Dianne Feinstein

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, it is with great pleasure that I rise today to speak on passage of S. 2037, the Digital Millennium Copyright Act. This Act implements two treaties adopted by the World Intellectual Property Organization, or WIPO, in December, 1996--the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. Passage of this important legislation will clear the way for ratification of these treaties, which are in the paramount interest of the United States-- and of the State of California, in particular. These treaties are intended to ensure that foreign countries give intellectual property to the same high level of protection that we afford it here in the U.S. The United States is the world's leader in intellectual property, the home of the most creative and dynamic individuals and enterprises in the world--the majority of whom are located in California. This industry constitutes a very important sector of the U.S. economy, and contributes greatly to our global economic position: American creative industries grew twice as fast as the rest of the U.S. economy from 1987-94; more than 3 million Americans worked in the core copyright industries as of 1994; exports of U.S. intellectual property were more than $53 billion in 1995; and the Business Software Alliance reports that 50-60 percent of its revenues come from overseas. It is vital that we do everything we can to protect and defend this important sector of the economy from foreign piracy, especially in this new digital age, when the potential exists for thousands of absolutely perfect, priated copies of American intellectual property to be made almost instantly, at the tough of a button: American copyright owners lose $15 billion in overseas sales to piracy every year; the digital gaming industry loses $3.2 billion per year to priacy--almost one third of its $10.1 billion annual sales; and the recording industry's domestic business is flat and they need a strong export market for sales growth. Indeed, some countries, such as Argentina, have said that computer programs aren't even protected by copyright; ratifying WIPO will ensure that they are. Foreign countries have been waiting for the U.S., as the world's largest producer of intellectual property, to take the lead in WIPO ratification before the ratify the WIPO treaty, so this is an important step we are taking today. The bill which we crafted in the Judiciary Committee is a truly impressive achievement. We worked together with a plethora of diverse industries, academic interests, and law enforcement to forge a bill which advances everybody's interest. Title I of the bill implements the WIPO treaties, and outlaws so- called ``black boxes'': devices designed to accomplish the perfect digital piracy which I have mentioned. By protecting against this piracy and paving the way for ratification of the WIPO treaties, this title provides immense help to America's creative industries, including authors, composers, publishers, performers, movie-makers, the recording industry, and the software industry. Title II of the bill provides for protection from copyright infringement liability for on-line service providers who act responsibly. This title provides much-desired protection for on-line service providers, such as Yahoo! from my State of California, telecommunications companies, and educational institutions. Title II includes a provision which I authored, section 204 of the bill, which requires the Copyright Office to take a comprehensive look at the issue of the liability of schools and universities for the acts of their students and faculty who may use their network to post infringing materials, and to make recommendations for legislation. Among the factors which the Copyright Office is to consider are: What is the direct, vicarious, and contributory liability of universities for infringement by: faculty, administrative employees, students, graduate students, and students who are employed by the university. What other users of university computers universities may be responsible for; the unique nature of the relationship between universities and faculty; what policies should universities adopt regarding copyright infringement by university computer users; what technological measures are available to monitor infringing uses; what monitoring of the computer system by universities is appropriate; what due process should the universities afford in disabling access by allegedly infringing computer users; should distinctions be drawn between open computer systems, closed computer systems, and open systems with password-protected parts; and taking into account the tradition of academic freedom. I want to thank the Chairman, Senator Hatch, and the Ranking Member, Senator Leahy, for working with me on this provision. It is my hope and expectation that copyright content providers and the educational community will get together and work cooperatively to address these issues during the course of the Copyright Office study. Title III of the bill ensures that computer maintenance and repair providers will not be found liable for copyright infringement for performing their ordinary services. Title IV of the bill provides additional copyright exemptions for libraries, archives and broadcasters, and another study, of distance learning, which could benefit educational institutions. So this bill helps an incredibly broad spectrum of American interests: authors, telecommunications, universities, computer makers, movies, software, broadcasters, and on and on. No small number of these industries are centered or have very substantial presence in, and immense importance to the economy of, my state of California. Thus, it is with great pleasure that I applaud the passage of this legislation, and urge the House to protect America's economy and rapidly pass it as well.

Mrs. FEINSTEIN

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

Mrs. FEINSTEIN. Mr. President, I rise today to offer an amendment to the Department of Defense authorization bill to express the concern of this body and condemnation of the recent Indian nuclear tests. Mr. President, this is a sense of the Senate. Before I go into the provisions of it, let me state what I understand the facts to be. In the last 2 days, there have been five underground nuclear tests in India about 70 miles from the border of Pakistan. According to Prime Minister Vajpayee of India, there was a fission device, a low-yield device, and a thermonuclear device. According to the Carnegie Foundation, India is estimated to have approximately 400 kilograms of weapons-usable plutonium. Given that it takes about 6 kilograms of plutonium to construct a basic plutonium bomb, this amount would be sufficient for 65 bombs. With a more sophisticated design, it is possible that this estimate could go as high as 90 bombs. India also possesses several different aircraft capable of nuclear delivery, including the Jaguar, the Mirage 2,000, the MiG-27, and the MiG-29. India has 2 missile systems potentially capable of delivering a nuclear weapon: The Prithvi, which can carry a 1,000-kilogram payload to approximately 150 kilometers or a 500-kilometer payload to 250 kilometers; and the Agni, a two-stage, medium-range missile which can conceivably carry a 1,000-kilogram payload as far as 1,500 to 2,000 kilometers. India, according to a report, has possibly deployed, or at the very least is storing, conventionally armed Prithvi missiles in Punjab very near the Pakistani border. Mr. President, it is no secret that there are intense feelings between these two nations. Pakistan and India, up to late, have been very difficult adversaries. More recently--this makes these detonations even more concerning--I think there has been a kind of rapprochement. And we hopefully were seeing some improvement in the relations between these two countries. Mr. President, I can hardly think of a more important issue to the interests of the United States than preventing the proliferation of weapons of mass destruction. As the Secretary of State said the other day, this Nation has no other agenda than peace and stability throughout the world. And that, indeed, is an agenda to which I believe this body can wholeheartedly subscribe. So each State that acquires nuclear weapons creates additional complications in maintaining international security. In south Asia today it appears to be too late to talk about preventing the acquisition of nuclear weapons. Both countries, India and Pakistan, now clearly have nuclear capability. And ultimately India must determine for itself whether its interests are best served by ridding South Asia of weapons of mass destruction or by turning the region into a potential nuclear battleground. That, I think, is no less the decision that has to be made. We all hope that India will choose the course of deescalation, of standing down, of beginning to reduce its nuclear arsenal and at the very least showing a willingness, now that these underground tests have been carried out, to sign the Nuclear Non-Proliferation Treaty. And, all of us saying to the Pakistani Government, please, we urge you not to respond in kind but to show that, indeed, Pakistan understands that greatness is not indigenous to nuclear production, I believe, in the long run, will bring inordinate credibility to the Government and the people of Pakistan, and the favorable response of this body as well. Mr. President, the amendment I submit today on behalf of Senators Brownback, Glenn, Bryan and myself essentially reports what has happened in the last 2 days. It then goes on to say that it is the sense of the Senate that we condemn in the strongest possible terms the decision of the Government of India to conduct three nuclear tests on May 11 and two on May 13 and that we support the President's decision to carry out the provisions of the Nuclear Proliferation Prevention Act of 1994 with respect to India and to invoke all sanctions therein. I might add that the author of that act is a distinguished Member of this body, none other than Senator John Glenn of the great State of Ohio. And that is a rather comprehensive statement of sanctions that in fact can be placed on India. It will effectively terminate assistance to that country under the Foreign Assistance Act of 1961 except for humanitarian assistance or food or other agricultural commodities. It will terminate sales to that country of any defense articles, defense services or design and construction services, and licenses for the export to that country of any item on the U.S. munitions list. It will terminate all foreign military financing for that country, and it will deny to that country credit, credit guarantees or other financial assistance by any department, agency or instrumentality of the U.S. Government, except that it will not apply to any transaction subject to the reporting requirement of title V or to humanitarian assistance. And it will oppose, in accordance with the International Financial Institutions Act, the extension of any loan or financial or technical assistance to that country by any international financial institution and prohibit any U.S. bank from making any loan or providing any credit to the Government of that country except for loans or credits for the purpose of purchasing food or other agricultural commodities. Finally, it will prohibit exports to that country of specific goods and technology. My point in reading this, Mr. President, is that these, indeed, are strong sanctions. I believe all Members of this body are in support of the President's decision and this amendment gives us an opportunity to say so. The sense of the Senate also calls upon the Government of India to take immediate steps to reduce tensions that this unilateral and unnecessary step has caused. We express our regret that this decision by the Government of India will by necessity set back relations between the United States and India, and we urge the Government of Pakistan, the Government of the People's Republic of China and all governments to exercise restraint in response to Indian nuclear tests in order to avoid further exacerbating the nuclear arms race in south Asia. We call upon all governments in the region to take steps to prevent further proliferation of nuclear weapons and ballistic missiles, and we urge the Government of India to enter into a safeguards agreement with the International Atomic Energy Agency which would cover all Indian nuclear research facilities at the earliest possible time. Mr. President, this is the text and sum of this sense-of-the Senate amendment before this body. I might say, for someone who has taken an interest in India, who has spent time with prior Ambassadors, both of India and Pakistan, attempting to reconcile differences between the two countries, that these tests come to me personally as a very low blow. I did not think we would see the day when the detonation of these nuclear devices would take place. However, that is now past. We have seen that day. We hope we learn from that, and we hope, most importantly, that the governments concerned--India, Pakistan, and China--also will recognize the fact that we in this body wish to do everything we possibly can to find consensus rather than animus, to put an end to the adversarial relationships, and to have sanity and soundness prevail when it comes to nuclear weapons. I thank the Chair. Perhaps I might ask for the yeas and nays on this amendment. Mr. BROWNBACK addressed the Chair.

Mrs. FEINSTEIN. I now see my distinguished colleague. I did not see Senator Brownback. Perhaps he would like to comment as well.

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

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, before I send an amendment to the desk, if I may, I would like to make one comment on the remarks posed to the body by the Senator from New York with respect to the legislation that we cosponsored. I want to congratulate him for getting this legislation on the tobacco bill. I also want to express my dismay that this route has been taken and that an amendment which is very direct cannot get by this body any other way. Mr. President, every day women of this country are being subjected to a mastectomy being performed in the morning and being pushed out on the streets that afternoon. It is called a ``same-day mastectomy,'' a ``drive-through mastectomy.'' I never thought in my lifetime that I would see the medical profession in a position where the length of hospital stay could not be determined by the physician. All we would do in this amendment is say that the length of a woman's hospital stay, having had a mastectomy, would be based on the advice and knowledge of her physician. Whether she has a radical mastectomy, what her reaction to anesthesia is, what her preconditions are, all should be party to that decision, and not some HMO that says henceforth all major surgical procedures called mastectomies will be conducted on a same-day basis. This, to me, is bad medicine. We also, as the Senator said, simply provide that the insurance company must provide for reconstructive surgery or prosthetic surgery, and that the doctor cannot be penalized for recommending additional treatment for the woman. It seems to me, Mr. President, that we owe this simple gesture to the women of America, because to say to any woman that she has to go into a hospital for major, major surgery and is going to get pushed out on the street--I would hazard a guess that there isn't a man in this room who wants to have major surgery, leave with two to four drains in their body, having had a general anesthetic, and losing a significant portion of their torso, and hear, ``You cannot stay overnight in the hospital no matter how you feel.'' So I hope that the leadership of this body, hearing the capacity, the energy, the stubbornness of the Senator from New York, would really realize that the better part of valor is to allow us to have an up-or- down vote on this amendment. It seems to me, humbly stating, that this is the way this body should, in fact, function.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today to lend my support to S. 1260, the Securities Litigation Uniform Standards Act. This legislation, introduced by Senator Gramm and Senator Dodd, is essential to my state of California, providing needed uniform national standards in securities fraud class actions. In 1995, with my support, Congress successfully passed the Securities Litigation Reform Act. The 1995 Act provided relief to American companies hit with frivolous, or nuisance, lawsuits. Specifically, the legislation adopted federal provisions to discourage nuisance securities lawsuits and increase the level of information provided for investors. This is very important to my state of California, where hundreds of burdensome lawsuits are filed each and every year. More than 60% of all California high tech firms have been sued at least once. Apple Computers executives stated they expect to be sued every two years. These lawsuits levy a heavy cost on businesses who have to pay for expensive legal battles, draining company resources which might otherwise be spent on growing and improving the health of the company. Securities litigation, as several high tech executives have described, is truly ``an uncontrolled tax on innovation.'' The high-tech industry has been central to the successful economic recovery in California. As thousands of workers in the aerospace industry lost their jobs, and as the recession of the '90s stalled the economy, it was California's entrepreneurial spirit, the investment in new ideas, research and new technology which resulted in a rebounding economy. In California, there are over 20,000 established high-tech companies. With roughly 670,000 workers, California ranks 1st in the nation in high-tech employment. To put it in another way, for every 1,000 workers in my state, 62 are high-tech. That is significant when one considers that as the 7th largest economy in the world, California supports almost every kind of industry and business known to commerce. Start-up companies in the high-tech and biotech industries are most directly affected by securities lawsuits. These high-tech and biotech companies dedicate a large percentage of company funds for research and development. The average high tech firm invests between 16-20% of company revenues in research, with biotech firms often as high as 60%. This level of investment is integral to their business success. However, with the burden of frivolous lawsuits, California companies are not able to use their resource on developing innovative technologies and new products for the market place. The 1995 Securities Litigation Reform moved in the right direction. However, the 1995 legislation did not address recent actions by plaintiffs to file frivolous cases in state courts. Since the passage of the 1995 legislation, suits traditionally filed in federal courts are now being placed in state courts. The current law does not protect companies from this threat. The bill, which I have been pleased to support, will protect companies from this side-door tactic. The Securities Litigation Uniform Standards Act of 1997 establishes uniform national standards in securities fraud class action suits. It would permit a defendant, whether a company or individual, who is sued in state court to proceed into federal court. This legislation would in effect require that every large securities class action be brought into federal court. The creation of effective national standards will make it easier to protect companies from so-called nuisance shareholder lawsuits. Specifically, the legislation would provide for the shifting of securities lawsuits filed in a state court into the more appropriate federal court, a process called ``removal.'' The removal authority would only apply for class action suits involving nationally-traded securities, such as the New York Stock Exchange. Without removal authority, these companies, whose securities are traded throughout the fifty states, could face liability under federal securities laws in fifty state courts. This widespread liability would undermine the reforms enacted in the 1995 Securities Litigation Reform Act. Further, this legislation would prevent ``forum shopping,'' a method for nuisance lawsuits to be initiated in the most sympathetic state jurisdiction. This is a very real concern for California. According to a recent study by former Securities and Exchange Commissioner Joseph A. Grundfest, approximately 26% of litigation activity has moved from federal to state court since the passage of the 1995 law. The study elaborates: This increase in state court litigation is likely the result of a `substitution effect' whereby plaintiffs' counsel file state court complaints when the underlying fact appear not to be sufficient to satisfy new, more stringent federal pleading requirements. California is the home to one-third of the nation's biotechnology companies and medical device companies. These firms have been the source of tremendous growth. Yet these high tech firms are the very ones who face one of every four strike suits and who have had to pay hundreds of millions of dollars in settlements. National standards will address this problem effectively and fairly. By establishing a uniform system for the movement of cases from state to federal court, Congress can limit abusive lawsuits that inhibit economic and job growth. The Securities Litigation Uniform Standards Act of 1997 will offer important protection for American companies from nuisance lawsuits. I appreciate the efforts of the Banking Committee and the sponsors, Senator Gramm and Senator Dodd, for their work on this issue and encourage my fellow Senate colleagues to support this legislation.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I have a question for the author, the Senator from New York. I believe this bill has strong support and a low cost. Its cause is just and correct, and it would be passed by this body overwhelmingly. When might we expect a vote on this bill?

Mrs. FEINSTEIN. Mr. President, I certainly will. I thank the Senator for his leadership and commitment to this issue.

Mrs. FEINSTEIN. I yield the floor.

Mrs. FEINSTEIN. And, am I correct in that the Senate Finance Committee held a hearing on our bill on November 5, 1997?

Mrs. FEINSTEIN. Is it not true that the D'Amato-Feinstein mastectomy bill has 21 cosponsors, including a bipartisan group of women Senators--Senators Snowe, Moseley-Braun, Hutchison, Mikulski, and Boxer?

Mrs. FEINSTEIN. Is it not true that the Senator has been unable to get the Finance Committee to move this bill to the floor?

Mrs. FEINSTEIN. And on March 31 and on February 10 of this year, did my colleague not offer it as an amendment in the Finance Committee?

Mrs. FEINSTEIN. On May 6, we filed it as an amendment to H.R. 2676, the IRS restructuring bill. Is that not correct?

Mrs. FEINSTEIN. Is it not true that we have filed this bill to be considered by the Senate two times and you offered it in the Finance Committee two times? On March 16, we filed it as an amendment to H.R. 2646, the Parent and Students Savings Account Plus Act. Is that not correct?

Mrs. FEINSTEIN. I would like the Senator from New York to know that I am a cosponsor, also, of the Patients' Bill of Rights Act. I understand the importance of this bill. I would very much welcome floor time to consider this bill as well. However, I did indicate in our Democratic caucus that absent that opportunity, and because women all across this Nation are going through some of the same events that two women who brought this to my attention 3 years ago in California went through, and that is to show up to have a radical mastectomy at 7:30 in the morning, and then to be pushed out on the street at 4:30 that afternoon with drains in them, the effects of anesthetics still upon them, really unable even to walk--is it not true that what we strive to do is make a simple reform and say that no woman without the permission of her physician will be subject to this kind of treatment ever again in the United States of America?

Mrs. FEINSTEIN. I thank the Senator from New York. I must say that I think what is happening here is unfortunate. I think what we are seeing overwhelmingly all across the United States is a state of medical care and health insurance in this country that is becoming much more oriented toward business and much less oriented toward medicine. And this is prompting, I think, all across this land a terrible situation for physicians and for patients. What prompted me to introduce this bill was two California women who wrote to me. I want to read them to you and enter their full statements in the Record. One was from a woman in Newark, CA. And she wrote--and this was almost 2\1/2\ years ago--that she had a modified radical mastectomy as an outpatient at the Fremont Kaiser outpatient clinic. She was operated on at 11:30 in the morning and was released at 4:30 that afternoon, with no attempt made to see if she could even walk to the bathroom. She was 60 years old. And the discovery of cancer and the subsequent surgery were extremely draining both emotionally and psychologically. That is one case. Same day. Let me read you about another case. My mastectomy and lymph node removal took place at 7:30 a.m., November 13. I was released at 2:30 p.m. that same day. I received notice, the day before surgery, from my doctor that mastectomy was an outpatient procedure at Kaiser and I'd be released the same day. Shocked by this news, I told my surgeon of my previous complications with anesthesia and the fact that I have a cervical spine condition, which adds an additional consideration for any surgery. Then she goes on and she says: While in a groggy, postoperative daze, swimming in pain and nausea, I was given some perfunctory instructions on how to empty the two bloody drains attached to my body. I was told to dress myself and go home. My doctor's written chart instructions for a room assignment, if I developed acute nausea or pain, were ignored by the nursing staff. This is the problem we are trying to stop right here and now. I frankly am sorry that the bill isn't broader. But this is something whose cost is small--$100 million. We know it can be accommodated. We know we can get the job done. This bill is simple. It requires every insurance plan in the United States of America to cover the hospital length of stay determined by the physician to be medically necessary. It does not prescribe a fixed number of days. It does not set a minimum. It leaves the length of the hospital stay for the mastectomy up to the treating physician. Secondly, it requires health insurance plans to cover breast reconstruction following a mastectomy. Thirdly, it requires insurance plans to cover breast prostheses and complications of mastectomy, including lymphedema. And, finally, it prohibits insurance plans from financially penalizing or rewarding a physician for providing medically necessary care or for referring a patient for a second opinion. This is a simple bill. It is a direct bill. It is going to directly benefit the lives of tens of thousands of women. I regret that it isn't more comprehensive. But we know it is doable, we know what it does, and we know women will immediately be better off because of it. So I am very proud to stand here with my colleague from New York and with others in the Senate. The great bulk of women Senators are supporting this. This is tangible; it is doable. We believe it can become law quickly. And we say, let us seize the moment and let us accomplish at least this for women of America. So I thank my colleague from New York for his authorship. I was very proud to be an original sponsor on this bill. We did have a hearing. We have tried to get the job done before, but hopefully it will get done this morning. As an original cosponsor of S. 249, the Women's Health and Cancer Rights Act, I am pleased to sponsor the amendment on mastectomy hospital length of stay that Senator D'Amato is urging the Senate to consider. It is time to pass it. Senator D'Amato and I introduced this amendment as a bill on January 30, 1997, 16 months ago. The Senate Finance Committee held a hearing on the bill, S. 249, on November 5, 1997. We have filed this as an amendment, to be considered by the Senate, three times: On March 16, we filed it as an amendment to H.R. 2646, the Parent and Student Savings Account PLUS Act. On May 6, we filed it as an amendment to H. R. 2676, the IRS restructuring bill. On March 31 and on February 10 of this year, Senator D'Amato offered it as an amendment in the Finance Committee. In sum, we have made numerous efforts to get the Senate to consider this bill. The D'Amato-Feinstein mastectomy bill has 21 cosponsors, including a bipartisan group of women Senators: Senators Snowe, Moseley-Braun, Kay Bailey Hutchison, Mikulski and Boxer. This amendment has four important provisions: For treatment of breast cancer: 1. It requires insurance plans to cover the hospital length of stay determined by the physician to be medically necessary. Importantly, our bill does not prescribe a fixed number of days or set a minimum. It leaves the length of hospital stay up to the treating physician. 2. It requires health insurance plans to cover breast reconstruction following a mastectomy. 3. It requires insurance plans to cover breast prostheses and complications of mastectomy, including lymphodemas. For treatment of all cancers: 4. It prohibits insurance plans from financially penalizing or rewarding a physician for providing medically necessary care or for referring a patient for a second opinion Let me share with you two firsthand experiences, two California women describing their treatment by insurance companies in having a mastectomy. Nancy Couchot, age 60, of Newark, California, wrote me that she had a modified radical mastectomy on November 4, 1996, at 11:30 a.m. and was released by 4:30 p.m. She could not walk and the hospital staff did not help her ``even walk to the bathroom.'' She says, ``Any woman, under these circumstances, should be able to opt for an overnight stay to receive professional help and strong pain relief.'' Victoria Berck, of Los Angeles, wrote that she had a mastectomy and lymph node removal at 7:30 a.m. on November 13, 1996, and was released from the hospital 7 hours later, at 2:30 p.m. Ms. Berck was given instructions on how to empty two drains attached to her body and sent home. She concludes, ``No civilized country in the world has mastectomy as an outpatient procedure.'' These are but two examples of what, unfortunately, is symptomatic of a growing trend and a national nightmare--insurance plans interfering with professional medical judgment and arbitrarily reducing care without a medical basis. Premature discharges for mastectomy, with insurance plans strong- arming physicians to send women home, are one glaring example of the growing torrent of abuses faced by patients and physicians who have to ``battle'' with their HMOs to get coverage of the care that physicians believe is medically necessary. Increasingly, insurance companies are reducing inpatient hospital coverage and pressuring physicians to discharge patients who have had mastectomies. This is beyond the pale. It is unconscionable. The Wall Street Journal on November 6, 1996, reported that ``some health maintenance organizations are creating an uproar by ordering that mastectomies be performed on an outpatient basis. At a growing number of HMOs, surgeons must document `medical necessity' to justify even a one-night hospital admission.'' A July 7, 1997 study by the Connecticut Office of Health Care Access found the average hospital length of stay for breast cancer patients undergoing mastectomies decreased from three days in 1991 and 1993 to two days in 1994 and 1995. This study said, ``The percentage of mastectomy patients discharged after one-day stays grew about 700 percent from 1991 to 1996.'' In the last ten years, the length of overnight hospital stays for mastectomies has declined from 4 to 6 days to 2 to 3 days to, in some cases, ``no days.'' The average cost of one day in a community hospital in 1995 nationwide was $968.00. In California, in 1997, the average cost for one day was $1,329.77. When insurance plans refuse to cover a hospital stay, most Californians have difficulty coughing up $1,300.00. They are forced to go home. In 1997, over 180,000 women (or one in every 8 American women) were diagnosed with invasive breast cancer and 44,000 women died from breast cancer. Only lung cancer causes more cancer deaths in American women. 2.6 million American women are living with breast cancer today. In my state, this year, 19,399 women will be diagnosed with breast cancer and 4,585 will die. The San Francisco Bay Area has some of the highest rates of breast cancer in the world. According to the Northern California Cancer Center, San Francisco's 9-county area's rate of breast cancer in 1994 was 50 percent higher than most European countries and 5 times higher than Japan. In September 1997, the Northern California Cancer Center gave us some mixed news: ``The good news is we're seeing the rates go down. The bad news is we don't know why,'' said Angela Witt Prehn. But officials there say, the bottom line is that incidence rates are still higher than national rates. After a mastectomy, patients must cope with pain from the surgery, with drainage tubes and with psychological loss--the trauma of an amputation. These patients need medical care from trained professionals, medical care that they cannot provide themselves at home. A woman fighting for her life and her dignity should not also be saddled with a battle with her health insurance plan. A physician trying to provide medically necessary care As the National Breast Cancer Coalition wrote me on March 12, 1998: ``The NBCC applauds this effort and believes this compromise will put an end to the dangerous health insurance practices that allow cost and not medical evidence to determine when a woman leaves a hospital after breast cancer surgery.'' Insurance plans also refuse to cover breast reconstruction and breast prostheses. Our bill requires coverage. Joseph Aita, Executive Vice President and Medical Director of LifeGuard, was quoted in the San Jose, California, Mercury News, as saying ``Looking normal is not medically necessary.'' Let me contradict Mr. Aita. Looking normal is medically necessary. Breast reconstruction is important to recovery. According to Dr. Ronald Iverson, a Stanford University surgeon, ``Breast reconstruction is a reconstructive and not a cosmetic procedure.'' He cites a study which found that 84 percent of plastic surgeons reported up to 10 patients each who were denied insurance coverage for reconstruction of the removed breast. This could mean 40,000 cases per year. Commendably, my state has enacted a law requiring coverage of breast reconstruction after a mastectomy. We need a national standard, covering all insurance policies. Let's follow California's need. Finally, our amendment prohibits insurance plans from including financial or other incentives to influence the care a doctor's provides, similar to a law passed by the California legislature last year. Many physicians have complained that insurance plans include financial bonuses or other incentives for cutting patient visits or for not referring patients to specialists. Our bill bans financial incentives linked to how a doctor provides care. Our intent is to restore medical decision-making to health care. For example, a California physician wrote me, ``Financial incentives under managed care plans often remove access to pediatric specialty care.'' A June 1995 report in the Journal of the National Cancer Institute cited the suit filed by the husband of a 34-year old California woman who died from colon cancer, claiming that HMO incentives encouraged her physicians not to order additional tests that could have saved her life. Our amendment today tries to restore professional medical decisionmaking to medical doctors, those whom we trust to take care of us. It should not take an act of Congress to guarantee good health care, but unfortunately that is where we are today. As the National Breast Cancer Coalition wrote us on March 12, ''. . . until guaranteed access to quality health care coverage and service is available for all women and their families, there are some very serious patient concerns that must be met. Without meaningful health care reform, market forces propel the changes in the health care system and women are at risk of being forced to pay the price by having inappropriate limits placed on their access to quality health care.'' This amendment is an important protection for millions of Americans who face the fear, the reality and the costs of cancer every day. When any cancer strikes, it is not just the victim who suffers. It becomes a family matter. Today I say, enough is enough. It is time for this Senate, for this Congress to send a strong message to insurance companies that we must put care back into health care. Medical decisions must be made by medical professionals, not anonymous insurance clerks. I ask unanimous consent to have items I referred to previously printed in the Record.

Mrs. FEINSTEIN. Mr. President, I would like to ask the Senator from New York a question. As I recall, we introduced this amendment as a bill on January 30, 1997. That was 16 months ago. The Patients' Bill of Rights, I believe, was introduced on March 31st of this year. Is that not correct?

Mrs. FEINSTEIN. My question about when we introduced this bill, a bill that would give a woman and her physician the right to determine the length of a hospital stay when she has a mastectomy, and quite possibly a radical mastectomy. The length of stay in the hospital would be the decision of her physician, not the HMO; we introduced this bill 16 months ago. Correct? The Patients' Bill of Rights was introduced in March of this year. Is that not correct?

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I offer a very simple amendment to S. 1618 that will protect the critical area of consumer health care privacy. This amendment provides that in communications with health care insurers or providers, patients have the right not to have their confidential conversations recorded or monitored. This amendment fills a loophole in existing law. Federal law currently provides that at least one party must consent to the taping or monitoring of a private conversation. The federal law allows states to provide even more stringent restrictions, and require that all parties to a conversation must consent to their taping or monitoring. However, this law provides no protection to patients against unauthorized taping or monitoring. Even when, as in my State of California, the state law requires all parties to consent for taping or monitoring, the law fails to protect them. Patients are construed to consent to taping or monitoring, whether they expressly consent or not, if they are informed of the taping or monitoring. This is most often accomplished by a recording at the beginning of the telephone call. If patients refuse to have their calls monitored, they are told to simply take their business elsewhere. But there is nowhere else to go. The confidentiality of details about our health is one of the most sensitive topics imaginable. Physician-patient confidentiality is a bedrock principle that goes back literally thousands of years. Not only is this an ethical issue, it is a health imperative. In fact, it can be a matter of life and death. Anything less than full confidentiality compromises the willingness of patients to provide the full information that treating physicians need to treat them properly. It can literally jeopardize their health and their life. We naturally assume that intimate details that we share with our doctor and health care professionals are strictly confidential. But they are not. Today, any communication we have with a health care professional may be taped and monitored. This problem is exacerbated by the rising role of health insurance companies in treatment. Oftentimes, it is a health insurance company, rather than a trusted doctor, with whom the patient must share intimate personal health details. That health insurance company may not have the same ethical and legal confidentiality obligations as the patient's treating physician. When my office contacted the top 100 health insurance providers in this country, we learned that most health insurance companies who responded tape or monitor calls from patients. I want to share briefly some of the responses we received. Kaiser Permanente is a health insurance provider that operates in 19 states and the District of Columbia, and provides care to more than 9 million members. Its practices vary from state to state, depending on applicable state laws. Among other things, Kaiser Permanente may: Monitor randomly selected calls, in which case it may or may not notify patients in advance; or tape record all or randomly selected calls, in which case it may or may not notify patients in advance. United HealthCare wrote that they did not believe that recording or monitoring calls presented a privacy issue. Their rationale was that they only randomly record calls and only after advising the caller that the call may be recorded. Great-West responded that a patient has the option of communicating in writing if the patient does not want to be recorded. Well, let me say simply--that's not good enough for me. Despite the two-party consent rule in my own State of California, NYL Care Health Plans, Inc., responded that no violation of California law occurs in the absence of a ``confidential communication.'' Under California law, the definition of a ``confidential communication'' does not include communications where the parties may reasonably expect that the call may be recorded. NYL Care asserted that, since patients were told that their call could be monitored, their calls were not confidential calls. In my view, NYL Care's interpretation of ``confidentiality'' turns its commonly understood meaning on its head. In fact, I doubt whether any of my colleagues would agree that communications about one's own health problems are not confidential. Finger Lakes Blue Cross-Blue Shield of Upstate New York randomly tapes records calls from patients and is in the process of implementing a front-end message to patients. In the case of Blue Cross Blue Shield of the National Capital Area, a patient receives no notice that the call may be monitored. Their Associate General Counsel stated that in both Maryland and the District of Columbia, no consent was required. Not only is unauthorized taping or monitoring of telephone calls just plain wrong, it is simply unnecessary. None of the health insurers who responded to my office could provide a valid reason for monitoring or taping incoming calls from patients. The standard response I received from health insurers was that they monitored or tape recorded calls for ``quality control.'' Yet no one could explain how the health insurer's record of the information discussed protects the patient. It's easy to see, I think, how the industry's practice leaves the patient disadvantaged. My amendment is simple. First, it requires express consent from patients in order to be taped or monitored by health insurance companies or health care providers. Second, it requires health insurance companies or health care providers to give patients the option not to be taped or monitored. Third, it applies only to health insurance companies or health care providers. It does not affect the remaining companies that tape or monitor customer communications. Mr. President, this amendment simply ensures a basic right that most patients believe they already enjoy. I urge its adoption.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, at this time, on behalf of Senator Brownback, Senator Glenn, and myself, I send to the desk for reference to committee a sense-of-the-Senate resolution which, in essence, deals with the explosion of three nuclear devices by the Government of India yesterday. As this body well knows, the Government of India conducted underground tests on three separate nuclear explosive devices, including a fission device, a low-yield device, and a thermonuclear device. They did this also very close to the border of Pakistan, thereby raising tensions between the two countries and in the entire south Asia region. This sense of the Senate will condemn that explosion in the strongest possible terms and will call upon the President of the United States to carry out the provisions of the Nuclear Proliferation Prevention Act of 1994 with respect to India and invoke all sanctions therein. It will also call upon the Government of India to take immediate steps to reduce tensions that this unilateral and unnecessary step has caused. I am aware that Senator Brownback's subcommittee, of which I am a member, will be meeting tomorrow, and will be discussing this issue, and, hopefully, will be able to agree to this resolution. I am delighted to work with the Senator, and I note that he is present on the floor at this time, so I will say no more but simply send this to the desk.

Mrs. FEINSTEIN

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

Mrs. FEINSTEIN. I thank the Chair. (The remarks of Mrs. Feinstein and Mr. Brownback pertaining to the submission of S. Res. 227 are located in today's Record under ``Submission of Concurrent and Senate Resolutions.'')

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Will the Senator yield?