1997.
  Our amendment would prohibit federally regulated group health plans 
from arbitrarily excluding providers, based solely on their licensure 
or certification, from providing services for benefits that are covered 
by the plan.
  Let me be clear about what this amendment does not do. It does not 
require the plans to cover new services just because the State may 
license a health care professional in that area. For example, there are 
some States which license aromatherapists. Just because aromatherapists 
may be licensed by a State doesn't mean the health plan has to cover 
those kinds of services. Moreover, nothing in our amendment would 
require the health plan to reimburse physicians and nonphysicians at 
the same rate.
  The amendment also makes clear--and this is really critical--that 
this provision is a nondiscrimination provision. But it is not a 
willing provider requirement. It does not require health plans to take 
all comers. It simply says that a managed care plan cannot exclude a 
health care professional's entry into that plan solely on the basis of 
licensure or certification. Senator Grassley, Senator Hatch, Senator 
Jeffords, and Senator Enzi have all worked with me on drafting this 
  The second provision, which is of particular concern to me, improves 
upon the continuity of care provisions in the HELP Committee bill. Our 
amendment would affect the legislation in two different ways.
  First, it recognizes that it would be unconscionable to require a 

[[Page S8574]]

who is terminally ill to change health care providers in the final 
months of life just because the health plan either stopped contracting 
with that particular provider or the employer providing the health plan 
switched plans, thus causing a change in the providers under contract. 
Our proposal would extend the transition period for patients who are 
terminally ill from 90 days until the end of life. This proposal is one 
that I know is of concern to Senator Mikulski, and it is something on 
which I completely agree with her.
  Second, it would require a comprehensive study--I don't believe this 
is part of the Democratic proposal--into the appropriate thresholds, 
costs, and quality implications of moving away from the current narrow 
definition in Medicare of who is considered terminally ill and toward a 
definition that better identifies those with serious and complex 
illnesses. This study was suggested by the group, Americans for Better 
Care of the Dying. Senator Jay Rockefeller and I have worked with this 
group in proposing our end-of-life care legislation.
  The PRESIDING OFFICER. The Senator's 5 minutes have expired.
  Ms. COLLINS. I ask unanimous consent for 1 additional minute from the 
underlying bill.
  The PRESIDING OFFICER. Who yields time?
  Mr. JEFFORDS. I yield 1 additional minute from the bill.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. This study, as I said, was suggested by the group, 
Americans for Better Care of the Dying. It is intended to help us shift 
the paradigm in this country of how we view serious illness. Medicare 
currently defines terminally ill people as those having no more than 6 
months to live. It is often very difficult to predict with any 
certainty how long exactly a seriously ill person is likely to live. 
This study will help us to provide better care for that broader 
category of patients who are terminally ill and have the need for more 
coordinated care but who may well live longer than a 6-month period.
  I thank Senator Enzi and Senator Grassley for their work and joining 
with me in improving the continuity of care provisions of the bill.
  I yield the floor and reserve the remainder of our time.
  Mr. ABRAHAM. Mr. President, I rise to address provisions included in 
this amendment on behalf of Senators Ashcroft, Kyl, and myself. These 
provisions concern external review of denial of coverage. In my view, 
they will improve the underlying Republican proposal in several 
important respects.
  Mr. President, I believe the Republican proposal takes the steps 
necessary to ensure that every American has access to high quality 
medical care. In my view, the overriding goal of this legislation is to 
empower patients and their physicians. By putting medical 
considerations first, we will protect patients against arbitrary 
actions by health care bureaucrats. Republicans have put in place an 
external review procedure which will guarantee a patient's right to 
appeal adverse decisions by providers and to receive the care he or she 
  The purpose of an external review is to ensure that an unbiased, 
medical opinion can be offered when coverage has been denied on the 
basis of medical necessity and appropriateness or because a treatment 
is considered experimental. The changes contained in this amendment 
will guarantee an unbiased, timely and appropriate decision and I 
believe they will help ensure that the external review process works 
effectively. In particular, I would like to focus on three changes 
which resolve issues that were brought to my attention by the Michigan 
State Medical Society:
  First, we clarify that appeals which are considered emergencies be 
made with the expediency necessary for the emergency, but in no case 
should the emergency decision take longer than 72 hours.
  This clarifying language ensures that decisions are made in an 
expedient fashion, especially in case of emergencies.
  Second, the amendment language clarifies that the independent, 
external reviewer shall be a physician in the same specialty area 
dictated by the case in question. This only makes sense, Mr. President, 
and I appreciate the sponsors willingness to clarify the language in 
this regard.
  Third, in the Patients' Bill of Rights Plus, the independent external 
reviewer must take into consideration several factors in making his or 
her final decision. Some of those factors include: Any evidence-based 
decision making or clinical practice guidelines used by the group 
health plan or health insurance issuer; timely evidence or information 
submitted by the plan, issuer, patient or patient's physician; the 
patient's medical record; and expert consensus and medical literature.
  This amendment clarifies that expert consensus includes both 
generally accepted medical practice and recognized best practice.
  Senators Kyl and Ashcroft have also included other provisions to 
tighten the external appeal process which I support. I note my full 
support for these provisions and ask my colleagues to support them as 
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, the majority has about 2 minutes remaining 
on the amendment. The minority has about 15 minutes--about 12 minutes, 
I am sorry. So with the permission of the manager of the bill, I yield 
3 minutes----
  The PRESIDING OFFICER. The Senator has 15 minutes.
  Mr. REID. I yield 3 minutes to the Senator from Minnesota, Mr. 
Wellstone; 3 minutes to the Senator from Nebraska, Mr. Bob Kerrey; and 
3 minutes to the Senator from North Carolina, Mr. Edwards.
  Mr. KERREY. Would the Senator mind if the Senator from Nebraska went 
  Mr. REID. If the Senator will withhold.
  Mr. JEFFORDS. Does the Senator intend to go one after the other?
  Mr. REID. Yes, since the majority has 2 minutes remaining.
  Mr. JEFFORDS. I want to accommodate the Senator from Wyoming--we only 
have a couple of minutes left--if he could speak now.
  Go ahead.
  The PRESIDING OFFICER. The Senator from Nebraska.
  Mr. KERREY. Mr. President, I see the Senator from Maine heading for 
the door. With great respect for her, I want her to hear this 
observation. She talked about continuity of care and said that she and 
Senator Grassley and Senator Enzi had worked on language in this 
amendment that provided continuity of care for people with terminal 
illness. I call her attention to pages 49 and 50 of this bill. It does 
not do that. It says specifically, under terminal illness, it is 
subject to paragraph 1, which says the general rule is just for up to 
90 days. The only exception under continuity of care with this bill is 
for pregnancy, which was in the original bill.
  Ms. COLLINS. Will the Senator yield for a clarification on that?
  Mr. KERREY. I only have 3 minutes. I am sorry.
  I call the Senator's attention to continuity of care. Look at the 
language of the bill because on page 49 it describes this transitional 
  This is something that is very important to me. I received health 
care in 1969 after I was injured in Vietnam. I have a very passionate 
concern for people now who are in managed care.
  I must say, the problem we are experiencing with managed care is not 
self-funded ERISA plans. That is what the Republican proposal is going 
to do. It is going to solve almost a nonexistent problem that may, in 
fact, as a consequence of setting the bar low, encourage people who are 
in HMOs and who are in the marketplace providing those plans to say: I 
see the bar is low; we are going down to that lower standard. That is a 
major concern I have with this proposal. It does not cover the plans 
that are the biggest problem.
  I call your attention to pages 49 and 50. Under the continuity of 
care provisions, the only continuity of care that would be provided 
would be women who are pregnant. They could go beyond 90 days under 
this provision, but those who were terminal would not. Terminal illness 
is subject to paragraph 1, according to the language of the bill 
itself, which does not provide for an extension.

  Our proposal would go beyond those three general categories, not just 
terminal illness, not just institutionalized

[[Page S8575]]

people, not just women who are pregnant--all three reasonable--and 
certainly not just self-funded ERISA plans, which are hardly receiving 
any complaints at all.
  That is the odd thing about this debate. We are going to take care of 
a problem that doesn't exist under the guise of--I have heard people 
come down saying: We are going to address a problem with HMOs. Well, 
you would address the problem of HMOs if you changed your bill.
  This bill doesn't take care of HMOs. It takes care of self-funded 
ERISA plans. Go to your mailbox and see if you have any complaints 
about self-funded ERISA plans. You won't find any complaints about 
that. The complaints are about HMOs.
  We have watched the market move more and more into business decisions 
when it comes to health care. And I am for the market. I like what the 
market can do. When we regulate the market, we say----
  The PRESIDING OFFICER. The Senator's 3 minutes have expired.
  Mr. KERREY. I will come back to this later, Mr. President. This bill 
does not provide continuity of care except for pregnancy. Those with 
other health problems would not be covered under this proposal.
  The PRESIDING OFFICER. The Senator from Minnesota is recognized.
  Mr. WELLSTONE. Mr. President, I came to the floor earlier today and 
said I have a proposition for my colleagues. It is this: Let's give 
people freedom of choice. If people have paid extra premiums and their 
employer should shift insurance company plan or managed care plan, and 
they want to be able to take their children to the same family doctor 
they have been going to for 10 years, they ought to be able to do so.
  I waited for the response.
  Now I notice my colleagues on the other side of the aisle come out 
here with an amendment and they say this deals with the problem. First 
of all, they give freedom of choice to 48 million Americans, one-third 
of those who would be eligible. Only 48 million people in self-insured 
plans are covered. Another 115 million people aren't covered.
  Two-thirds of the families in our country that need some protection 
and need freedom of choice aren't covered. Then I look at this bill and 
I notice that even among the 48 million people, if you were in a plan 
where you are working for an employer with fewer than 50 employees, you 
would not be covered. Subtract that number of Americans. Now we are 
well below 48 million people, well below one-third of the citizens in 
this country.
  Finally--and I don't even know what this means, but we need to look 
at the fine print--they have an exception in terms of points of service 
or freedom of choice:

       It shall not apply with respect to a group health plan 
     other than a fully insured group health plan if care relating 
     to point of service coverage would not be available and 
     accessible to the participant with reasonable promptness.

  I have absolutely no idea what that means. Obviously, consumers and 
families would be going to a doctor who would be prompt in giving them 
or their children the care they need, unless this is some kind of an 
open-ended escape clause.
  I am telling you, the more the people look at the fine print and the 
detail of what the Republicans are offering on the floor of the Senate, 
the more they will see a consistent pattern: Offer as little as 
possible, covering as few people as possible, with as little protection 
as possible, so you don't offend the insurance industry.
  That is what it is all about. We should be representing the people in 
our States. We should be advocates for people in our States. We should 
be advocates for families, advocates for children. We don't need to be 
advocates for the insurance companies. They already have plenty of 
  I yield the floor.
  Mr. REID. Mr. President, I will yield our final 3 minutes to the 
Senator from North Carolina.
  I ask for the yeas and nays on the underlying amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The Senator from North Carolina is recognized.
  Mr. EDWARDS. Mr. President, let me address the external appeals part 
of this amendment. Yesterday afternoon, we had a debate, at which time 
I brought to the attention of my colleagues on the other side the fact 
that, essentially, we had no enforcement mechanism for any of the 
provisions passed because there was no meaningful external review, the 
reason being insurance companies got to write the language on what is 
medically necessary, and the only thing that was appealable was what is 
medically necessary.
  That being the case--that the insurance company totally controlled 
whether there could be an appeal at all--not having a meaningful appeal 
is similar to having a law without a police force or a court system. 
There is no way to enforce it. The law is meaningless. All of these 
provisions we pass are meaningless unless they are enforceable.
  This amendment attempts--and I applaud my colleagues for making this 
effort. I think it is the result of a discussion we had yesterday. It 
attempts to address that problem, but it still has an enormous problem 
in it. There are two parts of an appeal process. The first is, do you 
get to appeal? The second is, if there is an appeal, what can be 
  What they have offered by way of different language today, for the 
first time in the course of this week, is some change in what can be 
considered if there is an appeal. They don't change, in any way, what 
is appealable. Once again, the only thing appealable is medical 
necessity. You can't appeal whether you have access to a specialist. 
You can't appeal whether you were reasonably prudent in going to the 
emergency room. All that long list of things which are contained in the 
various provisions that have been considered are not appealable. The 
only thing appealable is medical necessity. The insurance company 
writes what medical necessity means. They can write it any way they 
  So the problem is, while they have attempted to address the second 
part of the appeals process--and I applaud them for that --they have 
not addressed in any way the first part, which means the insurance 
company lawyers can write the contracts in a way that essentially makes 
appeals impossible by simply drafting very narrow language of what 
medical necessity means. If they do that, then nobody gets their foot 
in the door.
  What we have done basically is we have taken a door that was 
completely closed and put a very tiny crack in it. That is all that has 
happened. Instead of what we ought to be doing, which is to have a 
simple, plain provision--and I don't know why my colleagues won't agree 
with this; maybe they will if we talk about it--a plain provision which 
says any right provided in any part of these amendments and bills that 
have been passed is appealable.
  Why not make them all appealable? That way, we have an enforcement 
mechanism. We have a police force, a court system, and we have a way to 
make the rights that we are attempting to create meaningful because if 
we don't do that, essentially what happens is we pass laws that are 
totally unenforceable. The result is the insurance company totally 
controls what occurs. What we have today is a situation where HMOs and 
insurance companies are totally in control. That is what we are about 
this week. We are about changing that.
  I do applaud my colleagues for making some effort to address that 
issue. But what has happened is they only address the second part, 
which is what can be considered. They still, I might add, allow the 
party considering the appeal, which is chosen by the insurance company 
through another entity, to consider what the HMOs' own plans and 
procedures are. So the bottom line is this, Mr. President--
  The PRESIDING OFFICER. The Senator's 3 minutes have expired.
  Mr. EDWARDS. The bottom line is this: What we have is a provision 
that does not cure the problem. There is a simple cure, and if we are 
doing this in good faith, I ask my colleagues to join me in that cure, 
which is a simple provision which says that any right created in these 
amendments, in these patient protections we are attempting to debate 
and pass on the floor, is appealable. It is that simple, that 
straightforward. If we want to enforce these

[[Page S8576]]

laws against the insurance companies, that is what we ought to be 
doing. It is simple and straightforward and it will work.
  I thank the Chair.
  Mr. JEFFORDS. Mr. President, I yield 5 minutes off the bill to the 
Senator from Wyoming.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. ENZI. Mr. President, I rise in support of the amendment. I want 
to particularly congratulate the Senator from Maine for her care and 
concern over the 2 years she has been involved in drafting this bill. I 
want to particularly express my pleasure at the improvement to the 
continuity of care provision she put into this bill. From our base 
bill, we further extend our continuity of care for terminally ill 
patients through the end of life.
  While the language in our committee bill followed the recommendations 
of the President's Quality Commission and the National Committee on 
Quality Assurance, both of which recommended ninety days for transition 
for all chronically ill patients, we feel very strongly that terminally 
ill patients and their families deserve to remain with their providers.
  Extremely important is the other piece of the continuity of care 
provision. It would require the Agency for Health Care Policy Research, 
the Medicare Payment Advisory Commission and the Institute of Medicine 
to conduct a multi-pronged study into the appropriate thresholds, cost 
and quality implications of moving away from the current narrow 
definition of ``terminally ill'' towards identifying those with 
``serious and complex'' illness.
  This study was suggested by the groups who advocate for patients 
suffering with terminal illness. Unfortunately, many patients are not 
captured by current efforts to address the coordination and care needs 
of those who have several years, rather than several months, to live. 
This is because ``terminally ill'' is a narrowly construed concept. 
These patients may be better captured as ``serious and complex.'' This 
study is designed to help shape those parameters and seeks to improve 
the care for all patients with terminal illnesses.
  Again, I commend the Senator from Maine's leadership on this 
important matter.
  I yield the floor and reserve the remainder of my time.
  The PRESIDING OFFICER. Who yields time?
  Mr. KENNEDY. Mr. President, we are at the conclusion of another part 
of this debate. There is an amendment that includes a variety of 
different provisions trying to upgrade the Republican proposal and make 
it more acceptable and responsive to the points that have been raised 
during the course of the debate. Most importantly, the points have been 
raised by doctors, nurses and patients all over this country. Still, 
they fall short.
  These amendments are another testament to the priority the 
Republicans place on protecting profits instead of patients. Every time 
we point out the severe defects and loopholes in their plan, they say: 
Oh, no, we will improve it. Then the so-called improvements come, and 
they are virtually meaningless. It is botched cosmetic surgery; all the 
wrinkles still show. You can put lipstick on a pig, but it is still a 
pig. And you can call something a patients' bill of rights, but it is 
still a patients' bill of wrongs.
  Every single one of these amendments leaves a profit-protection 
proposal, a sham proposal, a triumph of disinformation. We have voted 
on 10 of the amendments that have been offered by the other side, and 
we will have this amendment--10 amendments. There isn't a single 
amendment that has the support of a patients' organization or a medical 
organization--not one. I think that is a fair indication as to what 
those amendments are really about.
  On the contrary, each and every one of the positions we have taken 
had the strong support of the medical profession. Each and every 
amendments we have offered--each and every one of them--had the strong 
support of the medical profession. I think that speaks volumes about 
who is really interested in protecting the patients and not the profits 
of the HMO.
  Let's look at these proposals individually. The so-called independent 
appeals provision leaves every fundamental flaw in the original bill 
uncorrected. The HMO still chooses and pays the review organization. 
The HMOs own definition of ``medical necessity,'' no matter how unfair, 
still controls the whole process. That has been pointed out by our 
colleague, the Senator from California, Mrs. Feinstein. That particular 
loophole remains in the bill.
  The clinical trials proposal applies only to cancer patients and only 
to those in self-funded plans. Two-thirds of Americans are left out. 
Two-thirds of cancer patients are left out.
  All of the cancer organizations have rejected this proposal. We have 
printed their positions in the Record. They all reject this particular 
  If you or your loved one has heart disease or Alzheimer's, cystic 
fibrosis or multiple sclerosis, a spinal cord injury or diabetes or 
AIDS, you are out of luck under the Republican plan. And if you are a 
farmer or small business employee who belongs to an HMO and you develop 
cancer, you are out of luck.
  The continuity of care provision has not changed a bit. If you have a 
terminal illness and are fortunate enough to live more than 3 months, 
they can cut you off; you have to change doctors. If you have a long, 
ongoing illness--even cancer or life-threatening heart disease--you 
have no transition at all. And if you are one of the 113 million people 
not in a self-funded plan, you are not protected at all.
  Let's go back to the basics. Again, after 4 days and 10 amendments, 
they have not presented a single proposal supported by any group of 
doctors, nurses, or patients--not one, zero.
  Their bill is supported by the insurance companies that profit from 
abuse. Our bill is supported by 200 groups; doctors, nurses, and 
patients who want to end these abuses.
  The Senate should stand with the health professionals and the 
patients, not with the powerful special interests.
  We will have another opportunity in a few moments to stand again with 
the patients. Let's hope the Senate will.
  I reserve the balance of the time.
  Mr. JEFFORDS. Mr. President, I yield the Senator from Maine 2 minutes 
off the bill.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Mr. President, I recently discussed the continuity 
provisions which are included in the amendment before us. This is one 
of the rare areas of agreement on both sides of the aisle. We both 
agree that if someone is terminally ill, and if there is a change in 
health care providers, the terminally ill patient should be able to 
stay with that provider until the end of his or her life.
  Our amendment clearly says that the care shall extend for the 
remainder of the individual's life for such care. There is, however, a 
technical mistake which could create some ambiguity in that provision.
  I ask unanimous consent, since the yeas and nays have been ordered, 
that I send a modification to the desk to correct that technical 
amendment. I hope my colleagues will agree to that.
  Mr. REID. Objection.
  The PRESIDING OFFICER. Objection is heard.
  Ms. COLLINS. Mr. President, since there has been an objection, which 
I think is very unfortunate, the technical correction will be included 
in the final Republican package that will be offered.
  As I said, I think the intent is very clear. The majority of the 
language is very clear. But there is an ambiguity in one section which 
will be cleared up in the final language.
  Also, at this time I request the yeas and nays on the underlying 
Collins amendment which was set aside.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient.
  The yeas and nays were ordered.
  Mr. KENNEDY. I yield to the Senator from California 1 minute off the 
  Mrs. BOXER. Mr. President, by popular demand, I have my scorecard 
back. It was 8 to nothing. And then I gave two points to the liability, 
one, because that is crucial. Unfortunately, we lost that--the patients 
did. The HMOs won. They still will be able to get away with hurting 
people and not paying any price whatsoever.
  So we are 10 to nothing.
  We are about to have two votes. The Collins amendment is opposed by 
the obstetricians and gynecologists who

[[Page S8577]]

have sent out a letter saying it is nothing; it is a cruel nothing. I 
have their exact words at everybody's desk.
  I hope we will vote that down. It doesn't do anything about the 
specialists. It doesn't do anything about OB/GYNs. It doesn't do 
anything about emergency rooms. Senator Gramm pointed that out. They 
are still going to be charged.
  Again, we have a sham proposal. I hope it will be 10 to 2 after the 
next two votes. But I am afraid it is going to be 12 to zero.
  I yield the floor.
  Mr. KENNEDY. We yield back any time remaining on our amendment.
  Mr. FRIST. Mr. President, how much time remains on our side?
  The PRESIDING OFFICER. Two minutes.
  Mr. FRIST. Mr. President, shortly we will be voting on two 
amendments. The first vote will be an amendment which was carried over 
from this morning on long-term care, deductibility, access to emergency 
room services, access to specialists, and access to OB/GYN services, 
after which we will be voting on the amendment that we have been 
talking about over the last 100 minutes, which is an amendment we have 
introduced on external appeals with a Republican amendment that 
provides a specific timeframe for expedited external review, No. 1.

  No. 2, on coverage of clinical trials, our amendment provides 
coverage of routine patient costs associated with participation in an 
approved trial in the field of cancer.
  No. 3, provider nondiscrimination, where our amendment offered 
protections similar to those provided in Medicare and Medicaid, and the 
balanced budget amendment of 1997.
  No. 4, a point-of-service aspect, where we extended the point-of-
service option to beneficiaries beyond what was in the underlying bill.
  No. 5, continuity of care, which has been discussed by Senator 
  I very much believe these amendments will strengthen the underlying 
  I urge their approval because I think they go right to the heart of 
what the American people want, and that is to keep the focus on the 
patient, on the individual, to ensure quality and to ensure access.
  I yield the remainder of our time.

       Point-of-Service Option and Anti-Discrimination Amendment

  Mr. GRASSLEY. Mr. President, I am pleased to support this amendment 
with my colleagues, Senator Collins, Senator Sessions, and others. This 
amendment will offer freedom of choice to millions of Americans and 
will ensure they have access to a wide range of providers.
  Our amendment would provide individuals with the option of choosing a 
point-of-service plan when no such option exits. I support this because 
I want to give people choice and the ability to go out of network if 
they need to. They may have to pay more for this freedom, but they 
should at least have this protection if they want it.
  I have been a long-standing supporter of the point-of-service option. 
This provision was part of my Medicare patients' bill of rights in 
1997. I also supported a similar amendment offered by Senator Helms on 
the Senate floor several years ago.
  I believe people should have this option when they are willing to pay 
for it. Point-of-service provides people with the security of insurance 
coverage to see providers outside the plan if they need to. Many people 
are will to pay for this extra security. But for people who don't want 
to pay for this, they won't have to. They can choose another plan that 
better suits their needs.
  In addition, this amendment ensures that managed care plans do not 
discriminate against any class of providers, such as chiropractors or 
optometrists. This is important to patients because it ensures they 
have access to certain providers or services they prefer who may be 
left out of the network. Classes of providers, who are not medical 
doctors, are sometimes excluded from participating in managed care 
plans to restrict patients' access to their services. Our amendment 
would ensure this does not happen by prohibiting plans from 
discriminating against any class of providers who are licensed to 
practice in their state.
  This amendment is about choice, freedom, and security. It is about 
allowing patients to choose a plan or provider that best meets their 
health care needs. I hope my colleagues on both sides of the aisle will 
vote in favor of these very important patient protections.
  The PRESIDING OFFICER (Mr. Thomas). The question is on agreeing to 
amendment No. 1243, as amended. On this question the yeas and nays have 
been ordered, and the clerk will call the roll.
  The legislative assistant called the roll.
  The result was announced--yeas 54, nays 46, as follows:

                      [Rollcall Vote No. 207 Leg.]


     Smith (NH)
     Smith (OR)


  The amendment (No. 1243), as amended, was agreed to.
  Ms. COLLINS. Mr. President, 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.

                       Vote on Amendment No. 1252

  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
1252. The yeas and nays have been ordered. The clerk will call the 
  The assistant legislative clerk called the roll.
  The result was announced--yeas 54, nays 46, as follows:

                      [Rollcall Vote No. 208 Leg.]


     Smith (NH)
     Smith (OR)


  The amendment (No. 1252) was agreed to.
  Mr. NICKLES. Mr. President, for the information of our colleagues, we 
are coming to closure on this bill. I think the procedure is that now 
the Democrats, if we continue our alternation, have a second-degree 
amendment which will be offered to the underlying amendment, and we 
will consider that. We will vote on it. Then it is our expectation that 
we will have the passage of the substitute amendment, to be offered by 
Senator Lott on behalf of us, that will be wrapping up some of the 
changes we made to S. 326 in the consideration of this bill.
  We will offer that immediately following disposition of the Democrat 
amendment, and that will be the final

[[Page S8578]]

vote of the evening. At least that is our expectation. For Members' 
information, we will be voting on the next amendment no later than 
6:50, hopefully before 6:50. Then it is our intention to vote on final 
passage no later than an hour or 2 hours after that. That would be 
closer to 9.
  It is our hope that we can shave off some time and have final passage 
much closer to 8 than 9. Members can plan accordingly. Please plan on 
two more votes, one on the Democrat amendment, which will be offered 
momentarily, and then basically the final passage or the Republican 
wraparound amendment--we might call it that--or a substitute. It would 
incorporate all the changes we have made on the floor to S. 326.
  I yield the floor.
  Mr. KENNEDY. Mr. President, may we have order. This is a very 
important amendment, and the Senators are entitled to be heard. We are 
enormously grateful for the attention that has been given to the debate 
generally, but this is in many respects one of the most important 
amendments. The Senators should have a chance to have the attention of 
the membership.
  The PRESIDING OFFICER (Mr. Smith of Oregon). The Senate will be in 

                Amendment No. 1253 To Amendment No. 1251

  (Purpose: To provide for a transitional period for certain patients)

  Mr. KERREY. Mr. President, I send an amendment to the desk on behalf 
of myself, Senator Mikulski, and Senators Schumer, Graham, Kennedy, 
Murray, Daschle, Durbin, Rockefeller, and Torricelli, and ask for its 
immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  Mr. REID. Mr. President, the Senator from Nebraska is yielded 7 
  Mr. JEFFORDS. Mr. President, I ask that we suspend temporarily for a 
  The PRESIDING OFFICER. The Senator from Nebraska has the floor.
  Mr. KENNEDY. If the Senator will yield temporarily, as I understand, 
the Senator is going to make a motion to reconsider and lay on the 
  Mr. JEFFORDS. Mr. President, I move to reconsider the vote on the 
amendment just passed.
  Mr. NICKLES. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The assistant legislative clerk read as follows:

       The Senator from Nebraska [Mr. Kerrey], for himself, Ms. 
     Mikulski, Mr. Schumer, Mr. Graham, Mr. Kennedy, Mrs. Murray, 
     Mr. Daschle, Mr. Durbin, Mr. Rockefeller, and Mr. Torricelli, 
     proposes an amendment numbered 1253 to amendment No. 1251.

  Mr. KERREY. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The text of the amendment is printed in today's Record under 
``Amendments Submitted.'')
  Mr. KENNEDY. Did we yield 7 minutes to the Senator?
  Mr. KERREY. That is correct.
  Mr. President, this proposed change in the law would provide 
protection for every single American who has health insurance in this 
country--not just those that are in self-funded ERISA plans, as the 
Republican alternative would do. That is the most important 
distinction. I have been asked, well, if our amendment fails, will I 
vote for the Republican alternative? My answer is no. I believe that 
would be a step backward because it will say to the marketplace that 
you can fall to the lowest possible standard, which is what the 
Republican proposal does.
  Every step of the way, we have seen a sort of grudging retreat from 
our challenge to change the law and intervene in the marketplace. There 
is cost to this, Mr. President; I acknowledge that cost. But as with 
all regulation, we have to measure the cost versus the benefit. That is 
what we intend to do with this amendment--talk about the benefit to 
people who will be able to get continuity of care, and not just if they 
are pregnant, which the Republicans included in their earlier 
alternative, but to take care of people with terminal illness, for 
example. I understand it that there will be a modification to the 
Republican bill on this point. But you have to be declared terminal.
  What if you have cancer and you believe you are going to survive 
treatment? What if you have diabetes or some other complicated medical 
condition, and you established, over the years, a relationship with 
your physician who watched for changes in your physical condition, 
looked at your symptoms and determined the kind of treatment and 
response to those symptoms, and suddenly you are told your doctor was 
either removed from the managed care group, which happens, or your 
doctor changes venue and moves to some other locality and you are told 
by your managed care organization that you have to pick a different 
doctor. Your relationship with this physician is over.
  This amendment puts the law on the side of those individuals and says 
you can continue care with that doctor for 90 days for most conditions, 
and for three conditions this time can be extended. It is reasonable.
  Is there cost? Yes. Measure the cost against the benefit of having 
the law on your side when it comes time that you are told that your 
doctor now is different and you have had a relationship with that 
doctor. The doctor has diagnosed your cancer and told you here is the 
treatment, or has been your doctor treating your diabetes or your 
cardiovascular disease, or your doctor has told you what the treatment 
is going to be, and suddenly you have a new doctor. You have to pick 
somebody new. That is what this amendment does. It puts the law on the 
side of every single American, not just those in self-funded ERISA 
plans, as the Republican version would do. This takes care of everyone.
  I have real passion on this subject because on the 14th of March, 
1969, I was a healthy human being with the U.S. Navy SEAL team, and I 
thought I could accomplish everything on my own. I didn't think I 
needed any law to support me or take care of my needs. Then I was 
injured. In an instant, I went from being able to take care of myself 
on my own to not being able to do anything at all, including going to 
the bathroom, without asking somebody else for help. So they sent me to 
the Philadelphia Naval Hospital, and I recovered there.
  Well, in 1989, when I came to the Senate, I was fortunate enough to 
be able to be a member of the Appropriations Committee, and we were 
marking up a bill--a law that this body considered. It occurred to me 
we were appropriating money for military hospitals--including the one 
that I had gone to in 1969. Well, in 1969, I didn't understand the 
relationship between that law and me. That hospital was not there 
because of Sears & Roebuck.
  I love the marketplace. I come from the business sector and I love 
what the market can do. But the market has limitations. My life was 
saved by a hospital that was authorized by this Congress. The 
appropriations were authorized by this Congress not because I made a 
financial contribution, not because I was able to come and influence 
anybody in this Congress--there wasn't a politician in America in 1969 
I liked, let alone been willing to make a contribution to. Yet Congress 
passed, and the President signed, a law which saved my life--not the 
marketplace but a law.

  Was there cost? You're darn right there was cost. What was the 
benefit to the rest of America? I hope the benefit was being able to 
say we live in a country where we want our Congress to pass laws to 
take care of our own. We want to take care of each other. It isn't just 
about me. I am healthy today, and the independence I have and the 
health I have came as a consequence of that law. That law gave me 
  Roughly 10 days ago, we all celebrated the Fourth of July. That is 
Independence Day. This Nation has an over 200-year tradition of making 
independence meaningful by fighting against illiteracy, fighting 
against intolerance, and fighting against illness. If you are sick or 
disabled and you don't have health insurance and reliable health care, 
you are not likely to feel independent. It is likely to be meaningless 
to you.
  So what this amendment does is to say if you have a relationship with 
a doctor, and the doctor is treating you, and the market determines 
that the doctor no longer can treat you, you will have a right, under 
the law, to

[[Page S8579]]

continue to have the care of that physician for 90 days. If it is one 
of the three exceptional conditions, this right can be extended.
  As I say, there is cost. I don't disregard the cost at all. I have 
heard many Senators come down and talk about how this is going to 
increase the cost of our insurance. I am willing to pay it. Why? 
Because Americans were willing to pay the bills for me. That is why we 
are a great country. We don't just take care of ourselves; we take care 
of each other. We recognize, as great as the marketplace is, as 
wonderful as free enterprise is in creating jobs and generating wealth, 
there are limits. If all we care about is the bottom line and 
generating profit for our businesses, we will forget the need to put 
the law on the side of human beings when, through no fault of their 
own, the bottom drops out of their lives.
  So I hope and pray that the Republicans will give this amendment 
consideration. It is the last amendment we will consider before we shut 
this thing down permanently. At least for the rest of this week, we are 
not going to have a chance to change the law and put it on the side of 
Americans out there who desperately need it.
  I understand there are costs to it. If I talk to people in Nebraska 
and they ask why we do this, I will not only use myself as an example, 
I will use hundreds of others who had the law on their side. Medicare 
beneficiaries have had the law on their side, and they are better off 
as a consequence.
  I yield the floor.
  Mr. KENNEDY. Mr. President, I yield 5 minutes to the Senator from 
  The PRESIDING OFFICER. The Senator from Maryland is recognized.
  Ms. MIKULSKI. Mr. President, we are in the closing hours of this 
debate now. I want to thank the distinguished Senator from 
Massachusetts for his steadfast advocacy not only this week, but his 
whole life has been devoted to making sure that people have access to 
health care, and to believing that in the United States of America 
there is an opportunity structure where we give help to those people 
who try to practice self-help--we have done that in education and in 
our legal framework--and also to be sure that if you have something 
happen to you in terms of your physical, emotional, or mental well-
being, you should have access to health care in the greatest country in 
the world.
  I thank Senator Kerrey for offering this amendment. I think it is an 
outstanding amendment and I am pleased to be a cosponsor. I lend my 
voice to this amendment that the Senator has offered, and I hope that 
at least once this week we can pass an amendment 100-0, and that we put 
the profits of an insurance company aside, put the politics of party 
aside, and that we take a moment to think what is in the best interest 
of the American people.
  I hope that on this amendment we can come together. Senator Kerrey's 
amendment is one that I offered in the committee. It was defeated along 
party lines. But I understand committees. That is the way it goes. But 
I don't understand how we are doing this on the floor of the Senate 
because, first of all, we are advocating continuity of care. What does 
that mean?
  It means just because your boss changes insurance companies, you 
don't have to change your doctor. It also means if your physician is 
pushed out of a network, you are not pushed aside from seeing that 
  Why is this important? It is important because doctors are not 
interchangeable. The hallmark of getting well and staying well is the 
relationship between a doctor and a patient. We have known this 
throughout history. This is nothing new. This goes back to Hippocrates 
and the earliest basis of medicine. Your doctor knows you as a person--
not as a chart or a lab test. Your doctor knows you, your history, your 
family's history. Your doctor knows what is best for you and how to act 
in the most prudent way in regard to what is medically necessary or 
medically appropriate or medically indicated.
  Why is this important?
  There are those who will say this will cost too much. I say, if we 
don't have it, it will be penny-wise and pound-foolish.
  If you are dumped from seeing the doctor you currently have and you 
have to start all over again, that doctor is going to have to take a 
complete physical. The doctor is going to have to take complete tests 
and in many instances start all over with you. Diabetes is treatable 
and diabetes is manageable, but if you are a diabetic and go to a new 
doctor, that doctor has to know you and your history and your family 
history, and start again with complicated tests and complicated 
evaluations. That is penny-wise and pound-foolish. You should stick 
with your own doctor, or at least come up with a transition plan.
  What about the terminally ill?
  This amendment Senator Kerrey has offered says if you are terminally 
ill, or your family member, or your child, is terminally ill, you get 
to keep your doctor. What happens if your child has a terminal illness? 
You are struggling with this illness. Imagine being a father wanting to 
be at the bedside of a child who is terminally ill. Instead he is in 
the other room calling an insurance company finding out if his son's 
doctor is in his new plan's network because the company he works for 
has changed HMOs. So he is up there not talking to the doctor about his 
son, or not even talking to his son, but trying to figure this out.
  I think that is cruel. I think it is cruel and unusual punishment.
  What happens if you are recovering from a stroke and you are in a 
rehabilitation hospital?
  Under the Kerrey-Mikulski amendment, you will get to keep your doctor 
during that rehabilitation, so you can return and not be having to try 
to find out who your physician is going to be.
  What happens if you have been admitted to a mental hospital for an 
acute psychiatric episode and you have chronic schizophrenia, but you 
also have a physician who has been treating you, who knows you, and in 
those 90 days you have to change doctors just when you are trying to 
get your mental health back again?
  This is what we are talking about--continuity of care, so for those 
undergoing an active course of treatment and for all Americans who have 
insurance you would get at least 90 days to come up with a transition 
  But in three categories--if you are terminally ill; also if you are 
within an institution or facility; or if you are pregnant--you get to 
keep your doctor for a longer period.
  We think this is what should happen. This isn't just Barbara Mikulski 
making this up.
  I will submit a letter from the Consortium of Citizens with 
Disabilities. These are people who strongly support the Kerrey-Mikulski 
  This is what they say:

       Protecting continuity of care is not some wonky 
     technicality. It will have a real impact on the quality of 
     care for many people with disabilities and anyone who is 
     undergoing active treatment. Consider for a moment what could 
     happen to a child with cerebral palsy if their parent's 
     employer changed health plans and there was no opportunity to 
     adequately plan a transition to new plan and new providers. 
     It can be assumed this child would be receiving ongoing 
     physical therapy.

  This could be potentially expensive and exhausting for the family. 
There may be a variety of other reasons for this.
  I ask unanimous consent that this letter be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                           Consortium for Citizens

                                            With Disabilities,

                                    Washington, DC, July 12, 1999.
     Re CCD strongly supports the Kerrey/Mikulski amendment on 
         continuity of care.

     Hon. J. Robert Kerrey,
     U.S. Senate, Washington, DC.
       Dear Senator Kerrey: We are writing as Co-Chairs of the 
     Health Task Force of the Consortium for Citizens with 
     Disabilities (CCD) to express our strong support for the 
     amendment you intend to offer with Senator Mikulski during 
     the upcoming debate on the Patient's Bill of Rights. Your 
     amendment will ensure that continuity of care is protected 
     when health plan contracts are terminated. This is a critical 
     issue to people with disabilities. CCD is a Washington-based 
     coalition of nearly 100 national organizations representing 
     the more than 54 million children and adults living with 
     disabilities and their families in the United States.
       For people with disabilities, planning a transition from 
     one health plan to another requires great care and much 
     coordination. If an employer switches health plans or if 
     enrollees experience a change in health plans for any reason, 
     persons with disabilities need to be guaranteed that they 
     will have adequate time to manage the transition to new

[[Page S8580]]

     providers. For persons undergoing active treatment for 
     serious conditions, patients should be permitted to continue 
     being treated by their existing provider until the serious 
     condition has been positively resolved or for at least ninety 
       Protecting continuity of care is not some wonky 
     technicality. It will have a real impact on the quality of 
     care for many people with disabilities and anyone who is 
     undergoing active treatment. Consider for a moment what could 
     happen to a child with cerebral palsy if their parent's 
     employer changed health plans and there was no opportunity to 
     adequately plan a transition to a new plan and new providers. 
     It can be assumed this child would be receiving on-going 
     physical therapy, they would potentially be taking extensive 
     prescription medications, they would have an on-going need 
     for various types of durable medical equipment such as a 
     wheel chair or other devices that help them to function. They 
     may also be receiving personal assistance services. If a 
     transition to another plan is necessary, should the care of 
     the child be abruptly terminated without any planning to 
     manage the transition to a new plan and new providers?
       What is most perverse about such a situation is that if 
     care is interrupted, this child could develop an acute health 
     problem that requires a hospitalization. Is this in the best 
     interest of that child or the health plan? This type of 
     scenario is not limited to this example.
       Anyone who is receiving on-going care needs an opportunity 
     to plan and manage a transition to a new health plan, and if 
     necessary a new provider. We are frustrated that such a 
     straightforward issue is not adequately addressed in the 
     Republican Leadership proposal.
       There are many complex issues that will be raised as the 
     Senate debates the enactment of a Patient's Bill of Rights. 
     Continuity of care is not one of them. Your amendment 
     provides a straightforward solution to a simple problem. 
     Under current law and the Republican Leadership proposal, 
     health plan enrollees could be stranded and life-prolonging 
     health care could be abruptly interrupted through no fault of 
     their own.
       The CCD Health Task Force is grateful for your leadership 
     on this critical issue and we look forward to working with 
     you and your staff to ensure that this amendment is adopted.
     Jeffrey Crowley,
       National Association of People with AIDS.
     Bob Griss,
       Center on Disability and Health.
     Kathy McGinley,
       The Arc of the United States.
     Shelley McLane,
       National Association of Protection and Advocacy Systems.

  Ms. MIKULSKI. Mr. President, we have letters from parents. We have 
letters from advocacy groups that say in the United States of America 
when you get health care it shouldn't have term limits on it.
  I yield the floor.
  Mr. REID. The Senator from New York is allocated 4 minutes.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Mr. President, I thank the Senator from Nevada for 
  It has been a long week. I know there will be many who will say that 
this week was not as productive as it might be. I agree with that 
  But this is one good point that has emerged. We have debated, as we 
asked, the Patients' Bill of Rights. It is now an issue that is before 
the American people. They know there will be a time when they don't 
have to put up with HMOs that are dictating policy.
  The American people know that in the doctor-patient relationship 
there does not have to be a third person in the room all the time--an 
actuary, an accountant with no medical experience. They know it is 
possible for this Senate and this Congress to pass a law that might say 
that if your doctor says you need a medication, and says you need a 
procedure, and says you need an operation, and your HMO denies it, you 
have the right --you could, if this Senate had the courage--to an 
independent appeal.
  Unfortunately, amendment after amendment that would have protected 
the average American was rolled back. Unfortunately, we are in a 
situation where the insurance industry has all too often dictated what 
has happened on this floor. Instead of stepping up to the plate and 
voting for the protections for which our constituents are literally 
clamoring, this Senate buckled to the insurance industry and passed a 
bunch of amendments that are aimed at looking good and doing nothing. 
The look-good, do-nothing amendments will not prevail because next 
week, and the week after, as Americans visit their doctors and their 
HMOs deny them service, deny them things they need, they will know.
  This entire debate can be summed up in three numbers. Who is covered 
under the Democratic plan? One hundred and sixty-one million people. We 
lost on that amendment. The Republican plan, which covers 48 million 
people, prevailed.
  What are we saying to the 113 million who will not get coverage? The 
main argument against the legislation is that it would cost too much. 
The cost is $2 a month. How many Americans wouldn't pay $2 a month to 
have their doctor determine what medicine, what operation, what 
specialist they need?
  I think the only Americans who would not vote to have that $2 a month 
in exchange for what they need medically are in this Senate, and in a 
few of the HMOs.
  My colleagues, my friends, this is not the Senate at its greatest 
hour. This is a time when we, once again, succumb to the special 
interests and deny what the American people want.
  But we will be back. The American people will demand we come back. 
They will demand the pendulum swing back to the middle so actuaries 
don't make policy, but doctors do.
  We shall return. We shall, not tonight but in the future, prevail.
  Mr. BOND. Mr. President, I yield myself 10 minutes.
  As we near the end of this debate, I want to share a few thoughts 
generally on the proposals we are discussing. Quite frankly, we just 
had an opportunity to see the amendment which has been offered. Our 
crack Senators are reading it over to study the measure. They will 
shortly have comments to offer on that.
  I want to talk about some areas that I think have become very obvious 
as we have moved forward in this debate. The first thing we ought to 
emphasize is that both sides are going to deal with the managed care 
problems and concerns. We have heard from patients in our States. I 
have heard a lot of rhetoric and a lot of name-calling about what the 
various bills do. The simple fact of the matter is, the people of 
Missouri, the folks who talk to me, the people who are concerned about 
health care--the small businesses are particularly sensitive--have some 
things they don't want to do.
  The first rule of medicine is to do no harm. They want to make sure 
we don't make it worse. I believe the amendments we have adopted and 
the direction in which we are going will make the situation better. We 
are going to assure patients in a managed care plan, if they are turned 
down for coverage, they can go to a physician for an external appeal, 
and thanks to the very wisely crafted provision of the amendment 
offered by my colleagues--Senator Ashcroft, Senator Kyl, and Senator 
Abraham--if the managed care organization doesn't provide them with 
that coverage of services that the external appeal said they are 
entitled to, they will be able to go out and get it someplace else and 
bill the HMO.
  What we are saying is, we don't want to give people a lawsuit, a 
cause of action or, even worse, give their widow or their orphans a 
cause of action. We want to give them health care. We want to give them 
a treatment. We want to give them a treatment, not a trial. We want 
them to make sure they can get health care. That is the important 
point. That is what the provisions we have adopted do.
  One of the things we don't want and one of the things our colleagues 
on the other side of the aisle seem to want is another bureaucratic 
nightmare. Do we really want to turn the regulation of our health care 
system over to the Federal Government, to the bureaucrats at the Health 
Care Financing Administration? I say not. We have had a lot of 
experience with HCFA, and it has not been good.
  The Republican bill is based on the premise that States can do a good 
job monitoring what is going on in the world of managed care, they can 
do a good job of deciding what is the appropriate legislative response. 
Some may do better, some may not do as well. But the nice thing about 
the laboratory of States is that we can see which States are doing the 
best job and we can change the law.
  During my time and service in State government, we worked on assuring 
better regulation. The States will move

[[Page S8581]]

forward. My State has passed a Patients' Bill of Rights. Most States 
have. They are looking to see how it works. The States that make it 
work the best are going to be followed by others.
  The Democratic bill, the Democratic approach, is based on the premise 
that States can't handle managed care regulation and that Federal 
bureaucrats are better equipped to do it. The Democratic bill will 
overturn a host of State laws and replace them with the interpretations 
of the Federal Government employee. These are the same bureaucrats who 
produced one nightmare after another in trying to impose their 
regulatory monstrosities from Washington. Now they want the entire 
health care system turned over to them.

  We have already had examples of HCFA's failures related to the issue 
of consumer protection, the very topic that the Democrats want to turn 
over to HCFA lock, stock, and barrel. Back in 1996, we entrusted HCFA 
with more responsibility when Congress passed the Kassebaum-Kennedy 
health care bill designed to make sure health care was portable. How 
well did HCFA handle this responsibility? According to the General 
Accounting Office, HCFA admits they pursued a Band-Aid, minimalist 
approach for protecting consumers.
  The GAO has another finding that HCFA ``lacks the appropriate 
experience or expertise to regulate private health insurance.'' These 
are the people to whom we want to turn over regulatory responsibility 
for the entire health care system? When they are entrusted with the 
entire responsibility, when they are incompetent or mess up, the whole 
country suffers.
  One of the things I have done as chairman of the Small Business 
Committee is to try to ensure that Federal agencies live up to the 
requirements of the law passed in this body and the other body 
unanimously to reduce redtape, to make sure that Federal agencies take 
into account how their activities and their regulatory actions would 
impact small business. We found there were several agencies that 
weren't doing a very good job. The regulatory process was clogged up.
  I initiated the ``Plumber's Friend Award'' to unclog the regulatory 
pipes in these agencies. Needless to say, HCFA and the Department of 
Health and Human Services were one of the first. We give these awards 
to Federal Departments which blocked the flow of public participation 
because they failed to reduce unreasonable and burdensome regulations 
affecting small business. HCFA and HHS qualified for the award by 
repeatedly disregarding Federal laws designed to make it easier for 
small businesses to deal with the massive amounts of regulation and 
paperwork required by Federal bureaucrats.
  That is an example of the nightmare HCFA is creating. We saw the 
nightmares. They were going to impose surety bond requirements on home 
health care agencies, many of them small businesses in my State. HCFA 
decided they were going to require the small business home health care 
agencies to purchase surety bonds that would cover up the Federal 
Government's mistakes. In other words, they had to provide insurance so 
if the Federal Government made a mistake, the surety bond would be 
responsible. A home health care operator told me with tears in her eyes 
she couldn't raise the money to buy a surety bond.
  Then they imposed cuts on the home health care agencies that have 
been putting them out of business left and right. Under the Balanced 
Budget Act, they were supposed to save $16 billion a year over 5 years. 
They cut back on the amount of reimbursement so much that they would 
wind up saving $48 billion a year. They were imposing a system of 
reimbursement that penalized the good providers, that penalized the 
providers who were providing the most intensive care in the home. They 
were penalizing the providers in the most difficult areas--precisely 
the kind of service we want to keep.
  HCFA has had a bad track record. Ask anybody who has had to deal with 
HCFA, and they will say, whatever the problem is, HCFA is not the 
  There are some who think that maybe our colleagues really want to get 
back to the era of another health care proposal that came from the 
White House. Known as Clinton Care, the 1993 health care plan was going 
to be a Federal takeover of health insurance. The wisdom of the Federal 
Government was going to run health care.
  Senator Gramm has done a good job this week talking about some of the 
possible horror stories that could and would have happened if we passed 
the Clinton health care bill. Fortunately, we didn't. Some of my 
colleagues are running around saying they personally helped kill the 
Clinton health care bill. That sucker wasn't killed by any Republican. 
It died of its own weight. The Democratic majority leader didn't even 
bring it up because once they looked at it, they said, this thing isn't 
going to work. It was dead on arrival.
  Let me state some of the likely results had we adopted the 
President's proposal to socialize medicine. Expensive mandates on the 
Nation's employers would have cost jobs, insurance premiums that would 
likely skyrocket. It would create 50 new Federal bureaucracies, a new 
trillion-dollar Federal entitlement. These were the items we would have 

  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. BOND. Mr. President, I ask for another 3 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BOND. The bottom line is we would have had 1,200 pages of 
mandates, rules, requirements, and penalties. It died. But let me 
remind my colleagues what the President said just a couple of years 
ago, in September 1997. Talking about his failed effort to impose this 
failed health care bureaucracy on the American people, he said:

       If what I tried before won't work, maybe we can do it 
     another way. That is what we tried to do, a step at a time 
     until we have finished.

  That is what I am afraid of. That is what we were trying to do, to 
get to the point where we had socialized health coverage in the United 
  Costs are clearly a problem. Costs are going to be a lot more than $2 
million, or one Big Mac, $2 a month or one Big Mac a month, as some of 
my colleagues on the other side have said. If you have a $2,600-a-year 
family health insurance program and you have a 5-percent raise, it is a 
whole lot more than $2 a month. It is about $180 a year, something 
similar to that. It is a lot more. And when costs go up, people lose 
their health insurance.
  We need to fix some of the problems. We need to do it without driving 
people out of the system. We already have 40 million uninsured people 
in America. I can tell you one thing that is clear: small businesses 
are very much concerned about ensuring they do not get priced out of 
the ability to compete by their health insurance costs.
  There is an excellent article in the Wall Street Journal on Thursday, 
April 15. I ask unanimous consent it be printed in the Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

             [From the Wall Street Journal, April 15, 1999]

 Taking Care: Small Employers Offer Health Benefits to Lure Workers in 
                              Kansas City

                          (By Lucette Lagnado)

       Kansas City, Mo.--When Stephanie Pierce took over as 
     director of the Broadway Child Enrichment Center in December, 
     she faced a hiring crunch.
       The small, church-based day-care center was enrolling more 
     children than ever, and Ms. Pierce needed to keep the staff 
     she had and bring on more. It was no small challenge in 
     Kansas City's strong economy, where newspapers are flush with 
     help-wanted ads and workers can brush off day-care work, with 
     its low pay and high pressure.
       So, Ms. Pierce made a move her hourly workers could never 
     have imagined: She scrutinized her budget, swallowed hard and 
     decided to offer medical benefits to employees.
       That put the day-care center out of sync with small 
     employers in many U.S. cities. But not in Kansas City.
       Nationwide, the problem of people living without any health 
     insurance is growing. It is estimated that they total more 
     than 40 million, and their numbers are increasing as welfare 
     recipients who had Medicaid leave the rolls for jobs that 
     don't offer health benefits. In addition, fewer small 
     businesses are offering medical benefits to workers, says a 
     study by the Henry J. Kaiser Foundation. It puts the share at 
     54 percent last year, compared with 59 percent in 1996.
       But Kansas City is moving the opposite way, thanks not only 
     to its tight labor market--a 2.8 percent unemployment rate, 
     vs. 4.2 percent nationally--but also to a Chamber of

[[Page S8582]]

     Commerce initiative and to competition for workers from an 
     industry that does offer medical benefits: riverboat casinos.
       As small employees such as the daycare center offer this 
     coverage for the first time, some interesting things are 
     happening. The employees are facing the pain of rising health 
     costs, just like their big brethren. But they are also 
     learning something else that large companies know: In some 
     ways, offering health benefits saves money. As for workers, 
     they are finding that coverage can be a psychic as well as 
     physical benefit.
       The first change Ms. Pierce noticed at her day-care center 
     went pretty directly to the bottom line. Sick days declined. 
     In February, overtime costs for her 14-member staff totaled 
     $120, down from a monthly average $420 last year.
       It seems that before, sick workers who were uninsured would 
     commonly stay home to try to nurse themselves back to health, 
     or would get stuck for hours in a hospital emergency room or 
     free clinic. Now, they can get timely medical attention from 
     private physicians in their health plan and often return to 
     work sooner.
       That means Ms. Pierce no longer has to pay as many other 
     workers to pull overtime, at higher pay. ``It's better to pay 
     an employee to be there at work than to be sick. It helps 
     your cash flow,'' Ms. Pierce says. Having a staff that has 
     health benefits is ``a whole new world,'' she says.
       For the staff, the changes are greater still. Before she 
     got insurance, employee Towanna Smith says, being ill meant 
     ``terrible'' waits at a hospital emergency room, not to 
     mention other indignities she perceived. She and a friend 
     were in a car accident last year. ``My friend had insurance 
     and I didn't, and I noticed that the doctor treated her 
     differently.  He went over her thoroughly,'' says Ms. Smith, 
     who is 26 years old.
       Last month, Ms. Smith, now in a health plan, went to a 
     doctor for a swollen arm that has nagged her since the 
     accident. ``I brought out my insurance card, and I got 
     special treatment,'' she says, smiling, ``I said, `Thank you, 
     Jesus.'' '
       She might also thank the riverboat casinos. About four 
     years ago, out-of-town gambling companies arrived in an 
     already-tight labor market here and began hiring thousands of 
     people locally, leaving in place companywide policies that 
     called for full-time workers to get medical coverage. ``The 
     boats put people in a tizzy,'' says Scott Samuels, an adviser 
     to hotels and restaurants. ``People were flowing to the 
     casinos to work, and I know that employers in the hospitality 
     field, out of sheer need, had to offer greater benefits and 
     incentives to employees.''
       Quick to react was Peter Levi, president of the local 
     Chamber of Commerce. To help local employers compete, he 
     teamed up with an insurer, Blue Cross Blue Shield of Kansas 
     City, to devise a healthcoverage plan that a mom-and-pop 
     business could afford. Blue Cross capped premium increases at 
     about 9% a year.
       In three years, more than 3,000 businesses here have begun 
     offering the plan. Blue Cross officials expect the number to 
     increase 15% this year.
       Some other insurers, noting this success, also began 
     offering small-employer health-benefits plans. HealthNet, a 
     health plan partly owned by the eight-hospital St. Luke's-
     Shawnee Mission Health System, last summer unveiled a program 
     for tiny businesses and has signed up 200 of them, covering 
     4,000 employees and dependents, including the Broadway Child 
     Enrichment Center.
       Frances Cox, who has operated a 77-room Best Western Hotel 
     for more than a decade, began offering medical benefits for 
     the first time in 1997. She chose Kaiser Permanente, the big 
     health-maintenance organization, and agreed to pay 100% of 
     the premiums, prompted by the need to compete with the 
     casinos for reliable workers. ``It is the cost of doing 
     business,'' she sighs. ``You have to stay competitive.''
       Only seven or eight of her 20 employees took the coverage. 
     That surprised her, but she learned that some were covered 
     through their spouses, while others had Medicaid, the 
     federal-state program for low-income people, which they 
     preferred to an HMO requiring copayments.
       As a recruitment tool, the benefits do the trick for Ms. 
     Cox. She has attracted people like her new 29-year-old head 
     of housekeeping, Lewis Nicholson.
       Mr. Nicholson had worked at a fast-food outlet for 14 years 
     without getting benefits, and he held a second job cleaning 
     office buildings by night, just to get medical coverage. A 
     year ago, he decided to take advantage of Kansas City's 
     booming job market. ``In looking for a job, I looked to see 
     what type of benefits'' were offered, he says. Result: no 
     more fast food, just one full-time job at the Best Western, 
     where Ms. Cox says he is already one of her most valued 
       Ms. Cox makes sure she gets her money's worth from Kaiser 
     Permanente. If a sick worker has trouble getting a quick 
     doctor's appointment, ``I will call and say, `This is Fran 
     Cox and I am director of operations. Can't you see this 
     person?'' she says. ``When they develop a better relationship 
     with their doctor, that gets them back to work faster.''
       She adds that as after employees ``become exposed to 
     insurance, they begin to appreciate what the benefits are. 
     They know that they can go to a single doctor and receive 
     excellent care. They are being educated.''
       So is she--in costs. The first year, 1997, the HMO coverage 
     cost her $110 a month per employee. That rose to $120 in 
     1998, and then, for 1999, Kaiser Permanente jolted her with a 
     boost to $157 a month per covered worker. Though Kaiser 
     eventually agreed to shave this by $5 in return, she says, 
     for boosting workers' copayments, ``a jump like this pretty 
     much scares the jeepers out of me,'' Ms. Cox says, and 
     makes her wonder ``how long can we continue'' to offer 
     free medical coverage. One option she is considering is 
     requiring employees to pay part of the premium.
       Some employers find they can't offer health benefits even 
     if they want to. Patti Glass ran the nonprofit Jewish Family 
     and Children Services, assisting the frail elderly. She was 
     paying $6.50 an hour--and hemorrhaging workers. Ms. Glass 
     looked into health plans but found them prohibitively 
     expensive for her mostly middle-aged workers. Even a basic 
     plan would add $1.35 to her hourly wage costs, she figured, 
     and she would still have to offer a pay increase to be 
       ``Adding the cost of health benefits was going to make the 
     service unavailable. It was going to make the cost 
     astronomical,'' she says. The upshot: Ms. Glass chose simply 
     to raise wages 30%, to $8.50 an hour, and forgo a health 
       As an alternative, some employers merely give workers an 
     opportunity to get in on group insurance, but contribute 
     nothing toward paying the premiums. There are also bare-bones 
     plans that do little more than give employers the right to 
     say that they offer a medical plan.
       Still, even a number of fast-food outlets here now offer 
     some sort of medical coverage to certain hourly workers. 
     David Lindstrom, a former Kansas City Chiefs lineman, owns 
     three Burger King franchises, including one in suburban 
     Johnson County, an area of million-dollar mansions, feverish 
     construction and an unemployment rate of about 2%. For his 
     ``key approved'' employees--full-time workers who can open 
     and close restaurants--he offers Blue Cross medical coverage 
     and pays much of the monthly premiums.
       To him, offering benefits ``was a competitive decision we 
     needed to make, and we think that long-term it will reap 
     rewards for us. Already, it has allowed us to retain 
       People like Kathy Wilson. A nine-year employee, Ms. Wilson 
     arrives at 4 a.m. to get ready for the day, and soon becomes 
     a whirling-dervish of activity, rushing from station to 
     station. ``I cook the eggs, I cook the sausages, I heat up 
     the Cini-Minis,'' she says. Then the customers arrive, and 
     she really gets busy.
       FInding medical coverage became a top priority for Ms. 
     Wilson, who is 29, a few years ago after she had a baby. 
     Paying for everything out of pocket was a huge strain. It 
     wasn't long afterward that Mr. Lindstrom began offering 
     insurance, and she jumped at it. Out of her pay of $8.75 an 
     hour, Ms. Wilson contributes $25 every month for medical 
     coverage, plus a discretionary $85 to cover her son.
       Though her employer pays half, some fast-food operators 
     have chosen no-frills health plans that require workers to 
     pay 100% of the premiums, for very basic coverage. Several 
     McDonald's and Godfather's Pizza outlets here have signed up 
     with Star Human Resources Inc., a Phoenix company that sells 
     plain-vanilla health plans known as Starbridge. One of them 
     costs only $5.95 a week, usually paid by the workers 
     themselves, and provides a narrow array of benefits with 
     strict limits.
       Marilyn and Thomas Dobski, owners of a dozen McDonald's 
     outlets, offer Starbridge, and about 40% of full-time hourly 
     employees take it. Shift managers, who typically earn about 
     $7 an hour, can enjoy a fancier, $50-a-month Starbridge plan 
     subsidized by the Dobskis.
       Mike Rogers, a Star salesman in Phoenix, explains that his 
     company provides a limited plan for working population that 
     ``most insurers don't want to mess with.'' He is quick to 
     concede it isn't comprehensive: ``If they have a catastrophe, 
     our little plan won't be adequate.'' But Mrs. Dobski, 
     defending it, says the plan offers workers ``much more than 
       The uninsured in Kansas City still total between 9% and 12% 
     of the population. But that is far below the nationwide 
     average, 18%, or New York's 28%. The number of uninsured 
     patients showing up in St.-Luke's Shawnee Mission 
     emergency rooms for free care has at last leveled off, 
     says Richard Hastings, chairman.
       Kansas City's experience intrigues E. Richard Brown, a 
     professor at the University of California at Los Angeles who 
     studies health policy. He warns that the medical benefits 
     popping up could disappear fast if the local ecomony weakened 
     and competition for workers eased up. But another student of 
     these issues is more hopeful. William Grinker, president of 
     Seedco, a nonprofit New York organization, says, 
     ``Historically, once you have benefits, it is much harder to 
     take them away.''
       These days, benefits are a new goal--beyond just a job--at 
     Kansas City's Women's Employment Network, which helps low-
     income, often poorly educated Kansas City women find work. 
     ``We actually coach the women so they don't simply settle,'' 
     says Leigh Klein, the network's executive director. In 
     January, the network placed 25 women. The average wage was 
     $7.87 an hour and 18 of the jobs came with benefits of some 
     sort, more than half of them medical.

[[Page S8583]]

       The importance of benefits is something the center drums 
     into its clients. It is a crucial lesson, because if they are 
     giving up welfare to take a job, they will also lose Medicaid 
     after about three years.
       Charlotte Jones, a spirited 20-year-old attending one 
     recent session, has learned will. ``I worked at lots of fast-
     food places--Texas Tom and White Castle,'' that didn't offer 
     medical benefits, she says. As her classmates nod, she adds: 
     ``If I had a job that paid even $7 an hour, but it had 
     benefits, I would snatch it up.''
       It is nap time at the Broadway Child Enrichment Center. Ms. 
     Pierce, the director, lowers herself onto a red plastic 
     toddler's chair to explain how she picked a benefits plan. 
     Keeping costs down was the overarching priority. She reviewed 
     $120-a-month HMOs, plus a HealthNet Preferred Provider plan 
     for $137 a month.
       ``I gave the staff a spreadsheet and let them help me with 
     the decision,'' she recalls. Wary of HMOs, they chose 
     HealthNet, whose coverage includes doctor's visits (with a 
     $15 co-payment) and maternity care and hospitalization.
       The director, for one, couldn't be happier. Before the 
     employeers got coverage, Ms. Pierce says, ``these girls would 
     spend two to four days at home being sick. Now, they don't 
     have to--they call, get an appointment, get a medication and 
     return to work.''

  Mr. BOND. It talks about small businesses in Kansas City, MO, getting 
health insurance coverage. But the costs are still the problem, and 
there are examples of people who are trying to provide health care 
coverage, but when the costs continue to go up, then they have to drop 
it. They are fighting over $5 a month. Some of the people who wanted to 
provide health care for their employees figured they could not afford 
$1.35 an hour in addition which, on a 2000-hour-a-year job, would come 
out to around $2,700. They aren't able to afford the increased cost of 
  If we drive the costs of health insurance up, we are going to find 
people who cannot afford it. We are going to find employers who drop 
it. Particularly, if we give the employee the right to sue their health 
care plan or their employer, as my friends on the other side wish to 
do, they are not going to provide it.
  We need to make health care better, more affordable, more accessible. 
We do not need to drive people out of the health care system.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I yield myself 9 minutes.
  We are drawing to a close on this debate. While I am pleased that our 
colleagues have addressed an issue related to genetic discrimination in 
their bill, I am very concerned about the way in which this has been 
approached and I regret that we have not had sufficient time to focus 
on this issue. I was a co-sponsor of Senator Snowe's original bill in 
the 105th Congress, which contained strong penalties and disclosure 
prohibitions. Unfortunately, the Republican bill will not stop genetic 
discrimination, because it lacks three key provisions.
  First, the Republican bill does not prohibit discrimination by 
employers. If we only address health insurance, we could actually 
increase employment discrimination. Second, the Republican bill does 
not prohibit health insurers from sharing the information with each 
other and with employers. Finally, the Republican bill lacks teeth. The 
only penalty in the Republican bill for genetic discrimination is a 
fine of $100 a day. Do we really think that $100 a day will deter the 
health insurance industry from practicing genetic discrimination?
  That is why Senator Daschle, Senator Harkin, Senator Dodd and I 
introduced legislation earlier this month to truly prevent genetic 
discrimination. Our bill prohibits disclosure of genetic information to 
employers, prohibits employment discrimination, and contains strong 
  The bottom line is that people are afraid, and that prohibiting 
health insurance discrimination is not enough. We have letters from 
patient groups, women's groups, medical groups, and labor groups, 
asking us to stop employment discrimination, place some limits on 
disclosure of predictive genetic information, and back up these 
prohibitions with strong penalties. I look forward to passing a 
meaningful genetic discrimination bill after this debate.
  As to our debate this week on the Patients' Bill of Rights, I think 
it is fair to look at the reaction in communities across the country. I 
would like to share this with our colleagues.
  Here is the St. Louis Post-Dispatch editorial, July 14 of this year:

       The Republicans keep asking the wrong question about health 
     care. Instead of asking how to keep the quality of health 
     care high, their primary concern seems to be how to keep the 
     cost of health care down. They are paying too little heed to 
     the symptoms of an ailing health care system, which are hard 
     to miss. There is a drumbeat of HMO horror stories.
       Sure, people want inexpensive health care. But it is 
     increasingly apparent that neither doctors nor nurses nor 
     patients are willing to have appropriate medical care 
     dictated by HMO bureaucrats with their eyes on the bottom 

  Dayton, OH:

       The Republican's bill is largely a statement of goals. The 
     Democrats' bill provides better support for patients and 
     medical-care providers. . . .

  The Atlanta Journal and Constitution, July 15:

       It's called the Patients' Bill of Rights but by the 
     time the U.S. Senate gets done with it a better title will 
     be ``The HMO Protection Act.''
       On amendment after amendment this week, Senate Republicans 
     have had their way, creating a bill that seeks to limit the 
     rights of HMO patients, not protect them. . . .
       Relying on the mercies of the marketplace and the HMOs to 
     meet America's health care needs has not worked and will not 
     work. Patients need protections. That's what Congress ought 
     to provide.

  New York Times, July 15:

       What occurred on the floor of the Senate this week was a 
     GOP-sponsored charade in which one Republican Senator after 
     another talked about protecting the health of patients while 
     voting to protect the profits of industry.
       It was a breathtaking exercise in hypocrisy. . . .
       All that mattered was the obsession with the profits of the 
     insurance companies and the HMOs.

  Newsday, July 15:

       Medical insurance? Try malpractice by GOP.

  The Fort Worth Star-Telegram, July 13, a column by Molly Ivins:

       We are watching a classic political shell game: There's the 
     Patients' Bill of Rights that actually gives the patients 
     some rights and there's the Patients' Bill of Rights that 
     doesn't. . . .
       The reason we know this is pure hooey is because the very 
     bill they are opposing has already been in effect in Texas 
     for over two years and none of the heinous consequences they 
     predict has occurred here.
       If the Republicans and the insurance industry have their 
     way, the old shell game will run right through the Senate and 
     we'll get something called a bill of rights that has no 
     remedies in it.

  The Seattle Post Intelligencer, July 8:

       The health insurance industry is back again with a 
     misleading campaign opposing a patients' bill of rights.
       Just as the industry did successfully in 1994 with its 
     Harry and Louise ads that misled the public about President 
     Clinton's health care reform--falsely claiming that people 
     would lose their right to choose their own doctor--the new 
     campaign is designed to convince us that a patients' bill of 
     rights will cause many people to lose their health insurance.
       Like the Harry and Louise ads, the campaign relies on fear 
     rather than fact. . . .
       Consumers need avenues of redress when dealing with health 
     care providers. . . . [T]he ability to sue their health care 
     provider and portability of their health care should they 
     change jobs or move to another area[,] those are all 
     fundamental rights to which consumers are entitled. No one 
     should be fooled by this later effort to distort the issue of 
     health care.

  The Charleston West Virginia Gazette, July 14:

       Democrats have a proposal called the Patients' Bill of 
     Rights. Republicans have called theirs the Patients' Bill of 
     Rights-Plus Act. If truth-in-advertising laws applied to 
     Congress, the GOP would have to call its bill the Patients' 
     Bill of Rights-Minus Act. . . .
       Some cost-saving measures may be necessary to keep health 
     care spending under control, but when HMOs sacrifice patient 
     health for profits, they must be held accountable. Democrats 
     want that. Republicans apparently don't.

  The News and Observer, Raleigh, NC:

       The GOP is up against it, because this bill of rights, 
     [referring to the Democrats'] is hardly a revolution: It 
     would ensure that people could choose their doctors and their 
     specialists, would allow them to go to the closest emergency 
     room instead of one specified by an HMO, would enable them to 
     keep a doctor who has begun treating them even if that doctor 
     were dropped by the HMO. Republicans rail against regulation 
     of this type, but they fail to see the American people are 
     ready for it.

  These are just a few examples of editorials being written all across 

[[Page S8584]]

country this week. Why do they all get it and no one gets it in here 
except Democrats and the two or three of our Republican friends who 
have supported the Patients' Bill of Rights? Why is the debate so 
different all across the country than it is, apparently, here in the 
Senate? Why is it that we have all the nurses supporting us? Why is it 
that we have all the doctors supporting us? Why is it that we have all 
the health professionals and all the patients groups supporting us? And 
why is it that newspapers and editorials all over the Nation, north, 
south, east, and west get it?
  We wonder whether this is really an issue. We are asked: is this 
really an issue out there? I can tell you, just from the cases I have 
had in my own office, that this is an issue. I received a call this 
morning from Kathy Mills, a registered Republican who called my office 
from Tulsa, OK. She said her husband was literally ``killed by an HMO'' 
last July, and she has been trying to find someone to listen to her 
story. She has given up her efforts to contact her own State Senators 
because they have not responded to her numerous calls.
  On July 16 last year--1 year ago tomorrow--Mrs. Mills' husband, who 
had a history of severe congestive heart failure, was seen by an 
internist at their new HMO for severe chest pain. Without taking a 
thorough patient history and despite a positive EKG, the doctor sent 
Mr. Mills home. As Mrs. Mills was later told by doctors at the HMO, 
their policy is to refer patients to a cardiologist only after waiting 
10 days, unless the patient is ``having a heart attack on the table.'' 
Mr. Mills was released to go back to his job, working outside in 100-
degree weather.
  Mr. Mills died later that day of a massive heart attack.
  The HMO doctors have been forthcoming, and after extensive inquiry 
Mrs. Mills feels certain it is HMO policy that is at fault for her 
husband's death. Unfortunately, her attorney has informed her she does 
not have the right to sue the HMO.
  Mrs. Mills just this morning offered to fly to Washington with what 
little money she has left to tell her story to the Members of the 
Senate. Her conviction is that in the future injustices like the 
unnecessary death of her husband will be prevented, or at the least 
that when they occur the Americans victimized will have some means to 
redress the wrong.
  People ask whether this is still going on. This is yesterday. Here is 
a story about Jacob. Jacob is 4 years old and lives in a midwestern 
State. Jacob's mom has asked that we not use his last name or the name 
of the HMO because she is afraid of what the HMO will do.
  Jacob was diagnosed with a rare form of cancer. The course of 
treatment recommended by Jacob's doctor was called monoclonal antibody 
treatment, and it is only available at Memorial Sloan-Kettering 
Hospital in New York. Jacob could participate in a clinical trial at 
Memorial Sloan-Kettering that would involve complex surgery, 
transplant, radiation, and chemotherapy treatment.
  When Jacob's parents inquired into the clinical trial, their 
physician told them it was not experimental. Their physician told them 
that monoclonal antibody treatment is the standard of care for Jacob's 
type of cancer, and has been standard treatment in use since 1987. Even 
though this recommended course of action is the standard treatment, 
because Jacob's treatment could only be obtained through a clinical 
trial, his HMO denied him this needed therapy. After many months of 
fighting the HMO from both inside and outside the system, the company 
approved the first stage of Jacob's treatment.
  However, the story does not end there. Jacob's only hope for a cure 
is to complete the entire course of treatment which comes in four 
stages. Jacob's family continues to live in fear of their HMO because 
he has not completed the treatment yet and, in the words of his HMO, 
``This determination to provide coverage . . . may be terminated at any 
time, even if the condition or treatment remains unchanged.''
  Jacob and his family are currently receiving treatment, but they live 
in fear.
  I can give you the story that I received last Friday, a very powerful 
case involving a small boy and how he was denied needed surgery by one 
of the major HMOs in this country.
  This is happening every day, every hour. People all across the 
country understand it. Certainly the parents of these children 
understand it. Mrs. Mills understands what is happening. I doubt there 
is a Senator's office that hasn't received similar calls in the last 
few days.
  We have had a series of votes in the last 4 days, and each of these 
votes has been decided in the interest of the insurance industry. They 
have prevailed over patients' interests, but only by a narrow margin. 
That is only temporary.
  Mr. President, I yield myself 2 minutes on the bill. We may have lost 
the battle for the minds of Republican Senators, but we are winning the 
battle in the minds of the public.
  Once the debate is over and the votes are counted, the action will 
move to the House of Representatives. I believe we will do better in 
the House because of the groundwork we have laid in the Senate. We 
intend to keep the pressure on. There is still a good chance that a 
strong Patients' Bill of Rights can be enacted into law by this 
Congress this year. A switch of only two or three votes would have 
given us victory after victory on each of these specific issues.
  If there is an attempt to bury this issue in the Senate-House 
conference, the consent agreement makes clear that we can raise it 
again and again in the Senate this year. Every day, every week, every 
month we delay, more patients suffer.

  This is a Pyrrhic victory for the Republicans. If they keep taking 
marching orders from HMOs, they will keep losing public support. The 
American people will not be fooled by hollow Republican promises and 
cosmetic Republican alternatives. Patients deserve real protections, 
and not just some patients, but all patients.
  You should not have to gamble on your health. You should not have to 
play a game of Republican roulette to get the health care you need and 
deserve. This issue is not going away. Too many people have had too 
many bad experiences with abuses by HMOs and managed care health plans. 
They know the horror stories firsthand. Everyone knows these abuses are 
wrong, and, frankly, we have only just begun to fight.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. JEFFORDS. I yield to the Senator from New Mexico such time as he 
may consume.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. DOMENICI. I thank the chairman. Mr. President, I ask unanimous 
consent that I be permitted to speak for 30 seconds as in morning 
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DOMENICI. I thank the Chair.
  (The remarks of Mr. Domenici pertaining to the introduction of S. 
1379 are located in today's Record under ``Statements on Introduced 
Bills and Joint Resolutions.'')
  Mr. DOMENICI. Mr. President, I wish I had brought a prop with me. It 
would have been the front page of the New Mexico papers in 1997, 
because in 1997 across New Mexico there were front-page stories and 
headlines. Guess what they said: ``New Mexico Passes Patients' Bill of 
  Six months later, in July of 1998, there could have been a comparable 
headline across New Mexico, my State, the State in which the Democrats 
want to cover every single person who has health insurance. There could 
have been another headline saying: ``Patients' Bill of Rights Now 
Effective in New Mexico.''
  Maybe if I had brought that newspaper with me, some people from that 
side of the aisle would understand. They do not trust the States and 
even if the States already have protection through a bill of rights, 
they still want to take over nationally.
  Forty-two States have protections for some or all of the very same 
things that are in the Democratic bill that the editors across America, 
at least to the extent identified by the distinguished Senator from 
Massachusetts, seem to be supporting. They do not even say in our State 
we already have the protection, except they imply it in Texas by 
saying: How can it get to be so expensive when we already have it?
  I ask the question: If they already have it, why do we need to pass 
one? Our premise is that 42 States already

[[Page S8585]]

have many of the protections being suggested here. Some of them are 
moving in the direction of covering more than is being proposed here. 
Why do we insist that they would be better enforced in Washington, DC? 
I submit to anybody who understands the bureaucracy in Washington, do 
you really want every State's protection under a bill of rights to be 
dependent on HCFA? HCFA cannot handle in any diligent manner, with any 
reasonable conclusion, the work we have given them on Medicaid and 
Medicare and benefits and figuring out who can pay what. And now they 
want to give HCFA, from every State in the Union, huge numbers of the 
very people the other side of the aisle is crying for but who are 
already protected.
  I do not know if we will ever get anybody, outside of those who hear 
what I am saying, to write that and check it out. It does no good to 
say the Democrat plan covers 161 million Americans. The question is, 
Why do we cover 161 million Americans?
  I will introduce as part of my remarks the entire list of patient 
protections and mandates that are already in New Mexico's law. It reads 
like a litany of the issues we have been debating: Emergency room, OB/
GYN, and how you get protection under it.
  Everybody in New Mexico, on all the issues we have been discussing, 
is already covered, except whom? Except those the Republican bill 
covers as we introduced it and have debated it, for it goes out into 
the land and says there are some people the Texas Bill of Rights does 
not cover because they cannot; it is not legal for them to cover them. 
Some people in New Mexico are not covered. I wish I could tell you how 
many, but nobody knows how many. Some have insurance, and we cannot 
cover them with New Mexico's rights. So we are covering them here. So 
it is a bill of rights for those who are uncovered in America.

  I do not know how we will ever make the point, but let me just say, 
if you do not need coverage under a bill of rights because you already 
have it, then how does anyone get by with coming to the floor and 
saying: We're covering it anyway, and the other side of the aisle isn't 
covering it and they don't care? How do you get away with that?
  Mr. GRAMM. Say it 200 times.
  Mr. DOMENICI. I think you just keep saying it, like they have been 
saying it. It can be nothing else. In fact, there are many States with 
broader bill of rights' protections today than the Democrat bill, if it 
were passed. So why do they need it?
  Mrs. BOXER. Would the Senator yield for a question?
  Mr. DOMENICI. I want to finish. It is the first time I have had to 
speak. I looked over and you spoke at least 10 times, and you did 
  Mrs. BOXER. Not quite.
  Mr. DOMENICI. I would like to finish and then answer any questions 
when I finish.
  Mrs. BOXER. Good.
  Mr. DOMENICI. So I decided the best thing I could do is come here to 
the floor and see if I could express, in as simple language as I could, 
why the Congress needs to pass a Patients' Bill of Rights. I think I 
have tried my very best today to say we probably need one for those who 
are not covered or cannot be covered in our States because, by 
operation of law, the States do not cover them and cannot cover them.
  Actually, I wish we could say that 200 times. Maybe we ought to. 
Every time somebody stands up, we ought to say: We're covering those 
who are uncovered in America. Now let's go on to the rest of the 
debate, and then put up a sign and say: We're covering 48 million--put 
it up there--because they are the only ones who either do not have this 
protection or cannot have it. These people are not covered because the 
law says you cannot cover them, the States simply do not have the 
authority to provide these rights to these people, vis-a-vis, the 
health insurance they have.
  Having said that, I believe that answers most the questions that have 
arisen in this debate. But, then I understand there remains--I see this 
as only four issues--another very interesting issue. Because at this 
stage of the evolution in the United States of America of settling 
disputes one goes to court and asks a jury to do it even though plenty 
of criticism exists from laymen and professionals on how inefficient, 
how lacking in rationale the decisions are that are rendered by juries 
and trial lawyers bringing cases. The Democrats insist that we put that 
in here as the mechanism, the means, the way to settle disputes over 
scope of coverage, whether you have given somebody what they are 
entitled to under an insurance policy or not, or given them the 
specialists they are entitled to.
  Can you imagine, we are making a major issue here out of whether the 
lawyers and juries and courtrooms ought to decide that? Can you imagine 
that we could stand up before a group of people and say, just as the 
millennium arrives, we have concluded that with all the knowledge we 
have, everything we know about arbitration, mediation, ways to avoid 
going to juries and courtrooms, that this was the way to resolve this 
issue, and if we do not do it, as our opposition says, we are denying 
people insurance coverage?
  What we need to look at before the day is over--and what I hope those 
who wrote editorials will look at--is did the Republicans have in their 
bill a method and means of resolving these disputes which are 
legitimate disputes? Do we have a method of resolving them that is apt 
to do it expeditiously, professionally, and is it apt to be right?
  I believe, with what has been added here on the floor and will be in 
the bill tonight, when we finally vote on it, that we can stand up and 
say, there is a way.

  We think enough of this issue that we have made it nationwide, as I 
understand it. There will be no insurance policies that do not have 
this approach to settling the solutions across the land. That is pretty 
fair. Because it is sort of generically necessary for whatever set of 
rights you are giving to people.
  So there are two issues. Frankly, for me, they are both very simple. 
I have explained the one on scope of coverage, and I have just 
explained the one on why in the world would you get lawyers and juries 
involved in the disputes between patients and health care systems on 
coverage. If doctors perform their service improperly, we still have 
medical malpractice. That is not being changed here. It is when you sit 
down and have an argument about a specialist, can you get a decision 
  I have heard from our side, from some very good experts--and as a 
matter of fact, we on the Republican side are very fortunate. We have a 
great doctor helping us. Frankly, when he tells us about this, I am not 
even sure we need a second opinion. He seems to know the answers very 
well, and we seem to rely on him. We are very glad to have him. He 
suggested, along with Senator Ashcroft and others, that we ought to 
have a more straightforward, forthright, expeditious, and enforceable 
provision to handle the disputes between patients and their insurance 
coverage as to what they are entitled.
  Those are two of the issues. To tell you the truth, if those two 
issues could be resolved, we would be well on our way to having it 
  There are some other issues that are around on the scope of what 
exactly we ought to mandate? They are not as important as these two. 
Who should we be covering? Should you let lawyers instead of doctors, 
lawyers instead of independent professionals, determine the scope of 
coverage and the entitlement of people to coverage under insurance, and 
the delivery of health care under new insurance approaches in the 
United States?
  My last point, those couple of editorials my friend from 
Massachusetts read were written by editorialists who said we should not 
be concerned about cost; we should only be concerned about care. Let me 
tell you, one of the reasons we do not have enough coverage in the 
United States is because health care is expensive. While there are some 
who think the money just flows down from heaven and we pay for 
coverage, most people know somebody is paying for it--a business. In my 
State thousands of small businesses are paying for it.
  If you think it is not important to them as to whether they maintain 
coverage, how much coverage they are going to pay for it, and whether 
their insurance costs go up 6.1 percent or not, then I guarantee you, 
you have not been reading the letters I am getting in my office from 
small businesspeople saying: You cannot give us too many mandates and 
you cannot have lawyers suing us because of the kind of coverage we 

[[Page S8586]]

  You may be surprised, but businesses do not have to provide health 
care. That is the law in America. It is voluntary on the part of most 
businesses. I am very pleased that most businesses are moving as 
rapidly as they can to buy insurance.
  But I guarantee you, the other issue is, how much do we have to add 
to health care costs to get a reasonably good system for patient 
protection that is not now available in America? That is what we have 
been talking about, doing that where it is not available because of the 
operation of law.
  We could go into three or four more issues, but I choose to give my 
own summary and my own understanding of the real nature and 
philosophical difference between that side of the aisle, the Democrats, 
and this side of the aisle.
  Frankly, everyone around here knows I am not a Senator who votes one 
way all the time. I have been known to have a big argument with my 
friend from Texas, and he votes one way and I vote another. I will not 
chalk up the results, like that scoreboard: Domenici--6; Gramm--0. But 
in any event, we have had those disagreements.

  Mr. GRAMM. It was the other way around.
  Mr. DOMENICI. He will think it was the other way around.
  But in any event, the point of it is, it does not normally fall on 
this Senator to come to the floor and brag about our side of the aisle 
being right. But I can tell you, on this one I am very pleased with 
what has happened. I never have felt more comfortable than I have with 
this task force of Republicans who have handled this issue.
  They have been good. They have been sharp. They know the issues, and 
there has never been a shortage of Senators arguing on this bill. I 
have been very pleased that they are willing to answer questions far 
more than I am. They know much more than I do.
  I believe the issue is as I have painted and described it today. If 
it turns out that by beginning to cover a bunch of people who aren't 
covered, we only add eight-tenths of a percent to the cost, we don't 
inject into the system lawyers and courtrooms and jury trials to 
determine disputes between a provider and patient, and we provide for 
resolution of disputes in an expedited manner, as is going to be done 
in the bill we will introduce when we wrap this thing up tonight, I 
think we are on the right track.
  I don't believe the American people, contrary to what my good friend, 
Senator Kennedy, said, are going to be fooled by this. I don't think 
when it is over they are going to say: Boy, we would have had much 
better health care if the Democrats would have won their way. I think 
many are going to say it would have been a lot more expensive. I think 
many of them will say: We would be back in Washington every week trying 
to get the rules out of HCFA, which can't handle what it has now, much 
less handling all the States in terms of the Patients' Bill of Rights 
and the remedies available under it.
  I thank everybody who worked on our side as diligently as they have. 
I particularly say we are lucky in the Senate to have Dr. Bill Frist as 
a Senator. He is on my Budget Committee. I had trouble. I used to say 
his name ``First'' instead of Frist. It took me a while. He tried to 
correct me six or eight times, and I finally got it. I think we are 
very fortunate to have him here because when he tells us how this 
works, and he shares the opinion of how the medical people are looking 
at it and what the reality is, I end up thinking Tennessee did us a 
very special favor by sending him to us.
  I close by saying, I hope after all this work, the proposal that the 
Democrats offer will get defeated and that the final Republican bill, 
which will be explained again in depth by others, passes. Let's go to 
conference and see how it all turns out.
  Mrs. BOXER. Will the Senator yield for a question?
  Mr. DOMENICI. How much time do we have remaining?
  The PRESIDING OFFICER. Twenty minutes.
  Mr. DOMENICI. Do you have any time?
  Mr. REID. I yield 2 minutes on the bill to the Senator from 
  Mrs. BOXER. Mr. President, I say to my friend, who is my chairman, 
how much I respect him and also how much I disagree with him.
  I ask my friend a question. The Senator said--and I think he said it 
very clearly and straight from the heart--the Democrats are wrong, it 
is a philosophical difference, that we are wrong to say we need a 
national bill because the States are taking care of this problem.
  Senator Dorgan has a chart. I want to ask the Senator if he will take 
a look at it. Thirty-eight States have no protection for their people 
when it comes to access to specialists. It goes down the list. Many 
States have virtually no protection on most of the issues we are 
debating in this Patients' Bill of Rights. The question is, How does 
the Senator respond to that?
  He has said States are taking care of it when, just taking 
specialists, there are no protections for people getting specialists in 
38 States, and there is a whole other list that I won't go into. I 
think that is an important question. I would like to hear the Senator's 
response to it.
  Mr. DOMENICI. Sure.
  Mrs. BOXER. The fact of the matter is, he says unequivocally, States 
are taking care of it when people in those States are writing to us and 
telling us: We need a Patients' Bill of Rights at the national level. 
We have no protection.
  Mr. DOMENICI. Mr. President, I tried as best I could to say 48 States 
have patients' bills of rights. I did not say 42 States have every 
single item that the Democrats want in the Patients' Bill of Rights, 
but they do have the authority to put in as much as they want. So if 
the sovereign States, their Governors and legislatures, think your 
litany of things ought to be there and they are that important, they 
have the authority to pass it.
  Mrs. BOXER. Mr. President, if I may take back my time, I ran for the 
Senate on a lot of issues. My friend has been elected many more times 
than I have to the Senate. We stand up and we say what we believe.
  For example, I know the Senator is very strong on mental health 
protection. I have been with him on that. For me to think that I am 
going to sit here and say some legislature in some other State knows 
more than what my people tell me, I think we are here to do the 
people's business. When we look at this list, when we see how many 
things people don't have, I think it is ducking responsibility to say 
we should walk away from it.
  By the way, the Republican bill claims to give people specialists, so 
the Senator himself has argued in favor of it for 48 million people.
  Mr. REID addressed the Chair.
  Mr. DOMENICI. I already have answered.
  Mr. GRAMM. Will the Senator give me 10 minutes?
  Mr. REID addressed the Chair.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. We have 31 minutes; they have 12 minutes. The minority 
yields 5 minutes to the Senator from Illinois, Mr. Durbin.
  Mr. DURBIN. I thank the Senator from Nevada.
  Mr. President, for those who have followed the debate this week, 
there have been some very clear-cut issues decided on the floor of the 
Senate. Sadly, I must report that the Republican majority and the 
insurance industry have prevailed on every single effort by Democrats 
to provide protections to families across America when it comes to 
their health insurance.
  Take a look at the scoreboard. On the Democratic side, we offered 
protection to 113 million Americans who were left high and dry by the 
Republican side and the insurance industry. We lost.
  We offered an amendment saying that every woman in America could 
choose her OB/GYN as her primary care physician and could not be 
overruled by an insurance company. We lost.
  We offered an amendment saying that emergency room care could be at 
the hospital closest to your home instead of that dictated by the 
health insurance policy. We lost.
  We offered an amendment saying that doctors should make medical 
decisions and not the health insurance companies. We lost.
  We offered an appeal process that gave families a fighting chance 
when the health insurance company turned them down for coverage. We 

[[Page S8587]]

  We offered an amendment for access to specialists, when your doctor 
says that is in your best interest, in order to come out of a process 
healthy and well. We lost.
  We offered the latest treatments, clinical trials, prescriptions that 
doctors recommend to save the life of someone in the most perilous of 
circumstances. We lost.
  I have to give credit to the insurance lobby because, through their 
efforts on the floor this week, they have rejected every effort we have 
made to provide protection for America's families when it comes to 
health insurance. I used to think the gun and tobacco lobbies were the 
big ones on the floor of the Senate. My hat is off to the insurance 
lobby. They have really done a job. With the Republican majority, they 
have defeated us time and time again on 11 different amendments, 11 
different efforts to protect American families.
  There may be dancing tonight, when this is all over, in the 
boardrooms of the health insurance companies in America, but there 
won't be any dancing in the family rooms for those American families 
who realize that tomorrow they are just as vulnerable to a decision 
made by a health insurance company clerk as they were yesterday. There 
won't be any dancing in the emergency rooms across America, as the 
nurses and doctors there respond to emergencies, never knowing whether 
or not the insurance company will reimburse them for their heroic 
efforts to save lives. And there won't be any dancing in the doctors' 
offices, as they leave the room with the patient to go to a backroom 
and call an insurance company and beg them for the right to make the 
best medical decision for an individual.
  I know the Republican side has criticized us for bringing pictures of 
real people to the floor of the Senate. I know it scalds their 
conscience to see these pictures, pictures of kids such as Rob Cortes, 
a little 1-year-old, a little boy I met last Sunday. Every time I voted 
on an issue this week, I thought about this little boy and his family 
in the Chicago area. This little 1-year-old breathes with a ventilator, 
as my colleagues can see. He has spinal muscular atrophy. His mom and 
dad fight every day so he can live, and they fight the insurance 
company every day to make sure they have an opportunity and access to 
the miracle drugs they need to give this little boy a chance.
  The Republicans tell us this is unfair. Don't bring us pictures of 
real people. We want to talk about statistics. We want to talk about 
the 1993 Clinton health care bill. Give me a break.
  I say this: If doubletalk were electricity, the Senate floor would be 
a powerplant after the debate that we have had this week on health 
insurance. I think the American people know what is at stake. They 
realize they had a chance, with the Democratic Patients' Bill of 
Rights, to have some rights and some protections when it comes to their 
health insurance, but they have lost.
  There has been a decision made by the Republican side of the aisle 
and the insurance companies that they are going to create and protect a 
privileged class in America, the health insurance companies. They won't 
be answerable to the law, and they will not have to provide the kind of 
medical protection that every family counts on in America. Time and 
again, as we have offered these amendments, the Republican majority has 
defeated them. It is true that two or three of them have crossed the 
aisle from time to time to join the Democrats, but never enough to make 
a difference.
  Sadly, that is how this debate is going to end. But it isn't going to 
end today. This debate will continue because we are calling on American 
families across this Nation to join us, to let the Senators on the 
other side of the aisle know that there are more important things in 
this town than the health insurance industry. Let them realize that 
this is the only building in America where health insurance reform is a 
partisan issue, because in every house I have visited in Illinois, 
families have told me time and again, whether you are a Democrat, 
Republican, or independent, you are vulnerable to an accident or 
illness that can leave you at the mercy of a health insurance clerk who 
will overrule your doctor and make a decision that can make your life 
miserable. That is what this is all about.
  Vice President Gore came up here today with a last-minute plea to the 
Members of the Senate to pass a bipartisan bill to protect families. He 
told the story of a doctor who was working in the emergency room and a 
man came in and had a cardiac arrest before him. This doctor used a 
defibrillator and brought the man back to life. When the hospital 
turned in the charges, the HMO rejected him, saying it wasn't an 
emergency, it was only a cardiac arrest.
  Let me tell you, this issue is not cardiac arrest; it is alive and 
well, and we will continue to fight it.
  The PRESIDING OFFICER (Mr. Bennett). Who yields time?
  Mr. JEFFORDS. Mr. President, I yield the Senator from Texas 10 
  Mr. GRAMM. Mr. President, one of the frustrating things about this 
debate is that when facts are established, our dear colleagues on the 
other side of the aisle continue to use information that has no 
foundation in fact and which, in fact, is at variance with the facts. 
So what I would like to do is to go through and present the facts, not 
as I would like to make them up, or as our colleagues may have made 
them up, but the facts in terms of the findings of the Congressional 
Budget Office, the nonpartisan arm of Government which does estimates 
on the basis of which we run Government.
  First of all, the CBO estimate which I have here says that the 
ultimate effect of the Kennedy bill would be to increase premiums for 
employer-sponsored health insurance by an average of 6.1 percent. That 
is not my number, that is the number of the Congressional Budget 
Office. That converts into $72.7 billion of costs that will be borne by 
companies that pay insurance and employees that often match that 
  Senator Kennedy has made headlines by saying we are talking about a 
hamburger a month. The reality is that the estimate of the Kennedy bill 
by Congressional Budget Office is enough money to buy every franchise 
of McDonald's in America. It is estimated that this cost will mean that 
1.8 million Americans will lose their health insurance. That is 1.8 
million people who won't have access to health care at least paid for 
by insurance of any kind.
  Our colleagues on the Democrat side of the aisle don't seem very 
concerned about 1.8 million people losing their health insurance. But 
we are very concerned. We looked at public opinion strategies 
nationwide poll of small businesses which asked what they would do if 
the Democrat bill were adopted and you could sue not only the HMO, or 
the health care provider, but sue the company that bought the insurance 
policy. The responses indicated that 57 percent of small businesses in 
America say that they either would be very likely to drop health 
insurance coverage, that is 39 percent, or somewhat likely, 18 percent. 
That is 57 percent of the insurance for some 70 percent of the working 
people in America that would be jeopardized by this bill. Yet, over and 
over and over again, we hear this talk as if there are no costs 

  Now our colleagues go on and on as if repeating something would make 
it true, by saying that their bill covers 161 million people and our 
bill covers 48 million people. The way Federal law and State law is 
structured, the federal government has jurisdiction over 48 million 
people in terms of health insurance under a Federal law called ERISA. 
My State has passed a comprehensive health care Bill of Rights. Maybe 
Senator Boxer would not support their Bill of Rights, but Senator Boxer 
would not be elected in Texas. I might not support the Bill of Rights 
in California, but I probably would not be elected in California.
  The point is, who elected Senator Boxer to write health care policy 
for State insurance in Texas? Nobody in Texas elected her. Nor did they 
elect me for that purpose. If I wanted to write State insurance policy 
in Texas, I would have run for the Texas senate and not the U.S. 
  So we have this absurdity that is stated over and over again that 
they are covering more people than we are. We are covering the people 
in America who are under Federal jurisdiction. They are preempting 
State law in every State in the Union, and Senators

[[Page S8588]]

who have never been to some States in the Union are dictating to them 
about the jurisdiction of their legislature. Yet, somehow it is 
suggested that I don't care about people in Oklahoma. I care about 
people in Oklahoma so much that if the State has the power to write 
their own health care Bill of Rights--which they do in Oklahoma--I want 
them to write it. That is how much I care about them. But in that area 
where it is Federal jurisdiction, I want us to write it.
  In terms of continuity of care, if there has ever been any debate in 
history that could be referred to as somewhat contradictory of a 
previous position, it is this. I want to remind my colleagues who today 
aren't concerned about a 6.1-percent increase in the cost of health 
insurance, who aren't concerned about 1.8 million people losing their 
health insurance, who in 1994 they were so concerned about double-digit 
health inflation--an inflation rate we would match if their bill 
passed, they were so concerned that they wrote the Clinton health care 
bill. And they were so concerned about medical necessity that when they 
wrote it, here is what their medical necessity was:

       The comprehensive benefit package does not include an item 
     or service that the national health board may determine is 
     not medically necessary.

  Today they are jumping up and down about medical necessity. They want 
a doctor to choose. They want us to write in our bill that we are going 
to let the Federal Government define it. But when they wrote their 
health care bill in 1994, they said that a national board would decide.
  They talk about point-of-service option. But when they wrote their 
health care bill, if you didn't join their health care collective, you 
would be fined $5,000. If your doctor prescribed a health treatment 
that was not approved by the Clinton administration, your doctor would 
be fined $50,000. And if they provided a health service that wasn't 
prescribed and you paid for it, your doctor could go to jail for 15 
  Now, that is how much they cared about all these things when they 
were trying to put America under socialized medicine. They were trying 
to do it because people were losing health insurance, because costs 
were going up.
  Yet today they are trying to pass a bill that would drive costs up 
and that would deny people their health insurance.
  Having spent all of this time answering all of this misinformation, 
let me spend the rest of my time saying a few things that I feel 
strongly about.
  No. 1, I have never been prouder of the Republican majority than I am 
today. I have never seen greater collective political courage than I 
have seen today.
  It would be very easy with all of this demagoguery about insurance 
companies, HMOs, health, consumers, and charts showing scores of HMO's 
12, consumers 0.
  I remind you that our Democrat colleagues invented HMOs. Ted Kennedy 
in 1978 said:

       I authored the first program of support for HMOs that 
     passed the Senate. Clearly HMOs have done their job.

  What is Ted Kennedy saying today? He loved them so much that he 
wanted to put the whole Nation under one run by the government. But, 
today, he is trying to kill HMOs.
  We are not trying to kill HMOs. I am not ashamed of that.
  I want to give people a choice so that if they don't want to be in 
HMOs they can get out. We broaden their options. We give people the 
right to fire an HMO.
  Senator Kennedy gives people the right to sue one. We guarantee 
people the right to see a doctor. He guarantees the people the right to 
see a lawyer.
  I am proud, when it has been so easy to demagogue this issue, that we 
have stood up for the interests of this country.
  We have written a very good bill. It cleans up the things in HMOs 
that needed to be cleaned up. But it doesn't kill off the only 
mechanism we have to control costs.
  We provide tax deductibility for the self-employed. That will mean 
millions of people will get health insurance that do not have it today.
  We let people have medical savings accounts--a new, innovative way to 
let people choose their own doctor and control costs at the same time.
  I am proud of what we have done. It is easy to demagogue, but it is 
hard to lead. We have led, and America is going to benefit from our 
  Finally, let me say we have come forward with a bill that works--a 
bill that works for people, a bill that holds down costs, a bill that 
promotes equality.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. I yield 5 minutes to the Senator from North Dakota, Senator 
Byron Dorgan.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. DORGAN. Mr. President, I guess my favorite Will Rogers quote is 
the old one that we all know. He said, ``It ain't what he knows that 
bothers me. It is what he says he knows for sure that just ain't so.''
  I heard a lot of discussion today about facts and about whose side is 
right. In fact, we just heard the two stages of denial on the central 
argument of the Republicans against our real Patients' Bill of Rights.
  The first stage is that States provide all of this protection, so we 
shouldn't have to do it. And when informed the States don't do it, they 
say, well, that might be true, but the States could do all of it if 
they wanted to. That is the second stage of denial, of course.
  Let me talk again about some of the people involved in this debate, 
if I might. This is, after all, fundamentally about patient care. It is 
not a debate about theory.
  I want to talk about Ethan Bedrick once again. This young boy 
pictured here was born under very difficult circumstances. During his 
delivery, the umbilical cord wrapped around his neck and consequently, 
he was born with cerebral palsy and a condition called spastic 
quadriplegia. He can't get the rehabilitation services he needs to help 
him because his HMO says there is only a 50-percent chance of his being 
able to walk by age 5 and that chance is insignificant. The HMO called 
a 50-percent chance of being able to walk by age 5 a minimal benefit. 
His parents appealed and appealed. Guess who they appealed to--the same 
people who turned them down.

  We know that in 31 States there is no right to an independent, 
external appeal. The Republican plan says that Ethan Bedrick and 
citizens in 31 States are denied coverage. Denied. That is the fact. 
Dispute it if you can, but those are the facts and they are stubborn.
  Or what about Jimmy Adams. Jimmy Adams doesn't have hands or feet 
today because his folks had to pass three hospital emergency rooms 
before they got to the fourth hospital where the HMO would pay for his 
emergency care. On the hour-long trip to the further hospital, his 
heart stopped beating. They were able to revive him, but too much 
damage had already been done by the lack of circulation to his limbs. 
This young child lost his hands and feet due to gangrene.
  Our opponents say, young Jimmy Adams can stop at any emergency room 
under the Republican bill. Sorry; not true. The Republican bill doesn't 
cover over 100 million people, and there are 12 States that have no 
protections with respect to emergency room care.
  With respect to Jimmy Adams, or a Jimmy Adams of the future, the 
Republican plan says this: Denied.
  What about this young fellow born with a severe deformity? Dr. Greg 
Ganske, our Republican colleague over in the House, does reconstructive 
surgery. He surveyed his colleagues, and 50 percent of them had HMOs 
deny reconstructive surgery for young patients with birth defects such 
as this.
  Here is the picture Dr. Ganske used when he described the kind of 
circumstances these children live with.
  What about an appeal for this young fellow? What about the access to 
the specialist services needed? The Republican plan says ``denied'' to 
this young child--denied. Under the Republican plan--and in 38 States--
there is no provision for access to specialists for reconstructive 
  Those are the stubborn facts.
  Let me show you the bright morning of hope for a young child who was 
born with a cleft lip who has had access to the appropriate 
reconstructive surgery. This is the same child I just showed you.
  Here is the way this child looks with reconstructive surgery. What a 

[[Page S8589]]

of difference this makes in a young child's life.
  This is called patients' rights.
  Some say it doesn't matter; we don't need it. We say these rights are 
critical to the health of the people in our country. This is about 
children, men, women, families.
  Would anyone in here, if this were your son or daughter or your 
parent, really stand up and say let the States protect his or her. 
Would you really vote against these basic protections, such as access 
to specialists, if it were your child's health on the line? You know 
the answer to that. Of course, you wouldn't.
  We just heard a fill-in-the-blank speech from about three people. You 
could fill in the blank. Over and over, in debate after debate, year 
after year, the subject changes, but the mantra remains the same: Let 
the States do it.
  During the debate to create Medicare we heard the same thing: We 
don't need Medicare; let the States do it.
  On minimum wage--Let the States do it.
  On protections for residents of nursing homes--Let the States do it.
  On efforts to create a safer workplace or prevent child labor--Let 
the States do it.
  That speech has been given in this Chamber for 150 years, and it is 
so tired, rheumatoid, and calcified that I don't want to hear it 
  We have had to fight for every step, for progress on such issues as 
creation of the Medicare program, a safe workplace, and minimum wage. 
Tonight we are fighting for something called a Patients' Bill of 
Rights. All along the way, we see people digging in their heels saying 
for lots of reasons that they don't want to do it.
  We need to do it for these children. No longer shall we deny them the 
rights they deserve in our health care system.
  The PRESIDING OFFICER. Who yields time?
  Mr. REID. Mr. President, I yield 5 minutes to the Senator from North 
Carolina, John Edwards.
  The PRESIDING OFFICER. The Senator from North Carolina.
  Mr. EDWARDS. Thank you, Mr. President.
  Mr. President, actually for almost 20 years before I came to the 
Senate, I had an opportunity to see firsthand what insurance companies 
do to people because of the type of work I did.
  What I saw was they take people's money. They deny them coverage when 
they need it, and when they need them the worst, they are never there.
  What I have seen on the floor of the Senate for the last week is what 
insurance companies do in Washington.
  What they do is this: They make certain that the power in the health 
care industry in this country remains with them.
  They have done that in a remarkably effective way. It has been 
extraordinary to watch what has happened over the course of the last 
  It boils down to--at least, to me as a first-time observer of this--a 
very simple fact. On the floor of the Senate this week, insurance 
companies have won and the American family has lost. The children, 
parents, and members of American families have lost and the insurance 
companies have won. This is what has happened.
  No. 1, insurance companies cannot be held accountable. They 
absolutely cannot be held accountable. They have done everything they 
can do to make sure that occurs. The reason for that is very simple. I 
have listened to my colleagues on the other side argue with great 
emotion that we want to turn health care over to lawyers.
  Exactly the opposite is true. This is why. What happens, in every 
amendment, in every single bill--including the underlying bill offered 
by the other side--this language appears: ``when medically necessary 
and appropriate under the terms and conditions of the plan.'' That 
language is the killer language. It is the language the insurance 
companies need, that they desperately want, and that they have gotten. 
It is the language that is going to remove any power from any patient 
or any family or any doctor in America as a result of what is passed on 
the floor.
  The reason they are wrong about lawyers is because the plans control. 
Under what has passed during the course of this week, the plans always 
control. They control what benefit patients receive to begin with; they 
control what patients can appeal; they control what happens on appeal.
  I ask the American people: Who do you believe writes these plans for 
the big HMO companies of America? Who do you think writes these plans? 
Lawyers. Their teams of lawyers write these plans.
  When we leave the floor tonight, starting tomorrow, everything that 
is passed will be handed to the HMOs; the very first thing they will do 
is get in their cars and drive down to their big law firms and hand 
these over to the lawyers and the lawyers will go to work. What the 
lawyers are going to do is write health care plans that make absolutely 
certain the insurance companies have total control over what happens, 
they have control over the initial benefit, they have control over the 
appeals process, and that they cannot, under any circumstances, be held 
  Mr. REID. Will the Senator yield?
  Mr. EDWARDS. Yes.
  Mr. REID. It appears what the Senator has said as an experienced 
trial lawyer from the State of North Carolina, the lawyers will be 
under the control of the insurance companies?
  Mr. EDWARDS. That is absolutely true. These are lawyers hired by the 
insurance companies.
  Mr. REID. The talk of the lawyers controlling what is going to happen 
with the Patients' Bill of Rights is a flip-flop. The lawyers will 
control what goes on with health care in America as a result of what 
has happened here, is that right, because the patients have lost and 
the insurance companies have won?
  Mr. EDWARDS. Absolutely.
  What will happen is that the lawyers will write the plans, and under 
every single thing we have passed during the course of this week, the 
plan controls; the insurance company controls.
  If anyone thinks for a minute that the lawyers who are hired by these 
insurance companies are not going to write the plans in a way that 
protects the plan and the HMOs and never protects the patient, they are 
living in never-never land. That is exactly what will happen.

  As a result, in its simplest terms, the insurance company and their 
team of lawyers have won this battle. The patients have lost.
  One last thing. We have heard lots of talk about cost from the other 
side. That is a false argument. It is a false argument for a simple 
reason. No. 1, what will happen under our real Patients' Bill of Rights 
is that we get patients to emergency rooms, to specialists, to the 
doctors who they really need to see as quickly as possible. That has an 
extraordinarily important cost effect, which is they get treated more 
quickly, their condition and disease is diagnosed more quickly, and as 
a result the long-term costs associated with that are reduced.
  Our bill will reduce costs over the long haul. It will absolutely 
reduce costs when the long-term expenses and costs are considered.
  Second, when an HMO or health insurance company acts recklessly and 
irresponsibly and a child, for example, is severely injured and that 
child incurs millions and millions of health care costs over the course 
of his or her lifetime, the health insurance will not be held 
accountable. No way are they held accountable. Those costs--the 
millions and millions of dollars--don't go away.
  The question is, Who pays? The American people pay. The American 
taxpayers pay. They pay through Medicaid. That is the only way those 
costs will be paid. Instead of an HMO being responsible for paying, the 
American taxpayer pays. The people listening to this pay.
  Mr. REID. I yield 2 minutes to the Senator from California.
  Mrs. BOXER. Mr. President, we are in the final inning, so it is time 
to bring out the scoreboard.
  HMOs, 12; patients, zero. It is a shutout. On every amendment, 
patients have lost and the HMOs have won. Mr. President, 12-0 and 
  The Republican bill will pass. It is a bill supported by the 
insurance industry. It is a bill supported by the HMOs.
  This is what it leaves out: It leaves out OB/GYNs for women, the 
right to a specialist, the right to an emergency room, the right to a 
clinical trial for every fatal disease, the right for all Americans to 
be covered--70 percent of

[[Page S8590]]

Americans are not covered in the Republican bill. It leaves out the 
right to hold HMOs accountable if they kill you, if they maim you, if 
they hurt you or any member of your family.
  The Republican bill is a shutout. The American people are shut out 
from any protections. Patients are shut out. Decency and fairness are 
shut out. And the HMOs will continue to put their dollar signs ahead of 
our vital signs.
  We will not give up. The innings may be over on this particular 
battle, but we are going to be here. We will be here for several more 
years and we will fight this. As Senator Dorgan said, a lot of these 
fights took a long time. It took a long time to get Medicare. There 
were fights from the other side of the aisle that it was a horrible 
idea to give senior citizens coverage.
  I could go back in history. We will be on the right side of history 
because we are fighting for what is right for the patients of this 
country, for the people of this country. It has been a good debate. I 
am glad we have had it. I think it does show the difference between the 
parties. I think we are very open and honest about our differences. I 
am proud to stand on this side of the aisle on this Patients' Bill of 
  Mr. REID. Mr. President, I yield the final 4 minutes to the person 
who offered this amendment with Senator Kerrey, the junior Senator from 
the State of Maryland, Barbara Mikulski.
  Ms. MIKULSKI. Mr. President, it has been interesting to me that 
during the two hours I have been here, in the time allocated to this 
amendment, no one from the other side has debated the merits of the 
Kerrey-Mikulski amendment.
  We have heard about the health care plan, we heard about Mrs. 
Clinton's health plan, but no one challenged the fact that the American 
people should have continuity of care. Just because a business changes 
their insurance company, you should not have to change your doctor.
  Also, we heard a great deal about the States--let the States do it. I 
bring to the attention of my colleagues, only 22 States have a 
continuity-of-care provision; 28 States do not. So, 28 States are 
vulnerable to the lack of a continuity-of-care provision.
  Also, all 50 States have a Constitution. So why should we have one 
ourselves? Why should we have one? The reason we have a Federal 
Constitution is that we are one nation under a law that should protect 
all American people and we also have a Federal Constitution that we 
love and cherish because we have a Bill of Rights.
  Imagine if we were still waiting for the 14th amendment, if we were 
doing it one State at a time. Imagine if we women had gotten the right 
to vote, if we had done it one State at a time. Do you think the 
railroads would have let us have the direct vote by the people of the 
Senate? No; I think we would still be choo-choo-ing along under the old 
  Let's talk about the cost. I think that is a fallacy in the argument. 
This Congress is going to debate in the next week or two a tax bill 
that could plunge us into a deficit. Sure, we think we have a surplus, 
but it is a promissory note surplus; it is not a guaranteed surplus. So 
while we are going to talk about cost, just wait until we start talking 
about that tax bill.
  The other thing is, we did not hesitate to pass the national 
ballistic missile system. I will tell you something. My constituents in 
Maryland are more at risk for their lives and safety from insurance 
gatekeepers preventing them from having access to the medical care they 
need than they are of some missile striking us in Baltimore, Crisfield, 
Hagerstown, or all around the State, or this country.
  So let's not talk about cost. And let's not invent phony arguments. 
Let's go back to what we are debating, the Kerrey-Mikulski amendment 
that says let's provide continuity of care. It is very straightforward. 
It would allow for a transition that, when a doctor is no longer 
included as a provider under a plan, or employers change plans, it 
would provide 90-day transitional care for any patient undergoing an 
active course of treatment with a doctor.
  That means if you have diabetes, it means if you have high blood 
pressure, it means if you have glaucoma, that you can at least have a 
transition plan to have someone meet your needs.
  Then we make three exceptions. We make them for pregnancy, we make 
them for terminal illness, and we make them for someone who is 
  A patient who is dying should not have to change a doctor in the last 
days of his or her life. If you are pregnant, I think you ought to have 
the doctor through post-partum care that is directly related to 
delivery. That's what we are fighting for today, and I hope we pass 
this amendment. I yield the floor.
  Mr. JEFFORDS. I yield 3 minutes to the Senator from Alabama.
  Mr. SESSIONS. Mr. President, I just want to say something and get it 
off my chest. It is offensive to me, and almost demeaning to this 
Senate, for people who disagree with the work that has been done by 
people such as Dr. Bill Frist, and Senator Collins from Maine, and 
Senator Jeffords, who worked hard on this bill, to suggest that they 
are bought and paid for by insurance companies and HMOs.
  I haven't talked to an HMO, but I have talked to some people who are 
concerned about expanding costs of health care. It is Alabama 
businesses. We had the Business Council of Alabama in my office just a 
few days ago, a group of them. It is the biggest group in the State. 
The first thing they said was: Jeff, please don't vote for something 
that is going to skyrocket health care costs. We are afraid of that. We 
have already got an 8-percent inflation cost increase predicted for 
next year; 8 percent already. You vote on a bill, the Kennedy bill, 
with 6 percent more? Please don't do that. We can't afford to cover our 
employees. They are going to lose health care.
  And the numbers back that up. This is what we are about.
  It offends me to have it suggested that some insurance company is 
here--HMOs are not even here, that I have observed. They do not care 
what the rules are. You tell them what the coverage is, what the rules 
are, and they will write the policy and up the premium to pay for it. 
And working Americans are going to pay for it. That is what is really 
unfair to me.
  For Senators to suggest that there is a scorecard and only truth and 
justice and decency and fairness occur when her amendment is voted on? 
We have amendments. This whole bill mandates and controls and directs 
HMOs on behalf of patients. Everything that is in it, that is what it 
does. Some just want to go further, and whatever you do is never 
enough. There is always another amendment to go further.
  It is a sad day when we have a group of fine Americans who worked on 
this legislation for 2 years or more, to present a bill that is 
coherent, that improves and protects the rights of people who are 
insured to a degree that has never happened before, and have them 
accused of being a tool for some special interest group. It is just not 
so. The Members on the other side know it, and they ought not to be 
saying it. It is wrong for them to do so.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. JEFFORDS. Mr. President, I yield 3 minutes to the Senator from 
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. FRIST. Mr. President, I want to comment on the process. We have 
seen pictures of infants with various medical challenges that I need to 
clear up. It keeps coming back and back again. The example of cleft 
palate is being used over and over. I want to demonstrate, to help 
educate our colleagues, because obviously it is not coming through what 
is in the bill, what will be in the final bill tonight.
  No. 1, let's just say the baby is born with a cleft palate, which is 
a defect in the upper part of the mouth. The doctor recommends surgery, 
regardless of what is in the health plan. The HMO contract says 
``cosmetic'' surgery is not covered.
  So the medical claim is made. The doctor and the patient say: Yes, 
this thing is medically indicated. The plan has written down that 
cosmetic surgery is not indicated. So they say: We want to do something 
about it.
  Today they have to throw up their hands. There is nothing they can 
do. That is why we need a Patients' Bill of Rights. What happens? We 
have an internal review built into the plan. So if there is a 
disagreement, the doctor and

[[Page S8591]]

the patient disagree with the plan, there is a process, for the first 
time for most of these plans, for internal review. They may have other 
physicians who are affiliated with the plan making that decision. Let's 
just say they came up with an adverse decision. Basically, the second 
opinion inside the plan, the internal review, said: No; I am with the 
plan. We are still not going to cover it.
  Well, is it eligible, or is it not, for external review? Remember the 
external review plan. You have the managed care company; you have the 
entity that is government regulated; State, Federal, Department of 
Health and Human Services regulates this entity. This entity appoints 
an independent doctor, a medical specialist, if necessary, to do the 
review: Is it eligible or is it not?
  The key worlds are, ``Is there an element of medical judgment?'' 
There clearly is, because you have a doctor saying that cleft palate 
needs to be repaired. So automatically--and that is the trigger--it 
goes to an independent external review.
  We have heard a lot of people say it is not independent. It is pretty 
independent if you have a managed care company, you have an entity that 
is government regulated here that is unbiased--the words are actually 
in the plan--appointing an independent reviewer, who is a doctor. Or, 
if it happens to be a chiropractor of concern--it can be a 
chiropractor, I might add, who is independent, a specialist in the 
field, who makes the final decision.
  In the independent external review, the reviewer makes an independent 
medical determination made on a whole list of things that we have in 
there--not just what the plan considers, but best medical practice, 
generally accepted medical practice, the peer reviewed literature, the 
best practices out there, what his colleagues are doing--and then a 
decision is made and whatever decision is made, it is binding. It is 
binding on the plan.
  Let's just say it is binding on the plan, so let's have ``repaired'' 
here. Let's say the plan says, ``We are still not going to do it. I 
don't care what the reviewer says.'' You are going to see in the final 
bill that they have to do it. If they do not do it in a timely 
fashion--I want everybody to read the bill--they are going to be fined.
  Mr. President, I ask for an additional 2 minutes.
  The PRESIDING OFFICER. The Senator is recognized for an additional 2 
  Mr. FRIST. I thank the Chair.
  So the decision has been made by the independent reviewer, and it is 
binding on the plan that you do the repair, that it is medically 
necessary and appropriate. The plan has to do it. We are still worried. 
What about that plan, if it just doesn't want to do it? Basically, what 
we have are penalties that are built in the bill. They have to do it, 
they have to do it in a timely fashion, and if they do not they are 
fined $10,000. Not only that, if they are fined $10,000 and still don't 
do it, immediately you can go to somebody else and have it repaired. 
And who is going to pay for that? The initial plan.
  To me, that is the way the process works. You have an independent 
reviewer. You guarantee the patient gets that repair in a timely 
fashion, if in that independent review it is thought to be medically 
necessary and appropriate, regardless of what the HMO contract says.
  Internal appeals, external appeals, independent reviewer with 
penalties built in if that is not carried out in a timely fashion, and 
the guarantee that the care can get done because you can go, even have 
a third party do it and charge it back to the initial plan--unbiased, 
independent, internal, external appeals, and that is the accountability 
provisions that are built into this bill. I am very proud of the fact 
it is there. It will change the way medicine is practiced by managed 
  I yield the floor.
  Mr. DORGAN. Will the Senator yield?
  Mr. NICKLES. Mr. President, how much time do we have remaining?
  The PRESIDING OFFICER. The Senator has 2 minutes 35 seconds.
  Mr. KENNEDY. Just for a question, may I yield a minute to Senator 
  Mr. NICKLES. Yes. Sure.
  Mr. DORGAN. I just wanted to observe for one moment, I listened to 
the presentation. That presentation works with respect to the people 
who are covered. But there are 120 million who are not covered. If one 
says those who are not covered are covered by a State, we must point 
out that 38 States do not have provisions that guarantee access to 
specialists. I want to make the point.
  Mr. FRIST. Say again, covered by that?
  Mr. DORGAN. There are 120 million people, roughly, not covered. And 
we have 38 States--if the proposition is ``but if we don't cover them 
in our bill, the States do,'' there are 38 States that do not cover 
them either.
  Many of these children will simply not have access to a specialist. 
Those are the facts.
  Mr. FRIST. May I respond on his time? This is a critical point 
because we have been debating scope. It is very important for the 
American people to understand and for our colleagues to understand that 
scope, and when it comes to accountability, the internal and external 
appeals, the independent reviewer does not just apply the 48 million 
people not covered by the States. It is covered by people who are both 
ERISA covered, federally regulated, as well as the States, and it is 
important my colleagues understand that because that is a huge part of 
our bill. In many ways, it is the heart of our bill for the appeals 
process, the accountability, what I just went through, both ERISA, 
federally regulated plans, and State plans. That is why it is so hard, 
in the last hours of this debate when it is so misunderstood what is in 
this plan. That is why I tried to go through it very clearly. It covers 
all 124 million people.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. NICKLES. Mr. President, how much times remains?
  The PRESIDING OFFICER. Two minutes 21 seconds.
  Mr. NICKLES. Mr. President, I appreciate the clarification made by 
our colleague from Tennessee. My colleague from Tennessee said we have 
this appeal process which applies to all plans, State-regulated plans 
as well as federally regulated plans, and that is very important. For 
people to say this would not have an appeal process, it would not apply 
to them, they are absolutely wrong. Any employer plan in the country 
would, from the internal and external appeal under the bill which 
hopefully we will be passing shortly.
  For the information of our colleagues, we are going to be voting in 
the next minute or two on the pending amendment, and then we will take 
final action on the substitute that will be offered by Senator Lott and 
myself and others. We expect to be voting on that, just for the 
information of our colleagues, by 8:15, hopefully no later than 8:30. 
We are going to be wrapping this up.
  I have one final comment. I urge my colleagues to vote no on the 
pending amendment. The pending amendment deals with continuity of care, 
all of which we support, but it tells the States: We don't care what 
you are doing. It is another one of these examples of we know better, 
we can define continuity of care better from Washington, DC, than the 
States. That is a serious mistake.
  In addition to overruling State laws, it also takes away an existing 
right under ERISA. It eliminates injunctive relief which would apply to 
everybody in the plan. It eliminates class action and injunctive relief 
on page 8 in the amendment. I do not know why they put it in. It is 
wrong. It is in the amendment. A person can go to court and say: I am 
entitled to the benefit under the plan, and the judge can agree, but 
the court can only agree for that one individual. It cannot agree for 
all the participants in that plan. That is a violation of current law 
which takes away rights in existing law. It is a serious mistake and 
should not be allowed. I urge my colleagues to vote no on the 
underlying amendment.
  I yield back the remainder of our time. I ask for the yeas and nays 
on the amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.

[[Page S8592]]

  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
1253. The yeas and nays have been ordered. The clerk will call the 
  The legislative assistant called the roll.
  The PRESIDING OFFICER (Mr. Sessions). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 48, nays 52, as follows:

                      [Rollcall Vote No. 209 Leg.]




     Smith (NH)
     Smith (OR)
  The amendment (No. 1253) was rejected.
  Mr. LOTT. Mr. President, 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. LOTT addressed the Chair.
  The PRESIDING OFFICER. The majority leader is recognized.

            Unanimous-Consent Agreement--Amendment No. 1251

  Mr. LOTT. Mr. President, I ask unanimous consent to vitiate the yeas 
and nays on the pending amendment No. 1251, as amended.
  The PRESIDING OFFICER. Is there objection?
  Mr. GRAHAM. Reserving the right to object, could I add a further 
statement to that unanimous consent request?
  Mr. LOTT. Fine.
  Mr. GRAHAM. I ask unanimous consent to be able to offer an amendment 
at this time.
  Mr. LOTT. We have to object to that.
  The PRESIDING OFFICER. Objection is heard.
  The amendment, as amended, was agreed to.
  The amendment (No. 1251), as amended, was agreed to.

                Amendment No. 1254 To Amendment No. 1232

(Purpose: Providing legislation to improve the quality of health care, 
 protect the doctor-patient relationship, augment patient protections, 
 hold health care plans accountable, and expand access to health care 
                   insurance throughout the country)

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

       The Senator from Mississippi [Mr. Lott], for himself and 
     Mr. Nickles, proposes an amendment numbered 1254 to amendment 
     No. 1232.

  Mr. LOTT. Mr. President, I ask unanimous consent that reading of the 
amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The text of the amendment is printed in today's Record under 
``Amendments Submitted.'')

                      Unanimous-Consent Agreement

  Mr. LOTT. Mr. President, I have consulted with the Democratic leader, 
Senator Daschle, on this next unanimous consent request. I know Members 
will be interested in this.
  I ask unanimous consent that the vote occur on passage of S. 1344, as 
amended, at 8:20 this evening, with the Lott substitute and amendment 
No. 1232 having been agreed to and notwithstanding paragraph 4 of rule 
XII and the consent agreement of June 29, 1999.
  I further ask that the time between now and 8:20 be equally divided 
between the two leaders, or their designees.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LOTT. Mr. President, that having been agreed to, the final vote 
will occur at 8:20, with the time equally divided between now and then. 
So Senators who want to participate should be prepared to be here to be 
involved in the debate. Those who want to get supper at this point, now 
is the time to do it.
  Having said that, I want to go ahead and make my statement on this 
substitute package at this time. Then I will yield to the assistant 
majority leader, Senator Nickles, who will divide the balance of our 
time between Members on our side of the aisle who wish to speak on the 
final package.
  I think we have had a really good debate on this issue. We have been 
on it 4 full days now, into the night on Monday, Tuesday, Wednesday, 
and now Thursday. There have been a number of amendments offered. Some 
of them have passed and some have failed. But I think it has been 
handled quite well on both sides of the aisle. I believe we are now 
ready to finish the debate and get to final action on this legislation.
  I thank the floor managers for the good work they have done. Senator 
Nickles and Senator Jeffords on our side have been ably assisted by a 
number of our colleagues who have spent long hours on the floor, 
including Senators Frist, Collins, and a number of others. Senator Reid 
has done an excellent job as the whip on the Democratic side of the 
aisle, working with Senator Nickles on behalf of the leaders to make 
sure time has been handled properly, and working out the charts on what 
amendments would be offered when, which has proven not to be an easy 
task, but one they have done a great job on.
  Of course, I have enjoyed the exchanges that involved Senator Kennedy 
and sometimes Senator Gramm. It has been interesting, and I guess we 
can say elucidating in some respects. I also thank the task force on 
our side that has worked for a year and a half on this issue to make 
sure we were ready to go with an alternative, or to go with a solution 
to the problems we found in this area. They have done excellent work. 
Again, this task force was chaired by Senator Nickles. Other members 
were Senators Roth, Gramm, Collins, Frist, Gregg, Santorum, Sessions, 
Enzi, and Hagel.
  There has been a lot of great work by those members of the task force 
and members of the Health Committee who spent a lot of time and 
participated in the debate that has gone forward. I have really learned 
to appreciate the statement I heard on the floor earlier, that with Dr. 
Frist, you really don't need a second opinion. He has done a great job. 
Sometimes it has been hard to understand for those of us who have not 
been in the medical profession. I appreciate that.
  I think it is time we moved forward. We have done good work. Let's 
report out this legislation and go to conference and let's get a 
  There are certain things patients do need in America. Consumers do 
need some guarantees. I could go through a list of areas where there 
are problems, and I am going to go over the solutions we have here. I 
think the worst thing we can do now is to not wrap this up with a 
concluding favorable vote.
  Now, there are some who will say the President will veto this bill. 
When we passed the missile defense bill, the word was: I will veto it. 
But we worked it out and he signed it. It was the same thing on 
education flexibility. The word was, you have language in here on the 
Individuals With Disabilities Education Act and we thought we should 
meet our commitment there before we spent money on a lot of other 
programs. In the end, we worked out the disagreements and the President 
signed education flexibility.
  Today, for the first time in history, enrolling, signing of a bill 
was done by Senator Thurmond and by the Speaker, and it was sent by 
Internet to the White House--the Y2K liability bill. It came out of 
committee on a partisan vote, but some Democrats worked with all of the 
Republicans and we got a bill through the Senate. It took us three 
tries. We were told the President would

[[Page S8593]]

veto this bill, but he is going to sign the bill.
  The point is, to the President and to those of you who haven't 
supported the Republican position on this Patients' Bill of Rights 
Plus, work with us. If you want to get something done, let's make it 
happen. If you want an issue, you have got enough votes, you will have 
issues; so will we. And then what? Is America going to be better off? 
No. Let's get results. We have done that in the past on other issues 
related to health. So I challenge our Democratic friends to join us in 
this effort.
  This is the main event. We have gone through a number of votes and we 
have had our debate on these amendments. But now we are dealing with a 
comprehensive package that the task force has developed on the 
Republican side of the aisle, and it will strengthen the rights of 
patients and improve the way HMOs work, without wrecking the American 
health care system.
  The American people don't want the Federal Government to take over 
health care. They don't want that. They don't want bureaucrats making 
the decisions, and they don't want it being determined by a bunch of 
lawsuits. But they do want some action to clarify and solve some of the 
problems we have.
  Make no mistake about it, the version of this bill that we have 
offered is far superior to the Democratic bill, which I believe 
contains a lot of bad policy. It is dangerous in many respects: 
dangerous because, under the guise of humanitarian concerns, it would 
drive into the ranks of the uninsured some 1.8 million Americans; 
dangerous because, under its compassionate rhetoric, it would threaten 
the ability of most small businesses to provide health insurance to 
their employees; dangerous because it would place the scalpels of 
litigation into the hands of the trial lawyers and virtually invite 
them to carve up the Nation's health care system.
  I don't believe the American people want that. The system is not 
perfect. HMOs are not perfect, although the quality of their care, as 
every other consumer product, can vary tremendously from one group to 
another, from one region to another. In my own State of Mississippi, we 
only have about 5 percent of our health care that is provided by 
managed care organizations--5 percent.
  So we have a very different view and set of concerns than do some of 
the other States where there is a lot more activity in this area.
  If there is one thing we have learned from the downfall of the 
Clinton health package in 1994, it is this: The American people don't 
want the Government to control health care. They do want solutions, 
though, to some of the real problems that exist, such as portability, 
which we did deal with. They want us to recognize the problems where 
they really exist, but they don't want political grandstanding in 
Washington to imperil the highest quality health care in the world.
  I heard it said yesterday on the floor, ``Health care in America is 
in real trouble.'' There are concerns about the evolution that is 
  But health care in America is still the best that the minds of men 
have conceived.
  My mother is alive today because of medical procedures. She is on her 
third pacemaker. She is doing fine. If her knees would hold up, she 
would still be out looking for a date.
  And the pharmaceuticals and the medicines they make are miracle 
  We should not kill the goose that laid the golden egg.
  Can we improve it? Can we work with all those involved in the system 
to make it better. We can do that. That is what we are doing today.
  I hate to think where we would be if the Congress, 20 or 30 years 
ago, had attempted to micromanage health care the way this Democratic 
legislation attempts to do now.
  I wonder if we would, today, have the non-invasive surgery, the 
miracle drugs, the sophisticated diagnostics that we all take for 
  If the Government moved in and said we are going to start dictating 
this and say what you can do, what you can't do, and when you can do 
it, we would have a loss of that entrepreneurial, dramatic innovation 
and spirit that we have had in health care in America today.
  The Congress should not imperil the continuing transformation of 
American medicine. Will it be different in 10 years? You bet it will. 
So will life in America. It is happening so fast that it is 
  It is not our job to control or dictate that transformation.
  Our job is to find ways for more Americans to have broader access to 
those innovations in health care.
  That is precisely the point of our Republican Patients' Bill of 
Rights Plus. We want to give more clout to health care consumers while, 
equally important, making it easier for families to get insurance. They 
will have a choice. They decide for themselves how they are going to 
get this care.
  All the consumer rights in the world don't matter an aspirin if you 
aren't able to become a consumer. That's why our Republican bill 
creates new opportunities for uninsured Americans to buy into the 
health care system.
  For starters, our bill makes all Americans eligible for medical 
savings accounts, not just the 50,000 currently allowed in a pilot 
  Give people that option to get into a medical savings account and to 
make the choice as to how they will use it. And give them the reward. 
If they don't have to spend it, they get to keep it. What a great 
American idea.
  We offer full deductibility for health care costs. That alone will 
make insurance more affordable for 16 million Americans.
  That is the way to go. We should make it deductible--not just for the 
self-employed, although we ought to do that, but for all of them. That 
would solve the problem of a lot of these small business men and women 
who can't afford to provide the coverage for their employees. Let them 
deduct the cost when they choose what they want.
  We provide full deductibility for self-employed persons, so these 3.3 
million hard-working people, and their families will have the same tax 
break that big business has. At least 132,000 households will be able 
to afford health coverage with this provision for the first time.
  At every point, our approach is to expand access to health care. That 
is our greatest contrast with the other package that has been offered 
by Senator Kennedy and Senator Daschle.
  It is worth repeating.
  If we went with their proposal, it would result in the loss of 
insurance for an estimated 2 million people.
  That is far too heavy a price to pay for some of the things we have 
argued about this week.
  This bill, the substitute amendment I am offering, is the main event 
of the debate of health care this week.
  For the 48 million Americans whose health care plans are not 
protected by existing State regulations--that is a critical point--it 
will provide these things.
  I want to emphasize that. The bill we are about to vote on will 
provide these things:
  Guaranteed access to emergency room care;
  Direct access to OB/GYN without prior authorization;
  Direct access to pediatrician without prior authorization;
  Better continuity of care if your doctor leaves a health plan;
  Guaranteed access to specialists;
  Improved access to medications;
  Protection of decisionmaking by doctors and patients;
  And, very importantly, our bill provides a way to get a review.
  Dr. Frist talked a lot about that. If the doctor makes a 
recommendation, and he and the patient disagrees with what the managed 
care organization says, they will have a chance to have a review 
internally, and then one externally with expedited procedures. And, at 
that point, there is still the opportunity for lawsuits. If they don't 
comply with the result, there will be penalties for noncompliance.
  Again, instead of getting a lawsuit--which may be nice when it is 
finally concluded for your heirs--you will get action. You will get a 
decision through an appeals process.
  That is the way to go.
  I am not critical of lawsuits because I have a problem with lawyers. 
I am one. I was on both sides of this issue for plaintiffs and 
defendants when I practiced law. I was a public defender in my home 
county. I understand there is a necessity and a time for lawsuits. But

[[Page S8594]]

I don't think it should be the first resort. It should be the last 
resort. See if you can work it out. See if you can design an appeals 
process that will get you to a conclusion and that will get results, 
rather than a lawsuit that may be great for the deceased person's 
  We believe patients should have a timely and cost-free appeals 
procedure to contest any denial of coverage. We believe patients should 
not suffer discrimination based on genetic testing. Our bill forbids 
  We believe government should facilitate breakthroughs in medicine and 
help providers gain access to them. Our bill does that, too.
  What we do not do is put American health care in the hands and in the 
pockets of the trial lawyers.
  Senator Jeffords has said it best: ``You can't sue your way to better 
health care.''
  In that regard, the Democratic bill that has been before us this week 
reminds me of the old days of medicine. Well, we will bleed the 
patients. And, believe me, I think that is what would happen if we went 
with what they have proposed. It would be bled with Federal-level 
bureaucrats. They would be bled in the courts.

  That is not the answer. I think that is a bad idea. There is a better 
way--a way that protects the rights of patients without imperiling the 
Nation's health care system; a way that opens the door to medical care; 
that gets more people covered by the insurance of their choice; a way 
that educates consumers so that they, rather than the government 
bureaucrats, can make their own informed choices.
  That is the sum and substance of our Patients' Bill of Rights Plus. 
It is ``plus,'' because it is a bill of rights, but also it provides 
some tax opportunities through the medical savings accounts and the 
  I thank many Senators who have worked on this issue on both sides of 
the aisle.
  I think we all know a little more about this subject than we did, and 
maybe more than we ever wanted to know.
  I have every expectation that it will win the Senate's approval and 
find favor in the House of Representatives.
  I am optimistic, as I always am, that we can get a result. If we make 
up our minds to do that, we will.
  This bill addresses the real problems many Americans face with the 
delivery of health care. It expands access to health insurance and 
makes it more affordable. It bans genetic discrimination in health 
care, expands research, and educates the consumers.
  In short, it is the right thing to do, and this is the right time to 
do it.
  I yield the floor, Mr. President.
  The PRESIDING OFFICER. The Democratic leader.
  Mr. DASCHLE. Mr. President, I yield 8 minutes to the distinguished 
Senator from Florida.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. GRAHAM. Mr. President, I yield 2 minutes to the Senator from 
Rhode Island.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. CHAFEE. Mr. President, I am a little bit confused over just what 
we accomplished in the past week.
  As I understand it--I think it is pretty accurate--the Republican 
bill will pass. However, the President has indicated that he is going 
to veto this bill. And there is no question that the veto will be 
sustained. Then where are we? What have we accomplished in a week?
  It seems to me that we have let the American people down in a 
situation such as has been outlined. People can say the President 
shouldn't veto. He is indicating he is going to do that. That is his 
privilege, obviously. We have been through that before.
  So, therefore, it seems to me that we have to ask ourselves: Could we 
have done a better job? It seems to me that we could have.
  I greatly regret we are not able to present the legislation which a 
bipartisan group of us had the privilege of working on. We believe that 
legislation would have accomplished something that we were not able to 
accomplish, as I previously outlined.
  I believe we ought to cover all Americans; that is, all privately 
insured Americans--164 million. The legislation we will pass will not 
do that.
  I believe we ought to have an effective and timely external review 
process to resolve coverage disputes. I am not sure the legislation we 
have before us--and that we will shortly pass and having examined it--
accomplishes that.
  I think we ought to be able to give patients the right to sue in 
Federal court for economic damages--only in the Federal court, and not 
in the State courts. I certainly have supported legislation to prevent 
the suits in the State courts.
  We have dropped from our bill the controversial provisions codifying 
the Federal law--the professional standard of medical necessity. 
Instead, we added language to our external review provisions to ensure 
that external reviewers have a meaningful standard of review.
  It is with some regret that I announce that I recognize we are not 
going to have a chance to present our legislation, and I think it would 
have been good. I think we would have avoided the problems we currently 
have before us and that our Nation and our citizens would be better 
  I thank the Chair.
  Mrs. MURRAY. Mr. President, as we prepare for final passage of the 
Republican HMO legislation, I come to the Senate floor to express my 
disappointment and my frustration with this end product. This bill is a 
failure and ultimately we will all suffer the consequences of the 
majority's reluctance to protect patients.
  I had high hopes at the beginning of the week that we could come 
together on some of the key areas of agreement and produce a good 
bipartisan bill to protect patients. I had hoped for a bill to put the 
health care decisions back into the hands of patients and consumers.
  Our health care system is in a state of flux. It has moved from a 
system that served people only when they got sick and encouraged 
overutilization. Now we have a system where economic barriers are 
erected to prevent patients from accessing care. We have gone from a 
system of waste and over-utilization to a system where patients cannot 
get the care for which they paid. Decisionmaking--life and death 
decisionmaking--is now too often solely in the hands of insurance 
executives focused on profits and quarterly reports. Who is looking out 
for the patients?
  We need to restore a balance with a system where insurance protects 
you when you become ill, but also helps prevent you from becoming sick 
in the first place. We need a system where the ultimate decision rests 
in the hands of patients based on the medical advice of their 
physicians. We need a system where people are fighting illness, not 
fighting the insurance company. We need a system where doctors are not 
spending 45 minutes on the phone with an insurance company so a sick 
child can be admitted to a hospital. We need a system where parents are 
free to stop at the first, closest emergency room and not drive to the 
one their insurer commands if their child has been hit by a car.
  I know such a system does and can exit. One of my greatest concerns 
is what the failure of Patients' Bill of Rights means to managed, 
coordinated care. Let me tell my colleagues, I support managed care. I 
support a coordinated care approach that is focused on prevention and 
early detection of disease.
  HMOs and managed care were born in my state of Washington. The 
original HMO law, signed by a Republican President in the early 1970's 
was enacted because of the new, revolutionary form of health insurance 
still in its infancy in Washington state. I want to be clear, health 
maintenance organizations are not the enemy. One of my colleagues 
yesterday made a statement that the Democrats saw HMOs as the bad guys. 
He tried to make a point that some how supporting the Health Security 
Act in 1994 and the Patients' Bill of Rights was contradictory. He was 
wrong. Our intent is to ensure patients the right to receive the care 
they have paid for, not to eliminate coordinated care.

  The experience in Washington state has taught me that we can have a 
system that reduces overutilization and unnecessary care while actually 
improving health care benefits. I know that good managed care structure 
has increased our immunization rates. I know that it has contributed to 
the fact that almost 70 percent of women in Washington state over the 
age of 55

[[Page S8595]]

receive mammagrams. I know that a good managed care structure has 
increased our average life expectancy and reduced our infant mortality. 
It has reduced the number of people who smoke and decreased the 
incidence of heart disease. We have a healthier population in 
Washington state, in part because we have the benefits of a coordinated 
care delivery system that focuses on prevention and reduces wasteful, 
unnecessary health care services.
  Unfortunately, things are changing in Washington. Due to mergers and 
acquisitions we now have health care plans being run by companies in 
California and other states. We now have for-profit insurance companies 
using HMOs and more importantly, we have premiums from HMO participants 
going to enhance short term profits. Our once envied system has 
deteriorated. I am hearing more and more from patients and physicians 
about the obstacles they must over-come to access health care. They 
must push hard to get wise health care decisions, not just big economic 
  I honestly believe that if we fail to restore some kind of balance, 
managed care will become a thing of the past. People will demand 
changes and will dismantle managed care. We will then be back to a 
system where only the very wealthy have regular and consistent access 
to quality health care and where you only see your doctor when you are 
ill, not to prevent illness.
  I had hoped that a uniformed standard set of protections for patients 
would restore some trust to managed care. That is the only way we can 
ensure that the ``outrage of the day'' does not become the guiding 
force in state legislatures. If my colleagues think that by killing our 
balanced and fair Patients' Bill of Rights it will end this debate, 
think again. You can be sure that in the next session of the 
legislature in each state there will be new patient protection bills 
ranging from access to expanded, mandated benefits. Patients will 
demand this.
  Ultimately, these single ``outrage of the day'' bills will be the 
nail in the coffin for managed, coordinated care. We will see the end 
of a health care delivery system that encourages prevention and keeps 
people healthier, longer. We will see a return to a system where access 
is only provided to the ill.
  Not only does this jeopardize health insurance, it jeopardizes 
biomedical research and development. Why invest in research that 
prevents illness or prevents hospital stays or detects cancer sooner, 
when no one will have access to it? Why double NIH research dollars, to 
prevent illness and to find cures for deadly diseases like cancer and 
MS, if patients are not encouraged to seek care to prevent illness or 
to seek regular, prevention and early detection care? Doesn't it seem 
to be a contradiction to encourage biomedical research when we do not 
have a health care delivery system that invests in wellness?

  Our Patients' Bill of Rights will not result in pushing people off of 
insurance. Our bill is a reasonable, cost effective proposal that does 
enhance managed care, not diminish it. It rewards those insurance 
companies that do offer a good package and a good product. They will no 
longer have to compete with companies that do not look at their 
beneficiaries as people, but rather premiums. There are good insurance 
companies out there. I know this to be true as there are several in 
Washington state. While I have heard of some problems in the state, I 
believe it is a combination of consumer misinformation and distrust. 
But, unfortunately these good companies have to compete in a very price 
sensitive market with companies that have policies in place to limit 
and deny access to quality care.
  I am also disappointed that most of my Republican colleagues refused 
to engage in an open and honest debate. They offered amendments sold as 
access to emergency room coverage or improvements in women's health or 
access to clinical trials, when in fact their underlying bill is 
nothing more than a simple statement only saying we support patients, 
but not supporting and enforcing access to care. My Republican 
colleagues say they want these things, and as participants in the 
Federal Employees Health Benefit Plan we have these benefits and 
protections, but they do not provide them to all insured Americans 
because the insurance lobby has told them to say no.
  This is a short sighted strategy as parents with sick children, 
cancer survivors, patients with MS or Parkinsons, and women denied 
access to ob/gyn care will ultimately be heard. Wait until they 
discover that for $2 more a month they cold have gone to the ER or they 
could have participated in a new life saving clinical trial at the Fred 
Hutchinson Cancer Research Center. They could have gone to see their 
ob/gyn when they first found the lump on their breast or their child 
could have seen a pediatric oncologist following a diagnosis of cancer. 
What do my colleagues think will happen when families realize that for 
the price of a Happy Meal each month they could have saved their child? 
There will be outrage and it will be heard all the way to Washington, 
  I hope that this issue is not dead. I hope some how this is not the 
end of the debate and that like so many other issues we will be able to 
put aside partisan differences and work towards real patient 
  Mr. LEAHY. Mr. President, we are coming to the close of a vital 
debate, and I do not use that word casually. The issues we are voting 
on in some cases have life and death consequences for the people we 
were elected to represent.
  The individual rights spelled out in our Patients' Bill of Rights are 
clear, and they are specific. They are strong, and they would work. 
They have been painstakingly drafted and redrafted and then further 
refined for more than a year.
  They have the support of hundreds of medical and consumer 
organizations whose millions of members work directly in this field. 
They would achieve for patients the very rights that our constituents 
have repeatedly signaled that they want and need and deserve in this 
age of managed health care.
  We have offered the Patients' Bill of Rights, point by point, reform 
by reform. In response, senators on the Republican side of the aisle 
have cobbled together weak or illusory copies of these reforms, offered 
them in place of the real thing, and hoped that nobody outside this 
Chamber would notice the differences.
  We have seen this happen with access to emergency case, with a 
woman's access to an OB/GYN and with a patient's access to specialists.
  This flurry of amendments, mixing genuine rights for patients and the 
phantom versions from the other side, has obscurred some of these 
issues in a cloud of political dust. Tonight, with the final votes of 
this debate, that cloud will be lifted. Senators will decide whether 
they will stand with patients and their doctors, or with the insurance 
  Senators will decide whether 161 million Americans can enjoy the 
protections of the Patients' Bill of Rights, or whether 113 million 
Americans will be left in the waiting room.
  There are many key differences between the Patients' Bill of Rights 
and the fall-back plan that Republican leaders have come up with. But 
the most important differences are that our bill would cover everyone, 
our bill lets doctors make the medical decisions, and our plan holds 
plans accountable to take away incentives to minimize critical health 
care decisions that can hurt or kill people.
  Just this morning, we have heard the Republicans attempt to justify 
why it is okay to protect HMO's from accountability for their decisions 
that lead to injury or death. Polls show that the public overwhelmingly 
supports the key elements of our Patients' Bill of Rights. Americans--
the people that Democrats and Republicans alike say we are trying to 
protect--want the protections the Democratic plan offers.
  I have heard from many Vermonters on their experiences with managed 
care. Each of these moving stories makes you ask: What if it was me, or 
someone I knew?
  When I was home in Vermont last week, I picked up the Burlington Free 
Press and, beside a guest column he had written, was met with the 
friendly face of an old friend, Dr. Charles Houston. He and I go way 
back to my days as a prosecutor in Burlington when he was a prominent 
physician doing remarkable things in the Vermont medical community. He 
has been a beacon of good advice to me throughout my time in the 
Senate. He is an indispensable Vermonter.
  Dr. Houston's commentary depicted the devastating and tragic 

[[Page S8596]]

he and his wife had with their managed care company that ultimately led 
to his wife's death.
  My wife is a registered nurse, so I get a dose of the practical 
reality of these problems across the breakfast table, as well as from 
the accounts I get from Vermonters. It is these personal accounts, like 
this one from Charlie, that bring home the need for a Patients' Bill of 
  Mr. President, I will ask unanimous consent that Dr. Charles 
Houston's article be entered into the Record.
  Mr. President, the question today is this: Will the Senate pass a 
bill that protects everyone--161 million Americans who get their health 
care through a managed care program--or just a fraction of those 
families, the 48 million who are in employer self-funded plans? Will we 
continue to hear and read stories from the people in our states who 
have no protections? Will we continue to hear accounts like the tragic 
one of Charlie Houston's wife? I hope not.
  The President has indicated that he would veto a so-called Patients' 
Bill of Rights if all we send him is one containing the weak Republican 
  Maybe then we can rescue those millions of Americans the Senate today 
has stranded in the waiting room without a real patients' Bill of 
  Mr. President, I ask unanimous consent to have printed in the Record 
the article to which I referred.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

             [From the Burlington Free Press, July 2, 1999]

                 Managed Care Needs Immediate Overhaul

                      (By Dr. Charles S. Houston)

       Can anything worthwhile be added to the billions of words 
     written and spoken about health care? Why is our medical care 
     today both better and worse than in the past? What happened?
       Here's one story.
       An 84-year-old nurse led an active life despite mild 
     chronic lung disease, but after a long plane trip developed 
     pneumonia. Finally admitted to the hospital, she was treated 
     aggressively by an ever-changing group of specialists and 
     nurses and went home after two weeks--but with diarrhea 
     either from antibiotics or a hospital infection.
       She was weak and undernourished but her doctors could not 
     visit her at home, insisting she return to the hospital. When 
     she refused, they tried to direct her care by phone. She 
     drafted downhill and died two weeks later, a victim of 
     efforts to reshape medicine by managed care in recent years.
       First, traditional care was scrapped and most doctors 
     forced to join systems and to abandon fee-for-service 
     medicine. We are told this was done because: 1. care was 
     getting too expensive; 2. too many people could not get care; 
     and 3. technology had become so complex.
       Managed care, we were told, would decrease the cost, 
     eliminate waste, open the system to the needy, and provide 
     highly technical care through specialists. In the capitalist 
     mode, competition would cure all.
       The goal became to provide the best possible care to 
     everyone. Who could quarrel with this? Yet a moment's thought 
     shows this was and will always be impossible: There aren't 
     enough providers and other resources. But you don't need a 
     Cadillac to go shopping; any car will do. Instead our goal 
     should be to make appropriate care easily available to all 
     who need and seek it. The treatment should match the problem, 
     the cost must be affordable.
       So what has managed care done? 1. The costs of care have 
     skyrocketed even faster; and 2. specialization has led to 
     fragmentation and medical care by committee. What little 
     fraud had existed was replaced by the waste-filled octopus to 
     non-medical insurance administrators who can--and do--
     overrule caregivers in major medical decisions. Doctors must 
     climb walls of paperwork, distancing them from patients. It 
     has become harder to reach or talk to your physician. 
     Administrators and stockholders in the managed care 
     organizations fatten on profits. Now many HMOs are failing or 
     increasing rates prohibitively.
       Two other dominating forces must be mentioned. Medical 
     knowledge has expanded far more rapidly than has 
     understanding of how to use it appropriately. More and more 
     specialists with exotic devices do miracles, So, in part to 
     protect the patient, in part for self-protection, physicians 
     often feel compelled to consult experts, and some are 
     reluctant to take leadership in care of an individual. 
     Fragmentation became a worse danger than concentration of 
       There's no virtue in crying wolf, and screaming catastrophe 
     without offering a way of escape. Having been a practitioner 
     for many years, alone and in groups, and a teacher in our 
     medical school, I have watched and studied the destruction of 
     traditional care with dismay. I'm confident that many 
     patients and doctors feel as I do. Something must be done, 
     and soon. Managed care as we know it must go. Though over-
     simplified, the following would be a strong start:
       End or modify commercialization of health care. By 
     regulation make hospitals, medical groups and insurers non-
     profit and monitor compliance.
       Continue the lead role of a primary care provider as first 
     call and facilitate appropriate consultation and resources.
       Require insurers to open enrollment for all, allowing them 
     a fair return on investment.
       Since each state has different needs, develop statewide 
     insurance plans to provide appropriate health care to all its 
     citizens. Several years ago the Governor's Health Commission 
     prepared such a plan but it failed. Why? Lobbyists? Economic 
     fears? This plan deserves careful look.
       Finally, a sad personal note. The patient described above 
     was my wife of 58 years. She was truly a victim of the new 

  Mr. LEVIN. Mr. President, I strongly support the Patients' Bill of 
Rights which Democrats have offered and fought for during these four 
days of consideration and which the Republican majority has weakened at 
every turn. I cannot support the inadequate substitute which 
Republicans have now put before us. The Republican bill is full of 
loopholes in the fundamental protections for patients which we seek to 
provide. In fact, the substitute Republican bill provides almost no 
protections for nearly two-thirds of Americans with health insurance.
  The Democratic bill would guarantee access to needed specialists. The 
Republican bill fails to guarantee patients access to needed 
specialists outside the HMO at no extra charge. The Democratic bill 
would assure access to the closest emergency room. The Republican does 
not guarantee access without financial penalty and prior authorization. 
The Democratic bill gives women the right to choose their OB/GYN as 
their primary doctor, as many women wish to do and protects women from 
``drive-through mastectomies''. The Republican version is not adequate. 
And unlike the Democratic bill, the Republicans fail to hold HMOs 
accountable when their decisions and practices lead to the death or 
injury of patients. And, the Republicans would continue to allow 
insurance company officials to override the medical decisions of a 
patient's own doctors.
  Mr. President, in short, the Republican substitute for the Democratic 
bill is a mere shadow which does not deserve the title, ``Patients' 
Bill of Rights''.
  The core of the Democratic effort has been to ensure that insurance 
administrators not overrule a health care professional's medical 
decisions, that HMOs can be held accountable for their actions which is 
a responsibility every other industry has to its consumers, and to 
ensure that all insured are protected. The Republicans have developed a 
bill that leaves more than 113 million Americans with insurance 
unprotected because most of the provisions in their bill for the most 
part are narrowly applied to only one type of insurance, self-funded 
employer plans, which cover only 48 million of the 161 million people 
with private insurance.
  Our bill ensures that the special needs of children are met, 
including access to pediatric specialists. It provides important 
protections specific to women in managed care such as direct access to 
ob/gyn care and services and the ability to designate an ob/gyn as a 
primary care provider, and provides specific protections regarding 
hospital length-of-stay for mastectomy, by allowing the physician and 
patient to make decisions the length of stay in a hospital following a 
mastectomy or lumpectomy. The Republican bill does not prevent ``drive-
through mastectomies.'' Additionally, our bill speaks to the issue of 
specialty care. Patients with special health conditions must have 
access to providers who have the expertise to treat their problems. Our 
amendment allows for referrals for enrollees to go out of the plan's 
network for specialty care, at no extra cost to the enrollee, if there 
is no appropriate provider available in the network. There are about 30 
million Americans who have had trouble seeing specialists with their 
HMO plans. This includes women and children with special needs who 
either had critical care delayed or, worse, had that care denied. On 
the issue of emergency services, the Democratic amendment says that 
individuals must have access to emergency care, without prior 
authorization, in any situation that a ``prudent lay person'' would 
regard as an emergency.

[[Page S8597]]

  Survey after survey reveals that the American people support these 
proposed protections. And, there are over 200 patient groups and health 
care provider organizations, workers' unions, and employee groups, that 
stand behind the need for these patient protections. That list includes 
the American Medical Association, American Heart Association, American 
Nurses Association, American Public Health Associations, Center for 
Women Policy Studies and the Child Welfare League of America. We have a 
stark choice before us, a strong Patients' Bill of Rights that protects 
patients or a weak bill aimed at protecting insurance companies.
  Earlier this week, Mr. Steve Geeter, husband and father of two young 
children of Grass Lake, Michigan, stopped by to visit with my office. 
Mr. Geeter has terminal brain cancer and will be participating in an 
experimental clinical trial at the National Institutes of Health over 
the next several months. Mr. Geeter and his wife spent a considerable 
amount of time with my staff discussing his options and limitations 
under his HMO plan and the need for reforms, including access to 
clinical trials. I very much appreciate Mr. Geeter taking the time to 
share his HMO experiences with my office. They substantiate the need 
for the legislation before us. Several months ago, Mr. Geeter's HMO 
plan required that he be released from the hospital after 24 hours of 
intensive care following brain surgery. The plan's justification was 
that Mr. Geeter had passed the neurological exams and transfer to a 
room would cost too much. Mr. Geeter subsequently developed 
complications and had to be returned to the hospital emergency room. 
This may have been averted with just an additional 1-day hospital stay-
over. The Democratic amendment would have protected patients, such as 
Mr. Geeter, from an insurance company official requiring that they be 
discharged from the hospital prematurely. Plans would no longer be able 
to deny promised benefits based on an interpretation of medical 
necessity defined by insurance companies rather than the patient's 
health care provider. The Democratic amendment used a professional 
standard of medical necessity--based on case law and standards 
historically used by insurance companies.
  Mr. Geeter also expressed strong support for the Democratic amendment 
on access to clinical trials of experimental treatments, which offer 
patients access to cutting-edge technology and are the primary means of 
testing new therapies for deadly diseases. Historically, insurance 
plans have paid the patient care costs for clinical trials, not the 
costs of the experimental therapy itself. However, research 
institutions, particularly cancer centers, increasingly are finding 
that trials, which once were paid for by health insurance, must be 
curtailed because of lack of payment by managed care plans. Clinical 
trials may be the only treatment option available for patients who, 
like Mr. Geeter, have failed to respond to conventional therapies. 
Under the amendment, trials are limited to those approved and funded 
the National institutes of Health {NIH ; a cooperative group or center 
of the NIH; or, certain trials through the Department of Defense or the 
Veterans Administration. The Republican bill provides no hope for 
patients with no options other than a promising experimental treatment 
down the road. A study is not enough for a patient with a life-
threatening disease when there are no other treatment options and there 
is nowhere else to turn.
  In addition to having the benefit of the input of Mr. Geeter, I've 
communicated with others in my state. Over the past several months, I 
have traveled around Michigan and met with constituents various 
communities to get their thoughts on our efforts here in the Senate. I 
have had discussions with physicians, hospital administrators, nurses, 
seniors, city and county government representatives and health care 

  Ms. Myrna Holland, a resident of Ferndale, Michigan and Director of 
Nursing Education at Providence Hospital expressed concern that patient 
choice is limited when HMOs engage in restrictive practices such as 
``doctor-only'' policies. These professionals include, but are not 
limited to, certified nurse anesthetists, nurse practitioners physical 
therapists, optometrists, podiatrists and chiropractors. This is 
particularly important for patients living in rural areas. Many rural 
communities have a difficult time recruiting physicians, and often non-
physician providers are the only source of health care in the local 
area. If a managed care plan covers a particular service, but there is 
no one in the community to provide it, rural patients are too often 
forced to drive long distances, incurring expense, to get the care they 
need. The Democratic amendment would have prohibited HMOs from 
arbitrarily refusing to allow health care professionals to participate 
in their plans by virtue of their licensure or certification. The 
Republican bill would allow HMOs to continue restrictive practices, 
leaving consumers with an inadequate choice of health care providers or 
limited access to health care.
  Robert Casalou, Acting Administration of Providence Hospital in 
Michigan, raised concerns about continuity of care. The Democratic 
amendment assured continuity of care. When health plans terminate 
providers without cause or when employers switch health plans for their 
employees, quality of care for patients currently undergoing treatment 
can be severely threatened.. For example, a patient who is undergoing a 
course of chemotherapy should not have to change physicians abruptly in 
the middle of treatment, and a woman who is pregnant should not have to 
change doctors before she gives birth. The Democratic amendment allowed 
for a transition to lessen those problems. When a doctor no longer is 
included as a provider under a plan, or an employee changes plans, our 
amendment provided for at least 90 days of transitional care for any 
patients undergoing an active course of treatment with that doctor. The 
amendment also provided special protections for pregnancy, terminal 
illness, and institutionalization.
  Additionally, Mr. Casalou, and others, expressed support for holding 
HMOs accountable for their actions. Today, 123 million Americans who 
receive insurance coverage through a private employer cannot seek 
redress for injuries caused by their insurer. All they can claim is the 
cost of the benefit denied or delayed. Even if an HMO has been directly 
involved in dictating, denying or delaying care for a patient, it can 
use a loophole in the Employee Retirement Income Security Act (ERISA) 
to avoid any responsibility for the consequences of its actions. ERISA 
was designed to protect employees from losing pension benefits due to 
fraud, mismanagement and employer bankruptcies during the 1960s, but 
the law has had the effect of allowing an HMO to deny or delay care 
with no effective remedy for patients. The Democratic amendment would 
have closed this loophole, ensuring that HMOs can be held accountable 
for their actions. It did not establish a right to sue. It simply says 
Federal law will no longer block what the States deem to be appropriate 
remedies for patients and families who are harmed. The only time an 
employer can be held responsible is when the employer is involved 
directly in a specific case and makes a decision that leads to injury 
or death.
  Donald Anderson, who I spoke with in Detroit, is a quadriplegic who 
is in a wheelchair who changed jobs and also changed health care 
providers. Donald's new provider would not cover a rolling commode 
wheelchair for him after the wheel broke on the wheelchair he owned, 
even though his doctor classified the chair as a medical necessity. Our 
amendment would have allowed the physician, not the insurance company, 
to decide what prescriptions and equipment are medically necessary. The 
amendment provided that a plan may not arbitrarily interfere with or 
alter the decision of the treating physician regarding the manner or 
particular services if the services are medically necessary. Under the 
Democratic amendment, Donald would have received a rolling commode.
  In Grand Rapids, I spoke with another constituent of mine, Dr. 
Willard Stawski, a general surgeon. Dr. Stawski told me about a patient 
of his who did not seek care for her hernia because she was told by her 
HMO that it was an unnecessary operation. Dr. Stawski told me that 
after his patient elected not to have the operation, she became very 
ill. Gangrene set in and she died several months later. Under

[[Page S8598]]

the Democratic amendment, this tragedy might have been averted. What a 
doctor deems to be medically necessary, is the medical treatment that 
the patient receives. Thus, Dr. Stawski's patient would have had the 
surgery because Dr. Stawski said that the surgery was medically 
  All we were asking for with this amendment is that patients be able 
to receive the care that a doctor or other medical professionals deems 
to be medically necessary. Doctors are frustrated, patients are 
frustrated. The Republican majority defeated our efforts to adopt these 
good amendments.
  Mr. President, while I cannot support the Republican susbstiutute 
bill, I hope we will have a later opportunity to pass a strong bill of 
rights. The public wants a strong one and they are right.
  Mr. BRYAN. Mr. President, for those Americans who have been harmed by 
the decisions of managed care plans, this public debate is long 
overdue. For those who yet face a decision about their health care made 
by their managed care plan, the end to the wait cannot come soon 
  The Democrats' Patients' Bill of Rights will ensure those who depend 
on managed care plans for their health care will not be receiving a 
lesser standard of care than those who do not.
  Last week while I was in Nevada, people voiced concerns about who 
really makes their medical care decisions if they are in a managed care 
plan. They wanted to know what would happen, under the Democrats' 
Patients' Bill of Rights, when a patient is told by his or her 
physician they need a specific treatment, and the physician informs the 
patient that the plan must first approve or disapprove his decision.
  Would their physician be able to decide what treatments would be 
appropriate for their medical condition? Or, would they be at the mercy 
of a managed care plan bureaucrat far removed from the situation who 
would decide ``yea or nay'' on treatment determined necessary by their 
  We can all empathize with the stress involved in this situation--your 
doctor has determined what your medical condition requires for 
appropriate care, but you must wait to see if what you need is approved 
by the plan. If the answer is ``no'', then you must either forego the 
care, or pay for it out-of-pocket --not a very good choice.
  And what if you found yourself in the situation of a Nevada man, 
covered by an HMO plan, who came into an emergency room suffering from 
an upper gastrointestinal bleed. The emergency room physician called 
for a gastroenterologist to perform an emergency procedure to halt the 
bleeding. But the gastroenterologist would not treat this man without a 
prior authorization from the HMO plan. If he did the procedure without 
the authorization, he would not be paid. The doctor tried to contact 
the HMO for an hour to get the necessary authorization. During this 
time, the emergency room had to give the patient four units of blood, 
which would not otherwise have been required if the procedure had been 
done in a timely manner. Finally when it appeared the patient might not 
survive, the doctor contacted the HMO plan and said if he did not get 
authorization for the procedure, he would go to the media about this 
patient. The HMO then authorized the procedure.
  The Democrats' ``medical necessity'' amendment would prohibit all 
managed care plans from arbitrarily interfering with a doctor's 
decision that the needed health care be provided in a particular 
setting, or is medically necessary and appropriate.
  The amendment's definition uses a professional standard of ``medical 
necessity''. This is reasonable for both the patient and his or her 
treating physician, and the particular managed care plan. If a decision 
on whether or not to cover a particular treatment is made pursuant to a 
professional standard, it will be based on standards and case law 
interpretations historically used by insurance companies.
  If a managed care plan can use its own definition of ``medical 
necessity'', any external review of a plan's treatment decisions would 
be resolved using that definition. This very likely would not work to 
the benefit of the patient.
  The Democrats' approach would also maintain the important 
relationship between a doctor and the patient. It is a relationship 
that of necessity must be based on complete communication and trust 
between the two.
  The Democrats' proposal will also ensure patients have a right to an 
external appeal from the decisions made by their managed care plans. 
One of the key provisions of this amendment is its requirement the 
appeal process be timely--for both internal and external appeals. It 
also requires ``expedited'' reviews when a patient is facing a medical 
  The Republican bill provides patients no guarantee of an expedited 
review for medical emergencies. Additionally, a managed care plan could 
simply delay sending the information needed for an appeal of one of its 
decisions. There is no deadline requirement for a plan to respond to a 
decision made by a reviewer. Without a timeliness requirement, patients 
are at the mercy of when, if ever, a plan wants to deal with an 
appealed case.
  The Republican bill would drastically limit the application of its 
proposed patient protections to only one type of health care 
insurance--the self-funded employer plans. Those types of managed care 
plans provide the medical insurance for many Nevadans who work in the 
gaming industry. Those employees should have protections. But, why 
should 113 million people with private insurance be left unprotected? 
That is what the Republican bill would do, and it is wrong. For those 
small businesses which provide health insurance for their employees, 
almost all must depend upon the private insurance market for their 
coverage. Why should small businesses' employees have less protection 
than those workers in larger businesses which can afford to self-
insure? Why should Americans who have to purchase their health 
insurance themselves, because they do not have an employer's 
assistance, be left unprotected?
  The Republican bill will only cover 48 million Americans. The 
Democrats' bill will cover 161 million Americans--both those covered by 
self-insured employers, and those covered by private insurance. Why 
should 113 million Americans be without protection? Should we protect 
only 48 million, or protect 161 million? It is an easy decision.
  Women should be able to designate their OB/GYN as their primary 
physician, and to have direct access to OB/GYN services without first 
having to obtain a specialist referral. Women also should make a 
decision with their physicians about the length of their hospital stay 
when they have a mastectomy. I have long supported these efforts to 
level the field of health care services for women. The Democrats' 
Patients' Bill of Rights will ensure those protections.
  For individuals who are chronically ill, or have medical problems 
requiring access to speciality care, the Patients' Bill of Rights will 
require plans to provide access to specialists. If plans do not have an 
appropriate specialist within their plans, then the patient will be 
allowed to go outside the plan network, at no additional cost. The 
Democrats' Patients' Bill of Rights will ensure this access.
  Every American should be assured the quality of their health care and 
their access to health care options is not diminished, because they 
rely upon an HMO for their health care coverage.
  All of the 161 million Americans throughout this country who receive 
their health care through managed care plans deserve the protections 
included in the Democrats' Patients' Bill of Rights.
  The opportunity is before us to ensure those protections. But that 
opportunity is going to be lost today. And that is a tragedy for 
everyone who depends on managed health care.
  Mr. LIEBERMAN. Mr. President, I have been proud to join with Senators 
Chafee, Graham, and other colleagues to express our shared 
dissatisfaction with the Senate's progress in reaching agreement on a 
strong patients' bill of rights, and to prepare a balanced, 
thoughtfully-crafted alternative that we believe would protect the 
rights of health consumers and could attract the support of a 
bipartisan majority of the Senate.
  Listening to the deeply partisan discussions we have heard on the 
floor this week, I am reminded of the movie ``As Good As It Gets,'' 
which has become a cultural touchstone of sorts for venting the popular 
hostility toward HMOs.

[[Page S8599]]

  It is not any particular scene I am thinking of, but the title 
itself. I am moved to wonder if this debate, which seems to be 
operating on political autopilot and showing no signs of producing 
anything other than a Presidential veto, is as good as we get in the 
U.S. Senate, and as good it gets for the American people, who don't 
know a second degree amendment from a first degree amendment, but who 
do know that our managed care system badly needs a transfusion of basic 
fairness and accountability.
  We are here today to say that we can and should do better for 
America's families, that despite the apparent legislative logjam it is 
still possible to pass a constructive reform proposal, and that we are 
eager to offer a plan that Senators Chafee, Graham, and many of us have 
been fine-tuning over the last few days which fits that bill.
  While Sherlock Holmes had the 7% solution, we are offering a 70% 
  Our bipartisan alternative includes roughly 70 percent of the patient 
protections that most Members already agree on, and strikes some 
balanced compromises on the remaining issues that continue to divide 
  The liability provisions in our bill are an example of our success in 
finding a sensible middle ground.
  This case, the managed care case, reminds me why we have tort law; 
why we have negligence law; why we have a system of civil justice. 
There has been this odd result that ERISA has given total immunity to 
managed care plans who are today making life and death decisions about 
our lives.
  The question is, how do we respond to that, how do we reform it? I 
think, with all respect that the Democratic bill goes too far.
  It opens up the system to the unlimited right to sue and creates the 
same prospect for the lotteries that have been going on elsewhere in 
the tort system. I am concerned that those ills will be repeated here--
some will get rich and others, many others, will not be adequately 
compensated for the injuries they suffer as the result of the managed 
care plan decisions.
  And some small businesses and individual people will be priced out of 
health insurance by the costs that will be added as a result of runaway 
  I think the Republican plan, on the other hand, is not real reform 
because it essentially allows a patient, who is harmed by a negligent 
decision of a managed care plan, to be denied any significant 
compensation for their injury.
  Under the Republican plan, patients have to traverse an elaborate 
series of procedural hurdles to be eligible for compensatory damages. 
First, the patient has to fight their way through the appeals process. 
Then the independent appeals body must grant a decision in favor of the 
patient. Finally, if the plan doesn't accept and deliver that 
treatment, then, under the Republican bill, the only right the 
aggrieved health care consumer has, is to go to court for the value of 
that lost treatment, plus $100 a day.
  The amendment on liability which Senator Gregg offered went far 
beyond striking the liability provisions from the Democratic bill and 
would deny efforts to adequately compensate patients injured because of 
managed care plan decisions.
  That's just not enough.
  I think we've struck a reasonable compromise in our bipartisan bill. 
You're entitled to sue for economic loss which includes not only the 
cost of your health care, but lost wages, replacement services, and the 
value of lost wages and replacement services for the rest of your life 
based on the injury you've suffered.
  And it allows for pain and suffering up to $250,000 or three times 
economic loss whichever is greater. It has pain and suffering but with 
a limit on it.
  Another good example of our success in finding a sensible middle 
ground comes in the form of our plan's consumer information section, on 
which I have worked. Both the Democratic and Republican bills provide 
beneficiaries with information about coverage, cost sharing, out-of-
network care, formularies, grievance and appeals procedures. One area 
of sharp difference is health plan performance. The Republican bill 
does not include any requirement that the performance of the plan, its 
doctors, and hospitals in preventing illness and saving lives be 
  Our bipartisan alternative requires provider performance report cards 
because we believe this is critical information for consumers to have 
in deciding which managed care plan to choose. We also reached back to 
an earlier bipartisan bill I sponsored with Senator Jeffords to include 
waivers and other language to ease the difficulty of administration for 
HMOs, PPOs, and providers.
  The bottom line here is that patients rights don't have to lead to 
political fights. There is a path to dependable consumer protections 
that does not require detours to bash HMOs or our colleagues. We have 
pled with our leadership to give us the opportunity to offer our 
alternative as an amendment today and prove our case.
  If not, I am prepared, and I believe our coalition is as well, to 
offer this proposal as an amendment to another legislative vehicle in 
the Senate this session. The American people deserve more from this 
critically important debate than high-glossed veto bait. We must show 
them that we take their concerns and our responsibilities seriously, 
and pass a law that will in fact improve the quality of health care for 
millions of American families.
  Mr. SARBANES. Mr. President, this week the Senate is finally 
addressing an issue that is vitally important to the American people--
managed health care reform.
  The number of Americans who receive health care through managed care 
organizations continues to increase at a rapid rate. Today, 
approximately 75 percent of those with employer-provided health 
insurance are covered by managed care plans.
  Although managed care was put forth as promoting both greater 
efficiency and higher quality health care, all too often the lure of 
greater profits has resulted in curtailing care to patients dependent 
on managed plans for their medical needs. The American people are 
rightly demanding more patient protections, and it is clearly time for 
Congress to act to guarantee all Americans certain fundamental rights 
regarding their health care coverage.
  The Democrats in both the House and Senate have worked hard to 
convince the Republican Majority of the need to establish safeguards 
for patients in managed care. For a long time the Majority chose to 
ignore the patients' plight and refused to acknowledge the need for any 
patient protections at all. Last Congress we proposed a comprehensive 
set of reforms designed to ensure that patients receive the care they 
have been promised and have paid for. I am proud to be an original co-
sponsor of this Democratic bill again this Congress.
  After seeing how the public responded to this Democratic initiative, 
the Republican Majority did draft a managed care reform bill. But, 
unfortunately their bill calls for only the most minimal reforms; in 
many respects it is a sham. In addition, until this week, they 
persisted in blocking the issue from being brought up on the floor.
  However, the Democrats joined together in insisting that the needs of 
managed care patients be given careful consideration. After much hard 
work by the Minority leader and others, an agreement was reached under 
which patients' rights legislation could be brought up on the Senate 
floor this week.
  The debate which has taken place highlights the difference between 
the Democratic and the Republican approaches to this issue. The 
Democrats seek to provide comprehensive coverage and protections; the 
Republicans are minimalist in both respects. Let us look at some of the 
differences: the Democrats' bill would protect all 161 million 
Americans with private insurance; the Republican proposal ignores the 
over 113 million people who work for other than the large self-insured 
employers, or State or local governments, or who buy their own 
  Our bill would guarantee basic patient protections to all consumers 
of private health insurance. The Republican proposal would cover only 
the employees of businesses that assume the risk of self-insuring their 
employees. Thus, the Republican bill leaves out more than 70 percent of 
the consumers of private health insurance.
  The Democrats' bill provides patients with access to specialists, 
whereas the

[[Page S8600]]

Republican bill is woefully inadequate in this regard. For those who 
are seriously or chronically ill, receiving treatment from a qualified 
medical specialist can mean the difference between life and death. Our 
Patients' Bill of Rights would guarantee that patients with special 
conditions could go to providers with the expertise needed to treat 
their particular problems, even if the needed specialist was not a 
member of a plan's provider network. Under the Republican bill, 
patients are not guaranteed access to the specialists they need and 
could be charged exorbitant fees for going to an out-of-network 
provider--even if the plan may be at fault for not having access to 
appropriate specialists.
  The Democratic bill would prevent HMOs from arbitrarily interfering 
with doctors' treatment decisions whereas the Republican bill does not 
address this issue at all. The Republicans claim that our provision 
would allow doctors to order unnecessary care, but that is not the 
case. Under our bill, an insurer could still challenge a doctor's 
recommendation, but their denial of coverage would have to be based on 
medical facts not on their bottom line.
  The Democratic bill would restore patients' ability to trust that 
their health care provider's advice is driven solely by health 
concerns, not cost concerns. It would prohibit the coercive practices 
used by managed care companies to restrict which treatment options 
doctors may discuss with their patients. The Republican bill would 
allow HMOs to continue terminating health care providers for having 
frank and candid doctor-patient communications and would allow HMOs to 
continue using incentives to bias a doctor's medical decision-making.
  Managed care companies regularly refuse to pay for emergency room 
services without prior authorization. This unreasonable requirement has 
caused countless tragedies as people are forced to waste critical time 
finding an emergency room their HMO will pay for.
  One of my constituents recently experienced this shocking treatment 
from an HMO. While hiking in the Shenandoah Mountains, she fell off a 
40-foot cliff. She sustained fractures to her arms, pelvis, and skull 
but was quickly airlifted to a hospital in Virginia. Her HMO refused to 
pay the over $10,000 in hospital bills because she failed to gain 
``pre-authorization'' for her emergency room visit. For over a year, 
she challenged her HMO and faced personal bankruptcy. Ultimately, the 
Maryland Insurance Administration ordered the insurer to pay the 
hospital and fined them for refusing to pay from the outset. However, 
her struggles with the HMO were not yet over. Within a year, after 
follow-up surgery for her injuries, she found herself again in need of 
an emergency room. This time she called the HMO beforehand, but was 
told they would pay only for her screening fees because the visit was 
not considered a medical emergency.
  The Democratic Patients' Bill of Rights would guarantee that patients 
could go to the nearest emergency room during a medical emergency 
without having to call their health plan for permission first. Patients 
would have the right to receive the medical care they need without the 
limitations currently imposed by HMOs. The Republicans, on the other 
hand, would not guarantee patients access to the nearest emergency room 
and would not ensure that patients could receive full medical care 
without prior authorization.
  Our bill would also provide patients with meaningful recourse if they 
are harmed by a managed care plan's medical decision-making. Today, 
there is nothing to discourage HMOs from denying critically necessary 
care. Thus, our bill creates a fair, independent, and timely appeals 
process through which patients could challenge a plan's denial of care. 
Under the Republican bill, HMOs could delay the appeals process 
indefinitely and many HMO decisions could not be appealed at all. 
Furthermore, where the Republican bill is silent, our bill would enable 
those harmed by the medical-decision making of HMOs to hold those HMOs 
legally accountable for second-guessing the advice of a treating 
physician. The Republican plan would continue to shield HMOs from 
accountability for conduct that results in injury or death to patients.
  The American people need a meaningful Patients' Bill of Rights. That 
is why I strongly support the Democratic proposal put forward by 
Senator Daschle.
  Mr. BAYH. Mr. President, in a few short moments we will be proceeding 
to our final votes of our four day debate on the Republican and 
Democratic versions of the Patients' Bill of Rights. I am taking the 
floor this evening to explain why I oppose both these proposals and to 
express my support, again, for the bipartisan approach to managed care 
reform that I sponsored with my colleagues John Chafee, Bob Graham, Joe 
Lieberman, Arlen Specter, Max Baucus and Chuck Robb.
  One of the most difficult obstacles to meaningful health care reform 
is that there is an inherent tension between our two most important 
  The first objective is to ensure the highest possible quality care. 
Regardless of our vantage point on the political spectrum, we can all 
agree that the United States offers the best quality health care in the 
world. Men, women and children flock here from every corner of the 
globe to gain access to our physicians and our hospitals. Maintaining 
this high standard of care must be at the forefront of any attempt to 
reform the means by which Americans pay for their health care.
  Seemingly at odds with the objective of highest quality care is the 
need to make sure that health care is affordable. The ability to cure 
disease or heal the injured is rendered almost meaningless if only a 
fraction of the population can afford it.
  Spiraling health care costs have a negative impact upon society in a 
variety of ways--some obvious and some not so obvious. I well remember 
the situation in Indiana when I took over as Governor. In the midst of 
our worst recession since the 1930s, our Medicaid costs were increasing 
by 20% per year, an increase that mirrored substantial annual hikes in 
the private market.
  One clear result was that workers around the state were losing 
insurance as business after business found themselves unable to pay for 
even basic health coverage.
  But for both the state government and for those businesses that 
maintained health insurance, the spiraling increases crowded out 
funding for many other significant initiatives and investments. On the 
state level, paying increased Medicaid bills meant less for education, 
transportation and child care. For private businesses the choices were 
equally stark--pay increased insurance costs and in so doing postpone 
expanding the workforce, offering pay increases, investing in research 
or modernizing factories and offices.
  In 1989, we began to make some very tough decisions in Indiana to 
bring the Medicaid budget under control; private businesses similarly 
began to turn to managed care. For the past ten years, those changes 
have helped to keep health care costs under control and have resulted 
in continuing insurance coverage without having to choose between 
offering health insurance or creating new jobs, or maintaining Medicaid 
or education funding.
  But today, there is ample evidence--acknowledged by Democrats and 
Republicans alike--that the pendulum may have swung too far towards 
keeping costs down, and as a result, we are jeopardizing the quality of 
health care that Americans receive.
  In trying to redress this imbalance, there are a few lessons that we 
learned in Indiana that were useful principles for me to keep in mind 
as this debate progressed.
  First, and perhaps most importantly, any significant reform had to be 
market-based. Any attempt to have the government control the health 
care system would be doomed to failure.
  The Chafee-Graham bi-partisan bill that I have supported since taking 
office is market based; it sets some basic ground rules but leaves that 
actual management of health care to the experts in the private sector--
the patients, the doctors and the insurers.
  Unfortunately, the Republican plan takes the concept of market-based 
reform to its illogical extreme. That plan falls far short of 
establishing even the most basic protections for people in managed 
care. Most egregiously, the Nickles-Lott bill would only cover a 
fraction--less than 30%--of the people who have private insurance. We 
have all accepted the idea that there ought to be some minimum 
protections and

[[Page S8601]]

guarantees offered to those in managed care to prevent the abuses that 
we have witnessed over the past few years. But if all sides have 
accepted that principle, it seems very unfair that the majority would 
choose to leave nearly 120 million people out of the protections we all 
believe are necessary.
  I strongly support the elements of the Democratic approach that 
advance these principles--access to specialists, proper emergency care, 
access to obstetrician/gynecologists, independent reviews of denial of 
care--but the bipartisan bill wisely avoids the one element of the 
Democratic Patients' Bill of Rights that I believe will drive health 
care costs up: expanded liability.
  If health care costs do not remain under control, there are serious 
ramifications for both the national economy and for the American 
  The United States already pays more--expressed as a percentage of 
GDP--for health care than any other industrialized nation. A rise in 
these costs will have an appreciable negative impact upon our economic 
strength in an increasingly competitive global environment. With 
pressure from a unified Europe and resurgent Asia, the last thing this 
Congress ought to do is to help spur a dramatic rise in health care 
costs for a liability provision that is unlikely to make any American 
  And the American taxpayer is at risk if health care costs spiral out 
of control because it is the taxpayer who will foot the bill if 
hundreds of thousands of people are suddenly forced into the Medicaid 
system if they lose their health benefits. We simply, as a nation, 
cannot afford a return to the days when health care costs increased by 
double digits every year.
  The bipartisan bill does allow some tightly controlled access to the 
Federal courts for suits that seek restitution for economic loss. It 
seems to me that before we expose health care plans and employers to 
unlimited liability and to punitive damages, we must at least try this 
limited, moderate approach.
  Mr. President today we will face a test of whether Washington can 
still work. The American people will be watching to see if their 
cynicism and apathy towards the political process in general and 
Washington, in particular, will be deepened or whether we can put 
partisanship aside and restore their confidence in our ability to 
govern for the benefit of the nation.
  Some in this chamber truly do not want to have any legislation that 
reforms the way in which HMOs operate; some do not want to have any 
legislation so that they can have an issue for the 2000 elections.
  Neither approach serves the American people very well and that is why 
I support the bi-partisan bill as the only possibility to actually get 
something done. The Democratic proposal will not pass the Senate; the 
Republican proposal will be vetoed by the President and that veto will 
not be overridden. Compromise is the only possibility before us for 
success in this area.
  The bipartisan bill strikes the right balance between additional 
patient protections and maintaining control of increasing health care 
costs. In the final analysis, we have a choice to make: do we choose to 
just give more speeches that won't help anyone, or do we try to get 
something done? Are we going to insist upon everything that we want, or 
will we put aside our partisan differences to get some of what the 
American people want?
  It is my hope, even if that vote doesn't occur today, that the 
members of this Senate will pass the test by finally putting aside the 
rancor and bitterness of the past four days, to put aside the desire to 
score debating points off each other, and to rally around this 
centrist, responsible bi-partisan bill that will give the American 
people the key components of HMO reform that they need and deserve.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. GRAHAM. I yield 3 minutes to the Senator from Virginia.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. ROBB. Thank you, Mr. President.
  I commend my colleagues from Rhode Island and Florida for their 
efforts to try to craft a bipartisan compromise.
  We succeeded in putting together legislation that I believe would 
have led us to a bill that could become a law.
  As Senator Chafee indicated, we are in a situation where a bill that 
is supported by an overwhelming majority of all of the health-related 
organizations--doctors, nurses, patients, and providers--is not going 
to enjoy enough votes on this floor to pass.
  The bill that will pass is going to be vetoed by the President.
  I hope we can find a way to crawl out of our fox holes and find the 
common ground that is necessary if we are going to address in a 
responsible way the issues and the concerns we have been talking about 
for this entire week. I commend the leadership for sticking to their 
agreement and giving everyone an opportunity to be heard. I regret 
there was no sense of compromise on the floor. It is important we do 
that. I hope we continue with that mission. I appreciate those who have 
worked hard to achieve that compromise.
  I yield the floor.
  Mr. GRAHAM. I yield 1 minute to the Senator from Arkansas.
  Ms. LINCOLN. Mr. President, I, too, compliment our colleagues from 
Rhode Island and from Florida. We have had a train wreck in terms of 
the health care proposals we tried to present this week in the Senate.
  For the past few days in the Senate we have had a lot of colorful 
charts and graphs. We have seen a lot of ads on TV paid for by special 
interest groups. There has been a lot of partisan maneuvering. What we 
haven't had, what the American people haven't seen, is a sensible, 
moderate debate on this critical issue of health care.
  Tonight, I am very proud to join my colleagues in trying to provide 
emergency relief, to find the middle ground in this debate with the 
proposal that should be acceptable to the majority of the people, the 
Members of the Senate, and without a doubt is in the best interests of 
the American people.
  This issue is of great importance to the American public and they are 
waiting to see if Washington--and more importantly, if the Senate--will 
be able to do their job. And that is to present a plausible response to 
the reforms that are needed in this Nation's health care program.
  I applaud my colleagues.
  Mr. GRAHAM. Mr. President, I yield 1 minute to the Senator from 
  Mr. LIEBERMAN. Mr. President, I thank my friend from Florida.
  It has been a spirited debate. We must acknowledge there have been 
impressive displays of party unity on both sides, but to what end? The 
end of the sound and fury is we will produce a bill we know the 
President will veto, and therefore there will be nothing done to help 
the American people with the problems they have with health care.
  It didn't have to be that way. There was a third way. There was a 
third way that would have recognized and expressed something else the 
debate has concealed: The fact that across party lines we agree on 
about 70 percent of the topics we talked about. It was the aim of our 
bipartisan group to put that majority round of agreements on the bill. 
Unfortunately, we didn't have an opportunity to have it heard by our 
colleagues in this debate.
  We will be back. We are going to submit our proposals and there will 
be another day.
  I yield the floor.
  Mr. GRAHAM. Mr. President, I will consume such time as remains on our 
  There are a series of winners and losers as we conclude this debate. 
The first winner is the status quo. We all know the result of the 
effort of the last 4 days will be nothing. We will be in exactly the 
same position as we were before we started.
  The losers are all those American families who have genuine concerns 
about the way in which they are being treated--the arbitrariness, the 
inadequacy of services under their current health maintenance 
organization plan.
  The winner is cynicism. The American people will again question 
whether their political institutions are capable of responding to 
serious public issues. The loser will be the opportunity we had to 
bring together in the best spirit of the Senate a bipartisan plan, an 
American plan that would have dealt with an American problem.

[[Page S8602]]

  The Miami Herald editorialized yesterday that what the American 
people want is Senate action, not a showoff dictated by political 
  Unfortunately, that is what they have received.
  We will continue the effort to fashion a reasonable bipartisan plan 
that will deal with the legitimate concerns, first of all, of the 
American people--not a small percentage of the American people. We will 
do so in a way that will be sensitive to the cost of health care but 
also sensitive of the fact that people should get what they contract 
for from their health maintenance organizations and will provide an 
enforcement mechanism that is meaningful.
  This is not the last chapter in this debate. I anticipate that 
shortly we are going to have the rubble of a collapsed bill under the 
weight of a Presidential veto.
  I urge my colleagues to use the time between now and then to think 
seriously about whether that is the last record we want to write on 
this important national issue. I do not think it is what we want. We 
don't want an issue. We want a result that will help American families.

  The day to achieve that result is, unfortunately, not today, but it 
will come. Hopefully, it will come soon.
  The PRESIDING OFFICER. The Democrat leader.
  Mr. DASCHLE. I yield 8 minutes to the distinguished Senator from 
  Mr. KENNEDY. Mr. President, if the Chair would be good enough to let 
me know when 5 minutes remain.
  Mr. President, a little over 2 years ago, a number of Members were 
working with those involved in the health care field, those that have 
been injured because of actions taken by HMOs, and those doctors and 
nurses who believe that we could do better.
  Tonight we are at a point in the development of a policy where we 
have seen a setback in terms of protecting patients. We have seen a 
setback in giving patients and their doctors the opportunity to make 
medical judgments, rather than having their medical judgments 
overridden by the economic judgments made by gatekeepers, accountants 
or insurance company officials. We have received a setback, but I, for 
one, am not discouraged. I believe that as a result of the last 4 days 
of debate not only do we have a better understanding about what is 
important, but I think the American people have a much better 
  I think the actions we can expect from the House of Representatives 
as we begin their debate and discussions starts at an entirely 
different level. I am very hopeful we will get a strong bill out of the 
House of Representatives.
  I am absolutely convinced, as I stand here, that we will have the 
opportunity to resolve this issue in favor of the concept underlying 
the Democratic bill, a concept which as been supported by doctors, 
nurses, by children's advocates, women's advocates, and advocates for 
the disabled: that when doctors and patients make a medical judgment, 
patients will get the type of health care they have actually paid for 
and not be prevented from getting the best health care.
  I am absolutely convinced that is a concept that will be accepted. It 
was not accepted during this debate. Others will have a different 
judgment on it. I believe that is inevitable. We have seen other 
battles where we have seen the inevitability come to pass. I am 
convinced of it.
  I, for one, think this has been an enormously constructive and 
productive debate these last 4 days. Quite frankly, as one who has been 
fortunate enough to be involved in this debate, rarely have I seen--at 
least on our side--so much involvement by the Members, and their 
participation, their knowledge, their awareness and the wealth of 
experience that was brought to illuminate so many of these issues. I 
think that has to be to the benefit of the American people.
  I am not discouraged. I regret that we were not successful, but we 
will continue this battle and we will be successful.
  In conclusion, I do thank the majority leader and thank the Senator 
from Oklahoma, for they have responsibilities as leaders of this 
institution. I thank them for the way in which this debate has been 
developed and the structures for the discussion that have been afforded 
to us over the past days.
  I thank in particular our leader, the Democratic leader, Senator 
Daschle. I thank Senator Daschle on behalf of those of us who feel 
strongly about this issue--it is not just, I know, those of us on this 
side. I am sure those on the other side also feel strongly but have 
come to different conclusions than those we came to about this issue. 
We would not have had the debate this week if it had not been for Tom 
Daschle of South Dakota. There are no ifs, ands or buts. This has been, 
I think, an extraordinary service to this institution, and I think it 
has been an extraordinary service to the patients and the medical 
professionals in this country.
  I thank my colleague and friend, Senator Reid, who was so much a part 
of the leadership, and of such help and assistance during this time.
  I thank the members of our committee. I serve on a number of 
committees and have been proud to serve on all of them. But my heart is 
with the Health, Education, Labor and Pensions Committee. All of our 
members were extremely active. Senator Dodd; Senator Harkin; Senator 
Mikulski, who has been so involved in health care issues; Senator 
Bingaman; Senator Wellstone; Senator Murray; Senator Reed--every one of 
these Senators has been so engaged and involved in this issue.
  I pay tribute to our chairman, Senator Jeffords, for his courtesies, 
and Dr. Frist, for his strong dedication to trying to find ways--which 
we were unable to on this measure. But I have respect and affection for 
the members.
  I also thank so many others who were not on the committee who were so 
involved and engaged, particularly those on our side, although there 
were others on the other side.
  I also wish to thank the many staff people who have worked on this 
issue this week and for the past two years. From my staff, David Nexon, 
my long time chief health advisor, Cybele Bjorklund, my deputy health 
advisor, who worked so ably on this legislation, Michael Myers, my 
staff director, for his leadership on this legislation, Will Keyser, 
Jim Manley, Connie Garner, Melody Barnes, Carrie Coberly, Matt 
Ferraguto, Jacqueline Gran, Jon Press, Ellen Gadbois, Stacey Sachs, 
Theresa Wizemann, Webster Crowley, Andrew Ellner, Paul Frey, Arlan 
Fuller, Sharon Merkin, Dan Munoz, Malini Patel, and Kate Rooney.
  From Senator Daschle's staff, Bill Corr, Laura Petrou, Ranit 
Schmelzer, Mark Patterson, Jane Loewenson, and Elizabeth Hargraves; the 
staff of the Department of Health and Human Services and the Department 
of Labor; the staff of the Democratic Policy Committee; and the staffs 
of so many other Senators that have played a critical role during this 
  I think, as always, their involvement and their support has been 
invaluable, permitting us to have a level of discussion which I think 
was worthy of this institution.
  Finally, I want to say on this issue, as all of us would understand 
in our responsibilities, that we will be back. We may have a setback 
tonight, but I, for one, do not believe this is a setback in this 
issue. We will be back to fight, and fight, and fight again, and I 
believe ultimately to prevail.
  I thank the Chair.
  Mr. BYRD. Mr. President, I will vote against the Republican 
alternative to the Patients' Bill of Rights. All week long, I have 
supported amendments that would have strengthened the Republican bill 
and would have provided all privately insured Americans with meaningful 
patient protections. At each step along the way, the Democratic 
amendments were rejected.
  There are major deficiencies in the Republican bill. The bill that 
will be passed by the majority covers only 48 million Americans who 
receive their coverage through self-funded plans. What about the 113 
million that their bill leaves out? Don't those 113 million people 
deserve protections too? I believe that all 160 million Americans with 
private insurance deserve basic protections.
  Another important weakness in the Republican plan, Mr. President, is 
that it does not provide patients the opportunity to hold their health 
plans responsible under state law. If a health plan's decisions lead to 
the injury or death of a patient, the plan should not be shielded from 

[[Page S8603]]

  I regret that the Senate narrowly rejected the Robb amendment, which 
I cosponsored. This amendment would have provided women with important 
access to their obstetrician/gynecologist (ob/gyn). The Republican bill 
does not allow a woman to designate her ob/gyn as her primary care 
  Another major distinction between the bills is who makes medical 
decisions. Will it be the doctor or the insurance company? 
Unfortunately, the Republicans rejected our definition of medical 
necessity. Under our bill, plans could not deny benefits based on the 
insurance companies' definition of medical necessity instead of the 
doctors' definition.
  The Democratic version of managed care reform includes access to 
clinical trials for patients with life-threatening or serious 
illnesses. The Republican bill provides access to clinical trials only 
for those suffering from cancer. In addition, their provision applies 
solely to 48 million Americans. Their bill leaves too many seriously 
ill Americans without the hope that experimental therapies through 
clinical trials provide.
  I regret that the Senate has squandered this opportunity to enact a 
true Patients' Bill of Rights and provide important protections to all 
privately insured Americans. I feel I must vote against this bill that 
puts health plans' profits ahead of patients' well-being. I hope that 
we can revisit this issue one day and pass legislation that provides 
strong patient protections.
  The PRESIDING OFFICER. The assistant majority leader.
  Mr. NICKLES. Mr. President, I thank my colleague from Massachusetts 
for his statement, as well as Senator Reid. It has been a pleasure to 
work with both. This has been a very productive and fruitful debate. As 
a result, we ended up with a very good bill.
  I am going to call on several members of our task force who helped 
put this bill together and worked very hard, not just for a week, not 
just for this week but, frankly, for the last year and a half. We had 
countless meetings and a lot of people, a lot of staff, put in a lot of 
effort. This was an effort that we felt very strongly about because we 
wanted to improve the quality of health care without increasing costs 
and increasing the number of uninsured, and I think we have done it.
  Mr. McCONNELL. Mr. President, I come to the floor today to express my 
strong support for the Republican Patient's Bill of Rights Plus Act. As 
private health coverage has shifted toward coordinated care, many 
consumers are concerned that their health plan focuses more on cost 
than on quality. Many consumers fear that they might be denied the 
health care they need. To respond to these concerns, both parties have 
developed patient protection legislation.
  Our colleagues Senators Daschle and Kennedy have offered a proposal 
which I believe takes the wrong direction. Their bill tries to impose a 
one-size-fits-all solution in a manner which would override many of the 
reforms our states have decided--or, equally important, decided not 
to--enact. Their proposal includes liability provisions which will 
dramatically increase premiums and further expand the medical 
malpractice industry in this country. In fact, their bill should be 
called the ``Lawyers' Right to Bill'' not the Patients' Bill of Rights 
and the tragedy of their lawsuit saturated approach is that it would 
make health insurance unaffordable to 1.8 million Americans--including 
30,000 Kentuckians.
  I am pleased to say that we have crafted a better proposal for 
protecting America's families which is embodied in the Patient's Bill 
of Rights Plus Act. The Patient's Bill of Rights Plus Act provides 
needed protections for Americans in a way which won't increase the 
number of uninsured Americans by driving up health care costs.
  The Patients' Bill of Rights Plus Act guarantees access to emergency 
care. It requires plans to pay for emergency medical screening and 
stabilization under a ``prudent layperson'' standard. If we pass this 
legislation, we will never again have to hear heart-wrenching stories 
about families with desperately ill children who bypass the nearest 
hospital in order to make it to a hospital which is in their plan's 
network. Under our plan, if you have what a normal person would 
consider an emergency, you can go to the nearest hospital, period.
  The Patients' Bill of Rights Plus Act would provide direct access to 
pediatricians and OB/GYN's. This common-sense provision would allow 
parents to take their children directly to one of the plan's 
pediatricians without having to get a referral from their family's 
primary care physician. Similarly our legislation would allow women to 
go directly to a participating OB/GYN, without having to get a referral 
from their primary care physician.
  The Patients' Bill of Rights Plus Act also bans ``gag clauses''. Gag 
clauses are contractual agreements between a doctor and a managed care 
organization that restrict the doctor's ability to discuss freely with 
the patient information about the patient's diagnosis, medical care, 
and treatment options. Our legislation would put an end to this 
practice. I believe a doctor should be able to discuss treatment 
alternatives with a patient and provide the patient with their best 
medical advice, regardless of whether or not those treatment options 
are covered by the health plan.
  The Patient's Bill of Rights Plus Act also provides strong, 
independent external appeals procedures to ensure that patients receive 
the care they need. Many Americans are concerned that their health plan 
can deny them care. If a plan denies a treatment on the basis that it 
is experimental or not medically necessary, a patient can appeal that 
decision. The reviewer must be an independent, medical expert with 
expertise in the diagnosis and treatment of the condition under review. 
In routine reviews, the independent reviewer must make a decision 
within 30 days, but in urgent cases, they must do so in 72 hours. As 
opposed to the Kennedy plan which mandates a broad, one-size-fits-all 
definition of medical necessity, our plan allows those decisions to be 
made on a case by case basis by an independent external medical doctor. 
Unlike the Kennedy bill which encourages lawsuits, the Patient's Bill 
of Rights Plus Act focuses instead on giving patients the care they 
need. After all, when you're sick, don't you really need an appointment 
with your doctor, not your lawyer?
  The most troubling aspect of Senator Kennedy's legislation is that it 
will further swell the numbers of uninsured Americans.
  The Kennedy plan drives up health care costs and makes health 
insurance unaffordable for more Americans. According to the very 
conservative estimates of the Congressional Budget Office, the Kennedy 
Patients Bill of Rights would increase insurance premiums 6.1 percent 
(Source: Congressional Budget Office Report on S.6, 4/23/99). This 
means that 1.8 million Americans would likely lose their health 
  In Kentucky, 30,095 people would likely lose their health insurance.
  In California, 271,927 people would likely lose their health 
  In New York, 118,091 people would likely lose their health insurance.
  In Minnesota, 36,315 people would likely lose their health insurance.
  Even if the Kennedy bill does not pass, it is expected that health 
insurance premiums will rise an average of seven percent next year 
(Source: Towers Perrins 1999 Health Care Cost Survey 1/99). At a time 
when premiums are rising well above the rate of inflation, do we really 
want to pass legislation which raise premiums even more? The answer is 
clearly no.
  Our Patients' Bill of Rights' Plus Act takes a better approach to the 
problem of the uninsured. While avoiding provisions which will 
drastically raise premiums, it includes important tax provisions to 
make insurance more affordable. Earlier this week we passed the Nickles 
Amendment which will allow self-employed individuals to deduct 100% of 
the cost of their health insurance. This is particularly important to 
the 124,000 of Kentucky's farmers, ministers, stay-at-home moms, and 
young entrepreneurs who are self-employed. According to a study by the 
Employee Benefits Research Initiative, nearly \1/2\ (43.6 percent) of 
all workers in the agriculture, forestry, and fishing sectors have no 
health insurance. By allowing the self-insured to fully deduct the 
costs of health insurance, we are taking an important step in reducing 
the numbers of uninsured.

[[Page S8604]]

  There are certainly significant differences between our two bills. 
However, no single issue distinguishes the two more than the question 
of liability. I believe we can and should find bi-partisan agreement on 
the important issues of providing emergency care, ensuring direct 
access to pediatricians and OB/GYN's, banning gag orders, deductibility 
of health insurance for the self-employed, and a whole myriad of issues 
except for one thing: The Kennedy bill insists on new powers to sue. 
Leafing with abandon through the yellow pages under the word 
``attorney'' is not what most Americans would call health care reform.
  Simply put, I believe that when you are sick, you need a doctor, not 
a lawyer. I am opposed to increasing litigation because it will drive 
up premiums, drive 1.8 million Americans out of the health insurance 
market, prevent millions more uninsured from being able to purchase 
insurance, and aggravate an already seriously flawed medical 
malpractice system.
  If 1.8 million Americans lose their health insurance, 189,000 fewer 
women will have access to mamograms and 238,000 fewer women will have 
access to pelvic exams. I have a question for the supporters of Sen. 
Kennedy's bill. What kind of reform makes preventative services less 
available? What kind of reform is that?
  As if driving 1.8 million Americans out of the health insurance 
market wasn't reason enough to oppose the Kennedy bill, I am also 
strongly opposed to expanding liability because it will exacerbate the 
problems in our already flawed medical malpractice system. Typically 
these lawsuits drag on for an average of 33 months. Even if at the end 
of this 33 months, only 43 cents of every dollar spent on medical 
liability actually reaches the victims of malpractice (Source: RAND 
Corporation, 1985). Most of the rest of the judgement goes to the 
lawyers. That's right, over half of the injured person's damages are 
grabbed by the lawyers. Why would anyone want to expand this flawed 
system which is so heavily skewed in favor of the trial lawyers?
  The Washington Post said last March that ``the threat of litigation 
is the wrong way to enforce the rational decision making that everyone 
claims to have as a goal'' (Source: Washington Post 3/16/99). More 
recently the Post said that the Senate should enact an external appeals 
process ``before subjecting an even greater share of medical practice 
to the vagaries of litigation'' (Source: Washington Post 7/13/99). The 
Los Angeles Times Editorial page called expanding liability to health 
plans ``bad medicine for both employees and employers'' and stated that 
``The key to fixing ERISA is not in radical measures like more 
lawsuits. . .'' (Source: Los Angeles Times 2/29/98)
  Mr, President, I have always felt that this debate is about improving 
private health insurance in America. That the debate was about 
providing better care, for more Americans not less.
  We can and we should guarantee access to emergency services.
  We can and we should ensure direct access to pediatricians.
  We can and we should ban gag clauses.
  We can and we should provide an independent external appeals process.
  We can and we should provide full deductibility for the self-
  By voting for the Patients' Bill of Rights Plus Act, we will have 
taken all of these important steps and more. However, what we must not 
do is take action which will deprive 1.8 million Americans of health 
insurance. Mr. President, I urge my colleagues to vote for this common-
sense health care reform.
  Mr. FRIST. Mr. President, I rise to address a point of some 
contention on the floor over the past two days. Two days ago, I twice 
quoted from Dr. Robert Yelverton, Chairman of the Primary Care 
Committee of the American College of Obstetricians and Gynecologists. 
The precise quotes were as follows: First, ``The vast majority of OB/
GYNs in this country have opted to remain as specialists rather than 
act as primary care physicians,'' and second, ``None of us could really 
qualify as primary care physicians under most of the plans, and most 
OB/GYN's would have to go back to school for a year or more to do so.''
  These quotes, which were taken from the New York Times, on June 13, 
1999, were entirely accurate as reported by the Times. I ask unanimous 
consent to have printed in the Record the New York Times article.
  There being no objection, the material was ordered to be printed in 
the Record as follows:

                [From the New York Times, June 13, 1999]

        Beyond the Horror Stories, Good News About Managed Care

                          By Larry Katzenstein

       Most health plans these days are some form of managed care. 
     And for most families, it is the mother who decide which one 
     to use.
       ``Women visit doctors more than men, and in a family 
     situation, they may be the ones who have primary 
     responsibility for taking children to the doctor,'' said 
     Elizabeth McGlynn, the director of the Center for Research on 
     Quality in Health Care at the Rand Corporation in Santa 
     Monica, Calif.
       Wendy Schoales, a homemaker in Everett, Wash., offered 
     another reason: ``We're more picky.''
       Mrs. Schoales's husband works or the Boeing Company, which, 
     like many large employers, offers several health-plan 
     options. Several years ago, when she switched her family from 
     traditional fee-for-service care to managed care to cut 
     expenses, an important motivation was her being able to 
     continue to use the obstetrician and gynecologist who had 
     delivered her first child, Ashlyn. ``When you find a doctor 
     you like, you want to stick with him, especially when it 
     comes to an ob-gyn,'' she said.
       Two years ago, Mrs. Schoales's second child, Gavin, was 
     born under managed care but with the same obstetrician and 
     gynecologist. The care was just as good as it had been with 
     Ashlyn, she said, and the cost was significantly lower. 
     ``They charged us just one copayment for the whole maternity 
     experience,'' she said.
       For the same reasons, Katherine Davidge of Newton, Mass., 
     also fared well under managed care during the births of her 
     two children. Her experience in getting her managed-care plan 
     to cover treatment for depression, on the other hand, was an 
     exercise in exasperation.
       Ms. Davidge's plan subcontracts mental-health services to 
     another company, a common practice in managed care. ``I'd 
     call this company and ask, `Is Dr. X covered?' '' she said, 
     ``And they'd say no. And then the same thing would happen for 
     Dr. Y and Dr. Z. So, then I asked for a list of practitioners 
     I could see, and it was really bizarre because they just 
     wouldn't give us the list. They said they typically don't 
     give it out.''
       After several months of phone calls and letters, Mr. 
     Davidge said, she received a list. ``It was so small that it 
     was almost impossible for me to find somebody that I knew 
     anything about,'' she said. ``So I gave up.''
       Managed care would seem tailor-made for women. It provides 
     a coordinated system of care that makes preventive services 
     readily available--and women use preventive measures at twice 
     the rate men do. Health-maintenance organizations and other 
     managed-care plans remind members to come in for checkups. 
     With a primary-care doctor to facilitate matters, plans are 
     supposed to help route patients to  the most appropriate 
     specialist for their ailments--and all this for a more 
     affordable premium and limited out-of-pocket expenses.
       ``One reason women's preventive services have always been 
     such a leading issue in managed care is that two of the tests 
     it emphasizes, Pap smears and mammograms, provide the best 
     evidence that preventive testing saves lives,'' said Dr. 
     Karen Scott Collins, an assistant vice president of The 
     Commonwealth Fund, a philanthropic foundation in New York 
     City that supports research on health and social policy.
       Yet it is the darker side of managed care that has received 
     Most of the attention in recent years--the follies and 
     tragedies caused by restricted choice of physicians, barriers 
     to needed care, delays in service, limitations on care and a 
     zeal for cost-cutting.
       Women, especially, could be excused for thinking that 
     managed care is bad for their health, because some of the 
     most highly publicized outrages attributed to health-
     management organizations, or H.M.O.'s, and other managed-care 
     plans have involved women's issues: drive-by mastectomies, 
     drive-by deliveries, coverage denied for what were regarded 
     as promising breast-cancer treatments and refusal to let 
     obstetricians and gynecologists be primary-care physicians.
       The abuses attributed to managed care have caused a 
     backlash in the form of legislation to make it more 
     accountable, particularly to women. This includes the 
     Newborns' and Mothers' Health Protection Act of 1996, which 
     requires a minimum hospital stay of 48 hours after a normal 
     vaginal birth and 96 hours after a Caesarean section, unless 
     the mother and physician agree to an earlier discharge. Laws 
     in many states mandate that women in managed care be given 
     direct access to an obstetrician and gynecologist without a 
     referral from their primary-care physician, and a Patients' 
     Bill of rights Act pending in Congress would make choosing an 
     obstetrician and gynecologist for primary care the law of the 
       Despite the mixed reviews that managed care gets from 
     patients and physicians, findings from a 1998 Commonwealth 
     Fund survey, announced last month, suggest that women in 
     managed-care plans fare better in some important ways than 
     those who receive traditional medical care.
       ``The joke about managed care is that it doesn't manage and 
     it doesn't care,'' said

[[Page S8605]]

     Humphrey Taylor, the chairman of Louis Harris & Associates of 
     New York City, which conducted the survey. ``But the findings 
     from this survey suggest that managed care is serving women 
     at least as well as fee-for-service medicine, and certainly 
     better than some of the managed-care horror stories would 
       The survey, conducted by telephone, involved 1,140 women 
     with managed care and 351 women with traditional fee-for-
     service care, all of them younger than 65. Among the key 
     findings were:
       Women with managed care were more likely to identify a 
     particular doctor as their regular source of care (87 percent 
     of them did so versus 78 percent of those with traditional 
       Women with managed care were more likely to say that their 
     health plan sends them reminders for preventive care (27 
     percent versus 18 percent).
       Women with managed care were more likely to have seen an 
     obstetrician and gynecologist as their primary care physician 
     (66 percent versus 61 percent).
       Women with managed care were more likely to have received a 
     Pap smear in the last three years (74 percent versus 67 
       Among women 50 and older, those with managed care were more 
     likely to have received colon-cancer screening (29 percent 
     versus 20 percent) and to have talked with their doctor about 
     hormone-replacement therapy (56 percent versus 50 percent).
       One in five women under both types of coverage reported 
     problems in gaining access to health care, like obtaining an 
     expensive prescription or seeing a specialist.
       But the survey has not made believers of many physicians 
     who specialize in women's health. ``As a gynecologist, my 
     biggest problem with managed care is the severe 
     restrictions that have been placed on my ability to make 
     independent decisions on how to treat disorders that might 
     require surgery,'' said Dr. Robert Yelverton of Tampa, 
     Fla., who estimated that 80 percent of his patients have 
     managed care.
       Dr. Yelverton said that one managed-care company requires a 
     woman who is bleeding heavily from excessive menstrual flow 
     and has excessive pain with her periods to be confirmed 
     anemic and to be on iron supplements for three months without 
     improvement before being allowed to have a hysterectomy.
       That requirement ``is based on the premise that too many 
     hysterectomies are done,'' said Dr. Yelverton, who said he 
     believes that most obstetricians and gynecologists would 
     first try hormonal treatment rather than surgery for such 
     problems. ``But when that doesn't work, we have patients who 
     are miserable,'' he said.
       Dr. Yelverton, the chairman of the American College of 
     Obstetricians and Gynecologists' primary care committee, said 
     that one of the most highly publicized improvements is 
     managed care, allowing a woman to see an obstetrician and 
     gynecologist as her primary-care provider, ``hasn't worked 
       ``The vast majority of ob-gyns in this country have opted 
     to remain as specialists rather than act as primary-care 
     physicians,'' he said, attributing this to the stringent 
     standards that managed-care plans have set for primary-care 
     providers. ``None of us could really qualify as primary-care 
     physicians under most of the plans,'' he said. ``And most ob-
     gyns would have to go back to school for a year or so to do 
       Health care experts consider the measures assessed in the 
     Commonwealth Fund survey--having a regular doctor or getting 
     regular Pap smears--to be good indicators of quality of care. 
     But the most crucial measures for evaluating any type of care 
     are the results: diagnosing breast cancer at an early stage, 
     for example. A study published last February in the Journal 
     of the American Medical Association looked at this result and 
     found that in this case, too, managed care had the edge over 
     traditional care.
       The study involved nearly 22,000 women over age 65 whose 
     breast cancers were diagnosed between 1988 and 1993. 
     Researchers found that women enrolled in Medicare H.M.O.'s 
     were generally more likely than fee-for-service patients to 
     have had their cancers diagnosed at an earlier stage. And 
     among women who underwent breast-conserving surgery, known as 
     lumpectomy, the H.M.O. enrollees were significantly more 
     likely to have received radiation, the medically recommended 
     accompanying treatment.
       So, where does that leave matters? ``With three-quarters of 
     all insured women now in some type of managed-care plan, the 
     time has come to shift the focus from whether managed care is 
     better or worse than fee-for-service to making sure that 
     women are receiving quality health care in whatever type of 
     managed-care plan they belong to,'' said Dr. Collins, the 
     Commonwealth Fund executive.
       She and other health-care experts applaud a current 
     voluntary program in which managed-care plans are graded on 
     more than 50 measures, several pertaining to women's health.
       This set of measures is known as the Health Plan Employer 
     Data and Information Set. It is administered by the National 
     Committee for Quality Assurance, a private, nonprofit 
     organization also involved in accrediting managed-care plans. 
     The committee's most recent compilation of information, known 
     as Quality Compass 1998, includes Health Plan Employer Data 
     scores and consumer-satisfaction data submitted by 447 
     commercial managed-care health plans that collectively cover 
     60 million Americans.
       Some managed-care plans do not participate in the program. 
     Others do but do not allow their scores to be publicly 
     reported. But several large employers, including Xerox and 
     General Motors, strongly encourage managed-care plans under 
     contract with them to make their scores public. And some 
     states, including New York, New Jersey and Maryland, require 
     plans to release this information. Working with the 
     committee, the states issue annual managed-care report cards 
     through pamphlets and on their Web sites. The 
     www.health.state.ny.us site has information for New Yorkers.
       Regarding mammography screening rates, for example, New 
     York residents can learn the names of the seven health 
     plans--CDPHP, CHP/Kaiser, Finger Lakes, Health Care Plan, 
     Healthsource HMO, HMO CNY and Preferred Care--that 
     performed significantly better than the statewide average 
     during 1996 and 1997, and the five health plans--CIGNA 
     Health Care, MVP, Physicians Health Service, Prudential 
     Health Care Plan and United Healthcare-NYC--that performed 
     significantly worse.
       Some physicians believe that these efforts are having a 
     positive effect. One is Dr. Jeffrey Hankoff, a family 
     physician in Santa Barbara, Calif., who takes care of a large 
     managed-care population and is the medical director of an 
     independent practice association, or I.P.A., a group of about 
     30 physicians who collectively negotiate contracts with 
     managed-care plans.
       ``One thing managed care has brought to the table is that 
     quality is the major focus and not a token effort,'' Dr. 
     Hankoff said. ``Every time a patient writes a letter of 
     complaint, our I.P.A. has a committee that reviews it. We're 
     really attempting to make sure that people are getting the 
     care they're supposed to be getting. In a managed-care 
     operation, that's monitored all the time because the plans 
     demand it and the Government demands it of the plans. It's 
     something that managed care really hasn't received credit 
       Look at the Stats, Talk to Friends
       Here are steps that women can take for choosing a high-
     quality managed-care plan:
       Ask your employer's benefits department if its plans make 
     their Health Plan Employer Date and Information Set (Hedis) 
     scores public, and ask to see them. ``You should prefer a 
     plan that's willing to show its Hedis numbers,'' said 
     Elizabeth McGlynn of the Rand Corporation in Santa Monica, 
       Find out whether a plan is fully accredited by the National 
     Committee for Quality Assurance, and reject plans that have 
     applied for accreditation and failed. Accreditation provides 
     assurance that a plan has a quality-improvement program. 
     Accreditation information for most plans is available on the 
     committee's Web site (www.ncqa.org) or by calling (888) 275-
       Ask if the plan offers a specific program for women's 
     health, has it own medical director for women's health, or 
     has a network of providers that includes a women's health 
     center. Then try to find out if they're more than gimmicks.
       ``There are certainly some issues of women's health that 
     have been picked up by managed-care organizations purely for 
     advertising purposes, to attract women,'' said Mark Chassin, 
     chairman of the department of health policy at Mount Sinai 
     School of Medicine in New York City. ``But it has been 
     difficult for women to get customized or gender-based advice 
     about important treatment issues such as heart disease, for 
     example, where women have different risk factors from men and 
     need to be managed differently and to consult with 
     specialists who understand those differences.''
       Talk to people in the plan. ``Word of mouth is probably 
     underestimated as a good indicator of quality,'' said Donald 
     Berwick, who directs the Institute for Health Care 
     Improvement in Boston.
       Consider the doctors. ``The most important aspect of 
     quality in managed care is the provider you choose rather 
     than the plan,'' said David Blumenthal, director of the 
     Institute for Health Policy at Massachusetts General Hospital 
     and Partners Health System in Boston. Because doctors belong 
     to an average of eight plans, ``in most communities right 
     now, most managed-care companies include most doctors in that 
     community, so you can get almost any doctor on any plan,'' 
     Dr. Blumenthal noted. ``The quality variations among plans 
     probably mostly reflect the different doctors.''
       For many people, the worst aspect of managed care is having 
     to stop seeing a doctor who is not in the plan. So before 
     joining a plan, find out if your doctor participates and, if 
     not, what it will cost if you continue seeing that doctor.
       Ask whether the plan covers prescription drugs. This is 
     especially important for women taking hormone replacement 
     therapy or oral contraceptives.
        If you have children, ask if the plan provides baby-
     sitting or has provisions for combining child and adult 
  Mr. FRIST. Unfortunately, before introducing these statements, I 
apparently misspoke and said, ``Let me share with Members what one 
person told me.'' I should have said, ``As Dr. Yelverton was quoted in 
the New York Times as stating.'' So, I wish to clarify the Record.
  Dr. Yelverton has taken offense at my use of his quotes. In fact, he 
contends that I ``misused'' his quotes. At

[[Page S8606]]

this time, Mr. President, I ask unanimous consent to have printed a 
letter from Dr. Ralph Hale, with an attached memo from Dr. Yelverton, 
into the Record, so that his views may be clear.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                           The American College of

                              Obstetricians and Gynecologists,

                                    Washington, DC, July 14, 1999.
     Hon. Bill Frist,
     Washington, DC.
       Dear Senator Frist: As Executive Vice President of the 
     American College of Obstetrics and Gynecologists (ACOG), I 
     feel it necessary to clarify ACOG's position on the Robb/
     Murray amendment to allow women in managed care plans direct 
     access to ob-gyn care. I've also attached a memo from Dr. 
     Robert Yelverton, Chairman of ACOG's Primary Care Committee, 
     correcting your misuse of his statements in a June 13 New 
     York Times article.
       ACOG and Dr. Yelverton fully support efforts in Congress, 
     including the Robb/Murray amendment, which would enable ob-
     gyns to be designated as primary care providers. A recent 
     ACOG/Princeton Survey Research Associates survey found that 
     nearly one-third of all ob-gyns in managed care plans are 
     denied the opportunity to be designated as primary care 
     physicians. Ob-gyns are often the only health care provider 
     many women see throughout their adult lives and are best 
     suited to understand and evaluate the health care needs of 
     their patients. While not all ob-gyns may choose to accept a 
     PCP designation, all ob-gyns should have the opportunity to 
     be designated as a woman's PCP under managed care.
       We also strongly endorse the Robb/Murray amendment's 
     provision that would require managed care plans to allow 
     women direct access to the full array of covered ob-gyn 
     services provided under the plan.
       While the amendment failed yesterday on a 48 to 52 vote, we 
     are hopeful the Senate will take up this important issue 
     again. Dr. Yelverton and I urge you to vote in favor of these 
     important policies.
                                              Ralph W. Hale, M.D.,
     Executive Vice President.

                                        Tampa Bay Women's Care

                                         Tampa, FL, July 13, 1999.
     To: Lucia DiVenere, ACOG Government Relations.
     From: Robert W. Yelverton, M.D., Chairman, Primary Care 

       I received your fax tonight and offer the following in 
       I have never spoken directly to Senator Bill Frist (R-TN) 
     or any member of his staff on the subject of OB/GYNs as 
     primary care physicians or on any other subject. The quote 
     that Senator Frist attributed to me on the floor of the 
     Senate today came from an article in the June 13, 1999, 
     edition of the New York Times. The article may be viewed on 
     the New York Times website (go to www.nytimes.com, then click 
     on Health and Science). I was contacted by the article's 
     author, Larry Katzenstein, and asked to comment on the impact 
     of managed care on women's healthcare in this country. In my 
     interview with Mr. Katzenstein, I discussed ``barriers'' that 
     managed care organizations have raised against the efforts of 
     OB/GYNs to become primary care physicians. The quote 
     attributed to me by Senator Frist was from a non-quote in 
     this article. I told Mr. Katzenstein that some managed care 
     organizations have placed barriers consisting of such 
     stringent (not ``high,'' as Senator Frist stated) standards 
     for their qualifications as primary care physicians that most 
     OB/GYNs would not be able to meet them without further 
       One objective of my comments was to demonstrate that the 
     College's interests were to allow OB/GYNs to provide women's 
     healthcare to their patients unimpeded by the cumbersome 
     requirements of managed care referral systems. Mr. 
     Katzenstein's article did not emphasize to the degree it 
     should have that these were barriers to OB/GYNs being 
     designated primary care physicians--not ``high standards''--
     as has been discussed repeatedly in meetings of the Primary 
     Care Committee. I went on to say to Mr. Katzenstein that the 
     qualification requirements that some managed care 
     organizations impose on OB/GYNs in certain instances exceeded 
     even those required of family physicians. He chose not to 
     include that statement in his article.
       Senator Frist's misuse of my statement in support of his 
     position that OB/GYNs could not act as primary care 
     physicians because of the ``high standards'' that managed 
     care organizations set for primary care physicians, is 
     regrettably misleading, to say the least, and does an 
     injustice to the true intent of my statements.
       I personally supported then and I support now the amendment 
     sponsored by ACOG to allow OB/GYNs to act as primary care 
     physicians and to allow direct access for women's healthcare 
     and did, in fact, spend a portion of this very afternoon e-
     mailing my senators and encouraging them to vote in support 
     of the amendment.
       Please contact me at (813) 269-7752 after 9:00 a.m. 
     tomorrow (Wednesday). I will be glad to discuss this matter 
     with you at that time and will support any effort that you 
     want to undertake to clarify this issue now on the floor of 
     the Senate.

  Mr. FRIST. The gist of Dr. Yelverton's complaint is that he was 
informed that I used his quotes to oppose an amendment which sought to 
allow OB/GYNs to be treated as primary care physicians. Dr. Yelverton 
supports allowing OB/GYNs to serve as primary care physicians and he 
supports ``direct access for women's healthcare.'' My position is that 
we should not be confusing the issue and saying that OB/GYNs--
specialists--are ``primary care physicians'' and thus have the implied 
responsibility of serving as overall gatekeepers for insurance plans. 
Instead, I believe we should insure that women have direct access to 
OB/GYNs for obstetrical and gynecological care without going through a 
gatekeeper. In that spirit, I used Dr. Yelverton's reported quotes.
  I continue to believe that our task is to see that women can have 
direct unimpeded access to OB/GYNs. We will do that, without saying 
that OB/GYNs must be designated as ``primary care physicians'' who are 
responsible for treating all aspects of the patient's health needs, 
including ear infections and the like. I sincerely believe that direct 
access to OB/GYNs is the issue, not whether we label OB/GYNs as 
``primary care physicians.''
  Mr. President, I yield the floor.
  Mr. DeWINE. Mr. President, as debate draws to a close on managed care 
reform, I want to talk about a few of the key provisions that I 
strongly support in the comprehensive legislation developed by the 
Republican Health Care Task Force and my colleagues on the Senate 
Health Committee.
  All throughout the process of developing responsible managed care 
reform legislation, I have shared the same overall policy goal held by 
most of my colleagues: to reform the managed care system without 
reducing quality, without increasing cost and without adding to the 
ranks of Americans who cannot afford health insurance. These are 
important issues for individuals and families.
  Just as important to them, and to me, is the impact of managed care 
on the quality of health care provided to children. That issue, perhaps 
more than any other, governed how I examined and worked on this very 
important legislation.
  Working with my friend and colleague from Tennessee, Senator Bill 
Frist, I worked to ensure that the bill approved earlier this year by 
the Senate Health Committee protected the interests of families with 
children. The bill approved by the Committee and included in the Task 
Force bill provides for direct access to pediatricians. For any family, 
this is common sense. Pediatricians are general practitioners for 
children. Why should parents have to take their child to a primary care 
physician in order to be given permission to have the child see a 
pediatrician? This ``gatekeeping'' role is just not necessary.
  That's why Senator Frist and I worked to include language in the 
Committee-passed bill that lets parents bypass the gatekeeper. Under 
this bill, parents can take their child straight to the pediatrician. 
The Task Force bill also includes this language.
  The larger debate concerns pediatric specialists. My view on this, 
based, I might add, on considerable personal experience, is that 
children are not simply a smaller version of adults. Fortunately, for 
the most part, children are proportionately healthier than adults. This 
means that for the small number of children who suffer from illnesses 
and conditions, they are the exception to the rule. To a parent who 
loves them, however, this is no consolation. Not only is their child 
suffering, but treatment can also be extremely expensive.
  Children who suffer from cancer, to take one example, should be able 
to see a pediatric oncologist, not an oncologist who was trained to 
treat adults. That is why Senator Frist and I worked to include in the 
Committee-approved bill an amendment that would require the 
practitioner, facility or center to have, and I quote from our 
amendment, ``adequate expertise (including age-appropriate expertise) 
through appropriate training and experience.'' By requiring age-
appropriate expertise, we are saying that a child will see a pediatric 
specialist and an elderly patient will see a geriatric specialist. We 
are ensuring that the most vulnerable people--the youngest and

[[Page S8607]]

the oldest--within our population are referred to the specialists who 
are trained to treat their particular age group. We have also clarified 
this language to ensure ``timely'' access to such specialty care.
  Mr. President, let's not lose sight of our bottom line goal: to 
ensure quality health care without compromising access to care. We 
already have 43 million Americans who are without any health care 
coverage. Excessive mandates on the quality of care will only drive up 
the cost of providing care, and could price health care out of the 
range of affordability. Our legislative efforts must not add to the 
uninsured. Mr. President, employer-provided health insurance is 
strictly voluntary--employers do not have to offer health insurance to 
their employees. So, we are walking a fine line between ensuring that 
our nation's health care quality remains high, while still keeping such 
care affordable.
  In my home state of Ohio alone, 1.3 million of 11 million Ohioans are 
uninsured--they have no health care coverage at all. Worse still, in 
Ohio we have 305,000 children who have no health insurance coverage. 
With health care costs estimated to increase by 7-8 percent due to 
inflation alone, it is clear that we should not add to this cost 
  On this score, there is serious cause for concern. A Lewin Group 
study found that for every one percent rise in premiums, 300,000 more 
people become uninsured. The Congressional Budget Office (CBO) 
estimated that the Daschle-Kennedy Patients' Bill of Rights bill would 
increase health care premiums by 6.1 percent. That means an additional 
1.8 million Americans would lose health insurance if that particular 
bill becomes law. Based on data provided by the CBO, that bill would 
add $355 each year to the average worker's health care premium. If that 
is not enough to drive Americans to the ranks of the uninsured, it will 
certainly add to the cost of living for American families.
  I support the Task Force legislation, which CBO estimated would raise 
premiums by only 0.8 percent--that's eight-tenths of one percent. This 
legislation also would provide direct access to pediatricians and 
access to specialty care. This legislation would provide for an 
independent external review process for all adverse coverage decisions 
that are based on a lack of medical necessity or investigational or 
experimental nature of the treatment. This process will better protect 
everyone, including children and the elderly, because it would ensure 
that the independent external reviewer assigned to review an adverse 
coverage determination has expertise (including age-appropriate 
expertise) in the diagnosis or treatment under review. All of these 
patient protections are included, while still keeping health care 
  I also support this legislation because it would help 317,000 Ohioans 
and close to 9 million other Americans nationwide who are self-
employed, but can only currently deduct 45 percent of their health care 
costs. The self-employed are mainly farmers, family-owned and operated 
businesses, and independent business people and entrepreneurs. They 
represent the heart and soul of our economy, but the tax code treats 
these first-class workers like second-class citizens.
  Mr. President, in the last several years, I have voted for 
legislation that would move this important tax break to full 
deductibility, which large corporations already have. By making such 
health care costs 100 percent deductible for the self-employed, we have 
the opportunity to reduce the ranks of the uninsured. We would be 
making health insurance more affordable, and more accessible for our 
country's self-employed workers and their families.
  These are just some of the provisions that would improve our managed 
care system--improvements that would not compromise affordability and 
accessibility. That is why I will vote for the Task Force bill later 
  Mr. WARNER. Mr. President, this week the United States Senate has 
been debating the provisions of two pieces of legislation dealing with 
increased patient protections for individuals with health plans. The 
bill that I support is called the ``Patients' Bill of Rights Plus 
Act.'' The other bill under consideration is called the ``Patients' 
Bill of Rights.'' Though these bill have similar names, they differ 
greatly in what they will in fact accomplish. After I briefly summarize 
the major components of these bills, it will be clear that the title of 
the ``Patients' Bill of Rights'' is a misnomer. It will also be clear 
that the ``Patients' Bill of Rights Plus Act'' is a bill that is truly 
focused on the American people. Through its major components, this bill 
will provide consumer protections, enhance health care quality, and 
increase access to healthcare.
  The Patients' Bill of Rights Plus Act contains a number of provisions 
that are key consumer protections. These provisions will greatly 
enhance the health plans of the 48 million Americans who are covered by 
self-funded group health plans governed exclusively by the Employee 
Retirement and Income Security Act (``ERISA'') and will enhance the 
quality of healthcare.
  First, the Patients' Bill of Rights Plus Act has emergency care 
protection for consumers. Currently, some plans and managed care 
organizations require prior authorization for emergency department 
services and/or have denied payment for emergency room services if it 
turns out the patient's situation does not meet the plan or 
organization's definition of an emergency. As a result, a participant 
may be liable for the entire emergency room bill. This potential large 
cost to the patient, and the uncertainty of coverage, has a significant 
negative impact on the patient seeking emergency room care, even if 
such a visit is reasonable. What a tragedy it would be for a person to 
die because that person refused to go to the emergency room out of fear 
that coverage would be denied later?
  The Patients' Bill of Rights Plus remedies this situation in a cost 
effective manner by requiring self-funded ERISA plans that provide 
coverage for emergency services to pay for emergency medical screening 
exams using a ``prudent layperson standard.'' The bill also requires 
these ERISA plans to provide coverage for any additional emergency care 
necessary to stabilize an emergency condition after a screening exam. 
Under the prudent layperson standard, an ERISA plan would be required 
to cover emergency medical screenings if a person with an average 
knowledge of health and medicine would expect that the absence of 
immediate medical attention would result in serious jeopardy to the 
individual's health. For example, let's say an individual is 
experiencing chest pain. Though I am not a doctor (my father was), I do 
know that chest pain could at least be a symptom of indigestion, heart 
burn, or a heart attack. If this individual went to the emergency room 
because of these chest pains, the prudent layperson standard would 
cover emergency screening, even if the heart pain turned out to be a 
case of indigestion.
  Another problem that I continuously hear people complaining about is 
gatekeepers. Many plans require patients to visit their primary care 
physicians and obtain a referral before they can visit a specialty 
doctor. These gatekeeping provisions can, in certain circumstances, 
drive up the cost of healthcare, and also make it more difficult for 
patients to access appropriate medical care. Moreover, certain 
gatekeeping provisions fail to recognize that women and children have 
unique health care needs. The Patients' Bill of Rights Plus Act also 
remedies these problems by requiring self-funded ERISA plans to provide 
direct access to routine obstetric and gynecological (``ob/gyn'') care 
and routine pediatric care without requiring prior authorization.
  Third, in addition to improving access to emergency care services, 
ob/gyns, and pediatricians, the Patients' Bill of Rights Plus Act 
ensures access to covered specialty care by requiring ERISA plans to 
provide patients access to covered speciality care within network, or, 
if necessary, through contractual arrangements with specialists outside 
the network. While this bill would not prevent a plan from requiring a 
referral by a patient's primary care physician in order to obtain some 
specialty services, the bill does require a plan to provide for an 
adequate number of visits to the specialist when the plan requires a 
  Fourth, the Patients' Bill of Rights Plus Act also addresses the 
situation of when a patient's physician under a

[[Page S8608]]

plan is terminated or is not renewed by the plan. This bill requires an 
ERISA plan to continue coverage with a patients' provider, if the 
patient is undergoing a course of treatment that includes institutional 
care, care for a terminal illness, or care starting from the second 
trimester of pregnancy. Coverage duration is for up to 90 days for a 
patient who is terminally ill or who is receiving institutional care. 
For a pregnant woman who is in her second or third trimester, coverage 
is required to be continued through the postpartum period.
  In addition to providing these key consumer protections to the 48 
million Americans who are covered by self-funded group health plans 
governed exclusively by ERISA, the Patients' Bill of Rights Plus Act 
creates appeals procedures for the 124 million Americans covered by 
both self-insured and fully-insured group health plans. These appeal 
provisions are essential protections to ensure that Americans receive 
the service and coverage they are entitled.
  Simply put, the Patients' Bill of Rights Plus Act requires an 
internal and external review process under which consumers can appeal a 
plan's denial of coverage. A plan must complete a consumer's internal 
appeal within 30 working days from the request for an appeal. An 
internal coverage appeal can also be expedited, meaning the 
determination must be made within 72 hours, in accordance with the 
medical exigencies of the case, after a request is received by the plan 
or issuer. In the event that the plan denies coverage because the 
treatment was not medically necessary or appropriate or was 
experimental, the internal review must be conducted by a physician who 
has appropriate expertise and who was not directly involved in the 
initial coverage decision.
  A consumer who is denied coverage and who loses an internal appeal 
still may have an avenue to pursue coverage through an external appeal. 
An external review is available when a plan has denied coverage based 
on lack of medical necessity and appropriateness and the amount 
involved exceeds a significant financial threshold or there is a 
significant risk of placing the life or health of the individual in 
jeopardy. Once an external review is requested, a plan must select a 
qualified external review entity, in accordance with the medical 
exigencies of the case. The plan must select the entity in an unbiased 
manner and the entity must be: (1) an independent external review 
entity licensed or credentialed by a State; (2) a State agency 
established for the purpose of conducting independent external review; 
(3) an entity under contract with the Federal Government to provide 
independent external review services; or (4) any other entity meeting 
criteria established by the Secretary of Labor.
  The external review entity then selects the independent expert to 
conduct the external review. This independent expert reviewer must have 
appropriate expertise and credentials, must have expertise in the 
diagnosis or treatment under review, must be of the same specialty as 
the treating physician when such an expert is reasonably available, and 
must not have certain affiliations with the case or any of the parties 
involved. This expert's job under the external review is to render an 
independent decision based on valid, relevant, scientific, and clinical 
evidence. This includes information from the treating physician, the 
patient's medical records, expert consensus, and peer-reviewed medical 
literature to assure that standards of care are reviewed in a manner 
that takes into account the unique needs of the patient.

  This internal and external review process is integral to ensuring 
that patients get the medical care they need. Again, the bill provides 
for an Independent medical judgment by a qualified and non-biased 
medical expert. This will protect against the possibility that a health 
plan might try to ``short change'' its consumers. Our bill is a 
responsible approach that will not drive up costs and cause more 
Americans to lose health insurance coverage.
  Sixth, the Patients' Bill of Rights Plus Act protects health 
insurance consumers against the use of a technological innovation that 
could prove costly to them. Scientists today believe that most people 
carry genes with certain characteristics that may place these people at 
risk for future diseases. Consequently, insurance companies could use 
this technology and charge higher premiums to those individuals who are 
genetically predisposed to certain diseases. The Patients' Bill of 
Rights Plus Act protects against this by prohibiting all group health 
plans and health insurance issuers from denying coverage, or adjusting 
premiums or rates based on ``predictive genetic information'' for the 
140 million Americans covered by both self-insured and fully insured 
group health plans and individual health insurance plans.
  Finally, this bill protects consumers and increases the quality of 
health care by protecting patient-provider communications. The 
communications are protected through the elimination of gag rules, 
which restrict physicians and other health care providers from 
discussing patient treatment options not covered by patients' plans. I 
believe in providing patients with the most information possible so 
that they can make informative healthcare decisions, in consultation 
with their health care provider. The gag rule prohibition in this bill 
will permit health care professionals to discuss treatment alternatives 
with patients and render good medical advice, regardless of whether the 
treatments or alternatives are covered benefits under the plan.
  Not only does the Patients' Bill of Rights Plus Act provide consumer 
protections and increase health care quality, this legislation also 
increases access to the health care system. First, this bill expands 
the use of Medical Savings Accounts (``MSA''). These accounts were 
created in 1994 but are currently only available for employees of firms 
with 50 or fewer employees. This bill expands MSA availability to all 
individuals. This bill also loosens some of the restrictions on 
Flexible Savings Accounts (``FSA''). An FSA is an account which an 
employee can deposit money into to cover healthcare costs that are not 
covered by the plan. Current law, however, provides that any money in 
the FSA that is not used by the end of the year is lost. This bill 
would allow workers to keep up to $500 of unused FSA funds in tax-
preferred accounts every year, giving those patients greater control 
over their health care. I have long been a supporter of giving 
Americans the ability to better control their own health care costs by 
purchasing special tax-preferred savings accounts for basic medical 
expenses. Finally, the Patients' Bill of Rights Plus Act expands access 
to health care by allowing self-employed Americans to deduct 100 
percent of health insurance expenses from their taxes. Combined, MSAs, 
FSAs, and the full deductibility of health care costs for the self-
employed will increase Americans flexibility in health care coverage 
options and decrease the number of uninsured.
  Mr. President, this is just a brief summary that highlights some of 
the major provisions of the Patients' Bill of Rights Plus Act. As I am 
sure you can see Mr. President, that this bill is truly a Patients' 
Bill of Rights. This bill provides consumers with a number of 
protections against health plans and increases accessibility to the 
health care system. Consequently, I am proud to be a cosponsor of this 
important piece of legislation.
  On the other hand, because I feel so strongly that we as a Congress 
must work toward increasing accessibility to the heath care system, I 
feel compelled to speak out against the so called ``Patients' Bill of 
Rights.'' This bill, by prescribing more mandates, more regulations, 
more bureaucracy, and more lawsuits, will certainly raise the costs of 
health care and close the access door to many Americans.
  Health care costs are already high in this country, and many 
Americans cannot afford health insurance. According to Dan Crippen, 
director of the Congressional Budget Office, there were approximately 
43 million Americans under the age of 65 that lacked health insurance 
coverage in 1997. As health care costs continue to rise, who do you 
think is going to pay for the increased cost? Well, I am fairly certain 
it will not be the insurance companies or the health care providers. 
Rather, increased costs will be passed on to the consumers through 
higher premiums and reduced benefits. That means the consumer will have 
to bear the cost by paying higher premiums for their health plans and 
receiving less benefits. Higher premiums for consumers

[[Page S8609]]

mean even more Americans will be unable to afford health insurance 
  Mr. President, I believe the United States Congress should pass a 
Patients' Bill of Rights that provides consumer protections and does 
not result in people losing access to the health care system. The 
``Patients' Bill of Rights'' does not achieve these objectives.
  The Congressional Budget Office has conducted a cost estimate of the 
``Patients' Bill of Rights.'' The original cost estimate of this bill 
was that it would increase premiums 6.1%. It is not difficult to 
understand that higher premiums are likely to result in some loss of 
health insurance coverage. If you increase costs, some people will not 
be able to afford health insurance. Americans should not have to choose 
between the basic necessities of life like food and shelter and health 
insurance. Mr. President, given the number of uninsured Americans and 
the prospect of increasing health care costs, the ``Patients' Bill of 
Rights,'' by increasing premiums by 6.1%, is simply irresponsible.
  Predicting the exact number of Americans that will be uninsured if 
the ``Patients' Bill of Rights'' becomes law is difficult. However, the 
numbers the experts keep telling me are that this bill will result in 
over 1 million Americans losing their health insurance coverage. Of 
this over 1 million Americans, an economic consulting firm estimates 
that this bill will cause over 34,700 Virginians to lose their health 
insurance. Let me reiterate this point Mr. President. The experts have 
been telling me that due to the 6.1% premium increase in the 
``Patients' Bill of Rights,'' over 1 million Americans and 
approximately 34,000 Virginians are likely to lose their health 
insurance. This, Mr. President, I cannot accept.
  Mr. President, legislation that will cause so many Americans and so 
many Virginians to lose health insurance coverage is not a true 
Patients' Bill of Rights; therefore, I am unable to support the 
inappropriately titled, ``Patients' Bill of Rights.'' On the other 
hand, the Patients' Bill of Rights Plus Act is a true Patients' Bill of 
Rights. The Patients' Bill of Rights Plus Act increases access to the 
health care system and provides key consumer protections. I am proud to 
be a cosponsor of this legislation, and I urge my colleagues on both 
sides of the aisle to support this true patient protection piece of 
  Mr. GRASSLEY. I commend the leadership, Senator Lott and Senator 
Nickles, and the minority leader, Senator Daschle, for coming to an 
agreement to bring this very important legislation, the Patients' Bill 
of Rights, to the Senate floor for debate. I know this is a politically 
charged issue, but I believe there is enough in common on both sides of 
the aisle to pass a good, strong, bipartisan bill. At the end of the 
day, we can have legislation that will provide patients with the 
necessary protections they want, and deserve, without driving up the 
cost of insurance so high that we add to the number of uninsured.
  Many of the provisions in the bills that have been introduced during 
this Congress and last Congress are similar to provisions I put forth 
in my Medicare patient bill of rights bill or S. 701, which was adopted 
as part of the Balanced Budget Act of 1997. The cornerstone of my 
Medicare legislation was an expedited appeals process with a strong 
independent external review procedure and user-friendly, comparative 
consumer information so Medicare enrollees could make informed choices 
about their health plan options. Although the Medicare program already 
had an external review process, there were problems with the timeliness 
of reviews, particularly in urgent situations where a patient's health 
was in jeopardy. My bill codified the appeals process to ensure that 
these situations would be rectified. Independent reviews would be 
completed in 72 hours when considered urgent and 30 days for non-urgent 
  My legislation also addressed another problem with the Medicare 
program. The program did not offer enrollees clear, concise, and 
detailed information about health plan choices and beneficiary rights 
in managed care. As more and more plans entered the Medicare market, it 
became increasingly clear that beneficiaries needed access to detailed, 
objective information about their options and about the protections 
they have under the Medicare program. S. 701 included new requirements 
for the program to provide enrollees comparative and user-friendly 
consumer information that became the foundation for the National 
Medicare Beneficiary Education program that is in existence today.
  In addition to the expedited appeals process and the consumer 
information program, S. 701 contained other items like prohibiting gag 
clauses in Medicare managed care contracts, offering a point-of-service 
option, and assuring access to specialists when medically necessary. 
Not all of these provisions were included in the Balanced Budget Act of 
1997, but I am proud to say most were and, as a result, Medicare 
beneficiaries enjoy these rights today.
  Senator Jeffords' bill reported out of committee, and the Republican 
leadership bill, S. 300, also share many of the patient protections I 
advanced for Medicare for individuals currently insured under the 
Employee Retirement Income Security Act (ERISA). While there have been 
some who have criticized the Republican bill for not covering all 
insured individuals, the reality is most individuals are covered under 
state consumer protections. However, for the 48 million people who are 
solely covered under ERISA, our bill would provide them similar 
protections to what most individuals enjoy today under their state 
laws. Furthermore, our bill would extend the two most fundamental and 
important protections to all employer-sponsored plans--an appeals 
process with a strong external review mechanism, and detailed, user-
friendly consumer information so that individuals can make the best 
health plan choice possible for their needs. Our bill would not 
duplicate state regulation, thus avoiding unnecessary costs and 
regulatory burdens for employers. These costs ultimately get passed on 
in the form of lower wages, reduced health benefits, and fewer jobs.
  To argue that the cost of this additional regulatory burden, and I 
might add this unnecessary cost, is worth it because everyone should 
have the same federal protections is short-sighted and just plain 
wrong. Health insurance coverage is a benefit that Americans want and 
desperately need. It is a benefit that employers voluntarily provide. 
If we require that all plans, even those already regulated by the 
state, be subjected to any new federal law, we will increase the cost 
of providing health insurance coverage. There is no dispute here. We 
have the figures from the Congressional Budget Office. In fact, the CBO 
provided us with a breakdown of the cost of each new patient 
protection. And guess what? The costs go up as we mandate more 
government regulation. This is not rocket science, this is common 
  We need to ask ourselves as members of the Senate if we want to 
jeopardize the health insurance coverage of hard-working Americans for 
our own political and personal gain. We have guaranteed health 
insurance, so we don't need to worry about losing our coverage. But 
what about the voters, the people we are supposedly trying to help with 
this bill:
  Should we pass this bill without regard to the cost or the impact it 
will have on people's coverage?
  Should we be telling our constituents who are content with their 
health plan that the cost doesn't matter because what matters most is 
helping people who were harmed by their managed care plan?
  Should our response be to folks back home that they should be willing 
to pay more for protections they already have under state law so that 
the federal government can step in to do what the states are already 
  In addition to the rise in premiums patient protections will most 
certainly cause, the private sector is now predicting health care costs 
will increase even further than anticipated. A recent survey released 
by a human resources consulting firm indicates health insurers and 
health plan administrators expect HMO costs to increase 6 percent. 
Point-of-service plans are expected to rise 7.7 percent. According to a 
General Accounting Office (GAO) report, a 6 percent premium increase 
will result in approximately 1.8 million Americans losing their health 
insurance. This is without Congress taking any action. If the Democrats 
had their way, we would

[[Page S8610]]

be adding another 5 to 6 percent on top of the 6 percent increase 
already projected. What good are patient protections when you don't 
have any health insurance? And the costs of higher insurance premiums 
are not only measured by the loss of coverage. Families will have to 
make choices between a better education for their children; preparing 
for retirement; starting a business; or simply affording to each out on 
occasion just to pay their higher premiums to keep their health care 

  The survey goes on to cite reasons for these higher than expected 
premium increases. At the top of the list of reported reasons is new 
state and federal mandates. Do not be mistaken. The impact of increased 
regulation is real. And the cost is far greater than some monetary 
figure or percentage increase can possibly demonstrate. We are talking 
about peoples' health insurance coverage, and ultimately their health. 
For research has shown there is a direct correlation between a person's 
health and whether that person has insurance.
  The Republican bill attempts to target protections where no state 
protections exist under ERISA. It provides two fundamental federal 
protections to all employer-sponsored plans. One of these provisions, 
which will offer patients the ability to solve disputes with managed 
care plans, is the appeals process. This provision, in my estimation, 
would solve many of the problems people experience with their managed 
care plans. This approach, unlike the Democratic approach, would 
provide assistance to the patient when they need it the most--at the 
time when care is needed. What good is it to know you can sue your 
health plan when your health has already been harmed or worse yet, you 
are dead? What good is to sue when most of the money ends up in the 
hands of trial lawyers?
  Our bill would allow for any dispute regarding medical necessity 
decisions or a treatment determined to be experimental by the plan to 
be appealed to an external independent review board. This board would 
be made up of medical experts in the area of dispute. The appeals 
process would be timely, independent, and binding on the health plan. 
Patients would get health care when they need it, not a lawsuit after 
its too late.
  The other new Federal protection that is fundamental to consumer 
choice is the availability of consumer information. The Republican bill 
would establish new disclosure and detailed plan information 
requirements for all employer-sponsored plans. This information would 
be available to people to ensure they understand what their plan 
covers, how it defines medical necessity, what they should do when a 
dispute arises, and much, much more. This provision will enable 
patients to make decisions about their health care and will create 
greater competition among health plans to provide quality care and 
  Throughout this debate we must remember what the purpose of this 
legislation is. We must not let rhetoric cloud our judgment about what 
will truly benefit patients and not special interest groups. We must 
remember this debate is about patients; not trial lawyers; not doctors; 
and not bureaucrats in Washington. We need to act responsibly to pass a 
bill that will provide meaningful patient protections while preserving 
the health insurance coverage of millions of hard-working Americans. 
Again, I ask the fundamental question we must consider. What good is a 
patient bill of rights when you don't have insurance?
  Republicans and Democrats agree on a number of issues that really 
matter to our constituents. We should be able to pass a bipartisan bill 
with those provisions we all support. Both sides may have to 
compromise. But that is part of making the legislative process work. I 
ask my colleagues to remember on whom this debate should focus on. Let 
us not forget, it is the patients' bill of rights.
  Mr. MURKOWSKI. Mr. President, today I rise to join my colleagues in 
the important debate on ensuring the health care rights of patients 
across America.
  Our nation has the best health care in the world, yet there is a 
growing concern over changes in how most Americans receive health care. 
Individuals once accustomed to choosing a doctor and paying for medical 
treatment are now thrown into managed care systems or HMOs. Too often 
for the patient, HMO rules, restrictions and concern for profit seem of 
more consequence than providing quality health care.
  The Republican plan, called Patients' Bill of Rights Plus, is a 
direct response to patient concerns. In a nutshell, the Republican bill 
guarantees affordable, quality health care and provides access to the 
best doctors and specialists available.
  The Republican bill will protect the unprotected by establishing a 
Bill of Rights for patients whose plans are not already regulated by 
existing consumer protection laws. Under our bill, patients will have 
the right to talk openly and freely with their doctor about all 
treatment options; the right to coverage for emergency care; and the 
right to see the doctor of their choice.
  It will make health insurance more affordable and accessible by 
accelerating full tax deductibility of health premiums for the self 
employed; and expanding the Medical Savings Account pilot program to 
all of America.
  It will empower patients by providing a timely and inexpensive 
appeals procedure for all patients who are denied coverage by an HMO.
  Why is the Republican plan a better alternative?
  The Democrat bill, called ``The Patients Bill of Rights Act,'' may 
have a similar title to the Republican bill, but the two bills 
represent entirely different approaches to the role of government in 
health care:
  The Democrat bill encourages litigation.
  Our plan insures patients will get the care they need, not a trial 
lawyer knocking at their door. It creates a fair and efficient process 
to resolve disputes with HMOs.
  The Democrat plan, will enhance lawsuits, not the delivery of health 
care. Mr. President, health care cannot be improved through the court 
  The Democrat plan creates massive Federal bureaucracy. The Democrat 
plan regulates all health insurance at the federal level--thereby pre-
empting state laws. The Democrat plan is a litany of federal mandates 
on private health insurance. It's one step closer to a federal take-
over of America's health care system.
  The Democrat plan is a ``one-size-fits-all plan.'' The Democrat bill 
squeezes patients into a one-size-fits-all health plan. The Democrat 
plan puts one of the most ineffective agencies, the Health Care 
Financing Administration, in charge of it all!
  Maybe that works in Massachusetts, but it won't work in my State of 
Alaska. Let me explain.
  The Federal Intrusion in Alaska doesn't work. Mr. President, a one-
size-fits-all'' approach doesn't fit Alaska's health care needs. Let me 
tell you the facts:
  Alaska contains the most rural, remote areas in the nation;
  Alaska is 74 percent medically underserved; and most importantly;
  Alaska is a state in which the Federal Government, and in particular, 
the Health Care Financing Administration, just doesn't understand.
  Let me tell you about three health care problems in Alaska that were 
exacerbated by Federal intrusion:
  Federal intervention threatens to destroy Alaska's Rural Physician 
Residency Program. Alaska's rural health care problems are tough. 
Physician turn-over rate is high. At Bethel Hospital, 4 of the 16 
primary care physicians on staff leave every year. Many villages 
populated by 25-1,000 individuals never even have access to physicians.
  The result is that bush Alaska has the highest rates of preventable 
diseases in America. Doctor Harold Johnson, head physician of the 
Alaska Family Residency Program described the physician needs of Alaska 
as follows:

       The history of physician turnover, isolation and general 
     burn-out had been continuing in bush Alaska settings without 
     any sign of improvement for the last 45 years. The Alaska 
     Family Practice residency is a vital program designed to 
     train a workforce to handle bush Alaska's harsh conditions, 
     isolation and unique culture.

  I worked to protect that residency program with specific language in 
the Balanced Budget Act, but still this important program is 

[[Page S8611]]

  Why? Because the Health Care Financing Administration (HCFA) 
improperly interpreted my language, thereby preventing our doctors from 
training in rural Alaska and other rural areas across the nation. 
Senator Collins and I had to introduce legislation to stop HCFA from 
harming these rural programs. It's this agency, HCFA, that Democrats 
now ask to run health care for most of America.
  HCFA ignores Alaska's Medicare access problems. Access to health care 
is the over-riding problem for Alaska's elderly. Fourteen of nineteen 
primary care physicians in a major hospital in Anchorage will no longer 
accept Medicare patients. Why? Because doctors in rural areas lose 
money on Medicare patients in rural areas.
  I have stated my concern over and over to the Health Care Financing 
Administration, but was ignored. As a matter of fact, the Administrator 
of the agency testified before the Finance Committee on February 26, 
1998 that her agency has found ``no overall problem with access to 
care'' anywhere in the nation.
  Why is HCFA ignoring rural America? I have been working with her 
agency for the past year to educate them--and have even brought 
representatives up to Alaska. But the problem persists.
  Once again I stress that HCFA is not the agency to run all of 
America's health care. HCFA's approach of a one-size-fits all'' 
solution never seems to consider rural America.
  And, lastly,
  Health care access is denied to King Cove, Alaska. This debate is 
about ``patients rights''--about the rights of American citizens to 
have certain guarantees when they need medical attention. But when I 
think of King Cove, Alaska, I can't help but note a certain level of 
hypocracy by the party on the other side of the aisle.
  It was one of the last votes Congress cast last year, ``The King Cove 
Health and Safety Act of 1998''--here's the background.
  King Cove is located in the westermost part of Alaska and is 
accessible only by sea or air. Air traffic is often completely stopped 
due to a combination of prevailing northernly winds, heavy snows, 
strong crosswinds and turbulence.
  Since 1981, there have been 11 air crash fatalities and countless 
other air crashes and injuries from the King Cove airport. One fatal 
accident involved a medivac flight headed for Anchorage.
  The people of King Cove came to Congress to ask for access to health 
care--to ask for permission to build a small gravel road to a nearby, 
24-hour, ``all-weather capability'' airport in the town of Cold Bay. 
Permission from Congress was needed because the Department of Interior 
prevented the gravel road from crossing a mere seven miles of federal 
  I am not talking about the ability for a King Cove resident to get an 
M.R.I., or the ability to choose their own specialist. I am talking 
about the most basic of all health care rights--access--the ability to 
simply get to a hospital.
  My bill to allow that access was vigorously opposed by the Democrats. 
And President Clinton threatened a veto. Why? Because a big ``one-size-
fits-all'' federal law prevented a 7-mile road. Once again those big 
``one size fits all'' laws don't seem to fit Alaska.
  Sadly, the majority of Democrats last year voted to deny the most 
basic right--access to health care--to Alaska residents. So the 
Democrats can ``talk the talk'' all they want about HMOs, and access to 
emergency rooms, but when it came time to ``walk-the-walk'' for the 
people of Alaska, they could not and would not do it.
  I ask my colleagues, how can we be on the floor of the Senate 
debating what happens to a person after he gets to a doctor or hospital 
when many here were unwilling to provide Alaskans with access to that 
doctor or hospital?
  Mr. President, that is what Federal intrusion has done to health care 
in Alaska. Again I stress that a ``one-size-fits-all'' package doesn't 
work in rural America.
  Public health is too important to be sacrificed to such a big-
government vision.
  I favor patients rights that will strike against government control 
of the health-care system; I favor a plan that makes coverage more 
affordable and puts patients in control of their medical care; I favor 
the Republican bill.
  I yield the floor.
  Mr. McCain. Mr. President, over the past four days, we have cast many 
difficult votes. Often, as you know, several issues are addressed in a 
single amendment or series of votes. Therefore, in order to ensure that 
my positions on these matters are fully understood by my constituents, 
I ask unanimous consent that an explanation of my votes on health care 
amendments be printed in the Record.
  There being no objection, the explanation was ordered to be printed 
in the Record, as follows:

           Senator McCain's Votes on Patients' Bill of Rights

       7/15/99: Kerrey Amendment #1253--JSM voted no because it 
     was too broad in scope requiring an unlimited continuation of 
     care from all plans with too many exceptions causing 
     excessive costs for patients. Failed 48-52
       7/15/99: Collins Amendment #1243--JSM voted yes because it 
     made long term health care more affordable while also 
     expanding direct access to obstetric and gynecologist care 
     for women; providing timely access to specialists; and 
     expanding patient access to emergency care. Passed 54-46
       7/15/99: Ashcroft Amendment #1252--JSM voted yes because 
     the amendment tightens up the external review process, making 
     it more independent of the influence of insurance companies, 
     and because it moves toward requiring insurance companies to 
     pay for the costs of individuals participating in clinical 
     trials. Amendment was adopted 54-46.
       7/15/99: Gregg Amendment #1250--JSM voted yes because the 
     amendment eliminates the provisions in the Democrat bill that 
     would allow excessive and unnecessary litigation. He 
     believes, however, that patients should be permitted 
     reasonable and limited access to the courts to recover 
     compensatory damages when denied proper health care by their 
     insurer. Amendment was adopted 53-47.
       7/14/99: Dodd Amendment #1239--No recorded vote on text of 
     Dodd amendment regarding insurance coverage for individuals 
     participating in clinical trials and access to approved drugs 
     and devices; text of amendment was eliminated by adoption of 
     Snowe Amendment #1241.
       7/14/99: Kennedy Amendment #1242--JSM voted yes because he 
     believes the patient protections afforded by the underlying 
     legislation should be extended to as many people as possible, 
     without precluding states from establishing additional 
     protections. Amendment failed 48-52.
       7/14/99: Snowe Amendment #1241--JSM voted yes because the 
     amendment establishes requirements for extended coverage and 
     overnight hospital care for mastectomies and similar 
     procedures. Amendment was adopted 55-45.
       7/14/99: Bingaman Amendment #1243--JSM voted no because he 
     felt it did not fully address the problem which is why he 
     preferred the amendment offered by Senator Collins providing 
     timely access to specialists while also expanding access to 
     emergency room services, women access to obstetric and 
     gynecological care and expansion of deductibility of long-
     term care to individuals. Failed 47-53.
       7/13/99: Santorum Amendment #1234--JSM voted yes because 
     the amendment provides for full deductibility of the costs of 
     health insurance for self-employed individuals and restates 
     states' rights to regulate health plans which are not exempt 
     from state control. Amendment was adopted 53-47.
       7/13/99: Graham Amendment #1235--JSM voted no because the 
     amendment would allow individuals to receive non-emergency 
     care in emergency facilities if a non-life threatening 
     medical condition was discovered during the course of 
     treatment for a life-threatening condition. He supported the 
     language in the amendment mandating that all patients have 
     access to emergency facilities, but felt that authorizing 
     post-stabilization care in an emergency facility would open 
     the door for people to receive a litany of unauthorized, 
     costly health services if they come into an emergency room 
     under the pretense of a life-threatening condition. 
     Conditions discovered during the course of an examination in 
     an emergency facility, should be handled through the normal 
     referral process using non-emergency doctors and facilities. 
     Amendment failed 47-53.
       7/13/99: Nickles Amendment #1236--JSM voted yes because the 
     amendment waives the requirements of the underlying 
     legislation if their implementation would result in a 1 
     percent increase in premiums or make health care unaffordable 
     for 100,000 Americans. Amendment was adopted 52-48.
       7/13/99: Robb Amendment #1237--JSM voted no because the 
     amendment would eliminate the threshold exemptions in the 
     Nickles amendment #1236. He supported the provisions of the 
     amendment that required coverage and established minimum 
     hospital stays for patients undergoing mastectomies and 
     related procedures. These provisions were subsequently 
     adopted in the Snowe Amendment #1241. Amendment was defeated 
       7/13/99: Frist Amendment #1238--JSM voted yes because it 
     made health plans accountable for their actions and delivery 
     of medical care to patients. 52-48.

[[Page S8612]]

  Mr. GORTON. Mr. President, as a parent and grandparent, I know there 
is nothing as important as taking care of one's family, especially if a 
family member is sick. If your daughter gets hurt, you want her healed. 
If your dad is ill, you want him to get better. It's human nature. Our 
compassion and desire to help our loved ones is limitless. Caring for 
your family is as natural as breathing. That's why good medical care is 
so important to all Americans.
  Health care is about security, it's about peace of mind. It's very 
personal. It's about your doctor, your hospital, and your health care 
plan. It should not be about attorneys, paperwork, and the massive 
federal government.
  America is blessed with the best medical care in the world, but the 
quality of our health care will be jeopardized if we fail to prepare 
for the challenges of this rapidly developing field.
  As Congress takes a hard look at the health care system, we need to 
take a step back from the partisan bickering so often associated with 
the political system and instead do what's best for our families.
  So as this debate in Congress ensues, I will support proposals, from 
either party, that will make health care better.
  These are the principles I advocate:
  Ensuring that Americans have access to the highest quality health 
care available;
  Making sure that your medical decisions are made by a doctor;
  Access to healthcare that is affordable; and
  Creating opportunities for families that are now uninsured to buy 
health care coverage.
  Washington families from Poulsbo to Pullman should have access to the 
best available care when they need it. Congress should implement common 
sense consumer protections for patients not covered by existing state 
  Patients should be able to go to the nearest emergency room without 
worrying about whether that hospital is a part of his or her insurance 
plan's network. They should simply get the care they or their families 
  Woman should also have direct access to their ob-gyn for their health 
care needs, and children need to be able to see pediatricians who 
specialize in children's health care.
  The patient-doctor relationship is unique and very personal. Patients 
should be able to choose their physician; under the Patients' Bill of 
Rights Plus Act, which I support, they can.
  Patients should also be confident they are receiving the highest 
quality health care. It is difficult to keep abreast of the new 
developments and treatments in the fast-changing world of modern 
medicine. We have learned more in the last five years about how to 
improve health care than we learned in the prior 25 years. We need to 
make sure that hard-working doctors have the tools and the best 
information they need to provide the best care.
  Should patients have recourse if they think their plan has been 
negligent or unfairly denied them treatment? Absolutely. We need to 
look at models that work during this debate, and adopt health care 
reforms that move the standard of patient care forward, not back.
  Some in Washington, DC want to complicate the health care equation. 
Instead of a quick resolution and access to care when patients need it, 
patients would have to wait years for the courts to resolve the issue. 
The problem with that philosophy is that lawsuits are after the fact--
the damage is already done. We should focus on quality health care and 
on treating patients, not spending all time in court. After all, you 
can't sue your way back to health.
  Who benefits if we have more lawsuits? Clearly not the patients. One 
GAO study from 1987 found that cases with merit below $50,000 were 
unlikely to be pursued by plaintiff's attorneys. And, the time to 
payoff--if any--takes on average 33 months to be resolved; and medical 
malpractice claimants only received 43 cents on the dollar.
  Their plan would allow employers to be sued. But, for many small 
businesses one lawsuit would put them out of business. In fact 57% of 
small businesses said they would drop health care coverage for their 
employees rather than risk a lawsuit that could put them out of 
business. That is not good for families.
  I believe there is a better way. Patients should be able to hold 
their health plans accountable. New internal and external appeals 
provisions give all patients in group health plans that ability. If a 
patient believes his plan wrongly denied coverage for a health care 
service he can access a timely internal review conducted by the plan. 
If he still disagrees with the plan's determination, a patient can ask 
for an independent review conducted by a doctor who is a specialist in 
the area of dispute. The decision of the external review is binding on 
the plan and the court is able to award monetary penalties if the plan 
does not comply.
  There are those in Washington, DC that would extend the arm of the 
federal government into your families' health insurance--requiring you 
to pay for benefits you may or may not need. The Congressional Budget 
Office concludes that the bill offered by the Democrats would cause 
premiums to rise by 6.1 percent, or $355 per family.
  Ultimately, increased costs mean more American families can't afford 
insurance. The Lewin Group estimates that for every 1 percent increase 
in premiums 300,000 people lose their insurance coverage. A 6.1 percent 
increase would put health care out of reach for 1.8 million more 
Americans. In Washington state it means as many as 50,000 more 
Washingtonians may be unable to afford health insurance. That's 
  Instead, insurance coverage needs to be more accessible to American 
families. One way to do that is to allow full deductibility of health 
insurance costs for those who are self-employed--the same benefit many 
businesses receive. Employees who pay for their families' insurance 
premiums should also be allowed that same tax deduction. Medical 
Savings Accounts should be made more broadly available--37 percent of 
the people currently enrolled in the MSA pilot program were previously 
  Our mandate is clear: ``first do no harm.'' This time-tested creed of 
the medical profession applies to this debate. The challenge is to 
provide common sense improvements to the current system but not at the 
expense of increased costs, more uninsured families, fewer health care 
choices, and another layer of government bureaucracy between patients 
and their doctors.
  Let me add, Mr. President, that I think it is important that we have 
this debate. But, unfortunately, both parties are engaging in political 
gamesmanship and procedural antics on the Senate floor; each hoping to 
prove it is the champion of the health care issue. What's the end 
result? A debate--but, just a debate.
  That result--no real progress--seems to me the exact result that 
political Washington, DC is hoping for. Where there was a glimmer of 
bipartisanship--for example on amendments that would give patients 
access to clinical trials or end the practice of drive-thru 
mastectomies--politics reigned.
  In the meantime, there is a growing crisis in our rural areas as 
seniors continue to lose access and choice in their health care 
options. We know that as mandates pile up the cost of providing health 
care increases. Yet, the Administration's answer to Medicare has been 
across the board reductions in payments to hospitals and insurance 
plans. Just two weeks ago a number of plans decided they could no 
longer afford to do business in Eastern Washington. There is now only 
fee-for-service in most of Eastern Washington meaning seniors will end 
up paying more for fewer benefits.
  Earlier this week, I attended a hearing at which rural hospital 
administrators testified about the impact of Medicare changes on access 
to care for seniors in rural areas. As the Administration develops 
payment systems, and issues its regulations and guidance for Medicare, 
I continually hear from the medical community, particularly those in 
rural areas, that the payment reductions and increased paperwork burden 
are simply intolerable. If hospitals and doctors can no longer do 
business in rural areas it ultimately means that the quality of care 
for seniors and other families living in our rural communities is in 
  We must work towards more choice, access and quality care for all 
Americans; for those who may be in group health plans, the subject of 
this current debate, but also for seniors and those Americans living in 
rural communities.

[[Page S8613]]

  Congress' focus should be to create new opportunities for covering 
the uninsured by enacting provisions to make health insurance more 
affordable and accessible. We should pass common sense patient 
protections for those who are currently unprotected by state laws and 
all patients should be able to hold their health plans accountable.
  After all, health care is about security, it's about peace of mind, 
it's about your doctor, and your hospital; but most importantly, its 
about your family.
  Mrs. SNOWE. Mr. President, I rise today to express my strong support 
of the Patients' Bill of Rights. This bill will provide needed reform 
to our managed care system and ensure some basic patient protections 
for those with health insurance who do not fall under state 
  This week the Senate debated an issue that goes to the heart of the 
personal security of every American. . .an issue that underlies all 
other issues. . .that cuts across racial lines, income levels, gender, 
or profession. Health care in this Nation affects all of us, touches 
all of our lives. And I am pleased that we are having this opportunity 
to discuss how we can ensure that health care delivery in the new 
century never loses sight of its most important component--the patient.
  We need to have this discussion because, to paraphrase the recent car 
commercial, this is not your father's health care system. It isn't even 
the system we knew ten or fifteen years ago. Not so long ago, health 
care was delivered on a fee-for-service basis. Today, an explosion of 
advances in medicine and technology along with the advent of managed 
care, HMO-based networks, have changed the face of health care in 
America. And it is time to take stock.
  We need to ensure that medical decisions are dictated by patients and 
their doctors--not the fine print on an insurance policy. And we must 
do so in a way that doesn't step on the toes of sound policies already 
put in place by individual states and doesn't substitute endless 
courtroom litigation for immediate medical treatment.
  As more and more people enter into managed care plans, we hear of 
more and more problems--in some instances, it seems that patients are 
barely off the operating room table before they are sent home, whether 
they are ready or not. Or patients are denied access to a treatment or 
the specialist they need--something my state staff hears time and time 
again from constituents.
  I happen to think that medical tests and medical doctors should be 
driving medical decisions, not actuaries or accountants. In all too 
many cases, it seems as though health care has become too much about 
crunching numbers and not enough about healing patients.
  Indeed, the whole drive toward managed care has been prompted by an 
effort to contain and reduce health care costs in this nation--by 
itself, a worthy goal. And by-and-large, managed care has proven less 
costly than the traditional fee-for-service system--in fact, last year, 
the average premiums for traditional fee-for-service plans were almost 
20 percent higher than HMO premiums and about 7 percent higher than 
premiums for preferred provider organizations.
  But the question is, at what price? There is a real feeling among 
many Americans that, in some far off place, bureaucrats they will never 
see are making decisions that will dictate the quality and level of 
care they will receive. There's a real feeling that the average 
American has little say in what is probably the most deeply personal 
issue there is--and that the dollar sign is more compelling than any X-
ray or MRI.
  This bill addresses these concerns in a number of important and 
effective ways, all designed to put patients first.
  This bill recognizes that medical emergencies are just that--
emergencies. If you are being rushed to the hospital with a heart 
attack, that's hardly the time to have to phone ahead for prior 
approval--under this bill you'll know you're covered.
  This bill protects a patient's right to hear the full range of 
treatment options from their doctor. It is outrageous that patients are 
often denied the best possible information just when they need it most, 
and this legislation would make these so-called ``gag clauses'' a thing 
of the past.
  This bill would allow parents to bring their children directly to 
pediatricians, instead of having to go through primary care physicians. 
How much sense does it make that some managed care plans consider 
pediatricians to be specialists? The last time I checked, being a child 
is not a sickness--children deserve the quick and direct access they 
need to doctors who are really just general practitioners for kids, and 
under this bill they get it.
  This bill would protect one's right to see a specialist. If a patient 
believes that seeing a specialist is the only way to get a sound 
diagnosis, they should not be denied that option.
  And finally, this bill allows patients who are pregnant, terminally 
ill, or in the hospital to continue to see their current doctor, even 
if that doctor is no longer participating in the patient's health care 
plan. It's unconscionable that, after seeing a doctor who knows your 
condition better than anyone else, you could be asked to return to 
square one--and that would no longer happen under this legislation.
  I realize that both parties have identified some of the more pressing 
problems with managed care, and both have laid out ideas on how to 
address these problems. And I truly believe that Senators on both sides 
of the aisle are concerned with what they've seen and heard from their 
constituents. The point that must be made here is that it is not so 
much our goals that differ, but rather the path we take in getting 
  And one of the most glaring differences is the way we approach 
existing state laws. Not surprisingly, many states have already beaten 
us to the punch when it comes to patient protections, and this bill 
respects the work they have done by complementing, rather than 
undercutting, their efforts.
  Maine, for example, banned so-called ``gag clauses'' back in 1995, 
provided direct access to ob/gyns in 1996, and instituted the prudent 
layperson standard for emergency care in 1998. Wouldn't it make a lot 
more sense for the federal government to focus on fixing what's broken, 
instead of the problems that states like Maine have already fixed?
  Yet, the Kennedy-Daschle bill asks us to overturn all the laws duly 
passed by 50 state legislatures and substitute then with a ``father 
knows best'' approach. It basically says, ``thanks for all your efforts 
on this issue --now step aside and let the real experts take over''. We 
think a better idea is to complement, not displace, state decisions and 
this bill does just that by providing benchmark protections for 
patients who are not already covered by State regulated plans.

  We also take a different approach when it comes to disputes over 
care, emphasizing swift access to providers over the slow grind of the 
legal system. Under this bill, if an individual has a problem with a 
decision about their health, they can appeal, under an expedited 
process, to an independent party who is an expert in the condition 
being reviewed.
  Why? Because what patients need first and foremost is medical relief 
now, not legal relief later. If I were sick today and I didn't believe 
I was getting the care or treatment I needed, I would rather see a 
doctor than a lawyer. The bottom line is getting well, and this bill 
would rather put medication ahead of litigation.
  Finally, let me just say that I believe no patients bill of rights 
could be complete without a provision to protect against genetic 
  Every day, scientists are finding links to a whole host of diseases. 
An estimated 15 million people are affected by over 4,000 currently 
known genetic disorders. Today, testing is available for about 450 
disorders--but testing is useless if people are afraid to take 
advantage of it for fear of insurance discrimination.
  No wonder then a reported 8 out of 10 people who undergo genetic 
testing pay for it out of their own pockets. Others simply forgo 
testing altogether. And still others refuse to participate in important 
medical research.
  This is a travesty that must be remedied, and it would be remedied by 
this bill, which includes a provision I authored that provides 
absolutely fundamental protections against genetic discrimination in 
health insurance. This language has a long history--I first introduced 
these protections in the 104th

[[Page S8614]]

Congress in conjunction with Representative Louise Slaughter in the 
  Since then I have worked extensively with Senators Jeffords and Frist 
to ensure that this bill effectively addresses the need for protections 
against genetic discrimination in the health insurance industry.
  Americans should not live in fear of knowing the truth about their 
health status. They should not be afraid that critical health 
information could be misused. They should not be forced to choose 
between insurance coverage and critical health information that can 
help inform their decisions. They should not fear disclosing their 
genetic status to their doctors. And they should not fear participating 
in medical research.
  We have laid out stringent, tough, and sensible guidelines that allow 
people to use the information that can be obtained from genetic testing 
without fear. Any of my colleagues who have heard me talk about 
genetics know about my constituent, Bonnie Lee Tucker, who is afraid to 
have a genetic test for breast cancer--despite the fact that she has 
nine immediate family members who have had this killer--and despite the 
fact that she believes this information could help protect her 
daughter. Why? Because she is afraid it will negatively impact her 
ability and her daughter's ability to get insurance.

  Our language ensures that people who are insured for the very first 
time, or who become insured after a long period of being uninsured, do 
not face genetic discrimination. It ensures that people are not charged 
exorbitant premiums based on such information.
  It ensures that insurance companies cannot discriminate against 
individuals who have requested or received genetic services. It ensures 
that insurance companies cannot release a person's genetic information 
without their prior written consent. And it ensures that health 
insurance companies cannot carve out covered services because of an 
inherited genetic disorder.
  In short, it ensures that Bonnie Lee Tucker, and the thousands of 
Americans like her, can take advantage of the latest scientific 
breakthroughs to protect their health and well-being without losing 
their insurance coverage.
  There will be no issue more important in the 106th Congress than the 
one before us this week. No issue affects people more personally than 
health care, and we have a real responsibility to ensure that any 
changes we make put the patient's interests first. I believe this 
legislation puts patients first without unnecessary bureaucracy, 
without excessive involvement from the federal government, without 
trampling the laws already on the books in all fifty states, without 
increasing the costs of insurance or increasing the number of the 
  Mr. BUNNING. I rise in opposition to the Kennedy health care bill and 
in support of the Republican alternative--the Patients' Bill of Rights 
  Mr. President, when the rhetoric starts heating up, it is often 
difficult to tell exactly what is going on.
  However, it has been my experience that quite frequently, the best 
way to determine where people are headed is to look at where they have 
been. You can often tell where people are going if you look back to 
where they are coming from.
  And, quite honestly, I get a little nervous when I hear people 
talking about providing a bill of rights for patients that sounds very 
enticing. Without looking into the facts, I get a little nervous 
because I know where the supporters of the Kennedy bill have been.
  I know where the President has been. We know where they are coming 
from on health care.
  Where are they coming from? Well, back in 1994, these same people 
were trying to sell us on Clinton Care--the President's misguided 
proposal which would have taken away a patient choice and freedom and 
which would have put the Federal Government in charge of the Nation's 
entire health care system.
  Fortunately, that proposal was rejected by Congress and the American 
people. It failed because it was recognized for what it really was--a 
big government proposal that would have moved us closer to single-
payor, government-run health care system.
  And the American people made it clear back in 1994 they simply didn't 
have a great deal of confidence that letting the Federal Government run 
health care would be any kind of improvement.
  Now, the debate has changed. We are talking about ``expanding 
patients' rights.'' And who can be against that?
  But if you look at the people who are talking the loudest about these 
new rights, you will see the very same folks who supported Clinton 
Care--and who have consistently supported single payer, socialization 
of medicine all along. And that should concern everyone.
  Have they changed their spots? I don't think so.
  Be that as it may, even if you ignore the past and simply accept the 
Kennedy bill as a stand-alone measure that has nothing to do with past 
congressional efforts to put the Government in charge of health care, 
there are some very good reasons to oppose it. And there are some 
equally strong reasons to support the Republican alternative.
  The reasons to oppose the Kennedy bill are simple. It will increase 
health care costs. It will increase the number of people who have no 
health insurance coverage dramatically. And it will seriously threaten 
our existing system of voluntary employer provided health care 
  It promises new ``patient rights'' which sound appealing at first 
blush, but when you look at it a little closer you discover that the 
costs are awfully high and the only ones who really benefit from those 
new rights are the lawyers and the bureaucrats.
  I would like to talk about a couple of the problems that I see with 
the Kennedy bill and then point out a couple of the reasons that the 
Republican alternative is better.
  First is the scope of the Kennedy bill--who will be affected. Today, 
much of the health care is regulated under the Federal ERISA statute--
the Employee Retirement Income Security Act.
  Today 42 million Americans get health care insurance through their 
employer as part of a plan that is directly governed by ERISA.
  But, an even larger number--84 million--get their insurance through 
health plans that ERISA leaves to State regulation. Under the Kennedy 
bill, this would change.
  The scope of the Kennedy bill is so broad that the States would be 
cut out of health care regulation. Uncle Sam would be in the driver's 
  That's not what we want. One of the reasons the Clinton health bill 
failed was because Americans were suspicious of the Federal Government 
making health care decisions.
  Many of us believe these decisions need to be kept as far from 
Washington as possible. The States have a role to play. Mr. President, 
even in Kentucky where our States general assembly has made some 
mistakes with health care recently, we want to keep working before 
turning everything over to Uncle Same.
  So, the scope of this bill is troubling.
  But even more troubling is the cost of the Kennedy bill. That is what 
health insurance is all about in the first place--the cost of health 
  And cost is certainly the one single health care issue that 
Kentuckians talk the most to me about. The cost of insurance premiums, 
prescription drug prices, medical equipment.
  People are worried about their bottom lines. They are worried about 
how much is going to come out of their pockets. They want to know if 
they are going to be able to continue to afford to take care of 
themselves and their families.
  For the folks who are worried about costs, the Kennedy bill is 
definitely the wrong prescription because it will increase costs, it 
will raise prices and it will swell the number of uninsured American 
  The nonpartisan Congressional Budget Office reports that the Kennedy 
bill would raise health insurance premiums 6.1 percent above inflation 
over the next three years.
  In Kentucky this translates into $190 in higher insurance premiums 
that families would have to pay each year.
  The worst part of these higher costs is that they mean fewer 
Americans will be able to afford health insurance.
  CBO estimates the Kennedy bill will cost 1.4 million Americans their 
health insurance.

[[Page S8615]]

  As many as 30,000 Kentuckians could lose their insurance coverage 
because of the higher costs imposed by the Kennedy bill.
  According to at least one estimate, all of the new regulations and 
mandates in the Kennedy bill will cost almost $60 billion.
  Somebody is going to pay those costs. Insurers are going to pass 
their costs along to the employers. And the employers will have to make 
a decision on whether to pass those increases along to their employees. 
And some of them may decide to drop the health care benefits they 
currently offer to their employees altogether.
  So, that's the bottom line. the Kennedy bill of rights will mean that 
fewer people have health insurance--and those who still have it, will 
pay a lot more for it.
  On the other hand, the GOP plan addresses health care quality without 
significantly raising costs. It would increase costs less than 1 
  That's a mighty big difference for the 1.4 million Americans who 
would be priced out of the market by the Kennedy bill, and for the 
millions of other Americans who would have to pay more out of their 
pockets for higher premiums.
  A new bill of rights doesn't help you much if you lose your insurance 
coverage because you or your employer can't afford the premiums.
  Our bill doesn't drive up costs, and it won't cause more Americans to 
lose their coverage because it doesn't have all of the new mandates and 
new regulations that the Kennedy bill does.
  In fact, the Republican alternative actually includes provisions to 
help expand the availability of health insurance coverage and to help 
reduce the costs of insurance.
  Our bill makes health insurance premiums 100 percent deductible 
immediately. That makes health insurance more affordable for 125,000 
Kentuckians and millions more across the country who are self-employed.
  The Republican bill also would lift the cap on the number of medical 
savings accounts that can be set up. Currently there is a national 
limit of 750,000. Our bill would allow every American who wants to set 
up a medical savings account the opportunity to do so.
  MSAs might not be the right thing for everyone, but they make sense 
for a lot of families and they can really cut costs for many of them.
  Our bill also improves on the existing ``flex accounts'' that many 
employees use to get health insurance coverage through cafeteria plans. 
Right now, many employees can use flex accounts to help cut medical 
costs and save money. Our bill would give employees even more 
flexibility to shift their coverage from one insurer to another and to 
make sure they can continue to see their own doctor.
  Our bill contains these provisions to help reduce the costs of health 
care, and to expand health insurance coverage. The Kennedy bill 
includes none of them.
  Over 40 million Americans have no health insurance coverage at all. 
The last thing we should do here in the Senate is pass legislation that 
is just going to make that number rise.
  But that is what will happen if we pass the Kennedy bill. The 
supporters of this legislation claim that they want to give more rights 
to patients, that they want to protect Americans from the HMOs and the 
big insurance companies.
  But, instead, their bill is an empty promise that would actually give 
Americans fewer rights. You can't have patient rights to fight your 
insurer if you can't even afford to buy insurance in the first place.
  Imposing more regulations and more requirements on employers and 
insurers might have a gut appeal, but in the end it's not going to fix 
anything. It's only a placebo--a sugar pill--that turns out just to be 
an empty promise that won't cure this patient.
  The next issue I want to address has to do with liability and 
  Everybody has heard the horror stories and a lot of Americans are 
becoming more and more worried that they are not going to be able to 
get the care they need because their insurance company refuses to pay 
for the treatment their doctor recommends.
  When that happens, the question for patients becomes--what do you do 
if your insurer disagrees with your doctor?
  The Kennedy bill's answer to this question is simple--it says sue 
your HMO or your employer. Sue your insurance company. Go to court and 
let the lawyers fight it out about your health care.
  Under current law, patients can already sue their HMO in Federal 
court, and many of them are doing this. But, the Kennedy bill goes a 
step further and sets up a litigation lottery by lifting the Federal 
preemption and making it easier for patients to sue in State courts 
  The bill's supporters make a big deal out of liability and say that 
lawsuits are the best way to hold HMOs and employers accountable for 
decisions. And at first, suing your HMO--the big bad insurance 
company--might sound like a good idea, a sort of rough justice.
  But I don't think anyone really believes that getting lawyers 
involved and going to court is the best way to obtain better medical 
  If your insurance company denies you coverage for a specific problem 
or a specific treatment, and you need medical care quickly, suing is 
not a very effective answer.
  And I don't see how suing an employer about your health plan is going 
to help make things better. It's just going to make it more expensive, 
and give employers an incentive not to offer health care to their 
  If you do sue under the Kennedy bill, there is no telling how long 
you are going to be in court, even if you can afford to pay a lawyer to 
take the case. And going to court to get a judge to rule on medical 
decisions isn't going to help a patient get help any more faster.
  More lawsuits are only going to clog up the courts and increase legal 
bills, and in the end that is just going to drive up health care cost.
  According to the General Accounting Office, it takes 33 months--
almost three years--to resolve the average medical malpractice claim.
  Some take much longer, and most patients can't wait that long for 
medical care.
  Everyone knows that there are too many lawsuits in America. We hear 
it all the time. Most of the time in Congress, we are debating changes 
to the liability rules to cut down on litigation, to keep matters out 
of the courts.
  For instance, we just passed the Y2K bill to give businesses and high 
tech firms more incentives to fix problems before they occur.
  That's what we should do with health care. It just doesn't make sense 
to say we are going to improve health care by filing more suits in our 
courts. Making it easier to sue insurance companies or employers is a 
knee-jerk, feel-good reaction that isn't going to help anybody get 
medical care any faster.
  On the other hand, the Republican bill says that if you are a patient 
and you think you're not getting a fair shake from your insurer, you 
can immediately appeal for a speedy internal review of the case. No 
lawyers, no courtrooms, no legal games.
  And, after that review, if you think you still aren't being treated 
fairly, you can demand a quick and timely independent review by outside 
  The Kennedy bill claims to have external reviews too. But the bill's 
primary focus is on making it easier to sue, and that means the primary 
arena for external reviews is going to be the courts.
  The bottom line, Mr. President, patients already can sue their HMOs 
in Federal court. They have that right today.
  But instead of encouraging quick resolutions of disputes, the Kennedy 
bill encourages even more lawsuits in State courts. This will only 
shift scarce resources from the operating room to the courtroom, and 
that's the last thing we need.
  You can't sue yourself healthy.
  In conclusion, Mr. President, I would like to tell my colleagues 
about what happened in Kentucky when our State adopted a health care 
bill that increased regulations, took away patients' freedoms and 
injected the government further into medical care. It's a living 
example of what could happen is we passed the Kennedy bill.
  a couple years ago our general assembly passed a Clinton-lite health 
care bill. Back then we heard a lot of the same arguments that we do 
now about the need for more regulations and more government involvement 
in health care.

[[Page S8616]]

  The proponents argued that the government had to step in to protect 
patients from insurers and to hold the line on costs.
  Well guess what happened in Kentucky? We passed a big government 
health plan with all sorts of new mandates on insurers. The legislation 
was designed to protect patients, and give them more rights by the 
power of government intervention.
  What happened was predictable. The insurance companies fled Kentucky 
in droves. For a while there were only two insurers who would 
underwrite individual health plans in our State--Blue Cross/Blue 
Shield, and State Government. That's it. Everyone else left us high and 
  The number of uninsured Kentuckians rose. Costs increased. Medical 
care became more expensive and harder to get.
  Sicne then, our State legislature has been backtracking and paring 
back those regulations and mandates. And guess what. Insurance is 
becoming more available again and prices have stabilized.
  That's the sort of situation we are looking at if the Kennedy plan 
passes. More regulation, more government in your personal life, higher 
costs, and worse health care. It happened in Kentucky, and it can 
happen in the rest of the country if we pass the Kennedy bill.
  Mr. President, I urge my colleagues to oppose the Kennedy bill. It's 
the wrong prescription for America. We know that more regulation and 
more government aren't the answer, but we have to keep fighting this 
  It wasn't the answer in the Clinton health bill, it wasn't the answer 
when we passed health care reform in Kentucky, and it's not the answer 
  If you want higher medical costs, if you want more uninsured 
Americans, if you want more government rules and fewer choices for 
individuals, then support the Kennedy bill.
  But, Mr. President, that's not what we really need. We need more 
affordable, more available, health insurance. We need a reliable, fast, 
and fair system of reviews to keep insurance companies honest but we 
don't need a flood of lawsuits. That is what the Republican bill 
  Mr. McCAIN. Mr. President, our personal health and the health of our 
loved ones is the most valuable thing we possess. Unfortunately, we 
often take good health for granted until tragedy strikes and the health 
or well-being of a family member is jeopardized by disease, accident, 
or the ills often associated with aging. This is when we fully 
appreciate the value of good health, as well as the importance of 
access to quality health care.
  When one of us or a loved one becomes ill, the obstacles of daily 
life become insignificant in comparison to ensuring the best health 
care services are available to ensure a full and speedy recovery. Our 
priority instantly becomes seeking and receiving the best possible care 
from qualified medical professionals.
  Unfortunately, too many Americans feel powerless when faced with a 
health care crisis in their personal life. Many feel as if important, 
life-altering decisions are being micro-managed by business people 
rather than medical professionals, and too many Americans believe they 
have no access to quality care or cannot receive the necessary medical 
treatment recommended by their personal physician.
  Many Americans work hard and live on strict budgets so they can 
afford health insurance coverage for their family. Then, the moment 
they need health care, they are confronted with obstacles limiting 
which services are available to them: confronted by frustrating 
bureaucratic hoops; and confronted by health plans that provide little, 
if any, opportunity for patients to redress grievances. This happens 
too often and can be attributed to several factors.
  Our health care system is very complicated. It is comprised of 
thousands of acronyms and codes, and even has acronyms for acronyms. 
Our overly complex health insurance system intimidates and confuses 
many Americans. Many of us fail to fully examine the coverage provided 
by our health plans until we become ill, and then it is difficult to 
understand the legalese of the plan documents. Another contributing 
factor is the depersonalization of health care, which has become 
focused more on profits than on proper patient care.
  I am not embarrassed to admit that I find the complexity of the 
health system very disconcerting and am often overwhelmed by its 
intricacies. I can certainly relate to the majority of Americans who 
are overwhelmed by a system which does not meet their basic needs in a 
simple, efficient and affordable manner.
  Let me stress that I am not here today to bash managed care. I am not 
here to condemn Health Maintenance Organizations (HMOs) and the 
services they provide millions of Americans. I applaud the success of 
managed care in reining in skyrocketing health care costs, eradicating 
excessive and costly health care expenditures, and significantly 
reducing unnecessary overuse of the system. Managed care has played a 
direct role in reducing health care costs so that health care coverage 
is affordable for millions of hard-working American families.
  However, while I appreciate the important contributions of managed 
care, we must protect the rights of patients in our Nation's health 
care system. Too many Americans feel trapped in a system which does not 
put their health care needs first. They believe that HMOs value a paper 
dollar more than they do a human life.
  I know that my colleagues share my view, as do most managed care 
companies, that we cannot continue to ignore the rights of patients. 
For far too long, we have allowed the health care reform debate to be 
determined by special interest groups. Democrats are perceived as 
advocating certain principles and priorities for the trial lawyers, who 
are drooling over the prospect of unlimited and excessively costly 
litigation against insurers. Meanwhile, Republicans are perceived as 
working to protect the profit margin of the insurance companies and big 
business. As a result, this critical debate is overwhelmed with 
partisan bickering, and millions of Americans are left with no 
representation and inadequate health care.
  It is time for all of us to put aside partisanship and the influence 
of special interests to work together for what is needed and wanted by 
our constituents--safe, quality, affordable health care.
  I believe several fundamental health care principles must guide our 
health care debate:
  First, we must put Americans in charge of their own health care. 
There are too many people who feel overpowered and overwhelmed by the 
current medical system. The current structure has created a caste 
system, and many patients believe they have become the serfs. Patients 
and their doctors should control their health care decisions, not HMO 
bureaucrats or political bureaucrats in Washington. Physicians 
utilizing the best medical data must make the medical decisions, not 
insurance companies or trial lawyers. We need to put in place a 
balanced system that allows managed care companies to reduce costs but 
also reinvigorates the patient-doctor relationship which is essential 
for receiving optimal care.
  On the other hand, patients need to recognize that they cannot rely 
solely on doctors to always provide the best medical options. We each 
have a responsibility to learn how our medical plan operates, read 
about the options available to us and our family before we become sick, 
and most importantly, become better consumers of health care. I don't 
think many people would enter a salesroom or bank unprepared with the 
pertinent information for purchasing a new car or home, but too many of 
us blindly enter into major decisions affecting our health without 
doing any research. I know this is not easy, particularly with our very 
complex health care system and when so many of us barely find the time 
for sleep between work and family responsibilities. But we must become 
better advocates for ourselves in this complex medical system.
  To that end, the government should help Americans become educated 
consumers by ensuring pertinent health care information is readily 
accessible. I have advocated and will continue to advocate a central 
web site or other service which simplifies research for Americans as 
they gather data on available health care options.

[[Page S8617]]

  Second, we must improve access to affordable health care. It is 
simply disgraceful that 43 million Americans can not afford health care 
coverage. This is the largest number of uninsured citizens in over a 
decade, despite our strong economy and past actions to provide greater 
access to medical care. We must continue building upon already enacted 
reforms by expanding medical savings accounts, offering flexible 
savings accounts, providing full tax deductibility for self-employed 
health insurance costs, and allowing tax deductibility for long-term 
care expenses.
  We must stop wasting our limited resources on pork and wasteful 
spending projects, so that we have more money to assist Americans who 
are uninsured and can not afford to put money away in medical savings 
accounts or will not be able to benefit from a tax credit. We should 
provide more funding for our nation's community health centers which 
are a tremendous resource in helping millions of Americans gain access 
to health care who would otherwise go without. Community health centers 
have instituted a sliding fee schedule which allows people to 
contribute what they can afford and still receive health benefits. We 
should strengthen and expand these successful centers throughout our 
  In addition, our tax code impedes a competitive market by prohibiting 
many Americans from truly being health care consumers. Many people lack 
purchasing power and are dependent on their employers for health care 
coverage. Tax benefits should not be limited for health care purchased 
only by big businesses. We should develop a method for providing the 
same tax benefits to individuals and families.
  Third, Americans must have a choice of doctors to meet their health 
care needs. Today, too many women cannot go directly to an obstetrician 
or gynecologist for medical care. Instead, they are forced to waste 
valuable time seeking a perfunctory referral from a ``gatekeeper'' 
doctor before they can go directly to their OB/GYN. The same is true 
for children. Mothers and fathers should be allowed to take their 
children directly to a pediatrician. Instead, the current system forces 
them to go through a gatekeeper for referral. Women and children must 
be given the opportunity to seek care directly from the trained 
professionals best suited to address their unique health needs.
  Additionally, Americans should be free to choose their doctors, 
including specialists, if they are willing to bear the additional costs 
which may accompany this freedom. People should be able to enroll in a 
point-of-service plan with access to a multitude of physicians, rather 
than be limited to an HMO which restricts freedom of choice in doctors.
  Fourth, we must guarantee access to emergency care. If a man or woman 
in Phoenix, Arizona fears they are having a heart attack, they should 
not be required to seek approval from their managed care company prior 
to calling an ambulance and going to an emergency room. Any bill we 
pass must guarantee care in an emergency room without prior approval 
from an HMO if the person believes that it is an emergency situation.
  Fifth, we must ensure continuity of care. Individuals who are 
pregnant, terminally ill, or institutionalized should be given special 
consideration so that their necessary care is not interrupted abruptly 
if their employer changes health plans.
  Sixth, doctors must be able to communicate openly and fully with 
their patients. Today, some doctors are prevented by HMOs from openly 
discussing all medical treatments available to a patient. This is 
unconscionable. HMOs must not be allowed to stop doctors from openly 
discussing all possible care available, even if the procedures are not 
covered by the HMO. A doctor's loyalty must be to the patient and not 
an HMO's bottom line.
  Seventh, a free and fair grievance process must be available in the 
event an HMO denies medical care. A mother should have options when she 
is told her son or daughter's cancer treatment is not necessary and 
will not be covered by her insurance. We can not support a system that 
leaves that mother powerless against corporate health care. She must 
have access to both internal and external appeals processes which are 
fair and readily available and which use neutral experts who are not 
selected, paid, or otherwise beholden to the HMO. In life-threatening 
cases, there must be an expedited process.
  Finally, once all options to receive necessary medical care have been 
exhausted, including an external appeals process, and that care has not 
been appropriately provided, every American should have the right to 
seek reasonable relief in the courts. I find it incredible that HMOs 
and their employees are able to avoid responsibility for negligent or 
harmful medical care. Americans covered by ERISA health plans should 
have the same right of redress in the courts as those who are enrolled 
in non-ERISA plans if they are unable to receive a fair resolution 
through an unbiased appeals process. We must ensure that patients 
receive the benefits for which they have paid and rightfully deserve. 
We must also ensure that unscrupulous health plans not go unpunished 
when they act negligently, resulting in harm to a patient.
  I drafted a compromise on this issue which would be fair to patients 
and HMOs and would not cause excessive and costly lawsuits. The 
proposal, which is filed as amendment number 1246, would require 
patients to go through both the internal and external appeal processes 
if they were unsatisfied with care or decisions of their HMO. Once the 
appeal process reached a decision, they could accept the decision, or 
if they felt they still had not been treated fairly, they could go to 
the courts. In court, they could receive compensatory damages with a 
cap of $250,000 on non-economic damages.
  I believe this is a fair and reasonable compromise which would allow 
patients to be compensated, but eliminates the potential for 
extravagant awards that could drive up the cost of health care. 
Unfortunately, I was precluded from calling up this amendment and 
another amendment which would have protected the rights of children 
born with birth defects (amendment number 1247) because of the 
stringent controls established by the Leadership for debate on this 
  It is unfortunate that this health care reform debate has been 
controlled by special interest groups on both sides and mired in 
partisan political maneuvering. This has become a debate--not about 
providing affordable access to quality health care for all Americans--
but a debate about preserving the positions of competing special 
interests. It has become a debate about the interests of trial lawyers 
versus the interests of insurance companies--not the interests of 
patients. No reasonable compromise has been offered on either side to 
resolve issues like liability, choice, access, and cost. Instead, we 
are voting on competing proposals at the extremes.
  This is not a debate. It is a contest--a contest between parties and 
special interests. And it is a contest that no one--not Republicans, 
not Democrats, certainly not the American people--wins, except, of 
course, the special interests who are only concerned about their 
financial well-being, rather than the physical or financial well-being 
of every American. It is a shame that this body is so controlled by 
special interests that we cannot even put the health of the American 
people ahead of politics.
  I cosponsored the original Republican Patients' Bill of Rights, S. 
326. And despite the concerted efforts of the trial lawyers and the 
insurance companies and those more interested in partisan politics than 
the health of the American people, we have succeeded in adopting some 
much-needed improvements to the original bill. For example, the 
external appeal process has been made more independent of the influence 
of the insurance companies; a small step has been taken toward 
requiring HMOs to pay for an individual's participation in a clinical 
trial; it requires expanded access to specialists and emergency medical 
care; and it mandates extended hospital care following mastectomies and 
related surgeries. These improvements are a step in the right 
direction--toward putting the needs of patients first.
  Because of these changes, I am reluctantly supporting final passage 
of this legislation. I am doing this because I believe it is important 
to move forward and enact legislation to implement

[[Page S8618]]

much-needed health care reform. The House will soon take up health care 
reform, and I hope they will pass a reasonable health care reform bill 
which honestly puts the needs of patients first. We can then work for a 
practical and fair compromise during conference.
  I want to put my colleagues on notice that, if a conference agreement 
comes back to the Senate that does not meet the standard of putting 
patients first, then I will have to oppose that legislation. This is 
too important an issue to allow the influence of special interests to 
prevent us from doing what is right for all Americans.
  Mr. NICKLES. Mr. President, I call on the chairman of the HELP 
Committee, Senator Jeffords, for 2 minutes.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. JEFFORDS. Mr. President, I will make my full statement after the 
vote, but this bill gives new consumer protections to the 48 million 
Americans in self-insured plans that the States are unable to protect. 
This bill creates a new, binding, internal/external appeals process for 
124 million Americans. This bill also protects 140 million Americans 
from having their predictive genetic information used to deny them 
health insurance coverage, and it expands access to health insurance 
through increasing affordability and choice of health care options.
  As we prepared this legislation, we had three goals in mind. First, 
to give families the protections they want and need; second, to ensure 
that medical decisions are made by physicians in consultation with 
their patients; and finally, to keep the cost of this legislation low 
so it does not displace anyone from being able to get health care 
  The Patients' Bill of Rights was not crafted easily and it was not 
crafted hastily. This legislation is a result of over 2 years of work 
by the Senate HELP Committee. In March of 1997, I chaired the first of 
17 hearings on the topic of improving health care quality. In April of 
1998, I chaired a committee field hearing at Fletcher Allen Hospital, 
in Burlington, VT. Numerous leaders from the Vermont medical profession 
and Vermont insurance regulators pointed out the State of Vermont 
already has passed 22 patient protections, including direct access to 
OB/GYNs and a ban on gag rules and a continuity of health care 
provision. Vermont's most pressing need, according to these State 
providers, was to enact protections for those individuals in self-
funded plans that the States could not protect.
  The Vermont health providers also stressed their strong concern that 
any Federal health care legislation not increase costs. The 
Congressional Budget Office estimates that the Kennedy proposal would 
have raised health insurance premiums by 6.1 percent. A study 
commissioned by the AFL-CIO concluded that such an increase would cause 
1.8 million Americans to lose their health insurance. This would mean 
approximately 4,000 Vermonters would lose their health insurance. The 
Vermonter who could still afford health insurance would have to pay an 
additional $328 a year for family coverage.
  During the battles over the last few weeks, we have heard a great 
deal of biting, political rhetoric. But we cannot forget that the real 
issue is to give Americans the protections they want and need in a 
package they can afford and that we can enact. We must pass this bill.
  Mr. NICKLES. Mr. President, how much time remains for both sides?
  The PRESIDING OFFICER. For the majority, 11 minutes 20 seconds, and 
13 minutes 1 second to the Democratic side.
  Mr. NICKLES. I yield 2 minutes to the Senator from Pennsylvania, also 
a very strong contributor to the membership of our task force.
  Mr. SANTORUM. Mr. President, I thank Senator Nickles for his 
outstanding leadership on this task force. We would not be where we are 
today, passing what I believe is a very useful and precise way to 
respond to a very complicated problem. Senator Nickles shepherded this 
task force with great skill. He deserves a great amount of the credit 
for what is being accomplished today.
  With respect to the comments that this bill is dead, it is not going 
anywhere, the President is going to veto it, I would say this: Of all 
the criticism I heard about the Republican bill, most of it is it just 
does not go far enough. It is not that what we are doing is not right 
or it is not in the right direction; it just does not do enough.
  I do not know about you, but I have watched Congress for a long time. 
I have seen a lot of things happen in this institution, where sometimes 
it is good just to do something in the right direction, that we all 
agree is in the right direction. I do not think anyone is saying what 
you are doing is absolutely antithetical to good health care, you say 
internal/external--no. We need more of that, we need a tougher one, but 
not to say what we are doing is bad. It just is not enough. I am 
hopeful people will say doing something that is good should not be the 
enemy of what some believe is the best.
  So I am hopeful we can get together, the House has to act, they are 
going to pass a different bill, and then we can sit down with the 
President and our colleagues on the other side of the aisle and do 
something that is good. Let's do something on which we can agree. Let's 
do something that can move the ball forward and work together so we can 
go out and say: We, in fact, did protect patients. We did improve the 
quality of health care. Maybe not as much as some would suggest we 
could--I differ with that--but we did do something positive. We did 
improve access to health insurance. We did not blow a hole and increase 
costs dramatically to drive people out from health coverage. That is 
what we need to do, to move forward and do something good.
  Mr. NICKLES. Mr. President, I yield 2 minutes to the Senator from 
Missouri, Mr. Ashcroft.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. ASHCROFT. Mr. President, we have a great opportunity, which we 
will capitalize on this evening, by voting for this measure which has 
been the result of hard work by a team and task force of individuals 
dedicated to improving the health care of Americans and access to 
health care. I am grateful for it. I totally reject the notion that 
this is a victory for the status quo. One person can make this a 
victory for the status quo. Bill Clinton can. He could veto this. I do 
not believe we should think that he will. I believe we should continue 
to work and present him with this great opportunity to lift the status 
of health care of Americans.
  One area I was concerned was that people ought to get the right 
treatment from HMOs and that, if they have a disagreement with an HMO, 
they ought to be able to settle that disagreement in a way that gets 
them treatment. So an appeals process was established for an internal 
appeal by the patient and an external appeal.
  I sought to improve the bill. It did not include this provision, but 
I offered an amendment which said, if the external appeal agreed with 
the patient and said that the patient deserved the treatment and 
ordered the HMO to do it, and if the HMO would not provide the 
treatment--we have amended this bill now so the person is eligible to 
go and get the treatment elsewhere and charge the HMO, and the HMO that 
wrongfully refused the treatment to the patient has to give a $10,000 
penalty payment to the patient.
  This really gives the patient what the patient needs, health care. 
The Democratic proposal sends the patient to court. How disappointed 
would you be, as a person, if you called for an ambulance and you found 
them taking you to the court instead of to the hospital?
  We do not want to end up with a dead relative and a good law case. We 
want to end up with good treatment, and that is what this bill will do. 
It has a strong set of enforcement provisions to respect the rights of 
individuals, and if the HMO fails to comply with that enforcement, we 
send the people to the hospital, not to the courtroom.
  The PRESIDING OFFICER. The Senator's time has expired.
  Who yields time? The Democratic leader.
  Mr. DASCHLE. I yield 3 minutes to the distinguished Senator from 
Rhode Island.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. REED. I thank the Chair.
  Mr. President, I rise this evening with great regret, regret that we 

[[Page S8619]]

not done what we should have done to protect the children of America 
who are in a managed care plan. The bill before us that we will vote 
upon is a litany of missed opportunities and missed statements with 
respect to the status of children in managed care. For example, access 
to pediatricians. They are classified as specialists, so they cannot be 
automatically the primary care provider to children. Frankly, most 
Americans believe that is exactly who they are.
  Second, there is no guaranteed access to pediatric specialists. We 
have language in this Republican proposal that talks about age-
appropriate specialists. That is language written by HMO lawyers to 
ensure that they can magically transform an adult specialist, who might 
have seen a child at 1 year or 2 years, into an age-appropriate 
specialist, just as they do today.
  We have a situation in which we have not provided for expedited 
internal and external appeals based upon developmental needs of a 
child. Children are different from adults. They have conditions for 
which an adult could wait months and months and months for adequate 
care, but in a child they become critical because the child's 
development is critical. These are shortcomings that will leave the 
children of America shortchanged.
  We can and must do more. We could have done more, and we could have 
given all the individuals in managed care the right at least to go to 
consumer assistance centers, ombudsman programs, so they could have 
their questions resolved, and we pushed that aside.
  Frankly, the greatest disappointment I have is that we heard a lot of 
discussion this evening and the last few days about the cost of this 
bill. We could give all these protections to children, every item in 
the Democratic proposal, and the cost would be negligible, because one 
of the good news issues is that children are generally healthy. But for 
those chronically ill children, it would have made all the difference 
in the world.
  Today is not the day we are helping the children of America in 
managed care, but I hope we will some day, and that day will come, and 
it must come.
  I yield the floor.
  The PRESIDING OFFICER. The Democratic leader.
  Mr. DASCHLE. Mr. President, for the last 2 years, Democrats have 
worked tirelessly for this moment. We have been guided by a very simple 
goal. That goal is to protect the rights of 160 million Americans who 
have private health insurance. Democrats have tried to answer the 
question: What should motivate that system, money or medicine? What 
should be the crux of our health care system? Do we put a money screen 
on decisions, or do we put a medical screen on decisions? We concluded 
that when it comes to someone's life, someone's health, the answer to 
that question is very simple.
  Democrats have outlined six basic principles. The first is that all 
160 million Americans ought to be covered by patient protections. We 
offered an amendment to ensure that all 160 million Americans would be 
covered, and our Republican colleagues defeated it.
  The second principle is to ensure we provide access to needed care 
regardless of circumstances: access to qualified specialists, real 
access to emergency rooms, access to lifesaving treatments and drugs, 
access to quality care that is unique to America in some cases. We 
offered amendments to provide these protections, and our Republican 
colleagues defeated them.

  The third principle is simply this: That doctors ought to make 
medical decisions. Not accountants, not bureaucrats, not people with 
green eyeshades who make monetary decisions instead of medical ones. 
Let doctors make those decisions. We offered an amendment, and our 
Republican colleagues defeated it.
  The fourth principle is quite simple to understand, but extremely 
important to millions of Americans. Let us, above everything else, 
protect the doctor-patient relationship. Let us ensure that all doctors 
can talk about all medical options with their patients when they are 
facing critical medical decisions. Let us ensure that we protect 
doctors from retaliation by managed care companies. And let us ensure 
that chronically ill patients get to keep their doctors.
  Mr. President, that is not too much to ask. When we talk about 
rights, basic rights in this country, what could be more basic than 
that? We offered an amendment, and our Republican colleagues defeated 
  The fifth principle is one we also feel strongly about, and that is 
accountability. I have heard many of our Republican colleagues say: You 
should not have to go to court to get your health care; the important 
thing is getting the care you need.
  We agree with that, and we provide a strong, independent appeals 
process. But all too often, HMOs make decisions that are wrong. And all 
too often, patients are left with absolutely no recourse. We simply 
believe that when this happens, when an HMO or an insurance company 
makes the wrong decision, you ought to have some recourse. You ought to 
be able to hold them accountable. You can with a doctor. You can with a 
hospital. Why not with an insurance company?
  Finally, I have never been more proud of our women Senators, and I 
have never been more convinced that we need more women in the Senate 
than I am tonight, because they have enlightened us, Mr. President, in 
our caucus and on the floor. They have sensitized us to women's issues 
unlike anything I have ever heard before. There isn't a man in the 
Senate who can tell us what they told us, with the eloquence, with the 
passion, with the feeling. They told us there are special needs of 
women that just are not being addressed. If we are going to make this 
system work better for millions of Americans, we ought to understand 
that. So we offered an amendment to ensure that women's needs are 
protected, and our Republican colleagues defeated it.
  Tonight, I agree with those who have said we missed a golden 
opportunity to pass a real Patients' Bill of Rights. We have offered 
clear choices. The majority has opposed us every step of the way. The 
majority leader said, let's work together, work with us. We have made 
every effort to work with our colleagues, but the only thing we have 
gotten back is what I believe the Republican bill truly stands for when 
it calls itself HMO reform. In my view, HMO stands for ``half measures 
only.'' That is all we have gotten--half measures. To those who say, 
isn't this just a little bit better? my answer is no. In all sincerity, 
I believe we will actually lower the standard when we pass this bill 
tonight. We have not made progress; we have moved backward.
  I am always amused, frankly, that our Republican colleagues turn to 
taxes anytime they want to fix a problem. I am surprised there is not a 
tax break for observing the speed limit. Tonight, there is another $13 
billion bill that we will be voting on, most of which is a tax break. I 
support meaningful tax reform, targeted especially to working families. 
But when we talk about a Patients' Bill of Rights, are we really 
talking about the need for a tax break, or a break from the kind of 
oppression that many people feel with their insurance and managed care 
  I also regret the fact that we did not have an opportunity to debate 
the bipartisan bill. I wish we could have had a good debate on the 
Graham-Chafee bill. I wish we could have at least moved forward with 
that piece of legislation. I believe there would have been 45 
Democratic votes for that bill tonight. The problem is, as I understand 
it, there are only three on the Republican side.
  Even if we offered a bipartisan bill, cosponsored by two very 
prominent Members of our Senate tonight, we would only have the same 48 
votes we had on almost every single amendment we offered.
  The President will veto this bill because he and we know we can do 
better than this, that we should not lower the standard. We should do 
far more to ensure that we cover all patients, all 160 million. 
Ultimately, I believe, as Senator Kennedy noted, we will pass a 
comprehensive Patients' Bill of Rights.
  This afternoon I was reminded again of how critical this is to real 
people. Throughout this debate, what meant most to me is the experience 
I have had in talking to real people whose lives have been affected by 
managed care companies, whose lives have been directly, and in some 
cases, negatively affected by their decisions.

[[Page S8620]]

  Justin Dart, a full-fledged lifelong Republican was out on the lawn 
this afternoon. He was there in his wheelchair, surrounded by medical 
equipment needed to function and maintain his health. He has 
experienced medical care. He has benefited from it, and, unfortunately, 
as he related again today, he has been disappointed by it.
  In the most passionate and most eloquent way he could say it, with 
his lips quivering, speaking to all of us, as he urged the Senate to do 
the right thing tonight, he said: ``I'll give my life for my country, 
but I won't give it to an insurance company.''
  Too many people have given their good health, and in some cases their 
lives, because decisions have been made by insurance companies for the 
wrong reasons. We are going to fix that. I am hopeful, as others have 
expressed, we can do better, we can find a way to ensure that all 
Americans are going to be protected, as we know they should be. We 
should not give up until we know we have done the job right.
  Mr. President, over the past three-and-a-half days, we have finally 
had the opportunity to have a good debate on several critical issues 
affecting patients' rights. Senate Democrats--and the patients of 
America--have waited a long time for it. Because of limited time, other 
critical issues remain to be debated. Still, we are glad the Senate has 
spent most of this week debating two dramatically different approaches 
to patients' rights. The American people deserve to understand the 
differences. They are important.
  Mr. President, the Senate has indeed missed a golden opportunity to 
pass a real Patients' Bill of Rights.
  Instead, the Republican majority is handing the insurance industry 
its version of HMO reform: Half Measures Only.
  On critical issues, we gave our colleagues a choice: guaranteed 
patient access to the closest emergency room versus ambiguous 
assurances of limited emergency care; access to clinical trials for all 
life-threatening and disabling diseases versus limited clinical trials 
only for cancer; medical determinations made by doctors and other 
health professionals versus decisions made by HMO accountants; the 
right to hold HMOs accountable for their decisions that harm or kill 
patients versus the right to live with whatever bad decisions an HMO 
might make; and, of course, the extension of basic rights to all 
privately insured Americans versus the exclusion of over 100 million 
  The list goes on.
  All that was necessary on the Senate's part was to listen to the 
doctors and nurses and other health professionals. To listen to the 
American people. Unfortunately, a majority of the Senate chose to 
ignore those voices and listen instead to the industry that stands to 
continue to profit from our failure to provide meaningful patient 
protections. The industry that opposes even minimal protections and any 
means of enforcing them.

  Frankly, we are astounded. Yes, we were told repeatedly by Senator 
Nickles and Senator Gramm and Senator Frist that this would happen. 
That their plan was simply to block this legislation from ever coming 
to the Senate floor, since they did not want to be in a position of 
having to defend an indefensible position. When that plan failed, they 
made it clear their strategy was focused on political cover instead of 
meaningful reforms. (That cynical strategy will ultimately fail, too.)
  Still, we held out hope--that reason would win out in the end. That 
the overwhelming public support for our modest reforms --support that 
knows no partisan boundaries outside of Washington, DC--would influence 
at least a handful of Senate Republicans. We are astounded that it did 
not--that there are not five Republican senators willing to challenge 
their leadership in order to please over 80% of the American people.
  Maybe some of them just didn't read the two bills. The other day, 
Senator Gramm again invoked the name of his ``mama'' and said he wants 
her to be able to call her doctor instead of a bureaucrat when she gets 
sick. Well, we agree. But, given his concern, Senator Gramm and the 
vast majority of his Republican colleagues are supporting the wrong 
  It is the Democratic bill that protects patients' rights to 
communicate directly with their doctor and make medical decisions with 
their doctor--without inappropriate interference from a nameless, 
faceless HMO accountant.
  Senator Gramm and other opponents argue: ``The Democratic bill is a 
step toward government-run health care.''
  That charge is simply untrue--under our bill, health care 
professionals, not the government, would make decisions.
  Ours is not a step toward government-run health care; it's a step 
away from HMO accountant-run health care.
  The insurance industry's TV ads opposing the Democratic bill warn 
that people get hurt ``when politicians play doctor.'' Again, that is 
the height of irony.
  Senate Democrats are not playing doctor. Under the current system, 
and under the Republican bill, it is HMO accountants who are playing 
doctor, denying the real doctors the ability to implement medically 
sound decisions. And real people are getting hurt every day.
  Let's be clear--we're not opposed to managed care.
  The theory of managed care--that a primary care physician and health 
network will understand the whole patient and manage his or her care to 
improve patient health--is a good one. But all too often that theory 
has been corrupted in practice.
  Too often, instead of managed care, we have managed costs.
  The Hippocratic Oath is not about saving money; it's about saving 
lives. And while we should take reasonable actions to curb health care 
costs, we cannot do it at the expense of Americans' health. 
Furthermore, any costs associated with the Democratic bill would be 
minimal--and nonexistent for HMOs that already provide the medical 
services they should.
  The United States has the best health care in the world--the best 
doctors, nurses, facilities, and equipment. But what good is the best 
health care in the world if insurance company accountants block your 
access to it?

  Over the course of the last several days, my Republican colleagues 
have rejected every Democratic proposal to improve Americans' access to 
better health care. In one twist, they rejected our proposal to protect 
women from being discharged from the hospital too soon after breast 
cancer surgery, only to turn around the next day and take credit for 
that proposal at the same time they denied those same breast cancer 
victims--and other women and men--access to clinical trials for new, 
life-saving treatments.
  It has been a pattern all week: reject the real patient protections, 
and, in the specific cases where there's enough of a public outcry, 
offer up a half-measure that pretends to solve one problem at the 
expense of another. We saw the same tactic on the juvenile crime bill, 
when Republicans bent over backwards to avoid any meaningful gun 
legislation. Their operating principle: block the real solution and 
take credit for a false one.
  Perhaps the most egregious and disheartening example of hypocrisy is 
the majority's approach to determining which Americans will benefit 
from the half-measures they are willing to support. Democrats believe 
all 161 million privately insured Americans should be guaranteed a 
national floor of patients' rights. We are talking about the basic 
rights of American patients. Two people living on the same street--
possibly insured by the very same company--should not have two 
different sets of ``basic rights'' simply because they work for 
different employers.
  Under the Republican bill, only 48 million Americans--those in self-
funded plans--are covered by the vast majority of their protections. 
They exclude over 100 million Americans from their so-called 
  The majority has argued that this exclusion is necessary to satisfy 
one of their core principles: that the states should be left to 
regulate HMOs. In the Nickles amendment striking the Kennedy amendment 
to cover all privately insured Americans, the majority stated, ``It 
would be inappropriate to set federal health insurance standards. . . . 
One size does not fit all, and what may be appropriate for one State 
may not be necessary in another.'' That amendment passed Tuesday, by a 
largely party-line vote.
  So the majority established that as its core principle, one that 

[[Page S8621]]

the need to provide all Americans basic health care rights. Yet listen 
to the core principle laid out in the Snowe amendment I mentioned 
earlier. (Curiously, the Snowe amendment, which every Republican 
senator supported, extended its protections to all privately insured 
  In the Snowe amendment, the majority stated a ``core principle'' 
diametrically opposed to the core principle of the Nickles amendment: 
``In order to provide for uniform treatment of health care providers 
and patients among the States, it is necessary to cover health plans 
operating in 1 State as well as health plans operating among the 
several States.'' That amendment passed Wednesday at 1:23 pm.
  Two-and-a-half hours later, the Republican majority reversed itself 
once again. They voted against a Democratic amendment to expand 
coverage to all privately insured Americans, regardless of their 
condition or disease--not just women with breast cancer. The whole idea 
behind a comprehensive Patients' Bill of Rights is that it will cover 
all people and all diseases, not simply those that get the most media 

  Some of my colleagues seem to have two contradictory sets of core 
principles on the same issue on the same day. And, at the end of the 
day, the result is that, for all but one disease, the majority has 
chosen to deny more than 100 million Americans any protections at all.
  It's a cynical, and destructive, philosophy. The American people are 
sure to reject it, for they understand this issue far better than some 
politicians seem to think. How could they not understand? Every 
American knows someone who has been denied timely, necessary treatment 
by an HMO that put costs above patient care.
  Our bill is a modest one. It would guarantee American patients a 
minimum level of protection to ensure timely access to quality health 
care. That's what Americans expect when they buy health insurance, and 
that's the least they deserve.
  I am disappointed that, this week, America's patients were denied 
that minimal protection. But I can assure them that the fight for their 
rights is far from over. Senate Democrats--and maybe even a few brave 
Republicans--are committed to a real Patients' Bill of Rights, and it 
will pass, whether it's next week, next year, or next Congress. I 
guarantee it.
  Mr. President, I also want to take a moment to thank some of the 
multitudes of people who have fought so hard for a real Patients' Bill 
of Rights and who are committed to that fight until we succeed.
  I thank Senator Kennedy. I must say, I do not know if we have a more 
passionate, more articulate, more aggressive defender for working 
people in this country than we have in Ted Kennedy. He is an 
inspiration. We all are deeply indebted once more for the leadership he 
has provided not only in our caucus but in the Senate on this 
extraordinarily important issue. I am proud to have worked with him to 
develop S. 6. Also, he, like many others, has been tireless on the 
floor this week, and I commend him for doing such a good job for our 
entire caucus.
  I thank my assistant Democratic leader whose presence on the floor 
has just been phenomenal. I do not know how I could do what I do were 
it not for the fact that he is always there--always there.
  I thank my caucus. I do not know that I have ever been more proud of 
the caucus than I am tonight for their participation, for their 
leadership, for their willingness to roll up their sleeves to do their 
homework, to come to the floor and debate, as they did so aggressively 
all week. In one way or another, every member of our caucus has 
contributed to this debate and to the two-year effort to make it 
possible. More of them than I could name right now have contributed 
enormously, often selflessly. Our caucus has never been more unified. 
We believe in patients' rights, and we are committed to fight for them.
  So, I thank every Democratic senator. I say to each of you, it truly 
would not have been possible without you.
  I thank, as well, the majority leader for allowing this debate, and 
the assistant Republican leader. This debate happened because they 
agreed to schedule it. It would not have happened were it not for that 
agreement, and I am grateful for that.
  I thank Senator Frist for his involvement because of his unique 
experience in life.
  A special thanks goes to the more than 200 organizations representing 
doctors, nurses, and other health care providers as well as consumer 
groups, that have supported our bill. They pulled out all the stops 
they could, with whatever limited resources they had, to ensure that 
they were part of this American Democratic system. Again, I cannot name 
them all. But their shared commitment to a comprehensive, meaningful 
Patients' Bill of Rights has been critical to this process. And I say 
to each of them, don't be disheartened by today's loss. As I said 
before, we will ultimately prevail, and patients will ultimately be 
  I should send that same message to Justin Dart and all the men, 
women, and children who have shared their stories--often painful 
stories--with us. This debate could not have been held were it not for 
the fact that they put meaning to this debate in ways that only they 
can. Their stories remind us that this is not a theoretical debate. It 
is a real choice affecting real people who have suffered and will 
continue to suffer in the absence of meaningful reforms. We thank you, 
and we will continue the fight.
  Last, I want to thank the people who are too often thanked last, the 
staff--the staff in every office who have worked in various ways to 
ensure our long struggle led to a real floor debate.
  Senator Kennedy's staff deserves special recognition. I'm sure there 
were many others, but I want to recognize four of them in particular: 
Michael Myers, David Nexon, Cybele Bjorklund, and Jim Manley. As 
always, they are as amazing as their boss. They have been absolutely 
essential to the effort.
  Finally, I want to thank my own staff--both those in my own office 
and those throughout the Leadership Committees. At the risk of leaving 
someone out, I'm going to try to name most of them. Few people know how 
hard they work, and their commitment to service and to this cause of 
patients' rights is unsurpassed.
  From my staff, I want to thank especially: Jane Loewenson, Elizabeth 
Hargrave, Shelly Ten Napel, Pete Rouse, Laura Petrou, Bill Corr, Mark 
Patterson, Ranit Schmelzer, Molly Rowley, Marc Kimball, Chris Bois, and 
Elizabeth Lietz.
  From the Floor Staff, I thank Marty Paone, Lula Davis, Gary Myrick, 
and Paul Brown. We are very lucky, as Republicans and Democrats, to 
have the floor staff that we do. We owe them a big debt of gratitude, 
because without them we could not do what we do.
  From the Leadership Committees, my special thanks to: Bonnie Hogue, 
Caroline Chambers, Chuck Cooper, Maryam Moezzi, Tim Mitchell, Jodi 
Grant, Nicole Bennett, Maria Meier, Alexis King, Jamie Houton, Andy 
Davis, Mary Helen Fuller, Marguerite Beck-Rex, Brian Barrie, Kobye 
Noel, Katherine Moore, Nate Ackerman, Rick Singer, Clare Flood, Adriana 
Surfas, Kevin Kelleher, Brian Jones, Russell Gordon, Robyn Altman, 
Jeremy Dorin, Paige Smith, Chris Casey, Jeff Hecker, and Toby Hayman.
  So tonight, Mr. President, the fight goes on. I am optimistic that in 
the end we will have the opportunity to debate, once more, how we can 
resolve this issue, how we can stick to those six principles, how we 
can ensure that this American health system, which is so good in so 
many ways, can be made better.
  I yield the floor.
  Mr. NICKLES addressed the Chair.
  The PRESIDING OFFICER. The assistant majority leader.
  Mr. NICKLES. Mr. President, how much time is left on our side?
  The PRESIDING OFFICER. Six minutes 47 seconds.
  Mr. NICKLES. First, I compliment my colleague and friend, Senator 
Daschle--this has been a good debate--as well as Senator Reid and 
Senator Kennedy. We have had a good debate, good discussion of the 
issue. We have never had a cross word. We have had some good debate, 
excited debate.
  I want to call on an additional couple members of our task force--
first Senator Collins.
  The PRESIDING OFFICER. The Senator from Maine.

[[Page S8622]]

  Ms. COLLINS. Thank you, Mr. President.
  I begin by expressing my appreciation to Senator Nickles and my other 
colleagues on the health task force. We have labored hard during the 
past year and a half, and I am very proud of the legislation we 
  I also thank our staff, particularly Priscilla Hanley on my staff who 
has worked night and day during the debate.
  We are on the verge of passing landmark legislation that will expand 
access to health care, that will hold HMOs accountable for providing 
the care that they have promised, and that will improve the quality of 
health care in this country.
  I am particularly pleased that the final bill contains provisions I 
offered to provide a tax deduction for the purchase of long-term care 
insurance, to ensure that women have direct access to OB/GYNs without 
having to go through a gatekeeper, to guarantee that a terminally ill 
patient is able to keep his or her doctor even if that doctor has left 
the HMO network, and to expand patient access to a variety of health 
care providers.
  At the heart of this bill is the internal and external appeals 
process that will provide coverage and protections to everyone in all 
employer-sponsored health plans. This appeals process will ensure that 
consumers receive the care they have been promised up front, before 
harm is done, and without having to hire an expensive lawyer and resort 
to a lawsuit in order to get the care they need.
  That is the heart of this bill. We have worked hard to provide these 
kinds of protections which will ensure that people do get the treatment 
they need when they need it--not damages years later in a courtroom.
  I thank the assistant majority leader for the time.
  I am proud to be a supporter of this important legislation.
  Mr. NICKLES addressed the Chair.
  The PRESIDING OFFICER. The assistant majority leader.
  Mr. NICKLES. I thank the Senator from Maine for her outstanding 
leadership. I also thank the Senator from Missouri who mentioned a few 
of the changes he made in the appeals process that I hope my colleagues 
listened to. He made this a much better bill. I thank my colleague.
  When you look at the appeals process that Senator Ashcroft has 
explained and Senator Frist has explained, no one can say this isn't a 
very substantive bill that applies to all employer-sponsored plans.
  Next, Mr. President, I yield 2\1/2\ minutes to the Senator from 
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. FRIST. Mr. President, I just want to openly thank Members on both 
sides of the aisle. This has been a very challenging bill. Although I 
think it is going to be more satisfactory to this side of the aisle 
than the other side, it is a bill that I think we can all, after 
tonight, go home, think about, talk to our constituents about, and 
recognize that we have accomplished exactly what at least I wanted to 
accomplish; and that is, as I said 4 days ago when this first started, 
to keep the patient at the center of all of this debate--not special 
interests and not the rhetoric that goes back and forth, but how we can 
ultimately come up with a bill that helps patients.
  We have strong patient protections. We have addressed quality head on 
and hit it with internal, external review. It has been strengthened 
from both sides of the aisle. It has been strengthened by 
recommendations that we have had through our staff and working 
  If we look at the access provisions, they are very strong, the 
medical savings accounts, the full deductibility for the self-employed, 
all of which we have done, the gag clauses, the access to specialists, 
direct access to obstetricians, what we have accomplished in terms of 
emergency room access, continuity of care. If we put it altogether, it 
comes back to the benefit of the patients, smack-dab at the heart.
  When people ask me all the time, what can you do as a Senator to 
really help individual people, it comes down to this bill, I believe, a 
first step.
  Our bill does take medical decisions out of the hands of a huge HMO 
bureaucracy and puts them back to that very special relationship, one I 
have been blessed to participate in again and again, that special 
relationship of the doctor-physician, the provider and the patients, 
who entrust their lives to you, their lives to you, their health care, 
their quality of life, their ability to see, to walk, to have that 
heart keep beating. That is entrusted to you. We have benefited that. 
We have enriched that. We have made that better. That is what we have 
accomplished tonight.
  We have done it without markedly increasing cost because we all know, 
when cost goes up, out of control, it drives premiums up and access 
falls, and the number of uninsured are important.
  I appreciate the support.
  Mr. NICKLES. Mr. President, how much time remains?
  The PRESIDING OFFICER. One minute 28 seconds.
  Mr. NICKLES. Mr. President, I thank all of my colleagues and, 
frankly, the entire Senate for a very good debate.
  I believe we came up with a very good bill. I think we passed a bill 
that will improve health care quality. We passed a bill for anybody in 
America who has an employer-sponsored plan to have an appeal, an appeal 
that will be decided by doctors, despite some of the advertisements we 
have seen, appeals that are decided by experts, by doctors. That is 
binding and that is real. So I hope that maybe some of the rhetoric 
will tone down a little bit and we will look at what is in it.
  We also didn't do damage. We didn't say we are going to turn over 
health care plans to the Health Care Financing Administration. We are 
not going to duplicate State regulation. We will not confuse the States 
and say, no matter what you have done, Washington knows better. We 
didn't make those mistakes.
  We didn't astronomically increase health care costs. We didn't pass a 
bill that would increase the number of uninsured by a couple million.
  Final comment on the President. I hope the President decides not to 
play politics and say: We are going to veto that bill; it doesn't do 
what I want it to do.
  I hope he will work with us to pass a positive bill that will benefit 
and improve health care quality for all Americans. If he wants to play 
politics, that is his choice. If he wants to, then we don't have to 
have a bill. It is up to him. If he wants to help us pass a good bill, 
I think we can do so, that would improve health care quality for all 
  Mr. President, I yield back the remainder of our time, and I ask for 
the yeas and nays on the bill.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. Under the previous order, the two pending 
amendments are agreed to.
  The amendments (Nos. 1254 and 1232) were agreed to.
  The PRESIDING OFFICER. The question is on the engrossment and third 
reading of the bill.
  The bill was ordered to be engrossed for a third reading and was read 
the third time.
  The PRESIDING OFFICER (Mr. Hagel). The question is, Shall the bill, 
as amended, pass? The yeas and nays have been ordered. The clerk will 
call the roll.
  The legislative clerk called the roll.
  The result was announced--yeas 53, nays 47, as follows:

                      [Rollcall Vote No. 210 Leg.]


     Smith (NH)
     Smith (OR)



[[Page S8623]]

  The bill (S. 1344), as amended, was passed.
  (The bill will be printed in a future edition of the Record.)
  Mr. NICKLES. Mr. President, I move to reconsider the vote
  Mr. JEFFORDS. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. NICKLES. Mr. President, I would like to make a couple of comments 
concerning the bill. I have already stated that I very much respect and 
appreciate the tenor of the debate that we had throughout this week 
with proponents and opponents of the legislation we just passed, 
including Senator Kennedy, Senator Reid, Senator Daschle, and others. I 
think we had an excellent debate.
  I also want to thank my colleagues who really did work hard, and 
especially I thank Senator Jeffords for his leadership, and Senator 
Collins, Senator Frist, and all the members of the task force. They did 
a fantastic job.
  In addition to the Senators I just mentioned, I want to thank other 
members of the task force, including Senator Hagel from Nebraska, the 
Presiding Officer of the Senate, Senator Santorum, and other Senators 
who worked so hard.
  Also, Senator Enzi joined us and did a fantastic job on the floor, as 
well as in the Health Committee.
  A lot of people put in a lot of time and effort, and a lot of staff 
members worked very hard on both the majority side and the minority 
side. I want to recognize a few.
  First, from my staff, I thank Stacey Hughes and Megan Hauck. Eric 
Ueland, Hazen Marshall, and Mark Kirk did a fantastic job.
  In addition, I want to recognize some staff members from other staffs 
who probably spent more time in the last year and a half working on 
this issue than any other issue. I can assure you that in the last 
month, and in particular the last 2 weeks, this has been a full-time 
job, including Saturday and Sunday, and late nights almost every night: 
With Senator Collins, Priscilla Hanley; Senator DeWine, Helen Rhee; 
Senator Enzi, Chris Spear, Ray Geary, and Jen Woodbury; Senator Frist, 
Anne Phelps and Sue Ramthun did a fantastic job on a number of 
provisions; Senator Gramm, Mike Solon; Senator Gregg, Alan Gilbert; 
Senator Hagel, Steve Irizarry; Senator Hutchinson, Kate Hull; Senator 
Jeffords, Paul Harrington, who did a fantastic job both in the Health 
Committee and also on the floor, and Kim Monk, Tom Valuck, and Carole 
Vannier did a fantastic job; Senator Lott, Sharon Soderstrom and Keith 
Hennessy; Senator Craig, Michael Cannon; Senator Roth, Kathy Means, 
Dede Spitznagel, and Bill Sweetnam; Senator Santorum, Peter Stein; 
Senator Sessions, Rick Deeborn, and Libby Rolfe.
  This is an understatement because these staff members worked very 
  In additional, I wish to recognize Senator Gramm, who worked on this 
task force, and was the primary promoter of the medical savings 
account, which is a very important thing for bringing tax equity and 
  I have already mentioned Senator Roth helped us, as well as his 
staff. Senator Gregg, who led the fight, frankly, against having a 
propensity for lawsuits, did a fantastic job; Senator Hutchinson, and 
Senator Sessions.
  This was not an easy effort. It was a challenge. I think it was a 
good effort, and I think we produced a good bill because we had a lot 
of Senators who were willing to spend a lot of time trying to improve 
the quality of health care in America.
  I hope the President will not look at the rhetoric that was sometimes 
on the floor, but will look to the substance of the legislation and 
work with us to see that it will become the law of the land.
  My thanks to Senator Jeffords and others who worked so hard to make 
this happen.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. FRIST. Mr. President, I truly believe that tonight is a win-win 
situation. We have made health coverage significantly better for those 
people who have such coverage today, but, almost more importantly, we 
make it more accessible for others, and more affordable for others in 
accomplishing the many patient protections--the improvement in quality, 
the appeals, internal and external.
  A lot of people have been involved over the course of the last year. 
I simply want to add my thanks to the two leaders in this effort, 
Senator Jeffords, chairman of the Health, Education, Labor, and 
Pensions Committee, for whose committee this bill passed and was 
debated. And, through much bipartisan discussion, the amendment process 
improved a bill that the task force, after about 6 to 8 months of very 
hard work, developed.
  It was under Senator Jeffords' leadership that this bill took its 
final shape so that it finally arrived on the floor, and we were able 
to debate it.
  Senator Nickles for the last year and a half has chaired a task 
force, has been the quarterback, the manager of a broad range of people 
who participated in the study of the issues, true substantive study--
not superficial policy reviews but a substantive study of the issues. 
Senator Nickles oversaw and managed a group of people on that committee 
who have already been mentioned, including Senators Enzi, Gregg, Hagel, 
and Senator Collins who literally has been on the floor for the last 4 
days almost without leaving, participating in the debate on issue after 
  Thanks also to Senator Santorum, Senator Gramm of Texas, Senator 
Lott--especially our majority leader, Senator Lott, who spoke so 
eloquently a bit ago summarizing what this bill has been about, what it 
will accomplish, the confidence that he placed in both the task force 
and the Health, Education, Labor and Pension Committee.
  I especially want to thank several staff members: Stacy Hughes and 
Meg Hauck, who have shown leadership among all the staff members; Anne 
Phelps and Sue Ramthun, two people with whom I worked most closely with 
and who have gathered the information, digested the issues, and spent 
late nights here.
  I had the opportunity to work with Sue Ramthun over the last several 
years on health issue after health issue. This will be the last bill 
that she participates in, in the Senate--at least for a while. I say 
``for a while'' because I am hopeful she will come back to our staff. I 
recognize her tremendous leadership and her knowledge of what has gone 
on in this body in the past. It has been immensely helpful to me, 
coming here just 5 years ago, to be able to work with an individual who 
understands the institution, understands the issues, and who has been 
involved in health issues long before I came to this body.
  I want to mention Bill Baird, legislative counsel, who over the last 
4 days--and also over the past years--has participated so directly in 
allowing Members to translate these ideas to specific language for the 
bill we were able to ultimately pass. It is a win-win.
  As I said in my closing remarks tonight, the thing I will think about 
as I go home and reflect on over the last 4 days is we made real 
progress. We don't have all the answers. We don't pretend this bill has 
all the answers in establishing an appropriate balance between managed 
care, coordinated care, and that doctor-patient relationship. But we 
are getting it back into balance because it has been out of balance for 
a period of time. Our bill does take that whole doctor-patient 
relationship and make it the heart of this managed care environment.
  In closing, it has been a wonderful opportunity for me to be able to 
work, again, on both sides of the aisle as we developed this bill which 
will significantly improve the quality and access of health care for 
  Mr. JEFFORDS. Mr. President, this is a time of trial for so many 
Members to finally come to this end and have a victory which hopefully 
will not stop here but will continue. There is too much good in this 
bill not to have it become legislation that will be passed into law. I 
am confident the President, when he understands what is in here, and we 
work with the House and make

[[Page S8624]]

some changes--I am sure we can accommodate the other side and we can 
end up with a piece of legislation. Hopefully it will be done this 
  Mr. President, as chairman of the Committee on Health, Education, 
Labor, and Pensions, which had jurisdiction over this bill, I would 
like to take a moment to thank all those who have worked so hard to 
make this bill possible. This legislation has been developed over the 
course of more than two years, and a great number of people have 
positively contributed to the process.
  This bill represents a tremendous effort by the members of the HELP 
Committee. I want to thank the members of the Nickles Task Force for 
their guidance. I wish to thank Senator Nickles himself, and also the 
majority leader for their dedication to see this legislation through to 
the end.
  The staff to the members of the HELP Committee have contributed 
greatly to this bill. Rob Wasinger with Senator Brownback, Prescilla 
Hanley with Senator Collins, Libby Rolfe with Senator Sessions, and 
Kate Hull with Senator Hutchinson.
  The staff of the subcommittees carried a great deal of weight. This 
includes Helen Rhee with Senator DeWine, Chris Spear and Raissa Geray 
with Senator Enzi, Anne Phelps and Sue Ramthum with Senator Frist, and 
Alan Gilbert with Senator Gregg.
  The committee markup of this legislation lasted over 11 hours and so 
I must acknowledge the tireless efforts of Denis O'Donovan, Steve 
Chapman, and Leah Cooper from the full Committee staff. I also thank 
Bill Baird of the Legislative Counsel Office. He has provided enormous 
  I am grateful for the efforts by the staff of the GOP Health Care 
Task Force. Michael Cannon with the RPC, Steve Irizarry with Senator 
Hagel, Mike Solon with Senator Gramm, Peter Stein with Senator 
Santorum, and Kathy Means, Bill Sweetnam, and Dede Spritznagel with 
Senator Roth.
  Finally, I would like to thank the assistant majority leader's staff 
for their leadership. Stacey Hughes, Meg Hauck, Hazen Marshall, Matt 
Kirk, Brooke Simmons, Gail Osterberg, and Eric Ueland were invaluable. 
As well as Sharon Soderstrom and Keith Hennessy from the majority 
leader's Office.
  On my own staff, I would like to thank Paul Harrington, Sean Donohue, 
Dirksen Lehman, Kim Monk, and Philo Hall and Marle Power my Staff 
Director. This certainly could not have happened without my health 
policy fellows, Tom Valuck, Kathy Matt, and Carol Vannier. I especially 
want to thank Karen Guice and Pat Stroup, who each provided two years 
of groundwork on this legislation.
  The round the clock work, particularly over the past week, of all the 
staff involved is greatly appreciated.
  Mr. President, I could not be more proud of all these people.
  Around-the-clock work, particularly over the past week, of all the 
staff is greatly appreciated. I cannot be more proud of these people. I 
want to commend them and thank them profusely. I also thank, of course, 
the people who work in this great body to make sure that we end up 
doing the right things at the right time.