Don Nickles

Mr. NICKLES

Mr. NICKLES. Mr. President, I rise today to introduce legislation, the Thorium Remediation Reauthorization Act of 2001. This bill will provide authorization for the Federal Government to pay its share of decommissioning and remediation costs for a thorium facility in West Chicago, Illinois. In a DOE proceeding, it was determined that the government is responsible for 55.2 percent of all West Chicago cleanup costs because 55.2 percent of West Chicago tailings resulted from Federal contracts. Under Title X of the Energy Policy Act of 1992 (``EPACT''), the thorium licensee pays for all West Chicago cleanup costs, and is then reimbursed, though annual appropriations, the government's share of those costs. There is already more than a $60 million shortage in authorized funding for the Federal share of West Chicago cleanup costs. Despite that, the thorium licensee has continued to pay all decommissioning costs at the West Chicago factory site, as well as remediation costs at vicinity properties known as Reed-Keppler Park, Residential Properties, and Kress Creek. Remediation of Reed-Keppler Park was finished late last year and remediation of more than 600 Residential Properties is expected to be substantially complete by the end of this year. Decommissioning of the factory site, with the exception of groundwater, is expected to conclude in 2004. Cleanup requirements at Kress Creek have not been determined, and until those are established, the costs associated with the cleanup of that vicinity property cannot be accurately projected. The significant costs associated with the West Chicago cleanup are a result, in large part, of extensive government use of the facility during the development of our country's nuclear defense program, including the Manhattan project. With the exception of Kress Creek and groundwater, total cleanup costs at the factory site and all vicinity properties can now be estimated with reasonable certainty. The $123 million authorized by this bill will permit the government to begin reimbursing the amount it is already in arrears to the thorium licensee. It also will provide the authorization necessary for the government to pay its share of costs, excluding costs for Kress Creek and for groundwater, that will be incurred by the licensee through completion of West Chicago cleanup. Funding for this reauthorization would come from the General Treasury. Thus, this legislation will not diminish the availability of funds in the DOE's Decontamination and Decommissioning Fund, from which both Title X uranium licensees and the DOE's gaseous diffusion plants receive funding. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. NICKLES

Mr. NICKLES. Mr. President, I object.

Mr. NICKLES

Mr. NICKLES. I announce that the Senator from Colorado (Mr. Campbell), the Senator from New Mexico (Mr. Domenici), the Senator from Texas (Mr. Gramm), the Senator from Alaska (Mr. Murkowski), and the Senator from Mississippi (Mr. Lott) are necessarily absent.

Mr. NICKLES. I announce that the Senator from New Mexico (Mr. Domenici), the Senator from Alaska (Mr. Murkowski), the Senator from Colorado (Mr. Campbell), and the Senator from Texas (Mr. Gramm) are necessarily absent.

Mr. NICKLES. I will make two or three comments. First, I compliment and congratulate Senator Kennedy and Senator Gregg for their patience and leadership in managing this bill and also managing the education bill. Also, I congratulate Senator McCain and Senator Edwards for their contribution because they are going to pass a bill, and Senator Daschle, as well. This has been a battle that some have been wrestling with for a long time. As a matter of fact, a year ago we passed legislation that was called Patients' Bill of Rights Plus. In my opinion, it is far superior to the legislation we are getting ready to pass tonight. It was legislation that allowed every plan to have an appeal, internal and external, and it was binding --not binding by lawsuits, but if you did not comply with external appeal, you could be fined $10,000 a day--a different approach. I think it is far superior. In looking at the language we have today and in the underlying bill, the so-called McCain-Edwards-Kennedy bill, maybe some modest improvements have been made. It is the bill that will finally pass, but it is a bill that the President will not sign and the President shouldn't sign. I hope we will pass good legislation but not pass legislation that will dramatically increase health care costs, as I am afraid it will. There has to be some reason that employers that voluntarily supply health care, purchase health care for their employees, that employers of all sizes are almost unanimous in their opposition. They are not compelled to buy health care for employees, but they want to. Now we are getting ready to threaten them with unlimited liability. We keep hearing about suing the HMOs, but suing the HMOs and/or employers and threatening them with unlimited liability, economic damages, unlimited noneconomic damages, pain and suffering--there are costs included. Somebody said we solve that because we have a designated decisionmaker. If there is a designated decisionmaker, the net result is, well, if you are going to hand off your liability to me, what am I protecting? What am I insuring? With contracts that can be abrogated or breached, an independent reviewer can say, you have to cover other things, and you have a lot of liability if things do not work out. The net result will be the independent reviewer will say, defensive medicine, we will pay for anything because they don't want to be sued. They don't want to be liable. Then they increase premiums because whatever the liability is, they don't know how much it is or how expensive it is, and they will increase their rates. They don't plan on losing money and they don't want to go out of business, so there will be a lot of defensive medicine and they will charge extra premiums to the employer to make sure they don't go out of business. So the cost estimates, some people have said, are 4- or 5-percent per year increases on top of the already 13- or 20-percent increases built in, in increased costs for health care. They are probably much more. The costs of the bill could increase the cost of health care by 8 to 10 percent. We should know that. Again, we should do no harm. We should not pass legislation that will not work, that will do harm. It will do harm if you increase the number of uninsured. It will do harm if you price insurance out of the realm of affordability for millions of Americans. I am afraid that is what we are doing. There is one other issue that has not received maybe enough attention. Senator Collins and Senator Nelson raised that. That is the issue of scope: Should the Federal Government be taking over regulating that the States do? I am concerned about the language. It was modified modestly. It said the States have to be substantially compliant with these new Federal regulations. That language goes so far that really the States are going to have to adopt almost identical language to what we have put in this bill. The net result? If they don't, HCFA takes over--the Health Care Financing Administration. A couple of points: HCFA can't do it, HHS can't do it, the Department of Labor cannot do it. I want to make that point one final time. We are ready to pass this mandate and say to the States: If you don't do it, Federal Government, you do it. If the States don't, you do it. The Federal Government does not have the wherewithal to do it. Every State has hundreds of personnel involved in enforcing insurance regulation, and we are saying, you do it or we are going to take over. That is one of the largest unfunded mandates ever proposed by Congress. I am a little mad at myself for not being able to offer a point of order that this is an unfunded mandate. One of the reasons I cannot is that it was not reported out of committee. The unfunded mandates bill, the Congressional Accountability Act, says we have a report that comes out with the committee report and we can raise a point of order if you have an unfunded mandate on cities, counties, States, and the private sector. We cannot do that because we don't have a committee report because the bill was not reported out of committee. It was a year ago, but it is not now. My point is this is an enormous unfunded mandate on counties and cities and States. We are mandating this on all those employees, saying: We know best, the Federal Government knows best. States, we know you have an emergency room procedure, but we are going to dictate a more expensive one. I could go all the way down the list. My point is, even though we have done it, we cannot enforce it. You have non-enforceable provisions. There is no protection there. It may make us feel better, we may tell the American people we have provided the protections, but we cannot enforce it because the Federal Government cannot and should not take over State regulation of insurance. That is a mistake. I am afraid the combination of the two, the expanded liability--you can sue employers and the providers for unlimited damages in State and/ or Federal court for economic and noneconomic, unlimited in both cases. You can jury shop. You can find a place that would work. That is going to scare employers. Employers beware, the bill we are passing tonight makes you liable. You are going to have to pay a lot more in health care costs as a result of the bill we are passing tonight. Again, my compliments to the sponsors. They worked hard. The opponents worked hard. We will pass a bill tonight. But I hope it will be improved dramatically in conference so we will have a bill that is affordable, will not scare people away from insurance, will not increase the number of uninsured by millions. My prediction is this bill would increase the number of uninsured by millions and cost billions and billions of dollars. I hope that is not the case. I hope it is fixed and improved in conference and we will have a bill that President Bush can sign and become law and of which we will all be proud. Unfortunately, I think the underlying bill does not meet that test. With great reluctance I am going to be voting no on the underlying McCain-Kennedy-Edwards bill. I urge my colleagues to do likewise.

Mr. NICKLES. I announce that the Senator from Colorado (Mr. Campbell), the Senator from New Mexico (Mr. Domenici), the Senator from Texas (Mr. Gramm), the Senator from Alaska (Mr. Murkowski), the Senator from Mississippi (Mr. Lott) are necessarily absent.

Mr. NICKLES

Mr. NICKLES. I just tell the majority leader, we have not had a chance to run that by our colleagues. We have been shopping amendments, and the Senator from New Hampshire is to be congratulated that he has reduced the number of amendments substantially. We will need a few minutes at least to run this by the rest of our colleagues to make sure they know that if they have additional amendments to be considered, they need to get them on our list. If the majority leader will please withhold the request, we will shop it around.

Mr. NICKLES. I announce that the Senator from New Mexico (Mr. Domenici) and the Senator from Alaska (Mr. Murkowski) are necessarily absent.

Mr. NICKLES. I announce that the Senator from New Mexico (Mr. Domenici) and the Senator from Alaska (Mr. Murkowski) are necessarily absent.

Mr. NICKLES. I announce that the Senator from New Mexico (Mr. Domenici) and the Senator from Alaska (Mr. Murkowski) are necessarily absent.

Mr. NICKLES. I announce that the Senator from New Mexico (Mr. Domenici) and the Senator from Alaska (Mr. Murkowski) are necessarily absent.

Mr. NICKLES. I yield back my time.

Mr. NICKLES. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. NICKLES. Reserving the right to object.

Mr. NICKLES. Mr. President, I neglected to do this earlier and I meant to do it. I wanted to compliment Senator Gregg and Senator Kennedy for their leadership on this bill and their leadership on the education bill because it is kind of unusual that we have two committee chairmen and two people who are responsible for moving two major pieces of legislation consecutively. So they combined and spent about the last 2 months on the floor. That is not easy. I have always enjoyed debating and working with my friend and colleague from Massachusetts, and we are good friends. Occasionally, we agree. We have had two or three amendments, and we have had great oratory and, occasionally, we still agree on amendments. I appreciate that. We ended up coming together basically on covering union plans today. We got very close to an agreement. We will make that, I guess, in the managers' amendment. I appreciate that. I appreciate his willingness to accept this amendment. I will be very frank and say we don't know how much this is going to cost, but frankly, we don't know how much this costs in the private sector. There is a point to be made. The Senator said maybe we can accept it, and possibly it can work out to give patient protections, but I don't know about the right to sue. That might be pretty expensive. We are doing that on the private sector as well. We do not know how much that is going to cost, but it will be very expensive. Federal employees have a lot of protections, but they do not have near the protections we are getting ready to mandate on the private sector. Medicare has some patient protections. They do not have near the patient protections that we will be mandating on the private sector. They do not have an appeals process that is as expedited as this. I do not have a clue whether Medicare can comply with this language. It takes, in many cases, hundreds of days to get an appeal completed in Medicare. We have a very expedited appeals process in this bill. I happen to support that appeals process, and it would be good if Medicare could have a very concise, complete, final appeals process and one, hopefully, that would be binding. We improved the appeals process in this bill today with the Thompson amendment, and I compliment Senator Thompson for his leadership on that bill. I would be very troubled to go back to my State of Oklahoma and have a town meeting and tell employers they have to do this, this, this, and this; they have to have this in their plans; if things do not work out, they might be sued for unlimited damages, and have one of them raise their hand and say, ``Did you do that for Federal plans,'' and say, ``No, we didn't. We just did it for you. We think maybe we are not going to do it for ourselves.'' We have control over Federal plans. Those are the ones over which we really have control. I would find it very troublesome. I was one of the principal sponsors of the Congressional Accountability Act a few years ago who said Congress should live under the rules like everybody else. I remember some of my colleagues saying: Don't do that; if we make the Capitol comply with OSHA, it is going to be very expensive. If you walk into the basement of the Capitol today, you will find a lot of electrical wires that would not pass any OSHA inspection. It bothers me to think we are going to mandate on every private sector health care plan: You have to have this, this, this, and this, all very well-intentioned, I might add, but some of which will be pretty expensive. I would find it troubling if we mandate that on the private sector and say: Oops, we forgot to do it for Federal employees. That is the purpose of my amendment. I appreciate the willingness of my colleague from Massachusetts to accept the amendment.

Mr. NICKLES. I will think about that. How much time remains?

Mr. NICKLES. Mr. President, this amendment expands the coverage of the bill basically to all Americans. I have heard countless sponsors of the bill say we should cover everybody who needs basic protections. I have heard it time and time again. I have heard it on national TV shows, Sunday morning shows: We should make this apply to everybody. Some argue, shouldn't these protections be reserved to the States because they have historically done it? But the legislation before us says, no, the Federal Government will do it; we will do it for all private plans. Usually they don't even say all private plans. They usually say for all plans. The truth is, the legislation we have is a mandate on the private sector, but we have exempted the public sector. It is amazing to me, almost hypocritical--I don't want to use that word, impugning anybody's motives--but it bothers me to think we are so smart and wise that we are going to mandate these patient protections on every plan in America, supersede State protections already present, and we don't give them to a group of employees over whom we really have control. We do have control over the Federal employees health care plan. We can write that plan. We have control. We write the checks. Federal employees pay about a fourth, but the Federal Government pays three-fourths. We have direct control over Federal employee plans, but they are not covered by this bill. Federal employees in the State of Delaware or California or Oklahoma usually get their health care from Blue Cross or Aetna or whomever. They get it just like any other employee, but they are Federal employees. They don't get the patient protections under this bill. They don't have the appeals process under this bill. They don't have the legal recourse that is under this bill. They don't have the patient protections that are dictated in this bill. All other private sector employees will. Does that really make sense? Is that equitable? I am not sure. My friend and colleague Senator Kennedy just talked about clinical trials, and maybe they help somebody. I looked at the language for Federal employees. We are getting ready to mandate a very expensive provision, probably fairly popular, that says under the McCain-Kennedy bill we pay for all trials, for all purposes, if it has any Federal connection whatsoever. Federal employees aren't covered by the clinical trials section of this bill. They may be under individual plans, but they are not by mandate, by patient protections. Some plans may offer them; some plans may not. There is not a dictate. We are getting ready to mandate a very expensive comprehensive list of clinical trials for every private sector plan in America, but not for Federal employees. I find that interesting. We are getting ready to mandate an emergency room provision that includes prudent layperson, poststabilization, and ambulance care provisions. I mention this for the Senator from Delaware because I believe the State of Delaware is passing a patient protection program but they only cover prudent layperson. That is what Federal employees do. Federal employees don't have poststabilization and ambulance. That means our staffs, our employees, don't have the same patient protections that we are getting ready to mandate on every other health care plan in America. I find that to be very inconsistent. I could go on and on and on. The OB/GYN provision: Federal employees get to have one visit. This is dictated or mandated--one visit to an OB/GYN. Under the bill we have before us, it basically allows the OB/ GYN to authorize any OB/GYN care, without any other authorization requirements. That sounds unlimited to me, a much more expensive provision than what we have for Federal employees. It is almost the case all the way through the bill. For pediatricians under the McCain-Kennedy bill, we allow parents to designate a pediatrician for their children. That sounds fine. I am sure if we voted on that, it would be unanimous. That is not a dictate for Federal employees. Some plans may have it; some plans may not. My point is, Federal employees don't have these patient protections. We are getting ready to mandate something on the private sector that we forgot to do for the public sector. It is interesting because I know President Clinton made a big deal out of the fact, saying: Congress is not acting. I am going to have an Executive order and make Federal employees have these patient protections. I will do it by Executive order. Well, he didn't do as much as we are getting ready to do on the private sector. That is my point. I expect that what we are getting ready to do, that the patient protections we are passing, the examples I have listed--and that is not the total--are much more expansive than what has already been done. The same thing would apply for Medicare. If all these patient protections that have been espoused are so important, shouldn't we give those to senior citizens? Shouldn't senior citizens have the same expedited review process, internal/external appeal process, as we are going to mandate on all the private sector? I would think so. We all love our senior citizens, our moms and dads and grandparents. Surely we should give them the same protections we are getting ready to mandate. They don't have it. They can spend days in an appeals process and never get out of the appeals process. What about Indian Health Service? What about our veterans? Our veterans aren't covered by this bill. They don't have the same patient protections. They don't have the same expedited review process. Shouldn't they be covered? Granted, this amendment could cost a lot of money, but this bill will cost a lot of money. I have heard a lot of people say this bill only costs a Big Mac a month, it is not all that expensive, it is only just a little bit. I disagree with that. I am also struck by the fact that we are quite willing to mandate this on every city, every State, every private employer, but we don't mandate it on Federal employees. We don't do it on Federal programs. We do it on State programs. We do it on city programs. We don't have any objection to dictating how other governments have to do it. We will tell them how to do it. We just don't think the Federal Government should do it. We don't think the programs under Federal control should do it. I find that very inconsistent. If this is that great of a program, and I have some reservations. I think this bill goes too far. I think we are superseding State regulations, and I have stated that. I lost on that amendment. Maybe that amendment can be fixed in conference, but for crying out loud, we should be consistent. I have heard proponents say time and time again that this bill is not at all expensive. If so, shouldn't it apply to Federal employees? If we are going to mandate Blue Cross/Blue Shield in Virginia to provide this for all private sector plans, union plans, nonunion plans, and they also have governmental plans--the same Blue Cross--shouldn't they apply to governmental plans? They have to do it for Virginia. Shouldn't they have to do it for the Federal Government? That is my point. There is some inconsistency here. If these are such great protections and they are not that expensive, we should make sure they apply to our employees as well. Senator Kennedy mentioned clinical trials, as if that was a mandate. Some of the Federal plans cover clinical trials. Not all do. We are getting ready to mandate them for every plan in the country. Shouldn't we have it for Federal employees as well--maybe for the sons and daughters of the staff members working here? Shouldn't they have access to those just as the private sector will now have access to them? The appeals process: This is one of the real keys. There have been hours of debate on the floor saying that on appeals every individual should have rights of internal review, and then the external review should be done by an independent entity not controlled by the employer. Guess what Federal employees have? If they are denied care, they can appeal. But to whom? They appeal to the Office of Personnel Management--to their employer. The employer might subcontract it, but basically it is the employer, the Federal Government. It is not totally independent when the Federal Government might be making that decision. Shouldn't we give Federal employees that same independent external review? My amendment would make this bill applying to the public sector include Federal employees, Medicare, Medicaid, Indian health, veterans, and civil service. I think it would help show that if we are going to provide these protections for the private sector and, frankly, mandate them, they should apply to the public sector as well. I reserve the remainder of my time.

Mr. NICKLES. I announce that the Senator from New Mexico (Mr. Domenici) and the Senator from Alaska (Mr. Murkowski) are necessarily absent.

Mr. NICKLES. This amendment is vitally important for small business. This bill, the underlying bill, says employers beware, we are coming after you because we do not exempt employers. Interestingly enough, we exempt Federal employees, we exempt Medicare, we exempt government plans, but we do not exempt private plans. Anybody who has a private plan, employers beware because they can sue you and they can sue the plan. Oh, I know we came up with a little cover, and maybe you can put the liability under the form of a designated decisionmaker, and they can assume it. But guess what? They are going to charge the employer for every dime they think it is going to cost. And my guess is, the designated decisionmaker will want to have enough cover so they don't go bankrupt, so they are going to charge a little extra to make sure they have enough to protect them from the liability and the costs that are associated with this plan. The cost of health care is exploding. Health care costs went up 12.3 percent nationally last year. They are supposed to go up more than that this year. That is not for small businesses. The cost of health care for small business is 20, 21, 22 percent, and that is without the cost of this bill. CBO estimates the cost of this bill is 4.2 percent. But if you assume there is going to be a whole lot of defensive medicine, you can probably double that figure. And with the liability, you are probably looking at another 9 or 10 percent on top of the 20 percent for small business. Those are not figures I am just grabbing out of the air, I think they are the reality. My friend and colleague from Colorado, Senator Allard, is saying: Wait a minute. Let's exempt small employers, those people struggling to buy health care for the first time. Let's protect them and make sure they won't be held to the liability portions. Federal employees are not able to sue the Federal Government. Why should we say: Oh, yes, you can have a field day on small employers. The only way to purely protect them--to surely protect them--is to adopt the Allard amendment. I urge my colleagues to vote in support of the Allard amendment to protect small businesses.

Mr. NICKLES. Mr. President, I send an amendment to the desk and ask for its immediate consideration.

Mr. NICKLES. I announce that the Senator from New Mexico (Mr. Domenici) and the Senator from Alaska (Mr. Murkowski) are necessarily absent.

Mr. NICKLES. Mr. President, I thank my colleague. He mentioned the fact that the Federal Government pays three-fourths of the cost of health care for Federal employees. That is correct. With some companies it is more and some companies it is less. The Federal Government pays 100 percent of my salary. The Senator from Massachusetts might want the Federal Government to pay 100 percent of the salaries in Massachusetts; I don't know. I appreciate his willingness to accept the amendment. I am not going to ask for a recorded vote.

Mr. NICKLES. I announce that the Senator from Alaska (Mr. Murkowski) and the Senator from New Mexico (Mr. Domenici) are necessarily absent.

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

Mr. NICKLES. Mr. President, I ask unanimous consent the yeas and nays be vitiated on the amendment and they be ordered on the modification.