[Pages S6403-S6415]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

BIPARTISAN PATIENT PROTECTION ACT--MOTION TO PROCEED

Mr. DASCHLE. Mr. President, I ask unanimous consent that the Senate
now proceed to the consideration of Calendar No. 75, S. 1052, the
Patients' Bill of Rights.
The PRESIDING OFFICER. Is there objection?
Mr. THOMAS. Mr. President, I object.
The PRESIDING OFFICER. Objection is heard.
Mr. DASCHLE. Mr. President, I now move to proceed to S. 1052.
The PRESIDING OFFICER. The motion is debatable.
The Majority Leader.
Mr. DASCHLE. Mr. President, I regret we are not in a position to
begin consideration of this important legislation at this time. I
remain hopeful that by the end of the day we will be able to do so. In
the event that the Senate cannot proceed to the bill today, it is my
intention to file cloture on the motion. Under the rules, this cloture
vote would occur on Thursday morning 1 hour after the Senate convenes.
I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.

[[Page S6404]]

Mr. McCAIN. Mr. President, I reiterate my support for the majority
leader's unanimous-consent request. I believe it is fair and also
crucial for allowing us to finally engage in a real and meaningful
debate that will get Americans the protections they need and want.
This unanimous-consent request is exactly along the lines of that
which governed the campaign finance reform debate. Most Americans, no
matter how they felt on that issue, believed that it was a fair, open,
and honest debate in which the issues were ventilated and the majority
of the Senate worked its will. That is how most Americans think we
should function and, unfortunately, all too often we do not.
Under this unanimous-consent agreement, unlimited amendments can be
offered, and each one will be provided a significant period of time, 2
hours, and after debate the amendment would be voted on by the full
Senate.
I am struggling to understand why we can't agree that this is not
only a fair proposal but truly it affords each and every one of us with
an opportunity for engaging in a free and spirited debate. This format
embodies the full spirit of the traditional Senate and should not be
ignored or misconstrued as anything but a reasonable and honest
proposal.
I think Americans are watching us to see if we can come together on
an issue of great importance to everyone across our Nation. I don't
think delay is warranted. We should not obstruct.
I am confident that engaging in a truly open debate on this issue,
without stringent time restraints or limits on amendments, will result
in the passage of a strong bipartisan patients' protection bill that
can be signed into law by President Bush.

I want to reiterate, it is my sincere and profound commitment to see
that we enact a bill that the President of the United States can sign.
It would serve no one's purpose to go through the debate and amending
process in the Senate and in the other body and conference and then
have a bill the President will not sign.
I will make a couple of additional comments. There has been some
debate as to who supports and who does not support this legislation. I
have a list of over 300 organizations that are in support of this
legislation--not only the nurses and doctors of America but traditional
consumer advocacy groups, including health groups such as the American
Cancer Society, the American Dental Association, the American Nurses
Association, a long list of organizations that have traditionally
advocated for the health of Americans either in a specialized or
general way.
We have a clear division here between the health maintenance
organizations, which according to a CNN USA Today poll enjoy the
approval of some 15 percent of the American people, and the nurses and
doctors and those who are required to and do commit their lives to
taking care of the health of our citizens.
I have been asked many times why is it that I am involved in this
issue, why is it that I have worked very hard to try to fashion a
bipartisan agreement that we could use as a base for amending and
perfecting a bill that we can have signed by the President. In my
Presidential campaign, in hundreds of town hall meetings attended by
thousands and thousands of Americans, time after time after time after
time, average citizens stood up and talked about the fact that they
have been denied reasonable and fair health care and attention they
believe they deserve and need.
This is an issue of importance to some 170 million Americans who
would be covered by this legislation. This is an issue to average
Americans who are members of health maintenance organizations. This is
a challenge and a problem.
These Americans want the decisions made by a doctor and not an
accountant. These Americans want and need and deserve a review process
that is fair. These Americans are not receiving the fundamental health
care they deserve as members of health maintenance organizations and,
frankly, that is available to other Americans who have larger incomes.
Mr. President, this is not something we should delay any longer. This
is an issue we should take up and address, amend, debate, and then come
to a reasonable conclusion. I want to repeat my commitment to working
with the White House, to working with all opponents of the legislation
in its present form. For us to do nothing, as has been the case over
the last several years, as time after time this issue has been brought
up and blocked through parliamentary procedures, is not fair. It is not
fair and honest to the American people to refuse to address the issue.
As I said with campaign finance reform, if the result of the debates
and amendments is not to my liking and I don't agree with the result, I
will respectfully vote against it. But I will not try to block it. I
hope Members on both sides of the aisle will make that commitment as
well because of the importance of the issue to the American people. It
deserves a full and complete debate and vote.
I want to work together with my colleagues on both sides of the
aisle. We have had meaningful negotiations. We have had good
discussions. As a result of amendments, we will have further
discussions. I hope that over time we will be able to reach an
agreement. I again express my support for the unanimous consent request
the majority leader propounded because I think it is a fair and honest
way, providing no advantage to either side on this debate.
Again, I thank my colleagues for their commitment and involvement in
this issue, but most of all I want to thank these 300-some
organizations--the nurses and the doctors of America, in particular--
who have committed themselves to addressing this issue so that all
Americans can receive the health care they deserve.
I ask unanimous consent that a list of organizations supporting the
bill be printed in the Record.
There being no objection, the list was ordered to be printed in the
Record, as follows:

Professional Groups and Grassroots Organizations Supporting the McCain-
Edwards-Kennedy Bill--The Bipartisan Patient Protection Act

Abbott House of Irvington, NY; Abbott House, Inc. in South
Dakota; AIDS Action; Alliance for Children and Families;
Alliance for Lung Cancer Advocacy, Support and Education;
Alpha 1; Alternative Services, Inc; Amalgamated Transit
Union; American Academy of Child and Adolescent Psychiatry;
American Academy of Dermatology Association; American Academy
of Emergency Medicine; American Academy of Facial Plastic and
Reconstructive Surgery.
American Academy of Family Physicians; American Academy of
Mental Retardation; American Academy of Neurology; American
Academy of Ophthalmology; American Academy of
Otolaryngology--Head and Neck Surgery; American Academy of
Pain Medicine; American Academy of Pediatrics; American
Academy of Physical Medicine and Rehabilitation; American
Association for Geriatric Psychiatry; American Association
for Marriage and Family Therapy; American Association for
Psychosocial Rehabilitation; American Association for the
Study of Liver Diseases.
American Association of Children's Residential Center;
American Association of Neurological Surgeons; American
Association of Nurse Anesthetists; American Association of
Oral and Maxillofacial Surgeons; American Association of
Pastoral Counselors; American Association of People with
Disabilities; American Association of Private Practice
Psychiatrists; American Association of University Affiliated
Programs for Persons with Developmental Disabilities;
American Association of University Women; American
Association on Health and Disability; American Association on
Mental Retardation; American Bar Association.
American Board of Examiners in Clinical Social Work;
American Cancer Society; American Children's Home in
Lexington, NC; American Chiropractic Association; American
College of Cardiology; American College of Gastroenterology;
American College of Legal Medicine; American College of Nurse
Midwives; American College of Nurse Practitioners; American
College of Obstetricians and Gynecologists; American College
of Osteopathic Emergency Physicians; American College of
Osteopathic Family Physicians.
American College of Osteopathic Pediatricians; American
college of Osteopathic Surgeons; American College of
Physicians--American Society of Internal Medicine; American
College of Surgeons; American Congress of Community Supports
and Employment Services--ACCSES; American Council on the
Blind; American Counseling Association; American Dental
Association; American Family Foundation; Federation of
Teachers; American Foundation for the Blind; American
Gastroenterological Association.
American Group Psychotherapy Association; American Headache
Society; American Health Quality Association; American Heart
Association; American Lung Association; American Medical
Association; American Medical Rehabilitation Providers
Association; American Medical Student Association;

[[Page S6405]]

American Medical Women's Association, Inc.; American Mental
Health Counselors Association; American Music Therapy
Association; American Network of Community Options and
Resources.
American Nurses Association; American Occupational Therapy
Association; American Optometric Association; American
Orthopsychiatric Association; American Osteopathic
Association; American Pain Society; American Pharmaceutical
Association; American Physical Therapy Association; American
Podiatric Medical Association; American Psychiatric
Association; American Psychiatric Nurses Association;
American Psychoanalytic Association.
American Psychological Association; American Public Health
Association; American Small Business Association; American
Society for Clinical Laboratory Science; American Society for
Therapeutic Radiology and Oncology; American Society of
Cataract and Refractive Surgery; American Society of Clinical
Oncology; American Society of Clinical Pathologists; American
Society of Gastrointestinal Endoscopy; American Society of
General Surgeons; American Society of Internal Medicine;
American Society of Nuclear Cardiology.
American Speech-Language-Hearing Association; American
Therapeutic Recreation Association; American Thorasic
Society; American Urogynecologic Association; American
Urological Association; American Urological Society; American
for Democratic Action; Anxiety Disorders Association of
America; Arc of the United States; Association for Ambulatory
Behavioral Healthcare; Association for Education and
Rehabilitation of the Blind and Visually Impaired;
Association for the Advancement of Psychology.
Association of Academic Physiatrists; Association of
Academic Psychiatrists; Association of American Cancer
Institutes; Association of Community Cancer Centers;
Association of Persons in Supported Employment Association of
Women's Health, Obstetric and Neonatal Nurses; Assurance Home
in Roswell, NM; Auberle or McKeesport, PA; Baker Victory
Services In Lackawanna, NY; Baptist Children's Home of NC;
Barium Springs Home for Children in Barium Spring, NC;
Bazelon Center for Mental Health Law.
Berea Children's Home and Family in OH; Bethany for
Children and Families; Bethesda Children's Home/Luthera of
Meadsville, PA; Board of Child Care in Baltimore, MD; Boys &
Girls Country of Houston Inc., TX; Boys & Girls Homes of
North Carolina; Boys and Girls Harbor, Inc. in TX; Boys and
Girls Home and Family Services in Sioux City, IA; Boys'
Village, Inc. of Smithville, OH; Boysville of Michigan, Inc.;
Brain Injury Association; Brazoria County Youth Homes in TX.
Brighter Horizons Behavioral Health in Edinboro, PA;
Buckner Children and Family Service in TX; Butterfield Youth
Services in Marshall, MO; Cal Farley's Boys Ranch and
Affiliates; California Access to Speciality Care Coalition;
Cancer Care, Inc.; Cancer Leadership Council; Cancer Research
Foundation of America; Catholic Family Center of Rochester,
NY; Catholic Family Counseling in St. Louis, MO; Catholic
Social Services of Wayne County, in IN; Center for Child and
Family Services in VA.
Center for Families and Children in OH; Center for Family
Services, Inc. in Camden, NJ; Center for Patient Advocacy;
Center on Disability and Health; Chaddock; Charity Works,
Inc.; Child and Family Guidance Center in TX; Child and
Family Service of Hawaii; Child and Family Services in TN;
Child and Family Services of Buffalo, NY; Child and Family
Services, Inc. in VA; Child Care Association of Illinois.
Child Welfare League of America; Children & Families First;
Children & Family Services Association; Children and Adults
with Attention Deficit/Hyperactivity Disorder; Children's Aid
and Family Service in Paramus, NJ; Children's Aid Society of
Mercer, PA; Children's Alliance; Children's Board of
Hillsborough; Children's Choice, Inc. in Philadelphia, PA;
Children's Defense Fund; Children's Home & Aid Society of
Chicago, IL; Children's Home Association of Illinois.
Children's Home of Cromwell; Children's Home of Easton in
Easton, PA; Children's Home of Northern Kentucky; Children's
Home of Poughkeepsie, NY; Children's Home of Reading, PA;
Children's Home of Wyoming Conference; Children's Village,
Inc.; ChildServ; Christian Home Association-Child; Clinical
Social Work Federation; Coalition of National Cancer
Cooperative Group; Colon Cancer Alliance.
Colorectal Cancer Network; Committee of Ten Thousand;
Community Agencies Corporation of New Jersey; Community
Counseling Center in Portland, ME; Community Service Society
of New York; Community Services of Stark County in OH;
Community Solutions Association of Warren, OH; Compass of
Carolina in SC; Congress of Neurological Surgeons;
Connecticut Council of Family Service; Consortium for
Citizens with Disabilities; Consuelo Foundation.
Consumers Union; Cornerstones of Care in Kansas City, MO;
Corporation for the Advancement of Psychiatry; Council of
Family and Child Caring Agencies in NY; Counseling and Family
Services of Peoria, IL; Court House, Inc. in Englewood, CO;
Covenant Children's Home and Families; Crittenton Family
Services in Columbus, OH; Crossroads of Youth; Cure for
Lymphoma Foundation; Cystic Fibrosis Foundation; Daniel, Inc.
Denver Childrens Home; DePelchin Children's Center in TX;
Digestive Disease National Coalition; Dystonia Medical
Research Foundation; Easter Seals; Edgar County Children's
Home; El Pueblo Boys and Girls Ranch; Elon Homes for Children
in Elon College, NC; Epilepsy Foundation of America; Ettie
Lee Youth and Family Services in Baldwin Park, CA; Excelsior
Youth Center in WA; Eye Bank Association of America.
Facing Our Risk of Cancer Empowered; Families First, Inc.;
Families USA; Family & Children's Center Council; Family &
Children's Center in WI; Family & Counseling Service of
Allentown, PA; Family Advocacy Services of Baltimore; Family
and Child Services of Washington; Family and Children's
Service in VA; Family and Children's Services and Tulsa, OK;
Family and Children's Services of San Jose; Family and
Children's Agency Inc. in Norwalk, CT.
Family and Children's Association of Mineola, NY; Family
and Children's Center of Mishawaka, IN; Family and Children's
Counseling of Louisville, KY; Family and Children's Service
in Minneapolis, MN; Family and Children's Service in TN;
Family and Children's Service of Harrisburg, PA; Family and
Children's Service of Niagara Falls, NY; Family and
Children's Services in Elizabeth, NJ; Family and Children's
Services of Central, NJ; Family and Children's Services of
Chattanooga, Inc. in TN; Family and Children's Services of
Fort Wayne; Family and Children's Services of Indiana.
Family and Community Service of Delaware County, PA; Family
and Social Service Federation of Hackensack, NJ; Family and
Youth Counseling Agency of Lake Charles, LA; Family Centers,
Inc. in Greenich, CT; Family Connections in Orange, NJ;
Family Counseling & Shelter Service in Monroe, MI; Family
Counseling Agency; Family Counseling and Children's and
Children's Services; Family Counseling Center of Central
Georgia, Inc.; Family Counseling Center of Sarasota, FL;
Family Counseling of Greater New Haven, CT; Family
Counseling Service in Texas.
Family Counseling Service of Greater Miami; Family
Counseling Service of Lexington; Family Counseling Service of
Northern Nevada; Family Counseling Service, Inc. in
Lexington, KY; Family Guidance Center in Hickory, NC; Family
Guidance Center of Alabama; Family Resources, Inc. in IA;
Family Service Agency of Arizona; Family Service Agency of
Arkansas; Family Service Agency of Central Coast; Family
Service Agency of Clark and Champaign Counties in OH; Family
Service Agency of Davie in CA.
Family Service Agency of Genesee, MI; Family Service Agency
of Monterey in CA; Family Service Agency of San Bernardino in
CA; Family Service Agency of San Mateo in CA; Family Service
Agency of Santa Barbara in CA; Family Service Agency of Santa
Cruz in CA; Family Service Agency of Youngstown, OH; Family
Service and Children's Alliance of Jackson, MI; Family
Service Association Greater Boston; Family Service
Association in Egg Harbor, NJ; Family Service Association of
Beloit, WA; Family Service Association of Bucks County in PA.
Family Service Association of Central Indiana; Family
Service Association of Dayton, OH; Family Service Association
of Greater Tampa; Family Service Association of Greater
Tampa, FL; Family Service Association of Howard County, Inc.,
IN; Family Service Association of New Jersey; Family Service
Association of San Antonio, TX; Family Service Association of
Wabash Valley, IN; Family Service Association of Wyoming
Valley in PA; Family Service Aurora, WI; Family Service
Center in SC; Family Service Center in TX.
Family Service Center of Port Arthur, TX; Family Service
Centers of Pinellas County, Inc. in Clearwater, FL; Family
Service Council of California; Family Service Council of
Indiana; Family Service Council of OH; Family Service in
Lancaster, PA; Family Service in Lincoln, NE; Family Service
in Omaha, NE; Family Service in WI; Family Service Inc. in
St. Paul, MN; Family Service of Burlington County in Mount
Holly, NJ; Family Service of Central Connecticut.
Family Service of Chester County in PA; Family Service of
El Paso, TX; Family Service of Gaston County in Gastonia, NC;
Family Service of Greater Baton Rouge, LA; Family Service of
Greater Boston, MA; Family Service of Greater New Orleans,
LA; Family Service of Lackawanna County, PA; Family Service
of Morris County in Morristown, NJ; Family Service of Norfolk
County, MA; Family Service of Northwest, OH; Family Service
of Racine, WI; Family Service of Roanoke Valley in VA.
Family Service of the Cincinnati, OH; Family Service of the
Piedmont in High Point, NC; Family Service of Waukesha
County, WI; Family Service of Westchester, NY; Family Service
of York in PA; Family Service Spokane in WA; Family Service,
Inc. in SD; Family Service, Inc. in TX; Family Service, Inc.
of Detroit, MI; Family Service, Inc. of Lawrence, MA; Family
Services Association, Inc. in Elkton, MD; Family Services
Center in Huntsville, AL.
Family Services in Canton, OH; Family Services Cedar
Rapids; Family Services of Central Massachusetts; Family
Services of Davidson County in Lexington, NC; Family Services
of Delaware County; Family Services of Elkhart County, IN;
Family Services of King County in WA; Family Services of
Montgomery County, PA; Family Services of Northeast
Wisconsin; Family Services of Northwestern in Erie, PA;
Family Services of Southeast Texas; Family Services of Summit
County in Akron, OH.

[[Page S6406]]

Family Services of the Lower Cape Fear in NC; Family
Services of the Mid-South in TN; Family Services of
Tidewater, Inc. in VA; Family Services of Western PA; Family
Services Woodfield; Family Services, Inc. in SC; Family
Services, Inc. of Layfette; Family Services, Inc. of Wintson-
Salem, NC; Family Solutions of Cuyahoga Falls, OH; Family
Support Services in TX; Family Tree Information, Education &
Counseling in LA; Family Violence Prevention Fund.
FamilyMeans in Stillwater, MN; Federation of Behavioral,
Psychological & Cognitive Sciences; Federation of Families
for Childrens Mental Health; FEI Behavioral Health in WI;
Florida Families First; Florida Sheriffs Youth Ranches;
Friends Committee on National Legislation; Gateway in
Birmingham, AL; Gateways for Youth and Families in WA; George
Junior Republic in Indiana; Gibault; Girls and Boys Town in
NE.
Goodwill-Hinckley Homes for Boys; Greenbrier Childrens
Center in Savannah, GA; Growing Home in St. Paul, MN;
Haddasah; Heart of America Family Services in Kansas City,
KS; Hemochromatosis Foundation; Hereditary Colon Cancer
Association; Highfields, Inc. in Onondage, MI; Holy Family
Institute of Pittsburgh, PA; Home on the Range in Sentinel
Butte in Sentinel Butte, ND; Hubert H. Humphrey, III--
Former Minnesota Attorney General; Human Services, Inc. in
Denver, CO.
Huntington's Disease Society of America; IARCCA An
Association of Children; Idaho Youth Ranch; Indiana United
Methodist Children; Infectious Disease Society of America;
International Association of Psychosocial Rehabilitation
Services; Jackson-Field Homes in VA; Jane Addams Hull House
Association in Chicago, IL; Jeffrey Modell Foundation; Jewish
Board of Family & Children in New York, NY; Jewish Community
Services of South Florida; Jewish Family & Career Services in
Atlanta, GA.
Jewish Family & Children's Service in TX; Jewish Family and
Children's Service in Minnetonka, MN; Jewish Family and
Community Service in Chicago, IL; Jewish Family Service in
Providence, RI; Jewish Family Service in Teaneck, NJ; Jewish
Family Service in TX; Jewish Family Service of Akron, OH;
Jewish Family Services of Los Angeles; Julia Dyckman Andrus
Memorial Children's Center in NY; June Burnett Institute;
Kemmerer Village; Kentucky United Methodist Homes.
Kidney Cancer Association; KidsPeace National Centers, Inc.
in PA; Lakeside, Kalamazoo, MI; LaSalle School, Inc. in
Albany, NY; League of Women Voters; Leake and Watts Services,
Inc. in Yonkers, NY; Learning Disabilities of America; Lee
and Beulah Moor Children's Home in TX; Leukemia and Lymphoma
Society; Lupus Foundation of America, Inc.; Lutheran Child &
Family Service in Bay City, MI; Lutheran Child & Family
Services in River Forest, IL.
Lutheran Social Services of Wisconsin; Manisses
Communications Group in RI; Maple Shade Youth & Family
Services; Maryhurst, Inc.; Maryland Association of Resources
for Families & Youth; Massachusetts Council of Family; MediCo
Unlimited, LLC; Mental Fitness Center; Mental Health America,
Inc.; Mental Health Liaison Group; Methodist Children's Home
in TX; Metropolitan Family Service of Portland, OR.
Metropolitan Family Services of Chicago; Michigan
Federation of Private Child & Family Agencies; Michigan State
Medical Society; Mid-South Chapter of the Paralyzed Veterans
of America; Milton Hershey School in Hershey, PA; Missouri
Baptist Children's Home; Missouri Coalition of Children's
Agencies; Missouri Girls Town; Mooseheart Child City and
School in IL; Morning Star Boys' Ranch in WA; Mountain
Community Resources; Namaqua Center in CO.
Natchez Children's Home in Natchez, MS; National
Association of Public Hospitals and Health Systems; National
Alliance for the Mentally Ill; National Alliance of Breast
Cancer Organizations; National Association for Medical
Direction of Respiratory Care; National Association for Rural
Mental Health; National Association for the Advancement of
Orthotics and Prosthetics; National Association of Children's
Hospitals; National Association of County Behavioral Health
Directors; National Association of Developmental Disabilities
Councils; National Association of People with AIDS; National
Association of Physicians Who Care.
National Association of Private Schools for Exceptional
Children; National Association of Private Special Education
Centers; National Assoicaiton of Protection and Advocacy
Systems; National Association of School Psychologists;
National Association of Social Workers; National Black Womens
Health Project, Inc.; National Breast Cancer Coalition;
National Catholic Social Justice Lobby; National Coalition
for Cancer Survivorship; National College of Osteopathic
Emergency Physicians; National Committee to Preserve Social
Security and Medicare; National Community Pharmacists
Association.
National Consumers League; National Council for Community
Behavioral Health; National Depressive and Manic-Depressive
Association; National Down Syndrome Congress; National Family
Planning and Reproductive Health Association; National Health
Council; National Hemophilia Foundation; National Marfan
Foundation; National Mental Health Association; National
Multiple Sclerosis Society; National Organization for Rare
Disorders; National Organization of Physicians Who Care.
National Organization of State Association for Children in
MD; National Parent Network on Disabilities; National
Partnership for Women and Families; National Patient Advocate
Foundation; National Psoriasis Foundation; National
Rehabilitation Association; National Therapeutic Recreation
Society; National Transplant Action Committee; National
Women's Health Network; National Women's Law Center; Nation's
Voice on Mental Illness; Nazareth Children's Home in
Rockwell, NC.
NETWORK; Neurofibromatotis, Inc.; New Community Corporation
in Newark, NJ; Newark Emergency Services for Families in New
Jersey; NISH; Norris Adolescent Center in WI; North American
Brain Cancer Coalition; Northeast Parent & Child Society in
New York; Northern Virginia Family Service; Northwest Chapter
of Paralyzed Veterans of America; Northwest Childrens Home,
Inc.; Northwood Children's Services in Duluth, MN.
Oak Grove Institute Foundation; Oakland Family Services;
Olive Crest Treatment Centers; Omaha Home for Boys in
Nebraska; Oncology Nursing Society; Organization of
Specialist in Emergency Medicine; Outcomes, Inc. in
Albuquerque, NM; Ovarian Cancer National Alliance; PA
Alliance for Children and Families in Hummelstown, PA;
Pacific Lodge Youth Services; Paget Foundation; Pain Care
Coalition.
Palmer Home for Children in Columbus, MS; Pancreatic Cancer
Action Network; Paralyzed Veterans of America; Patient Access
Coalition; Patient Access to Responsible Care Alliance;
Patients Who Care, Inc.; Pediatric Orthopaedic Society of
North America; Pennsylvania Council of Children in
Harrisburg, PA; Perkins School for the Blind; Personal &
Family Counseling Service of New Philadelphia, OH;
Philadelphia Health Management Corporation in PA; Planned
Parenthood Federation of America;
Presbyterian Home for Children; Pressley Ridge Schools in
PA; Provident Counseling, Inc. in St. Louis, MO;
Rehabilitation Engineering and Assistive Technology Society
of North America; Religious Action Center of Reform Judaism;
Research Institute for Independent Living; RESOLVE; Riverbend
Head Start & Family Service; Salem Children's Home; Salvation
Army Family Services; San Mar, Inc. of Boonsboro, MD;
Scarsdale Edgemont Family Counsel in NY.
School Social Work Association of America; Seattle
Children's Home in WA; Seedco/Non-Profit Assistance,; Service
Net. Inc. in PA; Sheriffs Youth Programs of Minneapolis;
Sipe's Orchard Home in Conover, NC; Sjogren's Syndrome
Foundation; Society for Excellence in Eye care; Society for
Maternal-Fetal Medicine; Society of Cardiovascular &
Interventional Radiology; Society of Gastroenterology Nurses
and Associates, Inc.; Society of Gynecologic Oncologist;
Southmountain Children's Homes in Nebo, NC; Spina Bifida
Association of America; St. Anne Institute of Albany, NY; St.
Colman's Home in Watervliet, NY; St. Joseph Chilren's Home;
St. Joseph's Indian School in SD; St. Mary's Home Home of
Beaverton, OR; St. Vincent's Services, Inc. of Brooklyn, NY;
Starr Commonwealth; Sunbeam Family Services of Oklahoma City,
OK; Sunny Ridge Family Center; Susan G. Komen Breast Cancer
Foundation.
Tabor Children's Services, Inc. of Doylestown, PA; Teen
Ranch, Inc. Marlette, MI; Tennessee Citizen Action; Texas
Association of Leaders in Children & Family; Texas Medical
Association; The Arc of the United States; The Bradley Center
in PA; The Center for Families, Inc.--Shreveport, LA; The
Children's Home in Catonsville, MD; The Endocrine Society;
The Family Center; The Hutton Settlement in WA.
The Learning Disabilities of America; The Mechanicsburg
Children's Home of Mechanicsburg, PA; The Omaha Home for Boys
in NE; The Organization of Specialists in Emergency Medicine;
The Paget Foundation for Pagets's Diseases of Bone and
Related Disorders; The Pressley Ridge Schools in PA; The
Village Family Service Center in Fargo, ND; The Woodlands in
Newark, OH; Third Way Center; Thornwell Home and School for
Children in SC; Title II Community AIDS National Network;
Tourette Syndrome Association.
Treatment Access Expansion Project; Triangle Family
Services in Raleigh, NC; Tulsa Boys' Home in Tulsa, OK;
Turning Point Center; Uhlich Children's Home; United Auto
Workers; United Cerebral Palsy Association; United Community
& Family Service; United Family Services in Charlotte, NC;
United Methodists Childrens Home; United Ostomy Association;
United States Public Interest Research Group (U.S. Pirg).
US TOO International, Inc.; USAction; Vera Lloyd
Presbyterian Home & Family Services in AR; Verdugo Mental
Health Center; Village for Families & Children; Virginia Home
for Boys; Webster-Cantrell Hall; Wellness Community; Whaley
Children's Center; Wisconsin Association of Family and
Children; Wisconsin Paralyzed Veterans of America; Woodland
Hills in Duluth, MN; Yellowstone Boys and Girls Ranch in
Billings, MT; Youth Haven, Inc. in Naples, FL; Youth Service
Bureau in Portland, IN; YWCA of Northeast Louisana.

Mr. McCAIN. Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from North Carolina is recognized.
Mr. EDWARDS. Mr. President, I ask unanimous consent that at the
conclusion of my remarks I be followed by Senator Kennedy, who is also
a sponsor of this legislation.

[[Page S6407]]

The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. EDWARDS. Mr. President, I thank my friend from Arizona, who
worked with me over a period of many months to help put together this
legislation--after work had been done for many years by a number of
Members of the Senate, led by Senator Kennedy.
The law for many years in this country has been on the side of big
HMOs and insurance companies. They have been treated like no other
person in America is treated, like no other business, small or large;
they are privileged citizens. The American people want to take away
that privileged status from HMOs and insurance companies. They are the
only group in America that can say to a family: Your child is not going
to get the medical care your doctor thinks they need.
They can overrule the decision of a medical doctor that has been made
after many years of training and experience, even though they may have
no experience or training whatsoever. Some young clerk sitting behind a
desk somewhere can overrule a medical expert, and if they do it, there
is absolutely nothing that can be done about it.
The HMOs, the insurance companies, are accountable to no one. Their
judgment can't be questioned; their decision can't be reversed; and
they can't be challenged anyplace, including in court.
That is what this bill is about. What we are about--Senator McCain,
Senator Kennedy, I, and all of the sponsors of this legislation--is
changing the law. We want to move the law from the side of big
insurance companies and HMOs and finally put the law on the side of
patients, nurses, and doctors.
Every one of us, in traveling around our home States, has heard
horror story after horror story of families and patients being run over
by big HMOs. Let me recount one I heard in North Carolina.
A young man, Steve Grissom, contracted leukemia. In the course of his
treatment, he had to get a blood transfusion. As part of the blood
transfusion, he got AIDS. He got sicker and sicker and sicker. He was
being seen by a heart specialist at Duke University Hospital. That
doctor prescribed 24-hour-a-day oxygen for Steve because he needed it.
This was a doctor with many years of training at one of the leading
medical institutions in the country. Steve's wife's employer changed
HMOs. Some clerk sitting behind a desk somewhere, without medical
training, having never seen Steve Grissom, knowing nothing about it,
decided they weren't going to pay for this oxygen anymore. They
literally cut off his oxygen.
Steve had nowhere to go. Why? Because under the law of the land, as
we stand here today, HMOs can do exactly what they did to Steve
Grissom, and no one can do a single thing about it. You can't question
their decision; you can't question their judgment; you can't reverse
it; and you can't take them to court. So somebody such as Steve, who
has a terrible time trying to pay for this oxygen himself, is stuck--
even though they have paid premiums and paid for coverage, and any
reasonable physician in America knows he needs this care.
That is what this act is about. The Bipartisan Patient Protection Act
changes that. We are going to change the law so that finally patients,
nurses, doctors, and health care providers who know how to make these
medical decisions and families who are involved and whose children are
being affected by these decisions will have some power of the law on
their side.
Let me talk briefly about some specifics of our legislation. We
provide and guarantee access by women to OB/GYNs as their primary care
provider. They don't have to get permission from anybody. They can do
that. If a child needs to see a specialist, a pediatrician--a child
with cancer who may need to be seen by a pediatric oncologist--that
child has an absolute right to go see that specialist if they need it
for their life-sustaining care.
Emergency room care. If a patient or a family experiences an
emergency and they need to get to the doctor, to the hospital, to the
emergency room, they don't have to call a 1-800 number; they don't have
to call the HMO; they don't have to get written permission. What any
family will do when under an emergency situation such as that and they
need care quickly, quality care, they can go straight to the nearest
emergency room without worrying about whether the HMO will cover. Under
our law, they are covered, period.
Scope. Our bill specifically provides that every American who has
health insurance or HMO coverage is covered by our bill, period. They
have at least the protections provided in this bipartisan legislation.
If a State has better protections for the patient, better protections
for the doctor, those protections stay in place. But our bill provides
a floor below which no State can go.
So the basic protections provided in our bill--access to specialists,
women being able to go see an OB/GYN, going to the nearest emergency
room, access to clinical trials, which is critical to many Americans--
they will have under this legislation an absolute right to those
protections.
Finally, accountability. Mr. President, these rights mean nothing if
they are not enforceable. If they are not enforceable, this is not a
Patients' Bill of ``Rights;'' it is a patients' bill of
``suggestions.'' But because we have accountability and we have
enforceability, these are substantive rights that in fact can be
enforced. Finally, HMOs are going to be treated as everybody else in
America. They are going to be held accountable, held responsible, which
means at the outset that they have an incentive to do the right thing,
which is what this legislation is about--having the HMO do the right
thing from the beginning and having the patient, if they don't, be able
to do something about it.
What we do is set up a system that is designed to avoid lawsuits. We
have, first, an internal review process so that if the HMO says they
are not going to cover a particular kind of care or treatment, the
patient can go through an internal review at the HMO. Second, if that
process is unsuccessful, the patient can then go to an independent
external review. This is a panel of doctors, health care providers, who
aren't connected to the HMO, aren't connected to the patient or the
treating doctor, who can make a fair and objective decision about
whether this treatment is necessary. So the patient now has two
different ways to get the HMO's decision reversed.
If that is unsuccessful, if for whatever reason the appeals process
does not work, as a last resort, if the patient has been unsuccessful
after doing all of that and if the patient has been injured as a result
of what the HMO did, then as a matter of last resort the patient can go
to court.
Now, first of all, with respect to employers, we specifically provide
that employers cannot be held responsible. They cannot be sued; they
cannot be liable. Employers are specifically protected under our bill.
The only exception to that is if the employer actually makes a medical
decision--if they step into the shoes of the HMO and do what no small
or medium-sized employer in America would do if they actually make a
medical judgment.
By the way, this provision that employers can only be held
responsible if they make a medical decision and otherwise they are
protected is identical to President Bush's principle on this issue. His
principle provides that employers may only be held responsible if they
make medical decisions. That is precisely what our bill does.
On this issue, the protection of employers, the President's
principles and our bill are exactly the same.
If it becomes necessary after a patient has gone through the appeals
process--internal and external review--and a patient has been injured
for the case to go to court, we start with a very simple principle.
That principle is this: We want to treat HMOs and insurance companies
just as the other health care providers. They are making health care
decisions. They have decided to overrule a doctor who decided a patient
needed a particular kind of care. When they decide to overrule the
doctor and step into the shoes of the doctor, we think they ought to be
treated like the doctor, just like the hospitals, just like the nurses.
What we provide is they can be taken to State court, just like the
doctors, just like the hospitals, and they are subject to whatever
limitations exist under State law by way of recovery.

[[Page S6408]]

The majority of the States in this country have caps or limits on
recovery, limits on noneconomic damages, in some cases, what is called
pain and suffering, limits on punitive damages, and some States provide
you cannot recover punitive damages.
The bottom line is this: Whatever the State law is, that law applies
to the HMO, just exactly as it applies to the doctor, to the nurse, to
the hospital, to everybody else in the State. We start with the basic
idea that HMOs are not privileged citizens; that they are just the same
as the rest of us and ought to be treated the same as the rest of us.
That is what our bill does: It treats the HMOs the same as the other
health care providers when they, in fact, overrule a doctor and make a
health care decision.
That structure--sending those cases to State court--is what has been
recommended by the Judicial Conference of the United States headed by
Chief Justice Rehnquist. It is what is recommended by the American Bar
Association. It is what is recommended by the State attorneys general.
People who understand the court system but are objective, not on one
side or the other of this debate, have decided this is the place these
cases should go for a variety of reasons. No. 1, it treats the HMOs the
same as doctors and hospitals are treated. No. 2, they are courts
accustomed to handling these types of cases. It makes it more likely
the patient can get their case heard more quickly.
It is fair. It is equitable. It is supported by every group of
objective experts--Judicial Conference, the ABA, the State attorneys
general--and, by the way, follows exactly the outline set forth by the
U.S. Supreme Court in the Pegram decision.
This idea of sending these cases to State court is an idea that is
supported by the big legal organizations across the country and as
outlined by the U.S. Supreme Court in the Pegram case.
The basic principle is we treat HMOs exactly the same way we treat
doctors and hospitals if they are going to be in the business of making
medical decisions.
The only cases that would go to Federal court under this bill are the
cases that have, since 1974, been decided in Federal court. Those are
the cases involving pure language of the contract. For example, whether
a particular provision has been met or whether the 90-day waiting
period has been met. Those cases go to Federal court. They have always
been in Federal court. We leave them exactly where they are.
What we do not do is what has been proposed by some, which is to send
every case against an HMO to Federal court. The Federal courts are
backlogged so that is a way to bury the cases and assure they never get
heard. It is more difficult to get attorneys because many attorneys do
not practice in Federal court, and many people are a long way from the
nearest Federal courthouse. There is almost always a State courthouse
close by, but Federal courthouses, especially in rural America, are
hundreds of miles away in many cases.
We have a system that works. It has been outlined by the U.S. Supreme
Court. It is what legal experts say should be done. Most importantly,
it is fair. It treats the HMOs the same as everybody else, which is the
goal of this legislation.
Finally, we do require, in order for a case to be brought to court,
that, first, all appeals be exhausted. That is, the patient must first
go to the internal review and, second, to the external review. What we
have learned from the two States that have served as models for this
legislation--Texas and California--is almost all cases are resolved by
that process. The reason is we structured the bill to avoid lawsuits.
It has, in fact, worked in the two States that have followed our
model--California and Texas, two of the biggest States in the country,
two of the States where there has been historically the largest amount
of litigation in the country.
There have been 16, 17 lawsuits since those bills have been enacted
in those two States. The vast majority of cases have been resolved
exactly as our bill provides. They have been resolved through the
process of the appeal.
There has been some argument made about health care costs going up
and people losing their insurance. The majority leader spoke to this
earlier. Our bill, according to the Congressional Budget Office, raises
insurance premiums about 4 percent over 5 years. Not 4 percent
annually, 4 percent over 5 years.
The competing bill, the Frist-Breaux provision, raises insurance
premiums about 3 percent over 5 years. So there is very little
difference between the two bills.
In addition to that, of the 4 percent increase in our bill, the vast
majority of that has to do with better health care. It has nothing to
do with lawsuits, nothing to do with litigation.
Mr. President, .8 percent, less than 1 percent, has to do with
litigation. The remainder, over 3 percent, has to do with better access
to the clinical trials, better access to specialists, better access to
emergency rooms.
It specifically provides better care. When people get better care, it
costs a little bit more, and they will get a better product.
On balance, both bills increase costs slightly--3 percent in 1 case
over 5 years; 4 percent in our case over 5 years. But as a direct
result of this legislation being passed, people will have better
quality care, and the cost has very little to do with the fact the HMOs
can now be held accountable and be taken to court.
It is not an accident that the American Medical Association and over
300 health care and consumer groups in America support our bill. It is
not an accident that the big HMOs and their lobby are spending millions
of dollars to defeat our bill. It is not an accident that the HMOs like
the Frist-Breaux bill and do not like our bill.
As we go through this debate, it will become clear that on every
single difference, between the legislation we have offered and the
competing legislation, whether it is coverage and whether States can
opt out, whether it is access to specialists outside the plan, whether
it is a truly independent review that the HMO can have no control over,
whether it is going to court and which court you go to, in every single
difference we protect the patients, they protect the HMOs.
Their bill, as Dr. Norwood, a Republican House Member from Georgia
who has fought on this issue for years, has described it, is an HMO
protection act. It is not an accident that all the health care groups
in America and the American Medical Association support our bill.
These are people who deal with these issues every single day, and
they know that on all these important issues--access to specialists,
who is covered, emergency room, access to a true independent review
process--our bill protects the patients; their bill protects the HMOs.
All of us have worked long and hard on this issue for a substantial
period of time. Some have worked on it, including Senator Kennedy, for
many years. It is time to quit talking about doing something about HMOs
and HMO reform and actually do something about it. The American people
are not interested in the politics--Republicans, Democrats,
Independents--and their positions politicizing this issue. What they
care about is that when their child needs to see a specialist, they
want to be sure that child can see that specialist. When they need to
go to the emergency room, they need to know they can go to the
emergency room without having to worry if the HMO is going to pay for
it. If the HMO does something wrong and runs over them and runs over
their family and overrules a doctor's medical decision, they want to be
able to do something about that. They want the HMOs to be treated just
as all the rest of us.

Ultimately that is what this bill is about. The bottom line question
is, with whom do we stand? Do we stand with the big HMOs and the big
HMO lobbies or do we stand with the doctors, nurses, and families of
America?
I yield the floor.
The PRESIDING OFFICER. Under the previous order, the Senator from
Massachusetts is recognized.
Mr. KENNEDY. Mr. President, before the Senator leaves, I wonder if he
might respond to a question or two as one of the principal sponsors.
First of all, I wonder if he shares with me a certain degree of
disappointment that we are not going to have the opportunity to debate
these protections that are so important for American families. Every
day that we fail to

[[Page S6409]]

take action, families are being hurt. Without this legislation, more
than 50,000 of our fellow citizens today are going to suffer further
injury or pain. This is the result of failing to take action.
I want to make some general comments along the lines of those that
the Senator made. I first say that that was an outstanding presentation
with regard to the substance. It is difficult for me to understand the
opposition to this, other than, as the Senator pointed out, the special
interests of the HMO industry do not want it. I have not heard the
administration or the Senators who are in opposition, indicate what
protections in this legislation they would not want to give to the
American people.
We were informed by the Republican leadership that because this bill
has been changed so many times, we need to hold further hearings to
find out what is in it. There have been no hearings since March of
1999.
One of the leaders pointed to paragraph (C) in the legislation, where
employers can be held accountable. Then they talked about the rising
costs of 20 percent a year and talked further about employer liability.
As I understand, the changes that had been made over the weekend were
basically in response to some of the observations that were made about
the underlying legislation. One question was about whether you could be
sued in Federal or State court. The opposition claims our bill allows
them to be sued in Federal and State courts at the same time. This was
never the intention. I understand there was an attempt to explicitly
clarify that proceeding so there would not be two forums. I understand
that was one of the clarifications made. It was never intended to
permit forum shopping and that was clarified.
I might mention the rest, since there were only four of them, and
then get the reaction of the Senator since he was very much involved in
this.
No. 2 was the question about the exhaustion of appeals before going
to court. The opposition claims our bill made it too easy to go to
court, arguing that patients can bypass the appeals process simply by
alleging harm. Since it was not our intent to make it easy to bypass
appeals, we resolved this matter by eliminating the word ``alleged.''
The third was about making it easier to sue doctors. The other side
has been claiming our bill makes doctors liable for plan
administration. This is a rather technical issue, being sued in State
court and now in Federal court again. That wasn't the intent. We
clarify that the positions are protected. We also included language to
extend civil protections to hospitals and insurance agents. There was
some question about the application of the language. The change was
specifically included to clarify that, to demonstrate the protections
for those groups.
In the fourth change, regarding protecting the State cause of action,
we added clarifying language to protect existing State court
jurisdiction from inadvertent preemption under our bill. A rather
extraneous example or two were given that might have created some
confusion. As I understand it, that was the fourth piece of clarifying
language.

Finally, the IRS enforcement language was dropped, including an
additional enforcement provision that we understand has a revenue
impact and a blue-slip problem. To avoid the blue-slip issue, we
dropped the provision.
Those are the totality of the changes. Evidently they are being used
to somehow represent that there were major kinds of alterations or
changes to the bill which are difficult to understand. Therefore, the
other side refuses to permit us to begin the debate on the bill.
If the Senator would be good enough to indicate to me whether it is
his understanding that these were the areas in which adjustments were
made and whether the representations that were made, in terms of the
clarifications? Was that his understanding as well?
Mr. EDWARDS. Will the Senator yield for me to reply to the question?
Mr. KENNEDY. I am glad to yield.
Mr. EDWARDS. In response to the question, the areas that were changed
were all changes in the direction of the objections of our opponents.
In other words, they raised concerns and we made changes to clarify so
there would be no question but that we intended exactly what they
intended.
For example, the first one the Senator mentions: exhaustion, which
means you have to go through the appeals before you can take somebody
to court, both sides intended that that be required because we want
cases to be decided by the appeal without having to go to court, to
avoid unnecessary lawsuits. We made it clear in this clarification that
there is no question about that. We intend for that to be true. That
was the purpose of the clarification.
Second is the cases being brought in State and Federal court. The
purpose for the change was to make it clear we want nobody to be sued
in both State and Federal court; to clarify the language so there was
no doubt in anybody's mind about which cases go to State court and
which cases go to Federal court.
Third, they complain that under our bill some physicians, perhaps,
could be subject to lawsuits to which they otherwise would not be
subject. So we made a change to eliminate that possibility.
Our bill, as the Senator well knows, is intended to empower doctors,
to empower nurses, to make the health care decisions that only they
have the medical training and experience to make, that they have the
qualifications to make, not some bureaucrat sitting behind a desk at
some HMO somewhere. That is the purpose of this clarifying language.
Mr. KENNEDY. Let me speak to this point. I am confused as to why
there is an attempt by the Republican leadership to misrepresent what
is in the employer provisions of the bill on page 144. I think all of
us who have been around here find language is misrepresented and
subsequently individuals disagree with the misrepresentation. It
appears that is what is happening.
The Senator has stated my understanding. Then if we look at page 144,
regarding the responsibility of the employer in the plans, it says:

Causes of action against employers. . . .

Then it says:

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

That is extremely clear. In the President's language, which he sent
to the Congress, and I have here, the President lists his requirement
in his bill of particulars, which says:

Only employers who retain the responsibility for and make
final medical decisions should be subject to the suit.

That is what President Bush said is the principle. It is my
understanding that that exact point is stated in the legislation on
page 145, line 8:

. . . to the extent there was direct participation by the
employer. . . .

That talks about when they would be open to the responsibility.
But as I understand it, and I welcome the comments of the Senator,
that completely conforms with what President Bush himself has
established. Is that correct?
Mr. EDWARDS. The Senator is correct. The President specifically
provided he does not want employers to be sued unless they make medical
decisions. Our legislation does exactly that. The language completely
conforms, in almost identical language, to the President's principle.
We do not want employers to be sued unless somehow they step in the
shoes of the HMOs and make a medical decision. That is exactly what the
President is suggesting. The Senator is correct, to the extent our
opponents--who, by the way, are trying to prevent this bill from ever
being considered at this point in this Chamber--to the extent our
opponents suggest under our legislation lawsuits against employers are
allowed, they need to read the President's principles because, in fact,
our legislation is identical to the President's principle on this
issue.
Mr. EDWARDS. Mr. President, if the Senator will allow me one final
comment, the Senator well knows, having fought on this issue for many
years and having led the fight, as Senator Daschle, our majority leader
pointed out in his earlier comments, the American people can get a
lesson from what is happening at this moment. We made it clear we
intended to bring bipartisan patient protection to the floor of the
Senate, a bill supported by Republican

[[Page S6410]]

Senators in this Chamber and also in the House.
What has been the response by our opponents? Has the response been to
debate this issue in an open way before the American people and to make
their case to support the HMOs' position on the floor of the Senate?
No. Their response is to try to prevent an issue that affects millions
and millions of Americans every year from even being heard on the floor
of the Senate.
I think it becomes clear who wants to provide real and meaningful
patient protection and who wants to keep this issue from ever getting
to the floor of the Senate so HMOs maintain their privileged status.
Mr. KENNEDY. Mr. President, I thank the Senator.
In the press conference of the Republican leadership, it was
represented that there were complicated changes and alterations to the
bill. The Senator responded to questions raised as to what these
changes and clarifications are. This is a result of the White House
asking the principals to work out some clarification in these areas and
to accommodate these kinds of requests.
Those changes were made. Now they are being used as an excuse for
failing to bring this matter up.
Mr. GREGG. Mr. President, will the Senator yield?
Mr. KENNEDY. Yes; briefly.
Mr. GREGG. I know that the Senator from Massachusetts and the Senator
from North Carolina said the employer is not subject to liability under
this bill. The Senator cited section 5 on page 144, subparagraph (A).
The Senator didn't cite subparagraph (B), which says, notwithstanding
subparagraph (A), the cause of action may arise against an employer, or
other plan sponsor--it goes down the list--as directed participation in
the employer's plan, and the decisions of the plan under section 102.
So, very clearly, an employer is subject to liability under that
section, and that ``directed participation'' is an extremely ambiguous
phrase, I believe. I would be happy to discuss that.
Then, if we go to page 141, where a new Federal cause of action
against employers is created, subsection (ii) on that page says,
``otherwise fails to exercise ordinary care in the performance of a
duty under the terms and conditions of the plan with respect to a
participant'' in the plan. That action creates a new cause of action,
which is a new cause of action against the plan's sponsor, and, by the
terms of ERISA, section 3 definition, plan sponsor is defined as--lo
and behold--the employer.
I believe it is very clear under this bill that employers are subject
to the right to be sued. They are subject to the right to be sued for
what I expect are going to be multiple opportunities for a creative
attorney. In fact, the Congressional Budget Office has basically rated
this as a lawsuit against employers and has in fact rated the costs in
this bill, which is significant and will lead to employers giving up
their insurance.
I would be interested in the Senator's definition and explanation of
why, when the bill says in part (B) on page 144 that cause of action
may arise against an employer or other plan sponsor, the language means
something other than cause of action arising against the employer or
other plan sponsor.

Mr. KENNEDY. I am glad to respond. I hope we can do this briefly
because we are going to recess. I will let the Senator from North
Carolina respond to that, if I may.
Mr. EDWARDS. Mr. President, I respond to the Senator's question by
saying, first of all, I suggest that he read the principles because the
language of this legislation comes directly from the President's
principles.
Mr. GREGG. If the Senator will yield, I am not asking the President.
Mr. EDWARDS. Excuse me. Do I have the floor? Excuse me.
The PRESIDING OFFICER. The Senator from Massachusetts has the floor.
Mr. KENNEDY. Mr. President, I think we only have 2 or 3 more minutes.
I wanted to give the opportunity for a response. I think the answer, as
the Senator pointed out, is read from President Bush's own words. Only
employers who retain responsibility for or make final medical decisions
should be subject to suit. It is that language and that principle that
has been included in the language.
If the Senator from New Hampshire thinks that is in some way
ambiguous, or doesn't achieve that objective, that is the objective
that we had. That is the language that was drafted in the Senate to
carry that purpose forward. But we are open.
Does he agree with that principle? I ask the Senator. Does the
Senator agree with that fundamental principle or differ with the
President on it?
Mr. GREGG. No. I actually agree with the principle. I think the
President's point was that employers generally should not be subjected
and opened up to massive liability. And this bill does that. That is
why I asked the Senator to explain the section.
Mr. KENNEDY. I will have to reclaim the floor.
Mr. GREGG. The Senator asked me a question. Doesn't he want me to
respond?
Mr. KENNEDY. I asked specifically whether the Senator agreed with the
President's principles. The Senator said yes, he did.
He went on to say that the language in the legislation opens up
massive opportunity for suing employers, which is different. He
answered my question. I am reclaiming my time since I only have about a
minute and a half left.
I wish we had the opportunity to debate this because it is very clear
what has been done with the drafting of this legislation. The
employers, outside of those who are actually going to be making medical
decisions affecting patients, are excluded.
I have been going to the conferences with those who are opposed to
it. They say, oh, no, that is not what it does.
It is a favorite whipping provision in this language. They keep
saying that isn't what it does. That is what we intend to do. That is
what we have done in this language. We will have more of an opportunity
to debate that later.
Mr. GREGG. Will the Senator yield for a question?
Mr. KENNEDY. I only have about 5 or 6 minutes to be able to make some
presentation on this. I look forward to that time. I will be glad to
yield. Could I ask that we defer the recess time from 12:30 until
12:35?
Mr. GREGG. Mr. President, I ask unanimous consent that at the
expiration of the discussion of the Senator from Massachusetts I be
given 10 minutes.
Mr. KENNEDY. We are about to recess.
Mr. GREGG. I am asking that the time for the recess be extended
beyond the Senator's period for 10 additional minutes and that I be
recognized.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Massachusetts.
Mr. KENNEDY. Fine.
Mr. President, so how much time remains? It is now 12:30.
The PRESIDING OFFICER. The Senator from Massachusetts has another 5
minutes by the previous unanimous consent agreement. Then the Senator
from New Hampshire will have 10 minutes, and then we will recess until
2:15.
Mr. KENNEDY. Fine.
Mr. President, this whole debate should remain focused on what it is
really about. What this debate is really all about is that doctors,
nurses and families are going to make decisions. And those decisions
ought to be carried out. They should not be overturned by bean counters
and accountants working for HMOs thousands of miles away. These
accountants do not have the training, do not know the patient, and do
not know the complete medical circumstances surrounding the patient's
case. That is what this legislation is really all about.
We have taken the kinds of protections which have been outlined now
by the Senator from Arizona and the Senator from North Carolina and
indicate what those protections are. There are 26 different protections
which have been included. We have yet to hear from the other side, as
we have had these debates now for 2 or 3 years, regarding which
protections they do not agree with. Is it the emergency room? Is it the
clinical trials, specialty care, or the OB/GYN protections? Is it the
gag rules? We have not heard what particular guarantees and protections
that are there for the American families to which they object.
They talk a good deal about the cost of this legislation. They want
to do the bidding, I guess, of the HMOs, and have them be the one
industry in this country not held accountable for actions

[[Page S6411]]

they take that can harm, kill, or maim children and workers in our
country.
What we are basically saying is, if HMOs make decisions which put
individuals at risk, then they ought to be held accountable. The HMOs
should be held accountable. If there is an employer making a similar
decision which is going to result in the same kind of pain and
affliction to that individual, they ought to be held accountable.
Otherwise, employers that just go out and make the contracts should not
be. If there is a question of clarification of language, we would work
that out.
Over the period of time, one of the attacks that has been made on
this legislation is its potential cost. I want to say that is an old
red herring. I was here not long ago when we passed the Family and
Medical Leave Act. We had the Chamber of Commerce stating the cost of
the Family and Medical Leave Act was going to be $27 billion a year on
American industry. It is not. It has been an enormous success, and
companies have welcomed it. And there is going to be the opportunity to
expand it.
I was here when we debated the portability of health care for those
individuals with disabilities, the Kassebaum-Kennedy bill. We heard at
the time that it was going to increase premiums by billions and
billions of dollars. It has not. It is working, and there is no one
here to suggest that we should not have gone ahead on it.
I was here when we heard the question: Should we increase the minimum
wage? There were those who said it was going to mean hundreds of
thousands of people were going to lose their jobs, and that it was
going to add inevitably to the problems of inflation. It has not.
We know the scare tactics that were being used in terms of the cost
in the past, and they are the same kinds of scare tactics that are
being used at the present time.

The CBO, as the Senator from North Carolina has pointed out,
indicates that last year premiums went up 10 percent, and the top four
or five HMOs had $10 billion in profits in our country. They estimate
that 20 percent of every premium dollar paid goes to advertising,
administrative expenses, and large salaries for these individuals. It
went up 10 percent last year. It went up 8 percent the year before.
As the CBO estimates, under the Breaux-Frist bill, it will go up 2.9
percent over 5 years; and under the McCain-Edwards bill, 4.2 percent--a
1.3-percent difference. As the Senator from North Carolina pointed out,
if you look at those figures, the difference is in the additional kinds
of expanded opportunities for patients, such as for clinical trials.
For example, women need those clinical trials in relation to breast
cancer. We need to make sure they are going to be able to have those
trials.
We have to have greater access to specialists. If a child has, as my
child had, an osteosarcoma--which only 1,200 children in this country
have--they need a pediatric oncologist. They shouldn't go to a general
practitioner to make the recommendation for the kind of treatment that
resulted in the saving of my son's life. We are talking about access to
those kinds of specialists. We see there is a difference between the
bill we have before us and that which the opposition favors.
The PRESIDING OFFICER. The Senator's additional 5 minutes have
expired.
The Senator from New Hampshire is recognized for 10 minutes.
Mr. GREGG. Mr. President, I had not intended to speak right now, but
I do think some of the things that have been said in this Chamber do
need to be responded to because it is very obvious there is a
significant disagreement, and it is a disagreement which is core to
this issue.
First off, let's begin with the question of how this bill is coming
forward. You have to remember, this bill has not had a hearing since
March of 1999. We have not had any hearings on this particular bill.
And this is one heck of a complicated bill. The bill on Wednesday was
not the bill we got on Thursday.
So when the other side says we are delaying, I think that is a little
bit of a straw man debate primarily because, as a matter of
responsibility, we have to at least read the bill. And then we have to
figure out what is in it.
One of the big issues in relation to what is in it is what effect
this will have on employers. I think the language is unequivocal on
that point. The language in section (B), as I cited before, 144, says:
A cause of action may arise against an employer. Sure they have the
nice title, ``Exclusion of Employers,'' but they wipe out that language
with the language which says: Notwithstanding anything in subparagraph
(A)--that is the one with the nice title on it, ``Exclusion of
Employers''--a cause of action may arise against an employer or other
plan sponsor--and then it lists why.
One of the standards here is if the employer had direct
participation. And ``direct participation'' has become a word of art
that is incredibly broad. ``Direct participation'' just means an
employer had to maybe wink at his employee, as he headed off to his
doctor's office, and say: Hope you get better.

As a practical matter, today direct participation essentially brings
in every employer in this country that has a plan. That is why a lot of
employers are going to drop their plans. That is why no employer group
supports the McCain bill--none--because it is an attack on employers,
as versus a legitimate effort to try to get at malfeasance, misfeasance
negligence in the areas of HMOs.
We all want to make sure that people who are poorly treated by their
HMO have a right for recovery. We put together proposals which
accomplish that. But let's not draw all the employers into the process
and stick them with lawyers running around them in circles, suing them
like crazy, shooting arrows at them, trying to recover from them
because then we will drive the employers out of the insurance market,
and more people will be uninsured. That is why it is projected that
this bill will increase the number of uninsured by over 1.2 million
people.
I am a little surprised that some of the sponsors of this bill want
to expand the number of uninsured in this country. I think some
supporters of this bill may want to because there is, I believe, a
belief that nationalization of the health care system is a good idea,
and one way to energize support for nationalization is to have a lot of
uninsured. But I am hopeful some of the other folks who look at this
bill and are supportive will say: Hold it. That was not our intent. We
didn't want to drive employers out of the business of insuring and
cause more people to be uninsured. We wanted to do just the opposite.
So this language is extremely broad, extremely pervasive, and will
attack the employers of America--small employers, employers with 10
employees, with 5 employees, with 25 employees, with 50 employees.
There is no exemption in this bill. Then there is other language in
this bill. This bill creates a whole new cause of action against
employers that has never been seen before, a whole new Federal cause of
action. And it is a biggy. This is one where lawyers can really have a
good time because, under this bill, it makes the employers responsible
for the performance of the duties under the terms and conditions of the
plan. This is a brand new concept under Federal law.
It defines the people responsible, as I said earlier, as plan
sponsors. Plan sponsors, under ERISA, are defined as employers. It
brings in the employers. We went through the different obligations
under a plan that an insurance company has that offers that plan and
which are enforceable, not today by the individual but by a variety of
different processes. We calculate that there are potentially 200 new
opportunities for private causes of action against employers as a
result of this language. There are a lot of lawsuits because there are
a lot of lawyers who can take those 200 opportunities and multiply
them. That is one of those factors which has an infinity symbol beside
it as to the number of potential lawsuits, that little circle you
learned in eighth grade when you took physics, a little infinity circle
connecting the lawyers to lawsuits as a result of this language.
I would rename this bill ``the lawyers who want to be a millionaire
act'' because that is essentially what it is. This representation that
employers are not subject to liability is absolutely inaccurate. Under
the clear terms of the bill itself, it is absolutely inaccurate.
What is the practical effect of this bill? This issue is not about,
as the Senator from Massachusetts outlined, a whole series of coverages
that people need. This is not about that. We give

[[Page S6412]]

those coverages in our State. Most States have those coverages as a
requirement in their States. It is not about that. It is not about
whether or not a patient has access to a specialist, and it is not
about whether or not a woman has access to an OB/GYN. All of that is
available and should be available. Those are being thrown up as red
herrings to try to develop support. That issue is not even on the table
because there is hardly a State in the country that does not give those
types of coverages and require those types of coverages of their HMOs.
It is not about whether a patient should have a timely right to
appeals, both internal and external, because all the laws, all the
proposals that have come forward have done that. It is not about that.
It is not about whether a patient should be compensated if they get
harmed by their doctor or their HMO. All of the bills that have come
forward, all the proposals that have come forward have had that as part
of their language. All these bills share those same goals.
This is about a dramatic expansion in the opportunity to sue. That is
what the bill is about, as it is brought forward; specifically, to sue
employers, with the practical effect being that more people will be
uninsured in our country today because more employers will drop their
insurance. The number of new opportunities in this bill for lawyers to
create havoc is significant.
You have the fact that you can basically forum shop between States
and Federal law. You have States stepping into the area of ERISA. ERISA
is an incredibly complex piece of legislation on which Federal courts
have spent a lot of time developing expertise. There has been over
10,000 cases on ERISA decisions. Suddenly Federal and State courts are
going to take on this issue. Not only are they going to get to take it
on, but they are going to get to take it on without any liability caps.
Essentially, there are no liability caps against health plans. There
may be caps against doctors in some States, but take California; they
don't have caps against health plans.
There are no liability caps.
You are going to have punitive damages, economic damages without
caps. The implication of what that means is that you are going to have
forum shopping from State to State, depending on which State makes the
most sense for a person, which structure makes the most sense for a
lawyer to pursue. Then you are going to have them proceeding in that
structure. And you are going to have the employer brought in.

Plus this concept that you have to go through an appeals process
before you get to bring a lawsuit is also totally subjugated in this
bill. The way this bill is structured, all you have to do is show harm
and you are out of the appeal process--or alleged harm. Originally it
was ``alleged'' harm. Basically, you get into court and claim you show
harm and then everything else gets to the table. No more appeals
process of any nature. The concept of trying to reduce the amount of
litigation by having a reasonable appeal process is totally undermined
by this bill.
It should also be noted that the economic impact of this bill has
been scored not by me, not by some political organization, but by CBO.
This bill costs 4.2 percent. That is not over 5 or 10 years, as was
represented here earlier. That is an annual cost on top of the health
care costs which are inflating fairly rapidly right now. A 4.2 percent
increase translates into a very significant increase, as has been
mentioned earlier, in the uninsured because employers will have to drop
their insurance because they can't afford it. That should not be our
goal here.
What should our goal be?
The PRESIDING OFFICER. The Senator from New Hampshire has used his 10
minutes.
Mr. GREGG. I ask unanimous consent for 2 more minutes.
Mr. REID. Mr. President, reserving the right to object, I have no
objection to my friend using 2 extra minutes. Following that, I would
like to be recognized and then the Senator from North Carolina would be
recognized for 5 minutes and then we will go to our party conferences.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from New Hampshire now has 2 minutes, to be followed by a
statement from the Senator from Nevada, and then 5 minutes to the
Senator from North Carolina.
Mr. GREGG. Mr. President, the goal here should be this: When you go
to see a doctor and you go to your HMO, if that is who covers you, you
should expect to get good treatment. If you don't get good treatment,
you should have relief. And you should expect to have a certain amount
of flexibility as to who you see and especially with some very common
events such as OB/GYN and areas such as that, where you should have the
capacity as the patient to make some choices: your primary care
provider, things such as that.
That is all accomplishable. In fact, the bills that have been brought
forward from our side of the aisle--some of them in a bipartisan way,
such as the Breaux-Frist-Jeffords bill, last year's, the Nickles
amendment, which did not have any Democratic support--have accomplished
that. In the process of accomplishing that, we should not fundamentally
undermine the interests of employers to participate in health insurance
for their employees, which is what, unfortunately, the McCain bill
does. And we should not do unnecessary and significant damage to States
rights which is, unfortunately, what the McCain bill does. That is a
whole other discussion. There are a variety of other problems.
The goal can be accomplished, which is better health care and better
protection of our patients and people who use our health care system
without this very egregious, very intrusive, very litigious piece of
law being passed.
To reiterate, this is not a debate about whether patients should have
rights.
This is not a debate about whether patients should be able to go the
nearest emergency room without being penalized.
This is not a debate whether a patient should be able to access a
specialist with appropriate expertise and training; prescription drugs
that are medically necessary and appropriate; or comprehensive
information about their health plan.
This is not a debate about whether a female patient should be able to
directly access OB/GYN without prior authorization, nor is it a debate
whether the parents of a child should be able to designate a
pediatrician as their child's primary care provider.
This is not a debate about whether a pregnant, sick, or terminally
ill patient is able to continue receiving care from her physician
through the entire course of treatment--even if the plan terminates her
physician from the network.
This is not a debate about whether physicians are able to tell their
patients about all treatment options without being gagged by the health
plan.
This is not a debate about whether there should be procedures to
ensure that health plans make timely decisions and patients have the
right to both an internal appeal to the plan and an independent
external review when a plan denies coverage. And this is not a debate
about whether the external review is independent from the plan and the
reviewer makes a decision based on the best medical evidence and
highest standard of care.
This is not a debate about whether all Americans should enjoy these
types of rights.
This is not a debate about whether patient rights should be
enforceable or even whether a patient should be fairly compensated when
harmed or killed by the decision of his or her health plan or HMO.
We agree on all these issues. Both sides share these goals. Democrats
and Republicans.
The real debate is about how we can best achieve these common goals.
It's about putting patients first--ahead of special interests. It's
about accomplishing these goals without driving up health care costs,
giving employers more reasons to drop health coverage, adding millions
more Americans to join the ranks of the uninsured, or dismantling our
private, employer-based health care system.
The bill we are about to debate--the Bipartisan Patient Protection
Act sponsored by Senators McCain, Edwards, and Kennedy--fails on all
these counts.
I believe we can accomplish our common goals without inviting these
unintended consequences. Unfortunately,

[[Page S6413]]

there appears to be no interest from the majority in addressing these
concerns. Senator Daschle said recently that he sees no reason to
compromise or address these concerns. I think that is very unfortunate
for consumers and for patients.
I would like to highlight the very real problems in this bill, S.
1052 which was just introduced on June 14.
The McCain bill creates two opportunities to take a bite at the
apple. First, it allows unlimited lawsuits against health plans and
employers under state law. Second, it creates an expansive new remedy
with very large damages under federal law.
The dual Federal-State scheme under the McCain bill will encourage
dual claims and forum shopping. Plaintiff's lawyers will shop around
for the forum with the highest limits on damages. And there is nothing
in the bill that would prohibit suits based on the same or a similar
set of facts from being filed simultaneously or consecutively in both
State and Federal court.
This dual Federal-State scheme will raise complicated and costly
jurisdictional questions and will ensure that plan benefits and
administration will vary from State to State. This will only serve to
confuse patients who are already faced with the task of navigating a
complex health care system.
This scheme will also impose needless and excessive costs that will
discourage employers from sponsoring health plans. It will ultimately
increase the ranks of the uninsured.
Federal courts have been routinely hearing cases involving
complicated employee benefit cases. The McCain bill would essentially
remove all coverage and claims decisions from Federal court and place
them under State jurisdiction, even though States have no experience
with ERISA and employer-sponsored benefits.
Federal courts have honed their expertise in resolving complicated
employee benefits issues since they were given exclusive jurisdiction
over such cases in the Employee Retirement Income and Security Act of
1974, ERISA. Approximately 10,000 ERISA cases are filed each year in
Federal court.
In order to provide high quality and affordable benefits to
employees, employers that sponsor health plans across State lines must
be able to administer their benefits in a uniform, consistent and
equitable manner. The McCain bill will produce multiple and conflicting
State laws, regulations and court interpretations, making it difficult
for employers to administer their health plans.
Congress' rationale for giving Federal courts exclusive jurisdiction
with respect to remedies is as applicable today as it was in 1974. From
ERISA's legislative history: ``It is evident that the operations of
employee benefit plans are increasingly interstate. The uniformity of
decision which the Act is designed to foster will help administrators,
fiduciaries and participants to predict the legality of proposed
actions without the necessity of reference to varying state laws.''
Proponents of the McCain-Edwards bill would have you believe that
they have compromised by adding a $5 million cap on punitive damages
for the Federal cause of action. But this cap is merely illusory.
The bill has no caps on Federal or State economic or non-economic
damages.
Plus, there are no caps on damages specified for the numerous
lawsuits that would fall under State jurisdiction. And there is no
evidence to suggest that State law caps would be applied to these
various causes of action. In fact, most State medical malpractice law
damage caps only apply to physicians and other health professionals--
not health plans. California is one such example.
Excessive damage awards only harm physicians and patients. According
to a study by Tillinghast-Towers Perrin, health plan liability will
increase physician medical malpractice liability premiums by 8 to 20
percent because plaintiffs will target all possible defendants,
including physicians. These costs will be passed on to patients in the
form of higher premiums or reduced coverage.
Health plans will also pass on the increased costs of being exposed
to large damage awards to employers who will in turn pass the costs on
to employees or reduce or terminate coverage.
The McCain bill allows patients to go straight to court--for the
purpose of collecting monetary damages--without exhausting
administrative remedies first.
The independent medical review process is the best, most efficient
remedy for the majority of patients. It ensures that patients get the
medical care when they need it. In contrast, tort damages are only
available to patients after they are injured.
The ``go straight to court provision'' creates a perverse incentive
for patients, encouraged by their attorneys, to bypass the review
process in order to seek the big damages awards in court.

Proponents of the exhaustion loophole argue that external review is
``not enough.'' They would have you believe that an exhaustion
requirement somehow precludes the ability of an injured patient to seek
recourse in court. But this is not the case. The external review
process is merely a required and beneficial step before going to court.
The high standards that the medical reviewer is required to follow
will help inform the court's decisions in determining whether the plan
decision was the right one. Just as a medical expert is not versed in
the specifics of the law, the court is not well versed in medicine and
will benefit from the finding of the independent, external review--as
will the patient.
The McCain bill allows the medical reviewer to consider but ``not be
bound by'' a plan's definition of medical necessity which may be used
to determine whether a plan covers a benefit. In effect, this allows
the medical reviewer to ignore contract definitions of medical
necessity and substitute their own definitions or opinions as a basis
for overturning a health plan's decision.
This provision would lead to routine reversals of health plan
decisions and generate increased litigation. Employers and health plans
would have no predictability in administering their plans or estimating
their exposure to liability. Alternatively, this may cause plans to
routinely approve all coverage thereby driving up premiums
astronomically and raising quality and safety concerns for the patient.
Employers may reconsider their commitment to offer and administer
health benefits if the McCain bill becomes law.
Health plans and employers that honor their contractual obligations
could be on the losing end of a lawsuit when an external medical
reviewer decides to disregard a term in the health plan contract. Even
plans that adhere carefully to the terms of their contracts, no matter
how generous those terms are, could be held liable if the reviewer
decides to apply a different standard.
Contrary to continued assertions by its proponents, the McCain bill
does not protect employers from open-ended liability. In fact, the bill
specifically authorizes certain types of lawsuits to be brought against
employers in Federal court for failing to perform a duty under the
terms and conditions of the plan.
Because employers are required to carry out a broad range of
administrative duties under ERISA's statutory scheme, the McCain bill
will leave them wide open to new Federal personal injury suits.
Employers will be sued for all types of alleged errors such as issuing
notices required by the Health Insurance Portability and Accountability
Act, HIPAA, and the COBRA, regardless of whether such errors result in
a denial of a covered benefit.
The McCain bill would impose potentially huge new compensatory and
punitive damages remedies for violations of COBRA, HIPAA, and ERISA's
disclosure requirements. Moreover, under the statute's own
requirements, the employer is specifically required to carry out COBRA
and disclosure requirements. The employer is almost always the
administrator. Thus, McCain-Kennedy imposes a huge new liability on
employers that employers cannot avoid; despite the fact that when
Congress adopted COBRA and HIPAA with large bipartisan majorities no
discussion was given to the need for punitive damages to enforce the
new requirements.
The ``direct participation'' provision in the McCain bill provides
little comfort to employers who will still be

[[Page S6414]]

dragged into court on every case. Employers who do not ``directly
participate'' in such decisions are not protected from being sued; they
are only provided with a defense to raise in court.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Mr. President, I disagree with what my friend from New
Hampshire has said about the content and the direction of the McCain-
Edwards legislation. Why don't we decide if he is right or I am right.
And how you do that is you come to the Senate and you debate the issue.
We are being prevented from doing that today. The Republicans have
objected to our going forward to consider this bill. So this will
necessitate our going through the procedure of filing a motion to
invoke cloture which we will vote on Thursday. I believe rather than
wasting that time, we should be here debating the principles enunciated
by the Senator from New Hampshire and what we have been saying on this
side all day.
That seems to be the fair way to do it, rather than talking about all
the scary points of this bill from their perspective and the positive
points from our perspective. Let's debate the issues. This bill has
been around for 5 years in one version or another. We believe that we
have refined this legislation. Because of the courageous actions of the
Senator from Arizona and the brilliant input of the Senator from North
Carolina, we now have a piece of legislation that is extremely good. It
is better than the ones that have come before us before. It is so good
that on our side we are going to offer very few, if any, amendments
because we believe this legislation is so good.
This legislation deals with accountability. We spent 8 weeks in this
body talking about education. What were we trying to establish? We
wanted students and teachers and administrators to be accountable and
to make sure we had good education in our public schools.
Accountability: That same argument should be and will be carried over
into this legislation dealing with the Patients' Bill of Rights.
I have a lot of other things to say and I will not say them now. I
showed to the Presiding Officer in the Senate that we have only a
partial list of those organizations that support this legislation.
These are business groups, nurses groups, physician groups, starting
with the Abbott House, Inc.--Abbott House in Irvington, NY. That is No.
1 on the list. At the end of this list we have the YWCA of northeast
Louisiana. Of the 300-plus groups we have listed here, we have groups
that should know the difference between good and bad medical care. For
example, there is the Wisconsin Paralyzed Veterans of America. They
believe what we want to do is right.
It is not often that you find legislation in the Senate that is
supported by hundreds and hundreds of groups. Every consumer group in
America supports our legislation. We have the physician organizations,
specialties and subspecialties, that support this legislation. We have
the American Medical Association that supports this legislation.
You know, for the first time that I can ever remember, we have the
doctors and the lawyers thinking this is good legislation. So I say to
my friend from New Hampshire, who is going to be the manager for the
Republicans on this legislation--I believe he should listen to what he
said if he believes this--and I know he does--let's debate it, as my
dad would say, ``like men,'' and now women because they are a vital
part of the Senate. Let's debate this issue as grownups, not hiding
behind procedural matters. If they think our legislation is so bad, let
them prove it out here.
I am willing to take my chances on an up-or-down vote on the Senate
floor. That is how we should decide issues. We should not be hiding
behind some procedural prohibition that prevents us from moving this
legislation forward.
One last thing. The majority leader said today, right here at 11:30,
that this legislation, the Patients' Bill of Rights, is going to be
completed before we leave for the recess--if we have a Fourth of July
recess. That is what he said. He is not playing games. He is majority
leader of the Senate. He said today that if we don't finish this bill
by next Thursday night--if we do, we are off Friday. We have the Fourth
of July recess. If we don't finish this bill by next Thursday evening,
we are going to work Friday, Saturday, Sunday, and we are going to work
Monday--every day except the Fourth of July. Then we will come back on
the fifth. We are going to be here until we finish this legislation. So
all staff members here in Washington and people watching this on C-SPAN
should understand that we, the Senators, may not be home for our Fourth
of July break. We may be here doing the people's work, trying to work
our way through this legislation, through all the obstacles being
thrown up procedurally by the money interests of this country--the HMOs
who think they own the medical care of this country. They don't. It is
owned by the people--the patients, nurses, and doctors.

The PRESIDING OFFICER. The Senator from North Carolina is recognized.
Mr. EDWARDS. Mr. President, the great thing about debate on the floor
of the Senate--particularly extended debate--is that we get past the
high-pitched rhetoric and actually get to the facts. I want to respond
briefly to some of the comments of my friend and colleague from New
Hampshire.
He argues that under our bill employers can be held responsible--
citing a particular page of the legislation--if they make a comment to
an employee going out the door on the way to their doctor saying,
``hope you feel better''.
First of all, President Bush has issued a set of principles that are
specific to this issue. His principles say, ``Only employers who retain
responsibility for and make final medical decisions should be subject
to suit.'' So the President himself, in his principles, has said
employers that are making medical decisions about individual cases are
subject to sue and should be subject to sue.
My colleague from New Hampshire cited language on page 141 of the
bill referring to, ``otherwise, calls of action created by failing to
exercise ordinary care in the performance of a duty.'' Two pages later
in the bill, which unfortunately my colleague didn't talk about, there
is language at the bottom of the page, subsection (A), that says:
``This section does not authorize a cause of action against an
employer.''
What I suggest to my colleague is that he read the entirety of the
section to which he refers.
The language of what constitutes making a medical decision in a
specific case is very clear in our legislation. It includes none of the
general things that the Senator from New Hampshire talked about. What
has to happen under the specific language of our bill, and as set forth
by the President of the United States, is that the employer has to
actually override and make the decision as an HMO would in a particular
case. Otherwise, under the language of our bill, and under the
President's principle, the employer is protected, period.
We want to protect employers. That is the whole purpose of this
language. It is why Senator McCain and Senator Kennedy and I have
worked for months and months in crafting this language.
The second argument my colleague made is that there would be forum
shopping between State and Federal court. The language is clear. If an
HMO makes a medical decision, that case goes to State court. If the
question is on the specific provisions of the plan the employee is
covered by, that case goes to Federal court, period. It is where the
cases have always been. The reason the other cases--the medical
decision cases--go to State court is because when they make a medical
judgment and overrule a doctor, we want them to be treated just as the
doctors and the health care providers.
Third, he argues that ERISA is a very complicated law that will be
difficult for State courts to apply. Well, the State courts won't be
applying ERISA. What the State courts would be doing is applying their
own State law because what our bill provides is that when a medical
judgment is made by an HMO and some child is hurt as a result, and they
take their case to State court, that State's law applies, so that if
there are recovery limits--and there are, I think, 30-some-odd States
in the country. And the argument was made that there are no caps in our
legislation; there will be an outrageous explosion of litigation.

[[Page S6415]]

First of all, it ignores the fact that State law applies, and the
vast majority of States have limits on recoveries.
Second, the evidence shows that in California and Texas--the two
States that use legislation similar to ours--virtually no cases have
ever gone to court. The cases get resolved in the appeals process. It
is the way our legislation is designed. Cases go to court only as a
matter of absolute last resort.
Finally, he suggests there will be forum shopping from State to
State, where a patient will choose to go to another State to file a
case because somehow that is more beneficial to them. Well,
unfortunately, that has nothing to do with the real world. Patients
will be required to file their case in the State where they live, which
is exactly where you would expect them to file. It is where they got
their care, where they were hurt by the HMO. That is where their case
would be filed.
So what we have done, ultimately, is set up a system whereby HMOs are
treated the same as everybody else, as all the rest of us. That is its
purpose. We want to take away the privileged status that HMOs have
enjoyed for so long, while protecting employers, giving patients
substantive rights, access to specialists, access to emergency rooms,
access to clinical trials, and having those rights be enforceable. It
is so important that these rights we create in this bill have teeth in
them, and the only way they have teeth in them is if the force of law
is behind them and those rights are enforceable.

____________________