29580 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 December 6, 2009 SENATE—Sunday, December 6, 2009

The Senate met at 12:30 p.m. and was SCHEDULE votes. The Gregg amendment says called to order by the Honorable MARK Mr. DURBIN. Mr. President, fol- Democrats can’t raid Medicare, which BEGICH, a Senator from the State of lowing leader remarks, the Senate will is already in serious trouble, in order Alaska. resume consideration of H.R. 3590, the to pay for their $2.5 trillion bill. The health care reform legislation. The money going out of Medicare’s hospital PRAYER time until 3:15 p.m. will be equally di- insurance trust fund already exceeds The Chaplain, Dr. Barry C. Black, of- vided. The majority will control the its annual income. It is already drying fered the following prayer: first hour, the Republicans will control up. By 2017, the hospital insurance Let us pray. the next hour. The remaining time will trust fund will not be able to pay full Eternal Lord God, the source of our be equally divided and controlled be- benefits, and that is before our col- strength, as we labor this weekend, we tween the two leaders or their des- leagues get their hands on it. This pro- are grateful for Your keeping power. ignees. gram needs to be fixed, not pillaged to Lord, You sustain us and this land we At 3:15 p.m., the Senate will proceed create another one. love through dangers seen and unseen. to vote in relation to the Lincoln So the Gregg amendment prohibits Your faithfulness and mercy astound amendment, No. 2905, related to execu- using money from Medicare to pay for us, for throughout our Nation’s his- tive compensation, to be followed by a any new government programs, for ex- tory, Your loving providence has guid- vote in relation to the Ensign amend- panding existing programs, or for sub- ed us through sunshine and storms. ment, No. 2927, relating to attorney’s sidies. Instead, it directs that any Today, accompany our Senators in fees. money from Medicare be put back into their work. May they feel Your pres- We are working on the next amend- Medicare to strengthen and preserve it ence, hear Your whisper, and follow ments in order and hope to have them for future generations so we can keep Your leading. Remind them of the mo- ready for votes this afternoon. Sen- our promises. Frankly, this is common mentous nature of the work they seek ators will be notified if additional sense. to accomplish, as they remember that votes are scheduled after the votes at Americans don’t want this bill to history will critique their labors. Help 3:15 p.m. pass, and they certainly don’t want it them also to take solace in the fact to pass at the expense of the roughly 40 f that they are ultimately accountable million American seniors who depend to You. We pray in Your great Name. RECOGNITION OF THE MINORITY on Medicare. The Gregg amendment Amen. LEADER would keep that from happening. A f The ACTING PRESIDENT pro tem- vote for the Gregg amendment is a vote pore. The Republican leader is recog- to keep our promise to seniors. PLEDGE OF ALLEGIANCE nized. We are also going to have a vote The Honorable MARK BEGICH led the today on the Ensign amendment. The Pledge of Allegiance, as follows: f amendment is simple: It is designed to I pledge allegiance to the Flag of the HEALTH CARE REFORM ensure that injured patients—not their United States of America, and to the Repub- lawyers—receive the vast majority of Mr. MCCONNELL. Mr. President, lic for which it stands, one nation under God, any settlement in a medical mal- first, I wish to extend a welcome to the indivisible, with liberty and justice for all. practice suit. It says that since law- President, who is coming to the Capitol suits should benefit patients, not law- f today to meet with Democrats on the yers, lawyers can’t take more than subject of the health care bill. APPOINTMENT OF ACTING one-third of the recovery their clients So far, they have voted to cut Medi- PRESIDENT PRO TEMPORE receive. In other words, the lawyers care three times—cuts they previously The PRESIDING OFFICER. The can’t take more than one-third of what described as immoral and irresponsible; clerk will please read a communication the client gets. cuts that made it impossible for the to the Senate from the President pro President to keep his pledge that peo- These are responsible limits. More- tempore (Mr. BYRD). ple who like their plans can keep them; over, they were written by a Democrat The legislative clerk read the fol- cuts that will reduce the quality of and supported in the past by 21 of our lowing letter: home health care; cuts that will reduce current Democratic colleagues, as well U.S. SENATE, benefits for nearly 11 million American as the Vice President, and they would PRESIDENT PRO TEMPORE, seniors on Medicare Advantage; cuts drive down costs, which was the origi- Washington, DC, December 6, 2009. that raid Medicare instead of fixing it; nal purpose of reform. To the Senate: The independent Congressional Budg- Under the provisions of rule I, paragraph 3, and cuts the American people vehe- of the Standing Rules of the Senate, I hereby mently oppose. et Office has said comprehensive liabil- appoint the Honorable MARK BEGICH, a Sen- Democrats are in a tough situation ity reforms would save the taxpayers ator from the State of Alaska, to perform on this bill. They want to expand the more than $50 billion. The Ensign the duties of the Chair. government’s reach into health care, amendment is a step in that direction. ROBERT C. BYRD, but they do not have the money, and We will offer a better, step-by-step President pro tempore. they don’t have the support, more im- reform to end junk lawsuits against Mr. BEGICH thereupon assumed the portantly, of the American people. So doctors and hospitals later in the con- chair as Acting President pro tempore. what did they do? They decided to take sideration of this bill. I am hopeful my f the money they need out of Medicare, Democratic colleagues will support it and that has only made their health again, since so many of them have sup- RECOGNITION OF THE ACTING care plan even less popular with the ported it in the past. MAJORITY LEADER American people. I yield the floor. The ACTING PRESIDENT pro tem- The Gregg amendment, which we will The ACTING PRESIDENT pro tem- pore. The Senator from Illinois is rec- vote on later this afternoon, will help pore. The Senator from Illinois is rec- ognized. reverse the damage of last week’s ognized.

● This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor.

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00001 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.000 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD December 6, 2009 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 29581 Mr. DURBIN. Mr. President, I ask with respect to amendment No. 2905, they get sick, end up in the emergency unanimous consent to speak as in lead- offered by the Senator from Arkansas, room, we know they are getting that er time. Mrs. LINCOLN; and amendment No. 2927, care at the most expensive place while The ACTING PRESIDENT pro tem- offered by the Senator from Nevada, the rest of us pay. That is a hidden tax. pore. Without objection, it is so or- Mr. ENSIGN, with the time equally di- On average, in this Nation, that hid- dered. vided and controlled, with Senators den tax is $1,000 per family’s health in- surance policy. I can tell you, in my f permitted to speak for up to 10 min- utes, with the majority controlling the State of Florida it is even higher. It is HEALTH CARE REFORM first 60 minutes and the Republicans $1,400. In Florida, a family with a group Mr. DURBIN. Mr. President, Senator controlling the next 60 minutes. insurance policy is paying $1,400 more per year to take care of those folks REID contacted me earlier today and The Senator from Florida. said he was unable to be here for the Mr. NELSON of Florida. Mr. Presi- who do not have insurance but end up opening of the session, and I told him I dent, I wish to speak on the bill and, in getting sick, and that bill is paid by ev- would be here to open. part, respond to the minority leader. erybody else. What I have described is a system I would like to say, briefly, in re- At the end of the day, why are we stay- that is in tilt. It is not working. The sponse to the comments that have been ing around the clock discussing this whole purpose of this bill is to try to made by the minority leader, Senator bill with the intent that we are going to pass the bill? It is simply that we make it work so, No. 1, it is affordable; MCCONNELL, who continues to raise the No. 2, that health insurance is avail- question about the future of Medicare, cannot continue as we are. We are in a system whereby insurance is not solv- able. At the end of the day, we are that I hope the Senator is sensitive to going to pass it. At the end of the day, the fact that this last week, on Decem- ing the Nation’s health needs. All you have to do is talk to a doctor. poor old HARRY REID, our majority ber 3, we voted 100 to 0 for the amend- leader, is going to figure out a way to ment offered by Senator BENNET of Col- If they haven’t already pulled their hair out, they are about to, in that get 60 of us to come down here to shut orado, which said nothing in the off the filibuster so we can go to final amendments to this act shall result in when they want to give a certain treat- ment to a patient, they feel like they passage and get it down to a conference the reduction of guaranteed benefits committee in the House. At the end of under the Social Security Act provi- have to negotiate with the insurance company. In fact, the insurance com- the day, after that conference com- sions related to Medicare; and we went mittee comes back, we are going to get on to say any savings would be used to pany often is dictating to them what treatment and what drugs they can or those 60 votes again because this is so extend the solvency of the Medicare desperately needed, despite all the sup- trust fund, reduce Medicare premiums cannot use or look at the simple little cases we hear about. posed arguments we hear from the and other cost sharing for benefits and other side. improve or expand guaranteed Medi- They are absolutely simple cases but end up with catastrophic results be- Can this product be improved? Of care benefits and protect access to course it can. I certainly wish to share, Medicare providers. cause someone is in the middle of a treatment for something and then they as I did in the Finance Committee, an We voted 100 to 0, in a bipartisan amendment that would cause the phar- get a notice that their insurance com- fashion, to make certain we protect the maceutical industry to come up with pany is going to cancel them or, per- Medicare Program. That is the way it some more money. should be, and that is the way the Sen- haps, they have lost their job and they They have made a pledge, to their ate voted. are desperately trying to get health in- credit. Let me just say that Billy Tau- surance again and an insurance com- f zin, the head of the pharmaceutical as- pany uses, as an excuse, that they had sociation, is smart. He knows what he RESERVATION OF LEADER TIME a preexisting condition. It may be a is doing, and he is trying to play ball flimsy excuse. I gave the example yes- The ACTING PRESIDENT pro tem- with the leadership and the White terday of a reason for denial being House. I want the pharmaceutical in- pore. Under the previous order, the something as silly as a skin rash as a leadership time is reserved. dustry to know this Senator appre- preexisting condition and so they can’t ciates that because with everybody f get health insurance now on their own. else, such as the insurance industry, SERVICE MEMBERS HOME We have a system that is out of con- trying to kill it deader than a doornail, OWNERSHIP TAX ACT OF 2009 trol. at least they are helping. But the phar- We hear a lot about cost out here. We maceutical industry said they were The ACTING PRESIDENT pro tem- hear a lot about cost. Indeed, if we coming forth with $80 billion over 10 pore. Under the previous order, the don’t do something about the cost of years that they were going to con- Senate will resume consideration of health care, none of our people are tribute. The hospital industry said H.R. 3590, which the clerk will report. going to be able to afford it. Talk to they were going to contribute about The legislative clerk read as follows: corporate America and the CEOs and $150 billion over 10 years, and so forth. A bill (H.R. 3590) to amend the Internal listen to them as they describe what But, in fact, the pharmaceutical indus- Revenue Code of 1986 to modify the first-time the insurance companies are saying to try is not contributing $80 billion. home buyers credit in the cases of members them and how they are jacking up Here is a Morgan Stanley analysis for of the Armed Forces and certain other Fed- their rates on their employer-spon- eral employees, and for other purposes. investors of pharmaceutical stocks. sored group policies. Please, pray that This is their analysis of what is going Pending: you are not an individual who can’t get to happen to the pharmaceutical indus- Reid amendment No. 2786, in the nature of a group policy and you are having to go try in the future. Morgan Stanley has a substitute. out there and try to find an individual said these guys are so smart, they are Lincoln amendment No. 2905 (to amend- policy because the likelihood is you are ment No. 2786), to modify the limit on exces- not contributing $80 billion. They are sive remuneration paid by certain health in- not going to be able to afford it. contributing only $22 billion. Why? Be- surance providers to set the limit at the So cost is a critical factor. It is a fac- cause when they say they are going to same level as the salary of the President of tor also to the Government because the contribute discounts to allow half of the United States. U.S. Government cannot afford the this so-called doughnut hole to be Ensign amendment No. 2927 (to amendment cost of Medicare as it keeps exploding filled, that means there is going to be No. 2786), relative to limitation on amount of into the future. We have to bring these a lot more drugs sold. attorney’s contingency fees. costs under control. When you mix Oh, by the way, the bill takes Med- The ACTING PRESIDENT pro tem- that in with the horror stories that we icaid from 100 percent to 133 percent. pore. Under the previous order, the hear of the 46 million people who don’t That is going to mean a lot more drugs time until 3:15 p.m. will be for debate have health insurance but who, when sold as a result of this bill.

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00002 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.000 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD 29582 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 December 6, 2009 So the real loss, or contribution, if plaintiffs was $4.09 billion. Calculating be left to the States in our Federal sys- you will, of the pharmaceutical indus- attorney’s fees at one-third would tem. Pennsylvania, my State, is illus- try is $22 billion over 10 years, not $80 mean that the attorney’s fees were, for trative of the way State governments billion. That does not even include—re- the plaintiffs’ attorneys, $1.340 billion, can handle the issue and deal with it to member, they just raised their prices 9 substantially under the $2.110 billion avoid excesses. In Pennsylvania there percent, three times the rate of infla- for defense attorneys. was a rule change made to require that tion. So they are going to make up a Attorneys who take on cases on a before a malpractice suit could be lot of that anyway. contingent fee do so because, unlike in- brought, there had to be a certification What I want to plead with the leader- surance companies which have the from a doctor that the case fell below ship in the White House and the leader- funds to retain lawyers on an hourly applicable standards of care. A second ship of the pharmaceutical industry— basis, most plaintiffs are unable to pay major change was made which required come back to your $80 billion real fig- attorney’s fees, do not have the capital that the medical malpractice action be ure over 10 years. One way to get there to do so. The arrangement is worked brought only in the county where the is the amendment I offered in the Fi- out that the fee will be paid by a share cause of action took place. That was a nance Committee that was rejected on of the recovery. If there is no recovery, move aimed at eliminating so-called a narrow vote of 13 to 10. Out here on there is no fee. Beyond the absence of venue shopping, to go to a venue where the floor it is my intention to offer the fee, the plaintiffs characteris- there is likely to be a better result. that amendment. I filed it. It would tically cannot afford the costs of liti- As a consequence of these two rule produce, according to the CBO, $106 bil- gation. When depositions are taken or changes, the number of filings in Penn- lion of taxpayer fund savings over 10 filings are made or various other costs sylvania dropped dramatically. With years because the discounts would have arise, it is up to the plaintiff’s lawyer the comparison of the years 2000 to to be there for the Medicaid recipients to pay those fees and those are not re- 2002, it was noted that the rates who are entitled to discounts, but now, imbursed. dropped by more than 37 percent in since they buy their drugs through An effort is being made now to have 2003, continued to decline in every suc- Medicare, they can’t get those dis- those deductions on an annual basis. ceeding year, and in 2008 had dropped counts. That is because we changed the The plaintiff’s attorney cannot even 41.4 percent. law 6 years ago in the prescription drug take them in the year when they are The improvement in the picture was benefit. That is just simply not right. paid. So if you see a situation where, in further illustrated by the fact that the I am not out here to try to punish absolute dollars plaintiffs’ lawyers on reforms resulted in the reduction of anybody. I am out here to try to make contingent fees are paid less than de- premiums on malpractice insurance. this work and to get 60 votes so we can fense lawyers, and you have added to These reductions are in sharp contrast go to final passage. But everybody has that the risk factor that the plaintiff’s to 2002, when one leading carrier in- to do their part. Everybody has to con- lawyers may get nothing, there should creased its rates an average of 40 per- tribute for their part. even be a greater compensation for cent and a second leading carrier in- I look forward to the future discus- plaintiffs’ lawyers than defense law- creased its rates by 45 percent. Then sions as we close in on what probably is yers. As these statistics show, it is less. the rates have been decreased consist- going to end up being the final passage Most of my experience in the court- ently and in ensuing years. of this, probably a week or 8 days down room has been as a prosecuting attor- Other indications in the success of the road. ney, but some experience—I worked for Pennsylvania was the renewed interest The ACTING PRESIDENT pro tem- a big law firm, Barnes, Dechert, Price, of companies that want to sell medical pore. The time of the Senator has ex- Myers and Rhoads, representing the malpractice insurance in Pennsyl- pired. Pennsylvania railroads, defendants, The Senator from Pennsylvania is representing insurance companies. In vania—57 newly licensed entities are recognized. the firm practice in that kind of rep- now writing medical malpractice cov- Mr. SPECTER. Mr. President, the resentation, there is frequently a sen- erage since April, 2002. This is illus- schedulers have allocated 15 minutes to ior lawyer, junior lawyer, associate, trative of the way the States can deal me, so I ask unanimous consent at this paralegal, and multiple tiers running with this issue. It ought to be left to time that I may speak for up to 15 min- up the costs. the States. utes. Most plaintiffs’ lawyers do not have Interestingly, the Senator from Ne- The ACTING PRESIDENT pro tem- large firms. Many are single practi- vada, who has proposed this amend- pore. Without objection, it is so or- tioners. To postulate a situation where ment, has filed legislation this year, S. dered. the fees be cut even further is just not 45, and in S. 45 he has a different ap- Mr. SPECTER. Mr. President, I have reasonable or not realistic. proach. He allocates for some recov- sought recognition to speak in opposi- When the contention has been eries up to 40 percent. Why there is a tion to the Ensign amendment. The au- made—it was just made by the Repub- difference now, cutting it back to 33 thoritative statement on attorney’s lican leader, repeated earlier conten- percent, and then down to 25 percent, is fees has come from the National Asso- tions—that there are Senators who unexplained. But when an amendment ciation of Insurance Commissioners in voted in favor of the Kennedy bill on li- of this sort is offered on a bill for com- a 2008 document entitled ‘‘Countrywide ability reform, it is not so as rep- prehensive health care reform, it is not Summary of Medical Malpractice In- resented. First of all, Senator Ken- germane to the issues before the Sen- surance.’’ These are authoritative fig- nedy’s bill in 1995 was a much different ate. The standard of being germane ures on how much the defense lawyers bill. Second, it was a tabling motion. means whether there is any provision have taken and how much the plain- Those who voted against tabling were in the bill now which relates to this tiffs’ lawyers have taken. willing to consider the issue, not that matter. It shows that the plaintiffs’ lawyers, they agreed with what was in the bill. Had this really been a serious effort on this state of the record, are under- Procedurally, when there is a motion to get legislation, the process or re- paid—paid less than defense lawyers— to table, if it is passed the bill is off the course to be followed would have been hardly the cause for an amendment to floor. If a motion to table is defeated, considerably different. The way to get lower attorney’s fees even more for then the bill remains on the floor for legislation enacted is not merely to plaintiffs’ lawyers. consideration. But it does not mean come before some bill and offer it with- These are the statistics by the Na- that people who want to consider the out hearings before the committee of tional Association of Insurance Com- bill are in agreement the bill ought to jurisdiction, without the consideration missioners as to the attorney’s fees. be enacted. of witnesses. There have been no hear- The attorney’s fees for defendants were The issue of attorney’s fees and the ings on the amendment offered by the $2.110 billion. The total recovery by issue of malpractice litigation ought to Senator from Nevada. Had there been

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00003 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.000 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD December 6, 2009 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 29583 hearings we would have been in a posi- last minute when someone is rushed to and jury and a judge there to make tion to make a determination as to the hospital and the burden then falls that final decision. What the Senator what are the real facts. on family members. Estimates range as from Nevada does is preclude and re- Are the fees collected by plaintiffs’ high as 27 percent of Medicare costs in duce the possibility that victims can attorneys on a contingent basis exces- the last few days, few weeks of a per- recover. How many people die each sive? What is the reality for the jus- son’s life. year in America from medical mal- tification, in terms of the time it takes There are also very substantial sav- practice? The Institute of Medicine and the expenses involved? But no re- ings available for changes in lifestyle. told us 10 years ago the number was quest was made, to my knowledge, for Safeway has demonstrated lower insur- 98,000 people a year. Many more are in- a hearing before the Judiciary Com- ance premiums for people who stop jured because of medical malpractice. mittee. I do know that no hearing was smoking, lower insurance premiums for How many lawsuits, claims are suc- held. So we do not have a factual basis people who have lower cholesterol. cessfully filed each year in America for for making an evaluation of this That is another major area of savings. medical malpractice, for injuries and amendment at this time. An additional area of savings would deaths? About 11,000. A very small per- It is my hope that we will move from be to change the current approach of centage of the actual victims of mal- this amendment and take up the issues having fines imposed for Medicare. practice go to court. It doesn’t happen. which are in dispute. We need to elimi- I ask unanimous consent for 30 addi- Those who try to go to court are usu- nate and reject the false rumors which tional seconds. ally not rich people so they do it on a have been advanced. The contention The PRESIDING OFFICER (Mr. contingency fee. What the Senator has been made that there would be BINGAMAN). Without objection, it is so from Nevada is trying to do, unfortu- death panels as a result of this bill. ordered. nately, is to close the courthouse door That has been thoroughly debunked. Mr. SPECTER. Currently the crimi- to favor the defense of a malpractice There has been a context that there nal justice system results most of the case over the victim. That, to me, is would be cuts in Medicare. We argued time in fines for health care fraud. unfortunate, and I hope we are success- an amendment a few days ago on the That is totally ineffective. But if there ful in defeating it. For those who are contention that there would be very were jail sentences imposed, that following the proceedings of the Senate substantial cuts in Medicare. The would be a deterrent to others, some- today, either in person or through C– AARP opposed that amendment be- thing I learned years ago as a pros- SPAN, it is an unusual—not unprece- cause it was fallacious. It was untrue. ecuting attorney. We can also come to dented but unusual—meeting on Sun- AARP is an outstanding guardian of terms on the abortion issue, allowing day. But it is appropriate that we the interests and rights of senior citi- women to pay for abortion coverage in would do something extraordinary zens, and AARP opposed that amend- their medical care. There is no reason when you consider the matter at hand. ment. they should be denied in maintaining This 2,000-page bill is the health care The contention has been made that the principles of the Hyde amendment reform bill that has been in the works there will be a government takeover of with no federal payment for abortion now for a year. It has been considered medical care which has also been dis- services. by three committees in the House and puted and pretty well disproved. When I thank the Chair and yield the floor. two in the Senate. The Presiding Offi- the government option is offered, it is The PRESIDING OFFICER. The Sen- cer from New Mexico has the dubious just that. I believe America would be ator from Illinois. distinction of having been privy to all well served by having a robust public Mr. DURBIN. Mr. President, I thank of the Senate committee proceedings option. But the option is nothing more the Senator from the Commonwealth and some extraneous proceedings. He or less than what it says. It is one al- of Pennsylvania for his opening re- has probably been subjected to more ternative. Private insurers would still marks. He has addressed an issue rel- debate on this issue than any other be in the picture. ative to a pending amendment offered Member. There have been repeated conten- by the Senator from Nevada. He makes A lot of hard work has gone into this tions that there will be an increase in note of a very critical flaw in this bill. Some critics say it is too long. the deficit. President Obama is pledged amendment. The Senator from Nevada There are too many pages. When you not to sign a bill which will add to the is restricting the ability of the victims consider that we are tackling our deficit. I am pledged not to vote for a of medical malpractice to go to court health care system, which comprises bill which will add to the deficit. When to recover by restricting the attorney’s one-sixth of our gross domestic prod- you take a look at what this bill will fees that can be paid, contingency fees, uct—$1 out of every $6 spent in Amer- accomplish, there are very substantial because people usually don’t have ica—it is understandable that we would savings in the current cost of medical enough money to buy an attorney. The need to work carefully and try in a care, which is $2.4 trillion. I will be spe- attorney takes the case and says: If comprehensive way to address all the cific in what they are. With annual ex- you win, then I get paid. If you lose, I issues. aminations available and incentives for don’t get paid. Contingent fee basis. So what does this bill do? First, it is people to take annual examinations, The Senator from Nevada is restrict- historic in that it moves us toward 94 they will be catching what could turn ing the ability of these attorneys to percent of the American people having out to be chronic ailments, very dis- represent plaintiffs, victims, on a con- health insurance. Today about 50 mil- abling, very expensive. Catching a tingency fee basis, but does not restrict lion people don’t have health insur- problem with a cardiac issue, with a the defense attorneys and the amount ance. That is not counting the people heart problem, or catching breast can- they are paid. As the Senator from with bad health insurance. These are cer at an early stage or catching Hodg- Pennsylvania noted, the record is people who have no health insurance. kin’s at an early stage—I speak with clear, the amount of money being paid Some have lost jobs, some worked for some experience about this issue—will to defense attorneys in medical mal- businesses that can’t afford insurance, cut down medical expenses tremen- practice cases is 50 percent higher on and some can’t afford to buy it them- dously. When there are advance direc- an annualized basis than that paid to selves, 50 million of them. Thirty mil- tives, there will also be additional sav- those representing victims. lion are going to move toward coverage ings. This bill provides for counseling I won’t question the motive of the in this bill. It will be the largest per- for people who want to know about ad- Senator from Nevada, but the effect of centage of Americans with the security vance directives. No one should tell his amendment is to reduce the likeli- of health insurance protection in our anyone else what they ought to do hood that an injured victim will be Nation’s history. That is what this bill about end-of-life medical care, but it is able to go to court and be represented does. fair to say consider it, make a decision, by an attorney to make their claim. Secondly, this bill makes health in- have a living will, do not leave it to the Our system of justice has a courtroom surance premiums more affordable. For

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00004 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.000 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD 29584 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 December 6, 2009 over 80 percent—some say over 90 per- saving the government money. It is the this bill, as we should. While we are cent—of the people in America, they largest deficit reduction bill ever con- working today, 14,000 Americans are will see either a reduction in premium sidered by Congress. It is before us going to lose their health insurance. or a slowdown in the rate of growth in now. Mr. President, 14,000 Americans lost health insurance premiums. That is It is no surprise—we heard this morn- their health insurance yesterday, and something that is absolutely essential ing from the Republican Senate leader, 14,000 will lose it tomorrow, and every because health insurance premiums are and we have heard before—that there single day of the year. That is how breaking the bank. Ten years ago, the are those who are arguing this is a dan- many people, despite their best efforts, average health insurance plan for a gerous bill and this bill should not be lose their coverage. family of four cost $6,000 a year. That passed. I asked my staff to do a little We have to stop that. It is time for us is a lot of money, $500 a month. That bit of work on previous debates right to provide the kind of peace of mind was 10 years ago. Now it has doubled. here on the floor of the Senate and that every single family deserves in The average is $12,000 a year, $1,000 a what was said. America when it comes to quality and month for a family of four for health In 1934, when Congress was consid- affordable health care. insurance coverage. That is the aver- ering the Social Security Program, Mr. President, I yield the floor. age, to work and earn $1,000 a month which gave everybody a basic retire- The PRESIDING OFFICER. The Sen- strictly for health insurance. What is ment plan, an insurance plan for retire- ator from Pennsylvania is recognized. the projection in 8 years? That it will ment, even after the Social Security AMENDMENT NO. 2927 double again to $24,000, that you will be bill came to the Senate floor, not in- Mr. CASEY. Mr. President, I rise this working and earning $2,000 a month cluding health insurance, a Republican afternoon to speak about one of the just to pay for health insurance. That Senator from Delaware, Daniel Has- amendments we are going to be voting is unaffordable for so many people. tings, said on the floor about Social Se- on later today. As we stand here today, That is why that is one of the highest curity: we are debating the bill on the floor, priorities in this bill. I fear it may end the progress of a great the health care bill, where we are try- The third thing this bill does is to country. ing to do a couple things at one time, give people across America a fighting A Congressman from the State of and I think we can, and I think this chance against the health insurance New York, James Wadsworth, in the bill does it, even though we will make companies. These private insurance same debate over Social Security, said some changes to it. companies are some of the wealthiest that the passage of Social Security: We are trying to improve the quality companies in America and pay the . . . opens the door and invites the en- of care for Americans, whether they highest amounts to their CEOs each trance into the political field of a power so get their health care through a public and every year. What we are trying to vast, so powerful as to threaten the integrity program or through a private insur- do is to make sure they don’t turn of our institutions and to pull the pillars of ance company or a private plan. We are down people when they need help the the temple down upon the heads of our de- trying to finally use preventive meas- most. Too many of these insurance scendants. ures to make people healthier and have companies, as has been noted many We know that when former Senator better health outcomes. times, raise the issue of preexisting from Ohio Robert Taft was addressing We are also working to reduce costs. conditions and say: We are not going to the effort by President Harry Truman If you want to talk about it in terms of cover that particular surgery or that to have universal health care in Amer- a doctor and a patient or a health care particular drug because you had a pre- ica, he said: system and an American, who should existing condition you didn’t disclose. I consider it socialism. benefit from the health care system, They game the system against the per- It was used against Lyndon Johnson. we basically want to have people get son who is sick. That is going to That same charge was used against Bill the care they need from the doctor change. This bill will provide for cov- Clinton. It is virtually being used they choose. erage despite preexisting conditions, today. When we hear the Republicans What we are engaged in now is a de- and we won’t allow the insurance com- who are opposing this bill come to the bate about an amendment which the panies to assert a limit, a lifetime floor, I have a basic question to ask other side says is about the fees going limit on what they can pay. them. We have been at this debate for to trial lawyers. That is the way they You know what happens. You get se- a year. Where is your bill? What do you like to talk about it, and I know that riously ill, and they cut you off. What want to do? is popular. When the other side makes is happening today is that two out of Oh, they tell us: We have some bills, an amendment such as this, they like three people who file for bankruptcy in and you are going to see them any day to have a target, so their target is trial America do so because of medical bills, now. Well, I would like to. I would like lawyers. But, unfortunately, for this bills they can’t pay. That tells us that to see the comprehensive health reform debate, I think it is misleading because the number of people facing this threat bill from the Republican side of the this amendment, which I would urge is huge. But even worse is the fact that aisle. This is ours, and it has been on people to vote against, is not about some 74 percent of those filing bank- the Internet for 2 weeks for everybody lawyers. It is about victims and wheth- ruptcy already have health insurance. in this Nation to read word by word, er we are going to ensure that victims It turns out the health insurance was line by line. Sadly, there is no Repub- have a shot, a fair chance, when they not worth much when they needed it. lican bill. have a claim for medical negligence The last thing this bill does—and one I know there are two possible reasons when they have been injured as a result of the most important things—is it for that. This was hard work. This was of negligent conduct. doesn’t add to the deficit. President not easy politically or otherwise and I said before, we are debating the Obama told us to do this job but don’t they have not engaged in that hard health care bill and we are talking make the deficit worse. The Congres- work. What we have seen are press re- about costs. This amendment will do sional Budget Office, which is the ref- leases and speeches, graphs and pic- nothing to lower costs. What it will do eree and umpire when it comes to the tures, but no bill, no comprehensive is not lower anyone’s costs. What it cost of bills, came back and said our health care reform bill from the Repub- will do is increase the cost or the bur- bill will actually reduce the Federal lican side. Secondly, there are many on den a claimant has to bear when they deficit by $130 billion over the first 10 that side of the aisle who like this sys- have a claim against any kind of hos- years and $650 billion over the next 10. tem of health care. They agree with pital or doctor in the case of a medical Bringing down the cost of health care the health insurance companies: Let’s negligence case. So the question is, are brings down the cost of government keep it the way it is. we going to enable people who do not health programs. It saves us money, But Americans know better. We are have the means to bring cases versus saving families and businesses money, going to work today in the Senate on very powerful interests? That is one of

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00005 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.000 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD December 6, 2009 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 29585 the basic questions we will answer with who has a claim for a serious injury to This is the seventh day of debate on regard to this amendment. go see a lawyer and to sit down with the health care reform bill. It has been I would hope if a member of my fam- that lawyer and enter into an agree- nearly 21⁄2 weeks since the majority ily or any family—and I think this is ment for the fee, whatever that fee will leader moved to proceed to this bill. true of everyone in this Chamber—if a be, whatever that will be. If that law- We have now considered 14 amend- member of your family, as a result of yer and that person, that patient or ments, and we have conducted 10 roll- medical negligence, had to bring a victim, goes forward with the case, calls. claim, you would hope that individual they bear a risk. The victim bears a Between now and 3:15 this afternoon, could walk into a courtroom or file a risk that they will not be successful the Senate will continue to debate the claim with someone who has the skill and that at the end of that they will amendment by the Senator from Ar- and the ability to be their advocate. have no recovery at all. kansas, Mrs. LINCOLN, on insurance Because I will tell you one thing, they But because of the way the contin- company executive compensation and, are going to be up against a very pow- gent fee works, the lawyer bears a risk at the same time, we will debate the erful interest: insurance companies as well that he or she will not be paid, amendment by Senator ENSIGN lim- that write medical liability policies, an and they also stand a risk of having to iting attorney’s fees. The majority con- incredibly powerful interest. pay for costs the victim cannot pay— trols the first 60 minutes, and the Re- A lot of us come at this question and the lawyer will bear those costs publicans will control the next 60 min- through our own personal experience, throughout the pursuit of that case. utes. At 3:15 p.m., the Senate will con- through the experiences of our fami- So here is what we are talking about. duct back-to-back votes on or in rela- lies. I had a grandfather who I never This is basically a debate about vic- tion to the Lincoln amendment and the met, my father’s father, Alphonsus tims and whether they are going to Ensign amendment. Casey. He, like a lot of people in north- have the kind of representation they Thereafter, we expect to turn to an- eastern Pennsylvania, as a young kid, need. If I were going in to have surgery other Democratic first-degree amend- went into the coal mines at a very in a hospital, I would hope the surgeon ment and another Republican first-de- young age. He worked as a mule boy. would be someone of the best, the high- gree amendment. That is the lineup at One of the days he was tending to the est skill possible. I would want the best this time. It is possible the Senate may mules in that mine, just as a kid, 11 or surgeon, as I take on that battle. Any- vote on those next two amendments 12 years old at the time, he was kicked one would. today. As a result, additional votes are by a mule. He got a scar that started I would hope we would not do some- possible following the two votes at 3:15. above his eyebrow and went across his thing in the debate to reduce the Once again, I thank all Senators for face, split his lip, and went down chances that a victim of medical neg- their cooperation and courtesy on this through one side of his chin. So he un- ligence could go into a courtroom or extraordinary weekend session. derstood injury as a child, injury in the file a claim with the best, most highly Mr. President, I suggest that Senator course of working. I think he also un- skilled lawyer they can find. I would HARKIN be next recognized for 7 min- derstood that when he became a law- utes. yer, many years later, well into his hope we would not want to do anything The PRESIDING OFFICER. The Sen- adulthood. He understood what it is that would injure that basic right. It is interesting that this amendment ator from Iowa is recognized. like to suffer an injury and to make a Mr. HARKIN. Mr. President, I will claim for an injury. But what he did is applies only to patients—it does not have more to say about this later. But represent injured workers. That was apply to anyone else—patients who there has been so much talk about fear, his law practice. I wonder what he would become victims of medical neg- fear, fear. Everybody has a fear. Let’s would say if he were here talking about ligence. get away from that. It is time to quit what happens to victims when they In conclusion, in terms of what hap- talking about fear. Let’s talk about have an injury they want redress for. pens in our States, States regulate the Like on so many other things in this conduct of lawyers. They do it all the hope. Let’s talk about the realities of debate, I think the other side of the time. But we also have evidence from what is affecting people out there, aisle is carrying water for the insur- the States about what happens in these what we are trying to do to make their ance companies. Just my opinion, but I kinds of cases. In Pennsylvania, for ex- lives better. Why do we always want to think that is the case. Yet in the case ample, in most counties, as to cases inject fear into people? Let’s talk of medical negligence and what hap- going to trial because of medical mal- about hope. Let’s talk about real peo- pens in the real world, we know that practice claims—those kinds of law- ple and what this bill does. 98,000 deaths a year are from prevent- suits—in most counties in Pennsyl- As shown in this picture, this is able medical errors. Let me say that vania, 90 percent of those cases are won Sarah Posekany of Cedar Falls, IA. Let again. We know there are 98,000 deaths by the defense, won by the insurance me tell you her story. It is incredible. in America a year, according to the In- company. That is the evidence in Penn- She was diagnosed with Crohn’s disease stitute of Medicine, from preventable sylvania. when she was 15 years old. During her medical errors. I know we have others who are ready first year in college, she ran into com- So what this amendment does is deny to speak on this and other amend- plications from the disease and had to patients the attorney of their choice. It ments. But I think we should make it drop classes. Because she was no longer further restricts access to the courts. very clear. On this amendment, this is a full-time student, her parents’ pri- It drives up costs for victims. When we a debate about two parties: victims of vate health insurance company termi- talk about bringing a case and the bar- medical negligence versus insurance nated her coverage. Then the medical riers to doing that, that is not some fu- companies. It is time to choose up bills piled up. Four years later, she ture result of this amendment. Oh, I which side you stand on. Unfortu- found herself $180,000 in debt, and was think this amendment will make that nately, this amendment is very clearly forced to file for bankruptcy. problem a lot worse. But right now—no drafted and intended to help insurance Sarah has undergone seven sur- matter what happens in this debate, no companies, not victims of medical neg- geries—seven. Here is what is dis- matter what happens on the vote on ligence. turbing. Two of those came as a direct this amendment—there are barriers I yield the floor. result of not being able to afford medi- right now for people to bring a lawsuit. I suggest the absence of a quorum. cation. So again, it is an incredible It costs, in many cases, thousands, if I withhold that suggestion. story, but it is a true story. not tens of thousands, to bring a case. The PRESIDING OFFICER. The Sen- So many people have to go through And then to see a case all the way ator from Montana is recognized. this. Our bill says: Look, you can stay through costs a lot more than that. Mr. BAUCUS. Mr. President, for the on your parents’ coverage until you are What are we talking about here? We benefit of all Senators, I want to take age 26, and—guess what—no pre- are talking about allowing someone a moment to review today’s program. existing conditions will apply to you

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00006 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.000 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD 29586 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 December 6, 2009 from here on out. Think about Sarah coverage either because they are refuses to pay for your spouse’s cancer when we are talking about this bill and thrown into personal bankruptcy or be- treatments? Has that ever happened to the hope she needs—and so many like cause of medical costs or job loss anyone here? I doubt it. I sincerely her—that we are going to change this around the country—14,000 a day, every doubt it. system to make her life better. day, 7 days a week. Just do the math. Is there anyone stuck in a job that Second, this is a picture of Tasha For 7 or 8 days, we have been debating pays very little because you can’t af- Hudson of Des Moines, IA. She is a sin- this legislation. You can run the num- ford to change jobs because you have a gle mother, with three kids. She had a bers yourself to determine over that preexisting condition and you know if job which provided health insurance, period of time how many citizens you go to that new job that may pay but she took a new job that paid her across the country have found them- more, you are going to find yourself more, 50 percent more. You would selves in that free fall, that dreaded without the insurance coverage to take think: Isn’t that the American way? fear that a child or a loved one may care of that preexisting condition? No You learn, you get better, you get a end up needing care. It is not as though one here worries about being in that better paying job. The problem is, the you can postpone the decision to some particular predicament. private sector job did not come with later time, as you can about whether Has anyone been driven into bank- health insurance. Despite the higher to take a vacation or to buy that new ruptcy, any Members of Congress, be- pay, she could not afford the coverage. car or maybe to spend more than you cause they had a medical crisis? We Ironically, her higher pay led to cuts thought you would over the holidays now know that 62 percent of all bank- in her Medicaid benefits and the loss of coming up. If you now have a medical ruptcies this year alone are medical childcare services. As a result, Tasha is emergency and you are one of those crisis related, and 70 percent of that 62 now in the process of returning to a 14,000 a day who have lost coverage, percent have health care insurance—70 lower paying job, despite its limited what do you do? So sometimes the percent of that 62 percent. opportunities, for one reason: because sheer magnitude of these numbers can Is anybody here a small business it will provide health insurance for her cause us to lose sight of the individual owner who has had to choose between family. These are real people. These stories, anecdotes that are not exclu- cutting coverage or putting your em- are the people to whom we need to give sive or isolated but commonplace sto- ployees out of work? hope. ries that are happening as we speak Well, the answer to all of these ques- Here is one last one. Eleanor Pierce here on this Sunday, on a rare Sunday tions obviously is a resounding no. lives in Cedar Falls, IA. She lost her session in the Senate because of the None of us have ever had to grapple job when her company was eliminated. importance of this issue. with what 14,000 people do in this coun- She had the option of purchasing So I rise today to share a few stories try every day: losing their coverage, or COBRA, but she couldn’t afford it. So from my own State that I think put a the underinsured who discover all of a she searched for coverage, but because face on these issues and why we are sudden that the coverage they thought of high blood pressure—preexisting here. Let me start by asking some they had doesn’t quite cover the prob- condition—she was denied access. So questions because I think too often lems, or the out-of-pocket expenses you age 62, suffering from high blood pres- when we debate these issues, some- have to pay before getting to insurance sure, she had no choice but to go with- times we are so removed as Members of are so high that you can’t possibly out insurance. this body, from what goes on in the meet them. That goes on every minute That is why we need this bill. Not for daily lives of the people we represent of every day all across our Nation, and fear—let’s quit talking about fear. that we fail to appreciate what is hap- it is why we are here on this Sunday in Let’s talk about hope for the people I pening right outside these doors from December, to try to finally see if we just talked about, the hope that their this very Chamber on a daily and an cannot come to terms and start moving lives will be better, that they will get hourly occasion. The 535 of us who have on a coverage program, a health care the insurance coverage they need, that the privilege of serving in the Con- and health insurance coverage program they will be able to get on with their gress, including Members of the other that makes it possible for all of our fel- lives and not have to go so far in debt body, none of us here are worrying low citizens to be in the same position that they have to go into bankruptcy. about losing our health care. Not a sin- we are. If you are a 62-year-old woman with a gle Member here ever spent a nano- None of us are immune from health serious heart condition such as the one second worrying about whether they care crises. Every one of us here has Eleanor has, high blood pressure, you are going to be dropped from their grappled with that at one time or an- just don’t have a prayer, you are on health care coverage—not one. other. The difference is, we don’t ever your own, and the odds of premature Is there anybody among the 535 of us worry about the ability to pay for it, death are disturbingly high. We can who ever worries about whether we will losing our coverage, having to go and must do better. That is what we be able to afford health care insurance? through what every other citizen does ought to be talking about: hope for the I don’t know of anyone who ever wor- every single day. future, not fear. ries about that, of the 535 who are here. These are real people who go through Mr. President, I yield the floor. Has anyone ever been up late at this. We can get so lost in the weeds on Mr. BAUCUS. Mr. President, I yield night with a child or a loved one, won- this debate. I am not suggesting the de- to the Senator from Connecticut all dering whether they are going to be tails are unimportant—they are impor- the remaining time, and if he wants to able to afford the treatment that child tant—but we are losing sight of the speak for a little longer, I know we can may need, or that loved one? I would whole; that is, for 80 years every single make some accommodations with the go so far as to say I don’t think that Congress, whether it has been con- other side. happens here. God forbid if we are con- trolled by Republicans or Democrats, Mr. DODD. How much time remains? fronted with a child or a loved one who whether a Democrat or Republican has The PRESIDING OFFICER. Eight needs that care. We may worry about been in the White House, has been un- minutes is remaining. that, but we are not going to worry able to even come close to solving this Mr. DODD. I thank my colleagues. about whether the insurance will be problem. Mr. President, some of these numbers there or whether we will have the abil- We are now that close—closer than get thrown around so much that it is ity to pay for it. Not one of us ever we have ever been in our history—to almost dizzying. I wonder how the av- worries about that. coming up with a health care system erage person, even someone who is in- Has anybody ever spent hours being that can begin to take care of that tently listening to these debates, can bounced from voice mail to voice mail basic right every American ought to sort it all out: 47 million who have no to voice mail trying to find out why have—and it is a right—that if you are coverage; 14,000 people every single day the insurance company you pay thou- a citizen of the United States and you in our country who lose health care sands of dollars to every year suddenly get sick, you ought not to be shoved

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00007 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.000 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD December 6, 2009 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 29587 into bankruptcy, lose your job, or have ployees in their twenties and thirties Those dollars will be used to create your family suffer because of your eco- who have never had a physical or a new Federal programs for people who nomic circumstances. The privilege of dental cleaning by a hygienist. One of have never paid, for the most part, into getting good health care ought not to them, age 28, with two children to sup- the Medicare hospitalization fund; for be based on wealth; it ought to be port, was out of work for 12 weeks and people who are not senior citizens and based on the fact that we live in the nearly died from a staph infection he therefore do not, arguably, deserve to United States of America and we are got from an untreated cavity. receive the benefit of the Medicare hos- able to take care of our fellow citizens Kevin has been working hard to try pitalization fund. As a result, seniors when they reach those difficult times to provide for these people, but he has will see their benefits reduced and every one of us will at one point or an- recently lost people who worked for other people will get a new benefit other. him for more than 20 years because through the Federal Government. Iron- There are stories, and I know my col- they got a job that paid less than he ically, the new benefit, this new enti- leagues have them as well. pays them but they can get health in- tlement, will not be adequately funded A young woman in Connecticut, surance coverage. So here is an em- either, but large portions of part of Maria, diagnosed with non-Hodgkins ployee who leaves a job in order to get that funding are going to come from lymphoma, asked her insurance com- a job where he can have health insur- the Medicare trust fund. pany to cover her treatments. The in- ance. The problem here is that the Medi- surance company found out that Maria Again, small business owners who go care trust fund is insolvent. It has $30 had once gone to a doctor for what she through this are all across our country. trillion of outstanding exposure to the thought was a pinched nerve. Even My simple point is this: Anyone who Medicare trust fund, which we don’t though no tests had been done for can- suggests this bill is the end-all obvi- know how we are going to pay for as cer, they denied her claim based on a ously hasn’t been through this process seniors retire over the next 20, 30, 40 preexisting condition. How many have over the last several years. There will years. Thus, there will be a reduction heard these stories? She passed away, be a lot more work that needs to be in the benefits to Medicare, a reduction by the way, from that illness. done in the years to come. But we need to Medicare recipients, a reduction in A young man named Frank disclosed to do what no other Congress has done the Medicare trust fund to the tune of on his insurance application that he before: We need to start. That is why I $1⁄2 trillion in the first 10 years, $1 tril- sometimes got headaches. Some feel so passionately about getting this lion when it is fully implemented, and months after he got his policy, he went bill passed and moving it forward. I ask $2.5 trillion over the next 20 years. in for a routine eye exam. The doctor my colleagues to join us. That type of reduction shouldn’t go saw something he didn’t like and sent I yield the floor. to create new Federal programs. If it is him to a neurologist, who told him The PRESIDING OFFICER. The Sen- going to be done at all, it should go to that he had multiple sclerosis. The in- ator from Wyoming. making the Medicare trust fund more surance company told him he should Mr. ENZI. Mr. President, I yield 5 solvent. Well, that has been essentially have known his occasional headaches minutes to the Senator from New the tenure of some of the proposals were a sign of MS and took away his Hampshire and 10 minutes to the Sen- from the other side of the aisle. We coverage retroactively. Frank’s doctor ator from Texas. have heard a lot of people on the other wrote them a letter saying there was Mr. GREGG. Mr. President, I ask side of the aisle say: All right, we are no way anyone could have known that unanimous consent that during the not going to cut Medicare. We are not an ordinary headache was related to next hour which we control we be al- going to cut Medicare. We are just multiple sclerosis. But the insurance lowed to enter into colloquies on our going to reduce it by $1⁄2 trillion, and left Frank out to dry, sticking him side of the aisle. then we are going to create a new pro- with a $30,000 medical bill he couldn’t The PRESIDING OFFICER. Without gram with it. We are not going to do afford. Frank’s condition got worse. He objection, it is so ordered. this to the seniors. We are not going to had to leave his job and go on public Mr. GREGG. Mr. President, we have take their money and start a new pro- assistance. certainly heard a lot of talk about gram. Kevin Galvin is a small business Medicare over the last few days, and we We have heard that statement in dif- owner in my State. I have met with have actually even voted on a few ferent levels of machinations from the Kevin a number of times, and we have amendments, but they have all had no other side of the aisle quite regularly. talked over the last year or so during force of law, and they have just been I do, however, for the record, want to my Connecticut Prescriptions for statements of purpose. They are called say—because I have immense respect Change listening tour. Kevin owns a sense of the Senate. Every one of these for him, and he has been totally forth- small business, a maintenance com- sense of the Senate has had as its pur- coming on these issues, and very accu- pany. He employs seven people, some pose to try to give political cover to rate—that the chairman of the Finance older, some younger. He can’t afford to Members on the other side relative to Committee has not represented that is insure them. He would like to, but he the issue of the fact that this bill re- what is happening with the Medicare can’t afford it. His younger employees duces Medicare spending by close to $1⁄2 funds. use the emergency room as their reg- trillion in the first 10 years, $1 trillion He has represented on the floor that ular doctor. If one of them has a child when it is fully implemented over a 10- those Medicare funds that are being re- with an ear infection—— year period, and $2.5 trillion over the duced—those reductions in Medicare The PRESIDING OFFICER. The ma- first 20 years, and that those reduc- spending will go to create a new pro- jority time has expired. tions in spending in Medicare are going gram. But a lot of folks on the other Mr. DODD. I ask unanimous consent to translate immediately and unques- side have said they don’t agree with for 1 additional minute, I ask my col- tionably into a reduction in service and that, that is not what they are intend- leagues. coverage for Medicare-recipient senior ing to do. Some of the sense of the Sen- Mr. BAUCUS. I ask unanimous con- citizens. The money from that—the $1⁄2 ate have clearly had that implication sent for 1 additional minute. trillion in the first 10 years, the $1 tril- in their passage. The PRESIDING OFFICER. Is there lion in the 10 years that we are doing So what does that amendment do objection? Without objection, it is so the implementation, and the $2.5 tril- that I am going to be offering? It ordered. lion over the next 20 years—is being shoots real bullets. No longer is it a po- Mr. DODD. I thank my colleagues. taken out of the senior citizen program litical statement, a sense of the Sen- Kevin has three employees in their called Medicare, and it is going to be ate, a thought process, a virtual event twenties and thirties. This is Kevin moved over into a brandnew entitle- saying you want to protect the Medi- here, by the way, running this mainte- ment program and into the expansion care trust funds. This amendment is nance shop in Hartford, CT. He has em- of Medicaid. real. It protects the Medicare trust

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00008 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.000 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD 29588 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 December 6, 2009 fund. It is real hard language, which cally do it in a ‘‘my way or the high- Then the President talked about defi- says that if you vote for this amend- way’’ sort of way. They are going to cits. There has been a lot about this ment, you are voting not to move own it 1,000 percent. bill being so-called deficit neutral. If Medicare trust fund dollars out of the I think it is perhaps very timely to you cut enough benefits for seniors and Medicare trust fund, away from Medi- recall some of the President’s promises raise taxes enough on everybody, you care recipients, over to start a new pro- because, frankly, if the President fol- can produce a deficit-neutral bill. This gram; that any new program started in lows the promises he made to the bill will spend $2.5 trillion over the this bill must be paid for by something American people, he will not be able to next 10 years with full implementation. other than Medicare. sign this bill or anything similar to it. President Obama’s chief actuary at the The PRESIDING OFFICER. The time First of all, talking about trans- Center for Medicare and Medicaid Serv- of the Senator has expired. parency, he said we are going to have ices called the ability to sign a bill Mr. GREGG. Mr. President, I ask negotiations around a big table on C– such as this, without raising the def- unanimous consent for an additional SPAN so people can see who is making icit, ‘‘unrealistic and doubtful.’’ David minute. arguments on behalf of their constitu- Broder, the dean of the Washington The PRESIDING OFFICER. Without ents and who is making arguments on press corps, said: objection, it is so ordered. behalf of the drug companies or the in- While the CBO said that both the House- Mr. GREGG. So this shoots with real surance companies. passed bill and the one Reid has drafted meet bullets. It says, essentially, if you vote The reality is, this bill was merged Obama’s test for being budget neutral, every for this amendment, you are voting to between the Finance bill and the HELP expert I have talked to says that the public keep the Medicare dollars with Medi- Committee bill—merged behind closed has it right. These bills, as they stand, are care, not to take those dollars that are doors, with only three Senators present budget busters. being cut out of senior citizen pro- and presumably their staffs. Then there is the promise of choice. grams and move them to create a Another promise the President made The President said the American peo- brandnew set of programs at the Fed- was this: ple ought to have choice when it comes eral level. The plan I am announcing tonight— to health care, their choice of their This will be the vote that I believe This was during the joint session of doctors and health plans. The fact is, determines whether we raid the Medi- Congress, I believe, we attended. this bill would consign 60 million care funds for the purpose of creating a —will slow the growth of health care costs Americans to a health care ‘‘gulag’’ new Federal program or whether we for our families, our businesses, and our gov- called Medicaid. I say that because, al- maintain the integrity of the Medicare ernment. though Medicaid provides what some system. This is a serious amendment, This is a pledge the President made people would say is coverage, it cer- and it is a real amendment. There is no to the American people. That was his tainly doesn’t provide access. In the sense of the Senate about this. This is stated goal for this bill. We see some- metroplex of Texas, the Dallas-Fort enforceable language. Anybody voting thing very different in this 2,074-page Worth area, 38 percent of doctors will against this amendment is formally bill, a different reality. We see that not see a new Medicaid patient because voting, unquestionably and unequivo- premiums for those in the individual of Medicaid’s low rates. cally, to take $1⁄2 trillion of Medicare market—families—will be increased by Then there is this claim that it will funds, in the first 10 years, and move 10 percent by 2016, according to the not raise taxes. Well, the Joint Com- them over to fund a new program; to CBO. You don’t have to take my word mittee on Taxation indicates that 38 take $1 trillion from the Medicare for it. It is not some insurance com- percent of the people earning less than funds, when fully implemented, and pany talking. This is the Congressional $200,000 a year will see a tax increase move them to fund a new program; to Budget Office. Businesses that fail to under this bill. In other words, this is take $2.5 trillion, over the next 20 comply with the job-killing mandates another promise the President made years, of Medicare benefits that should in the bill will face additional taxes of that will be violated if this bill is be going to seniors—because they are $28 billion—yes, during a recession passed into law because taxes will go Medicare funds and should be bene- when unemployment is at 10 percent. up for 38 percent of the people. As a fiting the solvency of the Medicare That is according to the CBO. They matter of fact, out of that 38 percent, funds—and moves them to create new also say taxpayers will see Federal out- 24 percent of them will experience a programs. Anybody who votes against lays for health care coverage increase tax increase, even after taking into ac- this amendment is accomplishing that; by $160 billion over 10 years. count the premium tax credit that is they are cutting Medicare for the pur- This is from the dean of Harvard being paid under this bill. Another pose of creating a new program. If you Medical School. He said: promise made, another promise that vote for the amendment, to the extent In discussions with dozens of health care cannot be kept if this bill becomes law. Medicare savings occur, they would not leaders and economists, I find near una- Then there is this one. The President be used to fund new programs. It is a nimity of opinion that, whatever its shape, said: real, enforceable amendment. the final legislation that will emerge from So don’t pay attention to those scary sto- The PRESIDING OFFICER (Mr. Congress will markedly accelerate national ries about how your benefits will be cut. KYL). The Senator from Texas is recog- health care spending. That will never happen on my watch. I will nized. So much for bending the proverbial protect Medicare. Mr. CORNYN. Mr. President, the cost curve. Then there is this prom- Dr. Elmendorf, the head of the CBO, President of the United States is re- ise—another solemn promise. The said Medicare’s managed care plans portedly traveling to Capitol Hill to President said: would see reduced benefits—I am sorry, meet with Senate Democrats in a few I have made a solemn pledge that I will that is according to CBS News. The moments. Unfortunately, Republicans sign a universal health care bill into law by chief actuary said: are not invited, which follows an estab- the end of my first term as President that Providers might end their participation in lished pattern, where notwithstanding will cover every American— the program, possibly jeopardizing access to the public statements that Republican This bill obviously does not. care for beneficiaries. ideas are welcome, they have been re- —and cut the cost of a typical family’s pre- Dr. Elmendorf said you would see ad- jected at every stage of the develop- mium by up to $2,500 a year. ditional benefits that seniors get under ment of this 2,074-page bill. There were As I mentioned, under the CBO score, Medicare Advantage cut by about half. party line votes in the HELP Com- the average premium for families in Another promise, another promise bro- mittee and the Finance Committee and the individual market will go up by ken if this bill becomes law. virtually every Republican idea was re- $2,100, not go down by $2,500—another There is this, which pertains to the jected. The President is coming to promise made that will not be kept if Ensign amendment pending on the rally our Democratic friends to basi- this bill is passed into law. floor. The President said:

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00009 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.000 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD December 6, 2009 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 29589 I want to work with the American Medical off the floor in the office of the major- Democrats decided to respond to the Association so we can scale back the exces- ity leader. Republicans saying: Hey, you are cut- sive defensive medicine that reinforces our There seems to have been some ting Medicare for our seniors. ‘‘Demo- current system, and shift to a system where blowback on that, and somebody said crats decided to respond . . . with a we are providing better care simply—rather than simply more treatment. So this is going maybe that wasn’t appropriate to talk meaningless amendment.’’ The New to be a priority for me. about deals that were cut. This morn- York Times editorial today, ‘‘a mean- If this is a priority for the President ing, on the front page of the Wash- ingless amendment.’’ We knew it was of the United States, it is apparently ington Post, it says: meaningless, and we know they are not a priority of those who have au- Deals Cut with Health Groups May Be at cutting Medicare from the seniors who Peril. thored this bill because all that is con- depend on it—Medicare Advantage tained in the bill is a nonbinding sense Perhaps the Washington Post is im- from hospitals, from nursing homes, of the Senate. We have heard that med- pugning the reputation of someone or from hospice, from home health care. ical liability reform laws, such as those staffers or others. They have certainly This is robbing the people who need that have been passed and implemented impugned mine from time to time. But this care, deserve the care. in Texas—if passed nationwide, this the fact is, this is a news story. If you said maybe we should take a bill could bend the cost curve by $54 Again, I go back, very briefly, be- look at Medicare, then do it, Mr. Presi- billion over 10 years. Yet all we get is cause we have a lot to talk about, my dent, to save Medicare, to save Medi- a watered-down sense of the Senate colleagues and I. The fact is, there care that we know is going broke. I see the Senator from New Hamp- that has no binding effect at all. have been deals cut, just like is re- If the President was sincere about ported in the Washington Post this shire is here. He has been an expert on making those promises to the Amer- morning, as has been reported all over this topic of the budget and ways we ican people, then this Congress ought America about the deals cut with var- can save Medicare. I say to my friend to be sincere about helping him keep ious interest groups that don’t nec- from New Hampshire, is this not true that promise. The fact is, time after essarily represent the people they that Democrats have proposed a mean- time, this bill breaks the promises that claim to represent. I know the Amer- ingless amendment but they are cut- President Obama made to the Amer- ican Medical Association does not rep- ting the guts out of the Medicare Pro- ican people. It is not too late to change resent the majority of physicians and gram on which the seniors of this coun- that. I hope that, today, when he meets caregivers. In the State of Arizona, I try are dependent? with Senate Democrats behind closed know too many of them. I also know Mr. GREGG. As usual, the Senator doors, to the exclusion of Republicans, they have a very large lobbying pres- from Wyoming is absolutely true. The there will be some discussion of how ence in our Nation’s Capitol, as do the sense-of-the-Senate amendments we can we help you keep those promises to other interested groups that have ‘‘cut have had from the other side of the the American people because this bill deals’’ that may be at peril now, ac- aisle on Medicare are political amend- does not. cording to the Washington Post. ments meant to make a political state- The PRESIDING OFFICER. The Sen- With that, I will mention, again, that ment, but they have no substantive ef- ator from Wyoming is recognized. the doctor is in. Would the doctor care fect. That is why I brought forward my Mr. ENZI. Mr. President, I yield such to give us some enlightened informa- amendment which hopefully will be time as they need to several Senators tion, before we give our various opin- voted on in the next couple of days or for the purpose of a colloquy. ions on this issue? so which says specifically what the Mr. MCCAIN. Mr. President, I suggest Mr. BARRASSO. I agree with the Senator from Wyoming has asked for. the absence of a quorum. Senator from Arizona. I looked at an- To the extent there are reductions in The PRESIDING OFFICER. The other one of his favorite newspapers, Medicare spending—and there may clerk will call the roll. the New York Times, today because need to be some—that those reductions The assistant legislative clerk pro- we—— are reserved for the seniors for the ben- ceeded to call the roll. Mr. MCCAIN. My absolute favorite. efit of their program and to make Mr. GREGG. Mr. President, I ask Mr. BARRASSO. On this floor have Medicare more solvent and no new pro- unanimous consent that the order for said the Democratic proposal is cutting grams be created on the backs of sen- the quorum call be rescinded. the Medicare the seniors of this coun- iors by cutting Medicare and moving The PRESIDING OFFICER. Without try depend on for their health care. We the money from Medicare over to new objection, it is so ordered. pointed out that they have taken $120 programs. The Senator from Arizona is recog- billion away from Medicare Advantage. My amendment is not a sense of the nized. Mr. President, 11 million seniors use Senate. My amendment is a real Mr. MCCAIN. Mr. President, I am Medicare Advantage. One out of four amendment. It is the one chance people pleased to see my friends on the floor seniors is on Medicare. The reason they are going to have to vote for protecting again today—very intelligent people, signed up for Medicare Advantage is Medicare and not creating new pro- such as the Senator from New Hamp- because there is an advantage for the grams with Medicare money. And that shire and my friend, Senator ENZI, who seniors—preventive care, coordinated is what it is going to be. is an expert on this issue, and the rest care, things we know are important. Mr. MCCAIN. To be clear, the amend- of us who know that a fight not joined Yesterday on this floor, the Demo- ment of the Senator from New Hamp- is a fight not enjoyed. I look forward to crats voted to cut away from home shire is exactly the same as the White another spirited discussion with my health care. This is a lifeline for home- House sense-of-the-Senate amendment colleagues. bound patients. It helps keep them out and the Bennet amendment, only it has Maybe if I could, to start with, I will of the hospital and out of the nursing the actual force of law. take up a point about the debate and homes. Yet in spite of all the letters we Mr. GREGG. Absolutely. It is not ex- discussion we had yesterday on the have read from patients, as well as actly the same in the sense that it is floor with the Senator from Montana, home health care communities in all of real. Theirs is not real. Mine is real. It the chairman of the committee, where our States, they have cut back. says you are going to keep the Medi- he asked me why did I think that cer- Yet the majority whip came to the care money to benefit Medicare, and tain groups supported this legislation floor at the opening of the session you are not going to use the Medicare pending before the Senate. I said I today and said: Oh, we have handled all money for the purpose of creating new didn’t know what kinds of deals had of that. He said: We have handled all of programs which have nothing to do been cut. I referred to the deal made that with a wonderful resolution of the with Medicare for people who are not with PhRMA and others. I didn’t know Senate by Senator MICHAEL BENNET. on Medicare. exactly why because I am not taken The New York Times today, about Mr. ENSIGN. I say to the Senator into the discussions and negotiations that resolution, said: from Arizona, another place in this bill

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00010 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.000 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD 29590 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 December 6, 2009 where they have a sense of the Senate tion project for medical malpractice Mrs. HUTCHISON. If the Senator will that is not real is medical liability re- reform? yield, in addition to that, the House form. Back in September, when The Mrs. HUTCHISON. Exactly. And let said: We have medical malpractice re- President addressed the Nation, he said me tell you what it has done in Texas form. They put it in their bill. You defensive medicine caused by the med- and something we could do, and I think know what it says? There will be a ical liability crisis may be contrib- we would have bipartisan, 100 percent State grant program and States can uting to unnecessary costs; there are support in this body because that apply if they can show that they have unnecessary tests. would be reform that would help health made a meaningful effort at curbing Let me show you the amount of care. frivolous lawsuits. But the only two money they are going to save with Since medical malpractice and tort reasons a State would not be eligible their medical liability reform sense of reform has been passed in Texas, over are if lawyer fees are capped or if dam- the Senate in this bill. That is it. That 7,000 new physicians have flooded into ages are capped. Lawyer fees capped, is how much their sense of the Senate our State—a 7,000 increase. The reason? damages capped—that is off the table. on medical liability reform is going to Tort reform. Since passed just 5, 6 So I am thinking to myself—maybe the save—zero. years ago, physicians in Texas have Senator from Nevada could tell me, if In contrast, the Medical liability re- saved $574 million in liability pre- you don’t curb lawyer fees and you form several of us have offered is real miums, and their liability rates have don’t curb the caps, what meaningful medical liability reform. Several of us been cut an average of 27.6 percent, al- reform do you think we could get in have been working on that. The sav- most a 30-percent cut in premiums. medical malpractice? ings from a real medical liability re- What has this done? Today in rural Mr. ENSIGN. No question, those are form: $100 billion. counties, the number of obstetricians the two most important types of re- We at least have said we have an has increased by 27 percent. Twelve forms for medical liability laws that amendment we are going to vote on counties did not have one obstetrician have been placed in the States—my later today. Let’s at least do some- before this was passed, and now they State of Nevada, Texas, California and thing to get the ball rolling on medical do; 24 counties had no emergency room other States. The caps are what have liability reform with the amendment physicians, and now they do; and 58 shown a reduction in the medical li- we are offering today. The President counties, in addition to that, have ability premiums for doctors. They are suggested getting the ball rolling on added one more. what have shown a reduction in the medical liability reform. Rural counties are the ones that have cost of our health care system. Back in 1995, Senator Ted Kennedy suffered the most, and every State in Mr. President, let me quote because offered an amendment that would at this Union has rural counties—every the other side is talking about these least limit attorney’s fees. These are one. They are the ones who are hurt contingency fees; that they need these contingencies fees. Twenty-one Demo- the most. Yet the Medicare cuts will contingency fees to take on these law- crats who were here back in 1995 who take $135 billion out of rural hospitals’ suits, especially for those who are very are here now voted for that limit. They ability to serve Medicare patients. poor. They say it is the only way for are: AKAKA, BAUCUS, BINGAMAN, BOXER, There is no medical malpractice reform this to happen. BYRD, CONRAD, DODD, DORGAN, FEIN- unless, of course, in a huge bipartisan I quote: GOLD, FEINSTEIN, HARKIN, INOUYE, effort and gesture we can adopt the En- Since 1960, the effective hourly rates of KERRY, KOHL, LAUTENBERG, LEAHY, sign amendment which we are offering tort lawyers— LEVIN, MIKULSKI, MURRAY, REID, and to try to make this a bipartisan bill These are the personal injury attor- SPECTER. All 21 of these Senators voted that can work. neys— for caps on attorney’s fees. That would We have seen from Senator ENSIGN’s have increased 1,000 percent to 1,400 percent at least do something. That would help charts that Democrats have supported (in inflation-adjusted dollars). get the ball rolling on medical liability limits on lawyer fees so that we would While the overall risk of nonrecovery has reform. be able to cut back on the frivolous remained essentially constant though it has But the same thing they have done lawsuits that have been hampering our decreased materially for such high end tort with Medicare, saying they are going ability to cut the costs in Medicare. categories as products liability and medical to keep Medicare savings in Medicare, I appreciate so much that Senator malpractice. they have not done. It is not real. Sen- ENSIGN is offering this amendment be- The lawyers, basically, have created ator GREGG has a real amendment to cause Texas can show us that this will all these laws that make it easier for fix that. I have a real amendment to fix work. It would be meaningful reform. them to sue and their contingency the medical liability reform that hope- It would cut the costs and make health rates have gone up 1,000 to 1,400 percent fully will be voted on later as well. But care more available and, most impor- since 1960, and yet there is no more in- at least let’s go for a little bit of com- tant, it will give patients the oppor- creased risk and even reduced risk of promise right now. tunity to have doctors in their rural nonrecovery in medical malpractice Mrs. HUTCHISON. Will the Senator communities who will not practice cases. It is easier to sue nowadays. from Nevada yield? today because their liability premiums This comes down to, are you on the pa- Mr. ENSIGN. I will be happy to yield. are so high they cannot afford to stay tients’ side or the trial lawyers’ side? Mrs. HUTCHISON. Talk about liabil- in medicine and give this care to those Which side are you on? We are on the ity, I have real statistics. I hear the rural patients. That is what we need. side of the patients; the other side other side say: Oh, we are going to Mr. MCCAIN. May I say in the im- seems to be on the side of the trial bar. lower the cost; that is what health care mortal words of Howard Dean, the Mr. MCCAIN. The Senator from Ala- reform is about, lowering the cost of former chairman of the Democratic bama. health care so more people will have National Committee—he put it simply: Mr. SESSIONS. I thank the Senator access to affordable options. Yet the The reason why tort reform is not in the from Arizona for driving home this main one that is clearly available is bill— point. The reason that malpractice liti- medical malpractice reform, tort re- Talking about this bill— gation reform is not in the bill is sim- form. The reason why tort reform is not in the ple, plain, and known to every Member I know the Senator from Nevada has bill is because the people who wrote it did of this body because it is opposed by an amendment, and I am a cosponsor. not want to take on the trial lawyers in ad- the plaintiff trial lawyers who are big Let me give some statistics about how dition to everybody else they were taking supporters of Democratic Members of we could save money. on, and that is the plain and simple truth. the body and the President. That is Mr. MCCAIN. May I ask the Senator Now, that’s the truth. true. from Texas, is it not true that it is the I totally agree with Howard Dean. I Let me ask Dr. BARRASSO, can the State of Texas that is the demonstra- could not agree with him more. Senator think of any other thing that

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I And I am getting tired of going down board they order a number of tests, ex- think about the kinds of things Sen- memory lane here, but that was going pensive tests—call it defensive medi- ator MCCAIN ran on during his Presi- to be the ‘‘change.’’ That was going to cine—tests that do not necessarily help dential election campaign, and others be the change in Washington. We are a patient get better, get well, but just of us have looked at, as has Senator going to change the climate. We are all to make sure they get covered in case GREGG, so that people in this country going to sit down together, Repub- they are sued. It is not unusual, when have choice; that we create a market licans and Democrats. Well, I think on you look at the numbers, that we are system that allows people to have this Sunday afternoon, we are all avail- talking $100 billion a year in tests that choice. But they cannot do that be- able, are we not, I would ask the Sen- are done that do not necessarily help cause the unions don’t want them to do ator from Kentucky? somebody get better, but they are so. The unions don’t allow them to cap Mr. MCCONNELL. I would say to my doing it because of the legal atmos- the exclusion, which many of us have friend from Arizona, normally we phere in this country. talked about. The unions keep them would be watching the Redskins game Here we are on the Senate floor on a from doing appropriate health care re- today, but we are here and ready to sit Sunday afternoon. The President is form, and so instead, what happens, in down with the President and ready to less than 100 yards away, a former order to make this work? Again, they discuss with the American people this Member of this body. He ought to be are so twisted up. Remember that issue. You know, it was said at the begin- involving all Senators. He is meeting Peter Orszag, the major guru within ning of the debate, if they wanted to behind closed doors, possibly cutting this administration regarding health come up with a bill that would pass deals, trying to come to arrangements, care, has said the thing that will bend with 80 votes, the way to do that is not twisting arms, asking people to march, the cost curve down would be these ex- to craft a bill that no Republican can follow his marching orders right off a clusions. I am so glad Senator GREGG, support and end up in the position they cliff that I think is going to be coming who has the integrity and the long- are in now, trying to get every single for health care in America. I think he standing knowledge to deal with this, Democrat in line so they can pass this ought to be involving all Americans. is offering an amendment. bill, even though they know the Amer- We are talking to the Americans in Yesterday I was challenged on this ican people are overwhelmingly op- this country. We are not hiding behind by Senators on the other side of the posed to it. All the surveys indicate the closed doors. People who aren’t part of aisle, but there is no doubt this bill American people do not want us to pass those discussions are completely cut throws seniors under the bus. We have this bill. They would like for us to an insolvent program that money is out. stop, start over, and get it right, with I know my colleague from Tennessee being taken from to create a whole new some of the suggestions that have been has been outstanding and outspoken on entitlement it is leveraging. If that is made here on the floor today and other these very issues, but we are here, and not throwing seniors under the bus, I days during this debate. we want to visit with people because don’t know what is. So we have a pro- Mr. MCCAIN. And we could do that, we do have solutions that work; that gram that is throwing seniors under perhaps in the most effective fashion, will not increase the cost of care, the bus because the unions cannot be if we sat down with the President and which is what we are seeing now; that offended, the trial lawyers cannot be made some of the very points he made are not going to cut Medicare, which is offended, so many other groups—AARP in his State of the Union Message. what the Democrats are proposing; cannot be offended—and then we also I want to turn to the Senator from that are not going to increase taxes, lock 15 of the 31 million Americans who South Dakota, but I want to mention which the Democrats are proposing; are receiving health care into a pro- something first on this issue of tort re- and they are not going to drive up the gram none of us would be a part of— form I have never quite gotten over. premiums. Medicaid. And they do that because of One of the most famous cases of the The whole idea behind this was to get their unwillingness to address the free 1970s, and I think it spilled over into the costs under control. Senator EN- market issues that would make health the 1980s, was agent orange, the defo- SIGN’s amendment does that by taking care work in this country: medical liant that was used during the Vietnam a look at the lawsuit abuse that we malpractice issues, addressing defen- war and which caused so many physical look at in this country. But I want to sive medicine, capping exclusions, and problems for our Vietnam veterans who turn to my colleague from Tennessee, those kinds of things we Republicans were exposed to it. It was a big class who I know has some more points he have put forth from day one. action suit the trial lawyers won. The wants to make. So I think the Senator from Arizona trial lawyers got paid off first, and Mr. CORKER. I know all of us benefit is doing an outstanding job pointing Vietnam veterans died before the from the Senator’s background as a out the conflicts of interest that exist money was distributed to them. I will physician and knowledge in the indus- in this bill. We have a group on the never get over that. try. I also thank the Senator from Ari- other side of the aisle that won’t ad- Mr. THUNE. I think the reason we zona for spending a lifetime focusing dress health care in the appropriate are here today is that the Ensign and on how special interests affect this way, and I believe are in another room Gregg amendments strike at the very body. twisted up in knots with themselves crux and the very core and the very I was thinking about this meeting trying to figure out a way to get out of heart of what this is all about. The taking place here in the Capitol not far this box they have put themselves into, Democratic majority was unwilling to from us from 2 to 3 p.m. with the Presi- and a President who is basically giving take on the trial lawyers, unwilling to dent and 60 of our colleagues on the them a pep talk to keep them from get- do things that actually bend the cost left, and I have this image of them ting out of the box. curve down, such as capping contin- being twisted up like pretzels because I thank the Senator so much. gency fees, and so now we are faced of the fact there are so many interest Mr. MCCAIN. Our Republican leader with voting on the Ensign amendment, groups they have to sort of kowtow to. is here on the floor of the Senate, and which would do that, but we are also I have this image of a bunch of them up he can speak for himself, but I am sure voting on the Gregg amendment be- in a room with a yoga instructor, kind he would appreciate the opportunity if cause they weren’t willing to put ac- of loosening up, because they are so the President would come and sit down tual measures in this bill that would

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00012 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.000 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD 29592 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 December 6, 2009 bend the cost curve down. What they pitals, all those that receive cuts in happened every time previously when Con- have had to resort to is cutting Medi- this bill—and actually try to sub- gress imposed so-called large-scale, cost-sav- care to pay for it. A $2.5 trillion expan- stitute something in there that would ing measures. sion of the Federal Government has to get costs under control, and would—ac- Well, this is the granddaddy of large- be financed somehow, because there cording to the CBO—drive the cost scale cost cuts—$500 billion, or $1⁄2 tril- aren’t any real cost-saving measures in curve down; would do something about lion—taken out of the hide of the hos- here. this year over year double the rate of pitals that are treating low-income pa- I point out to my colleagues that in inflation that the average American tients and seniors. spite of all that, this is where we are. family is seeing. I ask the Senator from Nevada if he The Congressional Budget Office says This is what the CBO said would hap- is experiencing that same thing, and if that even with the all of the Medicare pen to the average American family of he feels that hospitals all over our cuts and all the tax increases that are four if this bill passes. Today they are country are going to be hurt by this in here, we actually still increase paying $13,000 a year—a family of bill? spending in this country on health four—and in the year 2016, they will be Mr. ENSIGN. Mr. President, I thank care. The cost curve goes up. The blue paying $20,000 a year. Tell me, how is the Senator from Texas for her com- line on this chart represents the exist- that reform? How can anybody go to an ments, and I note that even the Con- ing cost curve if nothing is done. If we average American family with a gressional Budget Office has said when did nothing today, that is what would straight face and say they are reform- you cut, for instance, reimbursement happen. That is the blue line. The red ing health care when all they are doing rates, those are going to come out of line represents what happens under is locking in permanently year-over- somebody’s hide. And basically, the this bill. We actually raise the cost year increases that are double the rate hide it is going to come out of is the curve even more. Costs for health care of inflation, and in some cases even seniors. in this country under this legislation going up beyond that if you have to As the Senator from Tennessee said, go up $160 billion. buy your insurance in the individual we are throwing seniors under the bus. How does that affect the individual market? When you cut $465 billion out of Medi- family? I want to show you exactly I am glad the Senator from Nevada care, it is going to come out of services what this means in terms that I think has offered this amendment. I am anx- for seniors—if these cuts are real. And most Americans can understand. This ious to see how the other side votes on in this bill they are real. That is why is the example of a family of four who the amendment the Senator from New the Gregg amendment is going to be so today is paying $13,000, a little over Hampshire has offered which would important. $13,000 for their health insurance. guarantee these Medicare savings I know the Senator from Kansas Under this bill, their life doesn’t get would go back into Medicare and not wants to jump in, so we welcome you any better. In the year 2016, they are be used to pay for a new government to the conversation. going to be paying over $20,000 a year entitlement program at a cost of $2.5 Mr. BROWNBACK. I appreciate that. in health insurance. So what happens trillion to the American taxpayer. I also note the Ensign amendment, in- is they have locked in the status quo. Mr. MCCAIN. I will recognize the stead of cutting, creates. And that status quo is year over year Senator from Texas, who will be pre- A Robert Woods study in 2006 said increases, double the rate of inflation, siding next, and wish to add one more caps on things such as this hold down all because they were unwilling to put comment. awards in cases 20 to 30 percent and in- measures in this bill that actually do Mrs. HUTCHISON. I so appreciate the creases the supply of physicians, which control costs. opportunity to talk about these dif- is something else we need. If we did something along the lines of ferent areas of cuts and then the in- I wish to give a better live example the Ensign amendment, that actually crease in spending overall, because ev- that we have in my State of Kansas. In would get these contingency fees under eryone in America today is concerned the early 1980s, mid-1980s the piston en- control. We all have seen the statistics. about the spending and the debt and gine industry of aircraft was just about The CBO has said that would bend the the ceiling we are about to reach. dead. It had been sued—the aircraft in- cost curve down. I wanted to bring up one more point dustry, general aviation had been sued We have all talked to physicians in on hospitals, because this affects every so much they were stopping making our own States. I talked last week to a State in America. In Texas, 29 percent piston engine aircraft. Congress, fi- physician from my State who, unsolic- of our hospitals are in rural areas. The nally, because the industry was dead, ited, said that 50 percent of the tests he cuts in this bill will especially affect said we are going to put a 17-year stat- does are to avoid being sued. Fifty per- hospitals in rural areas. In fact, out of ute of limitations on it so after 17 cent of the tests he conducts are due to the $135 billion in Medicare cuts to hos- years you cannot sue the manufacturer defensive medicine. That drives the pitals, $20 billion is cuts in Medicare anymore after that period of time. cost of health care up for everybody. payments for treating low-income sen- It brought the industry back. They That is why the Ensign amendment is iors and another $23 billion in Medicaid are now being made. There is a new so important. payments to hospitals for treating low- plant in Independence, KS. There is an- Unfortunately, why we have to vote income patients. other one that is making this aircraft on the Gregg amendment is because I want to read an excerpt of a letter because there was a limitation put, a the Gregg amendment forces the Demo- I received this week from the Texas Or- reasonable limitation on manufac- crats to put their money where their ganization of Rural and Community turing reform. mouth is and to see if they mean what Hospitals, which represents 150 rural If we do this, this will create—this they say—that they want all these sav- hospitals in the State. They write: will help our medical industry, it will ings in Medicare to go into Medicare. We also fear the Medicare cuts as proposed hold down costs, it will increase the We all know that is not true. To pay could disproportionately hurt rural hos- number of physicians. These sorts of for a $2.5 trillion expansion of the Fed- pitals, which are the health care safety net changes have worked. There is no rea- eral Government and create an entirely for more than 2 million rural Texans. Be- son at all not to do this in this bill. new entitlement, you have to take the cause of lower financial margins and higher Mr. ENSIGN. I thank the Senator cuts from Medicare and put them into percentage of Medicare patients, rural hos- from Kansas for his excellent remarks. this new entitlement program. pitals will be impacted more than urban hos- I know the Senator from Florida, the So we are voting on a couple of pitals by any reductions in reimbursement. newest Member, one of the newest These proposed Medicare cuts could have a amendments today that will ensure devastating effect on many of the hospitals, Members of the body, would like to seniors in this country are not going to which could lead to curtailing of certain join in. be faced with cuts to their benefits— services. And, the closure of some of these Mr. LEMIEUX. I thank the Senator home health care, nursing homes, hos- Texas hospitals is a real possibility. It has from Nevada.

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00013 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.000 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD December 6, 2009 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 29593 I don’t know that there is a State 170 million Americans who have health tendency to reduce health care costs, that is going to be more impacted by insurance now. For some, it raises it. that he was doing that by actually at- cuts in health care for seniors than my For me, a new Member to this body, tacking another problem we have been State of Florida, with 3 million Florid- it does not make any sense. But what talking about; that is, these runaway ians on Medicare, almost 1 million on does make sense is what my esteemed lawsuits or these junk lawsuits that Medicare Advantage. I think it is colleague from New Hampshire has have been talked about. worth repeating what these cuts are done with this amendment. If you are As a person who used to practice law, going to mean: $137.5 billion from hos- for health care for seniors and you do as I was listening to the Senator, it oc- pitals that treat seniors. I talked to not want it to be cut and if you are curred to me that maybe I should take the director of a hospital district down true to your word that we have to put the microphone and defend the trial where I am from, down in south Flor- the savings back into Medicare, then lawyers. So I wish to make sure I have ida. He said these cuts will be dev- this bill, which says as its purpose ‘‘to the math right. astating: $120 billion from Medicare prevent Medicare from being raided for Under the amendment of my col- Advantage, $14.6 billion from nursing new entitlements and to use Medicare league, there would be a cap on the homes that treat seniors, $42 billion savings to save Medicare’’—I cannot amount of attorney’s fees these law- from health care for seniors—from imagine that anyone could vote yers could get, depending upon how home health care, and $7.7 billion from against that amendment, because if much money they recovered for their hospice care. you vote against that amendment, you plaintiff client; is that correct? Yesterday, our friends on the other are voting against senior health care. Mr. ENSIGN. That is correct. side were trying to convince us and the I ask my colleague from New Hamp- Mr. KYL. First of all, you would get American people that there are not shire, who has so much experience on one-third of all the money you col- going to be any cuts to benefits. It is these budget issues, if this amendment lected up to $150,000. That is $50,000. not going to affect health care for sen- is not agreed to, what is going to hap- Then you would get one-fourth of ev- iors because they are going to pay less, pen to the Medicare program? erything beyond that; is that correct? but that will just get rid of the waste Mr. GREGG. To begin with, it is Mr. ENSIGN. My colleague is correct. and the fraud and the abuse. going to be reduced by $460 billion in Mr. KYL. Is my colleague aware that Everyone is against waste fraud and the first 10 years. In the second 10 the average malpractice award in this abuse. We have a measure on this side years, it will be reduced by $1 trillion. country today is $4.3 million? Does of the aisle that actually, I think, In the full 20-year time, it will be re- that sound about right? would do something about it. We have duced by $3 trillion. All those funds, all Mr. ENSIGN. It depends on the State, gone through the Reid bill to find all those reductions, will go to create a but that sounds about right. the provisions. My staff and I have new entitlement for people who are not Mr. KYL. In fact, over half of all the been going through it, line by line, to seniors and who probably have not paid awards are over $1 million. As a poor find all the provisions that go after into the HI trust fund, not having paid trial lawyer, for every one of these waste, fraud, and abuse—and there are into the Medicare trust fund, which is cases—we are not talking about cases some, to their credit. But the Congres- an insurance program, in part. per year and this is per case, you can sional Budget Office has said, in their As a practical matter, it will take try 20, 30, 40, 50 cases a year—so for report that came out on November 18, scarce resources out of the Medicare each case, if the average award is $4.3 the provisions that go toward waste, trust fund, which should be used to million, I am only going to keep $1.1 fraud, and abuse would cut $1.5 billion make the Medicare trust fund more million. Is that fair; that the trial law- and create that efficiency. But the cuts solvent, and move them over to expand yer should only get $1.1 million for are $464 billion. So if they are going to the Government in another place. every one of these cases? Of course, the save $1.5 billion and there is going to It will mean that we as a government clients I am recovering the money for be $464 billion in cuts, where are the have basically used up some of the re- don’t get that money. That money goes rest of the cuts going to come from? sources which we might want to use to into my pocket. It is, as my friend, the Senator from make Medicare more solvent because it Mr. ENSIGN. Remember, if I would Tennessee, said, seniors are going to has $35 trillion of unfunded liability ask a practicing attorney, they also get thrown under the bus. But you are out there, and we will use up those re- don’t just get that percentage, they not going to be able to cut $464 billion, sources to create a new Federal pro- also get court costs and various other only get $1.5 billion in savings, and not gram which will not help us address research they have to do. It is not that cut benefits. So seniors who want to go this outyear insolvency of Medicare. the person who was injured gets three- to the hospital are going to have their It doubles the problem. First, it does quarters; they actually get less than benefits cut; seniors who have home not address the Medicare problems in the three-quarters that even this health care, their benefits are going to the future and, second, it creates a amendment would limit them to. get cut and all the way down the line. brandnew entitlement which will have Mr. KYL. Exactly so. Under the Everyone needs to understand that at to be supported forever by Medicare amendment of my colleague, at least its base, this is a bill that hurts sen- funds, it appears. the plaintiff, on whose behalf the law- iors. Mr. ENSIGN. I see the Republican suit was brought, would get a fair Perhaps no State is going to be im- whip is on the floor and wants to join amount of recovery, unlike today, pacted more than Florida, where we in the fun we are having on a Sunday when there are no caps, and we fre- have this huge population of seniors. I afternoon. Please join us. quently find the person who was in- know my friend from Nevada has a (Mrs. HUTCHISON assumed the chair.) jured gets a very small percentage huge population of seniors in his State. Mr. KYL. I thank my colleague from after the lawyer gets his chunk, the ex- We have the highest per capita number Nevada. I had the opportunity, which pert witnesses, other court costs, and of seniors. We like to say all the rest of we don’t have very much anymore, to so on. the seniors in the country are eventu- preside for a half hour, watching over a Maybe I should not defend my lawyer ally going to move to Florida anyway. dozen of my Republican colleagues en- friends. Maybe the Senator is right. We are going to have the greatest gen- gaging in a very informative debate for This is a way to attack costs. It is cer- eration—we have them there now—we the American people. tainly not unfair to the trial lawyers are going to have more of them living It occurred to me, as my colleague and actually would benefit the people in Florida, and their health care is from Nevada was talking about his who do deserve to get some recovery in going to get cut. amendment, which would actually re- these cases where, in fact, they have This bill cuts from health care for duce the cost of medicine, would re- been injured. seniors, it raises taxes, and it doesn’t duce the defensive medicine practiced Mr. ENSIGN. We do have a couple at- decrease the cost of health care for the by physicians and, therefore, have a torneys on the floor, including the

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00014 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.000 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD 29594 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 December 6, 2009 ranking member of the Judiciary Com- ices, who are very well trained, know happens, even if it is by the grace of mittee, and maybe one of the two of how to do it, how they can provide the God that something happens that is you could also talk about the true vic- services in these small communities. not so good, the fact is a trial lawyer is tims who actually have had medical We have dealt with that in Wheatland, waiting there to take advantage of a malpractice against them. How long WY, and New Castle, WY, where the ex- physician. So they have just decided to does it take to get through the court pense for the malpractice insurance for leave that particular industry. today because of all of these frivolous those physicians was so high that even We have had a bunch of side-by-side lawsuits that clog the courts? though they didn’t deliver that many votes here. The American people under- Mr. SESSIONS. I think the Senator babies in these small communities, stand the trickery that takes place. raises a very important point. It seems they could not afford and the hospital Fortunately, Senator MCCAIN’s favor- to me that there should be mechanisms could not afford to allow them to con- ite publication, the New York Times, created to settle cases much quicker, tinue to deliver any babies. The pointed out what absurdity it was yes- without the huge payouts going to law- amount of money they would receive terday that we passed 100 to zip the yer fees and litigation. Don’t forget, from delivering babies was not enough Bennett amendment which everybody the insurance company that the doctor to cover the insurance. In New Castle, knows is toothless. hires and that is defending the doctor WY, there were three physicians quali- Today, we have the opportunity to charges too. That is all money going to fied to deliver, but the number of deliv- actually have a values vote. The Amer- increase the cost of health care. eries was such they ended up with no ican people can determine the values of I have with me, today, working for one delivering because they wanted to each Senator. Senator ENSIGN has an me, Dr. Conrad Pierce. On a normal take one night and the next and the amendment to cap the amount trial day in Alabama, he would be my Sun- next. So you have communities all lawyers are paid. Senator LINCOLN has day school teacher today. Today he is across our country that are losing one to cap the amount that people who working. highly qualified medical practi- are actually delivering health insur- He just retired. He delivered 7,000 ba- tioners—whether it is cardiologists, ance are paid. This is a values vote. We bies. He told me, some years ago, that surgeons, trauma surgeons, whether it have a nonprofit in our State that an average OB’s insurance for a year is is obstetricians, gynecologist. We are pours every bit of its money back into $60,000. I don’t know whether it is still seeing this all over our communities. providing health insurance. Senator that way. That was several years ago. The Senator from Tennessee is here. LINCOLN’s amendment would cap the Some smaller town physicians may not There are a lot of small communities amount that person is paid. Senator deliver more than 60 babies a year. where they are going to lose those. We ENSIGN would cap the amount a trial That is $1,000 per delivery in insurance are seeing it in the cuts yesterday for lawyer is paid who is pursuing a physi- premiums. It is driven by this litiga- home health. Those people are not cian and causing them to pay more. tion rush we are having, and the pur- going to be available to deliver small This is the first of a real values vote. suit of these big verdicts that some- community care, lifeline, homebound, Mr. ENSIGN. One clarification: We times occur and make lawyers keeping them out of nursing homes, don’t cap the total dollar they can be wealthy—and, to be fair, sometimes se- keeping them out of hospitals. paid; we just cap the percentage. So rious injuries occur and serious mal- There are real consequences of this even though they will cap at $400,000 practice occurs. But I absolutely be- bill, not just with the junk lawsuits— what somebody can be paid for an in- lieve this country can, consistent with that is a big part of it—but also with surance company, trial lawyers could our heritage of allowing individuals to the Medicare cuts, also with the in- still, because they can get up to 25 per- sue for wrongs done to them, create a creased taxes we are seeing in this bill cent of the verdict—if the verdict is on much better system for medical mal- and how that is going to affect small average, as we learned from Senator practice. One of the steps is the one the businesses, which are the engines that KYL, $4 million, they can still make $1 Senator has mentioned in his amend- drive the economy of this country—and million on that one case, and they can ment. profoundly. have however many of those cases they Mr. ENSIGN. I appreciate that. We heard the Senator from South Da- want per year. Maybe we can have Dr. BARRASSO jump kota show the premiums families are Mr. CORKER. I know Senator ENZI in. I have a good friend who practices going to have to pay for insurance are wants the floor. obstetrics and gynecology in Las going to climb faster if this bill be- Mr. GRASSLEY. Madam President, Vegas, and he is a specialist in high- comes law than if nothing were passed. there are a number of issues that this risk pregnancies. Because of the Even though the President promised amendment raises. Some are health messed up medical liability situation, that families in this country on aver- care-related, most are not. his insurance company limited the age would see a $2,500-per-year decline First, this amendment amends sec- number—the same as Senator SESSIONS in premiums, the President’s own num- tion 162(m) of the Tax Code—a tax law was talking about—limited the number bers people say: Sorry, it is going to go intended to curb excessive executive of high-risk deliveries he could partici- up $2,100. That is a $4,600 shift for every compensation. pate in. So if you are one of the unfor- family who tries to buy their own Unfortunately, section 162(m) has tunate ones who got cut off—in other health insurance. That is what we are been a disaster. It has encouraged com- words, he had reached his cap of the seeing in Wyoming. panies to cook up complex design pack- number he could actually deliver, and I ask my colleague from Tennessee if ages so as to avoid the limitations you are a woman who has a high-risk he is seeing the same things at home. under the law. pregnancy—there may not be one of Mr. CORKER. Madam President, I Actually, excessive executive com- the specialists around. Now you have have just finished my second tour of all pensation exploded as a direct result of to deal with just the normal OB who 95 counties in our State. In 91 of the 95 section 162(m)—which was enacted may not have the expertise. counties in our State, women do not back in 1993. What does that do to not only the have access to the types of medical I have consistently made it clear practice of obstetrics but, as an ortho- services they should have. The reason that the outrageous pay practices of pedic surgeon, I am sure this kind of is that this whole issue of malpractice many companies must stop. True pay- example plays out in many other areas is especially prevalent in the issue of for-performance must be the corner- in medicine? OB. That is the area of babies being stone of any compensation package. Mr. BARRASSO. Standing on the born. Obviously, a physician cannot de- And the boards of directors, compensa- Senate floor, looking at so many col- termine if there is going to be a genetic tion committees, and shareholders leagues from States with a lot of rural deficiency of some kind or something must all be partners in practicing good areas, it is a challenge to have people else. But trial lawyers are out there corporate governance. We should look who can provide these excellent serv- waiting to ensure that no matter what to reform section 162(m) of the Tax

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00015 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.000 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD December 6, 2009 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 29595 Code, not add to it. And we should look returns making under $200,000 in 2019 nurses to avoid certain specialties, and at whether Congress needs to reform will see a tax increase under the Reid in part led to the steady increase of the way corporate governance is prac- bill. Yet only 8 percent of tax returns health care premiums. With the threat ticed. in 2019 will be benefiting from the tax of lawsuits hanging over their heads, This amendment adds to section credit. That doesn’t seem balanced. doctors are forced to take extra pre- 162(m). It does not reform it. This Finally, this amendment directs the cautions when diagnosing and treating amendment does nothing to empower revenue generated from it to the Medi- patients through the ordering of addi- shareholders to hold the corporation’s care trust fund. I commend my Demo- tional tests and procedures. The Jour- board accountable. All it does is hurt cratic friends for crafting policies that nal of the American Medical Associa- shareholders by taking money out of would help shore up Medicare. What is tion found that 93 percent of doctors the company and giving it to the gov- interesting is that this bill cuts Medi- admit practicing this type of self-pro- ernment. care. To the tune of $400 billion—that tective medicine. That is right. By limiting a corpora- is billion with a B. A recent study by the Pacific Re- tion’s deduction, shareholders are the And the money raised from cutting search Institute estimates the cost of ones who are disadvantaged, not the Medicare is not being directed to help defensive medicine is at least $191 bil- corporation. shore up Medicare. Rather, the money lion per year, while other reports put My friends on the other side of the is being spent on expanding and cre- costs over $200 billion annually. Ac- aisle forget that seniors are often ating new entitlement programs. The cording to the Congressional Budget shareholders who rely on dividends and Joint Committee on Taxation scored Office, if Congress adopted only a few capital gains for income to live on day this amendment as raising $651 million of the malpractice reforms we have in and day out. So actually, my Demo- over 10 years—that is million with an seen various States enact, such as cratic friends are enacting policies M. Texas and Alabama, the deficit would that will hurt seniors. All in an effort So what we have here is $400 billion decrease by $54 billion over 10 years. to show the country that they have it in cuts in Medicare that is being used At the heart of this issue, beyond the in for the big, bad insurance compa- for other spending, in exchange for $600 costs and savings, is the damage the nies. million which would be directed Medi- current liability system does to the re- I also find it interesting to hear my care trust fund. Doesn’t seem like a lationship patients have with their friends say that it is unfair for insur- fair trade. doctors. When physicians are afraid ance companies to get a taxpayer fund- Do my friends on the other side feel they could be sued, not only do they ed ‘‘subsidy’’ in the form of a tax de- guilty for using Medicare money for run unnecessary tests and procedures, duction. non-Medicare purposes? And to make but the quality of care patients receive First, all corporations are allowed to up for this guilt, they decided to direct is compromised. A 2003 GAO report deduct compensation as a business ex- non-Medicare-related money to the concluded that defensive medicine has pense. Big, small, private, and public Medicare trust fund? also contributed to access issues, espe- corporations get this same tax deduc- I will close by saying that my Demo- cially in rural areas. Physicians tend tion. cratic friends will take to the floor and to move to States and areas with lower Are these companies getting a tax say that anyone who votes against this liability rates, and hospitals are able subsidy? If so, why not take the sub- amendment is ‘‘in the pockets of the to expand available services. sidy away from them? insurance companies.’’ I will first tell It is estimated that attorneys’ fees Now, my friends on the other side my friends that they should look in the and administrative costs amount to 54 may argue that these restrictions are mirror. Then I will say opposing irra- percent of the compensation paid to just like those Congress passed in tional policies that add complexity to plaintiffs. Less than 15 cents of every T-A-R-P. And the way the legislation our tax laws is not protecting insur- dollar awarded actually goes towards works, they would be correct. ance companies. compensation for the individual. This But, the executive compensation re- Let’s get on to reforming our health amendment is not about preventing strictions in T-A-R-P were conditions care system, instead of voting on compensation to injured individuals; it for receiving taxpayer dollars. My con- amendments so my Democratic friends is about increasing access to doctors stituents in Iowa would call them bail- can (1) look like they are taking it to and lowering costs. In fact, this meas- outs. the insurance companies, and so they ure allows injured plaintiffs to keep Now my friends may argue that can look like (2) they are helping Medi- more of the reward. The simple truth is health insurance companies are bene- care solvency. that lowering the cost of doing busi- fiting from their reforms and they Mr. INHOFE. Madam President, I ness allows doctors to serve more peo- should pay their ‘‘fair share.’’ They support the amendment offered by the ple at lower costs. may also say that they are receiving Senator from Nevada, which I have On November 6, I received a letter the government-subsidized tax credits also cosponsored, that calls for real re- from the Oklahoma State Medical As- for health insurance, which is taxpayer form of the medical liability system. sociation, confirming that medical li- dollars. A key component to health care re- ability reform would reduce health The main reason why the govern- form in our Nation is medical liability care costs because the practice of de- ment is subsidizing health insurance reform. However, the Democrats are fensive medicine adds billions of dol- for low-income individuals is because not actually interested in making lars to the yearly cost of health care. the Reid bill forces people to buy changes to the current system as evi- Oklahoma physicians pay anywhere health insurance. denced by the inclusion in this bill of from $20,000 to $90,000 a year, depending If you force people to buy insurance, ‘‘the sense of the Senate that health on their specialty, for malpractice in- you have to make sure it is affordable care reform presents an opportunity to surance, and their yearly costs have for them to buy. This has forced the address issues related to medical mal- risen astronomically since 1999 to the government to spend close to $400 bil- practice and medical liability insur- point that some specialties, like OB– lion on these tax credits, which is one ance.’’ Well that opportunity has come GYNs, have had to change careers or of most expensive parts of the Reid now, with a vote on this amendment move to other States where State mal- bill. And the cost of these tax credits that will limit the amount of contin- practice reform is already in place. are paid with higher taxes, fees, and gency fees available to trial lawyers Since 1999, Oklahoma OB–GYNs have penalties on the majority of Ameri- who bring medical liability actions. seen their yearly malpractice costs rise cans. Paid by many of those who earn The threat of massive lawsuits and from $15,000 to $63,000. less than $250,000 a year. the costs of insuring against them have Meaningful malpractice reform must Data from the Joint Committee on driven doctors out of the practice of be a part of any comprehensive health Taxation tells us that 38 percent of tax medicine, influenced doctors and care reform. This is not a partisan

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00016 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.000 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD 29596 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 December 6, 2009 issue. As my colleagues mentioned yes- Guaranteed benefits are not worth Because the drastic and permanent terday, this amendment was actually much without health care providers Medicare cuts in this bill will worsen proposed by Senator Kennedy in 1995, who can treat patients, provide home health care access and quality. with the support of many current Sen- health services, run the hospitals and And the Reid bill leaves problems ators on the other side of the aisle. It hospice agencies. that have long been vexing Congress will be very interesting to see just how These claims are not good enough to like the fatally flawed physician pay- serious the Democrats are about health assure seniors who have paid into the ment formula unsolved. care reform. The bill has a ‘‘sense of Medicare Program all these years. It is The Reid bill will leave Congress the Senate’’ recognizing medical mal- not good enough for protecting access with few options for fixing these prob- practice costs are a problem. We will to the health care services and benefits lems. see if they think it is important to they were promised. So the Gregg amendment is essential really do anything about it. So the Gregg amendment would back for protecting the Medicare Program. The PRESIDING OFFICER (Mr. up those claims with a real enforceable It is essential for making those guaran- BROWNBACK). The Senator from Wyo- mechanism to ensure that Medicare tees real. ming. savings aren’t being used to fund a new The way the Gregg amendment Mr. ENZI. Mr. President, the time for program. works to enforce those guarantees is the colloquy has, unfortunately, ex- The Gregg amendment is needed to quite simple. pired. The balance of the time goes to protect the Medicare Program. The Gregg amendment would make the Senator from Iowa. I thank every- After all, if you knew that the Medi- sure that the Medicare Program is not body for their participation. care Program already had $37 trillion used as a piggy bank to spend for other The PRESIDING OFFICER. The Sen- in unfunded obligations, would you be purposes. It would make sure that the ator from Iowa is recognized. assured without an enforcement mech- Medicare Program is not being raided Mr. GRASSLEY. Mr. President, I rise anism to back up those promises? to fund this new program as the other to speak in favor of the amendment of No guarantee is worth the paper it is side claims. the Senator from New Hampshire. written on without an enforcement Under this important amendment, Because as I have been saying, the mechanism to back it up. Otherwise, it the director of the White House Office people who wrote the excesses of the is just a meaningless guarantee. It is of Management and Budget and Medi- Reid bill appear willfully ignorant of not real without an enforcement mech- care’s chief actuary would both be re- what is going on in the rest of the anism. quired to add up non-Medicare savings economy outside of health care. The Gregg amendment provides that in the bill and compare that total to We are a nation facing very chal- enforcement mechanism. It makes the the total of new spending and revenues lenging economic times with industries guarantee real. in the bill. in financial crisis and Federal debt in- Opposition to the Gregg amendment If non-Medicare savings don’t offset creasing to all-time highs. will shine a light on the issue. If the all the new costs, then the Treasury So we should be considering a bill Gregg amendment is not approved, it Secretary and the HHS Secretary that would create jobs and prevent this should be clear to everyone watching would be prohibited from imple- country from being burdened with a that all the guarantees they are mak- menting the new spending or revenue bigger and more unsustainable Federal ing that Medicare is protected in the provisions in the bill. budget instead of this health bill. Reid bill are, in fact, worthless. As a By doing so, the Gregg amendment But instead, we are now considering result, I hope that everyone will be would ensure that the non-Medicare a bill that cuts half a trillion dollars watching carefully how the other side savings are paying for the new spend- from the Medicare Program to fund yet votes on the Gregg amendment. ing in this bill. And it would ensure another unsustainable health care enti- Now supporters of the Reid bill trum- that Medicare itself is not being used tlement program. pet the fact that their drastic and per- to pay for the new spending in the bill. It is that simple. You have heard from Members on manent Medicare cuts extend the life The amendment therefore would pre- this side of the aisle about how flawed of the program. vent massive government expansions this approach is and how these drastic I agree that we can’t ignore the pend- at the expense of Medicare bene- Medicare cuts will threaten beneficiary ing insolvency of the Medicare Pro- ficiaries. access to care. gram. As you can see, this amendment has Medicare’s chief actuary at the U.S. The Medicare hospital insurance teeth. This amendment is real. Department of Health and Human trust fund started going broke last As opposed to a mere nonbinding Services has warned Congress in his re- year. In 2008, the Medicare Program sense of the Senate resolution that the port that these cuts could jeopardize began spending more out of this trust other side has offered to pretend to access to health care for beneficiaries. fund than it is taking in. protect Medicare, the Gregg amend- In fact, a number of Members on the The Medicare trustees have been ment requires action to protect the other side of the aisle have made clear warning all of us for years that the Medicare Program. that they share our concerns when trust fund is going broke. They now The Gregg amendment is the enforce- they joined us to vote in favor of mo- predict that it will go broke right ment mechanism for the guarantees tions to eliminate these cuts. around the corner in 2017. the other side says they are making to Most of the Members on the other But rather than work to bridge Medi- protect Medicare benefits. side of the aisle, however, claim that care’s $37 trillion in unfunded liabil- Slashing Medicare payments to start this bill does no such thing. ities, this bill cuts half a trillion dol- up another new unsustainable govern- They claim that Medicare money is lars from the Medicare Program to ment entitlement program is not the not being used to start up yet another fund yet another unsustainable health way to address a big and unsustainable unsustainable entitlement program care entitlement program. budget. that we clearly can’t afford. By diverting Medicare resources else- That is why I support the Gregg They claim that the Reid bill doesn’t where, this bill ignores other major amendment. And I urge my colleagues technically change the law on guaran- problems in the Medicare Program, to do the same. teed benefits for beneficiaries. like fixing the physician payment flaw Vote to protect Medicare. They are ignoring the fact that while with the sustainable growth rate for- Vote to keep Medicare from being those benefits may be technically guar- mula, or SGR as it is known. used to fund a separate new program. anteed, if the cuts put health care pro- So the few years of extended life this Vote to keep Medicare funds from viders out of business, then those guar- bill would give to the Medicare hos- being siphoned off. antees will be nothing more than use- pital insurance trust fund is a Pyrrhic Vote to put in place a real guarantee less words in the Medicare Act. victory. that Medicare funds won’t be used.

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00017 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.000 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD December 6, 2009 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 29597 Vote to back up those promises with defeat a victim of medical malpractice My amendment is intended to en- real action. in a courtroom, you can spend an un- courage those insurance companies to I yield the floor. limited amount of money, according to put the additional premium dollars The PRESIDING OFFICER (Mr. the Senator from Nevada. However, if they will be bringing in with the vol- FRANKEN). The Senator from Wyoming. you are going to represent that victim, ume of new customers back toward Mr. ENZI. What is the status of the he would limit the amount of money lowering their rates and making more time? that counsel, that attorney can be affordable coverage for consumers, not The PRESIDING OFFICER. The mi- paid. It will mean fewer victims will putting it in their own pocketbooks. nority has 50 seconds remaining, and have lawyers, and maybe some of the Where health insurers spent more the majority has 16 minutes 48 seconds. lawyers they have will not be the best than 90 cents of every dollar on patient Mr. ENZI. I will reserve the remain- because of the amendment offered by care in the early 1990s, that number has der of my time. the Senator from Nevada. That is bad decreased dramatically to just over 80 The PRESIDING OFFICER. The Sen- policy. It is not fair to the victims be- cents for every dollar in 2007, and even ator from Illinois. cause many of these victims are inno- more so in recent years. Mr. DURBIN. I ask unanimous con- cent victims. According to testimony delivered in sent to be recognized for 5 minutes I recall a woman in Chicago who the Senate Commerce Committee ear- under the majority time. went to one of our more famous hos- lier this year, this trend has translated The PRESIDING OFFICER. Without pitals for the simple removal of a mole into a difference of several billion dol- objection, it is so ordered. from her face. She was administered a lars in favor of insurance company Mr. DURBIN. Mr. President, one of general anesthesia, and during the shareholders and executives at the ex- the amendments we are about to con- course of the general anesthesia, the pense of health care providers and their sider is offered by the Senator from Ne- oxygen, which she was receiving, ex- patients. vada. ploded, caught fire, and burned off her I think it is so important we under- We know medical malpractice is an facial features. She went through re- stand what it is. This amendment does issue in this country. The Institute of peated reconstructive surgery, scar- not dictate what insurance companies Medicine tells us that 98,000 Americans ring, disfigurement, pain and suffering. can pay their executives. They have die each year from medical mal- She was an innocent victim. She did the complete ability to pay what they practice. Many more are injured. In the nothing wrong. She wanted to make choose. It is not a salary cap. But it United States of America each year, sure her medical bills were paid, her does limit the American taxpayers’ there are about 11,000 medical mal- lost wages were paid, there was com- subsidization of outrageous pay and, practice claims paid. pensation for her pain and suffering. instead, devotes those resources to pro- There is a concern about the impact She was not a wealthy person. She tecting Medicare. of medical malpractice on the practice went to an attorney, who said: I will A vote for this amendment is a vote of medicine. That is why President take the case, but it is a contingency. in support of strengthening the Medi- Obama and this legislation were look- If you win, I am paid. If you lose, I am care trust fund. A vote against this ing together for ways to reduce med- not paid. amendment is a vote in support of hav- What the Senator from Nevada does ical malpractice, negligence, and er- ing the IRS write a check of $650 mil- with his amendment is limit the oppor- rors. We are looking for ways to reduce lion to the health insurance companies tunity for innocent victims, just like any number of lawsuits that may not to subsidize the multimillion-dollar her, to go into a courtroom, into our be necessary. That is a good and posi- salaries they are paying their execu- court of justice, and see justice at the tive thing for us to do. tives. end of the day. That is not a just re- Unfortunately, the amendment of- So I urge my colleagues to support sult. We need to stick with this bill, fered by the Senator from Nevada is this effort on behalf of the American which moves us forward, with innova- not a good amendment to achieve that taxpayer and our seniors and to vote in tive ways to reduce medical errors, re- goal because what the Senator from favor of our amendment. duce medical malpractice, and find Nevada does is puts together a formula Mr. BAUCUS. Mr. President, how ways to resolve the differences between for compensating the lawyers who rep- much time is remaining on our side? medical providers and the patients in resent the victims of medical mal- The PRESIDING OFFICER. There is the fairest possible way. That is what practice and reduces the amount of 9 minutes 39 seconds remaining. this bill does. That is what we should money that is available. I want every Mr. BAUCUS. Mr. President, I yield 9 do. minutes 39 seconds to my esteemed single dollar we can bring to the vic- The amendment that has been offered friend from Vermont. tims of medical malpractice, but the by the Senator from Nevada fails to The PRESIDING OFFICER. The Sen- fact is, in our country today, most vic- reach that goal and is fundamentally ator from Vermont. tims are not wealthy, and the only way unfair and unjust to victims who are Mr. LEAHY. Mr. President, I thank they can bring a lawsuit is if the law- just asking for a day in court and for the senior Senator from Montana. yer says it is a contingency fee. If you, the compensation which they deserve the victim, win, then I will be paid. If for their injury. AMENDMENT NO. 2927 you lose, I am not paid. It is the only Mr. President, I reserve the remain- Mr. President, let me wear my hat as way many people of modest means can der of my time. chairman of the Senate Judiciary Com- get into a courthouse. The PRESIDING OFFICER. The Sen- mittee and talk about the amendment The Senator from Nevada wants to ator from Montana. we are going to vote on to cap attorney limit the amount of money that can be Mr. BAUCUS. Mr. President, I yield 2 fees. It is a one-sided amendment. It paid to the attorneys, limit the oppor- minutes to the Senator from Arkansas. does not hurt attorneys. It hurts in- tunity for victims to be represented. If The PRESIDING OFFICER. The Sen- jured Americans who seek to recover his goal is to reduce the money paid to ator from Arkansas. damages in our court system. It may lawyers, you would think the amend- AMENDMENT NO. 2905 not be obvious to the nonlawyers lis- ment would also reduce the money paid Mrs. LINCOLN. Mr. President, I tening to this debate that many ordi- to defense lawyers, those insurance think it is so important we look at the nary Americans who suffer an injury company lawyers who are at the other choice we will be making when we vote through another’s negligence cannot table in the courtroom. Studies show on this amendment in a few minutes. It afford to pay for the legal representa- that 50 percent more is paid to them is very simple. When health insurance tion they need to go to court. than paid to the victims’ lawyers. But reform becomes law, health insurance Our legal system allows for a plain- the Senator from Nevada does not re- companies will receive millions of new tiff and an attorney to negotiate to de- strict their payment in any way. In customers purchasing their product for termine what the compensation is other words, if you are going to try to the first time. going to be. In these cases, the parties

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00018 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.000 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD 29598 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 December 6, 2009 sign a contract where the attorney the hospital, the insurance company So I am going to oppose the amend- may agree to work on a case with no for a doctor or somebody who has done ment offered by Senator ENSIGN. It is compensation at all unless the victim a grievous wrong, just keep this thing unfair. It will only hurt Americans who ultimately receives compensation from rolling long enough because you have have already been injured by making it the doctor or hospital responsible for the money and you can just beat it more difficult for them to gain access the injury. This is called a contingency down. to our court system. fee. In other words, a judge and a jury When a patient receives more than I yield the floor. have to agree that person was injured $150,000 in medical expenses or compen- Mr. BAUCUS. Mr. President, how and deserves this compensation. The satory or other damages, it is because much time remains on this side? parties do not do that. This allows all the injury is severe and ongoing or be- The PRESIDING OFFICER. A minute Americans, not just the wealthy, to cause it resulted in death. Those pa- and a half. have their day in court. tients are going to have a tougher time Mr. BAUCUS. A minute and a half. I It should also be noted that if a judge finding someone to hold the person who yield 1 minute to my friend from Cali- believes a compensation agreement is harmed them accountable. Adding this fornia. unfair to the victim, or if they believe insult to injury does not further the The PRESIDING OFFICER. The Sen- it is disproportionate, the judge has laudable goals of the pending health ator from California. the power to reduce the fee. I believe care bill. We should be increasing pa- Mrs. BOXER. Mr. President, I thank this is the same in virtually every tient safety and health, not punishing the Senator. State in this country. States have reg- those who have already been injured by I have been listening to this debate. ulated the area of attorney compensa- wrongdoing. It has been very interesting. It is very tion extensively, striving for reason- I understand that yesterday the jun- clear what this amendment does. It ableness. States have done this. ior Senator from Nevada identified sev- hurts the victims who, through no Doesn’t that make the most sense that eral prominent Democrats as having fault of their own, get hurt in a med- the States decide? supported a similar amendment offered ical malpractice case by essentially Let’s not forget that lawyers only are by Senator Kennedy a decade ago in a making it very difficult for them to get compensated if the client’s case is suc- Republican-controlled Senate. I am not the best attorneys. Some of these cases cessful and if a jury finds that a wrong surprised by this tactic, given the dis- cry out for the best attorneys. was committed and if that jury finds appointing tenor of the debate. Of But let me tell you, I have been in they should be compensated. This is course, upon a review of the actual Congress since the 1980s. When a House not some kind of windfall. It is the re- vote, anyone would see that several Member or a Senator gets into trouble, sult of an attorney’s very hard work to Senators in this Chamber, including do you know the first person they call? redress a wrong. this one, opposed a motion to table An attorney—the best attorney—and The pending amendment would over- Senator Kennedy’s amendment. That is they do not come on this floor and say: ride all of these traditional consider- hardly the same as advocating a cap on Oh, let’s make sure those attorneys do ations. It would impose a flat cap on fees. not earn enough money. They are will- It is also worth noting that in 1995, all attorney fees for significant inju- ing to pay whatever it takes with their the Senate was considering a draconian ries. But the amendment would not cap campaign accounts. By the way, that is products liability bill, not a health the attorney fees of those representing all legal. care bill. At that time, the then-Repub- a negligent hospital or doctor. That But I find it amazing that Senators— lican majority was attempting to go hospital, those doctors—their insur- who the first person they call when further than any other Congress in his- ance companies could pay any amount they are in trouble through their work tory to prevent injured Americans of money they wanted, for example, in is an attorney—would wind up going from recovering damages from the cor- the case—and there have been cases after victims the way they do. When porations that hurt them or their chil- like this—where the wrong leg was am- dren. they are a victim of a problem, as they putated by mistake or a person was I am relieved that legislation in 1995 see it, they get the best attorneys and given the wrong medicine and they end never became law. I can see why some they pay the high price. It is just not up paralyzed. might have wished it had. Maybe they right. But this amendment says, if that per- knew what was going to come because The PRESIDING OFFICER. Thirty son who was paralyzed wants to sue, we after that, what came to light were seconds remain. are going to cap the amount of com- many recent incidents of harmful prod- Mrs. BOXER. I hope we will defeat pensation that could be possibly paid ucts that had been introduced into the Ensign amendment. to their attorney. But for the person commerce—many of them toys for lit- The PRESIDING OFFICER. The Sen- who wants to escape liability for giving tle children—and nothing could have ator from Montana. the wrong medicine that paralyzed a been done about it had that bill become Mr. BAUCUS. Mr. President, let me, patient—their insurance companies, law. If that bill had become law, I fear in closing, remind Senators that the their hospitals—they can pay all how- we would have seen many more deaths Senate is about to conduct two back- ever much they want for attorneys. or serious injuries among children as a to-back votes. The first vote will be on They can pay their own counsel 10 result of faulty products. the Lincoln amendment on executive times what a plaintiff’s attorney might I find it ironic, given the often-pro- compensation. The second vote will be get in their effort to prevent a hospital fessed loyalty to the sovereignty of the on the Ensign amendment on attor- or doctor from being held liable for States and the sanctity of private con- ney’s fees. that horrible mistake. tracts, many on the other side of the Mr. President, I yield back the re- Trust me, this gives a defendant aisle now seem to have no concerns maining time. every incentive to prolong litigation. about the vast Federal intrusion into The PRESIDING OFFICER. Fifteen Why should they settle? Why should these areas of traditional State control seconds remains on the minority side. they admit wrongdoing? They have the that this and other medical mal- The Senator from Nevada is recog- deep pockets. Yet through this amend- practice reform proposals represent. nized. ment, a plaintiff would be limited by Basically they are saying: Oh, we are Mr. ENSIGN. Mr. President, the En- the actions of the Senate—made up of all for States rights and sovereignty of sign amendment is going to come down 100 people who can afford a lawyer, un- the States except when it may cost to a choice: Are you on the side of the like many of the people who are in- some of the big insurance companies patients or are you on the side of the jured? And so are we going to say that some money. We are all in favor of the trial bar, personal injury attorneys. the Senate has capped what a plain- sanctity of private contracts—except That is what it comes down to. Per- tiff’s lawyer can get? By the way— when it may cost some of the big insur- sonal injury attorneys will be able to, wink, wink, nudge, nudge—if you are ance companies some money. on their contingency fees—the first

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00019 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.000 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD December 6, 2009 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 29599 $150,000 they will be able to collect Under the previous order, requiring 60 Mr. REID. A counter to the abortion 331⁄3 percent. Anything above that, we votes for the adoption of amendment amendment or something like that? are going to cap them at collecting 25 No. 2905, the amendment is withdrawn. Mr. MCCONNELL. No. percent. Mr. REID. Mr. President, I move to Mr. REID. Just an additional amend- This was from an amendment that reconsider the vote, and I move to lay ment. was offered in 1995 by Senator Edward that motion on the table. Mr. MCCONNELL. Yes. Kennedy. Twenty-one Members of the The motion to lay on the table was Mr. REID. Mr. President, I don’t real- current Democratic majority who were agreed to. ly know who is going to offer the also Members of the Senate in 1995 who Mr. REID. Mr. President, I have had amendment tomorrow for sure, but it voted for that amendment. Let’s see a brief conversation this afternoon is an issue I want to get out of the way. how that vote comes out today. It is with the Republican leader. We origi- I think we all do. So it is OK. It will be the right amendment. Let’s be on the nally were not going to offer a side-by- our slot, no matter who will be the side of the patient instead of the side of side to the Gregg amendment. We have first person on the amendment. one more vote. We would like Senators the personal injury attorneys. AMENDMENT NO. 2927 GREGG and PRYOR to lay down their The PRESIDING OFFICER. All time The PRESIDING OFFICER. There is amendments after that. Because we has expired. now 2 minutes of debate prior to a vote have told everybody we wouldn’t be The question is on agreeing to the in relation to amendment No. 2927 of- voting late tonight, we need to com- Lincoln amendment. fered by Senator ENSIGN. plete work on these matters in the Mr. BAUCUS. Mr. President, I ask for The Senator from Nevada is recog- morning. So we will debate this tomor- the yeas and nays. nized. row. The PRESIDING OFFICER. Is there a It is my understanding that tomor- Mr. ENSIGN. Mr. President, the 2,074- sufficient second? row there will be a bipartisan amend- page health care bill before us has a There appears to be. ment on abortion. We can debate the provision on medical liability reform. The clerk will call the roll. Pryor and Gregg thing in the morning, Here are the savings: zero. The assistant legislative clerk called and then we will debate abortion, and Back in 1995, Senator Edward Ken- the roll. we will be able to dispose of the Gregg nedy offered an amendment on liability Mr. DURBIN. I announce that the and Pryor matters no earlier than 3:15 reform to cap attorney’s fees. Twenty- Senator from West Virginia (Mr. BYRD) tomorrow. So we are going to be debat- one current Democratic Senators, who is necessarily absent. ing these two things tomorrow. were Members at that time, voted for Mr. KYL. The following Senator is I say this off the subject: We have that amendment. This chart lists the necessarily absent: the Senator from been grinding things out here for some Members who were in the Senate then. Kentucky (Mr. BUNNING). time on a very partisan basis. I was The Members from the other side of Further, if present and voting, the confronted yesterday with an issue. We the aisle have made arguments that Senator from Kentucky (Mr. BUNNING) are here working on a Sunday. We had plaintiffs need these contingency fees would have voted ‘‘nay.’’ the President come here to talk to the to be that high. Let me quote an ab- The PRESIDING OFFICER. Are there caucus. The Republican leader said: I stract of a study written in the Wash- any other Senators in the Chamber de- don’t really think that is fair. Why ington University Law Quarterly: siring to vote? should we be out of session? It is your Since 1960, the effective hourly rates of The result was announced—yeas 56, caucus. So I said: You keep talking; tort lawyers have increased 1,000 to 1,400 per- nays 42, as follows: you can preside. I had no concern about cent (in inflation-adjusted dollars), while the [Rollcall Vote No. 365 Leg.] any untoward action taken. In a situa- overall risk of nonrecovery has . . . de- tion such as that, I had no problem. I creased materially for such high-end tort YEAS—56 categories as . . . medical malpractice. trust implicitly Senator MCCONNELL Akaka Harkin Nelson (FL) Mr. President, the complete study Baucus Inouye Pryor and Senator KYL. Bayh Johnson Reed I hope that is kind of a breakthrough that I just quoted an abstract of, is en- Begich Kaufman Reid here. We have to start trusting each titled, Effective Hourly Rates of Con- Bennet Kerry Rockefeller tingency Fee Lawyers: Competing Data Boxer Kirk other. It is rarely done. I have never Sanders and Non-Competitive Fees. I would Brown Klobuchar Schumer seen that happen before. I think it is Burris Kohl Shaheen the right thing to do. I am dis- urge all of my fellow Members to re- Cantwell Landrieu Snowe view that study. Cardin Lautenberg appointed that there weren’t more Specter Casey Leahy Democrats listening to what they had Let me also quote from Howard Stabenow Dodd Levin to say. From a procedural perspective, Dean, who said: Dorgan Lincoln Tester Udall (CO) I never doubted that everything would The reason why tort reform is not in the Durbin McCaskill bill is because the people—— Feingold Menendez Udall (NM) go fine. Feinstein Merkley Warner We are going to have one more vote. The PRESIDING OFFICER. The Sen- Franken Mikulski Webb We will not be in session much longer ator’s time has expired. Gillibrand Murray Whitehouse today. Mr. ENSIGN. Mr. President, I ask Hagan Nelson (NE) Wyden The PRESIDING OFFICER. The mi- unanimous consent for 30 more sec- NAYS—42 nority leader is recognized. onds. Alexander Cornyn LeMieux Mr. MCCONNELL. Mr. President, I The PRESIDING OFFICER. Without Barrasso Crapo Lieberman thank the majority leader. I did sug- objection, it is so ordered. Bennett DeMint Lugar Bingaman Ensign McCain gest yesterday that, since the Presi- Mr. LEAHY. Reserving the right to Bond Enzi McConnell dent was not meeting with us, we had object. If the Senator receives an extra Brownback Graham Murkowski nothing constructive to do during that minute, then we will have an extra Burr Grassley Risch hour. I suggested that we be allowed to Carper Gregg Roberts minute on this side. Chambliss Hatch Sessions speak. We worked that out in our first The PRESIDING OFFICER. Without Coburn Hutchison Shelby bipartisan moment on this bill, as he objection, it is so ordered. Cochran Inhofe Thune indicated. Mr. ENSIGN. Howard Dean said: Collins Isakson Vitter With regard to the agenda tomorrow, Conrad Johanns Voinovich The reason why tort reform is not in the Corker Kyl Wicker as the majority leader indicated, we bill is because the people who wrote it did have the Gregg amendment, the Pryor not want to take on the trial lawyers in ad- NOT VOTING—2 amendment, and the abortion amend- dition to everybody else they were taking Bunning Byrd ment. We will have an additional on, and that is the plain and simple truth. The PRESIDING OFFICER. On this amendment on this side as well. That Now that’s the truth. vote, the yeas are 56, the nays are 42. is up to four. That is a quote from Howard Dean.

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00020 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.000 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD 29600 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 December 6, 2009 We have a choice. We can be on the [Rollcall Vote No. 366 Leg.] fewer businesses in Oklahoma to offer side of personal injury attorneys or we YEAS—32 benefits. can be on the side of the patients. I Alexander Grassley McCain That is a fairly strong indictment think we should be on the side of the Barrasso Gregg McConnell from somebody who cares about the patients and vote for the Ensign Bond Hagan Murkowski people of Oklahoma and what is going Brownback Hutchison amendment. Roberts to happen in health care. Burr Inhofe Sessions The PRESIDING OFFICER. The Sen- Coburn Isakson Snowe Mr. President, I ask unanimous con- ator from Vermont. Corker Kohl Thune sent to have printed in the RECORD this Cornyn Kyl Vitter letter from the State insurance com- DeMint Lieberman Mr. LEAHY. Mr. President, it is hard Voinovich Ensign Lincoln missioner of Oklahoma. to respond to all the inaccuracies in Warner Enzi Lugar There being no objection, the mate- the statement of the junior Senator rial was ordered to be printed in the from Nevada. NAYS—66 RECORD, as follows: One, incidentally, he may be inter- Akaka Feingold Mikulski Baucus Feinstein Murray OKLAHOMA INSURANCE DEPARTMENT, ested in knowing, as I was leaving Bur- Bayh Franken Nelson (NE) STATE OF OKLAHOMA, lington, VT, this morning after saying Begich Gillibrand Nelson (FL) Oklahoma City, OK, December 1, 2009. goodbye to a number of our Guard Bennet Graham Pryor Re Senate Leadership Bill Patient Protec- members I ran into Howard Dean. He Bennett Harkin Reed tion and Affordable Care Act. Bingaman Hatch Reid hopes we will pass the bill that is on Boxer Inouye Risch Senator TOM COBURN, the floor. Brown Johanns Rockefeller Russell Senate Office Building, Burris Johnson Sanders Washington, DC. Second, the motion he talks about Cantwell Kaufman Schumer DEAR SENATOR, I appreciate the oppor- and those who voted, including this Cardin Kerry Shaheen tunity to give you an Oklahoma perspective Senator, was a procedural motion on a Carper Kirk Shelby on the latest health care reform measure question of tabling Senator Kennedy’s Casey Klobuchar Specter being considered by the US Senate. As you Chambliss Landrieu Stabenow amendment. We thought he should be Cochran Lautenberg Tester are well aware, the challenges associated allowed to have a vote. It was not a Collins Leahy Udall (CO) with health care in America are immense. vote in favor of caps. Conrad LeMieux Udall (NM) These complex problems require solutions Crapo Levin Webb grounded in fact and sound deliberation. Lastly, if you look at what he has Dodd McCaskill Whitehouse Large numbers of uninsured Oklahomans done with this amendment, he is say- Dorgan Menendez Wicker generate more than $954 million dollars in ing that the insurance companies and Durbin Merkley Wyden uncompensated medical care each and every the hospitals or somebody who may NOT VOTING—2 year in our state alone. This cost is shifted have cut the wrong leg off or paralyzed Bunning Byrd to those with insurance. Recent estimates you by giving you the wrong medica- indicate that this adds an additional $2,911 The PRESIDING OFFICER. On this annually to health insurance premiums for tion, they can spend all the money vote, the yeas are 32, the nays are 66. an Oklahoma family of four. they want to stop you from getting any Under the previous order requiring 60 As Oklahoma Insurance Commissioner, I relief. You, however, will be limited votes for the adoption of this amend- strongly support efforts to provide our citi- and the Federal government will over- ment, the amendment is withdrawn. zens with high quality health care and af- ride the laws of your State and tell you fordable health insurance. Many features of Mr. DURBIN. Mr. President, I move the Senate Bill attempt to accomplish this, what you can contract for on fees with to reconsider the vote and to lay that your attorney. at least in part, when taken together. How- motion on the table. ever, in the absence of a strong inducement In other words, the people who The motion to lay on the table was to purchase coverage, the consequences of caused the damage can spend any agreed to. adverse selection can cause market disrup- amount of money they want to escape The PRESIDING OFFICER. The Sen- tion, higher costs and lower than desired liability from the damage. The poor in- ator from Oklahoma. take-up rates. dividual who has been damaged would Mr. COBURN. Mr. President, I am IMPACT TO OKLAHOMA not have an equal chance at rec- going to ask to have printed in the (1) Individual Mandate: The Oklahoma Health Care Authority has ompense. Come on. Is the Senate actu- RECORD a letter dated December 1, 2009, estimated that there are nearly 600,000 unin- ally going to vote for something like from the insurance commissioner of that? I would hope not. sured working Oklahomans—nearly half be- the State of Oklahoma—she happens to tween the ages of 19 and 32. There is no indi- Mr. ENSIGN. I ask for the yeas and be of your party, the majority’s party— cation that most of those uninsured would nays. outlining the significant problems that voluntarily enroll in any health benefit plan. The PRESIDING OFFICER. Is there a she sees for our State if this bill be- Our popular Insure Oklahoma individual sufficient second? comes law. This is not a partisan docu- plan offers comprehensive, guaranteed issue coverage to individuals earning less than There is a sufficient second. ment. This is a document that relates to what is going to happen to Okla- 200% of federal poverty level for less than $40 per month, yet we have only 6,000 covered by The question is on agreeing to homa. amendment No. 2927. that plan and most are over age 30. A If I might summarize, very shortly: healthy 25-year-old male in Oklahoma can The clerk will call the roll. It will increase premium costs and in- purchase a comprehensive individual health The legislative clerk called the roll. crease the number of uninsured people insurance policy from a major Oklahoma Mr. DURBIN. I announce that the in Oklahoma. That is according to our medical insurer for just $1,634 annually. In Oklahoma, affordability is not the issue for Senator from West Virginia (Mr. BYRD) State insurance commissioner, who is of your party. It will decrease the this age cohort. Therefore, we support an in- is necessarily absent. dividual mandate to purchase health insur- Mr. KYL. The following Senator is amount of availability of insurance to ance that includes a strong inducement to necessarily absent: the Senator from people who do not have insurance take up health coverage to avoid the likeli- today. Kentucky (Mr. BUNNING). hood of adverse selection when only the The letter states it will not rein in older and healthier are motivated to enroll. Further, if present and voting, the the cost. In fact, it will increase costs The Senate Leadership bill includes a Senator from Kentucky (Mr. BUNNING) for everybody else in the State of Okla- minor penalty for non-enrollment scheduled would have voted ‘‘yea.’’ homa. It will drive up costs and in- to be phased in over a three year period be- The PRESIDING OFFICER. Are there crease the number of uninsured. It will ginning in 2014. The penalty is $95 the first year, increasing to $750 in year three. This any other Senators in the Chamber de- increase the costs for the private plans, siring to vote? penalty is inadequate to induce a large-scale negatively impacting medical pro- take up of health coverage among Okla- The result was announced—yeas 32, viders and the health delivery system homa’s uninsured. Even with generous pre- nays 66, as follows: in Oklahoma, and it will encourage mium credits, the absence of a strong non-

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00021 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.000 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD December 6, 2009 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 29601 compliance penalty will not encourage the care and Medicaid suggests that reimburse- costs for the Oklahoma State Employee and desired and necessary take-up among the ment rates for a federal public option would Education Group Insurance plan have in- young and healthy to offset the greater risk result in low reimbursement rates. creased an average of 10% annually in recent and cost of the older and unhealthier. Currently, our medical provider commu- years. (2) Guarantee Issue: nity relies on private pay to make up the dif- Of concern to us are reports from the CBO The Senate Leadership bill would require ference in cost of services over government and others that the Senate reform plan will insurers to offer individual plans on a guar- reimbursement rates resulting in higher pri- reduce premium costs. In actuality, we be- anteed issue basis without pre-existing con- vate insurance rates—more cost-shift. In ad- lieve premium costs will rise substantially if dition limitations. We support guaranteed dition, we have concerns over the potential adverse selection is allowed to occur and if coverage when accompanied by a mandate to for government to assert an unfair advan- the cost of medical care is not addressed. purchase coverage that is strongly enforced. tage that would adversely affect our insur- While the generous premium subsidies con- The absence of a meaningful penalty for non- ance markets and further stress our health templated by the bill will indeed reduce an enrollment will likely result in those with care delivery system. individual’s expense in financing their chronic or serious health issues purchasing (7) Health Insurance Cooperatives (Co-Ops): health care needs (a strategy we agree is nec- coverage while younger healthier individuals The Senate Leadership bill would provide essary to ensure affordability), health insur- simply choose to pay the nominal penalty. funding to establish non-profit health insur- ance premiums will not be lower. The result will be higher insurance rates due ance ‘‘co-ops,’’ We question the likelihood Again, I thank you for the opportunity to to a higher percentage of insured being high- that this notion will produce a lower cost op- provide this perspective and I hope that you er risk/expense individuals. tion while meeting all requirements stipu- have found it helpful. If you wish to further (3) Qualified Health Benefit Plans (QHBP): lated in the bill (specifically, benefit and sol- discuss this matter, please do not hesitate to The Senate Leadership bill would establish vency requirements). Some of the principles contact me at anytime. ‘‘Qualified Health Benefit Plans’’ and require embodied in this idea already exist. For ex- Sincerely, all individual/family plans to conform to ample, Oklahoma’s largest health insurer, KIM HOLLAND, QHBP standards by 2014. While the minimum with nearly 30% of the Oklahoma health in- Commissioner. coverage requirements are suitable for some, surance marketplace, is a mutual company Mr. COBURN. Mr. President, I yield they restrict individual choice and limit the owned by policyholders for the benefit of pol- the floor. ability of healthy and/or wealthier individ- icyholders. The PRESIDING OFFICER. The Sen- uals from self-insuring part of their risk. (8) Premium Credits: ator from New Hampshire. (4) Rating Standards: The Senate Leadership bill would provide Mr. GREGG. Mr. President, I ask The Senate Leadership bill would restrict ‘‘Premium Credits’’ for individuals with in- the use of risk factors in determining rates comes up to 400% of FPL. The majority (ap- unanimous consent to call up my to geographic area, smoking and age and proximately 65%) of Oklahoma’s uninsured amendment No. 2942. would limit age bands to a 3:1 ratio. The age population have incomes less than 250% of I see the Senator from Arkansas is band restriction will shift the cost of the FPL. Currently, 74% of Oklahoma’s total standing. I thought I was supposed to older individual to the younger individual. population has incomes of 400% of FPL or offer my amendment first. Is the Sen- Blue Cross estimates that this factor alone less. ator from Arkansas supposed to go will increase the base cost for a healthy 25- (9) Medicaid Eligibility Expansion: first? year-old by 44 percent in Oklahoma. This The Senate Leadership bill would increase Mr. PRYOR. I believe the sequence higher cost burden on the young will further eligibility requirements for Medicaid. Re- was that I would go first. discourage coverage take-up and drive up cently, the Oklahoma State Coverage Initia- Mr. GREGG. I will reserve. costs to the remaining insured’s. tive (SCI) process reached consensus and rec- The PRESIDING OFFICER. The Sen- (4) Employer Penalties: ommended that Medicaid be extended to The Senate Leadership bill would impose a adults with incomes up to 100% of FPL. The ator from Arkansas. penalty on employers who do not offer cov- Senate Leadership bill would expand eligi- AMENDMENT NO. 2939 TO AMENDMENT NO. 2786 erage equal to $750 for any employee who bility to all non-elderly persons with in- Mr. PRYOR. Mr. President, I call up purchases coverage through a state ex- comes up to 133% of FPL. This would in- amendment No. 2939. change. This penalty is inadequate to induce crease Medicaid rolls by an estimated 285,000 The PRESIDING OFFICER. The an employer to establish a plan. Most em- adults and the state’s annual cost share by clerk will report the amendment. ployers who do not offer coverage have fewer $116 million. This rough estimate is based on The legislative clerk read as follows: than 50 employees (only 37 percent of Okla- current Medicaid experience and does not in- The Senator from Arkansas [Mr. PRYOR] homa small businesses offer coverage com- clude working-aged individuals who have not proposes an amendment numbered 2939 to pared to 48 percent nationally) and most un- accessed reasonable and timely medical care amendment No. 2786. insured Oklahomans work for small busi- due to an inability to pay. Our concern is nesses. This nominal penalty creates a po- that the cost of this expansion for the state Mr. PRYOR. I ask unanimous con- tential incentive for certain small employers is severely underestimated. sent that further reading of the amend- who currently offer coverage to employees to (10) Long-Term Care: ment be dispensed with. drop their plan and simply incur the penalty The Senate Leadership bill would provide The PRESIDING OFFICER. Without at less expense than the cost of a plan—par- for a federal, voluntary long-term care insur- objection, it is so ordered. ticularly once the small employer tax cred- ance plan. This plan appears to directly com- The amendment is as follows: its sunset. pete with the private insurance market (Purpose: To require the Secretary to pro- (5) State-Based Health Insurance Ex- based on reasons other than need. vide information regarding enrollee satis- changes: (11) Anti-Trust Exemption: faction with qualified health plans offered The Senate Leadership bill would require The Senate Leadership bill would leave in through an Exchange through the Internet the formation of state-based exchanges from place the anti-trust exemption established portal) which individual coverage would be solely by the McCarren-Ferguson Act. We support On page 134, between lines 10 and 11, insert available and small group insurance may be such a decision. This exemption has long the following: purchased. While we support the state-based provided for a more competitive insurance (4) ENROLLEE SATISFACTION SYSTEM.—The exchange concept and are currently in the marketplace and has facilitated solvency Secretary shall develop an enrollee satisfac- planning stages for a similar concept here in among carriers. tion survey system that would evaluate the Oklahoma, the infrastructure costs have (12) Controlling Cost: level of enrollee satisfaction with qualified been estimated in the millions of dollars. In As mentioned in the opening of this letter, health plans offered through an Exchange, the absence of a financial grant, current coverage is essential to increasing access to for each such qualified health plan that had state budget limitations will preclude Okla- affordable health care. However, this bill more than 500 enrollees in the previous year. homa from making the necessary investment does very little to address rapidly increasing The Exchange shall include enrollee satisfac- to create the exchange. health care costs. Data shows that the num- tion information in the information provided (6) Public Health Insurance Option: ber one driver in health insurance premium to individuals and employers through the The Senate Leadership bill would allow for costs are increased medical costs and utiliza- Internet portal established under paragraph a federal ‘‘Public Health Insurance Option’’ tion. As you know, on average, between $0.80 (5) in a manner that allows individuals to from which states may opt-out. Oklahoma and $0.90 of every premium dollar for a com- easily compare enrollee satisfaction levels would likely resist participation as long as prehensive health plan is spent directly on between comparable plans. the private insurance market remains robust benefits to policyholders. and competitive. Although the bill provides In Oklahoma, we are studying the issue of Mr. GREGG. Mr. President, I ask that the federal government would ‘‘nego- rising costs as it relates specifically to our unanimous consent that the amend- tiate’’ provider rates, experience with Medi- non-profit self-insured state plan. Medical ment of the Senator from Arkansas be

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00022 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.000 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD 29602 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 December 6, 2009 set aside so I may call up my amend- The PRESIDING OFFICER. Without program that works. He said: Medicare ment. objection, it is so ordered. ‘‘ain’t’’ government. It just ‘‘ain’t’’ The PRESIDING OFFICER. Without The Senator from North Dakota. government. objection, it is so ordered. Mr. DORGAN. Mr. President, this Well, of course, it is government. The AMENDMENT NO. 2942 TO AMENDMENT NO. 2786 issue of health care and health care re- reason he had health insurance cov- Mr. GREGG. Mr. President, I call up form has been an issue that has caused erage was because we—that is we the amendment No. 2942. a great deal of advertising and claims government, the Congress, the Amer- The PRESIDING OFFICER. The on television from both sides, back and ican people—decided we weren’t going clerk will report the amendment. forth. A substantial amount of the ad- to let people come to the end of their The legislative clerk read as follows: vertising we have seen has been totally years and not have health insurance The Senator from New Hampshire [Mr. and completely without foundation— coverage. GREGG], for himself, and Mr. CORKER, Mr. completely inaccurate. But, nonethe- Some might say: Well, yes, you put THUNE, Mr. COBURN, Mr. ENSIGN, Mr. ISAK- less, political dialogue in this country together Social Security and Medicare SON, Mr. BURR, Mr. ENZI, Mr. ALEXANDER, and now you have trouble financing it. Mr. BARRASSO, Mr. CORNYN, Mr. MCCAIN, and allows one to say whatever one wishes, That is true. That is true. We have Mr. LEMIEUX, proposes an amendment num- so the very aggressive discussion about bered 2942 to Amendment No. 2786. this issue of health care has taken on trouble financing it because of success. Mr. GREGG. I ask unanimous con- interesting tones—claims by some that We can handle success. Our country sent that the reading of the amend- Congress is working to undermine the can handle success. People are living ment be dispensed with. Medicare Program. longer and better lives these days— The PRESIDING OFFICER. Without The fact is, those of us on this side of longer and better lives—and they claim objection, it is so ordered. the aisle are the ones who created the more health care during those extra 5, The amendment is as follows: Medicare Program, at a time when 10 or 20 years they are living. (Purpose: To prevent Medicare from being most senior citizens had no health in- I have often told my colleagues that raided for new entitlements and to use surance at all. There were no insurance I have an 89-year-old uncle who runs in Medicare savings to save Medicare) companies in this country tracking the Senior Olympics. He runs the 50 At the appropriate place, insert the fol- down senior citizens and saying: Do meter, the 100 meter, and the 200 lowing: you mind if we sell you a policy for meter. He runs the 100 meter in under SEC. lll. PREVENTING THE IMPLEMENTATION health care? At a time when people’s 19 seconds at age 89. Would that have OF NEW ENTITLEMENTS THAT lives were going to need an increasing happened 30 years ago? Not likely. But WOULD RAID MEDICARE. people are living longer and healthier (a) BAN ON NEW SPENDING TAKING EF- claim on health care benefits, were in- FECT.— surance companies tracking them down lives and it causes some strain on So- (1) PURPOSE.—The purpose of this section and saying: Can I do business with you? cial Security and Medicare, but we can is to require that savings resulting from this Of course they weren’t. Over half the deal with success. Surely, we can deal Act must fully offset the increase in Federal American people had no access to with success. spending and reductions in revenues result- Now we are talking about a system of health insurance. Folks reaching the ing from this Act before any such Federal health care that doesn’t work for ev- end of their lives, retired, would lay spending increases or revenue reductions can erybody or it doesn’t work very well their head down on their pillow at occur. for many people and it works very well night and wonder if tomorrow would be (2) IN GENERAL.—Notwithstanding any for some others. But should we do other provision of this Act, the Secretary of the day they would get sick and have nothing or should we decide to try to the Treasury and the Secretary of Health no health insurance coverage; and won- and Human Services are prohibited from im- tackle this question? der if they would get sick, who would I walked into a restaurant about 2 plementing the provisions of, and amend- treat them or how they would find the ments made by, sections 1401, 1402, 2001, and weeks ago, and I saw what several of 2101, or any other spending increase or rev- money to provide for themselves. So my colleagues have seen: advertise- enue reduction provision in this Act until the fact is, this Congress created some- ments on the wall. This particular res- both the Director of the Office of Manage- thing called Medicare at a time when it taurant, as you walk through the door, ment and Budget (referred to in this section was decided that maybe we should put has a plate glass window up to the ceil- as ‘‘OMB’’) and the Chief Actuary of the Cen- together a program to give senior citi- ing, and it had a couple of advertise- ters for Medicare and Medicaid Services Of- zens an opportunity to be covered with ments on it. Both of them were adver- fice of the Actuary (referred to in this sec- health care. tion as ‘‘ CMS OACT’’) each certify that they tisements for people who needed to It was decried as socialism—unbe- raise money to try to pay for their project that all of the projected Federal lievable—when we tried to put together spending increases and revenue reductions health care costs—spaghetti dinners, resulting from this Act will be offset by pro- this government program to provide bake sales, various things to ask people jected savings from this Act. Medicare for senior citizens. Some old to come and chip in some money for (3) CALCULATIONS.—For purposes of this guy in a little town in North Dakota their health care needs. section, projected savings shall exclude any one night, at a town meeting, got up, Let me read a few of them. I will not projected savings or other offsets directly re- and he was so angry with the govern- read the name, but this one is a benefit sulting from changes to Medicare and Social ment. He shook his hand as he spoke. for Chris’s family: A spaghetti feed and Security made by this Act. He was a thin, older guy, and his neck (b) LIMIT ON FUTURE SPENDING.—On Sep- silent auction is going to be held from tember 1 of each year (beginning with 2013), was coursing out and bulging so that I 5 to 7:30 p.m. to benefit Chris. He is a the CMS OACT and the OMB shall each issue thought he was going to have a heart sheriff’s deputy who was shot in the an annual report that— attack right there, shouting about the head and the abdomen while on duty (1) certifies whether all of the projected government. At the end of the meeting, and is still recovering at a rehabilita- Federal spending increases and revenue re- an elderly woman took me aside and tion hospital outside of Denver, CO. ductions resulting from this Act, starting said: You know what, I hope you are They will have a spaghetti feed and si- with the next fiscal year and for the fol- not upset with Ernie because he’s been lent auction to try to raise the funds to lowing 9 fiscal years, are fully offset by pro- jected savings resulting from this Act (as pretty emotional about a lot of things. benefit that family for their needs. calculated under subsection (a)); and He just had open heart surgery and he Here is a spaghetti supper, silent auc- (2) provides detailed estimates of such gets kind of emotional about things. tion, bake sale, free-will offering for spending increases, revenue reductions, and So I saw the gentleman as he was supper or donations to be made to the savings, year by year, program by program leaving, and I sidled up to him and I Duane fund at the Community Na- and provision by provision. said: I understand you just had open tional Bank. He has stomach cancer Mr. PRYOR. Mr. President, I ask heart surgery, and he said: Yeah. So I that has spread to other areas and is unanimous consent that no further asked him if his surgery was covered undergoing various treatments and amendments or motions be in order by Medicare, and he said it was. I said: needs help with medical and living ex- today. Well, there is at least one government penses.

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00023 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.000 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD December 6, 2009 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 29603 This is what you see on the side of teresting they do not come to the floor teeth, you have a television set there the wall in cafes, posted to a bulletin of the Senate offering an amendment someplace, and they are saying to you: board downtown: A burger supper and that would abolish Medicare. I don’t Do you know what you should be free-will offering to be held for Amy. In understand—if, in fact, they really do doing? You should be going to talk to July, Amy was diagnosed with uterine not like this at all, they should be of- your doctor. You should talk to your cancer, which has metastasized to the fering an amendment that abolishes doctor and see whether the purple pill lymph nodes. She has had surgery and the Medicare Program, saying it is just is right for you. is now undergoing chemotherapy radi- not worthy, to have a system in which I don’t know what the purple pill is, ation and needs to raise funds for the government tries to guarantee but the television commercial is pretty health care costs. health care for America’s seniors. The seductive. You almost feel like: I ought Here is a pancake breakfast to be reason I think they do not is they to find a doctor someplace; maybe I am held for Sean in the school cafeteria. agree with Medicare. They believe missing something; maybe the purple Scrambled eggs, pancakes, and sausage Medicare should exist, and as a result, pill is right for me. will be served, and there will be a free- they support a form of government The list go goes on and on. Flomax, will offering. Sean’s infant daughter health care, at least for senior citizens. Lipitor—you name it, they are adver- was born with a heart defect and needs What I want to do briefly—I will talk tising it relentlessly. Go ask your doc- corrective surgery and a lengthy stay more about that later. I am going to tor whether these pills are right for in the hospital. The staff is hosting the offer an amendment. I expect it will be you. event to defray the expenses so they tomorrow night or Tuesday. The problem is, the American people, can provide the funds to try to afford I see Senator GRASSLEY is on the with respect to the price of prescrip- this very expensive medical treatment. floor. He has been a cosponsor of this tion drugs, are charged the highest Joyce is the mother of Brandy. Brand legislation, Senator SNOWE, Senator prices in the world. Not even close— is a 16-year-old who was involved in a MCCAIN and others—many on my side— brand-name prescription drugs cost car accident weeks after her parents Senator STABENOW. There are a lot of much more here than anywhere else in decided to give up their health care folks who have worked on this, the the world. I have in my desk something I would coverage so they could afford mortgage issue of prescription drug importation. like, by consent, to show. These are payments. The family had a meatball I want to make a couple of comments two bottles of Lipitor. This is, by the and mashed potato dinner benefit last about that. I have not been on the floor way, the most popular cholesterol-low- month to help pay for Brandy’s health speaking about the health care much ering drug in America. These bottles, care needs. until now, and I will be offering this as you can see, are the same shape. I have a long list. The list goes on, amendment; I guess it will either be to- These pills are made in the same place. and one wonders whether we should be morrow evening or I expect it to be on They are made in Ireland and then oblivious to that, that we walk into Tuesday. But I want to make a couple shipped around the world. This bottle the business places in the downtowns of comments about it because I think was shipped to the United States. This and the Main Streets of our commu- it is very important. I don’t think you can leave the issue bottle, with 20-milligram tablets of nities and see that there are many peo- of health care, having tried to do Lipitor, was shipped to the United ple who have to have a spaghetti sup- things about the escalating costs— States. You get to buy them as a U.S. per or burger feed to see if they can some people talk about bending the consumer for $4.48 per tablet. This bot- raise enough money just to get to the cost curve, whatever that means. All I tle—one is red, one is blue, same size, hospital, just for transportation, let know is, putting the brakes on increas- same pills, same company—this bottle alone the surgery, let alone the med- ing costs at the time they are sky- went to Canada, same 20-milligram ical treatment. rocketing is important for businesses, tablets. No, it was not $4.48, which the I think it is the worst, not the best of for families, for individuals. The ques- American consumer paid, it was $1.83. our political system that when we de- tion is, What about prescription drugs? It does not matter whether it is Can- bate these things, there is so much How can we possibly leave that subject ada, Italy, Spain, Germany, France—I misinformation, so much bad informa- behind? would cite exactly the same numbers tion that is alleged about legislation to There are a whole lot of people in in terms of the American people being try to deal with health care. this country who are taking prescrip- told they should be paying double, tri- It is interesting to me, I do not know tion drugs to manage their diseases ple, in some cases quadruple what of an attempt of a government take- and keep them out of an acute-care bed other people are paying for exactly the over of the health care system. I have in a hospital. Cholesterol-lowering same prescription drug. heard it 1,000 times on this floor. I am medicine, blood pressure-lowering med- On this chart, this represents infla- not familiar with any legislation that icine—a whole lot of people take both tion—the yellow line. This represents has been discussed that represents a every day of their lives and do so to the increased prices for prescription government takeover of health care. I manage health care problems. Yet drugs—the red line—which I think am just not familiar with it. Maybe it what they see with brand-name pre- demonstrates clearly why something exists in some cubbyhole someplace, scription drugs is a dramatic increase ought to be done. but I have not seen it. But I know why in prices. I want to just give some ex- A group of us have put together a the allegation comes to the floor every amples. piece of legislation that is simple, and, day—because it works. Scare the devil This year alone, the average price of in my judgment, very effective in ad- out of people. Somebody is trying to brand-name prescription drugs has dressing this problem that the Amer- have a complete government takeover gone up 9.2 percent, well over quad- ican people are charged the highest of the health care system. I wouldn’t ruple the rate of inflation. Justifica- prices in the world for brand-name pre- support a government takeover of the tion for that? I see none. Should we do scription drugs. health care system. I wouldn’t support something about it? Should we try to An example of that, I sat on a straw it. I do support Medicare. By the way, put the brakes on some of this? I think bale out on a farm once about a year or that is a government-created system to we should. Let’s look at some exam- so ago with some people at a town make sure all citizens have access to ples. Enbrel, for arthritis, up 12 percent meeting. One of the old guys out health care because the private indus- in 2009; Nexium, for ulcers, up 7 percent there—he was about 80 years old—he try is not going to get there. They in 2009; Lipitor, up 5 percent; Singulair, said: My wife and I have driven to Can- didn’t prior to Medicare, and they for asthma, up 12 percent; Plavix, up 8 ada every 3 months so she could buy wouldn’t now if we didn’t have Medi- percent; Boniva, for osteoporosis, up 18 Tamoxifen to treat her breast cancer. care. percent this year. I said: Why did you do that? The very people who come and talk All of us understand—you watch tele- He said: Because we can’t afford to about government health care, it is in- vision in the morning and brush your buy Tamoxifen in the United States. I

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00024 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.000 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD 29604 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 December 6, 2009 bought it for one-fifth of the price in them to be profitable. I want them to for a stew I was not part of making. Canada of what it would cost us. My be successful. I want them to produce What I do care about is a whole lot of wife has been fighting breast cancer— the new miracle lifesaving drugs, and folks going to the grocery store where in her late seventies now—for 3 years, by the way, much of that comes from the pharmacy is in the back of the and the only way we could afford the public investments we make in the Na- store and they are trying to figure out, drug was to drive into Canada. tional Institutes of Health. But I just what do these drugs cost me this time Most people cannot drive into Can- want them to change their pricing when I fill them so I know how much ada. There is an informal opportunity strategy. Why should the American money I have left to buy food. Over and for people to bring back a 3-month sup- people be paying the highest prices in over in this country, people are making ply on their person if they go to Can- the world? those choices. There is no excuse for a ada. Most Americans cannot possibly Europe has had a strategy—it is 9-percent increase in these brand-name do that. But the same drug is sold all called parallel trading—that they have prescription drugs this year, in antici- over the world by the major had in place over 20 years. If you are in pation of health care reform. drugmakers, and the difference is they England and want to buy a drug from The fact is, health care reform ought charge the highest prices to the Amer- France, no problem. If you are in Spain to contain the kinds of things that ican people. and want to buy a drug from Italy, no begin to put brakes on this. The question is this: Why shouldn’t problem. They have done it for 20 years I am not saying you put the brakes the American people have some free- successfully. Somehow, people are sug- on it by imposing government pricing. dom—the freedom to shop for that gesting that we can’t do what the Eu- I am saying you put the brakes on it by same FDA-approved drug wherever it is ropeans do? That is nonsense. giving the American people the free- sold if it is sold at a fraction of the We are going to offer this legislation: dom to access those drugs where they price? The answer is, they should have Myself, Senator MCCAIN, I mentioned are sold at a fraction of the price they that freedom. Our legislation gives Senator STABENOW, Senator GRASS- are sold here. And you give the Amer- them that freedom. LEY—there are so many Members of the ican people that freedom, I guarantee I assume there will be people coming Democratic and Republican side on you, they will shop where they get the here and saying: If you pass this legis- this. We will offer this legislation, and best price on identical drugs, FDA ap- lation, that allows the American peo- I hope we will have the 60 votes nec- proved. It will force the pharma- ple to access, through pharmacists or essary to pass it. I hope finally, at ceutical industry to reprice drugs in through registered wholesalers, these last—at long, long last—we will have the United States. identical FDA-approved drugs for a enough people standing on the floor of A couple quick points in conclusion. fraction of the price. If you do that Senate who will say: You know what, I President Barack Obama was a cospon- somehow, we are worried we will have am on the side of the American people sor of this legislation last year when he an unsafe drug supply, we are worried here. I am not interested in having the was a Senator. The Chief of Staff at the about counterfeit drugs. White House, Rahm Emanuel, was one In this legislation I put together with American people pay the highest prices in the world for prescription drugs. of the leaders in the House on this leg- my colleagues, Senator SNOWE, Senator How about some fair pricing for a islation last year when he served in the STABENOW, and Senator GRASSLEY—a wide range, bipartisan group of Sen- change, fair pricing for the American House. It tells you a little something ators—that is pretty unusual. This is a people? And how about some freedom, about the breadth of support that ex- bipartisan amendment, by the way. freedom for the American people to ac- ists or existed for this. Somebody told But in our legislation, we have the sig- cess those identical drugs where they me at the door as I came in: We are not nificant changes that are necessary to are sold at a fraction of the price? Why sure the White House is supporting ensure safe drug supply, not just those restrict the freedom of the American this. I fully expect the White House to you would ship in but those you buy people? Everybody talks about this support an amendment they supported here. We talk in our legislation about being a global economy. Well, that is last year in the Senate. batch lots and pedigree and a whole se- so when it benefits everybody else, but There are big issues and small issues. ries of things. So you track every drug what about a global economy that ben- This issue is an important issue. A lot right back through the chain of cus- efits the consumer when they want to of us have worked for a long time to tody, right to its manufacturer, and access an FDA-approved drug when it get it right. We have been thwarted by that is something we do not do today. is sold elsewhere for a half, quarter, or a very powerful industry that has a lot When we offer this, the question is, eighth of the price? of friends in this town. I am hoping the Do we have the votes to get this Let’s give people a little freedom. I consumers have a lot of friends as well. passed? We have tried for a long time. hear people talk about freedom on the A lot of people are out there struggling We have been rebuffed here and there floor of the Senate. This will be a bill to try to figure out how to afford the for various reasons. in which we decide whether we want to prescription drugs they need to take. A There is a supposed ‘‘deal’’ that has give the American people the freedom whole lot of folks are deciding, I guess been struck with the pharmaceutical to access those low-cost prescription what I will do is get the prescription industry, for $80 billion. I think the drugs. drugs the doctor says I should have, pharmaceutical industry has some- I am going to have a lot to talk and I will cut them in half and see if I thing like $220 billion a year in reve- about when we offer this amendment. can make that work somehow. The nues, so that is $2.2 trillion over 10 Just this year, again, just this year next time they show up at the counter, years. A very small fraction of that the price of prescription drugs has in- it is 9 percent more. $220 billion was agreed to by the White creased 9.2 percent. I say knock off a little of that adver- House, I guess, and somebody here in I showed the chart. There is no rea- tising. There are different reports, but Congress. son that brand-named prescription there are some reports that say they One of my colleagues who served here drugs should be on a stepladder like spend more money on marketing pro- years ago said, ‘‘I am not for any deal that. What about the people who strug- motion and advertising than they do I am not a part of.’’ Most Members of gle, trying to figure out how to buy on research. How about knocking off a the Senate were not part of any deal. those drugs? Does anybody care about little of that advertising if that is So my expectation is, the time and them? causing some of the relentless price in- place and reason to offer this is right They say the deal that was made creases. now. We can’t do health care and leave with the pharmaceutical industry af- I want to begin the discussion be- behind this question of the cost, the fects what is called the doughnut hole, cause we will have a full discussion on price of prescription drugs. and 50 percent of the doughnut hole is this when it comes to the floor. It will I think the drug industry is a fine in- being filled if they buy brand-named— be either tomorrow afternoon or Tues- dustry. I want them to succeed. I want I don’t care about that. That is a recipe day morning. Senator MCCAIN will be

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00025 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.000 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD December 6, 2009 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 29605 joining me on the floor and many of tire health care system or the nation- toward government taking over our my colleagues on both sides of the aisle alization of health care. Supporters of health care system. But we don’t need to see if we can’t finally lift this piece these bills don’t do much better as to rely only upon sound bites. Let me of legislation and get it over the finish well. These supporters dispute the explain why I see the government-run line. It is important for the American claim but at the same time they seem plan leading to a single-payer system. people. unaware of all the new roles and re- The government-run plan may start I yield the floor. sponsibilities the Federal Government out with some rules to keep it from The PRESIDING OFFICER. The Sen- is taking on in this 2,074-page health having an unfair advantage over pri- ator from Iowa. care reform bill. I want to explain why vate insurers. Supporters might say it Mr. GRASSLEY. Mr. President, I had I see the pending bills as a government is on a level playing field with private a chance to hear the Senator from takeover of our health care system. insurers. They may say it would have North Dakota. I am not rising to speak I don’t come to the floor to scare peo- to pay the same rates, form networks, on that issue right now, but I support ple or misinform them. I am more than and be independently solvent. But I re- him in that effort. I thank him for willing to listen to different points of mind people, when they hear those working with my staff over a period of view. But if I am going to use the promises today, why something the years to develop a bill that does not phrase ‘‘government takeover,’’ I want government is doing can be competi- violate any of our trade agreements. to make sure other Senators—and par- tive and not unfair competition with That is an important aspect of the ticularly my constituents in Iowa— the private sector. work of the Senate Finance Committee know what I am talking about. I wish Those same kinds of promises were on which I serve. I look forward to that to start with the simplest example of made during the Medicare debate way debate coming up. government takeover, the government- back in 1965. Supporters of the bill in Mr. DORGAN. Will the Senator yield run plan. It is sometimes referred to as 1965 promised the new government for a question? the public option. This one seems to be health insurance program would not Mr. GRASSLEY. I yield. pretty straightforward. In other words, interfere with the practice of medicine Mr. DORGAN. I wanted to say it is so the government-run plan is a pretty and would pay fair reimbursement rare for us to have a bipartisan amend- straightforward example that people rates. But over time, as the costs of the ment. Those of us who have worked on can understand the government getting program exceeded projections, the gov- this, including Senator GRASSLEY and more involved. ernment broke promises it made. The Senator MCCAIN and many on my side, If you wonder maybe sometimes why pending bills represent a government will be faced once again with the the public at the grassroots is a little takeover of our health care system, be- charge that this would undermine safe- bit concerned about the takeover of cause I believe the same thing that ty and so on. I wanted to make the health care by the Federal Govern- happened in 1965 with Medicare, the point that Senator GRASSLEY was one ment, remember that it was only a few government breaking its promises, will of those who especially worked with months ago the Federal Government also happen with the so-called public us—and Senator MCCAIN—to make sure nationalized General Motors, as an ex- option. we had safety in this legislation, pedi- ample, and has partially nationalized In fact, I want to quote from a recent grees, batch lots, safety that does not individual banks and financial institu- Wall Street Journal article: exist now even in domestic supply, let tions—in a sense, taking a big step to- Any policy guardrails built this year can alone imported drugs. be dismantled once the basic public option ward nationalizing the whole financial architecture is in place . . . That is what has I appreciate the Senator from Iowa system with the Federal Reserve sys- always happened with government health working with us on this legislation. tem’s intimate involvement and the programs. This is a good piece of legislation. I Secretary of the Treasury’s intimate Isn’t that what Representative SCHA- look forward to seeing the Senator involvement in a lot of decision mak- KOWSKY and Representative FRANK from Iowa on the floor when we get it ing there or decisions that affect the were saying? Start in a very simple to the floor to have that debate. entire financial system. way, saying to people the private sec- Mr. GRASSLEY. I thank Senator We are here with the prospect of tor needs competition. Government DORGAN. He gave a very good descrip- building upon other things that have will give that competition. But start tion just now of how careful this piece happened this year, having the Federal with a government-run plan so you can of legislation—of which I am a cospon- Government take over health care. The end up with a single-payer system, re- sor—would go not only to make price public option is one step in that direc- gardless of how innocent it sounded transparency and price competitive- tion. I see a government-run plan, when you first started out. Slowly but ness much better for the American con- whether it is an opt out, an opt in, a surely, the government plan would sumer but to guarantee the same safe- trigger or a straight government plan take over the market. This is just one ty we would for drugs imported as we paying Medicare rates, as this coun- example of why I see the pending bills do for drugs produced here. try’s first step toward a single-payer as a government takeover of our health I rise to speak in a generic way about system. A single-payer system is a gov- care system. But there are others. this 2,074-page bill that is before us, to ernment-run system, one system for I wish to take a look at some health speak about people who have raised the entire country, as in Canada, with- insurance reforms that are within this questions about whether this bill is or out options or choices that people bill. All of these insurance reforms is not a first step toward a government have. I don’t want you to take my word aren’t bad as separate items. But cou- takeover of health care. I take the po- for it. pled with all the bad things in the bill, sition that it is definitely a first step Let’s look at a quote from Represent- it makes it difficult to sort out the in that direction. If you spend a little ative JAN SCHAKOWSKY of Illinois: good things. bit of time watching any of the cable A public option will put the private insur- For instance, I support stronger rules news stations, you will hear someone ance industry out of business and lead to sin- and regulations for private insurers. talking about how the current health gle payer. This is within the principle of the Fed- reform proposals represent a govern- I have another quote by Representa- eral Government’s constitutional ment takeover of our health care sys- tive BARNEY FRANK of Massachusetts: power to regulate interstate commerce, tem. The phrase ‘‘government take- If we could get a good public option it going way back to 1944 or 1945. The Su- over’’ has become a common talking could lead to single payer, and that’s the preme Court ruled that. Then Congress point for people opposed to this pend- best way to reach single payer. passed the McCarran-Ferguson Act and ing bill. Unfortunately, these oppo- Judging by these quotes, I would say gave it right back to the States to do, nents rarely explain why this bill war- both of these prominent Members of where it has been basically regulated. rants such a claim, that it is a step to- the Democratic party agree that the But this bill brings a lot of that regula- ward government takeover of the en- so-called public option is a first step tion back to the Federal Government. I

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00026 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.000 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD 29606 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 December 6, 2009 do support some stronger rules and reg- care. Especially the reason for my con- So I would like to review why I see ulations. Congress should make sure cern is the recently passed House bill the current bill as a government take- that people are not discriminated failed to include a prohibition on ra- over of our health care system. against because of preexisting condi- tioning that was in their original dis- First, there is a government-run plan tions, and people should not have to cussion draft. That discussion draft of that will drive private health plans out stay up at night worrying about wheth- the House bill, H.R. 3200, stated that of business. In fact, some Democratic er their insurance will be there when the committee should ‘‘[e]nsure that legislators have said publicly they see they get sick and need it most, just as essential benefits coverage does not it as a first step toward a single-payer you wouldn’t want your fire insurance lead to rationing of health care.’’ system. on your house canceled at the same But, unfortunately, that line was not Second, States will no longer be in time the fire starts in the house. included in the final bill. charge of their own insurance markets. Those are the kinds of reforms I say Now, that makes you wonder: When The Federal Government is going to are good in this bill and could get everybody says comparative effective- take over the responsibility of setting strong bipartisan support. But the ness research is not going to be used to premiums and defining benefits. So re- pending bills go much further than cre- ration care, then why would you object gardless of whether you are getting ating stronger rules and regulations. to a statement saying: ‘‘Ensure that your health insurance through an em- First, let’s keep in mind that under essential benefits coverage does not ployer or on your own, when you go to current law, health insurance is pri- lead to rationing of health care.’’ Why buy a new policy, the Federal Govern- marily regulated under McCarran-Fer- wouldn’t that be in the bill if that is ment is going to tell you what you can guson at the State level. State insur- what you believe? and cannot buy. If you do not buy the ance commissioners and legislatures So under these pending bills, you coverage the government has chosen set most of the rules. The health re- have the Federal Government telling for you, you could end up paying a new form proposals being debated in the private plans how much they can tax or even end up in jail under this Senate and over in the House would charge and deciding what benefits they new intrusive health insurance man- have the Federal Government take have to cover. Then the Federal Gov- date that is going to be enforced by the over these responsibilities. Under the ernment is going to tell them—again, a Internal Revenue Service. present bills, the Federal Government, Federal intervention in health care and Interestingly, an analysis of similar either through the Secretary of Health a step toward more nationalization— health reform legislation said the IRS and Human Services, or a newly cre- they are not only going to tell them would have to grow by 25 percent in ated office of health choices commis- what benefits they have to cover, but order to manage all the new taxes, fees, sioner, or an unelected Federal health then the Federal Government is going and mandates. board is going to decide what health in- to tell you that you have to buy it. By the way, I have written a letter to surance has to look like. What every Understand, as far as I know, in the the Secretary of the Treasury trying to health plan has to cover is what the 225-year history of our great country, get exactly some estimate of how much Federal Government is going to decide. the Federal Government has never said money it is going to take for the IRS It is not just a case of ending dis- you had to buy anything—buy or not to administer this program, and we do crimination. It is a case of the Federal buy anything. They do not tell you. not have an answer yet. Government saying what that health Somebody is going to say: Well, the Finally, we have the single largest insurance plan needs to look like. If States make you buy car insurance. expansion of Medicaid since its incep- your current coverage does not meet Well, under the 10th amendment, the tion. Current proposals plan to add 14 one of the bronze, silver, gold, or plat- States can do anything they want to million people to the Medicaid Pro- inum categories set up by the Federal that is not prohibited by the Federal gram—a program that States already Government—despite the President’s Government. But the Federal Govern- cannot afford. promise—you may not be able to keep ment is a government of limited power. All of this begs the question then: At what you have. So you have the Federal Government more than 2,000 pages, and about $2.5 The Federal Government is also saying you have to buy health insur- trillion in spending when fully imple- going to set a national standard for ance. But the government takeover mented, how can anyone say the pend- how much insurers can vary prices be- does not stop there. The proposed bills ing bills do not represent a government tween younger and older beneficiaries. also include the biggest expansion of takeover of health care? From the gov- These reforms will result in drastic the Medicaid Program since it was cre- ernment-run plan, to a Federal take- price increases, particularly for young- ated in 1965. The bills force 14 million over of private health insurance, to a er and healthier beneficiaries. This more Americans into Medicaid, even massive expansion of Medicaid, I find it means millions of people who are ex- though many doctors will not see Med- hard to call the pending bills anything pecting lower costs as a result of re- icaid patients. Under current law, the else. form will end up paying higher pre- government already pays for about 50 The American people want lower miums. percent of health care. But with the costs, higher quality, and better ac- So the Federal Government will de- new subsidies and massive Medicaid ex- cess. That is clear. I share these goals, cide how much plans can charge and pansion, the Federal Government will but I cannot support any bill that I be- what benefits can be covered. To help eclipse the private market when it lieve hands our private system of medi- make these decisions, the Federal Gov- comes to paying for health care serv- cine over to a bunch of Washington bu- ernment will have a newly created ices. reaucrats. That is not what my con- comparative effectiveness research pro- I am sure some of my colleagues saw stituents want, and it is not what this gram. This program would be similar recently released data from the inspec- country needs. to the ones in Great Britain and other tor general showing that about 12 per- I yield the floor. foreign governments that decide which cent of Medicare payments were pay- The PRESIDING OFFICER. The Sen- treatments you can and cannot have. ment errors that could be the result of ator from Alabama. I want everyone to understand that fraud, waste, and abuse. It is no wonder Mr. SESSIONS. Mr. President, I the principle of comparative effective- then that Medicare is scheduled to be thank Senator GRASSLEY for his leader- ness research in and of itself is not insolvent within the next 10 years. ship on this issue. something I oppose because I think Clearly, the government cannot af- I am going to share some facts and when it is used as a way of informing ford or even manage the programs it fictions that are relevant to this bill. I patients and providers about best prac- has now. But here we are debating the think it will explain to anybody who tices, it is a good thing to have. But I single largest expansion of government looks at it carefully why Senator am also worried this research could be health care in history embodied in this GRASSLEY and others who hoped to be used as a tool for government to ration 2,074-page bill. able to support this legislation are not

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00027 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.000 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD December 6, 2009 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 29607 able to support it. It is why I am not mented, the first 10 years of full imple- physicians is going to drop 23 percent able to support it. mentation costs $2.5 trillion, three in 2011 and remain at that rate—and Supporters of this legislation prom- times the number that their supporters that amounts to a $250 billion shortfall ise that it will do a number of things. claim. from 2011 through 2019. We are being told we should support it How can this happen? Well, Senator So, they ask: How can we figure out and vote for it. But it does not do those REID and whomever he selected met how to do this, how to make this bill things that are advertised of it. I wish down the hall in secret, and they deficit-neutral and less than $900 bil- it did. I wish we could create some- talked about the numbers, and they lion? We don’t want to admit that our thing for nothing. I wish we could were worried about how to meet the bill is not a $130 billion surplus over 10 make these numbers balance, but they president’s claim that their bill would years if we have to pay the doctors, do not. not cost more than $900 billion. They which we are going to pay one way or Earlier today, one of our colleagues were trying to promise it would be only the other. If we pay the doctors, it will on the other side of the aisle said: We $848 billion, but the numbers were not actually be a $120 billion deficit on that would not do anything about hurting adding up. issue alone. So what can they do? They Medicare. We Democrats, 45 years ago, So what did they do? They delayed came up with a budgetary gimmick. created the program, and we would not the implementation of the expendi- They just took physician pay out of do anything to hurt it. tures the bill promises for 5 years. So the health care reform package, and Well, then, we are going to have a they delay the expenditures, the bene- decided to try to pass it on the floor of vote. We are going to have a serious fits they promised, for 5 years, but the the Senate, with every penny of it, $250 vote coming up, probably tomorrow, on taxes start now. That way, you can billion, going to the deficit—not a the Gregg amendment. Senator Judd take the first 10 years of the bill, and penny of it paid for. Gregg is one of the most knowledgeable it looks pretty good because you only So if you bring the physician pay persons in the Senate on Medicare. He have expenditures—the big expendi- issue back up, and add it to the health has worked hard on it for a number of tures—for 5 years, and you have rev- care reform bill that we are supposed years. He chaired the Budget Com- enue for 10. Well, this is flimflammery. to be passing, you end up at the begin- mittee when Republicans were in the It is not honest. The numbers do not ning of the whole thing with a $120 bil- majority, and now he is the ranking add up. lion deficit. So, to avoid that, sup- Republican. Everybody respects him. If you examine the bill’s costs when porters of this bill moved physician He has offered an amendment that it is fully implemented for 10 years, it pay out of the bill and tried to pass it. would make sure we do not raid Medi- is $2.5 trillion, $2,500 billion. A lot of the Democratic colleagues care—and that is exactly what this bill So I would say, first of all, that is a wouldn’t vote for that. It failed be- would do. If this bill does not raid fiction. The fact is that these numbers cause, out in the open before the whole Medicare, then why wouldn’t every- are not accurate. They did not do what world, people did not want to vote, body vote for the Gregg amendment? they said they were going to do. The after all of this deficit that we are im- We are entering a time in which we bill does not do what it promises. posing on our children and grand- will have a defining moment. Some of No. 2, the President told us in a joint children, for another $250 billion hit to my colleagues will say they voted for session of Congress that he will not the debt. How can we continue to do the Bennet amendment. As we said sign a bill that adds one dime to the that? So it was voted down, thank then, the amendment meant nothing. deficit. Well, that is pretty good. In goodness. But the problem is still It did not do what they said it would do fact, they produced this $848 billion there. You have to raise $494 billion in because it did not prohibit the raiding bill, they say, that it is going to only taxes to make this bill deficit-neutral. of the Medicare trust fund. But my col- cost $848 billion. They say, boy, give us Instead of using that money to fund leagues wanted to adopt it. This is why a pat on the back. Not only is it going new entitlement programs, maybe we people are angry with Congress—it was to be deficit neutral and not add to the ought to use that tax revenue to pay a cover amendment. debt, it is going to increase revenues for the program we have: Medicare, the For a day or two it seemed as if the by $130 billion, and we will pay down one that is slipping into serious de- cover may have worked; that by voting the debt. Have you heard that? We are fault, one in which we are not paying for this amendment, my colleagues going to pay down the debt. the doctors what we should be paying who are supporting this legislation But they had a number of problems. them for the work they do. If we are could say they voted to not hurt Medi- One of them was they promised to pay going to raise taxes, maybe that is care. They could go back home and the doctors a reasonable fee. Under the what we ought to do with the money— say: I voted for the Bennet amendment. existing law, the way it was passed in and not create a new entitlement ben- Well, the New York Times—along one of the budget balancing acts, doc- efit that is going to grow and far ex- with anybody who takes the time to tors are set to take a 23-percent reduc- ceed costs projections in the years to look at the amendment—said it was tion in their payments in 2011 for doing come and further jeopardize our spend- meaningless. And the New York Times Medicare work—23 percent—which we ing. As I think most of my colleagues supports the legislation. It is meaning- know we cannot allow to occur. Doc- are pretty well informed, under the less. It was absolutely meaningless. tors will quit doing Medicare. Many of present spending program we will dou- The amendment does not do anything, them are having difficulty continuing ble the entire debt of the United States and will not protect the Medicare pro- to see Medicare patients now. We can- of America in 5 years. Then, in 10 gram. not cut them 23 percent. So what did years, we will triple it. It will go from We are going to have an opportunity the writers of this bill do? They in- $5.7 trillion to over $17 trillion in 10 to deal with that tomorrow. The num- creased the doctors’ reimbursement for years. We cannot keep doing this. It is bers in this bill are not adding up. The 1 year. Next year, they give them a unsustainable and the American people way this bill is being financed in part one-half-percent increase. But in the know it. is by a $465 billion raid on Medicare. next 9 years, their budget assumptions So, the cost promises of the bill are Well, I am going to raise a number of assume the doctors will take a 23-per- not being met. There are a lot of other issues, but I will not do them all today, cent cut. That is absolutely bogus. We points too. I would just first mention so you can rest with some relaxation. are not going to cut the doctors 23 per- the fact that it was contended at the As to some of the things that are cent. We cannot do so and maintain beginning that this reform bill ought critical to whether a person can sup- health care in America for our seniors. to be able to keep us from spending so port this kind of reform, the fiction And yet, that is one of the major prob- much of our gross domestic product on that has been stated is that the bill’s lems with Medicare today: we are not health care. It is a serious matter. We net total cost is $848 billion. Well, in on a sound financial basis. This bill as- definitely need to wrestle with the cost truth, when the bill is fully imple- sumes that Medicare expenditures for of health care. It is not an easy thing

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00028 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.000 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD 29608 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 December 6, 2009 to deal with. But what does this bill without breaching the promise we be used to fix the problems in the Medi- do? It promised it was going to do made to our seniors—if we could save care Program. something about that. It was going to money there, let me ask my colleagues: Some Democrats have argued that we bend the cost curve. Our cost curve on What would you do with the money are not creating a new entitlement pro- health care is currently going up, and that is saved? Would you use it to try gram. They are simply wrong. Just like this bill was going to bend it down- to keep Medicare healthy, or would you Social Security, Medicare and Med- ward, contain the growth of health create a new entitlement program with icaid, this bill will commit the Federal care as a percentage of the gross do- it and raid the seniors’ money? Treasury to paying for these new sub- mestic product in America, and free up Well, that is what has happened. The sidies for the uninsured forever. money for economic growth and jobs savings that are from Medicare need to That means that, as Federal spending and other important items. be kept in Medicare so that we can continues to grow, this new program Well, does the bill do that? No, it keep the program from going insolvent will continue to grow. It will crowd out doesn’t. As Senator THUNE has pointed in 2017. We should use that money, other federal spending priorities, like out, and others have, health care cur- those savings to help the seniors. education and national defense. rently is about 17 percent of our gross Remember, Medicare is funded and Any future attempts to modify or re- domestic product. Of the total wealth has been funded by people such as Bill strain its growth will be met by cries of America, its productivity, 17 percent Eberle from Huntsville, AL, who wrote of indignation, arguing that cuts would goes to providing health care. If this me about it. He said he paid into the devastate access to health care. If any- bill is passed, it will increase to 21 per- fund for 40 years and now he is ready to one has any doubts, they should look cent, and that is a faster rate of in- draw down benefits. He didn’t get any at the transcripts from our debate on crease than if we didn’t pass this bill at benefit from his years of Medicare the Deficit Reduction Act. all. That is a big deal. I thought we had taxes until he hit 65. But now he is In 2005, Congress tried to reduce a promise and a commitment that the ready to draw, and we are considering Medicare spending by about $20 billion bill would reduce the percentage of taking his money and spending it on and enact modest reforms to the Med- growth there. Indeed, it will not. somebody else. He doesn’t like that. He icaid Program. These programs would There are a number of other issues doesn’t think that is right, and he is have strengthened the long-term sol- that I will be talking about, including correct. vency of these programs and helped re- how the actual premiums for average That is why I am not able to support duce the Federal deficit. families for insurance will be going up the legislation. It doesn’t do what it In response, Senator REID called that instead of going down as has been promised. It is going to make our bill an ‘‘immoral document.’’ The jun- promised by the President and how this health care situation worse. It is going ior Senator from California said she bill will increase the deficit and not re- to create greater debt at a time when strongly opposed the cuts in the bill, duce it; how it will increase the per- our spending is already out of control. because they would ‘‘cut Medicare and centage of GDP to health care and not I thank the Chair and my colleagues. Medicaid by $27 billion.’’ decrease it; how it will increase taxes I hope as this debate goes forward that Yet today, these same Members and and how it will raid Medicare, but not we can make some improvements, al- the rest of my Democratic colleagues shore up the program. I am just going though I am not confident of the direc- want to create a new entitlement pro- to repeat this again, because it is im- tion that we are headed right now. It gram that will spend hundreds of bil- portant: This bill is a raid on Medicare. seems as though any significant at- lions of dollars. And they would pay for It cannot be disputed, in my view. The tempt to make real progress with the it by cutting $464 billion from the idea that we could take $465 billion out bill is failing. But Senator GREGG’s Medicare Program. of Medicare and put it into an entirely amendment is important. I hope my I believe these facts highlight why we new program without having any ad- colleagues will study up on it and vote need to adopt the Gregg amendment. I verse effect on Medicare is something I to preserve Medicare and to keep the don’t believe we should create a new don’t think anybody can imagine to be savings that can be obtained in Medi- entitlement program, which will per- true. care in the program, and not create a manently obligate our children and How did they do that, you might ask. new entitlement. grandchildren to pay its costs. If my Well, Senator SESSIONS, surely they I thank the Chair. colleagues insist on doing it, however, thought this through. How can they Mr. ENZI. Mr. President, I rise in at a minimum we need to guarantee say that? This is the gimmick. This is support of Senator JUDD GREGG’S that any new program has a stable and how they do it: We are not denying any amendment, which would prevent the reliable source of funding. ‘‘guaranteed’’ benefits under Medicare, Medicare cuts in the Reid bill from The Medicare cuts in this bill are nei- they say. Don’t worry, seniors. All being used to pay to create a new enti- ther stable nor reliable. your guaranteed benefits are going to tlement program to cover the unin- My Democratic colleagues have spo- be provided. Where does the $465 billion sured. ken at length about how the Medicare come from? Well, we are just going to I do not oppose covering the unin- provisions in this bill will bend the cut the providers, not your benefits. sured. Nor do I oppose reforming the growth of heath care spending. That is We are going to cut hospitals. We are Medicare Program. We should do those unfortunately far from accurate. going to cut hospice. We are going to things. If you don’t believe me, listen to cut home health care. We are going to What I oppose is the Reid bill. This is what other nationally recognized ex- cut nursing homes. We are going to cut the wrong approach to solve these perts have to say. disproportionate share hospitals that problems. According to the New York Times, treat the poor, all of these things. We The amendment offered by my friend the CEO of the world renowned Mayo are going to cut all of these institu- from New Hampshire highlights the Clinic dismissed the reforms in the bill. tions and groups that provide health main problems with the Reid bill and Dennis Cortese said the Reid bill only care, but don’t worry. You will still get suggests a better approach. took baby steps towards revamping the all of the benefits you had before. His amendment would protect the current fee-for-service system. Study after study indicates that the savings from the Medicare Program, The dean of the Harvard Medical health care providers are already oper- and prevent them from being used to School, Jeffery Flier, said that the ating on the margin. Health care will create a new entitlement. bills being considered in Congress be savaged under this bill. This would mean that this new pro- would accelerate national health care Second, if, indeed, we could save gram would not have to rely on cuts to spending. money in Medicare—and I think there Medicare to fund its operation. It I wish there were more actual re- are some savings there, and we need to would also reserve all of the money forms in this bill. I applaud some of the work at it and see what we can do taken from Medicare so that it could efforts that Senator BAUCUS included

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00029 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.001 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD December 6, 2009 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 29609 that will create incentives for coordi- Similarly, the bill also included cuts nity hospices in Oklahoma as they face nated care and rewarding providers in payments to Medicare + Choice repayment letters from CMS for mil- who provide higher quality. I believe plans. After these cuts went into effect, lions of dollars. Without help, hospices those are exactly the types of things one out of every four plans pulled out face closure and the discharge of sig- that we should be doing to improve the of the Medicare Program. Millions of nificant numbers of terminally ill pa- Medicare Program. beneficiaries then lost the extra bene- tients, possibly into more expensive Unfortunately, the savings from fits that these plans had provided. care. In fact, during last summer’s con- these actual reforms are a few pennies Given this track record, I have grave tentious debate on physician Medicare compared to the dollars of arbitrary concerns about what the Medicare cuts reimbursements, I argued at the very payment cuts included in this bill. in the Reid bill would do to Medicare least for a MedPAC study on payment According to the Congressional Budg- beneficiaries and the doctors, hospitals methodology for hospice care to evalu- et Office, all of the savings from the and other providers who treat them. ate if there is a problem with payments various policies to link Medicare pay- I have even greater concerns about and whether cap amount revisions are ments to quality and encourage better using any estimated savings from these needed. coordination of care in the Reid bill cuts to fund this new entitlement pro- I understand and greatly appreciate provide less than $20 billion in total gram for the uninsured. the value of good home health care and savings. That is why we should pass the Gregg hospice benefits. In contrast, the Reid bill includes amendment. Rather than relying on Admittedly, one of the measures con- over $220 billion in arbitrary payment cuts that could devastate the Medicare sidered yesterday would have been bet- cuts to health care providers, including Program, let’s find a stable and reli- ter than the other. The amendment hospitals, nursing homes, home health able funding source that we could use from the Senator from Massachusetts agencies and hospice providers. The to pay for health care reform. simply said that nothing in the bill Reid bill also includes an additional The Gregg amendment says that sav- should result in the reduction of guar- $120 billion in cuts to Medicare Advan- ings from any Medicare cuts should be anteed home health benefits. The prob- tage plans. reserved for the Medicare Program. lem is that access to home health is Those are not reforms. Instead they That way, if the Washington experts not a ‘‘guaranteed’’ Medicare benefit. represent the best efforts of folks in again got it wrong, we will not have al- So even though the amendment from Washington to guess how much it actu- ready spent all the savings on another the Senator from Massachusetts passed ally costs real doctors and nurses to program. 96 to 0, will it have a real impact on provide health care services to Medi- Mr. INHOFE. Mr. President, yester- protecting seniors from the loss of ac- cess to home health care? No. The bet- care beneficiaries. day the U.S. Senate voted on two These cuts are an excellent example measures, one by the Senator from ter approach was offered by the Sen- of how government price controls Massachusetts and one by the Senator ator from Nebraska. Unfortunately, the better approaches are failing by work. from Nebraska relating to home health Medicare does not negotiate payment benefits. I was unable to attend yester- party line votes. However, I com- rates with providers, like private insur- day’s session of the Senate but had I pliment the Senator from Virginia, Mr. WEBB, for his support of the motion by ers. Medicare uses price controls to set voted, I would have voted for both the Senator from Nebraska. This mo- payment rates. Experts in Washington measures. tion would have recommitted this en- then look at various reported costs, Home health and hospice benefits are tire legislation to the appropriate Sen- revenues and profits of health care pro- very important to Oklahomans. In fact, ate committee to remove the cuts to viders and then decide how much we the National Association for Home home health benefits. I think that is should pay health care providers. Care and Hospice reported that Oklaho- the best and most direct approach. I I have often said that everyone mans alone may receive a cut of over $1 think that is the most honest ap- thinks they know everything about a billion in home health and hospice ben- proach. Simply remove the cuts. For business, until they actually have to efits under this bill. I understand the the past several days we have been dis- run it. As a former small business value of home health and hospice very cussing the cuts to Medicare and espe- owner, I want to assure them, it is ac- well. In March 2007, I introduced legis- cially the cuts to Medicare Advantage. tually a lot harder than it looks. lation with Senators THAD COCHRAN, In each case, the Republicans have of- The Medicare cuts in this bill are ROGER WICKER, PETE DOMENICI, and fered motions and amendments to re- based on the efforts of folks in Wash- RICHARD SHELBY, the Preserving Access commit this massive 2,000-page health ington to decide how much it costs to to Hospice Act, to ensure America’s bill back to committee to improve it, terminally ill seniors have access to run a nursing home in Cheyenne or a namely, to remove the cuts to pro- hospice care, by providing immediate home health agency in Gillette. Based grams seniors and the disabled use. I relief for hospices impacted by the on their past track record, I don’t have was disappointed to see this most re- Medicare hospice cap and authorizing a much confidence in their abilities. cent attempt to send this massive bill MedPAC study on the cap issue. Iden- In 1997, Congress passed the Balanced back to committee to improve it fail 41 tical legislation was introduced in the Budget Act. It contained over $434 bil- to 53. lion in Medicare payment cuts. Lots of House led by Congressman JOHN SUL- I look forward to today’s debate. One really smart folks in Washington made LIVAN with many cosponsors. I intro- scheduled for a vote is on medical mal- arguments similar to those we are duced this legislation because of a practice reform. It will be very inter- hearing today about how these cuts flawed provision in Federal law which esting to see just how serious the would not harm providers or bene- required hospices to repay the Centers Democrats are about health care re- ficiaries. for Medicare and Medicaid Services, form. Currently, the bill only has a What happened after these cuts went CMS, for serving eligible patients in ‘‘sense of the Senate’’ recognizing med- into effect? Within two years, these prior years. Many small, family, and ical malpractice costs are a problem. cuts had driven four of the largest community-owned hospices faced clo- We’ll see if they think it is important nursing home chains in the Nation into sure, and patients faced losing access to really do anything about it. bankruptcy. to hospice care. In Oklahoma espe- f Vencor, Sun Healthcare, Integrated cially, hospice care companies of all Health Services and Mariner Post- sizes service a large number of Oklaho- MORNING BUSINESS Acute Network all filed for bank- mans. However, in 2005, 41 percent of Mr. BEGICH. Mr. President, I ask ruptcy. Between them, they operated the hospices providing care in Okla- unanimous consent that the Senate 1,400 nursing homes that provided care homa received letters from CMS de- proceed to a period of morning busi- for hundreds of thousands of Medicare manding repayment. Since then, I have ness, with Senators permitted to speak beneficiaries. been working to help small, commu- therein for up to 10 minutes each.

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00030 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.001 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD 29610 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 December 6, 2009 The PRESIDING OFFICER. Without amendment intended to be proposed to was ordered to lie on the table; as fol- objection, it is so ordered. amendment SA 2786 proposed by Mr. REID lows: (for himself, Mr. BAUCUS, Mr. DODD, and Mr. f HARKIN) to the bill H.R. 3590, supra. On page 466, between lines 5 and 6, insert the following: ADDITIONAL COSPONSORS SA 2943. Mr. CARPER (for himself and Mr. CONRAD) submitted an amendment intended SEC. 2305. EXTENSION OF DELAY IN APPLICA- S. 1389 to be proposed to amendment SA 2786 pro- TION OF MEDICAID PROVIDER TAX PROVISIONS TO CERTAIN MANAGED ELSON posed by Mr. REID (for himself, Mr. BAUCUS, At the request of Mr. N of Ne- CARE ORGANIZATIONS. braska, the name of the Senator from Mr. DODD, and Mr. HARKIN) to the bill H.R. 3590, supra; which was ordered to lie on the Effective as if included in the enactment of Arkansas (Mr. PRYOR) was added as a table. the Deficit Reduction Act of 2005 (Public cosponsor of S. 1389, a bill to clarify SA 2944. Mrs. BOXER submitted an amend- Law 109–171), section 6051(b)(2)(A) of that Act the exemption for certain annuity con- ment intended to be proposed to amendment of 2005 42 U.S.C. 1396b note) is amended by tracts and insurance policies from Fed- SA 2786 proposed by Mr. REID (for himself, striking ‘‘2009’’ and inserting ‘‘2011’’. eral regulation under the Securities Mr. BAUCUS, Mr. DODD, and Mr. HARKIN) to Act of 1933. the bill H.R. 3590, supra; which was ordered SA 2941. Mr. SPECTER (for himself, to lie on the table. AMENDMENT NO. 2884 Mr. WYDEN, and Mr. CASEY) submitted SA 2945. Mrs. BOXER submitted an amend- an amendment intended to be proposed At the request of Ms. STABENOW, the ment intended to be proposed to amendment name of the Senator from Minnesota SA 2786 proposed by Mr. REID (for himself, to amendment SA 2786 proposed by Mr. (Mr. FRANKEN) was added as a cospon- Mr. BAUCUS, Mr. DODD, and Mr. HARKIN) to REID (for himself, Mr. BAUCUS, Mr. sor of amendment No. 2884 intended to the bill H.R. 3590, supra; which was ordered DODD, and Mr. HARKIN) to the bill H.R. be proposed to H.R. 3590, a bill to to lie on the table. 3590, to amend the Internal Revenue amend the Internal Revenue Code of SA 2946. Mr. CASEY submitted an amend- Code of 1986 to modify the first-time 1986 to modify the first-time home- ment intended to be proposed to amendment homebuyers credit in the case of mem- buyers credit in the case of members of SA 2786 proposed by Mr. REID (for himself, bers of the Armed Forces and certain Mr. BAUCUS, Mr. DODD, and Mr. HARKIN) to other Federal employees, and for other the Armed Forces and certain other the bill H.R. 3590, supra; which was ordered Federal employees, and for other pur- to lie on the table. purposes; which was ordered to lie on poses. SA 2947. Ms. KLOBUCHAR submitted an the table; as follows: AMENDMENT NO. 2927 amendment intended to be proposed to On page 857, strike lines 5 through 25 and At the request of Mrs. HUTCHISON, her amendment SA 2786 proposed by Mr. REID insert the following: (for himself, Mr. BAUCUS, Mr. DODD, and Mr. name was added as a cosponsor of (a) IN GENERAL.—Section 1834(a)(7)(A)(iii) HARKIN) to the bill H.R. 3590, supra; which amendment No. 2927 proposed to H.R. of the Social Security Act (42 U.S.C. was ordered to lie on the table. 1395m(a)(7)(A)(iii)) is amended— 3590, a bill to amend the Internal Rev- SA 2948. Ms. SNOWE submitted an amend- enue Code of 1986 to modify the first- (1) by inserting ‘‘complex rehabilitative ment intended to be proposed to amendment power-driven wheelchair and any other’’ time homebuyers credit in the case of SA 2786 proposed by Mr. REID (for himself, after ‘‘in the case of a’’ and members of the Armed Forces and cer- Mr. BAUCUS, Mr. DODD, and Mr. HARKIN) to (2) by adding at the end the following: ‘‘In tain other Federal employees, and for the bill H.R. 3590, supra; which was ordered the case of a power-driven wheelchair that is other purposes. to lie on the table. not a complex rehabilitative power-driven SA 2949. Mr. ROCKEFELLER (for himself AMENDMENT NO. 2939 wheelchair, the following rules shall apply: and Mr. BROWN) submitted an amendment in- ‘‘(aa) The first sentence of this clause shall At the request of Mr. PRYOR, the tended to be proposed to amendment SA 2786 only apply if the length of need is at least 13 names of the Senator from Iowa (Mr. proposed by Mr. REID (for himself, Mr. BAU- months, as certified by a physician. HARKIN) and the Senator from Massa- CUS, Mr. DODD, and Mr. HARKIN) to the bill ‘‘(bb) If the individual exercises the option chusetts (Mr. KERRY) were added as co- H.R. 3590, supra; which was ordered to lie on under the first sentence of this clause and sponsors of amendment No. 2939 pro- the table. the individual discontinues use of the item posed to H.R. 3590, a bill to amend the SA 2950. Mr. ROCKEFELLER submitted an prior to end of the 13-month period that be- amendment intended to be proposed to Internal Revenue Code of 1986 to mod- gins on the date the individual exercises amendment SA 2786 proposed by Mr. REID such option, the supplier shall be subject to ify the first-time homebuyers credit in (for himself, Mr. BAUCUS, Mr. DODD, and Mr. the case of members of the Armed recovery by the Secretary of an amount HARKIN) to the bill H.R. 3590, supra; which equal to the amount (if any) by which the Forces and certain other Federal em- was ordered to lie on the table. lump-sum payment for the purchase for the ployees, and for other purposes. SA 2951. Mr. ROCKEFELLER submitted an wheelchair exceeds the total of the monthly amendment intended to be proposed to f payments for the wheelchair that would have amendment SA 2786 proposed by Mr. REID been made on a rental basis for continuous AMENDMENTS SUBMITTED AND (for himself, Mr. BAUCUS, Mr. DODD, and Mr. use of less than 13 months. PROPOSED HARKIN) to the bill H.R. 3590, supra; which ‘‘(cc) If the Secretary recovers any pay- was ordered to lie on the table. ments under item (bb), the title for the SA 2940. Mr. SPECTER (for himself, Mr. SA 2952. Mr. ROCKEFELLER submitted an wheelchair shall revert to the supplier at the MERKLEY, Mr. WYDEN, Mr. CASEY, Ms. STABE- amendment intended to be proposed to option of the supplier.’’. NOW, Mr. LEVIN, and Mr. BROWN) submitted amendment SA 2786 proposed by Mr. REID an amendment intended to be proposed to (for himself, Mr. BAUCUS, Mr. DODD, and Mr. amendment SA 2786 proposed by Mr. REID HARKIN) to the bill H.R. 3590, supra; which SA 2942. Mr. GREGG (for himself, Mr. (for himself, Mr. BAUCUS, Mr. DODD, and Mr. was ordered to lie on the table. CORKER, Mr. THUNE, Mr. COBURN, Mr. HARKIN) to the bill H.R. 3590, to amend the f ENSIGN, Mr. ISAKSON, Mr. BURR, Mr. Internal Revenue Code of 1986 to modify the ENZI, Mr. ALEXANDER, Mr. BARRASSO, first-time homebuyers credit in the case of TEXT OF AMENDMENTS Mr. CORNYN, Mr. MCCAIN, and Mr. members of the Armed Forces and certain SA 2940. Mr. SPECTER (for himself, LEMIEUX) submitted an amendment in- other Federal employees, and for other pur- tended to be proposed to amendment poses; which was ordered to lie on the table. Mr. MERKLEY, Mr. WYDEN, Mr. CASEY, SA 2941. Mr. SPECTER (for himself, Mr. Ms. STABENOW, Mr. LEVIN, and Mr. SA 2786 proposed by Mr. REID (for him- WYDEN, and Mr. CASEY) submitted an amend- BROWN) submitted an amendment in- self, Mr. BAUCUS, Mr. DODD, and Mr. ment intended to be proposed to amendment tended to be proposed to amendment HARKIN) to the bill H.R. 3590, to amend SA 2786 proposed by Mr. REID (for himself, SA 2786 proposed by Mr. REID (for him- the Internal Revenue Code of 1986 to Mr. BAUCUS, Mr. DODD, and Mr. HARKIN) to self, Mr. BAUCUS, Mr. DODD, and Mr. modify the first-time homebuyers cred- the bill H.R. 3590, supra; which was ordered HARKIN) to the bill H.R. 3590, to amend it in the case of members of the Armed to lie on the table. the Internal Revenue Code of 1986 to Forces and certain other Federal em- SA 2942. Mr. GREGG (for himself, Mr. ployees, and for other purposes; as fol- CORKER, Mr. THUNE, Mr. COBURN, Mr. ENSIGN, modify the first-time homebuyers cred- lows: Mr. ISAKSON, Mr. BURR, Mr. ENZI, Mr. ALEX- it in the case of members of the Armed ANDER, Mr. BARRASSO, Mr. CORNYN, Mr. Forces and certain other Federal em- At the appropriate place, insert the fol- MCCAIN, and Mr. LEMIEUX) submitted an ployees, and for other purposes; which lowing:

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PREVENTING THE IMPLEMENTATION (C) in paragraph (7)— (B) Be capable of implementing infrastruc- OF NEW ENTITLEMENTS THAT (i) in subparagraph (B)(i), by striking ture and health care delivery modifications WOULD RAID MEDICARE. ‘‘2013’’ and inserting ‘‘2012’’; necessary to enhance health care quality and (a) BAN ON NEW SPENDING TAKING EF- (ii) in subparagraph (C)— efficiency, as determined by the Secretary in FECT.— (I) in clause (i), by striking ‘‘2013’’ and in- accordance with the Dartmouth Atlas of (1) PURPOSE.—The purpose of this section serting ‘‘2012’’; Health Care. is to require that savings resulting from this (II) in clause (ii), by striking ‘‘2014’’ and in- (C) The participant’s cost and intensity of Act must fully offset the increase in Federal serting ‘‘2013’’; care do not meet the definition of high value spending and reductions in revenues result- (III) in clause (iii), by striking ‘‘2015’’ and health care. ing from this Act before any such Federal inserting ‘‘2014’’; (3) ADDITIONAL CRITERIA.—In addition to spending increases or revenue reductions can (IV) in clause (iv), by striking ‘‘2016’’ and the criteria described in paragraphs (1) and occur. inserting ‘‘2015’’; and (2), the participants in the Collaborative (2) IN GENERAL.—Notwithstanding any (V) in clause (v), by striking ‘‘2017’’ and in- shall meet the following criteria: other provision of this Act, the Secretary of serting ‘‘2016’’; and (A) Have a legal structure that would allow the Treasury and the Secretary of Health (iii) in subparagraph (D)(ii)(I), by striking the participant to receive incentive pay- and Human Service are prohibited from im- ‘‘2012 and 2013’’ and inserting ‘‘2011, 2012, and ments under this section. plementing the provisions of, and amend- 2013’’. (B) Agree to report on quality, cost, and ef- ments made by, sections 1401, 1402, 2001, and (2) CONFORMING AMENDMENT.—Section ficiency in such form, manner, and frequency 2101, or any other spending increase or rev- 1886(b)(3)(B)(viii) of the Social Security Act, as specified by the Secretary. enue reduction provision in this Act until as amended by section 3001, is further (C) Provide care to patients enrolled in the both the Director of the Office of Manage- amended— Medicare program. ment and Budget (referred to in this section (A) in subclause (V), by striking ‘‘2012’’ and (D) Agree to contribute to a best practices as ‘‘OMB’’) and the Chief Actuary of the Cen- inserting ‘‘2011’’; and network and website, that is maintained by ters for Medicare and Medicaid Services Of- (B) in each of subclauses (VIII) and (IX), by the Collaborative for sharing strategies on fice of the Actuary (referred to in this sec- striking ‘‘2013’’ each place it appears and in- quality improvement, care coordination, ef- tion as‘‘ CMS OACT’’) each certify that they serting ‘‘2012’’. ficiency, and effectiveness. project that all of the projected Federal (b) ADVANCING IMPLEMENTATION OF NA- (E) Use patient-centered processes of care, spending increases and revenue reductions TIONAL PILOT PROGRAM ON PAYMENT BUN- including those that emphasize patient and resulting from this Act will be offset by pro- DLING.—Section 1866D(a)(3) of the Social Se- caregiver involvement in shared decision- jected savings from this Act. curity Act, as added by section 3023, is making for treatment decisions. (3) CALCULATIONS.—For purposes of this amended by striking ‘‘2013’’ and inserting (F) Meet other criteria determined to be section, projected savings shall exclude any ‘‘2012’’. appropriate by the Secretary. projected savings or other offsets directly re- SEC. 3017. INTEGRATED HEALTH CARE SYSTEM (c) COLLABORATIVE INITIATIVE.— sulting from changes to Medicare and Social COLLABORATION INITIATIVE. (1) IN GENERAL.—Beginning January 1, 2010, Security made by this Act. (a) IN GENERAL.—In order to improve the Collaborative shall begin a 2 year devel- (b) LIMIT ON FUTURE SPENDING.—On Sep- health care quality and reduce costs, the opment phase in which initial participants tember 1 of each year (beginning with 2013), Secretary of Health and Human Services (in share the quantitative and qualitative meth- the CMS OACT and the OMB shall each issue this section referred to as the ‘‘Secretary’’) ods through which they have developed high an annual report that— shall develop, in consultation with major in- value health care followed by a dissemina- (1) certifies whether all of the projected tegrated health systems that have consist- tion of that learning model to additional Federal spending increases and revenue re- ently demonstrated high quality and low participants of the Collaborative. ductions resulting from this Act, starting cost (as determined by the Secretary and (2) COORDINATING MEMBER.—In consultation with the next fiscal year and for the fol- verified by a third party) a collaboration ini- with the Secretary, the Collaborative shall lowing 9 fiscal years, are fully offset by pro- tiative (referred to in this section as ‘‘the select a coordinating member organization jected savings resulting from this Act (as Collaborative’’). The Collaborative shall de- (hereafter identified as the Coordinating Or- calculated under subsection (a)); and velop an exportable model of optimal health ganization) of the Collaborative. (2) provides detailed estimates of such care delivery to apply value-based measure- (3) QUALIFICATIONS.—The Coordinating Or- spending increases, revenue reductions, and ment, integrated information technology in- ganization will have in place a comprehen- savings, year by year, program by program frastructure, standard care pathways, and sive Medicare database and possess experi- and provision by provision. population-based payment models, to meas- ence using and analyzing Medicare data to urably improve health care quality, out- measure health care utilization, cost, and SA 2943. Mr. CARPER (for himself comes, and patient satisfaction and achieve variation, such as The Dartmouth Institute and Mr. CONRAD) submitted an amend- cost savings. for Health Policy and Clinical Practice. The (b) PARTICIPATION.—Prior to January 1, ment intended to be proposed to Coordinating Organization shall be respon- 2010, the Secretary shall determine 5 initial sible for reporting to the Secretary as re- amendment SA 2786 proposed by Mr. participants who will form the Collaborative quired and for any other requirements REID (for himself, Mr. BAUCUS, Mr. and at least 6 additional participants who deemed necessary by the Secretary. DODD, and Mr. HARKIN) to the bill H.R. will join the Collaborative beginning in the (4) RESPONSIBILITIES.—The Coordinating 3590, to amend the Internal Revenue fourth year that the Collaborative is in ef- Member shall— Code of 1986 to modify the first-time fect. (A) lead efforts to develop each aspect of homebuyers credit in the case of mem- (1) INITIAL PARTICIPANTS.—Initial partici- the learning model; pants selected by the Secretary shall meet bers of the Armed Forces and certain (B) organize efforts to disseminate the the following criteria: learning model for high value health care, other Federal employees, and for other (A) Be integrated health systems organized including educating participant institutions; purposes; which was ordered to lie on for the purpose of providing health care serv- and the table; as follows: ices. (C) provide administrative, technical, ac- On page 722, after line 20, insert the fol- (B) Have demonstrated a record of pro- counting, reporting, organizational and in- lowing: viding high value health care for at least the frastructure support needed to carry out the SEC. 3016. ADVANCING IMPLEMENTATION OF 5 previous years, as determined by the Sec- goals of the Collaborative. CERTAIN VALUE-BASED PUR- retary in accordance with the Dartmouth (5) DEVELOPMENT OF LEARNING MODEL.— CHASING PROGRAMS. Atlas of Health Care. (A) IN GENERAL.—Initial participants in the (a) ADVANCING IMPLEMENTATION OF HOS- (C) Any additional criteria specified by the Collaborative shall work together to develop PITAL VALUE-BASED PURCHASING PROGRAM.— Secretary. a learning model based on their experience (1) IN GENERAL.—Section 1886(o) of the So- (2) ADDITIONAL PARTICIPANTS.—Beginning that includes a reliance on evidence based cial Security Act, as added by section 3001, is January 1, 2013, the Secretary shall select 6 care that emphasizes quality and practice amended— or more additional participants who rep- techniques that emphasize efficiency, joint (A) in paragraph (1)(B— resent diverse geographic areas and are situ- development and implementation of health (i) in the subparagraph heading, by strik- ated in areas of differing population den- information technology, introduction of ing ‘‘2013’’ and inserting ‘‘2012’’; and sities who agree to comply with the guide- clinical microsystems of care, shared deci- (ii) by striking ‘‘2012’’ and inserting ‘‘2011’’; lines, processes, and requirements set forth sion-making, outcomes and measurement, (B) in paragraph (2)(B)— for the Collaborative. Such additional par- and the establishment of an e-learning dis- (i) in clause (i), by striking ‘‘2013’’ each ticipants shall meet the following additional tributive network, which have been put into place it appears and inserting ‘‘2012’’; and criteria: practice at their respective institutions. (ii) in clause (ii), by striking ‘‘2014’’ and in- (A) Be organized for the provision of pa- (B) RESPONSIBILITIES.—The Coordinating serting ‘‘2013’’; and tient medical care. Member shall do the following:

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00032 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.001 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD 29612 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 December 6, 2009 (i) Partner with initial participants to Expenditures from the calendar year in same use guidelines as apply to the Initial comprehensively understand each institu- which the previous fiscal year ends to the Participants. tion’s contribution to providing value-based calendar year in which the fiscal year in- (h) CONTINUATION OR EXPANSION.— health care. volved ends, as most recently published by (1) TERMINATION.—Subject to paragraph (2), (ii) Provide and measure value-based the Secretary before the beginning of the fis- the Collaborative shall terminate on the health care in a manner that ensures that cal year, minus 1.5 percentage points. date that is 6 years after the date on which measures are aligned with current measures (2) QUALITY TARGET.—The Secretary shall the Collaborative is established. approved by a consensus-based organization, establish a quality target, based on measures (2) EXPANSION.—The Secretary may con- such as the National Quality Forum, or endorsed by a consensus-based quality orga- tinue or expand the Collaborative if— other measures as determined appropriate by nization, for the initial participants in the (A) participants meet the established the Secretary, while also incorporating pa- first year and subsequently for the addi- growth rate targets and consistently receive tient self-reported status and outcomes. tional participants. bonus payments during the first 4 years of (iii) Create a replicable and scalable infra- (f) PAYMENTS.— the Collaborative and are consistently meet- structure for common measurement of (1) BASE PAYMENT.—With respect to each ing quality standards; or value-based care that can be broadly dis- participant in the Collaborative, the Sec- (B) the Collaborative is consistently ex- seminated across the Collaborative and other retary shall determine a base amount on a ceeding quality standards and is not increas- institutions. per capita basis for the participant for pur- ing spending under the program. (iv) Implement care pathways for common poses of measuring the growth rate in total (i) TERMINATION.—The Secretary may ter- conditions using standard measures for as- payments for common conditions, based on minate an agreement with the Collaborative sessment across institutions, targeting high the reimbursement amount paid to the par- or a participating organization under the variation and high cost conditions, including ticipant under title XVIII of the Social Secu- Collaborative if such organization did not but not limited to— rity Act for furnishing items and services qualify for incentive payments or consist- (I) acute myocardial infarction (AMI) and with respect to such conditions. ently failed to meet quality standards in any of the first 3 years of the Collaborative. angioplasty; (2) BONUS PAYMENT.—If the growth rate in (j) REPORTS.— (II) coronary artery bypass graft surgery total payments for services for common con- (1) PERFORMANCE RESULTS REPORTS.—The and percutaneous coronary intervention; ditions does not exceed the growth rate tar- Secretary shall provide such data as is nec- (III) hip or knee replacement; get selected for the participant under sub- essary for the Collaborative to measure the (IV) spinal surgery; and section (e)(1), and the participant satisfies efficacy of the Collaborative and facilitate (V) care for chronic diseases including, but the quality target established by the Sec- regular reporting on spending and cost sav- not limited to, diabetes, heart disease, and retary under subsection (e)(2), the Secretary ings results relative to a value-based pro- high blood pressure. shall provide a bonus payment equal to 50 gram initiative. (v) Deploy and disseminate the comprehen- percent of any per capita payment reduc- (2) REPORTS TO CONGRESS.—Not later than 2 sive learning model across initial participant tions that are below the capita base amounts years after the date the first agreement is institutions, achieving improvements in care determined under paragraph (1). delivery and lowering costs, and dem- entered into under this section, and annually (3) PENALTY PAYMENT.—If the growth rate thereafter, the Secretary shall submit to onstrating the portability and viability of in total per capita payments for furnishing the processes. Congress and make publicly available a re- items and services for common conditions (6) ADDITIONAL BEST PRACTICES.—As addi- port on the authority granted to the Sec- exceeds the growth rate target, the Sec- tional methods of improving health care retary to carry out the Collaborative under retary shall pay only 25 percent of any addi- quality and efficiency are identified by mem- this section. Each report shall address the tional expenses that exceed the base bers of the Collaborative or by other institu- impact of the use of such authority on ex- amounts determined under paragraph (1). tions, Initial Participants in the Collabo- penditures for, access to, and quality of, care (4) BUDGET NEUTRALITY LIMITATION.—The rative shall incorporate those practices into under title XVIII of the Social Security Act. Secretary shall limit incentive payments to the learning model. (k) DEFINITIONS.—In this section: (d) IMPLEMENTATION OF LEARNING MODEL.— each of the participating organizations under (1) BENEFICIARY.—The term ‘‘beneficiary’’ (1) IN GENERAL.—Beginning January 1, 2013, this section as necessary to ensure that the means a Medicare beneficiary enrolled under as additional participants are selected by the aggregate expenditures with respect to appli- part B and entitled to benefits under part A Secretary, Initial Participants in the Col- cable beneficiaries under title XVIII of the who is not enrolled in Medicare Advantage laborative shall actively engage in the de- Social Security Act (inclusive of incentive under Part C or a PACE program under sec- ployment of the learning model to educate payments described in this subsection) do tion 1894, and meets other criteria as the each additional participant in the common not exceed the amount that the Secretary Secretary determines appropriate. conditions that have been identified. estimates would be expended for such bene- (2) HIGH VALUE HEALTH CARE.—The term (A) DISSEMINATION OF LEARNING MODEL.— ficiaries if the Collaborative under this sec- ‘‘high value health care’’ means the care de- Dissemination methods shall include but not tion were not implemented. livered by organizations shown by statis- be limited to the following methods: (g) ADMINISTRATIVE PAYMENT.—Out of tically valid methods to meet the highest (i) Specialized teams deployed by the Ini- funds not otherwise obligated in the Treas- quality measures established by the Sec- tial Participants to teach and facilitate im- ury, there are appropriated $228,000,000, to re- retary as of or after the date of enactment of plementation on site. main available until expended, to be distrib- this Act and to be delivering low-cost care (ii) Distance-learning, taking advantage of uted in the following manner: with high patient satisfaction and clinical latest interactive technologies. (1) The Coordinating Organization shall re- outcomes. (iii) On-line, fully accessible repositories of ceive $10,000,000 per year for program devel- (3) LEARNING MODEL.—The term ‘‘learning shared learning and information related to opment related to the Collaborative, includ- model’’ means a standardized model devel- best practices. ing for health information technology and oped by the Initial Participants in the Col- (iv) Advanced population health informa- other infrastructure, project evaluations, laborative and based on best practices, as tion technology models. analysis, and measurement, compliance, jointly developed and put into practice at (B) EVALUATION OF PARTICIPANTS.—Evalua- auditings and other reporting. Not less than the Initial Participant’s respective institu- tion of initial participants shall be based on $5,000,000 of such funds shall be provided for tions. documented success in meeting quality and education and training, including for support (4) SECRETARY.—The term ‘‘Secretary’’ efficiency targets. Specific statistically for the establishment of training teams for means the Secretary of Health and Human valid measures of evaluation shall be deter- the Collaborative, to assist in the integra- Services. mined by the Secretary. tion of new health information technology, (l) ADDITIONAL MONITORING.—The Sec- (e) EFFICIENCY AND QUALITY TARGETS.— best practices of care delivery, microsystems retary may monitor data on expenditures (1) EFFICIENCY TARGET BASED ON GROWTH of care delivery, and a distributive e-learn- and quality of services under title XVIII of RATE.—Initial participants shall implement ing network for the Collaborative. the Social Security Act with respect to a techniques under the comprehensive learn- (2) Each Initial Participant shall receive beneficiary after the beneficiary discon- ing model to meet a growth rate target equal $4,000,000 per year for internal program de- tinues receiving services under the Collabo- to, as selected by the Secretary with respect velopment for health information tech- rative. to the participant— nology and other infrastructure, education (m) OTHER PROVISIONS.— (A) the percentage increase in the con- and training, project evaluations, analysis, (1) LIMITATIONS ON REVIEW.—There shall be sumer price index for all urban consumers and measurement, and compliance, auditing, no administrative or judicial review under (all items; United States city average) over and other reporting. this section or otherwise of— the previous year, plus 2 percentage points; (3) Beginning in 2013, the Secretary may (A) the elements, parameters, scope, and or provide funding to additional participants in duration of the Collaborative, including the (B) the percentage increase in the pro- the Collaborative in an amount not to exceed selection of participants in the Collabo- jected per capita amount of National Health $4,000,000 per participant per year under the rative;

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00033 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.001 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD December 6, 2009 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 29613 (B) the establishment of targets, measure- ‘‘(A) an area with shortage of the specified tablished in subpart III of part D of title III, ment of performance; geriatric or gerontology specialty that has a the provisions of such subpart shall, except (C) determinations with respect to whether sufficient population of older adults to sup- as inconsistent with this section, apply to savings have been achieved and the amount port such geriatric or gerontology speciality, the program established in this section in of savings; as determined by the Secretary; and the same manner and to the same extent as (D) determinations regarding whether, to ‘‘(B) a medically underserved community such provisions apply to the National Health whom, and in what amounts incentive pay- (including a health professional shortage Service Corps Loan Repayment Program. ments are paid; and area), or a medically underserved popu- ‘‘(f) DEFINITION.—In this section: (E) decisions about the extension or expan- lation; and ‘‘(1) GERIATRICS.—The term ‘geriatrics’ sion of the Collaborative. ‘‘(2) the Secretary agrees to make pay- means the branch of medicine that deals (2) ADMINISTRATION.—Chapter 35 of title 44, ments on the principal and interest of the with the problems and diseases of older 4 United States Code shall not apply to this graduate medical education loans of profes- adults and aging, including chronic condi- section. sionals described in paragraph (1) that— tions and geriatric syndromes such as de- (3) EVALUATION.—The Secretary shall ‘‘(A) are not more than $35,000 a year for mentia, delirium, urinary incontinence, evaluate the payment incentive model for each year of agreed upon service under such osteoporosis, falls or gait disorders, or sleep the Collaborative to assess impacts on bene- paragraph for a period of not more than 4 disorders. ficiaries and on the Medicare program under years; and ‘‘(2) GERONTOLOGY.—The term ‘geron- title XVIII of the Social Security Act. The ‘‘(B) are not more than 1/4 of the total of tology’ means the interdisciplinary study of Secretary shall make such evaluation pub- such principal and interest, for each year of the aging process and individuals as they licly available within 60 days of the date of the service, for a period of not more than 4 grow from middle age through later life. completion of such report. years. Such term encompasses the social, cognitive, (4) MONITORING.—The Inspector General of ‘‘(c) QUALIFIED HEALTH PROFESSIONALS.— psychological, biological, and economic as- the Department of Health and Human Serv- ‘‘(1) IN GENERAL.—A qualified health pro- pects of aging. ices shall provide for monitoring of the oper- fessional described in this subsection is an ‘‘(3) GRADUATE MEDICAL EDUCATION.—The ation of the Collaborative with regard to vio- individual— term ‘graduate medical education’ means a lations of section 1877 of the Social Security ‘‘(A) who— graduate program in medicine, pharmacy, Act (popularly known as the ‘‘Stark law’’). ‘‘(i) is a physician, including an osteo- psychology, physical therapy, or social work, (5) ANTI-DISCRIMINATION.—The Secretary pathic physician, who— or a graduate program that trains individ- shall not enter into an agreement with an ‘‘(I) is entering or enrolled in an accredited uals to become nurse practitioners, clinical entity to provide health care items or serv- fellowship in geriatric medicine or geriatric nurse specialists, or physician assistants. ices under the Collaborative, or with an enti- psychiatry; or ‘‘(4) SPECIALTY TRAINING.—The term ‘spe- ty to administer the Collaborative, unless ‘‘(II) has completed (but not prior to the cialty training’ means a concentration in such entity guarantees that it will not deny, calendar year in which this section is en- coursework in geriatrics or gerontology or limit, or condition the coverage or provision acted) an accredited fellowship in geriatric clinical training, including internships, resi- of benefits under the Collaborative for bene- medicine or geriatric psychiatry; or dency programs, or fellowships, in a geriatric ficiaries to participate in the Collaborative, ‘‘(ii) is a nurse practitioner or clinical setting, or other requirements, as deter- based on any health status-related factor de- nurse specialist, pharmacist, social worker, mined by the Secretary. scribed in section 2702(a)(1) of the Public physician assistant, physical therapist, or ‘‘(g) AUTHORIZATION OF APPROPRIATIONS.— Health Service Act. psychologist who has completed specialty There is authorized to be appropriated to training in geriatrics or gerontology; carry out this section, $4,000,000 for fiscal SA 2944. Mrs. BOXER submitted an ‘‘(B) who has obtained an educational loan year 2010, $9,500,000 for fiscal year 2011, amendment intended to be proposed to for costs associated with graduate training $16,000,000 for fiscal year 2012, $24,000,000 for amendment SA 2786 proposed by Mr. in medicine, pharmacy, psychology, physical fiscal year 2013, and $30,500,000 for fiscal year 2014.’’. EID AUCUS therapy, or social work, or costs associated R (for himself, Mr. B , Mr. (b) EXPANSION OF NURSING EDUCATION LOAN with training to become a nurse practi- DODD, and Mr. HARKIN) to the bill H.R. REPAYMENT PROGRAM.—Section 846 of the tioner, clinical nurse specialist, or physician 3590, to amend the Internal Revenue Public Health Service Act (42 U.S.C. 297n) is assistant; Code of 1986 to modify the first-time amended— ‘‘(C) who is appropriately licensed or cer- (1) by redesignating subsection (i) as sub- homebuyers credit in the case of mem- tified in the State in which the individual section (j); and bers of the Armed Forces and certain practices, or who meets other qualifications (2) by inserting after subsection (h), the other Federal employees, and for other as determined by the Secretary; following: purposes; which was ordered to lie on ‘‘(D) who agrees to provide clinical services ‘‘(i) GERIATRIC CARE PRACTICE IN LONG- to older adults for a period of not less than the table; as follows: TERM CARE SETTINGS.— 2 years in a setting determined appropriate At the end of subtitle D of title V, add the ‘‘(1) LOAN REPAYMENTS.—In providing for following: by the Secretary; and loan repayments under this section, the Sec- SEC. 5316. GERIATRIC HEALTH CARE WORK- ‘‘(E) who has demonstrated the capability retary shall ensure that eligible individuals FORCE. through education or training to work with include registered nurses who complete spe- (a) INVESTMENT IN TOMORROW’S GERIATRIC frail older adults and older adults with dis- cialty training in geriatrics or gerontology HEALTH CARE WORKFORCE.—Part E of title abilities, including individuals with demen- and who elect to provide nursing services to VII of the Public Health Service Act (42 tia, urinary incontinence, and problems with older adults in home and community-based U.S.C. 294n et seq.), as amended by section balance or mobility, and medication regimes or facility-based long-term care settings, or 5314, is further amended by adding at the end for older adults. any other program determined appropriate the following: ‘‘(2) ADDITIONAL ELIGIBILITY REQUIRE- by the Secretary. MENTS.—The Secretary may not enter into a ‘‘SEC. 779. INVESTMENT IN TOMORROW’S GERI- ‘‘(2) DEFINITION.—In this subsection, the ATRIC HEALTH CARE WORKFORCE. contract under this subsection with an indi- term ‘specialty training’ means coursework ‘‘(a) ESTABLISHMENT.—The Secretary shall vidual unless— in geriatrics or gerontology or clinical train- establish and carry out a Geriatric and Ger- ‘‘(A) the individual is a United States cit- ing, including internships or fellowships, in a ontology Loan Repayment Program under izen or a permanent legal United States resi- geriatric setting. dent; which the eligible individual agrees to be ‘‘(3) AUTHORIZATION OF APPROPRIATIONS.— employed full-time for a specified period ‘‘(B) if the individual is enrolled in a grad- There is authorized to be appropriated to (which shall not be less than 2 years) as a uate program, the program is accredited, and carry out this subsection, $1,500,000 for fiscal physician, physician assistant, nurse practi- the individual has an acceptable level of aca- year 2010, $3,000,000 for fiscal year 2011, tioner, clinical nurse specialist, pharmacist, demic standing (as determined by the Sec- $5,000,000 for fiscal year 2012, $7,000,000 for fis- psychologist, physical therapist, or social retary); and cal year 2013, and $8,500,000 for fiscal year worker in geriatric care practice. ‘‘(C) the individual is not participating in 2014.’’. ‘‘(b) PROGRAM ADMINISTRATION.—Under the any other Federal undergraduate or graduate program established under subsection (a), medical education loan repayment program. SA 2945. Mrs. BOXER submitted an the Secretary shall enter into contracts with ‘‘(d) PRIORITY.—In entering into contracts amendment intended to be proposed to qualified health professionals described in under this section, the Secretary shall give amendment SA 2786 proposed by Mr. subsection (c) under which— priority to qualified health professionals who ‘‘(1) such qualified health professionals demonstrate financial need. REID (for himself, Mr. BAUCUS, Mr. agree to provide full-time clinical practice ‘‘(e) APPLICABILITY OF CERTAIN PROVI- DODD, and Mr. HARKIN) to the bill H.R. and service to older adults through work SIONS.—With respect to the National Health 3590, to amend the Internal Revenue serving, or for a provider serving— Service Corps Loan Repayment Program es- Code of 1986 to modify the first-time

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00034 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.001 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD 29614 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 December 6, 2009 homebuyers credit in the case of mem- satisfy emergency medical services per- of the Social Security Act (42 U.S.C. 1396 et bers of the Armed Forces and certain sonnel certification requirements, as deter- seq.), each State and territory shall require other Federal employees, and for other mined by the appropriate State regulatory that an individual wishing to present evi- purposes; which was ordered to lie on entity.’’. dence through an expert witness in a medical malpractice case demonstrate that such ex- the table; as follows: SA 2948. Ms. SNOWE submitted an pert witness— At the appropriate place, insert the fol- amendment intended to be proposed to (1) be credentialed or licensed in one or lowing: amendment SA 2786 proposed by Mr. more States to deliver health care services; SEC. ll. REPORT ON IMPACT OF NURSE STAFF- REID (for himself, Mr. BAUCUS, Mr. (2) typically treat the diagnosis or condi- ING. tion at issue in the case, or provide the type DODD, and Mr. HARKIN) to the bill H.R. Not later than 18 months after the date of of treatment under review; and the enactment of this Act, the Director of 3590, to amend the Internal Revenue (3) is substantially familiar with applicable the Agency for Healthcare Research and Code of 1986 to modify the first-time standards of care and practice as they relate Quality shall submit to Congress a report on homebuyers credit in the case of mem- to the act or omission that is the subject of the impact of the nurse-to-patient ratio on bers of the Armed Forces and certain the lawsuit. the quality of care and patient outcomes, in- other Federal employees, and for other SEC. 6803. ENCOURAGING SETTLEMENT OF MED- cluding recommendations for further inte- purposes; which was ordered to lie on ICAL MALPRACTICE LAWSUITS. gration into quality measurement and qual- the table; as follows: As a condition for receiving Federal funds ity improvement activities as determined under the Medicaid program under title XIX appropriate. Strike subtitle I of title VI and insert the following: of the Social Security Act (42 U.S.C. 1396 et seq.), each State and territory shall require Mr. CASEY submitted an Subtitle I—State Medical Malpractice SA 2946. that a party in a medical malpractice law- Programs amendment intended to be proposed to suit that refuses a settlement offer in an amendment SA 2786 proposed by Mr. SEC. 6801. PRE-LITIGATION SCREENING AND ME- amount that is significantly greater than REID (for himself, Mr. BAUCUS, Mr. DIATION PANELS. the amount awarded by a jury after trial re- DODD, and Mr. HARKIN) to the bill H.R. (a) IN GENERAL.—As a condition for receiv- imburse the party that made such settle- 3590, to amend the Internal Revenue ing Federal funds under the Medicaid pro- ment offer for the costs of the trial, includ- gram under title XIX of the Social Security ing attorney’s fees associated with the trial. Code of 1986 to modify the first-time Act (42 U.S.C. 1396 et seq.), each State and homebuyers credit in the case of mem- territory shall, not later than 3 years after bers of the Armed Forces and certain the date of enactment of this Act, create a SA 2949. Mr. ROCKEFELLER (for other Federal employees, and for other pre-litigation screening and mediation panel himself and Mr. BROWN) submitted an purposes; which was ordered to lie on which shall provide timely review of each amendment intended to be proposed to the table; as follows: medical malpractice claim before such claim amendment SA 2786 proposed by Mr. On page 330, line 9, insert after ‘‘1402(g)(1)’’ is filed in a State or Federal court in such REID (for himself, Mr. BAUCUS, Mr. the following: ‘‘, or an individual who would State. DODD, and Mr. HARKIN) to the bill H.R. (b) REQUIREMENTS.— be eligible for an exemption under such sec- 3590, to amend the Internal Revenue (1) IN GENERAL.—Each medical malpractice tion if the individual were self-employed,’’. Code of 1986 to modify the first-time claim shall be heard by such panel before homebuyers credit in the case of mem- SA 2947. Ms. KLOBUCHAR submitted such claim may be filed in a State or Federal court and before litigation of such case may bers of the Armed Forces and certain an amendment intended to be proposed commence. other Federal employees, and for other to amendment SA 2786 proposed by Mr. (2) REPORTS.—The panel shall issue a re- purposes; which was ordered to lie on REID (for himself, Mr. BAUCUS, Mr. port containing the findings and rec- the table; as follows: DODD, and Mr. HARKIN) to the bill H.R. ommendations of such panel, based on the Beginning on page 182, strike line 8 and all evidence presented to the panel. The report 3590, to amend the Internal Revenue that follows through page 200, line 5, and in- described in this paragraph shall not affect a Code of 1986 to modify the first-time sert the following: claimant’s right to bring a medical mal- homebuyers credit in the case of mem- SEC. 1323. CONSUMERS CHOICE HEALTH PLAN. bers of the Armed Forces and certain practice claim in State or Federal court. Notwithstanding any other provision of (a) FINDINGS.—Congress makes the fol- other Federal employees, and for other State or Federal law, such report may be ad- lowing findings: purposes; which was ordered to lie on missible in such court. (1) Americans need health care coverage the table; as follows: (c) DUTIES.—Each panel established under that is always affordable. On page 1411, between lines 5 and 6, insert subsection (a) shall— (2) Americans need health care coverage the following: (1) review medical malpractice claims; that is always adequate. SEC. 5316. GRANTS FOR EMERGENCY MEDICAL (2) assess the evidence offered by the par- (3) Americans need health care coverage SERVICES PERSONNEL TRAINING ties; and that is always accountable. FOR VETERANS. (3) render professional judgment on the va- (4) A public health insurance plan option Section 330J of the Public Health Service lidity of claims. that can compete with private insurance Act (42 U.S.C. 254c–15) is amended— (d) MEMBERSHIP.—Each panel established plans is the only way to guarantee that all (1) in subsection (b)(1)— under subsection (a) shall be comprised of consumers have affordable, adequate, and ac- (A) in subparagraph (E), by striking ‘‘or’’ lawyers, retired judges, doctors, and medical countable options available in the insurance at the end; professionals. Members of the panel shall marketplace. (B) by redesignating subparagraph (F) as serve on a volunteer basis, unless a State (b) OFFICE OF HEALTH PLAN MANAGE- subparagraph (G); and chooses to arrange for compensation of, or MENT.— (C) by inserting after subparagraph (E), the reimbursement of expenses for, such mem- (1) ESTABLISHMENT.—Not later than July 1, following: bers. 2010, there shall be established within the ‘‘(F) an entity providing training for emer- (e) EXEMPTED STATES.—A State that, on Department of Health and Human Services gency medical services personnel, including the day before the date of enactment of this an Office of Health Plan Management (re- institutions of higher education, technical Act, has enacted laws that require medical ferred to in this section as the ‘‘Office’’). The colleges, community colleges, and other malpractice claims to be heard by a pre-liti- Office shall be headed by a Director (referred State-certified training entities; or’’; and gation panel, in a manner similar to the re- to in this section as the ‘‘Director’’) who (2) in subsection (c)— quirements of this section, may, at the dis- shall be appointed by the President, by and (A) in paragraph (7), by striking ‘‘and’’ at cretion of the Secretary, be exempt from the with the advice and consent of the Senate. the end; requirements of this section for as long as (2) COMPENSATION.—The Director shall be (B) in paragraph (8), by striking the period such State maintains such panel. paid at the annual rate of pay for a position and inserting ‘‘; and’’; and (f) RULE OF CONSTRUCTION.—Nothing in this at level II of the Executive Schedule under (C) by adding at the end the following: section shall be construed to interfere with section 5313 of title 5, United States Code. ‘‘(9) provide to military veterans required or restrict an individual’s right to bring a (3) LIMITATION.—Neither the Director nor coursework and training that take into ac- lawsuit in civil courts. the Office shall participate in the adminis- count, and are not duplicative of, previous SEC. 6802. STANDARDS FOR MEDICAL LIABILITY tration of the Exchanges established under medical coursework and training received EXPERT WITNESSES. this title or the promulgation or administra- when such veterans were active members of As a condition for receiving Federal funds tion of any regulation regarding the health the Armed Forces, to enable such veterans to under the Medicaid program under title XIX insurance industry.

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(4) PERSONNEL AND OPERATIONS AUTHOR- shall be required to provide services to any under section 36B of the Internal Revenue ITY.—The Director shall have the same gen- individual enrolled in the Plan. Code of 1986). eral authorities with respect to personnel (B) EXCEPTION.—Subparagraph (A) shall (7) FINANCING.— and operations of the Office as the heads of not be construed as requiring a provider to (A) TRANSITIONAL FUNDING.— other agencies and departments of the Fed- accept new patients due to bona fide capac- (i) IN GENERAL.—In order to provide for eral Government have with respect to such ity limitations of the provider. adequate funding of the Plan in advance of agencies and departments. (C) OPT-OUT PROVISION.— receipt of payments as described in subpara- (c) CONSUMER CHOICE HEALTH PLAN.— (i) MEDICARE.—A participating provider as graph (B), beginning July 1, 2010, there are (1) IN GENERAL.—The Office shall establish described under subparagraph (A)(i) shall be transferred to the Plan from the general and administer the Consumer Choice Health required to provide services to any indi- fund of the Treasury such amounts as may Plan (referred to in this section as the vidual enrolled in the Plan for the 3-year pe- be necessary for operation of the Plan until ‘‘Plan’’) to provide for health insurance cov- riod following the establishment of the Plan. the end of the 3-year period following the es- erage that is made available to all eligible Upon the expiration of the 3-year period, a tablishment of the Plan. individuals (as described in paragraph (4)(A)) participating provider in the Plan may elect (ii) RETURN OF FUNDS.—Upon the expira- in the United States and its territories. to become a non-participating provider with- tion of the 3-year period following the estab- (2) REGULATORY COMPLIANCE.—The Plan out affecting their status as a participating lishment of the Plan, the Director shall shall comply with— provider under the Medicare program. enter into a repayment schedule with the (A) all regulations and requirements that (ii) MEDICAID AND CHIP.—A provider as de- Secretary of the Treasury to provide for re- are applicable with respect to other qualified scribed under subparagraph (A)(ii) shall be payment of funds provided under clause (i). health plans that are offered through the Ex- required to provide services to any indi- Any expenditures made by the Plan pursuant changes; and vidual enrolled in the Plan for the 3-year pe- to a repayment schedule established under (B) any additional regulations and require- riod following the establishment of the Plan. this subparagraph shall not constitute ad- ments, as determined by the Director. Upon the expiration of the 3-year period, a ministrative expenses as described in sub- (3) BENEFITS.— provider in the Plan may elect to cease pro- paragraph (B)(ii). (A) IN GENERAL.—The Plan shall offer vision of services under the Plan without af- (B) SELF-FINANCING.— health insurance coverage at different ben- fecting their status as a provider under the (i) IN GENERAL.—The Plan shall be finan- efit levels, provided that such benefits are Medicaid program or the CHIP program. cially self-sustaining insofar as funds used commensurate with the required benefit lev- (D) PAYMENT RATES.— for operation of the Plan (including benefits, els to be provided by a qualified health plan (i) INITIAL PAYMENT RATES.— administration, and marketing) shall be de- through the Exchanges. (I) IN GENERAL.—During the 2-year period rived from— (B) MINIMUM BENEFITS FOR CHILDREN.— following the establishment of the Plan, pro- (I) insurance premium payments and sub- (i) IN GENERAL.—The minimum benefit viders shall be reimbursed at such payment sidies for individuals enrolled in the Plan; level available under the Plan for children rates as are applicable under the Medicare and shall include at least the services described program. (II) assessable payments made pursuant to in the most recently published version of the (II) ADJUSTMENT.—The Director may reim- section 4980H of the Internal Revenue Code ‘‘Maternal and Child Health Plan Benefit burse providers at rates lower or higher than of 1986 (as added by section 1513) by employ- Model’’ developed by the National Business applicable under the Medicare program if the ers that fail to offer their full-time employ- Group on Health. Director determines that the adjusted rates ees (and their dependents) the opportunity to (ii) AMENDMENT OF BENEFIT LEVEL.—The are appropriate and ensure that enrollees in enroll in minimum essential coverage under Secretary of Health and Human Services, the Plan are provided with adequate access an eligible employer-sponsored plan. acting through the Director of the Agency to health care services. (ii) LIMITATION ON ADMINISTRATIVE EX- for Healthcare Research and Quality, may (ii) SUBSEQUENT PAYMENT RATES.—Subject PENSES.—Not more than 5 percent of the amend the benefits described in clause (i) to clause (iii), upon the expiration of the 2- amounts provided under clause (i) may be based on the most recent peer-reviewed and year period following the establishment of used for the annual administrative costs of evidence-based data. the Plan, the Director shall develop payment the Plan. (4) ELIGIBILITY AND ENROLLMENT.— rates for reimbursement of providers in order (C) CONTINGENCY RESERVE.— (A) ELIGIBILITY.—An individual who is eli- to maintain an adequate provider network (i) IN GENERAL.—The Director shall estab- gible to purchase coverage from a qualified necessary to assure that enrollees in the lish and fund a contingency reserve for the health plan through an Exchange shall be el- Plan have adequate access to health care. In Plan in a form similar to the contingency re- igible to enroll in the Plan. determining such payment rates, the Direc- serve provided for health benefits plans (B) ENROLLMENT PROCESS.—An individual tor shall consider— under the Federal Employees Health Bene- may enroll in the Plan only in such manner (I) competitive provider payment rates in fits Program under chapter 89 of title 5, and form as may be prescribed by applicable both the public and private sectors; United States Code. regulations, and only during an enrollment (II) best practices among providers; (ii) REVENUE.—Any revenue generated period as prescribed by the Director. (III) integrated models of care delivery (in- through the contingency reserve established (C) EMPLOYER ENROLLMENT.—An employer cluding medical home and chronic care co- in clause (i) shall be transferred to the Plan shall be eligible to purchase health insur- ordination models); for the purpose of reducing enrollee pre- ance coverage for their employees and the (IV) geographic variation in health care miums, reducing enrollee cost-sharing, in- employees’ dependents to the extent pro- costs; creasing enrollee benefits, or any combina- vided for all qualified health plans under the (V) evidence-based practices; tion thereof. Exchanges. (VI) quality improvement; (D) GAO FINANCIAL AUDIT AND REPORT.—Be- (D) SATISFACTION OF INDIVIDUAL MANDATE (VII) use of health information technology; ginning not later than October 1, 2011, the REQUIREMENT.—An individual’s enrollment and Comptroller General shall conduct an annual with the Plan shall be treated as satisfying (VIII) any additional measures, as deter- audit of the financial statements and records any requirement under Federal law for such mined by the Director. of the Plan, in accordance with generally ac- individual to demonstrate enrollment in (iii) PAYMENT RATE CONSULTATION.—The Di- cepted government auditing standards, and health insurance or benefits coverage, in- rector shall determine payment rates under submit an annual report on such audit to the cluding the requirement under section 5000A clause (ii) in consultation with providers Congress. of the Internal Revenue Code of 1986. participating under the Plan, the Director of (E) SUPERMAJORITY REQUIREMENT FOR SUP- (5) PROVIDERS.— the Office of Personnel Management, the PLEMENTAL FUNDING.—Upon certification by (A) NETWORK REQUIREMENT.— Medicare Payment Advisory Commission, the Comptroller General that the financial (i) MEDICARE.—A participating provider and the Medicaid and CHIP Payment and Ac- audit described in subparagraph (D) indicates who is voluntarily providing health care cess Commission. that the Plan is insolvent, supplemental services under the Medicare program estab- (E) ADOPTION OF MEDICARE REFORMS.—The funding may be appropriated for the Plan if lished under title XVIII of the Social Secu- Plan may adopt Medicare system delivery such measure receives not less than a three- rity Act (42 U.S.C. 1395 et seq.) shall be re- reforms that provide patients with a coordi- fifths vote of approval of the total number of quired to provide services to any individual nated system of care and make changes to Members of the House of Representatives enrolled in the Plan. the provider payment structure. and the Senate. (ii) MEDICAID AND CHIP.—A provider of (6) SUBSIDIES.—The Plan shall be eligible (8) TRANSPARENCY.— health care services under the Medicaid pro- to accept subsidies, including subsidies for (A) IN GENERAL.—Beginning with the first gram established under title XIX of the So- the enrollment of individuals under the Plan, year of operation of the Plan through the cial Security Act (42 U.S.C. 1396 et seq.), or in the same manner and to the same extent Exchanges, the Director shall provide stand- the CHIP program established under title as other qualified health plans offered ards and undertake activities for promoting XXI of such Act (42 U.S.C. 1397aa et seq.), through an Exchange (including credits transparency in costs, benefits, and other

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factors for health insurance coverage pro- (vii) Civil or criminal actions successfully (e) BOARD OF DIRECTORS.— vided under the Plan. concluded against the Plan by any govern- (1) IN GENERAL.—The Board of Directors of (B) STANDARD DEFINITIONS OF INSURANCE mental entity. the Trust (referred to in this section as the AND MEDICAL TERMS.— (viii) Benefit exclusions and limits. ‘‘Board’’) shall consist of 19 voting members (i) IN GENERAL.—The Director shall provide (E) DEVELOPMENT OF PATIENT CLAIMS SCE- appointed by the Comptroller General. for the development of standards for the defi- NARIOS.— (2) TERMS.— nitions of terms used in health insurance (i) IN GENERAL.—In order to improve the (A) IN GENERAL.—Subject to subparagraph coverage under the Plan, including insur- ability of individuals and employers to com- (C), each member of the Board shall serve for ance-related terms (including the insurance- pare the coverage and relative value pro- a term of 6 years. related terms described in clause (ii)) and vided under the Plan, the Director shall de- (B) LIMITATION.—No individual shall be ap- medical terms (including the medical terms velop and make publically available a series pointed to the Board for more than 2 con- described in clause (iii)). of patient claims scenarios under which ben- secutive terms. (ii) INSURANCE-RELATED TERMS.—The insur- efits (including out-of-pocket costs) under (C) INITIAL MEMBERS.—The initial members ance-related terms described in this clause the Plan are simulated for certain common of the Board shall be appointed by the Comp- are premium, deductible, co-insurance, co- or expensive conditions or courses of treat- troller General not later than October 1, 2010, payment, out-of-pocket limit, preferred pro- ment (including maternity care, breast can- and shall serve terms as follows: vider, non-preferred provider, out-of-network cer, heart disease, diabetes management, and (i) 8 members shall be appointed for a term co-payments, UCR (usual, customary and well-child visits). of 5 years. reasonable) fees, excluded services, grievance (ii) CONSULTATION.—The Director shall de- (ii) 8 members shall be appointed for a and appeals, and such other terms as the Di- velop the patient claims scenarios described term of 3 years. rector determines are important to define so in clause (i)— (iii) 3 members shall be appointed for a that consumers may compare health insur- (I) in consultation with the Secretary of term of 1 year. ance coverage and understand the terms of Health and Human Services, the National In- (D) EXPIRATION OF TERM.—Any member of their coverage. stitutes of Health, the Centers for Disease the Board whose term has expired may serve (iii) MEDICAL TERMS.—The medical terms Control and Prevention, the Agency for until such member’s successor has taken of- described in this clause are hospitalization, Healthcare Research and Quality, health fice, or until the end of the calendar year in hospital outpatient care, emergency room professional societies, patient advocates, and which such member’s term has expired, care, physician services, prescription drug other entities as deemed necessary by the whichever is earlier. coverage, durable medical equipment, home Director; and (E) VACANCIES.— health care, skilled nursing care, rehabilita- (II) based upon recognized clinical practice (i) IN GENERAL.—Any member appointed to tion services, hospice services, emergency guidelines. fill a vacancy prior to the expiration of the medical transportation, and such other (F) MANNER OF DISCLOSURE.—The Director term for which such member’s predecessor terms as the Director determines are impor- shall disclose the information under this was appointed shall be appointed for the re- tant to define so that consumers may com- paragraph— mainder of such term. pare the medical benefits offered by health (i) with all marketing materials; (ii) VACANCIES NOT TO AFFECT POWER OF insurance plans and understand the extent of (ii) on the website for the Plan; and BOARD.—A vacancy on the Board shall not af- those medical benefits (or exceptions to (iii) at other times upon request. fect its powers, but shall be filled in the those benefits). (d) CONFORMING AMENDMENTS.— same manner as the original appointment (C) DISCLOSURE.— (1) COMMUNITY HEALTH INSURANCE OPTION.— was made. (i) IN GENERAL.—In carrying out this para- (A) IN GENERAL.—Title I of this Act is (3) CHAIRPERSON AND VICE-CHAIRPERSON.— graph, the Director shall disclose to Plan en- amended by striking ‘‘community health in- (A) IN GENERAL.—The Comptroller General rollees, potential enrollees, in-network surance option’’ each place it appears and in- shall designate a Chairperson and Vice- health care providers, and others (through a serting ‘‘Consumer Choice Health Plan’’. Chairperson of the Board from among the publically available Internet website and (B) ANNUAL FEE ON HEALTH INSURANCE PRO- members of the Board. other appropriate means) relevant informa- VIDERS.—Section 9010(c)(2)(B) is amended by (B) TERM.—The members designated as tion regarding each policy of health insur- striking ‘‘community health insurance op- Chairperson and Vice-Chairperson shall serve ance coverage marketed or in force (in such tion’’ and inserting ‘‘Consumer Choice for a period of 3 years. standardized manner as determined by the Health Plan’’. (4) CONFLICTS OF INTEREST.—An individual Director), including— (2) SPECIAL RULES.—Section 1303(a)(1)(C) is may not serve on the Board if such indi- (I) full policy contract language; and amended by— vidual (or an immediate family member of (II) a summary of the information de- (A) in clause (i)(III), striking ‘‘section such individual) is employed by or has a fi- scribed in subparagraph (D). 1323(e)(1)(C) or’’; and nancial interest in— (ii) PERSONALIZED STATEMENT.—The Direc- (B) in clause (ii), striking ‘‘section (A) an organization that provides a health tor shall disclose to enrollees (in such stand- 1323(b)(3)(A)’’ and inserting ‘‘section insurance plan; ardized manner as determined by the Direc- 1323(c)(3)(A)’’. (B) a pharmaceutical manufacturer; or tor) an annual personalized statement that SEC. 1323A. ESTABLISHMENT OF AMERICA’S (C) any subsidiary entities of an organiza- summarizes use of health care services and HEALTH INSURANCE TRUST. tion described in subparagraphs (A) or (B). payment of claims with respect to an en- (a) ESTABLISHMENT.—As of the date of en- (5) COMPOSITION OF THE BOARD.— rollee (and covered dependents) under health actment of this Act, there is authorized to be (A) POLITICAL PARTIES.—Not more than 10 insurance coverage provided through the established a non-profit corporation that members of the Board may be affiliated with Plan in the preceding year. shall be known as the ‘‘America’s Health In- the same political party. (D) REQUIRED INFORMATION.—The informa- surance Trust’’ (referred to in this section (B) DIVERSITY.—In appointing members tion described in this subparagraph includes, and section 1323B as the ‘‘Trust’’), which is under this paragraph, the Comptroller Gen- but is not limited to, the following: neither an agency nor establishment of the eral shall ensure that such members provide (i) Data on the price of each new policy of United States Government. appropriately diverse representation with re- health insurance coverage and renewal rat- (b) LOCATION; SERVICE OF PROCESS.—The spect to race, ethnicity, age, gender, and ge- ing practices. Trust shall maintain its principal office ography. (ii) Claims payment policies and practices, within the District of Columbia and have a (C) CONSUMER REPRESENTATION.—10 mem- including how many and how quickly claims designated agent in the District of Columbia bers of the Board shall be independent and were paid. to receive service of process for the Trust. non-conflicted individuals representing the (iii) Provider fee schedules and usual, cus- Notice to or service on the agent shall be interests of health care consumers. Each tomary, and reasonable fees (for both in-net- deemed as notice to or service on the cor- member selected under this subparagraph work and out-of-network providers). poration. shall represent 1 of the 10 Department of (iv) Provider participation and provider di- (c) APPLICATION OF PROVISIONS.—The Trust Health and Human Services regions in the rectories. shall be subject to the provisions of this sec- United States. (v) Loss ratios, including detailed informa- tion and, to the extent consistent with this (D) REMAINING REPRESENTATION.— tion about amount and type of non-claims section, to the District of Columbia Non- (i) IN GENERAL.—9 members of the Board expenses. profit Corporation Act. shall be selected based on relevant experi- (vi) Covered benefits, cost-sharing, and (d) TAX EXEMPT STATUS.—The Trust shall ence, including expertise in— amount of payment provided toward each be treated as a nonprofit organization de- (I) community affairs; type of service identified as a covered ben- scribed under section 170(c)(2)(B) and section (II) Federal, State, and local government; efit, including preventive care services rec- 501(c)(3) of the Internal Revenue Code of 1986 (III) health professions and administration; ommended by the United States Preventive that is exempt from taxation under section (IV) business, finance, and accounting; Services Task Force. 501(a) of the Internal Revenue Code of 1986. (V) legal affairs;

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00037 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.001 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD December 6, 2009 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 29617 (VI) insurance; ing an analysis of the adequacy and use of ments or premiums are received as consider- (VII) trade unions; the funding for the Trust and its activities. ation for any person’s agreement to provide (VIII) social services; and (h) RULES ON GIFTS AND OUTSIDE CONTRIBU- or arrange for the provision of accident or (IX) any additional areas as determined by TIONS.— health coverage to residents of the United the Comptroller General. (1) GIFTS.—The Trust (including the Board States, regardless of how such coverage is (ii) INCOME FROM HEALTH CARE INDUSTRY.— and any staff acting on behalf of the Trust) provided or arranged to be provided. Not more than 4 of the members selected shall not accept gifts, bequeaths, or dona- ‘‘(d) ADJUSTMENTS FOR INCREASES IN under this subparagraph shall earn more tions of services or property. HEALTH CARE SPENDING.—In the case of any than 10 percent of their income from the (2) PROHIBITION ON OUTSIDE FUNDING OR CON- policy issued in any fiscal year beginning health care industry. TRIBUTIONS.—The Trust shall not— after September 30, 2014, the dollar amount (6) MEETINGS AND HEARINGS.—The Board (A) establish a corporation other than as in effect under subsection (a) for such policy shall meet and hold hearings at the call of provided under this section; or shall be equal to the sum of such dollar the Chairperson or a majority of its mem- (B) accept any funds or contributions other amount for policies issued in the previous bers. Meetings of the Board on matters not than as provided under this section. fiscal year (determined after the application related to personnel shall be open to the pub- (i) AMERICA’S HEALTH INSURANCE TRUST of this subsection), plus an amount equal to lic and advertised through public notice at FUND.— the product of— least 7 days prior to the meeting. (1) IN GENERAL.—There is established in the ‘‘(1) such dollar amount for policies issued (7) QUORUM.—A majority of the members of Treasury a trust fund to be known as the in the previous fiscal year, multiplied by the Board shall constitute a quorum for pur- ‘‘America’s Health Insurance Trust Fund’’ ‘‘(2) the percentage increase in the pro- poses of conducting the duties of the Trust, (referred to in this section as the ‘‘Trust jected per capita amount of National Health but a lesser number of members may meet Fund’’), consisting of such amounts as may Expenditures from the calendar year in and hold hearings. be credited to the Trust Fund as provided which the previous fiscal year ends to the (8) EXECUTIVE DIRECTOR AND STAFF; PER- under this subsection. calendar year in which the fiscal year in- FORMANCE OF DUTIES.—The Board may— (2) TRANSFER.—The Secretary of the Treas- volved ends, as most recently published by (A) employ and fix the compensation of an ury shall transfer to the Trust Fund out of the Secretary of Health and Human Services Executive Director and such other personnel the general fund of the Treasury amounts de- before the beginning of the fiscal year. as may be necessary to carry out the duties termined by the Secretary to be equivalent ‘‘(e) TERMINATION.—This section shall not of the Trust; to the amounts received into such general apply to policy years ending after September (B) seek such assistance and support as fund that are attributable to the fees col- 30, 2019. may be required in the performance of the lected under sections 4385 and 4386 of the In- ‘‘SEC. 4386. SELF-INSURED HEALTH PLANS. duties of the Trust from appropriate depart- ternal Revenue Code of 1986 (relating to fees ‘‘(a) IMPOSITION OF FEE.—In the case of any ments and agencies of the Federal Govern- on health insurance policies and self-insured applicable self-insured health plan issued ment; health plans). after October 1, 2009, there is hereby imposed (C) enter into contracts or other arrange- (3) FINANCING FOR FUND FROM FEES ON IN- a fee equal to— ments and make such payments as may be SURED AND SELF-INSURED HEALTH PLANS.— ‘‘(1) for plans issued during fiscal years 2010 necessary for performance of the duties of (A) GENERAL RULE.—Chapter 34 of the In- through 2013, 50 cents multiplied by the aver- the Trust; ternal Revenue Code of 1986 is amended by age number of lives covered under the plan; (D) provide travel, subsistence, and per adding at the end the following new sub- and diem compensation for individuals per- chapter: ‘‘(2) for plans issued after September 30, forming the duties of the Trust, including ‘‘Subchapter C—Additional Fees on Insured 2013, $1 multiplied by the average number of members of the Advisory Council (as de- and Self-Insured Health Plans lives covered under the plans. scribed in subsection (f)); and ‘‘Sec. 4385. Health insurance. ‘‘(b) LIABILITY FOR FEE.— (E) prescribe such rules, regulations, and ‘‘Sec. 4386. Self-insured health plans. ‘‘(1) IN GENERAL.—The fee imposed by sub- bylaws as the Board determines necessary ‘‘Sec. 4387. Definitions and special rules. section (a) shall be paid by the plan sponsor. with respect to the internal organization and ‘‘SEC. 4385. HEALTH INSURANCE. ‘‘(2) PLAN SPONSOR.—For purposes of para- operation of the Trust. ‘‘(a) IMPOSITION OF FEE.—In the case of any graph (1) the term ‘plan sponsor’ means— (9) LOBBYING COOLING-OFF PERIOD FOR MEM- specified health insurance policy issued after ‘‘(A) the employer in the case of a plan es- BERS OF THE BOARD.—Section 207(c) of title October 1, 2009, there is hereby imposed a fee tablished or maintained by a single em- 18, United States Code, as amended by sec- equal to— ployer, tion 3403(a)(2), is amended by inserting at the ‘‘(1) for policies issued during fiscal years ‘‘(B) the employee organization in the case end the following: 2010 through 2013, 50 cents multiplied by the of a plan established or maintained by an ‘‘(4) MEMBERS OF THE BOARD OF DIRECTORS average number of lives covered under the employee organization, OF THE AMERICA’S HEALTH INSURANCE TRUST.— policy; and ‘‘(C) in the case of— Paragraph (1) shall apply to a member of the ‘‘(2) for policies issued after September 30, ‘‘(i) a plan established or maintained by 2 Board of Directors of the America’s Health 2013, $1 multiplied by the average number of or more employers or jointly by 1 or more Insurance Trust who was appointed to the lives covered under the policy. employers and 1 or more employee organiza- Board as of the day before the date of enact- ‘‘(b) LIABILITY FOR FEE.—The fee imposed tions, ment of the Patient Protection and Afford- by subsection (a) shall be paid by the issuer ‘‘(ii) a multiple employer welfare arrange- able Care Act.’’. of the policy. ment, or (f) ADVISORY COUNCIL.— ‘‘(c) SPECIFIED HEALTH INSURANCE POL- ‘‘(iii) a voluntary employees’ beneficiary (1) ESTABLISHMENT.—The Board shall es- ICY.—For purposes of this section: association described in section 501(c)(9), tablish an advisory council that shall be ‘‘(1) IN GENERAL.—Except as otherwise pro- the association, committee, joint board of comprised of the insurance commissioners of vided in this section, the term ‘specified trustees, or other similar group of represent- each State (including the District of Colum- health insurance policy’ means any accident atives of the parties who establish or main- bia) to advise the Board on the development or health insurance policy (including a pol- tain the plan, or and impact of measures to improve the icy under a group health plan) issued with ‘‘(D) the cooperative or association de- transparency and accountability of qualified respect to individuals residing in the United scribed in subsection (c)(2)(F) in the case of health plans provided through the Exchanges States. a plan established or maintained by such a established under this title. ‘‘(2) EXEMPTION FOR CERTAIN POLICIES.—The cooperative or association. (2) MEETINGS.—The advisory council shall term ‘specified health insurance policy’ does ‘‘(c) APPLICABLE SELF-INSURED HEALTH meet not less than twice a year and at the not include any insurance if substantially all PLAN.—For purposes of this section, the request of the Board. of its coverage is of excepted benefits de- term ‘applicable self-insured health plan’ (g) FINANCIAL OVERSIGHT.— scribed in section 9832(c). means any plan for providing accident or (1) CONTRACT FOR AUDITS.—The Trust shall ‘‘(3) TREATMENT OF PREPAID HEALTH COV- health coverage if— provide for financial audits of the Trust on ERAGE ARRANGEMENTS.— ‘‘(1) any portion of such coverage is pro- an annual basis by a private entity with ex- ‘‘(A) IN GENERAL.—In the case of any ar- vided other than through an insurance pol- pertise in conducting financial audits. rangement described in subparagraph (B)— icy, and (2) REVIEW AND REPORT ON AUDITS.—The ‘‘(i) such arrangement shall be treated as a ‘‘(2) such plan is established or main- Comptroller General shall— specified health insurance policy, and tained— (A) review and evaluate the results of the ‘‘(ii) the person referred to in such sub- ‘‘(A) by one or more employers for the ben- audits conducted pursuant to paragraph (1); paragraph shall be treated as the issuer. efit of their employees or former employees, and ‘‘(B) DESCRIPTION OF ARRANGEMENTS.—An ‘‘(B) by one or more employee organiza- (B) submit a report to Congress containing arrangement is described in this subpara- tions for the benefit of their members or the results and review of such audits, includ- graph if under such arrangement fixed pay- former members,

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00038 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.001 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD 29618 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 December 6, 2009 ‘‘(C) jointly by 1 or more employers and 1 ‘‘(E) any program established by Federal for individuals to provide recommendations or more employee organizations for the ben- law for providing medical care (other than and complaints regarding the qualified efit of employees or former employees, through insurance policies) to individuals (or health plans provided through the Ex- ‘‘(D) by a voluntary employees’ beneficiary the spouses and dependents thereof) by rea- changes. association described in section 501(c)(9), son of such individuals being— (B) CONSUMER SURVEYS.—The Trust shall ‘‘(E) by any organization described in sec- ‘‘(i) members of the Armed Forces of the obtain meaningful consumer input, including tion 501(c)(6), or United States, or consumer surveys, that measure the extent ‘‘(F) in the case of a plan not described in ‘‘(ii) veterans, and to which an individual receives the services the preceding subparagraphs, by a multiple ‘‘(F) any program established by Federal and supports described in the individual’s employer welfare arrangement (as defined in law for providing medical care (other than health insurance plan and the individual’s section 3(40) of Employee Retirement Income through insurance policies) to members of satisfaction with such services and supports. Security Act of 1974), a rural electric cooper- Indian tribes (as defined in section 4(d) of the ative (as defined in section 3(40)(B)(iv) of Indian Health Care Improvement Act). (b) DATA SHARING.— such Act), or a rural telephone cooperative ‘‘(c) TREATMENT AS TAX.—For purposes of (1) IN GENERAL.—An organization that pro- association (as defined in section 3(40)(B)(v) subtitle F, the fees imposed by this sub- vides a qualified health plan through an Ex- of such Act). chapter shall be treated as if they were change shall provide the Trust with all infor- ‘‘(d) ADJUSTMENTS FOR INCREASES IN taxes. mation and data that is necessary for im- HEALTH CARE SPENDING.—In the case of any ‘‘(d) NO COVER OVER TO POSSESSIONS.—Not- proving transparency, monitoring, and over- plan issued in any fiscal year beginning after withstanding any other provision of law, no sight of such plans. September 30, 2014, the dollar amount in ef- amount collected under this subchapter shall (2) ANNUAL DISCLOSURE.—Beginning with fect under subsection (a) for such plan shall be covered over to any possession of the the first full year for which Exchanges are be equal to the sum of such dollar amount United States.’’. required to be operational under this title, for plans issued in the previous fiscal year (B) CLERICAL AMENDMENTS.— an organization that provides a qualified (determined after the application of this sub- (i) Chapter 34 of such Code is amended by health plan through an Exchange shall annu- section), plus an amount equal to the prod- striking the chapter heading and inserting ally provide the Trust with appropriate in- uct of— the following: formation regarding the following: ‘‘(1) such dollar amount for plans issued in (A) Name of the plan. the previous fiscal year, multiplied by ‘‘CHAPTER 34—TAXES ON CERTAIN ‘‘(2) the percentage increase in the pro- INSURANCE POLICIES (B) Levels of available plan benefits. (C) Description of plan benefits. jected per capita amount of National Health ‘‘SUBCHAPTER A. POLICIES ISSUED BY FOREIGN (D) Number of enrollees under the plan. Expenditures from the calendar year in INSURERS which the previous fiscal year ends to the (E) Demographic profile of enrollees under ‘‘SUBCHAPTER B. INSURED AND SELF-INSURED the plan. calendar year in which the fiscal year in- HEALTH PLANS volved ends, as most recently published by (F) Number of claims paid to enrollees. the Secretary of Health and Human Services ‘‘SUBCHAPTER C. ADDITIONAL FEES ON INSURED (G) Number of enrollees that terminated before the beginning of the fiscal year. AND SELF-INSURED HEALTH PLANS their coverage under the plan. ‘‘(e) TERMINATION.—This section shall not ‘‘Subchapter A—Policies Issued By Foreign (H) Total operating cost for the plan (in- apply to plans issued after September 30, Insurers’’. cluding administrative costs). 2019. (ii) The table of chapters for subtitle D of (I) Patterns of utilization of the plan’s ‘‘SEC. 4387. DEFINITIONS AND SPECIAL RULES. such Code is amended by striking the item services. ‘‘(a) DEFINITIONS.—For purposes of this relating to chapter 34 and inserting the fol- (J) Availability, accessibility, and accept- subchapter— lowing new item: ability of the plan’s services. ‘‘(1) ACCIDENT AND HEALTH COVERAGE.—The (K) Such information as the Trust may re- ‘‘CHAPTER 34—TAXES ON CERTAIN INSURANCE term ‘accident and health coverage’ means POLICIES’’. quire demonstrating that the organization any coverage which, if provided by an insur- has a fiscally sound operation. ance policy, would cause such policy to be a SEC. 1323B. DUTIES OF AMERICA’S HEALTH IN- (L) Any additional information as deter- SURANCE TRUST. specified health insurance policy (as defined mined by the Trust. (a) INSURANCE PLAN RANKINGS AND in section 4385(c)). (3) FORM AND MANNER OF INFORMATION.—In- WEBSITE.— ‘‘(2) INSURANCE POLICY.—The term ‘insur- formation to be provided to the Trust under (1) WEB-BASED MATERIALS.—The Trust shall ance policy’ means any policy or other in- paragraphs (1) and (2) shall be provided— strument whereby a contract of insurance is establish and maintain a website that pro- (A) in such form and manner as specified issued, renewed, or extended. vides informational materials regarding the by the Trust; and ‘‘(3) UNITED STATES.—The term ‘United qualified health plans provided through the (B) within 30 days of the date of receipt of States’ includes any possession of the United Exchanges established under this title, in- the request for such information, or within States. cluding appropriate links for all available such extended period as the Trust deems ap- ‘‘(b) TREATMENT OF GOVERNMENTAL ENTI- State insurance commissioner websites. TIES.— (2) PLAN RANKINGS.—The Trust shall de- propriate. ‘‘(1) IN GENERAL.—For purposes of this sub- velop and publish annual rankings of the (4) INFORMATION FROM THE DEPARTMENT OF chapter— qualified health plans provided through the HEALTH AND HUMAN SERVICES.— ‘‘(A) the term ‘person’ includes any govern- Exchanges, based on the assignment of a let- (A) IN GENERAL.—Any information regard- mental entity, and ter grade between ‘‘grade A’’ (highest) and ing the qualified health plans that are of- ‘‘(B) notwithstanding any other law or rule ‘‘grade F’’ (lowest). The Trust shall provide fered through the Exchanges that has been of law, governmental entities shall not be ex- for a comparative evaluation of each plan provided to the Secretary of Health and empt from the fees imposed by this sub- based upon— Human Services shall also be made available chapter except as provided in paragraph (2). (A) administrative expenditures; (as deemed appropriate by the Secretary) to ‘‘(2) TREATMENT OF EXEMPT GOVERNMENTAL (B) affordability of coverage; the Trust for the purpose of improving trans- PROGRAMS.—In the case of an exempt govern- (C) adequacy of coverage; parency, monitoring, and oversight of such mental program, no fee shall be imposed (D) timeliness and adequacy of consumer plans. Such information may include, but is under section 4385 or section 4386 on any cov- claims processing; not limited to, the following: ered policy or plan under such program. (E) available consumer complaint systems; (i) Underwriting guidelines to ensure com- ‘‘(3) EXEMPT GOVERNMENTAL PROGRAM DE- (F) grievance and appeals processes; pliance with applicable Federal health insur- FINED.—For purposes of this subchapter, the (G) transparency; ance requirements. term ‘exempt governmental program’ (H) consumer satisfaction; and (ii) Rating practices to ensure compliance means— (I) any additional measures as determined with applicable Federal health insurance re- ‘‘(A) any insurance program established by the Board. quirements. under title XVIII of the Social Security Act, (3) INFORMATION AVAILABLE ON WEBSITE BY (iii) Enrollment and disenrollment data, ‘‘(B) the medical assistance program estab- ZIP CODE.—The annual rankings of the quali- including information the Secretary may lished by title XIX or XXI of the Social Se- fied health plans (as described in paragraph need to detect patterns of discrimination curity Act, (2)) shall be available on the website for the against individuals based on health status or ‘‘(C) the Federal Employees Health Bene- Trust (as described in paragraph (1)), and other characteristics, to ensure compliance fits Program under chapter 89 of title 5, websites for the Exchanges, in a manner that with applicable Federal health insurance re- United States Code, is searchable and sortable by zip code. quirements (including non-discrimination in ‘‘(D) the Consumer Choice Health Plan es- (4) CONSUMER FEEDBACK.— group coverage, guaranteed issue, and guar- tablished under section 1323 of the Patient (A) CONSUMER COMPLAINTS.—The Trust anteed renewability requirements applicable Protection and Affordable Care Act, shall develop written and web-based methods in all markets).

VerDate Mar 15 2010 14:12 Aug 30, 2012 Jkt 079102 PO 00000 Frm 00039 Fmt 0686 Sfmt 0634 E:\BR09\S06DE9.001 S06DE9 rmajette on DSK2TPTVN1PROD with BOUND RECORD December 6, 2009 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 22 29619 (iv) Post-claims underwriting and rescis- treasury, in amounts equal to the respective rect or indirectly, or authorize any other sion practices to ensure compliance with ap- premium contributions of the enrollee and person to manufacture, market, sell, or dis- plicable Federal health insurance require- the Federal Government, taking into ac- tribute an authorized generic drug. ments relating to guaranteed renewability. count premium subsidies provided to individ- ‘‘(2) AUTHORIZED GENERIC DRUG.—For pur- (v) Marketing materials and agent guide- uals or families for coverage purchased in an poses of this subsection, the term ‘author- lines to ensure compliance with applicable Exchange.’’. ized generic drug’— Federal health insurance requirements. ‘‘(A) means any version of a listed drug (as (vi) Data on the imposition of pre-existing SA 2951. Mr. ROCKEFELLER submitted such term is used in subsection (j)) that the condition exclusion periods and claims sub- an amendment intended to be proposed holder of the new drug application approved jected to such exclusion periods. to amendment SA 2786 proposed by Mr. under subsection (c) for that listed drug (vii) Information on issuance of certifi- REID (for himself, Mr. BAUCUS, Mr. seeks to commence marketing, selling, or cates of creditable coverage. distributing, directly or indirectly, after re- DODD, and Mr. HARKIN) to the bill H.R. (viii) Information on cost-sharing and pay- ceipt of a notice sent pursuant to subsection ments with respect to any out-of-network 3590, to amend the Internal Revenue (j)(2)(B) with respect to that listed drug; and coverage. Code of 1986 to modify the first-time ‘‘(B) does not include any drug to be mar- (ix) The application to issuers of penalties homebuyers credit in the case of mem- keted, sold, or distributed— for violation of applicable Federal health in- bers of the Armed Forces and certain ‘‘(i) by an entity eligible for exclusivity surance requirements (including failure to other Federal employees, and for other with respect to such drug under subsection produce requested information). purposes; which was ordered to lie on (j)(5)(B)(iv); or (x) Such other information as the Trust the table; as follows: ‘‘(ii) after expiration or forfeiture of any may determine to be necessary to verify exclusivity with respect to such drug under compliance with the requirements of this On page 112, between lines 8 and 9, insert such subsection (j)(5)(B)(iv).’’. section. the following: (b) CONFORMING AMENDMENT.—Section AXIMUM TOTAL OUT OF POCKET EX (B) REQUIRED DISCLOSURE.—The Secretary (5) M - - - 505(t)(3) of the Federal Food, Drug, and Cos- of Health and Human Services shall provide PENSES.— metic Act (21 U.S.C. 355(t)(3)) is amended by the Trust with all consumer claims data or (A) IN GENERAL.—Notwithstanding any striking ‘‘In this section’’ and inserting ‘‘In information that has been provided to the other provision of this Act (or any amend- this subsection’’. Secretary by any qualified health plan that ments made by this Act), in no case may f is offered through an Exchange. out-of-pocket expenses incurred under a (C) PERIOD FOR PROVIDING INFORMATION.— health plan with respect to self-only cov- erage or coverage other than self-only exceed ORDERS FOR MONDAY, DECEMBER Information to be provided to the Trust 7, 2009 under this paragraph shall be provided by the following limits for any plan year begin- the Secretary within 30 days of the date of ning in or after 2014: Mr. BEGICH. Mr. President, I ask receipt of the request for such information, (i) 7.5 percent of annual household income unanimous consent that when the Sen- or within such extended period as the Sec- for an individual with household income ate completes its business today, it ad- under 200 percent of the poverty line for the retary and the Trust mutually deem appro- journ until 10 a.m., Monday, December priate. size of the family involved. (ii) 10 percent of annual household income 7; that following the prayer and the (5) NON-DISCLOSURE OF HEALTH INSURANCE pledge, the Journal of proceedings be DATA.—The Trust shall prevent disclosure of for an individual with household income be- any data or information provided under this tween 200 and 400 percent of the poverty line approved to date, the morning hour be paragraph that the Trust determines is pro- for the size of the family involved. deemed to have expired, the time for prietary or qualifies as a trade secret subject (iii) 12 percent of annual household income the two leaders be reserved for their to withholding from public dissemination. for an individual with household income use later in the day, and the Senate re- Any data or information provided under this above 400 percent of the poverty line for the sume consideration of H.R. 3590, the size of the family involved. paragraph shall not be subject to disclosure health care reform legislation; that fol- under section 552 of title 5, United States (B) OUT-OF-POCKET EXPENSES.—In this para- graph, the term ‘‘out-of-pocket expenses’’ in- lowing leader remarks, the first 2 hours Code (commonly referred to as the Freedom be equally divided and controlled be- of Information Act). cludes deductibles, coinsurance, copayments, premiums, balance billing amounts for non- tween the two leaders or their des- network providers, and similar charges. SA 2950. Mr. ROCKEFELLER submitted ignees, with Senators permitted to an amendment intended to be proposed speak therein for up to 10 minutes SA 2952. Mr. ROCKEFELLER submitted to amendment SA 2786 proposed by Mr. each, with the Republicans controlling an amendment intended to be proposed REID (for himself, Mr. BAUCUS, Mr. the first 30 minutes, and the majority to amendment SA 2786 proposed by Mr. DODD, and Mr. HARKIN) to the bill H.R. controlling the next 30 minutes, and REID (for himself, Mr. BAUCUS, Mr. 3590, to amend the Internal Revenue with no amendments or motions in DODD, and Mr. HARKIN) to the bill H.R. Code of 1986 to modify the first-time order during the controlled time. 3590, to amend the Internal Revenue homebuyers credit in the case of mem- The PRESIDING OFFICER. Without Code of 1986 to modify the first-time bers of the Armed Forces and certain objection, it is so ordered. homebuyers credit in the case of mem- other Federal employees, and for other bers of the Armed Forces and certain f purposes; which was ordered to lie on other Federal employees, and for other the table; as follows: PROGRAM purposes; which was ordered to lie on Mr. BEGICH. Mr. President, rollcall On page 34, between lines 4 and 5, insert the table; as follows: the following: votes in relation to the amendments to On page 1925, between lines 14 and 15, insert the health care reform bill are ex- ‘‘SEC. 2720. LIMITATION ON ANNUAL GROWTH IN the following: HEALTH INSURANCE PREMIUMS. pected to occur after 3:15 p.m. tomor- ‘‘(a) IN GENERAL.—A group health plan and Subtitle C—Provisions Relating to row. a health insurance issuer offering group or Authorized Generic Drugs individual health insurance coverage may SEC. 7201. PROHIBITION OF AUTHORIZED f not increase the health insurance premium GENERICS. ADJOURNMENT UNTIL 10 A.M. rates for such plan or coverage in any year (a) IN GENERAL.—Section 505 of the Federal by a percentage that is greater than the per- Food, Drug, and Cosmetic Act (21 U.S.C. 355) TOMORROW centage increase in the Medical Care Compo- is amended by adding at the end the fol- Mr. BEGICH. Mr. President, if there nent of the Consumer Price Index for all lowing: is no further business to come before urban consumers for year involved. ‘‘(w) PROHIBITION OF AUTHORIZED GENERIC the Senate, I ask unanimous consent ‘‘(b) EFFECT.—If a plan or an issuer in- DRUGS.— that it adjourn under the previous creases the health insurance premium rate ‘‘(1) IN GENERAL.—Notwithstanding any by a percentage greater than the percentage other provision of this Act, no holder of a order. described in subsection (a), that plan or new drug application approved under sub- There being no objection, the Senate, issuer shall refund the excess premium dol- section (c) shall manufacture, market, sell, at 5:24 p.m., adjourned until Monday, lars back to the enrollee or to the Federal or distribute an authorized generic drug, di- December 7, 2009, at 10 a.m.

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