John Breaux

Mr. BREAUX

Mr. BREAUX. Mr. President, do we have a time agreement on this amendment?

Mr. BREAUX. Let's try it without an agreement. We will see how it goes without any kind of agreement. Mr. President, I rise to comment on the bill that is now before the Senate. It is the Frist-Breaux-Jeffords substitute bill. Before doing so, while the Senator from Tennessee is still on the floor, I want to say something about how enjoyable it has been to work with him. While most of us are going to be leaving this Chamber tonight or tomorrow sometime to spend time with our family on vacation or have an enjoyable period of time that we can rest and relax, the Senator from Tennessee, because of what he does professionally and what he believes in, is going to be leaving on a flight tonight to go to Africa. He is going to Africa to do surgery on women and children and families who cannot afford health care on the continent of Africa. I want to say how proud all of us can be of one of our colleagues who has that type of attitude. He not only serves his constituents in Tennessee in this body but also serves so much of humanity in various places in the world by volunteering at his own cost, on his time, with his medical expertise, serving people who have no health care. We are talking about a Patients' Bill of Rights on the floor of the Senate. He really, truly is practicing that by providing medical services to people who can't afford it in various parts of the world. For those who are interested in getting a Patients' Bill of Rights enacted into law, let me say that, without the amendment that we have offered, the bill will not become law because the President has clearly indicated he will veto a bill that does not contain some of the main principles that you can find in the Frist-Breaux-Jeffords substitute. What I am talking about is not that complicated. The White House has said we are creating new Federal rights, Federal remedies, and we are amending a Federal statute--the ERISA laws of the United States. If there is going to be any litigation dealing with these new Federal rights, they ought to be handled in the Federal courts. Why do we recommend that? Why does the President say that is important? So we can have one consistent way of handling all of these potential suits that will be filed. Instead of having 50 different courts, with 50 different jurisdictions, with 50 different rules of evidence and 50 different procedures on how to handle litigation, you would have any disputes dealing with these Federal rights handled in the Federal court systems of the United States. Our opponents argue that the Federal courts don't want any more suits to be filed. Neither do the State courts. There is not a State court or district court anywhere in the United States that is going to say we need more litigation, come sue on a State level. Neither the Federal nor State courts want any additional litigation because they are as full as they possibly can be. So the argument that the Federal courts don't want them--well, neither do the States. I think from a matter of trying to make sure we have a system that works, that is, a national system that protects Federal rights, it should be in Federal court. If this is not part of the final package, the final package, indeed, will not become law, and that would be a very serious mistake for the people in this country. Second, we have recommended some type of caps--a reasonable amount of caps on noneconomic damages. We have no caps on economic damages, of course, but we suggested a cap of $750,000 for pain and suffering, for noneconomic damages, or three times the amount of economic damages, whichever is greater. We tie it to inflation. I think that is reasonable. We had also suggested something I think would be very important for the patients and, indeed, the lawyers who are concerned about litigating cases. There are no caps on our bill for gross negligence. At an earlier time we had offered that there would be no caps for wrongful death if a person was killed as a result of some decision made dealing with medical necessity. Then there would be no caps whatsoever either for gross negligence or wrongful death. Those two ingredients are very important. What happens when this bill leaves this body, if we are truly interested in getting an agreement, is that somehow between now and the time this bill gets down to the White House, these concerns are going to have to be addressed in a fashion that I think means they are going to have to be adopted. It does us no good to have a bill that is going to be vetoed. We will help no patients. They get a good political issue, but they don't get any help, any guarantees. We will have spent all of this time arguing about things that cannot become law. So I think the clear thing that our bill provides, which I think is absolutely essential either now or at some time, is that we have a degree of Federal jurisdiction that enforces the Federal rights that we are creating in this legislation, and that we address the question of unlimited damages in a way that allows the White House to be able to sign this bill. I will tell you that in reading what we have done with all of the amendments--the Snowe, Thompson, and DeWine amendments --where we have split jurisdiction, and the Kennedy-McCain bill which says some of the suits will be in State court and some in Federal court, our suggestion is just the opposite. The new rights will be in Federal court, and all the previous ones in the State courts will remain. We need to do some work on this. We have created something that is as complicated as the Egyptian hieroglyphics. If you had a flowchart on what we are suggesting in the bill now before the Senate, we could not figure out where you go and when you go to the different courts and for what rights. That is unacceptable. This thing needs a lot of work before it can become law because I am afraid that what we have created tonight in this bill is unmanageable and unworkable. Our suggestion makes it a great deal better. I am under no illusions about what is going to happen, but I know I am also not under any illusions about what can be signed into law and what cannot. I fear that what we have tonight cannot be signed into law without the recommendations we have made. I yield the floor. I see my colleague from Vermont is also with us.

Mr. BREAUX

Mr. BREAUX. I yield myself 5 minutes. Mr. President, I rise in strong support of the so-called Breaux- Jeffords compromise amendment. We are dealing with a question of how are we going to allow the States to continue to operate their own patient protection bills that many of them have already instituted. My own State of Louisiana has passed over 35 different patients' bills of rights guarantees, and they are working fairly well. I think my colleague, Senator Jeffords, wants to continue to allow those States to have their State plans in effect when they are substantially complying to what we are trying to do here on a national level. As Senator Kennedy said last night, if you had the Collins amendment, there would be no guarantee that States would have a Patients' Bill of Rights. They would not have to do anything if they so chose. A State could say they are not interested in guaranteeing patients within their borders any rights at all, period. We don't think it is the right thing to do. We are not doing it. The only thing that they would suffer, if they decided to take that approach under the Collins-Nelson amendment, is that they would lose grant money that is being authorized in this legislation. Well, I think that is unfortunate in the sense that we are talking about a national program to guarantee patients the rights they should have under this legislation. I think there is strong agreement nationwide that there is a need to have some kind of a national guarantee that covers all Americans, not just some Americans, not just a few Americans, not just a handful of Americans, but all Americans, in dealing with their health insurance program. Our compromise amendment does accomplish that goal, and it does it in a way that gives the maximum ability of the States to do what they think is necessary in crafting their Patients' Bill of Rights. The language that we have put forth says that State plans would not be superseded. They will continue to operate as they do today, if they substantially comply with the patient protection requirements that we are instituting on a national level for all Americans. That doesn't mean their plan has to be exactly the same as the Federal requirements. It has to substantially comply. That is a legal term used in Congress on many other occasions. On the SCHIP program for providing insurance to children, which we have enthusiastically supported, the requirement is that a State can run their own program if it substantially complies with the Federal requirements for all Americans that were instituted by this Congress. On the Medicare Program, folks here in Washington understand how to apply that terminology. It is working. My State of Louisiana runs its own plan. I am very confident that my State of Louisiana will continue to run the plan we have in place right now under the Breaux amendment because it clearly would, in my opinion, substantially comply with what we are talking about here. We have a definition of what ``substantially comply'' means by saying a State law would have the same or similar features as the patient protection requirements and would have a similar effect. That is not an unbearable standard at all. It does not have to be exactly. It just has to have the same or similar features. They can design those rights on States that will be tailored to the needs of that particular State, and the only requirement is that it have the same or similar features. That is not too strong a guideline to the States or a requirement on behalf of the States. I think it can work. Most of the States, if not every single State, that have adopted a Patients' Bill of Rights will find their plans in their respective States will stay intact and will still be the State Patients' Bill of Rights under this legislation. If a State decides for some reason they do not care, they are not going to do anything, there should be the ability for us to make sure all Americans are guaranteed the rights we are talking about today; that they are enforceable; there is an opportunity to go to court to enforce them; and that there is an appeals process when they are being abused. This is what the Breaux-Jeffords amendment will allow. That is why it is a realistic compromise compared to the amendment of my good friends, Senator Nelson and Senator Collins, with whom I have worked on many occasions and will continue to do so in areas such as health. They are trying to do the right thing. Their amendment will allow some States to do nothing. Potentially thousands of Americans will not have any coverage whatsoever if that is the decision of the State. We are writing legislation for all Americans, and I suggest the Breaux-Jeffords bill is a proper compromise that can bring this about. I yield the floor.

Mr. BREAUX. I yield 5 minutes to Senator Jeffords.

Mr. BREAUX. I yield 2\1/2\ minutes to my good friend, the Senator from Connecticut.

Mr. BREAUX. Mr. President, I do not mind using the time allocated for remarks, but in light of the previous vote, after the remarks could we just vitiate the rollcall vote and have a voice vote on this amendment? I ask unanimous consent that that be in order.

Mr. BREAUX. That would be my suggestion. We have the time allocated for comments on it, and then have a voice vote on it afterward.

Mr. BREAUX. I yield 2 minutes to the Senator from Minnesota.

Mr. BREAUX. Will the Senator yield for a question?

Mr. BREAUX. I ask the Senator from Ohio, I think the discussion has been very helpful. Two points are important to have on the record. A self-insured and self-administered plan by this amendment would not relieve themselves of being subject to litigation for decisions made based on medical necessity under the Patients' Bill of Rights bill we are adopting.

Mr. BREAUX. If the Senator would further yield, the point made by the Senator from New Hampshire is absolutely correct in the sense that on page 3 of the Senator's amendment, line 18, when he talked about that group health plan--basically the Taft-Hartley group health plans, as I understand it--you didn't have that limitation of those that would also be self-insured and self-administered. I think if you added that to that definition, you would correct the problem. I think it would be in keeping with what the Senator wants to do and certainly something I could support.

Mr. BREAUX

Mr. BREAUX. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. BREAUX. Madam President, I ask for the reporting of an amendment that is at the desk.

Mr. BREAUX. Madam President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. BREAUX. Madam President, this amendment is offered on behalf of myself, Senator Jeffords, Senator Kennedy, and Senator Edwards as well. It attempts to deal with the question of whether States would be allowed to continue their programs dealing with Patients' Bill of Rights or will it be dealt with on a Federal level. We have tried to bring about an agreement between all of the parties and, to a large extent, we have been successful in the sense that we have taken ideas and concepts that have been brought before this body on previous occasions and implemented them in this amendment, a provision that I think makes a great deal of sense. A great deal of the credit should go to the staffs who have been negotiating this amendment for several days in order to bring it to the attention of our colleagues. Most of our colleagues recognize the need that States have addressed this problem in a fashion that guarantees to patients that they will have certain rights, and they should be allowed on a State level to run and manage these programs. Very few people would be suggesting the Federal Government knows the answers to all of these problems. My State of Louisiana, for example, is a State that has already enacted into law some 39 guarantees under our State program, guaranteeing to patients they will be protected when they deal with their insurance companies and their managed care companies. They can be assured that these rights, in fact, are in place. There are a number of other States that have done the same thing. The point is that while we in Washington are passing a national Patients' Bill of Rights, there are many States that have already done this. They were ahead of the Federal Government. They did it before us, and these States should be allowed to continue to run their State programs as they see fit. What we had suggested in the original Frist-Breaux-Jeffords legislation is that a State would not have their programs superseded by the Federal Government if their plans were consistent with the Federal statute. The Senator from Massachusetts, the Senator from North Carolina, and the Senator from Arizona took the approach that States could only allow their plans to continue if they were substantially equivalent with the Federal program. Our staffs have come up with a realistic compromise, a compromise between those two standards, something that I think makes a great deal of sense. The amendment at the desk tries to reach an agreement and compromise that recognizes the role of the States is very important. Our language simply says the State plan will not be superseded by the Federal Government when the State plan substantially complies with the patient protection plan we have written on the Federal level. Where do we get that language, ``substantially complies''? I think that is very important. ``Substantially complies'' is the test that we instituted when we passed the so-called SCHIP programs for children's health insurance. We basically said in that legislation the States would be able to carry on their State programs for insuring children if it substantially complied with the guidelines of the Federal Government. That language is in the existing law of this Government; it is being interpreted by HHS, and they interact with the States now on the ``substantially comply with'' test. They know how to handle it; they know what it means; they have interacted with the States on this basic test. We take that language from that legislation and incorporate it into what we are doing with the Patients' Bill of Rights. Senator Jeffords was a major author of that SCHIP program, and he will speak to this issue. We took the language, the test of ``substantially comply,'' and we now have that in place in this amendment. The decision on ``substantially comply,'' whether it is or is not being complied with, is a decision of the Secretary of Health and Human Services, who will look at the State plans and make a determination as to whether or not they substantially comply with the Federal statute. They have time lines within which they have to make that decision. I think that is appropriate so they do not just languish in Washington. They have a certain time period in which they have to make a decision on a request by the State to be in substantial compliance with the Federal statute. It is important to note we want the State to move in this direction. There has to be an enforcement mechanism. As in the original Frist- Breaux-Jeffords bill and the original McCain-Kennedy-Edwards bill, if the States decide to do nothing, they will have to be in compliance with the Federal standards on a patients' protection bill of rights. The difference in our approach and my colleague from Maine and my colleague and friend from Nebraska is, if States decide to take a walk on this, if a State decides, we don't care what you are doing in Washington, folks, we are not going to pass any Patients' Bill of Rights in this State, and we are not listening to anything you are suggesting, their bill is defective in that there is no enforcement mechanism to get the States to move in a direction which is in the interests of everyone in this country. One defect in their amendment is that the only penalty the State can potentially suffer is to have grant money for this program terminated. Therefore, you could have a situation where the State simply thumbs its nose at the concept of a national patient protection right and does not enact anything if they don't want to, and yet I think that would be a serious mistake. I think it is in the interests of this Nation to have a Patients' Bill of Rights that can be enforced, and what we have offered as a reasonable compromise between the Kennedy bill and the Frist-Breaux- Jeffords bill I think is one that is balanced, it has been well thought out, and uses language that is already in Federal law as the ``substantially comply'' test is already being enforced by the Secretary of Health and Human Services. I encourage Members, after having a chance to look at what we have offered, to be supportive of this compromise effort. I yield the floor.

Mr. BREAUX

Mr. BREAUX. Mr. President, I rise today to pay tribute to Timothy J. Rhein, who recently retired after 34 years with American President Lines, Ltd. APL is today one of the world's largest shipping and intermodal lines, and a globally recognized brand, thanks in large part to Tim Rhein's leadership. I came to know Tim through his appearances before the Subcommittee on Merchant Marine, and I can personally attest to his commitment to merchant shipping and his leadership in the U.S. shipping industry. His rise to president and chief executive officer of APL from 1995 to 1999, and then to chairman, was marked by key decisions in a difficult business. He was instrumental in expanding APL from primarily an Asia-America business into a truly global operation. He gained a decisive edge on his competitors by embracing information technology earlier than anyone else in his business. He knew the numbers and metrics of his business better than anyone. He was rarely at a loss for an answer before our committee, and always worth listening to. And he worked very hard at developing one particular line of business--the U.S. military--to the point where our government is today APL's largest customer. One of the reasons for that success was his understanding of logistics, of managing supply lines, a critical skill to the military as well as to APL's multinational corporate customers. But without doubt his toughest decision was to negotiate the sale of APL to a non-U.S. buyer, in order to protect all of APL's stakeholders and to preserve the APL presence and brand. APL was the oldest continuously operating shipping company in America, and a premier US- flag shipping company. He stuck his neck out on that one, put his reputation on the line, and negotiated the sale personally--and successfully. Tim Rhein understood his business. He was a nimble and gutsy decision-maker, and we in Washington will miss his understanding and knowledge as we continue our pursuit of a policy to promote a strong U.S. flag maritime shipping presence. I hope he will continue to avail us of his knowledge and wise counsel. Good luck in your retirement, Tim Rhein.

Mr. BREAUX

Mr. BREAUX. Madam President, I thank the distinguished Senator from Tennessee for his opening comments outlining what is the essence of the Frist-Breaux-Jeffords bill. I point out the obvious; it is the only tripartisan bill that has been introduced in this Chamber dealing with this issue. We have had bipartisan bills introduced, and I congratulate the author, but there is only one bill that has the support of independents, Democrats, and Republicans, as well, and that, of course, is the Frist-Breaux-Jeffords legislation. I have come to respect all Members engaged in this debate because I think we all have the same goals, and in many cases we all have approached the solution to the problem in a very similar fashion--not identical but very close to being almost the same approach. I was struck yesterday by a number of our colleagues who were talking about the Senator from New York, the senior Senator, Mr. Schumer, and I think the junior Senator from New York was engaged in talking about individual patients, children who have suffered damages because of denial of access to care that is medically necessary. I thought the points they made were well taken. I don't have any disagreement with the points made. I have no disagreement that these cases should have someplace they can go to ensure the coverage for these individuals, children, elderly, and average citizens, which is needed and determined to be medically necessary. We have come a long way. I think this Congress in general is in agreement that patients should have federally guaranteed rights that are enforceable through a process of internal and external appeals, to get a quick decision that is good for the patient and good for society. If those appeals processes do not work, there should be access to the courts to enforce these rights that all Americans should have under their health care plans. Indeed, if damage is done, there should be an opportunity for patients to recover damages. We basically agreed on the rights the Federal Government should guarantee. Senator Frist went over those rights. They are very similar in both plans. I think theirs probably covers a few more protections for what I would term the providers as opposed to protections for patients, which is what we essentially are talking about. But given that, we are very similar in the things we say should be guaranteed to Americans when they have health insurance. OB/GYN access for patients is guaranteed. Access to specialists is there. Breast cancer treatment plans must be covered. Clinical trials are available. There is continuity of care and emergency room access. There are no gag rules. There are point-of-service provisions. These are things we have in common in both plans. Congress has agreed there should be certain patients' rights on which they can depend, that are enforceable, and if they are not provided, damages can be provided to compensate the injured parties. We both agree that one methodology of handling the enforcement of these rights is through an appeals process, through an internal and external appeals process. One of the few things, interestingly, that works in the Medicare Program is, when a Medicare patient, a senior, is denied care, there is an internal and external appeals process that occurs very quickly. What we try to do is not give patients access to courts but access to health care. The fastest and best way to do it is through an appeals process internally, as we provide in this legislation, which requires the company that denies the care to review that decision. They have to do it in a very short timeframe, a matter of hours. If the patient still is denied care, there should be some kind of access to an external panel of independent professionals, medical professionals who will take care of looking at it independently of what the HMO did. We have both agreed the external appeal should be independent. The question is, How do you do that? Both of them I think require--ours does--that HMOs are responsible for entering into a contract with independent professionals who are in fact going to look at these cases and handle the external appeals. I do not know, if you require the HMO to enter into a contract, how they are not going to be involved in helping to select the independent reviewers. That is something I think that has to be done. If they are going to enter into a contract to pay for the people who are going to do the independent review, how can they not be involved in the selection? We can talk about that. I think we both agree the external review panel should be totally independent of the HMO. I think both sides say the HMO has to pay for them. Then how do you guarantee their independence? We can work on that, but I think we are both in agreement that the external review people should have no connection to the HMO, although we both require the HMO pay for them. How we handle that I think is open, but I think we both agree they should be totally independent of the HMO, as much as humanly practicable that we can devise a plan that will in fact do that. Another problem you will hear a lot of talk about, that I think will be subject to amendments, is both sides say we don't want the employer to be sued if the employer is not involved in medical decisionmaking. We agree with that. I think this side and the other side agree with that premise as well. The problem with the approach of the other side, in the sense of how they protect employers, is finding an area that would be protected activities by the employer which would not cause them to be liable for any decisions. The concern many employers have is that doesn't prevent litigation against employers, where they would have to come in and prove they have not done anything that is wrong. I think employers were legitimately concerned about being sued for things and then they would have to come in and show they were not guilty. Our approach is a little different. I think it is a better approach. It says employers can select a designated decisionmaker who will make the medical decisions, and if they do that, the employer cannot be sued. They don't have to come into court and defend themselves for something they never did in the first place because the designated decisionmaker, which in most cases would be the insurance company, is the entity which should be sued for making the wrong decision. I think our approach in that area is a better approach. The final point: We both have a convoluted system with regard to where you file suit. In their bill you can file for some things in Federal court and some things in State court. And guess what. In ours you can sue for some things in State court and some in Federal court. We are amending ERISA. It is a Federal statute creating Federal rights. Anytime you litigate under existing ERISA rules, you litigate in Federal court. Therefore, if you expand rights under ERISA by amending it to include a designated set of Federal rights, the proper forum is the Federal court, not 50 different State forums. I know my good friend from North Carolina suggested lawyers may have a problem finding a Federal court. That is a slight exaggeration. But there is no lawyer I know of who has any difficulty getting into Federal court. They do it on a regular basis very successfully, and I am glad they do. So we have suggested if you are going to file litigation after the appeals process to enforce Federal rights that are passed by the Congress and signed into law by the President, it should be in Federal court. If you are going to sue on the existing State medical malpractice laws, the proper forum for that to be litigated is in the State courts. That is where it traditionally has been. It is a right that exists today in State court. If you are going to sue a company for medical malpractice, a doctor or hospital for medical malpractice, you will continue to do it in State courts as is the current situation. I want to make sure we get something that can become law. If we enact a bill the President will not sign, we have not given the patients in this country one single benefit. We have given them perhaps a good political argument, but we have not created any legal rights for them to enforce when they need medical help and assurances their rights will be protected. Therefore, what I am trying to do in offering this, along with my two colleagues, is to try to create something that can actually become law. I tell you, I would not lose sleep if the Kennedy-McCain-Edwards bill passed. My concern is not that. My concern is that it cannot become law. Therefore, as legislators, we want to enact something that can actually become law. We have offered a compromise which I think, No. 1, even from their perspective, could give at least 95 percent of what their legislation does in terms of protecting patients. But it gives 100 percent more of what theirs would do if theirs cannot be signed into law. That is just a bottom line as far as being pragmatic and as practical as I possibly can be, to say look, this is something that can become law. I think it can pass, and I think it will be signed into law if it reaches the President's desk. The opposite is true for their version which the President has said time and time again he will not sign. We can argue whether that is a good decision on his part or not. I am sure they think it is the right decision; others would disagree with it strongly. I think we have offered something that can become law that does address the concerns that have been articulated in the Senate and in the other body for a long period of time. It is time to reach an agreement that can actually become the law of this land. I yield any time I may have remaining.

Mr. BREAUX. Will the Senator yield for a question?

Mr. BREAUX. I am trying to understand the differences between our two bills on that particular point. We both say the external review panel should be independent. I think we say that the HMO has to contract with these external review people. I think you have been saying they have to have a contract with an HMO to do the same thing. So what is the difference?

Mr. BREAUX. Will the Senator yield further?

Mr. BREAUX. Will the Senator yield for a question?

Mr. BREAUX. Will the Senator yield for a question?

Mr. BREAUX. Back on the point, I am glad we are having this discussion on trying to narrow the differences. Back to the external review panel, we both agree, if it goes to an external review panel for a decision of whether something is medically necessary or not, that the people making that decision on this external review panel should be independent of the HMO. But my understanding of the Senator's bill is that the HMO would enter into a contract with these independent reviewers in order to have them review the decision. My question is, Who selects with whom the HMO is going to contract? Is it that the HMO has to enter into a contract to pay the external review people, and they have to enter into a contract with somebody? Who picks the somebody?

Mr. BREAUX. Will the Senator yield for a question?

Mr. BREAUX. Will the Senator yield?