Ted Kennedy

Mr. KENNEDY

Mr. KENNEDY. I yield 4 minutes to the Senator from North Carolina.

Mr. KENNEDY. President Clinton, as I understand, has insisted this be part of the Medicare Program. So it is in the Medicare Program. Could the Senator indicate to me how this is working in his own State? Is it working well? It would appear to me to be a precedent for this, unlike other public policy issues, and it appears we have a pretty good pilot program--more than a pilot program. Perhaps the Senator would share with us his experience.

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

Mr. KENNEDY. I yield 6 minutes to the Senator from New Mexico.

Mr. KENNEDY. The argument on the other side will be, Republicans will say: We ban the actual gagging of a doctor. The real distinction between the amendment of the Senator from Oregon and the Republican amendment is that this amendment ensures the doctor will not risk his job if he advocates. He might be able to tell the patient they need a particular process, the doctor will be permitted to relay that information, but then he can be fired under the Republican proposal. Also, they will have the option of giving financial incentives for doctors not to provide the best medicine. The amendment of the Senator from Oregon is the only amendment that does the job.

Mr. KENNEDY. I yield the remaining time to the Senator from Illinois.

Mr. KENNEDY. I yield a half minute.

Mr. KENNEDY. I yield another minute.

Mr. KENNEDY. I yield 30 more seconds.

Mr. KENNEDY. I yield 2 minutes on the bill to the Senator from California.

Mr. KENNEDY. Madam President, I yield myself 5 minutes. Do we have 9 minutes left? Please let me know when 4 minutes are up. Madam President, statements have been made here to the effect that we should not let this process go forward. Statements have been made that this is basically a Democratic initiative, a partisan issue. We have claimed it is an issue of fundamental justice. Let me quote Frank Keating, the Republican Governor of Oklahoma, a man who was so respected in his own party that he was elected chairman of the Republican Governors' Association. According to an Oklahoma newspaper, in an interview with Keating, Keating sided with congressional Democrats. He said health maintenance organizations should be open to lawsuits if they are grossly negligent. Keating said his oldest daughter had a heart defect since birth, but that the gatekeeper at her health maintenance organization in Texas told her she did not need to see a cardiologist. Keating said he made a call to a top aide to Texas Governor George W. Bush to get some action. He said he realized other people might not be able to pull such strings. That is what a Republican Governor has said is the reality in real America. We see it in the Federal courts. I will have printed in the Record a series of statements from judges who are seeing these cases. Let me read one by Federal Judge William Young, a longtime Republican, who, incidentally, was appointed to the bench by President Ronald Reagan. He said that disturbing to this court is the failure of Congress to amend a statute that, due to the changing realities of the modern health care system, has gone conspicuously awry from its original sense. This court has no choice but to pluck the case out of State court and then, at the behest of the insurance company, slam the courthouse door in the wife's face and leave her without any remedy. Judge Young came down here and urged us to include this particular provision in our legislation because of what he has seen occur in the Federal courts. I could read instance after instance. Judge Spencer Letts has a long statement about this as well. He said that it is not just the parents. They are the most powerful voices, but it is the judges who are appalled at the inequity and outrageous injustice that is taking place in the Federal courts all over this country, and it is wrong. Most Americans would be shocked to know that HMOs enjoy immunity from suits. If a doctor fails to treat a patient with cancer correctly and if the patient dies, you can sue the doctor for malpractice. But if a managed care company decides to pinch pennies and overrule the doctor's recommendations on treating the patient and the patient dies, the insurance company is immune from responsibility. No other industry in America enjoys this immunity from the consequences of its actions. The HMOs do not deserve it. On this life-and-death decision, immunity from responsibility is literally a license to kill. Madam President, we ought to at least leave this matter up to the States, not preempt the States. I want to say the strongest supporters of this provision are the doctors. The reason the doctors are the strongest advocates of this position is because they are sick and tired of having their medical recommendations overruled by HMOs. That is the basic justification. Ultimately, it is basic fairness to the individual who may be harmed. The provision ultimately improves the quality of care by ensuring their accountability. Finally, we have the doctors themselves pleading, pleading, pleading for Congress to act. The American Medical Association has indicated its strong support in a letter. I ask unanimous consent to have that printed in the Record as well.

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

Mr. KENNEDY. The patient never learns the procedure should have been provided until it is too late. What happens when the plan refers the patient to an unqualified doctor for a procedure because it doesn't want to pay for a more qualified specialist outside the network? What happens when the patient trusted the plan to do the right thing? According to the opponents of this proposal, those kinds of abusive practices should carry no penalty at all because you can't sue your way to quality. I would like to hear them say that to a widow who lost a husband--the father of her children--to a plan's greed. I would like to hear them say that to a young man disabled for life because his health plan insisted on the cheapest therapy instead of the best therapy. I would like to hear them say that to the parents whose child has died because the health plan mislead them about the availability of appropriate treatment. I challenge the opponents of this provision to tell the American people why public employees in there own States should have the right to hold their health plan accountable, but the equally hard-working family just down the street employed in the local bank or grocery store shouldn't have the same right. I challenge them to explain to the child or spouse of someone who has died or become permanently disabled due to HMO abuses, why they should have to live in poverty while a multibillion-dollar corporation gets off scot-free. I challenge those on the other side--who talked so much during the debate on welfare reform about the need for people to take responsibility for their actions--to explain why this standard should apply to poor, single mothers but not to HMOs. I challenge them to explain why every other industry in America should be held responsible for its actions, but HMOs and health insurance companies should be immune from responsibility. The time has come to say that this unique immunity should end. The time has come to say that someone who dies or is injured because an insurance company accountant overrules the doctor is entitled to compensation. The time has come to say that profits should no longer take priority over patients' care. I withhold the remainder of my time.

Mr. KENNEDY. Mr. President, I yield myself 8 minutes. The longer this debate goes on, the stranger I find those who are supporting the Republican proposal. Their basic proposal started out costing $1 billion. They will have the agreement later this morning, with the acceptance of the long-term care credit, that will end up costing $13.1 billion--$1 billion for patient protections; 100-percent deductibility, $2.9 billion; liberalized MSAs, $1.5 billion; flexible spending accounts, $2.3 billion. That adds to $7.7 billion. And the deductibility of long-term care is $5.4 billion, according to the Senator from Oklahoma. That is $13.1 billion, and not a cent of it is paid for. Their proposal has gone from $1 billion to $13 billion. Our proposal, according to CBO, is approximately $7 billion, which represents the 4.8 percent figure from CBO. I certainly hope we won't hear any more about the cost of our proposal from our good friends. That was a hot button item. It didn't have anything to do with protecting patients, but it was a hot button item. Secondly, I hope we won't hear any more about one-size-fits-all. We listened to that line for 3 days. We will probably hear it later in the course of debate on many different measures. ``We don't want a solution of one-size-fits-all.'' Our good friend, Senator Collins from Maine, used that 10 times in her presentation. We are having a one-size-fits- all with the Republican proposal because, effectively, they are excluding the States from making their own determination as to what actions the state might take in holding people accountable. The Republican proposal can be labelled ``one-size-fits-all'' if they are successful on this measure. They are saying to every State in the country: No, you cannot provide the remedies you would like for malpractice by those making health care decisions. We have one industry in this country that is going to be sacred, one industry that will not be held responsible. You can continue to sue doctors, but we will not permit any State in this country to determine whether you can sue your HMO. That is an extraordinary position for our good friends, the Republicans, who are always talking about one-size-fits-all, who are always saying that Washington doesn't always know best. I hope we are not going to continue to hear, ``Washington doesn't know best. The people in the hinterlands know what is going on. They can make up their minds in the States. The States are the great laboratories for innovation and creativity.'' I can give those speeches, but they are wiping that out with this particular amendment. As the Senator from Illinois pointed out, this amendment is so basic and fundamental in protecting American citizens. Even my good friend from New Hampshire has addressed this issue--I am sure he expected to hear this, but he ought to hear it as one of the principals, and now as acting manager. Last year, when we had the issue of liability of tobacco companies, this is what he said, and we will include the statement in the Record: When you eliminate that right of redress issue-- Which is effectively what the Republican proposal would do-- which this bill does, when you take away the ability of the consumer, of the person who has been damaged, of John and Mary Jones, of Epping, NH, to get a recovery for an injury they have received, you have artificially preserved the marketplace, but, more importantly, you have given a unique historic and totally inappropriate protection to an industry. The Senate accepted that position overwhelmingly. I think there were 20-odd votes in opposition on that issue. But here we have the insurance industry. Evidently, the message is that the insurance industry is more powerful than the tobacco industry. Apparently, the insurance industry has the votes to get their way on this issue. Why is this issue important? This issue is important for two very basic and fundamental reasons. First, by making the right to sue available, there is an additional incentive--a powerful incentive--to HMOs and others in the health delivery system. There is an incentive to make sure they do what is medically appropriate because they know they may be held liable if they do not. You may say: That is good in theory, but is it so? Look at Medicaid. Under the Medicaid system, a plan may be held liable, the health delivery system may be held accountable. Do we have people abusing the liability provisions? The answer is no. The answer is no. As the Senator from Illinois pointed out, the State that allowed for liability most recently was Texas. Has there been a resulting proliferation of lawsuits, as the Senator from Alabama has suggested? The answer is no. There is one legal case that was brought and possibly one or two more pending. City and State officials have the right to sue. You can take the example of CalPERS, one of the largest health delivery systems in the country, with 1.2 million members. They have had the right to sue for a number of years. You can look at CalPERS premiums over the last 5 years. The cost increase of the premium for CalPERS--whose members have the right to sue--has actually been below the national average for HMOs over the last 5 years. The Senator from Illinois has indicated, as well, the findings of the various studies which support this. Most important, the answer we get from the other side is we don't need accountability because we have a good internal and external review system under the Republican proposal. That is a phony argument. Over the past 3 days we have shown why this argument is phony. The Republican appeals proposal is a fixed system. There is no de novo review. There are many other problems in their appeals system which we have previously addressed. Yet their best answer is that the external review program is a substitute for the right to hold plans accountable in court. What happens when the plan drags its feet through the review process until it is too late for the patient? What happens when the plan doesn't tell the patient an external review is even available and the patient doesn't find out about its availability until the damage is done? What happens when the plan makes a practice of turning down everyone--this is reality--who applies for an expensive procedure, knowing there will be an appeal in only a fraction of the cases? Knowing that the worst penalty they could have is to pay the cost of the procedure that should have been provided in the first place?

Mr. KENNEDY

Mr. KENNEDY. Does the Senator agree----

Mr. KENNEDY. That is what I am asking.

Mr. KENNEDY. I yield the time necessary for the parliamentary inquiry.

Mr. KENNEDY. 89 percent will not be covered by the proposal. We have a breakdown for each State. In Delaware, it is 89 percent not covered by the Republican proposal. The protections they are talking about doing, or will do, will not cover 89% of the people in Delaware, with the exception of the amendment of the Senator of Maine that has just been adopted, which is universal. That is another issue we will come back to.

Mr. KENNEDY. All our amendment is trying to say is: if there is a clinical trial available, the value of the clinical trial is established, and if a doctor believes his patient can benefit from that clinical trial, the HMO ought to allow access. That is what this amendment is about. Without this amendment, there will be an increase in the number of clinical trials that are terminated.

Mr. KENNEDY. Would the Senator be surprised that the head of the Lombardi Cancer Research Center, one of the great research centers in Washington, DC, testified they had to hire eight individuals to deal with the insurance companies just on the issue of enrolling persons in clinical trials. Doctors were referring women to the Lombardi Center for lifesaving cancer treatment--for clinical trials--and the HMOs were denying coverage? These eight individuals were trying to deal with the HMOs so that these patients could receive potentially lifesaving treatments.

Mr. KENNEDY. The doctors at that world-class cancer research are recommending clinical trials because they think those clinical trials can perhaps save the life of an individual who may have breast or cervical or ovarian cancer. You are finding in your State that managed care plans are denying access to clinical trials for their members?

Mr. KENNEDY. If I could ask a question, through the Chair, of the Senator. You have one of the great cancer research centers in Washington--the Fred Hutchinson Cancer Center--that is world renowned. It is known throughout the United States as having the very best expertise in treating cancer. I would be interested, as would the American people--we have one of the great children's research center--recognized recently as the No. 1 children's center doing great research--what does that center do for the citizens of Washington and the citizens of this country in terms of research programs, clinical trials?

Mr. KENNEDY. I yield 2 minutes to the Senator from Washington.

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

Mr. KENNEDY. Mr. President, of all the votes we will have and have had in the Senate yesterday, today and tomorrow, this ought to be the easiest. This ought to be the easiest if you are interested in research, if you are interested in the protection of patients. If we look at what has happened historically, insurance companies have paid for routine care associated with clinical trials. The reason they have paid for it because they knew it was right. Secondly, as the Senator from Iowa has pointed out, covering routine costs associated with clinical trials actually provided savings to the insurance companies. But we now see a dramatic decline in clinical trial enrollment. What are clinical trials? What do they represent? This is what they represent: A woman has cancer--it can be ovarian cancer, breast cancer, cervical cancer--and is told the ordinary treatments for cancer will not cure her disease. Her prospects are extremely grim. Her doctor advises that her only chance of survival is a treatment under study in a clinical trial. We should not permit the insurance companies or their bureaucrats to deny her access to that clinical trial. That is what this amendment is all about--access to the only treatment that may give her a chance of survival. The greatest progress in cancer treatment has been made in childhood cancer, and it is no coincidence that the greatest number of clinical trials performed in this country have been in children's cancer. The reason, as most researchers and most cancer centers recognize, is the types of clinical trials that are taking place. Congress is doubling the NIH budget to take advantage of what I like to think will be the life science century. Progress in making breakthroughs in so many different areas of disease--whether it be Alzheimer's or cancer or Parkinson's disease--potentially emptying nursing homes around this country and improving the health of Americans demonstrate the importance of clinical trials. Clinical trials are the critical aspect in finding effective treatment and cures for diseases. That is why this amendment is so important. All HMOs have to do is continue what insurance companies have historically done and that is cover the routine costs associated with clinical trials. The clinical trial sponsors pay the remaining costs. The Republican proposal to study the importance of clinical trials is poppycock. The choice is: Will we maintain what every researcher, every patient organization, every doctor who works in the areas of these critical diseases recognizes as absolutely vital for medical progress, or will we study this issue some more? The Republican proposal says let's do another study and let's get a report to the committee. We are saying that if the doctor says there are sound medical reasons for this type of treatment, access should not be denied by a bureaucrat or an insurance company. That is the issue this amendment addresses. This amendment should receive overwhelming support. It is ridiculous that we are spending so much time debating the issue of whether clinical trials are important. Every single country in the world envies the progress the United States has made in the area of pharmaceuticals--every single country. Why? Because we have breakthrough drugs. Why? Because we move these breakthrough drugs from the laboratory to the bedside. How is that done? It is through clinical trials. We cannot move breakthrough drugs from the laboratory to the bedside without clinical trials. That is what this issue is about. That is why we have such strong support from the cancer societies and organizations concerned about diseases like Alzheimer's and Parkinson's Disease. That is why we have the support of the disability community. That is why we have support from so many children's disease organizations. That is why I hope the Dodd amendment will be accepted. Mr. REID addressed the Chair.