Ted Kennedy

Mr. KENNEDY

Mr. KENNEDY. Yes.

Mr. KENNEDY. Mr. President, I thank the good Senator for his amendment and his thoughtful explanation of it. I will oppose the amendment. I will state briefly why this evening. Basically, we have a number of definitions of small business. We are taking now the definition of 50 employees or less. That is about 40 percent of the workforce. It might be as high as 43 percent. So with this amendment, effectively we are undermining 40 to 43 percent coverage for all those employees across the country. If we believe in the protections of this legislation, that is a major exclusion. What are those protections? Those protections are very simple. They are very basic and fundamental. For example, doctors ought to be making the decisions on medical care and not the HMOs. The employees who work in these businesses and where the HMOs are selling these policies are being hurt just as those who are above the 50. Excluding them from these kinds of protections is unacceptable. Their children are going to be hurt. Their children should be able to get the kind of specialty care that others can. The wives of those who work in those plants and factories ought to be able to get into clinical trials if they have breast cancer. They ought to be able to have an OB/GYN professional as a primary care physician, if that needs to be so. They ought to get the prescription drugs they need, if a drug is not on the formulary. They ought to be able to get the continuity of care they need. This care protects expectant mothers from losing a doctor during the time of their pregnancy, if the employer drops the coverage with an HMO. These are very important kinds of protections we are discussing. If we accept the Senator's amendment, we are effectively excluding 40 percent of the population. The Senator makes a very good point about cost, particularly for small business. I am always amazed in my State of Massachusetts. You go down to 15, 20 employees and still the small businessmen are providing health care coverage. What is happening, they are paying anywhere from 30 to 40 percent more in premiums every single year. This occurs because they are not able to get together with other kinds of groups and get the reductions that come from the ability to contract with large numbers of employers. They are getting shortchanged in those circumstances. Many of the firms they work with are in the business one year and out of the business a second year. The point the Senator makes about the particular challenge for small employers to offset health coverage for their employees is very real. We ought to help them. There have been a number of different proposals which I have supported and others have supported in terms of deductibility and helping those companies. That is an important way of trying to get about it. But the suggestion that is underlying the Senator's presentation is that the cost of this particular proposal is what is really going to be the straw that breaks the camel's back. He talks about a 4-percent increase in premiums. That is a percent a year, as we have learned. The alternative percent is around 3 percent. It is 3 percent over the period of 5 years. The CBO points out that the cost of the various appeals provisions and the liability provisions are eight-tenths of 1 percent over the 5 years. And in the alternative bill, it is four-tenths of 1 percent. I mentioned earlier in the day that the largest CEO salary of an HMO was $54 million a year, and $350 million in stock options. This constitutes a benefits package of $400 million. That adds $4.25 to every premium holder, small business premium holder, $4.25 a month. Our proposal adds $1.19 a month. That is just one individual. I am sure, in this case, he does a magnificent job. But when you are talking about the cost of this, we have also brought in the fact that the average income for the 10 highest salaried HMO CEOs is $10 million a year. Their stock options are in the tens of millions of dollars a year. The profits are 3.5 percent a year, $3.5 billion last year in profits. And still they ratcheted up their premiums 12 percent to maintain their profit margin. They made $3.5 billion. Yet they cannot make sure that we are going to be able to provide protections for their employees. They cannot make sure that they are not going to overrule doctors in local hospitals and community hospitals, in the urban hospitals, and in rural hospitals trying to give the best medical attention to the children and the women and their workers? We can't say that we want to provide that degree of protection for them? I just can't accept that. I would welcome the opportunity to work with the Senator in the area of small business. But that isn't what we are about this evening. The Senator's amendment, as I said, would effectively exclude 40 percent, 43 percent of all the employees. It makes the tacit assertion--more than tacit, explicit assertion--that the increased premiums that are going to be included in this bill are just going to be unbearable. I suggest there are ways of getting cost savings on this. We have 50 million Americans now that have the kinds of protections that we are talking about. They have the liability protections. We don't see their premiums going up. We see the right to sue in the States of Texas and California, and the premiums aren't going up. There is very little distinction between the 50 million Americans now who have the liability provisions and those who do not. We are talking about a major assurance to families all over the country. When this bill passes and families go in and pay their premiums for health insurance, they will know they are getting coverage for the kinds of sickness, illness, and serious disease. Without this legislation, they may think they are covered. Then, at a time of great tension and pressure--they may have cancer for example--they are told by their primary care doctor that even though there is a specialist, an oncologist down the street who is the best in the country and is willing to treat that child, they are told they cannot have that specialty care. They are also told that they can't appeal that once the HMO makes that decision. They are being denied that, when we know what a difference it can make in terms of saving that child's life and in terms of that child's future. We want to make sure every parent knows that when they sign onto an HMO, they are going to be able to get the best care that is available for their child, for their wife, for their mother, for their son, for their grandparent, and not have these medical decisions overridden by the HMO. So it seems to me that those protections ought to be there for the 40 percent of the workers, as well as to the other 60 percent. We ought to get to the business of paying attention to, helping, and assisting the smaller businesses. One of the best ways is for these major HMOs to stop spending the millions and millions of dollars they are spending every single night, right now, in distorting and misrepresenting the truth. Evidently, they are flooded with money because they are spending so much of it in order to defeat this legislation. This isn't an industry that is hard pressed. They are ready to open up all of their wallets and pocketbooks to distort and fight this legislation. And, they have the resources to be able to do it. They are not short on those resources. We do not see cutbacks on executive pay. We do not see cutbacks on stock options and the other hefty perks of being an HMO CEO. The idea that this particular legislation is going to be the straw that breaks the camel's back doesn't hold up. It is a smokescreen. It is not an accurate representation! I think that those 40 percent of American workers are entitled to coverage and protection. (Mr. CORZINE assumed the Chair.)

Mr. KENNEDY. I don't intend to object. Is this in favor of the amendment?

Mr. KENNEDY. I yield myself 4 minutes. Mr. President, we have had a good discussion coming back, once again, to what I think is one of the fundamental aspects of this bill. We have gone through this. I have taken the time to go through this evening what the criteria were going to be for the medical officer at the time of the external appeal. Those criteria have been supported today by the overwhelming majority of the medical profession because they understand that, with those criteria, we are going to get a medical decision that will be in the best interests of the patient. That is really not challenged. What is being suggested are three different options that might be used. The one we offer has the support of the medical community. It has the overwhelming support of the medical community. That is the first point. With all respect to my friend and colleague from Oklahoma, regarding the provisions, when it comes down to what is and is not going to be permitted, clearly if there is an exclusion in the contract there will not be the right of the medical officer to alter and change that. Let me give an example on the issue of medical necessity under the criteria that we have, where it might very well be interpreted by a medical officer. Say a particular HMO excluded cosmetic surgery. The question came down to a child that had a cleft palate, and the medical officer said: Well, they are excluding cosmetic surgery, but a cleft palate for a child is a medical necessity. That medical officer, I believe, ought to be able to make that judgment. Under the language that we have, that medical officer would be able to do it. If, on the other hand, the HMO had put in the contract that they will not permit a medical procedure for a cleft palate, then clearly that would be outside of the medical judgment, and outside of medical necessity. That is the example that is really reflected in the language which we have included. But the fact is those are exceptional cases. They are not unimportant. But the most important aspect of the case is that the judgment that is going to be made by the medical officer is going to be based on the medical needs of the particular patient and the best medical information that is available. That is what has had the broad support. There may very well be a new commission established under HHS made up of a number of different stakeholders which may come up with some recommendation that may be a better one. That might be so. If that is the case down the road, maybe we can have the opportunity to consider it and bring some change to it. But as we have heard earlier, and as we have seen, the Federal employees standard that is used is not permitted to be used in terms of appeals procedure. The reason, evidently, is because they believe the medical officer ought to be able to use the criteria which brings into play the latest information and the latest scientific information that is available, and the best information that would be helpful to that medical profession. Finally, there is the question, What are we going to do? Are we really going to ultimately let their judgment and decision be made by the medical professional with enough flexibility so that they can bring to bear medical judgments on this, and also consider the best information that is available to them and apply that best medical information available to benefit the patient? I think we have a good process and a good way of proceeding. That is why I believe that we ought to stay the course with what is included in the legislation and resist the amendment. Mr. President, I know we have another amendment that we are going to debate this evening. If there are others who want to speak on this, we welcome them.

Mr. KENNEDY. Mr. President, how much time remains?

Mr. KENNEDY. As I understand it, and I can be corrected, under one of the provisions, HHS establishes a board. At some time the board tries to work out the definition, but we do not know how that will work out, what the framework will be, or how many patients, consumers, and HMO personnel will be on the board. That board will have a meeting, and they will work out some definition of ``medical necessity'' which creates a degree of uncertainty. Second, we have questions about the States, some of which have adopted various criteria about what is medical necessity. Third, we have the Federal employees health program, which, as I mentioned, is not the standard which is used on review by the Office of Personnel Management. They don't use that. They use a standard much closer to what we have. Even on that standard, many cancer groups are very concerned about possible restrictions on palliative care, care which is enormously important to cancer patients. We have heard from a number of cancer organizations about their serious concern regarding this particular point. On the other hand, they are in support of the language we have included in the Edwards bill. First, we know we have something that the American Medical Association, the medical professionals, patients, the doctors, and the health care delivery system have said is a good standard. Our opponents offer a standard that may turn out to be fine in the future but we don't know. And secondly, as another standard which has serious problems with the cancer community because it raises questions, doesn't the Senator agree with me, we ought to use what is now agreed to by Republicans, by Democrats? Most importantly, ought we not use the standard endorsed by those within the medical profession? If this standard does not work, we will have an opportunity to take a look down the road in terms of altering and changing. Is that a preferable way to proceed?

Mr. KENNEDY. Will the Presiding Officer let us know when we have 5 minutes remaining?

Mr. KENNEDY. Will the Senator yield?

Mr. KENNEDY. Mr. President, at the time of these appeals, they would make the decision based on the kinds of factors all of us would want for ourselves and our families--the medical condition of the patient, and the valid, relevant, scientific and clinical evidence, including peer-reviewed medical literature, or findings, including expert opinion. Those factors essentially say that the independent medical reviewer should strive to make the same recommendation that the best doctor in the country for that particular condition should make. It is a fair standard. It is a standard all of us hope our health plan would follow. The Senate should understand that this was not only a bipartisan compromise between Congressmen John Dingell and Charlie Norwood, it was a compromise on which every member of our conference signed off in the last Congress, from Don Nickles and Phil Gramm to John Dingell and myself. In fact, this concept of letting the external reviewer consider but not be bound by the HMO's definition of medical necessity is also included in the Frist-Breaux bill endorsed by the President. On this issue, the legislation before the Senate is clearly the middle ground. It is the fair compromise. But my concern is that the amendment we will face will tilt us away from that compromise and more to the HMO's. Now the authors of this amendment claim that they have just provided a safe harbor for HMOs that want to be able to maintain a fair definition of medical necessity throughout the entire process. But our list of the factors that must guide the external reviewers' decision is already consistent with every fair definition of medical necessity. The fact is that this amendment may create a safe harbor for HMOs, but it tosses patients over the side into the storm-tossed seas. It would allow HMOs to adopt some of the most abusive definitions ever conceived. It ties the hands of the independent medical reviewers. It puts HMO bureaucrats in the driver's seat--and kicks patients and doctors all the way out of the automobile and is not in the interest of the patient. Our concern is that the amendment we anticipate will be offered will say that HMOs could adopt any definition used by a plan under the Federal Employees Health Benefits Program that insures Members of Congress and the President, by a State, or developed by a ``negotiated rulemaking process.'' Each of these approaches is fatally flawed, if our goal is to protect patients. The Federal Employees Health Benefits Program plans can change their definitions every year. An administration hostile to patient rights can accept any unfair definition it chooses. To be perfectly frank, even administrations that support a Patients' Bill of Rights have not paid much attention to these definitions, because they have so many other controls over the way the plans behave. And Senators and Congressmen can always get the medical care they want, regardless of the definitions in the plan's documents, but ordinary citizens cannot. So the Federal employees' plan can change these definitions. It is important that we establish the definitions so it is very clear to the patients about how their interests are going to be protected. States often provide good definitions of medical necessity, but sometimes they do not. Do we really want, after the tremendous struggle we have gone through to pass this legislation, for consumers to have to fight this battle over this definition again and again in every State in the country year after year? I do not believe so. Administrative rule-making is only as fair as the participants. An administration hostile to patients' rights and sympathetic to plans can appoint any unfairly stacked set of participants that it wants. And finally, under the amendment, the plan gets to choose any one of these options. That is what we anticipate of the format of the amendment. So it could seek out the worst of the worst. But consumers get no comparable rights to demand the best of the best. If we look at the options that would be immediately available to health plans under the amendment, it is obvious why the disability community, the cancer community, the American Medical Association, and other groups who understand this issue are so vehemently opposed to that as an alternative--and why it is supported by no one but the health plans. There are no health groups that support that option--none, zero. All of the health groups effectively support what was worked out in the compromise last year and has been included in the legislation before us which, as I mentioned, I think is the real compromise. One Federal plan defines ``medical necessity'' as ``Health care services and supplies which are determined by the plan to be medically appropriate.'' That is a great definition. If the plan determines the service your doctor says you need is not appropriate, you are out of luck. There is nothing to appeal, because the plan's definition of ``medical necessity'' controls what the external reviewers can decide. Another plan uses different words to reach the same result. It says, medical necessity is ``Any service or supply for the prevention, diagnosis or treatment that is (1) consistent with illness, injury or condition of the member; (2) in accordance with the approved and generally accepted medical or surgical practice prevailing in the locality where, and at the time when, the service or supply is ordered.'' Doesn't sound so bad so far, but here is the kicker. ``Determination of `generally accepted practice' is at the discretion of the Medical Director or the Medical Director's designee.'' In other words, what is medically necessary is what the HMO says is medically necessary. Among those who have been most victimized by unfair definitions of ``medical necessity'' are the disabled. Definitions that are particularly harmful to them are those that allow treatment only to restore normal functioning or improve functioning, not treatment to prevent or slow deterioration. That is a key element in terms of the disabled community. Most of these definitions, even for Federal employees, say that they will permit the treatment just to restore the normal functioning or to improve functioning. So many of those who have disabilities need this kind of treatment in order to stabilize their condition, in order to prevent a deterioration of their condition; or if there is going to be a slow deterioration, to slow that down as much as possible. The only definition that really deals with that is the one which is in the McCain-Edwards and the Breaux-Frist legislation, which was agreed to because it does address that. That is why the disability community is so concerned about this particular amendment. Every person with a degenerative disease--whether it is Parkinson's, Alzheimer's, or multiple sclerosis--can be out of luck with this kind of definition. For example, in the clinical trials, you have to be able to demonstrate that the possibilities, by participating in the clinical trial, are going to improve your condition. There are other kinds of standards as well, but that happens to be one of them: to improve your kind of condition. We find that the Federal Employees Health Benefits Program uses language that is very similar to that. As I mentioned, when we are talking about those that have some disability--when you are talking about Parkinson's disease, Alzheimer's disease, multiple sclerosis--you have the kind of continuing challenge that so many brave patients demonstrate in battling those diseases, but you want to make sure that your definition of ``medical necessity'' is going to mean that really the best medicine that can apply to those particular patients, based upon the current evolving development of medical information, is going to be available to those patients. Another issue which should be of concern to every patient, but especially to those with the most serious illnesses, is the allowing cost-effectiveness to be a criterion for deciding whether medical care should be provided. The question is always, cost-effectiveness for whom, the HMO, or the patient? It was cost-effective for one HMO to provide a man with a broken hip a wheelchair rather than an operation that would allow him to walk again. It was cost-effective for another HMO to amputate a young man's injured hand, instead of allowing him to have the more expensive surgery that would have made him physically whole. It may be cost-effective for the HMO to pay for the older, less effective medication that reduces the symptoms of schizophrenia but creates a variety of harmful side effects rather than for the newer, more expensive drug that produces better cures and less permanent damage--but is it cost-effective for the patient and her family? Is this really the criterion we want applied to our own medical care or the care of our loved ones? And on a practical level, how in the world is an independent review organization ever supposed to judge cost-effectiveness. Its members under all the bills are health professionals, not economists. They have the expertise to decide on the best treatment for a particular patient, but they cannot and should not be asked to evaluate its cost- effectiveness. To paraphrase our opponents, when your child is sick, you want a doctor, not an accountant. But here we have one of the State plans saying, in its definition of medical necessity, ``cost-effective for the medical condition being treated compared to alternative health interventions, including no intervention.'' I urge my colleagues to stay with us on this definition and to resist an amendment to alter and change it. The amendment that we anticipate will reverse a bipartisan compromise broadly supported by Members of both parties. It is included in the bill the President has endorsed. The anticipated amendment will stand the whole goal of this legislation on its head. I think this is very likely to be a litmus test on the whole issue for the Senate. What we want to do is to make sure ultimately that it is the doctors who are going to make the best medical decisions, based on the information that they have available to them. That is what this legislation does, the McCain-Edwards, as well as in the Breaux-Frist. We do not want to change that. That has been basically supported by the President. It was supported in the conference. It represents basically the mainstream of the views of the Members of this body. We should resist any alteration or change of that particular provision.

Mr. KENNEDY. Yes.

Mr. KENNEDY. Mr. President, we encourage and invite colleagues who have amendments to come to the floor. Having talked with Senator Gregg and others, I anticipate we will have an amendment dealing with the issue of medical necessity. That is an issue which is of very considerable importance in the legislation. It was the subject of a good deal of debate the last time we debated this legislation. It was the subject of a good deal of debate when we were in the conference. It was actually one of the few issues that were resolved in the conference. At this time, we have language in the McCain-Edwards legislation, of which I am a cosponsor, as well as in the Breaux-Frist measure, which is virtually identical. There are some small differences in there, but they are effectively very much the same. There will be an amendment to alter and change that issue. I will take a few moments now to speak about the importance of what we have done with the underlying legislation, and hopefully the importance of the Senate supporting the construct we have achieved. It is my anticipation that the amendment will probably be offered at about 5 o'clock this evening. We will have debate through the evening on that measure. Hopefully, we will have a chance to address it. There are several other amendments dealing with the issue of the scope of the legislation, as well as on liability. I understand we may very well have the first amendments on liability a little later this evening as well. This issue on medical necessity is of very considerable importance. I want to outline where we are and the reasons for it for just a few minutes. The legislation before the Senate closes the door against one of the most serious abuses of the HMOs and other insurance plans, and the ability of a plan to use an unfair, arbitrary, and biased definition of medical necessity to deny patients the care their doctor recommends. My concern is that the amendment we are going to see before the Senate is going to open that possibility again. We closed it with McCain-Edwards and also with the Breaux-Frist measure. The issue before us is as clear as it was when we started the debate 5 years ago; that is, who is going to make the critical medical decisions--the doctors, the patients, or HMO bureaucrats? It is important for every Member of the Senate to understand how we got where we are on this issue. We started out by placing a fair definition of medical necessity. The plan would have to abide by the Patients' Bill of Rights itself. It was a definition that was consistent with what most plans already did. Every Democratic Member of the Senate voted for that approach. I still think it has much to commend it. But we heard complaint after complaint from the other side that putting a definition into law would be a straightjacket for health plans, it would prevent them from keeping pace with medical progress, and so on. So Congressmen John Dingell and Charlie Norwood changed that provision. They removed the definition of medical necessity from the law. Instead, they said, let the plans choose the definition that works best for them. But if a dispute went to an independent medical review, the reviewers would need to consider that definition. But they would not be bound by it in cases involving medical necessity; that is, they would be able to use in the review their own judgment in terms of the medical necessity. They would make the decision based on the kind of factors all of us would want for ourselves and our families--the medical condition of the patient, and the valid, relevant, scientific and clinical evidence, including peer-reviewed medical literature, or findings, including expert opinion.

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

Mr. KENNEDY. I don't know at this time of other amendments on this side. We are making good progress dealing with this legislation. We are eager to address these other matters. There are continued conversations on some of the issues. We certainly welcome ideas that can protect the patients. Looking at this realistically, we have several Members who want to address the Senate and have spoken to me several times that they would like to make comments about the legislation. We can use the time productively, but we indicate we are ready to deal with amendments and we look forward to receiving them. We want to continue business. We thank the Senator from New Hampshire for his cooperation. I will notify my colleagues who might want to speak.

Mr. KENNEDY. I agree. Senator, as you may know, the language in the alternative legislation not only permits the HMO to select the reviewer and to pay that, but also it preempts all the other States that have set up their own independent review, and 33 of the 39 that have set up their reviews have chosen a different way from this process, a truly independent review. They would effectively be usurped or wiped off the books. We hear a great deal about State rights and not all wisdom is in Washington. This is a clear preemption of all of the existing State appeals provisions. It is done in a way that permits the HMO to be the judge and jury. That is why the McCain amendment--which says there will be an independent selection of review, and we will not preempt the States--makes a good deal of sense.

Mr. KENNEDY. I thank the Senator. He has summarized the purpose of this legislation. As the Senator knows now, we are ensuring there will be remedies for those patients if the HMO is going to make a judgment and overturn that medical decision with internal and external appeals. Now the matter before the Senate is to make sure that appeal is truly independent and not controlled by the HMO, not paid for by the HMO. As I mentioned earlier in my presentation, 33 States at the present time do not permit the HMOs to make the determination and select the independent reviewer. That is our position. That is in the McCain amendment. We do not want to have an appeals provision that is rigged in favor of the HMO that may be making the wrong decision with regard to the patient's health in the first place and then be able to select the judge and jury to get it to reaffirm an earlier decision which is clearly not in the interest of the patient.

Mr. KENNEDY. That is correct.

Mr. KENNEDY. I thank the Senator for bringing two matters to the attention of the membership. One is the example the Senator referred to, and the other point is the fact we have heard so much during the course of the debate that if these protections are put in place, it is going to mean millions of insured individuals as a result of this legislation will become uninsured. Yet it is apparent, as the Senator has pointed out, that the HMOs have millions of dollars to spend on these advertisements--millions of dollars that ought to be spent on either lowering premiums or giving patients the protections they need. Evidently, it is an open wallet for the HMOs because they have been on the national airways and have been distorting and misrepresenting the legislation, as the Senator has just pointed out, distorting what its impact would be on average families in this country. I am wondering if the Senator is familiar with the Texas Medical Association letter we just received. It confirms that the Texas law mirrors the letter and spirit of the McCain-Edwards-Kennedy bill. This is from the Texas Medical Association. They point out that the Texas Medical Association and President Bush agree that any entity making medical decisions should be held accountable for those decisions. This is not only the position of the Texas Medical Association but is exactly what President Bush called for in a Patients' Bill of Rights. We resolved that issue earlier today. The Texas Medical Association believes it is consistent with the intent of the Texas law to hold any entity, whether employer or insurer, accountable if they make a medical decision that harms a patient or results in death. We upheld that today. The Texas law was never designed to exempt from accountability businesses that made harmful medical decisions. It was suggested earlier, the Senator remembers, that it would be, rather, a clarification that the liability provisions did not apply to small- and medium-sized businesses that purchased traditional insurance. That is interesting to hear because we heard a great deal earlier about where the Texas Medical Association was. This is a clarification. The Senator is pointing out we spent a good deal of time trying to catch up with the distortions and misrepresentations, but as the Senator from Nevada knows, what this is really about is doctors and nurses making decisions on health care for their patients and not having them overridden by the HMOs or by employers who put themselves in the place of HMOs. That is what this legislation is about: letting our doctors and nurses practice their best in medicine. We have so many well-trained medical professionals. They are highly motivated, highly committed, and highly dedicated. What is happening in too many places, as the Senator has pointed out in this debate, too many times those medical decisions are being overrun and overturned by the HMOs, and that is plain wrong. That is what this battle is about. I thank the Senator for his comment.

Mr. KENNEDY. Yes, I certainly have.

Mr. KENNEDY. No HMO should behave as the Carley's did. And that HMO should certainly not have the right to choose the external review organization to decide whether Carley should get the care she needed. Another case that I find particularly shocking is that of Melissa Yazman, right here in Washington. In May, 1997, Melissa Yazman was a second year law student at American University, going to school full- time, living in suburban Virginia, working part-time for an attorney in D.C., and taking care of her two kids while her husband traveled with his job. In the past 4 years, much has changed for Melissa. Her dreams of law school and a career in the working world are gone, and her new career is focused on healing and living every day to enjoy the time she has with her husband and her two sons--Ben who is 11, and Josh who is 8. In the spring, in 1997, at the age of 36, she was diagnosed with stage IV pancreatic cancer at the age of 36. Pancreatic cancer is a fairly rare cancer, and, for the majority of patients like Melissa, diagnosis is not possible until the cancer is in an advanced stage. Melissa was told that she had 3 to 6 months to live. There are no curative treatments for pancreatic cancer. For most pancreatic cancer patients clinical trials are their only hope. Melissa was referred to a clinical trial at Georgetown University. Her insurer refused to cover the treatment. Melissa and her husband were forced to go through lengthy and time consuming negotiations with the insurer--negotiations that took her husband away from their children for 2 to 3 hours a day--negotiations that ultimately ended in failure. She and her husband ended up paying for these costs themselves because they ran out of time waiting for a decision from her insurer. Because she and her husband had enough money in their savings account, they were able to pay for her routine costs--costs that her insurer should have covered and would cover for a patient not enrolled in a lifesaving clinical trial. Because of the therapy she received in a clinical trial, Melissa has been able to have 4 extra years with her family and with her young boys. Without the clinical trial, she would have had 3-6 months. Every patient with incurable cancer hopes for enrollment in a clinical trial that can save or extend their life. No patient should have their hopes dashed because their insurer simply says no. And no patient like Melissa should have their right to a fair, impartial appeal voided because the HMO that said ``no'' gets to choose the organization that will decide the case. For cancer patients, for women, for children--indeed, for every patient whose HMO denies critically needed cars--the right to a speedy, fair, impartial appeal should be a fundamental right. This amendment will put the Senate on record as saying that this appeal should truly be fair and impartial, that it will not load the dice and stack the deck against patients. Every Senator knows that this amendment represents simple justice, and I urge every Senator to vote for what they know to be right. Madam President, I suggest the absence of a quorum.

Mr. KENNEDY. I yield myself 5 more minutes, Madam President.

Mr. KENNEDY. Madam President, the cornerstone of an effective patient protection program is the right to timely, fair and independent review of disputed medical decisions. This amendment reaffirms a critical element of that right--the right to an independent appeal process that is not stacked against patients by giving the HMO the right to select the judge and jury. This is a critical difference between our approach to that issue and the approach of the alternative legislation before the Senate. Under their bill, the HMO gets to select the so-called independent appeals organization. Under our bill, neither the HMO nor the patient selects the appeals organization. Instead, it must be selected by a neutral and fair appeals process. This amendment puts the Senate on record as supporting that fair and impartial appeal process. The approach of allowing one party to a dispute--in this case the HMO--to select the judge and jury to a dispute is so inherently unfair that it has been rejected out of hand by virtually every expert who has considered the issue. It flies in the face of every principle and precedent founded on fair play. We don't allow it in our civil court procedures. We don't allow it in our criminal procedures. Doesn't a child with cancer whose HMO has overruled her doctor deserve at least the same basic fairness we provide for rapists and murderers? The unfair approach of allowing one party to the dispute is not only alien to our court system, it is prohibited under the Federal Arbitration Act. It is unacceptable under the standards of the American Arbitration Association. It is rejected by the standards of the American Bar Association. Of the 39 States that have created independent review organizations, 33 do not allow it; neither should the Senate. Do we understand, in the 39 States that have created independent review organizations, 33 do not allow the HMO to select and pay the independent reviewer; and neither should the Senate. Under the fair external review approach we have in Medicare and in most States, the reviewer decides the plan is right about half the time and decides the patient is right about half the time. In the financial services industry, the industry gets to select the reviewer in disputes, and the industry wins 99.6 percent of the time. No wonder HMOs want that system: it makes a mockery of the whole idea of independent review. A vote for this amendment is a vote against making this bill a mockery of everything that a true Patients' Bill of Rights should stand for. And how ironic it is that the sponsors of the competing proposal are vociferous supporters of the President's principle that we should preserve good State laws. But under this amendment, the 39 State external appeals systems currently in place would be wiped out. Do we understand? There is one provision in the two major pieces of legislation before us; that is, the McCain-Edwards bill and the Breaux- Frist bill. In the Breaux-Frist bill, their appeals provision effectively preempts all of those 39 States. They have to follow what is in their legislation. As I pointed out, that is the process by which the HMO selects the independent reviewer. They would be null and void, even where they provide greater consumer protections than the Federal standard. In all of these instances, the consumer has greater protection than even under the underlying proposal of the McCain- Edwards bill. We have heard a lot of tragic examples of HMO abuse during the course of this debate and through the extensive discussions in the press over the last 5 years. We heard of children denied lifesaving cancer treatment by their HMO. It is wrong to let that same HMO choose the judge and jury that could decide whether those children live or die. And our amendment says it is wrong. We have heard of women with terminal breast and cervical cancer denied the opportunity to participate in clinical trials that could save or extend their life. It is wrong to give that same HMO that overruled the treating physician and denied the care the right to chose the judge and jury that could decide whether that woman has a real chance to live to see her children grow up or is guaranteed to be dead within 3 months. We have heard of a young man whose HMO decided that it was cost- effective to amputate his injured hand instead of providing the surgery that could restore normal functioning. It is wrong to give the HMO that made that heartless decision the right to choose the judge and jury that could decide whether that young man goes through life with one hand or two. We have head of a policeman with a broken hip, whose HMO decided it was better to give him a wheelchair than to pay for the operation that would have restored his normal functioning. It is wrong to give the HMO that put its profits so far ahead of that patient's interests the right to choose the judge and jury that will decide whether that man ever walks again. Last week, in discussing the issue of access to specialty care, I mentioned what had happened to Carley Christie, a 9-year-old little girl who was diagnosed with Wilms Tumor, a rare and aggressive form of kidney cancer. Her family was frightened when they received the diagnosis, but they were relieved to learn that a facility close to their home in Woodside, CA, was world-renowned for its expertise and success in treating this type of cancer--the Lucille Packard Children's Hospital at Stanford University. The Christie family's relief turned to shock when their HMO told them it would not cover Carley's treatment by the children's hospital. Instead, they insisted that the treatment be provided by a doctor in their network--an adult urologist with no experience in treating this rare and dangerous childhood cancer. The Christies managed to scrape together the $50,000 they needed to pay for the operation themselves-- and today Carley is a cancer-free, healthy and happy teenager. If the Christies had been less tenacious or had been unable to come up with the $50,000, there is a good chance that Carley would be dead today. Under our opponents' plan, the HMO that passed a possible death sentence on little Carley Christie would have the right to choose the judge and jury to determine whether that possible death sentence should be upheld. No family should have to go through what the Christie's did.

Mr. KENNEDY. I yield myself 7 minutes.

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

Ted Kennedy

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