John McCain

Mr. McCAIN

Mr. McCAIN. Mr. President, I think the Senator from Minnesota, Mr. Wellstone, may be mistaken. In fact, $359 million was rescinded in the House supplemental from the programs. I think he was inaccurate in his statement that none was rescinded. I am sorry the Senator from Utah may have to leave the floor. The Senator from Utah fails to mention that we have already shelled out $1.3 billion--``b,'' billion--in subsidies for the Salt Lake Olympics, far more than any other Olympics in history, far more, for all kinds of pet projects. I asked 3 years ago, a simple request of the Senator from Utah, if he would give us an assessment of how much in Federal dollars would be needed. Of course, I never got an answer. In fact, we had a little dialog on the floor of the Senate. Never once, never on any occasion has the Commerce Committee, of which I am the ranking member, had a request for authorization for funds for the Salt Lake City Olympics--never once. Not on any single occasion, even though I have requested time after time, the committee of oversight that authorizes the funds and what may be required has never, ever been approached. Why not? Perhaps one of the reasons might be because we found out in a GAO report that the taxpayers have shelled out $1.3 billion already for the Salt Lake City Olympics for every kind of imaginable thing--I will include the GAO report--every imaginable kind of project, none of which--or very little of which had to do with security. It had to do with land acquisitions; it had to do with all kinds of things. Of course, we have never yet had a request for an authorization. What do we find? We find a supplemental appropriations bill for $30 million for security. It sounds good. Why was the request not made a long time ago? Perhaps, if the Senator from Utah had complied with the simple request that I made as chairman of the oversight committee, that we could get some kind of estimate as to how much it would cost the taxpayers, we would not be going through this drill we are going through now. I, again, urge the Senator from Utah to tell us how many of the taxpayers' dollars are going to be needed to fund the Olympics, No. 1; and, No. 2, seek authorization through the authorizing committee for those funds--which happens to be the Committee on Commerce, Science, and Transportation. I point out on this amendment that the Office of Management and Budget and the Department of Defense have not voiced objections. In the interests of straight talk, they have not expressed support for this amendment either. But there has not been any objection raised by the Office of Management and Budget or by the Department of Defense to this amendment. I hope Senators will take that into consideration. I reserve the remainder of my time.

Mr. McCAIN. Mr. President, I ask unanimous consent to print in the Record the expenditures that have been made according to the GAO for the Olympics.

Mr. McCAIN. It includes things such as land acquisition, Olympic infrastructure, Olympic park-and-ride lots, light rail downtown to the University of Utah, Olympic intelligent transportation system, commuter rail, intermodal centers, the list goes on and on of the $1.3 billion that has already been spent before we tack some more onto this supplemental appropriations bill. I hope the Senator from Alaska will also work very hard to remove the nondefense appropriations from the defense appropriations bills. I yield 7 minutes to the Senator from Connecticut and reserve the remaining 4\1/2\ or 5 minutes for me before all time expires.

Mr. McCAIN

Mr. McCAIN. Mr. President, I thank Senators Breaux and Frist for their efforts. I believe they have a goodwill attitude toward this issue. I especially thank Dr. Frist for his leadership not only on this issue but on so many other health care issues that come before the Senate. I respect their commitment in protecting patients and holding health plans accountable. I do not believe the substitute has a mutually shared goal. Both my colleagues, Senators Edwards and Kennedy, point out some of the differences between our two bills. I remind Members that the amendment does provide very limited relief in Federal court and would only allow a handful of cases to be addressed: Only those patients who receive approval from the external medical review can go to court. Numerous States, including my home State of Arizona, have enacted laws that permit injured patients to hold plans legally responsible for their negligent medical decisions. I believe this substitute nullifies these laws. My colleagues may assert they do not preempt State law, but I respectfully disagree. Delaying and denying care by an HMO is not a contract issue for Federal court. Delaying and denying of care is a medical malpractice and should be determined in State court. As we know, this is a substitute. Over the last 2 weeks we have made some very important changes to this legislation, which is the appropriate way to legislate. We have made important changes on employer liability thanks to Senator Snowe and Senator DeWine and others; exhausting administrative procedure, thanks to Senator Thompson and Senator Edwards; limits on legal fees, an effort undertaken by Senator Warner; reasonable scope, protecting all Americans, limitations on class action suits, and venue to prevent forum shopping, in which Senator Thompson and others were involved. Some of these have been included in the substitute, and some have not. I believe all of these changes that have been made through open and honest debate on this legislation should be included. Again, we still have avoided the fundamental issue of State and Federal court. I believe that issue is not resolved to the satisfaction of the patient as opposed to the HMO. I take an additional minute to thank a number of people including the White House staff, Josh Bolton and Anne Phelps; Senator Gregg's stewardship on this side has been exemplary; Senators Frist and Breaux have obviously been very helpful; Senators Snowe, Lincoln, DeWine, Nelson, and Thompson. I thank both leaders, Senator Daschle and Senator Lott, as well as Senator Reid and Senator Nickles, who have been involved in this issue for a long time, as well as Senator Edwards and Senator Kennedy. Soon we will vote on this legislation. I believe we will prevail. I think this, like the campaign finance reform bill, has been open, honest, fair debate on which all sides have been heard, and I think, again, the Senate can be proud, no matter what the outcome, of the way we proceeded to address this issue which is important to so many millions of Americans. This is an important issue to American citizens. This is an important issue to the person who cannot contribute a lot of money to American political campaigns. This is an important issue to average citizens whose voices are oftentimes drowned out in Washington, in my view, by the voices of the special interests, whether they be trial lawyers, insurance companies, HMOs, or others. I think putting patients first and the HMOs second, as we crafted this legislation, is an important outcome and why I have to oppose the substitute and urge my colleagues to vote favorably when we reach final passage. I yield the floor.

Mr. McCAIN. Mr. President, I thank all my colleagues, both supporters and opponents of our legislation, for their patience, their courtesy, and their commitment to a full and fair debate on the many difficult issues involved in restoring to doctors and HMO patients the right to make the critical decisions that will determine the length and quality of their lives. I think we are all agreed on this one premise, that the care provided by HMOs has been inadequate in far too many instances. This failure is attributable to the fact that virtually all the authority to make life and death decisions has been transferred from the people most capable of making medical decisions to those people most capable of making business decisions. I do not begrudge a corporation maximizing its profits, exercising due diligence regarding its fiduciary responsibility to its shareholders. The corporate bottom line is their primary responsibility, and I respect that. But that is why, we should not grant them another, competing responsibility, especially when that secondary responsibility is the life and health of our constituents. I know that even the opponents of our legislation are agreed on returning more authority to doctors and their patients, and addressing many of the most distressing failures of managed health care. Where we differ, and differ significantly, is over the questions of remedies for negligence on the part of the insurers, and though we have tried to find common ground we are not there yet. But the Senate, seldom acts in perfect unison, and the majority has spoken in support of our legislation. I am grateful for that, for I come to appreciate just how important this matter is to the American people, and I am proud of the Senate for taking this step in addressing the people just concerns. We have made considerable progress in reconciling differences of opinion on several issues, from employer liability to class action suits to establishing a reasonable cap on attorney fees, and exhausting all other remedies before going to court. We have addressed small, but important issues like protecting from litigation doctors who volunteer their time and skill to underprivileged Americans. I want to thank all senators involved in reaching those compromises, Senators DeWine, Snowe, Lincoln, Thompson, and Nelson especially, for their diligence and good faith. I know they want to pass a bill that the President will sign, as do I, and they have worked effectively toward that end. I know that we have outstanding differences remaining. I know that the President is not persuaded that the legislation that we have adopted today is the best remedy for the urgent national problem we all recognize. I pledge to continue working with the administration and with our friends on the other side of the Capitol to see if we might yet reach common ground on all the important elements of this legislation. I am convinced that we can get there, and I appreciate the President's dedication to that same end. I thank the sponsors of this legislation, Senator Edwards, the always formidable Senator Kennedy, Senators Specter and Chafee, and all the other cosponsors for their skill, hard work, and dedication. I thank them also for their patience. We are not always on the same side of a debate, and I suspect that working at close quarters with me can prove challenging even when we are in agreement. I thank Senators Frist, Breaux, and Jeffords and all those who supported their alternative legislation. Throughout this debate they have been motivated by their convictions about what is in the best interests of the American people, as have Senator Nickles, the Republican manager, Senator Gregg, and all Senators who have disagreed with the majority over some provisions in this legislation. I commend them all for their principled opposition. I am grateful for the leadership of Senators Lott and Daschle, and the assistant majority leader, Senator Reid, for their skill, courtesy, and fairness in managing this debate. Finally, let me thank those who do most of the work around here but get the smallest share of the credit for our accomplishments, our staffs. I want to thank the minority staff director of the Commerce Committee, Mark Buse, committee counsel Jeanne Bumpus, and most particularly, my health care legislative assistant, Sonya Sotak for their extraordinary hard work, and talented counsel to me and other members. I thank the staffs of Senators Edwards, and Kennedy, leadership staff for the majority and minority, and all staff who have made our work easier and more effective. This has been a good, long, open, and interesting debate, distinguished by good faith on all sides. It has been privilege to have been part of it. We have achieved an important success today in addressing the health care needs of our constituents. We have much work to do, and I want to continue working with other Members, our colleagues in the other body, and with the President and his associates to make sure that we will enact into law these important protections for so many Americans who have waited for too long for them. We have been negligent in addressing this problem, but today we have taken an important step forward in correcting our past mistake. With a little more good faith and hard work, we will give the American people reason to be as proud of their government as I am proud of the Senate today.

Mr. McCAIN. I thank my friend from Wisconsin for raising this very important issue about this legislation. We have come very far on this legislation. It is the intent of the bill's sponsors and of the majority about to pass this bill that patients will have the full legal rights provided under this historic legislation. It is not our intent to provide these important legal rights on the one hand and then allow them to be taken away by mandatory arbitration contracts entered into before a dispute arises. We have said that this bill gives patients the right to an external appeal process and to go to court, and we intend that cases arising under these rights should be heard by the external reviewer in court, and not by private arbitrators.

Mr. McCAIN

Mr. McCAIN. No objection.

Mr. McCAIN. Reserving the right to object. (Laughter.) In admiration of the Senator's tie, how long is the speech?

Mr. McCAIN. Madam President, I appreciate the efforts of the Senator from Idaho for small businessmen and women, for families who are unable to afford health care costs to be able to invest in a medical savings account. But I would like to put this issue in the context of this entire debate. One of the first amendments proposed in this debate was to provide tax relief--not a sense of the Senate but an actual amendment to the pending legislation to provide tax relief for small businessmen and women to get deductibility for their health care plans, at that time 100-percent deductibility on their health care plans. At that time I said I was willing to support the amendment and I was willing to support two additional tax incentives for low-income American families so they could afford health care. That offer was rejected. That offer was rejected by the opponents of this legislation as not being enough. They needed a multitude of tax provisions in this bill. At that time I said OK, then I will not support them unless we have some kind of narrowing--as I said, as many as three. That offer was rejected. Here we are at 2 o'clock on Friday afternoon, after many days of debate, and we are talking about a sense-of-the-Senate resolution on medical savings accounts. I am sorry. They should have taken advantage of the opportunity that I and the sponsors of this legislation would have provided to provide legislative--not sense of the Senate --relief for small businessmen and women, for allowing families to establish medical savings accounts, and perhaps another bill. That offer was rejected. At this time I would then have to oppose this sense-of-the-Senate resolution. I yield the floor.

Mr. McCAIN. I move to table and ask for the yeas and nays.

Mr. McCAIN. Mr. President, I thank the Senator from Tennessee and the Senator from North Carolina. The last amendment was an important amendment. It was a major step forward. That amendment, along with the Snowe amendment and several others that have passed, has immeasurably helped this legislation. I thank the Senator from Tennessee and the Senator from North Carolina.

Mr. McCAIN

Mr. McCAIN. The amendment we are drafting here--that merely restates what is in the underlying bill--is not intended to change our fundamental approach, just to clarify our intent. Our overall bill still clearly states that coverage decisions that are subject to interpretation or that are based on applying, medical facts and judgment should be reviewed. This includes those decisions that require the application of plan definitions that require that interpretation.

Mr. McCAIN. Mr. President, I thank the Senator from Texas for causing this amendment to happen. It really is to ensure the sanctity of the health care contract. Concerns were raised that under the pending McCain-Kennedy legislation, independent medical reviewers can order a health plan to provide items and services that are specifically excluded by the plan. That was not the intention of the law. The Senator from Texas pointed out that it could have been interpreted in another way, and clearly this amendment I think tightens that language to the point where it is clarified that the bill doesn't do this and its specific limitations and exclusions on coverage must be honored by the external reviewers. There are numerous safeguards already in the bill to ensure that external reviewers cannot order a group health plan or health insurer to cover items or services that are specifically excluded or expressly limited in the plain language of the plan document and that do not require medical judgment to understand. So I think this language is important in its clarification. I understand Senator Gramm's concerns. I know this will not bring him to the point where he is willing to vote for the bill, but I do hope it satisfies many of his concerns, and we will continue to work with him to try to satisfy additional concerns. I appreciate his cooperation and that of his staff. I believe my friend from Texas would agree this is probably the 35th draft we have of this maybe 9-line amendment, but each word is important nowadays as we work our way through this bill. I believe the appropriate place is on page 36, line 5. By the way, I thank Senator Kennedy and Senator Edwards and their staffs for agreeing to this amendment. I share the opinion of the Senator from Texas that it is an important amendment.

Mr. McCAIN. Madam President, I thank the Senator from Virginia for his efforts. I think there is an agreement that there needs to be a cap on attorney's fees. It is my strong sense and belief that if we had a cap of 33.3 percent that applied to Federal and State courts, that would be accepted by the majority of this body. What I worry about is us just going back and forth with escalating amendments. There are very few benefits of old age. One of them is to remember what happened in the past. When we were doing the tobacco bill, we had amendment after amendment, a series of amendments, on caps on lawyer's fees. It got a little ludicrous. We finally had a majority vote for $1,000 an hour. It was clearly not an effort at legislating, but it was an effort at some kind of political advantage. I know that is not the intention of the Senator from Virginia. I hope that once this is debated and, if it is not accepted, that perhaps we could move to an amendment after Senator Snowe's amendment that would be around 33.3 percent, State, Federal court, end of it. That is going to make everybody unhappy, but I think it would be something that we could all support and then get this issue off the table and get to the very important issues such as resolution of exhaustion of appeals that Senators Thompson and Edwards are working on, liability issues. Senator Frist has some important amendments, again, on liability issues, which we are narrowing down. Hopefully, we can move forward. I thank the Senator from Virginia for his input.

Mr. McCAIN. If the Senator will yield, I say to my colleague from Virginia, if the outcome of this amendment is not to the Senator's satisfaction, then I hope we can enter into negotiations that on a reasonable level--again, I just plucked 33\1/3\ percent because it is in there in one category, across the board, simple, two lines, and perhaps we can move on. I know the Senator from Virginia, as well as the rest of us, doesn't want to be hung up on a series of votes that are iterations over the same issue. It seems that we can sit down and come to some reasonable agreement, which the other side of the aisle would strongly resist applying to State court, and this side would resist it on Federal court. It is something to have a substantial majority vote for. I hope the Senator agrees to enter into those negotiations.

Mr. McCAIN. I repeat the request for the yeas and nays.

Mr. McCAIN. Right, just as in the case we have heard about a child with a cleft palate. The plan says they do not cover cosmetic surgery, but the doctor argues that there is specific health risks for not having this surgery. That is something the independent reviewer would look at to determine if it is covered in this case.

Mr. McCAIN. The amendment that I offered today with Senator Gramm helps to clarify the intent of how this bill deals with medically reviewable decisions.

Mr. McCAIN

Mr. McCAIN. I thank the Senator from Colorado. I will be very brief. I would just like to say to all my colleagues, on this issue I think we have made significant progress. Overnight we have the outlines of an agreement, thanks to Senators Snowe and DeWine, Nelson, Lincoln, and others, on the issue of employer liability. We hope we can get the final details of that ironed out soon. I thank those four Senators and others on this issue. On the issue of scope, I think we are close to an agreement on that major issue. I thank all involved, including Senator Frist and many others, for the serious negotiations that have been ongoing. We may end up with a couple of issues that simply require votes on the floor to resolve them and the majority of the Senate will prevail. But I am very hopeful, and frankly very pleased at the progress we have made. All parties are seriously negotiating. That is the only way you can resolve an issue that has this much detail and this much complexity associated with it. Again, I echo the sentiments of the Senator from Nevada. I think we could easily complete this in the next couple of days with the kind of willingness that has been displayed so far. I yield the floor.

Mr. McCAIN. I thank the Senator. Mr. President, concerns have been raised that under this legislation, independent medical reviewers can order a health plan to provide items and services that are specifically excluded by the plan's contract. The amendment I am offering clarifies that the bill does not do this, and that specific limitations and exclusions on coverage must be honored by the external reviewers. There are a numerous safeguards already in the bill to ensure that external reviewers cannot order a group health plan or health insurer to cover items or services that are specifically excluded or expressly limited in the plain language of the plan document. First, the external review entity who is responsible for determining which claims require medical review and which do not, may refer claims to independent medical reviewers only if the coverage decision cannot be made without the exercise of medical judgment. I repeat: The external review entity, the one that is responsible for determining which claims require medical review and which do not, may refer claims to independent medical reviewers only if the coverage decision can't be made without the exercise of medical judgment. For example, the plan document says that the plan doesn't cover heart transplants. Even if the patient has no other treatment options, the external review entity should not forward the claim for a heart transplant to an independent medical reviewer because no medical determination is needed to understand that the procedure is not covered. Second, even if the external review entity makes a mistake and forwards to the independent medical reviewer a claim for an item or service that is specifically excluded or expressly limited under the plan, the legislation states that the independent medical reviewer cannot require the health plan or insurer to cover such excluded benefits. The amendment I am offering clarifies this limitation on the independent medical reviewer to make it perfectly clear that although we are relying on the independent medical reviewer to give us a second medical opinion when such a medical opinion is necessary to interpret the plan's coverage, we are not empowering them to disregard the plan's specific coverage exclusions and limitations. The third safeguard and the one we are further strengthening with this amendment is designed to ensure the objectivity and quality of the external reviewers. The bill provides already for their certification and sets out factors that must be considered before they can be recertified, including the external reviewer's compliance with requirements for independence and limitations on compensation. To the recertification considerations already in the bill, this legislation additionally requires the certifying authority, before recertifying an external reviewer, to consider whether the external reviewer has breached the other safeguards by ordering a provision of items or services that are specifically excluded by the plan. The amendment allows a health plan or insurer to petition the certifying authority to revoke an external reviewer's certification or deny recertification and requires the certifying authority to do this upon a showing of a pattern or practice of wrongfully referring for medical review claims that don't require medical decisions or of ordering the provision of specifically excluded benefits. Finally, the amendment requires the General Accounting Office, within 1 year after the bill takes effect, to report to Congress on the number and the extent to which independent medical reviewers are requiring coverage for benefits that are specifically excluded under the plan or coverage. I guess what we are saying here is that we are trying to make the language as tight as possible. We know there may be a temptation on the part of reviewers to violate the plan with regard to those procedures which may be specifically excluded. We will have follow-up action, including a requirement for taking into consideration, on recertification or even revocation of certification, a study by the General Accounting Office which will tell us about the extent to which independent medical reviewers are requiring coverage for benefits that are specifically excluded. My friend from Arizona, Senator Kyl, had a very good amendment. We could not quite go that far, and we came close to agreement. I hope this amendment does clarify some of the concerns. It strikes the language on page 36 of the bill that says: Except to the extent that the application or interpretation of the exclusion or limitation involves the determination described in paragraph 2. This removes what was viewed by many as a possible loophole. So we were willing to strike that portion of the bill in order to try to inspire some confidence that in no way does this legislation expect or anticipate or even allow in any way exclusions on coverage that are not specifically listed in the medical plan, in the insurance plan. I yield the floor.

Mr. McCAIN. Mr. President, I ask unanimous consent that there be 1 hour on this amendment evenly divided. I withhold my unanimous consent request.

Mr. McCAIN. Mr. President, I say to the Senator from New Hampshire, I hope he and his people will examine this amendment. I apologize for not getting it to him sooner. Perhaps we could agree on this amendment and not have to have a rollcall vote.

Mr. McCAIN. Mr. President, I ask unanimous consent reading of the amendment be dispensed with.

Mr. McCAIN. Mr. President, I have an amendment at the desk and ask for its immediate consideration.

Mr. McCAIN. I am always pleased to yield to the Senator from West Virginia.