Susan Collins

Ms. COLLINS

Ms. COLLINS. This study, as I said, was suggested by the group, Americans for Better Care of the Dying. It is intended to help us shift the paradigm in this country of how we view serious illness. Medicare currently defines terminally ill people as those having no more than 6 months to live. It is often very difficult to predict with any certainty how long exactly a seriously ill person is likely to live. This study will help us to provide better care for that broader category of patients who are terminally ill and have the need for more coordinated care but who may well live longer than a 6-month period. I thank Senator Enzi and Senator Grassley for their work and joining with me in improving the continuity of care provisions of the bill. I yield the floor and reserve the remainder of our time.

Ms. COLLINS. Thank you, Mr. President. This amendment includes two provisions that are intended to strengthen the Patients' Bill of Rights that was reported by the Senate HELP Committee. We do not have much time, but I would like to take a moment to describe two of the provisions that are of particular concern and interest to me. First, our amendment includes provider nondiscrimination language. During the HELP Committee markup, as the Senator from New Mexico will recall, I pledged I would attempt to come up with language on the floor because we shared many of the same concerns, reflecting, I think, the populations of our State. So we have done just that. The exclusion of a class of providers solely on the basis of their license or certification unfairly restricts patients' access to qualified professionals who are licensed and certified by the various 50 States. This is a very important issue in rural areas because there may not be a sufficient supply of physicians to provide the care that the health plan has promised. In these areas, if, for example, a plan discriminates against optometrists, the result may be that patients have to travel long distances in order to get eye care or, conversely, they have to pay out of their own pockets for services that are supposed to be covered benefits. Maine, for example, has optometrists in virtually every community in the State, but we have very few ophthalmologists, and they are located primarily in southern Maine, primarily in our larger cities. In 1982, 17 years ago, to respond to this problem, Maine specifically passed legislation requiring State-regulated health plans to have nondiscrimination language with regard to optometrists. The Republican amendment tracks similar protections that are provided for Medicare and Medicaid beneficiaries in the Balanced Budget Act of 1997. Our amendment would prohibit federally regulated group health plans from arbitrarily excluding providers, based solely on their licensure or certification, from providing services for benefits that are covered by the plan. Let me be clear about what this amendment does not do. It does not require the plans to cover new services just because the State may license a health care professional in that area. For example, there are some States which license aromatherapists. Just because aromatherapists may be licensed by a State doesn't mean the health plan has to cover those kinds of services. Moreover, nothing in our amendment would require the health plan to reimburse physicians and nonphysicians at the same rate. The amendment also makes clear--and this is really critical--that this provision is a nondiscrimination provision. But it is not a willing provider requirement. It does not require health plans to take all comers. It simply says that a managed care plan cannot exclude a health care professional's entry into that plan solely on the basis of licensure or certification. Senator Grassley, Senator Hatch, Senator Jeffords, and Senator Enzi have all worked with me on drafting this provision. The second provision, which is of particular concern to me, improves upon the continuity of care provisions in the HELP Committee bill. Our amendment would affect the legislation in two different ways. First, it recognizes that it would be unconscionable to require a patient who is terminally ill to change health care providers in the final months of life just because the health plan either stopped contracting with that particular provider or the employer providing the health plan switched plans, thus causing a change in the providers under contract. Our proposal would extend the transition period for patients who are terminally ill from 90 days until the end of life. This proposal is one that I know is of concern to Senator Mikulski, and it is something on which I completely agree with her. Second, it would require a comprehensive study--I don't believe this is part of the Democratic proposal--into the appropriate thresholds, costs, and quality implications of moving away from the current narrow definition in Medicare of who is considered terminally ill and toward a definition that better identifies those with serious and complex illnesses. This study was suggested by the group, Americans for Better Care of the Dying. Senator Jay Rockefeller and I have worked with this group in proposing our end-of-life care legislation.

Ms. COLLINS. Will the Senator yield for a clarification on that?

Ms. COLLINS. Mr. President, I recently discussed the continuity provisions which are included in the amendment before us. This is one of the rare areas of agreement on both sides of the aisle. We both agree that if someone is terminally ill, and if there is a change in health care providers, the terminally ill patient should be able to stay with that provider until the end of his or her life. Our amendment clearly says that the care shall extend for the remainder of the individual's life for such care. There is, however, a technical mistake which could create some ambiguity in that provision. I ask unanimous consent, since the yeas and nays have been ordered, that I send a modification to the desk to correct that technical amendment. I hope my colleagues will agree to that.

Ms. COLLINS. Mr. President, since there has been an objection, which I think is very unfortunate, the technical correction will be included in the final Republican package that will be offered. As I said, I think the intent is very clear. The majority of the language is very clear. But there is an ambiguity in one section which will be cleared up in the final language. Also, at this time I request the yeas and nays on the underlying Collins amendment which was set aside.

Ms. COLLINS. Mr. President, I move to reconsider the vote.

Ms. COLLINS. Thank you, Mr. President. I begin by expressing my appreciation to Senator Nickles and my other colleagues on the health task force. We have labored hard during the past year and a half, and I am very proud of the legislation we introduced. I also thank our staff, particularly Priscilla Hanley on my staff who has worked night and day during the debate. We are on the verge of passing landmark legislation that will expand access to health care, that will hold HMOs accountable for providing the care that they have promised, and that will improve the quality of health care in this country. I am particularly pleased that the final bill contains provisions I offered to provide a tax deduction for the purchase of long-term care insurance, to ensure that women have direct access to OB/GYNs without having to go through a gatekeeper, to guarantee that a terminally ill patient is able to keep his or her doctor even if that doctor has left the HMO network, and to expand patient access to a variety of health care providers. At the heart of this bill is the internal and external appeals process that will provide coverage and protections to everyone in all employer-sponsored health plans. This appeals process will ensure that consumers receive the care they have been promised up front, before harm is done, and without having to hire an expensive lawyer and resort to a lawsuit in order to get the care they need. That is the heart of this bill. We have worked hard to provide these kinds of protections which will ensure that people do get the treatment they need when they need it--not damages years later in a courtroom. I thank the assistant majority leader for the time. I am proud to be a supporter of this important legislation. Mr. NICKLES addressed the Chair.

Ms. COLLINS

Ms. COLLINS. Mr. President, I commend the efforts of the Senator from Arkansas. He has worked very hard on this issue. What he and the Senator from Tennessee have developed clearly strengthens the bill reported by the HELP Committee. I think it is an excellent refinement, and I commend him for his efforts. I now yield such time as he may need to the Senator from Tennessee to explain the access to specialists provisions in the amendment.

Ms. COLLINS. I thank the Presiding Officer. I thank my friend and colleague from Massachusetts. Mr. President, on behalf of myself, Senator Hutchison, Senator Frist, Senator Jeffords, Senator Grassley, and Senator Grams, I have sent to the desk a four-part amendment. We explained in producing our health committee bill that two of our goals were to expand access to health insurance and also to provide important consumer protections to those individuals who are insured in self-funded plans that the States cannot reach, cannot regulate, and that come under Federal jurisdiction. The amendment which I and my colleagues have proposed seeks to advance both those goals. The legislation would permit individuals who purchase long-term care insurance that is not subsidized by their employer to deduct 100 percent of the cost of that coverage. That is the first part of the amendment. The second part of the amendment includes the access to emergency services provision which Senator Hutchinson and Senator Frist have been working on. We believe it strengthens those provisions. It includes some of the language which Senator Graham of Florida had offered yesterday, but that has been refined. It takes a somewhat different approach. The third part of this amendment includes language developed by Senator Frist dealing with timely access to specialists. Senator Frist will explain that provision in more detail. The fourth provision in this amendment has been developed by Senator Jeffords dealing with access to OB/GYNs. It is an attempt to improve upon and strengthen the health committee legislation. I am not going to address the provisions that deal with long-term care insurance. Most Americans mistakenly believe that either Medicare or their regular health insurance policies will cover the costs of long-term care should they develop a chronic illness or a cognitive impairment such as Alzheimer's disease. Unfortunately, far too late, far too many Americans discover their families do not have the coverage they need until they are confronted with a difficult decision of placing a frail parent or loved one in a long-term care facility and face the shocking realization they will have to bear those enormous costs themselves. With nursing home costs ranging from $40,000 to $70,000 a year, a chronic illness requiring long-term care can easily bankrupt a family. It can also result in the taxpayer eventually having to pick up the costs through the Medicaid program. Concerns about how to finance long-term care will only multiply as our population ages and is at greater risk of chronic illness. By the year 2030, the demographics of 32 States will resemble those of Florida today. The number of people over age 65 will nearly double. Moreover, the fastest growing segment of our population are Americans who are age 85 and older. These older Americans are at least five times more likely to reside in a nursing home than people who are age 65. Americans should obviously think about and plan for their future long-term care needs as they plan for their retirement or purchase life insurance to protect their families. Private planning for long-term care through the purchase of long-term care insurance will not only provide families with greater financial security, but it will also ease the growing financial burden on Medicaid and strengthen the ability of that program to serve as a vital safety net for those Americans most in need. Moreover, private long-term care insurance policies provide Americans with much greater choice in the type of services they can receive. While government programs predominantly pay for nursing home stays, private long-term care policies provide a wide variety of services, ranging from personal assistance with activities of daily living such as bathing or eating or dressing, to 24-hour skilled nursing assistance. Many policies also cover assisted living. In addition, policies often cover home care, adult day care, and respite care, giving seniors greater flexibility and enabling them to retain the dignity of choice and to have the most appropriate care in their senior years. The Health Insurance Portability and Accountability Act of 1996 made long-needed changes in our Tax Code to give long-term care insurance essentially the same tax treatment as other health insurance. As a consequence, long-term care insurance premiums are now deductible for those employers who choose to offer the coverages of benefit and also are excludable for taxable income for the employee. Moreover, premiums for long-term care insurance are treated as a medical expense for the purposes of itemized deductions for medical expenses and are also partially deductible for self-employed individuals. The amendment I am introducing today will expand the tax deductibility of long-term care insurance to encourage and to help more Americans to purchase it. In this regard, I want to acknowledge the leadership of Senator Grassley as chairman of the Aging Committee on which I am privileged to serve. Senator Grassley has been a long-time advocate of expanding the tax deductibility for long-term care insurance. The legislation I am proposing will permit individuals who purchase long-term care insurance on their own, without any kind of subsidy from their employer, to deduct 100 percent of the cost of that insurance. Providing additional financial incentives for individuals to plan for their own future long-term care needs is particularly important in order to encourage younger people to purchase the coverage. By encouraging individuals to plan now for retirement through the purchase of long-term care insurance, not only are we helping to ensure their future financial security; we are also giving them the peace of mind knowing that should they develop a chronic illness, should they become ill with Alzheimer's disease, for example, they will be covered by private insurance. Moreover, the insurance will ensure that they receive the choice of care they need and on their own terms. Finally, encouraging individuals to plan and prepare for their future long-term care needs will help strengthen and preserve the financial solvency of the Medicaid program. This is an idea that I hope will have the support of colleagues from both sides of the aisle. I encourage all of my colleagues to join me in this effort to make this critical coverage more affordable to millions of Americans. I yield such time as he desires to my colleague from Arkansas for an explanation of the emergency care provisions of this amendment.

Ms. COLLINS. Mr. President, on behalf of myself, Senator Hutchinson, Senator Frist, Senator Jeffords, Senator Grassley, and Senator Grams, I send an amendment to the desk.

Ms. COLLINS. Mr. President, I yield the floor. I know there are others waiting to speak. I reserve the remainder of my time. Exhibit 1 Republican Governors Association, Washington, DC, July 14, 1999. Hon. Don Nickles, Assistant Majority Leader, U.S. Senate, U.S. Capitol, Washington, DC. Dear Senator Nickles: As Congress begins debate on managed care reform legislation, we would like to emphasize our confidence in states' achievements in managed care and ask that any legislation you consider preserve state authority and innovation. We applaud the Republican Leadership's efforts to complement the states' reforms by expanding managed care protections to self-insured plans without preempting state authority. Historically, regulating private insurance has been the responsibility of the states. Many, if not all of the ideas under consideration now in Congress, have been considered by states. Because the saturation of managed care is different throughout the nation, each state has its own unique issues relative to its market place. We have concerns about the unintended consequences of imposing one-size-fits-all standards on states which could result in increasing the number of uninsured and increasing health care costs. As Governors, we have taken the reports of abuses in managed care seriously and have addressed specific areas of importance to our citizens. As you know, some analysts estimate that private health insurance premiums could grow from the current 6 percent to double-digit increases later this year. This does not include the costs of any new federal mandates. Health resources are limited. We hope the Congress' well-intended efforts take into account the states' successful and historical role in regulating health insurance. Sincerely, Frank Keating, Governor of Oklahoma, Chairman. Ed Schafer, Governor of North Dakota, Vice Chairman. Don Sundquist, Governor of Tennessee, Chairman RGA Health Care Issue Team.

Ms. COLLINS. Mr. President, I ask unanimous consent that the Senator from Michigan, Mr. Abraham, be added as a cosponsor to the pending amendment.

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

Ms. COLLINS. Mr. President, I start by commending the Senator from Wyoming for his excellent statement. He has provided Members with a very clear explanation of the issue that is before the Senate. I am disappointed to hear my friends and colleagues from the Democratic side of the aisle once again completely disregard and, indeed, belittle the tremendous efforts that the 50 States have made to protect health care consumers. It is disappointing to once again hear Senator Kennedy completely ignore the good work of the States in this area. The health committee bill builds upon the good work that the States have undertaken to protect health care consumers. Our legislation provides the key protections that consumers want, without causing costs to soar so high that we add to the growing number of uninsured Americans. We would apply the protections responsibly where they are needed. Current Federal law prohibits States from acting to regulate and to provide consumer protections in self-funded plans. They are covered by Federal law, by ERISA, which specifically prohibits the States from acting in this area. The States have had the primary responsibility for regulation of health insurance since the 1940s, more than 50 years. I served for 5 years in State government as commissioner of a department that included the Bureau of Insurance. I know how hard the civil servants at the Bureau of Insurance worked to protect Maine consumers. I know Maine health care consumers who are having problems with their insurance companies' coverage or have a dispute would rather call the Bureau of Insurance in Gardiner, ME, than have to go through the maze of the ERISA office in Boston. That is what this debate is about. The fact is, the States have done a good job of responding to the needs and concerns of their citizens. In fact, every single State has debated and enacted legislation to protect health care consumers. That has been totally ignored by our friends on the other side of the aisle. This chart shows the enormous number of State laws regulating health insurance. There are more than 1,400 State health insurance mandates-- more than 1,400. Every single State has enacted legislation to protect health care consumers by mandating either specific coverages or specific procedures. It is not as if the States have ignored this responsibility. In fact, they have acted far ahead of Washington. They have acted without any prod from Washington. They have acted responsibly and swiftly--indeed, much more quickly than we have--to protect their consumers. The next chart shows State laws protecting parties are extremely common. This chart demonstrates 47 States have passed laws prohibiting gag clauses that restrict communications between patients and their doctors. This is something I think every single Member of the Senate can agree on: Gag clauses should be prohibited. Mr. President, 47 States have acted to do just that; 50 States have consumer grievance procedure laws; 28 have external appeals; 36 have direct access to OB/ GYN; 40 States have provisions dealing with access to emergency rooms. The States have acted. They have acted in a way to tailor their laws to the problems within their particular State. These problems vary from State to State. We have rural States such as those represented by my friend from Wyoming which do not have a high penetration of managed care. Therefore, imposing all these burdensome new regulations is not necessary. In other States where managed care represents a high degree or a high concentration of the coverage provided, there may be a need for many more State laws. The point is that the States have acted. They have acted without any mandate or prod from Washington, and they have acted in a way so as to tailor their laws to their marketplace. One size does not fit all. We do not know what is best for every State-regulated plan. What may be appropriate in one State may not be necessary in another. A State that has been mentioned today, Florida, provides for a direct access to a dermatologist. That is because Florida has a very high rate of skin cancer. That mandate makes a great deal of sense in the State of Florida. It does not make much sense in many northern States where other problems occur and need to be addressed. That is why the National Association of Insurance Commissioners, which is a bipartisan group, supports the approach that we have taken in our health committee bill. In a March letter to the chairman of the health committee, the NAIC pointed out: The states have already adopted statutory and regulatory protections for consumers in fully insured plans and have tailored these protections to fit the needs of their states' consumers and health care marketplaces. In addition, many states are supplementing their existing protections during the current legislative session based upon particular circumstances within their own states. We do not want states to be preempted by Congressional actions. The letter continues: It is our belief that states should and will continue the efforts to develop creative, flexible, market-sensitive protections for health consumers in fully insured plans, and Congress should focus attention on those consumers who have no protections in self-funded ERISA plans. That is precisely the approach taken in our Republican bill. We recognize the States cannot protect those health care consumers who are covered in self-funded ERISA plans. That is why we need to act on the Federal level. That is why we need to pass health care protections to reach those consumers whom the States cannot protect. We received a letter today from the Republican Governors' Association. I ask unanimous consent to have that letter printed in the Record following my remarks.

Ms. COLLINS. Let me quote from the letter because I think it captures the issue before the Senate. As Congress begins debate on managed care reform legislation, we would like to emphasize our confidence in states' achievements in managed care and ask that any legislation you consider preserve state authority and innovation. We applaud the Republican Leadership's efforts to complement the states' reforms by expanding managed care protections to self-insured plans without preempting state authority. Historically, regulating private insurance has been the responsibility of the states. Many, if not all of the ideas under consideration now in Congress, have been considered by states. Because the saturation of managed care is different throughout the nation, each state has its own unique issues relative to its market place. We have concerns about the unintended consequences of imposing one-size-fits-all standards on states which could result in increasing the number of uninsured and increasing health care costs. As Governors, we have taken the reports of abuses in managed care seriously and have addressed specific areas of importance to our citizens. That is exactly the issue before us. We do need to act to protect those consumers who are beyond the reach of State regulation. We do not and should not act to preempt the good work done by our States. Another issue that is before us, raised by the Kennedy one-size-fits- all approach, is what if a State has made an affirmative decision not to act in one of the areas which Senator Kennedy would impose upon that marketplace? What if the legislature, perhaps even a legislature controlled by the Senator's own party, has reached the decision that a particular mandate is not appropriate for that State and would increase health care costs?

Ms. COLLINS. Mr. President, I commend the Senator from Tennessee. As the Senate's only physician, he brings a unique perspective and a very useful perspective to these important health care issues. He has been a leader in working to improve still further on the work that was done in the HELP Committee. The task force has been working on this issue for some time. We first started working on the issue in January of last year. We met every week for many months. That is an indication of our determination to produce a balanced bill that will really make a difference to millions of Americans. Our efforts did not cease. Once we went to the HELP Committee, we continued our work, and we are continuing our work today. That is why we have come up with this amendment to further strengthen and improve the legislation reported by the HELP Committee. I yield as much time as he would like to the chairman of the HELP Committee, the Senator from Vermont.

Ms. COLLINS

Ms. COLLINS. I yield myself such time on this amendment as I may consume. Mr. President, this amendment goes to the heart of this debate. All of us agree HMOs must be held accountable for providing the care that they have promised. All of us agree we need a strong appeals process so that anyone who is denied medical treatment or medical care has an avenue that is cost free, expeditious, and easy to appeal an adverse decision from an HMO. That is not what this debate is about. The debate is whether we solve these problems in a way that is going to cause health insurance premiums to soar, thus jeopardizing the health insurance coverage of millions of Americans, or are we going to take the approach that the HELP Committee bill takes, which is to address these problems in a way that is sensible and that addresses the concerns about quality, about unfair denial of care, without imposing such onerous and expensive Federal regulations that we drive up the cost of health insurance and cause some people to lose their coverage altogether. That is the heart of this debate. That is the key difference between the bill advocated by my colleagues on the Democratic side of the aisle and the bill which we support. This amendment is simple; it is straightforward. What this amendment says is, if the Kennedy bill, in fact, increases the cost of health insurance along the lines projected by the independent Congressional Budget Office, then it would be essentially no longer in effect for group health plans. This is an important amendment. It recognizes that cost is the single biggest obstacle to providing health insurance. It addresses the issues the CBO has outlined in its report in which it warned about what would happen if the Kennedy bill goes into effect. What would happen is, under the Kennedy bill that is before us, 1.8 million Americans would most likely lose their health insurance; employers would drop coverage, particularly small businesses that may be operating on the margin already; self-employed individuals would find health insurance still further out of reach; and we would further exacerbate the problem of the growing number of uninsured in this Nation. We have a record 43 million Americans without health insurance. We should not be increasing the number of uninsured. So what our amendment does is very simple. It says if there is an increase in health insurance premiums beyond 1 percent, or if the number of uninsured Americans increases by more than 100,000 people, that we will take a second look, we will put a stop to the mandates that would be imposed by the Kennedy bill. Surely, we should be able to come to an agreement that this is the right approach to take. If my colleagues on the Democratic side of the aisle believe that their bill will not have the kind of cost estimate that the independent CBO says it will have, then they should join with us in supporting this amendment because this amendment offers important safeguards. It says the Senate should not be implementing, we should not be passing legislation that is going to drive up the cost of health insurance and further increase the number of uninsured Americans--a number that already stands far too high at 43 million people. By contrast, the Republican approach seeks to expand, not contract, the number of Americans with insurance. We would do that, for example, by providing full deductibility for health insurance for self-employed individuals. This is a critical issue in my State of Maine where we have so many Mainers who are self-employed. Perhaps it is in keeping with the independent Yankee spirit of the State of Maine that we do have so many people who run their own businesses. We see them everywhere. It is the small businesses on Main Street of every town in Maine. It is our lobstermen, our fishermen, our gift shop owners, our electricians, our plumbers. We see it throughout our State. It would be the most important thing that we could do to help them to afford health insurance if we made their health insurance premium fully deductible. So we have a very clear choice. Do we want the Kennedy approach, which is going to cause health insurance premiums to soar, causing small businesses to be unable to provide coverage at all and putting health insurance further out of reach for the 43 million uninsured Americans or do we want the approach that we have proposed through the HELP Committee bill? Our legislation addresses the very real problems that do exist with managed care. Our approach would put treatment decisions back in the hands of physicians, not insurance company accountants, not trial lawyers. But our approach strikes that critical balance. We do so not by so overloading the system that we are going to drive up costs but, rather, by putting in commonsense safeguards that will solve the problems with managed care without jeopardizing the health insurance coverage of millions of Americans. I urge my colleagues to join, I hope in a bipartisan way, in supporting this very important amendment. It is a way for the Senate to put itself on record as recognizing that cost is the single biggest obstacle to expanded health insurance coverage. I hope we will have bipartisan support for this amendment. I thank my colleagues and yield the floor but reserve the remainder of our time. Mr. NICKLES addressed the Chair.

Ms. COLLINS

Ms. COLLINS. First, I commend the Senator from Tennessee for his very lucid explanation clearing up a lot of the misinformation about what is in the Republican package with regard to the independent, impartial, unbiased external review. This is a very complicated issue. On the surface, the Kennedy bill appears to have a great deal of appeal. It sounds so simple. It reminds me of that expression by H.L. Mencken when he said that for every complicated problem there is a solution that is simple, easy, and invariably wrong. That fits the Kennedy bill on medical necessity. Physicians clearly must play a central role in care decisions. No one disputes or wants to minimize the critical role of treating physicians in the process of determining what is medically appropriate and necessary care. However, the very same patient can go to different physicians, be told different things, and receive markedly different care. This chart illustrates the problem. The Washington Family Physicians Collaborative Research Network studied how physicians treat bladder infections for adult women. This is the second most common problem seen in a physician's office. Mr. President, 137 treating physicians were asked to describe their treatment recommendations for a 30-year-old woman with a 1-day history of the infection and an uncomplicated urinary tract infection. They responded with 82 different treatment options. Which of these is the prudent physician? Which of these 82 different treatments is the generally accepted principle of medical practice as provided by the Kennedy bill? The Kennedy bill would require health plans to cover all 82 different treatments without any thought being given to what is the best treatment, what is the most effective treatment, what is the newest treatment based on the latest in medical research. Even if something is consistent with generally accepted principles and professional practice, it may not necessarily be the medically best treatment for that patient. Dr. Jack Wennberg is Dartmouth's premier expert in studying quality and medical outcomes. He testified before our committee recently that medical necessity in one community is unnecessary care in another. Let me give an example from my home State of Maine. The Maine Medical Assessment Foundation conducts peer review and studies area variations in practice patterns in an effort to identify cases in which too many procedures being performed, unnecessarily putting patients at risk. They did a study that showed that physicians in one city in Maine were performing a disproportionately high rate of hysterectomies. They counseled the physicians in that city and were able to lower the rate, thus saving women from being exposed to unnecessary risks of surgery. I ask my friends on the other side of the aisle, wasn't that review appropriate? Wasn't that review necessary? Wasn't that review a good idea to save these women from undergoing unnecessary hysterectomies? Let me give some other examples. The Centers for Disease Control estimates that physicians performed 349,000 unnecessary C sections in 1991. Again, these women were placed at risk for unnecessary surgery. Isn't it a good idea to question in some of these cases the decision of the physician to order this unnecessary surgery? Let me give yet another example. Despite solid evidence that women who undergo breast-sparing surgery followed by chemotherapy or radiation and women who undergo total mastectomies have similar survival rates, regional preferences--as opposed to medical necessity-- still prevail in determining treatment. There was a recent article in the New York Times which showed that the rate of mastectomies was 35 times higher for Medicare patients in one region of the country than in another. According to another study at Dartmouth, women in Rapid City, SD, were 33 times less likely to have breast-sparing surgery than women in a similar city in Ohio. Yet another example involves children. Today, treatment for frequent ear infections includes the implantation of tubes. I have a nephew who had this procedure, and I am sure many of my colleagues have children who have gone through this as well. In fact, almost 700,000 children in the United States have had this procedure. According to a 1994 study published in the Journal of the American Medical Association, however, this treatment is inappropriate for more than a quarter of these children.

Ms. COLLINS. In another 41 percent of the cases reviewed, the clinical indications for having the tubes implanted were inconclusive at best. A 1997 study showed that only 21 percent of elderly patients were treated with beta blockers after a heart attack, despite evidence that mortality rates are 75 percent higher for those not receiving treatment. I would note, in contrast, that HMO members in plans that submit data to the National Committee on Quality Assurance are 2\1/2\ times more likely than members of fee-for-service plans to receive beta blockers. I could go on and on and on. Perhaps the President's own commission said it best. It concluded that excessive procedures--procedures that lack scientific justification--could account for as much as 30 percent of our Nation's medical bills. Not to mention posing unnecessary risks as well as pain an suffering for those who undergo these unnecessary procedures. As we can see by these examples and countless more, there may well be valid, indeed, very worthwhile. In fact, there may be very good reasons for the health plan, in some cases, to suggest an alternative treatment to the one the treating physician has initially selected. It may be far better for the patient than the initial recommendation of his or her physician. These examples show that, even if something is consistent with generally accepted principles of professional medical practice, it is not necessarily appropriate high quality care. That should be our goal. Our goal should be to put the patient first and to provide the best quality care to that patient. The Republican bill deals with the issue of medical necessity through a strong, independent, external appeals process. That is the way to deal with disputes about medical coverage. A Federal statutory definition of medical necessity is unwarranted and unwise. I yield the floor, and I reserve the remainder of our time.

Ms. COLLINS

Ms. COLLINS. Will the Senator agree that it is absolutely irresponsible to be proposing a vast expansion of HCFA's authority in regulating the private insurance market given HCFA's record, which includes missing 25 percent of the implementation deadlines in the balanced budget amendment of 1997; of taking 10 years to implement a 1987 law establishing nursing home standards; of yet to have updated 1985 fire safety standards for hospitals; when it is utilizing 1976 health and safety standards for the treatment of end-stage kidney disease; when it is shown that it has been unable to handle the responsibilities that Congress gave it under the Health Insurance Portability and Accountability Act? Is that part of the Senator's concern about taking away the authority from State governments that are doing an excellent job in providing patient protections, and instead relying on the Federal Government and the agency of HCFA to do that job?

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

Ms. COLLINS. Mr. President, I yield myself such time as I may consume on the amendment.

Ms. COLLINS. Mr. President, I regret that my colleague and friend from Illinois, Senator Durbin, has temporarily left the floor because I wanted him to hear my comments. I want to start by commending the Senator from Illinois who has, indeed, been a leader in the effort to provide 100 percent tax- deductibility for health insurance purchased by self-employed individuals. I have been proud to be a cosponsor of the legislation he has introduced, as well as an identical bill introduced by Senator Bond, the chairman of the Senate Small Business Committee. This issue has been an important one to me. I believe it will help many of our small business men and women throughout this Nation, including the 82,000 Mainers who are self-employed. They include, as you might suspect, many of our farmers, our fishermen, our lobstermen, our hairdressers, our electricians, our plumbers, our small shop owners. They are the ones who find it very difficult to afford the costs of health insurance. Indeed, the part of Maine's population that has the most difficulty in affording health insurance is our self-employed individuals. By providing 100 percent deductibility for health insurance, we can assist these individuals in affording health insurance coverage. We thus will be taking a very important step toward reducing the number, the growing number, of uninsured Americans. But this provision is important for another reason. It is important as a matter of equity. Right now a multinational corporation can deduct 100 percent of the cost of health insurance premiums for its employees, and yet the Tax Code discriminates against self-employed individuals. It allows self-employed individuals to deduct only 45 percent of the cost of the health insurance they purchase. That is simply unfair. So this corrects an inequity in our Tax Code, and it is important in terms of expanding access to health insurance. I disagree with those on the other side of the aisle who contend, however, that somehow this very important provision does not belong on this bill, that it is a diversion of some sort. That statement tells me that my friends on the other side of the aisle still do not understand the crux of this debate. The crux of this debate is, are we going to pass legislation which will drive up the cost of health insurance to the point where we jeopardize coverage for 1.8 million Americans? That is the crux of this debate. This debate is not only about holding HMOs accountable for the care that they promise; it is not only about improving the quality of care; it is not only about ensuring that people who are denied care that they need have the remedies to give them that care to ensure that care is provided before harm is done, but also this debate is about ensuring access to health insurance. The single most important determining factor about whether or not people have health insurance is its cost. We face a growing problem with uninsured Americans in this country. It has gone to a record high 43 million Americans who lack health insurance. That is a terrible situation. We should not be passing any legislation that is going to exacerbate that problem. Yet that is exactly what the Kennedy bill would do, by driving up the cost of health insurance to the point where it would jeopardize coverage for 1.8 million Americans. That is more than the population of the entire State of Maine. The last thing we need to do is to increase the pressure to drive up the cost and jeopardize insurance for working Americans. The second part of Senator Nickles' amendment is also important. It affirms the Federal policy that was passed back in the 1940s when Congress passed the McCarran-Ferguson Act giving the States primary responsibility for insurance regulation. Some on this side of the aisle apparently believe that we need a debate on the McCarran-Ferguson Act. Fine. Let's have a debate on that. But we should recognize that until we repeal or change the McCarran-Ferguson Act, it is the policy of this country and the law of the land that the States, not the Federal Government, have the primary responsibility for the regulation of insurance. It is a system that has worked well for more than 50 years. As someone who was responsible for the Bureau of Insurance in the State of Maine for 5 years, I know firsthand what a good job our State regulators do and how seriously they take their responsibility of protecting consumers. Indeed, in my capacity as commissioner of the Department of Professional and Financial Regulation, I worked hard to strengthen the consumer division of our Bureau of Insurance. We took enforcement actions against insurance companies that did not live up to the letter and the spirit of Maine's law. I can tell you that I know the people of Maine would much rather make a phone call to Augusta to the Bureau of Insurance and to ask for help--it has actually moved to Gardiner now--but to ask for help from the Bureau of Insurance's Consumer Division than to try to figure out the maze of Federal regulation and call the ERISA office in Boston for assistance. I don't think that is serving our consumers well. I urge my colleagues to support Senator Nickles' amendment. It is an important amendment that will help expand access to health care while reaffirming the wisdom of the policy adopted more than 50 years ago when the Federal Government gave responsibility to the States to be the primary regulator of insurance. Mr. President, I yield the floor and reserve the remainder of the time on our side.

Ms. COLLINS. Mr. President, current Federal law prohibits the States from regulating the self-funded, employer-sponsored health plans that cover 48 million Americans. Our legislation, which is intended to protect the unprotected, to reach those consumers in self-funded plans that the States are prohibited from regulating, would extend many of the same rights and protections to the Americans covered by these plans that are already enjoyed by Americans who are under the State-regulated plans. The States have been ahead of the Federal Government in this area. They have acted over the past 10 years to correct problems in the managed care marketplace by enacting specific consumer protections. Our bill extends those kinds of protections to those plans that the States cannot reach. We go beyond that, though, when it comes to the procedural protections, the all-important internal and external appeal procedures that are in our legislation. We provide that to all plans across the board. Again, another myth perpetuated by those on the other side of the aisle that somehow our appeals process does not cover these Americans. We have produced a good bill. It builds on, but does not preempt, the good work of the States. It provides protections to those 48 million Americans whom the States cannot protect. It balances carefully the need to have reforms that ensure that essential care is provided, that no one is denied care that an HMO has promised. It holds HMOs accountable for their decisions. It puts decisions in the hands of physicians, not insurance company executives or accountants and not trial lawyers. It carefully strikes a balance of providing important consumer protections without driving up the costs, as the Kennedy bill would do, in a way that would jeopardize, that would undermine health insurance coverage for millions of Americans. Mr. President, I reserve the remainder of our time. Exhibit 1 National Association of Insurance Commissioners, Washington, DC, March 16, 1999. Hon. James Jeffords, Chair, Senate Health, Education, Labor, and Pensions Committee, Washington, DC. Dear Senator Jeffords: We are writing this letter in response to some concerns raised by your office regarding the testimony of the National Association of Insurance Commissioners (NAIC) Special Committee on Health Insurance (``Special Committee'') before the Senate Health, Education, Labor, and Pensions (HELP) Committee on March 11, 1999. The hearing focused on the rule of the states and the federal government in enacting patient protections for consumers in group health plans. Specifically, concerns have been raised over the Special Committee's testimony and whether the Special Committee now supports a federal floor. We understand why the members of the Senate HELP Committee would get the impression from our oral testimony that the members of the Special Committee are supportive of a federal floor. During our testimony we may have implied that the members of the Special Committee would accept a federal floor in any federal patient protection legislation. The members of the Special Committee have not made a determination that a federal floor is acceptable. It is our belief that states should and will continue the efforts to develop creative, flexible, market-sensitive protections for health consumers in fully insured plans, and Congress should focus attention on those consumers who have no protections in self-funded ERISA plans. Rather, the members of the Special Committee are interested in strengthening the distinction between self-funded ERISA plans, which are clearly outside the purview of state law, and fully insured plans. State insurance departments want to ensure that citizens in their states who are covered by fully insured ERISA plans can still rely on the state to address their questions, complaints and grievances and can still expect the same level of protections already established by the states. The states have already adopted statutory and regulatory protections for consumers in fully insured plans and have tailored these protections to fit the needs of their states' consumers and health care marketplaces. In addition, many states are supplementing their existing protections during the current legislative session based upon particular circumstances within their own states. We do not want states to be preempted by Congressional or administrative actions. During our testimony, we highlighted our Statement of Principles on Patient Protections (``Statement of Principles''), which were created to assist Congress in developing patient protection legislation. The Statement of Principles highlights the elements that we believe must be included in any patient protection legislation and reflects the NAIC's commitment to consumer protection. We suggested that these principles be used as guidelines in drafting any federal legislation. The principles are as follows: Principle 1: Federal legislation establishing patient protection laws should reinforce the ERISA saving clause and not preempt existing state health care consumer protection laws, particularly as these protections apply to fully insured health plans. Principle 2: Federal legislation establishing patient protection laws should ensure a basic level of protections for all health care consumers, focusing particular attention on those consumers in self-funded ERISA plans who do not currently have such protections. Principle 3: Federal legislation establishing patient protection laws should preserve the state infrastructure already in place. Principle 4: Federal legislation establishing patient protection laws should ensure that all health care consumers, whether under fully insured or self-funded plans, have access to an appropriate regulatory body for answers to their questions, complaints and grievances. Principle 5: Federal legislation establishing patient protection laws should establish an appeals process to resolve disputes and enforce decisions for those consumers, such as those in self-funded plans, without access to such a process. The members of the Special Committee appreciate the efforts of Congress to provide patient protections to all consumers, and we offer the above principles as guidelines in developing such legislation. In doing so, we urge Congress to focus its legislative activity on consumers in self-funded ERISA plans, which are under the federal government's exclusive jurisdiction, and to preserve the state protections that already exist for consumers in fully insured ERISA plans. Again, we have not endorsed the concept of a federal floor with regard to patient protections. On behalf of the members of the Special Committee, we would like to thank you for the opportunity to testify before the Senate HELP Committee and for the opportunity to clarify our position. If any members of the NAIC can be of further assistance, please feel free to contact Jon Lawniczak at (202) 624-7790. Sincerely, George Reider, Jr. President, NAIC. Kathleen Sebelius, Secretary-Treasurer, NAIC.

Ms. COLLINS. Mr. President, we have heard it again. Once again we have heard the myth that is being perpetrated on the other side of the aisle that the bill approved by the health committee leaves millions of Americans unprotected, completely unprotected. You heard it again. That is simply not true. These Americans live in States that have enacted patient protections very similar to the ones included in the health committee bill to apply to those plans where people truly are unprotected. Those are the ERISA plans, the self-funded plans that the States cannot regulate because of a Federal preemption. According to the CBO, 80 percent of the U.S. population lives in States with laws guaranteeing access to emergency care; 77 percent of Americans work in organizations offering employee health plans with a point-of-service option. The Kennedy mandates, with direct access to OB/GYN, already exist in States containing almost 70 percent of the population. We know that 47 States have enacted laws to prohibit gag clauses, something we all agree need to be prohibited. Why do we need to duplicate and preempt the good work of the States? Why not build on the good work of the States? The State of Maine has enacted 35 mandates--35 patient protections. Now, who is to say the emergency access protection of the State of Maine is somehow inferior to the one in Senator Kennedy's bill, just because it differs from Senator Kennedy's bill? Who is going to make these determinations? Are they going to end up in court? Is HCFA, by the Federal Government, by fiat, going to decide that Maine's was not quite right, that it should be knocked out, replaced by the Kennedy standard, because Washington knows best? Washington is the source of all wisdom in this? The opponents of our legislation contend that the Federal Government should preempt the States' patient protection laws unless they are identical to the ones in Senator Kennedy's legislation. However, the States' approaches to the same types of patient protection can vary widely. States may have emergency requirements but not the exact same standards as in the Kennedy bill. That is the case with the State of Maine. Moreover, what if the State has made an affirmative decision not to act in one of these areas because the market in their State does not require it and they are concerned about costs? What if the bill has failed in the legislature or has been vetoed by the Governor? Let me give a recent example from my home State of Maine. Maine law requires insurance plans to allow direct access to OB/GYN care without a referral from a primary care physician but only for an annual visit. Maine's law also requires plans to allow OB/GYNs to serve as the primary care provider. Our State legislature recently decided that those current laws, which Maine was the head of the Nation in enacting, provided sufficient access, that they corrected a problem in the marketplace. The legislature rejected a bill that would have expanded the direct access provision primarily out of concern that it would drive up premium costs. I note for my colleague from Massachusetts, this decision was made by a legislature controlled by the Democratic Party. This was not some Republican legislature that made this decision, but rather the legislators in Maine were satisfied with the current law and decided not to expand it because they were concerned about the additional costs that would be incurred. In cases such as this, the Kennedy proposal for a one-size-fits-all model would just simply preempt the decision made by the State legislature. That is why the National Association of Insurance Commissioners supports the approach that was taken in the legislation reported by the Health Committee. In a March letter to the committee, the NAIC pointed out: The states have already adopted statutory and regulatory protections for consumers in fully insured plans and have tailored these protections to fit the needs of their states' consumers and health care marketplaces. In addition, many states are supplementing their existing protections during the current legislative session based upon particular circumstances within their own states. We do not want states to be preempted by Congressional . . . actions. The letter continues: It is our belief that states should and will continue the efforts to develop creative, flexible, market-sensitive protections for health care consumers in fully insured plans, and Congress should focus attention on those consumers who have no protections in self-funded ERISA plans. That is exactly what our plan would do. I ask unanimous consent that the letter from the National Association of Insurance Commissioners be printed in the Record at the conclusion of my remarks.