Dianne Feinstein

Mrs. FEINSTEIN

Mrs. FEINSTEIN. I believe I have the floor, Mr. President.

Mrs. FEINSTEIN. So, in other words----

Mrs. FEINSTEIN. And the entity pays the reviewer as well.

Mrs. FEINSTEIN. Does the Senator from Vermont really believe the best treatment can be provided by a reviewer who has never seen the patient?

Mrs. FEINSTEIN. Or vice versa.

Mrs. FEINSTEIN. But there is a small chance a bone marrow transplant might help you, I would advise that you have it, and if the health plan with this language turned it down, I would have no opportunity to have that bone marrow transplant?

Mrs. FEINSTEIN. Mr. President, if this definition, the definitions we have been debating on what is medical necessity--if the Republican definitions were supported by medical organizations, I might think they are pretty good. But there is virtually no physician-oriented organization anywhere in the United States that I know of that supports this particular definition of medical necessity. Every single one of them supports the definition in the Daschle bill. I think the Senator from Rhode Island and the Senator from North Carolina spoke eloquently as to why. Since the Senator from North Carolina remains on the floor, I would like to ask him this question. The Senator from Rhode Island read the definition from a particular insurer. Let me reread it: [This company] will have the sole discretion to determine whether care is medically necessary. The fact that care has been recommended, provided, prescribed or approved by a physician or other provider will not establish that the care is medically necessary. Then, in view of that, if you read on the top of page 180, in the bill, which sets out the guidelines for the standard of review for the independent reviewer, at the top of the page and the bottom of page 179: The independent reviewer will take into consideration appropriate and available information including any evidence- based decisionmaking or clinical practice guidelines used by the group health plan or insurance issuer. How would an independent reviewer make a decision?

Mrs. FEINSTEIN. Will the Senator yield?

Mrs. FEINSTEIN. Then if I understand you correctly, if an insurer had in its plan that they will use the least costly alternative available, the independent reviewer would have to find for the least costly alternative?

Mrs. FEINSTEIN. I inquire of the Senator from North Carolina, through the Chair, if I were a woman suffering from ovarian cancer and I have this policy that I read from, and my physician said there is a small chance a bone marrow transplant might help you----

Mrs. FEINSTEIN. As a matter of fact, I can read terminology right out of insurance contracts, which I was going to read had my amendment been able to come to the floor. As the Senator knows, the purpose of this amendment is essentially to defeat the amendment I was going to offer, that I did offer to the Agriculture Appropriations bill and that I said last week that I was going to offer to this bill, to allow the physician to give the treatment and prevent the HMO from arbitrarily interfering with or altering the treating physician's decision, whether it be the treatment or the hospital length of stay.

Mrs. FEINSTEIN. I just read the language. There is no language in this that says the independent reviewer, even in a case of life or death, would necessarily see the patient.

Mrs. FEINSTEIN. It does not.

Mrs. FEINSTEIN. Will the Senator yield to me a moment? I met some of the reviewers this past week. They did not see the patient. They made the decisions based on their insurance companies' definitions of medical necessity, not based on the particular needs of the individual patients.

Mrs. FEINSTEIN. Will the Senator yield for a question?

Mrs. FEINSTEIN. I yield the floor.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I am pleased that the long road to enacting this critical legislation is finally coming to an end. The conference report now before the Senate is the product of more than seven months of tough, complex negotiations between the high-tech industry, the White House, trial lawyers, consumer groups, computer consultants, countless Members of the House and Senate and other interested parties. The final, bipartisan bill--now supported by the President--will create a once in a millennium, three-year law. Without it, I believe we could see the destruction or dismemberment of America's cutting edge lead in technology. Mr. President, several well-known consultants and firms, including the Gartner Group, have estimated that Y2K litigation could quickly reach as high as one trillion dollars. This potential litigation flood could prevent companies from solving Y2K defects, and as a result could put the high-tech engine that has propelled our economy to new heights at risk. This bill is especially important to California, where over 20 percent of the nation's high-tech jobs are located. And the problem extends beyond high tech companies into the lives of employees, stockholders and customers of a wide range of American business. We solved part of the Y2K problem last year when Congress overwhelmingly passed legislation to protect companies who make statements about Y2K problems in order to help others predict and solve these problems before they occur. But we must now take an extra step, in order to encourage companies to work to prevent and fix Y2K problems with minimum delay. Without this bill, companies may be forced to devote far too many resources to preparing for lawsuits rather than mitigating damages and solving Y2K problems. And many consultants have come to us and said that they have refused to become involved in helping companies solve Y2K problems, for fear that they will open themselves up to being sued later on. They would rather just not get involved. As a result, the very people capable of fixing Y2K defects are unavailable to perform those fixes. I believe we face a real problem, and we have tried to craft a real solution. And crafting that solution has not been easy. On almost a daily basis, Senate staffers, industry representatives, opponents of the bill and others have met for hours at a time to hammer out differences, clarify language, and make significant, substantive changes to the early versions of these bills. In fact, even before the Conference Committee met over the last week, the original sponsors of Y2K litigation reform, including myself and Senators Hatch, McCain and Wyden, made dozens--if not hundreds--of changes to these bills. We addressed every concern we could, we significantly limited the scope of the bills, and we clarified many sections to ensure that plaintiffs and defendants alike will find an even, uniform playing field once the bill passes. And it is important to remember that nothing in this bill is permanent--rather, it is a three-year bill limited to certain specific cases. The bill applies only to Y2K failures, and only to those failures that occur before January 1, 2003. This bill contains a number of key provisions meant to deter frivolous suits and encourage remediation, arbitration, and problem- solving. Most of these provisions have been modified or limited during the negotiations that have taken place over the last seven months. Several changes were made as late as this week, during negotiations with the White House. The bill provides a 90-day ``cooling off period'' during which time no suit may be filed, so that businesses can concentrate on solving Y2K problems rather than on fending off lawsuits. Only one 90-day period may be invoked per lawsuit, and the 90-day period does not delay any injunctive relief--a plaintiff may immediately file for a temporary restraining order or any other type of injunctive relief. The purpose of this section is to give both parties an opportunity to focus on identifying and then correcting any Y2K problems quickly and efficiently. The bill also provides for proportionate liability in many cases, so that defendants are punished according to their fault, and not according to their ``deep pockets.'' Under our current system of joint and several liability, a defendant found to be only twenty, ten or even one percent at fault can nonetheless be forced to pay 100 percent of the damages. This system often encourages plaintiffs to go after ``deep pocket'' defendants first, in order to force a quick settlement. I believe that this system is fundamentally unfair, and I am pleased to say that this bill eliminates joint and several liability in many Y2K cases. Under the new system, defendants will be responsible only for that portion of damages that can be attributed to them. However, the bill does have several specific exceptions to the elimination of joint and several liability. First, any plaintiff worth less than $200,000 and suffering harm of more than 10 percent of that net worth may recover against all defendants jointly and severally. This exception in the bill protects those plaintiffs with a low net worth, but will not unduly injure defendants because the damages recovered will not be great. Second, any defendant who acts with an intent to injure or defraud a plaintiff loses the protections under this bill and is again subject to joint and several liability. We do not want to protect those acting with an intent to harm. Finally, the original Senate bill provided a compromise for those cases in which certain defendants are ``judgement-proof.'' In cases where a plaintiff cannot recover from certain defendants, the other defendants in the case would each liable for an additional portion of the damages. However, in no case could a defendant be forced to pay more than 150 percent of its level of fault. The Conference Committee increased that cap to 200 percent, making it even easier for plaintiffs to recover the fullest possible extent of their damages. The Conference Committee also inserted provisions in the bill, at the request of the White House, that will allow any individual consumer to recover jointly and severally against defendants for any share of damages that are uncollectible from other, judgment-proof defendants. And for Y2K class action suits, the bill requires that a majority of plaintiffs have suffered some minimal injury, in order to avoid cases in which thousands of unknowing plaintiffs are lumped together in an attempt to force a quick settlement. The bill moves many Y2K class actions into federal court for purposes of uniformity, but at the request of the White House the Conference Committee increased the threshold to get to federal court from the one million dollar level found in the Senate bill to ten million now. Furthermore, the number of required plaintiffs required to move a class action to federal court has been doubled from fifty to one hundred. And the punitive damages section, which has been severely curtailed since early versions of the bill, now caps punitive damages for small businesses only--to $250,000 or three times compensatory damages, whichever is lesser. Another change made to the bill in Conference exempts most intentional torts from the limits on recovery for economic loss. Finally, the conference report provides that state laws on unconscionability will not apply to cases in which individual terms within a contract should not be enforced--a move further protecting the plaintiff's right to recover. Each of the changes made before and during the Conference Committee negotiations has narrowed the focus and effect of the bill, while still maintaining the bill's clear intent to allow companies to prevent, solve and remediate Y2K problems without undue delay stemming from frivolous lawsuits and meritless claims. The ``one trillion dollar litigation headache'' is rapidly approaching, and this Congress can provide some preventative medicine and some anticipatory pain relief in the form of the reasoned, fair, and thoughtful compromise before us. The bill sets forth clear rules to be followed in all Y2K cases, and the bill levels the playing field for all parties who will be involved in Y2K suits--plaintiffs and defendants. Companies and individuals alike will know the rules, and will know what they have to do. And most importantly, the stability that will come from this bill will allow companies to prevent Y2K problems when possible, fix Y2K defects when necessary, and proceed to remediation of damages in an orderly and fair manner. This bill has been through a tortuous legislative drafting process, with criticisms, suggestions and changes made from every side and by every sector of our society. So let us pass this conference report today, let us send it to the President, and let us show this nation that the Y2K crisis will not cripple our courts, will not disrupt our economy, and will not put a halt to the technology engine driving our progress towards the twenty- first century.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today to join my friend and colleague, Senator Barbara Boxer, to introduce a Sense of the Senate Resolution condemning the acts of arson at three Sacramento, California synagogues on June 18, 1999. The resolution also calls on all Americans to categorically reject crimes of hate and intolerance. I believe this measure is important not only to the Sacramento community but also to all Americans who abhor intolerance. I was shocked and saddened when I first heard the news that three synagogues in Sacramento had been targeted by arsonists. Committed just a few hours before dawn, this heinous attack was carried out over a 45 minute time span signaling to us that this was deliberate and premeditated act. In that time, $1.2 million in damage was done to the Congregation B'nai Israel, Congregation Beth Shalom and the Kenessett Israel Torah Center. While the damage to the property was severe, no dollar amount can reflect the true damage done when hateful crimes such as these strike at the heart of a community. Mr. President, I believe it is tragic that even though we have made significant progress to increase tolerance in this nation that such vicious hate crimes continue to be committed. This resolution expresses our resolve to ensure that such acts of ignorance and bigotry will not be tolerated in this nation and those who commit them will face swift justice. While the resolution condemns these specific acts of arson in the Sacramento area, it also declares our collective abhorrence to all crimes of intolerance. The resolution also says that the Senate is committed to using Federal law enforcement personnel and resources to identify the persons who committed these heinous acts and brings them to justice in a swift and deliberate manner. It also recognizes and applauds the residents of Sacramento area who have so quickly joined together to lend support and assistance to the victims of these despicable crimes, and remains committed to preserving the freedom of religion of all members of the community. I believe that one of the most sacred rights we have as Americans is the freedom of religion. This country came to be because people wanted to be able to choose how they worshiped. I hope that in the wake of this sorrowful event, we are all reminded of the importance of this freedom. Whatever the motive in these arsons, all people of faith in the Sacramento community and this nation must stand together to fight such hatred. The bottom line is that hatred, bigotry and racism all come from the same place--ignorance. California's modern heritage is one in which diversity is to be respected, not scorned. As long as hate crimes continue to counter that heritage, we must work together to denounce intolerance and the protect the rights of all. Mr. President, while we have made progress to increase tolerance in this nation, tragic events like these in Sacramento prove that we still need to do more. Together, we must send the strongest possible message that hate crimes will not be tolerated.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today to submit a resolution to commemorate the Zinfandel grape. The Zinfandel grape has a long and unique history that mirrors the diversity and agricultural development of our nation. Unlike other grapes that today have international recognition--such as Cabernet, Chardonnay, or Pinot Noir--the Zinfandel grape is uniquely and distinctly American. One writer has referred to it as ``the Horatio Alger of varietals, the True American.'' While Zinfandel's exact origins are unclear, we know that it was consumed as a table grape in New England in the 1830's, and that Zinfandel cuttings from a nursery in Long Island were taken by the settlers as they headed west. During the California Gold Rush of 1849, Zinfandel vines were planted and their products consumed as table grapes and as wine. By the 1880's, Zinfandel was the most commonly planted red grape in the West, and the wine made from Zinfandel grapes began winning awards as early as 1859. Today the Zinfandel grape is our most versatile of viticultural products. It is used in jams, jellies, pasta sauces, mustards, and other food products. It is produced as a wine in 14 states, including Arizona, California, Colorado, Illinois, Indiana, Iowa, Massachusetts, Nevada, New Mexico, North Carolina, Oregon, Ohio, Tennessee and Texas. Zinfandel products now touch every region of the United States, yet knowledge of its uniquely American heritage is poor. I hope that passage of this resolution will bring greater awareness to the public of the notable and uniquely American attributes of this important agricultural product. In my state, there are grape vines in the foothills of the Sierra Nevada mountains that have been alive since the late 1800's. These ancient vines still produce grapes, and the genetic qualities of these grapes so interest scientists that the University of California at Davis has established a ``Heritage Vineyard'' project specifically to study these plants. On a more prosaic level, these old vines are a living link to our past--to a time when many Americans living in the East uprooted themselves and moved to West to cultivate and settle the entire expanse of our country. We should recognize and treasure these historical connections to the development of our nation. Mr. President, let me clarify that this resolution does not seek to commemorate an alcoholic product, or any particular commercial product. It does not seek to commemorate a ``western'' issue, since Zinfandel food products are consumed nationwide and Zinfandel grapes are made into wine in every major portion of the country. Indeed, the very origins of Zinfandel are in the East. Rather, my colleagues and I seek to commemorate a uniquely American agricultural product that has gained international recognition and that is produced and enjoyed in every part of this country. I am pleased to submit this resolution to commemorate the Zinfandel grape and establish January 23-29, 2001, as Zinfandel Grape Appreciation Week.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today to express my thanks and appreciation to Ambassador James Sasser for the excellent job he has done as United States ambassador to China. After more than three years of dedicated service, Ambassador Sasser will be stepping down from his position. Ambassador Sasser served during an interesting, often strenuous, period of U.S.-China relations. Drawing on his experiences as a distinguished three term United States Senator and member of the Foreign Relations Committee, he worked tirelessly to ensure that the United States remained engaged with China to promote stability, openness, and prosperity in that country. Even Henry Kissinger, who initially expressed misgivings about Ambassador Sasser's appointment, recently remarked, ``I have known no American ambassador who has done a better or more passionate job on Sino-U.S. relations than Ambassador Sasser.'' Even during the bad times, when relations soured, Ambassador Sasser has maintained a high level of communication with Chinese leaders and provided a calm and steady influence. He recognized that no single issue can make or break U.S.-China relations and that open and frank dialogue is essential to promoting American values, especially those in the area of human rights. Though he served with distinction for more than three years, perhaps Ambassador Sasser's finest hour came only a few weeks ago. After the accidental bombing of the Chinese embassy in Belgrade, tens of thousands of angry protesters gathered in front of the American embassy in Beijing and hurled bricks and rocks at the building. The situation was dangerously close to spinning out of control and the lives of those inside the embassy were potentially in danger. Rather than seek cover in a safer place, Ambassador Sasser stayed. Near the end of his service, he provided us with a lasting image of poise, strength, and courage. His actions were indeed inspiring to those that were with him in Beijing and also to those of us who were watching as the events unfolded on television. He represented the finest of Americans who serve their country in embassies and consulates around the world--he was a diplomat who would not give up his post. Again, I congratulate Ambassador Sasser for a job well done and wish him the best for his future endeavors.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I join the ranking member of the Judiciary Committee, Senator Leahy, and my colleagues in urging the majority to appoint conferees and proceed to conference on the juvenile crime bill. It has now been one month and four days since the Senate passed the Violent and Repeat Juvenile Offender Accountability and Rehabilitation Act of 1999, by an overwhelming margin of 73-25. It has been nearly two weeks since the House of Representatives passed its counterpart bill. And yet, since that time, there has been no progress at all toward going to conference on these two bills. In fact, it appears that there are some on the other side of the aisle who deliberately want to forestall or even de-rail the conference that is necessary to pass this vitally-needed legislation. When the House passed its counterpart bill, they did something that is very unusual: they did not take up the Senate bill, insert the text of their bill, and request a conference, as is routinely done. This is not the kind of thing that happens by accident. For a conference to take place, both Chambers of Congress must pass the same bill. Because the House of Representatives did not do this, one of the two Chambers must take up the other one's bill, pass it, and ask for a conference. This presents numerous opportunities for procedural mischief and delay by those who would rather not see any bill pass than one containing modest gun safety provisions, such as the Senate bill. Mr. President, I am very disturbed by this delay in taking the next step to pass this important legislation. Our nation was rocked 2 months ago by the tragic shootings at Columbine High School in Colorado, coming as it did in the wake of earlier school shootings in Jonesboro, Arkansas; West Paducah, Kentucky; Springfield, Oregon; and elsewhere. We cannot tolerate or evade this shocking school violence. We should not let our children start a new school year without passing this important legislation to address youth violence. The Senate bill is a wide, sweeping measure, which will help us to confront the problem of juvenile crime. It includes a number of provisions which I authored and which I have worked on for several years, including: A ban on importing high capacity ammunition magazines; A ban on juvenile possession of assault weapons and high capacity ammunition magazines; A comprehensive package of measures to fight criminal gangs; Limits on bombmaking information; The James Guelff Body Armor Act, which contains reforms to take body armor out of the hands of criminals and put it into the hands of police; and Crime prevention programs. It also contains other modest reforms to keep guns out of the hands of criminals and children, including: Requiring the same background checks at gun shows which gun dealers have to preform; and requiring the sale of child safety locks with handguns. The Senate bill also establishes a new $700 million juvenile justice block grant program for states and localities, representing a significant increase in federal aid to the states for juvenile crime control programs, including: Additional law enforcement and juvenile court personnel; Juvenile detention facilities; and Prevention programs to keep juveniles out of trouble to begin with. Our bill encourages increased accountability for juveniles, through the implementation of graduated sanctions to ensure that subsequent offenses are treated with increasing severity. It reforms juvenile record systems, through improved record keeping and increased access to juvenile records by police, courts, and schools, so that a court or school dealing with a juvenile in California can know if he has committed violent offenses in Arizona; and extends federal sentences for juveniles who commit serious violent felonies. Let us not delay further in enacting these important measures. I join my colleagues in urging the majority to proceed to conference and appoint conferees, so that we can enact this vital legislation. I thank the Chair, and yield the floor.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise in support of the 2nd degree Amendment offered by the Senator from Kentucky. Without the McConnell Amendment, I find that I must oppose the underlying Amendment offered by the Senator from Kansas. Although I think that many of the goals and objectives of Senator Brownback's Amendment are worthwhile--I too believe in establishing a policy of greater U.S. engagement with the countries of the Caucasus and Central Asia--I find that I must oppose this Amendment because it contains a fatal flaw: I do not think that Congress should get rid of Section 907 of the Freedom Support Act, which this Amendment does, so long as Azerbaijan continues its decade-long blockade of Armenia and Karabakh. The McConnell Amendment, which retains Section 907, would fix this flaw. Expanding Azerbaijan's eligibility for assistance from the United States without seeking progress on the resolution of this issue runs the risk of legitimizing precisely the sort of behavior which the United States, on the cusp of a new century, must seek to discourage. Azerbaijan is already eligible for U.S. humanitarian assistance, as well as funds for democracy building and many trade benefits. All that Azerbaijan has to do under Section 907 to be eligible for the full range of U.S. assistance is to ``take demonstrable steps to cease all blockades against Armenia and Nagorno-Karabakh.'' In other words, all it has to do is end hostilities, end an act of war, and seek to settle this dispute peacefully. If Azerbaijan were to take these simple steps there would be no need to repeal Section 907-- its restrictions would no longer apply. Is it too much to ask another country that it end a state of war before we provide it with additional foreign assistance? In fact, given Azerbaijan's continued unwillingness to make an effort to peacefully resolve this issue, gutting Section 907 rewards Azerbaijan for continued bad behavior, and sends a very disturbing message to others who might behave likewise. Basically we would be saying that it is O.K. to attack your neighbor, impose a blockade, stop food, fuel, and medicine from getting through to those in need, the United States will simply look the other way. In fact, we will do more than look the other way, we will consider offering you military assistance. I do not think this is the sort of message we should be sending. The nations of the region must solve their problems via direct negotiations and mutual compromise, not by acts of war. When Azerbaijan shows a willingness to end its blockade and seeks a peaceful resolution of the outstanding issues with Armenia then, and only then, should the United States provide it with the sort of assistance that this Amendment would allow. I urge my colleagues to join me in support of the McConnell Amendment. And, unless the McConnell Amendment, which retains Section 907, is passed by this body, I would urge my colleagues to join me in opposition to the underlying Brownback Amendment. Silk Road Strategy Act

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise to bring to the attention of my colleagues an issue which I believe is of importance in the FY 2000 Foreign Operations Appropriations bill: U.S. assistance to Egypt. Before I begin, however, I thank the chairman and ranking member of the subcommittee for their expert and sound guidance on this bill. They deserve our commendation for working with such tight 302(b) allocations. Egypt is a country that many in the Senate hold in high regard. Egypt is a dependable and steady ally in the Middle East. This year marks the twentieth anniversary of peace between Israel and Egypt, a peace which has served and continues to serve as a benchmark of the end of hostilities between Arabs and Israelis. Since peace between Egypt and Israel was established in 1979, Congress has recognized that in America's relations with these two allies that fair treatment of both Israel and Egypt in the provision of foreign assistance is a key feature in preserving peace and stability in the region. The administration requested as part of its FY 2000 budget that a portion of Egypt's military assistance held in reserve to pay for the potential termination of contracts accrue interest. This proposal, known as an interest bearing account (IBA), would allow interest to accrue on approximately $470 million in the termination liability account for Egypt. Israel's military assistance has been treated in this way for some time, treatment that I and many others here support. The net impact of granting Egypt this treatment would be about $20 million in interest to Egypt, without any additional cost or outlay by the U.S. taxpayer. Like many of my colleagues, I support the administration's request for an IBA for Egypt, and I feel very strongly that Egypt should have the same terms as Israel. The Department of State has made a commitment to Egypt on this issue, and I think it is important that this commitment be kept. Despite our support for an IBA, the Congressional Budget Office has told us that the IBA would be scored as a $470 million outlay--despite the fact that it actually costs nothing--and would thus break the Senate's tight outlay ceiling for this bill. Although support for an IBA for Egypt is strong--I am confident that on the merits an Amendment proposing an IBA would have the support of the vast majority of my colleagues--the Senate is confined at this time in our actions by budgetary pressures. I am hopeful that we might still be able to resolve this scoring issue and perhaps address the question of an IBA for Egypt in Conference. Again, I thank the subcommittee chairman and ranking member for their work on this bill. I look forward to continuing to work with them on this issue. bureau of international narcotics and law enforcement and the state department

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I send an amendment to the desk.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. I object.