Ted Kennedy

Mr. KENNEDY

Mr. KENNEDY. Will the Senator yield for a brief question?

Mr. KENNEDY. I listened carefully to the Senator. As a member of our committee, I know she gives a good deal of attention and time to health care and education issues, as well as the other matters that come before our committee. We take her words seriously. While listening to her, I was reminded that the Maine Medical Society, which represents the medical community in the State of Maine, is in strong support of our proposal. Which proposal does the Senator support at this time?

Mr. KENNEDY. May I ask one further question. The Maine law includes clinical trials, but does not include FDA clinical trials. The proposal of Senator Edwards and Senator McCain does include clinical trials. Most of the women's groups, including women's cancer groups are strongly in support of this provision. They recognize that many pharmaceutical companies are on the edge of breakthroughs in the development of these new products. I am interested in this illustration. The provisions for clinical trials in Maine are preferable, quite frankly, to the provisions included in Breaux-Frist, where there are a number of problems. Wouldn't the Senator from Maine feel that including the patients in Maine in these FDA protocols might be helpful if they meet the other requirements? For example, what if a doctor feels that participating in these clinical trials means there is a real possibility of relieving a patient's medical condition?

Mr. KENNEDY. Mr. President, I will inquire of the Senator. If I may have the Senator's attention, is the Senator supporting the Breaux- Frist bill at this time? Is the Senator going to work with Senator McCain, a cosponsor with Senator Edwards, to try to see if we can find common ground within the next week?

Mr. KENNEDY. Finally--and I see the Senator from Connecticut here-- the point I would like to clarify is that the Edwards bill isn't preempting the States. They have identical provisions. The States' provisions and protections, if substantial, will stand. They don't have to be identical. I just wanted to clarify that particular issue as we go through the course of debate. I yield the floor.

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. KENNEDY. Mr. President, I look forward to addressing the Senate tomorrow morning.

Mr. KENNEDY

Mr. KENNEDY. Let me speak to this point. I am confused as to why there is an attempt by the Republican leadership to misrepresent what is in the employer provisions of the bill on page 144. I think all of us who have been around here find language is misrepresented and subsequently individuals disagree with the misrepresentation. It appears that is what is happening. The Senator has stated my understanding. Then if we look at page 144, regarding the responsibility of the employer in the plans, it says: Causes of action against employers. . . . Then it says: Subject to subparagraph (B), paragraph (1)(A) does not authorize a cause of action against an employer or other plan sponsor maintaining the plan (or against an employee of such an employer or sponsor acting within the scope of employment). That is extremely clear. In the President's language, which he sent to the Congress, and I have here, the President lists his requirement in his bill of particulars, which says: Only employers who retain the responsibility for and make final medical decisions should be subject to the suit. That is what President Bush said is the principle. It is my understanding that that exact point is stated in the legislation on page 145, line 8: . . . to the extent there was direct participation by the employer. . . . That talks about when they would be open to the responsibility. But as I understand it, and I welcome the comments of the Senator, that completely conforms with what President Bush himself has established. Is that correct?

Mr. KENNEDY. I am glad to yield.

Mr. KENNEDY. Mr. President, before the Senator leaves, I wonder if he might respond to a question or two as one of the principal sponsors. First of all, I wonder if he shares with me a certain degree of disappointment that we are not going to have the opportunity to debate these protections that are so important for American families. Every day that we fail to take action, families are being hurt. Without this legislation, more than 50,000 of our fellow citizens today are going to suffer further injury or pain. This is the result of failing to take action. I want to make some general comments along the lines of those that the Senator made. I first say that that was an outstanding presentation with regard to the substance. It is difficult for me to understand the opposition to this, other than, as the Senator pointed out, the special interests of the HMO industry do not want it. I have not heard the administration or the Senators who are in opposition, indicate what protections in this legislation they would not want to give to the American people. We were informed by the Republican leadership that because this bill has been changed so many times, we need to hold further hearings to find out what is in it. There have been no hearings since March of 1999. One of the leaders pointed to paragraph (C) in the legislation, where employers can be held accountable. Then they talked about the rising costs of 20 percent a year and talked further about employer liability. As I understand, the changes that had been made over the weekend were basically in response to some of the observations that were made about the underlying legislation. One question was about whether you could be sued in Federal or State court. The opposition claims our bill allows them to be sued in Federal and State courts at the same time. This was never the intention. I understand there was an attempt to explicitly clarify that proceeding so there would not be two forums. I understand that was one of the clarifications made. It was never intended to permit forum shopping and that was clarified. I might mention the rest, since there were only four of them, and then get the reaction of the Senator since he was very much involved in this. No. 2 was the question about the exhaustion of appeals before going to court. The opposition claims our bill made it too easy to go to court, arguing that patients can bypass the appeals process simply by alleging harm. Since it was not our intent to make it easy to bypass appeals, we resolved this matter by eliminating the word ``alleged.'' The third was about making it easier to sue doctors. The other side has been claiming our bill makes doctors liable for plan administration. This is a rather technical issue, being sued in State court and now in Federal court again. That wasn't the intent. We clarify that the positions are protected. We also included language to extend civil protections to hospitals and insurance agents. There was some question about the application of the language. The change was specifically included to clarify that, to demonstrate the protections for those groups. In the fourth change, regarding protecting the State cause of action, we added clarifying language to protect existing State court jurisdiction from inadvertent preemption under our bill. A rather extraneous example or two were given that might have created some confusion. As I understand it, that was the fourth piece of clarifying language. Finally, the IRS enforcement language was dropped, including an additional enforcement provision that we understand has a revenue impact and a blue-slip problem. To avoid the blue-slip issue, we dropped the provision. Those are the totality of the changes. Evidently they are being used to somehow represent that there were major kinds of alterations or changes to the bill which are difficult to understand. Therefore, the other side refuses to permit us to begin the debate on the bill. If the Senator would be good enough to indicate to me whether it is his understanding that these were the areas in which adjustments were made and whether the representations that were made, in terms of the clarifications? Was that his understanding as well?

Mr. KENNEDY. We are about to recess.

Mr. KENNEDY. Fine. Mr. President, so how much time remains? It is now 12:30.

Mr. KENNEDY. Fine. Mr. President, this whole debate should remain focused on what it is really about. What this debate is really all about is that doctors, nurses and families are going to make decisions. And those decisions ought to be carried out. They should not be overturned by bean counters and accountants working for HMOs thousands of miles away. These accountants do not have the training, do not know the patient, and do not know the complete medical circumstances surrounding the patient's case. That is what this legislation is really all about. We have taken the kinds of protections which have been outlined now by the Senator from Arizona and the Senator from North Carolina and indicate what those protections are. There are 26 different protections which have been included. We have yet to hear from the other side, as we have had these debates now for 2 or 3 years, regarding which protections they do not agree with. Is it the emergency room? Is it the clinical trials, specialty care, or the OB/GYN protections? Is it the gag rules? We have not heard what particular guarantees and protections that are there for the American families to which they object. They talk a good deal about the cost of this legislation. They want to do the bidding, I guess, of the HMOs, and have them be the one industry in this country not held accountable for actions they take that can harm, kill, or maim children and workers in our country. What we are basically saying is, if HMOs make decisions which put individuals at risk, then they ought to be held accountable. The HMOs should be held accountable. If there is an employer making a similar decision which is going to result in the same kind of pain and affliction to that individual, they ought to be held accountable. Otherwise, employers that just go out and make the contracts should not be. If there is a question of clarification of language, we would work that out. Over the period of time, one of the attacks that has been made on this legislation is its potential cost. I want to say that is an old red herring. I was here not long ago when we passed the Family and Medical Leave Act. We had the Chamber of Commerce stating the cost of the Family and Medical Leave Act was going to be $27 billion a year on American industry. It is not. It has been an enormous success, and companies have welcomed it. And there is going to be the opportunity to expand it. I was here when we debated the portability of health care for those individuals with disabilities, the Kassebaum-Kennedy bill. We heard at the time that it was going to increase premiums by billions and billions of dollars. It has not. It is working, and there is no one here to suggest that we should not have gone ahead on it. I was here when we heard the question: Should we increase the minimum wage? There were those who said it was going to mean hundreds of thousands of people were going to lose their jobs, and that it was going to add inevitably to the problems of inflation. It has not. We know the scare tactics that were being used in terms of the cost in the past, and they are the same kinds of scare tactics that are being used at the present time. The CBO, as the Senator from North Carolina has pointed out, indicates that last year premiums went up 10 percent, and the top four or five HMOs had $10 billion in profits in our country. They estimate that 20 percent of every premium dollar paid goes to advertising, administrative expenses, and large salaries for these individuals. It went up 10 percent last year. It went up 8 percent the year before. As the CBO estimates, under the Breaux-Frist bill, it will go up 2.9 percent over 5 years; and under the McCain-Edwards bill, 4.2 percent--a 1.3-percent difference. As the Senator from North Carolina pointed out, if you look at those figures, the difference is in the additional kinds of expanded opportunities for patients, such as for clinical trials. For example, women need those clinical trials in relation to breast cancer. We need to make sure they are going to be able to have those trials. We have to have greater access to specialists. If a child has, as my child had, an osteosarcoma--which only 1,200 children in this country have--they need a pediatric oncologist. They shouldn't go to a general practitioner to make the recommendation for the kind of treatment that resulted in the saving of my son's life. We are talking about access to those kinds of specialists. We see there is a difference between the bill we have before us and that which the opposition favors.

Mr. KENNEDY

Mr. KENNEDY. The answer is yes, not only have I heard it, but I remember debating with my good friend from Oklahoma on the increase for HCFA, which was recommended by the General Accounting Office--that there would be an $11 million increase for HCFA to administer. He opposed that. He fought it tooth and nail. So they did not get the additional support. And then they complain when they are inadequately staffed to do the job. Thankfully, $2 million came out of the committee, even though we were unable to get anything on the floor. I said this to my friend, Senator Nickles, so I do not mind mentioning it here in his absence because--he is here now. He remembers his battle against giving additional funding to HCFA to implement the Kassebaum-Kennedy bill, and he took great relish in that opposition. The Senator from Nevada has pointed that out. I agree HCFA is a challenge because we have given them a great deal of additional responsibility in recent times. We have given them the CHIP program which is working in the States. They are doing a good job. They have Kassebaum-Kennedy, which is the portability legislation to help those who are disabled move around through jobs and not be discriminated against. I am reminded by my staff that the latest GAO report shows HCFA is doing a good job, and virtually every State is effectively administering the Mothers and Infants Protection Act and the Women's Cancer Act, which have been additional responsibilities for HCFA. They are doing a good job with that as well. I know it is easy to have whipping boys around here. HCFA is out there. We all can probably find instances in our own States where we wish they had made other decisions. That certainly should not be used as an excuse in opposition to this legislation.

Mr. KENNEDY. Yes.

Mr. KENNEDY. Not completely. What the State of Massachusetts complies with is the CHIP program. Massachusetts is the No. 1 State in the Union with the lowest number of uninsured children. We have done an outstanding job with that. We still have work to do in other areas, such as HIPAA. Rather than take the spirit of the legislation that Senator Kassebaum believed to be the case--I had serious doubts about it--which was that there would not be a significant increase in premiums--we find a number of States, with the support of the insurance industry, have raised rates so high as to undermine the effectiveness of the program.

Mr. KENNEDY. Parts of it they do; not all of it, I say to the Senator.

Mr. KENNEDY. That is fine. I am not going to get into whether the Republican Governors in my State were in opposition to enforcing it. That is not relevant here tonight. The point is, Mr. President, this legislation we have before us tonight protects children, women, and families. It is about doctors, nurses, and families making decisions that will not be overridden by bureaucrats and HMOs. That is what this legislation is about. We welcome the chance finally, finally, finally, to have it before the Senate. We look forward to the amendments to begin. I suggest the absence of a quorum.

Mr. KENNEDY. The Senator is exactly correct. Under the proposal before us, if there is substantial compliance, then the State provisions will rule the responsibility and liability provisions. That is why I was so interested in what the Senator from Oklahoma said about not being able to decide this in Washington, DC, because it is one size does not fit all; we have all learned that. That is not, of course, what this legislation does. It lets the States make the judgments about liability. I am very interested in the fact there are a number of Senators on the other side who do not want to permit their States to make the judgments with regard to liability issues. That is where the liability and negligence issues have been decided for over 200 years. The States have the knowledge about these issues, and transferring responsibility into the Federal system does not make a lot of sense. There are long delays, more distance, and it is more costly to the patients. We will have a full opportunity to debate those issues. I look forward to that debate. The Senator is quite correct, we have in this legislation, in the liability provisions, shown very special deference, as has been stated during the course of the day. Effectively 90 percent of these cases will be tried in State courts. Only 10 percent will actually be tried in Federal courts, and those will be limited to contract cases. The Senator is quite correct that we are relying upon the State system of justice, and that is the way it ought to be in this case. Senator McCain, Senator Edwards, and others involved in the development of that proposal found a good solution to it.

Mr. KENNEDY. The Senator is correct, and I will end with this note. We can speculate and theorize, but under these circumstances we ought to look at the record. We have 50 million Americans who have protections like what we are trying to provide for 170 million additional Americans in the liability provisions. Those who have protections are State and local employees and individuals who purchase insurance. They have the right to sue. There is absolutely no evidence that there has been a proliferation of lawsuits. There has not been any kind of abuse of the system, although those who are opposed to our legislation have alleged that. Secondly, there is absolutely no evidence that the costs for these various policies are in any way more costly than those without the liability provisions. I yield the floor.

Mr. KENNEDY. Will the Senator yield for a question?

Mr. KENNEDY. Mr. President, I thank the Senator for his strong leadership in this battle over a very long period of time. As the Senator was mentioning in the beginning of his remarks, this has been a 5-year pilgrimage, where those who have fought for this legislation have effectively been denied the opportunity to bring this measure up on its own in the Senate. The Senator can remember last year when we had actually a numerical majority in this body, bipartisan in nature, who would have voted for this. But we were denied that opportunity. Now, as the first order of business under the leadership of Senator Daschle--I think it was the first comment he made after assuming leadership, that this was going to be a first priority following completion of the education bill. I have a couple of questions because I, too, have had the good opportunity, as the Senator from North Carolina has, to travel to Iowa. More importantly, I have had the good opportunity of working closely with the Senator in the development of this legislation. The Senator can agree with me that the protections we have in this bill are basically pretty mainstream kinds of protections that I think families could recognize right at the outset. I don't have the particular chart here. We will have an opportunity to get into those as the debate proceeds. We are talking about emergency room coverage and about specialty care, and we are talking about clinical trials and OB/GYN; and we are talking about prohibiting gagging doctors and talking about continuity of care and about point of service, so we can make sure we can get the best treatment for families needing those kinds of protections. The list goes on: prescription drugs, the right kinds of prescription drugs, and then appeals, internal and external, and then accountability provisions. Doesn't the Senator, at times, wonder with me what are the particular protections in there to which the opponents object? What are the protections to which they most object? They say: We can't do this; we oppose this; we won't let you bring this up. These are basic kinds of protections which, as the Senator knows, are either protections that exist under Medicare or Medicaid or have been recommended by the insurance commissioners who are not known to be Democrats or necessarily Republicans--pretty bipartisan and nonpartisan in most States. The only provisions that we have taken in the Patients' Bill of Rights--additional protections--were those that were unanimously recommended by a bipartisan commission that was set up under President Clinton. They were unanimously recommended, without dissent effectively. They recommended that the HMO association adopt them. We said, because they were so important, to protect them we would put them in as a floor to make sure they are accepted. Does the Senator not wonder with me what the principal objectives are? Finally, let me ask, does the Senator not believe that every day we fail to pass this legislation people are being hurt? I took the opportunity yesterday to mention briefly what the Kaiser Foundation has found and what the various studies show. They show that every day we fail to take action, families, real people--parents, mothers, fathers, sons, daughters--their injuries are being expanded and their hurt and suffering is increased and enhanced because we are failing to pass this legislation. Doesn't the Senator agree that for all of these reasons, and others, the importance of passing this legislation in a timely way, the importance of passing it now, the importance of supporting our leader and saying let's finish before we consider other work, deserves the support of everyone in this body?

Mr. KENNEDY. Madam President, has the time expired?

Mr. KENNEDY. I thank the Senator.

Mr. KENNEDY. Madam President, I see my friend from Nevada on the floor. I wanted to make a few comments at the end of our first day of discussion. Madam President, I just hope those who are watching this debate have some understanding about the history of this legislation and what it really is all about. This legislation was first introduced 5 years ago. So that is why we hear on the Senate floor that our colleagues are glad to consider the legislation. We should be eager to consider this legislation because every day that we let go by there are more than 50,000 people who are experiencing increased suffering and injury. There are 35,000 people today who didn't get the specialist they need in order to help them mend and get better. There are 12,000 patients who, tonight, will be taking prescription drugs that were not what the doctor ordered, but what the HMO is giving them. There are countless illustrations where the HMOs' decisions are being made by bureaucrats and bean counters in cities many miles away from the highly trained professional medical personnel who are trying to provide care. These health care professionals are making decisions that are being countered by accountants and bean counters who aim to enhance the bottom line of the HMOs. The real issue, when it is all said and done, is whether we are going to put into law some rather minimum standards that are already effective in Medicare and Medicaid. These fundamental standards have been recommended by the insurance commissioners, and unanimously by a bipartisan panel. I have listened carefully to a number of the statements that have been made out here recently. I did not detect any statements directly before the Senate that are critical of the proposal that has been advanced here. Yet there has been an objection made. I haven't heard them say: let us not have that protection for the people, or let's not give them the emergency care protection, let's not give them the specialty protection, let's not give them the clinical trials in there. Did anybody hear that during the course of the afternoon? I did not hear that. That is what this is about. That is what this is about. As we all know, people try to make the best case they can in opposition. And at the end of this first day, I find I am very much encouraged by the range of speakers who have spoken in favor of this legislation. I think there is increasing understanding by the American people, as in the debate here in the Senate, about the importance of this legislation. We know the HMOs are spending millions of dollars on distortion and misrepresentation. They ought to be spending that on patients' care, but they are not. We welcome the opportunity to get to the bill before us and then have a full debate on these matters. There are some who wonder whether this is a bipartisan bill. I was listening to my friend and colleague from Oklahoma say he really wonders whether this is a bipartisan bill. Well, Congressman Norwood, Congressman Ganske, and 63 Republican Members of the House of Representatives certainly believe that it is a bipartisan bill. We are certainly proud of the Republicans who have supported this measure in the Senate. I think that gives us hope. I see the Senator from Nevada.