Bob Graham

Mr. GRAHAM

Mr. GRAHAM. I yield 1 minute to the Senator from Arkansas.

Mr. GRAHAM. I yield 3 minutes to the Senator from Virginia.

Mr. GRAHAM. I ask unanimous consent to be able to offer an amendment at this time.

Mr. GRAHAM. Reserving the right to object, could I add a further statement to that unanimous consent request?

Mr. GRAHAM

Mr. GRAHAM. If we both have the same objective, which is to ensure that a family with a child with a 103-degree temperature won't be at an economic disadvantage by going to the nearest emergency room--if our desire is to encourage that, let's not be vague about it. Let us not leave this ambiguous.

Mr. GRAHAM. Here is the problem. I am a court or I am an administrative agency trying to apply this law. I have exactly the same language in this amendment as was reported by the Senate committee of jurisdiction. That committee issued a report that, in very unambiguous language, specifically interprets these words to mean that you can't be charged more if you take your kid to the closest emergency room that doesn't happen to be a part of a participating network. Now, you have said, Senator Frist has said, and I think everybody agrees, that we don't want that to be the result. So why don't we get a set of words that removes any ambiguities so that no one, a year from now, can go back to this same report and read what the committee allegedly meant as applied to the Senate words. It is not a complicated concept to articulate. We ought to do it.

Mr. GRAHAM. I don't mean to be repetitive, but my concern is that the language in the amendment is exactly the language that is in the underlying bill to which that committee report was written. Privilege Of The Floor

Mr. GRAHAM. The subject of subparagraph 1 is the issue of whether they can charge you a different copayment or deductible; that is, if my standard deductible, if I go to an in-network emergency room, is, let's say, 20 percent, can I be charged a 70-percent copayment because I am going to an out-of-network? That is what both subparagraph 1 and the paragraph on top of page 29 of the committee report refers to. They are two significant and different concepts.

Mr. GRAHAM. Mr. President, I rise today in strong support of this amendment to ensure that managed care enrollees have access to specialists. Specialists are an integral part of our health care network. As a result, access to quality specialty care can often be a matter of life and death. In a recent Harvard study, 56 percent of doctors cited the bureaucracy involved with referrals to specialists as one of their top three problems with HMOs. In addition, 40 percent of doctors felt limited by managed care companies from referring patients to appropriate specialists. No managed care issue has raised more concern among consumers and providers alike than access to specialty care; especially the issue of having specialty physicians acting as primary care providers. Mr. President, you can imagine what a challenge this is for individuals with chronic or disabling conditions. My own daughter has been in the position where she needed a specialist to coordinate her care. She had triplets a few years ago, and her medical needs were not unlike many young mothers in similar situations. I am convinced that my daughter's health would have been seriously compromised if she had been denied access to a multiple birth specialist. Multiple birth pregnancies are often high risk, but because she had the proper care, I can now gladly say that I am the proud grandfather of three beautiful girls. The language in this amendment would ensure that if an individual has a condition or disease of sufficient severity and complexity to require treatment by a specialist, and the benefit is provided under the plan, then the plan shall make or provide for a referral to a specialist who is able to provide the treatment for such condition or disease. The rigid restrictions by some HMOs on who can and cannot serve as a primary care physician are another obstacle to access to specialty care. In fact, several states (Indiana, Kentucky, New Mexico, Pennsylvania, New Jersey, New York and Texas) allow an enrollee with chronic health problems to select a specialists, such as a neurologist, a mental health provider, or a cancer specialist as their main health care provider. A recent Families USA report--``HMO Consumers at Risk--States to the Rescue''--cites far too many cases where a patient's care was compromised because their primary care physician lacked the expertise to deal effectively with their particular chronic condition. I cite the case of Ms. N., a 51-year-old woman with multiple sclerosis (MS). Although her primary care physician agreed that she had MS, he would not refer her to a neurologist. He said that since MS cannot be cured, a specialist could do her no good. In another situation, an eight-year-old boy was not allowed to visit his cystic fibrosis (CF) care center for routine checkups even though regularly scheduled visits to a CF care center are essential to treatment. His primary care physician did not believe that aggressive treatment was appropriate, as patients with cystic fibrosis do not have a ``good prognosis.'' Every Member of this body would demand the best care for their child. If a specialist was best suited to provide that care, then every one of my colleagues would insist that their child receive that care regardless of cost and coverage. Why not guarantee this same right to the rest of the American people? In addition, a recent survey by the National Coalition for Cancer Survivorship stated that oncologists should be the primary managers of care for individuals with cancer. To support their argument they cited factors such as: the complexities of treating cancer; their specific knowledge of long-term and late effects, rehabilitative services, pain management and hospice; and the importance of early detection and treatment for survivors who have an increased risk for second malignancies. With regard to out-of-network specialists, the Republican bill lacks basic protections to ensure that patients can see doctors qualified to treat their condition. For example, a child with diabetes should be able to receive care from a pediatric endocrinologist. However, if there is no pediatric endocrinologist available in the network to provide care for the child with diabetes, the family should be able to seek care from an out-of-network physician at no addition cost. We must ensure access to qualified specialists, outside of the network if necessary, and without high out-of-pocket expenses for enrollees who are forced to go outside the plan to be treated by the needed specialist. The Republican bill also fails to hold a plan responsible for not having an adequate network of specialists. In fact, Sec. 725 in the Republican bill states that ``such access may be provided through contractual arrangement with specialized providers outside the network of the plan.'' Beneficiaries should not have to suffer because of their health plans' inadequacies. They should receive the care they need by the most appropriate health professional. The Republican bill's guarantee to specialists is weak and does not even guarantee that children can see pediatric specialists. Finally, the legislation we are considering today only provides access to specialists for only 48 million Americans with private insurance. It leaves out the 113 million individuals who choose to enroll in managed care plans. Plans should provide patients with an adequate network of physicians, and when they fail to do so, should allow the beneficiary to step out of the network at no extra charge. We must protect our frailest and sickest patients. Individuals with life-threatening and disabling conditions should be allowed the use specialists--the best source of information and care for specific and advanced diseases--to coordinate care.

Mr. GRAHAM. That language is also verbatim in the underlying Republican bill. There is a paragraph in the committee report that interprets that, as well. That says: The committee adopted an amendment offered by Senator Hutchinson, adding a new paragraph (2) to Section 721(b)-- Which is the same language in the amendment-- clarifying that plans may not hold a participant or beneficiary liable for any additional charges-- That is not the issue of copayments or deductible; that is additional charges. This is what we used to refer to as double billing. --from a nonparticipating provider who has provided emergency services for the participant or beneficiary. In many communities, plans and MCOs typically contract with specific providers and hospitals. However, an individual as a prudent layperson may seek services at the nearest facility, depending on the severity of the symptoms. It is the committee's intent to ensure that individuals acting under the prudent layperson standards are not held liable financially for exercising this right when they seek care at a non-network facility. That refers to the double billing; that is, if you go to a nonparticipating emergency room, they can't charge you more. But the issue--

Mr. GRAHAM. I say to my colleague, the answer is, briefly, yes. I have a couple of questions. Maybe I could engage in a dialogue with Senator Hutchinson on these matters.

Mr. GRAHAM. No one is served by ambiguity.

Mr. GRAHAM. That depends on how long it takes to respond to the question. I will get started As I said last night, there were two principal differences between the Republican and Democratic emergency medical care provisions. The first of those was the question of, if your child has a 103-degree fever and needs to go to an emergency room, and the closest emergency room is one that doesn't belong to your HMO, but you are taken there anyway, can you be required to pay higher charges for that closest emergency room as opposed to taking him to the more distant hospital that belongs to your HMO's network? What had concerned me was the language in the original Republican bill. I am looking at subpart (C), section 721, Patient Access to Emergency Medical Care, in the original Republican bill. On page 5, lines 5 through 18, is the outline of the uniform cost-sharing provision. I had read the equivalent language in the amendment which appears on page 18, line 13 through line 2 on page 19. I have tried to read them, and I believe the language is verbatim the same. This is what the committee report which was issued by the Committee on Health, Education, Labor, and Pensions and signed by all of the Republican Members said about that language: Plans may impose cost sharing so long as it is uniformly applied to similarly-situated individuals and to all benefits consisting of emergency medical care. The committee believes that it would be acceptable to have a differential cost sharing for in-network emergency coverage and out-of-network emergency coverage, so long as such cost sharing is applied consistently across a category. The language is verbatim in the amendment as it was in the original Republican bill. So can I assume that that committee language, which interprets what section (B)(1) on page 5 of the original Republican bill, lines 5 through 18 meant, is the same thing that the verbatim language in your amendment says? (Mr. ABRAHAM assumed the Chair.)

Mr. GRAHAM. Then why is the amendment--what concerns me is that the amendment has, word-for-word, much of the same language as contained in the underlying Republican bill to which this paragraph relates.

Mr. GRAHAM. Would the Senator look at page 29 of the committee report, the first full paragraph?

Mr. GRAHAM

Mr. GRAHAM. Will the Senator yield?

Mr. GRAHAM. I suggest that the Senator might read the bill and see that it is precisely what the bill says. I am concerned because we had a discussion last night with Dr. Frist, and now today, which indicates that the Republican proposal has a number of admitted inconsistencies, inaccuracies, and gaping holes. Rather than us relying upon an amendment nobody has seen that is supposed to rectify those, why don't we vote for the Democratic amendment that would solve these problems?

Mr. GRAHAM. Let me go to a third issue. I discussed this yesterday. In the Republican bill, it states that while the person is stretched out in the emergency room under tremendous physical and emotional stress, they have the responsibility of monitoring the emergency room physician to determine if the type of diagnosis that the emergency room physician is rendering is appropriate. Could you explain how a person in an emergency room circumstance is supposed to provide that kind of second-guessing of an emergency room physician?

Mr. GRAHAM. That is another defect. The use of the word ``appropriate'' is a gaping loophole.

Mr. GRAHAM. I am concerned about the further provision which says that the patient is responsible for second-guessing the appropriateness of care rendered by the emergency room physician. Is that going to be taken care of?

Mr. GRAHAM. With the additional time that the majority has, would they respond to questions on their time? Would they at least cite in the bill the language that they believe is insufficient and creates an ambiguity?

Mr. GRAHAM. Two, with reference to poststabilization, what the current law for Medicare requires, and what this would require, is that the emergency room call the HMO and request the HMO's authorization as to what treatment to provide in the poststabilization environment. It is only when the HMO is unresponsive--in the case of Medicare, within 1 hour. If they fail to respond, then the emergency room has the right to do what it thinks is medically necessary for the patient. Now, did the committee hear any testimony that there had been major abuses under the Medicare 1-hour-respond-to-call standard?

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

Mr. GRAHAM. Will the Senator from Arkansas yield?

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I rise to join the distinguished chairman and Ranking Member of the Senate Appropriations Committee in introducing legislation that creates a federal complement to efforts of state governments, local communities, and the private sector to make future disasters cost less. Mr. President, I am a life-long Floridian. When children grow up in Florida they learn, usually from first hand experience, to expect devastating storm activity in their communities. Hurricane Season is an annual event. Florida suffers from often violent summer storms, tornadoes, and wildfires. With all of this natural disaster activity in my state alone, you can image that the costs of paying for the damages incurred by these events is quite staggering. These costs require the immediate action of Congress. In August of 1992, Hurricane Andrew roared ashore in the middle of the night and devastated much of South Florida. The total costs of cleanup and rebuilding from Hurricane Andrew was $36 billion. This includes nearly $16 billion in total insured loses, of which $12 billion were homeowner policies. After Andrew 10 private insurance companies in the State of Florida were rendered insolvent and had to leave the state. Nearly 960,000 insurance policies were canceled or not renewed. There may be more Hurricane Andrew's in our future. The National Weather Service has predicted 1999 will be an extremely active hurricane season. They have estimated that up to 14 named storms will develop in the Atlantic Ocean, 10 of those are expected to become hurricanes. The rising costs associated with events such as Hurricane Andrew have also demonstrated that insurers face the risk of insolvency if they are overly concentrated in vulnerable regions of our country. Since 1992, insurers have widely avoided writing policies in disaster prone areas of Florida. A congressional report on this subject revealed that the total supply of available reinsurance is approximately $7 billion. This is only 10 percent of the potential loss which might occur from a worst case natural disaster scenario. Companies that provide insurance of last resort have entered disaster-vulnerable insurance markets and filled this vacuum. Generally, these products of last resort provide less coverage than a commercial property insurance policy, but at much greater price. In Florida, such a policy averages in excess of 500 percent as compared to a commercial policy. State Insurance Commissions and state legislatures have literally created rainy day funds in an attempt to prevent an insurance availability crisis. This includes: Florida Catastrophe Reinsurance Fund, the California Earthquake Authority, and the Hawaii Hurricane Relief Fund. In my State of Florida, we have also created programs to provide insurance for those who cannot purchase insurance from any private source because of the risk involved including the Florida Joint Underwriters Associations, and the expansion of the Florida Windstorm Underwriters Association. Our recent experience tells us that it is time for Congress to help reverse the rising costs of natural disasters. The Natural Disaster Protection and Insurance Act of 1999 is a step in the right direction. This legislation directs the Secretary of the Treasury to carry out a program to make reinsurance available for purchase by eligible state programs, private insurers and reinsurers by way of auctions. It provides a backstop for state-operated insurance programs, and complements existing insurance industry efforts without encroaching upon the private sector. This initiative appropriately allows state and industry leaders to assist in addressing local needs. Specifically, Contractural coverage would include residential property losses resulting from disasters. The Treasury Department would be prohibited from offering any coverage that competes with or replaces private insurers. A portion of the premiums would go to a mitigation fund to support state level emergency preparedness. This initiative is a bipartisan and bicameral effort. My Florida colleague, Congressman Bill McCollum, has joined Representative Lazio to lead this effort in the House of Representatives. We have been working closely with the Administration, affected state and local level organizations, and private realtors and insurers. We all agree that the insurance industry cannot endure the ravage of large scale natural disasters alone. Action at the federal level is needed to continue insuring individual homeowners and business in areas vulnerable to catastrophe. Mr. President, we have an opportunity today to continue the working partnership between the federal government, states, local communities and the private sector. The consequences of insurance shortages and exposure to known hazards must be addressed immediately. I encourage my colleagues to support this initiative.