John Edwards

Mr. EDWARDS

Mr. EDWARDS. Mr. President, I inquire how much time we have remaining.

Mr. EDWARDS. Let me speak briefly and then yield the floor to my colleagues on the other side from whom we welcome hearing on this issue. First, we have now had a number of speakers who have addressed the issues that have been discussed over the course of the last 2 days now, since our legislation was introduced. We pointed out--and I hope we will continue to point out throughout the course of this debate--that there are areas of agreement but there are areas of disagreement. There are important differences between the McCain-Edwards-Kennedy bill and the competing bill on the other side. Those areas of disagreement go from the beginning of the bill through the end, including such things as access to specialists outside the plan, access to clinical trials--particularly FDA-approved clinical trials, access to a truly independent review process so when the claim of a patient is denied by an insurance company that patient they can go to a group and get that decision reversed, knowing it is a totally impartial review panel, there being no question about the independence of that review panel; finally, as a matter of last resort, the case being able to go to court if in fact these other processes do not work. But what we now know from the Senator from Georgia, plus the experiences in Texas and California, is that when these appeal processes are in place, when a patient is wrongly denied care by an HMO, there are two places for that decision to be reversed before anybody goes to court. One is the internal review within the HMO; the other is the external review to a truly independent body. I might add as to the cost--the Senator from Georgia referred to this--our bill, according to the Congressional Budget Office, will raise insurance premiums 4.2 percent over 5 years. The Frist bill raises insurance premiums I believe 2.9 percent over the same period of time. The difference between the two, the 1.3-percent difference, the majority of that difference has nothing to do with litigation. It rests in areas such as difference in access to specialists, difference in access to clinical trials, difference in quality of care. So the bulk of the cost difference between the two bills goes specifically to the issue of the quality of care that children, families, and patients across America will receive. To the extent the argument is made that there is an explosion of litigation, that this is going to cost a great deal of money, the reality is that there is a little over 1 percent difference between our bill and the competing bill. The bulk of that difference is accounted for by difference in quality of care. The American people are going to get a better product. They are going to get better health care. They are going to have a way to get access to clinical trials for their child who needs to be seen by a specialist, to be seen by a specialist. They are going to have a way to reverse a wrongful decision by an HMO. That is what we are talking about. None of that has anything to do with going to court or lawsuits. As to the issue of going to court, as the Senator from Georgia pointed out so clearly, we are only asking one thing, and that is that HMOs not continue to be treated as privileged citizens; that they be treated as everyone else--they ought to be treated as every other American, every other small business, every other large business--and that they not maintain their status as being the only group in America that cannot be held accountable for their actions. That is what this debate is about. We are on the side of patients. That is the reason the groups, AMA and others, support our legislation. I think it is time now for me to yield the floor to my colleagues on the other side.

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

Mr. EDWARDS. Very briefly, before the Senator from Connecticut speaks, there were some points made by the Senator from Maine. First, we very much appreciate her open attitude to work with us to try to find a solution to a problem about which we all care a great deal. We appreciate that. She was arguing, I believe, that because of increased costs associated with a Patient Protection Act, people would go from being insured to uninsured, and that is something about which the American people should be concerned. First of all, I point out that there are two competing bills, one of which will pass the Senate. The difference between those bills is minimal in cost. Second, in the three States that in fact have enacted patient protection--California, Texas, and Georgia--not only has the number of uninsured not gone up but exactly the opposite has occurred. During the time that patient protection has been in place in California, in Texas, and in Georgia, the number of insured has gone up. In California, for example, in 1998 and 1999, the number of insured went up 2.3 percent. In Texas, it went up .9 percent--just under 1 percent. In Georgia, about which Senator Miller spoke so eloquently, it went up .8 percent. So the evidence from the three other States that have enacted laws similar to the McCain-Edwards-Kennedy bill is that because people have a better product, better health care, better rights, not only does the number of uninsured not go up but it goes down. So these rhetorical cries of all of us needing to be greatly concerned about that issue--of course we are, but the actual evidence that exists from the three States that have laws similar to the laws we are here talking about suggests over a relatively short period of time, in fairness, that just the opposite is true--that in fact, because of the quality of the product, the number of people insured can go up as opposed to going down. With that, I will yield the floor to my friend from Connecticut.

Mr. EDWARDS

Mr. EDWARDS. Mr. President, I thank my friend from Arizona, who worked with me over a period of many months to help put together this legislation--after work had been done for many years by a number of Members of the Senate, led by Senator Kennedy. The law for many years in this country has been on the side of big HMOs and insurance companies. They have been treated like no other person in America is treated, like no other business, small or large; they are privileged citizens. The American people want to take away that privileged status from HMOs and insurance companies. They are the only group in America that can say to a family: Your child is not going to get the medical care your doctor thinks they need. They can overrule the decision of a medical doctor that has been made after many years of training and experience, even though they may have no experience or training whatsoever. Some young clerk sitting behind a desk somewhere can overrule a medical expert, and if they do it, there is absolutely nothing that can be done about it. The HMOs, the insurance companies, are accountable to no one. Their judgment can't be questioned; their decision can't be reversed; and they can't be challenged anyplace, including in court. That is what this bill is about. What we are about--Senator McCain, Senator Kennedy, I, and all of the sponsors of this legislation--is changing the law. We want to move the law from the side of big insurance companies and HMOs and finally put the law on the side of patients, nurses, and doctors. Every one of us, in traveling around our home States, has heard horror story after horror story of families and patients being run over by big HMOs. Let me recount one I heard in North Carolina. A young man, Steve Grissom, contracted leukemia. In the course of his treatment, he had to get a blood transfusion. As part of the blood transfusion, he got AIDS. He got sicker and sicker and sicker. He was being seen by a heart specialist at Duke University Hospital. That doctor prescribed 24-hour-a-day oxygen for Steve because he needed it. This was a doctor with many years of training at one of the leading medical institutions in the country. Steve's wife's employer changed HMOs. Some clerk sitting behind a desk somewhere, without medical training, having never seen Steve Grissom, knowing nothing about it, decided they weren't going to pay for this oxygen anymore. They literally cut off his oxygen. Steve had nowhere to go. Why? Because under the law of the land, as we stand here today, HMOs can do exactly what they did to Steve Grissom, and no one can do a single thing about it. You can't question their decision; you can't question their judgment; you can't reverse it; and you can't take them to court. So somebody such as Steve, who has a terrible time trying to pay for this oxygen himself, is stuck-- even though they have paid premiums and paid for coverage, and any reasonable physician in America knows he needs this care. That is what this act is about. The Bipartisan Patient Protection Act changes that. We are going to change the law so that finally patients, nurses, doctors, and health care providers who know how to make these medical decisions and families who are involved and whose children are being affected by these decisions will have some power of the law on their side. Let me talk briefly about some specifics of our legislation. We provide and guarantee access by women to OB/GYNs as their primary care provider. They don't have to get permission from anybody. They can do that. If a child needs to see a specialist, a pediatrician--a child with cancer who may need to be seen by a pediatric oncologist--that child has an absolute right to go see that specialist if they need it for their life-sustaining care. Emergency room care. If a patient or a family experiences an emergency and they need to get to the doctor, to the hospital, to the emergency room, they don't have to call a 1-800 number; they don't have to call the HMO; they don't have to get written permission. What any family will do when under an emergency situation such as that and they need care quickly, quality care, they can go straight to the nearest emergency room without worrying about whether the HMO will cover. Under our law, they are covered, period. Scope. Our bill specifically provides that every American who has health insurance or HMO coverage is covered by our bill, period. They have at least the protections provided in this bipartisan legislation. If a State has better protections for the patient, better protections for the doctor, those protections stay in place. But our bill provides a floor below which no State can go. So the basic protections provided in our bill--access to specialists, women being able to go see an OB/GYN, going to the nearest emergency room, access to clinical trials, which is critical to many Americans-- they will have under this legislation an absolute right to those protections. Finally, accountability. Mr. President, these rights mean nothing if they are not enforceable. If they are not enforceable, this is not a Patients' Bill of ``Rights;'' it is a patients' bill of ``suggestions.'' But because we have accountability and we have enforceability, these are substantive rights that in fact can be enforced. Finally, HMOs are going to be treated as everybody else in America. They are going to be held accountable, held responsible, which means at the outset that they have an incentive to do the right thing, which is what this legislation is about--having the HMO do the right thing from the beginning and having the patient, if they don't, be able to do something about it. What we do is set up a system that is designed to avoid lawsuits. We have, first, an internal review process so that if the HMO says they are not going to cover a particular kind of care or treatment, the patient can go through an internal review at the HMO. Second, if that process is unsuccessful, the patient can then go to an independent external review. This is a panel of doctors, health care providers, who aren't connected to the HMO, aren't connected to the patient or the treating doctor, who can make a fair and objective decision about whether this treatment is necessary. So the patient now has two different ways to get the HMO's decision reversed. If that is unsuccessful, if for whatever reason the appeals process does not work, as a last resort, if the patient has been unsuccessful after doing all of that and if the patient has been injured as a result of what the HMO did, then as a matter of last resort the patient can go to court. Now, first of all, with respect to employers, we specifically provide that employers cannot be held responsible. They cannot be sued; they cannot be liable. Employers are specifically protected under our bill. The only exception to that is if the employer actually makes a medical decision--if they step into the shoes of the HMO and do what no small or medium-sized employer in America would do if they actually make a medical judgment. By the way, this provision that employers can only be held responsible if they make a medical decision and otherwise they are protected is identical to President Bush's principle on this issue. His principle provides that employers may only be held responsible if they make medical decisions. That is precisely what our bill does. On this issue, the protection of employers, the President's principles and our bill are exactly the same. If it becomes necessary after a patient has gone through the appeals process--internal and external review--and a patient has been injured for the case to go to court, we start with a very simple principle. That principle is this: We want to treat HMOs and insurance companies just as the other health care providers. They are making health care decisions. They have decided to overrule a doctor who decided a patient needed a particular kind of care. When they decide to overrule the doctor and step into the shoes of the doctor, we think they ought to be treated like the doctor, just like the hospitals, just like the nurses. What we provide is they can be taken to State court, just like the doctors, just like the hospitals, and they are subject to whatever limitations exist under State law by way of recovery. The majority of the States in this country have caps or limits on recovery, limits on noneconomic damages, in some cases, what is called pain and suffering, limits on punitive damages, and some States provide you cannot recover punitive damages. The bottom line is this: Whatever the State law is, that law applies to the HMO, just exactly as it applies to the doctor, to the nurse, to the hospital, to everybody else in the State. We start with the basic idea that HMOs are not privileged citizens; that they are just the same as the rest of us and ought to be treated the same as the rest of us. That is what our bill does: It treats the HMOs the same as the other health care providers when they, in fact, overrule a doctor and make a health care decision. That structure--sending those cases to State court--is what has been recommended by the Judicial Conference of the United States headed by Chief Justice Rehnquist. It is what is recommended by the American Bar Association. It is what is recommended by the State attorneys general. People who understand the court system but are objective, not on one side or the other of this debate, have decided this is the place these cases should go for a variety of reasons. No. 1, it treats the HMOs the same as doctors and hospitals are treated. No. 2, they are courts accustomed to handling these types of cases. It makes it more likely the patient can get their case heard more quickly. It is fair. It is equitable. It is supported by every group of objective experts--Judicial Conference, the ABA, the State attorneys general--and, by the way, follows exactly the outline set forth by the U.S. Supreme Court in the Pegram decision. This idea of sending these cases to State court is an idea that is supported by the big legal organizations across the country and as outlined by the U.S. Supreme Court in the Pegram case. The basic principle is we treat HMOs exactly the same way we treat doctors and hospitals if they are going to be in the business of making medical decisions. The only cases that would go to Federal court under this bill are the cases that have, since 1974, been decided in Federal court. Those are the cases involving pure language of the contract. For example, whether a particular provision has been met or whether the 90-day waiting period has been met. Those cases go to Federal court. They have always been in Federal court. We leave them exactly where they are. What we do not do is what has been proposed by some, which is to send every case against an HMO to Federal court. The Federal courts are backlogged so that is a way to bury the cases and assure they never get heard. It is more difficult to get attorneys because many attorneys do not practice in Federal court, and many people are a long way from the nearest Federal courthouse. There is almost always a State courthouse close by, but Federal courthouses, especially in rural America, are hundreds of miles away in many cases. We have a system that works. It has been outlined by the U.S. Supreme Court. It is what legal experts say should be done. Most importantly, it is fair. It treats the HMOs the same as everybody else, which is the goal of this legislation. Finally, we do require, in order for a case to be brought to court, that, first, all appeals be exhausted. That is, the patient must first go to the internal review and, second, to the external review. What we have learned from the two States that have served as models for this legislation--Texas and California--is almost all cases are resolved by that process. The reason is we structured the bill to avoid lawsuits. It has, in fact, worked in the two States that have followed our model--California and Texas, two of the biggest States in the country, two of the States where there has been historically the largest amount of litigation in the country. There have been 16, 17 lawsuits since those bills have been enacted in those two States. The vast majority of cases have been resolved exactly as our bill provides. They have been resolved through the process of the appeal. There has been some argument made about health care costs going up and people losing their insurance. The majority leader spoke to this earlier. Our bill, according to the Congressional Budget Office, raises insurance premiums about 4 percent over 5 years. Not 4 percent annually, 4 percent over 5 years. The competing bill, the Frist-Breaux provision, raises insurance premiums about 3 percent over 5 years. So there is very little difference between the two bills. In addition to that, of the 4 percent increase in our bill, the vast majority of that has to do with better health care. It has nothing to do with lawsuits, nothing to do with litigation. Mr. President, .8 percent, less than 1 percent, has to do with litigation. The remainder, over 3 percent, has to do with better access to the clinical trials, better access to specialists, better access to emergency rooms. It specifically provides better care. When people get better care, it costs a little bit more, and they will get a better product. On balance, both bills increase costs slightly--3 percent in 1 case over 5 years; 4 percent in our case over 5 years. But as a direct result of this legislation being passed, people will have better quality care, and the cost has very little to do with the fact the HMOs can now be held accountable and be taken to court. It is not an accident that the American Medical Association and over 300 health care and consumer groups in America support our bill. It is not an accident that the big HMOs and their lobby are spending millions of dollars to defeat our bill. It is not an accident that the HMOs like the Frist-Breaux bill and do not like our bill. As we go through this debate, it will become clear that on every single difference, between the legislation we have offered and the competing legislation, whether it is coverage and whether States can opt out, whether it is access to specialists outside the plan, whether it is a truly independent review that the HMO can have no control over, whether it is going to court and which court you go to, in every single difference we protect the patients, they protect the HMOs. Their bill, as Dr. Norwood, a Republican House Member from Georgia who has fought on this issue for years, has described it, is an HMO protection act. It is not an accident that all the health care groups in America and the American Medical Association support our bill. These are people who deal with these issues every single day, and they know that on all these important issues--access to specialists, who is covered, emergency room, access to a true independent review process--our bill protects the patients; their bill protects the HMOs. All of us have worked long and hard on this issue for a substantial period of time. Some have worked on it, including Senator Kennedy, for many years. It is time to quit talking about doing something about HMOs and HMO reform and actually do something about it. The American people are not interested in the politics--Republicans, Democrats, Independents--and their positions politicizing this issue. What they care about is that when their child needs to see a specialist, they want to be sure that child can see that specialist. When they need to go to the emergency room, they need to know they can go to the emergency room without having to worry if the HMO is going to pay for it. If the HMO does something wrong and runs over them and runs over their family and overrules a doctor's medical decision, they want to be able to do something about that. They want the HMOs to be treated just as all the rest of us. Ultimately that is what this bill is about. The bottom line question is, with whom do we stand? Do we stand with the big HMOs and the big HMO lobbies or do we stand with the doctors, nurses, and families of America? I yield the floor.

Mr. EDWARDS. Mr. President, I ask unanimous consent that at the conclusion of my remarks I be followed by Senator Kennedy, who is also a sponsor of this legislation.

Mr. EDWARDS. Mr. President, the great thing about debate on the floor of the Senate--particularly extended debate--is that we get past the high-pitched rhetoric and actually get to the facts. I want to respond briefly to some of the comments of my friend and colleague from New Hampshire. He argues that under our bill employers can be held responsible-- citing a particular page of the legislation--if they make a comment to an employee going out the door on the way to their doctor saying, ``hope you feel better''. First of all, President Bush has issued a set of principles that are specific to this issue. His principles say, ``Only employers who retain responsibility for and make final medical decisions should be subject to suit.'' So the President himself, in his principles, has said employers that are making medical decisions about individual cases are subject to sue and should be subject to sue. My colleague from New Hampshire cited language on page 141 of the bill referring to, ``otherwise, calls of action created by failing to exercise ordinary care in the performance of a duty.'' Two pages later in the bill, which unfortunately my colleague didn't talk about, there is language at the bottom of the page, subsection (A), that says: ``This section does not authorize a cause of action against an employer.'' What I suggest to my colleague is that he read the entirety of the section to which he refers. The language of what constitutes making a medical decision in a specific case is very clear in our legislation. It includes none of the general things that the Senator from New Hampshire talked about. What has to happen under the specific language of our bill, and as set forth by the President of the United States, is that the employer has to actually override and make the decision as an HMO would in a particular case. Otherwise, under the language of our bill, and under the President's principle, the employer is protected, period. We want to protect employers. That is the whole purpose of this language. It is why Senator McCain and Senator Kennedy and I have worked for months and months in crafting this language. The second argument my colleague made is that there would be forum shopping between State and Federal court. The language is clear. If an HMO makes a medical decision, that case goes to State court. If the question is on the specific provisions of the plan the employee is covered by, that case goes to Federal court, period. It is where the cases have always been. The reason the other cases--the medical decision cases--go to State court is because when they make a medical judgment and overrule a doctor, we want them to be treated just as the doctors and the health care providers. Third, he argues that ERISA is a very complicated law that will be difficult for State courts to apply. Well, the State courts won't be applying ERISA. What the State courts would be doing is applying their own State law because what our bill provides is that when a medical judgment is made by an HMO and some child is hurt as a result, and they take their case to State court, that State's law applies, so that if there are recovery limits--and there are, I think, 30-some-odd States in the country. And the argument was made that there are no caps in our legislation; there will be an outrageous explosion of litigation. First of all, it ignores the fact that State law applies, and the vast majority of States have limits on recoveries. Second, the evidence shows that in California and Texas--the two States that use legislation similar to ours--virtually no cases have ever gone to court. The cases get resolved in the appeals process. It is the way our legislation is designed. Cases go to court only as a matter of absolute last resort. Finally, he suggests there will be forum shopping from State to State, where a patient will choose to go to another State to file a case because somehow that is more beneficial to them. Well, unfortunately, that has nothing to do with the real world. Patients will be required to file their case in the State where they live, which is exactly where you would expect them to file. It is where they got their care, where they were hurt by the HMO. That is where their case would be filed. So what we have done, ultimately, is set up a system whereby HMOs are treated the same as everybody else, as all the rest of us. That is its purpose. We want to take away the privileged status that HMOs have enjoyed for so long, while protecting employers, giving patients substantive rights, access to specialists, access to emergency rooms, access to clinical trials, and having those rights be enforceable. It is so important that these rights we create in this bill have teeth in them, and the only way they have teeth in them is if the force of law is behind them and those rights are enforceable.

Mr. EDWARDS. Excuse me. Do I have the floor? Excuse me.

Mr. EDWARDS. Mr. President, I respond to the Senator's question by saying, first of all, I suggest that he read the principles because the language of this legislation comes directly from the President's principles.

Mr. EDWARDS. Mr. President, if the Senator will allow me one final comment, the Senator well knows, having fought on this issue for many years and having led the fight, as Senator Daschle, our majority leader pointed out in his earlier comments, the American people can get a lesson from what is happening at this moment. We made it clear we intended to bring bipartisan patient protection to the floor of the Senate, a bill supported by Republican Senators in this Chamber and also in the House. What has been the response by our opponents? Has the response been to debate this issue in an open way before the American people and to make their case to support the HMOs' position on the floor of the Senate? No. Their response is to try to prevent an issue that affects millions and millions of Americans every year from even being heard on the floor of the Senate. I think it becomes clear who wants to provide real and meaningful patient protection and who wants to keep this issue from ever getting to the floor of the Senate so HMOs maintain their privileged status.

Mr. EDWARDS. The Senator is correct. The President specifically provided he does not want employers to be sued unless they make medical decisions. Our legislation does exactly that. The language completely conforms, in almost identical language, to the President's principle. We do not want employers to be sued unless somehow they step in the shoes of the HMOs and make a medical decision. That is exactly what the President is suggesting. The Senator is correct, to the extent our opponents--who, by the way, are trying to prevent this bill from ever being considered at this point in this Chamber--to the extent our opponents suggest under our legislation lawsuits against employers are allowed, they need to read the President's principles because, in fact, our legislation is identical to the President's principle on this issue.

Mr. EDWARDS. In response to the question, the areas that were changed were all changes in the direction of the objections of our opponents. In other words, they raised concerns and we made changes to clarify so there would be no question but that we intended exactly what they intended. For example, the first one the Senator mentions: exhaustion, which means you have to go through the appeals before you can take somebody to court, both sides intended that that be required because we want cases to be decided by the appeal without having to go to court, to avoid unnecessary lawsuits. We made it clear in this clarification that there is no question about that. We intend for that to be true. That was the purpose of the clarification. Second is the cases being brought in State and Federal court. The purpose for the change was to make it clear we want nobody to be sued in both State and Federal court; to clarify the language so there was no doubt in anybody's mind about which cases go to State court and which cases go to Federal court. Third, they complain that under our bill some physicians, perhaps, could be subject to lawsuits to which they otherwise would not be subject. So we made a change to eliminate that possibility. Our bill, as the Senator well knows, is intended to empower doctors, to empower nurses, to make the health care decisions that only they have the medical training and experience to make, that they have the qualifications to make, not some bureaucrat sitting behind a desk at some HMO somewhere. That is the purpose of this clarifying language.

Mr. EDWARDS. Will the Senator yield for me to reply to the question?

Mr. EDWARDS

Mr. EDWARDS. Mr. President, one of the reasons we are beginning this important discussion of an issue that will affect the lives of so many Americans is that for years now you have helped lead the fight on HMO reform, on a real Patients' Bill of Rights and on patient protection. I had the honor last year, during the Presidential campaign, of visiting in the Senator's State. I say to my colleague, I heard over and over everywhere I went around the State the passionate feelings people in your State have for the fight that you have waged on behalf of real people and families and children to try to protect them against HMO abuses. I wonder if the Senator would mind sharing with us what the people in his State have said to him in town hall meetings, visits on the street corner about how they feel about a clerk sitting behind a desk somewhere overruling experienced, well-trained doctors and nurses as to health care decisions that can literally affect the lives of their families.

Mr. EDWARDS. Mr. President, let me first thank my colleague from New Jersey for his passionate support for this important piece of legislation, the Patients' Bill of Rights. I want to talk about several subjects briefly, if I may. First, some people have argued, in the press, the media, and on the floor of the Senate during this debate today, that the only difference between the McCain-Edwards-Kennedy Patients' Bill of Rights, the Patients Protection Act, and the bill that has been proposed by Senator Frist and others, is on the issue of accountability, taking HMOs to court. There are multiple differences between these bills. There are differences in how you determine whether a State can opt out of the protections covered by the Patient Protection Act, i.e., how much coverage there is, how many people are covered by the bill. There are differences in access to specialists outside the plan. Our bill specifically provides you can have access to a specialist. If a child needs to see a pediatric oncologist, a child with cancer, the child has a right to do that. Under their bill, the HMO is in charge of that decision. Under our bill, there is a true independent review by the independent review panel. If a claim has been denied by an HMO, that question has been appealed within the HMO, and then if that was unsatisfactory, the next appeal is to an independent review panel. Our bill specifically provides that panel must in fact be independent. The HMO can't have anything to do with choosing them. Neither can the patient or the physician involved in the care. Unfortunately, the Frist bill does not provide the HMO cannot have control over that panel, which means the HMO essentially can have control. It is like picking their own judge and jury in a case involving somebody's health, health care that could affect the family. The bottom line is, from start to finish, whether it is coverage, access to specialists, access to a true independent review, if, as a matter of last resort a case has to go to court, having that resolved quickly and efficiently or having it dragged out over years and years and years in a Federal court--on every single issue of difference, there is a simple thing. Our bill protects patients. Our bill is on the side of families and doctors. Their bill is slanted to the HMOs. So it is not an accident that the American Medical Association and over 300 health care groups--virtually every health care group in America--support our bill. It is not an accident that the majority of the Senate supports our bill. It is not an accident that the majority of the House of Representatives supports our bill. All these organizations that deal with these issues every day--I am not talking about Members of the Senate, I am talking about doctors who practice medicine every day, who deal with problems with HMOs, I am talking about patients groups who hear these horror stories regularly about HMOs, who have analyzed this legislation, looked at it word by word by word from start to finish and have come to a simple conclusion: Our bill is a true patient protection act. Their bill is an HMO protection act. Our bill protects patients, doctors and families. Their bill, instead of being a Patients' Bill of Rights, is a patient's bill of suggestions because the rights contained therein are not enforceable. To the extent there is an argument made during the course of this debate that there are no differences, there are differences. There are important differences. From the beginning to the end of this bill, there are important differences. The best evidence of those differences is the fact that the American Medical Association and doctors and health care providers and nurses groups all over America support our bill. They know what the problems are. They want to be able, along with families, to make health care decisions. They want these decisions made by health care providers and families and not by some bureaucrat or clerk with no training and experience, sitting behind a desk somewhere, who has never seen the patient. That is the difference between these two pieces of legislation. As to the issue of accountability, that means what happens if you have gone through the internal appeal at the HMO. The HMO denies care to a family. You go to the HMO and you attempt to appeal that. They deny it again. Then you go to a truly external independent appeal, under our bill, and that is not successful. As a matter of last resort, if, after all of that, the patient has been injured, the patient can go to court. The whole purpose of that is to treat HMOs as every other health care provider, as every small business, as every large business in America, as every individual who is listening to this debate. All the rest of us are responsible for what we do. We are held accountable, and we are responsible. The HMOs are virtually the only entity in America that can deny care to a child and the family can do nothing about it. They cannot question it; they cannot challenge it; they cannot appeal it; and they cannot take the HMO to court because the HMOs are privileged citizens in this country. I have to ask, if you were to send out a questionnaire to the American people and say: Here are 10 groups of Americans--physicians, doctors, patients--and on that list were HMOs, and you said, on this list, whom would you want to protect from any accountability, from ever being able to be taken to court, to be treated as privileged citizens, I suggest the likelihood that the HMOs would end up at the top of that list is almost nonexistent. What we have is an anachronism. We have a law that was passed in 1974, before the advent of managed care, before HMOs were making health care decisions. Then after the passage of this law, with the passage of these protections that gave managed care companies privileged status, they started making health care decisions. We have a situation that needs to be corrected. All this is about is treating HMOs as every other entity and individual in America. We want them to be like all the rest of us. It is just that simple. They are not entitled to be treated better than the rest of us. But, surprise, surprise; they don't like it. They are being dragged, kicking and screaming every step of the way, and they are spending millions and millions of dollars on television ads, on public relations campaigns to defeat our bill. Why? They like being privileged. They like being treated like nobody else in America is treated. They like the fact that they can decide something and nobody can do anything about it. Why wouldn't they like it? Why wouldn't they want to keep things exactly as they are? That is what this debate is about. Ultimately, we are going to have to decide on the floor of the Senate and at the end of Pennsylvania Avenue, hopefully, if we can get this bill through the Senate and the House, whether we are on the side of the big HMOs or whether we are on the side of patients and doctors. Earlier today I made reference to a story of a man in North Carolina named Steven Grissom. He was a young man who developed leukemia. He became sicker and sicker. He got to the point where his specialist at Duke University Medical Center had to put him on 24-hour-a-day oxygen. This is Steve Grissom, the man I referred to earlier. His wife's employer HMO covered Steve Grissom. Unfortunately, his wife's employer changed HMOs. Some clerk sitting behind a desk somewhere who had never seen Steven and had never met him and with no medical expertise said: We are not paying for this. We don't think he needs it. They literally cut off his oxygen. What was Steve Grissom going to do? He was like every family, every child, and every patient in America with an HMO that makes a decision. He couldn't do anything about it. He couldn't challenge it. He couldn't appeal it. He couldn't take them to court. He was absolutely helpless. That is what this legislation is about. It is about giving Steve Grissom--when the HMO says we are not giving you your oxygen that your specialist says you need--the ability to do something about it. It is about allowing him to go to an appeal, and most importantly to a truly independent review panel of doctors who, in every single case such as Steve's, will reverse the decision. When his heart specialist at Duke University Medical Center says you need this oxygen 24 hours a day, and you put that question to a panel of three doctors, what do you think the result is going to be? They are going to order that the HMO pay for the oxygen that Steve needs. That is what this debate is about. There are real differences between our bill and the Frist bill. For example, when Steve's care was denied, we go to a panel that the HMO can have no control over; that a truly independent patient can't have anything to do with; that Steve couldn't have any connection with; and that the HMO can't have any connection with. It is objective and fair. Unfortunately, under the Frist bill the HMO could choose the people on the review panel. There is absolutely nothing to prohibit that. Steve will be making his case to a judge and jury picked by the HMO. That is an important difference between our bill and this bill. The bottom line is that what we are about is trying to empower patients and empower doctors to make health care decisions; have people who are trained and experienced to make those decisions and the people who are impacted by them. That is what this legislation is about. To the extent that people suggest this is going to result, No. 1, in employers being sued, we will debate this issue going forward. But it is very clear in our legislation that we protect employers. It is equally clear that we abide completely by the President's principle on this issue. The President said only employers who retain responsibility for and make final medical decisions should be subject to suit. That is exactly what our bill does. Our bill does exactly what the President's principle provides. On this issue of employers being protected from lawsuits, we are in complete agreement with the White House. As to the cost issue, the difference in cost between our bill and Senator Frist's bill--the bill that the White House has endorsed--is 37 cents per employee per month. This is what they contend is going to result in a massive loss of insurance coverage, 37 cents a month. The difference between the bills on taking the HMO to court--the accountability provision--is 12 cents a month. Between 12 and 37 cents a month is not going to cause people not to be insured. More importantly, we will give people a better price. We give them real quality health care. The reason that it is 37 cents a month more for employees is because they get better care. They get better access to clinical trials, better access to specialists, and better access to emergency rooms. When the HMO does something wrong, they can get that decision reversed by the independent review panel. That is what this debate is about. We have a decision to make over the course of the next few weeks. I hope for the sake of the Steve Grissoms all over this country--many of whose stories have been told today and will continue to be told on behalf of these families--that we will do what is necessary to make sure that HMOs and insurance companies in this country are treated just as everybody else, and that families and doctors can make health care decisions that affect their lives. I yield the floor.

Mr. EDWARDS. I wonder if my colleague will yield for a question.

Mr. EDWARDS

Mr. EDWARDS. I thank the Senator. I ask for a voice vote at this time.

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

Mr. EDWARDS. I ask unanimous consent to lay that amendment aside, and I call up amendment No. 462.

Mr. EDWARDS. Mr. President, what is the pending business?

Mr. EDWARDS. Mr. President, my amendment is very simple and straightforward. It deals with the issue of testing. Much of our education bill we have been discussing for the last several days and much of the administration's proposal is modeled after what has been done in North Carolina. In North Carolina, we have had in place for a number of years a very vigorous measurement and testing regime. In fact, we already have annual testing in reading and math in grades 3 through 8, which is precisely what is being proposed by the administration and is incorporated into this bill. This testing process has played a very important role in allowing us to measure student performance in North Carolina and also to identify low-performing schools so we can make an intense effort to turn those schools around. What I have learned from visiting our schools and talking with students and teachers is that testing in and of itself is not an end. It is a means. From talking to students and teachers and at town hall meetings talking to parents about this testing procedure that has been used in North Carolina, I have learned that there is a great deal of concern that students are spending too much time preparing for tests and teachers are spending too much time in the classroom teaching to the test. It has gotten to the point where some students and some teachers believe the tests dominate the classroom. And because of the way the tests are given and administered and the kinds of tests that are given, it can sometimes be counterproductive to the learning process. What we are doing in this amendment is providing that States can go to private outside firms to evaluate the testing in a particular school district to determine whether it is working, how effective it is, and also to make comparisons with the testing being used in that school district as compared to the testing being used in another school district someplace else in the country. The basic theory is these private outside firms can identify school districts where the testing is working, where it is effective, where it has as little impact as possible on the learning process inside the classroom so the teachers, the students, and the parents feel the testing process is working. It allows them to measure but, at the same time, it doesn't interfere with the substantive learning process of the students, for the students and the teacher. The basic idea is the State is allowed to contract with these outside firms which can evaluate the testing programs and compare them with testing programs in other places across the country. The amendment does not authorize any new money. It simply allows States to conduct this type of analysis. The purpose of this amendment and its thrust is to focus on the issue of testing, allow States to identify testing methods and procedures that are, in fact, working. It is a specific effort to address a concern I have heard expressed over and over from students, from teachers, and from parents; that is, to have a testing system and a measurement system that provides us with the information we need but at the same time does as little as possible to interfere with the teaching process and with the learning process. I thank my colleagues for their support and yield the floor.

Mr. EDWARDS

Mr. EDWARDS. Mr. President, the debate we are having this week and next week on education reform in this country may be the most important debate we have in the Senate this year. Education is probably the most important thing we do as a government. We have the best military, the best economy, and the best technology in the world. There is absolutely no reason that we should not have the best public schools in the world. We are the leader in so many other areas, and we should be the leader also in this area. Whether you are talking to teachers, students, school administrators, or parents, you hear the same thing everywhere you go. I have townhall meetings in North Carolina regularly. I visit schools there regularly. You hear the same things every single place. No. 1, everyone wants to make sure that every school is a high-performing school. In other words, there is no excuse for there being a single low-performing school in America. Second, we need fine, quality teachers, and we need to pay them well and keep them. Third, we need to make sure that the performance of every single student in America is improved. That is what this education debate is about. We should make this decade the education decade in America. My home State of North Carolina has served as a model for many of the reforms that have been debated. A few weeks ago, the Secretary of Education, Secretary Paige, came and told the committee that many of the ideas that this administration has proposed are, in fact, modeled after work that has been done in North Carolina. A centerpiece of that reform effort was a sustained effort at identifying those schools that are not performing and taking all the steps necessary to make sure those schools are turned around. I am very pleased that we were able to insert in this bill, with the help of my colleagues, a specific provision, a proposal, a system that we have used in North Carolina to turn around low-performing schools. The concept is very simple, but it is very effective. Once the measurement and the testing has occurred and we identify a school that is low performing, we gather what is called a special assistance team, a team that exists for the purpose of going into low-performing schools to turn the schools around. It is comprised of educators, experts in the field, and people who know, based on their own education and experience, how to turn around a low-performing school. Those special assistants go into the school and do what is necessary to turn it around. They evaluate the academics of the school; they evaluate the personnel at the school; they make recommendations about changes that need to be made to restore educational quality at the school. Again, it sounds like a simple idea. You figure out a school is low performing and you send in a group of experts to turn the school around. It is a simple idea, but it works. It has worked in North Carolina. Since 1997, we have identified 33 schools as low performing. Into those schools we have sent these special assistance teams; their job it is to turn the school around. Since 1997, 29 of the 33 schools identified as low performing have now been turned around. Now, there are, obviously, many things that have contributed to these schools being turned around, including a lot of work done in the local community. But these special assistance teams have played a pivotal role in turning these schools around. Their contribution is important. What we have been able to do, with the help of my colleagues on the HELP Committee, and with the able leadership of both the chairman and the ranking member, Senator Kennedy, is to incorporate into this bill exactly at a national level what has been working in North Carolina. There has been a lot of talk in Washington and nationally about reform. Reform is important. I support it--measurement, accountability, identification of schools that are low performing, and doing what is necessary to turn those schools around. That is the system. It is the system we helped start in North Carolina, and our North Carolina system has served as a model for what we are talking about nationally. The problem, though, is tough accountability, tough reform will not work ultimately in many school districts unless the resources are available to turn those schools around. In poor school districts, once you go in and identify a school that is low performing, you test and measure, all of which are a good idea, and so is real accountability. The problem is, if the special assistance team makes a recommendation, if the school does not have the resources to do what is recommended, it is impossible to turn those schools around. It gets to be a very simple proposition: You identify a low-performing school, and you send in the experts to tell them what needs to be done. But in order to change things, many times resources are needed because in these poor school districts all over America, they simply do not have the resources to do what needs to be done. Without the resources, what you have is Washington, DC, telling people in local communities what needs to be done in their schools without giving them any help in meeting the standards that are being established. It is an unfunded Federal mandate out of Washington. It is the Washington people telling local people what they have to do and then not providing any help to do it. North Carolina is a perfect example of how critical this is. In North Carolina, we implemented very tough measurement, tough testing, tough accountability. We identified these schools that were low performing and went in and intensely made an effort to turn them around. The critical component of that, though, was once those schools in North Carolina were identified, we made sure the resources were there to actually turn the school around. That is why this debate over the course of the next 2 weeks is so critical because what has worked in North Carolina will work nationally. There is no excuse for us having a single, not one, low- performing school in this country. But the only way to get there is once we have done the testing, once we have done the measurement, once we have identified the schools that are not performing, the resources have to be available to turn around those schools. That is what we did in North Carolina. It worked. That is what we should be doing at the national level. It is what we are going to be talking about over the course of the next 2 weeks. The budget debate, which is also ongoing in this Senate and will be ongoing over the course of the next several months----

Mr. EDWARDS. Yes.

Mr. EDWARDS. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. EDWARDS. The Senator is right, we have made great strides, but I have been in elementary schools where there are no bathrooms inside the building, the roof is leaking, the floors are crumbling; they are covered up with little pieces of carpet. To get them in the lunchroom, they have to start going to lunch at 10 or 10:15 in the morning because it is so crowded, they can't get the kids through. If you go down the road a few miles, there will be a brand new, shiny mall, new store buildings. The Senator is exactly right. What does it say to our children when they go to a new mall with beautiful buildings and the next morning they get up and go to school and the building is falling down? What does it say about what we care about, what our priorities are? This is all part of the same issue we have been talking about. We need to do all these things, and they are all critically important, from Head Start, in my case Smart Start, to getting quality teachers, keeping them trained, retaining them in the school system, having kids in smaller classes so they can learn more, having them in buildings that are not falling apart, having afterschool programs and technology available to them--this is all critically important. There is nothing we do as a government that is more important than educating our young people. We have a remarkable opportunity here, and I hope we take advantage of it.