Judd Gregg

Mr. GREGG

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. GREGG. I understand the Senator's time has expired. I ask unanimous consent that whatever time the Senator consumes, an equal amount of time be added to our time.

Mr. GREGG. Mr. President, will the Senator yield for a question?

Mr. GREGG. I have no problem with that on my side, as long as our side will receive an equal amount of time. So that would be 40 minutes; 10 minutes to Senator from Minnesota, 30 minutes to the Senator from West Virginia; and then 40 additional minutes to be added to our side's time. And the Senator from West Virginia be recognized after the Senator from Minnesota.

Mr. GREGG. What amount of time does the Senator from West Virginia need?

Mr. GREGG. No. We have no speakers at this time. I am happy to yield 10 minutes to the Senator from Minnesota. And I ask unanimous consent for 10 minutes to be added to our time.

Mr. GREGG. Mr. President, how much time does the Senator think he needs to make his statement?

Mr. GREGG. I ask that the time between now and 3:30 be equally divided between myself and Senator Kennedy, and any quorum calls be divided between each side.

Mr. GREGG. I suggest we divide the time between now and 3:30 between the two sides equally.

Mr. GREGG. I hoped we would be. Some of the Senators involved in that amendment are at the White House, so we are waiting for them to return. When they return, we will be ready to proceed.

Mr. GREGG. I am not aware of any speakers. We are waiting for people to return from the White House before we get really started.

Mr. GREGG. No.

Mr. GREGG

Mr. GREGG. I move to lay that motion on the table.

Mr. GREGG. I thank the Senator.

Mr. GREGG. Mr. President, I would like to ask unanimous consent that Senator Enzi be added as a cosponsor of the Gramm amendment which is pending.

Mr. GREGG

Mr. GREGG. Mr. President, the Senator from North Carolina has outlined and characterized the situation. I would like to speak to some of the points he made and then specifically speak to a variety of issues. To begin with, much of what the Senator said we agree with, I agree with, and I think everybody agrees. There is no issue over access to emergency rooms. There is no issue over access to OB/GYNs. All those issues have been agreed to. They were agreed to last year. They were agreed to this year. There is no issue about the need to make sure that when someone is injured by their HMO or their provider or their insurer, they have recourse. There is no issue about that. Everybody is in agreement. The issues come down in the classic way, in the classic line, to ``The devil is in the details.'' The bill as brought forth by Senator McCain, Senator Edwards, and Senator Kennedy is essentially a ``let's go to court'' bill. It is not a Patients' Bill of Rights bill. I have referred to it as a ``lawyers who want to be millionaires bill,'' and I have referred to it in other terms, but essentially it is a lawyers' rights bill. It creates an incredible number of new opportunities to bring lawsuits. We just happened to go through and outline some of these and this chart shows them. First, you can sue your employer. Under this proposal as it is structured. That should not be our goal. Our goal should not be to create lawsuits against the employers in the country. I noticed my colleague always used the term ``health maintenance'' organization, HMO. It is a pejorative--or it has become pejorative. I never heard him use the word ``employer.'' Yet for the 56 million people who are covered by self-insured plans--plans where the employer is the one who gets sued--the fact is, you can sue the employer. What is the practical effect of that? We know the practical effect is a lot of employers are going to drop their insurance so the people who have insurance today will not have it tomorrow if this bill is passed because the employers are going to say: Hey, I am not in the business of being sued for health care problems. If a doctor makes a mistake, I don't want to be sued. If I make a product and make a mistake, I understand I will be sued, but I don't want to be sued if a doctor or nurse or pharmacist or hospital makes a mistake. I don't want to be put out of business for that. We are talking about mom-and-pop employers. We are talking about employers who have 10, 15, 20 employees. The average cost of a malpractice suit is $77,000. So you have a situation where their whole profit for the year may be wiped out. Maybe you are running a small grocery store or a restaurant or a gas station. You will be wiped out because you will have to defend the suit even though you had nothing to do with it as an employer. This bill as structured has massive liability for employers. They can be sued in the Federal court or in the State court, which is really ironic. Brand new causes of action: There are almost 200 new causes of action under this bill for ministerial activities under which an employer may make a mistake. The damages are unlimited under those causes of action. It is not $100 or $200. It is not a fine from the Labor Department as it is under present law or a fine from HHS as is under present law. There is a new private cause of action that accrues against the employer for not sending the proper forms or for not informing you or for not sending you the right magazine. For anything that is under HIPAA or anything under COBRA or anything that is under ERISA, they are suddenly liable as the employer under this bill. They are brought in under this bill, and they are liable. There are 200 new causes of action. The damages under this bill are unbelievable. Obviously, it is a bill written by the trial lawyers because there are no limitations on economic, noneconomic, or punitive damages. By putting on a new title, they are trying to go around with this classy, misty, ``special assessment'' In Federal court, there is a limit of $100 million in punitive damages. Of course, they do not tell you that you can go to State courts, and in most States there is no limit on damages. This new ``special assessment'' is just window dressing. Punitive damages are uncapped, economic damages are uncapped, and noneconomic damages are uncapped. This is a lawyer's fantasy world. It is similar to a lawyer walking into Disney World to pick their forum, their most interesting forum, State or Federal. They can pick hundreds of suits. They can pick unlimited damages--economic, noneconomic. You are going to see employers dropping their health insurance like hotcakes as a result of this; you can go straight to court. I heard the Senator from North Carolina say: Internal appeal process, you have an external appeal process. Then, under very similar certain circumstances you can go to court. Hey, with this bill you can go straight to court. There isn't a good lawyer in this country who would not skip the external appeals process the way this bill is structured. This is probably the single biggest problem this bill has because it is the external appeals that will settle most of the differences a patient has with their employer--whether it is an employer or an HMO--because, if you have a good external appeals process with medical expertise and independent resources, and if you require the two parties to pursue that external appeal, then at the end of the external appeal the odds are very good that the resolution is going to be fair, the parties are going to accept it, and you won't have a court action. I suspect court actions would be rare with a good external appeals process. A good external appeals process is one such as in the Nickles bill last year or such as is in the Frist-Jeffords bipartisan bill. It is a tripartisan bill. It is tripartisan because there is an independent, a Republican, and a Democrat on the Frist-Breaux-Jeffords bill, which essentially says you can skip the external appeals and go to court. But all you get when you do that is an opportunity to get your problem taken care of. You don't get awards. You don't get awards for going to court. You essentially get taken care of, which is appropriate if you have a situation where the injury is immediate and the harm is continuing. You should be able to go to court during the external appeals process and get that taken care of, if it is necessary. That is the way the Frist-Breaux bill is written. The way their bill is structured, you go to court, period. You don't even bother with external appeals. You allege your harm. They claim it is not alleged anymore. But, essentially, it is alleged, and you are in court. You get your damage claim going; you start suing like crazy. You pick the forum that is best, the jury that is the best, the courts that are best, and the best States, and you are off and running in the court system. That is the way this bill is intentionally structured. It is not an unintentional event. This bill is intentionally structured in order to get more lawsuits, and in order to get more opportunities to create lawsuits. It couldn't be done for any other reason. When you look at this list, ``statute of limitation''--what statute of limitation? For all intents and purposes, they have no statute of limitation under this bill because you can essentially bring a cause of action after 180 days. The external appeals process is eliminated. All you have to do is claim that you have just found the injury and you are off and running again. Ten years after the event, the statute of limitation is almost irrelevant under this bill. As I mentioned, forum shopping, picking your forum, is a classic love-fest for plaintiff's lawyers. The first thing you are taught in the trial practice courses when you go to law school is forum shopping. That is black letter education in law school. I was there. I know. I even passed that course. I think I put down ``forum shopping'' on every answer. This bill puts it right at the top of the list, as you might expect. Two bites at the apple: You can sue in both courts. They are not happy enough with forum shopping. The avarice of the trial bar in designing this bill is almost humorous it is so aggressive. They weren't happy to just put in forum shopping, which doesn't exist today. They had to go with simultaneous forums. You can bring the lawsuit in both courts. You can go to State and Federal at the same time. It is lawsuit Disney World. Of course, you can bring multiple lawsuits. I sue, you sue, and everybody sues under this bill. You can have class action suits, which is something you can't have under present law. There is a very good reason for that under federal law. What is the practical effect? This is the bottom line. With all of these lawsuits, you end up with a bill that, if it were to pass, according to OMB's estimates, would cause 4 million to 5 million people to become uninsured. According to the CBO estimate, it is 1.3 million. Either way, it is a huge number of people. They don't get patients' rights under this bill. They get no insurance under this bill because their employers are not going to be able to afford or justify giving that benefit in exchange for all the lawsuits to which they would be subjected. What is going to happen in the real world? The bigger employers will say: All right, I know you need health insurance, but we can't manage it anymore because we just can't take the adverse risk of all of these lawsuits. So we are going to give you some money as one of your compensation functions, and you can take that money and go into the market and buy your insurance. The only problem is that the employer's insurance plan is inevitably going to have been much better--much better for the employees than what they can go out and buy with the dollars or the voucher they are given by the employer because the employees will be out there with one voucher trying to buy their insurance in an open market, and they won't have a whole lot of market force behind them. But an employer that maybe employs 50, 100, or even 15,000, 20,000, or maybe even 50,000 people, has huge market clout. They can get better rates, and therefore they can get better options. They can maybe get eyeglass options or drug options or a variety of other options that the employees can't get with the voucher they are going to be given by large employers. A lot of people may not lose their insurance altogether, but the quality of their insurance under this bill is going to drop radically. Then there are the other people who do not use employers. They are self-insurers who do not have a lot of employees. There are 100, 50, 35, or 20 people. These employers are going to say to their employees: We are sorry; we can't afford it at all. We can't afford it at all. You are going to have a lot of people without any insurance, period. That is the practical effect of this. There are negotiations going on. There are ways to fix this. They are not radical. They are not reactionary. They are reasonable. In fact, they are so reasonable that they have been put forward by Senators Frist, Breaux, and Jeffords. As I said, it is a tripartisan bill. They have a liability section which makes sense. It is not just limited to designated decisionmakers. It is a much broader term than that. It goes to this whole issue of external appeal. It goes to the issue of punitive damages and to the issue of forum shopping. It goes to the issue of bringing in all these causative causes of actions under COBRA, ERISA, and HIPAA which are not appropriate in this bill. So if you want to fix this bill--I hear the other side saying that on occasion; I am not sure if they really mean it. But if they want to really fix the bill, just take the Frist-Breaux-Jeffords language en bloc in the area of liability and put it in the bill. The bill would be fixed in the area of liability and external appeals. Do we see them doing that? No. There was some discussion in this Chamber earlier about this pending amendment by the Senator from Texas, who I see is in the Chamber. The discussion from the other side essentially was: OK, you say you don't want employers to be liable. Texas law does not allow employers to be liable, so let's adopt the Texas law. Why was that amendment offered? Because the other side of the aisle specifically said they wanted to have a bill that was almost identical to Texas law. In fact, the Senator from North Carolina used those terms. He said: This bill, as structured, is almost identical to the Texas law. So the Senator from Texas said: If it is almost identical to Texas law, let's just put the Texas law language in, which is what his amendment does; it puts the Texas law language in. And it is pretty reasonable. It is the Texas language. So now the bill would not be almost identical; it would be identical. Since a number of the Members on the other side of the aisle said: We want the Texas law, we want what President Bush had in Texas, the Texas law is acceptable and what President Bush had in Texas, the Senator from Texas said: OK, we will put the Texas law in as an amendment. If the two are the same--and the two are the same--everybody will vote for this. We will not have to have a rollcall vote on it; we can have a voice vote. I think you will find it is opposed by Senators on the other side of the aisle. The simple fact is, their law does not exempt employers, as does the Texas law. Their law does not exempt the lawyers. Theirs makes the employers, carte blanche, liable and opens up all kinds of opportunities to sue them, without caps, with punitive damages, and in whatever form they want to choose. The Texas law does not allow that to happen. The Texas law does protect the employer and does limit damages. So I look forward to the vote on this amendment. I think it will test whether or not the statements coming from the other side of the aisle-- that they want the Texas law--are backed up by a vote. Mr. President, I yield the floor.

Mr. GREGG

Mr. GREGG. If I wish to support allowing people to deduct their health insurance, do I vote no on this amendment?

Mr. GREGG. Parliamentary inquiry.

Mr. GREGG. Mr. President, I am going to yield our time to the Senator from Missouri, but I want to make the point very clear. If my colleagues vote for the point of order against the amendment, they will be voting against people's ability to fully deduct their health insurance. I yield to Senator Bond.

Mr. GREGG. Mr. President, it is clear from this last exchange that the blue slip issue is a red herring to throw a few more colors on the table. The fact is, if we want to address the blue slip issue as a Senate, we can clearly do that. This amendment should not be defeated on the basis of a technicality which is clearly correctable. This is a good amendment. This is an amendment which gets to one of the core issues in this bill, which is the fact the bill, as proposed by Senator McCain and Senator Kennedy, is a bill that will create more uninsured individuals. I still do not understand how we can call it a Patients' Bill of Rights when this bill creates 1.3 million people who will not have insurance. To me it is not giving rights but taking away their capacity to get health insurance. At least if this type of bill is going to pass, we ought to expand access to health insurance in other ways. What the Senator from Arkansas has proposed is a very appropriate way to do it. It is something that passed the Senate a number of times before and should be passed at this time. I want to make a couple of points because there were a couple points made as we have come down to the line. There was a representation made that we are representing the special interests. Let me tell my colleagues, those 1.3 million people are going to lose their insurance are the people I am representing. The small employer who runs a restaurant or a gas station or a little business starting out is going to have to drop health insurance because of this bill. Those are the people I am representing. We can make the representation on our side when you look at the drafting of this bill that it was put together with certain interests, such as trial lawyers, because it so grossly expands the opportunity for lawsuits, creating new causes of action, creating multiple forum choices, creating no punitive damage caps, creating no noneconomic damage caps, allowing people to escape the external appeals process at will. We have not said that. It is really inappropriate for the other side to be making these types of representations. The fact is, as has been represented on the other side that this bill costs 4.2 percent over 5 years--this bill costs 4.2 percent every year in added costs, and that point should be made because that is a lot of new money that is going to have to be borne by the employers. Those two points needed to be cleared up. I reserve the remainder of time for the Senator from Arkansas.

Mr. GREGG. On what time is the Senator speaking?

Mr. GREGG. Mr. President, I ask unanimous consent that the unanimous consent I propounded earlier be accepted. I will review it: That when S. 1052 is read a third time, it be laid aside and the Senate immediately proceed to the consideration of Calendar No. 69, H.R. 10, and that all after the enacting clause be stricken and the text of S. 1052, as amended, if amended, be substituted in lieu thereof, and the bill then be read the third time, and the Senate proceed to a vote on final passage of the bill. The purpose of this amendment is to make it absolutely clear that if we want to, there is no blue slip issue relative to this bill, this amendment, because there is a bill sitting at the desk that can be dealt with now by this unanimous consent, or at the end of the day, or when we get to the end of the bill. The fact is that the blue slip issue is truly not an issue because we have a vehicle available to us. I ask unanimous consent for that request to be accepted.

Mr. GREGG. Reserving the right to object, again, that would be very difficult to do at this time. Obviously, there are a large number of Members who have first-degree amendments. It is fairly late in the week, and some are actually on the move, as I understand it. We would have to object to that.

Mr. GREGG. Reserving the right to object, off my time, I say that we are willing to talk about the number and, unfortunately, in the timeframe to get to the vote we were not able to reach a conclusion because there are a lot of Members who have issues that at least marginally affect this question. I do think if blue slip is an issue, we can correct it right here with the language I have proposed. I can understand that the Senator will not accept that. I cannot accept his amendment in its present context. So I object.

Mr. GREGG. This is not on my time anymore.