Don Nickles

Mr. NICKLES

Mr. NICKLES. Mr. President, I object.

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. Reserving the right to object.

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

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

Mr. NICKLES. A couple comments. The average length of collective bargaining agreements: 66 percent of collective bargaining agreements with over 1,000 employees--that is over 1,200 collective bargaining agreements--the average length is 3 to 5 years; 28 percent are 5 to 6 years; an additional 7 percent are 6 to 8 years. My point is these things last for years. People renegotiate their health care plan. Federal employees do this every year. Almost everybody does it every year. So for the health care plan for everybody else in the private sector, you have to comply by next October, 12 months from now, maybe even January of next year; you will have to comply. But if you are in a collective bargaining plan, you wait until the plan terminates. We asked the Department of Labor, does the plan terminate if renegotiated and rolled over? Not necessarily. In collective bargaining, you are talking about 30 million Americans who will not receive the so-called benefits under this bill. That is a fact. Another fact: My colleague said we supported an amendment by Senator Collins that said let the States use their State protections. I strongly agree with that. That is a reason I will vote against the underlying bill, because I don't think we should preempt States as the Kennedy-McCain bill does. I believe in that strongly. I know my friends and colleague from Massachusetts have a different belief. We could debate that for hours. My point is, if the patient protections are so good--and I heard many sponsors say we should cover all Americans--the bill does not cover all Americans. As a result of the language we have been debating, collectively bargaining agreements are exempt for years. The bill we are debating now does not cover public plans; it does not cover Medicaid; it does not cover Medicare; it does not cover public employees; it does not cover the military; it does not cover veterans; it does not cover Federal employees. We have control over Federal employees. If the patient protections are so good for the private sector, why not for collective bargaining plans as well?

Mr. NICKLES. The Senator is correct. Federal employees are not covered by the underlying McCain-Kennedy bill.

Mr. NICKLES. I ask unanimous consent for 2 additional minutes.

Mr. NICKLES. Madam President, I ask for the yeas and nays.

Mr. NICKLES. Mr. President, I send an amendment to the desk.

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

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

Mr. NICKLES. Mr. President, I just appreciate my friend and colleague from Texas. I will be very brief. I understand the Senator from Pennsylvania wants to come and speak on his amendment. I would just like to make a couple general comments. Just for the information of our colleagues, I believe at--6:30 we will have three votes. So people should be cognizant of the fact we are going to have two or three votes--three votes, I believe--at around 6:30. One, I wish to compliment the Senator from Wyoming, Mr. Enzi, for his enrollee choice proposal. I think it is an outstanding proposal. I urge my colleagues to be in favor of it. I would also like to make a couple comments dealing with the designated decision maker. Some people are acting like this is a grand compromise, that this is going to save employers: Employers are going to be exempt now because we are going to give this decision to a third party. When I ran a company, Nickles Machine Corporation, we had a third party administrator. They handled all the administrative claims. They did a decent job. So I didn't have to do it, our company didn't have to do it. We hired them to pay the benefits, to harass the providers, to make sure that benefits were paid or weren't paid. They paid the right benefits, didn't pay the right benefits. They were hired guns to run the plan, to make the decisions, to negotiate with the hospitals, negotiate with the doctors--all those kinds of things. That is what third party administrators do. Now we are talking about saying: They have that responsibility, and now they have liability, too. That's what this amendment does. Some people said: It is going to hold employers harmless. It will not. I will tell you, the net result is third party administrators are going to say: What am I liable for? Under the McCain-Kennedy-Edwards proposal, they are liable for anything and everything. They are liable for unlimited economic damages. They are liable for unlimited noneconomic damages, pain and suffering. They are liable for punitive damages--up to a cap of $5 million--in Federal courts. They are liable for unlimited economic and noneconomic damages in State courts. It has never been said that State court limitations for doctors and so on would apply to the plans and/or to the States. So now we are saying to a third-party administrator, we want you to assume the liability but the extent of the liability is not defined. It is unlimited. One good lawsuit and they are going to have to write a great big check. What are they going to do? They are going to have to charge a lot of money. They are going to have to charge as much money as they think this will cost, and they are going to guess because they don't know. It is kind of like playing Russian roulette. They might be lucky and not have any suits so whatever they charge will be profit. Conversely, if there is one bad suit and they are found liable, they are assuming this liability and they could go bankrupt. So they are going to be trying to err on the high side. The net result, for everybody who thinks this is going to exonerate employers and all they have to do is designate somebody else to accept their liability, I tell my colleagues, as an employer, that is not going to happen. An employer may say: You handle this, third party; you assume our liability. And that third party is going to say: OK, but I am going to charge you for it, and I am going to charge you more than enough to make sure that we don't go bankrupt in the process. Maybe they can buy insurance themselves or maybe they can't. My guess is we are going to find out. Some people have said: CBO says that the liability provision under this bill is .8 percent. I would be willing to bet anybody the premiums that are going to come out as a result of this liability in third party administrators assuming liability is going to be a lot more than .8 percent. My guess is you are going to be looking at premium increases of 4 and 5 percent just to cover the liability before someone will take this because the liability is not defined. It is unlimited, unlimited noneconomic, unlimited economic. The contract coverage, well, you may have to cover just about anything. We never did tighten up medical necessity so if somebody says maybe it should be covered, it should be covered. So you are not even confined to the contract. We don't have contracts. This third party administrator, which is usually charged with enforcing a contract, does not have a defined contract and has unlimited liability. And we tell them they have to pay for everything. They are going to end up charging the employer more than they think it would cost so they don't go bankrupt. So we are going to find out how much this costs. My point is, I want people to be aware of the fact that just having a designated decision maker with no limitations on liability, with no limitations on covering what is in the contract can be enormously expensive. One other fact that people haven't considered. If you are a designated decision maker and you are making these decisions on what to cover and not to cover and you are liable if things don't work out, you are hardly ever going to say no. You will hardly ever say no because if you say no, you might be sued. Therefore, you are going to have more defensive medicine than you have ever had. Whereas before they were charged with the responsibility of enforcing a defined contract--this is covered; this is not covered; being more of an administrator of a contract and a plan--they are now going to be faced with liability. And they can't afford the ultimate price of being hit with a heavy lawsuit. So when the claim comes forward, if it is even close, they are going to pay it. Pay it. Pay it. They don't want to take a risk or a gamble that they can be sued for unlimited damages. So you will have enormous increases through increase of what I would call defensive protections so people don't have liability costs. And then you will have people guessing what the liability will be, and that will increase the cost to make sure that they have enough that they don't go bankrupt. The net result is that this designated decision maker that some people think is going to exonerate employers will show that this is a very expensive provision, and the cost of this bill, the cost of medicine, the cost of health care and, therefore, ultimately the number of uninsured will rise dramatically as a result of this bill and because of this provision. I urge my colleagues to vote no on the underlying amendment that deals with this provision. I want to mention--I hope it gets fixed--I think it is outrageous we could exempt union plans from this provision. I hope it is fixed. I yield the floor. Amendment No. 843

Mr. NICKLES. Mr. President, I will be brief. I hope this amendment can be agreed to. In the underlying bill on page 173, it has ``effective dates'' for implementation of the legislation. The effective date for everybody, all plans in America, is by October 1, 2002. So that is when all the plans in America will have to comply with this bill. They will have to have the patient protections in line, the appeals process, the liability sections--all are mandated to be effective by October 1 next year. That is about 14 months from now. If you continue reading on page 173, you find out that the plans that are covered by collective bargaining agreements are exempt. They are exempt from the legislation. It says they ``shall not apply to plan years beginning before the later of--(A) the date on which the last collective bargaining agreements relating to the plan terminates.'' Some of these plans may not terminate for months. Some may not terminate for years. As a matter of fact, looking at a couple of examples, one is the Plumbers and Pipefitters Union, with 2,200 employees, has a 128-month contract. It doesn't expire until 2010. The International Union of Electric Workers, with 1,800 employees, has a 148-month contract that doesn't expire until the year 2007. I could go on and on. There are lots of examples. The point is that there are about 30 million lives that would be exempt from this bill for years. If we are going to make it apply to everybody else in the private sector, I think we should make it apply for collective bargaining plans as well. There is also something else that is troubling to me. It says it would not apply until the plan terminates, and then the language says if they adopt these patient protections, that still doesn't count as a plan termination, a collective bargaining agreement termination. So, in effect, even though a plan adopts it, it hasn't terminated and, therefore, it is still not covered or enforced by the terms of this bill. I find that troubling. I also am troubled by the fact that when it says ``relating to the plan terminates,'' a lot of plans or contracts don't terminate. They are renegotiated. So they never get to termination. They are actually renegotiated and extended. That is well and good. That means there is peace and harmony and no labor shortages and so on. My point is that it is very important for us not to be exempting 30 million workers who happen to be in collective bargaining agreements from the protections in these plans. If we are going to give these protections to 170 million workers in the private sector, in that 170 million are included 30 million who happen to be members of a collective bargaining agreement. They should have the patient protections that Congress is in the process of determining which are so vital for everybody else in the private sector. They should not be exempt because they happen to be members of the collective bargaining unit. We are asking every other plan in America to comply by October 1. Why would we not ask members of collective bargaining agreements to also comply? Why should we have them have different expiration dates, some of which might be 5, 10 years, or even longer? Maybe this is an oversight, a mistake from a previous drafting; but, clearly, if these are such valued protections that we want to extend them to the private sector, we should certainly extend them to members of collective bargaining agreements as well. I urge my colleagues to support this amendment.

Mr. NICKLES. Madam President, I appreciate my colleague's statement, but I totally disagree. Some of us have argued for contract sanctity, but we haven't been totally successful, I might add. Almost all those contracts would begin, if not by October 1, certainly by January 1 of the year 2003. So maybe there are a few more months. But under collective bargaining agreements, if you read the language on page 174, it is not until the contract or the agreement terminates. And then the second part of it says that even if they comply, it shall not count as a termination. You could have collective bargaining agreements exempt under this provision indefinitely for 12 years. They may never terminate the agreement. They may continue rolling it over, so it is never terminated. It might be readjusted; it might be renegotiated; but it is never terminated. Are we going to take 30 million Americans and say: You are not covered by these patient protections? Some of these contracts will last 10 years, 15 years. The average contract I was looking at had a schedule of 5 to 6 years. One I mentioned does not expire until the year 2010. If they renegotiate it between now and next year, the duration of the contract will be exempt. We are telling everybody else in the private sector: Get your act in order, and by the end of next year you have to have these new patient protections, oh, unless you are a member of a collective bargaining agreement. This is not the only exemption we found. We did not cover Federal employees. Maybe I will have an amendment dealing with Federal employees. All these great patient protections do not apply to Federal employees. They do not apply to Medicare. They do not apply to Indians in our hospitals. They do not apply to veterans. These are patient protections that are so important for the country, but we do not give them to publicly funded plans; we only do it for private sector plans. What about unfunded mandates? What about union plans, collective bargaining? We leave them out. We leave out Government plans; we leave out union plans; but it is fine we are going to hit the private sector. Unions, this does not apply for the duration of your collective bargaining agreement, and if it does not terminate, you are never covered. I think that is a serious mistake, so I urge my colleagues to support the amendment. I thank my friend and colleague from Nevada for his support of the amendment as well.

Mr. NICKLES. I yield to the Senator from Nevada such time as he desires.

Mr. NICKLES. I thank my friend, Senator Brownback. I am the third Senator squeezed in front of him, and he has shown great patience. I will be brief. My colleague from Massachusetts said President Clinton gave these protections to Federal employees because he couldn't wait for the Republican Congress to pass them. The facts are, Federal employees do not have patient protections that are nearly as expensive, as aggressive, as intrusive as we are getting ready to impose on the rest of the private sector. I may have an amendment tomorrow to address that so we can save that for tomorrow's debate. The patient protection that President Clinton passed is not nearly this big. Federal employees cannot sue their employer. When they have an appeal process, they do not go to an independent party; they go to OPM, Office of Personnel Management; they go to their employer. We do not do that in this bill. Maybe we will debate that tomorrow. Finally, he said in collective bargaining plans, they have to be covered when the plan terminates. My point is the plan can be renegotiated. You are talking years. Sixty-six percent of collective bargaining plans are 3 to 5 years. Then it says if they go ahead and implement it, it is not counted as a plan termination; therefore, it is not effective. Let's give union members the same protections we give all other private sector employees. I thank my colleagues and my colleague from Massachusetts and particularly my colleague from Kansas for his patience in allowing us to go forward.

Mr. NICKLES. I yield myself 5 minutes off the leader time.

Mr. NICKLES

Mr. NICKLES. Madam President, I will make a couple of comments. I compliment my colleagues, Senator Collins and Senator Nelson, for offering an amendment which does recognize State roles in enforcement of insurance contracts. Unfortunately, I don't believe that is the case under the Breaux-Jeffords amendment. We will have to make a decision: Do we believe States should regulate insurance? Or should the Federal Government? Do we believe one size fits all? I understand there is a little change and there may be some improvement over the underlying bill, but the improvement is very small. The underlying bill, the McCain-Kennedy-Edwards bill, has language in it that says all these protections that we are getting ready to tell the States they have to do, the States have to have ``substantially equivalent'' and ``as effective as'' the standards we are getting ready to pass in the bill. I think the Senator from Maine said there are 1,100 State protections--State protections dealing with ER, State protections dealing with OB/GYN, State protections dealing with clinical trials, and so on. Almost none of the States has identical protections as what we are getting ready to mandate. Unfortunately, the language that now is being talked about may be an improvement. Instead of ``substantially equivalent,'' it says ``substantially compliant'' with the Federal standard. ``Substantially compliant'' was written under the SCHIP program, and that was, if they did this, they would get a pot of money. That is a little different scenario than coming up with: States, you must do this or we will regulate your State insurance--even though the States have always done it. Historically, the Federal Government has never regulated State insurance. Under the McCain-Kennedy bill or now under the Breaux-Jeffords substitute, you are still going to have the Federal Government telling the States, comply with what we are telling you substantially or else we will supersede your regulation and the Health Care Finance Administration is going to do it. There are a couple of problems with that. HFCA can't do it. Maybe nobody cares. Maybe we should just go ahead and pass this. We might just pass it and laugh at it because I absolutely know, with certainty, HFCA can't do it. The Secretary of HHS, Secretary Thompson, basically made that statement before the Finance Committee on June 19. HFCA is already overloaded. They haven't even enforced the Medicare rules we passed years ago. They are not even enforcing HIPAA that we passed several years ago. Under HIPAA that is the Kennedy-Kassebaum bill that deals with portability--there are five States that have not complied. We have testimony that HFCA is not enforcing that. They are supposed to. We passed a couple of other bills. Guess what. HFCA is still not enforcing those. There is one dealing with mental parity. They have never enforced it. They never have. They are well aware they are not enforcing it; that they are not compliant. We have records of that. I will submit a bunch of these for the Record tomorrow. HFCA cannot do it. Yet what are we doing? We are getting ready to say if it is not substantially compliant with the new Federal regulations, HCFA is going to come running at the charge and enforce these regulations, which they were not doing. The National Association of Insurance Commissioners basically says the same thing. These are State insurance commissioners who work on this issue full time. They are not part time. I should not say we are part-time Senators. As Senators, we are working part time on regulating insurance and we are getting ready to mandate a lot of things to the States they will not be able to do, or we are getting ready to say States do it the way we tell you to do it or the Federal Government is going to come charging in and take over. I want everyone to know that is what we are doing and even ``substantially compliant'' is going to have a State takeover. Here is one of their paragraphs. They say: Members of the National Association of Insurance Commissioners are also concerned about enforcement. As you know -- And this letter is written to Senator Collins-- as a former State regulator, if there is no enforcement, then there is no protection. States have developed the infrastructure necessary to receive and process consumer complaints in a timely fashion and ensure that insurers comply with the law. The Federal Government does not have this capability and the proposals do not provide any resources to Federal agencies to develop such capability. It is taking the Health Care Finance Administration years to develop the infrastructure required to enforce the health insurance portability and accountability act, HIPAA, which included only 6 basic provisions that most States already had enacted. The proposed patient protection bills are far more complicated than HIPAA, and will require considerable oversight. HIPAA had a few patient protections that almost all States already had, a few States still do not have, and HFCA has yet to really enforce those protections. Now we are going to give dozens of protections and have HFCA determine whether or not the States are substantially compliant with our new protections. I will give an example. In the State of Delaware, they are in the process of passing a patient protection bill. They have an emergency room provision. In the emergency room provision that the State of Delaware is passing, they don't have poststabilization care included in their provision. We do, under this bill. This bill requires ambulance coverage. Guess what. The State of Delaware did not include ambulance, for whatever reason. So we are going to tell the State of Delaware, a bureaucrat at HFCA is going to say: State of Delaware, you did not do it good enough. Your legislature is going to have to go back, pass a bill, have the Governor sign it, have some expansion to make sure that your ER provision is as good as the one we are getting ready to mandate. I could go on and on. There is an OB/GYN patient protection that basically has unlimited access to OB/GYN and gynecologists. Great. Guess what. The protection we have given to beneficiaries, patients in the Federal Employees Health Benefits Plan, gives one visit. It is not nearly as aggressive. As a matter of fact, that points out something that maybe a lot of people have missed about all these patient protections. I have heard countless people say we want these protections applied to all Americans. I will inform my colleagues, we did not apply them to Federal employees. We do not provide these protections we are getting ready to mandate on every private sector plan in America. We forgot to include Federal employees. We forgot to include Medicare beneficiaries. We forgot to include low-income people such as those on Medicaid. We forgot to include people who work at the Department of Defense. We forgot to include veterans. We forgot to include Indians, who are under Indian Health Care. All these patient protections--everybody said we want those to apply to everybody. They apply to the private sector, but we did not include the public sector. Did we just sort of forget that, or are we afraid maybe that would cost too much money? We are going to give all these great patient protections and basically have a Federal takeover of State-regulated insurance unless the States are substantially compliant with it or, in other words, States, you do as we tell you or the Federal Government is going to take charge. Can Federal employees sue the Federal Government? The answer is no. Can a military officer who happens to be serving overseas, or maybe in the United States, and they have something go wrong and they have poor care, can they sue the Federal Government? The answer is no. Are they entitled to the patient protections that are being mandated on every private sector plan in America? The answer is no. So there are some things that are really wrong. I think one of the things that is wrong is saying we are going to have the one-size-fits- all Federal Government supersede the States. States, you are substantially compliant with what we tell you to do or else we are going to take over. I have had the pleasure of chairing the conference last year, where we negotiated patient protections. I negotiated them with my friend and colleague from Massachusetts and other Democrats. We came up with a basic agreement on most of the patient protections. But we never agreed whether or not they should supersede the patient protection laws that are in the States. I would never agree with that and I still will not agree with it. For whatever reason, I fail to see, when you have 44 States, as the Senator from Maine has shown, that have ER protections in their States--I fail to see that we can write an emergency room provision that is so much better than every State, that we know best what should be in Maine or Oklahoma or the State of Washington or in Massachusetts, what should be in the ER provision in those States. I really do not like the idea of having a bureaucrat at HFCA determining whether or not those laws are substantially compliant and if that bureaucrat determines they are not substantially compliant, then they have to rewrite their law. There are legislators who were elected in the various States. The insurance commissioners work with these laws and the application of those laws and the enforcement of the laws day in and day out. I doubt we have the infinite wisdom, when we are coming up with mandated provisions, to know we should supersede all those States. I do not doubt there are a lot of patient protections in the States that do a much better job than what we have done on the Federal level. I don't doubt there are State protections that are not as aggressive and/or not as expensive as that with which we are getting ready to mandate that they be in substantial compliance. Again, I urge my colleagues to support the Nelson-Collins amendment. I think it is an excellent amendment. It is one that has been well thought out. It is one that is supported by two of our colleagues who had enormous experience in the insurance field. Both Senator Collins and Senator Nelson worked as insurance commissioners in their States. They worked at those jobs for years. They know what they are talking about. They know the Federal Government cannot enforce it. They know the Federal Government should not regulate insurance within the States. Unfortunately, that is what we are getting ready to do. So this is a most important amendment, and I urge my colleagues to use a little common sense. If we end up passing this amendment and, heaven forbid, should it become law, I will just make a little prediction. Two years from now we will be back here saying you know what, the States are not in compliance. They were not substantially compliant, but HFCA could not tell them that. Or if HCFA told them that, they said they still couldn't be in compliance and so you have a lot of States that are theoretically not in compliance. But the Federal Government couldn't really regulate it anyway. So did they get any additional protection? No. They have a verbal assurance: Here is a bill; you are supposed to have this protection. But it is not regulated by the State and it is not enforced by the Federal Government because the Federal Government could not do it. Tommy Thompson, Secretary of HHS, and HHS enforcement, they have thousands of employees. They spend billions of dollars and they still can't do it. They still can't do it. They couldn't do it if we gave it to them. I hope we don't give it to them. You didn't actually extend patient protection. What you give is kind of a false protection. It is not real. You have a whole lot of confusion. Oh, wait a minute. The State has been doing this for 40 or 50 years. Now the Federal Government is supposed to be doing it, and they can't do it. There is no real patient protection in the first place. Maybe it makes politicians feel good if we are telling the States to do this. I sure hope they do it. What is the remedy if they don't do it? The Federal Government is going to take over. That is not a very good remedy if the Federal Government can't do it, especially since the Federal Government should not do it. I want to again compliment my friends and colleagues, Senator Collins and Senator Nelson, for offering an outstanding amendment. I urge my colleagues to vote no, regrettably, on the Breaux-Jeffords amendment. I think ``substantially compliant'' may be a tad better than ``substantially equivalent,'' but not much. It is still a Federal takeover. It still has Federal enforcement. It still has HCFA making a determination whether or not you are substantially compliant, and that is not a good solution. I urge my colleagues to support the Collins-Nelson amendment. That would be a giant step, and one which I might mention that Governors around the Nation are going to wake up to. They have been asleep. But Governors around the Nation, Democrats and Republicans, who want to maintain State control and regulation over insurance are going to wake up to what we are doing one of these days and they are going to be coming up saying: What are you doing? Congress, you can't regulate insurance. You haven't been doing that. You don't know how to do it. What in the world do you think you are doing? We are going to hear from them. I would venture to say that Democratic as well as Republican Governors are going to be outraged should this provision invade the scope, preempting the State, and mandating to the States that the Federal Government knows best when it comes to patient protection--and not even giving real credibility to what the States have already done; not giving them a grandfather. They have already enacted legislation dealing with those particular patient protections. The Collins-Nelson amendment grandfathers States that have done patient protections. We should recognize what they are doing and give them credit for it--not try to supersede it with a Government- knows-best solution. I yield the floor.

Mr. NICKLES. I announce that the Senator from North Carolina. (Mr. Helms), is necessarily absent.

Mr. NICKLES. Madam President, I compliment my friend and colleague from Nebraska, Senator Nelson, for his expertise in this field. He and Senator Collins are probably more qualified in this field because they both worked in their respective States in their insurance departments, I think, as commissioners of insurance and they also have expertise in the field from years of experience. When Senator Nelson or Senator Collins talk about medical necessity, or being bound or exempt from contracts, they have a certain degree of expertise that the rest of us do not have. I remember visiting with Senator Nelson and he brought up the medical necessity and the fact this bill before the Senate unfortunately voids contracts. It goes so far as to even say you have to cover things that are excluded. Page 35 of the bill says: No coverage for excluded benefits. That sounds fine. But page 36 says: Except to the extent . . . In other words, you don't have to cover items excluded in contracts. Except to the extent somebody considers it medically necessary--and so on, even if specifically excluded in contracts. Part of the Nelson-Kyl amendment clears that up. On contract sanctity, I concur 100 percent. I mentioned a few things excluded under the CHAMPUS program for VA, specifically excluded in contracts under this bill someone might have to pay. They might even be sued if they do not provide a benefit specifically excluded in their contract. That sounds absurd but in reading the language, that could happen. The Nelson-Kyl amendment fixes this. Things excluded under CHAMPUS include: Acupuncture, exercise equipment, eyeglasses, contact lenses, hearing aids, hypnosis, massage therapy, physical therapy consisting of exercise programs, sexual dysfunction, smoking cessation, weight control or weight reduction programs. The point is, almost every medical health care plan says we will pay for this list of benefits; we will not pay for these benefits. Those benefits would be excluded. This bill says they will be excluded, but maybe they should be paid for anyway and they will be subject to review. And if the reviewer says it is needed, it should be paid. Part of Nelson-Kyl says no, we will strike the language that deals with ``except to the extent,'' allowing contracts to be contracts that would not cover excluded benefits. That is exactly what the Federal Government does. Many people want to model private health care after the Federal employees health care benefits. We have many different plans. They work. Employees are happy. Federal employees cannot sue their employer, and Federal employees have to be bound by the contract. If you look at the consumer bill of rights and responsibilities, in OPM's guidelines dealing with the Federal Employees Health Benefit Program, it says if someone wants to appeal, OPM seeks to determine whether the enrollee or family member is entitled to the services under the terms of the contract. It is bound by the contract. Blue Cross/Blue Shield, 2001, it says OPM will review your disputed claim requests and use the information it collects from you to decide whether our decision is correct. OPM will determine whether we correctly applied the terms of our contract when we denied your claim or request for service. OPM will send a final decision within 60 days. There are no other administrative appeals. Interesting to note, the Federal Employees Health Benefits Plan, they appeal to OPM, appeal through their employer. This is not an independent review entity. Again, OPM will make their determination based on the contract. The Senator from Nebraska and the Senator from Arizona say a contract should be a contract. We should adhere to the contract and have contract sanctity. We should have some definition, some certainty in the definition, and we even use the definition for Federal employees' fee-for-service plans as one option, as well as the rulemaking process that the Senator from Nebraska spoke about. I think there are too many people voting ``remote control,'' thinking, I will vote with Senator Kennedy or with Senator McCain on this issue. I hope they look at this amendment. Should you have contract sanctity? Should you look at the guidelines we use in the Federal Employees Health Benefits Plan to have some contract sanctity? It is obliterated by the underlying bill. I think so. This is an excellent amendment, an important amendment. If you want a bill that preserves some sanctity of contract, I think it is most important we pass this amendment. I urge my colleagues to vote in favor of the Nelson-Kyl amendment.

Mr. NICKLES

Mr. NICKLES. I ask unanimous consent to proceed for another 6 minutes.

Mr. NICKLES. Health club memberships, hearings aids or hearing aid exams, homemaker services, hypnosis, massage therapy, physical therapy consisting of general exercise programs, plastic and other surgical procedures primarily for cosmetic purposes, smoking cessation programs, and several others. My point is, here is a Government plan for veterans that has specifically excluded items that should not be covered. I will venture to say every private health care plan has excluded items as well. Under the bill we have before us, it says you don't have to cover excluded items except for--and then it opens the door. That, to me, says do not pay any attention to the contract. Contracts do not mean anything. What is the net result of that? If people who have contracts are not bound by the contracts, then the cost of providing health care is going to go way up. There is no real definitive way of knowing how much the coverage is going to cost because it is not defined coverage. There is nothing you can bank on. I compliment my friends and colleagues from Arizona and Nebraska for their leadership in putting this amendment together. This amendment is equally as important--maybe not quite as easy to understand but very much as important--for containing the cost of health care as anything we have considered so far. Are we going to allow people to have contracts? Are we going to live by those contracts? Or are we going to take the language in this bill and say: Contracts? We don't care. Are we going to violate what the President's Commission on Health Care said? They said you should not cover items that are excluded from contracts. Are we just going to ignore it as does the underlying McCain-Kennedy-Edwards bill? Are we going to have a medical necessity definition that is the same thing Federal employees have on their fee- for-service plans, which is a quality plan which most all of us are in and most all of us are happy with? Isn't that good enough? Can't we give some assurances that those are things that people can rely on? Again, I compliment my colleague from Nebraska, Senator Nelson, for his expertise. He brought this to my attention when I was discussing this legislation. He was exactly right. He said this has to be fixed. We are working to fix it. We can fix it. I urge my colleagues, let's not just be voting on remote control, on how some leaders tell us how to vote. Let's look at the language. Do you really want to have language that basically abrogates contracts, ignores contracts, no telling how much it can cost and also, incidentally, have liability? You could have, under the McCain-Kennedy bill, a situation where somebody doesn't provide a service that is contractually prohibited and they can be sued because some expert might determine it is medically necessary. This expert might be a acupuncture specialist and they might determine that what you need to solve your back problem is acupuncture and even though your contract, as VA's, says you do not have to cover it, you have to cover it because that is a solution and under the bill it says expert opinion. So maybe it should be covered. If you think that is a stretch, it is not a stretch. You can find experts to say almost anything in the medical field and sometimes in the legal field. My point is this bill undermines contracts in a way in which I think we should be very, very wary. We should not do this. My colleagues from Nebraska and Arizona have come up with a good fix, a good solution. I appreciate that the Senator from North Carolina said he is amenable to fixing this problem. The way to fix it is to pass the Kyl-Nelson amendment. I urge my colleagues to vote for this amendment tomorrow morning. I thank the indulgence of my colleagues I yield the floor, and ask unanimous consent the CHAMPVA list be printed in the Record.