Ted Kennedy

Mr. KENNEDY

Mr. KENNEDY. I thank the Senator.

Mr. KENNEDY. May I ask the majority leader a question? May I inquire of the majority leader if there has been any further progress in establishing a time when we are going to consider the Patients' Bill of Rights legislation? I know there have been communications between----

Mr. KENNEDY. Mr. President, I would like to offer my support of the Durbin Amendment to the Commerce, Justice, and State Department Appropriations Bill. The recent tragedies in Arkansas and Pennsylvania call our attention once again to the youth violence facing our nation: the pointless injury and loss of life, the families that are ripped apart, the classmates who witness the horror or lose a friend, and the communities consumed in fear. No one can calculate the direct and indirect costs flowing from any one of the 14 times every day in which a child dies from a gunshot wound. National response to this death toll has been minimal, and little has changed in our approach to regulating guns since 1973. Although no one can replace what was lost, we can at least take steps to prevent future tragedies. But as we know from harsh experience, you can't arrest your way out of these problems. We must be equally credible on enforcement and prevention to have an impact. And we have to keep guns out of the reach of our children. We need to keep children away from guns. And it means adoption of the Durbin amendment, which requires adults to lock up their guns. The guns used in school shootings in Arkansas and Pennsylvania belonged to adult relatives of the children who used them. Fifteen states already have child access prevention laws, and those laws work. What we are talking about here today is taking responsibility for the safety of our children. That means all of us taking responsibility to change the culture of violence, and taking sensible steps to keep children safe. The Durbin amendment takes such a step and it deserves to be enacted this year by this Congress. How much longer must we endure the horrors of juvenile violence before we respond with measures that we already know are effective? Mr. DURBIN addressed the Chair.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, despite overwhelming public opposition to weakening protections for the environment and public health, some members of Congress are attempting to do so indirectly, by including anti-environment and anti-health directives in committee reports accompanying this year's appropriations bills. Often, these policy directives flatly contradict specific laws or the statute books. One particularly insidious example would endanger children. In the last Congress, with broad bipartisan support, we enacted the Food Quality Protection Act to provide safeguards against exposure to dangerous pesticides. But now, the Senate committee report accompanying this VA-HUD Appropriations Bill contains language that could delay implementation of key parts of this law for years, prolonging exposure of children to pesticides used in treating high chairs, sponges, cutting boards and other products used by children. The use of pesticides in these products is unauthorized, but unauthorized uses have become a serious problem in recent years. Some manufacturers are taking pesticides intended for other uses, and using them in connection with common household products, and advertising the products as safe. Very little research has been carried out to determine whether these household uses are safe. Until they are shown to be safe, their use in such products should be restricted. EPA has the authority to do so, and EPA is right to do so. Under the Food Quality Protection Act, the Environmental Protection Agency has recently acted against manufacturers who use pesticides in ways not approved by EPA. Usually, the manufacturers make unproven claims that their products kill salmonella or other germs, and state or imply that the products are safer for children than other products on the market that have not had such treatment. The Committee report on the current bill asks EPA to go through the process of promulgating a formal rule before moving forward with such enforcement actions. EPA has already given extensive opportunities to the industry to comment on the agency's rules on this issue. A formal rulemaking procedure is unnecessary and will result only in delay of needed action and needless litigation to block such protection. Obviously, committee report language cannot change current law. I urge the Administration to ignore all policy directives in reports that are inconsistent with existing law and that would undermine the environment and public health. EPA should continue its important mission of protecting the environment and children's health.

Mr. KENNEDY

Mr. KENNEDY. Will the Senator yield? Biologically, we have E. coli in our bodies, and humankind has always had E. coli, but it was not the deadly strain we are seeing today. Twenty years ago we were not even aware of the E. coli O157:H7 strain that is deadly, and we increasingly see this deadly strain. How many more outbreaks do we have to have before we act? This is why I think this amendment is so important, because of the increased danger that these outbreaks pose for our people. Particularly vulnerable are the children and the seniors. With the offset that you have proposed, I cannot understand the reluctance to protect the consumer, rather than taking our chances. I find it difficult to understand why we wouldn't have it accepted.

Mr. KENNEDY. Mr. President, I ask unanimous consent that floor privileges during the debate on the agriculture appropriations bill be granted to Diane Robertson, Stacey Sachs, and Mary Reichman.

Mr. KENNEDY. Mr. President, I strongly support the Harkin amendment, which fully funds the Food and Drug Administration's youth anti-smoking initiative at $134 million. These FDA rules were upheld by a Federal court in Greensboro, North Carolina last year. They prohibit the sale of tobacco to minors, and require retailers to check the photo identification of consumers who purchase tobacco products if they look 27 years old or younger. Of the $134 million which President Clinton requested in his FY1999 budget, $75 million will go to the States for enforcement, and $35 million will go for education and outreach to retailers to ensure compliance with these regulations. The pending bill provides only $34 million for this important initiative--$100 million less than President Clinton requested. The funding level in this bill is clearly inadequate. States will be able to check only 20% of tobacco retailers to ensure that they are not illegally selling tobacco products to minors. The additional $100 million in the Harkin amendment will increase that coverage to 60% of retailers. By establishing a minimum age to purchase tobacco products, and by requiring photo ID checks of young buyers, this initiative can make a significant difference in reducing youth smoking. Teenage tobacco use in the United States has clearly reached epidemic proportions. According to a report in April by the Centers for Disease Control and Prevention, smoking by high school students rose by nearly a third between 1991 and 1997. Among African-Americans, smoking has soared by 80%. More than 36% of all high school students smoke--a 19-year high. Once people are hooked on cigarette smoking as children, it is very difficult for them to quit as adults. Ninety percent of current adult smokers began to smoke before they reached the age of 18. In other words, if people reach age 18 without having smoked, they are unlikely to begin smoking as adults. Even more disturbing is that teenagers under-estimate the addictiveness of nicotine. Studies have found that 86% of teenagers who smoke daily and try to quit smoking are unsuccessful. Big Tobacco has known this fact for years. The tobacco companies are fully aware that if they do not persuade children to take up smoking, the industry will collapse in the next generation. That's why the industry has targeted children with billions of dollars in advertising and promotional giveaways. They promise popularity, maturity, and success for those who take up smoking. Evidence from the tobacco industry's own files indicates their blatant and cynical marketing to kids. A 1975 Philip Morris report by researcher Myron Johnston described how Marlboro became the most popular cigarette brand among young smokers. According to Mr. Johnston: Marlboro's phenomenal growth rate in the past has been attributable in large part to our high market penetration among young smokers . . . 15 to 19 years old. . . . My own data, which includes younger teenagers, shows even higher Marlboro market penetration among 15 to 17 year olds. . . . The teenage years are also important because those are the years during which most smokers begin to smoke, the years in which initial brand selections are made, and the period in the life-cycle in which conformity to peer group norm is greatest. An R.J. Reynolds memo written before the introduction of the Joe Camel marketing campaign emphasized that ``younger adult smokers are critical to R.J. Reynolds' long-term profitability. Therefore, RJR must make a substantial long-term commitment of manpower and money dedicated to younger adult smoking programs.'' It's no coincidence that shortly after R.J. Reynolds launched its Joe Camel campaign in 1988, Camel's share of the youth market skyrocketed from less than 1% to 33% in the 1990s. An undated Lorrilard memo stated boldly what we have known all along about Big Tobacco, that ``the base of our business are high school students.'' Because the tobacco companies have cynically marketed their deadly products to children, it is essential for the Senate to take strong action to prevent cigarettes from getting into the hands of children. Children and adolescents have little trouble purchasing tobacco products directly from retailers today. Studies have found that nearly 70% of the time that children and adolescents attempt to buy cigarettes from retailers, they succeed. If these youngsters have any problem at the counter, they go to a vending machine, where they can successfully purchase cigarettes 90% of the time. According to Professor Joseph DiFranza of the University of Massachusetts Medical Center, ``If $1 billion in illegal sales were spread out evenly over an estimated one million tobacco retailers nationwide, it would indicate that the average tobacco retailer breaks the law about 500 times a year.'' The Harkin amendment will prevent thousands of children from lighting up their first cigarette. It is a reasonable step to prevent youth smoking that has the strong support of the American public. I urge the Senate to approve it.

Mr. KENNEDY. I understand that since the Agency already has authority under the devices statute to require both recalls and notifications, amending these provisions to refer only to Class 1 recalls could be interpreted as limiting the Agency's existing authority. Am I correct that your intent is not to limit the Agency's existing authority, either with respect to recalls or notification?

Mr. KENNEDY. It is less than 2 percent of the imported products that are being inspected; 2 percent. We are seeing a doubling of the imported foods that are coming into this country and from a greater number of countries around the world. We are looking at less than 2 percent and the number of imports will be doubling.

Mr. KENNEDY. Mr. President, I join in thanking my friend and colleague from Iowa, Senator Harkin, and Senator Durbin, and others, for providing the leadership in what I consider to be one of the most important amendments introduced as part of this legislation. I hope that we will be successful, because it addresses a problem that has been outlined by my colleagues on the floor of the Senate about what has been happening in our food supply over recent years. What we have seen, Mr. President, over the period of the last 5 years, has been the doubling of imported food into the United States. We expect that the food that has come into the United States will double again over the next 5 years. We are finding that a third of all of the fruit, and over half of the seafood consumed in this country is being imported into the United States. And those figures are going to grow over the next 5 years. At the same time, we have seen a significant reduction in resources dedicated to inspections. Over the period of the last 5 years, there has been a 22-percent reduction of support for inspections and food safety in the Food and Drug Administration. The Department of Agriculture has primary responsibility for meat and poultry. The Food and Drug Administration has primary responsibility for inspection of all other food. The increase in imports in these other food categories--produce, seafood, etc.--inspected by FDA would be one factor which could justify the increase that is included in the Harkin amendment. But that really does not tell the whole story, Mr. President. To understand the whole story, we have to understand the very dramatic changes which have taken place in terms of our food supply. For example, let's look at E. coli, which occurs naturally in our bodies. In the last 20 years, E. coli has mutated to be more virulent and even deadly. This was illustrated today by my friend and colleague from Illinois, Senator Durbin, and illustrated by the food disease outbreaks that we have seen from January to July of 1998. We are not just saying that the appropriations haven't kept up with the need, as important as that is, and that ought to justify it, but there are dramatic differences in the eating habits of the American people. More people are eating out. More people are eating products that are coming from different countries. More Americans are storing their food over longer periods of time. All of this is having an impact in terms of the increased risk from foodborne pathogens and the increased occurrence of foodborne illness. The bottom line, Mr. President, is that foodborne diseases are much, much more dangerous today than they were 3 years ago, 5 years ago, 10 years ago. You are getting a change in quantity and the severity of the illnesses, the virulence of foodborne pathogens and their impact on human beings. Antimicrobial resistance contributes to this phenomenon, and those in the pharmaceutical industry see it every single day. They believe that this is one of the very significant new phenomena in the whole area of health science. It is reflected in the severity of these illnesses. They are deadly today. They don't just give you a stomach ache; they kill you. That is why I believe this amendment is of enormous importance. We need to have the kind of support that this amendment provides, to make sure that we, as Americans, are going to have the safest food supply in the world. We do. But it is threatened. For us not to understand the risk is foolishness. I believe this amendment, with its offsets, is justifiable and of enormous importance. I thank the Senator from Iowa for his leadership in this area. I commend him for his legislation and for the seriousness with which he has approached it and for his constancy in pursuit of it. We are very much in your debt. Even with this, Mr. President, I think all of us have a responsibility of watching, and watching carefully, what is happening to our food supply as we move ahead in these next months and years. Tragically, if we fail to do this, and we see the kind of tragedies that are bound to take place, we will have, once again, I think, in an important way, failed to meet our responsibilities to provide protections for the American people in the most basic and fundamental way. Every day, more Americans are stricken with food poisoning. Children and the elderly are especially at risk. Outbreaks of foodborne illness are increasing. The toxicity of bacteria is increasing. Yet resources to combat these festering problems are decreasing. Without additional resources, FDA and the Department of Agriculture cannot act effectively to prevent these illnesses. The American public deserves better. In the last two months: over 400 people became ill and 74 were hospitalized in 21 states from Salmonella in dry cereal; 6,500 people in Illinois became ill from salad contaminated with E. coli; 40 people became ill and almost half were hospitalized because of an outbreak of E. coli in cheese; and over 300 people became ill in six states from bacteria in oysters. These cases are a small sample. According to the Congressional General Accounting Office, foodborne illnesses affect up to 80 million citizens a year and cause 9,000 deaths. Medical costs and lost productivity are estimated at $30 billion. This is not a problem that we can ignore. Michael Osterholm, state epidemiologist for the Minnesota Department of Health, condemned the lack of action after a recent outbreak in the state. He said that, ``If we don't do better, and we don't give the FDA more money, more events like this are going to happen. Right now, we don't seem to have the resources or the will to keep something like this from happening again. As long as we don't, we will have other outbreaks.'' The old wisdom does not apply. You can't just cook your food more thoroughly to avoid these illnesses. Harmful bacteria are appearing in virtually all food products--juice, lettuce, even cereal. Our amendment will provide $73 million in additional funds to support greater monitoring, education, research, and enforcement to address this growing problem. We have the ability to prevent most foodborne illnesses. Improved monitoring allows earlier detection and an earlier response to outbreaks. Increased food inspections are needed to keep unsafe food out of our stores and off our dining room tables. Expanded research is needed to detect and identify dangerous organisms likely to contaminate food. The need is especially great with respect to imports of fresh produce and vegetables. Our amendment will provide the resources needed to perform these essential activities. It will mean 150 new inspectors for FDA to focus on food imports, which have more than doubled since 1992. Yet during that same period, FDA resources devoted to imported foods dropped by 22 percent. As a result, FDA now inspects less than 2 percent of imported food. Clearly, we have to do better. Our amendment would also provide funds to enhance ``early warning'' and monitoring systems needed to detect and respond to outbreaks. These systems will also provide information to prevent future outbreaks. Early detection and control are essential to ensure the safety of every American. In addition, our amendment will fund research essential to understand dangerous organisms in food. Many cannot be identified today. Others have developed resistance to traditional methods of preserving food. Still others have developed resistance to antibiotics. Clearly, additional research is needed to protect the food supply. We have broad support for this amendment. The food industry, consumer groups and the public all favor increased funding. Food safety affects every American every day. Without additional resources, we will continue to see the escalation of these outbreaks. Congress must act to ensure the safety of the food supply for all Americans. The American people deserve to know that the food they eat is safe, no matter where it is grown, processed, or packaged. I thank the Senator and urge our colleagues to support this amendment.

Mr. KENNEDY

Mr. KENNEDY. Will the Senator yield?

Mr. KENNEDY. There is a time-honored tradition here which has been violated, at least in my concern, where a person who offers the amendment usually is afforded the opportunity to modify it, and that was not afforded to our leader last evening. Is it the Senator's understanding that even if we have an attorneys general agreement that basically deals retrospectively with what has been achieved in the past but will not provide the kind of preventive programs that are so important to discourage teenagers from smoking, it will not strengthen the Food and Drug Administration to be able to take effective action in terms of certain advertising programs for youth and will do very little in terms of discouraging children from purchasing cigarettes because of an increase in price? Is it the Senator's understanding that one of the reasons he continues to press this is because even if there is an attorneys general agreement, that it is retrospective rather than prospective?

Mr. KENNEDY. Just finally, because I see others in the Chamber, of course, those kinds of inflictions of addiction are continuing among the young people in this country today without this action. My final question is this: Is it the Senator's purpose in providing a substitute, if he had been able to do that, or make the modification last night in the time-honored tradition of this body, would the Senator's modification basically have addressed the objections which were made to the earlier consideration of the tobacco proposal? I understood that is where they were directed. So if the measure had been permitted to be modified, that effectively the kinds of procedural issues and questions that have been raised would effectively have been attended to and we would have on the floor of the Senate a real opportunity to address the substance of the amendment? Of course, I think, myself, they both have become interchangeable, but I am just interested in what is the leader's viewpoint on that issue.

Mr. KENNEDY. I thank the leader.

Mr. KENNEDY

Mr. KENNEDY. I was listening to the leader's outline for the remainder of the week and the proposals, and I had not heard the scheduling of the Patients' Bill of Rights. I know that the leader talked with the Democratic leader. I was wondering if he could give us any further information about what the scheduling prospects would be for that very important piece of legislation, particularly since the HUD appropriations has that as an amendment on it. What could the leader tell us about the prospects of going to a debate on this legislation?

Mr. KENNEDY. Mr. President, I wonder if the leader would yield for a question.

Mr. KENNEDY

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

Mr. KENNEDY

Mr. KENNEDY. Mr. President, as my friend and colleague, Senator Dodd, has pointed out, during the weekend, three young brothers--10 year old Richard Quinn, 9 year old Mark Quinn, and 7 year old Jason Quinn--were senselessly murdered because they were Catholic. Some time ago, an Independent Parades Commission, appointed by the British Government, ruled that members of the Orange Order--a Protestant organization that celebrates a centuries--old victory of Protestants over Catholics by staging trumphalist marches through Protestant and Catholic neighborhoods--could not march through a Catholic neighborhood in Portadown, Northern Ireland. But the Orange Order refused to accept the ruling and vowed to force the march to proceed along the Garvaghy Road in a Catholic neighborhood. A stand-off ensued--members of the Orange Order attempted to march through the area, but were not allowed past barricades erected by security forces. Protestant extremists have used the week-long stand-off as justification to carry out attacks on Catholic homes and members of the police force. Early Sunday morning, in Ballymoney, Co. Antrim, many miles from Portadown, the Young Quinn boys were asleep in their beds when their home was firebombed by individuals who can only be described as terrorists. The boys were living in a Protestant neighborhood, and their home was targeted because their mother is Catholic. Both sides deserve their share of the blame for the sectarian attacks that continue in Northern Ireland. But this tragedy never had to happen and never should have happened. The Orange Order must recognize that its refusal to abide by the decision of the Parades Commission led to the murder of the Quinn boys. As a card left at the site of the Quinn home read: ``A price to great to pay for a 15 minute walk.'' Another contentious parade was conducted today in a civilized manner. Despite opposition by the local Catholic residents on the Ormeau Road in Belfast, the Parades Commission ruled that this parade should be permitted. The Orange Order conducted the parade within the bounds set down by the Commission, and the residents of the area staged a peaceful, dignified protest, but did not attempt to block the parade. Prime Minister Tony Blair and Northern Ireland's Secretary of State Mo Mowlam deserve credit for not bowing to the pressure of extremists in the Orange Order. And I join with Protestant leader David Trimble, the First Minister of the new Northern Ireland Assembly, and Deputy First Minister Seamus Mallon in calling on those assembled in Portadown to end their confrontation in light of this tragedy. This brutal fire bombing was the act of cowards. They do not represent the vast majority of the people in Northern Ireland, Protestants and Catholics alike, who have voted for peace and an end to division. Everyone outraged by the murder of these three young boys must redouble their efforts to support the peace process and to assure that extremists bent on sabotaging that process do not prevail. We all extend our deepest sympathies to the members of the family. Mr. President, I ask unanimous consent to be able to proceed for 10 more minutes as in morning business.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I oppose this legislation. Much of the bill is almost certainly unconstitutional, and all of it is unnecessary. States and municipalities already have adequate ways to decide questions of property rights. The goal of this misguided legislation is not to protect the constitutional rights of property owners, but to create new rights for wealthy developers. It would alter the balance of power in their favor, and force local governments across the nation to accept a wide range of activities that harm communities. This legislation is a Pandora's Box of problems for local communities and the federal judiciary. It will force municipalities into federal court early in the land-use process. It will force federal judges to accept cases involving sensitive land-use issues that should be handled at the local or state level. It will add a new burden to federal courts, at a time when they are already over-burdened. It will substantially--and unconstitutionally--broaden the jurisdiction of the Court of Federal Claims. The bill is the latest attempt by the Republican Congress to tip the balance against neighborhoods and towns and in favor of developers. It isn't unreasonable to ask property owners to consider the health, safety, and zoning needs of the local community. State and local planning and zoning boards, and health and safety commissions, exist to protect local needs, and balance them with the interests of property owners. Each person's property rights are bounded by his neighbor's interests and limited by the public interest. It is not against the law for the government to ``take'' private property for public use. It is only against the law to take it without compensation. Local involvement is necessary to this process. Only at the local level can the proper determination of value be made and the necessary negotiations take place. Once decisions are made at the local level and state courts have a opportunity to reach a decision, property owners have the right to appeal to federal courts if they are dissatisfied with the local decision. There is nothing wrong with the current law that this legislation will fix. By forcing federal courts into earlier stages of these local decisions, it will give landowners an unfair ``big stick''--the threat of federal litigation. And that threat is real. Currently, a federal judge may refuse to hear a case if it is not yet ``ripe'' for adjudication in a federal forum, or involves issues better dealt with in state courts. This bill will allow big developers to force local planning issues out of local administrative and judicial forums, where they belong, and into federal courtrooms, where they don't belong. The bill also undermines the principles enunciated by the Supreme Court in the Williamson case, which held that remedies should be pursued at the state level before being sought in federal court. As the Court noted, ``Rejection of exceedingly grandiose development plans does not logically imply that less ambitious plans will receive similarly unfavorable reviews.'' In other words, a city can deny a permit to build a factory on a piece of land, but might well allow residential development. Most disputes about property are resolved by this back-and-forth process between local officials, neighbors and developers. Through this process, the community shapes the kind of growth it wants and can support. By allowing a developer to bring a city into federal court after filing one proposal, this bill will promote litigation at the expense of negotiated solution. Because municipalities are often small and federal lawsuits are costly, localities will be coerced into abandoning sensible land-use plans because they can't afford a lawsuit. This bill will certainly interfere with necessary local efforts to protect the quality of their communities, including the water, air, and open space, and health and safety, too. Most communities across the country are small. Very few have legal staff. Yet these are the communities that will have to defend their regulations and zoning decisions in federal court if they don't surrender to big developers' demands. Some of the cases that this bill would affect could easily pose serious threats to the health and safety and well-being of our communities. Finally, there are serious constitutional questions about the bill's proposed expansion of the jurisdiction of the Court of Federal Claims. That court is an Article I court, not an Article III court. It has no authority over Congressional or agency actions. It was created to hear monetary claims against the federal government. Expanding its scope will cause it to cross over into the realm of Article III courts. The Judicial Conference of the United States opposes granting the Court of Federal Claims the power of injunctive and declaratory relief, and the authority to invalidate Acts of Congress or agency regulations. The power to invalidate Acts of Congress and federal regulations has historically been part of an independent judiciary. The Court of Federal Claims does not have the tenure and salary protections of an Article III court that ensure judicial independence. So this bill is likely to be held unconstitutional under standard doctrines of separations of powers. Judicial efficiency in the already over-burdened federal court system will also suffer, as more federal lawsuits are filed against zoning boards, land-use bodies and regulatory agencies. The cases this legislation will unleash will burden the federal courts at a time when there are over 70 judicial vacancies. The irony is obvious--our Republican colleagues won't confirm more judges, but they're more than willing to add to the current excessive workload. These complex issues of local land use are currently being resolved at the appropriate level. Congress should reject this heavy-handed scheme to curry favor with developers at the expense of homeowners and neighborhoods across America.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, the time moves on on the issue of our Patients' Bill of Rights legislation. Just 43 days remain in this session. The time has come to end the abuses of the HMOs and managed care plans. Families across the country know that too many medical decisions today are being made by the insurance company accountants instead of doctors. They know the company profits too often get priority over patients' needs and, too often, managed care is mismanaged care. We have legislation--the Patients' Bill of Rights--to end these abuses. Included in the Patients' Bill of Rights is a section that allows ERISA-covered patients to hold their health plans accountable for abusive actions that result in injury or death. This provision seems to have drawn the strongest opposition from the Republican leadership and their special interest allies. But an article in last Saturday's New York Times paints a poignant picture of the need for reform. Judges throughout the Federal judicial system have written decisions in which they implore Congress to take action to correct ERISA's gross inadequacies. They have repeatedly ruled that their hands are tied--even in the most egregious cases--from providing the patients or their families with meaningful redress when an insurance company's actions result in injury or death. Mr. President, I will quote a few parts of this article. I ask the Chair to remind me when 2 minutes remain. . . . The United States Court of Appeals for the Fifth Circuit, in New Orleans, reached a typical conclusion in a lawsuit by a Louisiana woman whose fetus died after an insurance company refused to approve her hospitalization for a high-risk pregnancy. . . . In dismissing the suit, the court said, ``The Corcorans have no remedy, state or Federal, for what may have been a serious mistake.'' The court said that the harsh result ``would seem to warrant a re-evaluation of ERISA so that it can continue to serve its noble purpose of safeguarding the interests of employees.'' What they were pointing out is that there was no opportunity, after the negligence involved in this case, for the defendant to be able to receive any redress for the injuries they sustained, and the Federal judge was saying that Congress should act. In a second case, Judge William G. Young of the Federal District Court in Boston, and I point out that he is a Republican appointee, said-- ``It is deeply troubling that, in the health insurance context, ERISA has evolved into a shield of immunity which thwarts the legitimate claims of the very people it was designed to protect.'' Judge Young said he was distressed by ``the failure of Congress to amend the statute that, due to the changing realities of the modern health care system, has gone conspicuously awry,'' leaving many consumers ``without any remedy'' for the wrongful denial of health benefits. Next . . . Judge John C. Porfilio of the United States Court of Appeals for the 10th circuit, in Denver, said he was ``moved by the tragic circumstances'' of a woman with leukemia who died after her HMO refused approval for a bone marrow transplant. But, he said, the 1974 law ``gives us no choice,'' and the woman's husband, who had sued for damages, is ``left without a remedy.'' Again The United States Court of Appeals for the Eighth Circuit, in St. Louis, said the law protected an HMO--against a suit by the family of a Missouri man, Buddy Kuhl, who died after being denied approval for heart surgery recommended by his doctors. ``Modification of ERISA in light of the questionable modern insurance practices must be the job of Congress, not the courts,'' said Judge C. Arlen Beam. The United States Court of Appeals for the Sixth Circuit, in Cincinnati, said that the Federal law barred claims against a ``utilization review'' company that refused to approve psychiatric care for a man who later committed suicide. Because of ERISA, the court said, people who sue an HMO or an insurer for wrongful death ``may be left without a meaningful remedy.'' Federal District Judge Nathaniel M. Gorton, in Worcester, Mass., said that the husband of a woman who died of breast cancer was ``left without any meaningful remedy'' against an HMO that had refused to authorize treatment. Federal District Judge Marvin J. Garbis in Baltimore, said . . . whether ERISA should be ``reexamined and reformed in light of modern health care is an issue which must be addressed and resolved by the legislature rather than the courts.'' The Ninth Circuit continues in another case, and it goes on and on and on. This is what we are seeing across the country in the Federal district courts, in the circuit courts, with judges that come from entirely different traditions, Republicans and Democrats alike. When they look at ERISA, they find out that there are grossly inadequate remedies for individuals who have suffered as a result of malpractice, or because that HMOs have denied coverage for health treatments recommended by their doctors. So, Mr. President, this isn't just those of us who are supporting this legislation that are saying it. Here we have the irrefutable presentations made by district court and circuit court judges across the country that are inviting Congress to act to protect families in the United States of America. There is only one bill that provides that protection, and it is the Patients' Bill of Rights. Every single day that we delay acting on it, the circumstances we have discussed here tonight will be repeated and repeated and repeated. The insurers and corporations who fear they have something to lose if patients are able to hold plans accountable have used ginned up estimates to try scare people into thinking that offering this protection would somehow result in dramatic premium increases. But tens of millions of patients--those who work for states and localities and those who purchase health insurance on their own--have this right, and a recent study confirmed that the cost associated with it is negligible. The independent and nonpartisan Kaiser Family Foundation hired Coopers and Lybrand to examine the costs of being able to hold plans accountable for their actions. And their study found that ensuring this right costs as little as three pennies per month. Three pennies per month to hold your plan accountable for its actions. Now, we know that the insurance industry does not support that particular proposal, and we know that the Republican leadership does not support that proposal. But we are asking, when in the world will the Republican leadership let us at least debate that issue here on the floor of the U.S. Senate? They have denied us the opportunity to mark the bill up in our committee. They have denied us the opportunity to have legislation on the calendar and the opportunity to get that measure scheduled so we can debate it. Mr. President, that is wrong. Now we listened to those on the floor of the U.S. Senate the other night speaking for the Republican leadership saying, ``The Republican leadership will decide when we will schedule this measure, and we in the majority are not going to schedule that measure until we are good and ready to do so.'' Well, we are saying that we are going to offer this measure on every single appropriate measure that comes before the U.S. Senate, and maybe the leader does have the power to pull legislation down and stick it back on the calendar, but they are going to be really busy doing that because they are going to have to put every piece of legislation back on the calendar because we are going to continue to offer this commonsense proposal.

Mr. KENNEDY. Mr. President, I want to finally point out that the President's own blue ribbon nonpartisan commission, made up of a wide variety of different personnel representing the industry--doctors, patients, nurses--looked at the issues around patients rights. They recommended virtually unanimously that all patients should have the kinds of protections included in our Patients' Bill of Rights legislation. That is the President's commission. Now, if our Republican friends do not want the American people to have these rights, let's get on the floor of the U.S. Senate and debate it. But they refuse to do so, Mr. President, and we will not be silent. We will continue to make every effort to bring this legislation up so that we can get about the business of protecting American consumers. Mr. President, I ask unanimous consent that this full article be printed in the Record.

Mr. KENNEDY

Mr. KENNEDY. I concur with my colleague from Iowa. Before the Senate accedes to the House's provision on tenured faculty, this issue should be discussed and hopefully resolved during the conference.

Mr. KENNEDY. The House of Representatives has addressed only one of these issues. It has proposed a limited exception to the Age Discrimination in Employment Act for tenured faculty. But you are correct that there is an additional concern regarding older workers and their ability to pursue claims under the Age Discrimination in Employment Act, and that has to do, as you noted, with the application of the Supreme Court case, Lorance versus AT&T Technologies. In 1991, Congress passed legislation that partially overturned Lorance. Today, Lorance does not apply to claims brought under Title VII of the Civil Rights Act. Unfortunately, Congress did not consider the effect of the Lorance decision on other statutes, in particular, the Age Discrimination in Employment Act.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, on another item, I want to just take a few moments to bring the Senate and those who are watching up to date about where we are on our battle for debate and discussion on the issue of the Patients' Bill of Rights. As we have pointed out, that issue, which is of fundamental importance to the American people, is a rather basic and fundamental issue. It comes down to this very simple concept--that medical decisions ought to be made by doctors and patients and not by insurance agents, and that too often in America today managed care means mismanaged care. We have a responsibility to address the abuses that are taking place in our health care system. That is what this whole discussion is really all about. Those of us who believe these issues are important have been denied the opportunity to address them. Some of us have introduced and supported legislation to address these abuses more than 1\1/2\ years ago, and, more recently, we have done so with the excellent bill that our leader has provided, Senator Daschle. We are in strong support of it. We have been trying to get time to debate that issue here on the floor of the U.S. Senate. We were blocked out of consideration in our committees. We were blocked out of consideration of even getting legislation on the calendar. We have been blocked out of consideration here on the floor of the U.S. Senate, and we have been resolute in our determination that this issue would be debated and discussed and acted on in this session. We have seen, I think, as of yesterday, a list of so-called principles from our Republican leadership on their version of a Patients' Bill of Rights. I will just take a moment or two to reflect on their particular principles, and the hollowness of their commitment to meaningful rights will be clear. I ask unanimous consent to have printed in the Record at the conclusion of my remarks their complete document, the Republican Health Care Principles.

Mr. KENNEDY. Let me just go through them very quickly. This is on page 1. Republicans believe all consumers have the right to: Receive accurate, easy-to-understand information about what their health plans provide, including information about out-of-pocket expenses and information about health care providers. Then, if you read through the pages of their document and go to the last page, it talks about the information that will not be provided; that is, it lists, for example, that insurance plans will not have to provide information on treatment outcomes. They will not have to provide information on patient satisfaction. They will not need to report on the quality of the care they deliver. It seems to me that consumers ought to understand the satisfaction level of patients in a particular HMO. It seems to me that we should also have an opportunity to know the outcomes of various treatments in various insurance plans. So, on the one hand, you see on page 1 various information is going to be made available. Then you turn around on page 3 and it lists all the things they are not going to provide, including many of the essential elements that every consumer group and every patient group and every employer understands are essential if patients and consumers are going to be able to make informed judgments on their health care. Now, returning to the Republican leadership's list, it goes on to say that consumers should be able to ``hold their health plans accountable through a fair and expeditious appeals process.'' That sounds good. But, the word that should have been in there is ``independent.'' Patients need an independent appeal process. What does ``a fair and expeditious appeals process'' mean? If they had said it will be ``independent,'' or to an ``external body review for fair and expeditious appeals''--then we would be on our way toward agreement on something. But, oh, no, this again refuses to be specific or even indicative that patients will have fair-minded, independent, outside external review and accountability. Furthermore, the so-called principles say consumers will be permitted to ``communicate openly with their doctors about their treatment options.'' That sounds like we are lifting the gag rules, like this list might include lifting the gag rules that still exist in some HMOs. But, the fact is that most HMOs and insurance plans have the ability to fire doctors without cause. And they also have the ability to make financial arrangements with doctors, and those financial arrangements can be adjusted and changed by the HMO, to discourage provision of necessary medical care. So, while it sounds good to say you are promoting open communication, unless you are also going to guarantee that doctors can practice medicine unfettered by the insurance companies' accountants, you are really not doing very much. It might sound good, but in fact it is not doing very much. This is really a very, very weak commitment. Then their list goes on. The consumer should: Know that their medical care is based on the best scientific information available, not on political considerations. Patients need and deserve the best health care treatment. They are not worried about the political considerations. They are worried about the financial considerations--profit considerations of insurance companies--that drive medical decisions. Do we understand this? Our Republican colleagues do not even commit in their statement that they are going to have the decisions involving health care being made by the doctors on the basis of health considerations. All they say is they will have it ``not on political considerations.'' They don't eliminate the clear, fundamental problem driving this debate, which is that health treatments are being based on the financial considerations of the insurance companies. The Republican leadership's list continues. Consumers should have: Access to their medical records and the right to know that their medical information will be used only to provide better health care. This would suggest privacy protections. This is very interesting. Senator Leahy, our colleague from Vermont, has been a leader in this whole area. He introduced a bill more than a year ago, which I have cosponsored, and we can't get the majority to report out a bill in our committees, either in the Judiciary or in our Labor and Human Resources Committee, or get the Republican leadership to be willing to schedule it on the floor. Here they are, talking about all the kinds of guarantees in terms of privacy, but they have historically been unwilling to address it in a meaningful way. Mr. President, just before the Fourth of July recess Speaker Gingrich issued his principles. The Gingrich plan fails in three very important areas. First, it refuses to commit the Republican leadership to HMO reform that says that medical decisions will be made on the basis of medical concerns rather than insurance company concerns. Second, it does not guarantee access to specialists. What person in this Chamber would want to have either his wife or child who had been stricken by cancer be denied immediate access to an appropriately qualified oncologist or pediatric surgeon who can provide the best in terms of treatment? The Gingrich proposal simply does not provide the kind of guarantee of specialist access which is critically important for protecting consumers. Third, it does not provide the ultimate protection of accountability. This will be an issue we will debate here. I cannot wait to find out how the Senate is going to vote on the issue of accountability. Just last month, the Senate voted by two-thirds that we were going to still hold the tobacco industries accountable for their actions. Are we going to reverse that with regards to the insurance companies on health care? Why can't our Republican leadership say, at least on that issue, given where the Senate has voted on tobacco, that we believe that the insurance industries that are dealing with health care also should not be free from liability? Why? Because the Republican leadership is in the pockets of the special interest groups who fear being held accountable for their actions. I would like someone to explain the inconsistency of this position, given the recent vote on immunity for tobacco companies. How can they oppose holding accountable those whose abusive actions can result in immediate injury or death? Who is going to look out after that? Mr. President, we want to make sure we are going to have accountability and that it is going to be an essential issue we are going to debate. I call this Senate Republican proposal ``Gingrich Lite.'' Gingrich Lite. They don't even go as far in the Senate as they went in the House of Representatives, which was lacking. Finally, the Republican leadership's principles fail to meet the following very basic considerations and protections. I am waiting for Republicans to describe why they are opposed to any of these protections. I will just mention them again very quickly. Patient information--it is interesting, as we list all of these protections in this particular chart, to note where we got these recommendations from. In each and every case of protections that are guaranteed in the Patients' Bill of Rights, they have also been recommended either by the President's recent quality commission, which was a blue-ribbon non- partisan group of experts, or they have been in effect for a number of years under Medicare, or they have been recommended by the States' insurance commissioners, which is a bipartisan group, or it has been recommended by the American Association of Health Plans, which is the HMO trade association. If you look down at guarantees that are included in our Patients' Bill of Rights, you will see that they have been recommended or been in effect for a number of years. This is a commonsense--commonsense-- proposal based upon thoughtful consideration of the types of rights that are currently being guaranteed to many, but not all, Americans. Mr. President, we welcomed the opportunity this week to have the measure before the Senate. It was there very, very briefly, but quickly taken away by the Republican leadership. No debate. No discussion. This issue is a priority for the American people, and, even though we have only 44 days left in this Congress, we are going to be resolute and committed to bringing this issue up so that we in this body are going to be able to debate these matters on the floor of the U.S. Senate and vote to provide patients across the country with meaningful protections. There are 44 days left, Mr. President, in order for us to take action--44 days left. Today is July 10. There are 44 days left to debate this issue and to take action, and the American people deserve action, and they will receive it, because we are strongly committed to it. I yield the floor. Exhibit 1 Republican Health Care Principles Republicans will demand that HMOs play by the rules and provide access to patient-centered care. Many consumers fear that their health care plans will not give them access to care when they need it most, that they will be denied the benefits they've paid for and been promised, and that their health plans care more about cost than they do about quality. These are real fears of unacceptable conditions and HMOs must do better. Republicans believe that all consumers have the right to: Receive accurate, east-to-understand information about what their health plans provide, including information about out- of-pocket expenses and information about health care providers; Receive the benefits they have paid for and been promised; Hold their health plans accountable through a fair and expeditious appeals process; Communicate openly with their doctors about their treatment options; Know that their medical care is based on the best scientific information available, not on political considerations; and Access to their medical records and the right to know that their medical information will be used only to provide better health care. Republicans support expanding health care coverage to more Americans by enhancing its affordability. We will not adopt legislation that will make health insurance more costly or drive businesses--especially small businesses--to drop coverage of their employees. While CBO has not completed its analysis of PARCA or the ``Patients Bill of Rights,'' a 1997 Milliman and Roberts study of PARCA found that the legislation would increase health care premiums by an average of 23 percent. To the average family, that's an annual premium hike of $1,220, or more than $100 per month. That study, significantly, did not take into account the additional costs that would be imposed by the liability provisions. Higher health care costs mean more uninsured people. According to a 1997 study by Lewin, for every 1 percent increase in premiums, 400,000 people lose their health insurance coverage. Congress should not pass legislation that would cause hundreds of thousands and perhaps millions of people to become uninsured. Republicans believe in expanding choice. We will not force every American into an HMO. Extensive new federal requirements included in the so-called Patients Bill of Rights will force all health plans to resemble HMOs. Ironically, many of the bills which claim to expand choice actually would limit choice. Rather than expanding regulation and forcing a ``one-size-fits-all'' approach to health care, Congress should focus efforts on reforming the tax rules which limit and in some cases prohibit consumer's choices. Republicans believe that health resources should be used for patient care, not to pay trial lawyers. Medical malpractice laws have led doctors to practice defensive medicine, making health care more costly without improving patient outcomes. Expanding malpractice liability will exacerbate these problems. Moreover, health plans are likely to micromanage clinical decisions in order to protect themselves against costly lawsuits. Congress should not pass legislation on the assumption that people can sue their way to health care quality. Republicans believe the private sector is more capable of keeping pace with the rapid changes of health care. The government is not the best caretaker of health care quality. Republicans agree with leading physicians such as Dr. Bob Waller of the Mayo Clinic, who warned that increased federal regulation of health care quality, by freezing in place standards that will quickly become obsolete, will actually diminish the quality of care that patients receive. Who also agree with the approach taken by the President's own hand- picked Commission on Quality which did not recommend legislation or regulation. Instead, the President's Commission--which he has conveniently disavowed--recommended voluntary implementation of consumer protections. Republicans believe consumers have the right to a health system driven by the best scientific evidence available--not one hamstrung by political considerations. Congress should not practice medicine. Over the past several years, Congress has imposed a number of ``body part'' mandates on health insurance plans. These mandates, though well-intentioned, are often misguided. For example, the Journal of the American Medical Association last year published a study which concluded that maternity length-of-stay requirements do not improve health outcomes for mothers or their babies and may do more harm than good. Congress should not magnify and repeat past errors by imposing new body part mandates on health plans. The federal government should focus on a system which will give providers and physicians more time with patients and less time on paperwork. Bills that impose extensive information disclosure requirements on health plans will force those plans to impose extensive paperwork requirements on providers. Instead of simply filing claims information with insurers--as providers in fee-for-service and PPOs do-- doctors will have to supply insurance companies with information about their patients, the care their patients receive, treatment outcomes, and patient satisfaction, among other things. This will require doctors to spend more time filling out forms and less time treating their patients. Republicans will not politicize or simplify an issue as important as health care quality. Many on the other side are willing to jeopardize insurance coverage for millions of Americans for a political ``slam dunk.'' Republicans will not exploit the fears of Americans in order to enjoy a political victory. The issues surrounding the quality of our nation's health care deserve to be debated responsibly and cautiously. We will not pass legislation which increases the number of uninsured, makes health care unaffordable, and diminishes rather than enhance health care quality. Mr. BUMPERS addressed the Chair.