Floor Statements

Mr. President, parliamentary inquiry: My understanding was the order would be that the Senator from Illinois would proceed, then myself, and then the Senator from Louisiana.

Madam President, I ask that the pending amendment which is currently before the Senate be temporarily set aside, and I call up amendment No. 1585.

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

Madam President, this amendment would increase funding for the 21st Century Community Learning Centers program by $100 million.

This amendment does not bust the budget or cut any other education program in the budget. Rather, the amendment requires an across the board cut in every other title of this appropriations bill. This calculates to a point zero-zero-one-two-percent across the board cut.

I am committed to ensuring that our schools have the assistance they need to make certain that our children leave the education systems as well-rounded individuals.

The 21st Century Community Learning Centers in Nevada, and across the country, work to create well-rounded individuals by partnering with groups such as local YMCAs, local children's museums, the Girl Scouts, Boys and Girls Clubs, and in Nevada, the City of Las Vegas, the University of Nevada, the Clark County Health District, the Nevada Youth Alliance, and America's Promise, just to name a few.

Last year 2,780 new applicants requested over $1.9 billion from this program. Only 308 applications received approval and funding totaling $206 million.

Currently in Nevada there are 6,750 children receiving services from a 21st Century Community Learning Center in their neighborhood. However, there are currently over 75,000 students eligible for this program in Nevada alone.

The benefits of this program should go without saying. Not only do children enrolled in these programs improve academically, but are also less likely to become caught up in the juvenile justice system.

Accordinig to the Department of Education, children who regularly attend high quality after-school programs have better peer relations and emotional adjustment, better grades and conduct in school, more academic and enrichment opportunities, spend less time watching television, and have lower incidences of drug use, violence, and pregnancy.

This makes sense considering that studies by the FBI have found that the peak hours for juvenile crime and victimization are the hours after school and before parents get home from work.

These important programs not only give students a place to go after school, but use that time to give students assistance with their homework, provide additional English lessons to students who do not use English has their first language, and give these kids a safe place to interact with their peers.

I ask my colleagues to not give up on the thousands of children across America who may need a little extra help to succeed in school and support this amendment.

Senator Boxer offered an amendment earlier on the very program on which I am offering an amendment. Her amendment was for a larger increase in the afterschool program but her amendment was not offset. I totally support what she is trying to do. I believe very strongly in afterschool programs.

I am offering a $100 million increase in the afterschool programs compared to what is currently in the bill. I know that the chairman has worked hard and has tried to get as much funding as he can. But as somebody who grew up in a situation as a latchkey kid, afterschool programs would have been very helpful to me. There are many, many children out there today who need afterschool programs to keep them out of the improper type of behavior that kids can engage in these days. It is cheaper to invest in these children in these afterschool programs than it is to spend the money when they get into trouble in the juvenile halls and some of them end up going to prison. These are wonderful programs.

I ask our colleagues to consider this amendment. I know we are trying to stay within the budget. Ours does. It shifts some funding from one place to another so we can provide this extra funding to get more kids into the afterschool programs.

I yield the floor.

I will be very brief. This amendment is adding $100 million for the afterschool programs. It is offset. We do a small across-the-board cut; it will only be .012 percent for the programs. I think any of the programs can take that. But in the process, we are going to be helping a lot of kids who otherwise are going to be becoming juvenile delinquents. We know the statistics. If you don't have kids in the right activities, they get into trouble. If they are sitting around with nothing to do, they get into trouble. Afterschool programs are perhaps one of the best anticrime measures we can take. I encourage my colleagues to support this amendment.

Very soon.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

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

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

Mr. President, I will take a very short time on this amendment. I am proposing this amendment for myself, Senator Murray, and Senator Gregg. This amendment is to address a problem we hear about back home on the No Child Left Behind Act. When you go home and talk to educators, they talk about not having adequate money to get the technology to transfer the data to comply with the No Child Left Behind Act for the local school districts. It is the No. 1 complaint we have heard from all of the school districts back home.

This amendment appropriates $80 million to basically fund that shortfall, and it takes the money out of administrative costs in the Department of Education. We think it is a very reasonable amendment. We hope our colleagues will support the amendment. Hearing from educators across the country, this will address one of the most pressing concerns they have in complying with the No Child Left Behind Act.

I just spoke to the new teachers in Clark County. They had to break it down into 2 days, with 700 one day and 700 the next for new teacher orientation. During that time, there were a lot of administrators around, and this was by far the biggest question they had--making sure they had adequate funds to comply with the No Child Left Behind Act. We think this amendment goes a long way toward complying with the No Child Left Behind Act.

I will yield to my friend from New Hampshire to make some remarks.

Mr. President, if no one else seeks recognition, I just add a couple of comments about the amendment. It has the support of the Council of Chief State School Officers. The reason, as I mentioned before, is because no matter how small or large the school district is, they are all facing the same problems this amendment attempts to correct.

They just do not have the infrastructure that is necessary to capture, analyze, and disseminate the data required by the No Child Left Behind Act.

Several States have not even done the planning to implement this because they don't have the resources. This amendment is going to give those resources necessary to comply with the No Child Left Behind Act.

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

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

I ask unanimous consent that Senator Collins be added as a cosponsor to amendment No. 1621.

I suggest the absence of a quorum.

I ask unanimous consent that the yeas and nays be vitiated.

Mr. President, I rise today to pay tribute to a man of remarkable leadership, dedication, and courage and to join Nevadans and Americans in mourning the loss of retired Air Force General Bill Creech.

As chairman of the Military Readiness Subcommittee, I have learned a great deal about what it has taken and what it will continue to take for our armed services to be the top military in the world, bar none. For the strength, effectiveness, and success of today's Air Force, this nation owes a debt of gratitude to Bill Creech.

Creech started as a private in the Air Force in 1944, and as he rose 14 rungs to four-star general, he never forgot what it was like to be at the bottom. During almost 40 years of service to this nation, he flew 280 missions as a combat pilot and was decorated 39 times, including 22 awards for bravery in combat.

In 1960, he came to Nellis Air Force Base in Las Vegas where he was director of operations for the ``Top Gun'' Fighter Weapons School and during which his relationship to southern Nevada first formed.

In 1978, he earned his fourth star and became commander of the Tactical Air Command, or TAC, at Langley Air Force Base in Virginia. During his 6\1/2\ years as commander, Creech showed the Air Force how to get the job done, and his leadership continues to be a lesson to us all. Under his direction, TAC's productivity improved by 80 percent and resulted in $12 billion of savings for the government.

And while Creech cut out the fat and waste, he oversaw the development of a new generation of air fighters including many modern jets as well as our prized Stealth fighter that eludes radar detection. Creech also used his experiences in Vietnam to develop night-flying tactics that led to our victories in the Persian Gulf War and Iraq.

After his retirement from the military, Creech became an internationally recognized management consultant with a best-selling book on total quality management based on his success restructuring the Air Force. For anyone who manages a single office or a multi-billion dollar corporation, Creech's message is invaluable. By rewarding accomplishments, creating pride in ownership, and developing a team atmosphere, the human factor endures and success results.

To southern Nevadans, Bill Creech will always hold a special place in our hearts for his loyalty and dedication to our beloved Thunderbirds, the air demonstration team that calls Nellis Air Force Base home. A Thunderbird pilot who flew 125 demonstration shows, Creech was once referred to as ``the father of the Thunderbirds,'' and he believed that the Thunderbirds inspired young people to join the Air Force.

The Thunderbirds exist today because Bill Creech stood up for them. After four pilots were killed in fight, he publicly stated that if the team suffered an accident during his tenure he would resign. We are grateful that he took that stand. I have had the honor of watching the Thunderbirds in action on many occasions. They display the power and awesomeness of our Air Force and the dedication of people like Bill Creech who lift this nation to new heights so that we may all continue to soar.

To Bill's wife, Caroline, I offer the condolences and admiration of Nevadans and Americans. This great Nation that Bill Creech risked his life for and lived his life for will always be grateful for his contributions.

Mr. President, I ask for the yeas and nays on the bill.

Madam President, I move to reconsider the vote.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 1170

Mr. President, I rise today in support of an amendment concerning our U.N. peacekeeping assessment rate. This amendment is very simple. It supports the President's plan to move toward having the U.S. share of U.N. peacekeeping costs fall to 25 percent without incurring arrears.

This history of our financial commitment to U.N. peacekeeping should be a cautionary tale. For instance, from 1988 to 1994, U.N. peacekeeping spiraled out of control as the number of operations more than tripled and costs soared from $268 million to $3.5 billion.

Finally, in 1994 the Democrat-controlled Congress and President Clinton enacted legislation unilaterally reducing the U.S. share of the U.N. peacekeeping budget from 31 percent to 25 percent. This produced arrears, but it also produced badly-needed reforms.

Indeed, combined with the disastrous U.N. peacekeeping operations in Somalia and Bosnia, this drastic action finally helped get the attention of other member states. For instance, the U.N. finally set up a 24-hour-a-day command and control center where military officers participating in peacekeeping operations could call in to discuss the situations in the field. Results were positive.

The annual U.S. peacekeeping bill fell from almost $1 billion to around $300 million in 1997.

With the historic Helms-Biden U.N. agreement we managed to clear up our fair share of arrears in exchange for much needed reforms. Congress later agreed to a glide-path in our peacekeeping assessment rate, still maintaining the 25 percent cap in law but permitting higher authorized levels as we work to achieve that goal.

This amendment continues the glide-path. It authorizes an assessment level of 27.1 percent for the next 2 years, which is the exact level the Bush administration says we need in order to fully fund our obligations.

To permanently raise the cap to 27.4 percent, as the underlying bill seeks to do removes all pressure to reduce the U.S. assessment level and reform U.N. peacekeeping. That is unhealthy for the U.S., which paid $794 million in U.N. peacekeeping costs last year, and unhealthy for the U.N. which is overly reliant on one nation--the U.S.--for financial support.

Let's fully fund the President's request for U.N. peacekeeping and let him keep the necessary tools he needs to ensure that U.N. peacekeeping is as effective as it can be.

One of those tools is the 25 percent assessment rate in current law.

The White House Statement of Administration Policy calls section 401 of this bill, which permanently raises the peacekeeping cap to 27.4 percent, a significant provision that restricts the President's ability to conduct and manage foreign policy. So I hope that my colleagues will join the White House and State Department in supporting my amendment to this bill.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. President, I appreciate the words of the majority whip. I rise today to speak on behalf of the bill that I have introduced, the Patients First Act. The reason we call it the Patients First Act is because it really does put patients first.

In our health care system today, we have too many patients who are either close to being denied care or have been denied care simply because physicians cannot afford the medical liability premiums they are facing today.

My State, as the Senator from Kentucky mentioned, is one of those States that is in crisis. Our State has a level I trauma center which serves a four-State region, and last year that trauma center closed for 10 days. The closure of that trauma center was the only event in my state of Nevada that brought the people who were against reforming our medical liability system and our overall tort system and the proponents of that reform together. This crisis allowed a special session of the legislature to be called so they could try to deal with this situation. I commend our Governor and State legislators for their efforts to deal with the situation.

The problem in Nevada, as with other States that have enacted reform, is it will take 6 to 10 years, depending on the length of the appeals and the challenges to the law, before we know whether the bill will actually take effect and have the result of lowering the costs for medical liability insurance.

In the meantime, Nevada and many other States are losing doctors in droves. Nevada is the fastest growing State in the country, and we cannot afford the migration of doctors from our state to continue.

Speciality fields are the most severely affected by this crisis, and of those, obstetrics and gynocology are of the most severely affected. In southern Nevada, we have 5,000 to 6,000 new people a month moving in. This increase in our population during this time of crisis has resulted in three things happening.

One is we are losing doctors; two is new doctors are not coming to replace them; and three is, the few ob/gyns who actually are staying, when they were delivering 250 to 300 babies a year previously, they have cut that number down to 125; 125 babies from 250 to 300. One can do the math. It does not add up.

Additionally, many doctors who previously delivered babies in high- risk pregnancies no longer can deliver them because their insurance company will not cover them for that procedure. We are in a situation where some of our best doctors are not able to give the care they are are capable of giving.

I see my friend from Wyoming just arrived in the Chamber. Mr. President, I say to him, I am going to take a couple more minutes and then I will yield the floor.

This is not just a Nevada issue. As the Senator from Kentucky mentioned, 19 other States are in crisis, and all but 6 States are showing signs of heading into a crisis. In every State that is in crisis or heading into a crisis, we hear the same kind of stories from patients. It is a real problem, a problem the Senate must address. The House has already dealt with it. Now the Senate must deal with it.

This crisis is a national problem. For Medicare, Medicaid, veterans, 60 percent of all the medical bills are paid through the Congress. Because of that, it is a national issue and it requires the House of Representatives and the United States Senate to act in concert to send a bill to the President. The House has done its job. Now it is up to the Senate.

I will share one or two quick anecdotes to illustrate real people who have been touched by this issue.

During the closure of the level I trauma center in my home State of Nevada, a woman and her father, Mr. Lawson, were in Las Vegas visiting when this level I trauma center closed. The father had to be transferred to a different emergency room, and on his way there, unfortunately, this gentleman passed away.

Level I trauma centers are staffed with the most talented, specialized people in the medical profession. We have trauma centers specifically staffed by the best because they must save lives that are in jeopardy every day. That trauma center closed because the specialists could not afford the insurance, and they could not afford the liability from the exposure of potential high-risk surgeries to save lives.

The only way the legislature was able to open that trauma center again is they covered the people who worked there under the umbrella of the State.

By the way, when we talk about caps, my home state of Nevada has a cap of $50,000 total for economic, non-economic and medical. It is a total $50,000 cap, obviously much more severe than we would even think to consider in this body. In the bill before the Senate today we have a $250,000 cap on pain and suffering, but an unlimited amount on economic damages and medical expenses, and if there is gross negligence, there are punitive damages in this bill as well.

We think we have taken a balanced approach so that patients throughout this country are not denied care, such as when the trauma center in Nevada was forced to close, do not have to go through that experience again. We have to ask the fundamental questions: How many more people have to be denied care who really need it? How many more people have to die in this country before this body will take action? That is really the bottom line today. People are being denied care, and more and more people will be denied the care they really need. That is why this institution needs to act.

Mr. President, I yield the floor so the Senator from Wyoming may speak.

Mr. President, how much time is on each side?

Mr. President, I yield myself 5 minutes.

Mr. President, first of all, let's make sure one thing is clear. What we are debating today is whether to proceed to the bill. We are trying to get on the bill. If people have certain problems with the bill, they can offer amendments, but only if they allow us to proceed to the bill. That is what the vote is on today, whether or not we are going even consider that we might address a crisis that is happening in the United States.

There have been a few things that have been talked about from the other side of the aisle today that I would like to address. I want to read from a report because they have been quoting this study. The Weiss study, which has been referenced repeatedly by the other side of the aisle, supposedly took numbers from this publication called the Medical Liability Monitor.

Mr. President, I ask unanimous consent that a portion of this report be printed in the Record.

Mr. President, the editor of this report has basically said the Weiss study they quote is completely misusing their numbers. I refer you to a portion of the report entitled ``Survey Finds Wide Swings in Premiums'' because my colleagues on the other side of the aisle state that there have not been these wide swings in premiums. The report says:

The size of increases in some areas in which malpractice

problems with claims and claims severity have exploded was

mind-boggling. Increases of 40 percent, 50 percent, 60

percent, 80 percent were not uncommon. In Arkansas one

carrier boosted rates by 90.1 percent to 112.7 percent.

Notice what it said here. It said, ``malpractice problems with claims and claims severity have exploded.'' The premium increases have been ``mind-boggling.''

The Senator from Illinois has put up pictures of victims of malpractice. I want to show a picture of one of the victims, because there are victims on both sides of this issue.

Picture this gentleman shown here.

This was a gentleman, Mr. Lawson, who was visiting the city in which I live, Las Vegas, Nevada with his family. Unfortunately, the time they visited was the week the trauma center closed because of the crisis we have in the State of Nevada. The trauma center closed, and this gentleman, unfortunately, could not get care. In this picture he looks healthy. Unfortunately, he is no longer with us.

There are a lot of people the other side have shown as victims. Those people, if we do not do something, will not even have doctors to go to because doctors are leaving the profession, and new doctors are not coming in to replace them.

We have a crisis in this country in 19 States. All but six States are showing serious problems. The Senator from Illinois quoted my words yesterday, that it takes years to find out whether legislation in the States that have enacted reform will be effective. The reason for that isn't that they aren't necessarily good pieces of legislation, it is that they are being challenged in court and then appealed and appealed and appealed. A lot of the State courts are striking down these laws, because of some technicality in their constitution or a particular problem in their piece of legislation. Because of that, there is uncertainty even when States pass legislation if this crisis will remain out of control. The insurance companies don't know whether the laws are going to be upheld, so they can't lower rates because they may end up with a huge liability down the road if the law is struck down. That is the problem.

We must act now while we still have some time. How bad does the situation have to get in the future? I would love to add into this bill, as we did with campaign finance reform legislation in the year 2001, an expeditious judiciary review of the law so that we can find out whether it is going to be held constitutional or not. But we can't do any of that because the other side of the aisle will not even allow us to proceed to the bill. We can't debate the legislation and we can't offer any amendments unless we can at least agree to proceed to the bill.

If the opponents don't like the legislation, if they think there are ways to fix it, they should allow us to at least proceed to the bill so that we can have amendments offered, have a full debate, bring out all the pictures of the victims you want to bring out, amend the bill, and come up with legislation that is going to actually fix the problem in the United States. It really is a crisis and you can be sure that debating on the motion to proceed, and not agreeing to take up the bill will not fix the problem.

I wish to again illustrate the differences in the premiums across the country by the use of this chart. In white are the two States with cities represented that have had medical liability reforms in place for some time.

I yield myself an additional minute.

The ones in gray have not.

Let's go to obstetrics and gynecology. Los Angeles, CA, the bill before us today mirrors the law they have there. There is a $54,000 medical liability premium in Los Angeles. In Denver, where they have had it since 1988, it is $30,000. New York, Las Vegas, Chicago, Miami are much higher: $89,000, $108,000, $102,000, over $200,000 in Miami. That illustrates the difference in the premiums in States that don't have the reform. These numbers are continuing

to go up at a rapid rate. The numbers reflected here are actually a couple years old, and they are continuing to skyrocket in States without reform. That is why we need to act. It is a national priority, and we must act now.

I reserve the remainder of our time.

Will the Senator yield for a question?

Is the Senator aware, last year, when his party was in control, 115 bills bypassed the committee process, including the economic growth package, No Child Left Behind, the Patients' Bill of Rights, a Medicare prescription drug bill, the energy bill, and the Trade Promotion Act? All were brought directly to the floor and bypassed the committee process. Is the Senator aware his party did that?

Mr. President, I think we have 12 minutes 20 seconds on our time. How much time is on theirs?

Two Senators have just come into the Chamber. As soon as they are ready, I would like to yield them 10 minutes and reserve 2 minutes on our side and we can close up. At 11:10, the Democratic leader will be recognized. So I will yield 10 minutes to the Senator from Missouri, Mr. Bond.

I have 2 minutes and 20 seconds remaining.

I yielded to the Senator from Missouri and reserved 2 minutes and 20 seconds for myself.

Mr. President, I thank my colleague for the time.

I will make a couple of quick points. First, we have seen a lot of pictures from the Senator from Illinois. He talked about the $250,000 cap on damages included in this bill. Let's get one thing straight. It is a $250,000 cap on pain and suffering.

He put up a picture of a young child. I will read some of the totals. California has comprehensive medical liability reform in place that this bill I have presented today is modeled after. These are the following awards, and these are almost all economic damages or medical damages that were awarded to these infants: $43,500,000 in May 2002; July 1999, $30,800,000; April 1999 in Orange County, almost $7 million; January 1999 in Los Angeles County, almost $22 million; December 2002, $84 million. So for pictures to be put up and to say, what is this child going to get, this child can get a lot. Most of these awards are in economic damages or in medical expenses. Those damages are not capped in this bill.

The next picture we have to put up is a woman with her child. Because there was no OB/GYN available, she had to deliver this child on the side of a road by herself. Unfortunately, the patient did have complications, and the mother had to provide CPR to the baby on the side of the road in the middle of the Arizona desert. Thankfully, the baby survived. But she could have had serious consequences, and then they would not have been able to get compensation from anybody. And this is because there was no care available at the community hospital that she had to bypass because the doctors could no longer afford the premiums because of the frivolous and outrageous lawsuits that are destroying our court system.

I yield the floor.

Nomination of Victor J. Wolski

Mr. President, what is this about today? What are we really talking about? We are talking about access to health care by patients. We have enacted reasonable limits in this bill so the crisis facing 19 States and the patients in 19 States across this country can be resolved.

The problem is caused by out-of-control jury awards and frivolous lawsuits which are cheaper to settle--and those get settled all the time--than they are to fight. The reason they will settle them is the potential huge award and the huge downside risk they have down the line. A lot of insurance companies just settle those and pass the higher rates on to doctors. That has led to many physicians leaving those 19 States in crisis and a lot of new doctors not going into the specialties which are in short supply.

If we ask ourselves the fundamental question, Is there a shortage of doctors or is there a shortage of lawyers? we do not have a shortage of lawyers in my State home state of Nevada, or in any other State, as far as I know. We do not have any shortage of people going into the practice of law. We do have a shortage of people going into the practice of a lot of the specialties in health care. The reason is that we have a jury system that is out of balance. We did not used to live in this litigious society of today. People are so sue happy and the system is set up to encourage frivolous lawsuits.

California and Colorado are the two best examples we have of medical liability reform that has been on the books long enough. We know it works. Victims get what they deserve in those States, but the system is balanced so doctors can afford their premiums on medical liability. That is what the bill before the Senate today lays out, a model very similar to Colorado and California for the rest of the country.

I encourage all of our colleagues to at least vote for the motion to proceed to the bill so we can have a full debate with amendments to proceed to solve this severe crisis we have in access to health care across the country.

Mr. President, I was scheduled to make a statement on the medical liability bill, and I am prepared to do that at this time.

Probably 10, 20 minutes.

Mr. President, I have come to the Chamber to talk about the legislation we are going to be discussing for the next couple of days. It is very important legislation that affects people in virtually every State in the country.

We have patients today being denied access to medical care in many States across the country, and we are going to explore why that is happening and what I believe the solution should be. Several States are losing medical professionals at an alarming rate, leaving thousands of patients without a health care provider to serve their needs.

In Bisbee, AZ, the town's only maternity ward closed. Today expectant mothers must drive more than half an hour to have their babies delivered. In Mississippi, 11 out of 21 obstetricians terminated service in four rural counties. In my home State of Nevada, our only level 1 trauma center closed for 10 days, leaving every patient within 10,000 square miles unserved by a trauma unit.

The bottom line is patients cannot get care when they need it most. By definition, this is a crisis. This crisis boils down to two factors: affordability and availability of medical liability insurance for providers.

The States in red are currently in crisis. A number are new States in crisis. We can see they have been added, including the Chair's State of Wyoming. My State has been in crisis for quite some time now, and it has led to a lot of the national press, but it is certainly not alone. The States indicated in yellow are the States that have problem signs. The States that currently seem to be OK are indicated in white, and we can see that very few States are in pretty good shape. Most of those States have enacted medical liability reform that has been in place long enough to stabilize the rates on medical liability insurance.

On affordability, the American Medical Association found that in the year 2000, medical liability insurance rates increased at least 30 percent in 8 States and by at least 25 percent in more than 12 other States. In this past year, the physicians in my State would be pleased if the rates had only gone up that much. These rates are forcing more physicians, hospitals, and other health care providers to limit their practices or to leave the profession altogether.

Anecdotally--and obviously this hospital would not want this word to get out--at this time of the year when they get applications for new residents, they normally get about 18 to 20 residents applying for slots at that hospital. That is an average of 18 to 20 each year. This year they have received zero applications, and that is because of the medical liability crisis that is occurring in my State.

Rates are forcing so many physicians and hospitals into a situation they did not want to be in. They went into these practices because of the compassion they felt for patients, and they are not being able to deliver the services because of the out-of-control costs of medical liability insurance.

On the issue of availability, thousands of doctors nationwide have been left with no liability insurance as major insurers are either leaving the market or raising the rates to astronomical levels.

Why are insurers raising rates or leaving the market? Because there is no stability in the marketplace for providing medical liability insurance. Why is that the case? Because our health care system is being overrun by frivolous lawsuits and outrageous jury awards. This excessive litigation is leading to higher health care costs to every American and an unstable peace of mind for our health care providers.

This chart shows the average payment in red from the year 1989 to the year 2001 and the median payment. We can see the dramatic increase, especially in the last few years, and if this chart continued out, it is continuing that trend up to the point where the average being paid in jury awards is continuing to skyrocket, and it is doing that because of the number of over $1 million awards being made by juries.

This is a chart reflecting the median jury award. We can see this is the $1 million line, and we can see what has happened. It has gone up. This, unfortunately, has created a situation where doctors, hospitals, and health care providers cannot afford to buy the insurance they need to continue practicing.

This excessive litigation is leading to higher health care costs for every American and an unstable peace of mind for our health care providers. Health care professionals are forced to practice defensive medicine by ordering unnecessary tests just to avoid being sued for ``underdiagnosing'' their patients. A study by the Department of Health and Human Services found defensive medicine is costing the Federal Government an estimated $28 billion to $47 billion in unnecessary health care costs.

Who else pays for these unnecessary costs? Every American with health insurance in the form of higher premiums and, obviously, the American taxpayer. Too often costs are so great that employers have to stop offering coverage altogether, thereby increasing the number of uninsured Americans. A lot of those uninsured Americans are younger, healthier people. So the people who are left in the health care field are a higher risk pool, which drives up the cost even more, which causes more and more people to not be able to afford health care insurance; therefore, more uninsured. It is a vicious cycle that goes on and on. This cycle has to be stopped. We can do that by passing national medical liability reform right now.

Comprehensive reform is critical on a national level because every American patient should have access to affordable and high quality health care. Likewise, every responsible, meritorious member of the health care community should not be afraid to provide such care because of the fear of litigation.

To achieve these reforms, I have introduced the legislation that is before us today, known as the HEALTH Act. It has several key reforms. It includes a $250,000 cap on noneconomic damages, joint liability, and collateral source improvements, and limits on attorney's fees according to a sliding scale award.

In addition, my legislation includes an expert witness provision to ensure that relevant medical experts serve as trial witnesses instead of the so-called professional witnesses who are used to further abuse the system today. If one talks to physicians, there is literally a whole industry that has been created of these ``professional witnesses.'' It would make sense that if somebody

was testifying in a case involving neurology, that the person should have expertise in the field of neurology. I think that makes incredible common sense, but that is not the way it works today. As long as somebody is a physician, they are able to testify and be called an ``expert.''

Our legislation today says that if they are to be called an expert, they must have expertise in the field in which they are testifying. Over 50 organizations are in support of my bill, including business groups, medical associates, device manufacturers, and the list goes on. I have heard from people all over my State, and not just physicians. This is not a doctors versus lawyers issue. This is about patient access to medical care. That is why we have heard from nurses, physical therapists, and people who work in doctors' offices and understand the problem that is going on. We have heard, of course, from physicians, but we have also heard mostly from the patients who understand; we have gotten so many calls from women whose physicians used to deliver babies. The women are now pregnant and their obstetricians no longer can deliver babies because they may be a high risk delivery and they can no longer afford to provide that type of a service.

The broad coalition that has come forward to urge meaningful reform highlights that this problem affects a number of industries, not only our health care system. Starting the Senate debate with our strongest proposal is critical because we must not approve a weak bill that the President will not be able to sign into law. Doing something weak as a Band-Aid would actually make things worse, and that is why we need very strong legislation.

Opponents of this legislation ask how I know this approach works. It works because this legislation is modeled after the highly successful legislation that passed and has been in place for over 20 years in California. It is known as MICRA. MICRA has brought about real reform to California's liability system. The number of frivolous lawsuits going to trial has declined dramatically. Injured patients receive a larger share of their rewards because of the limits on the fees that go to the trial attorneys. Disciplinary actions against incompetent health care providers have increased.

The bottom line is that California's medical liability system works. This is a quote by one of our colleagues from the other side of the aisle, Senator Dianne Feinstein, January 14, 2003:

With the California law, we have a time-tested solution.

California passed MICRA in 1975, so we have our 27 years of

successful experience with the law.

One important point, neither MICRA nor my legislation limits the amount of economic damages that an injured patient can recover. As in every other profession, mistakes are made by health care providers. I practiced veterinary medicine after graduating from Colorado State University. I saw firsthand that mistakes are made.

Medicine is an art and a science, and there is a human being practicing that very inexact science. Every day somewhere mistakes are made. They are unfortunate. We should do everything we can to limit those mistakes, but we know mistakes will be made.

Sometimes they are mistakes in judgment. When one looks back in hindsight, they can see how they could have made that decision differently. But when they are faced with it at the time, because the human body does not read the textbook--this is how the disease is supposed to progress, this is how the injury is supposed to progress-- the human body does not read that. So sometimes it reacts differently to the way the physician was trained, and so what looks like a mistake in a court of law could have actually been a very difficult judgment call. Yet a lot of these are frivolous lawsuits that are going to trial.

In our legislation, we are trying to bring some balance back to the system. We do limit the amount of noneconomic damages, pain and suffering as it is most often referred. People say, how can that be limited? How can losing a leg be limited or how can a dollar figure be put on that?

Well, a dollar figure can never be put on it. No amount could ever be justified to somebody for some of the things that happen to them, but we have to look at the overall good of our system.

With the system we have now, we are losing doctors, and we are losing the kind of patient care we need. How does one put a dollar figure on the doctor not being there, on the health care provider not being there, on the hospital closing, on the trauma center closing?

We had a press conference several months ago in Washington with a woman whose father was in Las Vegas visiting, and it happened to be the week that our trauma center closed. During that week, unfortunately, he needed our trauma center. I cannot tell my colleagues that he would have lived if it was open, but the reason trauma centers exist is because they provide intense expertise in the area of trauma. They have great results, much better than normal emergency rooms. Unfortunately for this family, that trauma center was closed.

By the way, the only way we were able to reopen the trauma center in Las Vegas was because the State stepped in and said that we are going to limit not to $250,000, but we are going to limit to $50,000 any injuries and malpractice that occurs. That is not just noneconomic, that is even economic damages. That is the only way that the trauma center in Las Vegas was able to open. We are losing all kinds of experts in emergency rooms in other areas in Las Vegas as well.

People talk about decreasing the amount of mistakes by physicians, and we need to do that. It is very difficult and very complex to do. One of the ways we can do that is to enact legislation to encourage voluntary reporting. The current system actually is a protectionist- type system that if somebody voluntarily reports mistakes, they set themselves up for lawsuits. So we have no way to follow where the mistakes are being made and to point out trends so we can correct those mistakes.

The House has passed patient safety legislation. We are going to be working on that in the HELP Committee, of which I am a member. I hope, in a bipartisan fashion, we can craft patient safety legislation that will make the outcomes more of what we all want to see. That means fewer mistakes. But understand that there is no way to have a mistake- free environment in such an area where the science is so inexact. We have an opportunity here.

We have an opportunity with so many States now in crisis. The States in red on the chart are in crisis; the States in yellow show serious problem signs. We have a chance in the Senate--the House of Representatives has already enacted this legislation--to make a real difference in patients' lives. We can make sure trauma centers do not close. We can make sure when a woman needs access to an obstetrician she can have that access.

A friend of mine has Parkinson's disease, lives in Las Vegas, and has to go to Loma Linda where his specialist treats him. We do not have that particular field of subspecialty in southern Nevada. He talked his physician into coming to Las Vegas before the crisis hit Nevada. When the crisis hit and we lost our major carrier of medical liability insurance, the rates literally doubled and tripled overnight, and that physician decided to stay in California. Why? Because they have enacted a law that has kept rates reasonably low.

My next chart shows differences in larger cities around the country. First, OB/GYN in Los Angeles, a well-to-do area that has enacted medical liability reform, $54,000 on average for an OB/GYN; in Denver, also where they have had enacted legislation, $30,000. Then we have New York, Las Vegas, Chicago, with Miami the worst. These are places that do not have medical liability reform. In Miami, rates are over $200,000 on average for an OB/GYN.

People say doctors make plenty of money. Have you talked to an OB/GYN lately about their average income? In Las Vegas, the average income is around $200,000 for an OB/GYN who goes through 8 years of undergraduate and medical school and then a 5-year residency. They come out $250,000 to $300,000 in debt minimum and they work about 100 to 110 hours a week to make $200,000. And their rates now in Las Vegas are around $130,000 to $140,000, up from a couple of years ago around $40,000 or $50,000 a year.

Because of managed care they are not able to increase their rates, so it comes out of their pockets. That is why a lot of them are leaving our

State. That is why a lot of new people are not going into the practice of obstetrics and gynecology. Especially for delivery of high-risk patients, rates have skyrocketed. Many physicians simply will not treat high-risk patients.

What are the women to do with a high-risk pregnancy? More and more women today are choosing to have babies later and later in life, and more and more of them have high-risk pregnancies as a result. With fewer and fewer doctors able to deliver high-risk pregnancies, this does not add up. That is why it is so critical to enact this legislation before the Senate today.

I know where the politics lie. We will probably not be able to pass this legislation at this point. However, I want people to take a hard look, talk to the patients in your States, find out what is really happening at the grassroots level. This is not a question of how much money a physician makes. This is not a question of whether hospitals or insurance companies are going to be profitable. This is a question of whether when somebody needs the health care services to save lives or deliver babies, that health care will be there because the provider is there.

I am passionate about this issue because people are in jeopardy of not getting the kinds of lifesaving services they need, the types of services that improve the quality of life for so many Americans. That is why this legislation is so critical today.

As we go forward over the next 24 hours debating this bill, I encourage Members to have a healthy debate with an up-or-down vote and start hearing from the American people on this issue. If Senators listen to their constituents, they will hear loudly and clearly we need to reform our medical liability system so we can afford to have health care that is so desperately needed.

I yield the floor.

Mr. President, I wish to respond to a few of the items just laid out in the Senate and try to point out what I think are glaring inaccuracies.

First of all, the Weiss report we have heard so much about from the last two speakers uses numbers from the Medical Liability Monitor. The Medical Liability Monitor just provides the numbers. They are not a group that is pro tort reform or anti tort reform. This is what the editor, Barbara Dillard, says about the numbers that the other side of the aisle is using to somehow skew what the premiums are doing in those States that have enacted tort reform. Let me read some of the most salient parts:

The Weiss ratings analysis of medical malpractice caps

cites the Medical Liability Monitor as the source of data

Weiss uses to calculate ``average'' and ``medium'' premiums

for physicians during the last 12 years. While we are an

independent news publication and take no position on tort

reform, or other proposals to improve the medical liability

climate, we feel it is necessary to comment on the use of our

statistics because some readers have expressed concern. The

median and averages in the Weiss report are not the numbers

we report in our annual rate surveys. Weiss may have taken

our numbers, the amounts and increases of premiums paid by

doctors State by State, and used them to arrive at their

statistics. But it is not possible from the report to say

definitely how our numbers have been used. It is our view

that it is impossible to calculate a valid ``average''

premium for physicians, or for physicians in a particular

State or territory, and we state that clearly in the

executive summary of our rate survey.

But the editor of the Medical Liability Monitor goes further. She advised the leader's office that:

It is misleading to use median premiums compiled with data

from the Medical Liability Monitor to demonstrate the effect

of noneconomic damage limits on liability rates.

This is exactly what Weiss does. That is the report they have been quoting here. The report uses median annual premiums compiled with data from the Medical Liability Monitor to try to demonstrate the effect of noneconomic damage limits on liability rates. Not only is this wrong, it downright misleads the public.

Let me refer to some of the other issues they were talking about. Half of the States have enacted medical liability reform. My State did that a year ago. It has caps. If you look at my State, as far as the numbers, it would look like it hasn't worked. It takes a minimum of probably 8, 10, 12, or 15 years to go through the courts to find out whether the caps are going to be upheld. If the insurance companies are unsure whether the caps are going to be upheld or not, there is no predictability there because they can reach way back--once it is held unconstitutional, they can go back and try those cases and get those awards.

That is why in California it took so long--from 1975 until the mid- 1980s--to

find out whether the law was going to work. Colorado and California have now had their laws in place long enough to stabilize rates. Let's look at those two States, in major cities, compared to other cities around the country.

Here are Los Angeles and Denver. We will start with the general surgery. It is almost $37,000 in Los Angeles for the medical liability premiums for the year; that is for a general surgeon. In Denver, it is around $34,500. New York is about $51,000. Las Vegas was $70,000. It is a lot higher this year in Las Vegas. In Chicago, it is $68,000. In Miami, it is $174,000. The cities in the gray on the chart are States without medical liability reform. The two in the white have had medical liability reform in place long enough for them to have predictability.

This whole debate isn't about hurting patients; it is about helping them to have access to quality care. In my State, we had a level I trauma center close for 10 days because of a crisis, where the specialists who were treating patients there could not afford the medical liability insurance anymore. So they had to say: We cannot come in there and practice because we cannot afford the insurance. The Governor of our State, within a week, called a special session of the legislature. They enacted, in a bipartisan way, caps. Unfortunately, like a lot of the caps in the country--and they use a lot of these statistics--they are similar to the caps in my State where they have loopholes that you can drive a truck through, which makes the legislation pretty much, as far as a court of law is concerned, ineffective. That is why there is a move in my State to close those huge loopholes down to where just the most serious cases actually have unlimited pain and suffering type of awards.

In our State, the way they reopened the level I trauma center in that special session of the legislature--not only did they enact a $350,000 cap for the general population but for the level I trauma center they put it under the State. Guess what. Our State has $50,000 caps total-- economic, pain and suffering, medical, the whole thing. That is the only way they could get the level I trauma center back open. Why did they do it? They knew there was a crisis. People had died, and more would die if they didn't reopen the trauma center.

Well, how bad does it have to get in the U.S. for us to say there is a crisis? When will the other side realize how bad the situation is in America? We are losing specialists. People are leaving the practice of medicine--especially those specialties and subspecialties in which we already have a shortage in many areas; and new people are not going into these areas because they see the writing on the wall. They see it is going to be too expensive for them to go out and practice.

I have a good friend from Las Vegas, Dr. Spoon. We were talking a couple months ago. One of his favorite things to do in his practice--he is an obstetrician--is to deliver babies, especially those high-risk pregnancies. He got so much enjoyment from bringing them to the point where they were successful. His insurance company made him stop performing high-risk deliveries, and they also cut him down from 250 or 300 deliveries a year, and he can deliver no more than 125 babies a year.

Southern Nevada is the fastest growing metropolitan area in the country. Yet we are losing OB/GYNs and new ones are not coming in. So what happens in that area is women are having serious trouble locating OB/GYNs to deliver their babies.

I want to try to talk a little bit about the bill and what it really does do and try to clear up some of these issues. First, to go back to premiums. It was said that in places such as California premiums and caps on economic damages--caps on pain and suffering don't work. According to the CBO, they do work. H.R. 5, which is virtually identical to the bill we have today, would significantly lower premiums for medical malpractice insurance from what they would otherwise be under current law. Premiums for medical malpractice insurance ultimately would be an average of 25 to 30 percent below what they would be under current law.

The Congressional Budget Office is nonpartisan, and everybody is supposed to respect the numbers they put out around here. They certainly don't have any pro or con as far as tort reform is concerned. There are others such as the U.S. Department of Health and Human Services that say States with limits of $250,000 or $350,000 on noneconomic damages have average combined highest premium increases of 12 to 15 percent--that is average combined highest premium increases-- compared to 44 percent in States without caps on noneconomic damages.

The Joint Economic Committee of the Congress says that tort reform will reduce overall spending on health care savings by between $67 billion and $106 billion over the next 10 years.

I wish to talk a little bit about what kinds of economic damages. That has been criticized. We don't cap economic damages. What can you get in economic damages under this bill? You can get all lost wages and benefits. Lost earning capacity. They say it hurts children. You get a child who gets hurt because of malpractice and you can calculate what that child would have had over the next 60, 70 years.

They may not have the education to know what their total potential was but it is 60 or 70 years' worth of earnings they can get in economic damages. That can be significant. I will freely admit it is not what Barry Bonds would get if he got hurt, or LaBron James, the new basketball player. They would obviously get a lot more money because they have the potential of making so much more money. But this child would still get a significant amount.

Let me go through these points, and then I will yield for a question.

All medical expenses would be covered under this bill: long-term care, assisted living devices, child care, household services, lost time, special medical damages, value of care, counsel, advice, aid, comfort, counsel for children, parents, and spouses. All of those are possible under economic damages in this bill.

The final point I wish to make is this: Does this capping hurt patients? We just have to look at Colorado and California and ask: Are there people out there being hurt? I submit there are a lot more people being hurt and going to be hurt in States such as Nevada where the doctors are leaving, where the doctor will not be in that emergency room or will not be able to deliver a baby, especially in those high- risk pregnancies.

This one case in Florida is a very good example. I actually met this gentleman. He is a physician himself. He was not performing duties as a physician at this time, he was a parent of an injured child. His name is Dr. Frank Shwarin. His 4-year-old child in Naples, FL, fell and hit his head on the side of the swimming pool. This was in July of 2002. The father is named Frank and Craig is the son. He rushed him to the nearest hospital only to find that none of the neurosurgeons on call would treat patients under 18 years of age. Why? Because they could not get medical liability coverage to treat, even in an emergency situation, a pediatric neurosurgery case. They had to medevac his son a couple hours away. Fortunately, because the father is a doctor, he was able to keep his son alive during that time.

A woman testified before the Senate that when the level I trauma center crisis happened in my State, her father died when that trauma center was closed because he had to be sent to another emergency room, and an emergency room is not a trauma center. They do not have the kind of expertise to treat severe trauma. As a result, her father died.

We cannot guarantee he would not have died in the trauma center, but we can guarantee he would have had the best possible care and the best chance of living. That is what I believe this debate has come down to: The system is out of balance now. It is not working. To correct this imbalance, we have to start reining in some of these frivolous, outrageous jury awards.

I yield for a question.

That would be fine. I have a couple other issues to go through. There are a few other cases I would like to bring to the attention of our colleagues.

First, because we need to put a real face on this issue--we need to put a face on the patients, and I think it is legitimate to put a face on the other way. I think it is legitimate to put a face on somebody who has had a claim of malpractice and actually had malpractice committed against them, and it is also fair to put faces on those people who now are having trouble finding the kind of health care they need.

This is a balancing act, there is no question about it. There is no perfect answer to this situation. I wish there were. The fact is, the current system is driving health care providers out of the practice of medicine, hospitals are closing down, and we need to correct the situation so that when we seek health care in an emergency situation or in a nonemergency situation, we will have the kind of care we need.

A friend of mine in Las Vegas has Parkinson's disease and goes down to Loma Linda--I told this story earlier today--to see his subspecialist in neurology to treat this disease. He had some fairly radical surgery where they actually separate parts of the brain. He has had very good success with it. He had a specialist talked into moving his practice to Las Vegas shortly before the medical malpractice crisis hit in Las Vegas. Once that hit the news, the guy said: Sorry, I live in California where we have caps. I cannot go to Las Vegas and pay $250,000 a year for my practice for medical liability coverage. I cannot afford to do it. Why would I do that when I have a good practice here, we have caps, and it is working well in California?

He wanted to move to Las Vegas. He was ready to go with his family. He liked the quality of life in Las Vegas. He did not go simply because he cannot afford to take that kind of economic hit. So people in Las Vegas have to drive down there.

Most of the time those are not emergency cases, but for those cases that are an emergency, it is just a shame.

People say this is a State issue. I would counter that this is the United States of America, and we are supposed to be able to live where we want to live, and now we are saying to people: No, you cannot go there because of medical liability premiums, you cannot afford to open up your practice because of medical liability premiums. People should be able to find the kind of health care they need wherever in the United States and live the quality of life and obtain the best health care they can possibly get based on what is available in the area. I do not think outrageous premiums should be the limiting factor.

Let me close with this point, Mr. President. Earlier there was debate about punitive damages and that we are protecting big companies. Under this bill, we do protect companies that make medical devices if they have followed FDA regulations. In other words, the manufacturer would not be liable for punitive damages if it satisfied FDA's rigorous approval process and if the harm to the patient did not result from the company's violation of an FDA regulation. If they played by the rules that the Government set down, we protect them in this bill from noneconomic--we do not protect them from economic or from medical expenses. But if they violate the FDA rules, then they are not protected. I think that is fairly reasonable. That is why we think this bill is a reasonable compromise, is a reasonable approach to solving what I believe is an out-of-control system.

I will be happy to yield for questions.

Mr. President, we know we live in a litigious society. We are sue happy today. Everything is somebody else's fault, and we immediately go to court. Because of the nature of our courts, it is easier to settle. When we settle, it drives up the cost for all of us. A lot of the cases never make it because it is too expensive to take the case all the way to court.

A lot of companies especially are self-insured for certain amounts of money. It is easier for them to calculate the cost of going to court, and what happens in the long run is that all of us pay for that in higher premiums. When we have higher premiums, it is pretty simple. We end up with a situation where employers cannot afford it. A lot of small employers especially are dropping their health insurance coverage and we are ending up with 41 million uninsured in this country and a big part of that is the cost, not only of the premiums to doctors but just the whole cost of defensive medicine that we have to practice today because of the fear of being sued.

If the Senator would vote for us to go forward with the bill tomorrow when we have a cloture vote, we will have a lot of time to debate this. We can amend it and go forward with this debate. So I hope he will join us in voting for cloture because I do have a lot of evidence to justify the various provisions in the bill.

The bottom line is we all know that today it costs around $900 million to bring a single new drug to the market. I am not here to defend the pharmaceutical companies or any other company.

No. What I am here to say is we have a problem with our health care system today and we need to fix it. If we can go forward with this bill, if there are amendments the Senator thinks can improve this bill, let's at least move to it so that we can amend it, put the amendments forward, and have a healthy debate. We can take a week, or whatever it takes, to do that so that we can go forward and try to fix some of the glaring problems. If the Senator thinks there are some problems with the bill, let's bring forth amendments and try to fix it.

I say to my friend and colleague that it is obvious why. We could not get a bill to the floor. The Senator knows that and everybody here knows that. It is just like last year when the Senator was in the majority, there were at least two bills that I remember, the Energy bill, as, well as the prescription drug bill, that were brought to the floor that were not brought through committee. They were

brought directly to the floor by the majority leader at the time. It is not a common procedure, but it is a procedure that has to be done every once in a while to bring up important legislation that cannot go through committee and my colleagues know cannot get through committee.

The way the Senate works is so different than the House, and the Senator knows that. We both served in the House of Representatives. The House of Representatives does almost all their work in the committee. We can do a lot of our work on the floor and produce a pretty darn good product by bringing it to the floor, amending the bill on the floor, and that is what I think we should do.

Mr. President, I say to my colleague that it is a great point. I practiced veterinary medicine and I understand how professional boards work. I understand that with professional boards there is a self-policing that is assumed. It is supposed to happen with lawyers. It is supposed to happen with accountants. It is supposed to happen with veterinarians. It is supposed to happen with physicians. The big problem today with professional boards is they are afraid to do something with somebody's license because if they do, they can be held personally liable. That happens time and time again.

All of the professional boards go through this; that as badly as they would love to jerk somebody's license, unless it is so clear and the evidence is so outrageous of what they have done to deserve their license being jerked, it just does not happen. Frankly, it should happen more. There are incompetent doctors. There are incompetent lawyers. There are incompetent veterinarians. More of them should have their license jerked in that case, and I wish they were empowered a little more and maybe protected a little more to do that.

I am happy to yield for a question.

The Senator from Alabama brings up a very true point, but also the Senator from Illinois is correct in that we do need to do a better job of policing the physicians. They need to do a much better job of that. That is why I brought up the point of the boards. The point is, though, if we vote for cloture tomorrow, maybe we can work this out. Maybe we can come up with something that could be addressed, or at least give suggestive language to the States to be able to work this out. It is so clear that if we can invoke cloture--for the general public, that means that we can proceed to the bill. The vote tomorrow is just whether we can proceed to the bill. All of this is just pre- debate on whether we are going to proceed to a bill that is so critical to the future health care in this country.

I do not know if the Senator can see this chart--maybe we can have that chart turned just slightly so the Senator from Alabama can see it, but it brings up the exact point. The States that have capped noneconomic damages in the white, California and Colorado, represented by Los Angeles and Denver, in those States let's go down to the OB/GYNs, $54,000 in Los Angeles for the annual premiums for the medical liability insurance, $30,000 in Denver. Go over to New York; it is almost $90,000; in Las Vegas, $108,000. I guarantee that number in Las Vegas is old because friends of mine who are OB/GYNs say they are paying anywhere from $130,000 to $150,000 a year. Chicago, $102,000 and Miami is over $200,000 a year. The cities in gray, representing the states in gray, have no tort reform that has been on the books. Nevada has it but it has not been on the books long enough. It will take 6, 8, 10 years. Los Angeles and Denver have had their laws on the books long enough to work.

Because they have enacted what we want to do today, we see these premiums.

I yield the floor.

The PRESIDING OFFICER (Mr. Talent.) The Senator from Alabama.

If the Senator will yield, is the Senator aware that, for instance, in Las Vegas, they are limiting

the number of babies they are allowed to deliver to 125. What your friend was talking about is right, they used to deliver 250 to 300. Now they limit how many they can deliver.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. President, I rise to speak on behalf of the amendment on which Senator Hagel and I have been working actually for the last several years. This amendment received bipartisan support in the last Congress as a

stand-alone bill. We actually made some improvements to it. We think if this amendment is adopted, it will dramatically improve what the committee has attempted to do to add a prescription drug benefit to Medicare. The only portion of the bill we are modifying in substantial form is the prescription drug part of it.

Let me talk about what our amendment exactly does. It would say to a person who is below 200 percent of poverty, they would pay the first $1,500 out of pocket. After that, the Government is going to pay for the rest of their drug costs, other than a 10-percent copay the person would pay.

However, if a person is up to 160 percent of poverty, we will give them, in a pharmaceutical benefit account, $500 per year, which they can use to go to a local pharmacy to buy their prescription drugs or they can use that money and negotiate the price of their prescription drugs through a pharmaceutical benefit manager and mass buy them with their drug discount card. If they want to use their local pharmacist, they can do that. And this $500, if they did not spend it that year, would be rolled over to the next year where it would cover the first part of their deductible. So if you are below 160 percent of poverty, the most you are going to pay out of pocket is less than $100 per month.

There are several benefits to our plan. First of all, with the committee mark, you pay a monthly premium of $35. You also have a deductible of $275. With our bill, you have no monthly premiums, you have a one-time annual fee of $25, and for low-income people, we waive that.

Our plan is completely voluntary. It also gives the most help to lower income seniors and gives progressively less help the more money you make.

So between 200 percent and 400 percent of poverty, $3,500 is your out-of-pocket expenses. Above that amount, the Government pays 90 percent. And from 400 percent to 600 percent of poverty, $5,500 is your out-of-pocket expenses. Above that amount, 20 percent is your deductible before catastrophic coverage kicks in.

For all of these people, though, who want to sign up for the plan, they get a drug discount card where they will save between 25 to 40 percent on their prescription drug costs. It is a completely voluntary program. And in this program, we have several benefits that we think are better than the committee's underlying bill.

One is, under our bill, States that have already enacted programs will be encouraged to keep their programs. Under the committee mark, every State that has a program for low-income seniors is going to drop those. There is no debate about that. As a matter of fact, the Secretary of HHS was before us. The person who oversees Medicare was before us. Both of them said there is nothing in this bill that will say to the States: Don't drop your plans. And they agreed they will probably drop their plans.

Our bill works with the States that have those programs, States such as my State of Nevada, and encourages those programs to be kept.

A couple of other advantages that our bill has: I want to illustrate those with a couple of examples. These are real-life cases. This is a fictitious name, of course, to protect this woman's identity, but this is a real person. We call her Doris Jones. She is 75 years old. She has an income of about $17,000 a year. She is being treated for diabetes, hypertension, and high cholesterol. She is taking medications that are very typical of what this type of a disease management would require. Her out-of-pocket expenses right now are $3,648.

Let's compare how our amendment, the Hagel-Ensign approach, would affect her out-of-pocket expenses versus the bill on the floor if our amendment is not accepted.

Under our bill, she would have $1,700 out-of-pocket expenses a year. Under the committee bill that is before us today, she would have $2,383 a year. So it is a savings of almost $700 under our approach.

Another person: James is 68 years old. He has an income of about $16,000 a year. He is being treated for diabetes, a pretty severe case of diabetes, and he has all these different medications--very common medications today for a diabetic. His total out-of-pocket expenses today are $5,700.

How does he compare under the two provisions?

Under the Hagel-Ensign approach, about $1,900 would be his out-of- pocket expenses for the year; under the bill that is before us today, a little over $4,000 in out-of-pocket expenses a year. So the difference is almost $2,200 to this senior who is sick. And we certainly would not call him a rich person. I would call this person certainly a low- to moderate-income senior.

Now, Betty is another example. These are real-life examples taking real medicine, prescribed by real doctors. She is 66 years old. She has an income of $15,500. She is being treated for breast cancer and she is taking commonly prescribed medications for that. She is on low-dose radiation. She pays about $8,000 for her prescription drugs a year.

What would happen to her under the two different scenarios?

Under our scenario, she would pay about $2,100 out of pocket. Under the bill that is before us today, she would pay $4,300.

What we have done with our amendment is we have said: Let's help the seniors who need it the most. And we put the dollars to them. Under our amendment, people who are sick, with low and moderate income, they really get help. For people above that, they are treated about the same between our amendment and the bill. The out-of-pocket expenses for people between 200 and 400 percent of poverty are about the same.

When you start getting to the wealthier seniors, there is no question, the committee bill is more generous. For very low income seniors, the committee bill is slightly more generous. But for those who are really sick, our amendment is much better.

Also, there are a couple of other advantages.

In the future, to control costs, our amendment says: The person receiving the medication has something at stake. They are paying out of their own pocket for the first dollars, so they are going to shop. They are going to go around and see: Do I need generics? First of all, do I need the drug? Could I take a generic, which may be less expensive? Are there perhaps other alternatives for treatment that may be cheaper and just as effective? They will have that conversation with their doctor because they have something at stake.

I would argue that what the committee is doing--and I applaud what they are doing, trying in a bipartisan fashion--I believe our amendment would strengthen the committee's bill dramatically because it would target the dollars, those precious taxpayers' dollars, to the people who need it the most. It will also, though, in the future, control costs and, therefore, be more responsible to the next generation.

The committee mark, especially for very low income people, pays 97.5 percent of their drug costs, maybe a $1 to $2 copay. Well, there is going to be a tremendous amount of overutilization in that group.

Our amendment gives that group help by putting $500 of their first costs into an account. They will use that to go shop because if they do not use it, it gets rolled over to the next year where it covers more of their deductible. So they have something to benefit by if they do not use it.

So I implore our colleagues to look and compare. If you look and compare, you will see there truly is a difference.

Mr. President, I reserve the remainder of my time.

Mr. President, I want to clear up something. We don't touch any of the other Medicare reforms in your bill. The whole thing with the PPOs, we touch the prescription drug part of the underlying bill.

You mentioned competition. I practiced veterinary medicine, built, owned, and operated two different animal hospitals. Why do I bring that up? It is because in veterinary medicine people pay out of their own pocket. Veterinarians are in an incredibly competitive field because we know that if somebody brings a case to you, they are going to shop about half the time based on price. So veterinarians have to be very competitive and price sensitive to that, so they work to become more efficient, to keep their costs down, because individuals shop.

In our health care system today, individuals do not shop because we have low deductible policies, and a lot of times the doctors waive those deductibles. Senator Frist will be able to tell you about that. The hospitals waive the deductibles. So the person receiving the care is not accountable for the care, and so they don't shop. The doctor tells them, go get this service or this drug, and they don't think about it. They have modest, low copays, and they don't think about it.

The cost control, the competition, is established by 40 million people on Medicare, 40 million people receiving drugs. If they are paying out of their own pocket or low-income people have the $500 in a pharmaceutical benefit account, they have something at stake, so they go shop.

They ask the questions: Do I need the drug in the first place? Maybe I can get a generic. So they do the shopping. Also, we have pharmaceutical benefit managers in the bill. That is what the whole drug discount card is about. So those pharmaceutical benefit managers help lower the costs as well.

We have several reforms in this bill that are true reforms, that introduce competition to keep the costs down. That is why our bill actually scored lower.

Because of that, we were able to add a couple other things. When Senator Hagel arrives, he will modify the amendment. For instance, we will allow Medicaid, the dual eligibles that people have been talking about today, to give States help in handling those dual eligibles through Medicare because our prescription drug cost to the taxpayer was less. It is because we have more reform on the prescription drug part of it than the underlying bill. It just a difference of philosophy of how you do it.

I come to this based on my experience in the private sector and how health care can be delivered by individuals shopping.

I reserve the remainder of my time.

Mr. President, the prescription drug bill, Medicare reform bill combination that we have before us today, as we all know, is a freight train coming through this place and there is no stopping it.

What is very unfortunate is that we have a very legitimate amendment on

the floor today that is getting 20, 30 minutes' worth of debate. I put up some examples on the chart here of how this amendment we are offering is superior. I have tried to be objective, to say that above 200 percent of poverty, between 200 and 400 percent of poverty they are pretty equal plans. For the very low income, our amendment is slightly less generous, but it keeps the low-income people with something at stake so they will shop. We have heard nothing about that from the other side. There has been no debate, in other words. It is because there is an agreement to defeat any substantive amendment. It is unfortunate.

This is probably the most important vote, as far as an entitlement program, that any of us in our careers will ever take, and this bill is being rushed through so that we can get a ``bill'' to conference, where all of the improvements are going to be made.

We have an amendment before us that I believe should be debated. If you disagree, fine, but let's debate it and vote on it up or down. But I don't think this kind of a process is healthy for the Senate.

I reserve the remainder of my time.

Mr. President, I ask unanimous consent for whatever time I consume from Senator Hagel's time to respond.

Mr. President, means testing and universal have been mentioned. The Senator from New Hampshire mentioned that this is a brand new benefit, and that is why we are only talking about the prescription drug part--a brand new benefit for which young people in America are going to be paying for years and years. It seems to make sense that we try to control those costs.

Yes, our bill means tests. So does the underlying bill. To sit up here and say their bill does not means test is completely disingenuous. They have several levels in the low-income areas they means test. They are just means testing in a different area. If you

means test one, why is calling our bill means testing when their bill means tests as well? How can they say our bill means tests and theirs does not? That is disingenuous.

It is critical that we have this debate. There was a complaint that they just saw this amendment tonight. Part of the reason is that we are trying to rush this bill through what is supposed to be the most deliberative body in the world, and we have this false deadline that we must get this bill passed before the July break. I submit, this deserves more debate. The debate cannot happen when it goes to conference because most of the Senate is cut out then and there is no debate when it comes back here.

With all due respect, I think we have a superior portion of the prescription drug plan, and I hope our colleagues vote for this plan.

I reserve the remainder of our time.

Mr. President, I will use 30 seconds and Senator Hagel will use 30 seconds on this side.

The Hagel-Ensign amendment corrects several problems in the bill. Let me go over those real briefly.

We have no monthly premiums. We do not make middle-class taxpayers pay for prescription drugs for wealthy seniors. We preserve the State and the private plans that are already out there, which the underlying bill does not do. We give most of our help to low- and moderate-income seniors but we still control costs in our bill.

I encourage a ``yes'' vote on this amendment.

Mr. President, I will withdraw my amendment to repeal the arbitrary beneficiary caps on therapy. However, I would urge my colleague from Iowa, the Chairman of the Finance Committee, to work in conference to find a way to delay this law. As you know, the beneficiary caps will have one of three results--beneficiaries will either: (1) pay 100 percent out-of-their own pocket once the caps are exceeded; (2) self-ration therapy care; or (3) forgo medically necessary care altogether. Mr. President, I recognize that the Chairman has been a voice to eliminate these caps and hope that a final Medicare bill further delays implementation of them.

I appreciate the Chairman's leadership on this issue and I thank my colleague for agreeing, at a minimum, to work toward another moratorium on implementation of the therapy cap. I would also like to thank the Senator from Arkansas for her words of support. Mr. President, I yield the floor.

I ask unanimous consent that this full statement be included in the Record as if read.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Madam President, I will speak on the pending amendment that Senator Hagel and I have offered. This amendment is similar to the bill we offered in last year's Medicare prescription drug debate. We offered it as a complete substitute last year. I will describe this legislation.

What we are proposing to do is substitute our piece of legislation for the prescription drug portion of the pending legislation. It is very important to have a prescription drug benefit for those seniors, especially those who are low or middle income, who have serious diseases and sometimes have to choose between prescription drugs and rent or prescription drugs and maybe even the type of food they eat.

I have heard story after story around my State of seniors who literally sometimes do not take their medications or maybe take half a dose because they cannot afford the prescriptions their doctor has recommended.

The Hagel-Ensign amendment has several advantages over the current portion of the committee bill. First, it takes effect one full year earlier than the committee bill. Second, we do not have monthly premiums for our prescription drug benefit. Under the committee's mark, seniors pay $35 a month; under ours, it is a one-time annual fee of $25, that is all. They pay that once a year, unless they are low- income, and then we waive that annual fee. Under the committee's mark, it is $35 a month.

We have several other differences in the bill. In the committee's mark, low-

income seniors have a very generous benefit for those above Medicaid income but who are below 160 percent of poverty. We recognize it is very generous. As a matter of fact, I submit it is overly generous and we will see an overutilization by those senior citizens because they do not have anything at stake. One to two dollar co-pays when you are paying 97.5 percent of their out-of-pocket expenses is not enough to discourage overutilization. We are going to see an explosion of utilization of drugs, especially in the low-income market.

Let me explain the amendment. We offer a prescription drug benefit with the seniors paying up to a certain percent depending on income, up to a certain dollar figure, and after that the Government will pick up 90 percent of the cost. For people who are below 200 percent of poverty, which is around $18,000 a year for an individual or $24,000 for a couple, they would be capped at an out-of-pocket expense of $1,500, and after that the Government picks up 90 percent. Between 200 and 400 percent of poverty, incomes for an individual up to nearly $36,000, and for a couple a little over $45,000, they would be capped at an out-of-pocket expense once again of $3,500 a year, and the Government pays 90 percent above that. Between 400 and 600 percent they are capped at $5,500 out-of-pocket a year. For people above that, the wealthier seniors, 20 percent of their income is their deductible under this plan.

All of these people get a prescription drug discount card. That prescription drug discount card can provide a discount of 25 to 40 percent on the drugs they purchase. Before these ever kick in they have already saved money for every senior. This is a completely voluntary plan. If seniors like the coverage they have today, they can stay in the coverage they have today. If they want to try something guaranteed to cap their out-of-pocket expenses, this is the plan for them.

We have several real-life examples to compare with the committee mark. First, James Johnson is 68 years old with an income of around $16,000. He is above 160 percent of poverty. He is being treated for diabetes. These are typical medications of someone being treated for diabetes: glucophage, glyburide, neurontin, lescol, zoloft. This totals $5,736 a year that this person pays for prescription drugs.

Let's compare under the committee mark versus the Hagel-Ensign approach. Under the committee mark, this person would have a total out- of-pocket expense of $4,000. Under the Hagel-Ensign, this person would have about $1,900. This person would do a little over $2,000 better under Hagel-Ensign than under the committee mark. For those low-to- middle income seniors who have a serious disease, they do better under our approach.

Everyone wants to help the most those who need it the most. Under our approach that is exactly what happens. Those people who are sick, who need the most help, get the most help under our plan.

Here is another real life example. Doris Jones is 75 years old with an income of around $17,000 per year and is being treated for diabetes, hypertension, and high cholesterol. She takes lipitor, glucophage, insulin, coumadin, with total drug costs around $3,600. To compare the committee mark, the bill before us compared to Hagel-Ensign would spend around $2,380 a year under the committee bill; under the Hagel-Ensign approach she spends about $1,700. Although she did not have as much out-of-pocket drug costs for the year, she saves almost $700 a year under the Hagel-Ensign approach.

And the last real-life example, Betty Smith is 66 years old. She has an income of around a little over $15,000 per year and is being treated for breast cancer. She is still receiving low-dose radiation therapy with nolvadex. Her medication profile is as follows: morphine, paxil, dexamethasone, aciphex, and nolvadex, with total costs for drugs around $8,000 a year. To compare Betty's costs between the Hagel-Ensign approach and the committee mark: her total out-of-pocket expenses will be $4,340 with the committee mark; under our bill, she will spend around $2,100, which would be a savings to her of almost $2,200 a year.

Once again, comparing the two approaches, those middle- to low-income seniors who have serious diseases are going to get much more help under the Hagel-Ensign plan.

Our bill actually costs less money than the committee approach and because of that we are going to be offering an amendment, which subsidizes the costs for people with incomes 160 percent of poverty and under; I will talk about that in just a minute. But the reason our bill comes in at less money is because the seniors are paying the first dollars out of pocket. After that, the Government kicks in to subsidize their costs. So, by them paying the first dollars out of pocket, we encourage people to be accountable in the system. The person who is receiving the drugs is responsible for paying those first dollars. Guess what: that causes them to go out and shop. They call the various pharmacies and find out what the best price is. They ask their doctor, Is there a generic drug available that is just as effective? If it is something maybe not life-threatening and they want to take the generic version of the drug, the doctor can say, Yes, I have had good experience with patients with this. They can take the generic drug, saving themselves money and saving the whole system money.

That is why our bill overall would cost less money. What Senator Hagel and I have decided to do is, because there is $400 billion available to spend under the budget, we have taken around $60 billion, spread over 10 years, to put toward those people who are truly poor, below 160 percent of poverty. Our plan would give them, in a pharmaceutical benefit account, $700 to spend on prescription drugs. If they do not use it, it rolls over to the next year. By the way, if it rolls over 2 years in a row, and the third year they get another $700, at the end of the year they get to keep anything above $1,500. So there is an incentive; they have something at stake, so they will still shop around for the best price for their drugs. So it keeps market forces at play within our Medicare prescription drug system. That is one of the strong points, we feel, about our plan.

There are several other advantages that we think are in our bill that are not included in the committee mark. I asked this question yesterday; I asked the administration, I asked Secretary Thompson, and I asked the director who oversees Medicare, What will happen under the committee's mark to the State plans? My State of Nevada and many other States, New York, Massachusetts, West Virginia--have State plans that help senior citizens with prescription drugs. What will happen to those state low-income plans--above Medicaid level but below around 160 percent of poverty--if the committee mark is enacted?

The simple answer is: all of those plans will go away because, for those seniors under this plan, there is no reason for the States to pick them up anymore. The committee mark will pick them up completely.

Our plan works with the States, instead of substituting for the States. Those plans in the States that are already working, and working well, will continue. As a matter of fact, each State can learn from the other. If they want to be a little more generous, a little less generous, they can do that. But it doesn't supplant the States, like the committee mark does.

The other big problem I have heard articulated with the committee's prescription drug benefit is that private companies that currently have plans are going to start dropping their plans left and right. Under our bill, because we offer a higher deductible than most of the plans offer, there is not going to be the incentive for them to drop their plans. So it is not going to be a transfer from the private sector onto the public sector. And when I say public sector, I mean the taxpayer-- younger people paying the taxes for older citizens.

There are many benefits to our plan, we think, over the committee mark. Let me just quickly repeat those.

First, we help those seniors, especially in the middle- to low- income, much more than the committee mark does, those who have serious diseases.

Second, we have no monthly premiums. The committee mark has a $35-a- month monthly premium.

Third, our plan does not replace State plans, it works with State plans.

Fourth, our plan also does not encourage the replacement of private

plans that companies have set up for their retirees.

Fifth, I believe our bill will control drug costs into the future. I applaud the committee. They have gotten together in a bipartisan way, trying to come up with a fix to a serious problem. But the problem I see is that it is right now scored by the Congressional Budget Office at around $400 billion. I think there is going to be so much overutilization in that, that it is going to end up being more like $800 billion or a $1 trillion plan. Young people are going to have to pay that.

That is just how much it is going to cost in the next 8 to 10 years. When you start extending that out into the 10 years beyond that, you start doubling and tripling those costs as we get the new, more expensive drugs into the marketplace.

So I think we should do the responsible thing. That is why we are encouraging our colleagues to take a look at this. We had the same bill voted on last year. We got a bipartisan vote. We had 51 Senators vote for this plan. If we got that for this amendment, this amendment would be adopted as part of the bill.

I know there have been deals made: Let's just defeat all amendments. I encourage people to say, If we can improve this bill, let's improve this bill. Let's make it responsible to the next generation. But let's also do what we say we all want to do, and that is to help those seniors who truly need the help. Let's help those who are the sickest and those who are in the lower-income categories, who end up having to make those decisions I talked about: choosing between prescription drugs and rent, between prescription drugs and food, or maybe only taking one of their prescriptions or a half dose of their prescription because they cannot afford the full dose.

In conclusion, I plead with my colleagues to study this issue. I know this bill is being rushed through, so people have not had a chance to take a look at all the options. This is so serious. This is the biggest entitlement program that any Senator who is currently serving will ever vote on. This has incredible implications for generations to come. We'd better do it right the first time because coming back for a fix a couple of years from now--we have seen how difficult it was to get to this point--is going to be virtually impossible.

So we'd better do it right the first time--at least get as close to right as we can. That is why we are encouraging our colleagues to take a serious look at the Hagel-Ensign amendment and do something right for the country.

I yield the floor.

Reserving the right to object, we have been waiting about an hour and a half to speak and all I can say is we have been waiting quite a long time.

I do not need any additional time. I just wanted to speak if I could.

Okay.

Madam President, what is the pending business?

I ask unanimous consent that the pending amendment be laid aside.

I call up amendment No. 1024.

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

Madam President, there is a cap on the amount of therapy that can be given to seniors for physical therapy, occupational therapy and speech therapy, that is set to go into effect in July. There is a $1,590 cap that is set to go into effect. What we need to do is to repeal that cap and we need to do it for very good reasons.

First, the oldest and the sickest seniors will be in a situation where they have to pay 100 percent of the costs over the cap. MedPAC and independent analyses have found that one out of seven beneficiaries needing such therapies will exceed the cap. This arbitrary limitation would cause the greatest harm to the sickest and the most vulnerable of our beneficiaries. It would be those seniors who suffer from stroke, from Parkinson's disease or a similar condition that would likely exceed the therapy cap.

It would be the older, more vulnerable beneficiaries who will be most affected by this therapy cap. As beneficiaries continue to age and encounter multiple health problems, they are more likely to be the ones to exceed the cap. Unlike other requests for Medicare monies, this provision is truly a provision for the beneficiaries. It is the beneficiaries who will either bear the cost of the cap or not get care. It is a beneficiary cap on services.

In 1999, as part of the Balanced Budget Reconciliation Act, Congress passed a 2-year moratorium to prevent implementation of the caps. A year later, Congress passed an extension of that moratorium for 1 more year through 2002, and CMS has delayed implementation until July 1 of this year. So we need to act.

From a personal story, several years ago my grandmother had a total knee replacement. I visited her in the hospital when she was going through rehabilitation. Anybody who has had a total knee replacement understands it is one of the most painful surgeries you can have, as well as rehabilitation is painful. If the cap would have been in place at the time, she could have ended up being in a situation--at her income level, if she was a senior who could not afford to pay additional money--of not getting the care and rehabilitation needed for independent living. She is about 85 years old and lives on her own today because of the physical therapy.

There are many other people we will institutionalize if we do not repeal the cap. It is very important that truly needy seniors who are very sick get the rehabilitation they need for the occupational therapy, speech therapy, as well as physical therapy.

I urge our colleagues to look at this. I have talked to the chairman of the Finance Committee, and he is committed to making sure this cap does not go into effect this year. It truly would be harmful to many seniors in our population.

I yield the floor.

Mr. President, I ask unanimous consent that the text of ``The TRICARE Retirees Opportunity Act of 2003'' be printed in the Record.