John Edwards

Mr. EDWARDS

Mr. EDWARDS. I thank the Senator for his answer. There is at least a serious question about that and we would need to go back and look. Under the Class Action Rules of Civil Procedure, it is my recollection there is a numerosity requirement that means a class has to be of sufficient size to be able to be certified as a class action, and I am not certain, if you limit the actions to one employer, that you don't effectively eliminate the possibility of a class action because that requirement cannot be met. I confess to the Senator, that is from memory, and I will have to go back and look to be certain. I have concerns about the fundamental question that the principle of this legislation is that we treat HMOs, for accountability purposes, as everyone else. And the notion of doing something specifically to protect them from class actions and to limit class actions and to limit the RICO statute is something that would violate that principle of which I would want my colleagues to be aware. I yield the floor.

Mr. EDWARDS. If I may respond briefly to the comments of my colleague, the one issue he did not address, at least in his last answer--he may have discussed it earlier--is the issue of civil RICO. I believe I am correct in saying there are some State medical societies that have pending actions against them, civil RICO actions against HMOs, where they believe, obviously, the requirements of that statute have been met and there have been improper and illegal activities by the HMOs. Particularly as we go forward, if any State medical society believes those problems continue to exist, they may want to avail themselves of the civil RICO statute, a law that exists in part for that purpose. Again, the trouble would be we are carving out special treatment for HMOs. Having said that, I do not disagree with the fundamental principle that is part of this process; it is public policymaking. We hope to balance the interests on both sides. I think that notion makes sense. My concern is we are carving out the HMOs from this particular statute when we are not carving anyone else out from this particular statute.

Mr. EDWARDS. Mr. President, I yield my time?

Mr. EDWARDS. We yield the remainder of our time.

Mr. EDWARDS. Mr. President, we yield back the remainder of our time.

Mr. EDWARDS. First, I say to the Senator from Nevada that Senator Coverdell had a bill that he passed called the Volunteer Protection Act of 1997. It specifically provides protection for volunteers, including physicians, who provide pro bono services. So I suggest to my colleague, I don't know if he thinks there is a problem with that law or the way it is written. There is no way for me to know that based on this amendment. But a specific law already covers this subject matter. It was passed by the Senate and signed into law in 1997. So, first, I suggest that my colleague look at that law and make sure what he is concerned about is not covered by it. Second, this Bipartisan Patient Protection Act is about HMO reform. It is not about physician liability or the lack thereof--either of those. We would certainly have a problem with adding an amendment to this legislation that is not related to the issue of HMO reform. So I say to my colleague, again, understanding that we are just seeing his amendment, in fairness, I will be happy to talk with him about it, but those were my immediate concerns. There appears to be a law that already covers this subject matter. We would always be concerned, of course, even under those circumstances, about a health care provider who acted recklessly. I don't know whether his amendment covers that or not. Third, the general issue of adding these kinds of provisions to an HMO reform bill, which is what this bill is about, would also be a concern. I yield the floor.

Mr. EDWARDS. I say to my colleague that if there is already a law in place that covers this issue, it seems as a matter of procedure that the appropriate thing to do would be to amend the already existing law that covers the subject matter, as opposed to adding this measure to an HMO reform piece of legislation. So I guess, just as a matter of orderly process, that would make sense to me.

Mr. EDWARDS. Mr. President, I say to my colleague, I appreciate his comments. He and I are friends, and I would like to find a way to work on this. I will be happy to talk to him about this when we adjourn. Having said that, I continue to have a significant concern about raising an issue on the HMO reform bill that is not related to HMO reform. We have pretty consistently throughout this debate opposed and defeated amendments unrelated to the coverage of this bill. There are obviously many subject matters that are related to the general area of health reform and health care. If we start adding amendments on all subjects of health care, we would never get this legislation completed and passed. I continue to have that concern. I am happy to work with my colleague and listen to his concerns and work on language, although at this moment this is an amendment we would be compelled to oppose.

Mr. EDWARDS

Mr. EDWARDS. Madam President, I want to echo the words of my colleagues, the Senator from Arizona and the Senator from Massachusetts. There is certainly significant work to be done. Important issues need to be resolved. But we spent a good part of the day yesterday working on the issue of scope, making sure that every American is covered by this bill. I think we have, in fact, made great progress on that issue. On the issue of medical necessity, which is one of the pending amendments--the Kyl-Nelson amendment--we expect to offer our own compromise amendment on that issue later today, something that was worked out yesterday through the process of discussions. As I think everyone knows, Senators Snowe, DeWine, and Nelson have worked very hard, along with the three of us, to work out an agreement on employer liability--all of us believing that employers all over this country need to be protected. That is not what this legislation is about. It is about giving patients rights and putting health care decisions back in the hands of doctors and patients and not in the hands of big HMOs. All of us are in agreement that in that process it is important to protect employers so they continue to provide coverage for employees all over this country. So I echo the words of my colleagues. I do think it is true that we have made great progress. I think it is also true there is work left to be done. We will continue to work diligently with our colleagues. We have had colleagues on both sides of the aisle working on all these issues. We will continue to work on them as we go forward with these votes and this debate. But we are optimistic that we will be able to conclude this bill this week. I yield the floor.

Mr. EDWARDS. Madam President, will the Senator yield?

Mr. EDWARDS. Madam President, as the Senator is aware, we are continuing to work very aggressively with Members on both sides of the aisle, led by Senators Snowe, Nelson, and DeWine on this issue, specifically to provide protection for employers, including small employers. As somebody who has been involved with this issue for many years, I wonder if the Senator believes we can have a real patient protection act, real Patients' Bill of Rights, if, in fact, we exempt almost half of the employees in the country from the legislation?

Mr. EDWARDS. Thank you, Madam President. I would like to speak briefly to the Allard amendment. Let me say first to my colleague, the sponsor of the amendment, who is in the Chamber, I have no doubt that his intentions in this amendment are nothing but good and he is trying to accomplish something he believes is important. The problem is this approach is extreme. It is extreme, it is outside the mainstream of all the work, essentially, that has been done on this issue. The McCain-Edwards-Kennedy bill deals specifically with protecting small employers. The competing legislation, the Frist-Breaux bill, also deals with that issue, without this kind of extreme carve-out. The Norwood-Dingell bill that passed the House of Representatives by a wide margin did not have this kind of language in it. The American Medical Association, the medical groups from all over the country would not support this kind of carve-out. The reason is, it is impossible to have a real Patients' Bill of Rights so all patients and families across this country are protected if in fact you exclude almost half the employees in this country. The more sensible approach, the more mainstream approach, which is the one we are taking in our legislation and as we speak, is to make sure you provide the maximum protection you can, keeping the interests of the patient in mind, for these small employers. That is the reason we are continuing, as we speak, working across party lines, to craft language that we believe is appropriate to the purpose of protecting employers in general and specifically to protecting small employers. But to exclude almost half of the employees in this country from this legislation means we have essentially left half the country out of patient protection, which I do not think anyone thinks is a sensible solution to the issue. So I understand the concern. It is a concern we believe we have addressed in our legislation, which is to protect small employers. But we are working to go further with colleagues on both sides of the aisle, Republican and Democrat, to make sure small businesses all over the country are protected. But the solution is not to penalize almost half the families in this country and not provide them with the same rights that all other Americans would have. It just makes no sense to have no patient protection for employees who work at a firm of 48, 49 employees and for a firm with 60 employees, in fact, the protections are there. That is just illogical; it doesn't make any sense. Most important, it is an extreme response to a legitimate issue. The legitimate issue that is raised we believe we have adequately responded to in our legislation by specifically protecting employers. But in addition to that, we are taking further steps to make sure all employers, and specifically small employers, are protected. So I say to my colleagues, if you are concerned about employers, if you are concerned about small employers, we have protections for that group in our legislation. We are going further on that issue as we work across party lines on another amendment that will be offered, we expect, later this afternoon. But this measure is totally outside the mainstream. It is outside what we have done. It is outside the Frist-Breaux bill. It is outside the Norwood-Dingell bill. It is outside anything the American Medical Association or medical groups across this country would ever support. So while I understand the issue being raised by my colleague, this measure is extreme and it penalizes almost half of the families in this country and leaves them out of patient protection. Those families will still be in the same place they are today, which is HMOs can deny them coverage and they cannot do anything about it; they are simply stuck. Women will not have the right to go to their OB/GYNs; children will not have access to specialists; there will be no emergency room protection if they need to go to the nearest emergency room; and there will be no way to challenge any decision that an HMO has. That 45 percent of American families, almost half of American families, under this amendment would be totally left out. They would continue to be in the place where the HMO held complete control over their health care. That is what we are trying to do something about. It is not the right thing to do, to exempt almost half of America from this patient protection. Not that the concern is not legitimate, because it is, but this response is extreme and totally outside the mainstream of the work and thinking that has been done by everyone in this area.

Mr. EDWARDS. Yes.

Mr. EDWARDS. In answer to the Senator's question, not only under this amendment the employer couldn't be held accountable, in fact the HMO couldn't be held accountable because they would both be exempted from the legislation. So the family and the patient would be completely left out. That was my point earlier in responding to the Senator, in my comment that this is an extreme response. We have a response, both in our legislation and legislation on which the Senator has been very actively involved, that provides adequate protection, will make sure small employers are protected, but does not punish almost half the families in the country.

Mr. EDWARDS. Not only that, but I say to the Senator, having worked for and with small businesspeople for many years, I know they care about their employees. They care deeply about their employees, the vast majority of small businesses around this country. They do not want their employees to be in a position that they have no rights against the HMO. To small businesspeople all over this country, their lifeblood is their employees. They need those people to come to work every day, enjoy the work, and be productive. One of the critical components of that, as the Senator well knows after all his years of work on this issue, is that they have quality health care. The small employers in this country who care about their employees--in my judgment, the vast majority--will want to make sure their employees have the best product they could possibly have. They will want them to have the same protections. Those small employers will want to be protected from liability. That is a reasonable concern, and that is the concern, as the Senator knows, that we have addressed in our legislation and we are continuing to address with even stronger language with colleagues from across the aisle.

Mr. EDWARDS. Let me just conclude from our side by saying a couple things about what the Senator from Colorado is trying to accomplish. We understand his concern about this issue. We do not believe this is the appropriate response or the appropriate measure. This is an extreme response to a legitimate issue. The legitimate issue is making sure small business people all over this country are in fact protected. We have provided in our legislation that unless they make an individual medical decision, which small businesspeople do not, then they are immune from responsibility. No. 2, in addition to that, we are continuing to negotiate with our colleagues--Senator Snowe, the presiding Senator, and others--on this issue, and we expect to have an amendment to offer later today that also will provide further protection for small businessmen. I know that the Presiding Officer and many others on both sides of the aisle care deeply about this issue. This is an extreme response. It will have an extraordinarily bad effect on almost half of the employees in this country. It is outside the mainstream, outside our legislation, outside the Frist-Breaux bill, outside the Norwood-Dingell bill, not supported by the American Medical Association, not supported by any of the health care groups in this country. This is not what needs to be done. So I urge my colleagues to defeat this amendment, to vote against it, to vote with the patients, and we will continue to address the issue of ensuring that small businesses all over America are protected. I thank the Chair.

Mr. EDWARDS. Very quickly, with the remaining 40 seconds that we have, we urge our colleagues to vote against this amendment. We are doing the things necessary to protect small businesspeople all over this country, but that can be done without leaving almost half of the families of America uncovered by the necessary patient protections that are in our legislation. For that reason we urge our colleagues to vote against the Allard amendment. We yield back the remainder of our time.

Mr. EDWARDS. Mr. President, before he leaves the floor, I thank my friend from Delaware for all his work on this issue. It is very important to the progress we are making to finally protect patients in this country, along with Senator Bayh, who led this effort, and Senator Nelson and others involved in this issue. We very much appreciate all of their input. The issue of medical necessity, which means how we determine whether any particular care is covered and is medically necessary for the treatment of the patient, is a critical issue in the bill. We have now agreed on language that we believe appropriately balances the interests of the contract between the insurance company or the HMO and the employer on the one hand, and the interest of the patient and having some flexibility on the other. Basically what we have said in this amendment is if the contract explicitly excludes a particular treatment, a test, then that will be excluded from care, period, and the independent reviewers are bound by that language. On the other hand, to the extent we need some flexibility in what is proper and good medical care, we have managed to maintain that. I think we have struck the right balance between the sanctity of the contract on the one hand, so people know they can rely on the provisions of the contract and, secondly, allowing enough flexibility to provide the proper care to patients when they go through the review process. More important is this is another step in a very important process. When we began last week, we were confronted with trying to get real patient protections in this country with numerous obstacles-- disagreement among our colleagues, different issues being raised by Members of the Senate and a written veto threat from the President. As we have moved forward through the end of last week and through the mid part of this week, we have continued to make progress every step of the way. We keep resolving issues. We keep making progress. On the issue of employer liability, about which many of our colleagues have expressed concern, making sure that employers around this country are protected from liability, we have worked with our colleagues--Senator Snowe, Senator Nelson, Senator DeWine, and others-- to work out compromise language that satisfies a large number of Senators on both sides of the aisle so that there is consensus on the need to protect the employers, on the one hand, but keeping in mind the rights of the patients on the other. Issue resolved. No. 2, scope: What this legislation covers and who it covers. Senator Breaux and I and others have been working very hard on this issue. We believe we have reached a resolution that will result in an amendment being offered later today that strikes a compromise and a balance between the interests of the States, being able to maintain the work they have done in the area of patient protection, while at the same time making sure every single American has a floor on the level of patient protection. On the issue of medical necessity, as a result of the work of many of my colleagues, we have been able to reach consensus. On the issue of scope, who is covered, we have been able to reach consensus. On the issue of employer liability, we have been able to reach consensus. Every day we have continued to make progress, but the importance of this is not for what is happening specifically within this Chamber and what is happening in Washington, DC, and what is happening among Senators. The winners in this process are the families of America because it is now becoming clearer and clearer that we may finally be able to provide those families with the protections they so desperately need and to which they are entitled. That is what this debate has been about. That is what all this work among Republicans and Democrats in the Senate has been about. We have shown over the course of the last week that we can work together, we can find ways to provide real patient protection in this country. Up until now, we have a model in problem solving, in trying to give real protection to the families of this country so they can make their own medical decisions. That is what this debate has been about; that is what our work has been about. We are not finished. We have important issues left to resolve, but I am confident, given the good will and hard work that has already been done, that if we continue in that same way, we will be able to reach a resolution and hopefully be able to put a bill on the President's desk and that he will sign a real Bipartisan Patient Protection Act that gives power to patients and lets them make their own health care decisions. I yield the floor.

Mr. EDWARDS. Mr. President, will the Senator yield for a question?

Mr. EDWARDS. Let me ask the Senator, as somebody who has been involved in this issue for so long, as the Senator knows, we have been working very closely with Senator Breaux on his amendment in an effort to make sure that all Americans are covered. One of the guiding principles of our efforts in this area is to make sure that families have protections provided in this legislation so that all families in this country can make their own health care decisions. We have worked with Senator Breaux very closely on his amendment to make sure there is a floor for every family in America. Will the Senator comment on whether, under the amendment of the Senator from Maine, every family in America will in fact get the minimum protections as provided in our bill as opposed to the language we worked out with Senator Breaux?

Mr. EDWARDS. Mr. President, the debate on these two amendments is critical to the issue of whether all Americans--all families in this country--will have access to the protections provided for in this Bipartisan Patient Protection Act. That is the reason this vote tomorrow morning is critical to the vitality of this bill. We have worked very closely with Senators on both sides of the aisle to ensure that two things are accomplished with respect to coverage: No. 1, that every American is covered by this legislation and, No. 2, we give deference to States that, through their own work, have established good systems for patient protection. We honor those State legislatures and that State legislation. So that is the purpose of this amendment, the Breaux amendment. It strikes the right balance between making sure every American is covered--every family is covered--on the one hand, and, secondly, giving deference to the States that have already done good work in this area. We need to ensure that we do not take away the protections we are providing for all Americans by exempting a huge chunk of Americans, which, unfortunately, the Collins amendment would do. The Breaux amendment, though, is one in a series of consensus agreements that have been reached on this legislation. Starting with the issue of scope, which the Breaux amendment addresses, we now have an agreement which I think a great majority of the Senate will be able to support and be comfortable with. On the issue of the independence of the appeals, we have an amendment that will be supported, I believe, by virtually all of the Senate, establishing the principle that we believe the HMOs should not have direct control over who is on the independent appeal panel. On the issue of exhaustion of remedies--exhaustion of the appeals process before a case can go to court--we are working very closely with the Senator from Tennessee to reach a bipartisan consensus on that issue. We have made great progress, and I am optimistic about it. On the issue of employer liability, from the outset we had--the sponsors of the legislation, along with the Presiding Officer--as a principle that it was important that employers be protected, period. We have worked very hard with Senator Snowe and Senator Nelson from Nebraska, and other Senators on both sides of the aisle, to ensure that that is being done. Tomorrow morning we will offer an amendment on that issue. We have worked our way through a series of hurdles, going from the issue of scope, to the issue of exhaustion of remedies, to the issue of clinical trials, to the issue of medical necessity, on which we have worked with Senators Bayh and Carper to make sure we have a consensus on what is covered, giving proper deference to the contract and the contractual language but making sure the independent reviewers have the ability to make sure that if particular treatments are needed, they can be provided. So we started 2 weeks ago with a series of obstacles in front of us, starting with scope and running throughout the legislation. What has happened during the course of this debate, and the work that has been done, is that one by one those obstacles, those barriers, have fallen, and we have been able to reach consensus agreement. There is great momentum to do something that really matters to the American people. The winners in this debate are not politicians. The winners of this debate are not the people within this Chamber. The winners are the American people and the families all over this country. We have in this body an opportunity to do an extraordinary thing, which is to give people more control over their lives and more control, specifically, over their health care decisions, the things that affect their families and members of their families. All of us have worked very hard--Republicans and Democrats--to try to get to the place where we have consensus on this legislation, and one by one by one the barriers to passing real patient protection have fallen to the floor. We have more work to do. We will have issues of liability that remain to be resolved. But the reality is, we are a long way down the road. We have tremendous momentum for doing what there is a consensus in this country to do. Not just in the Senate, not just in the House of Representatives, but all across America, all of us who have spent time in our States have heard over and over that the American people expect us to do something about this issue. The time has come. It is time to quit talking about it. It is time for the political debate to stop. It is time to do something that can really affect people's lives. We have an extraordinary opportunity to do something important. We have made extraordinary progress toward that goal, but we are not quite there. We need to keep our nose to the grindstone, keep working, keep debating, and finish this legislation, get it through the House, and get it on the President's desk, with great hope and optimism that the President, when confronted with legislation that during his campaign he vowed to support, will stand by his vow and do what he has told us he would do. We are optimistic about that. We believe the President will do what is right for the American people. So I thank my colleagues for all their work on this issue. I ask my colleagues to vote, tomorrow morning, against the Collins amendment and for the Breaux amendment, which is a bipartisan consensus that has been reached. And we will continue our work toward providing the American people the protection they need and they deserve. Thank you, Mr. President. I yield the floor. explanation of vote

Mr. EDWARDS

Mr. EDWARDS. Mr. President, I want to speak to some of the concerns and comments that have been made by my friend and colleague from Tennessee with whom I have been working over the course of the last few days on this issue. There are a couple of issues he raised that deserve a response. First is the general notion that an appeals process, before going to court, is adequate in and of itself. There are two fundamental problems with that logic. Remember, the way the system works under both pieces of legislation is if an HMO denies care to a patient, they can go through an internal appeal. If that is unsuccessful, they can go to an external appeal. If that does not resolve the issue and they are hurt, they can then go to court. There are two reasons the appeal by itself does not resolve the issue. An HMO says to a family: We are not going to allow your child to have this treatment. The child then suffers an injury as a result, and a week later, or however long it takes to complete the appeals process, the HMO's decision is reversed by an appeals board. An independent review board says: Wait a minute, HMO, you were wrong to start with. Unfortunately, the only thing that independent review board can do is give that child the test they should have had to start with, but the child has already suffered a serious permanent injury as a result. The treatment no longer helps. The problem is if the HMO decides on the front end they are not going to pay for some care that should be paid for, and the child is hurt as a result, and then 1 week or 2 weeks later the appeals board reverses that decision and says, yes, they are going to order the treatment, this child has nowhere to go and their family has nowhere to go. That is the point at which--and I think the Senator and I may agree on this--we believe the HMO should be held accountable. The independent review board cannot fix the problem where the child has been injured for life. The HMO that made the decision, just as every entity in this country, should be held responsible and accountable for what they did. That is what we believe. We believe in personal responsibility. The second reason the appeals process by itself does not solve the problem: If there is nothing beyond the appeal, it creates an incentive for the HMO, which is what I am talking about, to have a policy of when in doubt, deny the claim because the worst that is ever going to happen is they are going to finish this appeals process and some appeals board is going to order them to pay what they should have paid to start with. If they take 1,000 patients for a particular kind of treatment and deny care to those 1,000 patients, the majority of them are never going to go through an appeal, so they save money. Then they go through the appeal and the worst that can ever happen to them is with 30 or 40 of them, an appeals board orders them to go back and pay what they should have paid. The problem is fundamental. The appeals process alone does not create an incentive for the HMO to do the right thing. On the other hand, if the HMO knows if they make an arbitrary wrongful decision and somebody is hurt as a result, injured as a result--if that child suffers a permanent injury as a result--they can be held responsible for that as everybody else who is held responsible, then it creates an enormous incentive for the HMO to do the right thing. That is what this legislation is about. Senator McCain, Senator Kennedy, and I structured this legislation to avoid cases having to go to court, to create incentives for the HMO to do the right thing, something they are not doing in many cases around the country now. The problem is, without both the appeals and the possibility of being held responsible down the road, we do not create the incentive for the HMO to do the right thing. We know that today around the country many families are being denied care they ought to be provided by an HMO. There are fundamental reasons the system is set up the way it is. It is all designed not to get people to court and not even to get people into an appeals process but to get the patient the correct care, to get them the care for which they have been paying premiums.

Mr. EDWARDS. Yes.

Mr. EDWARDS. I thank the Senator for his question. It is a perfectly fair question. The problem, of course, is that many times it could be a situation where it would take entirely too long to go to court and get injunctive relief. When there is a situation where they have to make a decision about a family member, whether it be a child or an adult, and the HMO says they are not paying for the care, and they are in the hospital, the last thing they are going to be talking about is: I need to hire a lawyer, go to court, and get injunctive relief. What they need is care at that moment, and in many cases, as the Senator knows from his personal experience before coming to the Senate, during the interim, during that short period of time, that window of opportunity to provide the care to that patient who may be hospitalized or may not be hospitalized is the critical time.

Mr. EDWARDS. Excuse me. It is impossible during that period of time to get injunctive relief against an HMO, and I might add, the last thing in the world a family is thinking about when they have a member of their family who is in trouble and needs health care is going to court to get an injunction. Now I yield.