Mike DeWine

Mr. DeWINE

Mr. DeWINE. I can tell you what the intent was. And, as you know, we have been drafting the language, and it has been going on and on. I can only tell you what the intent was. I am more than happy to take a minute and look at that language again with your comments in mind. The intent was to treat people who operated one way equally. In regard to unions, the intent was we would cover union plans that were the same as the Wal-Marts of the world which are self-insured and self- administered. That was the intent. It was not the intent to go one inch beyond that or to cover one group or one plan beyond that. I will bluntly say, if the language in here is not consistent with that intent, we need to go back to the drawing board and look at the language. That was the intent of the four or five of us who were working on this issue. That was the specific intent, and that was the instruction that was given to staff. If the lawyers did not come back with that language, and I did not catch it when I read it, I apologize, and we will look at that. But it is going to take us a few minutes to get the language out. My understanding of what my colleague has said is that if a union does in fact operate a plan, and they are in fact self-insured and self-administered, he believes they should be treated the same way; anybody who runs a plan with those two qualifications should be treated the same way. Is my understanding correct?

Mr. DeWINE. I wonder if I may inquire whether or not there was a unanimous consent as far as the vote tomorrow morning at any time?

Mr. DeWINE. Yes.

Mr. DeWINE. Will the Senator yield?

Mr. DeWINE. If I can respond to the Senator's comments about why we crafted the bill, it was to give the employer a choice as to whether or not they would go under the designated decisionmaker or under the language of the other bill, which is direct participation. Frankly, I do not think this is a huge deal. The reality is that the vast majority of businesses will go under designated decisionmaker, and, in fact, we provide in the bill that it is automatic. That will just happen unless they make a conscious decision to say: We do not want to do the designated decisionmaker; we want to go under the direct participation language. We are in an unknown area, and I do not think anyone knows how this is going to play out entirely in the real world and what decisions they are going to make. Some people come up with some scenarios under which they would not want to designate someone as a designated decisionmaker. The vast majority are. We wanted to provide this as a fallback position, more options. I do not think it is going to make it more ambiguous or less definite because we provide automatically it is going to be designated decisionmaker unless they make an action and say: No, we do not want designated decisionmaker; we want to go with our model because for some reason it works that way. We can look at the language and talk about it. In explanation to our colleague from Tennessee, that is what our thinking was. We do not know where the world is going with this new language, and we wanted to give as many options to businesses as we could. That is why we did it.

Mr. DeWINE. I inquire, how much time remains?

Mr. DeWINE. Madam President, let me thank my colleagues, Senator Snowe and Senator Lincoln, whom I see on the floor, and Senator Nelson, who have worked long and hard on this amendment. The issue in front of us today is how do we help shield businessmen and businesswomen from liability at the same time providing access to the courts for people to sue HMOs. Everyone I think agrees, one of the things we worry about as we deal with this legislation is that we will do something that would cause businesses in this country to decide not to insure employees. That would be a very bad unintended consequence, so we have to be very careful as we write this legislation. The amendment in front of us today is really a compromise. It is a compromise based on the Frist-McCain bills. It is a compromise on the issue of employer liability, how we best protect the employers while at the same time ensuring people their right in court. I think we have really blended these bills. I think we have the best of both worlds. The situation and the language are clarified and made simpler. We started this debate with some basic principles on which everyone agreed. In both bills we agreed we wanted to try to protect businesses but at the same time we wanted to allow suits in limited circumstances against HMOs. The President agreed to that principle, and the two underlying bills do as well. This amendment, I believe, achieves that. This amendment effectively takes out 94 percent of businesses and provides them great protection. When you compare our amendment versus the underlying bill, it helps and improves the situation for the other 6 percent. We will talk about that in a moment. My colleague from Maine has talked about this concept of the designated decisionmaker. What do we mean by that? What we mean is let's just make it simple and let's make it plain; let's have the employer say who is going to make those decisions and therefore who will be sued. In essence, what we are saying is once that decision is made, that employer is no longer going to be subject to suits; the designated decisionmaker will be. How will this work in the real world? Let's say we have a small hardware store in Greene County, OH. Let's say they employ 12 people, and let's say what they do is they provide some health insurance and they do that by going out in the market, finding the best deal they can, and buying this group coverage for their 12 employees. Under this amendment, once they contracted with that insurance carrier, they would have automatically made that designated decisionmaker decision. They would have designated that automatically, that group as being the designated decisionmaker. They would have to do nothing. They cannot make a mistake. It takes no affirmative action on their part. That is going to improve the language we have in front of us. The other way of doing it, the way the underlying bill did it, was to talk about direct participation. Frankly, I think the language in the bill was pretty good. But I think it needs to be improved. By having the designated decisionmaker, it is a lot more clear. What will happen as a practical matter is this. As we all know, anybody can sue anybody. We cannot prevent suits, but we certainly can discourage them, and we certainly can provide when suits are filed against a business, the business has the ability to get out of that lawsuit very quickly. So by using the concept of the designated decisionmaker, as a practical matter, if a suit were brought against a businessperson, if a lawyer were foolish enough to file that suit, the business would simply have to go into court and file a copy of that designated decisionmaker decision and would be dismissed from the case. As a practical matter, this language significantly improves the underlying bill and will make a big difference. Our amendment does build on the two bills in front of us, the two bills we have been talking about and have been considering, the Frist- Breaux bill and the underlying bill we have in front of us today, the McCain-Kennedy bill. I believe our amendment would protect business owners from needless lawsuits as well as protect patients who rely on employer-sponsored health care plans for their medical needs. I believe this amendment brings together the best of all worlds by providing certainty, much- needed certainty to employers, employees, and, yes, to health care providers. That is something we desperately need in any patient protection bill. Based on the designated decisionmaker concept in the Frist-Breaux- Jeffords bill, our amendment would automatically, as I have indicated, remove liability from small business owners and shift it to health care providers or other designated entities. In addition, our amendment stipulates this designated decisionmaker must follow strict actuarial guidelines and be capable of assuming financial responsibility for the liability coverage. This means the designated decisionmaker could not be a hollow shell, unable to come up with the money, the assets, to defend against potential lawsuits and financial damages and be able to satisfy those losses. Our language ensures that the designated decisionmaker cannot be a straw man, cannot be a sham that has no ability to pay a patient in the event a lawsuit is filed and that damages are in fact awarded. In creating the designated decisionmaker process, it makes it easier for employers that provide health insurance coverage to be protected. We think that is a major step forward for businesses, and especially for patients. I say that because the fear of being sued often becomes so great that employers simply stop offering health care coverage. We don't want that to happen under this bill. We simply can't let that happen. The reality is in this country that already there are more than 42 million Americans, including 10 million children, who have no health care coverage. The last thing we want to do is add to this number. Our amendment greatly diminishes the likelihood that employers will stop offering health care coverage. Again, we believe it is the best of both worlds as it allows patients the ability to sue the designated decision maker if they are denied medical benefits to which they are entitled by their health plans. But at the same time it protects employers from unnecessary and costly lawsuits. Under our amendment, employees would have the comfort of certainty and the comfort of knowing that the designated decisionmaker is ultimately responsible for health care decisions and, therefore, that individual or that entity bears the liability for a lawsuit. In another effort to keep employees insured, our amendment also adds language to the underlying McCain-Kennedy bill to limit the liability of businesses to self-insure and self-administer their health care plans. The fact is that these employers are assuming additional risk by financing and by administering health care coverage to employees. To that extent, I believe we must take their unique circumstances into consideration. This amendment does that. Ultimately, our objective is to encourage employers to offer and to continue to offer their employees health care coverage. We don't want to discourage them out of fear that they will be sued. The reality is that these self-insured and self-administered plans are doing some very good things for their employees. We want them to continue to do these good things. Our amendment will help them keep their employees, their families, and their children insured. That is what the Patients' Bill of Rights should be all about. Further, our amendment improves the original Frist language by making very clear exactly who is liable. The amendment leaves no room for ambiguity because it would not allow the designated decisionmaker to be broken into sub-decisionmakers. One, and only one, entity would be the sole bearer of liability. We think that is an improvement. Finally, our language would strike vague and ambiguous language in the underlying McCain-Kennedy bill that is of great concern to employers. This language is a catch-all section of the bill that could open employers to a flood of lawsuits simply because of the imprecise nature of the language. Let me read the exact language currently in the Kennedy-McCain bill in regard to the cause of action relating to provisions of health benefits. There is the (ii) section. This is what is in the underlying bill: Or otherwise fails to exercise ordinary care in the performance of the duty under the terms and conditions of the plan with respect to the participant or beneficiary. We believe this language is simply too vague. We eliminate it in regard to businesses and their potential liability. This language that I just quoted creates an explicit cause of action. This means employers could be the subject of lawsuits that none of us currently has any way to anticipate. The language is broad. It is too broad as currently drafted. Our amendment would completely remove this section. Finally, I think we must recognize what this amendment does, but also we need to be very clear about what it does not do. Does this amendment solve every problem with this bill? The answer is that it does not. It does what we have said it does. It deals with the heart of the liability problem in regard to businesses, but it does not solve all the problems. I think it is important for us to have truth-in-labeling with this amendment. It is a good amendment. It is a probusiness amendment. It is an amendment that will encourage business men and women to do what we want them to do, which is good public policy, to insure their employees. It will give them important protections. It will give them more assurances. That is why we ought to pass this amendment. It is a significant improvement over the underlying bill that is in front of us. But it does not solve all the problems. It only deals with a portion of the pie. It does not deal with the caps issue. It does not deal with where the lawsuits should be brought and the issue of whether they should be brought exclusively in the Federal court or in the State court. It does not deal with the class action question, about which I am very concerned. And I know my friend from Tennessee has been working on this issue as well. It does not deal with the class action issue. I intend to have an amendment later today or tomorrow in regard to the class action issue. We want to say what it does. It helps businesses do the right thing. It encourages people to continue to insure their employees. But there are many things it does not do. I would be more than happy to yield to my colleague.

Mr. DeWINE. No, I will not yield yet. We have had criticism of this amendment from people who say it does not solve all the problems. I came to this Chamber and said, no, it does not solve all the problems, but we are trying. And we are trying with this amendment. If we can improve the amendment, and if we can get the language more precise that does it, I will be more than happy to do it. Yes, I yield to my colleague.

Mr. DeWINE. The Senator is absolutely correct. We believe the language does reflect that, but that is clearly the intent.

Mr. DeWINE. I would be more than happy to answer the question. In the original language that we have been negotiating for the last few days, we could not figure out any way to really help the roughly 6 percent of businesses that self-insure and self-administer. My colleague Senator Lincoln has brought to our attention and businesses have brought to our attention the fact that this amendment as originally written really did not help those 6 percent. Why? Why originally didn't it help? The basic problem is they do make medical decisions. They are really effectively operating as their own HMO. We thought about how to protect them and give them some help while at the same time preserving their employees' rights to sue just as everybody else has. We came up with a compromise. My colleague Senator Lincoln may want to get involved in this and explain it a little bit. But basically it says for those self-insured, self-administered plans, we carve out a special exemption for them because of the special status. We say they are excluded and exempted from lawsuits brought in the Federal court on the nonmedical decisions based on the contract decisions. That is a break they are getting. We think it can be justified by what they do because we want to encourage them to continue to do what they do. Why is the other group that you have mentioned included? They are included because they operate basically the same way the self-insured, self-administered businesses do. They basically take the risk. They basically make the medical decisions. I appreciate the question, but I would disagree with my colleague the way he has categorized it. This is no special break for unions. This is treating people who operate the same way the same way in the language. I cannot come up with any way to justify carving them out and not giving them the exception because they are operating under the same principles that they are basically self-insured and are basically making the medical decisions, and doing it the same way. So when you compare apples to apples, you ought to treat them the same. That is why we did it. We think it is justified. We think it makes sense. The option, candidly, would be not to give the 6 percent of businesses this break, not to give them the encouragement to try to get them to continue to do what they are doing. But we came to the conclusion that we should try to help them. We are not helping them immensely, but we are helping them.

Mr. DeWINE. Reclaiming my time, that was our intent. If that is not reflected in the language, we will change the language. I yield to my colleague from Maine.

Mr. DeWINE. I appreciate my colleague's comments. I think they are well taken. We will get about the business of dealing with that. The point is very well taken. I yield the floor.

Mr. DeWINE. Let me suggest we take a look at that as we continue this debate. We have a little time to debate. Let us look at the language. I again want to reiterate something, though. And I do not want any of my colleagues who are watching this back in their office or who are in this Chamber to misunderstand this. This is a limited carve-out. This is not a huge carve-out. Basically, what this carve-out says is, because of the unique situation of the self-insured, self-administered plans, we are going to exempt them from lawsuits, based on contract, in Federal court--they are not going to be exempt from other lawsuits and in State courts, and based on medical decisions. So it is a limited carve-out. I do not want anybody who is watching this debate to think this is some huge carve- out. It is a carve-out on a limited basis. Our intent was to treat people equally who were in that unique circumstance. I know my colleague from Tennessee has been wrestling with this for a couple years: How do you deal with these folks who have this unique problem? I say to my colleague from New Hampshire, this may not be perfect, but we think it improves the status quo. That is sort of what we are about today: Trying to improve the status quo.

Mr. DeWINE. I agree.

Mr. DeWINE. I will reclaim my time. I thank my colleague for his comments. The intention of the language is to treat people equally. If a union does in fact make the medical decisions and if they are operating in the same way that the Wal-Marts of the world are, they ought to be treated the same way. If they are not operating the same way, then they should not be treated the same.

Mr. DeWINE. I am more than happy to yield to the Senator from Tennessee.

Mr. DeWINE. I will respond to my colleague and I appreciate his comments. He is closer to the courtroom in time than I am, and it has been many years since I have practiced law. What this comes down to is that we are creating new opportunities for lawsuits, obviously, in this bill. What we are about is a balancing test, a balancing question. It is a matter of public policy. We have to decide. As we create new causes of action, new opportunities to file lawsuits, I think it is legitimate to look around and say: How expansive do we want to allow class actions to be under this new cause of action? It seems to me language we have included, which is basically-- basically, I say--what was in the Frist bill originally, is a rational way to do it. It doesn't ban class actions but basically says we are going to limit them. I think it is a balancing test and Members are going to have to make their own decision whether they think it is worth providing people with the opportunity to have nationwide class actions. Candidly, with the tremendous cost this is probably going to incur, that ultimately is going to be paid and ultimately going to drive up health care costs. I think Members have to make that decision. I yield the remainder of my time.

Mr. DeWINE. If I could reclaim my time to answer the question.

Mr. DeWINE

Mr. DeWINE. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record. There being no objection the text of the bill was ordered to be printed in the Record.

Mr. DeWINE

Mr. DeWINE. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record. There being no objection the text of the bill was ordered to be printed in the Record.

Mr. DeWINE

Mr. DeWINE. Madam President, let me talk for a moment, if I may, about a part of the bill that is not very controversial but I think is very significant. It is that part of the bill that Senator Dodd just mentioned, and that is the drug-free school component of the bill. Let me congratulate Senator Dodd. I really enjoyed working with him, with his team, to get language in this bill that will really improve the current Drug Free Schools Program. I believe we have done that. I salute him for that very excellent work. I also thank Senator Murray and Senator Grassley for their work on this language as well. I think we all understand when we talk about our drug problem, we have to have a coordinated, consistent, and a balanced approach. A balanced approach means drug treatment, drug education, prevention. It means international interdiction of drugs. It also means domestic law enforcement. Those are the four basic components. We have to do them all. We have to consistently do them all. The drug-free schools provision in this bill and the money it represents is really virtually the only thing the Federal Government does in the area of education. This bill authorizes $925 million which will go down to the local school districts across this country. The current Drug Free Schools Program is in virtually every school district in the country. Interestingly and sadly, in many school districts it is the only money that is being spent on drug education. So it is important to do what we have done in this bill, and that is continue the program. But it is also important to improve the program. I had the opportunity, when I was in the House of Representatives over a decade ago, to serve on the National Commission on Drug Free Schools. We issued a report in 1990. We talked about how this program needed to be improved. Some improvements have been made in the last decade, but unfortunately not all the recommendations have been followed. What we do with the language in this bill is take that decade-old report and, frankly, bring it to life, use some of the recommendations, and improve the current law. One thing we determined at that time was if antidrug efforts in our schools are to be effective at all, they must be coordinated, they must be consistent, and they must be community oriented. We recommended a number of things including the following four items: No. 1, every school district should develop and conduct drug eradication and prevention programs for all students from kindergarten through grade 12, every single year. No. 2, parent and community groups should take a more active role in developing and selecting drug prevention programs. No. 3, the Department of Education should ensure that schools conduct periodic evaluations of all drug education and prevention programs. No. 4, Federal and State governments should fund only those education and prevention program efforts that are likely to be effective. There should be scientific data behind the decision to use a particular program. The Safe and Drug Free Schools Program that is contained in this bill incorporates these recommendations. This program helps prevent our children from ever becoming involved with drugs and supports efforts to create violence-free learning environments. The language we have written into the education bill that is before us today further improves this program. It gives States greater flexibility to target assistance to schools in need, and it increases accountability measures to ensure that this assistance actually goes towards programs that really work. Furthermore, the language we have written in the bill would improve coordination of Safe and Drug Free Schools Programs with other community-based antidrug programs by requiring schools to work directly with parents, with local law enforcement agencies, with local government agencies, with faith-based organizations, and other community groups in the development and implementation of antidrug and violence strategies. That community coordination is absolutely essential. It has, tragically and unfortunately, in the past, sometimes been missing from local communities. This bill says we have to have that coordination. Drug abuse and violence against young people is a community problem, a national problem. It requires a community-based solution. That is why we need the entire community to be involved in the creation and in the execution of programs to fight youth drug abuse and violence. Our language would allow afterschool programs to apply for Safe and Drug Free School grants as long as they meet the same standards as any other applicant. If afterschool programs use research-based drug and violence prevention programs, and if they prove they reduce drug and violence in schools, then they will have fair access to Safe and Drug Free School funding. I really cannot talk about the Safe and Drug Free Schools Programs without mentioning one of the most tough and effective fighters against youth drug abuse and school violence, and that is the first lady of my home State of Ohio, Hope Taft. Hope Taft has dedicated years of her life to help make our schools safer and drug free, and she was instrumental in the development of this language that is in front of us today, language we have written into the education bill. She is really the voice for community-based organizations. I commend her for the great contribution she made to this bill. Through her efforts, she has raised awareness of the dangers of youth drug abuse and violence in our schools. Let me also applaud President Bush for his support of this program. During the campaign, President Bush promised to increase funding for the Safe and Drug Free Schools Program by over $100 million over 5 years. I commend him for that commitment. It is truly the kind of commitment we need to continue to improve this very vital program. The Safe and Drug Free Schools program is a critical part of restoring effectiveness and balance in our national drug policy. And ultimately, if we don't restore effectiveness, more and more children will use drugs, leading to greater levels of violence, criminal activity, and delinquency. Unless we take action--unless we take the necessary steps to reverse these disturbing trends--we will be sacrificing today's youth and our country's future. Quite frankly, children simply cannot learn when they are under the influence of drugs or alcohol. Children cannot learn when they more worried about their safety than their homework. Children cannot learn when they are scared. That's why we must ensure that children and the adults who work in our schools are safe--that they are free from drugs and violence. As we continue to debate education reforms in this nation, we need to remember that improvements to our school buildings, increased professional development efforts for our teachers and administrators, and changes in education policies will not help our young people realize their true potential as long as drugs and violence are in their schools. It's that simple. I thank the Chair and yield the floor.

Mr. DeWINE. We are one short of a baseball team.

Mr. DeWINE. I thank my colleague. Again, I compliment him for the great deal of work he did. It was a great pleasure to work with him and his staff. I think the language in the bill improves the current law and is a significant improvement. I think it is going to make a difference. I appreciate his great work.

Mr. DeWINE. Yes.

Mr. DeWINE

Mr. DeWINE. Mr. President, I rise this afternoon to join my distinguished colleagues, Senators Lugar, Leahy, Harkin, Durbin, and others, as well as Representative Jo Ann Emerson and Representative Jim McGovern in the House, to speak in favor of the International Food For Education and Nutrition Act of 2001. Mr. President, former Senators Bob Dole and Senator George McGovern developed the concept of this bipartisan bill last year. This legislation, which links food to education, is really brilliant in its simplicity, by making permanent an existing international school nutrition pilot program. These two dedicated public servants, Senator Dole and Senator McGovern, worked tirelessly in the Senate in years past to feed needy children both in this country and around the world. Because of them and because of their leadership and their vision, millions and millions of children have received nutritious meals and an education. Through their efforts, they have given millions of children hope and a future. Mr. President, nearly 30 years ago, on this Senate floor, Senator Bob Dole and Senator George McGovern formed a bipartisan coalition on matters that had to do with agriculture and domestic food assistance. They led the way in putting in place an expanded network of food stamps for the poor, school lunches and breakfast on a much wider scale, a supplementary feeding program for low-income pregnant and nursing mothers and their infants, and nutrition guidelines for the American people. Indeed, Senators Dole and McGovern, through their words and their deeds, have demonstrated a deep and enduring commitment to children around the globe. But there is still more to do--much more. Today, we still cannot understate the importance of school feeding programs in impoverished countries throughout this world. Currently, there are hundreds of millions of children worldwide who are not enrolled in school, in part because of hunger or malnourishment. We know if there is food at school, children will come, children will attend. The fact is that school feeding programs can reach the poorest of the poor, providing necessary nutrition to children who often do not receive any other food throughout the entire day. As a result, these programs have had a substantial and very positive impact on school enrollment levels and attendance. More and more children are going to school around the world, and more and more children are able to learn and become educated. With an education, a child has a future. There is a very simplistic and important link between food and education. My wife, Fran, and I have seen it in our travels to Haiti. We have become good friends with Father Hagan--Tom Hagan--an American priest who works so very hard with the poorest of the poor in Haiti. One of the things that Father Hagan does, and is doing today, is making that link between food and education. Father Tom waits until after the school year starts and he sees what children don't have the money, don't have the ability to enroll in school. He waits a couple weeks and then he opens up his school and takes those children in from the city of Port au Prince, the Cite Soleil, the poorest part of the city, the slum, and provides them with education. He not only provides them with education, he provides them with what for most of them is the only meal they will receive, the only food they will receive all day. So the food serves as sort of a magnet, but, at the same time, it gives these young children the nourishment they need so they can concentrate and study and they can learn. Fran and I have seen it firsthand in Haiti. We have seen it in Nicaragua, we have seen it in other countries where people are working to make a difference. What this bill does is put the Congress and this country on record as saying we are committed to doing this around the world. We want to work with other countries and the United States to lead by example. We cannot do this all ourselves, but we can provide the initial leadership. The specific initiative we are introducing today advances and expands current feeding programs by establishing the International Food for Education and Nutrition Program. This new program will enable the U.S. Department of Agriculture to use funds from the Commodity Credit Corporation to purchase U.S. agricultural commodities for use in global school feeding programs. These commodities then would be provided to private organizations for distribution in recipient countries throughout the world. To facilitate enactment of these programs, our bill also would provide adequate funds for transportation and distribution costs associated with these efforts. It does no good to give food if you cannot get it distributed. Our legislation stems from the 1-year pilot program I referenced a moment ago which Senators Dole and McGovern developed and the previous administration launched a year ago. Known as the Global Food for Education Initiative, this $300 million pilot program provides nutritious meals to children in 38 countries. Under the program, 14 private volunteer organizations, together with the United Nations World Food Program, are working to provide a free breakfast or free lunch to some 7 million schoolchildren in developing countries. Our legislation is a perfect complement to the current Public Law 480 title II emergency feeding program which helps nourish more than 40 million children and adults worldwide. Let me highlight just one of the many success stories we have already seen with the current pilot program. In Cameroon, for example, we are providing nutritious meals to more than 50,000 schoolchildren, helping to increase school enrollment by over 50 percent and cutting the dropout rate for girls to virtually zero. These findings are not unique. We find, for example, similar success stories in Vietnam and in Honduras. Our bill will continue to build upon the initial success of the pilot project, and we will make this program permanent. By making it permanent, we can reach even more impoverished children and have a lasting, long-term effect on global educational development and work to eradicate childhood hunger. Furthermore, the investment in international school feeding programs not only will help children in developing countries, but it also will, of course, benefit our U.S. farmers. The program provides our farmers with a steady opportunity to sell the goods they produce. This is definitely a win-win situation. I look forward to continuing our work on this important initiative, and I urge my colleagues to join in support of our legislation.