Phil Gramm

Mr. GRAMM

Mr. GRAMM. The first letter is from the National Federation of Independent Business on behalf of 600,000 small businessowners in America. They have endorsed the amendment I have offered that will be voted on tomorrow, which exempts employers from being sued under this bill. The second letter is from the Chamber of Commerce of the United States, the world's largest business federation, representing over 3 million employers, making this vote a key vote for the Chamber of Commerce. Finally, the third letter is from the American Benefits Council, which is in support of this amendment. Let me try to explain briefly what this is all about. These are complicated issues and they are very easy issues to get confused. Let me start with the Federal bill, since there has been so much talk about it. Let me be sure that everybody knows exactly what we are talking about. This is S. 1052, which is the pending bill that was originally authored by Senator McCain, for himself, Senator Edwards, Senator Kennedy, and others. I will start on page 144 of the bill. A lot has been said about suing employers. Almost everything that has been said has been that you can't sue employers. I want to just go through the bill very briefly, lest there be any doubt about the fact of whether or not you can sue employers, and try to explain the concern that I have that the National Federation of Independent Business has, and that the U.S. Chamber of Commerce has about this bill, and the fact that it would expose employers to liability. Let me remind my colleagues that employers are not required by law to provide health insurance to their employees. There is no Federal or State statute anywhere that requires that employer benefits be provided. Employers provide benefits because they choose to, because they care about their employees, or if they believe that in order to be competitive in getting good employees and holding them they have to provide benefits, they decide to do it on a voluntary basis. So the cause of not just concern, but alarm, in the business community is that under this bill it will be possible to sue not the insurance company, not the HMO, not the people who are practicing, such as doctors and hospitals, but you will be able to sue the employers. Let me start with the language of the bill. This bill has in this section, as it does in many other sections, language that is very confusing and misleading. I want to give a simple example. Look on page 144, on line 5, it says: ``Exclusion of Employers and Other Plan Sponsors,'' which implies that they are excluded, that you can't sue employers. And then in section (A), line 7, it says: ``Causes of Action Against Employers and Plan Sponsors Precluded.'' Read that sentence. You say you can't have a cause of action against employers and plan sponsors; they are specifically precluded. That is exactly what the headline says. And then it says: ``Subject to subparagraph (B),'' and that is where you become concerned because up here it says you can't sue them. The next line is ``Subject to subparagraph (B)''--I will come back to that--``paragraph (1)(A) does not authorize a cause of action against an employer''--just as clear as the rising Sun. You can't sue employers. But when you get down to subparagraph (B), it says: ``Certain Causes of Action Permitted,'' and then it says: ``Notwithstanding subparagraph (A),'' which is what I just read, ``a cause of action may arise against an employer or other plan sponsor.'' In other words, paragraph (A) says you can't sue them and paragraph (B) says you can sue them. And then you have seven pages of ifs, ands, and buts about whether you can or cannot sue employers, and under what circumstances you can sue them. And then, obviously, it gets pretty complicated. The question comes down to, what would a judge say? What would a jury say? What would some very smart plaintiff's attorney be able to do with this language? Then the problem gets even greater because you get down to the use of terms that don't jump out at you as triggering other things. But when you understand how they fit into Federal law, they say you can sue employers. I will give you an example. On line 18 of page 145, it says you can't sue the employer except when the employer directly participates--and let me read the whole paragraph: Direct Participation in Decisions.--For purposes of subparagraph (B), the term ``direct participation'' means, in connection with a decision described in clause (i) of paragraph (1)(A) or a failure described in clause (ii) of such paragraph. The actual making of such decision or the actual exercise of control . . . It does not jump out at you that ``exercise of control'' means anything. It does not unless you know that under ERISA, which governs all employer benefits under Federal law, the employer is always deemed to exercise control over employee benefits. There are 7\1/2\ pages of ifs, ands, and buts, but there is a lot of language that when it is brought into the context of existing Federal law it creates the strong potential that employers could be sued and could be sued for nothing other than simply having tried to join with their employees in buying health insurance and conducting activity that had to do with operating their business, appointing employees to interface with their health plan, their insurance company, their HMO. Then, as if anybody would doubt the intention of this bill, it has this extraordinary section on page 148 and 149, having created this liability for employers, and then in 7\1/2\ pages talking about when you can sue them and when you cannot sue them, it then comes down and excludes physicians, excludes hospitals, and then it says: But nothing in excluding physicians or excluding hospitals can be construed as excluding employers. If our colleagues on the other side of the aisle wonder why it is that employers are alarmed, all they have to do is to look at the language of their bill in the context of ERISA to understand that we have a very real potential for employers to be sued. The Texas Legislature, which has been held out to be a standard for patients' rights--in fact, if I am not wrong, Senator Edwards said on ABC ``This Week'': The President, during his campaign, looked the American people in the eye in the third debate and said: ``I will fight for Patients' Bill of Rights,'' referencing the Texas law. Our bill is almost identical. Identical to what? The Texas law. Let me make it clear it is not identical. Under the bill before us, it clearly says employers can be sued. It has 7\1/2\ pages of circumstances under which they can be sued. It uses language that ties in to ERISA that suggests they might be sued, and then it excludes doctors and hospitals but specifically does not exclude employers from being sued. That is what the bill before us does. What does the Texas law do? The Texas Legislature, when it debated and passed the Patients' Bill of Rights, did not believe that all employers were good people. It did not believe there would never be an incident where employers would do the wrong thing. It did not believe that. They debated this extensively, but they did believe they had put together a system of checks and balances. In fact, this bill, the Republican alternative, the Breaux-Frist bill, every HMO bill, every Patients' Bill of Rights bill that has been introduced, is really modeled after State plans. One of the most prominent of those plans is the Texas plan. In Texas they concluded there was no way they could write it that would not guarantee that employers would not be subject to being sued other than to simply exempt employers from being sued. What they said was, in very simple terms: This chapter-- Which relates to liability in their bill-- does not create any liability on the part of an employer. There are no 7\1/2\ pages of ifs, ands, or buts after this clause. There is no paragraph below it that says notwithstanding this provision they can be sued. This is the language of the Texas law. It does not create any liability on the part of an employer. Let me review some of the points that have been made where people say you need to be able to sue the employer. Let me remind my colleagues that the Texas Legislature did not believe that for a minute that there would not be some employers who would be bad actors, but they concluded that the benefits of letting people sue the employer were much smaller than the potential cost because of the fear that employers might drop health insurance. In fact, I think the success of the Texas law bears out their belief that, under the Texas law, they would be better off not to allow the suits to be filed against the employer. Some people have said: What if somebody showed up at the emergency room and the employer called up and said don't let them in? Under the bill before us and every bill that has been introduced, we have a prudent layperson standard. The emergency room is going to get paid if the person, as a prudent layperson, believes they were in danger of being harmed or dying. What would the attending physician in an emergency room in Omaha, NE, do if some employer called up and said, my employee, Joe Brown, is coming in there, he thinks he is sick, I don't want him treated? The physician would say: Thank you, and hang up because he has no control over who is admitted to the emergency room and the HMO is required to pay. What about the case where the employer actually tries to intervene in the decision being made by the HMO? It has been suggested that perhaps you could have it so the employer is not the final decisionmaker and would be exempt. I remind my colleagues, who is the final decisionmaker under S. 1052? Who is the final decisionmaker under Breaux-Frist? Who is the final decisionmaker under the Nickles bill? Who is the final decisionmaker under the original Kennedy bill? The final decisionmaker is an independent review panel made up of health care professionals who are independent of the health plan. How is the employer supposed to affect them? The employer can have no effect over them. By definition, under every one of these bills, the employer is not, cannot be the final decisionmaker. I am not saying, and the Texas Legislature did not say, there were no bad employers, but what they said is what little benefit you might get by discouraging an employer from trying to interfere in a health care plan for which they are at least partially paying; whatever benefits you might get from that, you already have protections with internal and external review, but the cost of making the employer liable is so high that it is not worth it. Let me conclude because I see my dear colleague from West Virginia is here. I know a lot of other people want to speak. I want to make this point. It is not hard for me to envision--I hope it is not hard for my colleagues to envision--that there are a lot of little businesses all over America that scrimp and sacrifice to cover their employees with health insurance. I often talk about a printer from Mexia, Dicky Flatt, a friend of mine, an old supporter of mine from a little town in Mexia, TX. He is an old-fashioned printer. He never quite gets that blue ink off the end of his fingers. He has about 10 employees, including his wife, including his baby son, and he probably has 8 or so other employees at any one time. They work hard to try to provide health insurance. But there is no way, shape, form, or fashion, Dicky Flatt is going to hire a lawyer to go through this bill. Once he hears from NFIB that he might be sued, he is going to be forced to call his 10 employees together and say: Look, I love you guys. You helped me build this business. But my father and my mother worked a lifetime to build this business. I have worked in it. My wife has worked in it. My brother worked in it. His brother's wife worked in it. My son works in it. And I am not going to put it all at risk in some courtroom because I might be sued because I helped you buy health insurance. Our colleagues assure us, we are not after Dicky Flatt. But the problem is, they have 7\1/2\ pages of language under which Dicky Flatt could be sued. A lot of this language is pretty confusing. I am not a plaintiff's attorney, but it is pretty confusing to me and I have to figure it is very confusing to Dicky Flatt, a printer in Mexia. Everybody talks about how good the Texas law is and how similar this bill is. I thought with all of the imperfections, I would offer an amendment that does exactly what the Texas law did. One of our colleagues pointed out that under Texas law health insurance coverage has gone up, not down. In Texas they did not believe that all 1 million employers were good, well intending people. They decided, whatever you get by allowing a person to try to sue the few who are bad, when people already have checks and balances against bad employers with internal and external review--an external review where the employer could have no impact, that whatever the benefits are of suing the employer, the cost in terms of inducing good employers to drop health coverage was more. I am sure everybody understands unintended consequences. I don't believe for a minute the authors of this bill are trying to sue Dicky Flatt. I don't believe it. I don't believe they have evil intent. I have never thought that, never said it, and I don't believe it. The point is, could the law produce the unintended consequence? It is complicated enough, it is contradictory enough, that I believe it might force good people such as Dicky Flatt, who might call the emergency room if one of his employees were taken to the emergency room, but it would be to say: He is coming; do everything you can to help him. Would that be intervening? If he called up and said: ``I want to tell you that Sarah Brown got her finger caught in this machine and it pulled her hand in, and, my God, she is on the way there and she is bleeding something awful. Get ready. And I want you to do everything you can. Don't worry about cost, I will do whatever I can to help,'' is that intervening? I don't know. And he won't know. Therefore, he might cancel his health insurance. I believe this is the safe way to do it. I am not saying I will not look at alternatives or we might not be able to work something out, but I am asking my colleagues, don't believe that perfection has been achieved, that there is no way the current bill can be improved. If we could change 5 or 6 things in this bill, we would get 80 Members, maybe 90 Members to vote for it. This is something that needs to be changed. This is something that needs to be fixed. I know there are a lot of clever people who think we can still do it and still sue and protect Dicky Flatt. I am not sure. All I know is the Texas Legislature, after debating this, decided they were not sure and the safest thing to do was to not allow him to be sued. I yield the floor.

Mr. GRAMM. Mr. President, I have to say that when I listen to the Senator from North Carolina, I almost always agree with what he says, but when I read his bill, A, I never find it does what he says, and, B, I never agree with it. First of all, when the Senator chastised some for saying his bill simply required that there be an allegation in order to escape the external review process, that was not a figment of the imagination of critics or paid lobbyists or special interest groups, as if special interest groups and the trial lawyers don't also support the Senator's bill, as if only special interests oppose it and none supports it. But no one made that up. That is a word on page 149 of the previous version of their bill. In fact, I raised this very issue over and over again, and the Senator and his cosponsors changed their bill to drop the word. This was not a word made up by anybody. This was a word that appeared in the original bill. Now as for treating HMOs like everybody else, I find it a strange assertion that they are treated like doctors and hospitals. Let me explain why. First of all, I refer to the bill that is before us, the McCain-Edwards-Kennedy bill, and specifically to the section related to suing employers: ``Cause of action against employers.'' I begin with the assertion that this bill treats doctors and hospitals exactly the way it does HMOs. In fact, the Senator says, by putting these cases back in State court, they are treated the same. Surely, the Senator must be aware that under State law, for example, in Texas and in California there are limits on liability for doctors and for hospitals, but there are no limited liabilities for health plans or employers under State law either in Texas or in California. So to assert that by putting these cases that arise under Federal law--ERISA is a Federal law--by putting them back into the States they are being treated exactly the same as doctors and hospitals is factually inaccurate, because State laws often do impose liability limits on doctors and hospitals, but almost never do they impose liability limits on employers, or insurance companies, or HMOs. Finally, so I can get on to my point, let me say that when the Senator says his bill treats doctors and hospitals exactly the same as it treats HMOs, I find that an interesting assertion. I turn to page 148 of his bill and I see an exclusion. In fact, on line 12, 148, it says: ``Exclusion of Physicians and Other Health Care Professionals.'' This is in the section on liability for employers. I will go into that in some detail. I want to make this point. At the end of this section on liability for employers, it has two specific carve-outs where entities are treated very differently from employers. The first entity on line 12 is physicians: ``No treating physician or other treating health care professional of the participant or beneficiary, and no person acting under the direction of such a physician or health care professional, shall be liable under paragraph (1),'' which is the paragraph related to employer liability. And then on page 149, there is an exclusion for hospitals. It says: ``No treating hospital of the participant or beneficiary shall be liable under paragraph (1).'' So on page 148 it exempts the treating physician. On page 149, it exempts the hospital from the same liability section for the employer. But then, to just be absolutely certain that no one is confused, let's come down to the bottom of page 149 and see if employers are treated the same and HMOs are treated the same as doctors and hospitals. It says: ``Nothing in paragraph (6),'' which is the exclusion for physicians, ``or (7),'' which is the exclusion for hospitals, ``shall be construed to limit the liability . . . of the plan, the plan sponsor, or any health insurance issuer,'' and the plan sponsor, of course, is the employer. So to say that this bill treats doctors and hospitals the same way it does insurance companies, HMOs, and employers, sounds very good and reassuring. The problem is that it is not true. Now let me begin and make the point I want to make. First of all, I send three letters to the desk and ask they be printed in the Record.

Mr. GRAMM

Mr. GRAMM. The amendment mirrors Texas law that says nothing in the bill creates any liability on the part of the employer or an employer group purchasing organization, that purchases coverage or assumes risk on behalf of its employees. No ifs, ands, or buts, no modifying clauses, no seven and a half pages of exceptions. You simply cannot sue the employer. Those who support S. 1052 unamended, despite all their efforts to the contrary, are creating numerous loopholes that will force small businesses in your hometown and my hometown to look at this and say, I don't know if I can be sued. They will go to lawyers, and the lawyers will say it will depend on a jury, it will depend on the court, it will depend on how good that plaintiff's attorney is. You need to recognize there are seven and a half pages in this bill of circumstances under which you can be sued. When you relate this language to other laws like ERISA, it sure looks as if you can be sued. I am afraid for little employers in Arkansas, Tennessee, Texas, and everywhere else. I often talk about my friend Dicky Flatt who has 10 employees. I can envision Dicky Flatt getting together with his employees and saying: Look, with this new law, I cannot be sure that I can't be sued if you have a bad experience in our health plan. While I love you all and while we built this business together, I can't let the work of my foreman, my work, my mother's, my wife's work, and our children's work be put in jeopardy. So I will have to stop providing health coverage. That is what will happen. The only way to guarantee it will not happen is to do what the Texas Legislature did. The proponents of this bill say: Look at how great it has worked in Texas. If you want it to work as it has worked in Texas, do it the way they did it in Texas. Exempt the employer. So for every small business in Arkansas, every small business in Tennessee, every Dicky Flatt, there will be things they are uncertain about in the bill, but the one thing they know is: You cannot sue me because I cared enough about my employees to buy them health insurance. You cannot do it. You can sue the HMO. You can sue the health care provider if they didn't do a good job. But you can't sue me because I negotiated the plan, because I am responsible for it under ERISA, because I picked two employees to represent all of us in interfacing with this HMO, with this insurance company. You cannot sue me for that. Why is that so important? There are a lot of Americans who still don't have health insurance and who are losing health insurance every day. When we debated the Clinton health care bill, there were 33 million Americans who didn't have health insurance. Today, there are 42.6 million Americans who don't have health insurance. Shouldn't we be concerned about a bill that could add millions to this number? I remind my colleagues, the Congressional Budget Office, in looking at this bill, concluded it would drive up insurance by more than 4 percentage points in cost. The estimate that is normally used is 300,000 people lose their health insurance for every 1 percent increase in cost. So at a minimum, we are looking at 1.2 million people losing their health insurance. But there is one other thing. In looking at that number, did CBO look at the fact that employers could be sued? Or did they just look at the first paragraph that said they couldn't be sued? Nothing in CBO's estimate seems to take into account that employers can be sued under this bill. The final reason that goes beyond health insurance goes to something more important to your health than whether you have health insurance or not. What is that? It is the right to choose your freedom because we are the only developed country in the world where people still have freedom to choose their own health care and their own health care providers. It is pretty startling when you think about it. I have listed the richest, most developed countries in the world. These are the so-called G-7 countries. Every time we have a meeting of the G-7, these are the countries that are at that meeting. They are the countries that are rich, like we are--Canada, Italy, Japan, the United Kingdom, France, Germany, and the United States of America. Those are the richest countries in the world. In Canada, 100 percent of health care is dominated by the Government. In Canada, a famous cancer doctor said as he left the system a week or so ago, that I have patients dying of cancer in Canada who could be treated. But they have a Government-run system. They have lost something more important than their health insurance in Canada. They have lost their freedom. In Italy, a 100-percent Government system; In Japan, a 100-percent Government system; In the United Kingdom, everybody has to be a member of the Government system. They have a loophole for very rich people. They can go outside the system and get treatment from the doctor independently of the system. They have to pay for it twice. But only rich people can afford to pay for it twice. In France, 99 percent of health care is controlled by Government; in Germany, 92 percent. Then we come to the United States of America. Sixty-seven percent of Americans have the right to choose. They are free to choose their health care. Obviously, they are concerned about losing their health insurance. That is why I don't want people to sue employers. But there is something bigger you can lose. You can lose your freedom. I know my Democrat colleagues get mad when I keep going back to the Clinton debate, but it is relevant on this one point. I will make it and then stop. In 1994, when President Clinton proposed we take everybody out of private health care and force everybody to buy health care through the Government, in that plan, if your doctor thought you needed health care that was not prescribed by the health care purchasing cooperative in your region, and your doctor went ahead and gave it to you anyway, your doctor could be fined $10,000. If you thought your baby was dying, and you went to the doctor and said, look, I know this treatment is not prescribed by this health care purchasing cooperative, and I know the Government won't pay for it, but I will pay for it; can you provide the care, under the Clinton bill, the doctor would be sent to prison for 5 years for providing the care. What was the argument for this bill? The argument for this bill was that 33 million people were uninsured and that was the price we had to pay to cover them. Today we have 42.6 million people uninsured. If we pass a bill letting people sue employers and employers dropped their health coverage, won't the same people who were for this plan 7 years ago be back here saying now it is not 33 million who are uninsured, but it is 50 million? They are not going to tell you their plan produced the 50 million. They are not going to tell you that suing employers caused small and medium sized and large businesses to drop health insurance. They are just going to say: Look. The time has come to now have the Government take over health care. Look. Shouldn't we be doing it? Everybody else in the developed world is doing it, and America is out of step. And what we need to do to get people coverage is to have one Government plan. My colleagues, I simply urge that before we do something as harmful-- such as letting people sue the employer for helping them buy health insurance--let's think about what that is going to do to employers dropping health insurance. I hope everybody understands that you don't have to provide health insurance. No employer is required by law to provide health insurance. They do it because they think it is good business, and they do it because they love the people who work for them. But if you put the business at risk, they will stop providing health insurance. This number is going to go up and then we are going to start having a system such as Canada, Italy, Japan, the United Kingdom, France, and Germany. If anyone wants to know why I am so concerned about this bill, it is because I am not going to lose my health insurance. I have the standard option Blue Cross/Blue Shield. In fact, under this plan, if I needed some health care, this external review process can deem that Blue Cross/Blue Shield has to give it to me, even if they specifically preclude it in the contract. I bought the standard option, but I am going to get the high option under this bill. What is going to happen to my health insurance costs? It is going to go up. I am not going to lose my health insurance, but there are a lot of Americans who may. If they lose their health insurance, the people who are blessed, such as I and every Member of the Senate is, may not lose our health insurance. But we could ultimately lose our freedom. I want to ask people to think about that as we cast this vote. The Texas Legislature did not conclude that every employer was the same. They did not conclude that there might not be bad actors out there. They concluded that this bill, as our bill, gives real protections against that, but, in the end, they concluded that if you let people sue the employer because of a dispute with an HMO or health care provider, you are going to end up having people drop their health insurance. We need to do the right thing in this bill. There are too many ifs, ands, and buts. There are 7\1/2\ pages of exceptions. If you want to be able to go home and say to the small mom-and-pop businesses, under the bill I voted for you cannot sue an employer, then you are going to have to vote for this amendment, or else you are not going it be able to say it. I thank Senator and Dr. Frist for his great leadership on this issue. The amazing thing is we agree on 90 percent of this bill. The amazing thing is if we could take about six or seven issues, and fix them, we would get 90 votes, maybe 100 votes on this bill. One of those has to be you can't sue the employer. Another has to be that when Blue Cross/ Blue Shield signs a contract with me, I can't come back after the fact and say: Well, now I only paid for 60 days in the hospital for mental care, but I need more. If I needed it, I should have bought the high option. If they give it to me, they are going to have to charge me for what the high option would have been. This has to be fixed. We also have to have some reason and responsibility on lawsuits. When is the last time anybody was healed in a courtroom? I have seen people healed in the emergency room, in doctor's offices, outpatient clinics, hospitals, and even as a little boy with my grandmother, I have seen people healed in revival tents. But I have never seen anybody healed in a courtroom. Our Democrat colleagues say: Look. We have these rights to sue. Great. But if my child is sick, I don't want to sue. I want health care. After my baby is dead, I am not interested in going to the courthouse and suing somebody. I want my child to have health care. We have agreed on internal and external reviews. We have said that anybody can go to the emergency room. We have set up systems on which we agree. But we don't agree on these endless lawsuits that can destroy access to health care. What good is the right to sue a plan if I am not a member of the plan because I lost my health insurance? If we could work out those five or six issues, we would have a bill that everybody could be for. But don't think for a minute that those issues are not critical to health care and critical to America. That is what this fight is about. I ask my colleagues on the Democrat side of the aisle and some of my colleagues over here that are for this bill: Do you really believe that this matches what Moses brought down from Mount Sinai? Is this really the embodiment of perfection? Do you have every good idea that was ever had in history? Could it be that it could be improved? Could it be that some reason and compromise might actually make the bill better? My guess is it could be; and I hope they will consider it possible. I yield the floor.

Mr. GRAMM. I am happy to yield.

Mr. GRAMM. That is right, there is no question about that. When the distinguished Senator from Michigan--and others have done it as well-- say what if the employer called up the emergency room and said: Do not provide treatment to my employee, let my employee die--first, under all of the bills people are guaranteed admission to the emergency room. The first thing the attending physician--and the Senator from Tennessee has been there--the first thing the attending physician says to the employer is drop dead because the law guarantees the emergency room is going to be paid by the HMO. In Texas, they didn't conclude that there may not be employers that try to do bad things. What they concluded was the following: First, there are checks and balances. If an employer tries to interfere in anybody getting health care, how does this bill work? How does the Texas plan work? If I think I need health care and I don't get it, I can ask for internal review. There is an internal review. If I don't believe I have been treated fairly, I can ask for an external review. That is guaranteed. The external review is made up of a panel of physicians who don't work for the HMO and who are not hired by the employer. How does the employer exert any control over this final decisionmaker, which is this external review panel? The employer can exert no control over the external review panel. Now what our Democrat colleagues have said is, there may be some circumstance where employers could do something bad. The point is, not that there might not be an employer that tried to do something bad, but the whole bill is set up to produce checks and balances. When the Texas Legislature decided to exempt employers, they were not assuming employers were all well intended. They were not assuming that something bad couldn't happen because of something an employer did. They simply looked at the cost and the benefits. They concluded, with all the checks and balances they had in their bill, which are in the bill before the Senate, we are pretty well protected from employers doing bad things because of internal and external review and the right to go to court. You can always sue the HMO. They decided if you get into these provisions, as this bill does, of when you can sue the employer, that you are going to create so much uncertainty, so many unintended consequences where maybe your objective was good but you are going to create unintended consequences where an employer could be sued when they were not trying to do anything wrong, that the Texas Legislature was deathly afraid of people losing their health insurance because you are not required to provide health insurance as an employer. So they decided, looking at the whole picture, that thanks to the checks and balances of internal and external review, the safest thing to do if you don't want people to lose their health insurance, is exempt the employer. You can say there is something to be gained by not exempting the employer, by having seven pages of ifs, ands, or buts, but if that induces the employer to drop your health issue, what good does it do you? Let me conclude with the following two charts.

Mr. GRAMM. Mr. President, I am not going to get into a fight with our dear new colleague from Michigan. She has always been very sweet to me. I want to make a couple points that I think are very relevant to the issue before us. Let me make one thing clear. The bill that I cosponsored on the Patients' Bill of Rights last year with Senator Nickles, Senator Frist, and others, which passed the Senate by one vote, required that every HMO in America apply a prudent layperson standard in admitting people to emergency rooms. It is exactly the same language that is in the Democrat bill that is before us today. Basically, it says that if you are experiencing something that to a reasonable layperson would convince you that something bad is happening to you and it might hurt you or kill you, you can go to the emergency room. So the issue before us has had absolutely nothing to do with the right of people to go to the emergency room. In the bill before us, that right is guaranteed. In the Republican bill that we passed last year, that right was guaranteed, and it was guaranteed in exactly the same language. Also, as good as it sounds to say that an employer might call the emergency room and say don't admit this employee of mine, A, I am not aware that any employer has ever done it; secondly, the emergency room doesn't work for the HMO. And in virtually every State in the Union it is illegal for them not to admit the patient and the HMO is going to pay for the care. So it sounds like a good example, but it makes no sense, nor would an emergency room ever, based on an employer calling and saying ``don't admit this person,'' fail to admit them when the emergency room is guaranteed that they are going to get paid and that the HMO is required by law to pay for the service they are going to provide. Now, let me go back to the central issue here, which is not people being abused and not being admitted to the emergency room--that has never been an issue in this debate. Both parties agree on that. That is part of about 90 percent of the provisions in both bills that are identical. What we are not debating here or what the majority side of the aisle, the Democrats, don't want to debate is suing employers. That is the issue that is before us. The amendment that I proposed is an amendment from the Texas law, and we chose it because the proponents of this bill hold the Texas law up as an example of what they want to do. The Texas law is the result of the Texas Legislature looking at this problem and concluding that they wanted people to be able to sue their medical plan, they wanted people to be able to sue HMOs; but because your employer helped you buy health insurance, they didn't want to put the employer in harm's way, where your employer could be sued. Why didn't they? For two reasons, really: One, the employer is the good guy here. Nobody makes them help you buy health insurance. They choose to do it. We didn't want them to choose not to do it. Secondly, we knew if we made it so you could sue employers for the simple act of doing something good for their employees that especially small businesses without deep pockets would be forced to cancel their health insurance. So the Texas Legislature wrote their law, which proponents of this bill say is almost identical to the bill before us, which, as I will show, is not true. But the Texas Legislature basically said that this chapter, the provision of the bill, does not create any liability on the part of an employer or an employer group purchasing organization that purchases coverage or assumes risk on behalf of its employees. We are trying to exempt employers from lawsuits.

Mr. GRAMM. Mr. President, I think maybe the distinguished majority whip has a unanimous consent request. Order of Procedure

Mr. GRAMM. Mr. President, probably no other issue has created as much concern in this bill as the issue of whether or not an employer can be sued in a dispute arising out of the liability sections of this bill. I think people can understand that concern. In America today, we don't require any employer to provide health insurance for their employees, either to pay for it or to pay for it on a cost-sharing basis, or to buy it as part of a plan where the employers pay all of it or part of it. Millions of families--over 100 million families--in America are covered by decisions that employers make out of what, for them, is a good business decision, in terms of trying to appeal to people to work for them in having a competitive benefits package, and out of the concern and love they have for their employees. All over America, big companies and little companies enter into voluntary arrangements whereby they help buy health insurance for their employees. So, obviously, a big concern in the bill before us is that if a company cares enough about its employees so that it is willing to spend its money in joining them to help buy their health insurance, or help them get health coverage, by this act of voluntarily providing a benefit, can they be dragged into State or Federal court and sued under this bill? From the very beginning of this discussion, a relevant issue has been: Can Dicky Flatt, a printer in Mexia with 10 employees, be sued because he made the sacrifice, along with his wife Linda, in helping to set up a health plan so his employees can have access to health care? Why is this question so important? It is important because there are literally millions of small businesses all over America, and some businesses that are not so small, that have made it very clear in national poll after national poll that if we write a law where they can be sued as a result of a dispute between one of their employees and the medical plan that they helped their employee buy into, they are going to drop their health coverage. They are either going to drop it or they are going to say to their employees: You take my money or your money or some combination thereof and go out and try to buy the best insurance you can buy, but this small business cannot afford the risk of the kinds of liability claims that are being granted by courts all over America which could put this business into bankruptcy and destroy everything that mom-and-pop businesses, such as Flatt Stationery in Mexia, TX, have worked two or three generations to build. That is the issue. As we have talked about this bill, over and over the question has been raised: Are employers exempt from lawsuits? Can they be sued as a result of their decision to provide insurance? What proponents of the bill have consistently said is: No, you cannot sue employers. What I would like to do is begin by explaining that is not so. I would like to then talk about my State, Texas, which has a prototype plan--in fact, the proponents of the bill before us often talk about how much their bill is like the Texas bill--and I want to talk about the debate Texas had about suing employers. I want to talk about their decision not to let employers be sued, the language they used, and then I want to talk about the amendment I have submitted and how that amendment does not allow employers to be sued and how it settles this issue once and for all. First, as we have all heard, seen on television, and read in the newspaper as this debate has evolved, proponents of this bill have said over and over again that employers cannot be sued. When you look at the language of the bill, basically it appears they are right. In fact, on page 144 of the bill--I know my colleagues in the Chamber can see these words. I do not know if other people watching the debate can, but I am going to read part of it anyway so you will hear it. On page 144 of S. 1052, which is the McCain-Edwards-Kennedy bill, there is a very bold headline that says: ``Exclusion of Employers and Other Plan Sponsors.'' Obviously, that headline is promising. Then it says: (A) Causes of Action Against Employers and Plan Sponsors Precluded.-- Then it goes down and sure enough says: ``Subject to subparagraph (B)'' and, obviously, that should be an immediate warning because what they are about to say is relevant only in the context of a paragraph you have yet to read: Subject to subparagraph (B), paragraph (1)(A) does not authorize a cause of action against an employer or other plan sponsor maintaining the plan (or against an employee of such an employer or sponsor acting within the scope of employment.) When the proponents of this bill say you cannot sue employers, they are obviously talking about paragraph (A). In fact, if the provision related to employers ended right there, then we would be in agreement on this issue that you could not sue employers. But unfortunately, as is true in so many cases of this bill, it does not end right there. What happens is it goes on to the paragraph (B), which is mentioned above, and it says: ``(B) Certain Causes of Action Permitted.--'' Then it goes on to say: Notwithstanding subparagraph (A), a cause of action may arise against an employer or other plan sponsor. . . . The bill goes on for several pages talking about circumstances in which an employer can be sued. Then it excludes in this section suits against physicians and it excludes in this section suits against hospitals, but it does not exclude suits against the employer that bought the health insurance to begin with. That is the problem. The question is, How do we fix it? This is where it gets to be very difficult. There were many efforts in the Texas Legislature in deciding what to do about suing employers, and they tried to come up with all kinds of ways where you could sue under some circumstances, you could not sue under others, and they finally decided that if they wanted to be sure that businesses did not drop health insurance out of fear that they would be sued simply because they bought health insurance for their employees, that the simplest and safest--because they were very worried about people losing their health insurance and given that we have 43 million Americans today who do not have private health insurance or do not have health insurance coverage of any kind--they decided that the safest route was to have an outright carve-out where they said: This chapter does not create any liability on the part of an employer, an employer group purchasing organization . . . And this language is right out of their HMO reform bill, their Patients' Bill of Rights. They also talk about licensed pharmacy and State boards being exempt but that is not at issue here. And they go on to say that an employer, an employer group that purchases coverage or assumes risk on behalf of its employees is not liable under their legislation. Many people have claimed the bill before the Senate is virtually a mirror image of the Texas law. In fact, the bill before the Senate allows employers to be sued, whereas the Texas Legislature, out of their deep concern especially about small businesses canceling their health insurance if they could be sued under any circumstance, decided to do an outright carve-out, where they excluded employers so there were no ifs, ands, or buts about it. You cannot sue an employer in Texas that provides health insurance for its employees. Many of our colleagues have talked in glowing terms about how great the Texas program is because businesses have not canceled health insurance. One of the big reasons employee health insurance has not been canceled is because employers are exempt under the Texas law. No ifs, ands, or buts about it. I am sure we will hear from people who say they don't want to sue employers but are not willing to exempt them. We will be hearing arguments why they should not be exempt. The human mind is a very fertile device. We can come up with all kinds of possibilities, many of which have no relevance whatsoever to anything on this planet, and you can almost always come up with some convoluted situation in which something that generally is nonsense might make sense. When the Texas Legislature looked at this issue, they looked at a lot of possibilities. One of the problems they had, however, when they took each of the possibilities and worked it out, they could not figure out how to let employers be sued for anything without opening up a floodgate of unintended consequences. Let me give the most damning example. What if the employee calls the health plan and tries to tell them how to run the health plan. None of us are for that. Here are relevant points. First, the health plan can be sued if they act in an arbitrary and capricious manner in responding to the employer, so there is still a party standing there that can be taken to court and be held accountable. Why would a health plan put itself in a position of being sued by doing something that violates the structure that has been established in Texas law, and with the passage of a Patient's Bill of Rights will be established in national law because an employer puts pressure on them? Second, under both Texas law and the national law as proposed by Republicans, Democrats, and all the variants of all the bills proposed, the hallmark of each of those bills is external review. If I have a problem and I don't feel I have gotten the treatment I need, I can go before a panel of specialists, that is doctors who specialize in this area of medicine. They are independent of the health plan and, therefore, by definition, independent of any employer that bought coverage under the health plan. If they agree with me, I get the health care; if they disagree with me, I can go to Federal court and sue for the health care or go into court somewhere depending on the bill we are talking about. In the context of this bill, health plans are not final decisionmakers. A panel of independent physicians takes the role of final decisionmaker. When people say, let us sue the employer, if the employer is the final decisionmaker, the plain truth is, when we look at the bill before the Senate or any bill proposed, who is the final decisionmaker? Not the employer, not the plan, not the physician treating the patient. The final decisionmaker is the external review process. Here is the problem, and this is something those who were working on the Texas law, which is our prototype that has been in effect and which has worked relatively well, discovered in trying to write the law where you could sue the employer only if the employer was a final decisionmaker or intervened in any way. They found every time they tried to do that, you got unintended consequences. For example, many health care plans will appoint one or two of the employees of the employer to interface with the health care plan as part of their looking at new benefits or looking at the cost of relative add-ons or a grievance process. Any time you have that interfacing, which many employee groups demand, want, and deserve, and employers are eager for them to have because they want them to be happy with the plan, then you get them involved as a decisionmaker, and potentially, in a lawsuit-- even in negotiating and putting the plan together. To what extent are you making a final decision when you decide something can be covered or can't be covered? Basically, while the Texas legislature recognized it may very well be you might have one bad employer who tries to intervene in the health care system, there were a lot of checks and balances to protect from that. First, you could sue the health care plan if they allowed the employer to do it. Second, the final decisionmaker is not the health care plan, but an independent panel of physicians. Finally, whatever avenue for lawsuit you opened up against the employer created more problems than it solved. It created numerous unintended consequences where a very effective plaintiff's attorney in a sympathetic court might be able to argue that something we would agree on the floor of the Senate was perfectly reasonable behavior in negotiating a plan or negotiating grievances with a plan that the firm's employees might do and in doing so they would be the agent of the employer, that could end up bringing a small mom-and-pop business into court and a judgment be rendered against them because they cared enough to buy health insurance and in the process are driven into bankruptcy. The problem is, and what will happen is, small businesses--and some large businesses--will look at the provisions of the Federal law and say under this law, notwithstanding the fact that supposedly employers are exempt, a cause of action may arise against employers or other plan sponsors, and they will look at all this language that goes on and on and on until it finally, interestingly enough, and amazingly, after going on for several pages, describing conditions under which the entity that bought the health insurance can be sued, which is the employer, it then concludes that you can't sue the physician and you can't sue the hospitals under this section of the bill, but you can sue the employer. Now, here is the point. If there is any ambiguity with regard to suing employers, what is going to happen all over America is employers are going to get out of the business of buying health insurance. What was decided in Texas, I think, was the correct decision and therefore I have proposed it as an amendment to the Federal bill. What was not decided was that there were no possibilities for abuse by employers. That was not decided by the Texas Legislature. It doesn't take much imagination to figure out how an employer's behavior might be bad, or why an employer might try to influence a plan. The Texas Legislature concluded that there are all kinds of provisions in the bill to protect against that, including that anything a plan does that an employer or anybody else tries to get them to do that is harmful, they can be sued for. Another Senator here on the floor is a great prosecutor. He understands health plans can be sued because if some bad actor employer wants them to do something wrong, but they are not going to be eager to step into the courthouse. Second, the legislature concluded that ultimately the final decisionmaker was the external appeals process, which was totally independent of both the health plan and the employer. So they concluded, wisely in my opinion, that they would not create any liability on the part of the employer or the employer group's purchasing organization. This amendment is very straightforward and very simple. It does not say that there could never be a circumstance where employers could misbehave. But it concludes that the law of unintended consequences is such, and the protections in all of our Patients' Bill of Rights are strong enough that the most prudent avenue to follow is to exempt the employer because if we don't, we are going to have millions of Americans losing their health insurance. I urge my colleagues to look at both sides of the argument. Obviously, with a fertile mind you can come up with some hypothetical examples where employers might do bad things. But you can also come up with far more examples where they might be doing good and proper things. Yet under this bill, and under any language you could write letting employers be sued, or where they would be in danger of being sued, and, therefore, would drop health insurance, the prudent action for America is a prudent action that the most successful plan in America followed when it became basically the blueprint. That was the action that the Texas Legislature followed when they decided looking at the whole picture, the pros and the cons, that the safest thing to do was to totally exempt people who care enough to buy the health insurance--the employers. Under the Texas plan you can sue the HMO. You can sue the insurance company, but you cannot sue your employer who has joined with you in a partnership in buying your health insurance. I think this is prudent policy. I believe if we adopt this amendment that we will dramatically minimize the number of people who will lose their health insurance as a result of this bill. But I am absolutely confident that if we do not adopt this bill, and if we make it possible in any shape, form, or fashion to sue employers who are helping people buy health insurance all over America, small and large employers are going to cancel their health insurance. We all say we don't want that to happen. We all say we don't want to sue employers. Yet the bill before us allows employers to be sued. I urge my colleagues to look at both sides of this argument and to take a prudent course by adopting this amendment. I know several of my other colleagues wanted to speak. If I can, my dear colleague from Texas, who is the cosponsor of the measure, has to catch a plane. With the indulgence of those who are on the floor, I would like to yield the floor and allow her to be recognized.

Mr. GRAMM. I am happy to.

Mr. GRAMM. Mr. President, I am always amenable to try to work things out. Whatever the leaders work out on it, I am sure I will be happy with it. May we have order.

Mr. GRAMM. The Texas law has no exceptions after that. There are no ifs, ands, or buts in the Texas law. You cannot sue an employer. They chose not to for two reasons. One, the employer is the guy helping buy the health insurance. Why would we sue the employer? And, two, they were very much afraid that if you let people sue their employer when they are in a dispute with their HMO, and not with their employer, that the employer, who is not required to buy health insurance, might stop offering health insurance. Our colleagues who are for the bill before us say: In Texas, there have not been these rash of lawsuits. Part of the reason is, in Texas, you cannot sue the employer. Let me explain what is different between the Texas law and the bill that is before us. Sure enough, the distinguished Senator from Michigan, as have many supporters of the bill, read us paragraph (A); in fact, the heading before paragraph (A) is very clear. It is a little tedious, but bear with me a second. Their bill says in title (5): Exclusion of Employers and Other Plan Sponsors.-- That sounds like they are excluding employers, right? Then they say in paragraph (A): Causes of Action Against Employers and Plan Sponsors Precluded.-- If it had ended there, they would have been precluded, but they come down and say: Subject to subparagraph (B)-- Remember that; it is always a dead give-away that things are not exactly as they say: Subject to subparagraph (B), paragraph (1)(A) does not authorize a cause of action against an employer or other plan sponsor maintaining the plan (or against an employee of such an employer or sponsor acting within the scope of employment). If they stopped right there, this would have been the equivalent of the Texas law. When Democrats defend this bill and say we do not allow suing employers, that is generally where they stop, but their bill does not stop there. Their bill goes on to say in paragraph (B), which was already referred to previously, that: Certain Causes of Action Permitted.--Notwithstanding subparagraph (A), a cause of action may arise against an employer or other plan sponsor. . . . Then for 7 pages, they have all kinds of ifs, ands, or buts. Then they have little provisions that have little hooks in them. I want to explain one of them. There are a bunch of them, but I want to explain one of them. They are saying conditions under which an employer can be sued, and then they use the following term. They say: ``Failure described in . . . such paragraph, the actual making of such decision or the actual exercise of control in making such decision. . . .'' That does not sound too perilous until you realize that under ERISA, a Federal statute which governs all employee benefits in America, that the employer is always assumed to be exercising control. In fact, ERISA assumes or requires that the employer be bound to be 100-percent responsible and deemed to be in control of employee benefits. The point I am making is, they have seven and a half pages of conditions under which employers can be sued, including these little provisions that people reading it do not know refers back to law where the employer on employee benefits are always assumed to be in control. But the tell-tale sign comes at the end of the seven and a half pages. Here is what they do. At the end of the seven and a half pages, they exclude physicians from being sued. They exclude hospitals from being sued, but then if you had any doubt in your mind, any question in your heart as to whether they intend to sue employers, look at the last little sentence in this seven and a half pages of ifs, ands, or buts, gobbledygook, legal reference. Let me just read it. They are talking about physicians: (8) Rules of Construction Relating to Exclusion from Liability of Physicians, Health Care Professionals, and Hospitals.-- The heading sounds like it has nothing to do with employers, does it? But then it says: Nothing in paragraph (6)-- And Paragraph (6) is the paragraph that says you cannot sue a physician-- and nothing in paragraph (7)-- Which is the paragraph that says you cannot sue a hospital-- shall be construed to limit the liability (whether direct or vicarious) of the plan, the plan sponsor-- And who is the plan sponsor as required under ERISA? The plan sponsor is the employer. or any health insurance issuer offering health insurance coverage in connection with a plan. In other words, after seven and a half pages of conditions under which employers can be sued, including where they are deemed to be in control of employer benefits where ERISA requires they always be treated as in control, they then exempt doctors and hospitals. But just to be absolutely sure that employers were not exempt, they add the language that nothing in exempting the doctors and the hospitals would be construed as limiting the liability of the plan sponsor, which is the employer. The plain truth is that this is confusing, but it is a classic bait and switch. It is a classic bait and switch when they say you cannot sue them, and then notwithstanding the paragraph that says you cannot sue them, which is subparagraph (A), they then go on to have a cause of action that may arise against an employer or other plan sponsor, and then they go on for seven and a half pages of where you can sue the employer. Then they decide: Gosh, it probably would be good politics right now to exclude physicians and hospitals who are involved in health care. And then so there is no doubt whatsoever, they come back and say: But in excluding doctors and hospitals, we are not excluding employers from being sued. To suggest that in any shape, form, or fashion this language is equivalent to the language in Texas, which says you cannot sue an employer, is invalid. What does our amendment do?

Mr. GRAMM. I am happy to.

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

Mr. GRAMM. Mr. President, I send an amendment to the desk.

Mr. GRAMM. There are no exceptions in Texas.

Mr. GRAMM. The time I want to consider it?

Mr. GRAMM. I don't have any idea. I don't have any idea how many people want to speak. I don't have any idea how many want to speak in opposition or in favor of it. It was my understanding that the amendment would be voted on on Tuesday. So I assume people can stay here today and speak as long as they would like to, and people could speak Monday as long as they would like to. But I do not know how many people want to be heard.

Mr. GRAMM

Mr. GRAMM. Madam President, reserving the right to object, let me first say that obviously Members can only answer for themselves. I would have no objection to trying to deal with a potential blue slip problem through unanimous consent. The House bill will almost certainly contain a provision related to access to health care, and so the two bills would be conformable in that way. Nor do I have any concern about taking up a House measure which would be a further guarantee against the blue slip problem. If we put in a quorum call and worked this out or had debate while we worked it out, all that could be worked out. Where I think we might run into problems is that there are two problems in terms of access to health care. One is the self-employed who have to pay both parts of their health care coverage. The other is very low income people who don't get health insurance through their jobs. You then have a very small--and I know the Senator is aware--you have a very small revenue component in medical savings accounts. I would not want to limit our ability to at least debate the other two parts of the problem. But within the constraints of those problems, I think there might be room to debate it. I don't want to preclude our ability to offer, for example, a medical savings account amendment because I think that is very important as part of this access. I understand this amendment. I very strongly support it. I want to be sure we have a chance, if we fix it for the self-employed, that we fix it for very low income people who don't get health insurance through their jobs. I can assure the Senator that for my part--and I am sure on behalf of every Republican--we are not trying to create a technical ``gotcha'' problem here. We can work together to fix that problem, if that would make this amendment more acceptable.

Mr. GRAMM. Reserving the right to object.

Mr. GRAMM. I do not know. I was trying to find out.

Mr. GRAMM. Mr. President, I would object. I would like to also ask that our staffs sit down together to see if we can work these problems out. I reiterate, we are not trying to create a technical problem here. We are worried about people losing their health insurance. We want to be sure we are doing other things to promote it. If the Senator is willing to work with us, we will try to work out the problem he has raised to everybody's satisfaction, and then perhaps later today or tomorrow we could do a unanimous consent request on a bipartisan basis to which we could agree.

Mr. GRAMM. Mr. President, I thank our dear colleague from Arkansas. I thank him for his leadership on this very important amendment. I hope all of my colleagues, no matter where they stand on this important issue, will vote for this amendment. I was asked earlier today: Why should this amendment be the first amendment? This amendment is the first amendment because this is an amendment that is aimed at helping expand coverage in America so more Americans have access to health care. It is one thing to talk about patients' rights. But what good are these rights if you do not have health insurance? What good are all these rights we are guaranteeing if you do not have access to the system? This first amendment basically says that for the mom-and-pop little businesses where people have to buy their own health insurance because they work for themselves--they are self-employed--they ought to get the same tax treatment that General Motors gets. Why is this important in this bill? This is important in this bill because the Congressional Budget Office estimates that, at an absolute minimum, 1.2 million people will lose their health insurance because of the cost of this bill. It seems to me that it is perfectly logical that our first amendment ought to be trying to do something about that problem to assure people have the most basic freedom, which is freedom to get into the health care market with health insurance. I thank my colleague.

Mr. GRAMM. Let me reclaim my time and say not only, for the record, was I one of the people who put the provision into the bill, I was a conferee. I was for the House provision that lowered the marginal rate to 33 percent. One might ask why I voted for a bill that lowered it only to 35 percent? I was for numerous provisions that did not get into the final bill. How did that happen? How that happened was we had $1.35 trillion. The House had a bill, $1.6 trillion. I wanted $1.6 trillion. The Senator from Illinois voted against it. As a result, we had to make decisions about how to live within the budget we had. Now, I am for this provision. I can show the Senator on record a dozen times I voted for it. The point is, are we for it or are we against it? I will State right now, unless God pauses my hand, I will vote for it. If I am a conferee, I will vote to keep it in this bill. I don't know how the Senator will vote on this amendment. How is the Senator going to vote?

Mr. GRAMM. How is the Senator going to vote on this amendment?

Mr. GRAMM. Mr. President, I am a little bit confused listening to the Senator. He sound as if he is for the provision. It is kind of bait and switch. He seems to be chiding me in that I was not the dictator of the conference and I couldn't do everything exactly as I wanted. Thank God, we are going to have another chance at 5:30 to make this right. I am going to vote on the right side. I want everybody to know I am for this amendment. We need this amendment because the bill before us is one that costs, at a minimum, 1.2 million people their health insurance. Shouldn't we be trying to help more people get health insurance? One final point, and then I will stop. We use this cost figure of 4.2 percent that the bill before us is going to impose on everybody who owns health insurance. Where does that number come from? The plain truth is, that number is made up by the Congressional Budget Office. Here is what they assumed. They assumed that 60 percent of the cost of health care going up will be borne by the employer; that they will just pay it, absorb it, and will not respond to it. Then 40 percent will be borne by the employees, who will end up getting lower wages. In fact, in this bill receipts to Social Security fall off because wages fall off by $55 billion. The plain truth is the Congressional Budget Office, in adding up the cost of this bill, basically assumed that no employer will cancel health insurance because of this rising cost. When you ask the Congressional Budget Office, When you were doing this estimate, did you happen to see this language where actually things that are excluded in the contract could be covered and the insurance company could be forced to pay for it, did you note that? guess what. They didn't see it. When you ask them, On the question of excluding employers, you probably saw the big headline that said they couldn't be sued, but did you read on and see, ``Notwithstanding subparagraph A, a cause of action may arise against an employer''? guess what? Nowhere in their estimate did they show that they caught the bait and switch. Here is my point. We are talking about a 4.2-percent increase in costs. We are taking a national figure--not from the Congressional Budget Office--that 300,000 people per 1 percent are losing their health insurance. But all of that is assuming that businesses-- especially small businesses--don't just cancel their health insurance because they are worried about being sued. One of the things I am fearful of--and it never does you much good around here to say I told you so, and, quite frankly, I don't like to do it--but I am afraid that 3 or 4 years from now millions of people will have lost their health insurance because of this bill if we don't fix it. One of the ways to start fixing it is this amendment by the Senator from Arkansas. If you are for it, if you think self-employed people ought to be able to buy their insurance with pretax dollars just as General Motors does, then you are going to vote for this amendment. If you do not think so, you are going to vote against it. I think so. And I am for it. I thank the Chair for the Chair's tolerance.