Ted Kennedy

Mr. KENNEDY

Mr. KENNEDY. I yield myself 3 more minutes.

Mr. KENNEDY. The expert opinion is critical. The essential element of that--which I know has been questioned--was talked about and essentially agreed to in the conference last year. This is the concern we have. Here are some of the definitions which have been used in various HMOs, and even in Federal health insurance. The difference, in Federal health insurance is if there is an appeal of it, they leave it completely open. I asked staff to get the standard that is used. It is completely left to the doctor. That is where we want it, to the greatest extent possible. We have limited it as I have defined it. But these are some of the concerns. This is in SIGNA, in terms of medically necessary: . . . that are determined by our medical director to be no more required than to meet your basic health needs. So this definition is going to be what the plan's medical director decides. Clearly, they are going to be biased in the HMO. This is the Hawaii State plan: Cost effective for the medical condition being treated compared to alternative health intervention, including no intervention. Cost effectiveness is unacceptable. It is more cost effective for the HMO to put someone in a wheelchair rather than for them to have hip surgery. But it is more effective to the individual to have the hip surgery. Here is another one: A treatment that could reasonably be expected to improve the member's conditions or level of functioning. Even though it is used by the Health Alliance HMO in the Federal health insurance, the problem is that for people with disabilities, the treatment may not be for a condition that can improve, but it certainly may improve the quality of life. Here are the Pacific Care Health plans furnished in the most economically efficient manner. ``Economically efficient'' is a problem. Again, it is what procedures are the most cost effective. We have to be very sure about what we are going to have. We have a good definition in this proposal. It is supported by McCain-Edwards and myself and is also essentially the provision in Breaux-Frist. It has the overwhelming support of the American Medical Association, as well as the Cancer Association, and is spelled out in this legislation. So there is certainty. If there is a change on this, we can come back and revisit it. I give the assurances to my friends that we can. But the idea that we are going to give the authority to a panel that will be set up by the Secretary--the makeup of which we don't know--which can propose something, still indicates that we don't know what is going to come out. That doesn't seem to me to be the way we ought to go in giving predictability and certainty to patients. If we are interested in that, we ought to get criteria that is sound, responsible, and gives medical professionals the ultimate ability to make judgments to protect the patient. That is what we do in this legislation. That is why I don't believe we should alter or change the proposal.

Mr. KENNEDY. Will the Senator yield on my time?

Mr. KENNEDY. What I read here is ``what is determined by our medical director to be no more required than to meet your basic needs.'' That is in the Federal health insurance program. That would be included. The language I have read is ``the treatment that can reasonably be expected to improve the member's condition or level of functioning.'' The Federal employees' plans are included. The last one, ``furnish in the most economically efficient manner,'' that is Federal employees. That is included. All three are included because the Federal employees' insurance has been included as well. What is not included is discretion that is given to the medical doctor. The review of that is provided in the Federal employees' plans, and OPM is using it. It is not included in the underlying.

Mr. KENNEDY. I am glad to yield----

Mr. KENNEDY. Yes. Absolutely. The Senator from North Dakota was looking forward to talking, but whatever. Do you want me to yield 3 minutes?

Mr. KENNEDY. I yield 3 minutes to the Senator.

Mr. KENNEDY. Mr. President, how many minutes do I have remaining?

Mr. KENNEDY. I yield 8\1/2\ minutes to the Senator.

Mr. KENNEDY. Will the Senator yield?

Mr. KENNEDY. For the benefit of the membership, we had scheduled a vote at 12:30. With the agreement of the leadership, that vote will be postponed until 2. At 1 o'clock, Senator Gregg will be here to offer an amendment for himself. At 2, it is the anticipation of the leadership that there will be two rollcall votes. We have not made the unanimous consent request yet, but that is the intention of the agreement of the two leaders. After the time expires, we will make that unanimous consent request.

Mr. KENNEDY. That is fine.

Mr. KENNEDY. As I understand, the time will expire in how many minutes for the debate on this amendment?

Mr. KENNEDY. I ask unanimous consent that the vote on that amendment be put off until 2 o'clock.

Mr. KENNEDY. It is the anticipation of the leadership that between 12:30 and approximately 1 o'clock there will then be general debate on the legislation. At 1 o'clock an amendment will be laid down by the Senator from New Hampshire or his designee. It is anticipated there will be a second vote at 2 which will be on that amendment.

Mr. KENNEDY. Then I withdraw my request. I was asked to make that request; if there was going to be no objection, that was going to proceed. Otherwise, we will go ahead.

Mr. KENNEDY. I had asked if the Senator would yield. The Senator from North Dakota has the floor.

Mr. KENNEDY. Mr. President, I think the Senator has 2 minutes. I have 2 minutes; is that correct?

Mr. KENNEDY. Mr. President, I will take the 2 minutes which I otherwise might have had if we hadn't entered into the request. Here we go again with greater hope in our hearts that we will be successful. After the yielding back of the time, we intended to vote on the Nelson amendment. At the request of the leadership, I ask unanimous consent that that vote be put off until 2 o'clock.

Mr. KENNEDY. At 2 o'clock. It is anticipated that at 1 o'clock there will be an amendment from the Senator from New Hampshire or his designee. I am informed that it will probably be the Senator from Tennessee, Mr. Thompson; and that we will begin the debate on that at 1 o'clock and that the time between 12:30 and 1 will be used for general debate.

Mr. KENNEDY. Mr. President, I apologize to my friend for the interruptions because the Senator has been patient during his presentation and is typically kind and generous to permit the workings here. I believe we have a good, solid definition in terms of medical necessity that has been reviewed, evaluated and has gotten broad support. It has bipartisan support. It also has the very, very strong support of the medical community: The American Medical Association, all of the cancer organizations, as well as the disability community. They all have great interest in what that definition is. In too many instances in the past there have been definitions that have been offered and accepted that work to the disadvantage of patients. For example, definitions have been made that do not include palliative care for patients who have cancer or don't recognize the very special needs of the disabled. We have a definition here. It is defined in the legislation. It has been reviewed. It is careful. It is predictable. It is certain. It does provide for doctors to exercise their best medical judgment. It is completely consistent with the purposes of the legislation. As I mentioned, I have great respect for my friend and colleague. I think on this we should stay with the language which should be included and which has the broad support, virtually the unanimous support of the medical community.

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

Mr. KENNEDY. Mr. President, for the benefit of our colleagues, we are now still committed to voting at 2 o'clock on the Nelson amendment which we debated earlier today. We will then return to a conclusion of the Thompson amendment. We just saw that amendment a short while ago, and we are trying to study that more closely. After the completion of the vote on the Nelson amendment, we will be able to indicate to Members when we will either vote on or dispose of the Thompson amendment. There has been a proposal made to our colleagues on this side for votes going through the afternoon and times allocated to the different amendments and then into the evening, also being sensitive to the needs of our colleagues on the other side of the aisle for a window, and then returning to the Senate for consideration of legislation. Hopefully, at the end of the vote at 2:30 p.m., we will be able to give the Members a clearer idea both of the substance and the time for moving the process along. We have had good debates on these issues to date. We still have work to complete on the issue on medical necessity. Also, our colleagues, Senators Snowe and DeWine, held a press conference at 11:30 this morning on their proposals, which hopefully we will consider later this afternoon, to tighten up language in the area of employer liability. We are familiar with the thrust of the proposal. It seems to be extremely valuable and helpful in resolving some of these issues. We will move on hopefully to the issues of scope later in the afternoon and into the early evening. This is how we hope to proceed. We are never sure until the actual proposal is made, but we want to give assurance to Members we are making progress, and we will continue to move as rapidly as we can on the measure. Again, the liability issue will be the last outstanding issue. There is still no consensus on that particular proposal. We will consider the alternatives in a timely way and hopefully be able to conclude the legislation in a timely way as the majority leader has stated. I thank all of our colleagues for their cooperation. These have been good substantive debates. We have had very few interludes. A number of our colleagues welcome the opportunity to express their views on the legislation, and we will try to accommodate as best we can when we see the opportunity to have a focused debate on a particular subject matter and dispose of that matter in a timely way. I thank all of our colleagues. At the conclusion of this next vote, which we expect will start in just a very few moments, we will then have further news for Members. I suggest the absence of a quorum.

Mr. KENNEDY. I move to reconsider the vote.

Mr. KENNEDY. Mr. President, it is our understanding that the Senator from Arizona is going to offer an amendment at this time on behalf of a number of our colleagues. Hopefully, we can have order, Mr. President. This is a very important amendment.