John Edwards

Mr. EDWARDS

Mr. EDWARDS. I thank the Senator for his comments. I point out, as the Senator well knows, the American Medical Association strongly supports our legislation. Having met with them many times about this issue, they want their doctors to be able to provide the quality care they need to provide to their patients. It is a simple thing from their perspective. For health care providers, doctors and nurses, this is not a money issue. This is not an issue of what their earnings or salaries will be. This is purely an issue of whether they are going to be able to provide the care they have been educated and trained and have spent their life preparing to provide. That is what this is about. They are committed to doing something. Every day their members all over this country see in their offices patients who need treatment, who need care, who are being arbitrarily denied by people far away who have never seen them, who have no idea what they need. The horror stories go on and on. We have a young man in North Carolina who is severely sick. They quit paying for his oxygen. We had a young boy with cerebral palsy who needed physical therapy and other therapies on a daily basis and they said it would not do any good; they were not paying. The stories go on and on and on. With respect to our colleagues on both sides of the aisle, we will work our way through the intricacies of this legislation, whether the issue of exhaustion of administrative remedies, legal terms that may not mean a lot to the American people, we will work our way through those issues and find a bipartisan way to get that done. What we shouldn't do is leave the Senate without having done something about this issue. The issue has been around for years and has been fought vigorously by the HMOs. We have a responsibility to empower the families of this country to have more control over their health care decisions. That is what this debate is about. Hopefully, by the time we finish this debate, whether this week or next week or the following week, however long it takes--and I believe Senator Daschle indicated he is willing to stay as long as we have to--we will be able to walk out of here and be proud of what we have done in giving families, doctors, and patients more control over their health care decisions and the power to do something when they have been treated improperly. That is what this is about. Amendment No. 812 Mr. President, pursuant to the previous order, I call up the amendment at the desk by Senator McCain and myself.

Mr. EDWARDS. I ask unanimous consent reading of the amendment be dispensed with.

Mr. EDWARDS. We have talked about the need for an independent review once there is an internal review and the HMO or insurance company denies the claim, to be able to go to a truly independent panel to get the case decided and the decision reversed if a wrongful decision has been made. This sense-of-the-Senate amendment simply provides we all believe that review panel needs to be truly independent in that the HMO and the insurance company should not be able to appoint the members of that panel nor have control over who goes on that panel. We will debate this amendment tomorrow, but its underlying purpose is to support the notion that I think a majority of the Senate, maybe the vast majority, supports, which is if you are going to have an independent review by a panel of health care providers or doctors, that panel needs to be truly independent, not connected to the HMO, not connected to the insurance company, and also not connected to the patient or the doctor involved, so you have a fair and impartial group to decide whether the claim or treatment should be paid. I yield the floor.

Mr. EDWARDS

Mr. EDWARDS. Madam President, I rise today in support of the McCain amendment. Before I get to that, I want to say a few words about a patient in North Carolina who has had problems with HMO health insurance coverage. Ethan Bedrick was a young boy who was born in 1992 in Charlotte, NC. Because of the circumstances surrounding his birth, unfortunately, Ethan was born with cerebral palsy. As a young child, he was treated by a wide variety of health care providers--many specialists, doctors, pediatric specialists who tried to help Ethan and his family with Ethan's problems. Among the things they prescribed was therapy on a regular basis-- physical therapy and other kinds of therapy--to help prevent the kinds of problems we often see with older persons who have cerebral palsy of becoming constricted, tightened up, and not able to use his limbs properly. Every medical provider who made these recommendations to Ethan suggested that he needed this therapy and that it was medically necessary for his ongoing care. All of the doctors who treated him, and there were a multitude of them, believed he needed this therapy. The only one who disagreed was his insurance company. That decision was made by someone sitting behind a desk somewhere many miles and many States away from Ethan. This is a photograph of young Ethan. As a result, it was necessary for Ethan's case to be taken first to Federal district court, and then to be taken through an appeal that lasted a long time--2, 3 years, approximately. After all that time and effort, Ethan was finally able to get the care he needed when a U.S. Circuit Court of Appeals in Richmond, VA, the fourth circuit, said the decision made by the insurance company was arbitrary, ridiculous, and completely inconsistent with any kind of medical standards because it was obvious that Ethan needed the therapy that all of his health care providers said he needed. In fact, the insurance company said: We don't want Ethan to get this therapy. He is never going to walk. It is not going to do him any good. We are not paying for it. Well, the Fourth Circuit Court of Appeals found, not surprisingly, that Ethan's doctors, with training and experience in treating children in his condition, knew better than some insurance company clerk sitting behind a desk somewhere. Unfortunately, it took years to get this accomplished--years of being in court and years of effort by Ethan's family. Young Ethan, under our Bipartisan Patient Protection Act, would have had a right to an immediate internal review within the insurance company and, had that been unsuccessful, to an external independent review, where the odds are almost 100 percent that he would have been successful since every single doctor in all areas of specialty treating Ethan said he needed this daily therapy to keep him from becoming bound up and constricted. This is a perfect example of why we have to do something about what health insurance companies and HMOs are doing to people in this country. Now, specifically to the amendment offered by my friend from Arizona. It is critically important that patients have access to all clinical trials, including FDA-approved clinical trials. The FDA-approved clinical trials are where much of the cutting edge research is being done in the area of cancer. For many patients around this country--I spoke of one yesterday--that is the place of last resort. They have nowhere else to go. When chemotherapy, surgery, all these other cancer treatments are not successful, they are left with one option, which is to participate in a cutting edge clinical trial. Unfortunately, if that is not paid for by their HMO or the insurance company, many times they have nowhere to go. Our bill specifically covers these clinical trials. We think it is very important that HMOs and insurance companies cover them. The competing bill does not. This amendment specifically covers that provision. Second, access to specialty care. We simply want patients to be able to go outside the HMO when that is their only option. We support the amendment, and I urge my colleagues to vote for it.

Mr. EDWARDS

Mr. EDWARDS. Madam President, I rise today to speak in support of the Bipartisan Patients' Protection Act. I thank my colleague from Arizona with whom I have worked for many months to help draft this legislation. I also thank my colleague from Massachusetts who has worked on this issue for many years. It is a critically important issue to the American people. Let me talk a little bit about this issue, what this legislation does, and what this debate is about. We start with a very simple idea. That idea is to put the law on the side of patients, doctors, and health care providers. For many years, the law has given privileged status to HMOs and big health insurance companies in America. They are treated differently than any other group in this country is treated. They can do whatever they want. They can make decisions solely on the basis of cost and money, the bottom line and the profit, and they cannot be held accountable in any way. If they deny coverage for treatment that a child needs, or for a test that someone needs, or a visit to the emergency room by a family who had a true emergency, there is nothing that family can do. There is nothing that child can do. There is nothing that patient can do. They are stuck with whatever decision is made by the HMO. They are privileged citizens. Not surprisingly, they like their privileged status. They want to stay right where they are. They do not want the law changed. They do not want to be treated like everyone else. They do not want to be treated like others. They do not want to be treated like any other small business or big business in this country. It is time to change that. It is time to give real rights to patients. That is what this legislation is about. It is time to put the law on the side of families, patients, and doctors. We have some very specific protections that are critical in this bill. We start with the simple principle that every American who is covered by health insurance or an HMO is covered by our legislation. If you have HMO coverage, or if you have health insurance coverage in this country, our Bipartisan Patient Protection Act covers you, period. If a State has a stronger protection law, if a State has a provision that is stronger than the provisions of our bill, that State law will remain in effect. But our law provides the floor below which no State can go. We cover every single American who has health insurance or HMO coverage. Second, we also provide that women can be seen by an OB/GYN as their primary care provider. Women across this country have had this issue come up over and over where they have to go through a gatekeeper in order to go see the physician who is, in fact, their primary care provider, an OB/GYN. We eliminate that problem. We provide direct access to specialists. For example, if a child who has developed cancer needs to be seen not by a general cancer doctor--just a general oncologist--but by a child specialist, a pediatric oncologist, we specifically provide that the child can see the specialist the child's family believes their child needs to see. That is what we mean when we say we provide direct access to specialists so that people can see the specialist they need. Emergency room care: If a family has an emergency at home, in an automobile--wherever--and needs to go to the emergency room, the last thing in the world they want to be thinking about is, Do I need to call my insurance company? Do I need to call my HMO before I go to the emergency room to get the treatment I need? We have eliminated that--no 1-800 numbers; no trying to look through the drawers to figure out where your insurance company is and how to call them. If somebody gets hurt, and they need to go to an emergency room, it is very simple. You go to the nearest emergency room, and you are covered. That is the way it ought to be. Unfortunately, it has not been as it should have been. We protect patients in emergency situations. These rights: Access to specialists, emergency room care, women being able to be seen by an OB/GYN, access to clinical trials--we specifically provide that if a patient participates in a clinical trial, the costs that are not covered by the sponsor of the trial, the attendant costs, the hospital care or other things, in fact will be covered by the HMO and the insurance company. Clinical trials are critical, not only to patients for whom they are often the last hope, but they are also critical to our Nation in continuing to lead the way in this world in advancements in medicine. We make sure clinical trials are covered. In the area of specialist care, clinical trials, access to emergency rooms, and access by women to an OB/GYN, we have real substantive patient protection. But those rights are meaningless unless they are enforceable. It is not a Patients' Bill of Rights unless there are enforcement provisions. Without meaningful strong enforcement, it is not a Patients' Bill of Rights. It is a patients' bill of suggestions. We want a real Patients' Bill of Rights. That is what our bill is. We have real enforcement. The entire bill is designed to get patients the care, the treatment, and the tests they need and should have gotten to begin with from the very outset. We want the insurance company and the HMOs to know that if they do something wrong, their decision can be reversed. The first thing we have is what is called an ``internal review process'' within the HMO. If a child needs a test, and the HMO says they are not paying for it, and the family doctor says the child still needs it and they overrule the doctor--if that occurs, that family has somewhere to go. They go to an internal review process within the HMO. If that is unsuccessful, and for a second time the HMO says no, then the third step is an external independent review. We set up a system, a panel of doctors and experts who have no connection at all with the patient or the doctor involved--no connection at all with the HMO that can then look at the medical facts and determine whether that child needs that test and can reverse the decision of the HMO. So there are three stages through which the right decision can be made. Hopefully, the HMO will do the right thing to begin with, as on many occasions in the past. If they do not, then they can be reversed by an internal review process. If that is unsuccessful, then you can go to an independent appeal board. This is all before anybody goes to court. You can go to an independent appeal board that can reverse the decision of the HMO. So we have set up a system designed to make sure the patients get the care they need, and get it as quickly as they possibly can. That is what our whole system is designed for. It is designed to avoid anybody ever having to go to court. Unfortunately, there will be occasions where that system does not solve the problem--they are rare, but they will occur--and where a patient has been hurt because of some arbitrary or intentional decision by an HMO, where an HMO says: We are not paying for that. We don't care what the doctor said. We don't care what this child needs. We're not paying for it. And a child suffers a serious injury. As a result, those cases can then go to court. We have heard lots of arguments in the public debates on this issue in relation to the creation of lawsuits. That is not what this legislation is about. This legislation is about real patient protection. It is about a system to reverse a bad decision by an HMO, and then ultimately treating HMOs like everyone else in this country-- every other business, every other American. You and I, when we do something, we are responsible for it. We believe in that in this country. We believe in individual responsibility. When we make a decision or we take some action, we believe we ought to be held accountable for that and we ought to be responsible for it. We believe it all the way down the line. That is the concept this bill enforces. We take away the special protections HMOs have had in the past, where they can in no way have their decision reversed. If they deny coverage to a family, they are stuck with that decision. It cannot be appealed, cannot be challenged, cannot be taken to court. They are stuck with that decision. We change all that. Now, under this legislation, they are treated exactly the same. If all the appeals have failed--if an HMO denies coverage, and the internal appeal fails, the external appeal fails, and someone is hurt, then we treat them like anybody else. They have made a medical decision. They have overruled the doctor, who has years of training and experience and who has actually seen the patient. So we put them in the shoes of the doctors. If they want to make medical decisions, they ought to be treated like people who make medical decisions. For that reason, we send the majority of the cases to State court, which is where doctors and hospitals and businesses go.

Mr. EDWARDS. Yes.

Mr. EDWARDS. I thank the Senator for his question. The Senator knows, of course, because he and I have worked on this issue over a period of many months, that we both believe very strongly that we ought to protect employers from liability, period. What we have done in our legislation is we have followed the outline of the President's principle. The President has said, in his principle, that he does not want employers held responsible for liability unless they actually make individual medical judgments, which, of course, is extraordinarily rare. Our bill does exactly the same thing. It specifically protects employers unless they make an individual medical decision. But the Senator is also correct that we start with the idea that we want employers protected, and to the extent our colleagues have ideas on this subject, we welcome those ideas and are willing to talk about this. The Senator and I have talked about this not only from the outset but over the course of the last several days. So we are more than willing to consider other possible ideas on this subject that will more strongly protect employers from liability. Basically, the entire legislation is intended to do two things: One, give real rights to patients, so the law does not continue to be just on the side of the big HMOs; and, two, to make those rights enforceable, so that when a patient or family is denied coverage, they can do something about it. It is just about that simple. And it is designed to get the care to the patient as quickly as we possibly can. My colleague from Arizona just asked a question about employer liability, which we have just talked about. We believe very strongly that employers ought to continue to provide coverage, and we want to protect employers from liability. Second, there is an argument made that this will result in lots of lawsuits. The truth of the matter is, all we are doing is taking away the shield, the privileged status HMOs have today that makes them different from all the rest of us. We just want them to be treated like every other American, which I think is fair and equitable. But what we have learned from the three States--Georgia, California, and Texas--that have similar laws, is that almost all claims are resolved either with the internal appeal or the external appeal. In those three States, I think there has been a total of about 17 lawsuits. In the State of Georgia, Senator Miller indicated yesterday there has been none. And those are three large States. So the evidence does not support the argument that this is going to result in lots of lawsuits. In fact, we believe that is not true. Senator McCain and I have worked very hard to design this bill to avoid that occurrence. But rarely it will occur. And if it does occur, we just want the HMOs treated like everybody else. There are real differences between our legislation and the competing legislation. I will not go through the details of those differences, but let me just say they begin from the very outset of the bill and flow to the end. We make it clear that every American is covered, and their language is less clear about that. We allow patients to have direct access to specialists outside the plan. They allow the HMO to make those decisions. We make clear that people have access to clinical trials, including FDA-approved clinical trials. They do not. We have a clearly independent review process where no one, including the HMO, can be involved in who is on the appeal panel. They do not. We send cases to State court, so HMOs are treated just like the doctors and the hospitals and all the rest of us. They give them special, privileged treatment by sending their cases to Federal court, where they are less likely to get hurt and it is harder for the patient to actually have a determination of their case or their claim. So in every single case where there is a difference, they favor the HMOs, we favor the patients. That is the reason that the American Medical Association and, I think, over 300 or 400 medical groups in this country support our legislation. Virtually every medical group in the Nation supports our legislation--and consumer groups. There are a handful that support both. But there is a reason that all those groups favor our legislation. There is a reason the HMOs favor their legislation. The reason is very simple. We have real and strong patient protection. And in every case there is a difference, their bill favors the HMOs, our bill favors the patients. I would like to tell you a quick story about a patient in North Carolina. He is a young man named Michael Gray Whitt, who is shown in this photograph. Today he is a beautiful, happy 2-year-old little boy. He and his family live in Fleetwood, NC. His parents are Marc and Terri. Unfortunately, at the time he was born, he was not as healthy and happy as he is here shown in this picture. He was born 4 weeks early at Watauga Medical Center in Boone, NC, because of a blood disorder.

Mr. EDWARDS. Madam President, I ask unanimous consent for an additional 5 minutes.

Mr. EDWARDS. Absolutely.

Mr. EDWARDS. I thank my colleagues. Madam President, when Michael Gray Whitt was born, he suffered from a blood disorder known as RH isoimmunization, which occurs when the mother has one blood type and the baby has another. The mother's body reacts by producing antibodies that attack the baby's blood. It can cause anemia, jaundice, enlargement of the liver and spleen, and it can even cause death. It is usually prevented by taking a drug, which Michael's mother took, but it did not work in her case. When baby Michael was born, he was at risk for liver failure, seizures, and brain damage. A newborn medical specialist recommended that he remain in the hospital where he could be watched in case any of these problems developed. He was very much at risk, very much in peril. The doctor specialist who was taking care of him knew he needed to be in the hospital so if anything went wrong they would be able to do something about it. He was right to be worried. Michael's liver was not working properly, and he was kept in the hospital, in fact, for treatment. You can imagine how his parents Marc and Terri felt when less than 72 hours after he was born the HMO wanted him discharged from the hospital. Luckily for Michael, his doctor refused to follow the HMO's order. But when he showed some marginal, slight signs of improvement after 2 days, the HMO insisted that he be discharged. So he was sent home. His parents were in shock. Why in the world would their HMO send a sick baby home who everyone knew needed to be watched carefully in case problems developed? Less than 24 hours after the HMO sent him home, he got sicker than he had ever been. He was lethargic. He had jaundice, and he was eating poorly. Tests showed his liver problems had gotten worse. So less than a day after he was sent home against his doctor's wishes, he was back in the hospital. I would like to share some words of Michael's dad, Marc Whitt, about his ordeal. This is what he said: I could never put into words the amount of stress and anxiety my wife suffered throughout this first week of our child's life. It was hard to deal with a helpless, sick newborn but impossible to understand and tolerate an insurance company's total disregard for our child's life. I wonder how many people's lives will be ruined by the actions of an HMO before HMOs are held accountable for their behavior. That is a good question. How many more children will suffer serious injury or death before we do something about what these HMOs are doing? A couple of days ago one of the chief spokespeople for the HMOs was quoted in the New York Times as saying: We are prepared to spend whatever is necessary on public relations, on lobbyists, on television ads. But they were not prepared to spend what was necessary for this young child to get the care his doctor knew he needed and his parents knew he needed. We have a message for the HMOs. Whatever millions of dollars they are willing to spend, whatever the power of their lobbyists here in Washington, we are prepared to stand and fight along with Michael and families like his all around America, as long as is necessary, to ensure that finally in this country HMOs, just like all the rest of us, will be held responsible for what they do. I yield the floor.

Mr. EDWARDS. Mr. President, on the first day of debate on the floor of the Senate on the Bipartisan Patient Protection Act, supported by a majority of the Senate, a majority of the House of Representatives, and virtually every health care group in America, what was the response of the President of the United States? A written veto threat on patient protection legislation. In fact, this written veto threat could very easily have been written by the big HMOs. It duplicates what we have been hearing from the big HMOs from the very outset of the fight for patients and doctors to give them real and meaningful rights. It reminds me a great deal of what was said to the New York Times by a consultant for the big HMOs. When brought to his attention that they were spending millions of dollars to fight against patients and against doctors, millions of dollars on lobbyists, broadcast television ads and public relations, this was his response: We'll spend whatever it takes. The HMOs of America are prepared to do whatever is necessary and to spend whatever it takes to make sure that the patients of this country and the families of this country never get the protection they deserve. We have a message for the big HMOs of this country. We are prepared to fight as long and as hard as is necessary to ensure that finally the big HMOs no longer have their privileged status, that the families and patients of America are protected. That is what this debate is about. We welcome the participation of the President. We would love to have his involvement in standing with patients and doctors instead of standing with the big HMOs. I yield the floor.

Mr. EDWARDS

Mr. EDWARDS. Mr. President, I ask unanimous consent that Dan Munoz, Mahdu Chugh, Elizabeth Field, Beth Cameron, and David Bowen, fellows in Senator Kennedy's office, be granted the privilege of the floor for the duration of the debate on the Bipartisan Patient Protection Act.

Mr. EDWARDS

Mr. EDWARDS. Mr. President, I ask unanimous consent that the committee on Armed Services be authorized to meet during the session of the Senate on Thursday, June 21, 2001, at 9 a.m., in open session to receive testimony on the defense strategy review.

Mr. EDWARDS. Mr. President, I ask unanimous consent that the committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on June 21, 2001, to conduct a hearing on the nomination of Ms. Angela M. Antonelli, of Virginia, to be Chief Financial Officer of the Department of Housing and Urban Development; Ms. Jennifer Dorn, of Nebraska, to be Federal Transit Administrator; and Mr. Ronald A. Rosenfeld, of Maryland, to be President of the Government National Mortgage Association.

Mr. EDWARDS. Mr. President, I ask unanimous consent that the committee on Commerce, Science,and Transportation be authorized to meet on Thursday, June 21, 2001, at 10:00 a.m. on International Trade.

Mr. EDWARDS. Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be authorized meet during the session of the Senate on Thursday, June 21 at 9:00 a.m. to conduct an oversight hearing. The committee will receive testimony to consider national energy policy with respect to fuel specifications and infrastructure constraints and their impacts on energy supply and price, (Part II).

Mr. EDWARDS. Mr. President, I ask unanimous consent that the committee on Finance be authorized to meet during the Session of the Senate on Thursday, June 21, 2001, to hear testimony regarding the nominations of William Henry Lash, III, to be Assistant Secretary, Department of Commerce; Allen Frederick Johnson, to be Chief Agricultural Negotiator, Office of the United States Trade Representative, Executive Office of the President; Brian Carlton Roseboro, to be Assistant, Department of the Treasury; Kevin Keane, to be Assistant Secretary, Department of Health and Human Services; Wade F. Horn, to be Assistant Secretary, Department of Health and Human Services.

Mr. EDWARDS. Mr. President, I ask unanimous consent that the Committee on Finance be authorized to meet during the session of the Senate on Thursday, June 2,1 2001, to hear testimony regarding Trade Promotion Authority.

Mr. EDWARDS. Mr. President, I ask unanimous consent that the committee on Governmental Affairs be authorized to meet on Thursday, June 21, 2001 at 2:30 p.m. for a hearing to consider the nominations of Kay C. James to be Director of the Office of Personnel Management and Othoniel Armendariz to be a Member of the Federal Labor Relations Authority.

Mr. EDWARDS. Mr. President, I ask unanimous consent that the committee on Indian Affairs be authorized to meet on June 21, 2001, at 10:00 a.m. in room 485 Russell Senate Building to conduct a hearing to receive testimony on the goals and priorities of the member tribes of the Midwest Alliance of Sovereign Tribes for the 107th session of the Congress.

Mr. EDWARDS. Mr. President, I ask unanimous consent that the committee on Small Business be authorized to meet during the session of the Senate for a hearing entitled ``S. 856, Small Business Technology Transfer Program Reauthorization Act of 2001'' on Thursday, June 21, 2001, beginning at 10:00 a.m. in room 428A of the Russell Senate Office Building.

Mr. EDWARDS. Mr. President, I ask unanimous consent that the Subcommittee on European Affairs be authorized to meet during the session of the Senate on Thursday, June 21, 2001 at 9:30 a.m. to hold a nomination hearing as follows: Nominees: Mr. William S. Farish, of Texas, to be Ambassador to the United Kingdom of Great Britain and Northern Ireland. Mr. Howard H. Leach, of California, to be Ambassador to France. The Honorable Alexander Vershbow, of the District of Columbia, a Career Member of the Senior Foreign Service, Class of Career Minister, to be Ambassador to the Russian Federation. Additional nominee: Mr. Anthony Horace Gioia, of New York, to be Ambassador to the Republic of Malta.

Mr. EDWARDS

Mr. EDWARDS. Will the Senator yield for a question?

Mr. EDWARDS. Would the Senator talk briefly about the number of Americans who are being affected by us not having already passed this legislation, and whatever delay may occur in the debate of this bill? I know the Senator has been involved in this issue for many years now. He has heard all of the HMO horror stories, about what HMOs have done to people around the country. But some of the Americans listening to this debate may not be aware, as the Senator is, of how many people are affected on a daily basis, on a weekly basis, on an annual basis. As we go forward with the debate on this bill, could the Senator talk about that issue first, and then I have a couple of other questions I would love to ask.

Mr. EDWARDS. This information is so important to this discussion. Is the Senator saying that as of the time of this study in 1999, 14,000 doctors a day are being overruled by HMOs when they recommend prescription drugs? In other words, a patient comes into the doctor, who has training, experience, and expertise, and the doctor recommends that a patient needs prescription medication, and 14,000 doctors a day are being overruled by the HMO? Is that what the Senator's understanding is?