Don Nickles

Mr. NICKLES

Mr. NICKLES. I announce that the Senator from Illinois (Mr. Fitzgerald), the Senator from Oklahoma (Mr. Inhofe), the Senator from Arizona (Mr. McCain), the Senator from Alaska (Mr. Murkowski), the Senator from Pennsylvania (Mr. Santorum), the Senator from Pennsylvania (Mr. Specter), and the Senator from Ohio (Mr. Voinovich) are necessarily absent.

Mr. NICKLES

Mr. NICKLES. I announce that the Senator from Utah (Mr. Hatch), is necessarily absent. I further announce that, if present and voting, the Senator from Utah (Mr. Hatch), would vote ``yes.''

Mr. NICKLES. I announce that the Senator from Utah (Mr. Hatch) is necessarily absent. I further announce that if present and voting, the Senator from Utah (Mr. Hatch) would vote ``no.''

Mr. NICKLES. I announce that the Senator from Utah (Mr. Hatch) is necessarily absent. I further announce that, if present and voting, the Senator from Utah (Mr. Hatch) would vote ``no.''

Mr. NICKLES. I announce that the Senator from Utah (Mr. Hatch) is necessarily absent. I further announce that, if present and voting, the Senator from Utah (Mr. Hatch) would vote ``yea.''

Mr. NICKLES

Mr. NICKLES. I will give my colleague an additional minute. Let me say, I know he holds up a lot of photographs. I think that is a crummy way to legislate. But I will say that every single example he mentioned would be covered by external appeal. Those decisions would be made by medical experts. We even put in language that they would not be bound by the plan's definition of ``medical necessity.'' They would be covered. Pass the bill. If you want those kinds of examples to be covered, pass the bill. We are going to give you a chance to vote on it tonight. I might mention, my colleague from Tennessee says: We have a bill that is a Patients' Bill of Rights-plus because we provide a lot of things for people who cannot afford it. We provide an above-the-line deduction to buy health care, so more people can buy health care. The Democrats' proposal is going to uninsure millions of Americans. We should not do anything that is going to dramatically increase the price of health care and uninsure millions of Americans, as their proposal would do. We also don't think HCFA, that glorious Federal agency they are trying to empower, should be regulating all health care in the States. I ask unanimous consent for an additional 30 seconds.

Mr. NICKLES. Mr. President, my colleagues have said we are one vote short. We are not one vote short. Unless somebody changes the rules of the Senate, the Norwood-Dingell bill is going to need a lot more votes. It will never pass this session of Congress. I yield the floor and ask for the yeas and nays on my amendment.

Mr. NICKLES. I would like to close on ours. You have 5 minutes.

Mr. NICKLES. I have 1 minute.

Mr. NICKLES. I yield the Senator 1 minute.

Mr. NICKLES. I yield 7 minutes to my colleague from Tennessee.

Mr. NICKLES. Mr. President, I am assuming we have an informal agreement to go back and forth and to try to keep the time fairly equally divided. I might ask of the Parliamentarian what the division of time is remaining.

Mr. NICKLES. To answer my colleague's question, on the appeals process, it applies to 131 million Americans. We do not say we should design plans written by the States for State employees or for city employees or individuals. Those have always been regulated by the Federal Government. They have never been regulated by ERISA, and they aren't regulated by them in our bill, either.

Mr. NICKLES. The total coverage is, on scope, every single employer- sponsored plan in America would have the right to internal-external appeals.

Mr. NICKLES. I am happy to yield on your time.

Mr. NICKLES. I want to continue before I lose my train of thought. What about scope? The scope proposal in our bill applies to every single ERISA-covered plan. Every employer- sponsored plan would have an external appeal because that is ERISA. It has Federal remedies. We also included in this proposal a cause of action, a cause of action liability. In case the external appeal overturns the HMO and they do not pay, we say you can sue the HMO. We did not have that in the bill before. We did not have liability. We compromised. Some say the conference has not done anything. We made a concession. We have liability in our proposal so patients can sue HMOs. It turns out that a lot of our colleagues want to sue more, on every case. They want to turn this into an invitation for litigation. We do not. We do have cause of action. We have remedies allowing patients to go after the HMO, and, frankly, the employer, if acting as the HMO, if they are the final decisionmaker, if they are the ones denying health care, if they are the ones causing injury, harm, damage, or death, because of their decision to deny health care, they can be held liable. My point being: We have moved forward in the conference. We have made compromises. We have been working. This is not the way to legislate: We will put, at 5 o'clock on a Thursday afternoon, on the Labor-HHS bill and say we are going to do part of patient protections, we are going to pick out a piece of it, a very significant piece. Maybe we will do another piece tomorrow. That is not the way we are going to do it. We offered a significant comprehensive proposal, one that deals with scope, liability, patient protections, one that has an appeals process that will apply to every single employer-sponsored plan in America. We are going to give everybody a chance. You will not be voting on a real patient protections bill, not the one Senator Dorgan offered as a two-page amendment. We have an amendment pending that is 250 pages that has real patient protections and one we have been working on for over a year. Frankly, over half that language--maybe over 70 percent of that language--has been negotiated with our colleagues on the Democratic side of the aisle. It had tentatively been signed off by Democrats and Republicans, House and Senate. It has patient protections. It has an appeals process. We have a significant proposal. We do not have two pages. We have a Patients' Bill of Rights. We have remedies and cause of action where someone can sue an HMO or sue a final decisionmaker if they are denied health care. We have a good proposal, and I hope my colleagues will vote for it and against the Dorgan proposal. We will have up-and-down votes on both proposals, on a bill on which neither one belongs. That is not my choice. I told my colleagues on the Democratic side that I will agree to a time certain and a vote on both of these proposals sometime--July, September. I am happy to do that. No, they want to score points. They want press conferences. They are not interested in patient protections. They are interested in press conferences and political theater. They are not interested in helping patients. If they were interested in helping patients, they would be working with us to resolve and compromise in conference. Unfortunately, that is not the case. Maybe they will have theater, but we are going to give people substance on which to vote. Last time, when my colleague from Massachusetts offered basically the House-passed bill--let's adopt the House position--we said no, and we tabled it. We saw the headlines: ``Republicans Defeat Patients' Bill of Rights.'' Guess what. Today we are going to pass a Patients' Bill of Rights. We are going to pass a Patients' Bill of Rights and give every single patient in America who happens to be in an employer-sponsored plan an appeal. If they are denied health care by an HMO, they will have an appeal, done by a medical professional, an expert, using the best medical evidence available. It is a binding decision. If for some reason that appeal is not adhered to nor complied with, they will have a right to sue. They can sue their HMO, they can sue the final decisionmaker, if it is a self-funded, self-insured employer, if they make a decision to deny health care. They can sue them in those circumstances. We are offering real patient protections. Time and again I have heard: We have to have patient protections where there is remedy against HMOs denying health care. We do that in this bill. We do not want people going to court; we want them to settle it in the appeals process so they get health care when they need it, not through the court system when it is too late. We want to resolve those cases. We want people to get health care. On the patient protections--about which my colleague says the Senate does not do anything for the firefighter in Massachusetts, we want patient protections--we just do not think we are protecting patients by coming up with some facade that the Federal Government is going to take care of them when we know it cannot, and have the Federal Government basically preempt State law with national health insurance. Look at the countries with national health care. Do they have the quality of health care that we do in this country? The answer is no; absolutely not. People think we can draft these patient protections in Washington, DC, and do a better job than the States. I happen to disagree. I will give some examples. The States have done a lot with patient protections. We should not ignore that. We should encourage it and compliment it. We should encourage them to do more. It would be presumptive. We negotiated access to emergency room care; direct access to pediatricians; provider nondiscrimination; direct access to specialists; continued care from a physician; timely binding appeals to an independent physician; agreement on direct access to OB/GYNs; agreement to improve plan information; agreement on access to out-of- network physicians; agreement on open discussion on treatment options with physicians; agreement on access to prescription drugs; and agreement on access to cancer clinical trials. We have made a lot of progress. My colleagues say we have not done that. Are we going to say the language we drafted is so much better than anything the States can do and so we have to supersede their language? Some people think we are the font of all wisdom. I do not agree with that. It is absurd for us to say that. States have been issuing patient protections. Forty-three States have already passed patient protection bills way ahead of the Federal Government. I think it would be presumptuous of us to say: We are going to draft something. We know it is better. And States, you must comply. If you don't comply, the Federal Government is going to come in to regulate. That is a serious mistake. I do not want to do it. I urge my colleagues to vote yes on the proposal that I have submitted on behalf of myself and several others who have worked for over a year and a half to put together. I urge my colleagues to vote in favor of that. And I urge my colleagues to vote no on the Dorgan- Kennedy amendment. I yield the floor.

Mr. NICKLES. No, I will not yield. I have a lot of comments to make. Maybe I will yield at a later time. Instead of waiting for the conference to work, my colleague from Massachusetts put the Patients' Bill of Rights on either the Department of Defense authorization bill or the Defense appropriations bill. There is no way in the world that bill is ever going to come out of conference. It was nothing but political theater. It disrupted the conference. I told him and my colleagues and I planned on having a conference that day with my Democratic colleagues. No, they engaged in political theater because maybe some people wanted to have a headline that said: ``Senate defeated Patients' Bill of Rights.'' We moved to table the amendment. The vote was 51-48. It accomplished nothing but headlines for my colleagues. Two weeks after the vote, we have another Patients' Bill of Rights. Maybe we will have several and do them piecemeal. Maybe we will do one on scope and one on patient protections. I tell my colleagues, this is not the way to legislate. We are on the Labor-HHS appropriations bill. Everyone knows this bill is not going to come back--maybe it will; maybe we will pass patient protections and put it on Labor-HHS. My colleagues put minimum wage on bankruptcy. Frankly, it is a complicated effort for both bills. Minimum wage did not belong on bankruptcy and patient protections does not belong on Labor-HHS. Are they seriously legislating? No. Did they come up with a serious legislative proposal? They have a two-page proposal on scope. What is the amendment offered by my friend from North Dakota? He has an amendment which deals with scope. My colleague talked about all these patient protections. Guess what. They are not in his amendment. His amendment basically says: We want the Federal Government to set standards, and, oh, States, you have to meet these standards. If not, the Federal Government is going to take over. This little amendment, which looks innocuous and is like a thematic statement, says we are going to have the Federal Government design, mandate, and dictate benefits, and, States, if you do not meet these dictates, we are going to have the Federal Government take over; HCFA will take over; you will have to follow the HCFA standard. This is the GAO report: Implementation of HCFA. The headline says: ``Progress slow in enforcing Federal standards in nonconforming States.'' We have a lot of States not conforming with existing laws where HCFA is supposed to have control--ask any of your doctors. Some people profess they want to be helpful to doctors. Ask the doctors. If we adopt the Dorgan amendment, we are asking HCFA to take over State regulation of health care. That would be a disaster. That would not improve quality health care. That would duplicate State regulation, confuse State regulation, and have Federal regulators who do not have the wherewithal or the talent--they say so themselves. They say in this report they do not have the talent; they cannot do it. They are not doing it in existing law. They have three areas in existing law they are supposed to enforce, and they are not doing it. This is the GAO report saying this, not Don Nickles. It is fact. And we are going to give them regulation over State health care? That is absurd. I know some people want national health care. They want the Federal Government to regulate health care in the States. I do not. I think it would be a serious mistake. What about scope?

Mr. NICKLES. Mr. President, I regret our colleagues on the Democrat side of the aisle have decided to once again try to turn an issue, an important issue, Patients' Bill of Rights, into a political theater and not legislate, not come up with reasonable compromise. Instead, they want votes. They want to try to score points. I find that to be unfortunate because we are working very hard to try to come up with a responsible product. A compromise in the conference committee is not easy on this issue because the differences between the House bill and the Senate bill are significant. They are significantly different in cost and scope and liability. We are trying to bridge those differences. It takes time, it takes compromise, it takes both sides working together. We made a lot of progress with our colleagues on the Democrat side, in spite of what my good friend from Massachusetts says, a lot more progress than 2 out of 20 items. We agreed on an appeals process. Maybe not on every single last letter, but by and large we agreed on the appeals process. We invited the press in; we came to an agreement. It took about 2 months. I thought it should have taken a week. The reason why it took 2 months is because our friends on the Democrat side always kept wanting a little bit more. That is tough negotiating. I am not faulting them for that. But they are the reason why it took 2 months to come up with an appeals process. We basically agreed with it. I just have to make a mention on scope. When they say: Wait a minute, their bill only applies to 50 million and our applies to 161 million; it should apply to everybody--our plan applies to everybody covered by ERISA. That is the plan we are amending, every employer-sponsored plan. I know the Senator wants to overrule the State of Massachusetts State employee plan, he wants to regulate State individual plans--he wants national health care. I compliment him. He is being consistent. He always thought the Federal Government could do it better than States, and he always wanted the Federal Government to do it instead of States. I disagree with that. We have a disagreement. That is one of the items we were wrestling with in conference. Now we have an amendment. We tried to do this in a big fashion last year. They had their amendments. We had a lot of votes on amendments last year. Senator Kennedy lost. We had an amendment on scope. We debated that last year. The Senator from Massachusetts lost. The majority of the Senate said: No, we don't want the Federal Government to take over State regulation of insurance. We don't think HCFA is very good at administering the insurance. They have a hard enough time in Medicare. Do we really want them to regulate State insurance? The Senate said no. The House said yes. We were negotiating that. Incidentally, that is one of the things we are negotiating as we speak. But my colleagues on the Democrat side didn't wait for the conference. Two weeks ago they said: Let's ignore the conference. Let's just adopt the House position. In spite of the fact we have reached a bicameral agreement on a lot of patient protections, including the appeals process which, for my colleagues' information, is the backbone of the bill. It is the most important thing in the bill because if you do a good job in the appeals process, you don't have to go to the courthouse. The patients who need care, whether it is the cleft palate that my colleague continues to show in the picture--they are going to have an appeal under the bill that we have. They are going to get care. It is going to be decided by a medical expert totally independent of the plan. That is going to be a binding decision. The person who is denied health care is going to have an appeal and is going to get the health care they need when they need it; not just go to court.

Mr. NICKLES. I have no objection to that.

Mr. NICKLES. If I may respond to my colleague, I have no objection personally. I understand the chairman of the Budget Committee doesn't want that waived. But it is not my intention to raise a point of order on the Senator's amendment, nor on our amendment. I think the Senator from New Mexico has a standing objection.

Mr. NICKLES. I announce that the Senator from New Hampshire (Mr. Gregg and the Senator from Kentucky Mr. McConnell) are necessarily absent.

Mr. NICKLES. Mr. President, I yield to the Senator from Wyoming 5 minutes.

Mr. NICKLES. Mr. President, I yield 5 minutes to the Senator from Vermont.

Mr. NICKLES

Mr. NICKLES. I would be happy to yield it back if we don't need it. I want equal time.

Mr. NICKLES. We want equal time. I insist on equal time.