Judd Gregg

Mr. GREGG

Mr. GREGG. I believe there is still approximately an hour and a half left on the amendment. I would hope that once we reach an agreement, and we have the language from Senator Snowe and Senator DeWine relative to the issue of coverage for union plans and liability--and State versus Federal responsibility for reviewing the adequacy of liability, and there is one other issue--once we have that language, I personally would think we could start yielding back time and go to a vote. I think it would be hard to get to a vote before 4 o'clock because of other commitments. It would be my hope we could vote at around 4 o'clock on this amendment.

Mr. GREGG. Mr. President, let me begin by saying that this amendment is moving in the right direction. I believe, with some of the changes which we have discussed with the Senator from Ohio and the Senator from Maine, that we can make real progress on improving it. Unfortunately, the amendment came late. It is complicated. The issues involved are considerable. But before getting into the specifics of the amendment and how it may or may not play out in a positive way relative to producing a quality bill, let me make the point that this amendment addresses an important but not a broad part of the issue. This amendment doesn't, for example, address some very real and significant issues in the area of liability. It doesn't address the issues of the 56 million people who are in self-insured plans. It does not, therefore, solve the overall liability question, which if you were to rate the five issues that I think the Senator from North Carolina has appropriately highlighted, although I am not sure he mentioned liability--he probably wasn't thinking in those terms, but he certainly hit the floor if you put liability on the table--liability is probably the key issue for a lot of people in this Chamber. Issues such as forum shopping, class action, damages, punitive versus compensatory damages, are major issues that we still have to address. I think we recognize that there is still a fair amount of distance to go in the liability area. But this amendment takes up the designated decisionmaker language. It takes a portion of the Frist-Jeffords-Breaux bill in this area and tries to basically graft that on to what is the McCain-Kennedy bill--a good and appropriate attempt, although I must admit that with just a quick reading of it I think there is going to be some real confusion on the part of employers between what they can do as a designated decisionmaker versus direct participation. I had hoped that the language would have a firewall in there. But as a practical matter, at least the movement is in the right direction to give some insulation for designated decisionmakers and people who use designated decisionmakers. As to the issue of union liability, there has been a lot of talk around here about making businesses liable. And they are liable. Small businesses and large businesses are all liable--and making HMOs liable. If you are a union employee and have a union plan, and your union tells you you can't get some sort of treatment that you need and should get, unfortunately, the way the bill was originally drafted, you would not have been able to sue that union plan, any more than if you had been employed by a company, and the company had sponsored your plan, and you would be able to sue them or, under this bill, the HMO. But ironically the unions ended up, under the original draft, of being completely taken out of the picture. The Senator from Ohio and the Senator from Maine made clear that was not their intent. I understand they are going to adjust some language so union plans, which are in the same basic position as those plans which are self-funded and self-administered, will be the ones which are taken out of the liability picture. That is reasonable. That is the way it should be. We look forward to that modification. Another issue that this bill raised, which has not been really talked about at all, is the fact that it basically has Federal usurpation of what has been a very traditional State responsibility of determining the viability of the insurance agency, whether the insurance agency has adequate financial strength to cover the projected losses which may occur. This has been something on which States have spent a huge amount of time. It is a real specialty. It is an art form to look at these insurance companies and determine whether or not they have the depth and the ability to cover the costs if they get hit with a whole series of claims. I would hate to see the Federal Government step into this arena where the States have been responsible and suddenly take it over. But under this amendment, as originally drafted, that would be the case; the Federal Government would now basically take all that responsibility away from the States. We discussed this with the Senator from Maine and the Senator from Ohio and their staffs to try to straighten this out. They recognize the issue. I think the Frist model in this area is the right model. It essentially says: Where the States have responsibility, where they are the insurer, then they will have the ability--and retain the ability-- to evaluate the insurer. But where it is a new Federal cause of action, a new Federal event, then the Federal Government will come in and do the evaluation. That seems to be a reasonable bifurcation of responsibility and will be an improvement if it is accepted. I understand language is being developed which hopefully will be accepted. That is all very positive, in my opinion. As I mentioned, this amendment, if we can get these issues worked out--and there are one or two other small ones--becomes a much more positive event for moving the bill in the right direction. The question becomes: What do we have left to do in that we have taken up a lot of amendments? Unfortunately, we still have a lot of amendments to go. Most of them are in the liability area. Some of them are in tangential areas. But I do expect we will have amendments, as we move into the evening, which will address such issues as the small employer who decides to cash out their employees and what type of protection they get. Senator Enzi happens to have that amendment. There will be amendments dealing with class action suits. I think Senator DeWine actually has an amendment in that area. There will be amendments dealing with coverage and liability. I have an amendment on punitive damages which essentially says if an employer lives by the terms of the external review, they should not be subject to punitive damages. There are a variety in that area. There will be amendments on forum shopping. I think Senator Specter has an amendment in that area that he may bring forward. So there are still a fair number of issues, especially involving the liability questions, which have to be resolved, after we get past the language which the Senator from Maine and the Senator from Ohio have brought forward, which, as I mentioned, I think with some adjustment-- which is major to the amendment, but which would be positive; and it appears to be acceptable to the sponsors--hopefully, will move the process in a better direction. At this time I will yield to the Senator from Wyoming such time as he may need from my time.

Mr. GREGG. That may well resolve the problem.

Mr. GREGG. Is the Senator suggesting that additional definition? Is the Senator suggesting that definition, that expansion of the definition, that expanded language be placed on the definition section?

Mr. GREGG. I think the language, as presently drafted, is in your definitional section of the amendment where you find ``(ii) (II).'' It says: a group health plan that is maintained by one or more employers or employee organizations described in [this section]. That essentially encompasses all union plans. Very few union plans do not use a third-party administrator, very few. So I think you want to tighten up that definition to make it clear that you are applying it to the self-insured, self-funded, self-administered plans, and then you would be picking up the same people that you are picking up under the Wal-Mart exception.

Mr. GREGG. Will the Senator yield?

Mr. GREGG. If the concept here is to treat everybody in the basket the same, then you have not necessarily done it, because union plans do use third-party administrators and therefore can designate, and a single-employer plan would therefore be more identifiable with the union plan. Yet, under your proposal, the single-employer plan basically is still liable. And that is 56 million people, by the way. Fifty-six million people fall into that category. So you have exempted out the Wal-Marts of the world, maybe, that allow people to go out and get their health care, and then they come back and get their approval. And that exemption makes sense, but that exemption is not consistent with what unions do. So don't come here and represent to this Senate that it is because it is not. You have raised the unions to a brand new level of independent liability protection. So please do not make that representation.

Mr. GREGG. Madam President, I appreciate the Senator's effort. I haven't had a chance to digest all of it. I understand the intent and the thrust as described by the Senator from Ohio, which I think is appropriate and good. As I look at the first section, I am wondering. It appears to me that under the definition section it draws union plans in, and they are being given a special status which is really higher than a self- employed plan is given. I am wondering why union plans are suddenly being raised to a special status under the amendment.

Mr. GREGG

Mr. GREGG. I have no objection.

Mr. GREGG. Reserving the right to object, I ask if the Senator from Nevada would be willing to amend the agreement, so it would be Senator Gregg or his designee.

Mr. GREGG. I said, I believe we will be able to respond to the Senator in about a minute.

Mr. GREGG. Reserving the right to object, in just a minute I believe I will be able to respond.

Mr. GREGG. I am not sure I have seen the amendment.

Mr. GREGG. Mr. President, I ask unanimous consent that the pending Thompson amendment be laid aside without prejudice so that the Senator from Arizona may proceed.

Mr. GREGG. I ask unanimous consent that the Senator from North Dakota have another 10 minutes, if he desires.

Mr. GREGG. Mr. President, I suggest the absence of a quorum.

Mr. GREGG. Mr. President, I can't guarantee that there would be a second vote at 2 on that amendment, unless the parties to that amendment are agreeable to that.

Mr. GREGG. Is there a unanimous consent request pending?

Mr. GREGG

Mr. GREGG. I ask for the yeas and nays on the Bond amendment.

Mr. GREGG. I suggest the absence of a quorum.

Mr. GREGG. Reserving the right to object, it is my understanding there will be no additional amendments this evening other than these two.

Mr. GREGG. If the Senator will yield, I advise Members that it is very possible we will have a vote around 6 o'clock. So Senators should be aware of that.

Mr. GREGG. Mr. President, I rise in support of the excellent idea of the Senator from Missouri. One of the big concerns that has been heard expressed throughout this entire debate has been the effect especially of the plethora of lawsuits which would be created under the present bill as it is structured on employers, especially small employers, and their willingness to continue to offer health insurance to their employees. The real issue for most people is, first, do they have health insurance. When someone goes to find a job, one of the key conditions that most people look at is if that job has a decent health insurance package that is coupled with it. This is an extraordinarily big problem for not only people working at high-level jobs but especially people who work at entry-level jobs and in between. You can take large employers in the retail industry or large employers in the manufacturing industry. In all of these areas, employees see as one of their primary benefits the pay they receive, obviously, but additionally the fact that they have good health insurance from their employers. Then with the smaller employers, people who run small restaurants or small gas stations, or small mom-and-pop manufacturing businesses, the people who work for those folks also appreciate greatly the fact that they might have a health insurance package that is coupled with their employment. This is especially true for families. I don't think there is anything a family fears more than having a child get sick and not having adequate coverage, and not being able to get that child into a situation where they can be taken care of, or alternatively having their savings wiped out by the need to do something to take care of that child who has been sick, or a member of the family. Quality insurance is absolutely critical. We should not do anything that undermines the willingness of manufacturers, of employers, of small businesspeople, of mom and pop operators to offer insurance to their employees. It should almost be a black letter rule for this bill that we do not do something that is going to take away insurance because, as I have said before in this Chamber, there is no Patients' Bill of Rights if a person does not have insurance. They have no rights at all because they do not have any insurance. So what the Senator from Missouri has suggested is a very reasonable approach. If this bill, as it has been proposed, is such an extraordinarily positive vehicle in the area of giving people rights for their insurance and is such a positive vehicle in the area of allowing people who interface with their health agencies to get fair and adequate treatment from their health agencies, then the authors of this bill should have no objection to the amendment offered by the Senator from Missouri. Because the Senator from Missouri isn't suggesting that the bill should be changed in any way. He is simply saying, if the effects of the bill are that people are thrown out of their insurance and no longer have the ability to hold insurance because their employer says, ``We are not going to insure you anymore; we can't afford it because of the number of lawsuits that are going to be thrown at us as a result of this bill,'' if that is the case, and more than one million people in America--and that is a lot of people--lose their insurance, then the liability section of this bill will not be effective. It does not affect the underlying issues of access and does not affect the underlying issues of the ability to go to your own OB/GYN or your own specialist or the various other specific benefits which are afforded under this bill, most all of which there is unanimous agreement on in this Senate. All it simply says is, listen, if the liability language in the bill simply isn't going to work because it throws a million people out of their insurance and, therefore, a million people lose their rights versus gain rights under this bill, then we basically do not enforce liability provisions until that gets straightened out. The Congress can come back at that time and take another look at the liability provisions and correct them. At least nobody else will be thrown out of the works because of the liability provisions; they will essentially be put in a holding pattern by this amendment. That is an entirely reasonable approach. Instead of saying we are going to function in a vacuum in this Chamber, where essentially we throw out ideas that we think are good but don't know what is going to happen, this is essentially saying, all right, if we think we have ideas that are good, we are going to hold those ideas to accountability. We heard the Senator from Massachusetts talking about accountability in another section of this bill. He brought up the education bill, which we talked about for the last 7 weeks before we got to this bill. And the issue was accountability. Does it work? The education bill we passed has language in it that essentially took a look at what had happened in order to determine what would occur in the future. What Senator Bond has suggested is that we do that under this bill. It is a very practical suggestion. He is saying if a million people lose their insurance, then we will put the liability language in the bill on hold until we can straighten it out. Actually, it would be sunsetted. The practical effect of that is, I presume, Congress would come back and say, listen, we didn't intend to have a million people lose their insurance. Our purpose in this bill was to give people more rights, not to give them less rights. You give people less rights if they lose their ability to have insurance. So by taking this language we will be in a position of being sure that what we are doing in this Chamber, and what we are doing in the isolation of the legislative process--although we get input, we never really see the actual events--will have a positive impact. We will know that if it isn't having a positive impact, there will be a consequence. The consequence is that that part of the bill, which has created the negative impact--throwing people out of their insurance--will be held up or stopped or sunsetted until we can correct it. So the Senator's concept in this amendment makes a huge amount of common sense. It is truly a commonsense idea. I guess it comes from the ``show me'' State. Nobody has used that term today on this amendment. I do not think they have described it that way. This is a classic ``show me'' amendment. This says: Show me how the bill works. If the bill does not work, OK, we are going to change it to the idea of having this trigger, which establishes whether or not the bill is positive or whether the bill is negative. If the bill is negative--``negative'' meaning over a million people losing their insurance as a result of the effects of this bill--then we sunset the liability language. I do think it is important to stress that this amendment does not sunset the whole bill. It just focuses on the liability sections within the bill, which sections I have severe reservations about and have referred to extensively in this Chamber, which I think are going to have unintended consequences which will be extraordinarily negative on employees in this country where a lot of people are going to lose their insurance. This amendment just goes to that section of the bill. It doesn't go to the positive sections of the bill that there is general agreement on. It does not even go to those sections of the bill where there isn't general agreement on, such as the scope issues of States' rights or the contract sanctity issue, for that matter. But it does go to this question of, if you have people losing their insurance because their employers are forced to drop that insurance because it has become so expensive as a result of the liability provisions of this bill, then, in that case, where that happens to a million people--a million people, by the way, is essentially the population of the State of New Hampshire. It is not the population of Missouri, but essentially we have 1,250,000 people in New Hampshire, so we are talking about not an inconsequential number of people; it is pretty much the whole State in New Hampshire. So it is a reasonable threshold. If a million people lose their insurance because employers cannot afford it, because the liability costs have driven them out of the ability to ensure their employees, then we should stop that; we should end that liability language and take another look at it as a Congress and correct it. So I congratulate the Senator from Missouri for offering this classic ``show me'' amendment. It is very appropriate that is has been offered by the Senator from Missouri, from the ``show me'' State. It makes incredible common sense. I also would say it is a ``Yankee commonsense'' amendment. So we shall claim it for New England also. I join enthusiastically in supporting this amendment. Mr. President, I yield the floor and suggest the absence of a quorum.

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

Mr. GREGG. Mr. President, I yield back such time as I might have at this point.