John Edwards

Mr. EDWARDS

Mr. EDWARDS. Reclaiming my time, my response to the Senator's question is simple and common sense. For a family in a bad situation needing medical care immediately, the last thing in the world they are thinking of is hiring a lawyer, going to court and trying to get an injunction. The Senator well knows that process by itself can take enough time for something serious to happen in the interim. As to the second issue the Senator raises, all we are saying in our legislation, in the structure of our system--internal appeal/external appeal--if that is unsuccessful and there has been a serious injury, they can be treated and taken to court the same as everyone else. We expect the HMO, which, by the way, is in the business of making these health care decisions, although of course not to cover absolutely everything, to make reasonable, thoughtful judgments about what is covered and what should not be covered. Now back to the issue of employer liability. First of all, the answer to the Gramm amendment is that it is inconsistent with what the Republican President of the United States has said regarding our bill and the President's principle: ``Only employers who retain responsibility for and make final medical decisions should be subject to suit.'' This is the President's written principle. That is the way our bill is designed, that only employers engaged in the business of making individual medical decisions can have any liability or any responsibility. With that said, we are working, as I speak, with colleagues, Republicans and Democrats across the aisle, to fashion language that accomplishes the goal of protecting employers while at the same time keeping in mind the interests of the patient. There are other legitimate issues raised. For example, one argument that has been made is that employers may be subjected to lawsuits they do not belong in, and there is a cost associated with being in those cases for too long. We are working as we speak to create better language, better protection for employers so there is no question that employers, No. 1, can be protected from liability, and No. 2, if they are named in a lawsuit improperly, they don't belong in the lawsuit and shouldn't be named, they have a procedural mechanism for getting out quickly. The truth is, the Gramm amendment is way outside the mainstream. All the work that has been done on this issue, including the work we are doing with our colleagues, both Republicans and Democrats, is a way to fashion a reasonable, middle of the road approach that provides real and meaningful protection to employers without completely eliminating the rights of patients. That is what we have been working on. We are working on it now and are optimistic we can resolve that issue.

Mr. EDWARDS. Yes.

Mr. EDWARDS. Absolutely.

Mr. EDWARDS. In response to the question, the answer is, of course we believe employers, the vast majority of employers, care about their employees and want to do the right thing. Our legislation is specifically designed to protect those employers, just as the President of the United States has suggested needs to be done. What we have done in this legislation, what the President has suggested, and in the work that continues as we speak on additional compromise language, all is aimed at the same principle and the same goal. This amendment is outside that mainstream--different from our legislation, different from the principle established by the President of the United States, and different from the compromise that is being worked on at this moment. I remain optimistic we will be able to reach a compromise that provides real and meaningful protection to the employers of this country we want to protect. We have said that from the outset. We stand by it. We want to protect them. If I may say a couple of things about the issue of costs which was raised a few moments ago, the CBO has not said anybody will become uninsured as a result of this legislation. What the CBO has said is there will be a 4.2-percent increase in premiums over 5 years because of our legislation and a 2.9-percent increase if the competing legislation passes, roughly 4 percent versus roughly 3 percent. The difference between these two pieces of legislation on cost is a very minuscule part related to litigation. I think the difference is less than half of 1 percent related to litigation. Rather, the differences are related to quality of care. If people get better access to clinical trials, better access to specialists, better emergency room care, a more enforceable and meaningful independent review process, if those things occur, there is a marginal cost associated with it. We have real models. We don't have to guess about what will happen. Those models are Texas, California, and Georgia. In those States, the number of uninsured, while the patient protection laws have been in place, has gone down, not up. We have some real, although short term, empirical evidence about what happens when this patient protection is enacted. We have to be careful. A lot of arguments being made are the same arguments that have been made by HMOs for years to avoid any kind of reform, to avoid any kind of patient protection. We are working in this legislation to give real protection to somewhere between 170 and 180 million Americans who are having problems with their HMO. We want to put the law on the side of patients and doctors instead of having health care decisions made by insurance company bureaucrats.

Mr. EDWARDS. I ask to be yielded another 5 minutes.

Mr. EDWARDS. Mr. President, in summary, let me speak to the two amendments we will next be addressing. First, the Gramm amendment is outside the mainstream, outside what the President of the United States has suggested, outside of what we have in our legislation, and outside of what we are working on with Senators from across the aisle. Second, as to the Grassley motion to commit, the problem is it sends it back to a number of committees and slows down the process. We need to do something about this issue and quit talking about it. The American people expect us to do something about it. Thousands of Americans each day are losing access to the care they have, in fact, paid for while this process goes on. We need to get this legislation passed and do what we have a responsibility to do for the American people. This is an issue on which the Senate, the House, and the American people have reached a consensus. It is time to act. As to these two vehicles, I urge my colleagues to reject them. Finally, I will talk about the story of a young woman in North Carolina. Her name is Shoirdae Henderson, from Apex, NC. At the age of 12 she was diagnosed with a rare hip condition. It made it difficult for her to walk. The Henderson family's HMO sent Shoirdae to a hospital to see specialists about her problem. The specialist in this HMO- approved hospital said she needed surgery to keep her hip from fusing and having to walk with a limp. Even though the family had taken Shoirdae to the HMO specialist, the HMO refused to listen to her doctors. They came in with excuse after excuse to keep her from getting surgery. Every one of the HMO excuses proved over time to be groundless. It looked as if she would finally get the operation her doctors had recommended to begin with. Just 2 days before she was supposed to have surgery, the HMO told her family they wouldn't pay for it. They wanted her to try physical therapy instead. Shoirdae's father spent hours dealing with the HMO, as so many families have, trying to get his daughter the care the doctors said she needed. He made call after call and faxed them. He requested an appeal. He never got an answer. The hospital finally had to cancel her surgery as a result. After several sessions of physical therapy, another HMO doctor took one look at Shoirdae's x rays and sent her back to the hospital. She still needed the surgery. The therapy had not worked. In fact, Shoirdae's hip had gotten worse--so much worse during all of this time that now the doctors told her the surgery wouldn't work. If she had gotten the operation her doctors said she needed when they recommended it, her hip would not have fused. She might today be able to walk, run, and play without a limp. Instead, she walks with a severe limp today and she has to wear special shoes because the HMO refused to pay for what was obviously needed--the surgery. The HMO refused to do what the doctors recommended. In fact, they overruled what the doctors recommended. Her father wrote to me and said: This has been the most horrible experience of my life. Imagine what it has done to my daughter. This is what this debate is about. This debate is about the 170 million to 180 million Americans who have health insurance--HMO coverage--but have no control over their health care. The HMOs have had the law on their side for too long. It is time for us to finally do something to put the law on the side of patients and doctors so that the Shoirdaes all over this country, when their doctor recommends that they have surgery, can have the surgery they need; when the doctor recommends a test, they can have the test they need. I yield the floor.

Mr. EDWARDS. Madam President, this is an issue on which we have consensus. The President of the United States said, ``Only employers who retain responsibility for and make vital medical decisions should be subject to suit.'' Our bill provides exactly as the President describes. As Senator Kennedy has indicated, we have consensus not only with the President of the United States but in this body and in the House of Representatives based on the Norwood-Dingell bill which was voted on before. This is an issue about which there is consensus. We are continuing to work. Senator Snowe and others are leading that effort. We are working across party lines to get stronger and more appropriate language so that employers know that they are protected without completely leaving out the rights of the patients. I urge my colleagues to vote against the Gramm amendment, which is outside the mainstream, outside our bill, outside our position, outside Norwood-Dingell, and outside what the President of the United States has said. I yield the floor.

Mr. EDWARDS

Mr. EDWARDS. Mr. President, I start by thanking my two colleagues, the Senator from Arizona, my good, dear friend from Arizona, for his work on this issue, and now my friend from Nebraska, with whom I have had occasion on this specific bill to work many days and many hours. As the Senator from Massachusetts has suggested, he has great expertise in this area, both in his time as insurance commissioner and his time as Governor. He and I have worked together on a number of issues, such as employer liability which we will be offering an amendment on hopefully tomorrow. We have talked about a number of other issues, such as the scope of the legislation, and medical necessity is another issue in which the Senator has been actively involved. I specifically thank him for his work on this issue on behalf of the people of Nebraska whom he represents. He has been extraordinarily diligent and involved in this very important issue of the Patients' Bill of Rights and patient protections. I thank him very much for all of his work and will continue to work with him. He has had terrific ideas all the way through the discussion. As to this specific amendment, I announce to my colleagues that we have negotiated during the course of the day with other Senators besides the sponsors of this amendment and have reached an agreement on a compromise that we believe accurately and adequately reflects a balance between recognizing the sanctity of the contract language while at the same time giving medical reviewers the flexibility they need to order care in those cases where the care needs to be ordered. Tomorrow we anticipate an amendment being offered by Senators Bayh, Carper, and perhaps others, that will reflect the results of those negotiations. We feel very pleased we were able to resolve that issue with some of our colleagues. For that reason, we will not be able to support this particular amendment, but I believe our amendment goes a long way toward addressing the same issues that my colleagues are trying to address with this amendment. Their work is helpful and productive, and we appreciate it very much. Tomorrow morning we will be offering the results of the work we have done with Senators Bayh, Carper, and others which, as I indicated, properly reflects the balance between the importance of the language of the contract and showing deference to that language while at the same time recognizing that in some cases the medical reviewers will need some more flexibility to do what is necessary for a particular family or for a particular patient.

Mr. EDWARDS. Yes.

Mr. EDWARDS. I agree with the Senator. As the Senator knows, the legislation offered by the Senator, myself, and Senator McCain, this specific language is supported by the medical groups from around the country involved with this issue on a daily basis that have a first-hand understanding of what works and what doesn't work. We have been working with those groups to fashion this language. That is the reason that language exists. We know from the American Medical Association and all the health care groups around the country that they support the language we have in the bill. That having been said, I say to the Senator, in order to try to address some of the concerns raised, my colleagues who are the sponsors of this amendment have been working with a group of Senators today to fashion an alteration to this language that makes it clearer that the contract language will be respected but balances that against the need for flexibility with the review panel. I believe we will have an amendment tomorrow to offer on that subject. I end by thanking my colleagues from Arizona and Nebraska. While I will not be able to support their amendment, we understand the issue. We believe our bill is adequate on this issue, but we will have an alternative to propose tomorrow. Ultimately the point of this, of course, is to protect patients, make sure patients get the care they need. I think the language in our bill plus the language in the amendment will accomplish that purpose. I yield the floor.

Mr. EDWARDS

Mr. EDWARDS. Mr. President, we come back today to resume debate on a very important bill to the people of this country, the Bipartisan Patient Protection Act, which we spent the better part of last week debating. It is an issue about which we have talked a great deal over the course of the last few years in the Senate. Let me discuss what the McCain-Edwards-Kennedy bill does and the reason it is important. Fundamentally, the reason we need this bill is that the law needs to be taken from being on the side of the HMOs and put on the side of patients and doctors so health care decisions in this country are, in fact, being made by people who are trained and have the experience to make them, those being the doctors, the health care providers, for the families who are so dramatically affected by those decisions. The purpose of this legislation is to provide certain substantive and enforceable rights to families and to children who need quality health care. For example, we provide specifically that if a member of a family or child needs to see a specialist, particularly outside the HMO plan, they can have access to that specialist. Second, we ensure that patients who need access to clinical trials will have access to those clinical trials. Clinical trials are often the places of last resort, places where the cutting edge of medicine is being researched, and we want to be sure patients who have exhausted alternatives and need access to clinical trials--all federally approved clinical trials, including FDA clinical trials--will have access. We specifically provide that benefit in this bill. Third, women should have access to an OB/GYN as their primary care provider. Many women rely on OB/GYNs as their primary care providers. We provide that right in our legislation. Fourth, we want to make sure patients have access to emergency room care. If a family suffers an emergency crisis and needs to go directly to the hospital, the nearest hospital, we don't want people to first have to call the HMO, call the 1-800 number and get permission to go to the nearest emergency room. There have been many horror stories of families that could not go to the nearest emergency room because they couldn't afford it and the HMO would not pay for it. We want to be sure families have that right. With this group of rights we wish to provide for patients and families across the country, we want to make sure every individual and family who is covered by health insurance, covered by HMO coverage, is in fact covered by this legislation. Our bill does that. These rights do not mean anything unless they are enforceable, unless they have the force of law behind them. Without the force of law behind them, they are not a Patients' Bill of Rights; they are a patients' bill of suggestions. We want to provide a meaningful way for patients to receive the rights we are giving. We provide several stages. If the HMO overrules the doctor and says, whatever your doctor says, I don't believe that treatment, that care, is needed, the first step is that the patient can then go through an internal review within the HMO to try to get that decision reversed, hopefully finding a group of people within the HMO who are willing to be more objective and support the decision the doctor has provided. If that is unsuccessful, the second stage is an independent review process, a panel of physicians with expertise who can look at the medical situation and decide whether or not that care should have been provided in the first instance. Last, if the patient has been injured and if these other areas have been tried, including the appeals process, the patient can take the HMO to court. There are several stages: First, the HMO hopefully will make the right decision, in which case none of this will be necessary; second, if they don't, an internal review within the HMO to reverse the decision that has already been made; third, if that is unsuccessful, to go to an independent group of doctors who can reverse the decision of the HMO. That is independent, meaning not connected to the patient, not connected to the treating doctor, not connected to the HMO. So you have an impartial group that can reverse the decision. All of that occurs before a case goes to court. If in fact it becomes necessary for the case to go to court, we simply want the HMOs--that for many years now have been privileged citizens that, like diplomats, get a kind of immunity in this country-- we want the HMOs treated just as everybody else. If they are going to reverse or overrule decisions that are being made by doctors, we want them to be treated exactly the way the doctors are treated; that is, if they make a medical judgment, reverse the decision of a doctor, their case will go to the same court as the doctor's case. Their case would be subject to the same State court limitations on recoveries as is the doctor's. So we leave that issue to State law. But the bottom line principle is, No. 1, HMOs should not continue to be privileged citizens. They ought to be treated as all the rest of us. There is no reason in the world that they are entitled to be treated better than everybody else. No. 2, if they are going to be in the business of reversing doctors, overruling doctors, making health care decisions, then they ought to be treated exactly the same way the doctors are treated. Our legislation providing real and meaningful rights, providing a way to enforce those rights, and as a matter of last resort providing for patients to go to court if in fact they have been hurt and they have no other choice, is supported, we believe, by a majority of this body, we believe a majority of the House of Representatives, and importantly, by the American Medical Association, and virtually every health care group in America. There is a reason for that. It is because the people who have been fighting for patient protection, the people who have been fighting for HMO reform to change this system we have in this country and to give patients more power to put the law on their side, are supporting our bill because we have real rights that are enforceable. It is a bill where the patient, along with the patient's doctor, gets to make most health care decisions. They have more control over their health care decisions. If the HMO does not do the right thing in the beginning, they have a way to do something about it to get those decisions overruled or changed. There has been some discussion over the course of the last 2 days on the pending amendment, the issue of employer liability. We start, I think, in principle, in agreement with the President of the United States. The President said in his written principles that he did not want employers to be held responsible in litigation--I am paraphrasing now--unless they actually made individual health care decisions. That is what our bill does. The reason for that is very simple. No. 1, we want to protect employers. In principle, we agree about that. No. 2, if an employer, in fact, overrules an HMO and stands in its shoes, or overrules a doctor, then and only then under our bill can they be held responsible, or if they overrule the HMO with respect to how the plan applies. Basically, what we have done is we have put a wall around employers unless they step into the shoes of HMOs and start making health care decisions. Issues have been raised. They have been raised in this debate by Senator Gramm with his amendment. Issues have been raised by employers around the country with whom we have been talking and with whom we will continue to talk. As a result of those discussions, consistent with the principle that both the President of the United States and we have established, we have worked and we have had meetings, I will tell my colleagues, over the last few days. On Friday, for example, I met with a number of Senators from both sides of the aisle, Democrat and Republican, to try to address the language, to try to craft language that will deal with concerns that people have about this issue--a bipartisan compromise on this issue. We are continuing to work on that compromise. There are a number of Senators involved. We will continue to work on it. But the amendment that is pending is at the extreme. It is inconsistent with the principles established by the President of the United States; it is inconsistent with our legislation, which is supported by virtually every health care group and consumer group in America. It is more extreme than the Norwood-Dingell bill that passed the House of Representatives last year. It is out there at an extreme. We believe there is a better, more reasonable middle-of-the-road approach that will provide maximum protection to employers and at the same time not completely eliminate patients' rights. That is what we are working on. We are working on crafting language. This is one of the issues on which we agree in principle with the President; that is, we start with the idea we would like to see employers protected unless they are overruling doctors and making individual health care decisions. Of course, the vast majority of employers in this country never do that. They turn over the handling of the day-to-day operation of their health care plan to the people they are paying and leave it in their hands. When they do that, they will not be exposed to responsibility. The bottom line is, what we have done in our legislation is consistent with what the President's principle provides. Even with that, since additional concerns have been raised about employers, since it is an issue about which we agree as a matter of principle, we are continuing to work with both Republican and Democratic Senators to craft a compromise which we hope a vast majority of the Members of this Senate will be able to support when we propose it. That issue, the issue of employer liability, as I indicated, is an issue on which I think we have substantial agreement. It is an issue I think we can resolve to the satisfaction of a majority of the Senate. We believe our bill as presently constructed does that. But in the spirit of trying to have strong bipartisan support for this bill, we have continued to work on it, and we will continue to do so. I yield the floor.

Mr. EDWARDS. Let me respond briefly to some of the comments made by my colleague from New Hampshire. This is the same tired old rhetoric the HMOs have been trotting out for years now to keep any kind of reform from occurring. They are now, by the way, spending many millions of dollars on lobbyists and public relations campaigns, and on television, to try to defeat any kind of reform. These are the same arguments we have heard before. We need to get past that. We need to get to talking about providing real protections and real rights for patients. That is what Senator McCain and I did. We worked for many months on this legislation to address many of the issues about which my colleague has just talked but nothing ever changes. No matter what we bring to this Chamber by way of patient protection, we hear these same arguments made. Let me speak to just a couple of those arguments briefly. First, on the issue of forum shopping, cases going to State court, I say to my colleague from New Hampshire, he should see what the Chief Justice of the U.S. Supreme Court, by way of the Judicial Conference of the United States, which the Chief Justice heads, said about this issue. He specifically said in a written letter dated March 3, 2000: The Judicial Conference urges Congress to provide that, in any managed care legislation agreed upon, the state courts be the primary forum for the resolution of personal injury claims arising from the denial of health care benefits. . . . What we have done in our bill is exactly what the Judicial Conference of the United States has said should be done. We have done what the American Bar Association says should be done; we have done what the Attorneys General of the United States say should be done; and we have done what the U.S. Supreme Court said, in the Pegram decision, should be done. I know it is a wild idea that Senator McCain and I have decided to adopt the consensus of every objective group in America on this subject, including the U.S. Supreme Court. I am telling you, they would complain no matter what we did, because this is the rhetoric of antireform. That is what this argument is about. Ultimately, this debate evolves into a very simple question: Are we going to do something about this problem or are we going to continue to kill reform legislation? We have to make a decision about whether we are going to make progress or whether we are going to obstruct progress. Another issue my colleague raises is the issue of caps and whether there are limitations on recovery. He had his chart, which is not here anymore, that had lots of information about unlimited lawsuits and that there were to limitations. I sy to my colleague, what we have done, that he does not like, is we have treated HMOs exactly the same way as every doctor, every hospital, and everybody else in America is treated. All of the rest of us, everyone listening to this debate, whether on television or in person, is treated exactly the way we treat HMOs in this bill. They do not like that. HMOs, I am sure, would like to maintain their privileged status. That is why they are spending millions of dollars to try to defeat our legislation with respect to the specific issue of employers. I say to my colleague, the President of the United States--the Republican President of the United States--and I am reading from his written principle--says: Only employers who retain responsibility for and make final medical decisions should be subject to suit.

Mr. EDWARDS. I will, yes.

Mr. EDWARDS. I thank the Senator for his question. I think the Senator is concerned about some of the same issues others have raised and on which we have been working. I think it is a legitimate question. I say to the Senator, what we did in our bill is have language that was intended to protect employers unless they stepped into the shoes of the HMO and actually made a medical decision essentially overruling the HMO. That was conceptually what we did in our bill, and that is conceptually what the President says in his principle. But the practical question which the Senator asked is a legitimate question. That is the reason, I say to the Senator, we are working with our colleagues across the aisle--Republicans and Democrats--to try to craft appropriate language, because we do not want to create a disincentive. We want to protect employers, particularly the small business employers about which the Senator is talking. But I say to the Senator, it is not just the small employers. Although they are a very small part of the population of employers in this country, we also have self-insured, self-administered plans where basically the employer is the only entity managing the health care of its employees. What we want to do is try to find a way to provide some protection also for those employers. Those are the kinds of issues--the question the Senator asked, which is a very fair question, and the issue I just raised of the self-employed, self administered plan--those are the kinds of issues we are trying to address without leaving the patient or the employee completely out in the cold. I do believe there is a way to do that. It requires some work and creativity, but it can be done. Our goal in this process is the same. We want employers to be protected; we want to provide maximum protection actually for the employers without completely leaving the employee out, for example. The problem with completely carving out the employer, as this amendment does, is that in some cases you may have an employer, a large employer, where they are a self-insured and a self-administered plan. Let's say a bookkeeper says, we are not paying for the test for the child of an employee; that child suffers some serious consequence from that. Under this carve-out, there is nowhere that child could go because there is no HMO. It is a self-insured, self-administered plan. Under the President's language, which says ``only employers who retain responsibility for and make final medical decisions should be subject to suit,'' there would be somewhere for that child of that employee to go. What we are trying to do--and I think it can be done--is to fashion language that provides maximum protection for the employer but at the same time doesn't leave that small group of employees that would be impacted by it completely out in the cold.

Mr. EDWARDS. That kind of unintended consequence is exactly what we want to avoid. The issues the Senator from Virginia is discussing in this colloquy are the same kinds of issues that have been addressed by employers to us and my colleagues who are working to try to fashion language to solve the problem the Senator raises and the problem raised in the earlier example and to make sure, for an employer that has improperly been brought into a case--if they have been brought into a case and they don't belong in the case, we provide a mechanism, a procedural mechanism that they can get out of the case so they don't get dragged through a court proceeding when they don't belong there. Those are the kinds of issues that need to be addressed, that we are attempting to address, and I believe we will find a solution to, consistent with the principle the President has laid out and the principle in which we believe.

Mr. EDWARDS. Mr. President, what we have done in the McCain-Edwards- Kennedy bill is structured a system that, unlike my colleague describes, is actually intended to avoid cases going to court. If we didn't want to avoid cases going to court, we would not first have an internal appeal and then have an independent external appeal. What we have learned from experience is the majority of cases get resolved. In Texas, California, and in Georgia, for the three examples, when that system is in place, most cases get decided by that system. I think in Georgia and California there actually hasn't been a single lawsuit filed. That is good because the purpose is to get treatment to patients. But there will be rare cases where the HMO does something inappropriate, wrongful, and, as a result, somebody gets hurt. It is not right, under our system of justice, for a family to be responsible for the rest of their lives to pay for that. If the HMO is responsible, they should be held accountable, just as all the rest of us. That is the reason we have set up this system the way it is. What we have ultimately is real rights that are enforceable through an internal review, then an external review, and then, if necessary, if someone gets hurt, the case can go to court. And the cases that go to State court, where the HMO is treated just as everybody else, are subject to whatever State laws and caps apply to those kinds of cases. So there are, in fact, limitations. The rhetoric that there are no limitations is, in fact, not true. The majority of States in this country have limitations on recoveries. And as the judicial conference suggested, as the American Bar Association suggested, as the State attorneys general suggested, we have sent those cases to State court, to a place where there are limitations on recovery but where we treat the HMOs not as privileged citizens anymore but just as all the rest of us. To Senator McCain and me, as we worked on this, it seemed the fair, right, and just thing to do--that HMOs get treated the same as everybody else. If they are going to make medical decisions, they ought to be treated as the doctors whom they are overruling. That is exactly what the structure of this bill is. My colleague said something that was incorrect a few minutes ago. He said that all you had to do to avoid the appeals process and go straight to court was to allege that you had irreparable harm. That is not the case. That word does not appear in our legislation. But if, in fact, someone has died as a result of what an HMO has done to them, we thought it was a little unreasonable to make the family of someone who has already died go through an appeal before they could go to court. There is not much reason for them to be exhausting administrative remedies. We think we have a commonsense approach, one that works. The model of California, Georgia, and Texas, and other States shows that these laws work. They give patients rights. They don't result in a lot of litigation. In fact, in those three States, in spite of the rhetorical arguments being made that people will lose their health insurance, in those three States, while those laws have been in place with real patient protection, the number of uninsured has gone down, not up. So at least the evidence, according to the three models we have used, is that people think this system works. Lawsuits are not created by it. In fact, they are avoided. Third, the number of uninsured, at least in those three jurisdictions, has not gone up. In fact, it has gone down. I yield the floor.

Mr. EDWARDS

Mr. EDWARDS. I do remember that.

Mr. EDWARDS. I do remember it.

Mr. EDWARDS. I do.

Mr. EDWARDS. I will respond to the Senator's question. I say to my colleague from Iowa, who has been waiting for some time, that I will be brief and I will yield the floor to my friend because he has been waiting to speak. First of all, the arguments being used serially, one after another, are all arguments that have been trotted out by the HMOs for years now. They are the arguments they make to avoid any kind of reform. They like it just the way it is now. They are different than every other business entity or individual in America, and they want to maintain the status quo. The Senator knows very well that they are spending millions of dollars on lobbyists, public relations, and on television to defeat any kind of HMO reform. So these arguments go to a really fundamental question: Are we going to move forward or are we going to stay where we are? There is a consensus in this country among the American people, among the Members of this body, among the Members of the House of Representatives, and among virtually every health care group and consumer group in America, that this needs to be done--``this'' being The Bipartisan Patient Protection Act. There is a reason for that consensus--because we need to do something about this issue that has lingered for so long. For every day that passes, while we engage in what sometimes is high rhetorical debate on the floor of the Senate, there are thousands of American citizens, children and families, who are being denied the care for which they have paid. Now, it is all well and good for us to have an academic discussion in the Senate about this issue. But there are families and kids all over this country who are not getting the tests they need, not getting the treatment they need, not getting the medical care they need because this legislation has not been passed. Now, having said that, let me respond specifically to the Senator's question. First, as to the employer liability issue, the Senator knows that John McCain and I worked for months on it. There was a bill in the House of Representatives--the Norwood-Dingell bill--which passed and provided somewhat broader exposure of employers to liability. Senator McCain and I worked, because we are concerned about this issue and we want employers to be protected, to draft our bill with that goal in mind. President Bush has issued a written principle which is almost identical to our bill. He says, as we say, that unless an employer actually makes a medical decision on an individual patient, they should be exempted from liability. We believe that is what our bill does. The Breaux-Frist bill--the other bill--has another model, what is called a ``designated decisionmaker.'' But it also holds employers, through the designated decisionmaker, responsible where they make individual medical decisions. So what we have is our bill, the Norwood-Dingell bill that already passed the House, President Bush's principle, and the Breaux-Frist bill, all of which start with a very simple concept; that is, employers ought to be protected unless they step into the shoes of the HMO and make medical decisions. The only different position is that of Senator Gramm in his amendment. His position is inconsistent with all those positions, including the President's, inconsistent with the legislation that passed the House, inconsistent with the Breaux-Frist bill. His position is the extreme position. What we are working on as I speak--and we worked on it this past week and over the weekend, Republican and Democratic Senators both--is language that we believe will be appropriate and will help provide more protection for employers. But what can't be left out of this discussion is the patients; you can't forget the patients. I listened to my friend from Missouri speak a few minutes ago. I didn't hear the words ``patient,'' ``employees,'' or ``families'' spoken by him. I think his concern about employers is to be respected, and that is the reason we want to work together on this issue. We have to always keep in mind, when we are trying to protect employers, that we also have the rights of employees and patients to take into account. So the right approach is an approach that allows us to provide maximum protection for the employers, without completely ignoring the interests and, in fact, protecting the interests of the patients at the same time. We believe that is what we do. We believe that is what the President has suggested. There are issues in this debate about which there is great disagreement, but this is not one of them. This is one where regarding the President in his principle, us, and the Breaux-Frist proposal, there are minor differences between them. The bottom line is that all of those start with a simple concept and principle. It is a matter of making sure the language works in an effective day-to-day way.

Mr. EDWARDS. That is true. We will continue to work on it, going forward. We are continuing to work on it as we speak. If we can find a way to maximize protection for employers with appropriate language and, at the same time, not ignore the interests of the patients, we will do that. I believe that can be done. So do Senators on both sides of the aisle who are talking about this particular issue.

Mr. EDWARDS. We have. We worked long and hard. I believe we have protected employers from many of the concerns that those across the aisle and on both sides of the aisle have raised. But I am the first to say this is an issue on which we should work together to make sure we have language that works to protect America's employers. I yield to my friend from Tennessee.

Mr. EDWARDS. Mr. President, let me say a few words about the bill and tell a story about a patient in North Carolina, and we will have an amendment to offer. First of all, the entire purpose of this legislation is to change the law so that the law is on the side of patients and doctors instead of being on the side of the big HMOs, where it has been for many years. We want health care decisions made by families who are affected by them, and by doctors and nurses who have the education and training to make those decisions. It is just that simple. That is the reason we create the rights among all Americans with health insurance or HMO coverage to have more control over their health care decisions. That is what this is about--having those rights be enforceable because if they are not enforceable, they don't mean anything. That is why we have specifically provided for access to specialists by families; access to clinical trials, if they need that; and being able to go to the emergency room directly without having to call an HMO or a 1-800 number before going to the emergency room--that is the last thing in the world any family ought to have to worry about before going to the emergency room--making sure a woman can see an OB/ GYN as a primary care provider. These rights are aimed at giving patients and families more control over health care decisions. We have all heard the horror stories of legitimate claims being denied by HMOs. That is what this bill is aimed at--putting the law on the side of the patients and on the side of the doctors. In addition to these substantive rights, we have provisions to make those rights enforceable, so that they mean something. We have an internal review process. First of all, the HMO decides in the first instance whether they are going to cover a claim. If that is unsuccessful, then we have an internal review process within the HMO to get that decision reversed. So if a child is denied the care that child needs, then the family has somewhere to go. These families who are up against big insurance companies, big HMOs, big bureaucracies, under present law they can't do anything. I say this to my colleagues who have been here. Some say we need to spend more time on this issue. This issue has been around for years now. Every day that we fail to enact legislation and have it signed by the President, there are thousands of people in this country who are being denied the care they need. This is an issue that we need to do something about and stop talking about. It should not be a political issue. Senator McCain and I have bipartisan support, consensus support for our bill here in the Senate and in the House of Representatives. We have virtually every health care group and consumer group in America, including the American Medical Association, supporting our legislation. These people deal with these issues every day. Doctors get to see what is happening to their patients, and there are bureaucrats sitting behind desks 200 miles away, never having seen their patient, telling them what their patient needs. We have families all over this country who know that their child needs a test, but some bureaucrat five States away, sitting behind a desk somewhere, says they are not going to pay for it. That is what this legislation is about--so that when people have health insurance and they have HMO coverage, it means something. If they get rejected arbitrarily and are treated unfairly and improperly by a big HMO, they would have the power, finally, to do something about it. That is why we have an internal review process--to reverse the decision within the HMO--and then if that does not work, we have an independent third party review, a panel of doctors, who can come in and say, that is wrong--the doctor was right, the HMO was wrong--and order the treatment be provided. None of these things exists today. Today, if a doctor orders a test for a 5-year-old child with cancer and if an HMO says, ``We are not paying for it,'' they are stuck. There is no internal review process; there is no external review process. What chance does that family have against a huge insurance company? That is what this bill is about. It is about a very simple idea: that HMOs and insurance companies ought to be treated as everybody else; more importantly, putting the law finally back on the side of patients, families, and doctors so they can do something about a wrongful decision by an HMO or an insurance company. That is what this debate is about. The HMOs have been trotting out every conceivable obstacle to something happening. Anybody who turns their television on will see the ads they are running right now, all these scare tactics and old rhetoric. They have been using it for years. They just want to do everything they can to keep their special status, their privileged status. They like things the way they are. They do not want patients and families to have any power. We are going to do something about it. I will tell you something else: The families, the children, the patients do not have lobbyists in Washington; they do not have millions of dollars to buy ads on television. They are counting on us to represent them. They are counting on us to do something for them. That is what this debate boils down to: You are either on the side of maintaining the big HMO special status or you are on the side of letting families, doctors, trained people, make health care decisions. It is not an accident that the American Medical Association, hundreds of health care groups, doctors groups, and consumer groups support our bill. It is not an accident that most of the Senate supports our bill. It is not an accident that most of the House of Representatives supports our bill. There is a consensus in this country that something needs to be done. What we have to make sure that we get past all the old rhetoric, all the old scare tactics, all the propaganda that is put out by the HMOs. They have huge resources and their voice is heard loudly and clearly in this debate. Our responsibility is to make sure the voices of the families of this country who do not have big money, who do not have anybody lobbying for them in Washington, are being heard. That is what this is about. Stalemate and nothing occurring is exactly what the HMOs want. That is the easiest result. We have to overcome that. We have to overcome their rhetoric. We have to overcome these obstacles because we are fighting for the children and families of this country who need to make their own health care decisions. Today I want to talk about one such family. This is a young woman from Wilmington, NC. Her photograph with her husband is behind me. Her name is Terri Seargent. She suffers from a fatal genetic disorder known as alpha one. Alpha one keeps Terri's liver and lungs from working properly. Her body is not able to fight off viruses or pollutants in the air, and if it is left untreated, alpha one eventually destroys the lungs and causes the patient to die. Terri is still fighting this disease, but she is at the point where she only has 43 percent lung capacity. The problem is Terri is not just fighting this serious disease; she is also fighting her HMO. Ever since she was diagnosed with alpha one, she has been treated by specialists who put her on medication to keep her lungs working as well as they can, to keep her from getting worse. With that medication, she is able to lead a fairly normal life even though she has a serious problem. She continues to work. She switched jobs, so she has a new HMO, a new health plan. Her HMO first would not let her see the specialist she had been seeing. Second, they would not pay for her medication. They told her she ought to switch to a generic drug because it was cheaper, but then they would not pay for the generic drug. Here is a young woman who has a very serious medical problem; she is continuing to fight through it courageously to go to work and do everything she can to be productive for herself and her family, and her HMO will not let her see a specialist and will not pay for her medicine. Her medication costs $4,000 a month. It is expensive, but it is critical to the quality of her life and being a contributing member of her family. What good is her health insurance--she has been paying premiums for years now--what good is that if, when it actually comes time that she needs this medication to allow her to continue to live and stay as healthy as she can and continue to work, the insurance company will not pay for these prescription drugs she desperately needs? Unfortunately, Terri's case is one in a long list of what we hear every day. When I have townhall meetings or when I am standing on a street corner talking with people, over and over they come up to me and say: You won't believe what the insurance company did to me; you won't believe what the HMO did to my child. These people need a chance; they need a fighting chance, and that is all we are trying to do, to level the playing field. Let's give these families and young women such as Terri who have serious diseases a chance when their insurance company or HMO says: You are out of luck; we are not paying for it. When a child with cancer needs a test or specialized care and the HMO or insurance company says, ``We're not paying for it,'' even though they have been paying premiums for years, all we are trying to do is give that family a chance. It gets to be pretty simple. In many cases, it is an individual, a child, a family against a big insurance company, the same big insurance companies that are spending millions of dollars on lobbyists and television ads right now to make sure people such as Terri cannot take them on. That is what this fight is about. It gets to be about a very simple problem. I have worked with my colleagues on this issue all the time I have been in the Senate--some worked on it very hard before I came to the Senate. I believe when we finish this debate--hopefully this week, but if not this week, for whatever period of time it takes--that we will finally be able to say the big HMOs and all their money and all their power have been overcome and doctors, patients, and families in America finally have a chance.

Mr. EDWARDS. Yes.

Mr. EDWARDS. That is absolutely a fair statement. When I have town hall meetings in North Carolina, we often have physicians show up and share horror stories, including ordering care for a patient, with some clerk sitting behind a desk 300 miles away reversing it and overruling a doctor with many years of education and training because they thought they knew better; there was no way they would pay for the particular care.