Ted Kennedy

Mr. KENNEDY

Mr. KENNEDY. Mr. President, we have 2 \1/2\ minutes left. I will use those minutes. I want to point out for the benefit of the membership, we have almost concluded our 50 minutes of debate. The debate has included a number of different amendments. All are very important because they all relate to the doctor-patient relationship. That is the heart of our entire bill. The heart of our bill is to make sure that medical professionals are able to practice the best medicine and make the best recommendations and that the insurance companies will comply with those recommendations. The heart of our bill is maintaining the relationship between the doctor and his or her patient. That is the heart of our bill. We still have not had any real criticism, observations, or comments on those issues. We had some debate in the HELP Committee when these matters were raised. I note the proponents of those particular amendments--those who were on the committee and those who were not--were on the floor ready to respond to questions. Nonetheless, we have heard debate on the overall legislation. We still have not heard a response to what I think has been a powerful presentation in favor of these measures. Again, I will mention very quickly what this amendment is about. This amendment is critical to preserving the relationship between medical professionals and patients, as well as providing fair information to consumers. Today, medical professionals are too often gagged, harassed, and financially penalized if they advocate for their patients. I am reminded in my own State of Massachusetts of Barry Adams who was fired for simply reporting quality of care problems to his superiors. This happened just 3 months after he received a glowing evaluation that said he was an excellent role model, conducted himself in a professional manner, was an advocate for patients, and channeled his concerns appropriately. Yet after he spoke up about his concerns, the facility mounted a campaign to oust him. The month he was fired, a woman died from a morphine overdose given by an unsupervised junior nurse. This was the very type of incident Barry reported previously, the very type of incident that Barry reported in the complaint that led to his firing. The facility also retaliated against two of his colleagues who reported unsafe patient conditions. Barry fought back, and more than a year after he was fired, a judge ruled that Barry's termination was unlawful. The judge ordered the hospital to reinstate Barry, pay all back wages and expunge his record. He won. But the point is, he never should have been fired in the first place. This amendment prevents that from happening.

Mr. KENNEDY. So they wouldn't be affected by the Republican program in any event.

Mr. KENNEDY. I thank the Senator.

Mr. KENNEDY. I yield the Senator from New York 3 minutes.

Mr. KENNEDY. Will the Senator yield?

Mr. KENNEDY. I yield 9 minutes to the Senator from Minnesota.

Mr. KENNEDY. Mr. President, if the Chair would be good enough to let me know when 5 minutes remain. Mr. President, a little over 2 years ago, a number of Members were working with those involved in the health care field, those that have been injured because of actions taken by HMOs, and those doctors and nurses who believe that we could do better. Tonight we are at a point in the development of a policy where we have seen a setback in terms of protecting patients. We have seen a setback in giving patients and their doctors the opportunity to make medical judgments, rather than having their medical judgments overridden by the economic judgments made by gatekeepers, accountants or insurance company officials. We have received a setback, but I, for one, am not discouraged. I believe that as a result of the last 4 days of debate not only do we have a better understanding about what is important, but I think the American people have a much better understanding. I think the actions we can expect from the House of Representatives as we begin their debate and discussions starts at an entirely different level. I am very hopeful we will get a strong bill out of the House of Representatives. I am absolutely convinced, as I stand here, that we will have the opportunity to resolve this issue in favor of the concept underlying the Democratic bill, a concept which as been supported by doctors, nurses, by children's advocates, women's advocates, and advocates for the disabled: that when doctors and patients make a medical judgment, patients will get the type of health care they have actually paid for and not be prevented from getting the best health care. I am absolutely convinced that is a concept that will be accepted. It was not accepted during this debate. Others will have a different judgment on it. I believe that is inevitable. We have seen other battles where we have seen the inevitability come to pass. I am convinced of it. I, for one, think this has been an enormously constructive and productive debate these last 4 days. Quite frankly, as one who has been fortunate enough to be involved in this debate, rarely have I seen--at least on our side--so much involvement by the Members, and their participation, their knowledge, their awareness and the wealth of experience that was brought to illuminate so many of these issues. I think that has to be to the benefit of the American people. I am not discouraged. I regret that we were not successful, but we will continue this battle and we will be successful. In conclusion, I do thank the majority leader and thank the Senator from Oklahoma, for they have responsibilities as leaders of this institution. I thank them for the way in which this debate has been developed and the structures for the discussion that have been afforded to us over the past days. I thank in particular our leader, the Democratic leader, Senator Daschle. I thank Senator Daschle on behalf of those of us who feel strongly about this issue--it is not just, I know, those of us on this side. I am sure those on the other side also feel strongly but have come to different conclusions than those we came to about this issue. We would not have had the debate this week if it had not been for Tom Daschle of South Dakota. There are no ifs, ands or buts. This has been, I think, an extraordinary service to this institution, and I think it has been an extraordinary service to the patients and the medical professionals in this country. I thank my colleague and friend, Senator Reid, who was so much a part of the leadership, and of such help and assistance during this time. I thank the members of our committee. I serve on a number of committees and have been proud to serve on all of them. But my heart is with the Health, Education, Labor and Pensions Committee. All of our members were extremely active. Senator Dodd; Senator Harkin; Senator Mikulski, who has been so involved in health care issues; Senator Bingaman; Senator Wellstone; Senator Murray; Senator Reed--every one of these Senators has been so engaged and involved in this issue. I pay tribute to our chairman, Senator Jeffords, for his courtesies, and Dr. Frist, for his strong dedication to trying to find ways--which we were unable to on this measure. But I have respect and affection for the members. I also thank so many others who were not on the committee who were so involved and engaged, particularly those on our side, although there were others on the other side. I also wish to thank the many staff people who have worked on this issue this week and for the past two years. From my staff, David Nexon, my long time chief health advisor, Cybele Bjorklund, my deputy health advisor, who worked so ably on this legislation, Michael Myers, my staff director, for his leadership on this legislation, Will Keyser, Jim Manley, Connie Garner, Melody Barnes, Carrie Coberly, Matt Ferraguto, Jacqueline Gran, Jon Press, Ellen Gadbois, Stacey Sachs, Theresa Wizemann, Webster Crowley, Andrew Ellner, Paul Frey, Arlan Fuller, Sharon Merkin, Dan Munoz, Malini Patel, and Kate Rooney. From Senator Daschle's staff, Bill Corr, Laura Petrou, Ranit Schmelzer, Mark Patterson, Jane Loewenson, and Elizabeth Hargraves; the staff of the Department of Health and Human Services and the Department of Labor; the staff of the Democratic Policy Committee; and the staffs of so many other Senators that have played a critical role during this debate. I think, as always, their involvement and their support has been invaluable, permitting us to have a level of discussion which I think was worthy of this institution. Finally, I want to say on this issue, as all of us would understand in our responsibilities, that we will be back. We may have a setback tonight, but I, for one, do not believe this is a setback in this issue. We will be back to fight, and fight, and fight again, and I believe ultimately to prevail. I thank the Chair.

Mr. KENNEDY. Just for a question, may I yield a minute to Senator Dorgan?

Mr. KENNEDY. Mr. President, I yield myself 9 minutes. We are drawing to a close on this debate. While I am pleased that our colleagues have addressed an issue related to genetic discrimination in their bill, I am very concerned about the way in which this has been approached and I regret that we have not had sufficient time to focus on this issue. I was a co-sponsor of Senator Snowe's original bill in the 105th Congress, which contained strong penalties and disclosure prohibitions. Unfortunately, the Republican bill will not stop genetic discrimination, because it lacks three key provisions. First, the Republican bill does not prohibit discrimination by employers. If we only address health insurance, we could actually increase employment discrimination. Second, the Republican bill does not prohibit health insurers from sharing the information with each other and with employers. Finally, the Republican bill lacks teeth. The only penalty in the Republican bill for genetic discrimination is a fine of $100 a day. Do we really think that $100 a day will deter the health insurance industry from practicing genetic discrimination? That is why Senator Daschle, Senator Harkin, Senator Dodd and I introduced legislation earlier this month to truly prevent genetic discrimination. Our bill prohibits disclosure of genetic information to employers, prohibits employment discrimination, and contains strong penalties. The bottom line is that people are afraid, and that prohibiting health insurance discrimination is not enough. We have letters from patient groups, women's groups, medical groups, and labor groups, asking us to stop employment discrimination, place some limits on disclosure of predictive genetic information, and back up these prohibitions with strong penalties. I look forward to passing a meaningful genetic discrimination bill after this debate. As to our debate this week on the Patients' Bill of Rights, I think it is fair to look at the reaction in communities across the country. I would like to share this with our colleagues. Here is the St. Louis Post-Dispatch editorial, July 14 of this year: The Republicans keep asking the wrong question about health care. Instead of asking how to keep the quality of health care high, their primary concern seems to be how to keep the cost of health care down. They are paying too little heed to the symptoms of an ailing health care system, which are hard to miss. There is a drumbeat of HMO horror stories. Sure, people want inexpensive health care. But it is increasingly apparent that neither doctors nor nurses nor patients are willing to have appropriate medical care dictated by HMO bureaucrats with their eyes on the bottom lines. Dayton, OH: The Republican's bill is largely a statement of goals. The Democrats' bill provides better support for patients and medical-care providers. . . . The Atlanta Journal and Constitution, July 15: It's called the Patients' Bill of Rights but by the time the U.S. Senate gets done with it a better title will be ``The HMO Protection Act.'' On amendment after amendment this week, Senate Republicans have had their way, creating a bill that seeks to limit the rights of HMO patients, not protect them. . . . Relying on the mercies of the marketplace and the HMOs to meet America's health care needs has not worked and will not work. Patients need protections. That's what Congress ought to provide. New York Times, July 15: What occurred on the floor of the Senate this week was a GOP-sponsored charade in which one Republican Senator after another talked about protecting the health of patients while voting to protect the profits of industry. It was a breathtaking exercise in hypocrisy. . . . All that mattered was the obsession with the profits of the insurance companies and the HMOs. Newsday, July 15: Medical insurance? Try malpractice by GOP. The Fort Worth Star-Telegram, July 13, a column by Molly Ivins: We are watching a classic political shell game: There's the Patients' Bill of Rights that actually gives the patients some rights and there's the Patients' Bill of Rights that doesn't. . . . The reason we know this is pure hooey is because the very bill they are opposing has already been in effect in Texas for over two years and none of the heinous consequences they predict has occurred here. If the Republicans and the insurance industry have their way, the old shell game will run right through the Senate and we'll get something called a bill of rights that has no remedies in it. The Seattle Post Intelligencer, July 8: The health insurance industry is back again with a misleading campaign opposing a patients' bill of rights. Just as the industry did successfully in 1994 with its Harry and Louise ads that misled the public about President Clinton's health care reform--falsely claiming that people would lose their right to choose their own doctor--the new campaign is designed to convince us that a patients' bill of rights will cause many people to lose their health insurance. Like the Harry and Louise ads, the campaign relies on fear rather than fact. . . . Consumers need avenues of redress when dealing with health care providers. . . . [T]he ability to sue their health care provider and portability of their health care should they change jobs or move to another area[,] those are all fundamental rights to which consumers are entitled. No one should be fooled by this later effort to distort the issue of health care. The Charleston West Virginia Gazette, July 14: Democrats have a proposal called the Patients' Bill of Rights. Republicans have called theirs the Patients' Bill of Rights-Plus Act. If truth-in-advertising laws applied to Congress, the GOP would have to call its bill the Patients' Bill of Rights-Minus Act. . . . Some cost-saving measures may be necessary to keep health care spending under control, but when HMOs sacrifice patient health for profits, they must be held accountable. Democrats want that. Republicans apparently don't. The News and Observer, Raleigh, NC: The GOP is up against it, because this bill of rights, [referring to the Democrats'] is hardly a revolution: It would ensure that people could choose their doctors and their specialists, would allow them to go to the closest emergency room instead of one specified by an HMO, would enable them to keep a doctor who has begun treating them even if that doctor were dropped by the HMO. Republicans rail against regulation of this type, but they fail to see the American people are ready for it. These are just a few examples of editorials being written all across the country this week. Why do they all get it and no one gets it in here except Democrats and the two or three of our Republican friends who have supported the Patients' Bill of Rights? Why is the debate so different all across the country than it is, apparently, here in the Senate? Why is it that we have all the nurses supporting us? Why is it that we have all the doctors supporting us? Why is it that we have all the health professionals and all the patients groups supporting us? And why is it that newspapers and editorials all over the Nation, north, south, east, and west get it? We wonder whether this is really an issue. We are asked: is this really an issue out there? I can tell you, just from the cases I have had in my own office, that this is an issue. I received a call this morning from Kathy Mills, a registered Republican who called my office from Tulsa, OK. She said her husband was literally ``killed by an HMO'' last July, and she has been trying to find someone to listen to her story. She has given up her efforts to contact her own State Senators because they have not responded to her numerous calls. On July 16 last year--1 year ago tomorrow--Mrs. Mills' husband, who had a history of severe congestive heart failure, was seen by an internist at their new HMO for severe chest pain. Without taking a thorough patient history and despite a positive EKG, the doctor sent Mr. Mills home. As Mrs. Mills was later told by doctors at the HMO, their policy is to refer patients to a cardiologist only after waiting 10 days, unless the patient is ``having a heart attack on the table.'' Mr. Mills was released to go back to his job, working outside in 100- degree weather. Mr. Mills died later that day of a massive heart attack. The HMO doctors have been forthcoming, and after extensive inquiry Mrs. Mills feels certain it is HMO policy that is at fault for her husband's death. Unfortunately, her attorney has informed her she does not have the right to sue the HMO. Mrs. Mills just this morning offered to fly to Washington with what little money she has left to tell her story to the Members of the Senate. Her conviction is that in the future injustices like the unnecessary death of her husband will be prevented, or at the least that when they occur the Americans victimized will have some means to redress the wrong. People ask whether this is still going on. This is yesterday. Here is a story about Jacob. Jacob is 4 years old and lives in a midwestern State. Jacob's mom has asked that we not use his last name or the name of the HMO because she is afraid of what the HMO will do. Jacob was diagnosed with a rare form of cancer. The course of treatment recommended by Jacob's doctor was called monoclonal antibody treatment, and it is only available at Memorial Sloan-Kettering Hospital in New York. Jacob could participate in a clinical trial at Memorial Sloan-Kettering that would involve complex surgery, transplant, radiation, and chemotherapy treatment. When Jacob's parents inquired into the clinical trial, their physician told them it was not experimental. Their physician told them that monoclonal antibody treatment is the standard of care for Jacob's type of cancer, and has been standard treatment in use since 1987. Even though this recommended course of action is the standard treatment, because Jacob's treatment could only be obtained through a clinical trial, his HMO denied him this needed therapy. After many months of fighting the HMO from both inside and outside the system, the company approved the first stage of Jacob's treatment. However, the story does not end there. Jacob's only hope for a cure is to complete the entire course of treatment which comes in four stages. Jacob's family continues to live in fear of their HMO because he has not completed the treatment yet and, in the words of his HMO, ``This determination to provide coverage . . . may be terminated at any time, even if the condition or treatment remains unchanged.'' Jacob and his family are currently receiving treatment, but they live in fear. I can give you the story that I received last Friday, a very powerful case involving a small boy and how he was denied needed surgery by one of the major HMOs in this country. This is happening every day, every hour. People all across the country understand it. Certainly the parents of these children understand it. Mrs. Mills understands what is happening. I doubt there is a Senator's office that hasn't received similar calls in the last few days. We have had a series of votes in the last 4 days, and each of these votes has been decided in the interest of the insurance industry. They have prevailed over patients' interests, but only by a narrow margin. That is only temporary. Mr. President, I yield myself 2 minutes on the bill. We may have lost the battle for the minds of Republican Senators, but we are winning the battle in the minds of the public. Once the debate is over and the votes are counted, the action will move to the House of Representatives. I believe we will do better in the House because of the groundwork we have laid in the Senate. We intend to keep the pressure on. There is still a good chance that a strong Patients' Bill of Rights can be enacted into law by this Congress this year. A switch of only two or three votes would have given us victory after victory on each of these specific issues. If there is an attempt to bury this issue in the Senate-House conference, the consent agreement makes clear that we can raise it again and again in the Senate this year. Every day, every week, every month we delay, more patients suffer. This is a Pyrrhic victory for the Republicans. If they keep taking marching orders from HMOs, they will keep losing public support. The American people will not be fooled by hollow Republican promises and cosmetic Republican alternatives. Patients deserve real protections, and not just some patients, but all patients. You should not have to gamble on your health. You should not have to play a game of Republican roulette to get the health care you need and deserve. This issue is not going away. Too many people have had too many bad experiences with abuses by HMOs and managed care health plans. They know the horror stories firsthand. Everyone knows these abuses are wrong, and, frankly, we have only just begun to fight.

Mr. KENNEDY. Mr. President, may we have order. This is a very important amendment, and the Senators are entitled to be heard. We are enormously grateful for the attention that has been given to the debate generally, but this is in many respects one of the most important amendments. The Senators should have a chance to have the attention of the membership.

Mr. KENNEDY. We yield back any time remaining on our amendment.

Mr. KENNEDY. Mr. President, we are at the conclusion of another part of this debate. There is an amendment that includes a variety of different provisions trying to upgrade the Republican proposal and make it more acceptable and responsive to the points that have been raised during the course of the debate. Most importantly, the points have been raised by doctors, nurses and patients all over this country. Still, they fall short. These amendments are another testament to the priority the Republicans place on protecting profits instead of patients. Every time we point out the severe defects and loopholes in their plan, they say: Oh, no, we will improve it. Then the so-called improvements come, and they are virtually meaningless. It is botched cosmetic surgery; all the wrinkles still show. You can put lipstick on a pig, but it is still a pig. And you can call something a patients' bill of rights, but it is still a patients' bill of wrongs. Every single one of these amendments leaves a profit-protection proposal, a sham proposal, a triumph of disinformation. We have voted on 10 of the amendments that have been offered by the other side, and we will have this amendment--10 amendments. There isn't a single amendment that has the support of a patients' organization or a medical organization--not one. I think that is a fair indication as to what those amendments are really about. On the contrary, each and every one of the positions we have taken had the strong support of the medical profession. Each and every amendments we have offered--each and every one of them--had the strong support of the medical profession. I think that speaks volumes about who is really interested in protecting the patients and not the profits of the HMO. Let's look at these proposals individually. The so-called independent appeals provision leaves every fundamental flaw in the original bill uncorrected. The HMO still chooses and pays the review organization. The HMOs own definition of ``medical necessity,'' no matter how unfair, still controls the whole process. That has been pointed out by our colleague, the Senator from California, Mrs. Feinstein. That particular loophole remains in the bill. The clinical trials proposal applies only to cancer patients and only to those in self-funded plans. Two-thirds of Americans are left out. Two-thirds of cancer patients are left out. All of the cancer organizations have rejected this proposal. We have printed their positions in the Record. They all reject this particular proposal. If you or your loved one has heart disease or Alzheimer's, cystic fibrosis or multiple sclerosis, a spinal cord injury or diabetes or AIDS, you are out of luck under the Republican plan. And if you are a farmer or small business employee who belongs to an HMO and you develop cancer, you are out of luck. The continuity of care provision has not changed a bit. If you have a terminal illness and are fortunate enough to live more than 3 months, they can cut you off; you have to change doctors. If you have a long, ongoing illness--even cancer or life-threatening heart disease--you have no transition at all. And if you are one of the 113 million people not in a self-funded plan, you are not protected at all. Let's go back to the basics. Again, after 4 days and 10 amendments, they have not presented a single proposal supported by any group of doctors, nurses, or patients--not one, zero. Their bill is supported by the insurance companies that profit from abuse. Our bill is supported by 200 groups; doctors, nurses, and patients who want to end these abuses. The Senate should stand with the health professionals and the patients, not with the powerful special interests. We will have another opportunity in a few moments to stand again with the patients. Let's hope the Senate will. I reserve the balance of the time.

Mr. KENNEDY. I yield to the Senator from California 1 minute off the bill.

Mr. KENNEDY. Mr. President, I think the Senator from Florida has 1 minute. Then I would be glad to yield another minute and a half to the Senator from Connecticut.

Mr. KENNEDY. I yield 2 minutes, Mr. President.

Mr. KENNEDY. Yes.

Mr. KENNEDY. What percentage of Alabama, just for my own information, works in plants with less than 100 employees?

Mr. KENNEDY. Four percent less than a hundred. So, effectively, this won't apply, I imagine, to any of the mom-and-pop small businesses; they won't have those kinds of protections, will they, in Alabama?

Mr. KENNEDY. If I could continue, I yield myself another minute. Is the Senator saying that of all the self-funded programs, only 4 percent have fewer than 50 employees?

Mr. KENNEDY. Mr. President, I inquire on my time and will yield the Senator 2 minutes. This change will, of course, only be for the self- funded program, and of course there are no changes in excluding any employer that has less than 50 employees. That hasn't been changed, has it?

Mr. KENNEDY. I yield back any time I have on the amendment.

Mr. KENNEDY. Mr. President, if patients cannot count on their doctor, quality medical care is impossible. If doctors cannot do their best for their patients without fear of retaliation, quality medical practice is impossible, too. This amendment protects the relationship between the doctors and their patients. The Republican bill protects only the insurance companies. Part of the doctor/patient relationship is being able to go to the medical professional of your choice, not the HMO's choice. This amendment establishes a point-of-service option that guarantees that choice. The Republican bill offers no meaningful guarantee. Without the type of information the ombudsman program provides, too many consumers will simply be unable to exercise the rights this bill proposes to grant. As our friend and colleague, Senator Reed, pointed out, giving consumers information so they will have their rights protected under their HMO is so important. This amendment provides basic, commonsense protections for health professionals and patients, and I know of no valid reason that it should be opposed. Mr. President, I reserve the remainder of my time. I ask for the yeas and nays.

Mr. KENNEDY. Mr. President, I yield 3 minutes to the Senator from New York.

Mr. KENNEDY. How much time do I have?

Mr. KENNEDY. I yield the Senator 30 more seconds.