John Ensign

Mr. ENSIGN

Mr. ENSIGN. Madam President, the amendment that I have proposed really is entitled the ``protection against genetic discrimination act.'' The Senator from Massachusetts is one of the cosponsors of a bill that contains this particular amendment, along with 22 other Senators. The mapping of the human genome is one of the most amazing scientific breakthroughs in recent history. Information that is embedded in the genome holds the key to understanding the illnesses and diseases that affect millions of people across the world every day. I would like to note, this has nothing to do with the amendment that Senator Brownback just proposed. We want to keep the controversies separate. What our amendment deals with is whether you can take this genetic information and use it to determine whether or not to provide health insurance coverage. When the map of the human genome is completed, we will have all of the information that is contained in the 23 pairs of chromosomes in the human body. This information will be instrumental for finding the cure for diseases such as breast cancer, cystic fibrosis, Alzheimer's disease, and hundreds of other debilitating illnesses. However, this breakthrough also carries great dangers. Current law does not provide any protections for individuals to keep their own genetic information private. Currently there is no law prohibiting a health plan from requiring an applicant to provide genetic information prior to the approval for insurance. In other words, any individual with a genetic marker for a specific disease would most likely not be able to receive health insurance coverage for the treatment of that disease. A joint report by the Department of Labor, Department of Health and Human Services, the Equal Employment Opportunity Commission, and the Department of Justice summarized the various studies on discrimination based on genetic information and argued for the enactment of Federal legislation. The report stated that: Genetic predisposition or conditions can lead to work force discrimination, even in cases where workers are healthy and unlikely to develop disease, or where the genetic condition has no affect on the ability to perform work. Because an individual's genetic information has implications for his or her family members and future generations, misuse of genetic information could have intergenerational effects that are broader than any individual incident of misuse. Dr. Francis Collins, the director of the National Human Genome Research Institute, has stated: While genetic information and genetic technology hold great promise for improving human health, they can always be used in ways that are fundamentally unjust. Genetic information can be used as the basis for insidious discrimination. The misuse of genetic information has the potential to be, and is, a very serious problem both in terms of people's access to employment and health insurance and the continued ability to undertake important genetic research. This amendment takes the first step toward providing individuals with the protections they need for their individual genetic information. This amendment, as I mentioned before, is part of a larger bill that Senator Daschle has introduced on this very same subject. Simply put, this amendment prohibits health insurance companies from using genetic information when deciding whether or not to provide health insurance for an individual. Insurance companies would not be able to use genetic information to deny an individual's application for coverage or charge excessive premiums. Think about diseases such as Tay-Sachs, sickle-cell anemia, breast cancer, colon cancer, cystic fibrosis, and other diseases in which we have identified genes that predispose people to these diseases. Just think about how many Americans this affects now and will affect in the future as we discover new genes that predispose people to certain diseases. It is because of this that we must include this amendment if we are truly going to call this bill a Patients' Bill of Rights. Madam President, my wife and I helped co-found the Breast Cancer Coalition of Nevada. Many of the women who are actively involved in this wonderful organization are breast cancer survivors or family members of women who have died from breast cancer. A wonderful friend of my wife and I, one of the most incredible women I have ever met, died in my wife's arms several years ago. She died of breast cancer. To think about women such as her who have had a gene identified, or maybe her daughter the same, to think about her someday being discriminated against getting health insurance is just unconscionable. I encourage all of my Senate colleagues, including the sponsors of the bill, to accept this amendment. It is the right thing to do. I urge its adoption. I yield the floor.

Mr. ENSIGN. Mr. President, I ask for the yeas and nays.

Mr. ENSIGN. Mr. President, I yield back the remainder of my time on this amendment. Amendment No. 848

Mr. ENSIGN. I ask for the yeas and nays.

Mr. ENSIGN. We have been looking for a vehicle to include this in. We have wanted to deal with this for some time. This is a Patients' Bill of Rights, and I know it deals mostly with HMOs, but we are looking at our health care system and providing rights to patients. This is part of the health care bill that I think appropriately should have an amendment such as this, simply because I don't think there is any question that we are driving up health care costs in this country. If anything can help drive down, even a small amount, the cost of health care, I think we should do it. If between now and tomorrow morning, if there is other language the Senator thinks we need to massage into our amendment, I would be more than happy to work with the Senator from North Carolina. But as it stands, we think this is an important amendment.

Mr. ENSIGN. First of all, physicians I have spoken to do not think the bill the Senator is talking about adequately covers them. That is why they still have to carry medical malpractice insurance, similar to what Senator Frist has to carry. My amendment would help lower the cost of this type of coverage, so we think this bill is necessary. I don't understand--if this is already covered in law, why would it be a problem to include it to make sure we are saying to the courts that we absolutely want to cover people who are providing pro bono services to the needy.

Mr. ENSIGN. Mr. President, this next amendment I am offering comes once again from personal experience. I have a very close friend, Dr. Tony Alamo. He is a few years younger than me, and is an internist in Las Vegas. Our parents have known each other for a long time. He graduated from USC medical school. I don't know that I have ever seen anybody work harder. Internists today don't make nearly the money that a lot of surgical specialists make, but the compassion that they have for their patients is just incredible. I remember a few years ago talking to him and what he had to tell me was amazing. As a practicing veterinarian, we get to choose who we take, who we don't take, and when they come into our offices. But as a physician, when he happens to be there treating another patient, if somebody comes in and he happens to be the attending physician, he has to treat that person, regardless of whether they have insurance or no insurance, can pay or cannot pay. When he takes that person on as a patient, he cannot get rid of that patient. So he has to continue through the course of the disease, if he is in the hospital, has a heart condition, he has to continue regardless of whether he gets reimbursed or not. The purpose of my amendment is to say we want them to continue that kind of care, but if out of the goodness of their heart they are treating for free, we just want to eliminate the possibility that they can be sued for such a matter. We are looking at this as a situation that is similar to Good Samaritan laws. For example, when somebody stops on the side of the freeway because somebody is hurt and they don't know exactly what to do but they want to help and they happen to do more harm than good, we have passed laws across the country that helps a Good Samaritan in that regard. The practice of medicine, as anybody who has practiced knows, whether it is veterinary medicine or human medicine, is both an art and a science. As a matter of fact, it is more art than science. Things go wrong. Sometimes things go wrong that may look like malpractice. And sometimes it is something the doctor had nothing to do with, yet they can still be taken to court. Our amendment says that if health care professionals are going to do this, we want to protect those people from lawsuits. It seems to me that if somebody is providing something out of the goodness of their heart on a pro bono basis, they could not be sued. In fact, I would support a similar proposal that granted lawyers the same protection. If they are providing pro bono services, they could not be sued. I think if this was a lawyer's bill of rights, we would include that as well. But this happens to be a Patients' Bill of Rights, and for the physicians that are treating these patients, we want to make sure they are protected. We have spoken to Senator McCain's staff and, apparently, they think the language is acceptable. I think in the long run this is going to go a long way. I have spoken to Senator Frist who, as many of you know, is a heart surgeon. He does volunteer work in clinics, both overseas and also here in the United States. He doesn't get paid for these services. Yet, he has to maintain medical malpractice insurance. He pays premiums out of his pocket each year so that if he gets sued, he is covered. This is probably the only amendment in this entire bill that actually will lower--it will only lower it slightly--the cost of health insurance. It would help lower both the cost of medical malpractice premiums and eventually the cost of coverage premiums for consumers as well. Mr. President, I don't know if anybody is going to oppose this amendment. I can't understand why they would. I would be more than happy to engage in a debate on this if anybody has a problem with it. I yield the floor at this time.

Mr. ENSIGN

Mr. ENSIGN. Mr. President, may I inquire as to the amount of time left on our side?

Mr. ENSIGN. Mr. President, I want to start by talking on this amendment, and then I want to conclude my remarks by speaking on the underlying bill in general. Deductibility for the self-employed is absolutely critical to anybody who has ever been in business on their own. My brother-in-law is a tile contractor in Las Vegas, NV. When he first started his business, he was in his late twenties. I remember talking to him about having health insurance. He said: I'm young. I'm healthy. I'm not going to get sick. He said: Besides, I really can't afford it. When I am looking at my monthly expenses, I look around, and it just doesn't pencil out for me. That is the kind of person we want to be covered under health insurance. The way health insurance works is if we spread the risk out, especially amongst the younger, healthier people, it costs all of us less money. So what we want to do is have people, like my brother-in- law, to buy health insurance. If we give the self-employed--which he is--full deductibility, it will make financial sense for more of them to purchase health insurance. It does not matter what vehicle--whether it is a tax plan or whether it is the Patients' Bill of Rights--we use to provide this deductibility. We have been talking about it for years, and we ought to finally make this policy a reality. Let me shift now and talk about the Patients' Bill of Rights. If you listen to the media, it almost sounds like the Democrats and Senator McCain are for a Patients' Bill of Rights and the Republicans are against one. That is not so. Almost everybody in this Chamber is for a Patients' Bill of Rights. As a matter of fact, the two major competing bills are 90 percent the same. Another 5 percent of each bill I think we agree, conceptually, on the language; and then on the other 5 percent there is true disagreement. Let me go through these divisions just briefly. The 90 percent where there is agreement has to do with things that we have heard about for the last several years that most of the States have already enacted. They have to do with emergency room access, no gag clauses for doctors, and allowing OB/GYNs and pediatricians to be considered primary care doctors. There is a whole list of things that both bills address and to which everybody agrees. The place where we have conceptual agreement--and I want to applaud Senator McCain for his willingness to work with us to try to come up with some language that will work for both sides--deals with, how are we actually going to protect employers from getting sued? Everybody I have heard from agrees that the employer should not be sued for this very simple fact: If you allow employers to be sued, they will look at this risk and say that they cannot afford it. Consequently, they will give their employees a voucher, calculating, for example, that it would cost $5,000 to $6,000 per employee per year for health coverage, and the employee will go out and buy their own health insurance. However, a lot of employees who are young and healthy will say: I'm healthy. I'm young. I would rather have this $6,000 to do something else with. As a result, those people will not have health insurance. And because those people are no longer in the overall insurance pool, everybody else's insurance rates will go up. Consequently, when those insurance rates go up, more people become uninsured because they can no longer afford coverage. One of the biggest problems we have in this country is the number of uninsured. This is the reason why it is so critical that we come together on this language to protect the employers. As I have learned--I was only in the House of Representatives for 4 years; and I have only been in the Senate for 6 months--the devil truly is in the details. When we are looking at the legal language, lawyers from one side can say the employers are protected, and the lawyers for the employer groups can say absolutely under the McCain-Kennedy bill they are not protected. A good lawyer, I think, can take the language in the McCain-Kennedy bill and absolutely get lawsuits against employers. That is why it is important for us, if we agree on the concept--which we seem to do--to come together with tight language that does not allow employers to be sued, especially if they are not involved in actually denying health care that they did not pay for in the first place. The other thing that I think is conceptual language that we agree on is that the appeals process is important for us to go through first. All of us agree this whole thing is about getting health care to the patient. Do we really want just access to a courtroom? Or do we want access to the emergency room and to the hospital and to health care providers? The appeals process is set up with a short time frame to guarantee that people will get the health care they have paid for in a timely fashion. That is really what this whole debate should be about--getting people the health care they deserve. We all know the movie, ``As Good As It Gets,'' where everybody cheered when the HMOs--I cannot use the language the way they described the HMOs--were described in not so favorable terms when they denied health care to the child that had asthma. That is a perfect example of what we are trying to fix with a Patients' Bill of Rights--greater access to quality health care. The appeals process will help us get children like that the health care they need. That is really a lot of what this debate is supposed to be about. On the 5 percent where we truly have disagreement is where we are going to have to sit down and compromise. This has to do with whether a person goes to State court or goes to Federal court with their health care liability suit. Neither side is going to get, I think, everything they want in this. We are going to have to come down to some kind of compromise. The second area of major disagreement deals with the liability provisions. Basically, it has to do with whether we are going to cap punitive damages and noneconomic damages. Are we going to put some reasonable limits on some of the liability provisions so we do not end up with these outrageous lawsuits? The two sides are going to have to come together and realize that a compromise is going to be the only way we can get a bill passed through the Senate, passed through the House, and signed into law by the President. Otherwise, we are just making political hay. Otherwise, all this exercise is about is: Can we use this in the 2002 elections? If that is what we are about, then I don't believe we should be here as United States Senators. We should be here to do the right thing for the American people. We were sent here by our individual States to stand up and do what is right. If people want to make political hay, then they can do that on a purely individual level. If they truly want to get a good Patients' Bill of Rights passed, then we have to sit down behind the scenes where the cameras aren't, where the news media isn't, and say: Let's compromise on some of these things that we disagree on and come up with language that protects employers, makes sure the appeals process is exhausted, and then shake hands on the parts we agree to. If we can do those procedures, I truly believe this Senate will pass a very good Patients' Bill of Rights which will help the type of kid that was in ``As Good As It Gets'' get the kind of health care he or she deserves. I thank the sponsor of the amendment for helping out the self- employed. I think it is an important amendment that I will be voting for and encourage all of the rest of the Senators to do the same. I look forward to working with the authors of the Patients' Bill of Rights, Senators Edwards, Kennedy, and McCain. Hopefully, we can come up with some compromise on the rest of this language. I yield the floor.

Mr. ENSIGN

Mr. ENSIGN. Madam President, I was listening to the debate and wanted to come down and offer a few thoughts. First of all, I have heard all the people talking about their days in Scouting. I wish I could add to those voices except I was not necessarily the cleanest cut kid in the world. As a matter of fact, I tried Scouting for only about 3 weeks. So I cannot join the chorus of those who were Eagle Scouts and made it on to the U.S. Senate. But scouting was something that I witnessed growing up. I saw a lot of people whose lives it transformed. Perhaps if I had stayed with Scouting my life would have been transformed a little earlier than it otherwise was. I have seen many children over the years whose lives have been influenced so greatly by Scouting. The Eagle Scout ceremonies I have gone to honor incredible people. They honor not only the Scouts themselves, but the leaders of the Scout troops who dedicate so many hours to young people and their development. These are the types of activities we should be encouraging. But I also wanted to add a few words. We do not want to be gay bashing around this Chamber. At least I do not believe we should be. People have the right to live their lives as they choose to live their lives. But I believe in freedom in America. I believe, for instance, if there was a group of people who believe in a gay lifestyle, they may require that same lifestyle or belief of their leadership. I believe that group should be allowed all of its constitutional rights; the right to require that their leaders have their same beliefs. This is, to me, a matter of freedom. The Boy Scouts have chosen what they want and what they determine as their organization. In America, we should be able to have these types of organizations. As a matter of fact, there is a group called the Royal Rangers. For those who are not familiar with the Royal Rangers, they are Christian organizations who believe that the Boy Scouts have become too secularized. So the Royal Rangers was formed to bring more of a Christian perspective to scouting because they did not feel that the Boy Scouts were meeting their religious needs. The point of that is they did not try to change the Boy Scouts. They respected the Boy Scouts' right to believe and to operate how they were operating. But instead of trying to destroy the Boy Scouts or try to hurt the Boy Scouts, they formed their own organization based on their own beliefs. That is the direction we should be going in this country. If people want to form their own organization, they can form it based on their own beliefs--that really is what America is supposed to be about. This amendment here simply says that a group that has a certain belief system, and has proven that their belief system leads to good citizenship, then we should be encouraging this group. We should not be discriminating against those groups going into our public school systems. I hope we can get a bipartisan vote in favor of this amendment. I believe that in the long run this amendment will be good for America because I believe the Boy Scouts are good for America. I yield the floor.

Mr. ENSIGN

Mr. ENSIGN. Madam President, many colleagues will come to the floor today and state that federally funded vouchers will ruin our public schools. I say flatly that this is wrong. This program does not take money away from any school. This amendment creates a demonstration program and authorizes new funding to pay for it. But, even if the Gregg amendment did not provide new funding, vouchers would not take money away from public schools. It a student uses a voucher to go to a private school, a public school no longer has to pay the cost of educating that student. And, in most cases, a voucher is given for less money than the average per pupil expenditure in the school district, thus saving the school money. Under the Gregg amendment, the voucher program is voluntary. It permits 10 cities and 3 states to apply for grants to operate a low- income public/private choice program for students attending failing schools. This amendment ensures that children in our Nation's poorest neighborhoods, who attend our Nation's most struggling schools, have the opportunity to get out and attend a better, higher-performing school. These vouchers allow parents to choose the best academic setting for their child. In my opinion, the reason all of my colleagues should support this amendment is because it is going to help children succeed in school. None of us wants a child to be stuck in a school that has been identified as failing for 3 years. Rather, we want our children to be in an environment where they can not only learn but excel in what they are learning. Vouchers have made this achievement possible for many students who otherwise would not have succeeded. School choice, be it private or public, has been proven to drive reform in our Nation's schools. Why? Because competition breeds reform. How can a school be expected to rise above mediocrity if it is not challenged? In my opinion a lack of competition breeds mediocrity. If you look around us today, I will bet you that everyone here has sought out the best schools for our children. Many of us are fortunate, and can afford a move to a better school district, or can send our children to private schools. I bet that most lobbyists, including those for the National Education Association, in Washington, DC, send their children to private schools. However, many in our country are not as fortunate. How can we idly sit by and abandon children in failing schools? This amendment will help those who cannot afford to send their children to private schools and cannot afford to move to a better school district. A study by Harvard researchers found that students who stayed in a voucher program for 3 or 4 years registered reading scores 3 to 5 percentile points higher and math scores 5 to 11 percentile points higher than a public school control group. A study on the Milwaukee choice program found that scholarship recipients experience a 1.5 to 2.3 percentile point gain over their peers in math for each year spent in a private school. Studies of private school choice programs in both Washington, DC, and Dayton, OH, found that black students who switched from public to private schools experienced an overall test score gain of 3.3 percentile points the first year, and 6.3 percentile points the second year over the control group. If this trend continues, the researchers contend that the achievement gap in reading and math between white and minority students would be eliminated. Isn't this what everyone here wants: to have all students excel? Do we not want our nation's students to prove that they can do as well or better than their counterparts worldwide? Test results released last year on the National Assessment for Educational Progress, and the International Math and Science Survey, showed that children who attend private and parochial schools scored higher than their counterparts in public school. Students in private and parochial schools did better. It is as simple as that. Why then would we not allow low-income students who attend chronically failing schools a chance to attend schools that have proven time and again that they can and do increase student achievement? Parents strongly support public school choice; and yes, even vouchers. A recent poll done by the National Education Association (NEA) found that 63 percent of parents polled favored legislation that would provide parents with tuition vouchers of $1,500 a year to send their children to any public, private, or charter school. I ask my colleagues, what parent would not want to be given a chance to send their child to a better, higher performing school? I have had conversations with public school superintendents, principals, and teachers who support vouchers. Yes, they support them. But, they are afraid of stating their support publicly because of the teacher unions. In fact, public school teachers send their own children to private schools at a higher rate than the general population. In Cleveland 39.7 percent of the public-school teachers living in the city sent at least one child to a private school. The average rate for nonteacher families was 25.2 percent. Here in Washington, DC, 28.2 percent of public school teachers send their children to private schools versus 19.7 percent of the general population. And finally, in Boston, 44.6 percent of public teachers send their children to private schools, versus 28.9 percent of all parents. It is not surprising that private organizations have initiated private school voucher programs and have had an unbelievable response. For example, the Children's Scholarship Fund offered 40,000 vouchers to similar students in cities across the United States. They received 1.25 million applicants. In Baltimore alone 67 percent of the eligible student pool applied for one of these vouchers. One of the reasons for this response is simple: parents are seeing the results that private schools have on test results and want their child to receive that same education. However, the results from introducing vouchers in areas where public schools are failing our students are not only academic. Yes, test results have increased, but so have high school completion rates, college attendance rates, and parental satisfaction. In addition, students in private schools are better disciplined and feel safer in their school. The Federal Government already provides a type of voucher to low- to middle-income students with the Pell grant program. Pell grants are given to students to attend any college or university that they want; be it public, private, or parochial. The Federal Government has supported this, and as a result the American higher education system is the envy of the world. How is a Pell grant any different than a voucher for elementary or secondary school? I am not here today to attack our public schools. In most places, including my own state, our public schools are doing an outstanding job. But, in some places they are not. Some schools are simply failing to educate the children who attend them. Vouchers not only help students leave these failing schools, but also help to foster change in the schools they are leaving. Principals, teachers and superintendents do not want to have failing schools. They want their school to produce smart and productive children. In fact, with the introduction of the A+ program in Florida, failing schools did improve. Schools given a D or F improved by implementing longer school days, providing additional teacher training and professional development opportunities, and creating special programs to improve math and reading skills for at-risk students. This is what I want to see happening nationwide. I want to see our public schools improve; to prove to us that they can teach our students just as well, if not better, than private schools. I believe that this legislation provides the assistance that many public schools need to foster these changes and improvements. But I also believe that this amendment is a necessary part of this legislation. This amendment ensures that students in school districts that are struggling to improve student achievement will be given a chance to attend a school that does improve achievement. I hope that my colleagues will support this amendment, and support children in failing schools receive a better education.

Mr. ENSIGN. Madam President, 10, 15 minutes, somewhere in there.

Mr. ENSIGN

Mr. ENSIGN. There is a bill at the desk due for its second reading.

Mr. ENSIGN. I object to further proceedings on this matter at this time.

Mr. ENSIGN

Mr. ENSIGN. I ask unanimous consent that committees be permitted to file committee-reported legislative and executive items on Friday, June 1, 2001, between the hours of 10 a.m. and 12 noon.

Mr. ENSIGN

Mr. ENSIGN. Mr. President, I ask that there now be a period of morning business, with Senators allowed to speak for up to 10 minutes each.

Mr. ENSIGN

Mr. ENSIGN. I move to reconsider the vote by which the conference report was agreed to.

Mr. ENSIGN

Mr. ENSIGN. I ask unanimous consent that when the Senate completes its business today, it adjourn under the provisions of H. Con. Res. 146 until the hour of 12 noon on Tuesday, June 5, 2001. I further ask unanimous consent that on Tuesday, immediately following the prayer and the pledge, the Journal of proceedings be approved to date, the morning hour be deemed expired, the time for the two leaders be reserved for their use later in the day, and there be a period for morning business until 12:30 p.m., with Members recognized to speak for up to 10 minutes each.

Mr. ENSIGN. I further ask unanimous consent that the Senate stand in recess between the hours of 12:30 and 2:15 p.m. on Tuesday for the weekly party conferences to meet.

Mr. ENSIGN

Mr. ENSIGN. For the information of all Senators, the Senate will reconvene on Tuesday, June 5, at 12 noon and recess for the weekly policy luncheons from 12:30 to 2:15 p.m. I wish everyone a good Memorial Day and congratulate the American people on the victory of a tax cut that will have positive effects on the economy.

Mr. ENSIGN

Mr. ENSIGN. Mr. President, I now ask the Senate stand in adjournment under the provisions of H. Con. Res. 146 following the remarks of Senators Brownback, Rockefeller, and Torricelli.

Mr. ENSIGN

Mr. ENSIGN. I ask unanimous consent that the Senate proceed to the immediate consideration of H. Con. Res. 146, the adjournment resolution, which is at the desk.

Mr. ENSIGN. Mr. President, I ask unanimous consent the concurrent resolution be agreed to and the motion to reconsider by laid upon the table.

Mr. ENSIGN

Mr. ENSIGN. In executive session, I ask unanimous consent that the Senate proceed to the consideration of the following nominations en bloc: Calendar Nos. 58, 61, 85, 155, 158; and that the Finance Committee be discharged from further consideration of Peter Allgeier, PN 270, and Linnet Deily, PN 347, and the Senate proceed to their immediate consideration; I also ask unanimous consent that the HELP Committee be discharged of the nomination of Arthur Rosenfeld, PN 469, and the Senate proceed to its consideration, as well. I further ask unanimous consent that the nominations be confirmed, the motions to reconsider be laid upon the table, any statements related to the nominations be printed in the Record, the President be immediately notified of the Senate's action, and the Senate then return to legislative session.

Mr. ENSIGN

Mr. ENSIGN. I ask unanimous consent that notwithstanding the upcoming recess or adjournment of the Senate, the President of the Senate, the President of the Senate pro tempore, and the majority and minority leaders be authorized to make appointments to commissions, boards, conferences, or interparliamentary conferences authorized by law, by concurrent action of the two Houses, or by order of the Senate.