Ted Kennedy

Mr. KENNEDY

Mr. KENNEDY. I yield for a question.

Mr. KENNEDY. Mr. President, earlier I said that I would enter into the Record the fact that last Congress, the majority's version of the Patient's Bill of Rights included a mastectomy provision that was quite similar to the provision offered by Senator Robb yesterday and by Senator Snowe today. Yet, this mastectomy provision was conspicuously absent from the majority's bill this year. Drive-through mastectomies were discussed during committee markup but were not added back. In fact, the majority rejected an amendment by Senator Murphy to end drive-through mastectomies. Now, in response to popular pressure, the majority is offering the Snowe amendment on mastectomies as a way of undermining our attempt to provide coverage for patients in clinical trials. I ask unanimous consent that the table of contents and relevant pages of the Republican bills from the last Congress and from this Congress be printed in the Record.

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

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

Mr. KENNEDY. I will take 1 minute. The fact is, that is exactly what happened. That is exactly what happened. I will put in the Record within the next hour this bill that showed that they took the provision out of this year's bill. I will put in the Record the bill that had the provision, and then the bill that took out the provision. Now the Republicans are trying to put the provision back in again after they voted against the Robb amendment. They now have the willingness of the principal sponsor of the amendment to accept it. Who is playing games around here? Mr. President, I yield 5 minutes to the Senator from Virginia.

Mr. KENNEDY. Last year the Republican proposal had this measure. Most of us who followed the Patients' Bill of Rights understood the reason for this measure. It was to get the Senator from New York, who felt so strongly about this provision, to support the overall Patients' Bill of Rights. When the Republicans introduced their bill this year, the provision was kept out. Now they are trying to put the provision back in.

Mr. KENNEDY. Will the Senator yield for a question on my time?

Mr. KENNEDY. I will use 30 seconds, Mr. President. The Senator had better get his facts straight. We have just offered to accept the amendment of the Senator from Maine. Yesterday the Democratic leader offered to accept the Nickles amendment on deductibility. So the Senator is fundamentally and actually wrong. I yield 5 minutes to the Senator from California.

Mr. KENNEDY. Mr. President, I yield myself 20 seconds. Under the Senate rules generally, as the Senator from California knows, if we were not forced into this agreement, the Senator from Connecticut could modify his amendment to include that. We have tried to get this legislation to the floor so that we could follow the historic rules of the Senate and were precluded from that, basically forced into this time element, voting Thursday evening. But we are getting very close to the point where we will not have the opportunity for having a full airing of these issues. We are getting very close to where some of us will believe that there has not been the full, complete fulfillment of the agreement. These issues may very well be left outstanding for future considerations. We are getting very close to the point, Mr. President, where you have such a basic corruption of the rules. By denying what has historically been the rule--that would have permitted a Senator to modify an amendment prior to the time they get the yeas and nays--we are close to having a basic corruption of the rules. We had an agreement, and we are sticking with that agreement. Nonetheless, it will delay the Senate and frustrate, obviously, the opportunity for the good debate. I yield 5 minutes to the Senator from Maryland.

Mr. KENNEDY. I yield myself 15 seconds. There isn't a single State in the country that has that kind of protection. I know my friend from Vermont keeps insisting the State of Vermont does. We will give him that. But there isn't a single other State, if Vermont complies with those kinds of protections. I yield 5 minutes to the Senator from California.

Mr. KENNEDY. As is determined by the attending physician, in consultation with the patient, to be medically necessary and appropriate following a mastectomy, lumpectomy, or a lymph node dissection. I am asking you, why can't you use that same protection: by the attending physician, in consultation with the patient, to be medically necessary, leaving it up to the doctor? That is what you do for these three procedures. You leave it up to the doctor.

Mr. KENNEDY. Mr. President, I yield myself 2 more minutes. It isn't a question of the particular process or procedure. The amendment says ``as determined by the attending physician, in consultation with the patient, to be medically necessary.'' Why not use that standard on any of the other kinds of health care needs? Why apply this standard nationwide on the question of mastectomy and not provide it for protection of other areas health needs?

Mr. KENNEDY. Yes.

Mr. KENNEDY. I would like to yield myself 3 minutes. Could I have the attention of the Senator from Michigan just for a moment? I notice on page 3 of the amendment, talking about ``Inpatient Care,'' under the title ``In General'' it states: . . . the treatment of breast cancer is provided for a period of time as is determined by the attending physician, in consultation with the patient, to be medically necessary and appropriate. . . . This is going to be universal. Why does the Senator from Michigan think we should protect a woman who has breast cancer and needs a mastectomy but not provide the same protection for a woman who has ovarian cancer and needs a hysterectomy. Why shouldn't we provide the same protection for someone who has brain cancer? Why do you believe this should be applicable to all HMO members--that a decision should be made by the doctor and the patient, using the best health guidelines-- but not provide the same protections for these other diseases? What is the justification for this different treatment? Our bill does provide those protections. These are in the findings, on page 3, under the ``Inpatient Care,'' ``In General.'' You provide: . . . is determined by the attending physician, in consultation with the patient, to be medically necessary and appropriate. . . . You do it for a mastectomy, a lumpectomy, and for a lymph node. Why do it universally for all HMOs for these three procedures yet not provide the same protection for women with ovarian cancer, brain cancer, or other illnesses? That is what we would like to know. Because our bill would provide protection for all of these illnesses; yours for just one. What is possibly the rationale and justification for that?

Mr. KENNEDY. No.

Mr. KENNEDY. It covers virtually none of the people who are in HMOs.

Mr. KENNEDY. I yield.

Mr. KENNEDY. The answer to that is, yes, we do. Mr. President, 79 percent of those who are insured in the State of New York will not be covered. There are 10,300,000 individuals who are covered with privately purchased insurance, and the number of persons not covered under the Republican bill is 8,101,000, practically 80 percent. Four out of five of the citizens of New York will not be covered under the Republican program unless this amendment is accepted.

Mr. KENNEDY. That is my understanding as well, 3 out of 4.

Mr. KENNEDY. You have your Minnesota figures there.

Mr. KENNEDY. As the Senator well knows, the State of Minnesota has 3,400,000 privately insured persons and 1,986,000 not covered. So you are going to have some 58 percent--58 percent will not be covered.

Mr. KENNEDY. Mr. President, I yield 3 minutes to the Senator from North Carolina.

Mr. KENNEDY. Mr. President, I want to go over where we are in the debate. The amendment that has been proposed by our Republican colleagues covers, as close as I can figure, four different areas: One is the tax credit of long-term care. It is being defined. We have asked the Treasury Department to look at that because many of us are interested in the long-term care issue. We have not heard back from the Treasury Department. Time has expired on this particular amendment. There is also the issue of changes to the OB/GYN provision and whether this is a change which gives the protections to women which we have included in our legislation. The provisions have been examined by various OB/GYN specialists. We will include in the Record the inadequacies of those particular provisions in achieving the objectives described on the floor. The OB/GYN specialists find the language included in that amendment fails. That will be available to the Members. Third is the speciality issue. Our good friends, the Senator from New Mexico and the Senator from Iowa, as well as the Senator from Rhode Island and the Senator from North Carolina, and others will address in greater detail the issue of specialists. I want to make a brief comment in response to the particular proposal of the Senator from Tennessee. In reading through the language--and it is important to read the language, as the Senator has said--it says: Nothing in this section shall be construed to prohibit a group plan from requiring that speciality care be provided pursuant to a treatment plan so long as the treatment plan-- -- Is developed by the specialist. On page 12, it says: . . . appropriate to the conditions of the participant or beneficiary, when such care is covered under the plan, such access may be provided. ``When such care is covered under the plan'' makes the provision meaningless because the care is covered only if authorized by the gatekeeper. It says when the care is covered, but it does not say it has to be covered. Then it says: Such access may be provided through contractual agreements with specialized providers outside the network. That is optional. You can read all the lines you want about age- appropriate speciality if they include it in the plan, but if you start right out and say it is not included and is optional, it is meaningless. That is not only my opinion, but it will be gone into to some degree by others. I listened to my friend and colleague from Tennessee say the issue is appealable. Why not write that in the bill? We wrote it in. Why leave any question? Why does he have to quote a letter from some law professor? I have a letter from a law professor that says it does not. Why not just write it in the bill? I hope there will be some kind of response. I will be glad to yield for a minute. We wrote in our bill that it is appealable if a specialist such as a pediatric oncologist or necessary specialist is denied. Why isn't it included in the Republican plan? It is not. We will have an opportunity to debate that issue. I do not want to get off message, but I hope our good friend from Oklahoma, as well as our good friend from Texas, will now look at what the Republican bill is costing. This is what the Republican bill is costing. According to joint tax, it is $1 billion for patient protections; 100 percent deductibility for small business is $2.9 billion; liberalized MSA, $1.5 billion; flexible spending account is $2.3 billion. That adds up to $7.7 billion. Long- term care is $5.4 billion. That is $13 billion--$13 billion for the Republican plan. I hope we do not hear any more about the cost of the plan with no offsets. I hope we can get rid of that argument. It has taken us 2\1/2\ days. Under CBO, ours is $7 billion. The Republican plan with this will virtually be doubled. I hope we are going to be free of that argument. We want to focus on what we are interested in, and that is the Patients' Bill of Rights. We are going to have an amendment when I yield back the time in just a moment. I want the membership to understand, this amendment will not be targeted to OB/GYN. It will not be targeted to long-term care. It will not be targeted to emergency room care, though there are many different provisions in that with which we take issue, which our friend from Florida has pointed out. This will only be targeted to the provisions of the Republican amendment on speciality care. Our amendment is accepted and those who will put forward and present it are Senator Bingaman, Senator Harkin, Senator Edwards, and others will debate that for the next 50 minutes. It will only be amending that particular provision. We will have an opportunity to make a judgment on the rest of the provisions later, depending upon what happens on this. We are limiting this debate to what we have always wanted: a debate on the Patients' Bill of Rights, and that is, protecting people from the abuses of HMOs. Long-term care is not a part of that provision, although it was brought in and that is important. We do not believe it belongs on this, but it is here. Many of us are unprepared to make a judgment on that since we just found out about that particular provision. We will be interested in what the offsets are going to be. The next proposal will be the amendment that will be offered by the Senator from New Mexico which will be targeted to speciality care. We are protecting patients, and we insist they get the specialty care we believe is so essential. Mr. President, I yield back the remainder of my time.

Mr. KENNEDY. Not at this time.

Mr. KENNEDY. In other words, the benefits of the research from the clinical trial will benefit people whether they live in the State of Nevada or the State of Massachusetts?