Ted Kennedy

Mr. KENNEDY

Mr. KENNEDY. Mr. President, the Senator is absolutely correct about the hearing. We had the hearing, and we heard testimony from the General Accounting Office. I tried to get the transcript, which has not been printed up, because I think any fair presentation on the basis of the review of the transcript would support our position very clearly. Our position is that States were invited to pass the legislation that was going to conform with the various provisions of the legislation, and some 45 States have. Some States have not, and some States even at this time have indicated that they are not going to conform with the mental health various provisions. But even with the States that have filed legislation, a number of those States are out of compliance. That is illustrated in the GAO report. In the GAO report, as well as in the testimony of the individual who made that report--I think his name was Bill Scanlon--there was an excellent presentation, basically outlining the concerns that I have expressed here. I believe that my representation, having attended that hearing, is a fair summary of what his position is. Nonetheless, what we have, Mr. President--the bottom line is that as a result of careful oversight, we have a report on a bill that was just passed recently, some 20 months ago, going into effect in January of last year, reviewed by the General Accounting Office, some important abuses that have been outlined, and the effort by the Appropriations Committee--correctly I think--to try to address those abuses. And now we have an amendment that will effectively make it much more difficult to protect those individuals that have disabilities. I have been around here long enough to know the problems that we have been facing in order to strike down the barriers of discrimination on the basis of disability. We have had a difficult time, and it is interesting that we have only in recent years passed the Americans With Disabilities Act. It took a long time. This country has been reluctant to bring those that have been facing physical and mental challenges into the bright sunshine of fair treatment. So it doesn't surprise me that we are out here on the floor of the U.S. Senate battling for those who have disabilities and preexisting conditions once again. It doesn't surprise me all that much. But that is what we are doing. You make a step forward and you have a step that goes back. We have been around here long enough and we have seen that, unless you are going to provide a remedy, a right that you provide is not an awful lot. We passed the 1968 Fair Housing Act to try to eliminate discrimination on the basis of race in housing. It didn't mean a darn thing. A remedy wasn't out there. We passed the 1987 Fair Housing Act that had remedies in it and enforcement provisions in it. Now we need to have enforcement protections in here for those who have disabilities. It isn't costing the taxpayer an additional dollar. We are basing it not on just our own kind of assessment, but on an independent study by the General Accounting Office on a supplemental. Now, I know the good Senator, my friend from Alaska, wants to get on with this issue. We are not the ones who raised this issue. This was just a small housekeeping provision about setting some different priorities in HCFA, setting some different priorities. But it is more than a housekeeping provision to those families that are going to be affected. We are not going silently into the night on it. We don't want to be labeled as holding up the supplemental on this issue because we are contesting something that isn't going to cost the taxpayer another dollar, on which the Appropriations Committee itself made a decision and a judgment that it ought to go ahead. This is about protecting families that have disabilities--mental disabilities, physical disabilities, and preexisting conditions. We are standing here to protect those individuals, and we have the GAO report that says we should. So, Mr. President, this is a very important kind of question that we are faced with here. I think it takes some time. Some came in last evening when it was offered. We have only had a brief time to sort of talk about this issue, but there is more that ought to be said about it.

Mr. KENNEDY. Yes, I yield. And I intend to yield the floor in a few moments. I intend to answer the question now.

Mr. KENNEDY. The Senator is entitled to ask a question. He was asking whether the suggestion that because 45 States passed laws, does that mean that all 45 States are in conformity, which is a reasonable question since that has been the statement made on the floor. The answer to his question is that it is not a fair indication of the amount of implementation of this particular program, according to the GAO, because even though those States have passed laws, within those laws they fail to conform with a number of the other provisions in here. I have indicated those particular provisions. They are primarily targeted on the group-to-individual. As I pointed out, the record on this legislation with regard to group-to-group in the States has been good. As it should also be for group-to-individual policies. It was supposed to give the States the first crack. There were some general criteria established for moving ahead on that. That criteria has been spelled out. We can take some time to go through that criteria. But it has been spelled out in those areas. I have outlined some of those, and I will come back to those at a later time.

Mr. KENNEDY. If I can answer the question----

Mr. KENNEDY. Well, the Senator is absolutely correct. We are on notice now. The decision was made--and I give great credit to Senator Kassebaum--that we were going to have State implementation of this. There were many of us on this side that believed that there would be danger, in terms of the escalation of insurance premiums, if we did not at least set some kind of parameters for the increase. We had testimony based on different models to indicate what the framework for that kind of an increase was. It was a decision that was made that we would defer and then have an examination of what the States would do. So we have now had a preliminary finding. In a few States, we have seen this dramatic escalation, a 600 percent increase in the premiums. But in many States, we find out all of these other kinds of enforcement problems, where we have had agents for various insurance companies that are being penalized if they include in their various programs children with disabilities or those individuals with some preexisting condition. They are penalized. Or, if individuals call up, they are given misinformation or disinformation about what their rights are. We have all of that illustrated in this GAO report. We have had it illustrated out there. Now, what the Appropriations Committee said is, OK, if we have this problem, we have read through this, we have a way of trying to make important progress in alleviating the anxiety of these families that are facing the most extraordinary kinds of pain and suffering that one can imagine when they have disabled children in these circumstances. I know that because the Senator from Rhode Island has a superb bill on the issues of pediatric patients' rights, the whole issue on children. The Senator has been a real leader here. I think he knows this issue well. Now we have a way of trying to address this issue and we have our colleagues--we are talking about the emergency supplemental, which is dealing with these major issues that comes up with an amendment to strike this $16 million. Now, as the Senator from New Mexico pointed out, $6 million is the most important of that $16 million because that will be for the actual implementation of the enforcement. The others, I think, are important, too. I think a case, perhaps, can be made if we are following a very strict interpretation--and that is another issue-- a strict interpretation about whether we could not defer that, but certainly not with regard to the protection of those families.

Mr. KENNEDY. Yes, I would be happy to.

Mr. KENNEDY. I see other friends and colleagues who want to speak on this issue. I want to review just for a minute or two the provisions of the legislation. First of all, the GAO report came out January 25 and the request for the additional funds was made last Thursday. This was all done within a relatively short period of time. I am quite amazed they were able to get their act together to be able to make the assessment and to be able to review the various materials of the Appropriations Committee. The Appropriations Committee responded in finding offsets so we weren't going to increase the expenditures. These are basically offsets. Mr. President, this legislation was put in the form of a request to the States to conform. If the HCFA had been up here last year, the voices out here would say, ``Well we haven't seen what the States are going to do. We believe the States will conform. We have to wait to see what has actually happened with the States before we know whether there is going to be conformity with this provision or not.'' At the excellent request of our chairman of our Human Resources Committee, 2 months into the bill we get a report that says there are these kinds of problems and they need these kinds of solutions. Then we had the corresponding action to try to have the personnel to deal with this. That is really the history of this. I know the Senator from New Mexico has spent an enormous amount of time on the whole issues of mental health because he knows that issue is of particular importance. Although it was not illustrated in the central findings of the GAO, the Senator would know, based upon past experience, that it is always the lost child in any kind of discussion of health insurance policies. There will always be more complexities and difficulties dealing with that. That is just the history. The Senator knows this better than I, as well as the Senator from Minnesota. So if they are having these kinds of implementation problems now with the existing kind of statute, I think it is not unreasonable to think that we are going to have those kinds of problems on the issues of mental health. I am just mindful, Mr. President, and my friend from Oklahoma-- Oklahoma has hired five more people in their insurance department in order to help implement this in its State. We are talking about a handful of people nationwide, at no additional cost, dealing with disability, our most vulnerable citizens. We are on notice. These are our most vulnerable citizens, those that have preexisting conditions and those that have disabilities, most of them children. We are going to be put on notice by the GAO, and through a nonadditional-dollar cost to the taxpayer, saying, no, we are not going to permit the agency that has the prime responsibility for enforcement to have the adequate personnel. That may carry the day here on the floor of the U.S. Senate, but I just hope that our colleagues who support that position--as I mentioned before, these parents are going to be calling all of our offices, and they are going to be calling the agency asking questions about what to do about their children.

Mr. KENNEDY. Mr. President, I think it is worthwhile to get back to the real situation with regard to the implementation of this legislation. With all respect, my good friend from Oklahoma has failed to describe accurately the kind of crisis that is affecting so many families in this country and then differ with what the conclusions would be in terms of his amendment on that particular crisis. No. 1, there is an emergency. It is an emergency for individual families. The Kassebaum-Kennedy bill addressed the group-to-group issues, where you have large groups moving into other groups in terms of the State, where about 80 percent of those have insurance and have some preexisting condition. But it has significant problems with regard to groups going to individual policies in the State. That is basically what we are talking about. Let's get serious about understanding what the issue is and the kind of pain and anxiety that is taking place. Every Member of this body ought to understand and get ready, that if the Nickles amendment goes through, you had better put on three or four more people in your office to answer the phones, because that is what is going to happen, from individuals all across this country who are going to be facing many of these kinds of problems, such as gouging by some of the unscrupulous insurance companies that have raised the premiums to gouge American families some 600 percent. We are not addressing that particular issue today, although the administration has a proposal and I have a proposal. We didn't believe that was going to be a problem under the Kassebaum-Kennedy bill. We said let the States do this, and the majority of the States have done it and have done it well with regard to the issues of pricing, but not all of them have. We ought to try and address that. We will do that but at a different time. What we are talking, Mr. President, with all due respect to my colleague, is many States, not just five. There are five States that have not passed State laws to address this issue, but there are many, many other States that have passed laws that are still out of compliance. The Senator does not recognize that. Just read in the GAO report, which I will. Let's think about what we have asked. I am not here to try to defend HCFA, although I will on this particular occasion. We have put a very heavy burden on HCFA. We put a heavy burden on HCFA to try to implement the changes in the Medicaid Program to provide the savings in the budget last year. We have put a heavy burden on HCFA to try to deal with the fraud and abuse issues with new rules and regulations as a result of the excellent hearings that were held by Senator Harkin, and that has broad bipartisan support. We put the burden on HHS and HCFA to implement the legislation dealing with children's health insurance last year--that is taking place all across the country--to work with States. I have attended those conferences. There are HCFA people there trying to work with the States to implement the program we passed last year. That is State implementation, and HCFA is working with those States--just to mention a few of the additional burdens we have put on them. We have put on them the drive-by deliveries to make sure the States are going to comply with the legislation that was initiated by Senator Bradley and others, a bipartisan effort, to make sure we are not going to have drive-by deliveries. Also, to implement the provisions of mental health that Senator Domenici and Senator Wellstone added to it, to make sure that the States--and many States have not--are going to be able to include the mental health programs that are being included in the existing programs. We had a serious debate on that. We made very, very important progress. We had bipartisan support. Mr. President, it is true this bill went into effect last January, but I think it was the height of responsibility that the chairman of our Human Resources Committee, Senator Jeffords, asked the GAO to do a review of the implementation of the bill to find out where the bugs were so we could try to address them before it deteriorated and became more serious. That is an important, responsible oversight function. And we got the report back on the result of the legislation, being implemented now for 2 months, but we have the warning signs out there. We have the recommendations, and we have a proposal that doesn't increase the burden on the American taxpayer. It is a transfer of funds, not an additional burden. It is a recognition by the agency that we need to get additional personnel who have a high degree of expertise and an understanding of the insurance problems. This is the first time HCFA has had to face the various issues on insurance. They have to go out and hire people. It isn't somebody you are bringing up to run the garage down at HCFA, it isn't that you can just hire and fire people at will. These are very specialized and important functions, and you need a considerable degree of skill and experience in order to make sure that they are going to be done right and well to protect the people. That is what we are talking about in this circumstance. There is no additional burden or weight in terms of expenditures for the taxpayers, but just the recognition within HCFA that this is a priority and we need these quality people to be able to do it. That is where we are at, Mr. President. Let me respond to the Senator from Oklahoma on this issue. And make no mistake about it, all of us have been around this place long enough to know that if you don't have the people in these various agencies, the phones just continue to ring. And the people who will be ringing are the people who have these preexisting conditions and disabilities--make no mistake about it. They are already stretched out, as far as the mind and eye can possibly see, and they will not be able to get any kind of responses. We have in this GAO report the recognition that if you have more than a 63-day gap in your coverage, you do not have an entitlement to get the insurance at the State level. We have testimony in the GAO report that many companies stretch out the period beyond the 63 days in order to effectively deny people from receiving what they otherwise would be entitled to. That is in the GAO report. We want to stop that. So, if you are going to vote for the Nickles amendment, be prepared to face a mother in your State or a father in your State who says, ``I was strung out; I wasn't aware of the 63 days, and my insurance people dragged this thing out; I finally found out after 64 days that I should have gotten this proposal, and now I am denied. What am I going to do for my child?'' This does not cost the taxpayers any more. We are responding to real needs, not needs that the Senators from Massachusetts or Minnesota are saying, but the General Accounting Office is saying and HCFA is saying. It is going to make a major difference to people who have these kinds of preexisting conditions and illnesses. Look at what the General Accounting Office has said: preliminary data from an October 1997 NAIIC survey indicate that while most States have made progress in enacting statutes implementing key HIPAA provisions, many gaps remain. For example . . . in the individual market, eight States have not passed laws to implement guaranteed renewal. In the group markets, two States had not passed laws to implement small- group guarantee access, and four States had not passed laws to implement guarantee renewal and limits on preexisting condition exclusion periods in the large-group markets. In addition, these preliminary data do not include HIPAA's certificate insurance requirement, and anecdotal evidence suggests that many States have not incorporated this requirement into State statutes. There are not just the States that haven't passed the law, there are all of these kinds of problems. It is all spelled out. While States continue to pass legislation to close some of these gaps, the possibility remains that not all the provisions in all market segments will be addressed, necessitating an expansion of HHS's enforcement role. That is what the GAO understood, that is what the appropriators understood, that this has a higher priority. Here it is in the GAO report. Then it goes on in the report, saying: HHS resources will be further strained if the enforcement role it is serving in these five States becomes permanent or expands to other States. If HHS determines that other States have not passed one or more of the HIPAA provisions, as the preliminary data suggest, HHS will have to play a regulatory role in these additional States. Mr. President, Senator Kassebaum believed all the States should, and we want all the States to conform to this. But the fact of the matter is, we have the warning signs right out here in this GAO report. We have the suggestion in the emergency supplemental, and the reason that it is in there is because this is a real emergency for families that will not be able to get coverage as the law was intended and as the testimony indicated, individuals with preexisting conditions. I listened to the Senator talk about his conclusions on the GAO report. It was very interesting, but it was limited. He read part of one page but did not read the conclusion. It points out in the conclusion of the GAO report: Finally, two implementation difficulties are substantive and likely to persist unless measures are taken to address them. First, among the 13 Federal fallback States, some consumers are finding it difficult as a result of high premiums to obtain the group-to-individual guaranteed access coverage that HIPAA requires . . . Second, HHS's regulatory role could expand as the status of States' efforts to adopt and implement HIPAA provisions becomes clearer in 1998. HHS's current enforcement capabilities could be inadequate to handle the additional burden unless further resources become available. I do not know how much clearer that can be. We can say, Mr. President, ``Well, we will just let it go and see what happens.'' It is extraordinary to me--extraordinary to me--when we are putting at risk families that have, primarily, children or parents or other families who have preexisting conditions and disabilities, we are going to say on the floor of the U.S. Senate, ``We are going to put you at risk''? It might get better; sure, there are one or two people in each State that can try and work it all out. We have been put on notice. It is the height of irresponsibility to fail to respond to that notice. This is not just shuffling papers around, this is not just a question of bureaucracy, this is a question of whether we are going to provide the protection for those families. That is the issue. We know what is happening, and families now--too many of them--are being gouged by the 500-, 600-percent increase in the premiums. We had hoped the States would address those. Many States have. The majority have. We are proud of them. But we know that some have not. What if you or someone you knew lived in that State, or family lived in that State, and you found out these games were being played? These games are being played. The GAO report points out in its study that, ``Some carriers initially attempted to discourage the consumer from applying for products with guaranteed access rights. Some are charging premiums 140 to 600 percent of the standard rate.'' What kind of a chance does a family have with a child with a preexisting condition to pay 600 percent more? It is gouging. This measure is trying to say, OK, let's implement the enforcement of these programs to the extent that we can protect the public. What is the point of passing a law on burglary and then saying we are not going to have any policemen to enforce it? That is what we are doing. We all celebrate the fact that we passed this law--bipartisan--passed the law. And then to take away the enforcement of it? What sense does that make? Particularly when it isn't costing any more. Now, Mr. President, as you go through this GAO report After the Federal fallback provisions took place on July 1, 1997, many consumers complained to State insurance regulators that carriers did not disclose the fact that a product with HIPAA guaranteed access rates existed, or, when consumers specifically requested one, they were told that the carrier did not have such a product available. One State regulator we visited said that some carriers told consumers HIPAA products were not available because the State had not yet approved them. However, the regulator had notified all carriers that such products were to be issued starting July 1997, regardless of whether the State had yet approved them. Here we have examples of various agents who are completely distorting and misrepresenting what the bill was all about. All we are saying is, let us have an opportunity to work with the States to make sure that these individuals and families are going to be protected. We have in the GAO report examples where agents are not demonstrating the options to eligible individuals. They say the policies are not available. We have allegations in this GAO report that some of the major insurance companies are docking the agents' fees if they sell these policies to people with preexisting conditions. That is happening today--today. And the Senator from Oklahoma says that we do not have a problem. We will just wait another year and get another GAO report. We have this now, here. This isn't just some document that was produced for the Senator from Massachusetts or any of the rest of us who are going to oppose the Nickles amendment. They talk in here about the confusion among consumers. And with the confusion among consumers, we find out that these parents are calling Members of the Senate or calling whoever they can to find out what the information is. There is one individual out in the State. The Senator says 24 individuals ought to be able to work this. We have one individual in northern California covering about 10 million people, responding to all of these questions, all of the kinds of questions that have come up. What did HHS say when it came and testified? We have had a hearing on this very measure in our Human Resources Committee, Mr. President. And what the HHS said is that they needed these resources because they wanted to go out and help educate consumers--who are the consumers? those with the preexisting conditions--about how this law works, if they have the protection or if they have not got the protection. And that was one of the things that they wanted to do. Because as a result of the GAO review that said there is confusion out there, they wanted to address this problem. But you are not going to be able to do that if the amendment of the Senator from Oklahoma is accepted. They will not be able to reach out and educate because they will not have the resources to be able to do it. Mr. President, one of the really insidious aspects of this was the finding of the GAO report on the questions of the waiting period. They had an example. According to NAIIC, the National Association of the Independent Insurance Commissioners, some health plans have established waiting periods of up to a year during which certain conditions or procedures, such as organ transplants, are excluded from an enrollee's coverage. Requiring such waiting periods effectively excludes such preexisting conditions from coverage, and, according to regulators, it is contrary to the statutory intent to provide the portability of coverage. It is here in the GAO report. We can take--and I will take-- time to go through this in greater detail. But the idea, Mr. President, that we have just five States that have not conformed, that they are going to do it, that the bill has just been put into effect and we have no problem out there, is a complete distortion and misrepresentation of an excellent GAO report that points out what is happening out on Main Street--what is happening out on Main Street--to the families with these preexisting conditions. Those with the disabilities are facing very high hurdles. They are facing those hurdles every single day. Finally, we have some opportunity to work out in a bipartisan way a bill that got votes of 100-0 and 98-0 for some relief for 25 million Americans who have some preexisting condition or disability. The GAO report flagged for us the need for some oversight as well as some of the real problems. Although the solution will not cost the taxpayer additional money, we are being told that we do not have to be concerned about this, that there really isn't such a need out there, that all of these problems are going to be easily resolved. That flies in the face of this excellent report, and we should not--we should not--accept it, Mr. President. I yield the floor. Mr. NICKLES addressed the Chair.

Mr. KENNEDY. Mr. President, this amendment by the Senator from Oklahoma should be called ``The Abusive Insurers Protection Act.'' The Kassebaum-Kennedy legislation, which protects consumers against insurance company abuses, passed the Senate by 100-0 on April 23, 1996. The conference agreement passed it on August 2, 1996, by a vote of 98- 0. It has unanimous support--not once but twice. But now some Senators are proposing to effectively gut that legislation by denying HCFA the staff and the resources they need to enforce the bill. Let us be very clear. This is not about the budget. This is not about wasteful spending. The HCFA request is fully paid for by a cut elsewhere in the HCFA budget. This is about an inexplicable effort to deny millions of people the right to portable, accessible health insurance. Let me review the history of the Kassebaum-Kennedy bill and explain to the Members why the request for the additional staff and resources is needed. The Kassebaum-Kennedy bill bans some of the worst abuses by health insurers--abuses that affect millions of people a year. It says that insurers could not impose preexisting condition exclusions on people who have faithfully paid their premiums but changed insurance carrier because they changed their job. It says that insurers could not penalize members of a group by excluding workers who happen to be in poor health or by charging them additional premiums. It says that small businesses could not be denied insurance coverage or have their policy canceled because one worker developed a health problem. It says that people who lost their job through no fault of their own could not be denied insurance in the individual market. According to the General Accounting Office, as many as 25 million people annually benefit from this health insurance bill of rights. But patchwork enforcement and a concerted effort by unscrupulous insurers to violate the law have raised serious concerns during the early implementation period. For too many Americans the promise of the Kassebaum-Kennedy bill has been a broken promise. The President and the Department of HHS are moving decisively to address some of the worst abuses, but their ability to do so will be crippled if this amendment passes. When our legislation initially passed, we envisioned that enforcement against insurance carriers would be a State responsibility, since State insurance commissioners have traditionally been the regulators of health insurance. Federal regulation was the fallback only if States failed to act. Most States have passed implementing or conforming legislation and are enforcing the law. But there are a significant number of States that have not yet come into compliance. Four States have failed to pass implementing legislation and have no comparable State laws on the books. Many, many more have only implemented parts of the law. One of the States that has failed to act is California with more than 30 million people. The issue goes beyond the insurance performance standards included in the original Kassebaum-Kennedy bill. Congress has acted to expand the bill by passing the mental health parity requirements and a ban on drive-by deliveries. These provisions, too, will remain an empty promise if HCFA does not have the staff to enforce the law. In every State that has failed to act, in whole or in part, the responsibility for assuring compliance in responding to complaints and informing the public has fallen on the Health Care Financing Administration. But HCFA has just over 20 people working on this issue in its headquarters and a handful spread across the regions. The recent GAO report expressed concern that HCFA's current resources are inadequate to effectively enforce the bill. If this amendment passes and the supplemental request is denied, HCFA will have to wait for the completion of the regular budget process for next year. But consumers cannot afford to have HCFA wait a year or more to hire new staff. And because HCFA lacks the institutional expertise to deal with private insurance issues, it cannot simply transfer responsibilities to existing staff. The GAO report was a preliminary one. If anything, it only scratches the surface of insurance companies' attempts to evade or subvert the law. But even in the short time the law has been operative, it is clear that there is a substantial abuse by greedy insurance companies and more rigorous enforcement is needed to make the right granted by Kassebaum-Kennedy a 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. They were charged as much as 600 percent above standard rates. These overcharges make a mockery of the right to purchase coverage. Other carriers continue to illegally impose preexisting condition exclusions. Still others, the GAO found, delayed the processing of enrollee applications beyond the 63-day window allowed by the law, leaving applicants high and dry. Other carriers illegally failed to disclose to consumers that they have a right to buy a policy. Some carriers refuse to pay commissions to agents who referred eligible individuals, and others told agents not to refer any eligibles for coverage. Other 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. Without the staff increase requested in this bill, this situation will get worse--not better. The Senate should not be voting for a free ride for greedy insurance companies, and it should not be an accomplice in denying families the health benefits they were promised by unanimous votes just 2 years ago. The need for additional staff goes beyond enforcement. The GAO found wide gaps in consumer knowledge--gaps that prevented consumers from exercising their rights under the law. HHS wants to launch a vigorous effort to address this problem. But, according to the GAO, because of resource constraints the agency is unable to put much effort in consumer education. I understand that the assistant majority leader believes this isn't an emergency situation. This logic makes me wonder if he opposes the other nonemergency provisions in the bill. I can count some two dozen. For millions of Americans, the failure to enforce this legislation is an emergency. Every family who is illegally denied health insurance faces an emergency. Every child who goes without timely medical care because this bill is not enforced faces an emergency. Every family who is bankrupt by medical costs because this bill is not enforced faces an emergency. This may not be an emergency for an abusive insurance company, but it is an emergency for families all over this country. For some, it is literally a matter of life and death. The Senate should reject this amendment. We need to toughen the Kassebaum-Kennedy bill--not weaken its enforcement. This is a test of whether the Senate wants to protect greedy insurance companies that break the law or protect American families. Mr. President, I see my friend from Minnesota wants to address this issue and then I will have more to say with regard to the GAO report. Mr. WELLSTONE addressed the Chair.

Mr. KENNEDY. I have no objection.

Mr. KENNEDY. Mr. President, reserving the right to object, and I will not object. Senator Nickles and I have been here for about an hour and 15 minutes wanting to debate the Nickles amendment. I hope that we at least have an opportunity to get to the substance of it. I want to accommodate all of our colleagues here.

Mr. KENNEDY. I don't think just at the present time, but we will be glad to see how we get started with the debate on that.

Mr. KENNEDY. Mr. President, reserving the right to object, and I will not object, I see Senator Nickles on the floor. I believe his amendment would be temporarily set aside. I just would like to know from the Senator about what time we might expect to have the debate on that? I am glad to be here whatever time. I do not want to interfere with the Senator from Texas, but we are here, ready to debate that now or whatever time the floor manager would like. But I would like at least to get some idea. We are setting the Nickles amendment aside. What is the intention?

Mr. KENNEDY. Mr. President, can the Senator tell us where we are on the list?

Mr. KENNEDY

Mr. KENNEDY. I suggest the absence of a quorum.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I opposed the amendment by the Senator from Missouri. The so-called ``Family Friendly Workplace Act'' is anything but family-friendly. It is anti-worker and anti-family, and it should not take time away from this emergency appropriations bill. The amendment was offered three times in the last session, and each time, my colleagues on the other side failed to invoke cloture. The reason is clear: the ``Family-Friendly Workplace Act'' has an appealing title, but appalling substance. It will never become law--nor should it. This amendment was offered last June while we were debating another necessary appropriations bill. That bill provided billions of dollars of relief to Americans in the Midwest, who were suffering the devastating effects of floods. Yet my colleagues on the other side insisted on delaying that emergency legislation, so they could offer this amendment. On this side of the aisle, we stood up to the opposition. We said ``no.'' We said that Americans in the Dakotas and Minnesota desperately needed help. They needed assistance to recover their homes, their property and their lives. We defeated the opposition's efforts to jam this bill through the Senate. Each time the legislation was offered, we defeated it. Finally, last June, the bill's supporters withdrew. We thought we had seen the last of this regressive legislation. But no, here we go again. Another essential appropriations measure is on the floor, and what do my friends on the other side do? They return to this anti-worker, anti-family amendment. We won't let it happen this time, any more than we did last June. Before I discuss the fatal flaws in this legislation, let me make one additional point. For the past ten days, the Senate has been trying to consider an education bill. Throughout that period, the Majority Leader has insisted that only amendments ``germane'' to the bill should be discussed. He refuses to allow those on this side to discuss amendments addressing the nation's crumbling public schools. He won't allow debate on amendments dealing with reducing class size. And he blocks discussion of amendments meant to encourage more college graduates to become teachers. Somehow, these education amendments aren't important enough to warrant consideration on the floor of the Senate. The Majority will not allow full and fair debate on these significant policy issues. But there is a double standard at work. The appropriations measure currently before us is an emergency measure. It provides essential support to our troops in Bosnia and other troubled areas of the world. And, it gives emergency relief to families devastated by tornadoes, floods and ice storms, from Maine to Florida to California. Apparently the Majority Leader is prepared to delay this emergency appropriations bill with a totally unrelated amendment. The inconsistency is obvious. The Majority will not permit debate on important education amendments, because they do not want to delay tax breaks to families who can afford to send their children to private school. But when it comes to postponing essential financial help to American soldiers overseas, and American families at home suffering from disastrous weather conditions--that is acceptable to my Republican friends. Those on the other side of the aisle may find this approach satisfactory, but those on this side couldn't disagree more. Now, I'd like to offer a few words on the substance of the amendment. Just a brief review demonstrates why it is unacceptable, and why it will never become law. First, the amendment is a pay cut for 65 million American workers. The so-called ``biweekly work schedule'' lets employers schedule workers for 60, 70, even 80 hours in a single week. Employers pay every hour at the employee's regular rate, as long as the total number of hours worked in a two-week period does not exceed 80. Under current law, every hour worked over 40 must be paid at time-and-a-half. This proposal would abolish that guarantee. Second, the amendment cuts benefits. In many industries, health and retirement benefits are based on the number of hours that employees worked. But the amendment does not guarantee that ``comp time'' or ``flexible credit hours'' must be considered ``hours worked'' for these important purposes. The result could be lower pensions and fewer health benefits. This does not help working families. The amendment does not even assure employees an increase in time off. If an employee takes 8 hours of comp time on a Monday in order to spend time with her family, the employer is free to force the employee to work on Saturday to make up for the lost time. The employer does not even have to pay time-and-a-half for the hours worked on Saturday. The comp time hours used on Monday do not count toward the 40-hour week. This does not help working families. Despite supporters' claims, this provision does not move the Fair Labor Standards Act into the 21st century. Instead, it turns back the clock, and makes it harder for workers to juggle the obligations of their job with the demands of their family. Third, the proposal abolishes the 40-hour week. That protection has been basic to employee-employer relations for nearly 60 years. Yet the Republicans want to return to the days when employees could be forced to work from sunup to sundown, day after day. This does not help modern working families juggle their obligations at home and at work. Finally, the amendment does not guarantee employee choice. The employer chooses who works overtime and when an employee can use accrued comp time. The employer is free to assign all the overtime work to employees who will accept comp time. Those employees who need the money the most, who can't afford to take time off, would be hurt the most. Their paychecks would be smaller. This is discrimination, and it is wrong--but the proposal does nothing to prevent it. And nothing in the proposal guarantees that workers can take time off when they want to or need to. The proposal does not guarantee any worker the right to use compensatory time under any circumstances. Even if the employee has a legal right under the Family and Medical Leave Act to take time off, the amendment does not give the employee the right to use earned compensatory hours for that purpose. This amendment is a cruel hoax. It does not help working men, it does not help working women, and it does not help working families. Many organizations that have historically struggled for the rights of working women and their families recognize the fatal flaws in this proposal. 9 to 5, the National Association of Working Women; the American Nurses Association; the Business and Professional Women; the National Council of Jewish Women; the National Women's Law Center; the Women's Legal Defense Fund; the League of Women Voters; the American Association of University Women--the list goes on and on. These organizations have fought for years to improve working women's lives on the job and in the home. They have supported affordable and high-quality child care. They have supported a living wage on the job. They were in the forefront of the battle to achieve Family and Medical Leave. From pay equity to pension equity to equal opportunity at home and at work, these organizations and others like them have worked tirelessly with and for working women. Yet these groups uniformly oppose this proposal. Last spring they sent a letter to Senators Lott and Daschle, expressing their belief that the bill ``fails to offer real flexibility to the working women it purports to help while offering a substantial windfall to employers.'' These organizations understand that working women may want more time with their families, but they cannot afford to give up overtime pay. As the letter to Senators Lott and Daschle explained, ``Women want flexibility in the workplace, but not at the risk of jeopardizing their overtime pay or the well-established 40-hour work week.'' Democrats in Congress understand these concerns, and we are prepared to honor them. Unfortunately, this legislation either ignores these problems or makes them worse. This is a bad bill, and the President has rightly promised to veto it should it ever reach his desk. But it should never leave the Senate. The Senate was right to reject this proposal last year, and we would have done so again today. disaster relief needs of u.s. military installations in california

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I have just a question of the floor manager. I have no amendments. I am quite prepared to vote at any time on this particular measure. I am just wondering if we are going to have any time prior to the 5:30 vote so we could discuss the Coverdell amendment. I want to accommodate the floor manager. I don't want to interrupt the orderly procedure. It is 9:40 now. I note we do have an issue before the Senate which is not directly related to the supplemental which will be taking up some time. So I am just wondering if there is any time that is preferable to the Senator, or whether there might be a designated period of time before a vote on the legislation of Senator Coverdell, and maybe those that oppose it--not a lengthy time, but maybe there is a time that we could address it prior to 5 or 5:30 that would be convenient?

Mr. KENNEDY. I appreciate the cooperation and courtesy of the Senator. I see Senator Ashcroft on the floor now. I know he wants to address the comptime issue, which is not directly related. I am prepared to respond to that. But, again, I have no interest in taking us off the measure which we have before us. I just want to cooperate with the floor manager on it. I was unaware that this amendment was coming up, but that's life around here. But I want to cooperate with the Senator from Alaska in any way, so they can move the process forward. As I say, I am ready to vote on the supplemental now. I do not intend to either speak or offer amendments on it.

Mr. KENNEDY

Mr. KENNEDY. Madam President, I know that we are debating very important issues on the supplemental appropriations bill. But I would like to take a few moments this afternoon to address another important issue, the Coverdell bill. There is a very important question we must all ask. Will Congress support public education or abandon it? I believe the vote tomorrow, and the debate going through next week on the Budget Resolution, may very well be the most important days that we will have to talk about the issue of education in this Congress. I would like to outline the challenges we face in the nation's public schools. May I yield myself 5 minutes? Can I do that; if the chair will let me know?

Mr. KENNEDY. As you know, the Budget Committee approved $30 billion in tax breaks--$30 billion. So, on the one hand, Republicans cut back education funding $1.6 billion below the President's program, and then spend $1.6 billion to create a $37 tax break for individuals that send their children to private school. Then they have the gall to come out here to say that Coverdell is the answer to the problems in education. Instead, the Coverdell bill is another Republican effort to abandon the public schools. I wonder, if the Senator will yield for another moment, I would like to just mention David Rosborough and ask my colleague whether this is the kind of situation that is troubling the Senator. Hi, my name is David Rosborough and I am a junior at Centerville High School in Clifton, Virginia. My school is extremely overcrowded, having well over 2600 students in a school that holds 2000, and whose optimal size is 1800. As a result of this, we have 32 makeshift trailers as classrooms this year and will have a total of 40 next year. Nearly 1000 students are in these trailers at any one time, and we have been forced to go to a complicated ``double master'' schedule. This new schedule which divides the school in two, is a great idea, and makes it so that class changes are staggered, however also created many new problems. Lunch periods begin at 10:00 a.m. and don't end until well after 1:00 p.m. This bill-- He was talking about the President's bill-- will put an end to ridiculous situations, like that of my school. The tremendous size of the school has caused inconveniences and problems, some minor, like the assembly situation. Right now, a simple music assembly will have to run three or four different times throughout the day, creating scheduling problems and keeping students out of class for unnecessarily long periods of time. Some problems are a lot more significant. ``Hall rage'' -- I never heard of that word before; ``hall rage'' are the words that this young student, a junior, uses-- ``Hall rage'' as our principal calls it, is one of them. Last year, before the new schedule was implemented, there was a huge outbreak of fights, many caused by frustration of being knocked around in the overflowing halls. Teachers found it much harder to teach with the distraction of ``hall rage,'' causing students to have difficulty focusing on class work with all the chaos outside. Teachers very rarely even get to teach in the same classroom all day, and some move between three and four classrooms. The new schedule at our school has solved some of these problems, but many still remain, and the school's size keeps on mushrooming. The ``double master'' schedule has caused many conflicts which limit the courses available to students. Hopefully this bill will pass-- Talking about the President's bill-- and bring . . . long-term relief to my school as well as many others like it. This is not the inner-city; this is in the suburbs. School repair, modernization, and expansion problems affect every community--urban, rural, or suburban. I ask the Senator from Connecticut, will the Coverdell legislation do anything about the kind of problems that this student is talking about; that would shock any parent?

Mr. KENNEDY. Madam President, we ought to understand exactly where we are as a nation and measure the proposal that we will be voting on tomorrow against our particular national needs. I think that is a fair way of making the decision whether we ought to eliminate any opportunity for additional debate and discussion on the question of support for public education across the country. No one is questioning whether the Coverdell bill will make a substantial contribution to private education. But if you are going to spend $1.6 billion, which is the amount of money that will be lost from the Federal budget under the Coverdell bill, we ought to know whether the money we spend will benefit the majority of the children in this country? Does this proposal abandon our support for public education, where about 48 million--90 percent--of our children are educated? This year, K-12 enrollment has reached an all-time high and will grow by 4 million students over the next 7 years across this country. Second, 6,000 new public schools will be needed by the year 2006 just to maintain the current class size--6,000 new schools by the year 2006. Due to overcrowding, schools are using trailers for classrooms, teaching students in former hallways, closets and bathrooms. Overcrowded classrooms undermine discipline and decrease the students' morale. America's children are learning in overcrowded classrooms. These are the undisputed facts on the condition of education in the United States of America. This chart is called ``America's Children Are Learning In Crumbling Schools.'' Madam President, 14 million children learn in substandard schools; 7 million children attend schools with asbestos, lead paint or radon in the ceilings or walls; 12 million children go to school under leaky roofs; one-third of American children study in classrooms without enough panel outlets and electrical wiring to accommodate computers and for multimedia equipment. These are the conditions today and these are the expectations of tomorrow. We are going to be faced with a Republican education program that says we will answer this national challenge with a $1.6 billion tax break for wealthy individuals. I call it an entitlement. I want to hear our friends who are always talking about entitlements address that issue, because this is an entitlement. Once the proposal goes into effect, anyone who is qualified is going to get a tax break every year--that's an entitlement in my book. It's an entitlement for the wealthy who send their children to private school. Should we have a good chance to debate different public policy alternatives to the Coverdell bill that is offered on behalf of the Republicans? We would welcome that debate. We do not fear that debate; we welcome it. We think the country would welcome it. We have our ideas. The President has his ideas. The President, in his State of the Union and in his speech on education, has outlined some very important measures--school construction and modernization, smaller class size, better trained teachers, increase in the number of qualified teachers, after-school programs, and expansion of the Head Start programs. Those are out there. These crucial programs are paid for in the President's budget. How did the Budget Committee address these issues? Thumbs down on all of those programs. Not only thumbs down on those programs, but reducing aid for education by $1.6 billion on existing programs below the President's level. We have not had that debate here. And we are being asked now to provide a new entitlement for the wealthier individuals who are sending their children to the private schools--not the public schools; to the private schools. That is what we are being asked to do. So let's get out and debate this issue. But, no; we are facing a cloture motion that says we are going to be absolutely denied the opportunity for considering alternatives. That is wrong. But it is something that American parents ought to understand, that this is basically an ill-conceived program that is abandoning the public schools in order to get additional tax entitlements and tax breaks for tuition for children to go to private schools. We do not have anything against the private schools, but with the scarce resources that are available, they ought to be carefully invested in the public schools. We should not be creating more tax breaks for the wealthy individuals. We should not be abandoning the public schools of this country. We ought to be responding to their particular needs. Mr. President, I believe my 5 minutes is up, and I yield the floor.

Mr. KENNEDY. Will the Senator yield?

Mr. KENNEDY. Her program costs only $3.3 billion, but will allocate $22 billion in interest-free bonding authority for States and local communities.

Mr. KENNEDY

Mr. KENNEDY. I was asking my leader. I would like to hear from Senator Daschle first, and then perhaps Senator Lott could respond.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, according to a recent study by sociologists at Michigan State University, and Princeton University, one of the great contributions of immigrants to America, in addition to their own skills and hard work, is the values they instill in their children--respect for hard work, doing well in school, succeeding against the odds, loving their families and their cultures, and an abiding belief that the United States is the best country in the world. Contrary to many of the myths about immigrants, this study concludes that the vast majority of immigrant children learn English. Nine out of 10 speak their native languages at home, but 88 percent preferred English by the time they completed high school. This study is also significant because it does not gloss over the challenges that many immigrant families face along the way. The study reminds us that immigrant children struggle against discrimination and anti-immigrant attitudes and policies. The study found that as a result of attacks on immigrants in public policy in recent years, children of immigrants were less likely to regard themselves as ``Americans'' and more likely to regard themselves as members of their ethnic groups. This kind of polarization could have profound consequences for our society in the future, and we need to be vigilant against it. Mr. President, I ask unanimous consent that a March 21 article in the New York Times on this study may be printed in the Record.