Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2003

Madam Speaker, I am here tonight to talk about the medical malpractice insurance crisis which we face in New Jersey and in many States around the country. My concern is that the legislation, H.R. 5, which the Republican leadership intends to bring to the floor of the House of Representatives tomorrow, will not solve the problem in any way and in fact is another example of politics as usual where the Republican leadership, in this case with the support of the President, are bringing up a bill that they realize has no chance of passage. It may pass here and then it will go over to the other body and fail because it was not done on a bipartisan basis; it was not done in an effort to try to bring the parties together and put together something that would actually accomplish the purpose of bringing malpractice premiums down. Rather, it is sort of a bone to special interests.

In other words, it is something that is being put out so the Republicans can say and the Republican leadership can tell the doctor groups, the hospital groups, the HMOs, the drug companies, the medical device companies that somehow they are doing something to help them when in reality they are not because it is not a bill that will ultimately pass.

I want to talk a little bit about the crisis because it is real. In my home State of New Jersey, we have major problems with increasing malpractice premiums. Some of the doctors actually went out on strike about a month ago because of their concerns; and it continues to be a problem, particularly with certain specialty doctors. But in many cases, it is an across-the-board problem in New Jersey.

What is happening now with this Republican bill, H.R. 5, is it is essentially a one-size-fits-all approach that does not look at the actual underlying issue of health care and medical malpractice. It is really designed to put a cap on jury awards at $250,000, the theory being if you do not allow large jury awards, that will bring down the cost of malpractice insurance premiums. There is no evidence that is true.

The Republican leadership often cites the State of California as an example of where that kind of cap, a $250,000 cap, was put into place; but we know when the cap was put into place in California, premiums did not go down. The only time when premiums went down in California was when there was an initiative passed by the voters that actually addressed the cause and said that premiums could not rise a certain amount. That did accomplish bringing the premiums down because they were not allowed to increase significantly. But the $250,000 cap did not accomplish that.

There are many factors that contribute to the malpractice crisis in New Jersey and elsewhere. There is the changing face of health care in our Nation, namely an increase in high-risk procedures with inherently bad outcomes. There are also the recent problems we have seen in the health care market, namely a shift to managed care, to HMOs which have increasingly created bad outcomes. In addition, bad accounting or bad business judgment on the part of insurance companies has to be taken into consideration when discussing dramatic rises in medical malpractice premiums.

Now, wherever there has been success in trying to reduce premiums for malpractice insurance, it is because there has been some kind of combination of maybe some tort reform, but also linked to trying to actually address directly the effort to reduce the premiums themselves. As I said, in California the premium increases were actually capped.

In my home State of New Jersey a few years ago in the 1970s when we had a problem with rising malpractice insurance premiums, we set up a reinsurance fund which basically said that the insurance companies had to pay a certain amount of money into a fund, and that money would be used to reduce premium costs when there was a crisis.

I actually proposed this in the Committee on Energy and Commerce in the subcommittee that has jurisdiction over this issue. Last week when we had a markup, I proposed H.R. 485, the Federal Medical Malpractice Insurance Stabilization Act, that would create a national reinsurance fund just like we had in New Jersey. The proposal mandates that the Secretary of Health and Human Services establish a program where insurance companies pay into a Federal fund. In time of crisis, these funds are made available to the companies in an effort to provide stability in the marketplace for medical malpractice coverage.

I mention this not because it is the cure-all, but when I tried to raise it in the subcommittee, the Republicans said it was not germane. They would not allow it to be considered as an amendment. Why? Because they have this one-size-fits-all philosophy. They

want to cap damage awards by the jury, and they do not want to deal with caps on premium costs that would actually bring down the cost of malpractice insurance.

I have a lot of issues that I want to talk about in the context of this malpractice reform issue, but I wanted to give an example because I think it is important when we are on the floor and we talk about legislation, we do not just talk about it in an abstract way; we give specific examples of what it means.

I want to give some specific examples in New Jersey, two examples of people who would be negatively impacted by the Republican proposal that is coming up tomorrow, in particular because of the way the language in that bill caps punitive damages, noneconomic damages, at $250,000; and also the way it designs and limits liability for punitive damages. It is a good way for me to illustrate the problems with that legislation because what would happen in this legislation is many people that have serious injuries or have even died, there would be very little recovery. The cap on the $250,000 essentially is a huge limitation on some of these people and their families that would suffer a great deal if this legislation were passed. So let me give Members two examples.

One example is Jersey City, New Jersey, a Vietnam veteran who was also a merchant marine barge captain was diagnosed with a carcinoid benign bleeding tumor in his left lung which required that the lung be removed. The diagnosing physician was part of a practice group that also included other doctors, including a surgeon who was set to perform the operation, although that surgeon had no contact with the patient prior to the surgery. The physician mistakenly removed the healthy right lung of the patient rather than the diseased left lung. They could not then also remove the patient's remaining functioning lung which contained the tumor.

Madam Speaker, after this error was discovered with this New Jerseyan, the physicians in this case allegedly altered the medical records and told the patient that after beginning surgery, they determined that they needed to remove the other lung because of a previously undiagnosed disease. However, the Vietnam veteran later learned that the pathology report on the removed lung revealed it was a completely healthy lung. Due to the extraordinary alleged coverup attempted by the defendants and their efforts in seeking to convince the patient that it was actually a good thing that they had removed the wrong lung, the plaintiff added a count to his complaint for punitive damages, not just for compensatory damages.

Today, Madam Speaker, this Jersey City Vietnam veteran requires oxygen 24 hours a day and has a host of medical problems as a result of the operation. Meanwhile, the tumor in his remaining lung will likely continue to grow. If it becomes cancerous, there is little that can be done to treat it. His lawsuit is pending.

What would H.R. 5 that the Republicans have brought up do? H.R. 5 would harm this Vietnam veteran in two ways. First, it would virtually eliminate meaningful economic compensation, limiting it to just $250,000, as we discussed. This is a small amount to compensate a man who has been an active professional and who now must have oxygen tanks with him at all times for the rest of his life.

Moreover, he has to live in fear that the tumor that his physicians failed to remove will become cancerous and metastasize, spreading cancer throughout his body, or will perhaps rupture, possibly drowning him in his own blood.

Secondly, if you look at H.R. 5, which we are going to consider tomorrow, the Republican bill, it sets standards for the award of punitive damages that would protect the kind of after-the-fact concealment of injury that is alleged in this case. So he cannot even sue because they tried to cover up the malpractice. Because in the bill, punitive damages would not be available unless the physician acted with malice specifically to injure the patient, which was not the case, or deliberately failed to avoid injuring the patient, which was not the case, because in this case the conduct for which punitive damages are claimed is not the malpractice or even the injury itself but the cover-up of the malpractice and the harm and the doctors' deliberate deceit of their patient and as a result removing this healthy lung.

You can see how in this case, this patient basically would not be able to recover what is needed. I am going to give another example later, but I see one of my colleagues is here. I do not want to prolong this, but I do want to say one other thing about this bill which I think is so important. I had an amendment. In fact, the Committee on Rules is considering it now, although I doubt that they will allow it because I am sure the Republican majority is not going to allow these various amendments since they have the one-size-fits-all bill and that is what they want. But what the committee did and what the bill does that we are going to consider tomorrow is it not only limit damages and claims, if you will, for malpractice against a physician or a hospital, which is what the crisis is all about in New Jersey and I am sure my friend from Massachusetts would agree, the people that are concerned about malpractice are physicians and hospitals. They are the ones who have the premiums that are going up and that is where the crisis is. But this bill is not limited to doctors or even hospitals. It limits the liability or the claims, if you will, that can be recovered from HMOs, from drug manufacturers and even from medical device manufacturers.

The most egregious aspect of it is with regard to the HMOs. Because, Madam Speaker, as I think you know, we here in this House over the last few years have tried to pass a patients' bill of rights that would essentially say that if a decision was made by your HMO to deny you care, that you can appeal either through an administrative procedure or go to court and sue the HMO because they denied you the care that you were supposed to have. A number of the courts now in about 12 States, including the Federal Second Circuit Court in New York which covers a number of States, have now said that a person can sue an HMO. What this bill does tomorrow that we are going to be considering is take away your ability to sue the HMO in certain circumstances. It limits it considerably. So while we in Congress have been trying, or at least articulating the fact that we would like to expand people's ability to appeal a denial of a decision with regard to an HMO that really negatively hurt them or impacted their health, this bill would do the opposite. This would take away whatever rights people now have to sue their HMO or to recover from an HMO when they make a mistake through denial of care.

It is incredible for me to think that not only is this not going to work effectively to reduce premiums for malpractice, not only is this going to limit the ability of many victims, as I used my New Jersey example, to sue or to collect damages when they have been seriously injured, but the bill even goes beyond the issue at hand, which is rising premiums for doctors and hospitals and lets off HMOs and drug companies and medical device companies, basically in my opinion special interests who are helping the Republican leadership and so now they have to get some kind of compensation for what they do.

I see my colleague from Massachusetts is here. I yield to him at this time.

I want to thank my colleague from Massachusetts for bringing up the reality of what is happening here politically. I know neither one of us wants to talk about politics. We would rather talk with the substance of this issue and what could be done to bring premiums down, because that is where the crisis is.

But what is happening with the Republican leadership, and even the President on this, is totally political. I mean, I have to tell you, I will just give you the background in the Committee on Energy and Commerce. This came up just before the election, I think it was sometime in October, that the Republican leadership on the Committee on Energy and Commerce decided to bring this up. There may have been a hearing, I do not even remember if there was; if there was, maybe there was one. And they quickly brought this up in the committee, wanted to bring to the floor, just before the election in October, just to make the political point that they were trying to accomplish something.

The gentleman is right on point. Let me tell you how much on point you are. Not only was this same bill essentially rammed in just a few weeks before the election through the committee, but, of course, it had to be the first order of business when we came back.

When we on the Committee on Energy and Commerce asked the Republican leadership on the committee to sit down with us and talk about a bipartisan bill that did not just deal with capping damages at $250,000, but actually dealt with all different aspects of the crisis, reinsurance, giving money, capping premiums or whatever, essentially what we were told, informally, was well, we cannot do that now. We cannot sit down. We have to bring this to the floor fast. Then it will go over to the Senate, and, do not worry, it will not pass there. Then we will sit down and talk with you about what we are really going to do.

This is essentially what we were told. This came in the subcommittee. Two weeks ago there was a hearing on Thursday. It was marked up in the subcommittee last Tuesday, it was voted out of the full committee last Thursday, and it was brought to the floor. Everybody understood that this had to go to the floor and there was not any opportunity to talk about what really could be accomplished, and we had to pass it in the House as a political measure for the reasons you said; and then when it gets to the Senate, okay, they will not pass it, we will have to sit down and talk.

This is the politics of it. There is no question about it.

I appreciate the gentleman coming down.

Let me say another thing. This bill is primarily based, this bill that we are going to vote on tomorrow, is primarily based on the notion that damages, punitive and noneconomic damages, have to be capped at $250,000. What I have said over and over again to the Republican leadership in our committee, in the Committee on Energy and Commerce, is where is this magic $250,000 figure coming from? I hear over and over again, I guess because it was used in California, but there is absolutely no reason to believe that $250,000 is somehow some magical term to cap damages.

I think there are many on the Democratic side of the aisle, including myself, that do not have a philosophical problem with a cap on damages, but $250,000 is too low. Why is it not $1 million? Why is it not $1.5 million? Nobody on the Republican side of the aisle will give us an answer for that. They just insist that it has to be $250,000.

As my colleague from Massachusetts said, any effort to deal with this issue, other than capping damages, the Republicans completely reject. They say that the only thing we are really trying to do here is tort reform. We are not trying to deal with lowering premiums or addressing premium costs, other than through the vehicle of capping damages and tort reform. That is it.

Now, I just wanted to use another example, if I could, Madam Speaker, of how this legislation, this Republican bill that is coming up tomorrow, would be unfair to specific individuals.

I have another example in my home State in Newark, New Jersey, which is New Jersey's largest city, of a 12-year-old in Newark. I would just like to run through the case, explain what the case is, and why H.R. 5 would be very damaging.

This is a 12-year-old 8th grader who developed flu-like symptoms in September 2001. His mother took him to their family doctor, who gave him a prescription for antibiotics. When he showed no improvement, the boy and his mother returned and a different doctor changed the prescription. The boy seemed to be getting worse, continued vomiting and became dehydrated.

After 2 more weeks, his mother took her son to the emergency room. A blood test revealed there was something seriously wrong. Further testing determined that he had leukemia. However, he was informed he had a 95 percent chance of complete recovery.

Madam Speaker, the boy's pediatric oncologist prepared him for four chemotherapy protocols. After three administrations of the chemotherapy protocol, his progress chart noted that his leukemia was considered in remission.

The 12-year-old Newark boy went in for the final chemotherapy treatment at that point. The order for this administration should have been for one 60 milligram dose of a drug called doxarubicin. Instead, the written order called for three doses instead of one, and the chemistry department at the hospital reviewed the protocol but did not notice the overdose.

After the third dose, the boy had a violent reaction. The head oncology nurse reviewed the chart and said, ``There has been a terrible mistake,'' and called the doctor. The doctor said, ``Oh, no, how could this have happened?''

The boy's mother was informed that her son had received a massive overdose and he would be very sick. The most serious problem, she was informed, would be an overproduction of mucous throughout his body.

Now, Madam Speaker, the boy's health deteriorated, forcing him to stay in the hospital. He developed inflammation and ulceration of the linings of his mouth, throat and gastrointestinal tract. He experienced cardiac dysfunction, began vomiting blood and finally had swelling all over his body.

He transferred to a different hospital that began aggressive bone marrow transplants, but, unfortunately, too much damage had been done; and in April of last year this young boy died of severe adult respiratory distress syndrome, ARDS, caused by excessive mucous in the lungs.

Again, I use the example, because I want to show what the impact would be with H.R. 5, the Republican bill that we are going to consider tomorrow. The impact of this legislation would be very severe.

Being a 12-year-old, he did not have any income. The total amount of his economic loss would be the cost of medical treatment for his cancer treatment. The total available amount of

noneconomic damages, compensation to his mother for the poisoning of her son, for his lingering, painful death, and her for permanent loss, would be capped at $250,000.

Now, again, what is the magical $250,000? Where does it come from? I do not know. Nobody will give me an answer.

I have had some people who I consider somewhat heartless say to me, well, you know, a boy dies, a young person dies, a minor dies. Why should we pay the parents any more than $250,000? In other words, they were not dependent on him economically. He did not have a wife, he did not have children, he did not have a job. He was too young for all that. But I think that is a very heartless approach.

It also begs the question of the fact that if there is very little penalty and very little consequence of negligence or medical mistakes, then one could argue that there is not much of an incentive to not keep making them on the part of the hospital or certain physicians maybe that should not be out there practicing.

I do not say that because I think that most doctors make mistakes or are negligent. I certainly do not. But there always are some, like in every profession, that do.

One of the reasons we have punitive damages and that we do not have a cap is because we want to make sure that there is a certain amount of punishment, so that people do not continue to practice and they are more cautious and do not make these mistakes. Otherwise, why would the mistakes not continue to be made?

I have other examples, Madam Speaker; but before I get to some of the other examples, I want to talk a little bit about the fact that this bill goes beyond just malpractice premiums, insurance premiums, for doctors and hospitals, and deals with drug companies and deals with HMOs and deals with medical device manufacturers, because I think the fact that this Republican leadership legislation goes way beyond the order of the day, way beyond the issue of premiums for doctors and hospitals is a strong indication, maybe the strongest indication, that it is really nothing but special interest legislation designed to help some friends of the Republican leadership.

I offered an amendment in committee, which is also being considered in the Committee on Rules, and was, of course, voted down in committee strictly on partisan lines and probably the same will happen in the Committee on Rules. I cannot imagine that we would be able to consider it tomorrow. But basically it would have struck the provisions in the bill that deal with the issue other than doctor and hospital premium costs.

I just want to talk a little bit about the amendment, because I think, again, it brings forth why this bill is really not meant to accomplish the goal of addressing the malpractice crisis.

The amendment that I proposed strikes the language that includes liability protections on punitive and noneconomic damages for these industries; in other words, medical device manufacturers, HMOs, drug companies, and other health insurance companies. These are industries outside the scope of medical practitioners and, therefore, medical malpractice.

The limitations in the bill on liability covering defective medical products, dangerous prescription drugs, and claims against HMOs and health insurance companies I think are appalling, Madam Speaker. Shielding all of these additional industries from liability has no effect on medical malpractice insurance premiums which only affect doctors and hospitals and would only harm the current product liability system.

What H.R. 5 does, as written, is to leave victims with little recourse. These additional protections, the ones that I mentioned that go outside of the doctors and the hospitals, render victims completely unable to hold pharmaceutical companies, makers of defective medical products, and insurance companies accountable, even when they are proven negligent. Even if they are proven negligent, one cannot recover, other than based on a small amount.

In essence, what the bill does that we are going to be considering tomorrow is really a bill designed to reduce the consequences of the mistakes and wrongdoing of large corporations at the expense of victims of those harmful actions.

So here we are. Traditionally in our system, in our Anglo-American jurisprudence system that we are so proud of, it has lasted over 1,000 years, the effort was to protect the victim. Now, what we are doing with this bill is protecting the large corporations who do not need any protection. It is certainly not in the circumstances that are delineated here.

But the worst aspect of it, Madam Speaker, in my opinion, is with regard to HMOs. Because as I said, on a bipartisan basis, there were different bills; there was a Democratic bill and there was a Republican bill and the Republican bill passed and it was not, in my opinion, as good as the Democratic bill. But the bottom line is there were efforts on both sides of the aisle in the last 4 years in this body to try to deal with HMOs and reform HMOs so that patients had some rights. If they were denied care, they could go to some sort of a board or commission, administrative appeal, or they could go to court to overturn a wrongful decision that denied them care or caused them damages.

But what H.R. 5 does that we are going to consider tomorrow is it preempts State law and it amends Federal law far beyond, again, relating to doctors and hospitals, and it says that it applies to any ``health care lawsuit brought in a Federal or State court.'' Now, that is where we get to the HMOs. Eleven States have laws that provide that HMOs may be held liable for refusing to authorize payment for appropriate care. These laws would be completely preempted by H.R. 5 if it passes and becomes law. And, in particular, what is happening is the courts in the States and even at the Federal level are expanding victims' rights because Congress has not acted. We never passed, Madam Speaker, the Patients' Bill of Rights. It passed in the House, but it never passed in the Senate. It was never signed by the President. So in the absence of having Federal law that would protect patients who are in an HMO, States have passed laws and now the courts have even stepped in and said that one can sue and seek grievances for HMO action.

In fact, one of the most important Federal courts, the United States Court of Appeals for the Second Circuit, which covers New York, Vermont, and Connecticut, recently held that Americans can sue HMOs and other insurers for injuries resulting from their cost-minimizing decisions. Now, this ruling, if it is upheld by the Supreme Court, would essentially make the Patients' Bill of Rights the law of the land. We would not even have to pass it. It would essentially make the Patients' Bill of Rights apply to the entire country. But these kinds of lawsuits, the Second Circuit opinion, State law, either enacted by the legislature or by the State courts, would all be preempted and severely limited by H.R. 5.

To me, to hear my colleagues on the Republican side spend the last 2 or 3 years saying that they want to protect patients' rights in HMOs and then have them vote on this tomorrow, which I am sure is going to be voted on by most of my Republican colleagues, that would take away all of those rights or at least severely limit them I think is just incredibly hypocritical. Even the President, the President said that he supported the Patients' Bill of Rights too and now he is saying that he favors this malpractice bill, which would essentially limit one's ability to sue and take action against an HMO. I really do not understand where my Republican colleagues are coming from on this.

Now, I just wanted to mention, there is a Democratic substitute to H.R. 5, which hopefully the Committee on Rules will put it in order but if they do not, I guess we can do it on a motion to recommit tomorrow so we would have some opportunity to bring it up. Basically what the Democratic substitute does is the opposite of most of the negative aspects of H.R. 5 that I talked about tonight. It tries to look at the malpractice issue in a much broader context, not only for tort reform dealing with lawsuits and damages, but also for insurance reform. In fact, it has a commission that would evaluate the cause and the scope of the recent and dramatic increases of medical malpractice insurance premiums and, most

importantly, actually establishes a grant program, if you will. It is similar, I suppose, to the kind of reinsurance program that I mentioned where grants could actually be given to States or, in certain circumstances, where premiums go up. I really maintain that the only way that we are going to reduce premiums is not through any kind of a cap on damages in court, but rather by addressing it directly, by either having a reinsurance program that gives money back to the States or to the insurance companies so that the premiums go down, or providing some sort of grant program to reduce premiums. Again, it was the capping of premiums in California that made the difference, not the $250,000 in damages.

I see the gentleman from Texas is here, and I would like to yield to him at this time. I thank the gentleman for coming down.

Madam Speaker, I will yield to the gentlewoman from Texas, but I think what the gentleman said in particular about the fact that this amount of damages, the $250,000 has no basis in fact. During the Committee on Commerce hearing last week, I asked many times, where does the $250,000 come from? What is it based on? The reply: the California statute. And that was passed years ago. So we can argue that just based on inflation alone, that that is no longer relevant. But then again, the Republicans just want to move ahead, steamroll it, and they are just not really interested in the reality of this and what really matters to the victims. So I appreciate the gentleman's comments.

I yield to the gentlewoman from Texas.

Madam Speaker, I appreciate the gentlewoman for coming down. I know she was up in the Committee on Rules trying to get one of her amendments that she described passed. I doubt they will pass it because they are doing everything on a partisan basis.

We only have maybe a minute or two left. I just wanted to thank the gentlewoman for bringing up the fact that traditionally when you are dealing with insurance regulation it is done by the States. It is tremendously unprecedented to take an issue that has primarily been dealt with by the States where there are State laws on medical malpractice and tort reform and all of the sudden put it under this huge Federal rubric and think we are going to solve all these problems. Particularly when something is so complex like this, the States are traditionally the laboratories where we see what can be done to make things work and maybe the Federal Government copies it later if it works.

That I think is just another indication that this is just being for special interests. This is just being done by the Republicans tomorrow for politics because they want to take this one-size-fits-all solution, knowing it is never going to pass the Senate, knowing it is never going to become law, just so they can say to the drug companies and to the HMOs and to the doctors, we have done something to try to deal with your problem. Not even caring whether or not it is actually going to accomplish the goal because otherwise they would wait and see what is working in the States or they would wait and they would take a more comprehensive view before we moved ahead with Federal legislation.

I think that was a very good point the gentlewoman made, and it is one of the points that we need to continue to make.

We are not going to win this one tomorrow, but we have to bring up the debate. If what happens is that it does go over to the Senate and then we are allowed to sit down as Democrats and Republicans and come up with a solution that goes beyond just a cap on damages, then so be it. I welcome that opportunity. I do not understand why we have to wait for it to pass the House to do that. But hopefully that opportunity will be there, and we will be up front making sure we can come up with a solution.

Mr. President, I rise today to introduce my package of alternative energy and energy efficiency bills. These bills all work in concert toward a single goal--promoting the use of cleaner, renewable energy for this nation.

For several decades, the U.S. has relied on foreign sources of energy supply. Worldwide demand for energy has continued to increase, while our domestic resource base has decreased, leaving the country vulnerable in the event of foreign supply disruptions. This year, the U.S. will import 60 percent of its crude oil needs this year. The events of September 11th have focused attention on the need to develop a new energy policy that focuses on creating new domestic sources. Our Nation needs to explore and develop all possible domestic options as resources for our energy supply. To reduce our dependence on foreign imports, it is imperative that policy makers create incentives to promote technologies that can produce quality alternative products. Our national security demands that the government undertake programs which assure the implementation of real alternative fuel technologies.

It is in the best security interests of our Nation to reduce our reliance on foreign energy suppliers. We can no longer afford to be subject to the whims and manipulations of foreign cartels like OPEC. Added to these threats posed by OPEC and the instability of the Middle East are the even more sinister possibilities that we face in other parts of the world. Developments in many regions of the world where much of today's energy supplies are obtained--West Africa, the Caspian Sea, Indonesia, Venezuela, and so forth--clearly serve notice that our Nation cannot continue to depend on these areas for our future energy needs. These events make it more pressing than ever that we proceed forward with the development of our own domestic alternative energy resources.

In the last Congress, both the House and the Senate passed comprehensive energy bills that would have brought us closer to these goals. In the Senate bill, we were able to strike a delicate balance between using our resources for energy and preserving our environment for future generations. I was pleased with the Senate version of the Energy Policy Act of 2002, and was disappointed that conferees were unable to iron out differences with the House of Representatives before adjournment. We must make energy independence a national priority because it is now essential to our homeland security.

Looking ahead, I will continue my work to build a cohesive national energy policy that ultimately reduces our dependence on foreign oil. To accomplish this goal, we must provide access to more resources, transmit these resources to the consumer, and encourage industrial and individual consumers to use more renewable energy sources. These important steps will lead to greater reliability and lower energy costs for consumers.

We should all work again in the 108th Congress to adopt a comprehensive energy plan that sets America on the road to energy independence and assures consumers of a reliable and affordable energy supply.

The legislation I am introducing today will encourage production of biodiesel and its use in this country; to promote the manufacture of energy efficient home appliances; to encourage the use of fuels produced from animal and agricultural wastes; to encourage the use of our waste sources such as landfill gas and municipal solid waste to produce energy; and to spur the investment in delivering fuels to rural America. These incentives for production and use of clean and renewable fuels can help bridge the investment cost gap between production of petroleum and renewable energy.

Each of these bills were either included or debated in the Senate during last year's Senate consideration and passage of the energy bill. I look forward to their inclusion in the debate and inclusion in any energy bill to be passed by the Senate during the 108th Congress.

The first bill I am introducing today is the Biodiesel Promotion Act of 2003. I am pleased to be joined in introducing this bill by Senators Grassley, Hagel, Dayton, Harkin, Durbin, Coleman, and Johnson. This legislation will provide tax incentives for the production of biodiesel from agricultural oils, recycled oils, and animal fats and will ensure that biodiesel becomes a central component of this nation's automobile fuel market.

This legislation is identical to language authored by myself and Senator Grassley included in the last Congress's Energy Bill. It is intended to be a starting point for our debate and discussion as we draft an energy bill for consideration in this Congress.

This legislation will provide a partial exemption from the diesel excise tax for diesel blended with biodiesel. Specifically, the bill provides a one-cent reduction for every percent of biodiesel from virgin agricultural oils blended

with diesel up to 20 percent. The legislation will also provide a half- cent reduction for every percent of biodiesel from recycled agricultural oils or animal fats.

Also importantly, in the year that we are to reauthorize the Transportation Enhancement Act of 1996, the bill provides for reimbursing the Highway Trust Fund from the USDA Commodity Credit Corporation, CCC. This procedure will protect the Trust Fund from lost revenues due to the biodiesel incentive while providing a much-needed boost to our nation's biodiesel industry. The cost to the CCC would be offset at least initially by the savings under the marketing loan program.

Biodiesel, which can be made from just about any agricultural oil including oils from soybeans, cottonseed, or rice, is completely renewable, contains no petroleum, and can be easily blended with petroleum diesel. A biodiesel-diesel blend typically contains up to 20 percent renewable content. It can be added directly into the gas tank of a compression-ignition, diesel engine vehicle with no major modifications. Biodiesel is completely biodegradable and non-toxic, contains no sulfur, and it is the first and only alternative fuel to meet EPA's Tier I and II health effects testing standards. Biodiesel also stands ready to help us reach the EPA's new rule to reduce the sulfur content of highway diesel fuel by over 95 percent.

Even after years of research and market development, biodiesel is not yet cost-competitive with petroleum diesel. In order to be so, market support and tax incentives are needed. I believe the provisions provided in this bill will help in leveling the field for biodiesel blends and help jumpstart this new industry.

The time is right for this investment. It is right for our rural economy, for our environment, and for our national energy security and I encourage my colleagues to join us in supporting the Biodiesel Promotion Act of 2003.

The second component of my package is the EPACT Alternative Fuel Flexibility Act of 2003. I am pleased to be joined today by Senators Bond and Talent in introducing this legislation.

The purpose of this legislation is to place biodiesel fuel on equal footing with every other alternative motor fuel used in this nation.

The Energy Policy Act of 1992, EPACT, set a national objective to shift the focus of national energy demand away from imported oil toward renewable and domestically produced energy sources. When EPACT was passed in 1992, it recognized ethanol, natural gas, propane, electricity, and methanol as alternative fuels. The original list of alternative fuels did not include biodiesel because the technology had not been fully developed.

EPACT set a goal to replace 10 percent of petroleum-based fuels by 2000 and 30 percent by the year 2010. However, a GAO report issued in July of 2001 noted that ``limited progress has been made in increasing the numbers of alternative fuel vehicles, AFV, in the national vehicle fleet and the use of alternative fuels'' as compared to conventional vehicles and fuels.

We did not meet the original EPACT goals of replacing 10 percent of petroleum-based fuels by 2000. Today we are not on track to meet the goal of 30 percent by the year 2010. In fact, we haven't even come close, and that's partly a result of not allowing all alternative fuels to be used to meet the EPACT alternative fuel mandates.

This legislation will significantly increase the use of alternative fuels by allowing EPACT covered fleets to meet up to 100 percent of the EPACT purchase requirements through the use of biodiesel. Currently, covered fleets can only meet up to 50 percent of purchase requirements with biodiesel.

By offering an additional option for the use of alternative fuels, we will widen the possibilities for these fuels to be made more widely available. Fleets will continue to have the option to choose the complying vehicles and fuels that best meet their needs. This legislation is not expected to affect fleets that are currently using ethanol or natural gas. But this legislation does provide a further option for alternative fuel vehicles. Furthermore, it does not directly displace natural gas or ethanol sales, since biodiesel is used in medium- and heavy-duty trucks rather than light-duty vehicles.

By allowing fleets to meet 100 percent of their AFV requirement by using biodiesel, we'll take a positive step toward moving this country away from dependence on petroleum-based motor fuels and toward alternative motor fuels. I urge all of my colleagues to support this legislation.

The third bill I introduce today as part of my energy independence package is the Animal and Agricultural Waste Renewable Energy Production Act of 2003. I am pleased to be joined today by Senators Hagel, Bond, and Kerry in introducing this legislation.

This legislation would provide a credit under Section 29 of the tax code for the production of fuels from animal and agricultural wastes.

Thanks to new technological developments, we can now produce significant quantities of alternative fuels from agricultural and animal wastes in an environmentally friendly manner. Production incentives are needed to assure implementation and commercialization of this new generation of technology.

Section 29 was originally enacted to provide an incentive to produce alternative and hard-to-reach fuels that could compete with fossil fuels and hopefully reduce the nation's dependence on foreign oil. As originally enacted, a number of ``non-conventional fuels'' were eligible for the credit, including the following: oil from shale; oil from tar sands; natural gas from geo-pressured brine, coal seams, Devonian shale, or tight sands; liquid, gaseous or solid synthetic fuel from coal, including coke and coke by-products; gas from biomass, including wood; steam from solid agricultural by-products; and processed solid wood fuels.

Other biomass by-products, such as agricultural and animal oils and solids, also should qualify the same as liquid or gaseous synthetic fuels derived from coal.

New technological advances have been developed which will convert these biomass wastes efficiently to alternative fuels. The most readily available of these wastes are agricultural and animal wastes, municipal wastes, plastics, used tires, and forest product wastes. This production incentive opportunity would provide significant new annual quantities of alternative fuel to replace foreign imported oil and should be considered a government investment in the nation's future.

If these incentives are implemented, large marketable quantities of quality alternative fuel products can be produced as a replacement for foreign imported oil. These processes can achieve the desired results in an environmentally positive way that essentially converts all wastes to products and provides an answer for waste disposal problems. To achieve these results, financial incentives need be provided from the government. Section 29 should be extended to include alternative fuels produced from all biomass wastes and I encourage all of my colleagues to join us in supporting this legislation.

The fourth bill I am introducing today is the Capturing Landfill Gas for Energy Act of 2003. This legislation will provide a credit under either Section 29 or Section 45 of the tax code for the production of energy from landfill gas, LFG. It is designed to encourage additional collection and productive use of methane gas generated by garbage decomposing in America's landfills. LFG is a renewable fuel that can be used directly as an energy source for heating, as a clean burning vehicle fuel, as a hydrogen source for fuel cells. Furthermore, it can power generators to produce electricity.

Congress recognized the importance of LFG for energy diversity and national security by providing such a credit in 1980 and extending it for nearly two decades. With today's critical energy needs and emphasis on distributed generation, this incentive makes more sense than ever. Most of the 360 LFG projects that currently are operating were made economically feasible by the ``non-conventional-source fuel'' production tax credit under Section 29 of the tax code.

But since June 30, 1998, that credit to encourage construction of new LFG projects has been unavailable, and few have been constructed since that date. The U.S. Environmental Protection Agency estimates that 600- 700 more LFG projects could be constructed nationwide if there were sufficient economic incentives in place to foster

their development. With such incentives, it is likely that about 55 new projects would be brought on line each year. Just one medium-sized project could provide three megawatts of electrical power capacity-- enough to meet the electricity needs of 3,000 homes each year.

In addition to the value of LFG as an important contribution to our overall energy strategy, there are compelling environmental reasons to encourage these projects. Uncontrolled landfill gas can create fire hazards and odors and can impair air quality. The methane in landfill gas is 21 times more potent than carbon dioxide as a greenhouse gas. Even the large landfills that are required under the Clean Air Act to collect their gas and control non-methane organic compounds often find it more economic to simply flare or otherwise waste the gas rather than use the methane. Some smaller landfills are not required to collect the gas, and may continue to emit it for decades under the Clean Air Act. Thus, LFG projects not only reduce local and regional air pollution while yielding a renewable source of energy, they can also reduce the country's yearly emissions of greenhouse gases by a very substantial amount at a relatively small cost.

Unfortunately, the potential energy and environmental benefits of future LFG projects are substantial, but they will be lost without adequate LFG tax provisions to support project development. On average, the total capital cost of constructing an LFG-fueled electricity generating project is about $1 million per megawatt, and the annual operating and maintenance costs average another $150,000 per megawatt. The average capital cost of a new direct use fuel production and delivery project is about $2.5 million, with annual operation and maintenance costs of about $350,000.

My bill proposes sufficient, yet sensible, tax incentives to encourage these large investments, and I urge my colleagues to join me and support LFG tax credits.

Today I am also pleased to be joined by Senator Akaka in introducing the fifth component of my energy package--the Waste to Energy Utilization Act of 2003. This legislation will provide a credit under Section 45 of the tax code for new waste-to-energy facilities or new generating units at existing facilities. Such a tax credit encourages clean renewable electricity and promotes energy diversity, while helping cities meet the challenge of trash disposal.

Nearly 2000 communities nationwide rely on waste-to-energy facilities to safely dispose of trash and generate clean, renewable energy that meets the power need of more than two and a half million homes. The U.S. Conference of Mayors has repeatedly urged Congress to include provisions that promote waste-to-energy in tax legislation and they are joined by the National Association of Regulatory Utility Commissioners, the Business Council for Sustainable Energy, the U.S. Chamber of Commerce, and the International Brotherhood of Boilermakers.

Arkansas stands with other environmentally conscious States in understanding that waste-to-energy technology saves valuable land and significantly reduces the amount of greenhouse gases that would have been released into our atmosphere without its operation. The volume of waste is reduced by greater than 90 percent in a waste-to-energy facility, and EPA has confirmed that more than 33 million tons of greenhouse gases are avoided annually by the combustion of municipal solid waste. Municipal solid waste is a sustainable source of clean, renewable energy.

Local governments spent about $1 billion over the past five years on air pollution control equipment to comply with EPA's Maximum Achievable Control Technology, MACT, standards required under the Clean Air Act. These retrofits have made waste-to-energy one of the cleanest power generators in the country. In June, EPA announced that these facilities have shown ``outstanding performance'' resulting in ``dramatic decreases'' in emissions, resulting in reductions of mercury emissions of more than 95 percent from a decade ago. Communities with waste-to- energy facilities recycle 33 percent of their trash, on average, and historically have more successful recycling programs than cities without waste-to-energy plants.

We must sustain a level marketplace to achieve energy diversity and economic growth. I believe this Senate should pass tax legislation that includes production tax credits to spur energy generation, and I encourage all of my colleagues to join us and support this legislation.

The sixth bill I introduce today is the Resource Efficient Appliance Incentives Act of 2003. I am pleased to be joined in introducing this bill by Senators Allard, Grassley, Harkin, Stabenow, Hagel, Levin, and DeWine.

This legislation will provide a tax credit for the production of super energy-efficient clothes washers and refrigerators if those appliances exceed new Federal energy efficiency standards. The tax credit would only be available for five years and would be capped for each manufacturer.

In 2001, the Department of Energy issued new energy efficiency standards for clothes washers. This agreement accompanies rules for higher efficiency refrigerators issued by the department two years ago. The new rules are significant because clothes washers, clothes dryers, and refrigerators account for approximately 15 percent of all household energy consumed in the U.S. annually. The tax incentives contained in this legislation are constructed to encourage manufacturers not only to exceed these new efficiency requirements, but to exceed them by up to 35 percent.

Tax incentives are essential to accelerate the production and market penetration of leading-edge appliance technologies that create significant environmental benefits. The need for super energy-efficient appliances is greater this year than at any time in the past 20 years. Over the life of the appliances, over 200 trillion BTUs of energy will be saved. This is the equivalent of taking 2.3 million cars off the road or making available for other uses the energy of six coal-fired power plants for a year.

In addition, the clothes washers will reduce the amount of water necessary to wash clothes by 870 billion gallons, an amount equal to the needs of every household in a city the size of Phoenix, Arizona for two years. The water savings attributable to these new technology machines is not based on some computer generated model but an actual case study that gathered data in the small community of Bern, KS by the Dept. of Energy's esteemed Oak Ridge National Laboratory in 1998.

The Association of Home Appliance Manufacturers estimates these super energy-efficient appliances could save the average family $100 per year--or $1,400 per family over the lifetime of the appliance. This legislation will create the incentives necessary to increase the production and sale of these super energy-efficient appliances in the short term while passing along energy savings to the American consumer.

As a DOE analysis indicates, high efficiency washers and refrigerators are significantly more expensive to manufacture than those that simply meet existing federal standards. Further, market surveys of consumers indicate that they are generally not willing to pay more for high efficiency appliances, even when it can be demonstrated that high efficiency appliances will generate greater savings in utility costs over time. The tax credit will provide an incentive for manufacturers to develop a greater selection of super efficient models that will appeal to consumers at all price points. In addition, to assure increased sales of these appliances, manufacturers will be encouraged to redirect their marketing and advertising resources toward the high efficiency models. Enactment of this legislation will bring immediate, significant, and lasting environmental benefits to the nation, and I encourage all of my colleagues to join us in supporting in this effort.

The final bill I am introducing today is the Gas Distribution Infrastructure Investment Act of 2003. This legislation will amend the Internal Revenue Code to modify the depreciation of natural gas pipelines, equipment, and infrastructure assets from 20 to 10 years.

America's demand for energy is expected to grow by 32 percent during the next 20 years. Consumer demand for natural gas will grow at almost twice that rate, due to its economic, environmental, and operational benefits. That level of natural gas use is almost 60

percent greater than the highest recorded level. To satisfy this projected demand, we must substantially expand our existing gas infrastructure. This is especially true with respect to the delivery sector. Higher capacity utilization of existing infrastructure will meet some of this increased demand, but the delivery sector still will require capital investments of at least $123 billion for infrastructure enhancement and additions.

Shrinking the lifetime over which an asset is depreciated does not change the amount of expense a company is allowed to claim over the asset's useful life, but simply shortens the expensing period for tax purposes. This shortened tax life generates higher cash flows in terms of reduced tax liability during the asset's early useful lifetime. Conversely, the cash flows are decreased, relative to the longer depreciation life, during the later part of the asset's useful life. The overall impact is zero on a gross basis.

I urge my colleagues to support this important legislation. Infrastructure development and expansion is crucial if America's homes are to continue to rely on clean-burning natural gas to heat their homes and fuel their appliances.

I ask unanimous consent that each of the seven bills I am introducing today be printed in the Record.

I thank the gentleman from New Jersey and ask that he stay nearby because I want to have a conversation with him if I can eventually on this.

I have had some very interesting conversations with constituents in my office for a period of time now about this issue, ever since the bill was filed. Primarily the concept was that people come in and they are upset because of what they think are the consequences of this bill from whatever perspective they come.

Consumer groups come in on behalf of patients and talk about how unjust it is for the limitations that it puts on patients. Lawyers come in because they are concerned. They, of course, believe that they are doing the right thing in representing victims of malpractice. They believe that part of what they do that is noble and right is that they try to get people recovery so that they can continue on with their lives in some sort of respectable manner after some consequence or some

disaster has happened to them. And doctors come in because they think that the bill may be helpful to them because they do not want to bear the unlimited exposure to lawsuit damages and do not want their premiums rising through the roof. So we have those three groups sort of pitting against themselves, or some combination. But when you sit people down and talk to them, it is really easy to see that this bill is not about doctors, it is not about lawyers, it is not about patients, it is about insurance companies. It is about insurance companies and those others that you mentioned at the end of your remarks who somehow managed to get into a bill that they are billing as being a limitation on premiums for malpractice but managed to sneak in there immunity for themselves and total absolution from any liability for their malfeasance or their mistakes or their negligence or their wrongful acts even if they are deliberate. The fact of the matter is that that does not serve the American public at all. It does not serve any of those other three groups that we talked about.

I have any number, as I am sure you do, a number of friends that are doctors, physicians in different fields, ranging from those that have a very high risk factor to those that have a very small risk factor. There is not a one of them that when I engage them in conversation that does not have compassion for their patient. When you say to someone, as I did just the other day to a doctor, this particular doctor deals with people with cerebral palsy, an absolutely dedicated physician. I said to him, if one of your patients by virtue of your mistake was injured at a very young age and the consequences were that they were going to have this disaster for the rest of their lives, do you think that $250,000 would fairly compensate them?

They say, well, no, of course not.

I ask if they realize that in this bill that is the limitation that is put on that. And that women that get injured that may not be working, may be bringing up a family in a household, they do not have economic earnings from which they can then generate a recovery but they have the rest of their lives to go forward when they may then have to go out and try and earn a living and they may be stopped from doing that, do you think for someone in that consequence, that $250,000 is enough?

Well, of course not, was the answer. And right on down the line, example after example. I came in late, but I know you were giving some examples earlier.

Their answer back to me was, why don't you engage and try to do something that is reasonable? If you don't think $250,000 is reasonable, why don't you engage them in that? I tell them that the simple fact of the matter is that this is not about a conversation. We are more than willing to sit down and talk about what is fair and what is just. The problem is that the insurance industry and the HMOs and the others that are driving this piece of legislation and I think using the doctors as a tool in this by trying to get them to believe that their premiums will go down when they will not, and history shows that they have not and studies indicate that they are not intended to by this bill, that they try to get them involved in that instead of realizing that this is all about the insurance industry, all about the HMOs, all about those other manufacturers that want to be absolved from liability and they do not want a discussion. They want to try to generate the heat high enough so that you are either for it or against it. There seems to be a lot of that going on around here these days. They make a bill very difficult and absolutely without any compromise.

You will find out that when the bill comes to the floor tomorrow, they will not be asking for amendments to make it better or to improve it. They will not be asking for any prolonged debate to talk about all the aspects of this, not just premiums but how do we protect doctors from unlimited liability, how do we protect patients to make sure they get their just due without putting doctors out of business. None of that will be open for debate. It will simply be a vehicle for people to make a case, perhaps in the next election in 2004 or whatever or to show themselves to their benefactors that they are out there waving the flag on their behalf. That is unfair. It is unfair to patients, it is unfair to doctors, it is unfair to lawyers and it is unfair to the American public at large.

The fact of the matter is that if you couch it in terms that this is all about keeping premiums down, it is something interesting to note that in California, where this is supposedly the model for this whole program, in the 1970s when they put in a cap on recovery, the fact of the matter is premiums did not go down. The next 4 years they went up considerably, and since that point in time, they have been pretty much running the average of around the rest of the country. So that is a fallacy. In Florida, when the Florida legislation said to the insurance industry, well, then if we are going to pass a bill like this, you have to certify to us that premiums will go down, the insurance industry said, no, we won't do that. In Nevada the same thing happened out there where they talked about enacting severe damage caps. The insurance industry came out and said very clearly that they would still not lower premiums. The studies indicate and history indicates that the insurance industry makes its money primarily not from premiums so much as from the investment of those premiums into other vehicles, whether they are bonds and to a lesser extent stocks and other vehicles and generate income from that. When the market is down, as it is now, and they are not paying off as they are, when it goes down, then they have to jack up the premiums to get the profits to which they think they need to go on with their company. Then they have to tell somebody that it is not about insurance companies and profit because they know that will not be extremely profitable because everybody wants people to have a profit but they do not want necessarily to be gouged. So they cannot go out and tell people that we just want to get a higher profit and we are going to do anything, we are not going to take any decrease in our profits, but instead we are going to go out and get the doctors, they cannot say that. They turn around and they say, you know what the problem is here? The people that are subject to malpractice, the people that have lost something in their lives, they are the problem. They are getting too high a recovery. Obviously because they are represented by lawyers helping them get that recovery, then lawyers are bad people, too.

The fact of the matter is many times these are complicated cases. Something happens, and if a doctor makes a mistake, it is complicated, and it is difficult sometimes to find out just where that mistake occurred, which part of the process, which doctor or other health care person was involved in that. A suit might be filed to find out, to discover where that was. Then the people that are not involved are let out or the person who is responsible, their insurance company gets engaged in the situation. You would hope that this is a system we have structured to give that person a fair recompense for their injuries. That is the way that it is supposed to work.

The problem is of course that now they are putting up there, they are saying that this whole idea of somebody recovering is where the culprit is. There has not been any great increase in huge recoveries across this country. They cannot point to statistics showing that all of a sudden we have had a spike in incredibly high recoveries for people. And those few high recoveries are generally knocked down by appeals courts to a much more realistic number. It just happens that there was something in the course of that case that the jury got upset with, whether it was somebody trying to cover up something that was done or an insurance company failing to pay off on time, or something that caused them to get an award up there and courts generally ratchet that back.

But if we are not going to proceed on the basis that we have done in the past of having a system where somebody who through no fault of their own is seriously injured, looks to the person who was negligent, to the person who conducted the malpractice for a contribution, which they then in return insure against, then we have to find out what else it is that we are going to put in place for a system. If we think that we want somebody else to decide other than a jury as to what somebody's fair recovery is, then let us hear what it is.

Let us have a debate about that. Who should replace a jury of your peers in deciding that? If you think there should be a cap on the amount of money that people recover, let us have some experts as well as the general public engaged in the debate about what would a fair amount be, because you certainly need to take care of these people. We have decided as a society that the innocent part of that should not be the one that suffers the burden and goes without having any ability to sustain the rest of their lives. We have decided that we have to try and share that blame by making the person who has been negligent responsible and letting them insure for it.

Society has to have a replacement. We can complain about the system that we have all we want, but we should be having a debate instead about what changes in it we are going to make if we think that parts in it are not working. As I said in the beginning of my remarks, I have great sympathy for the doctors who feel they have to practice defensively, for the doctors who feel that their exposure is unlimited, for the doctors who insurance companies abuse by raising their premiums on the false pretense that it is the situation where people are getting too much for their injury. We have to sit down with people and say, what else are we going to put in place, how else are we going to make these decisions in a fair way so that people get fairly compensated for their injuries and so that we understand that doctors have to remain in practice and they have to remain in practice without the fear of being put out of business either financially or because they were constantly engaged in litigation.

I do not hear that kind of conversation coming from the other side of the aisle, from the majority. I frankly do not hear anybody saying we are going to sit down and try to iron this out. Did it go to committee? It went to committee, but people should not feel that there was an open dialogue in committee, that there was any deliberation and honest debate and suggestions about what changes might be made. It went to committee so that the majority who put forward the bill could ram it through on a straight party line vote and get it to the next level so we could do the same thing so that they would have some talking points to go back to their benefactors with and to campaign against and say like, oh my God, other people that don't vote for this bill want to put the doctors out of business, and we are the ones who want to save the doctors when in fact the premiums will not go down a stitch, the insurance companies will not allow the bill to be amended to put a requirement that if the recoveries go down, the premiums go down, and the fact of the matter really is it is all about the insurance companies, the HMOs and the others that are going to be shielded from liability and it is not about the doctors, not about the lawyers and, shamefully, it is least about the people that are really the ones that we should be focusing on here, the people that are injured through malpractice.

The best thing these insurance companies could do, one of the best things they could do is help doctors put in place some way to police those 5 percent of the medical profession that are responsible for 54 percent of the claims. It seems to me and I think others that that is one area to look at that would take care of a large part of the problem of legal actions and a large part of the problem with that small percentage of the premium increase that may be attributable to claims.

My recollection of reports and data shows that it is about half a percentage point on those premiums. But that would make sense. Find ways to hold accountable that 5 percent of doctors that have 54 percent of the claims, and make sure they are either reeducated so they are no longer guilty of malpractice, or move them out of the profession to someplace else where they are happy, to a less risky end of the business.

Then let us make sure we take a look at the insurance companies. If they are going to jack up prices every time their investment returns go down, then we have to look at the company industry and say something is wrong here. Doctors should not be subjected to these spikes in premiums just because the economy has gone down and that is where you invested all of your eggs, and now you are suffering a loss and you want to maintain your high profits, you are not satisfied with a lesser profit. Then we have to find a way to deal with that through insurance regulation.

Short of that, and if they are going to insist on putting that bill through, we would at least hope they would have provided some discussion about what is a fair amount; and $250,000, even by doctors accounts, is not a fair amount of a cap. We would have had some discussion about what are we going to do about policing those 5 percent of the medical profession that create 54 percent of the incidents that end up in lawsuits. And we would have done something with the fact of trying to work our way around so that doctors did not feel they were subject to legal suit in order for people to get discovery as to who is responsible, find some way earlier in the process for the facts to be known so that people could move forward, and have a good public debate about this so that everybody's interests were resolved.

That is not happening, my colleague from New Jersey, you know that very well; and I would just say to you that I would be happy to have a conversation with you on it if you want, but I think you would agree that we could have done a much better job sitting down as a full House, with a full complement of the committee, with all three parties, the Independents, the Republicans and the Democrats, and people representing the consumers, patients, the doctors, and the insurance companies, and talked about what is needed to be done in order for this to really be done correctly.

I think it is shameful we started out with this yelling and screaming contest, that it is all or nothing, there cannot be any reasonable conversation. Doctors feel they are put in the position of, gee, in order to save ourselves, we have to go along with this low cap, and we have to go along with the provisions of the bill that effectively make it difficult for people injured to even find legal representation, because it is going to be so expensive to proceed on that suit; and there will not be any compensation because the amounts have been capped and lawyers will not come on, and they will be without a lawyer.

Only one in eight people that are subject to malpractice now file a claim anyway, and I guess the insurance companies would like to collect those premiums from the doctors and have that one in eight number be even less. Their profits would be that much higher, but society would not benefit from it. People that were injured would still have to go through their lives with those egregious situations and without help; and I think that we should focus on making the situation better, not having a political battle here that does not allow for debate.

If the gentleman will yield, I think you take it back a step further. If you remember the debates about the Patients' Bill of Rights, where doctors and consumer-patients, consumer groups and others were together on this issue, understood that we needed to have protections against HMOs and the like, needed to be able to

file an appeal to an egregious situation, I think a lot of it stemmed from the insurance companies and HMOs at that point in time saying we have to get back the equation here, and the way we will do it is we will improve our financial situation, and we will try to drive a wedge between those patients and their doctors.

Where they finally have come together and have focused the light on us and we are losing ground on the Patients' Bill of Rights, we have to again drive that wedge, and the way we will do it is by telling doctors that their premiums are going up, because patients that are subject to malpractice are getting too much compensation for their injuries, which they cannot justify and cannot move in that direction.

It is shameful. As I say, the doctors, in my view, are good people with the right mind, the right heart on this thing. When you sit down and talk with them, they understand that they are being used.

Their first comment always is, well, why do the Members of Congress not talk about what would be the right amount, if any amount, to talk about fair compensation? Why do they not talk about what should have to happen before a claim is filed? Why do they not talk about reining in the insurance companies?

I said we are perfectly willing, but conversation needs two parties, and there is one party here. We are listening. We would be more than willing to talk. The other side is not willing to have anybody listen, and they are only willing to ram things through; and unfortunately, that is what you are going to see tomorrow, and I do not think anybody is going to be served by it.

Hopefully, the other body in this institution will have the wisdom to stop that and force it back; and then maybe, maybe if there is enough pressure from other groups, we can have a conversation trying to improve the situation for everybody's benefit.

I just want to thank the gentleman for taking the time this evening to allow for some debate, probably much more than we will get tomorrow on this, so we could have a full discourse on what is going on and what the content of the bill is and what the effects are going to be on people. I think tomorrow we will hear a lot of the standard positions that people are taking, one side or another.

This discourse hopefully allowed us to broaden that out a little bit and talk about some the specifics. I thank the gentleman again for taking the time to do it and showing his leadership.

Mr. President, I rise today to introduce the ``Clinical Social Work Medicare Equity Act of 2003.'' I am proud to sponsor this legislation that will include clinical social workers among other mental health providers that are exempted from the Medicare Part B Prospective Payment System. This bill will ensure that clinical social workers can receive Medicare reimbursements for the mental health services they provide in skilled nursing facilities.

Since my first days in Congress, I have been fighting to protect and strengthen the safety for our Nation's seniors. Making sure that seniors have access to quality, affordable mental health care is an important part of this fight. I know that millions of seniors do not have access to, or are not receiving, the mental health services they need. For example, depression affects nearly 6 million seniors, but only one-tenth ever get treated. This is unacceptable. Clinical social workers

may also be the only mental health providers in some rural areas. Protecting seniors' access to clinical social workers can help make sure that our most vulnerable citizens get the quality, affordable mental health care they need.

Clinical social workers, much like psychologists and psychiatrists, treat and diagnose mental illnesses. In fact, clinical social workers are the primary mental health providers for nursing home residents. But unlike other mental health providers, clinical social workers cannot bill directly for the important services they provide to their patients. This bill will correct this inequity and make sure clinical social workers get the payments and respect they deserve.

Before the Balanced Budget Act of 1997, clinical social workers billed Medicare Part B directly for mental health services provided in nursing facilities to each patient they served. Under the Prospective Payment System, services provided by clinical social workers are lumped, or ``bundled,'' along with the services of other health care providers for the purposes of billing and payments. Psychologists and psychiatrists, who provide similar counseling, were exempted from this system and continue to bill Medicare directly. This bill would exempt clinical social workers, like their mental health colleagues, from the Prospective Payment System, and would make sure that clinical social workers are paid for the services they provide to patients in skilled nursing facilities. The Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act addressed some of these concerns, but this legislation would remove the final barrier to ensuring that clinical social workers are treated fairly and equitably for the care they provide.

This bill is about more than paperwork and payment procedures. This bill is about equal access to Medicare payments for the equal and important work done by clinical social workers. It is also about making sure our Nation's most vulnerable citizens have access to quality, affordable mental health care. Without clinical social workers, many nursing home residents may never get the counseling they need when faced with a life threatening illness or the loss of a loved one. I think we can do better by our nation's seniors, and I'm fighting to make sure we do.

The Clinical Social Work Medicare Equity Act of 2003 is strongly supported by the National Association of Social Workers. I ask unanimous consent that a letter of endorsement from the National Association of Social Workers be printed in the Record. I also want to thank Senators Johnson, Murray, Stabenow, Corzine, Inouye, and Bingaman for their cosponsorship of this bill. I look forward to working with my colleagues to enact this important legislation.

Mr. President, today, I rise to talk about an issue that is very important to me, very important to my constituents in Maryland and very important to the people of the United States of America.

For the fifth Congress in a row, I am joining in a bipartisan effort with my friend and colleague, Senator Olympia Snowe, to end an unfair policy of the Social Security System.

Senator Snowe and I are introducing the Social Security Family Protection Act. This bill addresses retirement security and family security. We want the middle class of this Nation to know that we are going to give help to those who practice self-help.

What is it I am talking about? I was shocked when I found out that Social Security does not pay benefits for the last month of life. If a Social Security retiree dies on the 18th of the month or even on the 30th of the month, the surviving spouse or family members must send back the Social Security check for that month.

I think that is a harsh and heartless rule. That individual worked for Social Security benefits, earned those benefits, and paid into the Social Security trust fund. The system should allow the surviving spouse or the estate of the family to use that Social Security check for the last month of life.

This legislation has an urgency. When a loved one dies, there are expenses that the family must take care of. People have called my office in tears. Very often it is a son or a daughter that is grieving the death of a parent. They are clearing up the paperwork for their mom or dad, and there is the Social Security check. And they say, ``Senator, the check says for the month of May. Mom died on May 28. Why do we have to send the Social Security check back? We have bills to pay. We have utility coverage that we need to wrap up, mom's rent, or her mortgage, or health expenses. Why is Social Security telling me, `Send the check back or we're going to come and get you'?''

With all the problems in our country today, we ought to be going after drug dealers and tax dodgers, not honest people who have paid into Social Security, and not the surviving spouse or the family who have been left with the bills for the last month of their loved one's life. They are absolutely right when they call me and say that Social Security was supposed to be there for them.

I've listened to my constituents and to the stories of their lives. What they say is this: ``Senator Mikulski, we don't want anything for free. But our family does want what our parents worked for. We do want what we feel we deserve and what has been paid for in the trust fund in our loved one's name. Please make sure that our family gets the Social Security check for the last month of our life.''

That is what our bill is going to do. That is why Senator Snowe and I are introducing the Family Social Security Protection Act. When we talk about retirement security, the most important part of that is income security. And the safety net for most Americans is Social Security.

We know that as Senators we have to make sure that Social Security remains solvent, and we are working to do that. We also don't want to create an undue administrative burden at the Social Security Administration--a burden that might affect today's retirees. But it is absolutely crucial that we provide a Social Security check for the last month of life.

How do we propose to do that? We have a very simple, straightforward way of dealing with this problem. Our legislation says that if you die before the 15th of the month, you will get a check for half the month. If you die after the 15th of the month, your surviving spouse or the family estate would get a check for the full month.

We think this bill is fundamentally fair. Senator Snowe and I are old-fashioned in our belief in family values. We believe you honor your father and your mother. We believe that it is not only a good religious and moral principle, but it is good public policy as well.

The way to honor your father and mother is to have a strong Social Security System and to make sure the system is fair in every way. That means fair for the retiree and fair for the

spouse and family. We strongly feel that the current system is an injustice to spouses and families across the Nation. Just because a beneficiary passes away, it does not mean that their bills can go unpaid. Join us to correct this policy and to ensure that families and recipients are protected during this difficult time. That is why we support making sure that the surviving spouse or family can keep the Social Security check for the last month of life.

We urge our colleagues to join us in this effort and support the Social Security Family Protection Act. I ask unanimous consent that the text of my bill be printed in the Record.

Mr. President, I rise today to talk about an issue that is very important to me, very important to my constituents in Maryland and very important to government workers and retirees across the Nation. I am reintroducing a bill to modify a cruel rule of government that is unfair and prevents current workers from enjoying the benefits of their hard work during retirement. My bill has bipartisan support and the House companion bill

had nearly 300 cosponsors last year. With this strong bipartisan support, I hope that we can correct this cruel rule of government this year.

Under current law, a Social Security spousal benefit is reduced or entirely eliminated if the surviving spouse is eligible for a pension from a local, State or Federal Government job that was not covered by Social Security. This policy is known as the Government Pension Offset.

This is how the current law works. Consider a surviving spouse who retires from government service and receives a government pension of $600 a month. She also qualifies for a Social Security spousal benefit of $645 a month. Because of the Pension Offset law, which reduces her Social Security benefit by 2/3 of her government pension, her spousal benefit is reduced to $245 a month. So instead of $1245, she will receive only $845 a month. That is $400 a month less to pay the rent, purchase a prescription medication, or buy groceries. I think that is wrong.

My bill does not repeal the government pension offset entirely, but it will allow retirees to keep more of what they deserve. It guarantees that those subject to the offset can keep at least $1200 a month in combined retirement income. With my modification, the 2/3 offset would apply only to the combined benefit that exceeds $1200 a month. So, in the example above, the surviving spouse would face only a $30 offset, allowing her to keep $1215 in monthly income.

Unfortunately, the current law disproportionately affects women. Women are more likely to receive Social Security spousal benefits and to have worked in low-paying or short-term government positions while they were raising families. It is also true that women receive smaller government pensions because of their lower earnings, and rely on Social Security benefits to a greater degree. My modification will allow these women who have contributed years of important government service and family service to rely on a larger amount of retirement income.

The last time Congress passed a bill significantly effecting Social Security benefits was in 1999. At that time, the Senate unanimously voted for and passed H.R. 5, The Senior Citizens' Freedom to Work Act of 1999. This legislation ensured that senior citizens who choose to work or who must work can earn income after retirement without losing a portion of their Social Security benefit. That law helps senior citizens who earn above $17,000 per year. In contrast, my bill specifically targets those with much lower retirement incomes around $13,000 per year and less. I believe that we must work to ensure a safety net for all of our seniors--including those retired federal employees who every day are forced to make difficult choices between rent, food, and prescription drugs due to the drastic effects of the government pension offset.

Why do we punish people who have committed a significant portion of their lives to government service? We are talking about workers who provide some of the most important services to our community--teachers, firefighters, and many others. Some have already retired. Others are currently working and looking forward to a deserved retirement. These individuals deserve better than the reduced monthly benefits that the Pension Offset currently requires.

Government employees work hard in service to our nation, and I work hard for them. I do not want to see them penalized simply because they have chosen to work in the public sector, rather than for a private employer, and often at lower salaries and sometimes fewer benefits. If a retired worker in the private sector received a pension, and also received a spousal Social Security benefit, they would not be subject to the Offset. I think we should be looking for ways to reward government service, not the other way around. I believe that people who work hard and play by the rules should not be penalized by arcane, legislative technicalities.

Frankly, I would like to repeal the offset all together. But, I realize that budget considerations make that unlikely. As a compromise, I hope we can agree that retirees who have worked hard all their lives should not have this offset applied until their combined monthly benefit, both government pension and Social Security spousal benefit, exceeds $1,200.

I also strongly believe that we should ensure that retirees buying power keeps up with the cost of living. That's why I have also included a provision in this legislation to index the $1,200 amount to inflation so retirees will see their minimum benefits increase along with the cost of living.

The Social Security Administration recently estimated that enacting the provisions contained in my bill will have a minimal long-term impact on the Social Security Trust Fund--about 0.01 percent of taxable payroll. Additionally, my bill is bipartisan and is strongly supported by CARE, the Coalition to Assure Retirement Equity with 43 member organizations including the National Association of Retired Federal Employees, NARFE, the American Federation of Federal State County and Municipal Employees, AFSCME, the National Education Association, NEA, and the National Treasury Employees Union, NTEU.

I urge my colleagues to join me in this effort and support my legislation to modify the Government Pension Offset. I ask unanimous consent that the text of my bill be printed in the Record.

Madam Speaker, I rise tonight and will take my time to describe the crisis that we face in this country regarding access to health care; and make no mistake about it, this is truly a crisis. When you have doctors unable to go to emergency rooms to provide emergency care, particularly for patients who have sustained automobile accident and head injuries; when you have OB-GYN physicians, as I am, stopping their programs at the most experienced states of their career because of the fear of litigation, you have patients who are in most need of those skills being the least likely to get them.

This crisis also extends to the facts that fewer and fewer of our best and brightest are choosing medicine as a career. The application rates to our medical schools are down significantly over the last several years. What is causing this? We hear from the other side and a lot of things are mentioned, insurance companies, of course, are being blamed for gouging physicians and for gouging the public. But I suggest to you, Madam Speaker, that that clearly is not the case.

Let me just give you a few statistics and share with you what has happened in my State, not just my own district, the 11th, but in the entire State of Georgia. MAG Mutual, Medical Association of Georgia Mutual Insurance Company, a doctor-owned insurance provider states that premiums for malpractice insurance are rising at rates of 30 to 40 percent a year. The Georgia Medical Association reports 20 percent of State doctors are curtailing the scope of their practices with some 11 percent actually refusing to performing emergency surgery.

Recently, the Georgia Board for Physicians Workforce released an access-

to-care study regarding physicians and the medical liability crisis. And let me share some of these statistics, and this is really frightening. In the State of Georgia, some 2,800 physicians are expected to stop providing high-risk procedures just to limit liability; 1,750 physicians in Georgia have stopped or are planning to stop providing ER coverage; 630 physicians plan to retire or in fact even leave the State. One in five family physicians and one in three OB-GYNs have reported plans to stop providing high-risk procedures including the high risk of delivering a baby. One-third of radiologists reported plans to stop providing high-risk procedures including, Madam Speaker, reading mammograms.

Now, Georgia is certainly not the only State in crisis. In fact, there are a total of 13 States that are in crisis: Georgia, Florida, Mississippi, Nevada, New Jersey, New York, Ohio, Oregon, Pennsylvania, Texas, Washington, and certainly West Virginia. And there are 30 other States that are in a near crisis. In fact, Madam Speaker, there are only about seven States in this country that are not in crisis or near crisis.

So the issue that we are presenting and the issue that H.R. 5 is trying to address is the fact that we are losing access to care and this is affecting every citizen in these United States, in all 50 States.

It is causing physicians to stop practice in many instances at the most critical time of their career, when they are the most experienced, they are the most compassionate, they have the best judgment and the highest level of skills. They are actually walking away. They are trading their white coats, literally, for fishing gear, which is a shame, which is a shame. And this is happening all across the country.

When physicians stop their practices, it is not just losing one doctor; it is really losing a business. We are in a time of economic crisis in this country. We probably have 8 million people who are unemployed. As I point out, we are not just talking about the loss of one job when a physician decides to retire early or move to another State. We are talking about 5, 10, 15, 25 employees who have worked diligently in that medical practice in support of that physician. And you are putting every one of these people out of work, and adding to this crisis that we face right now of this economic downturn.

So, Madam Speaker, it is not about the physicians and their bottom line or how much money they are making in practice. It is not that at all. What our concerns are is the fact that runaway jury awards which have almost created a lottery-like mentality are resulting in no patient access. And the stories of people going to the emergency room, needing to see that neurosurgeon to treat that potential closed head injury. We heard some testimony today in a press conference. It was awfully sad to see the wife whose husband is now severely brain damaged. She came to Washington today, all the way from California with her two teenage children to describe how she went to the emergency room, her husband was taken to the emergency room after the automobile accident that he was in and there was no neurosurgeon on duty. And he had to literally be air-lifted 60 miles away, and it was a 6-hour delay before he could get the care that he needed and the result was he sustained permanent brain injury.

Madam Speaker, I see some of my colleagues have joined me in the Chamber, and I want to at this point yield to them. I know they have worked very diligently on this issue. They are co-sponsors of H.R. 5, and they have got a lot of expertise that I know they would like to share with the Chamber and with the Members and, of course, with the American public. I would first like to recognize the gentlewoman from West Virginia (Mrs. Capito).

Mr. Speaker, I thank the gentlewoman from West Virginia for her comments, and I am really appreciative of her pointing out some things that needed to be mentioned.

I talked about the fact that when a doctor closes his or her door that it affects more than one employee and it could affect five or 10 or so, and the West Virginia crisis was as serious as any in the Nation, and I commend West Virginia General Assembly and the governor for passing this reform, the Medical Justice Act as the gentlewoman from West Virginia described it, and that is really what it is. It is a Medical Justice Act, and what is important for people in this country to understand is that nobody, no physician certainly, is trying to deny a patient the access to a redress of grievances in a situation where they have been injured or a family member has lost their life because of practice below the standard of care, either on part of the physician or the hospital in which that care was provided.

I have unfortunately, over a 30-year career in OB/GYN with 5,200 deliveries, been involved in a couple or three lawsuits where myself, along with six or eight or 10 other people, were named, and in at least one of those cases I was pulling for the plaintiff. I felt that they deserved just compensation and was glad when they received it.

Nor are we trying to, in trying to address this problem with H.R. 5, to say and paint with a broad brush that all attorneys are guilty of being egregious in their behavior in regard to filing frivolous lawsuits and gouging the system. In fact, I think the opposite is true. Most attorneys are very professional. Those who are involved professionally in personal injury law do a good job, and they represent their clients well. Unfortunately, there are too many of those situations where the lawsuit is frivolous, and because of the ridiculous contingency fee structure it sort of promotes the filing of frivolous lawsuits and hoping for that one in a million lottery payoff, and that is really, it is not only putting physicians out of business. As the gentlewoman from West Virginia said, it is causing rural hospitals that provide some of the most important high risk care, a preponderance of Medicare and Medicaid patients, and they are closing the doors, and as she pointed out, in many instances that is the only employee base in the whole county or region of the State, and so it does not justify situations, but it is hospitals, too, that are dealing with this, and many of them, of course, are self-insured.

I see that the author of this bill, Madam Speaker, the distinguished gentleman from Pennsylvania is here, and I would like to yield as much time as he needs to let him talk about the bill.

Madam Speaker, I thank the gentleman, the author of this bill, the distinguished gentleman from Pennsylvania (Mr. Greenwood) and the work that he has done on H.R. 5 trying to address this problem.

Madam Speaker, I notice that a couple of our colleagues who are doctors have joined us in the Chamber, and I would like to call on them to talk about this crisis and the medical justice bill, the Greenwood legislation, H.R. 5, which we are going to pass tomorrow and hopefully get that passed in the Senate and solve this problem.

First of all I will yield to the gentleman from Pennsylvania (Mr. Murphy). Dr. Murphy.

I appreciate that question from the gentleman from Pennsylvania because it is so critical, and my colleague has worked so closely in that area dealing with those type patients after the fact and trying to work through their unfortunately permanent problems that they sustain as a result of that lack of access to care.

I can just anecdotally tell of a situation in my own family, Madam Speaker. My grandchildren, my twin granddaughters, who are precious, of course, as all grandparents talk about their grandchildren, but mine are now 5\1/2\ years old, but they were born at 26\1/2\ weeks. Now, very fortunately, we were in a community where we had excellent care. We had access to OB/GYN care; in fact, my own group. And we had a wonderful hospital and a wonderful intensive Neonatal Intensive Care Unit that the gentleman from Pennsylvania (Mr. Murphy) is talking about. But had that occurred in a rural community, had that occurred in a community like West Virginia or Pennsylvania, where we are in a crisis mode, and physicians because of the inability to pay for these outlandish, outrageous malpractice fees caused by this crisis, then our little grandchildren would have not had that care and, without question, they would have become a statistic, as the gentleman from Pennsylvania is talking about.

That is the tragic situation that we would have experienced, and that others have experienced because of this crisis, not to mention the cost to society in trying to take care of children that sustain brain injury because of a lack of access to adequate obstetrical care. So I am so grateful the gentleman from Pennsylvania brought that up.

Madam Speaker, I thank the distinguished doctor, the gentleman from Pennsylvania, for his testimony.

I want to just share some statistics with the Chamber and then yield to the distinguished OB/GYN physician, the gentleman colleague from Texas (Mr. Burgess), to tell us a little bit about, through his eyes, what the State of Texas is faced with.

Indeed, Madam Speaker, Texas, just as Pennsylvania, just as West Virginia, just as Georgia, is one of those crisis States. According to a Texas Medical Association poll of Panhandle doctors, 61 percent, 61 percent, have plans to retire early, and 83 percent say they use defensive tactics in practicing medicine for fear of being sued.

Another story from south Texas. A pregnant woman was forced to drive 80 miles to a San Antonio doctor and hospital because her family doctor in her more rural hometown had recently stopped delivering babies, citing malpractice concerns.

Madam Speaker, at this time I yield to a distinguished physician, the gentleman from Texas (Mr. Burgess).

Madam Speaker, I want to share some examples of excessive costs for liability concerns. Consider this: an April 2002 survey of physicians showed that nearly 80 percent have ordered more tests than medically needed because the doctors feared being sued, and nearly 75 percent referred patients to specialists more often than necessary. Doctors spent $6.3 billion last year on medical liability coverage. Hospitals and nursing homes spent billions more. The Federal Government, through its funding of Medicare, Medicaid and other programs, pays an additional $28 to $47 billion a year for health care due to the cost of medical liability coverage and defensive medicine.

Madam Speaker, I would like to yield to the gentleman from Iowa (Mr. King).

Madam Speaker, I thank the gentleman for sharing his experience in his State.

Madam Speaker, I see that the gentleman from Florida, the distinguished doctor of internal medicine, has joined us in the Chamber. I yield to the gentleman from Florida (Mr. Weldon).

I thank the gentleman from Florida, the distinguished doctor, for sharing those remarks with us. As one of the original cosponsors of this bill, of H.R. 5, he deserves a lot of credit for bringing it to this point.

Madam Speaker, in closing, as I said at the outset of the hour, this bill is not about denying access to a redress of grievances, if you will, for a patient who has been injured by a physician or a facility who is practicing below the standard of care for that community. Nothing in this bill does that, and it is not a bill to take away the right of a profession, an attorney who is engaged in personal injury work, to do their work and do it well. It is not about that at all. It really is about two things. It is about saving a great profession for my doctor colleagues, yes, but that is not the most important thing. The most important thing is to try to save a health care system, arguably the best in the civilized world, from the destruction of a legal system that has run amuck. That is what H.R. 5 is about, the HEALTH Act of 2003, the Medical Justice Act, if you will. I am a very proud cosponsor of this legislation. Tomorrow, when I vote for H.R. 5, it will be a very important moment in my young political life. I predict that this bill will pass this House of Representatives and we will move it on to the Senate. It is time for the Senate to act. Patients demand it. Our constituents demand it. It is too important to miss this opportunity.