Ted Kennedy

Mr. KENNEDY

Mr. KENNEDY. Do I have any time?

Mr. KENNEDY

Mr. KENNEDY. Mr. President, we are here today to propose legislation to protect the privacy of personal medical information in our rapidly changing health care system. Today, video rental records have greater protection than sensitive medical information. Last month, we learned that the University of Michigan Medical Center posted information from thousands of patient records on the Internet, without any password protection or other safeguards. In many other cases, individual patients have been harmed by improper release of their private medical records. The legislation that Senator Daschle, Senator Leahy, Congressman Markey, and I are introducing today--the Medical Information Privacy and Security Act--puts patients first, while allowing for legitimate uses of medical information to improve health care. Congress recognized the need to act to protect the privacy of medical information when we passed the Kassebaum-Kennedy Act in 1996. That legislation contained a provision requiring Congress to pass legislation on the issue by August of this year. If the deadline is not met, the Administration has the power to act by regulation. The measure we are introducing ensures strong protections nationwide. It also allows individual states to take additional action. Stronger state laws are not pre-empted. The goal of these protections is to safeguard the confidential relationship between patients and physicians. Patients concerned about their privacy are less likely to disclose important information to their physicians. A recent survey by the California HealthCare Foundation found that one in six adults has taken steps to protect their personal medical information, such as providing inaccurate information in their medical history, or asking physicians not to include certain information in their medical records. Our legislation recognizes the fundamental right of patients to limit disclosure of personally-identifiable medical information. We have balanced that right with the needs of providers and health care plans to use medical information to improve patient care. Our proposal does not force patients to sign a blanket authorization in order to receive care. Instead, it contains a flexible framework that can be modified to fit different situations. Medical research is essential for progress against disease. But it is also essential for patients to have confidence that research is beneficial, not an invasion of privacy. In genetic testing studies at the National Institutes of Health, 32 percent of eligible people who were offered a test for breast cancer declined to take it, because of concerns about loss of privacy and the potential for discrimination in health insurance. Currently, most federal health research is governed by the ``Common Rule'', which includes evaluations by Institutional Review Boards in order to protect patients involved in the research. Our proposed legislation strengthens the privacy provisions in the ``Common Rule,'' and extends those protections to all health research. These issues are important, and I am optimistic that Congress will act in time to meet the August deadline. We have a responsibility to enact strong protections for privacy in all aspects of health care, and now is the time to act.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, today I am introducing legislation which will insure that the federal share of the state Medicaid settlements negotiated with the tobacco industry is used by the states to prevent youth smoking, to improve health care, and to promote child development. Fifty-seven cents of every Medicaid dollar spent by the states comes from the federal government. The cost of Medicaid expenditures to treat people suffering from smoking-induced disease was at the core of state lawsuits against the tobacco industry. While the federal government could legally demand that the states reimburse Washington from their settlements, I believe the states should be allowed to keep one hundred percent of the money. However, the federal share should be used by the states for programs that will advance the goals of protecting children and enhancing public health which were at the heart of the litigation and are consistent with the purposes of Medicaid. That would be an eminently fair and reasonable compromise of this contentious issue. While there were a variety of claims made by the states against the tobacco industry, the Medicaid dollars used to treat tobacco-related illness constituted by far the largest claim monetarily, and it formed the basis for the national settlement. As part of that settlement, every state released the tobacco companies from federal Medicaid liability, as well as state Medicaid liability. Medicaid expenditures heavily influenced the distribution formula used to divide the national settlement amongst the states. In light of these undeniable facts, the dollars obtained by the states from their settlements cannot now be divorced from Medicaid. States are free to use the state share of their recoveries in any way they choose. However, Congress has a vital interest in how the federal share will be used. My legislation would require states to use half of the amount of money they receive from the tobacco industry each year (the federal share) to protect children and improve public health. At least thirty- five percent of the federal share would be spent on programs to deter youth smoking and to help smokers overcome their addiction. This would include a broad range of tobacco control initiatives, including school and community based tobacco use prevention programs, counter- advertising to discourage smoking, cessation programs, and enforcement of the ban on sale to minors. Three thousand children start smoking every day, and one thousand of them will die prematurely as a result of tobacco-induced disease. Prevention of youth smoking should be, without question, our highest priority for the use of these funds. The state settlements provide the resources to dissuade millions of teenagers from smoking, to break the cycle of addiction and early death. We must seize that opportunity. The remainder of the federal share would be available for states to use to fund health care and early learning initiatives which they select. States can either use the additional resources to supplement existing programs in these areas, or to fund creative new state initiatives to improve public health and promote child development. Smoking has long been America's foremost preventable cause of disease and early death. It has consumed an enormous amount of the nation's health care resources. Finally, resources taken from the tobacco companies would be used to improve the nation's health. A state could, for example, use a portion of this money to help senior citizens pay for prescription drugs, or to provide expanded health care services to the uninsured. Funds could be used to support community health centers, to reduce public health risks, or to make health insurance more affordable. For years, the tobacco companies callously targeted children as future smokers. The financial success of the entire industry was based upon addicting kids when they were too young to appreciate the health risks of smoking. It is particularly appropriate that resources taken from this malignant industry be used to give our children a better start in life. States could use a portion of these funds to improve early learning opportunities for young children, or to expand child care services, or for other child development initiatives. Congress has a compelling interest in how the federal share of these dollars is used. They are Medicaid dollars. They should not be used for road repair or building maintenance. They should be used by the states to create a healthier future for all our citizens, and particularly for our children.

Mr. KENNEDY. Mr. President, we are here today to propose legislation to protect the privacy of personal medical information in our rapidly changing health care system. Today, video rental records have greater protection than sensitive medical information. Last month, we learned that the University of Michigan Medical Center posted information from thousands of patient records on the Internet, without any password protection or other safeguards. In many other cases, individual patients have been harmed by improper release of their private medical records. The legislation that Senator Daschle, Senator Leahy, Congressman Markey, and I are introducing today--the Medical Information Privacy and Security Act--puts patients first, while allowing for legitimate uses of medical information to improve health care. Congress recognized the need to act to protect the privacy of medical information when we passed the Kassebaum-Kennedy Act in 1996. That legislation contained a provision requiring Congress to pass legislation on the issue by August of this year. If the deadline is not met, the Administration has the power to act by regulation. The measure we are introducing ensures strong protections nationwide. It also allows individual states to take additional action. Stronger state laws are not pre-empted. The goal of these protections is to safeguard the confidential relationship between patients and physicians. Patients concerned about their privacy are less likely to disclose important information to their physicians. A recent survey by the California HealthCare Foundation found that one in six adults has taken steps to protect their personal medical information, such as providing inaccurate information in their medical history, or asking physicians not to include certain information in their medical records. Our legislation recognizes the fundamental right of patients to limit disclosure of personally-identifiable medical information. We have balanced that right with the needs of providers and health care plans to use medical information to improve patient care. Our proposal does not force patients to sign a blanket authorization in order to receive care. Instead, it contains a flexible framework that can be modified to fit different situations. Medical research is essential for progress against disease. But it is also essential for patients to have confidence that research is beneficial, not an invasion of privacy. In genetic testing studies at the National Institutes of Health, 32 percent of eligible people who were offered a test for breast cancer declined to take it, because of concerns about loss of privacy and the potential for discrimination in health insurance. Currently, most federal health research is governed by the ``Common Rule'', which includes evaluations by Institutional Review Boards in order to protect patients involved in the research. Our proposed legislation strengthens the privacy provisions in the ``Common Rule,'' and extends those protections to all health research. These issues are important, and I am optimistic that Congress will act in time to meet the August deadline. We have a responsibility to enact strong protections for privacy in all aspects of health care, and now is the time to act.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I yield one-half hour to the Senator from California.

Mr. KENNEDY. Mr. President, I yield myself 1 minute. I want to indicate to our colleagues on this side that have amendments, that we expect those to be offered in the very near future. It is 3:15 now--we have 2 hours on each side. We are going to try to be in touch with those Senators that have amendments and work out a shared time to accommodate Senators' schedules. Senator Feinstein will take the first half hour, followed either by Senator Dorgan or Senator Wellstone for 15 minutes. Then we thought 45 minutes on the other side, one-half hour on this side, one-half hour on the other side, and then those that either wanted to talk on the amendments or that wanted to be able to talk on the bill would be able to do so using up the time that has been allocated by the leader--that was our intention. We want to make sure all of our Members understand that we expect that those amendments are going to be offered this evening. We want them included in the Record so that those tomorrow morning are able to look at the exact wording. That was our intention. So we will proceed in that way, and we will be in touch with the sponsors of these amendments to work out with them appropriate time allocations. Amendment No. 60 To Amendment No. 31 (Purpose: To express the sense of the Senate regarding flexibility to use certain Federal education funds to carry out part B of the Individuals with Disabilities Education Act, and to provide all local educational agencies with the option to use the funds received under section 307 of the Department of Education Appropriations Act, 1999, for activities under part B of the Individuals with Disabilities Education Act)

Mr. KENNEDY. That would be fine.

Mr. KENNEDY. Mr. President, if the Senator will yield, it is our intention that we use up the 4 hours for those members who have amendments to introduce and speak to them this evening. And that we have 1 hour evenly divided tomorrow for Members on either side to address the Senate, as if in morning business. That is what we had hoped to be able to do.

Mr. KENNEDY

Mr. KENNEDY. The Senator is correct. I hope we will do everything to certainly ensure that we will have a continuing opportunity during the session to consider education amendments. The fact is after this particular proposal we will move towards the Appropriations Committee or the Elementary and Secondary Education Act--and there is no guarantee we will see that. So to those parents, those teachers, those school boards, this debate is the essential time for what will happen to that school board in Las Vegas, and that is in terms of class size. That is what we are battling. That is what this vote will be about. Mr. President, I withhold whatever time remains.

Mr. KENNEDY. I will.

Mr. KENNEDY. If the Senator will yield. The Las Vegas school board has to have their budget finalized by the first week in April. They are eligible for close to $4 million. That school board is meeting, I am sure, and looking at this debate in the Senate wondering whether they ought to move ahead and accept that $4 million in additional funds for the next year and the following year in order to provide those teachers in those new schools. The Senator from Nevada is being denied the opportunity to at least give assurances to his constituency as to whether the Senate will go on record on this.

Mr. KENNEDY. The Senator knows that well.

Mr. KENNEDY. Yes.

Mr. KENNEDY. Yes.

Mr. KENNEDY. How much time remains?

Mr. KENNEDY. The Senator is correct. Senator Daschle indicated that he would be willing to propose, and has proposed to the majority leader, a one-half-hour time limit on the various amendments. Now we are in our fifth day without having the opportunity to act on an amendment. This bill could have been history with votes on these various measures, but we are effectively denied that because the majority does not want to have their Members vote on a particular educational issue-- that is a new concept.

Mr. KENNEDY. Certainly not. One of our colleagues that we respect and admire most and has had a distinguished career not only in the Senate, but in the House of Representatives, and been long committed to education--- we certainly commend him for his constancy in terms of education reform.

Mr. KENNEDY. I am happy to yield.

Mr. KENNEDY. Senator, I support this legislation, as the author of the initial Ed-Flex legislation with Senator Hatfield, who deserves the major credit on this concept, when he came and spoke to the members of the Education Committee and we took that on Title I and also on the Goals 2000. But we also want to deal with smaller class size, and the Republican leader, Dick Armey, said only five months ago, ``We are very pleased to receive the President's request for more teachers, especially since he offered to provide a way for them. We are very excited to go forward with that.'' And Chairman Goodling made similar statements. We are now put in this situation where we are told that we cannot consider that, we have to just go ahead with Ed-Flex--we can't consider what the Republicans agreed to in a bipartisan way. I have listened to those who say let's put partisanship aside. We would like to put partisanship aside--we would like to follow on with what Dick Armey and Chairman Goodling said. They supported this proposal. It was bipartisan in October. Why was it bipartisan in October and it is now partisan in March?

Mr. KENNEDY. I am happy to yield.

Mr. KENNEDY. Mr. President, just to review 7% of the Federal budget goes to educational programs--the role of the Federal Government is exceedingly limited. So let's think for a moment what this is all about. This is a rifle shot program, Title I primarily. You have the Eisenhower Program, which is the teaching of math and science and the technology. Those together are maybe, $700 million nationwide, but that is a targeted program to the neediest children. Now, 90 percent of the waivers today go out of the formula providing the targeted help and assistance to the neediest children. That is why there is some caution about what is being included in the Ed-Flex. There have been attempts by my colleagues--Senator Wellstone and Senator Reid--and myself to make sure that we are going to get flexibility at the local community level to serve the neediest children, but not to do what we did 25 years ago and build swimming pools and buy football equipment--because the local people know best about how to spend the money. That is what happened 25 years ago, Mr. President. Many of us are not prepared to say we are going to recognize that as a matter of national policy. The most underserved children in this country need to be a part of our whole process in the education system. And they need additional kinds of help and assistance in terms of math, reading and other programs. We are going to have a limited amount of resources spread nationwide--2 to 3 cents out of every dollar locally--but it is going to go to the neediest children. It is important to understand what the debate is about. We want some flexibility in that local community if they are going to use these resources and use it more creatively to help and assist those children. That is where Ed-Flex makes some difference. But if you look where the waivers have been, they have not been, with all respect to my colleague from Oregon, creating smaller class size. That is not where the GAO report has been. It is moving past the formula from 50 percent to 43 percent. Under certain circumstances they have received the funds before and want to try and still carry forth the substance of the legislation because it is getting the most of it, in terms of the neediest children for schoolwide programs. With all respect, that is what this debate is about. It is not a big sack of dough we are sending out there. The local community needs the additional resources and they can raise it or the States can. This is where the Targeted Resources Program developed some 35 years ago. I might say that the most important analysis of the effectiveness of this program has been in the last 2 weeks where we have the report on Title I which shows that there is measurable student improvement and advancement, with a series of recommendations. Part of the recommendations are what? The smaller class size, afterschool programs. We come back to a situation where we are being denied that opportunity to vote. We welcome the chance to see this move ahead. As I have mentioned and pointed out in a lead editorial today--we want a situation like we have in Texas where they have a described measurable goal; they measured the results of their investment against those goals, and they made progress on it. That is a very substantial and significant kind of improvement over what we are talking about here today. I kind of wonder why we are not going that way--I would like to see us go that way. However, that issue has been defeated in an earlier Wellstone amendment. We think there is still enough justification to provide support for this proposal. Let's not confuse this legislation, Ed-Flex, with doing something about smaller class size. We are talking about $11.4 billion--$11.4 billion additional dollars--in local communities for smaller class size. There is not a nickel in this bill for smaller class size, not a nickel. So if we are concerned about smaller class size, the effort that we ought to be making here today should be in support of the Murray amendment. That is the one Senator Murray has advanced to the Senate, spoken to the Senate, pleaded with the Senate. She has been our leader on this issue. Hopefully, we can make some progress on this issue. I know time is moving along. I want to certainly cooperate with the leaders, but at some time we will have to have some evaluation.

Mr. KENNEDY. If you want to proceed first, I will check with my colleagues.

Mr. KENNEDY. I see other Senators. We had several who wanted to speak.

Mr. KENNEDY. Reserving the right to object, and I do not intend to, could we have the time divided to both sides?

Mr. KENNEDY. Mr. President, we are in the process of trying to work through some kind of arrangement where we can address a reasonable number of amendments, on both sides. I do not want to characterize how close we are to it, but we are moving towards a vote at 1:30. It is really a question of whether the leadership and the other Members are inclined to do so. On the one hand, I find it quite objectionable to have to get into a situation where those in the minority are going to have to go hat in hand to the majority and say: Look, we are going to be limited to these number of amendments in order to get our amendments considered. The rules of the Senate permit us to offer amendments until there is a determination by 60 Members of this body to terminate or close off debate. Then there is also an opportunity for follow-on amendments, if they are germane. We are in a situation, nonetheless, where there are some negotiations being worked out and being addressed. We are inviting Members on both sides to give their reactions on it. It is a process which is done here in this body, and we will see what the outcome is. Barring that, we will be moving towards the vote on cloture on the Murray amendment, which we have talked about during these past days. It is a very simple amendment. It is a continued authorization for the next 6 years on class size for the earliest grades, K through 3. We had, as I mentioned earlier in the day, made an agreement which had broad bipartisan support. I read into the Record the very strong support for that measure when we worked it out just a few months ago, when the Republican majority leader, Dick Armey, said: We were very pleased to receive the President's request for more teachers, especially since he offered to provide a way to pay for them. . . . We were very excited to move forward on that. This is the Republican majority leader in the House of Representatives. We also have included statements where the Republican chairman of the House committee, Mr. Goodling, stated similar kinds of expressions of favorable consideration. Now we are faced without the opportunity to consider this amendment. That is basically unacceptable, Mr. President--particularly when communities across this country have to submit their budgets, which includes the hiring of teachers for this coming September, in only a few weeks. If schools want to take advantage of this year's teachers and the follow-on teachers, they have to be able to make a judgment. Schools, communities and school boards are all inquiring about this funding--the school boards in particular. They are in such strong support of this funding--the school board associations, the parents associations, the principals associations, the teachers associations. They want a degree of certainty--what rules do they have to play by. That is why this legislation is so important. The GAO report states that when they asked local directors and principals and superintendents of schools what were the three things that they wanted most, they said: First, additional funding--no surprise. Secondly, they said, tell us about additional programs that can benefit the children. Thirdly, we want information on how to run the school. That is in the GAO report, not, ``No. 1, we just want the Ed-Flex.'' We are for Ed-Flex. I want to see accountability, and we have made some progress. The House is dealing with that issue this afternoon-- they took some language and, I think, made some important progress in terms of accountability. The fact is, Mr. President, that the No. 1 issue on school boards all across this country is plain and simple: Are we going to move ahead and give the kind of continued authorization for this legislation so we can get smaller class size for the next 3 years, or aren't we? At 1:30, we have the chance to vote on that issue here in the U.S. Senate. We can vote in favor of cloture, which effectively ties that particular provision into the legislation--it can still be modified, if the amendments are germane. Then we take the next step to go to the conference. That is what is really before us and why this vote is of particular importance and significance. I see 1:30 has arrived--my friend and colleague from Tennessee is on his feet. We will either vote, which I am glad to do, or accede to the majority leader, if he has a request. Mr. FRIST addressed the Chair.