Jim Jeffords

Mr. JEFFORDS

Mr. JEFFORDS. Let me provide examples of how our external review provisions ensure that patients and children get medical care. Chart 1 illustrates under the Republican bill that the health plan cannot ``game the system'' by blocking access to external review or using some cleverly worded definition of ``medical necessity.'' The Republican provision ensures that people get the medical care they need. Here is an example of an HMO that has a planned contract which says the HMO will cover ``medically necessary care'' but the HMO has the sole discretion to determine what is ``medically necessary.'' Of course, this is an extreme example. Let's see if it holds up under our external review provision. In this example, the patient and physician may not know the plan's rationale for denying a claim since it is the HMO's sole discretion to determine medical necessity. This can be frustrating for both the patient and the physician. Under the Republican bill, a denied claim would be eligible for an outside independent medical review. In fact, all denied medical claims under this example would be eligible for review under our provision. This is confirmed by the outside legal analysis which I have submitted for the Record. The legal opinion says: The statutory language provides for external review of any determination of medical necessity and appropriateness, even when that determination is intertwined with an interpretation of the plan's terms. The external reviewer would make an independent medical determination. There is nothing in the HMO contract or in the legislative provision that prevents the reviewer from making the best decision for the patient. If the patient needs the medical care, the reviewer will make this assessment. They will get the care. The independent reviewer's decision is binding on the plan. Chart 2 is an example of a cleft palate. This chart illustrates that patients, and especially children, will get necessary health care services. Plans will not be able to deem a procedure as ``cosmetic'' and thus block access to external review. Only physicians can make coverage decisions involving medical judgment. An example we have heard many times from our colleagues on the other side of the aisle is of an infant born with a cleft palate. The infant's physician recommends surgery so the child can perform normal daily functions, such as eating and speaking normally. The treating physician says this surgery is medically necessary and appropriate. In this example, the HMO planned contract states: ``The plan does not cover cosmetic surgery.'' It was denied as a claim, saying the child's surgery is not a covered benefit because it is a cosmetic procedure, despite the recommendations of the treating physician. What does this mean? Does this mean this is the end of the road for this child's family? No. Under the Republican bill, this denial of coverage would be eligible for appeal because the decision involves an ``element of medical judgment.'' Under the Republican bill, medical decisions are made by physicians with appropriate expertise. In this case, it means an independent reviewer would be required to have pediatric expertise. Finally, the independent medical reviewer would look at the range of appropriate clinical information and would have the ability to overturn the plan's decision. The child would receive the surgery to correct the cleft palate, and the plan would cover this procedure because the reviewer's decision is binding on the plan. The next chart is on emergency room coverage. The primary point of this chart is that under the prudent layperson standard, parents can use their judgment and take their sick child to the nearest emergency room without worrying about whether the plan will deny coverage. Another example we are all familiar with is of little Jimmy whose tragic story has been told by Senator Durbin. His parents called the HMO when their baby fell ill. The HMO nurse recommended the parents take their sick child to a participating hospital an hour's drive away. During their long drive, the family passed several closer hospitals along the way. The child's symptoms grew worse and the baby went into respiratory arrest. By the time they got to the hospital, the one that the HMO said was covered by a plan, it was too late. The tissue damage resulted in the loss of a limb and little Jimmy had to endure a quadruple amputation. This is a horrible situation. Let's look at what the Republican bill would do to address this type of tragic and unnecessary situation. First, under our prudent layperson standard, a parent would not have to call the HMO to get permission to go to the nearest emergency room. In this case, the parents could have gone to the closest emergency room and little Jimmy would not have gone into respiratory arrest. This tragedy would have been averted under the Republican provision because our bill ensures that emergency room services must be provided without preauthorization and without regard to whether the services are provided out of network. Say for the sake of argument that the plan denies reimbursements after the hospital has provided the treatment. Under the Republican bill, little Jimmy's family would not be stuck with the hospital charges. They could appeal this decision to an outside reviewer because the decisions about whether care is medically necessary are eligible for external review. The law firm of Ivins, Phillips & Baker says that under our provision: The coverage dispute in this case involves a judgment of medical necessity and appropriateness under the prudent layperson standard mandated by the bill, and therefore is eligible for independent external review under the bill. This is a quote from the letter that has been previously printed in the Record.

Mr. JEFFORDS. I believe Vermont does.

Mr. JEFFORDS. I yield the Senator from Pennsylvania 10 minutes.

Mr. JEFFORDS. Mr. President, I commend my good friend on the committee for the work he has done in this area. This is an area where we have joined together. It will ensure that we have a change, a positive change in the clinical trial aspect. I want to work together with the Senator in that regard. I also want to say this bill is not finished yet. We have places to go and time to spend to bring it to a better form than it is now. I look forward to continuing to work to improve the bill. I reserve the remainder of my time.

Mr. JEFFORDS. Certainly.

Mr. JEFFORDS

Mr. JEFFORDS. For the information of all Senators, the Senate will convene at 9:30 and be in a period of morning business until 10 a.m. Following morning business, the Senate will immediately resume consideration of S. 1344, the Patients' Bill of Rights legislation. Debate will continue on the pending amendment until all time has expired. Additional amendments are expected to be offered and debated throughout tomorrow's session of the Senate. Therefore, Senators should anticipate votes throughout the day on Wednesday. As always, Senators will be notified as votes are scheduled.

Mr. JEFFORDS

Mr. JEFFORDS. If there is no further business to come before the Senate, I now ask unanimous consent the Senate stand in adjournment under the previous order.

Mr. JEFFORDS

Mr. JEFFORDS. Mr. President, today I am introducing S. 1357, the Retirement Account Portability (RAP) Act. This bill is a close companion to H.R. 738, the bill introduced by Congressman Earl Pomeroy of North Dakota. It was also included as title III of the Pension Coverage and Portability Act, S. 741, introduced earlier this year by myself and Senators Graham and Grassley. Generally this bill is intended to be a further iteration of the concepts embodied in both of those bills. The RAP Act standardizes the rules in the Internal Revenue Code (IRC) which regulate how portable a worker's retirement savings account is, and while it does not make portability of pension benefits perfect, it greatly improves the status quo. No employer will be ``required'' to accept rollovers from other plans, however. A rollover will occur when the employee offers, and the employer agrees to accept, a rollover from another plan. Under current law, it is not possible for an individual to move an accumulated retirement savings account from a section 401(k) (for- profit) plan to a section 457 (state and local government) deferred compensation plan, to an Individual Retirement Account (IRA), then to a section 403(b) (non-profit organization or public school) deferred annuity plan and ultimately back into a section 401(k) plan, without violating various restrictions on the movement of their money. The RAP Act will make it possible for workers to take their retirement savings with them when they change jobs regardless of the type of employer for which they work. This bill will also help make IRAs more portable and will improve the use of conduit IRAs. Conduit IRAs are individual retirement accounts to which certain distributions from a qualified retirement plan or from another individual retirement account have been transferred. RAP changes the rules regulating these IRAs so that workers leaving the for-profit, non-profit or governmental field can use a conduit IRA as a parking spot for a pre-retirement distribution. These special accounts are needed by many workers until they have another employer-sponsored plan in which to rollover their savings. In many instances, this bill will allow an individual to rollover an IRA consisting exclusively of tax-deductible contributions into a retirement plan at his or her new place of employment, thus helping the individual consolidate retirement savings in a single account. Under certain circumstances, the RAP Act will also allow workers to rollover any after-tax contributions made at his or her previous workplace, into a new retirement plan. Under the provisions of the bill as drafted, after-tax contributions will be rollable from a plan to an IRA and from an IRA to an IRA, but not from a IRA to a plan, nor on a direct plan to plan basis. I am open to recommendations on how we can improve the treatment of after-tax rollovers and I look forward to hearing from my colleagues and the public on that topic. Current law requires a worker who changes jobs to face a deadline of 60 days within which to roll over any retirement savings benefits either into an Individual Retirement Account, or into the retirement plan of his or her new employer. Failure to meet the deadline can result in both income and excise taxes being imposed on the account. We believe that this deadline should be waived under certain circumstances and we have outlined them in the bill. Consistent with the Pomeroy bill, in case of a Presidentially-declared natural disaster or military service in a combat zone, the Treasury Department will have the authority to disallow imposition of any tax penalty for the account holder. Consistent with the additional changes incorporated by Congressman Pomeroy this year, however, we have included a waiver of tax penalties in the case of undue hardship, such as a serious personal injury or illness and we have given the Department of the Treasury the authority to waive the deadline. The Retirement Account Portability Act will also change two complicated rules which harm both plan sponsors and plan participants; one dealing with certain business sales (the so-called ``same desk'' rule) and the other dealing with retirement plan distribution options. Each of these rules has impeded true portability of pensions and we believe they ought to be changed. In addition, this bill will extend the Pension Benefit Guaranty Corporation's (PBGC) Missing Participant program to defined benefit multiemployer pension plans. Under current law, the PBGC has jurisdiction over both single-employer and multiemployer defined benefit pension plans. A few years ago, the agency initiated a program to locate missing participants from terminated, single-employer plans. The program attempts to locate individuals who are due a benefit, but who have not filed for benefits owed to them, or who have attempted to find their former employer but failed to receive their benefits. This bill expands the missing participant program to multiemployer pension plans. I know of no reason why individuals covered by a multiemployer pension plans should not have the same protections as participants of single-employer pension plans and this change will help more former employees receive all the benefits to which they are entitled. This bill does not expand the missing participants program to defined contribution plans. Supervision of defined contribution plans is outside the statutory jurisdiction of the PBGC and I have not heard strong arguments for including those plans within the jurisdiction of the agency. I would be pleased to hear the recommendations of any of my colleagues on this matter. In a particularly important provision, the Retirement Account Portability bill will allow public school teachers and other state and local employees who move between different states and localities to use their savings in their section 403(b) plan or section 457 deferred compensation arrangement to purchase ``service credit'' in the defined benefit plan in which they are currently participating, and thus obtain greater pension benefits in the plan in which they conclude their career. As a final note, this bill, this bill does not reduce the vesting schedule from the current five year cliff vesting (or seven year graded) to a three year cliff or six year graded vesting schedule that has been contained in other bills. I support the shorter vesting schedules, but I feel that the abbreviated schedule makes a dramatic change to tax law without removing some of the disincentives to maintaining a pension plan that businesses--especially small businesses--desperately need. More discussion of this matter is needed. Mr. President, I ask unanimous consent that a copy of the bill be printed in the Record.

Mr. JEFFORDS

Mr. JEFFORDS. Mr. President, this amendment will go a long way toward ensuring the safety and healthy development of children of federal employees who are cared for in federally sponsored or operated child care centers. The Senate passed this amendment last year on the Treasury-Postal appropriations bill by unanimous consent. Unfortunately, it was dropped during the last few hours of the conference. So I am back again this year. In 1987, Congress passed the Trible amendment which permitted executive, legislative, and judicial branch agencies to utilize a portion of federally owned or leased space for the provision of child care services for federal employees. The General Services Administration (GSA) was given the authority to provide guidance, assistance, and oversight to federal agencies for the development of child care centers. In the decade since the Trible amendment was passed, hundreds of federal facilities throughout the nation have established onsite child care centers which are a tremendous help to our employees. As you know, Federal property is exempt from state and local laws, regulations, and oversight. What this means for child care centers on that property are not subject to even the most minimal health and safety standards. Even the most basic state and local health and safety requirements do not apply to child care centers Federal facilities. I find this very troubling, and I think we sell our federal employees a bill of goods when federally owned leased child care cannot guarantee that their children are in safe facilities. The Federal Government should set the example when it comes to providing safe child care. It should not be turn an apathetic shoulder from meeting such standards simply because state and local regulations do not apply to them. As Congress and the administration turn their spotlight on our nation's child care system, we must first get our own house in order. We must safeguard and protect the children receiving services in child care centers housed in federal facilities. Our employees should not be denied some assurance that the centers in which they place their children are accountable for meeting basic health and safety standards. This amendment will require all child care services located in federal facilities to meet, at the very least, the same level of health and safety standards required of other child care centers in the same geographical area. That sounds like common sense, but as we all know too well, common sense is not always reflected in the law. It should also be made clear that state and local standards should be a floor for basic health and safety, and not a ceiling. The role of the Federal Government--and, I believe, of the United States Congress in particular--is to constantly strive to do better and to lead by example. Federal facilities should always try to provide the highest quality of care. The GSA has required national accreditation in GSA- owned and leased facilities for years, and the majority of child care centers in GSA facilities are either in compliance with those accreditation standards or are strenuously working to get there. This is high quality of care towards which we should strive for in all of our Federal child care facilities. Federal child care should mean something more than simply location on a Federal facility. The Federal Government has an obligation to provide safe care for its employees, and it has a responsibility for making sure that those standards are monitored and enforced. Some Federal employees receive this guarantee. Many do not. We can and must do better. I urge my colleagues to support this amendment.

Mr. JEFFORDS

Mr. JEFFORDS. Mr. President, the amendment offered by the Senator from Illinois would strike the $17 million which is included in this bill to support a program offering tuition assistance to DC students who are pursuing postsecondary education. As the author of legislation to authorize this program, I strongly oppose the Durbin amendment. In crafting my legislation--which is cosponsored by Senators Hutchison, Warner, and Moynihan--I have been mindful of the need for fiscal responsibility. The $17 million included in the DC appropriations bill is the amount recommended in the President's budget. Although I would agree that any amounts above this figure should come from sources other than the Federal treasury, I do believe it is appropriate for the Federal government to participate in an effort to place DC students on an even keel with students in other parts of the country. The authorization process for the DC tuition bill is well underway. Under the leadership of Representative Tom Davis and DC Delegate Eleanor Holmes Norton, the House of Representatives approved ``The District of Columbia College Access Act'' without a dissenting vote. The Senate Subcommittee on Oversight of Government Management, Restructuring and the District of Columbia--chaired by Senator Voinovich--recently held a hearing on this initiative. I am working actively with him and other members of the Senate to move forward with sound legislation. The legislation I have introduced and the measure approved by the House share the same goal. That goal is to provide citizens of the District with a greater range of options in pursuing postsecondary education by having the Federal government offer support that, in other areas of the country, is provided by State governments. Throughout my career in Congress, I have made support for education one of my top priorities, and I have regarded the education of DC students as being an important part of my efforts. I am therefore delighted at the level of interest and support which the DC tuition concept has received. With respect to public postsecondary education, DC students exploring their options find they have a more limited set of choices than any other group of students in the country. A student in any of the 50 states who wishes to attend a public institution of higher education has a number of institutions among which to choose. That student can base his or her decision on considerations such as the size of the institution and the strengths of the various programs it offers. A student in the District of Columbia finds that only one public institution is available. As a practical matter, the District cannot expand its boundaries, nor can it establish a system of public higher education that can offer the diversity of offerings available in the various states. Every State provides support for higher education from which their residents benefit through lower in-state tuition, while out-of-state residents pay a premium to attend. I believe it is appropriate for the Federal government to assume the role of the State, effectively pushing the boundaries to a point where District students are placed on an equal footing in terms of the public education choices available to them. The legislation also recognizes that many District residents choose to attend one of the many private postsecondary institutions in the DC area. Many of these institutions have made extraordinary efforts to enable District residents to succeed in their pursuit of advanced education. A number of states have developed programs, such as the Virginia Tuition Assistance Grant (TAG), to assist students at private institutions in defraying costs. The program authorized in my bill is modeled after these initiatives. This legislation also complements not only those programs such as ``Everybody Wins!'' and the Potomac Regional Education Partnership (PREP) with which I have been directly involved, but also the many other initiatives undertaken by individuals and institutions who work tirelessly to nurture the potential of the children of our Nation's capital. Members of the business community have recently launched a program known as the D.C. College Access Program (DC-CAP) which will offer both financial support for students pursuing postsecondary education and assistance to high school students to assure they are prepared to tackle the challenges of higher learning. An investment in education is one of the most important investments we as a society and we as individuals can make. There are boundless opportunities in the DC area for individuals with education and training beyond high school. DC residents should not be left behind in obtaining the capacity to take advantage of these opportunities.

Mr. JEFFORDS

Mr. JEFFORDS. Mr. President, today I am pleased to introduce with Senator Kerry, Senator Grams, and Senator Wellstone the Affordable Housing Preservation Act of 1999. My work on this bill began several weeks ago out of discussions with Vermont housing advocates and private section 8 property owners, and as well as with Senator Allard, Senator Grams and Senator Gramm during consideration of the Financial Modernization bill. We all acknowledge that this issue has rapidly become a serious national problem--one where thousands of low income elderly, disabled, and families with children are increasingly unable to afford privately-owned low income housing units. Housing and Urban Development Secretary Andrew Cuomo and Commissioner Apgar recently took the step of exercising authority provided by Congress to use additional vouchers to stem the tide of Section 8 opt outs and prepayments. The Affordable Housing Preservation Act will provide a more permanent solution to this crisis. The Jeffords/Kerry Affordable Housing Preservation Act will provide a longterm solution by building on local partnerships between non- profits, state and local governments, and private landlords to keep existing projects available for low income tenants. The bill preserves existing low income projects, as well as increase the units to expand a tight housing marketplace through new acquisition and rehabilitation. In Vermont rents have increased 11 percent over the past three years, making it increasingly difficult to find affordable shelter. To make matters worse, the lack of low income housing makes it simply impossible to find a place to live in areas like Burlington, where the vacancy rate is less than one percent. The need to preserve existing housing from opt outs and prepayments is only exceeded by the need to expand the number of housing units for low-income families, elderly and disabled. The affect of more Section 8 vouchers is undermined when there is nowhere to use them. On any given day in Burlington there are just 60 available rental units in a city of more than 40,000 people. In such circumstances, low income families cannot even find a place to live, much less find one that's affordable. This problem has been a key factor in increasing homelessness, as families seeking help from Burlington's emergency shelter rose over 60 percent between 1997 and 1998. As Section 8 federal subsidies come up for renewal more often, the risk of opt outs by private landlords increases. Housing projects in Brattleboro and Montpelier currently face opt out situations where landlords will raise rents to levels that Section 8 tenants cannot afford. The Affordable Housing Preservation Act will build foundations for cooperation where efforts to raise public and private money are enhanced through federal matching grants. Vermont's community based non-profit organizations have achieved much success by encouraging private landlords seeking to exit the affordable housing business to transfer ownership to these groups. Although ``sticky vouchers'' provide much needed short term relief, the Affordable Housing Preservation Act offers a long term solution to the opt out and prepayment problem by expanding community-based housing preservation and acquisition initiatives. This bill will give hope by providing help for those elderly, disabled, and families facing eviction or homelessness. I look forward to working with the Chairmen and Members of the Housing Committees in the Senate and House to fix this problem and provide a new direction for the nation in affordable housing.

Mr. JEFFORDS

Mr. JEFFORDS. Mr. President, today I am pleased to introduce with Senator Kerry, Senator Grams, and Senator Wellstone the Affordable Housing Preservation Act of 1999. My work on this bill began several weeks ago out of discussions with Vermont housing advocates and private section 8 property owners, and as well as with Senator Allard, Senator Grams and Senator Gramm during consideration of the Financial Modernization bill. We all acknowledge that this issue has rapidly become a serious national problem--one where thousands of low income elderly, disabled, and families with children are increasingly unable to afford privately-owned low income housing units. Housing and Urban Development Secretary Andrew Cuomo and Commissioner Apgar recently took the step of exercising authority provided by Congress to use additional vouchers to stem the tide of Section 8 opt outs and prepayments. The Affordable Housing Preservation Act will provide a more permanent solution to this crisis. The Jeffords/Kerry Affordable Housing Preservation Act will provide a longterm solution by building on local partnerships between non- profits, state and local governments, and private landlords to keep existing projects available for low income tenants. The bill preserves existing low income projects, as well as increase the units to expand a tight housing marketplace through new acquisition and rehabilitation. In Vermont rents have increased 11 percent over the past three years, making it increasingly difficult to find affordable shelter. To make matters worse, the lack of low income housing makes it simply impossible to find a place to live in areas like Burlington, where the vacancy rate is less than one percent. The need to preserve existing housing from opt outs and prepayments is only exceeded by the need to expand the number of housing units for low-income families, elderly and disabled. The affect of more Section 8 vouchers is undermined when there is nowhere to use them. On any given day in Burlington there are just 60 available rental units in a city of more than 40,000 people. In such circumstances, low income families cannot even find a place to live, much less find one that's affordable. This problem has been a key factor in increasing homelessness, as families seeking help from Burlington's emergency shelter rose over 60 percent between 1997 and 1998. As Section 8 federal subsidies come up for renewal more often, the risk of opt outs by private landlords increases. Housing projects in Brattleboro and Montpelier currently face opt out situations where landlords will raise rents to levels that Section 8 tenants cannot afford. The Affordable Housing Preservation Act will build foundations for cooperation where efforts to raise public and private money are enhanced through federal matching grants. Vermont's community based non-profit organizations have achieved much success by encouraging private landlords seeking to exit the affordable housing business to transfer ownership to these groups. Although ``sticky vouchers'' provide much needed short term relief, the Affordable Housing Preservation Act offers a long term solution to the opt out and prepayment problem by expanding community-based housing preservation and acquisition initiatives. This bill will give hope by providing help for those elderly, disabled, and families facing eviction or homelessness. I look forward to working with the Chairmen and Members of the Housing Committees in the Senate and House to fix this problem and provide a new direction for the nation in affordable housing.

Mr. JEFFORDS

Mr. JEFFORDS. Mr. President, I am delighted to be here today to introduce the Employment Non-Discrimination Act of 1999 (ENDA). I am here today because I believe that the principles of equality and opportunity should be applied to all Americans and that success at work should be based on performance, not prejudice. Unfortunately, qualified, hard-working Americans continue to be denied job opportunities based instead on sexual orientation. The Employment Non-Discrimination Act will help put an end to this insidious discrimination. By extending to sexual orientation the same federal employment discrimination protections established for race, religion, gender, national origin, age and disability, the Employment Non-Discrimination Act will further ensure that principals of equality and opportunity apply to all Americans. This bill is about fairness, this bill is about equality, this bill is about basic civil rights. This bill must pass this Congress. ENDA will achieve equal rights -- not ``special rights'' -- for gays and lesbians. This legislation prohibits preferential treatment based on sexual orientation. To remove any doubt, we have added language to expressly prohibit affirmative action on the basis of sexual orientation. ENDA does not require an employer to justify a neutral practice that may have a statistically disparate impact based on sexual orientation, nor provide benefits for the same-sex partner of an employee. Rather, it simply protects a right that should belong to every American, the right to be free from discrimination at work because of personal characteristics unrelated to successful performance on the job. We took a fresh look at ENDA and we have made a number of constructive changes this year. We have re-written the discrimination section to more closely track Title VII of the Civil Rights Act of 1964. This new language has the benefit of 35 years of legal interpretation. Employers and courts alike understand this language and what is expected under it. One concern that we have heard repeatedly during past debates is that this language will create a tidal wave of litigation. In Vermont, one of 11 states to have enacted a sexual-orientation anti-discrimination law, the legal waters have been more like the Tidal Basin. In the 9 years since the enactment of Vermont's law, Vermont's Attorney General has initiated only 25 investigations of alleged sexual orientation discrimination. Vermont is not unique. According to the GAO, none of the states with ENDA-type laws have experienced a wave of litigation. Instead, these states have ensured that employees working within their borders cannot be discriminated against for being gay. As I have stated before, success at work should be directly related to one's ability to do the job, period. We first introduced ENDA in 1994. Over the past six years, we have held hearings, listened to the concerns raised and revised this legislation to respond to those concerns. I am pleased to report that it was worth the effort because The Employment Non-Discrimination Act of 1999 is the best bill we have ever introduced. The time has come to make the Employment Non- Discrimination Act the law of the land. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. JEFFORDS

Mr. JEFFORDS. Mr. President, I am delighted to be here today to introduce the Employment Non-Discrimination Act of 1999 (ENDA). I am here today because I believe that the principles of equality and opportunity should be applied to all Americans and that success at work should be based on performance, not prejudice. Unfortunately, qualified, hard-working Americans continue to be denied job opportunities based instead on sexual orientation. The Employment Non-Discrimination Act will help put an end to this insidious discrimination. By extending to sexual orientation the same federal employment discrimination protections established for race, religion, gender, national origin, age and disability, the Employment Non-Discrimination Act will further ensure that principals of equality and opportunity apply to all Americans. This bill is about fairness, this bill is about equality, this bill is about basic civil rights. This bill must pass this Congress. ENDA will achieve equal rights -- not ``special rights'' -- for gays and lesbians. This legislation prohibits preferential treatment based on sexual orientation. To remove any doubt, we have added language to expressly prohibit affirmative action on the basis of sexual orientation. ENDA does not require an employer to justify a neutral practice that may have a statistically disparate impact based on sexual orientation, nor provide benefits for the same-sex partner of an employee. Rather, it simply protects a right that should belong to every American, the right to be free from discrimination at work because of personal characteristics unrelated to successful performance on the job. We took a fresh look at ENDA and we have made a number of constructive changes this year. We have re-written the discrimination section to more closely track Title VII of the Civil Rights Act of 1964. This new language has the benefit of 35 years of legal interpretation. Employers and courts alike understand this language and what is expected under it. One concern that we have heard repeatedly during past debates is that this language will create a tidal wave of litigation. In Vermont, one of 11 states to have enacted a sexual-orientation anti-discrimination law, the legal waters have been more like the Tidal Basin. In the 9 years since the enactment of Vermont's law, Vermont's Attorney General has initiated only 25 investigations of alleged sexual orientation discrimination. Vermont is not unique. According to the GAO, none of the states with ENDA-type laws have experienced a wave of litigation. Instead, these states have ensured that employees working within their borders cannot be discriminated against for being gay. As I have stated before, success at work should be directly related to one's ability to do the job, period. We first introduced ENDA in 1994. Over the past six years, we have held hearings, listened to the concerns raised and revised this legislation to respond to those concerns. I am pleased to report that it was worth the effort because The Employment Non-Discrimination Act of 1999 is the best bill we have ever introduced. The time has come to make the Employment Non- Discrimination Act the law of the land. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. JEFFORDS

Mr. JEFFORDS. On the Senator's time?

Mr. JEFFORDS. Mr. President, this is an important time for America to listen to this debate because the lives and health of individuals throughout this Nation are at stake. It is interesting to note, looking back to last year when the Democratic proposal came forward, at first they wanted it to be voted on immediately. Then we worked together on this side of the aisle and worked up a bill that we find is superior to theirs in many respects, which I will talk about later, and all of a sudden they didn't want to bring it up without 100 amendments. We could not get a time agreement to get to the bill. Even though some of the things sound quite dramatic and wonderful, when we analyze them, we find that in many respects we believe the majority's bill is superior. First of all, the Patients' Bill of Rights Act addresses those areas of health care quality on which there is a broad consensus. It is solid legislation that will result in a greatly improved health care system for all Americans. The Committee on Health, Education, Labor, and Pensions has been long dedicated to action in order to improve the quality of health care. Our commitment to developing appropriate managed care standards has been demonstrated by the 17 additional hearings related to health care quality. And Senator Frist's Public Health and Safety Subcommittee held three hearings on the work of the Agency for Health Care Policy and Research (AHCPR). Each of these hearings helped us in developing the separate pieces of legislation that are reflected in our Patients' Bill of Rights Act. People need to know what their plan will cover and how they will get their health care. The Patients' Bill of Rights requires full disclosure by an employer about the health plans it offers to employees. Patients also need to know how adverse decisions by a plan can be appealed, both internally and externally, to an independent medical reviewer. That is a critical difference. We emphasize good health care. Under our bill the reviewer's decision will be binding on the health plan. However, the patient will maintain his or her current rights to go to court. Timely utilization decisions and a defined process for appealing such decisions are the keys to restoring trust in the health care system. Our legislation also provides Americans covered by health insurance with new rights to prevent discrimination based on predictive genetic information. It ensures that medical decisions are made by physicians in consultation with their patients and are based on the best scientific evidence. And it provides a stronger emphasis on quality improvement in our health care system with a refocused role for AHCPR. The other bill uses the generally accepted practice in the area which can deviate very strongly from best medicine. We give you best medicine. Some believe that the answer to improving our nation's health care quality is to allow greater access to the tort system. However, you simply cannot sue your way to better health. We believe that patients must get the care they need when they need it, not just after they go to court in a lawsuit to repair the damage. In the ``Patients' Bill of Rights,'' we make sure each patient is afforded every opportunity to have the right treatment decision made by health care professionals. In the event that does occur, patients have the recourse of pursuing an outside appeal. Prevention, not litigation, is the best medicine. Our bill creates new, enforceable Federal health care standards to cover those 48 million of the 124 million Americans covered by employer-sponsored plans. These are the very same people that the States, through their regulation of private health insurance companies, cannot protect. What are these standards? They include: a prudent layperson standard for emergency care; a mandatory point of service option; direct access to OB/GYNs and pediatricians; continuity of care; a prohibition on gag rules; access to Medication; access to Specialists; and self-pay for behavioral health. It would be inappropriate to set Federal health insurance standards that duplicate the responsibility of the 50 State insurance departments. As the National Association of Insurance Commissioners, put it: ``(w)e do not want States to be preempted by Congressional or administrative ac tions. . . . Congress should focus attention on those consumers who have no protections in self-funded ERISA plans.'' Senator Kennedy's approach would set health insurance standards that duplicate the responsibility of the 50 State insurance departments. Worse yet, it would mandate that the Health Care Financing Administration (HCFA) enforce them if a State decides not to adopt them. Those of us who have been involved with this know what happened during the recent past when the HIPAA bill was passed on to HCFA. It was a mess. Almost nothing was getting done. HCFA cannot even keep up with its current responsibilities. This past recess Senator Leahy and I held a meeting in Vermont to let New England home health providers meet with HCFA. It was a packed and angry house, with providers traveling from New Hampshire, Massachusetts, and Connecticut. It is in no one's best interest to build a dual system of overlapping State and Federal health insurance regulation. Increasing health insurance premiums causes significant losses in coverage. This is the main difference. You can promise a lot of things when you try to do them. But if the result of what you do is that up to 1 million people lose coverage because of the increased cost, that is not the way we ought to go. The Congressional Budget Office (CBO) pegged the cost of the Democratic bill at six times higher than S. 326. Based on our best estimates, passage of the Democratic bill would result in a loss of coverage for over 1.5 million working Americans and their families. To put this in perspective, this would mean that would have their family's coverage canceled under the Democratic bill.

Mr. JEFFORDS. Mr. President, the GAO report examines two reports done by the Lewin Group on the impact of premium increases on coverage. A 1997 report by Lewin indicates that a 1% increase will result in 400,000 losing coverage. A 1998 report by Lewin for the AFL/CIO indicates that a 1% increase will result in 300,000 Americans losing coverage. It is this lower number that I used.

Mr. JEFFORDS. Let me repeat that. Adoption of the Democratic approach would cancel the insurance policies of almost a million and half Americans. I cannot support legislation that would result in the loss of health insurance coverage for a population the size covered in the combined states of Vermont, Delaware, South Dakota, and Wyoming. Fortunately, we can provide the key protections that consumers want at a minimal cost and without disruption of coverage--if we apply these protections responsibly and where they are needed. In sharp contrast to the Democratic alternative, our bill would actually increase coverage. With the additional of the Tax Code provisions to S. 326, the Patients' Bill of Rights Act, our bill allows for the full deduction of health insurance for the self-employed, the full availability of medical savings accounts and the carryover of unused benefits from flexible spending accounts. With the new Patients' Bill of Rights Plus Act we provide Americans with greater choice to more affordable health insurance. S. 326, the Patients' Bill of Rights Act, provides necessary consumer protections without adding significant new costs; without increasing litigation; and without micro-managing health plans. I also point out that under the law a doctor is still open to suit. Although they are prescribed health plans, the doctors are liable. Our goal is to give Americans the protections they want and need in a package that they can afford and that we can enact. This is why I hope the Patients' Bill of Rights that we are offering today will be enacted and signed into law by the President. I believe very strongly that the advantages we get, especially that we require, the standard of best medicine, and not just the medicine that is generally used in the area is by far a much better protection for the people we are trying to protect--the patients--than the Democrat's Patient's Bill of Rights. Mr. President, I yield the floor. Exhibit 1 General Accounting Office, Health, Education and Human Services Division, Washington, DC, July 7, 1998. Subject: Private Health Insurance: Impact of Premium Increases on the Number of Covered Individuals Is Uncertain Hon. James M. Jeffords, Chairman, Committee on Labor and Human Resources, U.S. Senate. Dear Mr. Chairman: Almost 150 million individuals obtained health insurance through the workplace in 1996, either through their own employment or the employment of a family member. During the last several years, an increasing number of individuals with employer-sponsored insurance have enrolled in some form of managed care rather than in fee-for- service plans. Recently, concerns have grown regarding the ways in which some managed care plans operate and the adequacy of information shared between each plan, its providers, and its members. In response to these concerns, several legislative proposals have been made to require health insurance plans to adopt specified operational practices. The proposals apply to all types of plans, but would likely have their greatest impact on health maintenance organizations (HMO). Other types of plans, such as preferred provider organizations (PPO) and indemnity, or fee-for-service, plans, will likely be affected to a lesser degree. Included in various proposals are requirements, for example, to disclose certain information,\1\ guarantee patient access to emergency and specialty services, implement internal and external grievance policies, guarantee freedom of communication between providers and patients, and eliminate the Employee Retirement Income Security Act of 1974 (ERISA) restrictions on health plan liability. --------------------------------------------------------------------------- \1\Footnotes at end of Report. (Figure not reproducible in Record.) --------------------------------------------------------------------------- However, some lawmakers are concerned that these types of mandates could increase the cost of health insurance and have the unintended consequence of reducing the number of individuals covered by private health insurance. This letter responds to your request for information on the relationship between the amount charged for private health insurance and the number of insured individuals. You also asked us to analyze the basis for a widely cited statistic from the Lewin Group, a private research and consulting organization, that the number of insured individuals would fall by 400,000 for every 1-percent increase in health insurance premiums. Specifically, we (1) examined the trends in employers' decisions to offer insurance and employees' decisions to purchase it, (2) assessed the methodology used by the Lewin Group to support its 400,000 coverage loss estimate, (3) assessed the methodology used by the Lewin Group to produce its most recent estimates, and (4) evaluated conditions or factors that could affect the impact of premium increases on insurance coverage. To conduct our study, we reviewed relevant published research. We also evaluated the applicability of the Lewin Group's estimates given the data, methods, and assumptions it used to produce its estimates. We performed our work between May 1998 and June 1998 in accordance with generally accepted government auditing standards. In summary, during a period of rising health insurance premiums, the proportion of employees offered coverage rose, while the share that accepted insurance fell. Between 1988 and 1996, health insurance premiums increased, on average, by approximately 8 percent per year.\2\ During roughly the same period, 1987 to 1996, the proportion of workers who were offered insurance by their employers rose from 72.4 percent to 75.4 percent, according to one recent study.\3\ The same study found that the proportion of workers who accepted coverage, however, fell from 88.3 percent to 80.1 percent. This may be because employers required employees to pay a larger share of the premiums.\4\ In 1988, employees in small firms (fewer than 200 workers) paid an average of 12 percent of single-coverage premiums. Employees in large firms paid about 13 percent.\5\ By 1996, the employee share had risen to 33 percent in small firms and 22 percent in large firms. Other factors, such as decreases in some workers' real incomes, Medicaid-eligibility expansions, and changes in benefit generosity, also may have contributed to the fall in the acceptance rate. In November, 1997, the Lewin Group used published studies to estimate that 400,000 fewer individuals would have health insurance coverage for every 1 percent increase in insurance premiums.\6\ Several of these studies had sought to quantify the impact of subsidized insurance premiums on the increase in the number of employers offering insurance. The Lewin Group concluded from these studies that a 1-percent decrease in premiums would likely induce an additional 0.4 percent of employers to offer insurance. It then assumed that an increase in premiums might cause a similar percentage of firms to drop health insurance coverage and cause 400,000 individuals to be without coverage. The findings of more recent studies, however, call into question the basis for the Lewin Group's estimate. Although these studies did not quantify the relationship between premium increases and changes in the number of employees with coverage, they clearly show that employers generally continued to offer insurance during a period of rising premiums but that fewer employees decided to purchase coverage. The estimate also assumes equal premium increases for all types of insurance products. If new federal mandates primarily affect HMO premiums, some employees may switch to other types of insurance--especially insurance with different benefit packages--instead of dropping coverage entirely. Thus, the Lewin Group's estimate may not be a good predictor of the coverage loss that might be caused by new federal mandates. In January 1998, the Lewin Group lowered its estimate of potential coverage losses by about 25 percent.\7\ It now estimates that a 1-percent premium increase could result in approximately 300,000 fewer individuals being covered by private insurance. The new estimate is based on the Lewin Group's statistical analysis of the relationship between how much employees pay for insurance and the probability that they, their spouses, and their dependent children have employer-sponsored health insurance. However, it is unclear how accurately the Lewin Group was able to measure the price paid by the individuals in its sample. Moreover, the new estimate applies to situations in which premiums for all insurance types increase, on average, by 1 percent. If premiums increase by 1 percent only for some insurance types (for example, HMOs), then the coverage loss predicted by the Lewin Group would be less than 300,000. Because many factors can affect the number of individuals covered by private insurance, it is difficult to predict the impact of an increase in insurance premiums. For example, new mandates may increase premiums but may also change individuals' willingness to purchase insurance. Individuals may not mind paying higher premiums if they like the changes brought about by the mandates. The extent to which employers pass on premium increases to employees also can affect coverage by influencing employees' purchasing decisions. Another important determinant is the extent to which employees switch from plans with high premium increases to plans with no or low premium increases, or to less expensive plans with more limited benefits. Finally, changes in other economic factors, such as income, or changes in public insurance program eligibility requirements can affect the number of individuals with private health insurance. background Between 1995 and 1997, real health insurance premiums (adjusted for inflation) remained nearly constant or fell slightly across all plan types. (See table 1.) This represents a sharp decline from the previous 5 years, in which inflation- adjusted growth was as high as 11.6 percent for indemnity plans and 10.6 percent for HMO plans in 1990.

Mr. JEFFORDS. I would be happy to make that a part of the Record, yes. I ask unanimous consent that the letter be printed in the Record at the conclusion of my remarks.

Mr. JEFFORDS. Yes.

Mr. JEFFORDS

Mr. JEFFORDS. Mr. President, I am introducing today, with Senators Hatch and Gorton, the Hospital Outpatient Preservation Act of 1999. The Congress passed landmark legislation in 1997, the Balanced Budget Act. The BBA has played an important role in ensuring the integrity of the Medicare program, but our good intentions to rein in costs went too far, too fast in some areas. In fact, I fear that our zeal may result in decreased access to care and lower quality of care for Medicare beneficiaries if we do not act to soften the impact of BBA implementation on health care providers. I am particularly concerned about the consequences of payment cuts under BBA for Vermont's hospitals and health systems. Norman Wright, President of the Vermont Hospital and Health Systems Association, has said, ``It is clear that the outpatient prospective payment system being implemented from Washington poses a real threat to the continuation of quality services being provided by Vermont hospital outpatient departments.'' Through the Hospital Outpatient Preservation Act of 1999, we are seeking to address concerns about outpatient reimbursement cuts for hospitals. The BBA requires the implementation of a prospective payment system (PPS) for the reimbursement of Medicare hospital outpatient department services to control rising costs in that area, as the provision of care has shifted from inpatient to less costly outpatient services. Our proposed legislation would amend BBA '97 by temporarily limiting the reduction in payments under the new outpatient PPS for outpatient department services to give hospitals a period to adjust to the reimbursement cuts. Medicare outpatient margins, already negative in 1999, are estimated to drop to a negative 28.8 percent if costs increase at a historical rate of growth, and to a negative 20.3 percent if costs increase more slowly. The Health Care Financing Administration's analysis of its proposed rule on the implementation of outpatient PPS found that average reductions in outpatient department services reimbursement for all hospitals would be 4 percent, but that the reimbursement to low-volume hospitals would decline by an average of 17 percent. For example, Southwestern Vermont Medical Center in Bennington, Vermont, is estimated to experience a 16 percent decline in payment. The Chief Executive Officer of Mt. Ascutney Hospital in Ascutney, Vermont, stated, ``The new outpatient prospective payment methodology would cut our reimbursement to the point that our operating margin would be in jeopardy. This coming on the heels of other cuts has an additive negative effect.'' If vulnerable rural hospitals are not provided a gradual transition period to reorganize operations, such a large decline in reimbursement could spell financial disaster. Teaching hospitals are also projected to sustain a greater than average loss under the new methodology. I am concerned that financial cutbacks of this magnitude could impact the access to care and the quality of care provided to Medicare beneficiaries by hospitals that are already ailing under payment cuts for Medicare inpatient services and from managed organization payment cuts. The ``Hospital Outpatient Preservation Act of 1999'' would limit a hospital's losses for covered outpatient department services furnished prior to and during the first full calendar year of outpatient PPS implementation to 5 percent, so that a hospital would receive no less than 95 percent of what the hospital would have been paid under the current reimbursement mechanism. In the second year, the maximum payment loss would be 10 percent, and in the third year, 15 percent. There would be no limit after the third year. The BBA went too far, too fast in cutting costs, and now it's time to find the right balance by swinging the pendulum back toward quality. The Hospital Outpatient Preservation Act of 1999 would address one area of concern by providing a phased implementation period of three years to allow hospitals, particularly the hardest hit rural and major teaching hospitals, time to adjust to the cuts in reimbursement. Through such legislation, we can maintain the financial integrity of the Medicare program, while guaranteeing access to high-quality health care services for Medicare beneficiaries.

Mr. JEFFORDS

Mr. JEFFORDS. Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be granted permission to meet during the session of the Senate on Tuesday, June 22, for purposes of conducting a full committee hearing which is scheduled to begin at 2:30 p.m. The purpose of this oversight hearing is to explore the effectiveness of existing federal and industry efforts to promote distributed generating technologies, including solar, wind, fuel cells, and microturbines, as well as regulatory and other barriers to their widespread use.

Mr. JEFFORDS. Mr. President, I ask unanimous consent that the Subcommittee on Western Hemisphere, Peace Corps, Narcotics and Terrorism be authorized to meet during the session of the Senate on Tuesday, June 22, 1999 at 10:00 a.m. to hold a hearing.

Mr. JEFFORDS. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Tuesday, June 22, 1999 immediately following the 10:00 a.m. hearing to hold a hearing.

Mr. JEFFORDS. Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on Tuesday, June 22, 1999 at 9:30 a.m. to hold an open joint hearing on the PFIAB DOE.