Ted Kennedy

Mr. KENNEDY

Mr. KENNEDY. Mr. President, it is an honor today to recognize the outstanding accomplishments of John C. Hoy, president of the New England Board of Higher Education, who is retiring this month. Mr. Hoy has dedicated the past twenty-three years to serving the higher education institutions of New England, and his leadership will be greatly missed. Since he became president of the Board in 1978, Mr. Hoy has led the effort to provide an accessible and affordable education for every New Englander. To accomplish this goal, he established reforms in his own organization, and he also involved individuals and businesses throughout New England in effective partnerships that served students and institutions alike. Among his primary achievements was the publication of numerous important books, including studies on the relationship between higher education and economic well-being in New England, the links between U.S. competitiveness and international aspects of higher education, and the effects of legal education on the New England economy. In addition, John Hoy offered much-needed support to minority communities. He encouraged greater participation by Blacks and Hispanics in higher education, and he worked effectively to increase the number of ethnic minorities completing PhD programs. He also created a scholarship program for Black South African students at South Africa's open universities under apartheid. John Hoy also cared deeply about the way technology was changing higher education, in New England and around the country. Under his initiative, the Board explored the promise of biotech industries and manufacturing in New England, and worked to improve technical education, with the help of both professional educators and the private sector. In addition, he worked with other regional boards of higher education to coordinate telecommunications among higher educational institutions. John C. Hoy deserves great credit for all he has done to enhance higher education in New England. His accomplishments are deeply appreciated by all of us who know him, and I welcome this opportunity to wish him a long and happy retirement.

Mr. KENNEDY

Mr. KENNEDY. I yield the Senator from Michigan 5 minutes.

Mr. KENNEDY. I yield such time as he desires to the Senator from Nebraska and then the Senator from Arkansas, two lead sponsors.

Mr. KENNEDY. I yield back the remainder of my time.

Mr. KENNEDY. Finally, the reason there is a moratorium is there isn't reason to believe that this kind of research is safe today. But it may very well be safe tomorrow or the next day. And the possibilities, as I say, are unlimited. The action of the Senator may effectively close that window, close that door. I do not think that we ought to be in the position of doing that. So I have included the current state of the regulations that are in effect now in NIH and the reasons for those regulations. Unless there is someone else who wants to speak on this----

Mr. KENNEDY. I will include the regulations which are in existence now. I ask unanimous consent they be printed in the Record.

Mr. KENNEDY. Madam President, a memorandum by Hogan & Hartson says: The Brownback Amendment is . . . confusing as to its precise coverage. It uses a variety of scientific terms and other complex language both to prohibit and allow certain gene modification activities. And it gives a several-page analysis of this. The fact is, as I understand it, there is a moratorium now at NIH. NIH does not permit any of the research in transferring of the materials in terms of genes at the present time. I just mention quickly, on page 3 of the amendment, on lines 10 and 11, it talks about ``for the purpose of producing a genetic change which can be passed on to future individuals . . .'' That ought to be a matter of concern to parents because that is an area of very great potential in terms of parents who have the gene--in terms of cystic fibrosis, muscular dystrophy--in trying to impact that kind of DNA so that they will not pass this on. Yet this is talking about restricting the research for ``producing a genetic change which can be passed on to future individuals . . .'' That very area is a matter of enormous importance and consequence. I know the Senator has given this a lot of thought. It is enormously important. I respect him for it. I know that he revisits these issues continuously. We will look forward to continuing to work with him. I know he is incredibly concerned about the broad areas of ethical issues. In those areas of ethical concerns there are no simple, easy answers. There is enormous division, significant divisions, in many different areas. But it does seem to me that in the time that we have available to consider this, and on this particular legislation, and with the very strong opposition of the research community generally, that it would be unwise for us to add this at this time to the legislation.

Mr. KENNEDY. Madam President, there are several organizations that draw different conclusions about the Senator's amendment. You have the Biotechnology Industry Organization that says: Unfortunately, the Brownback amendment reaches far beyond germ line gene modification. It attempts to regulate genetic research--a complex and dynamic field of science that holds great potential for patients with serious and often life- threatening illnesses. And from the Association of American Medical Colleges: Much more troubling, however, the amendment reaches far beyond germ line therapy. Taken on its face, the amendment would prohibit other areas of research into gene therapy as well. I ask unanimous consent an analysis be printed in the Record.

Mr. KENNEDY. I do remember. All of us as Members of this body get a chance to go out to NIH and visit with the researchers and listen, watch, and hear about those extraordinary, dedicated men and women who are dealing with so much of the cutting edge research. I think we want to make sure that we are very careful in the steps we are going to take that in some way would inhibit research. There are obviously strong ethical issues which we constantly have to examine and consider. But I am very much concerned about the kind of prohibition that this type of amendment would include. I want to make it clear that the amendment that the Senator from Kansas puts forward does not ban cloning, but it would ban similar cutting edge research. That is what our concern is and why we will oppose it tomorrow.

Mr. KENNEDY

Mr. KENNEDY. As I understand it, there has been agreement to vote on that amendment when the time is used or yielded back; am I correct?

Mr. KENNEDY. If I could just proceed for a moment, I just thank all our Members for their cooperation. We have made some progress. There is a lot of work to do on this. We are encouraged by the cooperation of all our Members. But having been around here a long time, we have a lot of work to do. We have to keep at this job. There are very important matters before us. We ought to just recognize we have a lot of work to do and we will have a chance to see where we are as we take this step by step. We have important debates this morning, and we have some additional issues on employer liability that we will address, on medical necessity, and hopefully on the areas of scope. Those are being worked out; I hope are being drafted. As we all know, the key is in the details. I don't want to have any false sense of anticipation. We have still some very important policy issues that have to be resolved. But we are making progress. We are very grateful to all the Members for their help and cooperation, and we look forward to this morning's debate.

Mr. KENNEDY. Madam President, how much time do we have on our side?

Mr. KENNEDY. I yield myself 10 minutes.

Mr. KENNEDY. At the start of this discussion, we ought to understand the significance of the sort of carve-out that is offered by the Senator from Colorado. This effectively would eliminate 45 percent of all the workers in this country from the kind of coverage and protections we are trying to ensure through the Patients' Bill of Rights. It seems to me if you work for a company that employs 48 employees and you happen to have a child who needs a specialist, you should not be denied that protection by an HMO making bottom line decisions more in the interest of profits rather than in the interest of the child and the medical decision. That is what this issue is all about. Are we going to say if you work in a company with 49 employees, you are not covered, but if you work in a company with 51 employees, you are covered? What kind of fairness is that for the families of America? We recognize that small business--although employing 50 is probably somewhat larger than most of the small businesses we have in our State--needs help. They pay 30 or 40 percent more in terms of their premiums. They don't deal, in most instances, with the largest of the HMOs, many of which act responsibly. They are dealing with the marginal HMOs that are more driven by profits and the bottom line rather than services to patients. We know at the present time small businesses have additional burdens in terms of affording health insurance. We ought to address that. I am all for addressing it. But excluding them from this coverage is not addressing that particular problem. It is not going to change the premiums for this kind of coverage. That is the bottom line. If the Senator wants to give help to those small businesses in terms of additional kinds of financial incentives, or helping them get into various groups so they could purchase their health insurance at more reasonable levels, we are all for it. But first, this is not the way to go. As the Senator from Colorado pointed out last night, the HMO's premiums have gone up 13 percent last year, 12 percent this year, with the best cost of our proposal being less than 1 percent a year. It is a gross misrepresentation and a distortion to think that this is going to solve their particular problems; it will not. What we will be doing, if we accept the Allard amendment, is exposing working families all over the country. Families who are working should get the kind of protections we want through this legislation, the kind of protections they thought they were getting when they bought their health insurance. This amendment effectively puts these families on the sidelines and frees them from any of the protections of this legislation.

Mr. KENNEDY. I am glad to yield to the Senator from North Carolina.

Mr. KENNEDY. The Senator is quite right. Of course, we cannot. That is effectively what we are doing to about 43 or 44 percent. In addition, many of those who have looked at the amendment think there will be larger companies that will break down into units of 50 or fewer in order to escape the protections of this legislation. That can go on ad infinitum. We are talking about 40, 45 employees per employer. It may be a lot more. The Senator is quite correct: This is a position that I do not think even the President supports. In the President's list of particulars and principles, he is for holding the employers accountable that are going to be involved in making medical decisions that ultimately work to the disadvantage and the harm of the various patients. That isn't what this is all about. More likely than not, and I will let others comment on this--if you are a hardware store owner who has four employees and you are paying your premium, you are not involved in making medical judgments and decisions. That defies any kind of ordinary understanding of what is happening with small businesses. They are not the ones doing it. The concern we have is that employers who provide HMO coverage to several hundred employees could say to the HMO: Let me know anytime there is going to be an expense over $50,000 or $75,000 because I want to know about it. When the HMO calls them up, they say: Don't provide the service. That is the real world, not the smaller business men and women. This is an amendment which undermines a basic concept. If the good Senator can explain to me, the proponents, why should families in small companies be put at more risk? Why shouldn't the family members of a company that has less than 50 employees be able to get the specialists they need? Why shouldn't a woman worker in a smaller company be able to get to the OB/GYN as a primary care physician? Why should the wife in a smaller company not be able to get the clinical trial that will save her life from cancer? What is the answer from the other side? What is possibly the answer from the other side? Well, the premiums have gone up. We have talked about the issue of premiums. The President understands that. It seems to me, with the Allard amendment, we are putting the workers in these plants and factories at enormous risk. Whatever the problems are today, once we give them carte blanche, the problems are just going to increase a thousandfold. These employers are going to be immune, effectively, from any kind of action. We are opening the barn door and inviting any employer to go with any HMO. It won't make any difference because there will not be a remedy for the workers. Is that what this whole debate and discussion is about? I don't think so. I hope this amendment will not be accepted. It is a carve-out. As the Senator from North Carolina has stated, there are Members on both sides of the aisle who are working--Senator Snowe and others--to tighten the language included in the basic document. We have talked about and debated the language during this time, in terms of the role of the employer and to ensure that there won't be unwarranted additional burdens on the employer. That is in the process. That is what we are dealing with as the way to go. We are going to have the opportunity to consider that later in the day. Now we have an amendment that is going to effectively eliminate responsibility for almost half of the employees in this country. The protection for those employees is not warranted and justified with the legislation. How much time do we have remaining, Madam President?

Mr. KENNEDY. I yield to the Senator from North Carolina.

Mr. KENNEDY. Will the Senator be good enough to yield for a question?

Mr. KENNEDY. Can the Senator conceive of a situation where the employer got hold of the HMO and said: Look, I have a worker who has been hurt. I know it is going to be a costly process to bring that worker back to good health, and I don't want you to spend more than $25,000 on this. I want to put a limit on this. We are not going to spend more. I don't want you to spend more. The HMO is going to say, if I am going to keep this as a client, I am going to follow that client. Let me ask you this. If the Allard amendment is accepted, and the worker was seriously injured because of the failure to give the kind of medical treatment that the doctors have recommended and suggested, would that patient be able to hold that employer accountable under the Allard amendment?

Mr. KENNEDY. If the Senator will yield further, this is almost an invitation, is it not, to employers, such as the mom-and-pop stores that have half a dozen employees, that basically are just paying the premium and are not making the decisions? Someone will say to them: Look, not only do you get your health insurance but you can just tell your HMO not to spend more than $10,000 or $15,000. You can do that and be completely immune and save yourself in terms of the additional premiums, although in that way you put at risk your workers. Could they not do that?

Mr. KENNEDY. Finally, if I may yield myself 30 seconds--under the proposal that we anticipate and support, I will make the assertion that under this proposal and Senator Snowe's proposal later in the afternoon, which will be introduced with the good support of the now Presiding Officer, we will ensure those employees are going to be protected. That is the way to go. That is what we want to achieve, to give real protection to those employers. That is the way to proceed. I think it is a much more effective way, efficient way for the employers, a more fair way for them, and certainly a great deal more fair for their employees.

Mr. KENNEDY. I yield myself 4\1/2\ minutes. Mr. President, the issue is the protection of these workers. We have had 22 days of hearings; we have had this legislation for 5 years, trying to get it before the Senate; and now we have the opportunity to provide real protections to families in this country. Now this amendment wants to say, we will provide protections for some but we will eliminate 45 percent of the protections for families in this country. What possible sense does that make? There is a representation that somehow employers will be at risk. They will not be at risk unless they are making medical decisions that will result in harm or injury to the patient. If they are not, they are free, in spite of all the agitation we have heard from those supporting this amendment. I have been around here long enough to realize that when we take on the special interests--and that is the HMO in this case--we hear dire consequences. When we worked on the Family and Medical Leave we heard the estimates that it would cost American business $25 to $30 billion a year. That was all malarkey. We worked on the Kassebaum-Kennedy bill regarding portability of health insurance, particularly for the disabled. They said it would increase the premiums 30 percent, it would be the end of small business and the end of the American economy. That was a lot of baloney. We worked on increasing the minimum wage. We heard it would put small business out of business, and that there would be hundreds of thousands out of work all over this country. That was baloney. The burden we hear that would be put on small business is baloney. They have nothing to fear. They have nothing to fear in this. But the HMOs have something to fear if they are not going to permit doctors and nurses and trained personnel to provide for their patients. The facts belie these representations that have been made. If you look at the States that have tough HMO legislation, as we have gone through repeatedly, the message should become clear. For instance, in Texas with their tough HMO law, there have been 17 cases in 5 years. California has a tough law that has been in effect now 9 months, and no cases. No cases. Do you hear me? No cases. No small businessmen, nobody with 50 or less, none, no cases on it. And what has happened? The employees are getting the protections they need. Now we hear, well, what about the premiums? I read into the Record yesterday that the total cost of this amounts to 1 percent a year over the period of the future--4.2 percent over 5 years. That amounts to about $1.19 a month. Let me tell every premium payer in this country about what is happening in terms of their premiums, why they are going up. We have Mr. McGuire, United Health Group, who got $54 million in compensation last year and $357 million in stock options for a total compensation of $411 million. That is $4.25 a month for every premium. We are talking about $1.19 a month. You want to do something about the increase in terms of your premiums, tell Mr. McGuire he does not need $411 million a year in annual compensation and stock options. We know what is happening. They had $3.5 billion--$3.5 billion--in profits last year. Fine. Well and good. But when you see the millions of dollars that they are spending out there on the airwaves every single day, don't cry crocodile tears in this Chamber about what is going to happen to the HMOs. We are going to ensure that small businesses will be protected. I will join with the Senators from Colorado and Texas if they want to try to assist small business with help through the Tax Code to offset the 25 to 30 percent increase in premiums. The reason they are getting that 25 or 30 percent increase is because they are getting gouged by the major HMOs. That is the real reason. That is what we ought to be about, the real business of that, not taking it out on the injured patients in this country who are not getting the health care they need. How much time do I have?

Mr. KENNEDY. I yield that time to the Senator from North Carolina.

Mr. KENNEDY. We have 30 minutes?

Mr. KENNEDY. I yield myself 10 minutes. I agree with our friends and colleagues, the Senator from Oklahoma, about the competency of my good friend, Senator Nelson, as well as the Senator from Wyoming, Senator Enzi. I learned, as I worked with Senator Enzi on a number of different issues, including OSHA, about his enormous capabilities as an accountant in dealing with numbers. I have also had the good opportunity to work with Senator Nelson on this issue. I think there are few Members of this body outside the committee or inside the committee that have taken more time than the Senator to understand the details of this legislation. He has a commanding knowledge of this legislation and a very healthy understanding and respect about what is happening in the State and local communities. He has been enormously attentive to detail and concept. We do not always agree on every provision, but I have certainly developed a deeper understanding of the impact of this legislation from my conversations with him. Even though we differ on the substance on this particular issue, which I think is an important issue, I have enormous respect for what he has brought to this whole debate on the Patients' Bill of Rights. I value, very much, his continued involvement in this debate. I will mention briefly what we have in the legislation and why I believe it is wise to retain the approach we have currently. It has the complete support of the American Medical Association, the cancer organizations--I will refer to those later--and the overwhelming support of the medical community. It has evolved over a period of time. I will reference that in just a moment or two as well. But it does, I think, meet the standard that has been mentioned here about certainty, clarity, and predictability. That is what the proponents of this amendment have asked for. We have just done that on page 35, in establishing the particular details of our standard. I will give brief reasons that we ought to retain this. The McCain-Edwards-Kennedy bill allows the doctors, not the HMO accountants, to make the important medical decisions and it prohibits the HMOs from using arbitrary definitions of medical necessity. Unfortunately, the proposed amendment would undermine this crucial protection and allow plans to use definitions of care that may harm the patients. Our legislation asks every Senator the basic question: Do you support the doctors making the critical medical decisions or do you want the HMOs to continue to deny care based on language that puts dollars before lives? The independent medical reviewer should consider the definition decided by the health plan. However, we should not bind their hands by arbitrary definitions by an HMO. Senators McCain, Bayh, and Carper will offer an amendment later today that reflects the bipartisan belief that reviewers cannot approve services that are not explicitly covered under any circumstances. If a plan covers 30 days of hospital care, a plan cannot say they should cover 100 days. This amendment underscores the premise in our bill that a reviewer should not be bound by an unfair HMO definition of medical necessity. In circumstances where explicit coverage decisions are subject to interpretation, the reviewer should have the opportunity to weigh all the relevant medical facts. I gave the example last evening. If the plan says ``no cosmetic surgery'' and there is a cleft palate on a child, I could see an independent reviewer saying as a matter of medical necessity it is imperative that we correct the cleft palate and would be justified in doing so. If, in the plan, it said ``no cosmetic surgery and no cleft palate,'' the medical reviewer would be prohibited from doing so. So there is that degree of interpretation in terms of medical necessity, that aspect of judgment that we want to give to the doctors in dealing with this issue. The Kyl amendment, once again, I believe gives the HMOs the opportunity to deny critical care by allowing them to use definitions of medical care that are stacked against the patients. This amendment also prevents independent reviewers from weighing all the relevant factors needed to make a fair decision. In addition, the amendment proposes to institute a complex rulemaking process to define medical necessity. However, administrative rulemaking is only as fair as the participants. If the participants are hostile to patients' rights and sympathetic to HMOs, they could undermine care for millions. As Charlie Norwood said, if reviewers are forced to wait on regulation at the speed HCFA moves, leeches might still be considered medically necessary and appropriate. Also, under this amendment the plan gets to choose any of the numerous definitions for medical necessity. It can seek out the worst of the worst, but consumers get no comparable rights to demand the best of the best. All you have to do is look at the range of definitions and it is easy to see why the disability community, the cancer community, the American Medical Association, and other groups are so vehemently opposed to this amendment. It fails to protect the patient and allows the health plans to continue to deny medically necessary care. That is why the overwhelming number of medical groups support our language. Some of the standards that they could pick from say cost- effectiveness should help determine whether care should be provided. It might be cost-effective, for example, for an HMO to amputate a young man's injured hand, but what about the cost of having to spend the rest of your life without the full use of limbs? It might be effective for an HMO to pay for older, less effective medication for depression, but what about the cost to a mother trying to raise her family while dealing with the harmful side effects that could have been prevented by newer medication? Why should we subject the American people to them? I urge my colleagues to reject this amendment. Passing it would reverse the strong bipartisan efforts we have worked out in this legislation. Let me mention here the letter from the National Breast Cancer Coalition: On behalf of the National Breast Cancer Coalition and the 2.6 million women living with breast cancer, I am writing to urge you to oppose the Kyl amendment and to support the McCain-Bayh-Carper amendment on medical necessity. The National Breast Cancer Coalition is a grassroots advocacy organization made up of more than 600 organizations and 10,000 individual members all across the country who are dedicated to the eradication of breast cancer through advocacy and action. With regard to the enactment of a strong, enforceable Patients' Bill of Rights, the NBCC believes the determination about what is medically necessary must remain in the hands of physicians, not HMOs. The coalition is concerned the Kyl amendment would weaken the provisions in the McCain-Edwards-Kennedy Patients' Bill of Rights and would allow financial decisions to override the medical judgments on patient care. Let me just mention some of the definitions which have been used. Here is a definition that is used in terms of medical necessity. As I mentioned, the history of this is that we did have a definition in the previous legislation that was passed. What we used for medical necessity at that time was this: Medically necessary or appropriate means a service or benefit which is a generally accepted principle of medical practice. That is what virtually every Democrat voted for. That gives the maximum flexibility to the doctor. When we got to the conference and began to work this out, the HMO industry said this definition was so broad and wide, in terms of interpretation, that it could mean anything. Therefore, it would completely override the contract terms of the HMOs. Then we altered it and said: In the internal review they will use the definition of the HMO, but in the external we will use a different definition. That is what is in the legislation. That is basically what is in the Breaux-Frist, as well as in the McCain-Edwards-Kennedy. Basically, it says ``a condition shall be based on the medical condition of the participant''--therefore you look at the medical condition of the principal--``and valid, relevant scientific evidence and clinical evidence including peer review, medical literature or findings, and including expert opinion.''