Michael Enzi

Mr. ENZI

Mr. ENZI. Mr. President, today the Senate will resume consideration of H.R. 2660, the Labor, HHS, and Education appropriations bill. The chairman and ranking member will be here this afternoon throughout the consideration of the bill. It had been the hope of the leader to schedule votes this evening on amendments to the Labor-HHS bill. However, it is our understanding there will be an objection from the other side of the aisle for any unanimous consent request that sets a vote for today. That objection extends to setting votes on executive nominations as well. Therefore, on behalf of the leader, I announce that no rollcall votes will occur during today's session. We will continue to work throughout today to resolve the remaining issues on the Labor-HHS appropriations bill, and we hope additional progress can be made on the bill.

Mr. ENZI

Mr. ENZI. Madam President, since the issue of education has been brought up not only this morning but over the last couple of days, and I have listened to some wailing and comments, I feel compelled to talk a little bit about education myself. This week, many of my colleagues have come to the floor to criticize the President and criticize his administration and even to criticize the Senate leadership for their commitment to education. This is a discussion we need to have every time the Senate debates spending, but every time we seem to plow the same old ground. There are a lot of platitudes and myths out there that keep being regenerated. It takes a lot of time, and it keeps us from completing the spending bills. I hope I can say a few words that will put this debate in perspective. My colleagues have argued that the current appropriations bill cuts education spending and it underfunds the No Child Left Behind Act. They have suggested, and I suppose will continue to insist, that the bill contains harsh and unacceptable cuts to education and that it will somehow leave students and teachers on their own. That is simply not the case. The bill contains over $12 billion for title I programs, the third straight year it has had an increase. That is a total increase of 45 percent in title I funding since 2001. It also contains $1 billion for Reading First, close to $700 million for State education technology grants, and over $1.1 billion for impact aid programs. All told, this bill contains about $56 billion for education programs, over $12 billion more--$12 billion more--than fiscal year 2001. Yet my colleagues insist that this bill cuts too much from education. They argue it does not go far enough and that we must increase our Federal deficit by several billion dollars more to assure we have adequately funded education. Where are these disastrous cuts? How is a $12 billion increase in education funding over 4 years a harsh and unacceptable cut? Before I came to the Senate, I worked as an accountant. I learned how to balance accounts and read ledgers, and I am astounded to see my colleagues insisting that a $12 billion increase in education funding for over 4 years somehow constitutes a cut. I guess that kind of gives you an idea why we have some problems. It does not take special training in accounting to understand that a $3.9 billion increase in title I spending since 2002 is not a cut. Even without my training as an accountant, I am confident I would understand, as do families across America, that a $12 billion increase is not a cut, no matter how you frame it. It is interesting to see how many of my colleagues are now criticizing the President and this administration for recommending less than the authorized amounts--authorized amounts--under No Child Left Behind. Let me explain authorized amounts. We go through a three-step process around here. We have a budget process. A budget is something the President has to present to us by February so that we can approve a massive outline of how we are going to do spending by April 15. It is a Federal statute. It has been complied with twice in the history of the country. Once was this year. The other one was many decades ago. We did a budget. Then there is a second part to the process. It does not necessarily have to come after the first part. It can be contiguous or it can be before the first part. It is called authorization. Authorization is when a bill is drafted by the committee of jurisdiction, the ones that have the knowledge and the concentration and focus on the problem. They do an authorization bill. It is usually a 6-year authorization, and it is an authorization for the maximum amount that will be spent, not minimums. I hope everybody catches that. The authorization bill does not give minimums of spending, it gives the authorization for the maximums of spending, and that is the maximums of spending over a 6-year period. Taking into account inflation, new programs, and issues such as those, nobody ever starts at the maximum and hopes they can sustain and increase that through the period of the authorization bill. That is not how it works. We always start at less than the authorized amount, and we build up to it over the 6-year period. Let's take a look at some history because I seem to recall that this body did the exact same thing last year when they were doing No Child Left Behind in this particular bill. My colleagues, of course--now they are in the minority--held all of the leadership positions at that time. They were in charge of doing this appropriations bill. They were the ones in charge of figuring out how much of that authorization could logically be tucked into this appropriations bill. If we look at the appropriations bill reported out of committee last year, we find that it contained $3.5 billion less than the authorized level in title I funding. Somehow the administration is now being taken to task for recommending more than the colleagues on the other side of the aisle who were in charge last year recommended, even though they both recommended less than the fully authorized amounts. That is not unusual, and it shows that both sides of the aisle understand how this works. Remember, we will find that the appropriations bill reported out of committee last year contained $3.5 billion less than the authorized level in title I funding, and the administration is now being taken to task for recommending more than the other side of the aisle did. I guess that should cut both ways. You cannot accuse the President of cutting education spending because he asked for less than the fully authorized amount when the other side of the aisle has done the same thing. Even though my colleagues approved a bill last year that left a gap between appropriations and the fully authorized amounts, it has now become unacceptable in their eyes to fund No Child Left Behind at less than the fully authorized levels. In Wyoming, we have a lot of expressions we use to describe that kind of behavior, but the only one I can probably use on the floor of the Senate is doubletalk. I also want to point out that we never made it to an Education appropriations bill last year. We never passed a budget last year. That was when the other side of the aisle was in the leadership. And it took us until this spring, under our current leadership, to pass any increase in title I and the No Child Left Behind Act. I think that bears a little bit of extra description. Yes, I have held town meetings in Wyoming, and I have had to answer to education, and I have had to explain to them that a year ago we could not even pass a budget. A year ago, we did not even take up Education appropriations. Yes, we had this new authorization bill for No Child Left Behind, but, Madam President, do you know what. You cannot appropriate any additional dollars if you do not do an appropriations bill, and that appropriations bill never got done under the leadership last year. There was not a dime of increase passed last year. When Senator Frist became the majority leader this year, we went to work on getting the appropriations done, and with the cooperation across the aisle, we were able to get nine bills approved in 8 days. I think that is about how it was. That was the first funding for education under No Child Left Behind. When did that happen? The President signed it into law on February 26, and the bureaucratic machine moved faster than it ever has. By March 26, the checks went out to the States. Miraculous. But school in this country ends at the end of May or the middle of June at the latest. So on March 26, the mail went out. Eventually the States got those checks. Then the States had to do the allocation out to the school districts. I do not imagine they got that done in one day. I do not imagine they got that done in a month. So now we are talking about the end of April, and school is going to end the next month. What kind of education funding is that? So nobody got an increase for last year. They had to operate on the budget that they had from the year before. We never passed a budget. It took us until this spring, under our current leadership, to pass any increases in title I and the No Child Left Behind Act. The current Senate leadership can point to two separate increases in funding for education compared to last year when this body did not approve any increases in education funding. If this issue is such a priority for my colleagues, why did we adjourn last fall without passing an additional dollar for education? As I am sure my colleagues will recall, we left Washington last year without a single dime more for education than was available the year before. Incidentally, because of this delay, when the President made his budget recommendation to Congress--that is that first step of the process I mentioned--we were still working on fiscal year 2003 appropriations; we had not finished them. Those appropriations should have been the base for the President's recommendation, but we require him to have that in by February, and he did. That is the only way we can get our work done by April. He complied. So what figures could the President use? The present administration is being blamed for this body's failure to pass an appropriations bill last fall, and that seems preposterous to me. Of course, he had to base his budget on what we had done for 2002, and he did, and he made substantial increases. I want to mention just a little bit about the budget process we went through, too. During the budget process, we had an interminable number of votes attempting to do unprecedented earmarking. Well, that is not really what it was designed to do. What it was designed to do was to make it look as if a majority of the Senators who were doing responsible budgeting were actually voting against key programs that are normally not outlined specifically with earmarking. So the responsible Senators did the right thing and voted against what looked like voting against kids, and that is exactly politically how it was designed to be. But they did it so that we could have a responsible budget. Now here we go again with the interminable number of votes I am sure we will be expected to take that will earmark an increase and change, and all of them are outside of the budget process that has already been approved. Fortunately, I am sure the people across America are educated enough--I am sure our system has done that--to see through what is happening. We all know the Senate's budget process and we know the President is required to make that recommendation in February. When this body does not pass the appropriations bill that normally serves as the basis for the President's recommendation, it is unconscionable to then criticize the President for his recommendations. The bottom line is that this body passed last year's appropriations bill 6 months late, and only then under the current Senate leadership. A better comparison would be the President's recommendations on the fiscal year 2002 appropriations, which were the only figures available at the time the President submitted his recommendation to Congress. Clearly, this discussion is not about funding levels, it is about politics. This body has too much important business before it to waste time playing politics, particularly playing politics on education. There are students and teachers depending on this body to give them additional funding, and that is what my colleagues on the Appropriations Committee have done. Let us get the business of the Senate completed so these students and teachers can get what they need this year, rather than another day, another week, or another month of debate that could once again push the dollars into the following year. Let us get our work done timely. Let us give some consideration to what kind of amendments are being offered. Let us put the politics behind for our kids and let us get this bill done.

Mr. ENZI. Madam President, as chairman of the Subcommittee on Employment, Safety, and Training of the Health, Education, Labor, and Pensions Committee, I have enjoyed working with the Senator from Washington, the ranking member. I appreciate all of her efforts on the Workforce Investment Act, and, of course, the ranking member of the full committee, Senator Kennedy, who has been working with us, and his staff who have been working in great detail to be sure we have a Workforce Investment Act we can pass this year so that we can make sure the money is funneled through the proper channels and the most people are taken care of for the money. It is up for reauthorization this year. It is particularly critical that we do it. It is landmark legislation that is a priority for both myself and my colleague from Washington. I am pleased that they worked so closely on getting this bipartisan bill to this point. I think we will be able to finish it and get it marked up sometime this month. During the reauthorization process, we have considered how resources are most effectively used for the people who need it most. There is no problem for anybody to see that there is a problem. Having said that, I need to explain that I will be opposing this amendment. I want to carefully explain that. I am not questioning the importance of job training in these difficult economic times, nor am I questioning the importance of the Workforce Investment Act as our Federal workforce development system. But I am opposing the amendment that increases funding for job training without appropriately offsetting such increased amount. At the appropriate time, I will be taking that action. The way this appears to be offset but really isn't is through what we use rather liberally in some of the amendments, even a couple pending before us now, which is advance funding. That means that we steal a little bit out of another year's appropriations so we can spend it in this year's appropriations, and, oddly enough, spend it in that year's appropriations, too. You can see if we get into a process of spending money twice, we are going to be in some real trouble. This amendment increases funding that is not targeted to individuals who are in most need of job training and assistance. Of the $801 million increase in funds, only $159 million will go to the dislocated workers program--those individuals most in need of assistance to get back to work. So we are going to throw $801 million at the dislocated worker problem. Granted, there are uses for that money in those other areas, but we are going to do that to take care of $159 million that will go to dislocated worker programs. I don't think that is the right way for us to go about the process. The committee bill provides $5.1 billion for job training and employment services, and that is $164 million above the budget request. Of this total amount, the committee bill provides $1.43 billion for dislocated worker activities. We went through this during the process of the budget. We approved a budget. A change in the budget is what results in budget points of order. So the Labor-HHS bill must seek to address a lot of important needs, not the least of which is job training funding to ensure American workers are equipped to contribute and succeed in a changing economy. Of course, we always want that to happen faster than it is ever possible for it to happen. The committee bill does reduce job training funding from fiscal year 2003 by $85 million, but I explained in a speech just a little while ago how that comes about. The President had to submit his budget before he knew what we were going to do in 2003, because we did not do a budget for the previous year; and then we did not pass the appropriation. So what we were going to be doing was not known until after he had to submit a budget to us. So he had to base his budget on what had been done for 2002, and there was a significant increase from 2002. Again, we raised it a little bit, and did so again in the appropriation. So unless that can be offset, I am going to have to reluctantly oppose the amendment. Again, I don't think we ought to spend $801 million trying to solve a $159-million problem. I ask my colleagues to oppose this amendment.

Mr. ENZI

Mr. ENZI. Mr. President, I am a little confused because for the last hour I have been listening to debate on an overtime amendment and, as far as I can tell, an overtime amendment has not been laid down. But it is my understanding that when it is, what it will do is keep the Secretary of Labor from spending a single dollar to review the proposed rule dealing with overtime. Now, the process we usually have is that agencies propose rules, they publish them, and then they get comments. As I understand it, there are 80,000 comments on this. Now, the job of the agency following that is to take those comments into consideration and, if worthy, put them into the rule. What we are saying is we don't want anybody to look at what the public is saying; we don't want anybody to say what the 80,000 people who took the time to comment said. We don't want to see if there can be a change to this rule. We think we can blast it best in its present form. So don't let the Secretary look at the comments. It is her job to look at them. It is her job to see if there needs to be a change to the proposed rule. All this amendment does is keep the Secretary from taking that action. I suppose it is no coincidence that we are possibly taking up this amendment right after the Labor Day weekend. Each year at this time, we honor those who work hard and help to strengthen the economies of our States and the country. The holiday cannot help but remind us of those workers this amendment purports to protect. Now we must carefully consider who is really helped and hurt by this amendment--this amendment that stops the Secretary of Labor from looking at 80,000 comments on ways to improve her rule. Most of us were able to spend a considerable amount of the August work period meeting with our constituents. At each town meeting I held, there was usually someone in attendance who was quite concerned about Government regulations. I was often told to rein in big Government, keep the rules and regulations simple, current, responsive, and make sure they make sense in today's everchanging workplace. This amendment that would keep the Secretary of Labor from looking at the 80,000 comments has the opposite approach. Instead of keeping the regulations simple and current, it would prohibit the Secretary of Labor from updating the rules exempting white-collar employees from the Fair Labor Standards Act overtime requirements. Simply put, it is an attempt to reject the new, turn back the clock, look to yesterday for the answer to tomorrow's problems. It is an approach that is doomed to failure before it is even applied, and I am opposed to it. There is no question that the workplace has dramatically changed during the last half century. It changed during the last half decade. The regulations governing white-collar exemptions, however, remain substantially the same as they were 50 years ago. The existing rule takes us back to a time when workers held titles such as ``straw boss,'' ``keypunch operator,'' ``legman,'' and other occupations that do not exist today. As our economy has evolved, new occupations have emerged that were not even contemplated when those regulations were written 50 years ago. A 1999 study by the General Accounting Office recommended that the Department of Labor ``comprehensively review current regulations and restructure white-collar exemptions to better accommodate today's workplace and to anticipate future workplace trends.'' That was the General Accounting Office telling the Department of Labor they needed to ``comprehensively review current regulations and restructure white- collar exemptions to better accommodate today's workplace and to anticipate future workplace trends.'' That is precisely what the Department of Labor's proposal to update and clarify the white-collar regulations will do. While the Department's proposal will update and clarify, this amendment will do neither. It keeps it from happening, it keeps the comments from being reviewed, and it will set the clock back to 1954 and try to force the square peg of the jobs of the 21st century into the round hole of the workplace of 50 years ago. I am a former shoe salesman, and I know how to tell when something will not fit. This amendment just will not fit. It is like trying to force a size 10 foot into a size 6 shoe. It will not fit no matter how hard you try. So let's be clear about what this amendment will do. The amendment that keeps the Secretary from looking at the 80,000 comments will undermine the Department of Labor's efforts to extend overtime protection to 1.3 million low-wage workers. Under the current rules, these 1954 rules, only those rare workers earning less than $8,060 a year are automatically protected for overtime. You have to make under $8,060 to automatically be protected. The administration's proposed rule would raise that threshold to $22,100. As a result, 20 percent of the lowest paid workers would be guaranteed overtime pay. The overtime provisions of the Fair Labor Standards Act were originally intended to protect lower income workers. The proposed rules would provide lower income workers with the protection they deserve. By undermining the administration's efforts to better protect lower income workers, whom will this amendment protect? The supporters of this amendment claim that an estimated 8 million workers will become ineligible for overtime under the proposed rules. However, this estimate is based on a study by the Economic Policy Institute, and I have to tell you, Mr. President, it looks as if it is riddled with errors. For example, the study includes in its calculations at least 18 percent of the workforce who work 35 hours or less a week. These part- time workers do not work more than 40 hours a week and, therefore, they do not receive overtime in the first place. The study also claims the proposed rule will deny overtime pay to white-collar employees earning more than $65,000 a year. However, not all employees earning over $65,000 are exempt under the proposed rule-- only those performing office or nonmanual work or one or more exempt duties. This means that workers such as police officers, firefighters, plumbers, teamsters, carpenters, and electricians will not lose their overtime pay. Of course, under union contracts, that is already stipulated regardless of what kind of rule there is. The Department of Labor does acknowledge the possibility that 644,000 highly educated workers making over $65,000 a year might lose their overtime. It rings in 1.3 million making under $22,100, and then there is the possibility that 644,000 making over $65,000 a year would lose their overtime. Supporters of this amendment claim the proposed rules will strip overtime pay for first responders and nurses. If we strip the rhetoric from the reality, we will find there will be virtually no change in status for the first responders and nurses under the proposal. Under both the current and the proposed regulations, only registered nurses are exempt from overtime pay. Again, what this amendment does is keep the Secretary of Labor from looking at the 80,000 comments on the proposed rule to see if the rule ought to be changed. There is not anything in the appropriations bill that automatically puts into place any rule, but it will keep her from looking at the comments that have been sent in. Whom will this amendment protect if not lower income workers, first responders, nurses, or millions of other working Americans? The antiquated and confusing white-collar exemptions have created a windfall for trial lawyers. Ambiguities and outdated terms have generated significant confusion regarding which employees are exempt from overtime requirements. The confusion has generated significant litigation and overtime pay awards for highly paid white-collar employees. Wage and hour cases now exceed discrimination suits as the leading type of employment law class action. The amendment will not preserve overtime for millions of working Americans. This amendment will not help employers and employees clearly and fairly determine who is entitled to overtime. The only clear winners of this amendment will be the people filling in their time from chasing personal injuries. It is a sideline. So the trial lawyers will continue to benefit from the current state of this confusion. Businesses need to know the rules. The rules need to be interpretable by the average small businessman. I really object to the inference that the only reason anybody would pay overtime is that the Federal Government said you had to. That is not true. That is not the way it works, and I can tell you that even if the Federal Government says you have to, there will still be one-tenth of 1 percent of the people who will not comply. But for the most part, 99.9 percent of the people do comply and want to comply--not only will comply but will exceed complying in a number of areas. We are spending taxpayers' dollars sorting through the court cases that could be solved with clarity. We are talking about taxpayer money being spent to review the 80,000 comments. I think that is entirely necessary. I expect any agency that has a rule to review the comments of the rule and to make changes based on the comments. The Department of Labor has received and is currently reviewing those 80,000 comments to the proposed regulation. We should allow that regulatory process to continue and give the Department a chance to complete its review of the proposed rules. Once the review is completed, the Department will align the white collar regulations with the realities of the 21st century workplace and what they have learned from the comments, should they get to read them, and the intent of the Fair Labor Standards Act. I want to assure my colleagues that if the rule has gone astray, when it is finished we put into place something called the Congressional Review Act. That is where we get to jerk these agencies back to reality if they do not follow the proper procedures, if they do not pay attention to what is being said. We have used that before, and that would be the appropriate place for us to jerk the Department of Labor back to reality if they do not pay attention to the comments that are coming in. I urge my colleagues to oppose this amendment, allow those comments to be read, check and see if there are going to be changes to the overtime rules, and see if it does not clarify it for the workers and the employers so that there will be less conflict. Time spent in court does not benefit anybody but the trial lawyer. There is no point in having that done if we can clarify things so everybody understands what the rules are, and we raise that terrible $8,000 up to $22,100 so that we are covering more people for overtime. I do ask that the amendment be defeated when it is put in, should it be put in. I yield the floor.

Mr ENZI

Mr ENZI. Mr. President, the U.S. economy is still the greatest economy in the world and our credit markets have helped to make that happen. During the past decade, our credit markets have taken advantage of technology and innovation in order to provide more consumers with more timely credit approvals and with more financing options. Nowhere is there a better example of this than our housing market. Today, the time it takes to review a mortgage application and approve it has been cut drastically by our financial institutions. Consumers find that they have a wide array of financing options they can choose from to secure the purchase of a home--from fixed-rated loans to variable-rate loans, or even adjustable rate loans. While the wide variety of choices has helped more families to purchase homes in the past decade, even more families could buy homes if they understood how the credit market works. Although there are many pluses to the expansion of the availability of credit there is also a downside. Individuals may get in over their heads when too much credit is made available to them. In addition, identity theft is a bigger problem than it has been before. Consumers need to educate themselves about the potential problems they might face and how to avoid them. Increasing consumer financial literacy is not just about providing information, however, it is about giving families the proper informational tools so that they can put their financial affairs in order. Today, my friend and colleague, Senator Stabenow and I are introducing the ``Financial Literacy Community Outreach Act'' to help to bring together all of the federal government's financial literacy programs under one roof. The Department of Treasury, the Federal Deposit Insurance Corporation, the Federal Trade Commission, the Securities and Exchange Commission, the Department of Housing and Urban Development, and the Department of Labor are just a few of the many federal agencies that have established excellent financial literacy programs and initiatives. These programs cover a wide variety of topics ranging from how to save, spend, and invest to programs that provide guidance on how to prepare for retirement, select a pension plan, or purchase a home. Still others help individuals avoid the threat of identity theft. Unfortunately, consumers attempting to find financial literacy information from the federal government may find that information scattered throughout the government. Our bill would provide a one-stop- shop where consumers could find the appropriate financial literacy programs for their needs. A single web site and a toll-free number will go a long way toward bringing this vital information to the individuals and families who need it. In addition, the bill establishes the Financial Literacy Commission, a body comprised of the heads of the federal agencies with financial literacy programs. The Commission will ensure that the federal government has a cohesive and coordinated federal policy on financial literacy as it provides Congress with vital information on what can be improved in our government's financial literacy outreach efforts. In addition to the web site and the toll-free number, the Commission will highlight successful public/private partnerships already existing around the country. One such partnership is thriving in my home state of Wyoming. The Wyoming Partners in HomeBuyer Education, led by the Wyoming Community Development Authority, includes local banks, real estate agents, the University of Wyoming, the U.S. Department of Agriculture, the U.S. Department of Housing and Urban Development, and Fannie Mae, in the effort to provide distance learning to potential home-buyers through the use of compressed video technology. This training program is perfect for a state like Wyoming in that home-buyers in rural communities have access to all of the essential elements of the home buying experience just like their urban community counterparts. To date, more than 3,000 individuals have completed the training program and it has led to making the home-buying process easier and more understandable for rural and urban families alike. I strongly believe that this bill will help millions of families find the appropriate financial literacy materials they need to make better credit and investment decisions. It is my pleasure to be cosponsoring this bill with Senator Stabenow because of our shared concern about making financial literacy available to more families across the country. In addition, I would like to recognize Senator Sarbanes' tremendous effort to focus our attention on financial literacy, both when he was Chairman of the Committee on Banking, Housing and Urban Affairs last year and as Ranking Member of the Committee this year. He has been an extraordinary advocate for this important issue. Chairman Shelby of the Committee has also recognized the importance of this issue, as just this week, it was the subject of a hearing by the Committee. I look forward to working with my colleagues on the Committee and in the full Senate to ensure that we expand and build upon the government's present financial literacy efforts to help individuals and families increase their knowledge of and access to our credit and investment markets.

Mr. ENZI

Mr. ENZI. Mr. President, I rise today to introduce a bill that will help bring about a more reliable system of medical justice for all Americans. Earlier this month, we had a robust debate on a critical issue-- medical liability reform. Though a majority of the Members of this body wanted to begin working to pass the bill, we didn't have the 60 Senators necessary to begin the real work on the legislation. I co-sponsored that bill, the Patients First Act, and I still support it. Passing the Patients First Act would be an important short-term step to controlling the excesses in our legal system that have sent medical liability insurance premiums through the roof. Skyrocketing premiums are forcing doctors to move their practices to States with better legal environments and lower insurance premiums. This is endangering the availability of critical healthcare services in many areas of Wyoming and other states. Throughout our debate, I heard many of my colleagues say that they wanted to work on this issue, but that they simply could not support the bill as it stood. We heard that the bill approaches the issue from too narrow of a perspective. We heard that the bill's caps on non- economic damages are unfair to patients, despite the fact that the bill places no limits whatsoever on a patient's right to recover all quantifiable economic damages. While I disagree with my colleagues who oppose the Patients First Act, I respect their opposition. I also trust that they sincerely want to help solve our Nation's medical liability and litigation crisis. During the debate this month, I noticed something interesting. While we argued the ``pros and cons'' of the bill, no one stood up to defend our current system of medical litigation. Now, we heard a lot about the caps, and the insurance industry, and we heard Senators say that ``Yes, there is a problem, but the bill before us won't solve it.'' One thing we didn't hear was a rousing defense of our medical litigation system. Even some of the lawyers in this body agreed that frivolous lawsuits are a problem and that our medical litigation system needs reform. Why didn't we hear anyone defend the merits of our current medical litigation system? It's because our system doesn't work. It simply doesn't work for patients or for healthcare providers. Compensation to patients injured by healthcare errors is neither prompt nor fair. The randomness and delay associated with medical litigation does not contribute to timely, reasonable compensation for most injured patients. Some injured patients get huge jury awards, while many others get nothing at all. Let's look at the facts. In 1991, a group of researchers published a study in the New England Journal of Medicine. The study, known as the Harvard Medical Practice Study, was the basis for the Institute of Medicine's estimate that nearly 100,000 people die every year from healthcare errors. As part of their study, the researchers reviewed the medical records of a random sample of more than 31,000 patients in New York State. They matched those records with statewide data on medical malpractice claims. The researchers found that nearly 30 percent of injuries caused by medical negligence resulted in temporary disability, permanent disability or death. However, less than 2 percent of those who were injured by medical negligence filed a claim. These figures suggest that most people who suffer negligent injuries don't receive any compensation. When a patient does decide to litigate, only a few recover anything. Only one of every ten medical malpractice cases actually goes to trial, and of those cases, plaintiffs win less than one of every five. In addition, patients who file suit and are ultimately successful must wait a long time for their compensation--the average length of a medical malpractice action filed in state court is about 30 months. While the vast majority of malpractice cases that go to trial are settled before the court hands down a verdict, the settlements even then don't guarantee that patients are compensated fairly, particularly after legal fees are subtracted. Research shows that for every dollar paid in malpractice insurance premiums, about 40 cents in compensation is actually paid to the plaintiff--the rest goes for legal fees, court costs, and other administrative expenditures. To sum up: most patients injured by negligence don't file claims or receive compensation. Few of those that do file claims and go to court recover anything, and those who are successful wait a long time for their compensation. And those who settle out of court end up receiving only 40 cents for every dollar that healthcare providers pay in liability insurance premiums. It's hard to say that our medical litigation system does right by patients in light of those facts. Unfortunately, our system doesn't work for healthcare providers either. Earlier, I spoke about those Harvard researchers who found that fewer than 2 percent of those who were injured by medical negligence even filed a claim. As they reviewed the medical records for their study, the researchers also found another interesting fact--most of the providers against whom claims were eventually filed were not negligent at all. That's right--most providers who were sued had not committed a negligent act. In matching the records they reviewed to data on malpractice claims, the Harvard researchers found 47 actual malpractice claims. In only 8 of the 47 claims did they find evidence that medical malpractice had caused an injury. Even more amazingly, the physician reviewers found no evidence of any medical injury, negligent or not, in 26 of the 47 claims. However, 40 percent of these cases where they found no evidence of negligence nonetheless resulted in a payment by the provider. Basically, the researchers found no positive relationship between medical negligence and compensation. That study was based on 1984 data. The same group of researchers conducted another study in Colorado and Utah in 1992, and they found the same thing. As in the 1984 study, they found that only 3 percent of patients who suffered an injury as a result of negligence actually sued. And again, physician reviewers could not find negligence in most of the cases in which lawsuits were filed. Now, I assume that the patients who sued had either an adverse medical outcome, or at least an outcome that was less satisfactory than the patient expected. But our medical litigation system is not supposed to compensate patients for adverse outcomes or dissatisfaction--it's supposed to compensate patients who are victims of negligent behavior. It's supposed to be a deterrent to substandard medical care. It's not fair to doctors and hospitals that they must pay to defend against meritless lawsuits. Nor is it fair that they must face a choice between settling for a small sum, even if they aren't at fault, so that they avoid getting sucked into a whirlpool of our medical litigation system. It's not hard to understand why physicians and hospitals and their insurers want to stay out of court. When they lose, the decisions are increasingly resulting in mega-awards based on subjective ``non- economic'' damages. The number of awards exceeding $1 million grew by 50 percent between the periods of 1994-1996 and 1999-2000. Today, more than half of all jury awards exceed $1 million. As a result, when a patient suffers a bad outcome and sues, providers have an incentive to settle the case out of court, even if the provider isn't at fault. But is this how our medical litigation system is supposed to work--as a tool for shaking down our healthcare providers? Let's face it--our medical litigation system is broken. It doesn't work for patients or providers. Even worse, it replaces the trust in the provider-patient relationship with distrust. Then, when courts and juries render verdicts with huge awards that bear no relation to the conduct of the defendants, this destabilizes the insurance markets and sends premiums skyrocketing. This forces many physicians to curtail, move or drop their practices, leaving patients without access to necessary medical care. This is a particular problem in states like Wyoming, where we traditionally struggle with recruiting doctors and other healthcare providers. Perhaps we could live with this flawed system if litigation served to improve quality or safety, but it doesn't. Litigation discourages the exchange of critical information that could be used to improve the quality and safety of patient care. The constant threat of litigation also drives the inefficient, costly and even dangerous practice of ``defensive medicine.'' Yes, indeed, defensive medicine is dangerous. A recent study found that one of every 1200 children who receive a CAT scan may die later in life from radiation-induced cancer. Knowing this puts a physician faced with anxious parents in a difficult situation. Does the doctor use his or her professional judgment and tell the parents of a sick child not to worry, or does the doctor order the CAT scan and subject the child to radiation that is probably unnecessary, just to provide some protection against a possible lawsuit? We have a medical litigation system in which many patients who are hurt by negligent actions receive no compensation for their loss. Those who do receive compensation end up with about 40 cents of every premium dollar after legal fees and other costs are subtracted. And the likelihood and the outcomes of lawsuits and settlements bear little relation to whether or not a healthcare provider was at fault. We like to say that justice is blind. With respect to our medical litigation system, I would say that justice is absent and nowhere to be found. During our debate on the Patients First Act, I said that the current medical liability crisis and the shortcomings of our medical litigation system make it clear that it is time for a major change. I also said that regardless of how we voted, we all should work toward replacing the current medical tort liability scheme with a more reliable and predictable system of medical justice. Today, I am introducing a bill that would help achieve that goal. Most of us are familiar with the report on medical errors from the Institute of Medicine, also known as the IOM. Many of us may be less familiar with another report that the IOM published earlier this year. That report is called ``Fostering Rapid Advances in Healthcare: Learning from System Demonstrations.'' Our Secretary of Health and Human Services, Tommy Thompson, challenged the IOM to identify bold ideas that would challenge conventional thinking about some of the most vexing problems facing our healthcare system. In response, an IOM committee developed this report, which identified a set of demonstration projects that committee members felt would break new ground and yield a very high return-on-investment in terms of dollars and health. Medical liability was one of the areas upon which the IOM committee focused. The IOM suggested that the federal government should support demonstration projects in the states. These demonstrations should be based on ``replacing tort liability with a system of patient-centered and safety-focused non-judicial compensation.'' The bill I am introducing today is in the spirit of this IOM report. This bill, the Reliable Medical Justice Act, would authorize funding for States to create demonstration programs to test alternatives to current medical tort litigation. The funding to States under this bill would cover planning grants for developing proposals based on the models or other innovative ideas. Funding to States would also include the initial costs of getting the alternatives up and running. The Reliable Medical Justice Act would require participating states and the Federal Government to collaborate in continuous evaluations of the results of the alternatives as compared to traditional tort litigation. This way, all States and the federal government can learn from new approaches. By funding demonstration projects, I believe Congress could enable States to experiment with and learn from ideas that could provide long- term solutions to the current medical liability and litigation crisis. In introducing this bill, I wanted to provide some alternative ideas that would contribute to the debate. As a result, the bill describes three models to which states could look in designing their alternatives. For instance, a State could provide healthcare providers and organizations with immunity from lawsuits if they make a timely offer to compensate an injured patient for his or her actual net economic loss, plus a payment for pain and suffering if experts deem such a payment to be appropriate. This could give a healthcare provider who makes an honest mistake the chance to make amends financially with a patient, without the provider fearing that their honesty would land them in a lawsuit. Another idea would be for a state to set up classes of avoidable injuries and a schedule of compensation for them, and then establish an administrative board to resolve claims related to those injuries. A scientifically rigorous process of identifying preventable injuries and setting appropriate compensation would be preferable to the randomness of the current system. Still another option would be for a state to establish a special healthcare court for adjudicating medical malpractice cases. For this idea to work, the State would need to ensure that the presiding judges have expertise in and an understanding of healthcare, and allow them to make binding rulings on issues like causation compensation, and standards of care. We already have specialized courts for complicated issues like taxes and highly charged issues like substance abuse and domestic violence. With all the flaws in our current medical litigation system, perhaps we should consider special courts for the complex and emotional issue of medical malpractice. I believe one thing in our medical liability debate is absolutely clear--people are demanding change. Ten States have passed some liability reform in the past year, and another 17 have debated it. States are heeding this call for change, and Congress should support those efforts. My own State, Wyoming, had a lively legislative debate on medical liability reform this year, but we have a constitutional amendment that prohibits limits on the amounts that can be recovered through lawsuits. The Wyoming Senate considered a bill to amend our State's constitution to create a commission on healthcare errors. That commission would have had the power to review claims, decide if healthcare negligence had occurred, and determine the compensation for the death or injury according to a schedule or formula provided by law. However, the bill died in a tie vote on the Wyoming Senate floor. According to one of the sponsors of the bill, Senator Charlie Scott, one of the biggest obstacles to passage was the uncertainty surrounding this new idea. No one had any basis for knowing what a proper schedule or formula for compensation would be. No one knew how much the system might cost, or how much injured patients would recover compared to what they recover now. Senator Scott wrote me to say that federal support for finding answers to these questions might help the bill's sponsors sufficiently respond to the legitimate concerns of their fellow Wyoming legislators. We should be helping state legislators like Senator Scott develop thoughtful and innovative ideas such as the one he has proposed. That's one of the reasons I am offering this bill. Clearly, the American people and their elected representatives have identified the need to reform our current medical litigation system. The United States Senate did not vote to proceed to the Patients First Act this month, but no member of this body denied that there is a medical liability crisis, or that Congress needs to act sooner rather than later. While we continue that debate, we ought to lend a hand to States that are working to change their current medical litigation systems and to develop creative alternatives that could work much better for patients and providers. The States have been policy pioneers in many areas-- workers' compensation, welfare reform, and electricity de-regulation, to name three. Medical litigation should be the next item on the agenda of the laboratories of democracy that are our 50 States. No one questions the need to restore reliability to our medical justice system. But how do we begin the process? One way is to foster innovation by encouraging States to develop more rational and predictable methods for resolving healthcare injury claims. And that is what the Reliable Medical Justice Act aims to do. In the long run, we would all be better off with a more reliable system of medical justice than we have today. I know that my fellow Senators recognize this, so I hope my colleagues on both sides of the aisle will work with me on this legislation. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. ENZI. Mr. President, every morning, from the time we wake up to the time we turn out the lights and go to sleep, we all spend a good portion of our day in cyberspace. Probably without thinking, each time we head out to the internet, we broadcast some very specific information about our lives as we use our computers for email. Each time we use our cell phones we rely on a sense of privacy about the information we convey, which may not be present. And, when we use hand held devices to send quick messages back and forth to friends, coworkers and family we assume no one else is listening or receiving our information, which often includes social security numbers, family names and even credit card and pin numbers. Cyberspace is a high tech criminal's dream and it has helped contribute to the fastest growing crime in America--identity theft. Simply put, identity theft is the ability to impersonate someone else and steal their credit, their money and even their identity for their own use. Although the use of high-tech devices has certainly contributed to the proliferation of identity theft, many individuals have been victimized by simple criminals who have carefully picked through trash cans and mailboxes to find old receipts and social security numbers. Regardless of the medium through which the information is collected, identity theft is the result of criminals who have learned how to manipulate a growing network of information--some public, some private--and then use that data to their own advantage. The problem with identity theft is that it is not confined to one state. It affects Americans from every walk of life from coast to coast. Some Americans may discover that someone else has been using their social security number to obtain fraudulent employment, while others learn that people have been using fraudulent identification cards to obtain lines of credit and then leaving innocent victims to deal with the bills they left behind. People from small States like Wyoming are not immune to this new crime wave. Although there are only 493,000 people in Wyoming, we have the same rate of identity theft per capita as is present anywhere else in the United States. That is why we have to approach this issue from every angle, taking a systemic approach that includes prevention, enforcement and assistance to victims of identity theft. Today, we will take the first step with victim's assistance for this crime. I believe we have to provide some real options for our constituents who are trying to recover from the trauma that identity theft has caused in their lives. That is why my colleague from Washington and I are introducing legislation that will make it easier for victims to get the information they need to begin reversing the damage and lasting effects of this crime. Our bill, the Identity Theft Victim's Assistance Act of 2003, is very similar to a bill we offered last year that passed the Senate unanimously in November. I expect and hope for the same result this year since this is a growing problem and the need for action on this issue grows more urgent with each passing day. Our bill includes key provisions that would allow victims to work with businesses to obtain information related to cases of identity theft and then contact credit reporting agencies to block false information on credit reports. In drafting this legislation we worked with all of the stakeholders to ensure a balance between the needs of consumers and the needs of small businesses, banks and other credit agencies. The reintroduction of this bill is timely given the recent hearings in the Senate Banking and Commerce Committees and recent action by both the House and Administration. Earlier this month, the House Financial Services Subcommittee reported a bill called the Fair and Accurate Credit Transactions Act. Also known as the FACT Act, the bill includes a provision nearly identical to Section 4 of our bill. Section 4 of our bill requires consumer credit reporting agencies to block information that appears on a victim's credit report as a result of identity theft, provided the victim did not knowingly obtain goods, services or money as a result of the blocked transaction. Our provision, which amends the Fair Credit Reporting Act, was also addressed in a recent hearing before the Senate Banking Committee. On July 10, the Chairman of the Federal Trade Commission testified that ``blocking would mitigate the harm to consumers' credit record that can result from identity theft'' and recommended that this practice be codified. I am also encouraged by similar recommendations from the Treasury Department that would require credit reporting agencies to cease reporting allegedly fraudulent account information on consumer reports when the consumer submits a police report or similar document, unless there is a reason to believe the report is false. Providing consumers with the tools necessary to recover from identity theft is the first step in providing real relief to the hundreds of thousands of individuals whose lives have already been turned upside down by identity theft. I urge my colleagues to work with me as we move forward on this important issue and make progress on the reauthorization of critical legislation like the Fair Credit Reporting Act. We must take action this year before the crime of identity theft hurts the hundreds of thousands of working people and families who are expected to become victims this year.

Mr. ENZI

Mr. ENZI. Mr. President, every morning, from the time we wake up to the time we turn out the lights and go to sleep, we all spend a good portion of our day in cyberspace. Probably without thinking, each time we head out to the internet, we broadcast some very specific information about our lives as we use our computers for email. Each time we use our cell phones we rely on a sense of privacy about the information we convey, which may not be present. And, when we use hand held devices to send quick messages back and forth to friends, coworkers and family we assume no one else is listening or receiving our information, which often includes social security numbers, family names and even credit card and pin numbers. Cyberspace is a high tech criminal's dream and it has helped contribute to the fastest growing crime in America--identity theft. Simply put, identity theft is the ability to impersonate someone else and steal their credit, their money and even their identity for their own use. Although the use of high-tech devices has certainly contributed to the proliferation of identity theft, many individuals have been victimized by simple criminals who have carefully picked through trash cans and mailboxes to find old receipts and social security numbers. Regardless of the medium through which the information is collected, identity theft is the result of criminals who have learned how to manipulate a growing network of information--some public, some private--and then use that data to their own advantage. The problem with identity theft is that it is not confined to one state. It affects Americans from every walk of life from coast to coast. Some Americans may discover that someone else has been using their social security number to obtain fraudulent employment, while others learn that people have been using fraudulent identification cards to obtain lines of credit and then leaving innocent victims to deal with the bills they left behind. People from small States like Wyoming are not immune to this new crime wave. Although there are only 493,000 people in Wyoming, we have the same rate of identity theft per capita as is present anywhere else in the United States. That is why we have to approach this issue from every angle, taking a systemic approach that includes prevention, enforcement and assistance to victims of identity theft. Today, we will take the first step with victim's assistance for this crime. I believe we have to provide some real options for our constituents who are trying to recover from the trauma that identity theft has caused in their lives. That is why my colleague from Washington and I are introducing legislation that will make it easier for victims to get the information they need to begin reversing the damage and lasting effects of this crime. Our bill, the Identity Theft Victim's Assistance Act of 2003, is very similar to a bill we offered last year that passed the Senate unanimously in November. I expect and hope for the same result this year since this is a growing problem and the need for action on this issue grows more urgent with each passing day. Our bill includes key provisions that would allow victims to work with businesses to obtain information related to cases of identity theft and then contact credit reporting agencies to block false information on credit reports. In drafting this legislation we worked with all of the stakeholders to ensure a balance between the needs of consumers and the needs of small businesses, banks and other credit agencies. The reintroduction of this bill is timely given the recent hearings in the Senate Banking and Commerce Committees and recent action by both the House and Administration. Earlier this month, the House Financial Services Subcommittee reported a bill called the Fair and Accurate Credit Transactions Act. Also known as the FACT Act, the bill includes a provision nearly identical to Section 4 of our bill. Section 4 of our bill requires consumer credit reporting agencies to block information that appears on a victim's credit report as a result of identity theft, provided the victim did not knowingly obtain goods, services or money as a result of the blocked transaction. Our provision, which amends the Fair Credit Reporting Act, was also addressed in a recent hearing before the Senate Banking Committee. On July 10, the Chairman of the Federal Trade Commission testified that ``blocking would mitigate the harm to consumers' credit record that can result from identity theft'' and recommended that this practice be codified. I am also encouraged by similar recommendations from the Treasury Department that would require credit reporting agencies to cease reporting allegedly fraudulent account information on consumer reports when the consumer submits a police report or similar document, unless there is a reason to believe the report is false. Providing consumers with the tools necessary to recover from identity theft is the first step in providing real relief to the hundreds of thousands of individuals whose lives have already been turned upside down by identity theft. I urge my colleagues to work with me as we move forward on this important issue and make progress on the reauthorization of critical legislation like the Fair Credit Reporting Act. We must take action this year before the crime of identity theft hurts the hundreds of thousands of working people and families who are expected to become victims this year.

Mr ENZI

Mr ENZI. Mr. President, the U.S. economy is still the greatest economy in the world and our credit markets have helped to make that happen. During the past decade, our credit markets have taken advantage of technology and innovation in order to provide more consumers with more timely credit approvals and with more financing options. Nowhere is there a better example of this than our housing market. Today, the time it takes to review a mortgage application and approve it has been cut drastically by our financial institutions. Consumers find that they have a wide array of financing options they can choose from to secure the purchase of a home--from fixed-rated loans to variable-rate loans, or even adjustable rate loans. While the wide variety of choices has helped more families to purchase homes in the past decade, even more families could buy homes if they understood how the credit market works. Although there are many pluses to the expansion of the availability of credit there is also a downside. Individuals may get in over their heads when too much credit is made available to them. In addition, identity theft is a bigger problem than it has been before. Consumers need to educate themselves about the potential problems they might face and how to avoid them. Increasing consumer financial literacy is not just about providing information, however, it is about giving families the proper informational tools so that they can put their financial affairs in order. Today, my friend and colleague, Senator Stabenow and I are introducing the ``Financial Literacy Community Outreach Act'' to help to bring together all of the federal government's financial literacy programs under one roof. The Department of Treasury, the Federal Deposit Insurance Corporation, the Federal Trade Commission, the Securities and Exchange Commission, the Department of Housing and Urban Development, and the Department of Labor are just a few of the many federal agencies that have established excellent financial literacy programs and initiatives. These programs cover a wide variety of topics ranging from how to save, spend, and invest to programs that provide guidance on how to prepare for retirement, select a pension plan, or purchase a home. Still others help individuals avoid the threat of identity theft. Unfortunately, consumers attempting to find financial literacy information from the federal government may find that information scattered throughout the government. Our bill would provide a one-stop- shop where consumers could find the appropriate financial literacy programs for their needs. A single web site and a toll-free number will go a long way toward bringing this vital information to the individuals and families who need it. In addition, the bill establishes the Financial Literacy Commission, a body comprised of the heads of the federal agencies with financial literacy programs. The Commission will ensure that the federal government has a cohesive and coordinated federal policy on financial literacy as it provides Congress with vital information on what can be improved in our government's financial literacy outreach efforts. In addition to the web site and the toll-free number, the Commission will highlight successful public/private partnerships already existing around the country. One such partnership is thriving in my home state of Wyoming. The Wyoming Partners in HomeBuyer Education, led by the Wyoming Community Development Authority, includes local banks, real estate agents, the University of Wyoming, the U.S. Department of Agriculture, the U.S. Department of Housing and Urban Development, and Fannie Mae, in the effort to provide distance learning to potential home-buyers through the use of compressed video technology. This training program is perfect for a state like Wyoming in that home-buyers in rural communities have access to all of the essential elements of the home buying experience just like their urban community counterparts. To date, more than 3,000 individuals have completed the training program and it has led to making the home-buying process easier and more understandable for rural and urban families alike. I strongly believe that this bill will help millions of families find the appropriate financial literacy materials they need to make better credit and investment decisions. It is my pleasure to be cosponsoring this bill with Senator Stabenow because of our shared concern about making financial literacy available to more families across the country. In addition, I would like to recognize Senator Sarbanes' tremendous effort to focus our attention on financial literacy, both when he was Chairman of the Committee on Banking, Housing and Urban Affairs last year and as Ranking Member of the Committee this year. He has been an extraordinary advocate for this important issue. Chairman Shelby of the Committee has also recognized the importance of this issue, as just this week, it was the subject of a hearing by the Committee. I look forward to working with my colleagues on the Committee and in the full Senate to ensure that we expand and build upon the government's present financial literacy efforts to help individuals and families increase their knowledge of and access to our credit and investment markets.

Mr. ENZI

Mr. ENZI. Mr. President, I rise today to introduce a bill that will help bring about a more reliable system of medical justice for all Americans. Earlier this month, we had a robust debate on a critical issue-- medical liability reform. Though a majority of the Members of this body wanted to begin working to pass the bill, we didn't have the 60 Senators necessary to begin the real work on the legislation. I co-sponsored that bill, the Patients First Act, and I still support it. Passing the Patients First Act would be an important short-term step to controlling the excesses in our legal system that have sent medical liability insurance premiums through the roof. Skyrocketing premiums are forcing doctors to move their practices to States with better legal environments and lower insurance premiums. This is endangering the availability of critical healthcare services in many areas of Wyoming and other states. Throughout our debate, I heard many of my colleagues say that they wanted to work on this issue, but that they simply could not support the bill as it stood. We heard that the bill approaches the issue from too narrow of a perspective. We heard that the bill's caps on non- economic damages are unfair to patients, despite the fact that the bill places no limits whatsoever on a patient's right to recover all quantifiable economic damages. While I disagree with my colleagues who oppose the Patients First Act, I respect their opposition. I also trust that they sincerely want to help solve our Nation's medical liability and litigation crisis. During the debate this month, I noticed something interesting. While we argued the ``pros and cons'' of the bill, no one stood up to defend our current system of medical litigation. Now, we heard a lot about the caps, and the insurance industry, and we heard Senators say that ``Yes, there is a problem, but the bill before us won't solve it.'' One thing we didn't hear was a rousing defense of our medical litigation system. Even some of the lawyers in this body agreed that frivolous lawsuits are a problem and that our medical litigation system needs reform. Why didn't we hear anyone defend the merits of our current medical litigation system? It's because our system doesn't work. It simply doesn't work for patients or for healthcare providers. Compensation to patients injured by healthcare errors is neither prompt nor fair. The randomness and delay associated with medical litigation does not contribute to timely, reasonable compensation for most injured patients. Some injured patients get huge jury awards, while many others get nothing at all. Let's look at the facts. In 1991, a group of researchers published a study in the New England Journal of Medicine. The study, known as the Harvard Medical Practice Study, was the basis for the Institute of Medicine's estimate that nearly 100,000 people die every year from healthcare errors. As part of their study, the researchers reviewed the medical records of a random sample of more than 31,000 patients in New York State. They matched those records with statewide data on medical malpractice claims. The researchers found that nearly 30 percent of injuries caused by medical negligence resulted in temporary disability, permanent disability or death. However, less than 2 percent of those who were injured by medical negligence filed a claim. These figures suggest that most people who suffer negligent injuries don't receive any compensation. When a patient does decide to litigate, only a few recover anything. Only one of every ten medical malpractice cases actually goes to trial, and of those cases, plaintiffs win less than one of every five. In addition, patients who file suit and are ultimately successful must wait a long time for their compensation--the average length of a medical malpractice action filed in state court is about 30 months. While the vast majority of malpractice cases that go to trial are settled before the court hands down a verdict, the settlements even then don't guarantee that patients are compensated fairly, particularly after legal fees are subtracted. Research shows that for every dollar paid in malpractice insurance premiums, about 40 cents in compensation is actually paid to the plaintiff--the rest goes for legal fees, court costs, and other administrative expenditures. To sum up: most patients injured by negligence don't file claims or receive compensation. Few of those that do file claims and go to court recover anything, and those who are successful wait a long time for their compensation. And those who settle out of court end up receiving only 40 cents for every dollar that healthcare providers pay in liability insurance premiums. It's hard to say that our medical litigation system does right by patients in light of those facts. Unfortunately, our system doesn't work for healthcare providers either. Earlier, I spoke about those Harvard researchers who found that fewer than 2 percent of those who were injured by medical negligence even filed a claim. As they reviewed the medical records for their study, the researchers also found another interesting fact--most of the providers against whom claims were eventually filed were not negligent at all. That's right--most providers who were sued had not committed a negligent act. In matching the records they reviewed to data on malpractice claims, the Harvard researchers found 47 actual malpractice claims. In only 8 of the 47 claims did they find evidence that medical malpractice had caused an injury. Even more amazingly, the physician reviewers found no evidence of any medical injury, negligent or not, in 26 of the 47 claims. However, 40 percent of these cases where they found no evidence of negligence nonetheless resulted in a payment by the provider. Basically, the researchers found no positive relationship between medical negligence and compensation. That study was based on 1984 data. The same group of researchers conducted another study in Colorado and Utah in 1992, and they found the same thing. As in the 1984 study, they found that only 3 percent of patients who suffered an injury as a result of negligence actually sued. And again, physician reviewers could not find negligence in most of the cases in which lawsuits were filed. Now, I assume that the patients who sued had either an adverse medical outcome, or at least an outcome that was less satisfactory than the patient expected. But our medical litigation system is not supposed to compensate patients for adverse outcomes or dissatisfaction--it's supposed to compensate patients who are victims of negligent behavior. It's supposed to be a deterrent to substandard medical care. It's not fair to doctors and hospitals that they must pay to defend against meritless lawsuits. Nor is it fair that they must face a choice between settling for a small sum, even if they aren't at fault, so that they avoid getting sucked into a whirlpool of our medical litigation system. It's not hard to understand why physicians and hospitals and their insurers want to stay out of court. When they lose, the decisions are increasingly resulting in mega-awards based on subjective ``non- economic'' damages. The number of awards exceeding $1 million grew by 50 percent between the periods of 1994-1996 and 1999-2000. Today, more than half of all jury awards exceed $1 million. As a result, when a patient suffers a bad outcome and sues, providers have an incentive to settle the case out of court, even if the provider isn't at fault. But is this how our medical litigation system is supposed to work--as a tool for shaking down our healthcare providers? Let's face it--our medical litigation system is broken. It doesn't work for patients or providers. Even worse, it replaces the trust in the provider-patient relationship with distrust. Then, when courts and juries render verdicts with huge awards that bear no relation to the conduct of the defendants, this destabilizes the insurance markets and sends premiums skyrocketing. This forces many physicians to curtail, move or drop their practices, leaving patients without access to necessary medical care. This is a particular problem in states like Wyoming, where we traditionally struggle with recruiting doctors and other healthcare providers. Perhaps we could live with this flawed system if litigation served to improve quality or safety, but it doesn't. Litigation discourages the exchange of critical information that could be used to improve the quality and safety of patient care. The constant threat of litigation also drives the inefficient, costly and even dangerous practice of ``defensive medicine.'' Yes, indeed, defensive medicine is dangerous. A recent study found that one of every 1200 children who receive a CAT scan may die later in life from radiation-induced cancer. Knowing this puts a physician faced with anxious parents in a difficult situation. Does the doctor use his or her professional judgment and tell the parents of a sick child not to worry, or does the doctor order the CAT scan and subject the child to radiation that is probably unnecessary, just to provide some protection against a possible lawsuit? We have a medical litigation system in which many patients who are hurt by negligent actions receive no compensation for their loss. Those who do receive compensation end up with about 40 cents of every premium dollar after legal fees and other costs are subtracted. And the likelihood and the outcomes of lawsuits and settlements bear little relation to whether or not a healthcare provider was at fault. We like to say that justice is blind. With respect to our medical litigation system, I would say that justice is absent and nowhere to be found. During our debate on the Patients First Act, I said that the current medical liability crisis and the shortcomings of our medical litigation system make it clear that it is time for a major change. I also said that regardless of how we voted, we all should work toward replacing the current medical tort liability scheme with a more reliable and predictable system of medical justice. Today, I am introducing a bill that would help achieve that goal. Most of us are familiar with the report on medical errors from the Institute of Medicine, also known as the IOM. Many of us may be less familiar with another report that the IOM published earlier this year. That report is called ``Fostering Rapid Advances in Healthcare: Learning from System Demonstrations.'' Our Secretary of Health and Human Services, Tommy Thompson, challenged the IOM to identify bold ideas that would challenge conventional thinking about some of the most vexing problems facing our healthcare system. In response, an IOM committee developed this report, which identified a set of demonstration projects that committee members felt would break new ground and yield a very high return-on-investment in terms of dollars and health. Medical liability was one of the areas upon which the IOM committee focused. The IOM suggested that the federal government should support demonstration projects in the states. These demonstrations should be based on ``replacing tort liability with a system of patient-centered and safety-focused non-judicial compensation.'' The bill I am introducing today is in the spirit of this IOM report. This bill, the Reliable Medical Justice Act, would authorize funding for States to create demonstration programs to test alternatives to current medical tort litigation. The funding to States under this bill would cover planning grants for developing proposals based on the models or other innovative ideas. Funding to States would also include the initial costs of getting the alternatives up and running. The Reliable Medical Justice Act would require participating states and the Federal Government to collaborate in continuous evaluations of the results of the alternatives as compared to traditional tort litigation. This way, all States and the federal government can learn from new approaches. By funding demonstration projects, I believe Congress could enable States to experiment with and learn from ideas that could provide long- term solutions to the current medical liability and litigation crisis. In introducing this bill, I wanted to provide some alternative ideas that would contribute to the debate. As a result, the bill describes three models to which states could look in designing their alternatives. For instance, a State could provide healthcare providers and organizations with immunity from lawsuits if they make a timely offer to compensate an injured patient for his or her actual net economic loss, plus a payment for pain and suffering if experts deem such a payment to be appropriate. This could give a healthcare provider who makes an honest mistake the chance to make amends financially with a patient, without the provider fearing that their honesty would land them in a lawsuit. Another idea would be for a state to set up classes of avoidable injuries and a schedule of compensation for them, and then establish an administrative board to resolve claims related to those injuries. A scientifically rigorous process of identifying preventable injuries and setting appropriate compensation would be preferable to the randomness of the current system. Still another option would be for a state to establish a special healthcare court for adjudicating medical malpractice cases. For this idea to work, the State would need to ensure that the presiding judges have expertise in and an understanding of healthcare, and allow them to make binding rulings on issues like causation compensation, and standards of care. We already have specialized courts for complicated issues like taxes and highly charged issues like substance abuse and domestic violence. With all the flaws in our current medical litigation system, perhaps we should consider special courts for the complex and emotional issue of medical malpractice. I believe one thing in our medical liability debate is absolutely clear--people are demanding change. Ten States have passed some liability reform in the past year, and another 17 have debated it. States are heeding this call for change, and Congress should support those efforts. My own State, Wyoming, had a lively legislative debate on medical liability reform this year, but we have a constitutional amendment that prohibits limits on the amounts that can be recovered through lawsuits. The Wyoming Senate considered a bill to amend our State's constitution to create a commission on healthcare errors. That commission would have had the power to review claims, decide if healthcare negligence had occurred, and determine the compensation for the death or injury according to a schedule or formula provided by law. However, the bill died in a tie vote on the Wyoming Senate floor. According to one of the sponsors of the bill, Senator Charlie Scott, one of the biggest obstacles to passage was the uncertainty surrounding this new idea. No one had any basis for knowing what a proper schedule or formula for compensation would be. No one knew how much the system might cost, or how much injured patients would recover compared to what they recover now. Senator Scott wrote me to say that federal support for finding answers to these questions might help the bill's sponsors sufficiently respond to the legitimate concerns of their fellow Wyoming legislators. We should be helping state legislators like Senator Scott develop thoughtful and innovative ideas such as the one he has proposed. That's one of the reasons I am offering this bill. Clearly, the American people and their elected representatives have identified the need to reform our current medical litigation system. The United States Senate did not vote to proceed to the Patients First Act this month, but no member of this body denied that there is a medical liability crisis, or that Congress needs to act sooner rather than later. While we continue that debate, we ought to lend a hand to States that are working to change their current medical litigation systems and to develop creative alternatives that could work much better for patients and providers. The States have been policy pioneers in many areas-- workers' compensation, welfare reform, and electricity de-regulation, to name three. Medical litigation should be the next item on the agenda of the laboratories of democracy that are our 50 States. No one questions the need to restore reliability to our medical justice system. But how do we begin the process? One way is to foster innovation by encouraging States to develop more rational and predictable methods for resolving healthcare injury claims. And that is what the Reliable Medical Justice Act aims to do. In the long run, we would all be better off with a more reliable system of medical justice than we have today. I know that my fellow Senators recognize this, so I hope my colleagues on both sides of the aisle will work with me on this legislation. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. ENZI

Mr. ENZI. Mr. President, I associate myself with the remarks that have gone on before. It was a truly inspiring speech. I think there is a little bit of irony to the fact that we have a Brit inspire us on freedom and liberty. That was the most inspiring speech I have heard since Margaret Thatcher did the same thing. They somehow have the ability to look into our past and explain our present and move us on into the future. I appreciate the fact that he was here and spoke and shared those words with us. It was awe inspiring.

Mr. ENZI

Mr. ENZI. Mr. President, the managers' amendment includes a provision that will help solidify the strong friendship that exists between the United States and the United Kingdom. The provision is a result of a great deal of work between the chairman, the ranking member of the Foreign Relations Committee, and the Department of State. They are to be commended for helping to strengthen the partnership between our two countries, a partnership we have relied on for many years. The provision will allow the U.S. to finalize a bilateral agreement with the United Kingdom and provide a licensing exception to the UK for certain defense-related items. Such an agreement will pave the way for enhancing both our defense capabilities as it promotes cooperation with our coalition partners, especially on matters of defense. Enhancing our defense capabilities and the industrial and economic cooperation that exists between our two nations is critical if we are to continue to have the ability to promote peace, freedom and democracy throughout the world. As we have seen for many years, and through many international conflicts, the United States and the United Kingdom are steadfast allies who have come to the aid of each other whenever it was necessary to preserve the peace. Our troops fought together in the deserts of Iraq and the United Kingdom has demonstrated time and time again that we can always count on them in a time of crisis. Another important objective of this agreement is the improvement of the industrial cooperation between our countries. Industries of all types are consolidating in the face of economic downsizing and globalization so that research and development of new products and new technologies can be pursued. This consolidation has only further highlighted the need for effective export control measures. The United States must now work with our Allies, especially our friends in the United Kingdom, to improve the flow of information and increase the level of cooperation in the areas of export control reform, multilateral control regime participation, and improvements in licensing procedures. I thank the distinguished chairman and ranking member for working with me on this issue during both the committee markup and in recent days. This provision means a great deal to both our long-term interests and to our continued friendship with the United Kingdom. The United Kingdom has consistently proved their support for our common cause of peace. Most recently, by their efforts in Iraq. Prime Minister Tony Blair took a great deal of heat for his position, but he held fast to it because our cause was just. We will recognize him for his efforts when he speaks at a Joint session of Congress on July 17. I believe our action here today is also a strong and very welcome show of support for his and his country's efforts.

Mr. ENZI

Mr. ENZI. Mr. President, I thank the Senator from Nevada. I always appreciate his comments. He has one of the fastest growing States in the Nation. I come from the most sparsely populated State in the Nation. We have some very common problems. In the last couple of days, we have heard a lot of discussion about insurance companies. We have heard that medical liability insurers are the source of the problem; that they are gouging doctors to make up for investment losses. Well, the Nasdaq index yesterday closed at its highest level since April 2002. The Nasdaq is up more than 30 percent since the beginning of the year. For that matter, the Dow Jones Industrial Average is up more than 10 percent in 2003. Under the logic we have heard this week, the stock market rebound ought to be leading to a sharp reduction in medical liability premiums. So why aren't we seeing any relief? We are not seeing any relief because insurance companies are paying out more in losses than they are receiving in premiums. It is that simple. It does not take an accountant to figure that out. For every premium dollar collected in 2001, medical liability insurers experienced $1.53 in losses. Ten years earlier, for every premium dollar collected, insurers lost $1.03. Regardless of investment gains or losses, the fact is that payments for medical litigation judgments and settlements are rising much faster than the incoming premium payments, even though premiums are escalating dramatically. Insurance companies cannot make up the gap between the $1 they take in and the $1.53 they pay out without raising premiums. That is why we are not seeing reductions in medical liability premiums, despite the stock market's advance in 2003. It all comes back to our legal system. It is simply out of control. People who are truly injured by health care errors ought to receive fair compensation. The problem is that our medical justice system is completely out of whack. Doctors and hospitals live in constant fear of litigation. They order unnecessary tests out of legal fear. Doctors look at their patients as potential lawsuits, not people in need of their help, because of this legal fear. They are forced to move their practices to States that have reformed their legal systems. All of this because of legal fear. Some of my colleagues may have read a book that came out several years ago, in 1995. The book was called ``The Death of Common Sense.'' The book was written by Philip Howard, a lawyer by training. His premise was that American law and regulation are stifling human judgment and good sense. Well, Mr. Howard just published a new book, and I encourage my colleagues to read it. It is called ``The Collapse of the Common Good.'' In the book, he describes how law and regulation in America create a warped sense of individual rights. In America today, people use the concept of individual rights to bully other members of society, using the threat of legal action as a weapon. Some of what Mr. Howard has written is pertinent to this debate. For instance, some of my colleagues believe that this legislation would limit a patient's right to sue a doctor. We all believe that patients who are truly injured deserve fair compensation. The problem is that some personal injury lawyers are taking advantage of this belief to bring all sorts of claims against doctors, whether the doctors are at fault or not. Let me share a passage from Mr. Howard's book. He writes on pages 22 and 23: Like ancient Mayans accepting human sacrifice or Catholics in the Middle Ages buying indulgences, Americans today accept that being sued is the price of freedom, and that diving for cover is the natural response to reasonable daily choices. Our faith in individual rights keeps us from pausing even to question this conception of justice. But should individual rights include the right to go to court over a sandbox disagreement involving 3-year-olds, or to milk the system whenever there is a freak accident, or to scare towns and school systems out of seesaws and peanut butter? The idea of individual rights derives its moral force from the rhetoric of liberty. But is this what our founders had in mind when they organized a society around the freedom of each individual? Actually, no. Our founding fathers would be shocked. There is no ``right'' to bring claims for whatever you want against someone else. Suing is a use of state power. A lawsuit seeks to use government's compulsory powers to coerce someone else to do something. Asserting individual rights sounds benign, like praying in the church or synagogue of your choice. Sticking a legal gun in someone's ribs, however, is not a feature of what our founders intended as an individual right. The point of freedom is almost exactly the opposite: We can live our lives without being cowed by use of legal power. The individual rights our founders gave us were defensive, to protect our liberty. Liberty, we somehow forgot, does not include taking away someone else's liberty. . . . Courts are not supposed to be commercial establishments where, for the price of a lawyer, anyone can buy a chance on a raffle. Courts supposedly represent the wisdom of law, overseeing when those powers can be used against others in a free society. There's no right to sue except as the state permits. I can practically feel your confusion. How else can we organize justice? People obviously have the ability to go to court. But by what rules and standards? Our modern consciousness is so focused on individual rights we can't conceive of another way to ensure fairness. But if lawsuits are recognized as an exercise of state power, perhaps the state should make conscious judgments of who can sue for what. That's what legal rules and interpretations are for. That is what this debate is about. That is what this legislation intends to do--make conscious judgments about who can sue and for what, and the rules and limits under which medical lawsuits can go forward. Is this bill a perfect bill? No. I have yet to see a perfect bill, and I am in my seventh year in the Senate, following 10 years in the Wyoming Legislature. But we ought to vote to begin this debate and move on to the consideration of this bill, and the amendments to the bill, so that we can address this medical liability crisis before it further compromises the liberties of the people in Wyoming and the other States, and especially their access to medical care. We are debating whether to proceed to debate, whether to proceed to begin the amendments which can even be whole substitutes to this bill. So if my colleagues have a better idea, a way to solve this, they should vote to proceed, then bring their amendments. Our Declaration of Independence speaks to our unalienable rights, as granted to us by our Creator, and that among these rights are life, liberty, and the pursuit of happiness. Well, it is pretty hard for an expectant mother in Wyoming to pursue her happiness when she has to pursue her doctor for one more well-baby check-up before he closes his practice and leaves for a State where insurance premiums are lower. There is another passage in Mr. Howard's book that is pertinent to our discussion about limits on pain-and-suffering awards. The statistics show that insurance premiums are lower in States with such limits, but I have heard Members on the other side of the aisle argue that the limit in this bill is too low, that it is unfair to someone who is severely injured, despite the fact that the bill does not limit in any way that person's right to recover every cent of the economic damages that result from that injury. Well, if the limit on pain-and-suffering awards in this bill is too low, then what is the right amount? I quote another passage from Mr. Howard's book, and I hope everybody will read at least the first chapter of this book. A great thing about bringing lawsuits in modern America is that it is so easy to threaten the adversary's entire livelihood. One stroke of the finger on the lawyer's word processor, and damages go from $100,000 to $1,000,000. Three more key strokes, and we're suing for a billion dollars. This is fun. What kind of justice system is it that allows someone to make up an amount of money to demand? Is that a fact to be ``found'' by a jury? It doesn't even qualify as a value judgment, which at least is a conclusion based on facts. Damages claimed today are completely arbitrary. Just stick your finger in the air and threaten someone with any number that comes to mind. Judges treat damage claims almost as if they are property, and only with greatest reluctance intercede. In 1987, five- year-old Gregory Strothkamp climbed up several shelves to the top of the linen closet, got an unopened box of Q-Tips, and, while trying to use them, punctured his eardrum. His parents sued the maker of Q-Tips for, among other things, $20 million in punitive damages. Whatever the merits of the argument that Q-Tips should come in childproof packaging (which would raise everyone's cost), most people probably agree that making Q- Tips is not an evil act. When the jury awarded young Gregory $20 million in punitive damages, the judge did what was obvious from the beginning and overturned the award. The claim ended sensibly, but is this how justice should work? Sweating through trial and verdict to get to obvious justice, while the judge is sitting there the whole time, doesn't exactly instill confidence in the system. Do judges enjoy watching the Q-Tip companies, or a Little League coach, or a doctor squirm at the end of a multimillion-dollar hook? Lying dormant along the side of society is another important legal principle: that a person injured should be ``made whole'' by damages. Traditionally, this meant out-of- pocket losses, like lost wages or medical bills. In an unusual case, like a homemaker with no wages, claims were permitted in categories not actually calculable, like ``pain and suffering.'' In cases of genuine evil, punitive damages were possible. Today, the exceptions have engulfed the rule, with all kinds of side effects. Juries are regularly asked ``to assume the baffling task of trying to place a monetary value on pain and suffering,'' Dean Bok observed, ``although the predictable result [is] to encourage a rise in litigation and the growth of the most unsavory and deceptive practices.'' Judges might concede the principle but can't imagine how to apply it. They need some objective legal post to hang on to. If $1.35 billion is too much, what is the right amount? The ``exercise of judicial power is not legitimate,'' as one scholar put it, ``if it is based on a judge's personal preference rather than law.'' So what do the judges do? They abdicate. Judges look up at the allegorical figure of Justice and interpret her blindfold as impotence. But Justice is also holding balanced scales. How does Justice achieve balance but through the values and wisdom of judges? Proportion is critical to justice. Equals should be treated alike, Aristotle believed, and unequals proportionally to their relative differences: ``the unjust is what violates the proportion.'' These distinctions, Aristotle observed, can only be made with human wisdom. Dead people can be so smart. ``[T]o speak somewhat paradoxically,'' Cardozo observed, there are times ``when nothing less than a subjective measure will satisfy an objective standard.'' Justice Potter Stewart had it right after all. Judges have to know it when they see it. One billion dollars for a wrongful dismissal case is absurd. Everyone knows it. The case should be dismissed unless the plaintiff comes back with some amount he can plausibly justify. I wonder if judges ever ask themselves why it is that damage claims have escalated to a level where they are like a parody of a dysfunctional system of justice. The answer couldn't be more obvious. Judges sit on their hands and tolerate claims that make lotteries seem like small change. The reason people bring huge claims is not hard to divine: It's a form of extortion. Why else sue for such ridiculous amounts? Being sued for, say, $5 million for a regular accident may not cause you to fold your hand, but the possibility of ruin never strays far from your consciousness. Most million-dollar claims end up settling for thousands or less. But not all. All that it takes is for a jury to get mad. . . . The point I am making is that there is an imbalance. I think that everybody recognizes there is an imbalance. We want to have a just system. What we need to do is approve this cloture petition, end the debate of whether to proceed to the debate, and bring in substitute bills. And I have heard of some pretty good ones floating around. We can debate the issue and come up with something that will make doctors still accessible in States such as Nevada and Wyoming and the other ones that we have had on the chart of states in crisis. There are only about five that are not in crisis. Then there are varying degrees of crisis among the rest of them. The problem we are facing today is that multimillion-dollar awards for pain and suffering are contributing to dramatic increases for insurance premiums for doctors. When this forces doctors to leave their practices, it hurts innocent patients who lose their access to medical care. Do we not have an obligation to say enough is enough, and set some limits on lawsuits? As Mr. Howard points out in his book, if lawsuits are an exercise of State power, perhaps the State should make conscious judgments of who can sue for what. When I spoke on this bill yesterday, I said the current medical liability crisis and the shortcomings of our medical litigation system make it clear it is time for a major change. I also said that regardless of how we vote on this legislation, we ought to start working toward replacing the current medical tort litigation scheme with a more reliable and predictable and faster system of medical justice. I have heard Members on the other side of the aisle say they want to work with Republicans to find a better way to solve this problem, to find reasonable good-faith alternatives to this legislation. If we vote not to proceed on this bill, I hope this process will begin sooner rather than later. I hope we proceed so Members can bring their ideas out and suggest amendments; then we can vote up or down. The people of Wyoming and other States in crisis cannot afford to lose any more doctors. We cannot afford to lose any more time. If we do not proceed on this bill today, I pledge to continue working to find solutions to this million-dollar liability crisis. I hope Members on both sides of the aisle will also take this pledge to keep working on this. I yield the floor.

Mr. ENZI

Mr. ENZI. Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet to conduct a hearing on ``Executive Nominations'' on Tuesday, July 8, 2003, at 2:30 p.m., in the Dirksen Senate Office Building Room 226. Agenda Panel I: Senators. Panel II: Michael J. Garcia to be Assistant Secretary, U.S. Department of Homeland Security; and Jack Landman Goldsmith III to be Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice.

Mr. ENZI. Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on Tuesday, July 8, 2003, at 2:15 p.m., in closed session, to receive a classified briefing on the situation in Africa, with a focus on Liberia.

Mr. ENZI. Mr. President, I ask unanimous consent that the Subcommittee on Clean Air, Climate Change, and Nuclear Safety be authorized to meet on Tuesday, July 8, at 9:30 a.m., to examine agricultural sequestration of carbon. The hearing will take place in SD 406 (Hearing Room).

Mr. ENZI. Mr. President, I ask unanimous consent that the Subcommittee on National Parks of the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate on Tuesday, July 8, 2003, at 10 a.m. The purpose of the hearing is to conduct oversight of the maintenance backlog, land acquisition backlog, and deficit in personnel within the National Park System, including the impact of new park unit designations on resolving each of these concerns.

Mr. ENZI. Mr. President, I ask unanimous consent that the Committee on Finance be authorized to meet during the session on Tuesday, July 8, 2003, at 10 a.m., to hear testimony on An Examination of U.S. Tax Policy and Its Effect on the Domestic and International Competitiveness of U.S.-Based Operation.

Mr. ENZI. Mr. President, I ask unanimous consent that the Committee on Commerce, Science, and Transportation be authorized to meet on Tuesday, July 8, 2003, at 9:30 a.m., on the nomination of Nicole Nason, DOT, and Pamela Harbour, FTC, and immediately following a hearing on ``Radio Ownership'' in SR-253.

Mr. ENZI

Mr. ENZI. Mr. President, I ask unanimous consent that the Senate begin a period of morning business until 12:30 p.m.

Mr. ENZI

Mr. ENZI. Mr. President, throughout the West, and all over the country, more and more physicians are closing up shop and moving their practices out of State because they can no longer afford their medical liability insurance premiums in States that don't have some kind of a control over the amount that can be awarded. Whenever I go home for a town meeting or when I visit with constituents, I hear story after story about people who are facing the loss of the sole option for health care in their towns because of the skyrocketing premiums their doctors must pay. One constituent told me about her family physician in Newcastle, WY. She had to close her doors because the cost of insurance premiums made it impossible for her to provide obstetrical services to the pregnant women of the town. She said: Telling a pregnant woman I won't be there to deliver her baby was one of the hardest things I had to do as a family physician. She then joined two other doctors in Newcastle to announce as of July 1 they would be unable to deliver babies because of a more than 50- percent increase in their liability insurance premiums. That means pregnant women in the Newcastle area will now drive 30 to 90 miles when it comes time to deliver their babies. This is a problem for the people of Newcastle, but it is one that also faces the people who live in a lot of towns throughout my State of Wyoming and many other States. Take Jackson, WY, for instance. A surgeon there paid $16,000 for liability insurance in his first year in practice. He is now facing an increase in his rates that will place his premium at $164,000. That is a jump of $148,000 in 1 year. Emergency room and trauma doctors are facing similar jumps in the cost of liability insurance. An emergency room doctor in Rawlins, WY, nearly closed his practice after his insurance company announced it would no longer provide coverage for emergency room services. Fortunately, his hospital was able to find him coverage at the last minute, but this is merely a temporary solution to a critical problem. Recruiting physicians to practice in rural States such as Wyoming is a difficult job. The high cost of medical liability premiums is making it nearly impossible. These examples highlight the problem we are facing. This problem is not just about lawsuits and insurance rates, it is about people who cannot get the medical attention they need. It is about communities without doctors to serve them. It is about a health care system in crisis. The cost of medical liability insurance and the role of medical litigation raise very complex issues, but the focus is not and should not be on doctors or trial lawyers or insurance companies fighting among themselves. Our focus should be on patients and on ensuring accessible and affordable health care for all Americans. In Wyoming, ensuring access to affordable health care is a persistent challenge. We probably would have a shortage of health care providers even if our medical liability system worked perfectly, but the costs of medical litigation and of medical liability insurance are taking matters from bad to worse for the people of my State. In fact, a study released yesterday by the Agency for Health Care Research and Quality found that States that limit pain and suffering awards in medical lawsuits have more physicians per capita than States such as Wyoming that have no such limits. Here are some other examples of the impact this crisis is having on Wyomingites: Two physicians who practice internal medicine in my hometown of Gillette have been notified that their medical liability insurance will be canceled as of July 31--not increased, canceled. If they are unable to find insurance coverage to replace their canceled policy in 2 weeks, they will be forced to close their practice in a town that is already experiencing a shortage of primary care doctors. Another doctor in Casper, WY, was barely able to find insurance coverage for this year. The doctor delivers more than 350 babies each year. Nearly half of the mothers are covered by Medicaid. He also performs nearly one-half of the gynecological surgeries in the Casper area. The only insurance he was able to find cost him $140,000 per year with an additional $69,000 to purchase ``tail'' coverage in case he is sued for something that happened before his new insurance took effect. In Wyoming, a physician who delivers a baby can be sued any time until the child's eighth birthday. So this ``tail'' is quite long, which means the premium could be quite high. In addition, this coverage is a short-term policy only good for 1 year, and he expects his cost of insurance will increase substantially again next year. Without his service, many pregnant mothers will find it difficult to obtain important prenatal care, especially expectant mothers in low-income families. Earlier this year, a doctor in Wheatland, WY, went to a high school basketball game between the Wheatland Bulldogs and the nearby Douglas Bearcats. At the game, he announced he would not be delivering any more babies in Wheatland or Douglas and may be leaving the State because of the cost of liability insurance. The irony is that he had delivered just about every player on both teams. This was not somebody new in practice. We also have doctors who are being forced to leave Wyoming to find relief from the financial burden of liability insurance. One doctor from Riverton, WY, grew up there, married a native of Wyoming, and returned to Riverton to raise his family and practice medicine in the State he loves. But between paying off student loans from medical school and paying expensive premiums on liability insurance, he is being forced to move to a State that has limits on pain and suffering awards. By moving, he will reduce his premiums by $43,000 a year. The threat of lawsuits is enough by itself to raise insurance premiums in a State such as Wyoming. Plus, with so few doctors purchasing insurance in the pool, one major payout, whether the doctor was at fault or not, can really send premiums for every doctor right through the roof. As a result, many doctors in Wyoming are moving to States with larger risk pools and fairer liability laws, just as their colleague from Riverton is doing. People who are truly injured by errors made by health care providers ought to be compensated fairly for their losses. However, the medical justice system today does not achieve this objective. If fair compensation is the standard, our medical justice system falls woefully short of the mark. Most people who are injured as a result of health care errors do not receive any compensation. However, some who are injured receive multimillion-dollar judgments as compensation for a bad outcome often without regard for whether the physician or hospital was even negligent. The unpredictability of our medical justice system really does not serve patients or providers well. The only people who come out ahead are the personal injury lawyers who happen to find the right case. When it becomes impossible for insurance companies to predict their losses with any certainty, premiums go up. It is a fact of the business, and it is no different for property insurers or life insurers than it is for medical liability insurers. Yes, people are hurt by health care errors, but skyrocketing medical liability premiums are hurting people, too. They are hurting physicians and hospitals in my home State by forcing them to curtail services or, in the case of doctors, to leave their practices entirely. Those doctors who continue to practice now look at each patient as a potential lawsuit. So they order more tests, whether or not the patient needs the tests. They spend less time discussing a course of treatment with the patient so they can spend more time writing a report after the appointment to justify the treatment decision in case they get sued. Ordering more tests and writing more reports costs an already overworked doctor time with his or her family and time to catch up on his or her sleep. Doctors should not have to make choices between what is right for their patients and what is right for themselves, but our medical litigation system does not offer them a real alternative. Most importantly, the medical liability crisis in my State is hurting innocent citizens who are losing their trusted hometown doctors to other States that have reformed their medical justice systems. What do we know about our overall system of medical justice in America today? We know compensation to patients injured by medical errors is neither prompt nor fair. We also know verdicts with huge awards that do not match the severity of injuries or the conduct of the defendants destabilize the insurance markets. This sends premiums skyrocketing, which forces many physicians to curtail, move, or drop their practices. This leaves patients without access to necessary medical care. Finally, we know litigation does nothing to improve quality or safety. In fact, the constant threat of litigation drives the inefficient and costly practice of defensive medicine and also discourages the exchange of information about preventable health care errors that we could use to improve the quality and safety of patient care. The current medical liability crisis and the shortcomings of our medical litigation system make it clear that this is the time for a major change. We need a medical justice system that promotes accountability and fairness instead of discouraging them. Regardless of how we vote on this legislation before us, we all ought to start working toward replacing the current medical tort liability scheme with a more reliable and predictable system of medical justice. We need a system that restores rationality to the way in which we compensate the injured and learn from mistakes. We need a system that restores the trust that patients and providers used to have in each other. It is incumbent upon all of us to strive for such a system so that we may raise the overall standard of health care in this country. The legislation we are considering today is an important step in the short term toward making the medical justice system work better for everyone, not just a fortunate handful of personal injury lawyers. I urge my colleagues to join me and vote for this bill. I ask unanimous consent that at 2:15, Senator Kyl be recognized to speak for up to 15 minutes to be followed by Senator Feinstein for up to 25 minutes.

Mr. ENZI

Mr. ENZI. Madam President, these are organizations that are advocates for millions of Americans who suffer from a broad range of illnesses. Early detection and treatment of these illnesses is more communication. Public education and awareness are key components. Advertising is the key component of it. This amendment would require the Secretary of Health and Human Services to promulgate new rules that would require advertisements to provide information about a drug's effectiveness in comparison to other drugs for ``substantially the same condition.'' In other words, you have to advertise with your competitors as well. The unfortunate effect would be to make the advertisements even more complex, not less, for consumers. It would force ads to drop other information that would be beneficial to consumers. I ask that you reject the amendment.

Mr. ENZI. Madam President, I rise in opposition to this amendment submitted by my colleague from North Carolina, Senator Edwards. Yesterday, the Senate defeated an amendment offered by my colleague that would have restricted direct-to-consumer advertising of prescription medicines. This new amendment continues this effort by offering similar advertising provisions to those already defeated. I have a list of 14 organizations which I ask unanimous consent be printed in the Record.

Mr. ENZI

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

Mr. ENZI. Madam President, I rise to offer an amendment that would build upon the protections for seniors and pharmacists that the Senate approved last week. I am pleased to be joined by my distinguished colleague from Arkansas, Senator Lincoln, in offering this amendment. This amendment would ensure that seniors have convenient access to local pharmacies. The amendment would accomplish this in two ways. First, there is language in the Finance Committee's bill that requires the Government to develop a standard for ensuring that seniors have convenient access to local pharmacies. This amendment would further define what we mean by ``convenient access.'' The amendment would ensure that access to retail pharmacies under Medicare is ``no less favorable to enrollees'' than the access standards under the TRICARE retail pharmacy program. TRICARE is the health care program for active-duty and retired members of the uniformed services, their families, and survivors. TRICARE is a regionally managed program that offers eligible beneficiaries three choices for their health care. First, there is TRICARE Prime, where military facilities such as Department of Defense hospitals are the principal source of health care services. There is also TRICARE Extra, a preferred provider option. Finally, there is a TRICARE Standard, the fee-for-service option that used to be known as CHAMPUS. For all three options, TRICARE offers pharmacy benefits that include access to a retail pharmacy network. To win an award to manage TRICARE benefits for the military, a contractor must maintain a retail pharmacy network that ``minimizes the number of eligible beneficiaries who will have to change pharmacies'' to use the contractor's network. There are three minimum beneficiary access standards for the TRICARE retail pharmacy network. In urban areas, the contractor must have a network pharmacy within 2 miles of 90 percent of eligible beneficiaries. In suburban areas, the standard is a pharmacy within 5 miles of 90 percent of the beneficiaries. In rural areas, the standard is a pharmacy within 15 miles of 70 percent of the beneficiaries. The Enzi-Lincoln amendment would not require Medicare drug plans to meet these exact standards. It would only require that a Medicare drug plan's network be ``no less favorable'' to seniors than the TRICARE program is for active-duty military and retirees, including those who participate in the new TRICARE Senior Pharmacy Program, provided by the 2001 National Defense Authorization Act. If the Administrator of the new Center for Medicare Choices or a Medicare drug plan had a better way of meeting or exceeding the TRICARE standard, they would not be restrained from doing so. As I mentioned earlier, there is another way this amendment would ensure that seniors have convenient access to their local pharmacies. The amendment includes a provision that prohibits a Medicare drug plan operator from requiring pharmacies to accept non-Medicare business and reimbursement rates as a condition of participating in the plan's Medicare business, or vice versa. I expect that health plans and pharmacy benefits managers that operate in the commercial insurance market will be the same companies that will compete to provide Medicare drug plans and Medicare Advantage preferred provider options to seniors. If a plan wins a bid to provide a Medicare drug benefit, they may offer reimbursement rates to retail pharmacies that are better or worse than the rates they offer in their private sector commercial business. That is fine with me. What concerns me is the possibility of these large plans ``tying'' their Medicare and non-Medicare business together. A Medicare drug plan should not be able to require a community pharmacist to accept an unprofitable reimbursement rate for its private sector business as a condition of participating in its Medicare network. Likewise, a community pharmacist should not have to take a money-losing Medicare reimbursement rate in order to keep its non-Medicare business from the same large plan. We should allow community pharmacists to refuse unprofitable private sector business from a health insurer or a pharmacy benefits manager yet participate in a Medicare drug plan run by the same entities. By doing so, we will further ensure that seniors have convenient access to local pharmacies based on fair reimbursement rates that should take into account the added costs pharmacies incur in providing counseling and advice to Medicare beneficiaries, especially since pharmacists are rarely reimbursed directly for the time and effort it takes to provide that counseling and advice. I urge my colleagues to join with Senator Lincoln and me in continuing to improve this Medicare bill by ensuring that seniors have convenient access to their local pharmacists. I yield the floor to my colleague on this amendment.