Tom Daschle

Mr. DASCHLE

Mr. DASCHLE. I thank the majority leader.

Mr. DASCHLE. The leader mentioned the importance of the Commerce- State-Justice bill for purposes of dealing with the crime issue, and all the other issues. I would be interested, if the majority leader could tell us who the conference nominees would be for the conference committee on the juvenile justice bill. Are we prepared to select the conferees on the juvenile justice bill?

Mr. DASCHLE

Mr. DASCHLE. Let me finish, and I will be happy to yield. Six amendments. I know our colleagues on the other side say: Certainly, we wouldn't use all that time. With that end date, who knows? As difficult as it has been to bring up amendments with second-degrees and with tabling motions, who knows how long and how many amendments we will be able to bring up. That is the problem. Here are the concessions we have made in this agreement. In the Senate, you are able to bring up a farm bill on a peace treaty. But we said on this bill it has to be relevant. We will agree to relevancy. We said we may even agree to an end date. Now, the majority says: We also are insisting, and it was in this agreement, we are insisting that you never talk about the Patients' Bill of Rights until the next millennium. That is in here. What it says is, you can't bring it up in this entire Congress, but this entire Congress goes into the next millennium. So it is a gag rule until the next millennium on the Patients' Bill of Rights. Now, they did change it. They would acknowledge a willingness to change it to the end of this session, but we couldn't talk about it anymore this session. Then, of course, we have the question of how we resolve the outstanding issues on amendments. I have suggested that we leave it to the two leaders to offer amendments without debate at the end. Say we run up to the end of the time and somebody unfortunately has used all of the time and we are stuck here with 20 amendments and we have only debated one, let's take the worst case scenario. I am stuck here with my colleagues demanding that I protect them, and I have got 19 amendments in my hands. I said: At least let us have a vote on that. No debate; we will just have a vote. They wouldn't agree with that. No debate. No votes. Then the ultimate power the majority has are the two things that the majority leader made reference to. The first is the power of the second-degree. Anything we lay down, they get to second-degree. And because they have 55 votes, usually they win. Second-degrees are powerful, and they have them. We have agreed to that. The other thing they have, probably the most powerful of all, is the majority leader's right of first recognition. Let's assume we have worked through all of this and we have won more than our share of amendments. Well, the majority leader, as is his right--and it will certainly be my right when we are in the majority--has the opportunity to say at the end: Well, I am going to lay down an amendment to wipe out everything we have done. That is my right as a majority leader. I am going to offer an amendment to wipe it all out. He can do that, and that is in this agreement. I must say, I have to ask, what are they afraid of? What is it about these amendments they don't want to vote on? What is it about a procedure that is so extraordinary if all we want to do is be able to offer the amendments and we will agree with most of everything that has been listed here? I can't figure it out, but that is for them to share with the rest of us. We have tried. I think my colleagues have given me a pretty clear indication where they are, as a result of a caucus this afternoon. They weren't very wild about this. I can understand why. We have 48 amendments listed here that my colleagues have all said are important and ought to be determined in debate and in a vote. There are those on the other side who say: We just don't have time. Well, we had time to take up 159 amendments on the defense authorization bill. We had time to bring up 67 amendments on the defense appropriations bill. We had time to bring up 104 amendments on the budget resolution. We had time to bring up 66 amendments on the supplemental appropriations. We had time to bring up 38 amendments on the Ed-Flex bill. We even had time to bring up and dispose of 26 amendments on the military bill of rights. If we had 26 amendments that were legitimately considered on the military bill of rights, how about 20 amendments on the Patients' Bill of Rights? That doesn't seem too much to ask to me. So here we are. This is an important issue. It isn't going to go away. We can do it the easy way or the hard way. It appears that we are inclined to do it the hard way. We are prepared to do it any way. We will minuet with anybody, but it takes two to tango. We are here to do our job. I yield the floor.

Mr. DASCHLE. The majority leader has also said this is a good bill; the Republican Patients' Bill of Rights is a good bill. We don't think so. But if it is such a good bill, what is wrong with just putting it before the Senate and having a good debate about a good bill? That is what we are supposed to do here. We are supposed to put legislation down and have at it. I have lamented several times that there are those in this Chamber who believe that a good bill ought to be accompanied by a good rule. The rule is, we will allow amendments if we like them. If you want that kind of an environment, run for the House of Representatives because they have all kinds of rules like that. If you want to do it the way we do it here, have at it. Let's have some good debate. Let's not say we are going to have to approve every amendment offered by our colleagues prior to the time we even agree to go to the bill. If it is a good bill, it ought to have a good debate. The majority leader also read the unanimous consent request agreement. I will not in any way denigrate the effort that the majority leader has made to try to accommodate both sides. He has worked diligently to make that happen. But let me just explain what is wrong with that agreement as we see it. First of all, it requires an end date. That, perhaps, is the most significant concern we have all had. I dare ask, could somebody come back and tell me when was the last time we said we will take up a bill with an absolute guarantee that we will have an end date? We haven't even talked about--and it is murky--whether we are talking about final passage. I think we are, but we haven't agreed to that. There is just an end date. We would have to quit debating this at a time certain. Well, in a body such as this, when we agree to consideration of a bill without any other rules than that, if we just say we are going to end this debate at a time certain, guess what happens? Anybody can take the floor and monopolize the floor for days, if they want to. That is the first problem. The second problem is, as the distinguished majority leader indicated, under this proposal, each amendment would have 2 hours. That is right. He also noted that each amendment would have 2 second- degrees, subject to 2 hours. By my calculation, sophisticated as it is, that is 6 hours per amendment. One first-degree, 2 second-degrees, 2 times 3 is 6. If the majority leader were good enough to allow the Senate to go for 12 hours, that means 2 amendments per day. There are 3 days. Two amendments per day, 2 times 3, ironically, once again, you get 6. It is amazing how this math works out. It always comes down to 6. That is our problem.

Mr. DASCHLE. I thank the majority leader. Mr. President, let me respond to a number of the comments made by the distinguished majority leader. He certainly is right in that we have attempted to work our way through this for some time now. But I will say, if this is a Molotov minuet, there is only one side dancing. And in the Senate, both sides have to dance to make progress. In the Senate, if we are going to have a dance, it takes both sides to make it work. We are getting shut out. That is what this is about. We are shut out. We want to see progress, and there are colleagues on the other side who want to continue to shut us out. We are left with no recourse. We will minuet with anybody so long as there is somebody there to dance with. Let me just talk about the lament of our distinguished majority leader that this is an amendment to an unrelated bill. Just last week, Senator Murkowski offered the Glacier Bay legislation to the steel bill, and I listened very carefully to see if there was one Senator on the other side who would object to bringing up a glacier amendment on a steel bill. It was a cold steel bill, but it was not a glacier bill. Yet there we were, unrelated legislation offered with no objection. The majority leader understandably talked about the ruling on the energy appropriations supplemental. Just for the Record, he made mention that it was a ruling. It actually wasn't a ruling. It was the majority overturning the ruling. Fifty-four Republicans, actually 57 people, but 54 Republicans, 100 percent of the Republican caucus, overruled the Chair when the Chair ruled, on March 16, 1995, that you couldn't legislate on appropriations. One hundred percent of the Republican caucus said: Yes, we can, and we are going to say to you, Mr. President, we are overruling you. Now we hear our colleagues saying: Oh, my goodness, we are legislating on appropriations. I ask unanimous consent that the text of the amendment and the rollcall be printed for the Record.

Mr. DASCHLE. I do want to respond. If you want to finish --go ahead.

Mr. DASCHLE. Mr. President, certainly the majority leader can----

Mr. DASCHLE

Mr. DASCHLE. I yield to the Senator from California.

Mr. DASCHLE. I must say, some of our colleagues on the other side tell us they would rather not have to vote on this. They do not want to have to vote on amendments about medical necessity. That is what is stopping it right now. We are at an impasse because we believe this is such an important issue that votes and amendments on questions like medical necessity ought to be a part of any legitimate debate on a Patients' Bill of Rights. That is why we are not in agreement today. We feel those amendments are required if we are going to have a good debate. Our colleagues have at least today refused to allow them.

Mr. DASCHLE. The Senator is absolutely right. In fact, in response to the good question posed by the Senator from Illinois, let me read the second statement of policy by another insurance company regarding this very question. Here is the statement of policy relating to medical necessity of a second insurance company. Again, my colleagues, I am not making this up. We did not write this. This is written by the insurance company: Medical necessity means the shortest, least expensive or least intense level of treatment, care or service rendered, or supply provided, as determined by us, to the extent required to diagnose or treat an injury or sickness. This is actually out of the policy: Medical necessity means the shortest, least expensive or least intense level of treatment, care or service rendered, or supply provided, as determined by us. . . . Do we need a Patients' Bill of Rights, when you take this right out of a health insurance manual: Medical necessity is determined by the shortest or least expensive way with which to provide service to a patient? It doesn't end there: The service or supply must be consistent with the insured person's medical condition at the time the service was rendered, and it is not provided primarily for the convenience of the injured person or doctor. No wonder people go nuts when they talk about insurance policies today and what is going on out there, when they combat an insurance company that includes a provision like this. They may not have read all the fine print, but when a company says we are going to determine medical necessity by what is the shortest or least expensive--the Senator from Illinois is exactly right --this overrides everything.

Mr. DASCHLE. The Senator is absolutely right. Let me just say, she asks exactly the right question because there is a followup requirement here which we will deal with in another amendment. What happens if there is a dispute? Right now, the insurance company holds all the cards. The insurance company says: In the case of a dispute, we will make the decision about whether the patient is right or wrong. Our bill says: No, wait a minute; we are going to have a fresh review of the facts by an outside authority. They will make the decision as to whether the procedure was medically necessary or not. There has to be somebody outside the insurance company making that decision, or what good is it for us to guarantee these very important rights to all patients? But I really appreciate the Senator from California making that point. I yield to the Senator from Illinois.

Mr. DASCHLE. The Senator from California makes a very important point. It is our research and the extraordinary benefits that have come from it that have made a difference in people's lives all over the world. How ironic, after the American people spend valued tax dollars in support of research which is changing the quality of life for millions of people, that there are insurance companies denying patients the opportunity to benefit from research today. What happens? The benefits of that research goes abroad. It goes to Europe. It goes to Asia. It goes to Latin America. Thank goodness it does. But why should it go there and not be allowed here? We use the term ``clinical trials.'' It is a technical term. I like to get away from it, because I am not sure people understand what clinical trials are. Basically, when we talk about clinical trials, we talk about the right to ensure we benefit from innovative research. We should encourage experimental treatments when they are in the interest of the patient, and the doctor recommends them. That should be part of a Patients' Bill of Rights. But there is a chasm between Republicans and Democrats on that issue. Our Republican colleagues said: No, oh, no, that ought to be a decision the insurance company makes, not the doctor, not the patient. I hope we keep talking about research and who benefits and how preposterous it is that in this country, even though we have these fundamental and extraordinary new possibilities to improved lives, there are insurance companies at this very moment that have just denied somebody access to that research. The Senator from North Dakota is always so eloquent and so compelling in his comments. Again this morning he demonstrated why he enjoys the extraordinary respect of Senators on both sides of the aisle. One cannot talk in human terms, in personal terms very long, as he did, and not understand the importance of this issue. You can talk legalisms all you want. But if you put it in human life terms, as the Senator from North Dakota did--he put it in terms of life and death; he put it in terms of helping a young child--all of a sudden the light comes on and you understand why, when an insurance company actually has the audacity to write, ``Medical necessity means shortest, least expensive, or least intense level of treatment,'' why that young boy did not get his facial problems fixed. It certainly did not fit ``shortest, least expensive, or least intense level.'' That case probably is expensive. It is not a short recovery. It is intense. It is the absolute reverse of the definition this particular company uses for medical necessity. Of course, it was medically necessary if that young boy's life meant anything. Of course, it was required if our society is going to be responsive at all. But for any company to say, we don't care what the doctor says, we don't care how inappropriate it may be to override a decision made by a doctor and his or her patient, we are going to decide the medical necessity of a treatment based on how short it is, how inexpensive it is or how much it lacks intensity, that says in spades why this debate is important. It says why we will not give up our rights to offer amendments to ensure that issues like this are properly addressed. We will not walk away from this debate. We must have an opportunity to have a good debate with good amendments on issues as important as this, and we can do it. There is a way to work through this procedure. This can be a win-win situation. I want to find a way with which to ensure we can get a lot done in the next 10 days, and yet accomplish what we believe so strongly must be a part of the Senate's agenda in this session of Congress. I yield the floor.

Mr. DASCHLE. That is the essence of it. The Senator from California has put her finger on it precisely. What it is saying is, we as an insurance company or we as a HMO will override whatever decisions are made by doctors, by nurses, by nurse practitioners, by any kind of provider, if we find it is in our financial interest to do so.

Mr. DASCHLE. I am happy too.

Mr. DASCHLE. Mr. President, I will take just a few moments to share with my colleagues where we are with regard to our negotiations, and then talk a little bit about the bill itself, the Patients' Bill of Rights. Senator Lott and I have had a number of discussions this morning. We are trying to find a way to proceed. I think it is fair to say that we are continuing to lose precious time in an effort to try to resolve our procedural differences. I am hopeful we might be able to reach some agreement. I am not wedded to the latest proposal I have shared with the majority leader, but we do need a time certain for consideration of this bill in the very near future. We certainly need to have the assurance that the amendments we will offer will be considered and voted upon by the Senate. Those are our two principles: No. 1, a time certain for consideration of this bill; No. 2, some assurance that we will have the opportunity to debate amendments and have votes. We recognize that with 45 Democrats we may not have the necessary votes to win a contest with our Republican friends on a comprehensive bill. However, we do know there are a good number of Senators who have expressed their support for various issues in our bill. We hope we can work through those issues and have the assurance we can have a good debate and good votes. We cannot agree to any time certain for final passage if we cannot agree that we will have at least an opportunity to debate these amendments and have votes. Again, our two principles: A date certain, and an opportunity to have up-or-down votes, or even tabling votes, on the amendments we want to offer. I am hopeful we can work through those two principles and find a way that is mutually acceptable. The majority leader, as always, is attempting to be as responsive as he can. I appreciate the cooperative spirit with which we have been undertaking these discussions over the last 24 hours. One of the reasons we feel so strongly about amendments is that they cause the Senate to focus on what it is we are talking about when we say the words ``Patients' Bill of Rights.'' I don't know that a lot of people fully understand the magnitude of those words. What does ``Patients' Bill of Rights'' actually mean? We want to be able to spell out what it means. I want to give one example, because it will be an amendment if we can't get an agreement. Our first amendment will deal with medical necessity. Medical necessity simply suggests that medical decisions ought to be made by medical professionals, not bureaucrats. Our amendment would prevent arbitrary interference by insurers regarding treatment decisions such as hospital length of stay. It also would establish a fair definition of medical necessity. Medical necessity, in our judgment, should simply be an opportunity to use good, professional, medical judgment about the course of action involving a patient. That is what we mean by medical necessity. I will read for our colleagues two other definitions of medical necessity that are currently in insurance policies for HMOs. I must add, I am not making this up. The first is from a Missouri insurance contract. I will read the definition of medical necessity taken right from the insurer's policy. The company will have the sole discretion to determine whether care is medically necessary. The fact that care has been recommended, provided, prescribed or approved by a physician or other provider will not establish that care is medically necessary. Let me just make sure everybody understands what this says. It says we do not care whether a doctor or a nurse or any kind of provider has recommended, provided, prescribed, or approved a given treatment. We are going to be the ones to make the decision about medical necessity, not them. Could it be any more blatant than that?

Mr. DASCHLE

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

Mr. DASCHLE

Mr. DASCHLE. If the Senator will yield on that point, I would like to comment. I think what he has noted is exactly another reason why it is so important for us to have a debate about access to emergency rooms and other necessary care. I would note that just the opposite of what the Senator describes oftentimes occurs. A managed care company, or an HMO, actually will make you drive past the nearest hospital to go to a hospital farther away, where they have a contract. Sometimes a patient will choose not to use the nearest hospital, for a lot of reasons--better care, preferred specialists, different services. A patient may want to go farther away. But, in many cases, maybe a preponderance of cases, they actually have to drive past hospitals to go to the hospital the HMO has chosen, rather than the one they would choose for themselves. Again, I think the Senator makes a very good point.

Mr. DASCHLE. If the Senator would yield for a clarification, is the Senator saying that in many cases today insurance companies and managed care organizations are refusing to allow a patient access to the very kind of treatment that you say your son received? Is that what is going on?

Mr. DASCHLE. We should talk about clinical trials and how critical they are. I ask the Senator if he could inform Members what impact it would have on an individual were he or she able to have access to clinical trials today under this bill?

Mr. DASCHLE. Will the Senator explain the term ``clinical trials?'' The Senator has made such an important point about this issue. There are so many differences between the Republican and Democratic bills. One of the myriad of differences has to do with the so-called ``clinical trial'' provision. The Senator has spoken on the floor so patiently and eloquently about the concept of clinical trials and access to them. When we talk about clinical trials, are we talking about innovative techniques to respond to health problems that take full advantage of research and the opportunities of medicine that this country provides? Are we talking about giving people access to that medicine and cutting-edge technology just as soon as it is available? Isn't that really what we are talking about?

Mr. DASCHLE. Mr. President, if the Senator will yield, he was talking earlier about the amazing array of groups in support of our bill. I think I heard the Senator say it really represents virtually the entire universe of health care provider organizations that we know in this country. Certainly they are not all necessarily Democratic groups or progressive groups. Would the Senator comment on the diversity of the groups supporting our proposal? I think this is a point that is sometimes lost--the breadth of organizations that say this is a top priority as a legislative issue.

Mr. DASCHLE

Mr. DASCHLE. Mr. President, the distinguished majority leader has responded to my unanimous consent request. He and I have been consulting about how to proceed over the last hour. He has indicated to me that he is working with a number of his colleagues and with staff to attempt to fashion a way with which we might proceed on the Patients' Bill of Rights. He has indicated they will be continuing those discussions tonight. In the interest of moving that process along and with some hope that we could reach some agreement, I will withdraw my unanimous consent request to be recognized. We will be on the bill, and we will certainly be inclined to be as supportive of reaching agreement as we can. Short of that, we may want to offer additional amendments to the agriculture appropriations bill tomorrow. We will have that discussion at another date. In the interest of time and comity and accommodation, I will certainly defer any additional request.

Mr. DASCHLE. Mr. President, reserving the right to object, and I won't object, I had an amendment that I was prepared to offer. Could I ask unanimous consent that I be recognized at 9:30 for the purpose of offering an amendment; if we could get agreement on that perhaps?

Mr. DASCHLE

Mr. DASCHLE. Mr. President, if the majority leader will yield on just another question, today the Summers nomination was reported out of the Finance Committee unanimously. There appears to be very strong bipartisan support. Is there any intention on the part of the majority leader to address that nomination sometime in the near future?

Mr. DASCHLE

Mr. DASCHLE. Along with my Senate colleagues, I have worked for years to reform Superfund, and by all accounts the program has been vastly improved over the past 6 years. Today, I reaffirm my commitment to work with the majority leader to ensure passage of needed Superfund relief for recyclables in this session and urge passage of a recycling bill.