Ted Kennedy

Mr. KENNEDY

Mr. KENNEDY. Yes.

Mr. KENNEDY. That is fine. The Senator understands, if we are successful, then there is not a Nickles amendment, obviously.

Mr. KENNEDY. Mr. President, how much time do I have?

Mr. KENNEDY. That is acceptable. Can we get the yeas and nays?

Mr. KENNEDY. There are 6 minutes to a side, is that correct?

Mr. KENNEDY. Mr. President, I appreciate my colleague's concern about the excessive spending. I am offering a compromise to his amendment. The Senator from Oklahoma proposes an amendment to eliminate the HCFA request by striking the entire $16 million. We have cut that amount in half to $8 million as a way of trying to find common ground on this issue. It cuts the amount given to HCFA in half. This is less than I want, but it will still make a substantial contribution to enforcing the insurance reform. The issue is clear: Will the Senate stand with families, with children, with persons suffering severe mental illness, with persons with disabilities, and with expectant mothers to make sure that the protections that were included in the Kassebaum-Kennedy legislation will actually be implemented? Did we really mean it when we passed those important reforms about 2 years ago? I believe that we did mean it. I think those reforms are enormously important protections for millions of our fellow citizens. The States have done a good job. But there are still some areas where those protections are not there. With these resources, we can guarantee that the law fulfills its promise of protecting our fellow citizens. It will allow us to nip in the bud some of the egregious situations that have been outlined in the GAO report. This bipartisan amendment provides $8 million, half of the Administration's request--$3 million for implementation and enforcement of Kassebaum-Kennedy and $5 million for the other purposes outlined in the Administration's original $16 million proposal that was advanced by Senator Bond and others in the Appropriations Committee. I hope that our colleagues will feel that this is a good-faith effort to try to find common ground. I reserve the remainder of my time.

Mr. KENNEDY. The Senator is correct.

Mr. KENNEDY. Mr. President, how much time do I have?

Mr. KENNEDY. Mr. President, first of all, this is not an add-on. This is an administrative judgment made by HCFA that there was a greater need and priority to use additional resources to implement the Kassebaum bill. We are not adding on the funds. The Senator is right in recognizing that we are trying to accommodate the concerns raised about the number of people and trying to move this process forward, so we have cut out half of the request. Mr. President, I want to reserve the last 45 seconds. I want to read a few words of a letter from the National Breast Cancer Coalition: The Kassebaum-Kennedy bill is meaningless without adequate resources for implementation and enforcement. The National Breast Cancer Coalition is a grassroots advocacy organization made up of over 400 organizations and hundreds of thousands of individuals. Adequate implementation of the Health Insurance Portability and Accountability Act is critical to this end. Critical to this end. Those are the words of the National Cancer Breast Coalition, which represents some 400 different grassroots organizations. We have the same kind of statements made by all of the various groups affecting the disability community, all supporting the position which we have taken and which we have advocated. Mr. President, I believe that it is important to make sure that those protections for individuals who have preexisting conditions or disabilities should be protected. This amendment, which pares down the original request, goes halfway on this issue, but is still able to provide some of the necessary protections we have debated today. I hope that the Kennedy-Bond- Wellstone amendment will be accepted.

Mr. KENNEDY. Mr. President, if the Senate votes to deny the administration's request for additional funding to fulfill the responsibilities bestowed by Congress under the Kassebaum-Kennedy legislation, tens of millions of Americans will be denied the protection of a law we passed unanimously, not once but twice. Supporting the Nickles amendment is like saying, ``We'll give you a car, but not the keys.'' What good does it do to pass a law that we are not willing to enforce? This amendment will effectively reduce, in a very important and significant way, the enforcement and the protections that were included in the legislation. Every Senator in the 104th Congress voted for the Kassebaum-Kennedy legislation--not a single vote against it on passage or on the conference bill. And every Senator went back to his or her State to take credit for the good work that they had done to hail the promise of accessible and portable health insurance. But now we have this proposal to effectively break the promise by denying the enforcement agency, in this instance HCFA, the staff and the resources they need to make that promise a reality. So let us be very clear. This really isn't about the budget. This is not about wasteful spending or an ever-expanding government. The HCFA request is fully paid for by a transfer from another HCFA budget, and it is a justified, targeted response to the situation before us, which has been outlined in the GAO report. Yesterday, questions were raised about whether this request affected more than the five States that have yet to act and whether the request affected HCFA's ability to enforce the legislation that created the mental health parity and the banned so-called drive-by deliveries. But HCFA Administrator Nancy-Ann Min DeParle answered these questions following our debate yesterday in a letter she sent to clarify the situation. She writes that this money is needed to implement not only Kassebaum-Kennedy, but also the mental health and drive-by delivery bills. The fact is that there are many gaps beyond just the five State references that were included in the GAO report. I have, Mr. President, in my hand, the National Association of Insurance Commissioners' report as of December 3, 1997, that indicates that 30 states have yet to enact the legislation to implement the law on the mental health parity. Thirty States have not implemented those particular protections on mental health. We had a strong vote here on the Domenici-Wellstone amendment. And we now see that there are effectively 30 States that have not implemented the mental health parity law. If HCFA is not given the resources to enforce it in those states that fail to act, then the persons with severe mental illness who live in those states will not benefit from the parity provisions we voted to give them. The Senator from Oklahoma continues to insist that this is a short- term problem and that the only real problem that we are faced with in implementing HIPAA is just in five States. And this, as I mentioned, is wrong. The duration of the problem is not yet known. We have already mentioned that 30 states require federal enforcement for mental health parity. We know on the drive-by delivery issue, which we also passed in a bipartisan way in 1996, was to be implemented with the same kind of enforcement mechanisms--and there are eight States, according to the National Association of Insurance Commissioners--that have not enacted legislation to conform with or implement the federal bill to ban drive- by deliveries. The request in the bill under consideration today will be used to make sure that women in these eight States are going to have the similar kind of protections as the women in 42 other States. It will be used to ensure that the mental health parity provisions are enforced in the 30 states that have not yet come into compliance. And there are many others. Oklahoma is one of 11 states that have not passed laws to guarantee renewability in the individual market, thereby needing federal enforcement of this key HIPAA provision. These are all in addition to the five States that have been referenced by the Senator from Oklahoma. And there are more. There are very, very important needs, Mr. President. Now, the supplemental request will simply allow HCFA to move forward with what Congress asked of them. Some of my colleagues have suggested that HCFA should have asked for this increase last year. But we all know that if they had asked last year, they would have been told that it was premature and to wait for State action. Some have suggested that they wait for the regular budget for next year, but such a delay is unnecessary and an insult to the American public. Each year, HCFA staffing levels are revisited during the appropriations process. If Congress finds in the future that the States are fully compliant and HCFA no longer needs to fulfill this function, I am confident that the Appropriations Committee will adjust accordingly. They do so. HCFA's duties have significantly increased in the past two years. Among other things, they have chief responsibility for providing guidance to states to implement the new Children's Health Insurance Program, for cracking down on fraud and abuse, and for implementing of the various and important changes in Medicare and Medicaid resulting from the Balanced Budget Act. All of those are being implemented virtually at the same time as the Kassebaum-Kennedy bill--including the provisions on mental health and maternity protections--is being implemented. And the proposal that came to the floor of the Senate did not increase the budget but reallocated resources within the agency. They aren't asking for more money, just a transfer to allow them to hire people to do the jobs we asked of them. And the Nickles amendment seeks to gut these efforts by striking this proposal. Mr. President, it is unconscionable to deny the American public the rights we voted to give them almost 2 years ago. They have waited long enough. The Kassebaum-Kennedy bill bans some of the worst abuses by health insurers, abuses that affect millions of people a year. Prior to its enactment, more than half of all insurance policies imposed unlimited exclusions for preexisting conditions. Prior to its enactment, insurance companies could refuse to insure--redline--entire small businesses because one employee was in poor health. Prior to its enactment, 25 percent of American workers were afraid to change jobs and to start new businesses for fear of losing health insurance coverage. Prior to its enactment, people could be dropped from coverage if they had the misfortune to become sick, even if they had faithfully paid their premiums for years. The General Accounting Office stated that as many as 25 million people would benefit from these protections. These are the protections that are in the Kassebaum-Kennedy legislation. All we are saying is, let's make sure, now that we have passed them and told families that they will have those protections, let's make sure that we are making good on that promise. We have the personnel to be able to do that, and it has been included in this legislation. Reference is made: Why don't they shift around personnel? They have a lot of people in that agency; certainly they could shift around personnel. The fact is, in this particular area, as I mentioned, are specialists in a particular area in the insurance industry. This is not something that HCFA has a background and experience in. These are protections because of many of the abuses. Therefore, they need certain types of personnel and individuals that have some very specialized skills in this area to be able to do the job. That is what is being called for. That is the case that is being made. If they do not have it, what we will find is, people will be left confused, things will be uncertain, people who thought they had various rights will not have those rights guaranteed. Patchwork enforcement and concerted efforts by unscrupulous insurers to violate the law raised serious concerns during the earlier implementation period. While the provisions affecting the group market appear to be going well--that is about 80 percent of the legislation which is going well--the GAO has identified many concerns in the individual market provisions. Our legislation specifically deferred to the States in recognition of their longstanding and experienced role as regulators of health insurance. We gave States more than a year to design their own legislation based on the Federal law. Federal regulation was only a backup if States failed to act. Most States have passed implementing or conforming legislation. There are significant gaps. In every State that has failed to act in whole or in part, the responsibility for assuring compliance, responding to complaints, and informing the public has fallen on the Health Care Financing Administration. HCFA is just over 20 people working on this issue in its headquarters, and a handful more spread across the regions. Most State insurance departments have hundreds of people. California, for example, has more than 1,000 people on staff to handle these issues; HCFA has 1 person in San Francisco. GAO explicitly and repeatedly expressed concerns that HCFA's current resources are inadequate to effectively enforce the bill. The NAIC-- which is the National Association of Insurance Commissioners, the commissioners in each of the 50 States; this is their national organization--in testimony before the Ways and Means Committee last fall said, ``The Federal Government has new and significant responsibilities to protect consumers in these States. Fulfilling these responsibilities requires significant Federal resources.'' The legislation that passed over 20 months ago was being implemented in January of this year, but the States were taking the steps in the previous 18 months to comply with the legislation, with it being implemented in January of this year. In February, we had the GAO report that pointed out the failure of some of the States to take the steps to provide the protections and said additional kinds of resources were going to be necessary. This is really a response to that particular reality. The GAO found that many companies were engaging in price gouging, with premiums being charged to consumers exercising their rights to buy individual policies when they lost their job-based coverage as much as 600 percent above standard rates. They found other carriers continue to illegally impose preexisting condition exclusions. We cannot deal with that; nor do we intend to. That ought to be an issue for another time. It ought to be addressed in terms of that kind of abuse. We are not talking about that issue. But we are talking about the implementation of these other protections, to make sure, for example, if you are moving from a group to individual, that there is going to be available insurance in those States that are going to cover the individuals that have preexisting conditions, and also what they call renewability, to make sure that those individuals are going to be able to be renewed if they pay under the terms of their premiums--that it takes that kind of an action to ensure coverage or otherwise people are going to be outside of the coverage. That is an area where a number of States have not taken action. Some companies or agents illegally fail to disclose to consumers they have a right to buy a policy. Others have refused to pay commissions to agents who refer eligible individuals. Others tell agents not to refer any eligibles for coverage. Some carriers put all the eligibles with health problems in a single insurance product, driving up the rates to unaffordable levels, while selling regular policies to healthy eligibles. The Senate should not be voting for a free ride for failure to comply with these protections which most States have complied with. It should not be an accomplice to denying families the kind of protections for preexisting conditions that they were promised by unanimous votes just 2 years ago. The need for the additional staff goes beyond enforcement. The GAO found wide gaps in consumer knowledge, gaps that prevented consumers from exercising their rights under the laws. HHS wants to launch a vigorous effort to address this problem, but according to the GAO, because of the resource constraints, the agency is unable to put much effort into consumer education. Now, the point that has been raised by the Senator from Oklahoma that this is not an emergency situation--for millions of Americans, the failure to enforce the legislation is an emergency. Every family who is illegally denied health insurance faces an emergency. Every child that goes without timely medical care because this bill is not enforced faces an emergency, and every family that is bankrupted by medical costs because this bill is not enforced faces an emergency. This may not be an emergency for abusive insurance companies, but it is an emergency for families all over this country. For some, it is a matter of life and death. But don't take my word for it. Since our debate yesterday, more than 20 organizations have sent letters, which are at the desk, urging that we defeat the Nickles amendment. Leading organizations representing persons with disabilities, the mental health communities, women with breast cancer, and consumers generally have written asking opposition to this unwarranted attack on the law. More are coming. The Senate should reject this amendment. We need to toughen the Kassebaum bill, not weaken its enforcement. This is a test as to whether the Senate wants to really ensure that those provisions in the bill that will guarantee the protection on the preexisting condition will actually be protected. I yield the floor.

Mr. KENNEDY. Mr. President, I have seen many smokescreens on the Senate floor before. But I just heard one of the largest smokescreens ever from those who just tried to cut Medicare by some $270 billion in order to give tax breaks to the wealthiest individuals and corporations. We defended that position here on the floor of the U.S. Senate not long ago. Now what we are talking about at this time is an administrative cost. This isn't going to affect one single dollar in terms of benefits or in terms of health care costs for senior citizens. So before we all cry crocodile tears at the suggestions of my good friend from Texas, maybe he would spend an equal amount of time discussing his justification for his proposal to seek major cuts in the Medicare program to fund tax breaks for wealthy individuals. That may be suitable for another time. I do not suggest that the Republicans who are Members of the Appropriations Committee that supported and reported out the provision that is in the current bill are Republicans that have a distaste for Medicare or want to ignore our nation's senior citizens. This proposal was reported out of the Republican Appropriations Committee. That is how it got here on the floor. And you have not heard the Senator from Massachusetts charging that they have hurt the Medicare system. Mr. President, fortunately, our good colleagues in the Senate know the facts on this situation. Basically, what you are talking about is transferring $16 million in administrative costs to enforce a law to protect millions of American citizens. We are talking about women with breast cancer or others with preexisting conditions who are turned down for insurance every single day; we are talking about children with disabilities who are locked out of the private health insurance system; we are talking about small businesses who are refused health insurance because one employee is in poor health. And many others. Without enforcement, the stick to ensure compliance by the insurance companies, these protections are simply not there. They are not there. We have a GAO report that says HCFA needs help, and we have the insurance commissioners of the States that say HCFA needs the help-- Republicans and Democrats alike--as do the various organizations that speak for the elderly, and the disabled, and the mentally ill, and the cancer patients, and the consumers. Are they all wrong? Are all 30 of these organizations all wrong? They don't want to throw out the Medicare system, as the Senator from Texas says. Of course, not. They understand what this is all about. These are organizations that have been fighting for Medicare since they were formed. They have unimpeachable credentials in terms of protecting Medicare. So, Mr. President, we are back to where we were in this debate and discussion. These funds are needed. HCFA asked in their request of the Appropriations Committee, which was approved, and later in the letter that they sent up to the Congress, to me following my inquiry after yesterday's debate, reiterating the request and clarifying that the requested funds were also needed to enforce the mental health parity and drive-by delivery provisions. And this $6 million of appropriated funds that otherwise would be used administratively is going to be used to ensure that the promises made in the Kassebaum-Kennedy bill and in the Mothers Health Protection Act and the Mental Health Parity Act are not merely illusory. The Senator from Oklahoma says that states have not complied because the regulations came out in December. The irony is not lost on me-- blame HCFA for not issuing regulations and then deny them the necessary resources to fulfill their responsibilities. But states have had more than a year to comply with this relatively straightforward law. They didn't need to wait for regulations to act. And many of the States did act prior to the regulations. Nonetheless, 30 States did not. This request is needed to prevent the kind of discrimination that is being committed against millions of Americans that have preexisting conditions. It is needed to ensure that mothers that live in the eight States that still allow drive-by deliveries, and that those who are afflicted with mental health problems have the same level of protection as those in their neighboring states. Mr. President, this is really what this debate is all about. We have had a GAO report that made recommendations that we take this action. The States have been, over the period of the last 18 months, getting themselves effectively in shape for the implementation of this legislation, which started in January. But the GAO report said there are a number of very important areas that need attention if this bill is really going to do what the Congress has said is going to be done. We are responding to that particular need, and that is what the committee responded to, Republicans and Democrats alike. The idea of suggesting that the members of the Appropriations Committee that reported this out are somehow less interested in the protection of Medicare is preposterous. It is preposterous on its face and the Senator knows that. I am prepared to take some parliamentary action, but I see others here on the floor who want to address this, so therefore I withhold.

Mr. KENNEDY. Mr. President, we will have a good opportunity to debate. I am glad to hear my friend from Texas indicate his support for effective tobacco legislation. We will have, hopefully, a good opportunity to debate that. I was listening to the Senator speak so eloquently. I was remembering that in checking my facts, the Republican Contract With America provided a $270 billion cut in Medicare, with a $250 billion tax break for the wealthiest individuals. So we have debated this at other times, if we want to discuss who truly cares about Medicare. That is not what we are about here today. We have explained what the issue is before us. Mr. President, I want to mention the various groups and organizations that strongly oppose the Nickles amendment. The National Breast Cancer Coalition urges support of funding to implement the Kassebaum-Kennedy law and is opposed to the Nickles proposal; the National Alliance for the Mentally Ill also opposes the Nickles proposal; they are joined by Consortium for Citizens With Disabilities, a group that includes The ARC, the National Association for Protection and Advocacy, Easter Seals, the Paralyzed Veterans of America--and a long list of additional organizations. I will have that printed in the Record. The Disability Rights Education and Defense Fund opposes the Nickles amendment; Families USA Foundation, the voice for health care for consumers; the Consumers Union; the National Mental Health Association; the American Psychological Association; the American Psychiatric Association; and the American Managed Behavioral Healthcare Association. They are very powerful statements about the importance of assuring that the Kassebaum-Kennedy protections are going to be implemented, and they understand that the reallocation of these funds to do so is the way to go. I ask unanimous consent that all these letters be printed in the Record.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I rise today to express my concern about the continuing efforts of some in Congress to undermine the rights of the first Americans--the American Indian and Alaska Native people of our country, their tribal governments, and their unique and historic government-to-government relationship with the United States. In America today, there are 557 federally recognized tribes. In hundreds of treaties signed by the President and ratified by the Senate over the years, Indian tribes have traded vast amounts of land for the right to live on their reservations and govern themselves. An honorable country keeps its promises, even those made many years ago. We must reaffirm our commitment to self-determination for tribal governments. In the first session of this Congress, numerous proposals were introduced to limit the sovereign rights of tribal governments. One of the most objectionable of the proposals would have required tribal governments to waive all sovereign immunity against suit as a condition of receiving federal funds. It would have authorized suits against tribal governments to be heard in federal courts rather than tribal courts. Other legislation similar in scope contains extremely broad waivers of tribal sovereign immunity, and would subject tribal governments to virtually any type of suit in both federal and state courts. Any such measure would make it nearly impossible for tribal governments to carry out basic governmental functions and would jeopardize the resources and the future of tribal governments. Indian nations are forms of government recognized in the U.S. Constitution and hundreds of treaties, court decisions and federal laws. Tribal governments are analogous to state and local governments. They carry out basic governmental functions such as law enforcement and education on Indian lands throughout the country. Tribal governments are modern, democratic, fair and as deserving of respect by Congress just as Congress respects state and local governments. Sovereign immunity is not an anachronism It is alive and well as legal doctrine that protects the essential functions of government from unreasonable litigation and damage claims. Like other forms of government, tribal governments are not perfect, but any changes should be based on a careful study of current needs and circumstances, and be guided by the fundamental principle that it is the federal government's role to protect tribal self-government. In addition to challenges to their sovereign immunity, tribal governments also face constant attempts to undermine their ability to take land into trust, to impose taxes upon their revenues, and to impose ``means testing'' on their federal funding. As the Senate deals with these issues, I urge the Senate to act responsibly. Broad generalizations and one-size-fits-all solutions may seem tempting, but they will have disastrous effects when applied to the diversity of Indian Nations in this country. A realistic review of the variety of circumstances and specific issues is far more likely to lead to workable solutions. Many of the issues that are being raised today involve matters of purely local concern that can be resolved at the local level by the tribes and states. The role of the federal government in these cases should be to encourage local cooperation, rather than to create new legislation with broad, unintended consequences. Above all, any solutions by Congress should be guided by the principle that it is the federal government's role to protect tribal self-government. Tribal self-government serves the same purpose today that it has always served. It enables Indian tribes to protect their cultures and identities and provide for the needs of their people. By doing so, tribal self-government enriches American life and provides economic opportunities where few would otherwise exist. A common misperception is the belief that most tribes are growing wealthy from gaming proceeds. Nothing is further from the truth. Indian reservations have a 31% poverty rate--the highest poverty rate in America. Indian unemployment is six times the national average. Indian health, education and income are the worst in the country. Only a very small number of tribes have been fortunate enough to have successful gaming operations. Instead of undermining them, Congress should be doing more to help tribes create jobs, raise incomes, and develop capital for new businesses. We should also be doing more to invest in the health, the education and the skills of American Indians and Alaska Natives, as we do for all Americans, and I look forward to working with my colleagues in the Senate and House to do so.

Mr. KENNEDY

Mr. KENNEDY. I object.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I am informed by the Parliamentarian that the correct request would have been, since the Nickles amendment is to strike, that my amendment to that would be in the first-degree rather than the second-degree, and I make that request.

Mr. KENNEDY. It would be a second-degree.

Mr. KENNEDY. As I understand, that will be a Kennedy amendment to the Nickles amendment, relating to the Nickles amendment.

Mr. KENNEDY. I would like to, if I could, include a slot for an amendment that will be related to the Nickles amendment if it is necessary to call that up.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I will just take a few moments of time to revisit the proposal of the Senator from Oklahoma, Senator Nickles, to strike the funding that would be available under this legislation to implement the Kassebaum-Kennedy bill. According to GAO that legislation benefited some 25 million Americans who change or lose their job every year and could face preexisting condition exclusions or denial of coverage. That legislation passed 100-0 in the Senate; the conference report passed 98 to 0. We know there are gaps in terms of the implementation for providing these critical protections to those in the disability community and really for any American who has a condition that could make it difficult for them to get or keep insurance. HCFA asked the Appropriations Committee to reallocate resources to give them the ability to hire the necessary skilled staff, primarily with expertise in the insurance business, who would be able to assist them to carry forward these protections for the disabled community, the mental health community, and for all Americans. That is very, very important, Mr. President. We had some debate and discussion about this earlier today. At this time, I want to read into the Record a very fine letter from Nancy-Ann Min DeParle, who is the head of HCFA. She writes: Dear Senator Kennedy: I am writing to request your assistance in securing funding for HCFA to implement the insurance reform provisions of HIPAA. The $6 billion and 65 FTEs that we have requested for this purpose will allow us to implement the HIPAA provisions as well as those enacted subsequently in the Newborns' and Mothers' Health Protection Act and the Mental Health Parity Act in those states that have not fully implemented HIPAA. As you know, currently, 5 states are not implementing HIPAA. HCFA is requesting these resources to guarantee these protections to the 54 million people--or one in five Americans--that live in these five states where under HIPAA, HCFA is the backup federal enforcement agency. Moreover, we understand that as many as 30 states may not have standards that comply with the Mental Health Parity Act and as many as 10 states may not have standards that comply with the Newborns' and Mothers' Health Protection Act. We don't have precise numbers because states are not required to notify HCFA about their intentions to implement these two laws. In addition, we believe that many states may not have implemented other parts of HIPAA. For example, some states have not implemented guaranteed availability in the group market or certificates of creditable coverage. Moreover, HCFA also has enforcement authority over non-Federal governmental plans. Mr. President, I ask unanimous consent to have printed in the Record this letter from Nancy-Ann Min DeParle, Administrator of HCFA.

Mr. KENNEDY. Mr. President, I will also have printed in the Record the various letters that support our position in opposition to the Nickles amendment: Families USA hopes that the Nickles amendment will be defeated; The Consortium for Citizens with Disabilities, more than 20 different organizations that have been in the vanguard of protecting and advancing the cause of those disabled Americans. They are in strong opposition to the Nickles amendment; The National Alliance for the Mentally Ill is in strong opposition to the Nickles amendment. These are only some of the organizations, but they represent the leading organizations that have over the past years been the most involved and active in protecting the rights of the disabled and of consumers--all in opposition to the Nickles amendment. We are not talking about adding more money. We are talking about reprogramming existing money. I ask unanimous consent that those letters be printed in the Record.

Mr. KENNEDY. Mr. President, this is the exact quote: Moreover, in enacting HIPAA, Congress may not have anticipated that certain States would choose not to implement and enforce its provisions and would instead place that responsibility in the hands of the federal government. This is now the situation in Missouri, Rhode Island and California. The Federal Government has new and significant responsibilities to protect consumers in these States. Fulfilling these responsibilities will require significant Federal resources. This is not HCFA, this is not the Senator from Massachusetts. These are the commissioners of the States that have indicated that HCFA would need additional funding to make sure that the Kassebaum-Kennedy legislation to protect portability for those individuals who have preexisting conditions would be implemented. Wisely, the chairman of our committee asked the GAO to do a report on how this program was going. The GAO report made the recommendations which the Appropriations Committee has followed in terms of the allocation of resources. It is only $16 million, Mr. President--and the most important aspect of that provision is the $6 million which HCFA has related to the enforcement provisions. The others, I think, are desirable to make the program of Administration proceed more efficiently, effectively. We are going to be faced tomorrow, or at least sometime, with the amendment of the Senator from Oklahoma to effectively wipe out that Federal enforcement. Mr. President, I think that is unacceptable. That is unacceptable. I have in my hand--and I will get into this more tomorrow--but the National Association of Insurance Commissioners, as of December 3, 1997, indicated that 30 States have failed to implement the mental health provisions. Thirty States as of December have failed to implement the mental health protections. We were arguing out here, debating whether they had, and Senator Nickles said, ``Oh, they have implemented.'' We have the GAO report and through the afternoon we have been able to come up with this information, Mr. President. What about the maternity provisions? Remember we had the drive-by deliveries just a few years ago where expectant mothers were in the hospital for 24 hours and then out the door they went and the tragedies that ensued. We took action in order to protect those mothers. Through the legislative process, that became a part of the HIPAA program. We find out that, with regard to the States that have not enacted the provisions in terms of protecting mothers, eight States have not provided those protections--eight States. Eight States have not done that. We were all around here at the time, Republicans and Democrats alike, commending ourselves about how we enforced that and protected the mothers, and we have this. The list goes on. We will have more of a chance to go into this in greater detail on the morrow. But I hope that our colleagues will at least take the time to review the excellent letters that have been sent to them this afternoon that indicate strong opposition to the Nickles amendment by the leaders in the mental health community, in the disability community, as well as in other groups that are most affected. We will have others to refer to tomorrow, Mr. President. I hope that we will, if we are serious about this issue--and I believe that we are--at least give the opportunity for the enforcement of these rights and protecting these families from the kinds of discrimination which has taken place. I will go through tomorrow again briefly some of these stories, real life stories with real life families that had some tragic experiences that motivated us into making this change with Senator Kassebaum. I will go through those tomorrow, Mr. President. We were trying to remedy the kinds of harsh experiences that took place and devastatingly wiped out different families. I will have an opportunity to go through them in some detail on tomorrow. So, Mr. President, we are looking forward to the continued debate on this issue. This is a very, very important matter. We are not going to take it lightly. We are all in favor of moving this legislation forward and having a final conclusion, but not with this unacceptable amendment that would break the promise we have made to millions of American families. I thank the Chair and yield the floor. Mr. ENZI addressed the Chair.

Mr. KENNEDY. I ask unanimous consent for 5 more minutes.

Mr. KENNEDY. Mr. President, I will also mention a direct quote from the testimony of the National Association of Insurance Commissioners. They are the State commissioners. They appeared before the Ways and Means Committee last September. When they were talking about enacting HIPAA----

Mr. KENNEDY

Mr. KENNEDY. Will the Senator withhold so I may speak briefly?

Mr. KENNEDY

Mr. KENNEDY. Mr. President, it is an honor to join Senator Jeffords and Senator Harkin in introducing the Work Incentives Improvement Act to provide more affordable and accessible health care for persons with disabilities so they can work and live independently. Despite the extraordinary growth and prosperity the country is enjoying today, persons with disabilities continue to struggle to live independently and become fully contributing members of their communities. We know that of the 54 million disabled people in this country, may have the capacity to work and become productive citizens, but they are unable to do so because of the unnecessary barriers they face. We have made progress through a special education system committed to excellence in learning, and through a rehabilitation system designed to promote independent living skills. Too often, however, the goals of independence are still out of reach. Too often, disabled people are afraid that if they take jobs they will lose the medical coverage that makes such a large difference in their lives. Too often, disabled people are afraid of losing their current cash benefits if the salary they earn at work is too large. We need to do more so that the benefits of our prosperous economy are truly available to all Americans, including our fellow citizens with disabilities. We need to ensure that all disabled children and adults have access to the benefits and supports they need to achieve their full potential as American citizens. Our long term goal is to restructure and improve existing disability programs so that they do more to encourage and support a disabled person's dream to work and live independently. That goal should be the birthright of all Americans--and when we say all, we mean all. This bipartisan work incentive legislation will help us to remove the unfair barriers facing persons with disabilities who want to work. It will make health insurance coverage more widely available, through opportunities to buy-in to Medicare and Medicaid at an affordable rate. Social Security will be able to fund demonstration projects that gradually phase out the loss of cash benefits, instead of the arbitrary sudden cutoff that so many disabled workers face today. Our goal is to create fair and realistic new assistance that offers greater support for disabled persons who want to work, live independently, and be productive and contributing members of their community. This bill is the right thing to do, and it is the cost effective thing to do. For too long, our fellow disabled citizens have been left out and left behind. I commend Senator Jeffords and Senator Harkin for their impressive leadership on this issue. We look forward to working with all members of Congress to help give disabled persons across the country a better opportunity to fulfill their dreams and fully participate in the social and economic mainstream of our nation.