FTN 06/24/01

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BOB SCHIEFFER: This week the debate over the patients' bill of rights continues in the Senate. A major sticking point, the right to sue.

Will the Republicans compromise, or can the Democrats pass their bill? We'll ask the Republican senator from Oklahoma, Don Nickles, and Democrat John Edwards of North Carolina.

Then we'll turn to President Bush's foreign policy and talk with the new chairman of the Foreign Relations Committee, Senator Joe Biden of Delaware, and one of the ranking Republicans on that committee, Senator Richard Lugar of Indiana.

Gloria Borger is here, and I'll have a final word on the virtues of sitting in the dark. But first the patients' bill of rights on Face the Nation.

And good morning, everyone, on a fine summer day. We start in our Washington studio, Democratic Senator John Edwards, who's leading the fight for HMO reform; Senate Republican whip Don Nickles.

Senator Edwards, I want to start right with you and something that is on the front page of the New York Times today, right here their lead story. And I'm going to quote the lead. It says, "It's not about HMOs," but it says, "A group of personal injury lawyers identified a pattern of failures in Firestone tires in 1996 but didn't disclose it to the government for four years out of concern that private lawsuits would be compromised."

Now that's what a lot of people are worried about when you're talking about giving people the right to sue their HMOs, it is just going to become a paradise for trial lawyers. You're a trial lawyer. How can you assure them that's...

SEN JOHN EDWARDS, D-NC: Well, I'm a senator now, Bob.

(LAUGHTER)

EDWARDS: Well, first of all that should have been disclosed. There's a simple answer to that particular situation.

What we've done, Bob, is set up - John McCain and I have done what the American people have reached a consensus about, and the majority of the Senate and the majority of the House have reached a consensus about, which is putting health care decisions back in the hands of patients and doctors, which is where they belong, not with big HMO bureaucrats.

We just want HMOs treated like everybody else. If they're in the business of making health care decisions, they ought to be treated just like doctors and hospitals who make health care decisions.

But that's what this debate ultimately is about. And that's why our legislation is supported by virtually every health care group in America, every consumer group in America, plus a majority of the House and the majority of the Senate.

SCHIEFFER: Now, Senator Nickles, I'm sure you'd agree that's what this debate is about. Why do you take the other side?

SEN. DON NICKLES, R-OK: Well, I don't think that's what the McCain-Edwards bill does. I think it puts a lot of medical decisions away from doctors into trial lawyers' hands.

For example, we passed legislation last year, we ca pass legislation tomorrow, to mandate internal appeals, external appeals. But we think you have to go through those appeals processes before you go to court.

Under the McCain-Edwards bill, you don't have to go through the appeals process; you can go straight to court. Somebody can allege harm or injury or something, and, bingo, you're in court. So, it's not doctors making the decision, it's trial lawyers.

And then there is no cap on damages. They can sue for whatever, unlimited pain and suffering and uneconomic harm. The net result is - and it's not just HMOs, it's employers as well. So employers better be liable. This legislation can bankrupt them, and I'm afraid a lot of them would drop health care as a result.

SCHIEFFER: Well, let me just ask you the other side of your argument, and that is, is there any other entity, is there any other business, is there any institution in the United States that you can't sue?

NICKLES: Oh, no, and you can sue HMOs. HMOs are sued all the time. I mean, there was a lawsuit in Florida the other day for $80 million, one in California, $120 million. You can sue HMOs to make sure you get the coverage that you're contracted to do.

And we'll support some liability, but what we have before us in the Senate right now is open-ended, unlimited, sue federal or state. It's a lottery. And employers, the gun's at your head.

We're going to try to protect that. We have an amendment that would exempt employers just like Texas did. People keep saying, "Well, hey, this didn't hurt. Texas did it, and it doesn't hurt too much. Let's do what Texas did." We're going to give people a chance to do that. Let's exempt employers, let's come up with limited liability, let's come up with something we can afford, and we'll support it.

GLORIA BORGER, U.S. News & World Report: Senator Edwards, what do you think about exempting employer liability? I mean, that seems to be a big issue now. Should employers be responsible for the health coverage if HMOs, say, make a bad decision?

EDWARDS: Gloria, this is actually a subject that the president agrees with us on. The president has said in his written principles that he thinks employers should be exempted from liability unless they actually make individual medical decisions. In other words, unless they're in the business of overruling doctors, which, of course, the vast majority of employers don't do.

BORGER: So you can agree on that?

EDWARDS: This is something that's precisely what our bill says.

Now, Don and others have continued to raise questions about this. And as recently as Friday, I met with a number of senators from across the aisle, Republicans and Democrats. We're working to make sure we reach the right language on this. But we agree with the principle that the president agrees with - I don't know whether Don agrees with it - that employers should be protected.

If I can sy one thing about the arguments that Don just made. The problem with these arguments, these are the arguments that have been trotted out by the HMOs, the same old rhetoric that the HMOs have trotted out for years and that they're spending millions of dollars on television right now. We need to move past that.

We need to focus on patients and provide patient protection. John McCain and I have in fact moved past that.

That's why we have a bill that's a consensus bill in the Senate and the House.

But it's time to finally put the law on the side of patients. We need to quit talking about this and do something for the families of America.

NICKLES: Under the bill that's pending, employers can be sued, and that's not the case in Texas. We're going to have an amendment. Hey, we're going - are we going to exempt employers or not? Or are we going to come up with, well, we sort of exempt them. Under the bill that's pending, you exempt them, and then you come back and sue them. And you can sue them for lots of things, again, unlimited damages.

That will scare - we're talking about real business here. We're talking about - do people have to provide this benefit? No. It's very expensive, in many cases not even appreciated. So I'm afraid the net result is a lot of employers would drop health care.

We shouldn't do harm. We shouldn't increase the number of uninsured. We shouldn't make health care so expensive that people can't afford it, and increase - we already have 44 million people that don't have health insurance. Let's not make it worse. Let's not add to that number by 2, 3, 4, 5 million, which I'm afraid the bill before us would do.

We can fix it. We have an amendment that I think that would help fix it that we'll be considering on Tuesday. We're going to have other amendments. We want to pass a bill.

We want to pass a real bill that will give patient protections, but not allow this circumvention, skip the doctors, we're going to go straight to court, like the bill that we have pending now.

EDWARDS: Well, just in response specifically to what Don's saying, we agree in principle on protecting employers. We ought to work out a way to make sure that that's done. That's something we agree on.

As to the lawsuits and the rising number of uninsured, the argument that the HMOs have been making for years and they're continuing to make, what we've learned from experience is that that's simply not true. In the states that have enacted strong patient protection - Texas, California, Georgia - in California and Georgia, there's not been a single lawsuit. Their law is designed just like ours to avoid lawsuits, so that you have an internal appeal, then an external appeal before you go to court. It has in fact worked.

As to the number of uninsured, in those states that have enacted strong patient protection - Texas, California, Georgia - the number of uninsured have gone down, not up. So, nfortunately, the arguments, this rhetoric that the HMOs are spending millions of dollars to put on television is not supported by the evidence.

NICKLES: Well, we're not talking about HMOs, we're talking about employers. And, when you refer, "Hey, it doesn't hurt in Texas," Texas exempts employers. Well, if that's good, let's exempt employers nationally.

Texas requires exhaustion of the appeals. Under the McCain-Edwards bill, you don't have to exhaust the appeal. You can allege harm, and you can just bypass the appeal. You don't even have to go to it. Or you can wait 180 days. You don't have to go through the appeals. You can go straight to court.

So you have lawyers making decisions instead of doctors. We want to insist, before there's liability, you have to exhaust the internal, external appeals, which, those decisions are made by doctors. So you have doctors making decisions instead of lawyers.

SCHIEFFER: Let me just point out that there seems to be agreement on so many things now about reforming HMOs, agreement that simply wasn't there even, you know, a year and a half ago.

NICKLES: Sure.

SCHIEFFER: You now agree that people ought to have the right to go into emergency rooms, that they can continue to see their ob-gyn, that they can continue to see specialists.

But to many people from the outside, it looks like you're haggling over something very small. For example, you say only going to federal court to sue. You say you ought to be going to state courts. You're saying, well, you ought to have caps on the amount of damages. So far, you all are talking about a much larger cap.

NICKLES: No caps on non-economic.

SCHIEFFER: Why, what's the problem here? I mean, what's the difference...

(CROSSTALK)

SCHIEFFER: Let me just ask you, what's the difference in going to federal court and state court?

NICKLES: Well, there's a lot of differences that you didn't touch.

You said we're in agreement on patient protections, but the bill that Senator Edwards is pushing would pre-empt all the state protections. States, you have to do substantially equivalent and as effective as the federal mandates.

So, basically, what you're doing is taking over state regulation of insurance by the federal government. The federal government can't do it. There's no way, shape or form the federal government can do it. So that's a big change.

Are we going to have the federal government dictating - just to give you an example, emergency room. Everybody agrees with emergency room. North Carolina, Oklahoma, we have emergency room procedure, but the one that they're trying to mandate on our states is much more extensive and expensive than the one that we've passed in our states. Our states don't require post-care, post-stabilization care. Our states don't require ambulance....

(CROSSTALK)

SCHIEFFER: Well, let's jut stop right there.

Now, let's, we'll come back to you. OK, what's your side of that?

EDWARDS: Well, first of all, what our bill does, Bob, with respect to - Don makes mention of lawsuits and caps.

What he's ignoring is that we send all cases, or most cases, not all cases, most cases to state court which already have caps in place, limitations on damages. We let the state law apply to those cases.

But the most important thing is, it's not an accident that the AMA and most medical groups and most consumer groups in America support our bill.

We have a fundamental decision to make this week, and you raised it in your question just a moment ago. That question is whether we're going to make progress, whether we're going to have real and meaningful HMO reform, or whether we're going to continue to mount these obstacles to progress.

The president issued a written veto threat this past week. Unfortunately, it looks like an HMO press release.

We want to work with the president. We want to work with our colleagues in the Senate.

What we don't want to have is this continuing situation of children who can't get the tests they need, families who can't get the treatment they need.

You mentioned it earlier, HMOs can deny coverage to a family, and they are privileged citizens. No one can do a single thing about it. That's what this debate is about.

We need to get past some of these nuances, and we need to get this legislation passed.

BORGER: Very quickly to Senator Nickles, if Senator Edwards' version of this bill passes, would you recommend that the president veto it as he has threatened that he would do? And would that be a problem for Republicans?

NICKLES: Well, I sure hope this bill doesn't pass. I want to pass a bill the president can sign. The president is exactly right in saying he would veto this bill because this bill would be a disaster for employment. It would be a disaster for employees, because a lot of employers would find, wait a minute, the cost of health care is going up so much they can't even afford the co-pays.

BORGER: Would the veto be a problem for Republicans politically?

NICKLES: Hey, let's not play politics. Let's do what's right. Let's pass a good bill. And not, hey, who scores points?

Everybody has said they want to have a bill that is signable, passable and becomes law. We've played politics with this issue enough. Let's come up with a real bill that can be signed.

The president is exactly right, and his veto message is exactly right. There are lots of fatal problems with the underlying bill.

SCHIEFFER: Just quickly, do you think a bill of some sort will pass this week?

EDWARDS: I do. And when it's on the president's desk, Bob, he's going to have to make a really important decision: Is he going to be a force for progress, or is he going to be an obstacle to progress, which the America people will be watching.

SCHIEFFER: All right, we have to leave it there. Thanks to both of you. Very enlightening this morning.

When we come back, we're going to go overseas. We're going to talk about foreign policy in a minute.

(COMMERCIAL BREAK)

SCHIEFFER: And with us now, Senator Joe Biden, who is the new chairman of the Foreign Relations Committee; and Republican Senator Richard Lugar of Indiana, who, of course, is one of the ranking Republicans and long-time acknowledged expert on foreign policy in the Senate.

Senator Biden, let me begin with you, because last week the vice president came up and had a long scheduled meeting with Democrats in the Senate to talk foreign policy. We got so many different reports on what actually transpired there.

Your friend Senator Harkin said, well, it was mostly mush. But Senator Levin, who's going to the new chairman of the Armed Services Committee, said he saw a change in emphasis from the vice president, that he now believes that the vice president and the administration is going to put more emphasis on development of an ABM system, rather than deployment of such a system, rather than focusing on that. And then we found from the White House that, no, there was no change in emphasis at all, according to their spokesman. They said nothing has changed.

What did you come away from the meeting feeling, Senator?

SEN. JOE BIDEN, D-DE: Well, I've come away from a number of meetings with Secretary Powell, with the president and many others with the sense that they understand that, to just say what Secretary Rumsfeld had been saying, which is, look, we know whatever we build isn't going to work right - I'm paraphrasing - it isn't going to work right the first time; we'll build it, we'll eventually get it right, that that's just not going to fly. It's not going to fly with our European allies; it's not going to fly in the United States Senate.

And each private meeting I have, including with Mr. Wolfowitz, the number-two guy at the Defense Department, is consistent with all of the meetings which is, "Look, fellas, just calm down. We're going to continue research and development." They don't even bump up, Bob, against prohibition under the ABM Treaty on testing until the year 2003.

So, I think they're realizing that, as Sam Nunn said, that they should focus on technology, not theology.

And so I sense a mood change but no less determination, on their part, to build a national missile defense, but just a much more reasoned and ordered way to go about it. That's what I sense anyway. Maybe that's what I hope for, and that's what I want to hear.

SCHIEFFER: Well, of course, we heard the president talking about how the ABM Treaty was a relic of the Cold War during his trip to Europe. But my sense of what is coming out of this meeting was that the vice president assured you all that nobody is going to make any attempt to scutle this for at least a year. Am I right?

BIDEN: Let me put it this way, that's the impression I have from the totality of all the meetings I've had, including with the president, that there isn't any - because, look, there is no justification. Dick Lugar is an expert. Dick and I have a slightly different view on this issue, but I bet you if you ask Dick, and he is right there, there is no test that had to be, that's even on the boards, that would require us to abandon the ABM Treaty in the near term.

So I think they're stating what reality is, and they're kind of backing off what is sort of, understandably, sort of a campaign mode that they'd been in for two years before the campaign in the first six months.

All new administrations go through this kind of vetting period, and they're trying to make a decision, I think, Bob as well, in terms of emphasis. For example, the Defense Department views proliferation of weapons of mass destruction as a much greater threat than an ICBM. And I think these things are starting to sink in.

SCHIEFFER: All right. Well, since you are there, Senator Lugar, I should take Senator Biden's suggestion and ask you. Is that your impression now that nobody is going to scuttle this ABM Treaty for a while, while they work on development of this program?

SEN. RICHARD LUGAR, R-IN: Yes, that's my impression. And Senator Biden, in fact, asked during the hearing with Secretary Powell this week, are there really tests that bump up against ABM? Secretary Powell was not really definitive on that, and I suspect Senator Biden will have hearings in the committee to try to make certain that that is so.

I just would bring in the factor that President Putin of Russia, after the meeting with President Bush in Slovenia, added a new twist this week. And he said if the United States deliberately abrogates the ABM Treaty in a hurry, then Russia will call off START I, START II, all the other agreements they have made. They, in fact, will beef up their multiple warheads in a way that we thought START II had cured.

But he also implies that pragmatically there are ways in which the United States and Russia could work on a missile defense against the North Korean threat, maybe even bringing in the Chinese to put some pressure there. Or he might even do some work with regard to Middle Eastern threats, at least with regard to missile defense, if we work with the Russians on this.

This is, I think, an important set of propositions.

On the one hand, sort of dire difficulty with Russia, if we break the ABM, just deliberately, cavalierly. On the other hand, if we are concerned about missile defense in a limited sense, perhaps the Russians might be, too, and we sort of move on this together.

BORGER: Senator Biden, I would just like to move to the Middle East a little bit here, if I might, because Secretary of State Colin Powell is going to be traveling there. In the past, e's said he would only go to the Middle East if he thought he might actually accomplish something. What does he need to accomplish on his trip?

BIDEN: Well, you know, I think his going to the Middle East all by itself accomplishes something. And what is accomplished is, the Middle East, including Israel as well as the Palestinians, Egyptians and others, wonder whether or not - initially, they wondered whether or not the administration was stepping so far back from this dispute that nothing much was going to get done.

And everyone in the region understands, Gloria, that without the United States at least as a catalyst, nothing much gets done. It wasn't until George Tenet, our head of the CIA, went over that we even had the outlines of an agreement whereby these folks can step back from one another on a security side of the equation.

And so, I think what's happening, again, look, every new administration goes through this period of uncertainty. I think they're getting their sea legs. I think the secretary of state is understanding that the United States can't say, "Look, call us when you need help." We have to be there, and just his physical presence demonstrates our interest, which does in fact keep bad things from happening. It doesn't solve the problem. But without his being involved and engaged, it really creates an overwhelming sense of uncertainty from Cairo to Damascus. And that's not healthy.

So just his going is a very positive thing. No settlement in sight. But just his going to make it clear we're still invested, we want to see this thing calm down, we want the violence to stop, and we hope that the security outline set out by Tenet will be adhered to.

BORGER: Senator Lugar, Prime Minister Sharon is actually going to be here in Washington tomorrow. Do you think, now that the president is actually meeting with Mr. Sharon, he needs to invite Palestinian leader Yasser Arafat here as well?

LUGAR: Well, that may be a stretch for the moment. I agree with Joe Biden to sort of step by step. We've moved from chaos in the Middle East to a situation in which we began to seek just a cease-fire, not a comprehensive solution or any solution, just a cease-fire. And George Tenet certainly contributed to that. Colin Powell's presence will underline the possibilities. But it's certainly not a certainty, even with the Mitchell Report and all, that we'll even get a cease-fire.

Now, to include Yasser Arafat in this, perhaps that's constructive, simply to say once again a cease-fire, an end of terrorism, an end of these operations is essential. So I have perhaps no objection to that, but I'm not certain that this is really required.

And the Sharon visit is an emergency, an unplanned visit for consultation. Probably very constructive.

SCHIEFFER: All right. Gentlemen, I'm sorry, we're going to have to leave it there. I want to thank you both very much for coming this mornin.

LUGAR: Thank you, Bob.

BIDEN: Thank you.

SCHIEFFER: We'll be back with a final word in just a moment.

(COMMERCIAL BREAK)

SCHIEFFER: Finally today, one rainy night last week we were visiting some friends, and after dinner the lights went out. We figured it was just the weather and they would come back on soon, so we just kept talking in the dark and listening to the rain.

Well, the lights never came back, but here's the surprising part: It didn't ruin the evening, it made it better. It reminded all of us of when we were children before television, before air conditioning, when families went to the front porch after diner to cool off. We all remembered sitting in the dark for hours, talking, looking at the stars, hearing things the grown-ups didn't know we heard because they thought we had nodded off.

Today we live in the information age, but we're so bombarded with so much information from all sides now, from the television, the radio, the Internet, it all becomes a distraction. Sitting in the dark the other night, it was if we were freed from all of that. The conversation got better because our imaginations came into play, and we could pause from time to time just to listen to the rain.

I must also confess the discovery of another secret delight. When it's dark, you can close your eyes at any point in the conversation without offending anyone - very relaxing.

Well, that's it for us here. We'll see you next week on Face the Nation.




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