[Senate Hearing 113-361]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 113-361
 
     JUSTICE DENIED: RULES DELAYED ON AUTO SAFETY AND MENTAL HEALTH 

=======================================================================

                                HEARING

                               before the

                       SUBCOMMITTEE ON OVERSIGHT,
                    FEDERAL RIGHTS AND AGENCY ACTION

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                            NOVEMBER 7, 2013

                               __________

                          Serial No. J-113-38

                               __________

         Printed for the use of the Committee on the Judiciary

                               ----------

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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
DIANNE FEINSTEIN, California         CHUCK GRASSLEY, Iowa, Ranking 
CHUCK SCHUMER, New York                  Member
DICK DURBIN, Illinois                ORRIN G. HATCH, Utah
SHELDON WHITEHOUSE, Rhode Island     JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota             LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota                JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut      TED CRUZ, Texas
MAZIE HIRONO, Hawaii                 JEFF FLAKE, Arizona
            Bruce A. Cohen, Chief Counsel and Staff Director
        Kolan Davis, Republican Chief Counsel and Staff Director
                                 ------                                

      Subcommittee on Oversight, Federal Rights and Agency Action

                RICHARD BLUMENTHAL, Connecticut Chairman
PATRICK J. LEAHY, Vermont            ORRIN G. HATCH, Utah, Ranking 
AMY KLOBUCHAR, Minnesota                 Member
                                     JEFF FLAKE, Arizona
                      Samuel Simon, Senior Counsel
                Thomas Jipping, Republican Chief Counsel



                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Blumenthal, Hon. Richard, a U.S. Senator from the State of 
  Connecticut....................................................     1
    prepared statement...........................................    34
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     7

                               WITNESSES

Witness List.....................................................    33
Kennedy, Hon. Patrick J., a Former Representative in Congress 
  from the State of Rhode Island, and Founder, The Kennedy Forum, 
  Brigantine, New Jersey.........................................     4
    prepared statement...........................................    38
Morelli, Cathy, Southington, Connecticut.........................     9
    prepared statement...........................................    51
McGarity, Thomas O., Joe R. and Teresa Lozano Long Endowed Chair 
  in Administrative Law, University of Texas School of Law, 
  Austin, Texas..................................................    20
    prepared statement...........................................    53
Ditlow, Clarence M., Executive Director, Center for Auto Safety, 
  Washington, DC.................................................    22
    prepared statement...........................................    67
Coglianese, Cary, Edward B. Shils Professor of Law, and Director, 
  Penn Program on Regulation, University of Pennsylvania, 
  Philadelphia, Pennsylvania.....................................    24
    prepared statement...........................................    71

                               QUESTIONS

Questions submitted by Senator Whitehouse for Thomas McGarity....    92

                         QUESTIONS AND ANSWERS

Responses of Thomas McGarity to questions submitted by Senator 
  Whitehouse.....................................................    93

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

Cohen, Edward B., Vice President, Government & Industry 
  Relations, Honda North America, Inc., November 8, 2013, letter.    96
Ellig, Jerry, Senior Research Fellow, Mercatus Center at George 
  Mason University, ``Regulatory Rush Job Deprives Many of Health 
  Insurance Plans They Liked'', October 31, 2013, The Hill, 
  article........................................................    97
Gillan, Jacqueline, President, Advocates for Highway and Auto 
  Safety; et al., November 6, 2013, letter.......................    99

                 ADDITIONAL SUBMISSIONS FOR THE RECORD

Submissions for the record not printed due to voluminous nature, 
  previously printed by an agency of the Federal Government or 
  other criteria determined by the Committee:

  ``NHTSA Vehicle Safety Priority Plan'' Available at: http://
    www.nhtsa.gov/Research


     JUSTICE DENIED: RULES DELAYED ON AUTO SAFETY AND MENTAL HEALTH

                             ----------                              

                       THURSDAY, NOVEMBER 7, 2013

                               U.S. Senate,
                 Subcommittee on Oversight, Federal
                         Rights, and Agency Action,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 1:34 p.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Richard 
Blumenthal, Chairman of the Subcommittee, presiding.
    Present: Senators Blumenthal, Whitehouse, Klobuchar, 
Franken, and Hatch.

 OPENING STATEMENT OF HON. RICHARD BLUMENTHAL, A U.S. SENATOR 
                 FROM THE STATE OF CONNECTICUT

    Chairman Blumenthal. We will be joined shortly, I am told, 
by Senator Hatch, the Ranking Member, and as sometimes happens, 
we are going to be interrupted by a vote at 1:45. That is what 
has been scheduled. Then we will take a brief break and return 
to this very, very important hearing, ``Justice Denied: Rules 
Delayed in Auto Safety and Mental Health.'' And as some of you 
may know, this hearing is a continuing effort to expose the 
costs and damage done by regulations that are delayed and 
thereby cause justice to be denied.
    When elected officials talk about regulation, the stakes 
can be tremendously high even if the public does not always 
understand and even may not be aware of what the consequences 
are. Regulatory agencies have authority to act through official 
rulemaking and the notice and comment process created in 1946 
through the Rules of Administrative Procedure, but they should 
do so openly and transparently, and they should be held 
accountable for meeting deadlines for those rules. Without the 
rules, very often the law is simply dead letter. Regulations 
are essential to making laws enforceable, and that is really 
why we are here, because too many laws have been made 
essentially less effective or even unenforceable as a result of 
delays or non-issuance of such regulations.
    In the case of mental health parity, the cost has been 
clarity and certainty. Congress passed the Mental Health Parity 
and Addiction Equity Act in 2008. Congressman Kennedy and 
Senator Ted Kennedy were instrumental in its passage. They have 
led the Nation in appreciating and acting on the importance of 
treating as well as diagnosing mental health issues.
    Nothing I say can really do justice to the work that they 
have done, along with others, and I want to applaud the Ranking 
Member, Senator Hatch, who was an original cosponsor of that 
legislation and is a champion in this fight. And he knows 
personally how grateful many people are to his leadership and 
to others who have worked on this issue. I have done so as a 
State official, as a State Attorney General, and very proudly 
with a number of my colleagues who have been State officials.
    The Act required that implementing agencies write a rule 
within a year. Pretty simple. Two years later--2 years after 
the Act, 1 year after the statutory deadline--the agencies 
released an interim final rule. But the rule essentially left a 
lot of questions unanswered. Even worse, it left the industry 
wondering whether to change its policies or to wait until a 
final rule brought certainty and a clear path forward. And the 
regulators also hesitated to change rules, leaving the industry 
essentially free to delay compliance with the law.
    Five years after the Act was passed, this promise remains 
unfulfilled. I am told that issuance of final rules is 
imminent, 5 years after the Act was passed, 4 years after the 
statutory deadline, but the costs have been tremendous.
    In mental health, uncertainty kills. If an individual poses 
a threat to himself or others, he cannot be told he will get 
the care he needs as soon as his insurance company decides the 
meaning of ``parity.'' He cannot win access to needed care only 
after resorting to the courts or to a long administrative 
process. In a very specific, concrete, practical way, justice 
delayed is justice denied. And that fact is particularly true 
of veterans who need mental health care. This issue is 
particularly pertinent at this point in our history because of 
the large number of veterans who will be coming from the wars 
that they have fought, combat that has exacted a toll on their 
mental health through post-traumatic stress and traumatic brain 
injury. They need this treatment for their invisible wounds. 
And as we approach Veterans Day, we should be especially 
mindful about the searing, destructive impact of this delay on 
our veterans.
    In the auto safety realm, the National Highway Traffic 
Safety Administration, known as NHTSA, struggled early in its 
history to release rules in a timely fashion. The result was 
twofold. On the one hand, important NHTSA rules have been 
delayed even when Congress has expressly demanded them. One 
good example is the rear visibility rule. We held a hearing 
that dealt in part with it last time, and it was discussed at 
that hearing as a prime example of rule delay meaning justice 
and safety denied.
    On the other hand, NHTSA has had to do by recall what it 
should have been able to do by rule. Clarence Ditlow, one of 
our witnesses, a very distinguished safety expert, will tell 
the story of rules that were suggested to NHTSA by automobile 
safety advocates but went nowhere, only to arise again when 
defective automobiles have been removed from the road, not 
because they were bad-looking or because they were the wrong 
color, but because they were unsafe--in fact, defective.
    These are tragic situations for people who are injured or 
killed in a car that never should have been sold in the first 
place. And they are also bad for the car companies. Quite 
bluntly, their consumers, their customers, want to know exactly 
what they are getting, and the companies want to know what the 
law requires of them to give those customers.
    When I talk to businessmen, they tell me they make money in 
a heavily regulated industry. They need to know what the rules 
are and have certainty about what those rules will be. The 
great enemy is uncertainty. When the policy is made by 
adjudication because rulemaking is too difficult, these 
businessmen cannot get the certainty and clarity they need to 
invest, grow jobs, and grow their companies.
    Now, I said at the beginning the story we are telling here 
should be common ground. Both industry and consumers want clear 
rules. Everybody wants certainty. Anybody who has watched a 
high school civics class, if you have not taken one lately, 
knows that students learn the laws are made by the Congress, 
they are executed by the President and the executive branch, 
and adjudication takes place in the courts. But Congress cannot 
make laws that are effective if those laws are not accompanied 
by regulations necessary to enforce them. And representatives 
of both private interests and the public interest should want 
bad behavior to be prevented before it occurs as well as 
punished afterward.
    The problem that we face is to make sure the rules are 
promulgated and enforced, and enforced effectively, and that is 
why we are here today.
    I want to again thank everyone, particularly Ranking Member 
Hatch, who will join us shortly, if not before the vote, then 
afterward. And I am now going to ask for the witnesses to be 
sworn in so that we can proceed with your testimony.
    If you would please stand, raise your right hand: Do you 
affirm that the testimony you are about to give before the 
Committee will be the truth, the whole truth, and nothing but 
the truth, so help you God?
    Mr. Kennedy. I do.
    Ms. Morelli. I do.
    Chairman Blumenthal. Thank you. Let me introduce the 
witnesses to the Committee.
    Representative Patrick Kennedy of Rhode Island is the co-
founder of One Mind for Research. He has been an active and 
steadfast advocate of not only research but treatment of all 
neurological and psychiatric disorders, and he has been an 
advocate not only as a Member of Congress but afterward, and is 
the winner of numerous awards for the work that he has done in 
this area. And I know how busy you are. We thank you for being 
here today, Congressman.
    Cathy Morelli works full-time as a casualty claim adjuster. 
Her 15-year-old daughter suffers from a mental illness, and she 
advocates for her and others who have to fight for insurance 
benefits for the treatment of mental illness. She likewise, in 
Southington, Connecticut, where she lives, as well as the State 
and the Nation, has been a very vigorous and effective advocate 
for treatment of mental health issues and better understanding 
of those issues.
    So we thank you both for being here today, and, Congressman 
Kennedy, if you could please begin.

    STATEMENT OF THE HONORABLE PATRICK J. KENNEDY, A FORMER 
REPRESENTATIVE IN CONGRESS FROM THE STATE OF RHODE ISLAND, AND 
       FOUNDER, THE KENNEDY FORUM, BRIGANTINE, NEW JERSEY

    Mr. Kennedy. Thank you, Mr. Chairman, and it is an honor to 
be here with Cathy. It is good to see you again, Cathy.
    Thank you, Mr. Chairman, for your leadership on this issue 
and for calling this hearing. As you pointed out, we have been 
waiting 5 years for the final rule on a piece of legislation 
that my late father, who sat just where you are sitting today, 
who sat in this chamber of the Senate for nearly 50 years, 
helped me pass. And it was the last major piece of legislation 
that my father and I worked on together, and I recall President 
George W. Bush signing it into law, again reaffirming the fact 
that these are not Republican or Democratic issues. Pete 
Domenici and Jim Ramstad were our able cosponsors on that piece 
of legislation, and it is important for us to reflect on that 
today in a very partisan environment that we live in.
    I think it is also important to reflect, as you have stated 
at the outset, that there are huge consequences to this lack of 
clarification and implementation of the final rule--
specifically, as you mentioned, Mr. Chairman, our veterans. So 
when most people think about the Mental Health Parity and 
Addiction Equity Act, they do not often think about who those 
people are that are going to be impacted. Particularly they do 
not think about it when they think about our veterans, who, of 
course, have suffered what is known as the signature wound of 
the war: traumatic brain injury and post-traumatic stress 
disorder.
    Frankly, however, most of our veterans will never go to the 
VA for their care. That is because most of our veterans are 
State guard and reservists, like the Connecticut Guard, like 
the Rhode Island Guard. And they will go back to their places 
of employment. And if you cannot see the injury on the outside, 
then it does not exist. But as they go back to work and they 
are trying to deal with the confusion, with the emotional 
swings, with the impact and the symptoms of their signature 
wound of war, they need to be assured by all of us that they 
are not going to be left behind.
    This is not the job of just an insurance company. This is 
not the job of just the Federal Government. This is not the job 
of the mental health profession. It is the job of all of us. 
And the subject of this hearing, which is this delay in 
rulemaking and how that impacts the end result, well, as you 
know, Mr. Chairman, having been a top cop in Connecticut as 
Attorney General, you need clarity, you need rules in order for 
those to know what they are going to be held accountable to.
    Now, I will tell you that one of the reasons I believe we 
have had a delayed rule is not an unhappy coincidence, and that 
is, the passage of the ACA. Frankly, the Health Care 
Affordability Act has done more to extend parity than we ever 
were able to do in our parity bill. So I give the 
administration great credit for taking that next step and 
really taking parity and bringing it across our health care 
system.
    However, as you pointed out, Chairman, the notion that we 
have had to wait this long for clarity means that people have 
fallen through the cracks, and specifically we have seen them 
fall through the cracks by those inscrutable insurance 
companies who do not always follow the best of what the 
intentions and what the spirit of the law says, but who wait 
for clarification before they know to do the right thing.
    Some insurance companies have gotten it right. Many have 
gotten it wrong, and the reason is because they felt they could 
because the Federal Government was not there to clarify where 
their actions would be in violation.
    I just want to conclude, because I know most of the good 
work that this Committee does is in the questions and answers, 
but let me conclude with this: We just had a case in New York 
that was dismissed by a judge under the Mental Health Parity 
and Addiction Equity Act for two reasons:
    One, the judge said that the plaintiff had to be a 
consumer, could not be someone suing on behalf of a consumer. 
Now, that has got a whole set of implications with it, 
particularly for our community of the mentally ill who have a 
tough time fighting for their own survival and health, let 
alone having to take a case to court, as Cathy did on behalf of 
her daughter.
    Number two, the court dismissed the case because they said 
the defendant was not the insurance company, and, Mr. Chairman, 
I would think that this would spark a lot of interest in 
Washington, particularly amongst the Chamber of Commerce. They 
said the defendant had to be the employer themselves; in other 
words, if United or Anthem or any of the insurance companies 
make a medical necessity determination, decide to impose higher 
treatment limitations or financial limitations to those seeking 
mental health/substance abuse disorder care, then they can do 
so now with impunity, according to this judge and their ruling. 
And the right of recourse now is for employees, not someone who 
represents them, not a doctor or someone who can help them; it 
is up to the employees to bring the case against their own 
employer. Well, Cathy can speak about the role of stigma in 
this whole issue. You can only imagine what it would be like 
for someone to try to fight for recourse and to know that they 
have to do it against the person that is giving them a job.
    Mr. Chairman, all due respect, my message to this Committee 
is that the final rule is not the final word on this issue. And 
as you pointed out--and I think in large part due to your 
scheduling this hearing--we are going to get a final rule, and 
I understand it is going to be tomorrow. But this is not the 
final rule. It is the first step, because it is going to be the 
beginning whereby we begin to understand how we implement this 
thing called the Mental Health Parity and Addiction Equity Act, 
which, Mr. Chairman, you and I both know when we wrote the 
law--and Senator Hatch, Chairman Hatch, was a big part of 
this--we were crystal clear about what we meant. Parity, 
equality. If you treat diabetes, whether it is inpatient, 
outpatient, in-network, out-of-network, pharmacy benefits, 
emergency room services, you must do the same for a diabetic as 
you would an alcoholic as you would an asthmatic. If you treat 
someone with a stroke and you give them, you know, inpatient 
emergency room care and then you give them partial 
hospitalization, you have got to do that for someone who has 
had a psychotic break and has psychosis, you have got to treat 
them the same. And the services must be the same.
    And what we have not had in the final rule is a description 
of what are the services. We have it in the law, Mr. Chairman. 
The law is very clear: Across all six categories of services 
there must be parity.
    But without the rule, then we have this confusion, and when 
there is a vacuum, Mr. Chairman, you know what happens in a 
vacuum. People do not always behave the way we would like them 
to behave because they do not know where the lines are drawn. 
Hopefully tomorrow the administration will draw some pretty 
bright lines outlawing discrimination, and I will conclude with 
this.
    Why? Not only for Cathy Morelli's daughter, not only for 
people who are average Americans who suffer from a substance 
abuse disorder like I do, or a mental illness like I do, but 
most importantly, for our Nation's heroes, our veterans, 
because through no fault of their own they came home from war, 
signature wound was traumatic brain injury and post-traumatic 
stress. And when they go to their insurance company, whether it 
be Anthem Blue Cross or United Optimum, or whatever, guess 
what? We need to make sure that that insurance company does not 
impose any higher treatment limitations, does not impose any of 
these ``non-quantitative treatment limit'' kind of barriers, 
like fail first, as they are doing today on the rest of 
America. I will tell you, Mr. Chairman, the day one of our 
veterans gets denied treatment for their wounds of war, I will 
tell you maybe that is going to be the day that our CEOs in 
America realize that they have a responsibility for what 
insurance company they hire to manage their benefits, and that 
maybe personally they might be liable, and that is really the 
decision of a judge this last week in New York. So if that is 
the case, I would hope that they are telling their legal 
counsels right now to get ready, because if Cathy has anything 
to say about it, just like she has done so persuasively in your 
State of Connecticut, Mr. Chairman, we are going to go around 
the country, and we are going to show up in places where there 
are consumers being denied. And just like in the rest of the 
civil rights movement, we are going to stand with others so 
that they do not have to do this alone and do not have to fight 
for dignity and quality of insurance coverage just as if they 
were to have any other physical health issue.
    Thank you for letting me share.
    [The prepared statement of Mr. Kennedy appears as a 
submission for the record.]
    Chairman Blumenthal. Thank you very much, Congressman, for 
that very powerful and insightful testimony.
    I am told that a vote has been called. I do not have anyone 
who can take the gavel for me here, so I am going to be gone 
for just a few minutes, and then rush back. Hopefully I will 
have Senator Hatch with me, if I can grab him, but I just want 
to thank you for focusing on veterans who are so often, 
unfortunately and tragically, denied the treatment they 
deserve. Even with the supposed availability of the VA as a 
source of treatment, we had in Connecticut just within the past 
week a marine who came back from Afghanistan and tragically 
took his own life after seeking treatment for PTS, and with 
better treatment maybe he could have been saved. Justin 
Eldridge was, in fact, a brave hero, and I had occasion to know 
him and to try to help him gain treatment. But, unfortunately, 
that treatment was not as available as it should have been, and 
as a result, the tragedy has consumed him and his family, and I 
thank you for focusing on veterans. Many of them are getting 
treatment, but parity is absolutely necessary.
    Mr. Kennedy. Well, as you go, Mr. Chairman, let me point 
out that 72 percent of all veterans will never go to the VA in 
their lifetime. That is a fact most Americans do not realize. 
They are going to get their care through their employer-
sponsored health plan. That is why this issue is more than just 
a consumer rights issue. It is an issue for our patriots. It is 
our veterans' issue.
    Thank you, Mr. Chairman.
    Chairman Blumenthal. That is a very, very important fact. 
The other is that 30 percent of veterans leaving the military 
today, or more, according to the armed forces themselves, 
suffer from PTS or traumatic brain injury. So we are not 
talking about a scattered few here and there. We are talking 
about a major part of our veteran population.
    So I am going to go. I apologize, Ms. Morelli, but our 
fellow residents of Connecticut will hold me very responsible 
if I miss this vote. Thank you. I will be right back.
    [Recess 1:57 p.m. to 2:14 p.m.]
    Chairman Blumenthal. Thank you very much for your patience. 
We will now return, beginning with--Senator Hatch has an 
opening statement that he would like to make, and I am very 
glad that he does and that he is here. And so with your 
indulgence, let us proceed with that. Thank you.

 OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 
                       THE STATE OF UTAH

    Senator Hatch. Well, thank you, Mr. Chairman, and I 
apologize for not being here initially. I certainly welcome our 
witnesses here today, especially Patrick, whom I have known for 
a long time, and we are friends.
    I will just make a couple of points for the record so that 
we can hear from the witnesses who have come here today.
    The subject of the first panel is the regulatory delay 
following enactment of mental health parity legislation in 
2008. Now, I cosponsored legislation addressing the issue of 
mental health parity in the 107th Congress, the 108th, 
Congress, and the 110th Congress. Those bills were introduced 
by my friend Pete Domenici of New Mexico in the Senate. The 
Mental Health Parity Act passed the Senate by unanimous consent 
in 2008. One of the witnesses today, former Representative 
Patrick Kennedy, also a friend, introduced the legislation to 
address this issue that was enacted into law in October 2008. 
And so it concerns me greatly that the agencies required by 
that law to issue final regulations have still not done so. The 
best they could do was to issue interim final regulations, and 
even that was nearly 4 years ago.
    I want to make clear that I view the issue before us as 
separate from how the Affordable Care Act addresses mental 
health insurance coverage. The Mental Health Parity Act has 
bipartisan support in 2008. The Affordable Care Act did not in 
2010. I do not want the ongoing controversies about the 
Affordable Care Act to confuse or distract attention from the 
issue of mental health parity regulations that we are examining 
here today.
    The Affordable Care Act is, however, connected to this 
overall topic in a different way. At this Subcommittee's 
previous hearing on August 1, I said that rushing regulations 
can also have serious costs. One of the witnesses of that 
hearing was from the Mercatus Center at George Mason 
University. Another of their scholars, Jerry Ellig, wrote an 
op-ed published just last week in The Hill about how rushing 
regulations contributed to the widespread and growing problem 
of insurance companies canceling health insurance policies for 
millions of Americans. I ask consent to put that op-ed into the 
record, Mr. Chairman.
    Chairman Blumenthal. Without objection.
    [The op-ed appears as a submission for the record.]
    Senator Hatch. The second panel today is on auto safety and 
how the National Highway Traffic Safety Administration affects 
traffic accidents or fatalities. I confess that I am not 
entirely clear about how the substance of auto safety 
regulation fits within the Judiciary Committee's purview. I 
think we must resist the temptation to think that federal 
regulators can account for and control everything around us.
    It is my understanding, for example, that more than 90 
percent of traffic crashes involve human error; more than 
10,000 annual traffic deaths are caused by drunk drivers; and 
more than half of all those killed in crashes are not wearing 
seat belts.
    At the same time, this particular agency has been very 
active with what sounds to me like positive results. Just in 
the last decade, NHTSA has issued hundreds of proposed and 
final regulatory actions.
    It is safe to say that automobiles are one of the most 
highly regulated consumer products in America today, and while 
the number of licensed drivers has more than doubled and the 
number of miles they drive has more than quadrupled since 1960, 
NHTSA's estimate of the rate of traffic deaths per miles driven 
for the first half of this year happens to be the lowest in 
history.
    Mr. Chairman, we have before us distinguished experts on 
this subject, and I really look forward to hearing what they 
have to say, and I want to congratulate you for holding these 
hearings.
    Chairman Blumenthal. Thank you, Senator Hatch. And you were 
not here, but I paid tribute to the leadership that you 
demonstrated in gaining the mental health parity law at the 
time working with Senator Ted Kennedy as well as with 
Congressman Patrick Kennedy, who is a friend of both of us, and 
we thank you for your leadership.
    Senator Hatch. I thank you. Well, Ted got me into lots of 
problems from time to time, but----
    [Laughter.]
    Senator Hatch. I think it was all worth it. I will put it 
that way. We did some very, very important things together, and 
we were and still are very dear friends.
    Chairman Blumenthal. And I also want to welcome Senator 
Franken, who has also been a real champion and leader on this 
issue and with this rule.
    I am informed, by the way, Senator Hatch, that the mental 
health parity regulation will be issued tomorrow. Congressman 
Kennedy mentioned it in his opening statement, as did I, and 
this rule has been in the works for too long, but we are glad 
that it will be issued shortly, and it may well be, as 
Congressman Kennedy suggested, that the prospect of this 
hearing, which was made known to the administration, helped to 
expedite it. But whatever the cause, we are glad for the 
result.
    Ms. Morelli, you have been very, very patient and 
understanding, and please go ahead. We welcome you here, and I 
am particularly admiring and grateful for your courage and your 
strength as a parent as well as an advocate. Thank you for 
being here today.

      STATEMENT OF CATHY MORELLI, SOUTHINGTON, CONNECTICUT

    Ms. Morelli. Well, thank you for giving me this opportunity 
to tell my story.
    I am here today to talk about the difficult battle I had 
with my health insurer, Anthem, in my attempt to get my teenage 
daughter the treatment she needed for her mental illness. I was 
completely blindsided by my health insurer's constant denials 
for mental health treatment that my daughter so desperately 
needed. It was a battle I had never previously experienced 
whenever I sought coverage for treatment of medical conditions. 
Unfortunately, I discovered in a very difficult way that 
coverage for the treatment of a mental illness would not be as 
easily accessible as it is for a medical condition.
    Early in 2012, my then 13-year-old daughter was struggling 
with an eating disorder and began engaging in self-harming 
behaviors and suicidal attempts. Her first inpatient 
hospitalization began in March 2012 due to a suicide attempt 
and cutting herself. Within 6 days of this hospitalization, our 
health insurer denied her continued stay in this hospital 
advising that they felt she could be managed on an outpatient 
basis and that the treatment was not medically necessary. The 
hospital disagreed with my insurer and filed an expedited 
appeal, but my insurer maintained their denial.
    Within a day of being released from that first hospital, 
she again attempted suicide and engaged in serious self-harming 
behaviors that involved cutting so deeply into her thigh that 
it required sutures to close the wound. She spent the next 14 
days in the emergency department, and during her stay there she 
began her aggression toward people and spent most of her days 
in restraints and under heavy sedation. Within just 6 hours of 
being released from the emergency department, she again 
attempted suicide and struggled significantly with an eating 
disorder and spent the next 8 days medically admitted to a 
hospital on a feeding tube. Once she was stabilized, she was 
transferred to Vermont to yet another psychiatric hospital.
    Over the course of just 5 months, she was in and out of 
numerous psychiatric hospitals with each stay being cut 
prematurely short by my health insurer's refusal to pay for the 
treatment that every doctor and therapist said she needed.
    I had applied for voluntary services through the Department 
of Children and Families through the State of Connecticut. I 
did this very early on to get help in managing her illness 
because it was very clear to me that my health insurer was not 
going to pay for the treatment she really needed. Every denial 
was based on my health insurer's contention that inpatient 
treatment was not medically necessary and that she could be 
managed on an outpatient basis. DCF provided us with intensive 
in-home psychiatric services, known as IICAPS, in between these 
hospital admissions. She was also being seen by an outpatient 
provider.
    But despite IICAPS' and the outpatient provider's best 
efforts, my daughter's illness continued to spiral out of 
control; but without health insurance to cover the necessary 
inpatient treatment and the inability to pay out of my own 
pocket, I had no choice but to rely on outpatient treatment.
    Things really escalated in June 2012 when my daughter 
brought a knife to school and revealed this along with 
extensive fresh cuts on her body to the staff. She was taken to 
the hospital and then was admitted to yet another psychiatric 
hospital. This was the turning point for my daughter because, 
despite my health insurer's denial, this hospital would not 
release her as she was a danger not only to herself but to 
others.
    While inpatient and under the care of professionals who 
treat mental illness, my daughter attempted and nearly 
succeeded at suicide. She was then placed on what is called 
``one-to-one supervision,'' meaning staff was within arm's 
reach of her at all hours of the day and night. I fail to see 
how my family could have provided this level of care that my 
health insurer claimed was possible. I will read an excerpt 
from a letter addressed personally to my 14-year-old daughter 
for her inpatient stay where she attempted and nearly succeeded 
at ending her life. This letter is dated July 16, 2012. I 
quote: ``We cannot approve the request for hospital admission 
as of July 16, 2012. The hospital gave us information about 
you. This did not show that hospital care is medically 
necessary. You have recently been in the psychiatric hospital 
for about 1 month due to behavior problems and trying to hurt 
yourself. You have had these problems for a long time. You had 
to go into the medical hospital for a few days and now the 
medical hospital wants you back in the psychiatric program. You 
had not been getting better in any significant way for at least 
the last 30 days. There is no plan to do anything different. It 
does not seem likely that doing the same thing will help you 
get better. You need treatment that will likely help you get 
better . . .'' Interestingly, my insurer paid for only 1 day of 
the 30 days they speak about in that letter. They acknowledge 
she needs the treatment, but they make it very clear they are 
not going to pay for it.
    So along with DCF and the Office of the Healthcare 
Advocate, who also became involved in my daughter's case, we 
applied for Husky Health, which is the State-funded insurance 
plan, and coverage began at some point during her last 
admission. With the help from the State, my daughter was 
finally able to get the long-term treatment that was necessary 
to stabilize her condition and allow her to return home and be 
managed on an outpatient basis.
    With the help of the OHA, we began appealing the 13 denials 
issued by my health insurer in just those 5 months. At first, 
we went through the insurer's two-step internal appeal process, 
but the denials were upheld. We then filed external appeals 
through the insurance department, and every single denial 
issued by my health insurer was overturned. But it never had to 
get to the level it did considering the mental health parity 
laws in place. With a lack of regulations, these health 
insurers will not stop their discriminatory practices toward 
the treatment of mental illness.
    [The prepared statement of Ms. Morelli appears as a 
submission for the record.]
    Chairman Blumenthal. Thank you, Ms. Morelli. Thank you 
very, very much for that really powerful example of the effect 
of the denial of coverage resulting from the lack of 
regulation. And you have been very objective and factual in 
your presentation. Let me ask you what the effect of those 
denials was on your family's emotional state and possibly also 
on your daughter as she sought to recover from this life-
changing illness.
    Ms. Morelli. It was a very rough time. I often look back 
and wonder how we got through it. I am not really sure I can 
tell you how we did it. Perseverance. We had a lot of support 
from family, her school, the State, DCF, the Office of the 
Healthcare Advocate especially. I think without the resources 
that our State offers, I would never have gotten through it. 
But there was clearly an emotional toll for me as well as my 
husband and my other two daughters. At times, her sisters did 
not want to sleep in their own bed at night for fear that their 
sister would harm them. So it was pretty--it was a pretty rough 
time.
    Chairman Blumenthal. Thank you.
    Congressman Kennedy, I guess this story is, again, an 
example of why you fought so hard, along with your dad, for a 
law which guarantees better parity, better insurance coverage. 
And we are not here to embarrass any particular insurer. I know 
the name of Ms. Morelli's insurer. But this kind of 
intransigence and insensitivity seems all too common.
    Mr. Kennedy. So the irony is this: This hearing is process 
equals substance. The process you have calculates the answer 
you are going to get. So if the process is not right, you are 
not going to get the right answer. In her case, as in the case 
with this rule, we do not have the right process, and that 
means for insurance companies, we need public disclosure 
requirements so that we know when someone like Cathy is facing 
a situation of discrimination.
    By the way, insurance companies need that. You know, for 
them to know when they have crossed the line, they need the 
same kinds of case law much like you would have with the IRS 
given certain situations which describe what is legal, what is 
illegal. Cathy paints the most glaring story of illegality, 
but, frankly, the real rub for the next few years is that gray 
area, and how do even insurance companies know when they are 
crossing the line?
    What we need from you is to help us bring transparency so 
that we have a better idea--because Cathy mentioned one of the 
things that helped her get through is the Office of Public 
Advocacy. Well, guess what? Who is out there looking at all the 
Cathy Morelli's in the country and making sure that ERISA-
insured plans are not, you know, subscribing to a pattern and 
practice of discrimination across State lines--like we do not 
know, but under the law the HHS Secretary has the authority to 
require from insurance companies how they make medical 
necessity decisions, and they also can de-identify that data 
and make it clear who is in violation. I mean, this is a 
process, Mr. Chairman, and I would just encourage you to not 
look at this hearing as, like I said, the end of the final rule 
but really the beginning of this long process. You thought the 
process of getting a final rule was long. Wait until it takes 
us the time--and the sooner we get at it, Mr. Chairman, is the 
sooner we save lives, not only like Cathy Morelli's family's 
life was saved but the veterans that we talked about earlier, 
as I said, many of whom are going to get their insurance 
through their employer-sponsored health insurance.
    So I do not think employers will be very keen on knowing 
that their insurance carrier is denying a legitimate American 
hero from getting treatment for the signature wound of the war. 
But that is going to be the implication, Mr. Chairman, of us 
not doing what you are starting here with this hearing, and 
that is, implement a rule protecting people from discrimination 
against their brain illness.
    Chairman Blumenthal. Thank you. I am going to defer to my 
colleagues at this point. I really agree strongly that this 
regulation will be a final rule but not the final word, and we 
need to pursue that better word or rule even as we have this 
one.
    I am going to, with the permission of our Ranking Member, 
go a little bit out of order just to ask Senator Whitehouse of 
Rhode Island, since a former fellow colleague is here, to do 
his welcome. And he would have been here earlier, but as I 
mentioned to everyone here, we had a vote, and thank you for 
being here.
    Senator Whitehouse. Thank you, Chairman, and I also thank 
the Ranking Member for his courtesy. I just want to take a 
moment and welcome my colleague from Rhode Island, 
Representative Patrick Kennedy. It is terrific to have him back 
here, and it makes me very proud to see what a continuing good 
effect he is having. I know this is a passion for him.
    Patrick, we miss you around here, but clearly you are 
flourishing and doing exemplary work. So thank you so much.
    And, Mr. Chairman, let me just thank you and the Ranking 
Member for this hearing. It has been said that the oversight 
function of Congress is sometimes even to be preferred to its 
legislating function, and I think that without the attention 
that you both have brought to this issue with this hearing, we 
would not have received the news we did today that the rule is 
finally going to be announced. It was an exemplary effort in 
legislative oversight by Senator Blumenthal and Senator Hatch, 
and I am grateful to both of you.
    Chairman Blumenthal. Thank you. Thank you, Senator 
Whitehouse. And I thanked Senator Hatch earlier, but I thank 
him again and now defer to him for his questions.
    Senator Hatch. Well, I want to thank you, Mr. Chairman. I 
think you have shown a great deal of interest in this subject 
matter and are moving in an appropriate way--in appropriate 
ways, I should say.
    I also want to thank you, Ms. Morelli, for being here today 
and for your article in the New York Times. You know, as a 
parent of a child with mental illness, you add a very, very 
important voice to these problems and to our understanding of 
these issues and how they affect individuals and families. So 
your being here today is very, very important, and I concur 
with my dear friend and colleague from Rhode Island in his 
comments, and also the Chairman as well.
    Representative Kennedy--I am going to call you ``Patrick.'' 
I have known you since you were a little boy.
    [Laughter.]
    Senator Hatch. You have certainly grown much bigger than I 
thought----
    [Laughter.]
    Senator Hatch. But I cannot thank you enough for the 
leadership of you and your family and that you continue to 
exercise and provide on this issue as well as other issues, and 
I am very grateful to you.
    In your written testimony, you described how the 
administration's continuing failure to issue this final rule 
creates uncertainty. In your experience, how does this delay 
and the uncertainty it causes affect insurers and employers? 
You have alluded to that already, but how is the private sector 
responding to this lack of clarity?
    Mr. Kennedy. Well, as was the case in other laws that were 
passed, it is left to the court system to ultimately interpret 
the federal law. Well, part of the problem, even with the 
interpretation of the federal law, as we saw with this notable 
case against an insurance carrier, dismissed last week in New 
York, was that they did not even have the terms who is a 
plaintiff, who is a defendant. Ironically, Mr. Chairman, they 
say that insurance carriers are not the defendants, employers 
are the defendants.
    So, Mr. Chairman, let me just say that I think for the 
Chamber of Commerce in Washington, D.C., who now represents not 
only insurer CEOs but every other CEO, they are going to be 
interested in this latest federal judge's decision, because it 
now says they cannot just pass the buck and give the Heisman to 
whoever their benefit manager is in an ERISA-sponsored health 
plan, where an insurance company acts as the intermediary. They 
are going to be the ultimate arbiter and final person with 
responsibility.
    So I mention that, Mr. Chairman, because I think these 
decisions that are being made today, in lieu of a failed 
clarity on a final rule, are going to create a lot of not only 
confusion for families like Cathy Morelli's, but it is going to 
create a lot of confusion for employers who may want to do the 
right thing, Mr. Chairman, and need that guidance to know when 
they have crossed the line and when they have not. And, you 
know, I think that is the real challenge for us now, is the 
oversight process.
    So the process of issuing a final rule was not very pretty. 
We understand what were some of the implications. Of course, 
the administration had health care reform to add to this mix, 
which is putting a lot on the table, so we give them that. But 
the question now is: As Cathy mentioned, is her situation going 
to be repeated in the future? We are going to get the rule 
tomorrow. The question is: Are we going to have it in our 
ability to ensure that, to the best of our ability--granted, it 
is not going to be perfect--that this situation no longer 
happens?
    What I am saying to you, Mr. Chairman, what you just heard 
echoed by my good friend and colleague from Rhode Island, is 
that this is going to require constant oversight. And to the 
extent that this Committee can help inform the administration 
as to where within their existing authority they have that 
oversight capacity, to require information by insurance 
companies as to how they make medical necessity decisions, my 
feeling, frankly, is--and I know this will be music to Chairman 
Hatch's views as a conservative--we do not need to mandate new 
rules on them. We just need them to be more transparent with 
adhering to the rules that we have put before them, because I 
think the light of day and the public at large is going to keep 
them honest if they know that if they have a deliberate 
discriminatory practice, they are going to be called out on it.
    I do not begrudge them if they make bad decisions that were 
within the margins, provided we have a way of expeditiously 
correcting those bad decisions. Again, all this comes back to a 
process, Mr. Chairman, and oversight is the key to that 
process. And that oversight can only take place if there is 
transparency of the situations that allowed for Ms. Morelli's 
situation to take place.
    Senator Hatch. In many cases, when Congress enacts a law, a 
single agency or department is responsible for issuing the 
rules or regulations to implement it. Now, this complex area of 
insurance regulation involved multiple agencies and departments 
at the same time. The Department of Health and Human Services, 
Labor, and Treasury are all involved in the rulemaking that we 
are looking forward to today.
    In your opinion, has this involvement by multiple 
departments affected the development of this final rule, or has 
it contributed to its delay?
    Mr. Kennedy. We have to think in some sense that that kind 
of multiple jurisdiction would contribute to the level of 
complexity. But here is another level of complexity. As I 
understand, the rules can indicate that States have a big 
responsibility in implementation, so now the question is: Where 
do States take their call? It would be a lot easier, like in 
civil rights, if we define the parameters on the federal level 
and not leave it to be squishy amongst the 50 States as to 
whether you are treated in one State versus another. That kind 
of harkens back to a day where, you know, justice depended on 
geography whether you had different colored skin or not.
    Now, in this day and age, we cannot have it where people as 
Americans, as our veterans from our country, are treated one 
way where their signature wounds of war are covered in one 
State but their signature wounds of war, TBI and post-traumatic 
stress, are not covered in another State, Mr. Chairman.
    So I think that for clarity we are going to need to make 
sure that it exists on the federal level so that these States 
are not having to kind of reinterpret what is meant by a rule 
that delegates a lot of this to the States. So I think to 
answer your question, there was complexity. I think there is 
going to be even more complexity if we are not, you know, more 
vigilant, if you will.
    Senator Hatch. Well, thanks to both of you. I appreciate 
your testimony.
    Chairman Blumenthal. Thank you, Senator Hatch.
    We are fortunate to be joined today by two of my colleagues 
who have been real leaders in this area, as I mentioned 
earlier, and I am going to call on them in the order of their 
arrival. Senator Franken, if you would please proceed.
    Senator Franken. Thank you, Mr. Chairman, for convening 
this very important hearing. Paul Wellstone was a friend of 
mine, and I hold the seat that Paul once held. David Wellstone 
is not here today, but as Patrick well knows, David has been 
coming to D.C. time and time again to fight for these regs to 
be issued.
    I have focused, been focused from day one, on the 
implementation of the Mental Health Parity and Addiction Equity 
Act, really from day one, and I have led six Senate letters to 
the Obama administration since then requesting the timely 
release of the final rules. It is a little too late now for a 
timely release, but I am very happy that we----
    Mr. Kennedy. We were glad you were on our side, Senator.
    Senator Franken. Believe me, I was so glad to be on your 
side on this one, and I am relieved that the final rules appear 
to be coming out tomorrow.
    Patrick--I am sorry--Congressman Kennedy, you know, we have 
been through this together. The last time I saw you was at a 
mental health policy conference at the White House. It was a 
couple days after my grandson was born, and I told you that I 
had held him in my arms after he was born and said, ``No one 
expects you to know anything. There is no pressure on you.'' 
And you said, ``That is not how it goes in my family.''
    [Laughter.]
    Mr. Kennedy. That is right.
    Senator Franken. And you said this, you said, ``They say, 
`You are going to file for Congress, and then run for 
President.' ''
    [Laughter.]
    Senator Franken. So I just have to say that of all the 
accomplishments of all the members of the Kennedy family, you, 
sir, have been a Profile in Courage.
    Mr. Kennedy. Thank you.
    Senator Franken. And I want to thank you for that.
    Okay. So now we think these rules are going to be released 
tomorrow. What do you want to see in them in terms of their 
scope and transparency?
    Mr. Kennedy. Well, the transparency is what we want to see 
because we have the authority to require public disclosure of 
the way an insurance company makes medical necessity 
determinations, and we have a way of reporting how Patient X 
with a mental illness, an eating disorder, and so forth is 
treated versus Patient Y with cardiovascular disease, with a 
stroke, with diabetes, with asthma. And if those patients with 
asthma and diabetes are treated inpatient and outpatient and 
in-network and out-of-network and in the pharmacy with coverage 
and with the ER, then guess what? The other chronic illness 
that happens to be above their neck needs to be covered, too, 
and it needs to be covered equally so you have a total scope of 
services. So we cover if diabetes means that you lose your 
sight or your legs, but we do not wait until you have to lose 
your legs to diabetes. We treat it in advance of that. But in 
mental illness, we wait until you need your legs amputated. In 
mental illness, if it were like cancer, we would wait until it 
was State IV cancer before we would pay for it. So----
    Senator Franken. So what you are looking for are the 
transparency, the rules and regs regarding transparency.
    Mr. Kennedy. Because I believe, Senator, that otherwise we 
are going to constantly be trying to litigate this thing to get 
disclosure about an insurance company as to why they made the 
decision they did. They may have a good reason. They just need 
to be up front about it and let the chips fall where they may, 
because at the end of the day, we are all going to have to do 
something in terms of keeping costs down. Frankly, mental 
health, as most economists recognize, is the saver of health 
care dollars because you think of someone with diabetes, if 
they have untreated alcoholism, you are in a real pickle. If 
you think of someone with heart disease with depression, guess 
what? Your heart disease is going to be in real trouble, too. 
You are four times more likely to have a heart attack.
    The point is that we need integration and we need 
transparency in the way we manage patients so that we can 
understand whether there is an overt discrimination. Now, we 
get it that the advancement of this science of mental health 
still needs to go a great deal further in its advancement. But 
we still know enough now to know, like in Cathy's situation, 
where it is blatant discrimination, and we should at least be 
able to tell that and enforce that.
    Senator Franken. And, Ms. Morelli, I just want to thank you 
for your testimony today. You and I know that one in five 
children and one in four adults faces mental illness, but for 
families that are going through this, they can feel pretty 
alone, as I imagine you did. And your willingness to speak out 
about your daughter's experience and your experience is just 
very courageous, and I want to thank you.
    You know firsthand, obviously, why it is so important that 
behavioral health services be covered to the same extent as 
medical and surgical services by insurers. Can you just tell us 
how you think your life would have been different and how your 
daughter's life would have been different if these regs had 
been issued and that you had gotten the proper treatment then?
    Ms. Morelli. I can tell you that in between hospital 
admissions, when she was home and we were not able to manage 
her, and she did the extreme cutting and the behavior was so 
extreme, I can tell you my daughter will have less scars--would 
have less scars had she gotten the treatment initially and not 
done this back and forth to the hospital routine that we seemed 
to do, because that is where the significant cutting was 
happening, was at home, unfortunately, because I do not have 
the ability to childproof my house to a 14-year-old child who 
will even use her braces to cut herself. So----
    Senator Franken. And what was the effect of that on your 
other children, on your two other daughters?
    Ms. Morelli. They were absolutely terrified of their 
sister, afraid to go to bed at night for fear that she would 
harm them, because at one point she had threatened to harm us. 
So they no longer trusted her because they saw what she was 
capable of.
    Senator Franken. And this has an ongoing toll for your 
family.
    Ms. Morelli. It does.
    Senator Franken. I see that I am out of time here, but I 
again want to thank you for your courageous testimony and, 
Congressman, thank you for yours.
    Mr. Kennedy. Thank you, Senator Franken, for carrying on 
your late colleague's work. Senator Paul Wellstone was a hero 
to all of us.
    Senator Franken. And I want to recognize Jim Ramstad, too, 
from Minnesota, who worked with you.
    Mr. Kennedy. Yes. Thank you.
    Chairman Blumenthal. Thanks, Senator Franken.
    Senator Klobuchar.
    Senator Klobuchar. Thank you very much, and thank you, 
Congressman Kennedy, for being here and for all your work, as 
Senator Franken mentioned. I know you were in Minnesota 
recently.
    Mr. Kennedy. Yes.
    Senator Klobuchar. And thank you for that. And I know any 
friend of Jim Ramstad's is a friend of ours, so thank you, and 
you have an incredibly special friendship, that means a lot to 
everyone in our State, so thank you.
    Al already mentioned the work that Paul did on this bill, 
which was incredible, and thank you for helping carry on his 
torch over in the House and getting this done. I was there when 
that happened, and it took a lot of work on all sides.
    So my questions are more about what has been happening in 
terms of the big picture. You talked in your testimony about 
the problems of the delayed regulatory process, how it goes 
beyond the Mental Health Parity Act, and that it has stalled 
efforts to end discrimination in multiple other settings. Could 
you elaborate on that and what that means?
    Mr. Kennedy. Well, if we had had a final rule earlier, we 
would have begun the process of really crystallizing the spirit 
of the law, which is that we do not want unequal treatment. 
But, of course, as you know, we have unequal treatment in a lot 
of other areas of federal insurance: in the VA, in the 
Department of Defense, in Medicare, and in Medicaid.
    So I just say that to give some insurers a little pause 
that I am not just beating up on them today, because, frankly, 
we are not setting a very good example as a Federal Government, 
because we do not treat mental illness equally to other 
physical illnesses within our own Federal Government. So 
Medicare does not reimburse it the same way. Medicaid does not. 
There are many, many examples of disparity in the availability 
of treatment and the extent of treatment available to people 
that is reimbursable by the Federal Government.
    So I would have said that with the final rule, there is a 
lot more work to be done. For Jim Ramstad's work that he 
started and Paul Wellstone's, that can continue, but we need to 
take that next step. You cannot literally jump ahead when you 
do not have the biggest step of all, which is laying the 
framework for equality. Because once we do that, now we can do 
the other things so that the Cathy Morelli's who are senior 
citizens in Minnesota who are getting denied geriatric 
psychiatry because it is not treated the same as some other 
specialty service with Medicare, that they are not denied.
    But we cannot even do that until we first get this. So what 
I am saying is this kind of held up everything until now. What 
I am saying is the dam is going to break tomorrow. I am glad 
you two are here carrying on the great Minnesota tradition, 
because there is going to be a lot of work to really make this 
a reality in the future.
    Senator Klobuchar. The New York Times article many have 
talked about here quotes an insurance representative suggesting 
that the industry would welcome final rules. I think sometimes 
people do not think about it, but when there is no guidance or 
unclear guidance, it affects everyone, businesses and health 
insurers as well. Do you want to comment about that?
    Mr. Kennedy. I think insurance would welcome it. Why? 
Because they would have clarity that they are playing on the 
same level playing field as everyone else. Even the problem of 
insurance for all was that community rating. It is so that 
everybody is not competing on who can be denied care but is 
competing on who can most effectively treat the illnesses at 
the most cost-effective way.
    This should not be a game of who can cherry-pick and who 
can deny. And all I would say is that is the real challenge for 
us going forward. And I think insurance companies like that 
clarity. They are in the business of clarity. They need clarity 
to know how they are going to make their decisions, and the 
clearer that we can be with them, I think the more they will 
welcome it, because now they are not going to be at a 
competitive disadvantage.
    Let us say one insurance company decides, well, we are just 
going to knock it out for Cathy and her family from here on 
out. They cannot be at a competitive disadvantage with their 
thinking that, well, but if my competitor does not do that, 
maybe I might be at a financial loss.
    We need to make it clear that, no, you are all in this 
together, we are all in this together, and it is important for 
you to do that, to get this final rule, be very clear, and the 
implementation of it be very clear.
    I would point to the many reviews that Cathy had to go 
through to get her claim addressed--internal review and 
external review. So, Mr. Chairman, I would also commend to you 
that you should take this up, because this is within your 
jurisdiction, to oversee how, much like the Banking Committee 
dealt with whether banks could self-deal. Right? We had 2008--
the irony is that parity passed on the banking reform, the TARP 
legislation.
    Senator Klobuchar. Right.
    Mr. Kennedy. So what did we put in place to try to fix this 
problem of these shady investments? Well, we said you cannot 
behave in this way, you cannot self-deal; you know, you cannot 
have these rating agencies be the ones you hired tell you that 
you are okay. Right? So they are all saying, oh, keep doing it, 
keep doing it, keep doing it. Well, of course, everybody knew 
that it was suspect, but why didn't the rating agencies say, 
hey, fellows, this is not kosher, you have got to stop this? 
Why? Because they were being paid by the banks to tell them 
what they wanted to hear.
    So here is the point: The insurance industry hires 
reviewers to tell them how they are doing. Now, what reviewer 
is going to tell their employer, hey, fellows, you are really 
not acting too well, and you better scale back that whole 
process of medical management overtly for and oppressively 
against the mentally ill because it is just not according to 
law? They are going to say, good-bye, we will get someone else 
who can come in and tell us that we are not doing such a bad 
job.
    I would just say, again, Mr. Chairman, it is process equals 
substance. If you get a good process, you are going to have a 
better chance of getting a better outcome.
    Senator Klobuchar. Ms. Morelli, have you thought through, 
if this law was properly implemented, the rules were in place, 
how that would have made you and your daughter's life 
different?
    Ms. Morelli. Yes, perhaps the first hospital I brought her 
to would have been the only hospital she had to go to and get 
the long-term treatment she needed to stabilize. It would have 
been a huge difference. I mean, it got to the point where I had 
to send my daughter from Connecticut--I had to send her down to 
Virginia. She had been to all the psychiatric hospitals, and I 
do not know why they turned her away, but I am guessing, you 
know, they were not able to help her the first time with Anthem 
denials, and we ended up having to send her down to Virginia 
for long-term treatment. And, fortunately, the State of 
Connecticut paid for it.
    Senator Klobuchar. Thank you.
    Chairman Blumenthal. Thank you, Senator Klobuchar.
    I want to again thank both of you for being here today. 
Congressman Kennedy, I assure you that these regulations will 
not be the last word. We are going to continue to be vigilant, 
as you have suggested we must be, and make sure that the 
promise of this landmark historic legislation is fulfilled. I 
will tell you I join in thanking you for your leadership, but 
also I can tell you the voice and spirit of your father is very 
much with us----
    Mr. Kennedy. Thank you.
    Chairman Blumenthal [continuing]. On this issue, as so many 
others. In this hearing room, in the halls of the Senate, on 
the floor, I continue to hear his voice, and I think that his 
warrior fighting spirit for justice is one of the principles 
and the reasons that I and so many others feel so strongly 
about this issue. So thank you, and thank you, Ms. Morelli, 
again for your being here, but also your insistence as a parent 
that your child and your family be given what it is due. This 
story really is about justice, fundamentally. parity is about 
justice. And I very much admire your bravery and your strength. 
So thank you very much for being here, and we will proceed to 
our next panel.
    If I could ask the next panel to please stand so I can 
administer the oath. That is, as you may know, our practice 
here in the Committee. We are not singling you out for special 
treatment. Do you affirm that the testimony that you are about 
to give to this Committee is the truth, the whole truth, and 
nothing but the truth, so help you God?
    Mr. McGarity. I do.
    Mr. Ditlow. I do.
    Mr. Coglianese. I do.
    Chairman Blumenthal. Let me introduce each of the witnesses 
to the Committee.
    Professor McGarity holds the Joe R. and Teresa Lozano Long 
Endowed Chair in Administrative Law at the University of Texas 
Law School. He has taught environmental law, administrative 
law, and torts at the law school since 1980. Prior to then, 
prior to this job, he taught at the University of Kansas School 
of Law. Professor McGarity has written widely in the areas of 
environmental law and administrative law. He is the immediate 
past president and member of the Board of Directors of the 
Center for Progressive Reform, and we are very, very privileged 
to have you here today given your extensive knowledge of the 
administrative law issues that so concern us in this hearing.
    Clarence Ditlow, well known and renowned as executive 
director of the Center for Auto Safety, a consumer group 
founded by Consumers Union. He directs the Center for Auto 
Safety to improve auto safety, reliability, and he has played a 
major role in initiating major reforms and recalls, and he has 
testified more than 50 times before congressional committees on 
auto safety, warranties, air pollution, consumer protection, 
fuel economy, emergency conservation, patents, and inventions. 
I could go on about your abundant expertise, sir, but we 
appreciate your being here today as well.
    And Professor Cary Coglianese is the Edward B. Shils 
Professor of Law and Political Science at the University of 
Pennsylvania, where he currently also serves at the Penn 
Program on Regulation, and he served as the law school's Deputy 
Dean for Academic Affairs. He specializes in the study of 
regulation and regulatory processes with an emphasis on the 
empirical evaluation of alternative regulation and regulatory 
strategies. I know that you bring a very, very valuable 
perspective to these hearings today, Professor, and I really 
thank you for being here today.
    I thank all of our witnesses for your patience and 
indulgence in waiting for us to begin this panel. We are a 
little bit behind, partly because of the vote and other 
factors, but I very much appreciate your being here today.
    If we could start with you, Professor McGarity.

STATEMENT OF THOMAS O. McGARITY, JOE R. AND TERESA LOZANO LONG 
ENDOWED CHAIR IN ADMINISTRATIVE LAW, UNIVERSITY OF TEXAS SCHOOL 
                     OF LAW, AUSTIN, TEXAS

    Mr. McGarity. Thank you, Chairman Blumenthal, Ranking 
Member Hatch. I am very pleased to be here to testify on----
    Chairman Blumenthal. Are you sure your microphone is on?
    Mr. McGarity. Sorry. I am very pleased to be here to 
testify on a broken rulemaking system.
    The authors of the original Administrative Procedure Act 
envisioned rulemaking as a relatively straightforward process 
for making agency policy through open procedures that relied 
heavily on agency expertise and invited the public to 
participate in the policymaking process.
    The APA also provided for judicial review under a lenient 
arbitrary and capricious test. Informal rulemaking has not, 
however, evolved into the flexible and efficient policymaking 
tool that its supporters envisioned.
    During the 1980s and 1990s, the rulemaking process became 
increasingly rigid and burdensome as Presidents, courts, and 
Congress added an assortment of analytical requirements to the 
simple rulemaking model and as evolving judicial doctrines 
obliged agencies to take great pains to ensure that the 
technical bases for their rules were capable of withstanding 
judicial scrutiny under what is now called the ``hard look'' 
doctrine of judicial review. Professor Don Elliott referred to 
this phenomenon in the late 1980s as the ``ossification'' of 
the rulemaking process.
    It is fair to say that the problem has become even worse 
during the 21st century, at least in the case--and I want to 
limit myself perhaps to the case of ``high stakes'' rulemaking 
where the outcome really matters to the stakeholders, not just 
to everyday rulemaking process of relatively non-consequential 
rules.
    Along with many other scholars, I am convinced that the 
rulemaking process is not merely ossified. It is broken. In my 
written testimony, I describe several of the causes of the 
broken rulemaking model, including the business community's 
deregulatory agenda, burdensome procedural and analytical 
requirements imposed by courts and various executive orders, 
centralized White House review, and overly aggressive judicial 
review. This has had unfortunate side effects, including 
inefficiency in implementation, reduced incentives to revise 
existing rules, reduced incentives to innovate, and an overall 
inability of agencies to attain their statutory goals.
    The ossification of the rulemaking process has also yielded 
perverse unintended consequences. Agencies committed to 
fulfilling their statutory missions have sought out 
policymaking vehicles outside of the broken informal rulemaking 
process. These alternative rulemaking tools, however, often 
lack transparency, provide regulated industries and the public 
with little notice of the agency's position on critical issues, 
and offer few, if any, opportunities for the public to 
participate in the rulemaking process.
    Some agencies have become so frustrated with the hurdles 
that informal rulemaking must overcome that they have attempted 
to make policy on a case-by-case basis through adjudications, 
directives, and recalls, that sort of thing.
    More troublesome from the standpoint of open government is 
the increasing tendency of agencies to engage in ``nonrule 
rulemaking'' through less formal policymaking tools. Informal 
guidance from technical manuals, guidance documents, guidelines 
in general are a necessary part of a complex administrative 
process. But these are typically promulgated without the 
benefit of comments by an interested public. These less formal 
policymaking vehicles render regulatory agencies much less 
accountable to the public and pave the way to arbitrary 
decisionmaking. They may also lack sufficient gravitas and 
permanence to allow companies to rely on them in making 
important investment decisions.
    The increase in agency use of ``interim final'' rules is 
especially worrisome. The agencies typically agree to accept 
public comment on interim final rules and prepare statements of 
basis and purpose for the final rules that are supposed to 
follow. One serious problem with this tool, though, is the fact 
that the agency need never promulgate a final rule. And when 
they do promulgate them, they are often greatly delayed, as we 
have seen earlier this afternoon. Interim final rules have a 
tendency to achieve a permanence that belies the agency's 
expressed willingness to consider public comments.
    I mention in my testimony several possible solutions, and 
all directed toward taking away the incentive to use rulemaking 
avoidance devices by relieving the agencies of many of the 
burdensome aspects of the existing informal rulemaking process. 
Among these are greater oversight by Congress, which we have 
talked about this afternoon as well; eliminating procedural and 
analytical mandates in statutes; requiring agencies to finalize 
interim final rules within a set period of time, say 3 years; 
cutting back on White House oversight; a softer judicial look 
at the substance of rules.
    This Committee is in an ideal position to begin the lengthy 
process of repairing this broken but extremely valuable 
rulemaking tool. I applaud the members of the Committee for 
holding these hearings, and I welcome your questions.
    [The prepared statement of Mr. McGarity appears as a 
submission for the record.]
    Chairman Blumenthal. Thank you very much, Professor.
    Mr. Ditlow.

STATEMENT OF CLARENCE M. DITLOW, EXECUTIVE DIRECTOR, CENTER FOR 
                  AUTO SAFETY, WASHINGTON, DC

    Mr. Ditlow. Mr. Chairman and members of the Subcommittee, 
thank you for the opportunity to testify on delays in 
rulemaking at NHTSA. The Center for Auto Safety has followed 
NHTSA for over 40 years, and I would like to put a little flesh 
to some of the arguments that have been expressed from 
academia.
    NHTSA is a wonderful agency. It has a vital mission. If we 
had not had a NHTSA, traffic deaths in this country today would 
be 200,000 versus 50,000 when the Safety Act was passed. But, 
unfortunately, it is woefully underfunded; it does not even 
have a laboratory to do its own research for rulemaking and 
enforcement actions. Instead, it has to rent space from Honda, 
a company that it regulates.
    During the first 5 years after its creation, NHTSA issued 
almost 50 standards, and in the 40 years since then, it has 
issued very few standards. And with rare exception, the 
revision of the original standards came from congressional 
mandates. So Congress told NHTSA to upgrade the fuel tanks 
integrity standard, to upgrade the airbag standard, to set a 
standard for head injury, for tire standards, for roof crush, 
for pole tests. And I have put the bills in my written 
testimony where this has been done.
    But when you take a look at the defects and the lack of 
rules, whether it is the Pinto, whether it is Firestone tires, 
whether it is Jeeps today, whether it is sudden acceleration, 
there is a lack of a rule. And because of the lack of a rule, 
we have defects in the real world which lead to recalls. And 
recalls cost the auto companies a lot of money. They cost 
consumers a lot of lives. And we would have been much better 
off if we had an effective rule in place, and I have a number 
of examples in my full testimony, and I will just go into a 
couple of them.
    Take a look at tires. The original tire standard was issued 
in 1970. It became quickly out of date as we had higher speed 
travel, as we had heavier vehicles. Congress in 1978, after the 
first Firestone recall, told NHTSA we ought to upgrade the 
standard. NHTSA did not do it, so in 2000, we had the Ford 
Firestone series of recalls, and this time Congress passed the 
TREAD Act, and it mandated that the tire standard be upgraded, 
and today we have a good tire standard.
    Another real simple example is fused circuits. Two of the 
largest recalls ever are ignition switches in Fords and cruise 
control deactivation switches in Fords, both of which would 
short out and start fires in a vehicle, even if the vehicle was 
parked, turned off, and in the garage at night. And in some 
instances, a house burned down and people died.
    We at the Center for--the Public Interest Research Group 
had petitioned NHTSA to fuse electrical circuits, but they 
never issued that standard. There was a lot of industry 
opposition. It cost money. Well, how much did these recalls 
cost Ford? How many lives were lost?
    Another instance which we take a look at is electronics. In 
1975, NHTSA commissioned the Department of Commerce to do some 
evaluation of electronics in cars, and Commerce said 
electronics are coming, you need to set standards for 
electronics in cars. Instead, what happened, NHTSA did not 
issue standards. We had acceleration with Toyota, we had 
acceleration in other vehicles. Today we have dozens of 
software recalls in vehicles. And what we need is a system 
validity check for software and electronics in cars. This is 
not setting a standard for what kind of electronics you used, 
but make sure that whatever you use goes through a verification 
test, a validity test that shows you have been putting good 
software and good electronics in the vehicles.
    Another, you know, just airbags, the standard--everyone 
likes this cite about NHTSA. There is one single standard that 
there have been 91 final rules in that standard, tweaking this, 
tweaking that, changing course. And today we have airbags that 
really work well, but it took us 40 years to get there, and if 
we had been there in 10 years instead of 40 years, we would 
have saved a lot more lives.
    What I would like to do is suggest that this hearing really 
provides a unique opportunity to examine the failings of the 
Motor Vehicle Safety Program at NHTSA in the rulemaking area. 
And if we have a better program, we will have fewer deaths. And 
we can do it, but we just have to decide how to do it, and I 
will leave the Committee with one final example.
    Maybe we need a performance standard with a deadline. When 
I started out in government regulation, I worked on two major 
rules: one was the Clean Air Act, which required catalysts; one 
was the Safety Act, which was going to require airbags. We got 
catalysts on cars in 5 years to reduce emissions and clean the 
air. Why did we do it? Because Congress set a statutory 
deadline to reduce emissions by 95 percent by 1975. The Safety 
Act has no performance standard. It just said go out and set 
standards and consider passive restraints. But nothing 
specific, and we had 30 years of additional delay, which cost 
us thousands of lives, and if we had had a better rulemaking 
process, we would not have had that delay, and we would have 
saved the lives.
    Thank you.
    [The prepared statement of Mr. Ditlow appears as a 
submission for the record.]
    Chairman Blumenthal. Thank you, Mr. Ditlow.
    Professor.

STATEMENT OF CARY COGLIANESE, EDWARD B. SHILS PROFESSOR OF LAW, 
    AND DIRECTOR, PENN PROGRAM ON REGULATION, UNIVERSITY OF 
            PENNSYLVANIA, PHILADELPHIA, PENNSYLVANIA

    Mr. Coglianese. Chairman Blumenthal, Ranking Member Hatch, 
I very much appreciate the invitation to testify today, and I 
want to thank you both for your valuable public service to our 
Nation.
    The idea that our regulatory system is broken is perhaps 
one of the few ideas that almost everyone agrees with today. Of 
course, that agreement runs out fairly quickly. The ways that 
different people perceive the regulatory system to be broken 
vary considerably. Some think the system is out of control. 
Others believe it provides too little control of harmful 
business conduct. And disagreement obviously also exists over 
what to do to fix the broken system.
    My testimony today focuses on one widely perceived problem 
with the regulatory system: the ossification of rulemaking. 
Administrative law scholars point to the National Highway 
Traffic Safety Administration as evidence for ossification, as 
well as to support their belief that its source lies with 
judicial review.
    Now, my testimony is that the evidentiary basis for this 
widespread belief disappears on closer scrutiny. This is not to 
say that every rule is adopted as swiftly as everyone would 
like. Today's hearing obviously shows that that does not 
happen. Nor is my testimony that rulemaking is always easy to 
do. I take note of Representative Kennedy's statement that 
developing a final rule is ``not pretty,'' in his words.
    But if we are to look at the general policy about the 
structure of our regulatory process and think about creating or 
modifying rules with respect to judicial review or other 
general standards of administrative law, then it is a general 
account of the rulemaking process that we need to focus on. And 
the conventional story about that general account is that NHTSA 
enjoyed no more than about 10 good years from the standpoint of 
using regulations to improve the safety of automobiles, and 
that after the mid-1970s, the agency, in the face of some 
losses in the courts, retreated from rulemaking and shifted its 
efforts instead to issuing recalls on defective cars, which is 
thought to be a weaker strategy for protecting the driving 
public rather than issuing more proactive regulations.
    And the villain in the story, the conventional story, is 
principally the judiciary. A 1972 decision by the Sixth Circuit 
is often thought to be the case that led to the shock to the 
system and led NHTSA to retreat and, in the words of some 
administrative law scholars, to abandon the process of 
rulemaking.
    My testimony in detail is in my written comments, but let 
me briefly summarize the findings of my research.
    First, NHTSA has not abandoned rulemaking. The 2013 draft 
report to Congress from the Office of Information and 
Regulatory Affairs estimates that over the last 10 years 
NHTSA's rules have imposed as much as $10 billion in annual 
costs on the economy as well as delivered about $22 billion in 
annual benefits, or at least as much as that.
    Now, it may be that there is still not enough regulation 
from a normative standpoint, but it certainly is not the case 
that there is no rulemaking. Nor should one be misled to think 
that the number of rules issued in NHTSA's first decade were 
all that substantial. In fact, a 2004 study by NHTSA showed 
that during the agency's first decade, NHTSA's rules imposed 
about $250 in costs on automobiles; whereas, in the 1990s, the 
rules adopted then imposed even greater costs, up to about $760 
per car.
    Second point, NHTSA did not shift in the mid-1970s to a 
strategy of recalls. The conventional wisdom is based upon 
looking at data on total recalls, and if one looks at just the 
recalls initiated by NHTSA, you get a much different pattern.
    A third point is that the impact of judicial review in 
explaining the pattern of NHTSA's rulemaking and recalls has 
been overstated. First of all, most of NHTSA's rules are not 
resulting in litigated court decisions. The agency does win a 
substantial majority of its cases that do reach a decision. And 
the pattern of rules did not drop immediately after the Sixth 
Circuit decision in 1972. The pattern of recalls did not 
suddenly pick up either, as you would expect from the 
conventional story.
    Fourth, and finally, other explanations I think offer more 
plausible alternative accounts of the historical patterns in 
NHTSA's rules, one being if you look at the overall budget that 
NHTSA has had for operations and research, you find that the 
pattern in its budget tracks fairly closely the pattern in its 
number of rules.
    Let me just conclude by saying that even though many 
thoughtful scholars, many of whom are my colleagues and friends 
who I respect, even though they hold fervently to the belief 
that, as a general matter, the threat of judicial review has 
ossified rulemaking, the well-cited account that we read in the 
literature is not very well supported on further examination. 
Other studies are beginning to show this with respect to other 
agencies as well.
    In the end, there may be many problems that lead people to 
conclude the U.S. regulatory system is broken. There is just no 
systematic evidence that the ossifying impact of judicial 
review is one of those.
    Thank you.
    [The prepared statement of Mr. Coglianese appears as a 
submission for the record.]
    Chairman Blumenthal. Thank you. I want to thank all of our 
witnesses, and if there is no objection, I am going to make 
sure that all of your written testimony and the previous 
panel's as well be included in the record. But thank you for 
keeping your remarks within the 5-minute time limit.
    I am going to defer to Senator Hatch for his questions at 
this point.
    Senator Hatch. Well, thank you, Mr. Chairman. This has been 
a very interesting hearing on what many would think would be a 
boring set of subjects. But they are not to me.
    Dr. Coglianese, let me just start with you and start out 
with a very basic question whether the National Highway Traffic 
Safety Administration, NHTSA, is in the regulatory game at all. 
In his testimony, Professor McGarity says that NHTSA has given 
up on rulemaking and focuses instead on recalls. Do you agree 
with that?
    Mr. Coglianese. No, Senator, I would not agree with that. 
The evidence in the Federal Register is that there are rules 
still coming out of NHTSA, and one sees that both from looking 
at the regulatory impact analyses that are filed in these 
rules, that these rules deliver substantial benefits to 
society, and they also impose substantial costs to society.
    NHTSA itself did an ex post evaluation of its regulations 
in 2004 and found that these regulations that NHTSA is adopting 
are saving a lot of lives. So there is no evidence of a 
systematic abandonment of rulemaking at NHTSA.
    Senator Hatch. Some scholars have written that judicial 
decisions in the 1970s have led NHTSA to effectively abandon 
rulemaking. If that were even partially true decades ago, do 
you think that this still has a paralyzing effect on NHTSA 
today?
    Mr. Coglianese. Well, when it comes to judicial review, 
first of all, with a closer look at the evidence, you do not 
see the dramatic shift away from rulemaking that is consistent 
with a conventional account.
    Second, the standard for judicial review, arbitrary and 
capricious standard that was enunciated in that Sixth Circuit 
decision in 1972, was basically adopted by the U.S. Supreme 
Court in the case of State Farm in the early 1980s and has been 
continuing to this day. So if it were judicial review that was 
really ossifying the rulemaking process, it would be striking 
that NHTSA has been adopting additional rules even though it is 
doing so under the existing standard.
    Senator Hatch. Well, in my opening statement, I noted that 
NHTSA has issued literally hundreds of regulatory actions in 
just the past decade. On its face, does that not seem 
consistent with the accusations that there is so-called 
ossification, as you have mentioned, in NHTSA rulemaking? Do 
you agree with that or----
    Mr. Coglianese. Right, I think the evidence is that NHTSA 
is engaging in rulemaking. It is doing so even in the face of 
the arbitrary capricious test and the prospect of judicial 
review.
    Senator Hatch. Okay. Professor McGarity, I appreciate all 
you folks testifying here today. It is very important to us. 
Your written testimony states that those being regulated are 
``no longer put on notice of the standards of conduct that the 
agency is applying to them . . .'' Now, this makes it sound 
like actual rulemaking is the only way that an agency like 
NHTSA communicates such standards or regulations. But as I 
understand it, NHTSA issues what it calls a ``Rulemaking and 
Research Priority Plan,'' if I have that right.
    Now, this document, which appears in the Federal Register, 
addresses its anticipated rulemaking and research activities 
based on current science and data.
    Now, Mr. Chairman, I ask consent that NHTSA's Rulemaking 
and Research Priority Plan for 2011-13 be made part of this 
record.
    Chairman Blumenthal. Without objection.
    [The information referred to appears as a submission for 
the record, however, due to the voluminous nature will not be 
included in the printed version of this hearing.]
    Senator Hatch. Now, I do not know how many agencies have a 
regulatory road map like this, but it seems to me this 
supplements the actual rulemaking. Now, doesn't this prove that 
NHTSA is, in fact, communicating standards of conduct for those 
being regulated?
    Mr. McGarity. My thought on that is that, yes, other 
agencies do the same, maybe not as extensively as NHTSA does, 
but what this--if I am thinking about the document that you are 
mentioning correctly, it puts the regulatees on notice of what 
rules NHTSA plans in the future. What I was alluding to in my 
testimony is when agencies engage in alternatives to 
rulemaking, they do not do this sort of plan when they issue 
just a guidance document or, for that matter, when NHTSA issues 
a recall, it is not pursuant to some preannounced criteria that 
it applies to this particular thing. It's done on a case-by-
case basis.
    NHTSA does not use as many of the informal policy guidance, 
interpretative rules and that sort of thing as other agencies, 
and I would say that my testimony was aimed more at those sorts 
of things. That it is not something that NHTSA does.
    If I could have a moment, I could respond to Professor 
Coglianese's point.
    Senator Hatch. Sure.
    Mr. McGarity. NHTSA does promulgate lots of rules, but most 
of these, I think, are not the major rules that stakeholders 
really care about. There are lots of minor modifications, as 
Mr. Ditlow pointed out, and I think that sometimes Professor 
Coglianese and I and other scholars talk across each other a 
little bit, because those scholars that talk about the 
ossification of the rulemaking process, we are talking about 
major important rules, not just day-to-day rules that get 
promulgated, like pesticide tolerances which come out by the 
hundreds. So that studies that focus on just total output are 
kind of missing the important impact of judicial review--and I 
do not limit myself just to judicial review--and Presidential 
review and all these regulatory analysis requirements are 
having on the agencies as they try to implement important rules 
like the ones we heard about earlier today.
    Senator Hatch. Okay. If I could ask one more question, in 
your testimony you say that NHTSA prefers recalls to 
rulemaking. Now, I noted in my opening statement that NHTSA 
has, in fact, issued hundreds of regulatory actions in the last 
decade; but it also seems to me that the increase in recalls 
over the last decade is at least as much due to Congress as it 
is to NHTSA. The so-called TREAD Act, which was enacted in 
2000, requires that companies identify potential problems and 
promptly notify NHTSA. As a result, virtually all recalls are 
voluntary rather than initiated by NHTSA, so I am a little 
confused by your testimony that NHTSA has given up on 
rulemaking in favor of recalls.
    Could you just explain that a little bit more?
    Mr. McGarity. Sure. In fact, I think that you are exactly 
right that in recent years a lot of the recalls have been 
spawned by the reports that are made by the companies. In fact, 
I think that has been the case for most of NHTSA's history, and 
here we have to look a little bit behind the scenes.
    A company does not want to have NHTSA declare a recall and 
tell the world that this automobile is bad. And what they will 
do is when NHTSA has a problem with a car, they go and they 
talk to the company about it and they negotiate about it, and 
very often that results in a negotiated recall initiated by the 
company but, really, if you go beneath the surface of it, 
initiated by NHTSA who came to the company with the problem.
    In more recent years, after the TREAD Act, I think it is 
true that the companies have been coming to NHTSA and 
initiating the negotiations about what is going to happen to 
protect the public. But I do not exclude those company-
initiated recalls from the basic pattern of NHTSA working 
through recalls as much as or more so then through rules. It 
has not promulgated that many important rules that have not 
been required by Congress.
    So, once again, one of the solutions I suggest is that 
Congress require more of these rules, as they have, with 
respect to NHTSA.
    Senator Hatch. Both of you gentlemen have been great. Mr. 
Ditlow, I appreciate personally the work that you do, and I 
just want to compliment you for hanging in there and doing what 
you do.
    Mr. Chairman, I am grateful you have had this hearing. I 
have got to be excused, but I appreciate all three of you being 
here as well as the prior panel. This has been a good hearing.
    Chairman Blumenthal. Thank you, Senator Hatch.
    Senator Hatch. Thank you so much.
    Chairman Blumenthal. Thank you.
    I have some questions, not lengthy, but I want to express 
my appreciation to you for being here.
    Mr. Ditlow, perhaps you could comment on the comments made 
by Professor Coglianese. I noted in your testimony toward the 
end you cited an oil industry executive telling you at one 
point that he once asked his counterparts in the automobile 
industry why they opposed virtually every NHTSA rule or 
regulation, no matter how big or small, and he told you that 
their strategy was to focus on the little things so they never 
got to the big things. And I suspect that these numbers about 
rules and regulations or the numbers of pages in the Federal 
Register perhaps are not fully reflective of what is happening 
with rulemaking. And maybe you could just comment.
    Mr. Ditlow. That is certainly true and----
    Chairman Blumenthal. And if you could turn on your 
microphone.
    Mr. Ditlow. That is certainly true, and what is happening 
is the industry knows that NHTSA has limited resources, and 
they only have so many lawyers to work on so many rules. So if 
they oppose every single rule, no matter how big or how small, 
then that is one less lawyer, one less rulemaking that they may 
be able to do that is important. And taking a look at what has 
happened recently, there have been two really good standards to 
come out of NHTSA in the last 5 years: one is electronic 
stability control, and one is side curtain airbags. And both of 
those were performance standards, but they resulted in these 
systems, and they are saving a lot of lives. But it was 
Congress that mandated that NHTSA do this.
    And so what I would suggest is that the premise that NHTSA 
is not issuing rules is correct. I mean, what is happening is 
Congress is dictating to NHTSA to issue rules in the face of 
NHTSA's inaction. And NHTSA's inaction is in large part due to 
the amount of resistance that comes from the auto industry.
    And we can look at rules getting tied up at OMB. Well, the 
industry lobbyists are over at OMB opposing that and submitting 
information on the costs of a new regulation, and it gets 
delayed. And if there was one failing on backup cameras, it was 
not setting a hard and fast deadline. You know, give the 
industry--give NHTSA the ability to make one, maybe two 
extensions, but not a perpetual extension where all they have 
to do is come to the Congress and say we need another year.
    Chairman Blumenthal. I noted particularly your reference to 
the absence of any safety standard for electronic controls and 
computer processing units in cars, which now have become so 
reliant on electronic devices and controls, and yet there is no 
safety standard. Perhaps you could talk about the implications.
    Mr. Ditlow. Yes, well, modern cars have 50 to 100 
electronic processors in them, and there is no standard for 
these electronic processors. And organizations like IEEE have 
standards where you can validate the computer software, the 
electronic devices themselves, that you can determine how 
complex they are, what is the likelihood that the code will be 
wrong in them. And NHTSA has not set any standard whatsoever in 
that area. And to the extent that they have standards, what 
they are trying to do is apply mechanical concepts to 
electronic systems so that if you have a key fob that starts a 
car, their standard says inserting the code into the ignition 
via the key fob is the same as inserting a key into the dash. 
Well, it is not the same, and the code can be flawed, and there 
is no test of the code. And that is what NHTSA needs to focus 
on, and we have an agency that is under--required to do a study 
for Congress as a result of the legislation that was passed in 
MAP-21. But there is no standard that is forthcoming. We have 
not seen the study yet, and I am afraid that we are headed into 
something like was discussed in the first panel: Where is the 
regulation? Is the regulation going to be coming? No. We are 
going to get a study. And what is the study going to say? It is 
going to say we need more time. And it is going to be a long 
time coming before we see an electronic standard from this 
agency.
    Chairman Blumenthal. And the absence of these regulations 
has real-world consequences in imperiling lives and perhaps 
causing crashes and imperiling people.
    Mr. Ditlow. Absolutely. What we are seeing with the 
unintended acceleration and the litigation that is arising is 
that the electronics and software experts are coming in, they 
are examining the source code in the Toyotas, and they are 
finding bugs and glitches in it that can cause and did cause 
sudden acceleration, and these cases are now being upheld by a 
jury. And it is just tragic. We should not have--one of our 
objectives at the Center for Auto Safety is to eliminate these 
causative accidents and eliminate the product liability cases, 
because they are failures in society. You have a victim who has 
been injured, and we need to have fewer victims and better 
regulations.
    Chairman Blumenthal. Let me ask you, Professor Coglianese, 
I am sure you are familiar with this area: What do you think 
about the need for standards relating to electronic controls 
and computer devices in cars?
    Mr. Coglianese. I am not an auto safety engineer so I am 
not--you know, I am not going to opine on that. So I really 
would like to, if I may, just take one moment to reply to 
Professor McGarity's point earlier, if that would be permitted.
    Chairman Blumenthal. Sure.
    Mr. Coglianese. Thank you very much.
    I just wanted to note that the rulemaking that I am talking 
about, that I observe at NHTSA, are not all these little 
technical amendments. Every year the Office of Information and 
Regulatory Affairs files a report to Congress on regulations, 
and there is a table in it, and OIRA puts the agencies that 
have the most significant rules in it. And out of hundreds and 
hundreds of agencies for the last 20 years, NHTSA has appeared 
in that report, and the dollar amounts for the benefits are 
incredible from NHTSA rules. And, of course, the costs are very 
high, too. So there is significant rulemaking that is taking 
place at NHTSA.
    Thank you.
    Chairman Blumenthal. I am going to give Professor McGarity 
an opportunity to respond, but you would not dispute that, at 
least on its face, there seems to be a need for some regulatory 
effort in regard to the electronic devices and computers that 
are now more and more present in cars.
    Mr. Coglianese. Certainly to the extent that those systems 
are part of cars and they could pose safety hazard, a 
responsible regulator definitely should be looking at them.
    Chairman Blumenthal. And is there any dispute--I would ask 
this of all the panelists--that NHTSA presently has authority 
to issue such regulations or rules?
    Mr. Coglianese. I do not have a dispute with that.
    Chairman Blumenthal. Professor McGarity, do you wish to 
respond?
    Mr. McGarity. Just briefly, I would simply say that those 
huge benefits, although I have not looked at it in detail, my 
guess would be are coming from rules that Congress mandated by 
a deadline so as to avoid the ossification problem. So I would 
make that point, that my guess is that most of those, the 
benefits are attributable to major rules that Congress 
required, which is one of the solutions I suggest.
    Chairman Blumenthal. Let me ask all three of you, you have 
been here for the earlier testimony. You heard about this delay 
in the issuance of mental health parity regulations. You have 
experienced with respect to NHTSA and more generally in terms 
of the regulatory governance area delays and so forth. What is 
the best way to prevent such delays? And who would have 
standing to challenge an agency that simply fails to comply 
with a deadline for issuance of regulation? We are not talking 
about disagreements with the regulations, challenges to their 
substantive merit, which could be, in effect, questioned by 
someone aggrieved by them, someone subject to the regulations 
if they were harmed, but simply the delay, who has standing to 
challenge?
    Mr. McGarity. Well, to the extent that there is a statutory 
deadline--I think Professor Coglianese will agree with me--the 
beneficiaries of the regulation, the erstwhile beneficiaries of 
the regulation or groups representing those beneficiaries, 
should be able to challenge agency action not taken under the 
Administrative Procedure Act or sometimes under the individual 
statutes, to the extent that they have standing, which still 
the test is that they are aggrieved and are arguably within the 
zone of interest protected by the statute.
    Chairman Blumenthal. But the statute in question may or may 
not apply to them, depending on what the regulations provide. 
And since the regulations are not final, it is kind of a Catch-
22. I would argue that there is standing under a correct and I 
think legal interpretation of the standing doctrines. But I 
wonder how common those challenges are. Maybe, Professor 
Coglianese, you have some----
    Mr. Coglianese. Well, in areas such as environmental law, 
where many statutes contain very specific deadlines, the 
deadlines are quite frequently not met. But they are not always 
subjected to any judicial challenge. Those who might bring the 
lawsuits have--you know, have resource constraints as well. But 
the remedy is there.
    Of course, once one gets into court after an agency has 
missed a statutory deadline, the ultimate remedy is for the 
court then to impose its own schedule or timetable. You know, 
obviously the court will not be able to grant the remedy of 
meeting a deadline that has already passed.
    I think, though, from the standpoint of overall public 
policy, the question is: Are we getting ultimately enough 
benefits from delay to justify the lost opportunities that we 
would gain from acting sooner? There may be many cases in which 
delay is valuable and needed if it means creating a regulation 
that will be more effective or that could avoid a very 
counterproductive result. And in the case of automobile safety, 
it seems at least, just as much as a responsible regulator 
needs to look into some of the problems, a responsible 
regulator also needs to make sure that their regulations do no 
harm and that they are not going to put in place something that 
in the complex engineering of an automobile creates an 
additional hazard that had not been anticipated.
    Mr. Ditlow. Senator Blumenthal, standing is something that 
really concerns public interest organizations. The Center for 
Auto Safety won a lawsuit against the Department of 
Transportation on fuel economy standards, but we lost it on a 
rehearing en banc on standing. So we won on the merits, but we 
lost on the issue of standing.
    And even in the area of safety, the way the courts have 
looked at standing in recent years gives us qualms about 
whether or not they will restrict the access to the courts for 
the citizens' groups trying to even enforce a deadline.
    So we would like to see a citizen suit provision put into 
the Safety Act, just like we have in the Clean Water Act. I 
mean, that would help.
    Chairman Blumenthal. Excellent idea. Let me ask, then, 
perhaps all of you: How common are challenges based on delays 
in rulemaking? And do they succeed ever? Do you know of any?
    Mr. Coglianese. Oh, sure. I mean, there was a major one 
under the Clean Water Act that led--often these lead to 
settlements because the factual issue is pretty clear. One 
looks at the calendar and one looks at the Federal Register, 
and there is no need for a lot of depositions or such. So they 
settle out of court. Most of the toxic water pollutant 
regulations were adopted, for example, under a decree that was 
issued as a settlement of a deadline suit.
    Mr. Ditlow. Consumers Union and Public Citizen and some 
parents are in a challenge in the Second Circuit over the 
backup camera, failure to issue the backup camera rule. But 
there is no firm deadline, and so they waited 2 years to file 
that lawsuit.
    I would like to point out one thing in terms of recalls and 
standards. Some standards, like the backup camera standard, 
there is no--you will not see a recall for failure to install a 
backup camera. But you will see a recall for things like a 
defective cruise control circuit, the lack of a fuse. So I 
would take what Professor McGarity does and refine it just a 
little bit and say that recalls do, in fact, become a 
substitute for good rules in certain areas, but in other areas 
it is a totally ineffective tool.
    Chairman Blumenthal. Did you have anything to add, 
Professor McGarity?
    Mr. McGarity. Only just a slight thing, and that is that 
Professor Coglianese is right that we have many suits in the 
environmental area that have resulted in settlements in which 
the agency has established its own deadline. Sometimes it goes 
back to court and asks for an extension of it, but there are 
many of these.
    There is, however, in the other House a movement afoot to 
stop these settlements from happening, so one needs to be aware 
of those as well.
    Chairman Blumenthal. Thank you. Well, again, I really 
express my gratitude to all of you. You have greatly informed 
the Committee, and I hope that perhaps we will take some of 
your ideas and implement them in ways that will be helpful to 
agencies meeting the deadlines that are established by this 
Congress, but also enabling better compliance, swifter 
promulgation of these rules so that the public can benefit from 
the laws that we make. So I thank you very much and adjourn 
this hearing.
    [Whereupon, at 3:47 p.m., the Subcommittee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]



                            A P P E N D I X

              Additional Material Submitted for the Record

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             Prepared Statement of Hon. Richard Blumenthal

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             Prepared Statement of Hon. Patrick J. Kennedy

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                  Prepared Statement of Cathy Morelli

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                Prepared Statement of Thomas O. McGarity

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                Prepared Statement of Clarence M. Ditlow

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                 Prepared Statement of Cary Coglianese

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    Questions submitted by Senator Whitehouse for Thomas O. McGarity

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   Responses of Thomas O. McGarity to questions submitted by Senator 
                               Whitehouse

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                Miscellaneous Submissions for the Record

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