Tim Hutchinson

Mr. HUTCHINSON

Mr. HUTCHINSON. Mr. President, I rise today to support restoring funding for the National Endowment for Democracy and commend Senator Lugar for offering this amendment. As reported from the Appropriations Committee, the National Endowment would receive zero funding for fiscal year 2000 with the assumption that the Department of State would provide money from its democracy and human rights accounts. Since its inception in 1983, NED has sought to maintain an ideological balance, with a bipartisan, multisectoral core structure, as well as a bipartisan board. Its status of being simultaneously public and private has provided insulation from shifts and tides in changing administrations, allowing NED to focus on long-term democracy development. This independent role would be compromised if NED were subjected to State Department control. For almost 16 years, NED has been instrumental in building the foundations of democracy in over 80 countries, including peaceful transitions in Poland, Chile, and South Africa. Today NED continues to support a diverse portfolio of democracy building initiatives. In the Sudan, NED funds support human rights monitoring and reporting. In the Newly Independent States (NIS) and in Russia, NED has been supporting anti-corruption efforts, market-based reforms, independent media, and civic education. These programs lie in the long term interest of the U.S. because they will help to promote stability in a region plagued by instability. They will help these countries to emerge from the mire of communism. NED programs are also important in the People's Republic of China. Mr. President, I think we are all aware of the egregious human rights abuses perpetrated by the authoritarian government in China. The insecure government controls pastors and church members through state apparatus, imprisons prodemocracy advocates for their activities, and suppresses the truth through propaganda instead of allowing open media. Thousands of political prisoners languish in prison, many sentenced after unfair trials, others without any trial whatsoever. Under the totalitarian regime in China, the political system is a sealed door with no clear signs of opening. Many in the United States have placed their faith in economic progress to produce some sort of eventual political change in China. I do not believe that we can afford to make such a dangerous assumption. Even as the Chinese people suffer, so too will the advocates of ``trade at all costs'' under the current political system, because of the absence of the rule of law. When trying to conduct business in China, American companies must deal with bureaucrats rather than regulations, evasions rather than enforcement, and convolution rather than competition--because there is no judicious rule of law. We all want to see democracy in China. But we cannot assume that it will happen by itself. Instead, we must take steps to foster democracy. That is exactly what NED is about. NED funds over twenty programs to promote human rights and democracy in China. With money from NED, the International Republican Institute supports electoral and legal reform. The National Democratic Institute monitors civil and political liberties in Hong Kong following its transfer to China. The Laogai Research Foundation, run by former dissident and prisoner Harry Wu, conducts in-depth research into China's forced labor prison camps. Another NED grantee is run by chairman Lie Qing, who spent eleven years in prison for his involvement in the Democracy Wall movement. This organization has been invaluable in monitoring human rights conditions in China and has been helping victims' families bring criminal charges against Chinese leaders responsible for the 1989 Tiananmen killings. NED also supports VIP Reference, an organization that has taken advantage of the Internet to promote the free flow of information in China--news that has not been filtered or altered by the Chinese government. Besides opening this conduit to freedom, NED also supports research and publications on democracy and constitutionalism, symposia on private enterprise and market economics, and publications relevant to Tibet. Mr. President, these organizations are not rich by any means. In many cases, their staff works on a volunteer basis, out of their conviction to see freedom in China. They rely on funding from NED to stay in operation because other sources of funding from Hong Kong and Taiwan are scarce. Those potential sources fear offending China. Private businesses often will not fund these groups because they consider it too great a risk in light of their business interests in China. Only Congress has remained committed to funding these advocates of democracy. Without NED funding, we will cripple these programs and remove a key fulcrum in the push for democracy in China. Democracy building is not a quick fix for totalitarianism, nor will it produce instant change. But in the long run, these programs will produce a result worth far more than they cost today. I commend Senator Lugar for taking this leadership role, for offering this amendment. I believe it is critically important we support and pass this amendment, not just for China but for advocates of democracy all over this world. I urge my colleagues to support a restoration in the National Endowment for Democracy's funding for fiscal year 2000. I yield the floor.

Mr. HUTCHINSON

Mr. HUTCHINSON. Mr. President, I rise today along with Senator Snowe to voice my deep concerns regarding the substantial cut to the economic Development Administration's Fiscal Year 2000 budget. The FY 2000 Commerce, Justice, State appropriations bill being considered by the Senate cuts EDA's budget by $164.1 million--from $392.4 million in FY 1999 to $228.3 million for FY 2000. This represents a 42 percent cut. Clearly, this reduction will have a dramatic affect on the EDA's ability to serve distressed rural and urban communities in states like Arkansas, New Hampshire, Maine, Alaska, New Mexico, Kentucky, and Colorado. My colleagues will remember that last November we passed the Economic Development Administration Reform Act of 1998. In response, the EDA has become a more efficient and effective agency by reducing regulations by 60 percent; they have trimmed the period of processing applications to 60 days; and they are now requiring applicants to demonstrate both eligibility and need at the time of application. I firmly believe that these achievements will only strengthen the EDA's history of providing critical assistance to distressed areas. In its 34 years of service to Americans, the EDA has created 2.9 million private sector jobs; investing $16.8 billion in distressed communities. Currently, every $1 invested by the EDA generates $3 in outside investment. With an administrative overhead of less than 8%, more Americans in economically distressed areas benefit from their tax dollars. This is good news for my home state. As a rural state with many economically distressed communities, Arkansas relies heavily on the EDA and their invaluable services. Sam Spearman, who heads EDA in Arkansas, is a true servant and a great asset to my constituents. From the tornadoes that tore through northeast and central Arkansas this January, to the Levi-Strauss and Arrow Automotive closing in Morrilton, Arkansas, the EDA is helping communities stay alive. To help grow the economies in some depressed areas, the EDA has been assisting in planning and developing inter-modal facilities in Marion and West Memphis. My state was not immune to BRAC in the early 1990s. A Strategic Air Command bomber base in Blytheville and an Army training facility in Fort Smith were closed. As a member of the Senate Armed Services Committee, I am happy to report to my colleagues that both communities are slowly recovering, but not without ongoing assistance from EDA. Again, last November we passed legislation to restructure and reform the EDA. I believe that they have responded well to Congressional direction, however, reducing their funding by 42% greatly limits their ability to implement the changes we thought were necessary. I thank my colleagues and hope that they will support increasing funding to EDA in FY 2000.

Mr. HUTCHINSON

Mr. HUTCHINSON. I respond to the Senator from Florida by, first of all, complimenting him for his concern and interest in this issue and for, I think, pointing out clearly some improvements that were needed in the committee bill. I do not believe it was the intent of the committee to allow a differential in cost sharing for out-of-network providers.

Mr. HUTCHINSON. I say to the Senator, the change in the amendment is in in-network uniform cost sharing. That was the intent to be permitted. The amendment, on page 19, on out-of-network care, makes it abundantly clear that such differentials in going to an emergency room that may not be in the network and requiring a penalty, requiring an additional copayment because you went to an out-of-network, would not be permissible.

Mr. HUTCHINSON. I applaud the Senator from Maine for her outstanding leadership on this legislation and particularly for this amendment and the tax provisions which I believe are going to provide significant tax relief. The Joint Committee on Taxation estimates that 3.8 million taxpayers benefit from this provision on long-term care. It is an important provision. Senator Collins and Senator Grassley have been great leaders in pushing for this. I applaud their efforts. I will briefly address the provisions in this amendment regarding access to emergency services, an issue we debated at some length yesterday. I think the provisions in this amendment adequately and significantly improve the Republican bill and address the concerns that have been expressed. Let me compare briefly the Kennedy bill and the Republican bill in this area. Both bills, with the adoption of this amendment, will eliminate prior authorization for visiting the emergency room. This was included in the committee bill as it came out. We reaffirmed that in the amendment. It eliminates the need for the requirement for prior authorization, something that is obvious, something that is common sense. If you have an emergency event, you don't want to get preauthorization before you go to the emergency room. We eliminate that requirement for prior authorization. For policies that have it, we prohibit that. Both bills require coverage for medical screening exams and stabilization services under the prudent layperson standard for emergency. That language, that provision, is included in both the Democrat bill and the Republican bill. Both bills, with the adoption of this amendment, will ensure that patients will not have to pay more for emergency services provided by an out-of-network provider than an in- network provider. Many of the stories and examples we have heard on the floor of the Senate regarded individuals who had to pass by an emergency room when something tragic occurred, drive across town to find a provider that was in the network. That should never happen. It should not ever be required. No one should bypass an emergency room that is close to them because they are afraid of having to pay a penalty or pay a higher copay because that emergency room is not in the network. So we would prohibit that kind of differential. The Democrat bill has that provision. With the adoption of this amendment, we would prohibit that. You would go to the closest emergency room. Both bills, with the adoption of this amendment, would provide the coverage of poststabilization services. The Republican amendment will do the following. It will require coverage of services to maintain the stability of the patient, those services which are related to the emergency condition, treatment related to the emergency condition, provided in the emergency room, and under the condition that the health plan has been contacted by the nonparticipating provider regarding approval for such services. If the plan has not responded within 1 hour--this is exactly what is required under Medicare--to arrange for transfer, discharge, or for further care at a nonnetwork facility, the plan continues to be liable for the care needed to maintain stability and those conditions related to the emergency situation. So we believe this is very strong language. It provides the kind of protections we need for poststabilization services. What it does not do--and this is the difference, this is the distinction--it does not allow someone to go into the emergency room with a genuine emergency and then ask for treatment of a condition totally unrelated to the emergency event. If you go in and you have a knee injury because of a fall and then, after you have been stabilized, you tell the doctor you have not had your heart checked and you haven't had an x ray and you want this done or that done, on conditions totally unrelated to the emergency event, that should not be required to be covered by the insurance policy. We clarified what we believe was ambiguous language, where there had been abuses, to ensure that in fact treatment has to be related to the emergency event. I think it is a very strong provision, and I urge my colleagues to support the overall amendment and this provision regarding access to emergency services.

Mr. HUTCHINSON. I don't think it is ambiguous at all. There has been a misunderstanding of the language in the amendment. Certainly, there can be a differential in a network plan between going to an emergency room and going to a provider other than an emergency room. That is what is clear both in the bill and in the amendment. If you will listen to the language of the out-of-network case, I think it is as unambiguous as any language can be: The plan shall cover emergency medical care under the plan in a manner so that, if such care is provided to a participant or beneficiary by a nonparticipating health care provider, the participant or beneficiary is not liable for amounts that exceed the amounts of liability that would be incurred if the services were provided by a participating provider. I believe that is as clear and unambiguous as language can be. It was our intent that you should not have any incentive to drive across town while your child or your spouse is in jeopardy, that you should be able and would be able to go to the closest emergency room without incurring additional costs. That is what the amendment does, and that is what I think should be done.

Mr. HUTCHINSON. I have looked at that. I cannot explain that language, but I believe a clarification was necessary. We have made that clarification in the amendment.

Mr. HUTCHINSON. Will the Senator yield?

Mr. HUTCHINSON

Mr. HUTCHINSON. I move to lay that motion on the table. The motion to lay on the table was agreed to. Amendment No. 1234

Mr. HUTCHINSON. Mr. President, I say to my colleagues, in the area of emergency group services, both bills eliminate prior authorization, and they should. You should not have to call your insurance company before you go to the emergency room. Both bills establish a process for timely coordination of care, including services to maintain stability of the patient. I will be offering an amendment that will make it perfectly clear in the Republican bill that there can be no greater costs charged for those going to an out-of-network emergency room as those going to an in-network emergency room. There should not be a differential. I will make very certain in my amendment that there is no such differential. The Graham amendment is flawed, and it is seriously flawed because it uses language that is confusing for patients, confusing for plans and providers, it is vague and ambiguous, and it does not ensure that poststabilization services are related to the emergency condition. That is a gaping loophole. It is a blank check to say you have to provide services for a condition that is absolutely unrelated to the reason you went to the emergency room. My amendment I will be offering will fix that vague and ambiguous language to be sure that what is provided in the emergency room for poststabilization services are related to the condition for which the patient went to the emergency room. This is a very dangerous amendment in that it is vague and ambiguous and leaves a blank check, a gaping loophole that needs to be fixed. I ask my colleagues to reject the Graham amendment.

Mr. HUTCHINSON

Mr. HUTCHINSON. Mr. President, I want to take just one moment to respond to the question that was posed as to our specific concern about the language in the Graham of Florida amendment. The Graham of Florida amendment adopts the Medicare language. I will quote that Medicare language, from the September 28 Federal Register, volume 63. HCFA defines poststabilization, and I quote as I did before: . . . medically necessary nonemergency services furnished to an enrollee after he or she is stabilized following an emergency medical condition. That is as vague and open-ended as any language I could conceive. It is, in effect, a blank check for the emergency room, for the provider, for the patient. That is the language that needs clarification. We believe the poststabilization medical services that are provided must be related to the emergency event that caused the individual to go to the emergency room. That is the clarification that is necessary. I will be delighted to once again go through the amendment summary that I will be offering, but that is a critical flaw in the Graham of Florida amendment. Because of that flaw in the language, I ask my colleagues to oppose the Graham of Florida amendment.

Mr. HUTCHINSON. Mr. President, I inquire as to how much time remains on each side.

Mr. HUTCHINSON. What I suggest to the Senator is that my amendment will make that same requirement, only that the poststabilization services have to be related to the emergency room event.

Mr. HUTCHINSON. I will be glad to yield if I can yield on your time. We have limited time remaining on our side.

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

Mr. HUTCHINSON. I believe that needs to be clarified, and my amendment will do that.

Mr. HUTCHINSON. I will be glad to do that this morning.

Mr. HUTCHINSON. I do not believe that is an accurate reflection of that provision.

Mr. HUTCHINSON. In responding to the Senator, if there are no abuses, there should be no concern about clarifying language to ensure that, in fact, poststabilization treatment is related to the emergency room event. That is what I believe needs to be done. I think whether or not we can point to specific abuses in Medicare or not, the ambiguity in the language in Medicare is open to those kinds of abuses, and we will certainly see that occur if it is expanded to all managed care plans in the country. We certainly need to clarify that and ensure that the poststabilizations are related to the emergency room event.

Mr. HUTCHINSON. I say to the Senator from Florida that, in fact, there are abuses, I believe----

Mr. HUTCHINSON. The Senator from Texas asks for that clarification. I ask my colleagues to oppose the amendment by Senator Graham of Florida, knowing they will have an opportunity to vote for a clarification amendment dealing with emergency services later on. My amendment will remove the ambiguity that I think is so evident in the Graham amendment which will create such problems. The Republican provision, as reported out of the HELP Committee, requires group health plans covered by the scope of our bill to pay, without prior authorization, for an emergency medical screening exam and any additional emergency care required to stabilize the emergency condition for an individual who has sought emergency medical services as a prudent layperson. As I listened to the comments of the distinguished Senator from Maryland, it is clear that what the Republican bill does and what my amendment will do needs clarification for my colleagues, because Jackie, the example that was given, would be covered, very clearly. The prior authorization issue is clearly covered. The closest emergency room issue is covered. The prudent layperson definition is repeatedly used. Prudent layperson is defined as an individual who possesses an average knowledge of health and medicine. The purpose of this provision is to ensure that a person who has a reason to believe they are experiencing an emergency, according to the prudent layperson standard, will not, cannot, be denied coverage. If they are diagnosed with heartburn instead of a heart attack, they are still going to be covered under the prudent layperson definition. In addition, by eliminating the requirement for prior authorization, no prior authorization will be required. Jackie doesn't have to make a phone call while she is unconscious; no one has to make a phone call asking for prior authorization. We ensure that individuals can go to the nearest emergency facility. On the issue of cost sharing, plans may impose cost sharing on emergency services, but the cost-sharing requirement cannot be greater for out-of-network emergency services than they require for in-network services.

Mr. HUTCHINSON. I will be glad to yield when I conclude my comments. Let me go ahead because I think I may answer many of those questions as I go through. An individual who has sought emergency services from a nonparticipating provider cannot be held liable for charges beyond what that individual would have paid for services from a participating provider. Senator Enzi and I offered an amendment to this effect in the committee, and it was adopted by the committee. That amendment and the provision that is in the underlying Republican bill says that if a group health plan, other than a fully insured group health plan, provides any benefits with respect to emergency medical care as defined in subsection (c), the plan shall cover emergency medical care under the plan in a manner so that if such care is provided to a participant or beneficiary by a nonparticipating health care provider, the participant or beneficiary is not liable for amounts that exceed the amounts of liability that would be incurred if the services were provided by a participating provider. It is not going to cost the patient more if they go to a nonparticipating provider in that emergency room than they would if they went to one that was within their network. As I think was pointed out by my colleague, Senator Frist, and Senator Graham of Florida last evening, the committee report language needs clarification on the committee's intention on cost sharing for in- and out-of-network emergency services. My amendment will certainly make that clarification. My amendment will also improve the access to emergency services provision reported by the HELP Committee by requiring the plan to pay for necessary care provided in the emergency room to maintain medical stability following the stabilization of an emergency medical condition until the plan contacts the nonparticipating provider to arrange for transfer or discharge. If the plan fails to respond within a very narrow, specific time period, the plan is responsible for necessary stabilizing care in any setting, including in-patient admission. We clearly state in the amendment which I will offer that these stabilizing services must be directly related to the emergency condition that has been stabilized. I think this was the point Senator Frist made so very eloquently: If you do not make that connection, if you do not have the requirement that it has to be related to the emergency condition that has been stabilized, then you truly have a loophole. You open the door that totally undermines the concept of coordinated care. To understand the true impact of the Republican access to emergency services provision as clarified and improved by my amendment, let me offer the following scenarios and show how they are addressed by our provision in the bill. Several examples have been repeated a number of times by my colleagues across the aisle. Let me use their examples. They specifically mentioned the case of a mother with a febrile child who called her health plan before going to the emergency room and was required to go to an in-network emergency facility, passing several nearby facilities on the way. Her child, tragically, had a serious infection which, due to the delay in care, resulted in amputation. There were very moving pictures of this particular child. Under our bill, a mother with a sick child will be able to access the closest emergency room, and she won't get stuck with the bill because she did not get prior authorization. In a case referred to by my colleague from North Dakota, Senator Dorgan, if someone has taken a 40-foot fall and has been helicoptered to a hospital and delivered to an emergency room in a state of unconsciousness with fractured bones in three parts of her body, does that person have a right to emergency care under the Republican bill? The answer is yes, because we eliminate the prior authorization requirement. The case cited by my colleague from Montana, Mr. Baucus, where a woman came into an emergency room after falling and sustaining a complex fracture to her elbow, and the emergency physician diagnosed the problem and stabilized the patient. The stabilization process took less than 2 hours, but the patient's stay in the emergency room lasted for another 10 hours while the staff attempted to coordinate the care with the patient's health plan. The plan was unable to make a timely decision. Under the Republican bill, the woman in this case will not have to wait hours on end for a response from her health plan. Under our provision, as improved by my amendment, the health plan must respond to the nonparticipating provider within a specific timeframe to arrange for further care. Under the Democrats' bill, plans are required to pay, without prior authorization, for emergency services and ``maintenance and post stabilization services as defined by HCFA [Health Care Financing Administration] and Federal regulations to implement the Balanced Budget Act of 1997.'' I believe this is where the Democrat provision goes wrong and, quite frankly, it shows where we can make a much-needed improvement to the Balanced Budget Act language. In the September 28th Federal Register, Volume 63, HCFA defines poststabilization as ``medically necessary, nonemergency services furnished to an enrollee after he or she is stabilized following an emergency medical condition.'' Now, that definition is completely vague and completely open-ended. I think it would be a serious mistake to take that language and to transport it into this very important bill. Under this definition, a plan could conceivably be required to pay for services by a nonparticipating provider that are completely unrelated to the emergency conditions for which that patient was treated. To go in for one particular emergency, and while you are in that poststabilization period, to say: By the way, I also have a problem here and here; can you deal with that? And then require the plan to cover it, I think that would be a very serious mistake. The confusion and the ambiguity in the language is further perpetuated by conflicting statements on the meaning of ``poststabilization'' found in other places in the regulations. So my amendment will provide for timely coordination of care. It ensures that the patient will receive the appropriate stabilizing services related to their emergency medical condition. The prudent layperson standard assures that a plan cannot retrospectively deny coverage for an event that was felt to be an emergency medical condition at the time the individual sought emergency care. It eliminates the prior authorization requirement so an individual can go to the nearest emergency facility and not have to worry about whether they are going to be covered if they go to a nonparticipating provider and that they might get stuck with the bill. While my colleagues say they are simply adopting what was passed under Medicare, it is my contention that the provision I am offering will be an improvement on what is in Medicare because of the open- endedness and ambiguity of the language. I suggest that at some point we are going to have to revisit the Medicare provision and improve it as well. In the meantime, I urge my colleagues to oppose the Graham of Florida emergency room amendment and vote for the amendment I will be offering later in the debate. Since this amendment tree is now full, I will have to offer that at a later point.

Mr. HUTCHINSON. I think I have very clearly outlined what my amendment will do, and I have expressed very clearly my concerns about the Graham of Florida amendment. I will read right now, if you would like, the entire summary of the amendment and what it would do. I think it will respond to the concerns that many of my colleagues on the other side simply have misrepresented. What you call ``gaping holes'' simply need clarification, which my amendment will do. It will address it in a much more rational and responsible way than the very ambiguous language that I believe the Graham amendment contains.

Mr. HUTCHINSON. I thank my colleague, the distinguished Senator from Tennessee. I express not only my appreciation but the appreciation of all Senators for the expertise that Senator Frist brings to this important issue, as well as the care and compassion he has demonstrated throughout his career, even during his time in the Senate, in caring for other people in emergencies. He certainly brings a great deal of personal experience and expertise to this issue. I rise to speak on this issue of access to emergency services and to explain why I believe my colleagues should oppose the Graham amendment. The amendment tree to which the Graham amendment was filed is now full. I alert my colleagues to an amendment I will be offering further along in the debate--I have been assured of the opportunity to do that--which will address the concerns raised by Senator Graham but, I think, addresses them in a far more responsible way.

Mr. HUTCHINSON. And which will be removed and clarified.