Ted Kennedy

Mr. KENNEDY

Mr. KENNEDY. I commend his work and congratulate him on passage of this bill. I look forward to working with the Senator from Tennessee and others to build on this important start and draft bipartisan legislation in the next session to address the unique health and health care needs of minority and underserved populations.

Mr. KENNEDY

Mr. KENNEDY. There was a time in America when our citizens worked hard their entire lives and prepared themselves as well as they could for their own retirement. But for millions of Americans, retirement meant misery, poverty and abandonment. They were on their own with no financial security and no health care in what was called, with great irony, the golden years of their lives. But all that changed in the wake of the Great Depression. The scandalous neglect and serious hardship of the elderly was no longer tolerable. In the 1930s, Congress and the administration made a promise to our people. We guaranteed that any American who works hard, plays by the rules, and pays taxes will earn well-deserved financial security in retirement. A generation later, we added health care to that commitment. And ever since, the two most successful and beloved programs in the nation have been Social Security and Medicare. The legislation before us today is a shameful attempt to break that promise. It's a right wing Republican assault on Medicare in the guise of a prescription drug program, and Republicans know it. They know that this bill will force millions of seniors into HMOs, and deny them their choice of doctor and hospital. They know that this bill does nothing to control the skyrocketing cost of prescription drugs. They know that it's a fat deal for HMOs and pharmaceutical companies--and a raw deal for the elderly. They know it's a dress rehearsal for the coming assault on social security. It's a con job on America's seniors, and they are trying to rush it through Congress before anyone knows what's going on. Why else would Republicans rig a vote to pass it in the House of Representatives in the dead of night? Why else would they shamelessly ram it through the Senate over a weekend? Why else would they vote to overturn the senate rules so that this conference report can pass? In the few hours of this debate, the proponents of this flawed legislation have described their proposal in the most benign--and misleading--terms. They say that this bill gives seniors the freedom to choose among competing plans. They say at least it gives protection to the poorest of seniors. They say it will lower drug prices through competition. They are absolutely wrong on all of these points. This partisan proposal has been carefully and coldly calculated, not to protect Medicare but to destroy it, and leave the millions of senior citizens who rely on it today without a lifeline in the future. It is the first step towards a total dismantling of Medicare. In exchange for destroying Medicare, it offers senior citizens a limited and inadequate drug benefit. The moment it is implemented, it will make nine million senior citizens--almost one quarter of all senior citizens--worse off than they are today. Seniors already have the most important choice they want--the choice of the doctors and hospitals they trust. That it the choice they will lose if they are forced to join HMOs or other programs that say an insurance company will choose their doctor for them. Senior citizens already have the choice to join a private insurance plan competing with Medicare if they choose. But nine out of ten prefer to keep their Medicare. The bipartisan bill that passed the Senate earlier this year provided a reasonable additional choice--to receive prescription drug coverage under Medicare, or to receive that coverage through a private-sector drug plan. But the conference report adopted the unacceptable House approach of ending Medicare as we know it. It establishes a massive demonstration program that will subject seven million senior citizens--one out of every six--to a so-called premium support program. The only purpose of premium support is to raise the premium in regular Medicare so that senior citizens will have to join HMOs to get affordable health care. That's not competition. That's compulsion. If that weren't bad enough, the conference report lavishes massive subsidies on HMOs and other private insurers to help them ``compete.'' For every senior citizen who joins an HMO, the government will pay a 25 percent mark-up--almost $2,000--more than it would cost to provide that same senior citizen with the same service under Medicare. As a result of this bill, insurance company revenues will increase by $150 billion a year. That's not competition. It's corporate welfare. It's robbing Medicare and robbing senior citizens to enrich powerful special interests and big campaign contributors. It's creating a grossly tilted playing field on which Medicare cannot compete and senior citizens will be the losers. Proponents of this plan admit that the benefits for most seniors are small. But, they say, look at how much we are helping low income seniors. What they don't say is that 6 million of the poorest of the poor senior citizens and disabled beneficiaries who currently receive drug benefits under this bill will actually be worse off. Medicaid will be prohibited from supplementing Medicare coverage. These poorest of the poor will find the cost of the drugs they need increased and their access to needed medicines reduced. Their rates of hospitalization, injury, and even death will go up. In addition, almost 3 million seniors, many with low incomes, with good retirement drug coverage today will lose it as the result of this bill. That's not progress. It's a massive retreat. As the old saying goes, our Republican Colleagues really do love the poor, because they are creating so many of them. Some low income seniors may get better drug coverage under this plan, but only at the price of the destruction of the Medicare that all seniors love, low and moderate income alike. No senior citizen should be faced with this Sophie's choice between the drug benefits they need and the dismantled Medicare they will face under the GOP plan. We passed a bipartisan bill in the Senate and that did not sacrifice Medicare on the altar of right-wing ideology. If we voted down the destructive, partisan bill before us, the Senate will have another opportunity to do the job right. The drug industry too will reap a bonanza under this bill. If prescription drug prices continue to rise at double-digit rates, the minimal savings this bill provides to the average senior will be wiped out in no time by higher drug costs. This bill does nothing meaningful to hold prices down. In fact, far from moderating increases in drug costs, the Congressional Budget Office estimates that they will actually rise as the result of this legislation. No wonder the stock of our four leading drug companies went up $8 billion today. It doesn't allow drugs to be imported from Canada. It even bans the Secretary of HHS from bargaining for better drug prices for Medicare. The Senate is on trial today, and we will soon vote on whether to stop this charade. I urge my colleagues to stand up and fight. Fight it for the worker who paid into his company's' retirement fund for 20 years. Fight for the three million retirees like him who will lost their health insurance because of this bill. Fight for city workers like those in Springfield, MA, whose brave mayor plans to obtain cheaper prescription drugs for them from Canada. Fight it for the elderly grandmother on Medicaid, and the 7 million poor Americans like her, who count every penny, who can't begin to pay for their prescription drugs under this bill. Fight for the 36 million seniors who want to stay in the Medicare they love, and with the doctors and hospitals they choose. Fight it to keep billions and billions of Medicare dollars that come out of your paycheck from lining the pocketbooks of big drug companies and HMOs. That's your money going to your Medicare, and it should pay for your prescription drugs, not inflated profits of the drug industry and the insurance industry. Fight for a nation that keeps its commitments to our seniors--who fought our wars, raised our families, and built our economy. How can we turn our backs on them now? The more the American people learn about this legislation, the more they dislike it. The more senior citizens learn about it, the more they oppose it. Let us not turn our back on Medicare now. Let us not turn our back on senior citizens so that insurance companies and pharmaceutical companies can earn higher profits. Let us vote no on the disgraceful bill, and come back and do the job right. And we will do that job right, even if it takes the election of a new Congress and a new President to do it. The Democratic Party fought for years to enact Medicare. We will fight for as long as it takes to save Medicare and to provide senior citizens the comprehensive prescription drug benefit they need. We will fight today. We will fight this year. We will fight next year. We will fight this issue in every State and congressional district in 2004--and we'll keep fighting until, once again, the fundamental values of compassion and justice rate higher than more wealth for those who are already wealthy, and more power for those who are already powerful. For those who have not been following this debate in detail, let me review the particulars of this conference report. The more the American people understand what this bill does, the more they will demand that it be rejected. Medicare is a solemn commitment between the government and the people. It says, ``Pay into the system during your working years, and we will guarantee you affordable, quality health care in your retirement years.'' For 40 years, a fundamental part of that commitment is a guarantee that senior citizens can choose the doctors and hospitals they trust to provide them the medical care they need. Today, there are those who want to break that commitment. They want to force the elderly into HMOs, where insurance company bureaucrats, not patients, choose the doctor. They want to replace the solid guarantee of affordable Medicare anywhere in the country with a system where what you pay depends where you live. They want to take our country back to the 19th century, when Government was by the wealthy and powerful and for the wealthy and powerful--and the weak, the poor, the members of working families, and the elderly were left out and left behind. For a number of years, we have been working to improve Medicare by adding a much-needed prescription drug benefit. Democrats and Republicans alike have campaigned on that issue. Democrats and Republicans alike have promised senior citizens and their families to fill the largest gap in Medicare protection--its failure to cover the high cost of prescription drugs. How in the world, the American people are asking, did we get from that non-partisan objective of improving the Medicare program with a prescription drug benefit to a partisan proposal to radically alter Medicare for the benefit of the insurance industry? In July, the United States Senate passed a bipartisan program to add prescription drug coverage to Medicare. Seventy-six members of the Senate, Republicans and Democrats alike voted for the legislation. Ten Republicans and 10 Democrats voted no. By contrast, the House of Representatives passed a bill to radically change Medicare. It included prescription drug coverage--but only as a trojan horse for the radical changes that were their real objective. Their bill was designed to privatize Medicare, to force senior citizens to join HMOs and other private insurance plans, and to benefit the wealthy and powerful at the expense of senior citizens. It was a radical program designed to by those who, in their arrogance, believe they know what is best for senior citizens. Senior citizens may not want to join HMOs or other private insurers--but in the view of the writers of this legislation, that's because they just don't know what's good for them. The House bill picked up where President Bush left off. The President proposed that senior citizens couldn't get a prescription drug benefit at all unless they joined an HMO or other private insurance plan. That plan generated such a wave of public outrage that Republicans had to withdraw it. But the House bill achieved the same objective by proposals that were less blatant but equally effective. Because the House bill was about radically restructuring Medicare according to the right wing blueprint, it could not command bipartisan support. It passed by the House by a narrow partisan majority of a single vote. The report the conference produced--with all but two of the Democratic conferees excluded from the deliberations--was the partisan House proposal all over again. That's why the vote in the House this morning was just as partisan, just as narrow, and only achieved by the most extraordinary perversion of House rules. Now it is up to the Senate to prevent this travesty from becoming law. This is no longer a bill to provide senior citizens a drug benefit. It is a bill to reward powerful special interest and to force senior citizens into the unloving arms of HMOs and insurance companies. It is a right wing program to privatize and voucherize Medicare. It asks the elderly to swallow unprecedented and destructive changes to the Medicare program in return for a limited, inadequate, small prescription drug benefit. It does nothing to drug costs. It gives the pharmaceutical industry a free ride--and sticks senior citizens with the bill. And this conference report is so ill-conceived that not only does it put the whole Medicare program at risk; it makes nine million seniors--almost one-quarter of the Medicare population worse off the day this program is implemented than they are today. One of the most important of these destructive changes is a concept called ``premium support.'' It should really be called senior citizen coercion support, or maybe it's called ``premium support'' because it uses Medicare premiums to support HMO profits. It replaces the stable, reliable premium that senior citizens pay for Medicare today with an unstable, unaffordable premium. Here's how it works. Today, Medicare premiums are set at 75 percent of the costs for Part B of the Medicare program, the part that pays for doctor care. Beneficiaries pay the remaining 25 percent. The premium is the same no matter where you live. It increases from year to year at the same rate as Medicare doctor costs. It is a stable, reliable amount. Premium support stands this system on its head. The Government contribution to private plans would no longer be based on a fixed amount. Neither would the charges to Medicare beneficiaries. Instead, the Government contribution to both private plans and Medicare would be based on the average of what plans charge and Medicare costs. If plan charges were lower than Medicare costs, the Government payment to Medicare will go down--and Medicare premiums will go up. And instead of Medicare premiums being a single, reliable, fixed amount that goes up only with increases in Medicare costs, Medicare premiums will be different in every county in the country. And they will fluctuate wildly from year to year, depending on what private plans choose to do and how many people enroll in them. We all know what is going on. Insurance companies can make big money by offering low-cost health insurance to healthy senior citizens. This program will drain healthy seniors from Medicare, and leave behind those who are sick and need help the most. It will send Medicare premiums through the roof--and it leave the elderly and disabled in the cellar holding the bag. Under premium support, the administration's own estimates show that average Medicare premiums will initially jump 25 percent. Several years ago, the estimate was a whopping 47 percent. The truth is that no one really knows how high Medicare premiums could rise. But we do know this. Over time, the increase will become higher and higher. And that's just average premiums. Under premium support, how much you pay will depend on where you live and the amount could change dramatically from year to year. In my own state of Massachusetts, a senior citizen who happens to live in Barnstable county will pay $500 a year more for their Medicare than one who lives in Hampden County. In Florida, you will pay $900 in Osceola and $2,000 if you live in Dade County. And it's the same all over the country. In Washington State, you'll pay $1,225 if you live in San Juan and $700 if you live in Clark. In California, you'll pay $1,700 if you live in Los Angeles and $775 if you live in Yolo. In Oregon, you'll pay $1,325 if you live in Yamhill and $675 if you live in Columbia. Why would anyone want to make these destructive changes to the Medicare program that has served senior citizens so well for almost forty years? The answer is a radical ideology that says Medicare is bad. HMOs and PPOs are good. And if senior citizens don't agree, we'll make sure that their premiums keep going up until they are forced to give up the doctors they trust to get the medical care they need. Some of supporters of this program claim it is just a demonstration-- nothing to get excited about. But it's not a demonstration. It is a vast social experiment using senor citizens as guinea pigs. Under the terms of the demonstration, 7 million senor citizens could be forced into this program. That's one out of every six seniors in the country. Half the States in this chamber have local areas where senior citizens could be forced to take part in this demonstration. And that is just today. Tomorrow, the proponents of this misguided policy will ram through changes that will force 10 million senior citizens, or 20 million, or the whole country into this plan. If we pass this bill, we're not just putting the camel's nose under the tent. We're putting the head and the hump in, too. The people who support this program make no secret of what they want to do. They are on record as thinking the Medicare is outdated, that it should be scrapped, and that seniors should be forced into HMOs. That's the same philosophy the President embraced when he initially proposed to give senior citizens a drug benefit only if they joined an HMO or PPO. I respect their opinions, but it is wrong to use senior citizen's need for prescription drugs as a club to force through a radical change in Medicare that could never pass muster on its own. Premium support is only one of the ways that this plan would privatize Medicare and force senior citizens to choose between the doctors they trust and the prescription drugs they need. The conference report pumps up the payment to private plans to a level where Medicare could be uncompetitive. It's fiscally irresponsible and unfair. It's using the elderly's own Medicare money to destroy the program they depend on. The bill lavishes largesse on the private sector by stealing from Medicare in three ways. First, the payment formula in the conference report is the same as the House's--and it raises payments to private plans so that they are 109 percent of Medicare's costs for caring for the same person. Is that not odd? The private sector is supposed to be more efficient and save Medicare money--but Medicare, under this report, is paying them 9 percent more than it would provide Medicare to cover the same services. But that is only the beginning. According to the CMS's own studies, Medicare pays an additional 16 percent in excess of Medicare's own costs to private insurance companies because the senior citizens who join Medicare HMOs are healthier than those who do not. So under this bill, Medicare is going to be paying a 25 percent markup for every senior citizen that goes into an HMO--nine percent for the payment differential put into this bill and 16 percent for the health differential--and that is before you add in a $12 billion slush fund for PPOs that this bill also contains. The Medicare trust fund--that today's retirees paid into and rely on--will be robbed to lavish billions of dollars on HMOs and insurance companies. Senior citizens will pay for this largesse not only in the depletion of the Medicare trust fund, not only in lesser resources for benefits they need, but in higher Medicare premiums. Why? So HMOs and insurance companies can profit. Last week, I released a new report by the staff of the Health Committee analyzing the impact of this program on HMO and insurance industry revenues and profits. The data is drawn from the projections of the Medicare actuary, the Medicare Trustee's report, and publicly reported data on the insurance industry. The results are sobering. As the result of this bill, annual revenues of the insurance industry will increase by an incredible $150 billion a year. Profits from Medicare business will increase by 500 percent. And this huge bonanza to the private insurance industry will, in the words of the Medicare actuary, ``increase Medicare costs significantly.'' I ask unanimous consent that the study be printed in the Record.

Mr. KENNEDY. Mr. President, there you have it. This legislation is by the insurance industry, for the insurance industry, and of the insurance industry. It is about privatizing Medicare so that HMOs can improve their bottom line and raise their stock prices. Senior citizens should not be forced to give up the doctors they trust to get the medical care they need. The only rationale for this misguided policy is an ideology that says higher profits for powerful special interests is the highest public good. No wonder President Bush and the Republic leadership is fighting so hard for this bill. No wonder they are insisting on radical changes to Medicare that have nothing to do with prescription drug coverage for senior citizens. And no wonder senior citizens all over this country-- and the organizations that represent them--are outraged and urging members of Congress to vote no. The two most beloved and effective programs our government has ever created are Medicare and Social Security. Every American should understand that this debate is the dress rehearsal for the coming assault on Social Security. If the Republicans are successful with the legislation we are considering, they will have turned over Medicare to the insurance industry, so that their powerful friends can reap huge profits at the expense of senior citizens. But that is just the beginning. Once the HMOs and health insurance companies get their cut, it will be time for the stock brokers and the bankers. A story in the Washington Post yesterday exposed the Republican plan. It said: President Bush's aides are reviving his long-shelved plan to let workers divert some Social Security taxes into stocks as a reelection issue, gambling that market drops have not soured voters on the politically risky idea. It goes on: A Republican official said the White House has signaled Capital Hill that Bush's campaign ``wants to spend a lot of money'' on advertising promoting the issue. A presidential advisor says that Bush is intent on being able to say that reworking Social Security is ``part of my mandate.'' Aides said Karl Rove, Bush's senior advisor, has argued internally and to the President's key supporters that recent polling and election results show that changing Social Security is no longer the ``third rail of American politics.'' The article concludes: Republican leadership aides on capital hill said [the Social Security issue] is more likely to be a winner if Congress passes the G.O.P. plan to add a prescription drug benefit to Medicare. There it is, in the Republicans own words. Hold on to your hat. Today, Medicare, Tomorrow, Social Security. It is no wonder that the Republican leadership wants to rush this bill through. It is no wonder that the House leadership violated its pledge to allow the members three days to review it. This bill can't stand the light of day. Every hour that passes, we find more outrageous provisions tucked away in this 600 plus page bill. Let me review for the members some of the things that have been uncovered in just the last twenty-four hours. The legislation the Senate approved earlier this year included an effective guarantee that seniors who wanted to remain in traditional Medicare would have a choice of at least two prescription drug only plans. If this simple two-plan test was not met for any reason, the Federal government would provide a fallback plan. This assured that seniors who wanted to stay in Medicare would have a choice of plans to provide their drug benefit--or the Federal Government would provide the benefit directly, as it does other Medicare benefits. The supporters of the conference report claim that they have guaranteed that every senior could stay in Medicare and get their prescription drugs from the government if the private sector doesn't provide a choice of two plans. What they don't say is that their two- plan requirement would be fulfilled if there is only one drug only plan and one PPO in an area. That means that seniors have to take what one-drug only plan offers-- no matter how high-priced, no matter how inadequate the formulary, no matter how poor the service--or be forced to leave Medicare. It looks like President Bush's plan to deny senior citizens drug coverage unless they give up their Medicare and their right to choose a doctor hasn't been scrapped; it has just been repackaged. The supporters of this conference report tout the limited $600 benefit that some very low income senior citizens will get next year along with their prescription drug card. But what they don't say is that the price of getting this benefit is your loss of personal privacy. Major corporations will have unfettered access to your tax records--without so much as a ``by your leave?'' All those of you who think that's a good idea will love this bill--but anyone who thinks that drug companies and insurance companies have no business prying into your financial records had better call your Senator to tell them to reject this legislation. To comply with the bill's requirement that these drug benefits are tied to a person's income, the bill allows HHS to disclose a senior's tax records to any ``offices, employees, or contractors'' of the Department of Health and Human Services. That's practically anyone-- including the huge corporations that run the drug card programs. In the words of the bill, just applying for the card ``shall be deemed consent'' for this monstrous invasion of privacy. Another dirty little secret tucked away in this drug bill is the freedom it gives the insurance companies offering the drug benefit to construct their formularies so that senior citizens can be sure that there will be a drug to meet their needs on the formularies. The conference report says that there must at least two drugs on the formulary in each therapeutic class. The Senate bill says the therapeutic classes must be approved by the Secretary. The conference report says the plan gets to decide. The plan could decide to make a category as broad as pain-killers and leave the senior citizen with a choice of aspirin or Tylenol--and no access to the more sophisticated drugs that so many must use. Whether the issue is choice of drug plans, or privacy of tax records, or availability of drugs the senior needs, or the size of the PPO slush fund, this bill is not what has been advertised. No wonder Republicans want to get the legislation off the Senate floor and onto the President's desk before all the rocks are turned over. One of the most troubling aspects of this legislation is that a program that is supposed to improve the lives of senior citizens will make almost one-quarter of them worse off the day it is implemented. Six million senior citizens and disabled people on Medicaid--the poorest of the poor--will be victimized. Their out-of-pocket payment for drugs will be raised, and they may not even have coverage for the drugs they need the most. The people we are talking about are truly the poorest of the poor. In most cases, their incomes are well below poverty. And the impact of even small co-payments is devastating. Study after study finds that when the poor have to pay more for drugs, they end up hospitalized, in nursing homes, or dead. You couldn't make up some of the provisions that are actually in this bill. It sounds like something out of Charles Dickens to say that the law might force a widow to give up her jewelry or sign away the burial fund she has scraped together to get the prescription medication she needs. People wouldn't believe you if you told them the that Congress is considering a law to force some of America's senior citizens to make those kind of choices. I think everyone would acknowledge that the drug benefit contained in this legislation is inadequate to meet the needs of senior citizens. It has a high deductible and a coverage gap of thousands of dollars. Overall, we are providing only $400 billion toward the $1.8 trillion in drug costs our senior citizens and disabled will incur in the next 10 years. Given the limitations on the new Medicare benefit, the last thing we should be doing is causing people with good, solid retirement health coverage to lose it. But that is exactly what this bill does, because it provides a discriminatory benefit. People who have retirement coverage get a lesser Medicare benefit than every other beneficiary. The result: employers will drop the coverage they now provide. The CBO and a new study just released by Professor Ken Thorpe of Emory University show that 2.7 million people--one retiree in four--will lose the good coverage they have today. So between the 7 million poor people on Medicaid who will be worse off and the 3 million retirees who will lose their coverage--almost one-quarter of all Medicare beneficiaries will be worse off the day this bill is implemented than they are today. If this legislation passes, Americans will ask: What were they thinking of? Why would any Senator vote to make 9 million senior citizens and disabled people worse off and undermine Medicare to boot. And finally, this program undermines the health insurance of all Americans. It puts in place an unrestricted program of health savings accounts, what used to be called medical savings accounts. They provide billions of new tax breaks for the healthy and wealthy. This program encourages the healthy and wealthy to take high deductible policies--policies that require you to pay thousands of dollars before you get benefits. That is fine for people who can afford to put money into a tax-free savings account, but it is not good for ordinary working Americans and people who are sick. The Urban Institute and the American Academy of Actuaries have estimated that because the healthiest people are pulled out of the risk pool for regular, comprehensive policies by these health savings accounts, premiums for regular, comprehensive coverage will skyrocket. If this program becomes law and you want to keep your insurance policy, your premiums will increase 60 percent according to the Urban Institute and 61 percent according to the American Academy of Actuaries. Isn't that astounding? The Senate started out with a bipartisan program to add prescription drug coverage to Medicare, and now we are asked to vote on a conference report that not only undermines Medicare but could raise health insurance premiums through the roof for younger Americans. Senior citizens do not want this bill. The disabled do not want this bill. This bill is not a drug program for senior citizens. It is an attack on Medicare--and the Senate has the duty to reject it. Mr. President, I suggest the absence of a quorum.

Mr. KENNEDY. I thought I asked the Chair to inform me when I had 1 minute left.

Mr. KENNEDY. Well, Mr. President, I hope we will not invoke cloture.

Mr. KENNEDY. Will the Senator yield on that point?

Mr. KENNEDY. Would the Chair notify me when I have 1 minute remaining.

Mr. KENNEDY. Mr. President, in a very short period of time, the Senate will be making a judgment about whether we are going to effectively close off any further debate on this legislation I hold in my hands. It was made available last week, on Friday, to the Members of the Senate on an issue of enormous importance and significance to every person in America. That is the question of Medicare and its future and how our seniors are going to get their prescription drugs. It seems to me that out of consideration for our senior population and the importance of this issue, the Members of this body ought to know what is in it, what is going to benefit our senior citizens, and what is going to benefit the special interests. We think we ought to take a few more days, come back next week in the Senate and debate that issue, spend a couple weeks discussing it. But our friends on the other side say no, they had to stay in all weekend--which I was glad to do. We had debate on Saturday, we had debate on Sunday, and now on Monday they are asking Members to vote on this measure. I was not in the Senate at the time they passed Social Security, but I was here at the time we passed Medicare. The reason we created the Medicare system was because private insurance companies were not paying attention to the elderly in this country. We debated the issue for 5 years--not 4 days; 5 years--from 1960, 1961, 1962, 1963, 1964 and finally we passed it in 1965. When we passed the Medicare system in 1965, it was opposed by many on the other side of the aisle. It only got 12 Republican votes. This is the party that is committed to Medicare and Social Security. Over the period of time I have been here, we have seen constant efforts to undermine Medicare. It was understood when we passed Medicare that there was not going to be a role for private industry to take over senior citizens in the Medicare system. Many of our elderly, who have worked a lifetime, brought the Nation out of the Depression, fought in the World Wars of this country, fought in Korea, and paid their dues to the Nation, are elderly and frail and many of them have illnesses. We know the private sector cherry-picks, takes the healthiest senior citizens and the younger senior citizen, makes a profit, and leaves the others out so they can never get any kind of protection. We rejected that as a nation, passed Medicare, and said everyone is a part of it. That is why it is a beloved program in the United States. Seniors today, this morning, this afternoon, last night, know their doctor, know their health care delivery, have trust and confidence in Medicare. They do not want to risk that. This bill does. This bill does, make no mistake about it. It is the beginning of the unwinding of Medicare, the replacing of Medicare with the private sector and privatizing the Medicare system, make no mistake about it. They are using--our friends on the other side--the words ``prescription drug program'' in order to carry this through. I have just listened to some of these statements. They say: ``Don't you want your parents tonight in different parts of the country to be able to get their prescription drugs in order to meet our responsibility?'' We have been trying to do that. And we did it pretty well--not as well as I would have liked--several months ago, in a bipartisan bill we created a prescription drug program. But the bill we have now has hijacked the prescription drug program and used it as an excuse to undermine the Medicare system, to require, effectively, or coerce our senior citizens to leave Medicare and to go into HMOs in order to be able to get the prescription drug program. The subsidies that are provided for the HMOs are scandalous-- scandalous. We hear about ``free competition.'' There is no more free competition than the man in the Moon in this with the kind of subsidies that are given. And who is paying for those subsidies? The elderly people. It is undermining the Medicare system in three different ways. First of all, it undermines the Medicare system because of the unconscionable subsidies it gives to the HMOs, which will permit them to lower their premiums to draw and coerce seniors out of Medicare to go for HMOs. Second, we have premium support. Premium support just means the costs for our seniors who remain in Medicare will be going up. Is that what I say? Yes. But who else says it? The Medicare actuaries say there will be an explosion in the increase of the cost of premiums. Do we want to take that risk? Do we want to say, well, let's try an experiment with our nation's seniors? Why do we need an experiment when we know the premiums are going to go up? The third is the undermining of employer-based systems through the HSAs. They tried it. They fought for it. It is an ideological commitment on the other side, and they have that included in the report. All those three measures were not in the Senate bill but in the House bill. That is why the bill passed with only one vote in the House of Representatives. Imagine that. If this is such a wonderful bill, why would they only be able to pass it by one vote? That is all they passed it by the first time it came up in the House of Representatives. Then, after twisting arms, cajoling, effectively bribing Members in the House of Representatives, keeping the tab open for 3 hours, they were able to bring together and carry the vote on the repot by just four or five votes--this overwhelming new program that is so good for everyone? It passed by such a narrow margin. And now they are trying to jam it through the Senate. We all know what is going on. It is the objective of our good friends on the other side; and that is the beginning of the dismantling of the Medicare system, make no mistake about it. I was here when Medicare passed in 1965. I was here in 1964 when it failed. I remember the debate. I remember very clearly. And we are seeing, if this bill passes, the beginning of the unwinding of the Medicare system. Now, you can say: Well, Senator, you are really extending yourself on this and your interpretation of the motivation on the other side. I am saying they want to undermine the Medicare system. And the next is going to be Social Security, make no mistake about it. Is that what I say? No. This is just reported in the Washington Post this past week. Just read it. It does a lot better sometimes to read what the objective is in the White House and what their statements are rather than necessarily the speeches by some of our Members on the floor. Here it is in the Washington Post, on page A-14: Presidential adviser said Bush is intent on being able to say that reworking Social Security is part of my mandate if he wins. This is it. President Bush aids reviving the long-shelved plan on Social Security. It is the privatization of Medicare. And next is Social Security. That has been their objective.

Mr. KENNEDY. Now, Mr. President, we are strongly committed--when this bill fails or goes down, or a legitimate point of order is made--that we go back to the drawing boards. I am as strongly committed to get an effective prescription drug program as I was when I stood earlier this year when we passed a good program here in the Senate in a bipartisan way, and as I was when I stood with the Senator from Florida and the Senator from Georgia, Mr. Graham and Mr. Miller, when they fought for a good program here, and we got 52 votes for it. But when we hear all this chatter over on the other side about, oh, my goodness, they are filibustering the bill, they filibustered that bill--Republicans filibustered that bill a year and a half ago. We got 52 votes. They would not let it pass. They refused to. It was a good bill. So let's go back to the drawing boards. Let's go back to that conference. Sure, they will say: Well, we can't. It is conferenced. They say we have Thanksgiving coming up. We can't do it. We would like to be home for Thanksgiving. But this is a matter of life and death for many of our senior citizens.

Mr. KENNEDY. Will the Senator yield on that issue?

Mr. KENNEDY. Mr. President, I will just take a few moments to review for our colleagues what the implications of this bill will be for my State of Massachusetts. I can say that this is very typical of what is going to happen just about to every State. We have three MSA potentially eligible for premium support--the program that will raise premiums and effectively drive our seniors out of Medicare into the hands of the HMOs. We have three potentially eligible. We have 62,000 retirees who will lose their drug coverage. They are part of the 6 million nationally, and those figures are the figures that have been found by the Center for Budget and Policy Priorities. So we have 62,000 retirees who will lose their drug coverage. And 185,500 low-income elderly and disabled will pay more for prescription drugs. We have 60,000 low-income elderly and disabled who will fail the assets and income test in Massachusetts. This conference reimposed the asset test, which we had eliminated here by 67 votes in the Senate. They reimposed it. So there are 2.8 million across the country, and 60,000 in my State, who will fail the asset test, and 34,920 seniors will pay more for Part B premiums. In the few hours of this debate, the proponents of this legislation have described their proposal in the most benign and misleading terms. They say it gives seniors the freedom to choose among competing plans and gives protection to the poor seniors. They say this bill will lower drug prices through competition. They say at least it helps low-income seniors. They are absolutely wrong on all those counts. Here is the truth: This is a partisan plan, I remind my friend from Iowa. You saw the vote over in the House of Representatives, what the Republican leadership had to do to coerce Members to pass it. That answers the question as to whether or not this is a partisan plan. This partisan program is out of the mainstream. The proposal damages Medicare and leaves the millions of senior citizens who rely on it without a lifeline. It is the first step toward a total dismantling of Medicare. In exchange for destroying Medicare, it offers senior citizens a paltry and inadequate drug benefit. The moment it is implemented, it will make 9 million senior citizens--almost a quarter of all senior citizens--worse off than they are today. Senior citizens already have the most important choice they want--the choice of doctors and hospitals they trust. That is the choice they want, not higher premiums and premium support. Those are their choices if we pass this. They lose if they are forced to join HMOs and PPOs, or other programs that say an insurance company bureaucrat can choose their doctor for them. Senior citizens already have the choice to join a private insurance plan competing with Medicare if they choose. But 9 out of 10 prefer to stay in Medicare. So they already have a choice and they are not taking it. But under this bill, you are providing so much in terms of effectively bribing them, and overpayments that they will eventually coerce those seniors. The bipartisan bill that passed the Senate provided additional choice, a program for regional PPOs. The conference adopted a right-wing House approach of ending Medicare as we know it and establishes a massive demonstration program that would subject 7 million senior citizens--1 out of 6--to a so-called premium support program.

Mr. KENNEDY. Mr. President, I didn't hear a word from the chairman of the Finance Committee on what he is going to do or what this bill is going to do with regard to costs. Hello? Costs. There is virtual silence in this bill. We know what is happening to the senior citizens. It is an issue of access to prescription drugs and it is an issue of cost. This bill does not meet its responsibility in terms of protecting our senior citizens with regard to the cost. The Senator from Iowa mentioned the numbers of people who are going to be the losers. If the Senator has trouble with this, just ask the Budget Committee, not the Senator from Massachusetts. They said that 6 million seniors who are on Medicaid are going to lose their coverage. That isn't the Senator from Iowa or Massachusetts, that is the financial analysis. And 2.7 million retirees are going to be dropped, for a total loss of 9 million; almost 25 percent of the total retirees are going to be lost. We can do better. We can do something about the escalation of cost, but they refuse to do it. Let's go back to the drawing board and do something that is worthwhile. The Senate is on trial today. In a few moments we will vote to stop this charade. But I say this today: I am going to fight this bill with everything I have and, if necessarily, fight it tomorrow, next week, and next year. I will fight it for the nurse who paid into our hospital retirement fund for 20 years and the 3 million retirees like her who will lose their health insurance because of this bill. I will fight for the city workers in Springfield, MA, whose brave mayor plans to purchase cheaper prescription drugs from Canada for them and their families, an action that is illegal--do you understand?--illegal under this bill. I will fight for the widowed grandmother on Medicaid and the 7 million poor Americans like her who count every penny yet will pay more for their prescription drugs under this bill. And I will fight for the 36 million Medicare seniors who want to stay in the program they love with the doctors and the hospitals they choose. I will fight to keep billions and billions of Medicare dollars that come out of your paycheck from lining the pocketbooks of the big drug companies and the HMOs. I will fight it for our honor as a nation that keeps its commitment to our seniors, the ones who fought our wars, raised our families, and built our economy. The more the American people learn about this legislation, the less they like it. The more senior citizens learn, the more they oppose it. Let us not reverse the historic decision our country made in 1965. Let us not turn our backs on our senior citizens so that insurance companies and pharmaceutical companies can earn even higher profits. Let us reject this bill and come back and do the job right. I withhold the remainder of my time.

Mr. KENNEDY. Mr. President, I see the Senator from North Carolina here. He wanted some time.

Mr. KENNEDY. I am glad to yield that to the Senator. I know he intended to speak.

Mr. KENNEDY. How much time do we have?

Mr. KENNEDY. I will be glad to wait until the Senator concludes, and then I will yield the remaining 3 minutes to my colleague from Massachusetts.

Mr. KENNEDY. Mr. President, I rise today to say a few words about Section 1101(d), a provision of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 relating to the Hatch-Waxman Act and the authority of Federal courts to entertain actions for declaratory judgments. This provision originally was added in the Senate, as part of the Greater Access to Affordable Pharmaceuticals Act, and formed Section 702(c) of S. 1, the bill passed by the Senate. I will discuss today some of the changes made to this subsection in conference, and what this provision is intended to accomplish. Lower Federal courts typically have required that a declaratory judgment plaintiff satisfy the ``reasonable apprehension test'' before being allowed to bring declaratory judgment actions in Federal court. Section 1101(d) provides that, so long as a generic drug company has filed an Abbreviated New Drug Application, ANDA, and the patentee has not filed suit within 45 days of receiving notice, ``the courts of the United States shall, to the extent consistent with the Constitution, have subject matter jurisdiction in any action * * * for a declaratory judgment that such patent is invalid or not infringed.'' This subsection will provide relief to alleged patent infringers--at least in the Hatch-Waxman context--in several ways. First, this language sweeps away the type of discretionary barriers to a declaratory judgment action imposed in decisions such as EMC Corp. V. Norand Corp. The Federal Circuit in that case found that the district court actually had jurisdiction to entertain a declaratory- judgment suit. It nevertheless allowed the district court to dismiss the action, holding that district courts may do so unless ``there is no real prospect of non-judicial resolution of the dispute.'' The Federal Circuit apparently felt that a patentee should be able to use what may prove to be an invalid patent as a source of ``bargaining power'' in license negotiations. This refusal to entertain a litigant's action where jurisdiction unquestionably exists is, of course, at odds with the rule, announced 182 years ago in Cohens v. Virginia, that the Federal courts ``have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.'' Blame for this practice, however, cannot entirely be laid at the feet of the Federal Circuit. The Supreme Court, in the 1995 Wilton v. Seven Falls Company case, affirmed that Federal courts have ``unique and substantial discretion in deciding whether to declare the rights of litigants.'' Wilton identified two sources of this discretion: it found a ``textual commitment to discretion'' in the Declaratory Judgment Act, emphasizing the act's use of the word ``may.'' And it noted the courts' history of recognizing discretion to decline declaratory-judgment actions. Section 1101(d) directly sweeps away the type of discretion allowed in the EMC Corp. case. First, and most importantly, it replaces the word ``May''--the textual source of the discretion identified in Wilton and EMC Corp.--with the word ``shall.'' Second, simply by creating a new source of authority to entertain declaratory judgments in the Hatch-Waxman context, section 1101(d) disentangles such actions from the tradition of discretion associated with the Declaratory Judgment Act. Armed with the word ``shall,'' this new section starts afresh, with no reason to be exempted from the usual (Colorado River) rule that Federal courts have a ``virtually unflagging obligation * * * to exercise the jurisdiction given them.'' With this new provision, generic-drug companies never will be denied access to a declaratory judgment action on the basis of pending or potential license negotiations, at least so long as the suit otherwise is constitutionally sufficient for presentation in an Article III court. This last matter--when the case or controversy requirement for a declaratory judgment action is satisfied--is the subject of the second major aspect of section 1101(d). I and other Senate proponents of this subsection believe that the reasonable-apprehension test demands more than is required by the constitutional case-or-controversy requirement. We are fortified in this view by two letters received by the committee of jurisdiction from Professor John Yoo. Rather than repeat all of Professor Yoo's analysis, I will simply include his letters at the conclusion of my remarks. As Professor Yoo notes in his first letter, the reasonable-apprehension test is ``[not] demanded by the Supreme Court's interpretation of the Declaratory Judgment Act.'' He suggests that the test may be viewed as an exercise of the court's discretionary power. Section 1101(d) shifts the focus of a court's inquiry to whether the requirements of Article III are satisfied. In deciding when a Hatch- Waxman declaratory judgment suit may meet the requirements of Article III, the courts should focus on the actual components of the case-or- controversy requirement. In the 1998 Steel Company decision, the Supreme Court reiterated that the ``triad of injury in fact, causation, and redressability constitutes the core of Article III's case-or- controversy requirement.'' In setting the constitutional standard for allowing declaratory judgments, the Supreme Court in its 1937 Aetna Life Ins. v. Haworth decision focused on the dispute's adverseness, definiteness, concreteness, and the specificity of the claims. this language inevitably invokes the injury-in-fact element of the Article III standing inquiry. It is from the injury-in-fact case law--which asks whether an injury is concrete and particularized, and actual or imminent--that the courts might draw new standards for a constitutionally adequate case or controversy in the declaratory judgment context. It thus bears mention that the Supreme Court has not hesitated to find actual Article III injury where a plaintiff forewent a legally cognizable benefit as a result of being actually and reasonably deterred from particular conduct. Just 3 years ago, for example, the court held that even where a defendant's environmental discharges caused no harm to the environment, environmentalist plaintiffs had standing where their ``reasonable concerns about the effects of those discharges, directly affected [their] recreational, aesthetic, and economic interests.'' And in 1979's Babbit v. United Farm Workers, the court found that plaintiffs deterred from constitutionally protected conduct had standing to challenge the offending statute where the threat of its enforcement was ``not imaginary or wholly speculative.'' The Court further specified that the plaintiffs were ``not without some reason in fearing prosecution'' where ``the State has not disavowed an intention'' of enforcement, a fact that rendered the positions of the parties ``sufficiently adverse, * * * to present a case of controversy within the jurisdiction'' of the Federal courts. And--closer to the context of a section 1101(d) plaintiff--the court has inquired, when evaluating commercial plaintiffs standing in 1975's Warth v. Seldin, whether the defendant's actions ``delayed or thwarted any project currently proposed.'' I would also note that some courts have applied case-or-controversy tests in the declaratory judgment context that, in their standards and focus, are not dissimilar from what is suggested by the Supreme Court's injury-in-fact caselaw. For example, in the 1974 case Blessings Corp. v. Altman, the district court for the Southern District of New York held that ``any lingering possibility of an infringement charge is sufficient to support the finding of an actual controversy so long as the plaintiff can demonstrate some actual harm to its business.'' Similarly, in the 1986 case Research Institute v. Wisconsin Alumni, the district court for the Western District of Wisconsin concluded that ``a perceived threat of infringement is real''--and would satisfy Article III requirements--so long as ``it would be a substantial factor for most business people in their choice to proceed in one direction and not in another.'' Congress, of course, does not presume that any of these cases sets the proper case-or-controversy standard in the context of a patent- infringement declaratory judgment action, or that 1970s standing decisions still are good law. Nevertheless, these cases do at least suggest the proper focus of inquiry: whether the would-be patent challenger has been reasonably and actually deterred from undertaking a profitable enterprise. Finally, should the courts be unwilling to wholly abandon the reasonable apprehension test for purposes of analyzing the requirements of Article III, the conferees have left them options short of striking down section 1101(d). Unlike the Senate bill, the conference report does not gamble all on the hope that courts will find the filing of an ANDA--which automatically constitutes an act of infringement--to always qualify as a constitutionally adequate case or controversy. The final act leaves the courts with options short of striking down section 1101(d), if more is required. By including the language ``to the extent consistent with the Constitution,'' the conferees have allowed the courts to import as much of the reasonable-apprehension test as they feel is constitutionally necessary. As the report language makes clear, this may include the entire reasonable-apprehension test as currently construed by the Federal Circuit. As Federal Circuit Judge Gajarsa observed in his concurrence in the Minnesota Mining case, that test will ordinarily be satisfied in declaratory judgment actions brought by ANDA applicants with respect to patents listed in the Orange Book. In any event, the courts should impose prerequisites to seeking declaratory relief--whether reasonable apprehension, the standing tests suggested here, or any other requirements--only ``to the extent required by the Constitution.'' I ask unanimous consent that two letters from Professor Yoo be printed in the Record.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, on Friday, I was pleased to introduce the Employee Free Choice Act, which is sponsored by 24 Members of the Senate. For decades, labor unions have led the fight for the 8-hour day, and the 40-hour week, for overtime pay, for the minimum wage, for safe and healthy workplaces, for health insurance, for retirement security, and many other basic rights. Millions of union members in communities across America benefit today from the long hard battles of the past. Union workers earn wages 25 percent higher than nonunion workers. Union workers are more than four times as likely to have a secure pension plan. Union workers are 40 percent more likely to have health insurance coverage. These and many other longstanding benefits of union membership are undisputed. But too many workers who want to be members of a union are unable to do so. The reason is clear. Too often, employers discourage it in any way they can. For years, illegal employer tactics have been common whenever employees attempt to form a union. Each year, employers are charged with over 20,000 instances of violating workplace labor rights. In over half of these claims, a worker was punished or even fired for union activity. A recent survey found that employers illegally fire employees in one quarter of all union organizing drives. Even employees who manage to form a union often can't get a contract, because employers refuse to bargain. Only half of the unions who win an election are able to get a first contract. Often, companies hire expensive consultants and launch campaigns to intimidate workers and keep them from supporting a union. Anti-union companies often give their managers pamphlets with titles like ``A Manager's Toolbox to Remaining Union Free.'' They close down departments that succeed in unionizing. Employers spy on workers and use one-on-one confrontations to intimidate workers or break the union. Too often, Federal labor laws intended to protect workers from coercion have no teeth. If workers are fired, they may not get their jobs back for years. At most, the employer will owe back wages. Companies treat such payments as just another cost of doing business. America's workers deserve better. American democracy deserves better. That is why we are here today to introduce the Employee Free Choice Act. Free Choice means: the freedom to associate freely in the workplace; the freedom to choose your own labor representative; and the freedom to bargain for better wages, better health care, and other benefits. Our bill recognizes a specific right of workers to choose a union through a process called a card check. If a majority of employees sign a card asking for representation by a union, the employer must comply. The bill also requires employers to come to the table to negotiate a first contract. And it levels the playing field for employees who are attempting to organize a union or obtain a first contract. It provides for court orders to stop employers from firing or threatening these workers. The bill also puts real teeth in the law by strengthening the penalties in current law for workers that support a union. These protections are long overdue. For too long, we have acquiesced in the anti-labor, anti-worker, anti-union tactics that are far too prevalent in the workplace. We like to think that workers are free to join a union, but too often that basic aspect of freedom is denied in our modern society, because hard-line corporate managers succeed in denying a fair choice by workers. At a critical time like this when we are fighting for the basic freedoms of other peoples in other lands, we cannot fail to take a stand for the basic freedoms of the millions of American workers who depend on us to protect their rights at home.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, will the Chair please advise me when I have 5 minutes remaining?

Mr. KENNEDY. Mr. President, during yesterday and early today, we have had characterizations and descriptions of this legislation, which is enormously important. We are doing these debates on Saturday and Sunday, and it is anticipated that we will have a vote tomorrow, Monday, on a bill that will not go into effect until 2006, and other provisions will take effect in 2010. I have right here next to me the bill, the legislation, which was put on everyone's desk. I am still waiting for a Member to come here and indicate that he or she has read it, and describe the details of it. We are dealing with a matter of enormous importance and consequences, as we are dealing with issues of life and death for our seniors in this country--the men and women who have brought this Nation out of the Great Depression, the ones who fought in World War II, the greatest generation. They came back and faced challenging times. We went from a 12 million, mostly man military, down to an Army of just a couple of million, with massive unemployment, and they helped to get the country back on a peaceful road. We are talking about a generation that faced down the Soviet Union and communism, and they are now in their golden years. As the great philosophers point out so well, civilization is measured by how it treats its elderly people, whether they will be able to live in the peace, dignity, and security for their contribution to the country. I believe in that. I believe in that very deeply. We have to ask ourselves at the end of the day whether this legislation before us, which is being rushed through with effectively 2 or 3 days of debate, is worthy of our senior citizens. I mentioned the issue of time again because my good friend, the majority leader--and he is my good friend--made reference to the fact that I believe that this legislation needed more debate than a Saturday afternoon and evening. I watched the debate going on, and the chairman of the Finance Committee and the Senator from Alaska talked up until almost 10 o'clock last night, and now we are here on Sunday afternoon. But I wonder whether it needs more than 2 days debate. I believe it does; I do believe so. I believe that particularly after we saw what happened in the House of Representatives. This legislation makes an enormous difference to the well-being and the security of seniors in this country. And we saw the facade that took place in the House of Representatives where the vote was called at 2 or 3 o'clock in the morning, and the vote was kept open beyond the traditional time of 15 to 20 minutes, for nearly 3 hours, in order to try to effectively coerce Members to support the proposal. We are doing that on a measure that is supposed to benefit our senior citizens, and a measure that passed the House of Representatives by only one vote in a purely partisan proposal. Then, it passed the House of Representatives by less than a handful the second time, again, on a purely partisan proposal. It seems to me that if the House of Representatives had a full opportunity to have an open discussion and debate, and then have a reasonable vote and call them as they see them, then this process would be worth supporting. We ought to have the same here in the Senate. But, on the one hand, when we have a Republican leadership, which is effectively jamming this legislation through the House of Representatives, and then effectively wants to use the closing off of debate and discussion in order to effectively jam it through here, the Senate of the United States, we ought to take a moment or two to ask why. I note the references of my friend, the majority leader, about who was really representing the seniors of this country and whether some were delaying this legislation. Many of us have been fighting for a prescription drug program for years. I will not take the time today to discuss the time when it was bottled up in the Republican Finance Committee, and how it only emerged on the Senate floor when we had Democratic leadership here just over a year ago. It is not worth taking up the time because I don't have it. But this is a Senator who fought for the Medicare Program, who knows the history of the program, and knows how important the Medicare Program is. I am also mindful--with all respect to those on the other side and in the House of Representatives--that they got 12 votes in support of the Medicare. I know that they are untrustworthy of the Medicare Program, that they have a disdain for the Medicare Program. That is a very important difference. They are obviously entitled to their view. But what we have seen is the efforts that were made on the floor of the Senate earlier this year, where we had a truly bipartisan effort for a prescription drug program. In 1964, Medicare was defeated in the Senate. It was defeated by 12 or 14 votes. Seven months later, it passed by that number. The only intervening aspect was an election. And the important aspect of that election is that the seniors understood what the stakes were in that election. I am saying here on the floor of the Senate that the seniors are going to understand, when they know what is in this bill, how much it risks their future and the future of the Medicare system, make no mistake about it. Make no mistake about it, no matter the outcome of this bill in the Senate, this issue is going to continue to be debated as we go into 2004, the 2004 election, 2006, 2008--all the way down the line. This issue is not going to go away. I was here when the Senate passed catastrophic coverage. I can remember the catastrophic Medicare changes which allegedly were supposed to be so helpful to the seniors. There was a flood of Senators who left this body and rushed down to the television and radio center to indicate how they supported it. And I remember how they all crept back into this body just a couple of months later to vote to rescind that change because they got it wrong, because they rushed it through the Senate. And that is just what we are in danger of doing with this bill. The Medicare system is a tried and tested program. It is a beloved program. The reason we have a Medicare system is that the private insurance companies failed our elderly people. They continued to fail them. Finally, in the late 1950s, we began to have a debate about a Medicare system, and when we had the debate in the 1960 campaign and 1962 campaigns, we finally found we were able to pass Medicare legislation in 1965. It took 5 years to pass that program, and we want to risk that program in a 2-day debate in the Senate when this is a lifeline to so many of our seniors, when we are seeing an effort to undermine the Medicare Program. I will get into that in one moment. We had a chance to do something we failed to do in 1965. We passed the Medicare Program that dealt with hospitalization. We passed the Medicare Program that dealt with physician fees. But we did not pass a Medicare Program that dealt with prescription drugs. Only 3 percent of the private sector programs had prescription drugs at that time. Can you imagine that we would pass a Medicare Program today without prescription drug coverage? Those prescription drugs are as important as physician services and hospitals today. We are on the verge of the life science century. The breakthroughs we are going to see in the next months and years are going to be breathtaking, and our seniors ought to be entitled to those programs. That is why a prescription drug program is so necessary. We passed a good program in a bipartisan way, but that is not the proposal that is before the Senate. The bill before us is not that proposal. The bill that passed the House of Representatives is not the proposal we passed. We have a major undermining of the Medicare system. There are those who say: You are really overstating this, Senator Kennedy. Where in the world are you getting this idea? I understand, as others do, that the position of the President of the United States earlier in March was that no one who was in Medicare would be entitled to a prescription drug program. I want our seniors to listen to that. In the spring of this year, this President indicated he supported the program for prescription drugs only when it was delivered by the HMOs. He gave up that position. He said: Oh, no, let's try and see if we can figure out something else that may be related to the Medicare system. That was his position. That is the position of the majority of the people who are supporting this program. Make no mistake about it, that is their position. They believe that is what ought to happen: that we ought to dismantle the Medicare system, undermine it, privatize it. That is what they want to do. You say: Why in the world are you saying that? How can you possibly say that? Read the paper this past week. The Washington Post, Friday, November 21: Bid to Change Social Security is Back. They are going to get Medicare first. Social Security is next. Here it is: President Bush's aide reviving long shelved plan on Social Security. A Presidential adviser said [Bush] is intent on being able to say that reworking Social Security ``is part of my mandate.'' There it is, my friends, Social Security is next; Medicare now. That is why I think we ought to have some debate because, I daresay, I don't believe the Members of this body understand what is going to be done with the proposals. There are three major provisions in this proposal that will effectively undermine the Medicare system. The first is the premium support proposal. I have listened day after day, week after week, month after month: We have to give premium support a try. My answer is: Why? Why? We know what it means even before trying it. Committed as they are on the other side of the aisle to start off with hundreds of thousands or a few million and multiply that to millions and millions of people, we understand what the results are going to be before we even try the program. They said: Let's try it; let's understand what the outcome is going to be. Currently, everyone in the United States pays into the Medicare system. No matter where you live, you get your range of benefits. You get to pay the same premium and you get the same range of benefits all over this country. It is uniform. Not under premium support. You are going to pay in and you are going to pay more. Even the administration has recognized that the minimum you are going to pay is 25 percent more. You are going to pay more. So that every elderly person who understands premium support, this administration understands you are going to pay more at the outset. Secondly, you are never going to know what your premium is because it is going to depend on where you live. These are not my figures, these are the figures of the Medicare actuary. Here it is: Under the premium support program--this is the Medicare actuary--the national average under current law will be $1,205 by 2013. It is about $700 now. Their estimate is $1,205. A year and a half ago they estimated the premium support would be $1,771. The Medicare actuary estimated that every senior citizen would be paying $500 more in premiums than they would be paying under Medicare. This year they have gone down to $1,501. They have gone down nationwide as starters, and we have to learn something more. That is not good enough. The difference with premium support is there is no security. It depends on where you live. Do you understand that? Your premiums are going to be based not on the national standard that we have at the present time but on where you live. In my State of Massachusetts, under premium support, it will be $1,450 in Barnstable, MA, and $1,050 in Hamden, MA; $400 more. The difference is 100 miles. In Dade County, FL, it is $2,000 and, in Osceola, FL, it is $1,000; $1,000 more. Explain that to some senior who lived there all their life, has a house and is proud to live there, and they find that their premiums are going to be $2,000 and their neighbors in another part of Florida are paying $1,000. It is very interesting what my friends on the other side say: Senator Kennedy, you don't understand what we are going to do in this bill. We are only going to let it go up 5 percent a year this year. That is what they say this year. Next year in the Budget Committee, or the year after, it won't be 5 percent. We will have to recalculate. It will be 10 percent or 15 percent, or let's have a free enterprise system and let it sail off. That is what is going to happen. That is what has happened in the Metropolitan Statistical Areas (MSAs), and the list goes on: $1,700 in Los Angeles, $775 in Yolo, CA. Medicare actuaries--every senior citizen ought to understand that premium support is written in this legislation. One can say, well, it is written in such a way that we are not going to face it for several years. Several years? But it is still there. The only way to repeal it is to come back here to the Congress. In Yamhill, OR, premiums would be $1,325, but only $675 in Columbia, OR. It is double the amount if one lives in a different part of the State. Why do we have to experiment with premium support? We already know what the results are going to be. That is a key element in this legislation. It was not in the Senate bill. I did not hear our majority leader make much of a case for it. To be honest about it, I do not hear the President of the United States make much of a case for it. Nonetheless, when one is talking about the House of Representatives, they understood what this was all about. They committed to it, alright. Now one might say: Well, Senator, what about the health delivery system? We are going to have the health delivery system delivered through the HMOs. Let us have real competition. How many times have I heard this from our Republican friends over there: Let us have competition? We are glad to have competition, but do not suggest that this bill is competition. It is not. I see the chairman of the Finance Committee. He can correct me if I am wrong about any of these figures. We start off with every HMO getting a 109 percent increase in the cost of living over Medicare. Is that competition? Competition? Come on. Beyond that, CMS--the governmental agency that administers the Medicare program--pays an additional 16 percent in excess of Medicare's own costs to private insurance companies because seniors who join Medicare HMOs are healthier than seniors in the traditional Medicare system. So, under this bill, Medicare is going to pay a 25 percent advantage or bonus for every senior citizen that goes into an HMO. Our Republican friends are talking about competition, the free enterprise system. Is there a business man or woman in this country who would not want a deal such as this? The tragic part is, who is paying for it? It is our seniors who are paying for it. And you think Medicare is going to be able to hold on when they are effectively getting a $1,936 overpayment per senior? That is what they are getting now. This is not competition with Medicare. This is a rip-off. This is a scandal. This is a payout. And that is what is happening now under our overpayment to the HMOs. As a matter of fact, you are overpaying them almost the amount that the average person does for the prescription drugs. You could almost make a deal and say, do not even bother with the prescription drug program. The HMOs are almost paying the whole amount. That is what the seniors pay, $2,300. We are paying close to a $2,000 overpayment. On the one hand, you have the premium support that is going to undermine it. Secondly, you have this program on the overpayment of the HMOs. Given the dramatic overpayment on this, we can see what is going to happen with the HMOs. Look at what is going to happen with the HMOs, according to the actuaries. This year, there is $31 billion that went through the HMOs in this country. The best estimate, given the arrangement that has been made now, will be $181 billion going through the HMOs. You call this private competition? Competition with Medicare? This is outrageous. Do my colleagues think we are having that debate here on the floor of the Senate? Do my colleagues think we have time to change that 109 percent down to 102 percent or 104 percent? Absolutely not. We do not have time to do that. Do my colleagues think we have time to change this with regard to the 16 percent advantage? Do my colleagues think we have any time to do that? Oh, no, let's stamp it. Let's close the books. Let's say to those who would like to have that kind of debate and offer amendments, this is being delayed for our senior citizens. This is absolutely outrageous. We know what is going on. These are the payoffs to the HMOs. Beyond that, if that is not enough, listen to this: Not only do they have the additional 25 percent, which is almost $2,000, there is also a $12 billion slush fund. What did the Senator from Massachusetts say? A $12 billion slush fund. Well, what can they do with the $12 billion? They can give it to the HMOs as well. This is running-around money, walking-around money, $12 billion more. Who pays for that? The seniors pay for that under the Medicare system. Do we have an opportunity to offer an amendment to strike that? Oh, no. Do my colleagues think we have an opportunity to go back to the Senate position that said let's take half of that and use it for good preventive kinds of medicine for our seniors, such case management programs? No, no. That was what we passed in the Senate. Do my colleagues think we can go back? No, no. We have to rush this proposal in. In the meantime, we are telling our seniors all across this country that $12 billion is needed to help the HMOs. Tell that to the 10 million seniors who need Celebrex to deal with arthritis, or the 12 million to deal with osteoporosis, or the 11 million with treatments for diabetes, high cholesterol, thyroid deficiency, and depression. These are millions of our fellow citizens who could benefit from that $12 billion. Oh, no. We have to give that as a supplement to the HMOs. I have listened to those who say: Well, at least our senior citizens are going to be better off. Let us just look what is going to happen to our senior citizens. We have the 2 to 3 million retirees who are going to be dropped. They are certainly not going to be better off. There are 6 million people worse off. Who are these 6 million? These are the Medicaid beneficiaries who, the day this bill goes into effect, are going to be worse off. These are the people who are paying the $1 to $3 copays. The States are paying for it with the Medicaid. Know what? They will not be paying anymore. Why? Because this bill prohibits it. So one might ask whether they are better off. We start right off with 9 million beneficiaries who are going to be worse off. People say: Well, Senator, what about all of those low-income people we are all concerned about in this program? I am going to come back to that. Let's take these 6 million people, who are the poorest of the poor, who are going to be worse off. Is that really going to make much difference, because it is only a couple of bucks a week, $3 to $5 a week, maybe $20, $25 a month? But when one is talking about the average income for seniors at about $12,000, it adds up. There are studies to show what happens to the poor when they do not pay the copays in terms of adverse health outcomes.

Mr. KENNEDY. Will the Chair tell me when I have 1 minute remaining, please. This is what happens to those poorest of the poor when they do not have the copays--serious adverse events effectively double. The emergency rooms effectively double. These findings are demonstrated by research studies published in JAMA. Of course, the sad fact is it ends up costing hundreds of millions and billions of dollars more to pay for in these circumstances. It is bad health policy and it is bad economics. Finally, we had a good program that passed the Senate. We found our friends in the conference knocked out 3 million of the neediest elderly people in this country. We provided for up to 160 percent of poverty, they made it up to 150 percent of poverty. That is a million people. And they reimposed the asset test for those under 150 percent of poverty. As a result of reimposing it, that is a total of 2.8 million who were included for help and assistance under the Senate bill who were wiped out in this conference report. We had a good bill, but that is not the one that is before us. Finally, the third part of the inclusions in this legislation, what they used to call Medical Savings Account, now referred to as Health Savings Accounts (HSAs), which have very high deductibles and low premiums. Who takes advantage of those programs? The most healthy people take advantage of those and the most wealthy people take advantage of those. What is the problem with that? The problem with that is that if you are the working poor, working middle class, if you have some children, you can't afford to constantly pay the deductibles. So what happens to your premiums? Two studies--one study by the American Academy of Actuaries ``Medical Savings Accounts: Cost Implications and Design Issues,'' May 1995, and another by the Urban Institute, ``Tax-Preferred Medical Savings Accounts and Catastrophic Health Insurance Plans: A Numerical Analysis of Winners and Losers,'' April 1996)--indicate that premiums will rise at least 60 percent. That is not just talking about the elderly people, that is across the country. That is undermining the employer-based system. We have enough problems in this country with the uninsured. Now we have an additional proposal that is going to raise the cost of premiums for working families in this country? That has been included. Was that in the Senate bill? Absolutely not. But it has been in the House. It has been a matter of faith in the House. There you have it: Premium support, not a level playing field, a new form of health insurance that is going to raise the premiums for workers. What in the world does that have to do with the prescription drug program? It has a lot to do with ideology. That is what this bill is about, to undermine, to privatize Medicare. After they do that, coming right behind it is the Social Security Program, make no mistake about it. We can do better. We should do better. We ought to take the time to do better. There are enough Republicans and Democrats alike in this body who have demonstrated over the period of the last year and a half that we can get a good bill. There is no reason to be stampeded with a bad bill. Why are we being stampeded with a bad bill? We ought to take our time, get a good bill, make a difference for our seniors, make a difference for our country. That is what I believe. I hope we will have the opportunity to take the time so all of our Members understand it, and not just these Members but so our seniors, whose lives are going to be affected, who are suffering every single day and making choices between putting food on the table and paying for their prescription drugs, so they understand it. Don't we have enough respect for our seniors so we can provide some opportunity for those individuals to understand it? Or are we going to be rushed into the situation with short debates on Saturday and Sunday and then have the gauntlet come down. We saw what happened over in the House of Representatives. It took them 3 hours in order to galvanize this. I think we should demonstrate in this institution too much respect for our seniors to be stampeded into a bad bill.

Mr. KENNEDY

Mr. KENNEDY. Reserving the right to object on the order, I was referred to by my good friend, the majority leader, last evening at about 6:15 in reference to this legislation. The time-honored tradition of this body is to notify an individual when there is going to be reference made to them. I was not notified, and I heard later last evening that I was referred to. I indicated that to the leader. I would like to be able to do this in a timely way. I was listed yesterday to be either third or fourth in order, but I am not prepared right now--if there is some other previous order that has been arranged, I want to be able to reserve my rights that have been respected in this institution for 220 years, and that is when a Senator is referred to in terms of legislation, a fair opportunity is given for them to respond.

Mr. KENNEDY. The Senator from Nevada, as always, is more than kind and generous. I appreciate that very much. I have no objection.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, it is an honor to take the floor now to join all Senators on both sides of the aisle in extending our warmest birthday wishes to the Senator who in so many ways is respected as Mr. United States Senate by us all, our friend and eminent colleague from the State of West Virginia, Senator Robert C. Byrd. Senator Byrd is 86 years young today, with the emphasis on ``young,'' because he truly is young in the same best sense we regard our Nation itself as young, inspiring each new generation to uphold its fundamental ideals of freedom and opportunities and justice for all. Senator Byrd's personal story is the very essence of the American dream, born to a hard life in the coal mines of West Virginia, rising to the high position of majority leader, a copy of the Constitution in his pocket and in his heart, insisting with great eloquence and equally great determination, day in and day out, year in and year out, that the Senate, our Senate, live up to the ideals and responsibilities that those who created the Senate gave us. Washington, Adams, Jefferson, Madison, Franklin, Webster, Clay, Calhoun--they each live on today in Senator Robert Byrd, and they would be proud of all he has done in our day and generation to make the Senate the Senate it is intended to be. On a personal note, I am always very touched on this day in remembering the unusual coincidence that Senator Byrd was born on the same day as my brother Robert Kennedy and in the same year as my brother, President Kennedy, and was married on President Kennedy's birthday. In the many years we have served together, he has taught me many thins about the Senate, especially how to count votes. He did me one of the biggest favors of my life, although I did not feel that way at the time. On that occasion over 30 years ago, we were each certain we had a majority of democratic votes. We couldn't both be right, and Senator Byrd was right. All these years later, like so many others among us, I still learn from his eloquence whenever he takes the floor and reminds the Senate to be more vigilant about living up to our constitutional trust. Senator Byrd has received many honors in his brilliant career, and the honor he received last Saturday in Hyde Park in New York was among the highest. He was honored with The Freedom from Fear Award by The Franklin and Eleanor Roosevelt Institute. The award is named for one of the Four Freedoms--freedom of speech, freedom of worship, freedom from want, and freedom from fear--in President Roosevelt's famous State of the Union Address to Congress in 1942, a few weeks after the Second World War began. The award also harks back to FDR's First Inaugural Address in 1933, in which he rallied the Nation from the depths of the Great Depression with the famous words, ``The only thing we have to fear is fear itself.'' In his address accepting the award, Senator Byrd emphasized the importance of renewing our dedication to the Nation's ideals in the very difficult times we face today, when the temptations are so great once again to put aside our freedoms in order to safeguard our security. As Senator Byrd said so eloquently, in a lesson each of us should hear and heed: Carry high the banner of this Republic, else we fall into the traps of censorship and repression. The darkness of fear must never be allowed to extinguish the precious light of liberty. Senator Byrd's address in Hyde Park also contains a very beautiful and moving passage about the person who has been his lifelong best friend and strongest supporter all through these years, the coal miner's daughter he married 66 years ago, his wife Erma. I wish them both many, many happy returns on this special day, and I ask unanimous consent that Senator Byrd's extraordinary address on receiving the Roosevelt ``Freedom from Fear'' Award be printed in the Record.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, it is a privilege to join with Senator Cochran in supporting the Stroke Treatment and Ongoing Prevention Act of 2003. The STOP Stroke Act is a vital first step in building a national network of effective care to diagnose and quickly treat victims of stroke. For over 20 years, stroke has consistently been the third leading cause of death in our country. Every 45 seconds, another American suffers a stroke. Every 3 minutes, another American dies. Few families today are untouched by this cruel, debilitating, and often fatal disease that strikes indiscriminately, robbing us of our loved ones. More than ever today, help is available. Modern medicine is generating new scientific advances that increase the chance of survival and partial or even full recovery following a stroke. We are learning how to manage this disease more effectively, and we are also learning how to prevent it from happening in the first place. But science doesn't save lives and protect health by itself. We have to put new discoveries into action. We need to educate as many people as possible about the warning signs of stroke, so that they know enough to seek medical attention. We need to train doctors and nurses in the best techniques of care. We need better ways to treat victims as quickly and as effectively as possible--so that they have the best chance of full recovery. Our bill provides grants to States to develop statewide programs for stroke care, so that the most effective care will be available to patients as quickly and efficiently as possible to reduce the level of disability caused by stroke. Stroke systems will rely on information sharing among agencies and individuals involved in the study and provision of care, in addition to training for health professionals on the signs of stroke and guidelines on best practices. The bill also authorizes the Secretary of HHS, acting through CDC, to operate the Paul Coverdell National Acute Stroke Registry to develop and collect data and analyze the care of acute stroke patients. Funds were appropriated for the registry at the end of the last Congress, but the registry has not yet been authorized. In fact, the Senate passed the act unanimously last year, and it came very close to House passage. Literally millions of our fellow citizens will benefit from the lives saved and the better care they will receive as a result of this legislation. It's long past time for Congress to act.