[Congressional Record Volume 155, Number 198 (Tuesday, December 22, 2009)]
[Senate]
[Pages S13751-S13778]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              FURTHER CHANGES TO S. CON. RES. 13 PURSUANT

  Mr. CONRAD. Mr. President, section 301(a) of S. Con. Res. 13, the 
2010 budget resolution, permits the chairman of the Senate Budget 
Committee to adjust the allocations of a committee or committees, 
aggregates, and other appropriate levels and limits in the resolution, 
and make adjustments to the pay-as-you-go scorecard, for legislation 
that is deficit-neutral over 11 years, reduces excess cost growth in 
health care spending, is fiscally responsible over the long term, and 
fulfills at least one of eight other conditions listed in the reserve 
fund.
  I have already made two adjustments pursuant to section 301(a). The 
first adjustment was on November 21, for S.A. 2786, the Patient 
Protection and Affordable Care Act, an amendment in the nature of a 
substitute to H.R. 3590. The second adjustment was on December 1, for 
S.A. 2791, an amendment to S.A. 2786 to clarify provisions relating to 
first dollar coverage for preventive services for women.
  The Senate today adopted S.A. 3276, an amendment to S.A. 2786 to 
improve the bill. I find that in conjunction with S.A. 2786, as 
modified, that this amendment also satisfies the conditions of the 
deficit-neutral reserve fund to transform and modernize American's 
health care system. Therefore, pursuant to section 301(a), I am further 
revising the aggregates in the 2010 budget resolution, as well as the 
allocation to the Senate Finance Committee. Along with those 
adjustments, I have also adjusted the aggregates and committee 
allocation to reflect changes to the original score of S.A. 2786 as a 
result of a provision included in H.R. 3326, the Department of Defense 
Appropriations Act, 2010. That provision uses savings also counted in 
the score of S.A. 2786. In total, as a result of Congress clearing H.R. 
3326 on December 19, the amount of savings in S.A. 2786 is $1 billion 
lower over the 2010-2014 period.
  I ask unanimous consent to have printed in the Record the following 
revisions to S. Con. Res. 13.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 CONCURRENT RESOLUTION ON THE BUDGET FOR FISCAL YEAR 2010--S. CON. RES.
  13; FURTHER REVISIONS TO THE CONFERENCE AGREEMENT PURSUANT TO SECTION
301(a) DEFICIT-NEUTRAL RESERVE FUND TO TRANSFORM AND MODERNIZE AMERICA'S
                           HEALTH CARE SYSTEM
                        [In billions of dollars]
------------------------------------------------------------------------
 
------------------------------------------------------------------------
                        Section 101
(1)(A) Federal Revenues:
    FY 2009................................................    1,532.579
    FY 2010................................................    1,614.258
    FY 2011................................................    1,936.811
    FY 2012................................................    2,140.785
    FY 2013................................................    2,321.087
    FY 2014................................................    2,563.018
(1)(B) Change in Federal Revenues:
    FY 2009................................................        0.008
    FY 2010................................................      -51.728
    FY 2011................................................     -151.820
    FY 2012................................................     -219.608
    FY 2013................................................     -194.250
    FY 2014................................................      -70.640
(2) New Budget Authority:
    FY 2009................................................    3,675.736
    FY 2010................................................    2,905.487
    FY 2011................................................    2,845.236
    FY 2012................................................    2,835.568
    FY 2013................................................    2,988.308
    FY 2014................................................    3,206.647
(3) Budget Outlays:
    FY 2009................................................    3,358.952
    FY 2010................................................    3,017.021
    FY 2011................................................    2,965.551
    FY 2012................................................    2,867.235
    FY 2013................................................    2,993.112
    FY 2014................................................    3,184.357
------------------------------------------------------------------------


 CONCURRENT RESOLUTION ON THE BUDGET FOR FISCAL YEAR 2010--S. CON. RES.
  13; FURTHER REVISIONS TO THE CONFERENCE AGREEMENT PURSUANT TO SECTION
301(a) DEFICIT-NEUTRAL RESERVE FUND TO TRANSFORM AND MODERNIZE AMERICA'S
                           HEALTH CARE SYSTEM
                        [In millions of dollars]
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Current Allocation to Senate Finance Committee:
    FY 2009 Budget Authority...............................    1,178,757
    FY 2009 Outlays........................................    1,166,970
    FY 2010 Budget Authority...............................    1,249,836
    FY 2010 Outlays........................................    1,249,342
    FY 2010-2014 Budget Authority..........................    6,824,817
    FY 2010-2014 Outlays...................................    6,818,925
Adjustments:
    FY 2009 Budget Authority...............................            0
    FY 2009 Outlays........................................            0
    FY 2010 Budget Authority...............................       -5,220
    FY 2010 Outlays........................................       -6,670
    FY 2010-2014 Budget Authority..........................       20,950
    FY 2010-2014 Outlays...................................        3,720
Revised Allocation to Senate Finance Committee:
    FY 2009 Budget Authority...............................    1,178,757
    FY 2009 Outlays........................................    1,166,970
    FY 2010 Budget Authority...............................    1,244,616
    FY 2010 Outlays........................................    1,242,672
    FY 2010-2014 Budget Authority..........................    6,845,767
    FY 2010-2014 Outlays...................................    6,822,645
------------------------------------------------------------------------

  Mr. LEAHY. Mr. President, the urgent need for comprehensive reform of 
our health care system has not stopped opponents from launching 
spurious attacks. I understand that the junior Senator from Nevada 
recently raised a constitutional point of order against the pending 
health care reform bill. As chairman of the Senate Judiciary Committee, 
I would like to respond to those who have called into question whether 
Congress has the authority under the Constitution to enact health 
insurance reform legislation. The authority of Congress to act is well-
established by the text and the spirit of the Constitution, by the 
long-standing precedent established by our courts, by prior acts of 
Congress and by the history of American democracy. The legislative 
history of this important measure should leave no doubt with respect to 
the constitutionality of our actions.
  The Constitution of the United States begins with a preamble that 
sets forth the purposes for which ``We the People of the United 
States'' ordained and established it. Among the six purposes set forth 
by the Founders was that the Constitution was established to ``promote 
the general Welfare.'' It is hard to imagine an issue more fundamental 
to the general welfare of all Americans than their health.
  The authority and responsibility for taking actions to further this 
purpose is vested in Congress by article I of the Constitution. In 
particular article I, section 8, sets forth several of the core powers 
of Congress, including the ``general welfare clause,'' the ``commerce 
clause'' and the ``necessary and proper clause.'' These clauses form 
the basis for Congress's power, and include authority to reform health 
care by containing spiraling costs and ensuring its availability for 
all Americans. The necessary and proper clause of the Constitution 
provides that ``The Congress shall have Power . . . To make all Laws 
which shall be necessary and proper for carrying into Execution the 
foregoing Powers, and all other Powers vested by this Constitution in 
the Government of the United States or in any Department or Officer 
thereof.''
  Any serious questions about congressional power to take comprehensive 
action to build and secure the social safety net have been settled over 
the past century. According to article I, section 8, ``The Congress 
shall have Power To lay and collect Taxes, Duties, Imposts and Excises, 
to pay the Debts and provide for the common Defense and general Welfare 
of the United States.'' This clause has been the basis for actions by 
Congress to provide for Americans' social and economic security by 
passing Social Security, Medicare and Medicaid. Those landmark laws 
provide the well-established foundation on which Congress builds today 
by seeking to provide all Americans with access to quality, affordable 
health care.
  The Supreme Court settled the debate on the constitutionality of 
Social Security more than 70 years ago in three 1937 decisions. In one 
of those decisions, Helvering v. Davis, Justice Cardozo wrote that the 
discretion to determine whether a matter impacts the general welfare 
``is not confided in the courts'' but falls ``within the wide range of 
discretion permitted to the Congress.'' Turning then to the ``nation-
wide calamity that began in 1929'' of unemployment spreading from State 
to State throughout the Nation, leaving older Americans without jobs 
and security, Justice Cardozo wrote of the Social Security Act: ``The 
hope behind this statute is to save men and women from the rigors of 
the poor house as well as from the haunting fear that

[[Page S13752]]

such a lot awaits them when journey's end is near.''
  The Supreme Court reached its decisions upholding Social Security 
after the first Justice Roberts--Justice Owen Roberts--in the exercise 
of good judgment and judicial restraint began voting to uphold the key 
New Deal legislation. He was not alone. It was Chief Justice Hughes who 
wrote the Supreme Court's opinion in West Coast Hotel v. Parrish 
upholding minimum wage requirements as reasonable regulation. The 
Supreme Court also upheld a Federal farm bankruptcy law, railroad labor 
legislation, a regulatory tax on firearms and the Wagner Act on labor 
relations in National Labor Relations Board v. Jones & Laughlin Steel 
Corporation. The Supreme Court abandoned its judicially created veto 
over congressional action with which it disagreed on policy grounds and 
rightfully deferred to Congress's constitutional authority.
  Congress has woven America's social safety net over the last three 
score and 12 years. Congress's authority to use its power and its 
judgment to promote the general welfare cannot now be in doubt. America 
and all Americans are the better for it. Growing old no longer means 
growing poor. Being older or poor no longer means being without medical 
care. These developments are all due to congressional action.
  These Supreme Court decisions and the principles underlying them are 
not in question. As dean Erwin Chemerinsky of the University of 
California Irvine School of Law wrote in a recent op-ed in The Los 
Angeles Times: ``Congress has broad power to tax and spend for the 
general welfare. In the last 70 years, no federal taxing or spending 
program has been declared to exceed the scope of Congress' power. The 
ability in particular of Congress to tax people to spend money for 
health coverage has been long established with programs such as 
Medicare and Medicaid.'' I will ask that this article be printed in the 
Record following my remarks.
  The right-wing opponents of health care reform are so intent on 
partisan warfare that they are even calling into question the 
constitutionality of America's established social safety net. They 
would leave American workers without the protections their lifetime of 
hard work have earned them. They would turn back the clock to the 
hardships of the Great Depression, and thrust modern American back into 
the conditions of Dickens' novels. That is what some extremists will be 
urging another Justice Roberts--Chief Justice John Roberts--to do. That 
path should be rejected now, just as it was when another inspiring 
President led the effort to confront the economic challenges facing 
Americans. To strike down principles that have been settled for nearly 
three quarters of a century would be wrong and damaging to the Nation.
  For months now, we have been debating whether or not to pass health 
care reform. We can debate whether to control costs by having all 
Americans be covered by health insurance. In fact, we have been having 
that debate for months and months in this Congress, through extensive 
public markups in two committees in the Senate, as well as in the House 
of Representatives, and now for weeks on the Senate floor. We have 
considered untold numbers of amendments in committees and several 
before the Senate. That is what Congress is supposed to do. We consider 
legislation, debate it, vote on it and act in our best collective 
judgment to promote the general welfare. Some Senators will agree and 
some will disagree, but it is a matter for the full Senate to decide. I 
wish we could do so by a majority but Senate Republicans abhor majority 
rule now that they are not in control. So it will take an extraordinary 
majority for the Senate's will to be done.
  Tomorrow, we will vote on a point of order challenging the pending 
bill's constitutionality. The fact that Senate Republicans disagree 
with the majority's effort to help hardworking Americans obtain access 
to affordable health care does not make it unconstitutional. As Justice 
Cardozo wrote in upholding Social Security, ``whether wisdom or 
unwisdom resides in the scheme of benefits set forth . . . it is not 
for us to say. The answer to such inquiries must come from Congress, 
not the courts.'' I agree. Justice Cardozo understood the separation of 
powers enshrined in the Constitution and the Supreme Court's precedent. 
In 1803, our greatest Chief Justice, John Marshall, upheld the 
constitutionality of the Judiciary Act in Stuart v. Laird noted that 
``there are no words in the Constitution to prohibit or restrain the 
exercise of legislation power.'' That is true here, where Congress is 
acting to provide for the general welfare of all Americans.
  I believe that Congress can and should decide whether the problems of 
the lack of availability and affordability of health care, and the 
rising health care costs that burden the American people, is a problem, 
``plainly national in area and dimensions,'' as Justice Cardozo wrote 
of the widespread crisis of unemployment and insecurity during the 
Great Depression. I believe that it is right for this Congress to 
determine that it is in the general welfare of the Nation to ensure 
that all Americans have access to affordable quality health care. But 
whether other Senators agree or disagree with me, none should argue 
that we should take steps that turn back to clock to the Great 
Depression when conservative activist judges prevented Congress from 
exercising its powers to make that determination. As Chief Justice 
Marshall wrote in his landmark decision in McCulloch v. Maryland: ``Let 
the end be legitimate, let it be within the scope of the Constitution, 
and all means which are appropriate, which are plainly adopted to that 
end, which are not prohibited, but consistent with the letter and 
spirit of the Constitution, are constitutional.''
  In seeking to discredit health care reform, the other side relies on 
a resurrection of long-discredited legal doctrines used by courts a 
century ago to tie Congress's hands by substituting their own views of 
property to strike down laws such as those guaranteeing a minimum wage 
and outlawing child labor. They have to rely on such cases of unbridled 
conservative judicial activism as Lochner v. New York, Shechter Poultry 
Corporation v. United States, Reagan v. Farmers Loan and Trust and the 
infamous Dred Scott case. Those dark days are long gone and better left 
behind. The Constitution, Supreme Court precedent, our history and 
congressional action all stand on the side of Congress's authority to 
enact health care legislation including health insurance reform.
  Under article I, section 8, Congress has the power ``to regulate 
Commerce with foreign Nations, and among the several States.'' Since at 
least the time of the Great Depression and the New Deal, Congress has 
been understood and acknowledged by the Supreme Court to have power 
pursuant to the commerce clause to regulate matters with a substantial 
effect on interstate commerce. The Supreme Court has long since upheld 
laws like the Fair Labor Standards Act against commerce clause 
challenges, ruling that Congress had the authority to outlaw child 
labor. The days when women and children could not be protected, when 
the public could not be protected from sick chickens infecting them, 
when farmers could not be protected and when any regulation that did 
not guarantee profits to corporations are long past. The reach of 
Congress's commerce clause authority has been long established and well 
settled.
  Even recent decisions by a Supreme Court dominated by Republican-
appointed justices have affirmed this rule of law. In 2005, the Supreme 
Court ruled in Gonzales v. Raich that Congress had the power under the 
commerce clause to prohibit the use of medical marijuana even though it 
was grown and consumed at home, because of its impact on the national 
market for marijuana. Surely if that law passes constitutional muster, 
Congress's actions to regulate the health care market that makes up 
one-sixth of the American economy meets the test of substantially 
affecting commerce. Conservatives cannot have it both ways. They cannot 
ignore the settled meaning of the Constitution as well as the authority 
of the American people's elected representatives in Congress.
  The regulation of health insurance clearly meets the test from Raich, 
whether the activities ``taken in the aggregate, substantially affect 
interstate commerce.'' Addressing these problems is at the core of 
Congress's powers under the commerce clause. In

[[Page S13753]]

fact, the Supreme Court expressly addressed this issue 65 years ago, 
ruling in 1944 that insurance was interstate commerce and subject to 
Federal regulation. Congress responded to this decision in 1945 with 
the McCarran-Ferguson Act, which gave insurance companies an exemption 
from antitrust laws unless Federal regulation was made explicit under 
Federal law. It is the immunity from Federal antitrust law enacted in 
McCarran-Ferguson that I have been working to overcome with my Health 
Insurance Industry Antitrust Enforcement Act of 2009 and the amendment 
I have sought to offer to the current health insurance reform 
legislation. Why would this exemption have been necessary if insurance 
was not interstate commerce? I strongly believe that the exemption in 
McCarran-Ferguson is wrongheaded but would anyone seriously contend 
that it is unconstitutional? Of course not. That is why I am working so 
hard to pass legislation to repeal it.
  The legislation and amendment I have sponsored will prohibit the most 
egregious anticompetitive conduct--price fixing, bid rigging and market 
allocations--conduct that harms consumers, raises health care costs, 
and for which there is no justification. Subjecting health and medical 
malpractice insurance providers to the Federal antitrust laws will 
enable customers to feel confident that the price they are being quoted 
is the product of a fair marketplace. The lack of affordable health 
insurance plagues families throughout our country, and my amendment 
would take a step toward ensuring competition among health insurers and 
medical malpractice insurers. The need for Congress to repeal the out 
of date Federal antitrust law exemption only further demonstrates the 
tremendous impact of health care on our economy and congressional power 
to act.
  The third clause of article I, section 8, to which I have referred, 
is the necessary and proper clause, as a basis for congressional 
action. This clause gives Congress the power ``to make all Laws which 
shall be necessary and proper for carrying into Execution the foregoing 
Powers and all other Powers vested by this Constitution in the United 
States.'' The Supreme Court settled the meaning of the necessary and 
proper clause 190 years ago in Justice Marshall landmark decision in 
McCullough v. Maryland, during the dispute over the National Bank. 
Justice Marshall wrote that ``the clause is placed among the powers of 
Congress, not among the limitations on those powers.'' The necessary 
and proper clause goes hand in hand with the commerce clause to ensure 
congressional authority to regulate activity with a significant 
economic impact.
  We face a health care crisis, with millions of Americans uninsured 
and with uncertainty and high costs for Americans who are insured. We 
need to ensure that Americans not risk bankruptcy and disaster with 
every illness. Americans who work hard their whole life should not be 
robbed of their family's security because health care is too expensive. 
During the New Deal we charted a path for America where growing old did 
not mean being poor, or being without health care. Americans should not 
lose their life savings because they have the misfortune of losing a 
job or getting sick. That is not America.
  The success of the last century was the establishment of a social 
safety net for which all Americans can be grateful and proud. Through 
Social Security, Medicare and Medicaid, Congress established some of 
the cornerstones of American security. They are within the 
constitutional authority of the Congress just as health insurance 
reform is. No conservative activist court should overstep the 
judiciary's role by seeking to turn back the clock and deny a century 
of progress. The authority of Congress is well settled and well 
established by the Constitution, judicial precedent, and our history of 
legislation promoting the general welfare and protecting the economic 
security and health of Americans.
  The cumulative economic effects on the Nation of the rising costs of 
health care are significant, with those costs making up a large 
percentage of our economy and with American businesses struggling to 
provide benefits to their employees. As set forth in a paper by 
Georgetown University and the O'Neill Institute for National and Global 
Health Law, the requirement for individuals to purchase health 
insurance would address the problem of free riders, millions of 
Americans who refuse to buy health insurance and then rely on expensive 
emergency health care when faced with medical problems. This shifts the 
costs of their health care to people who do have insurance, which in 
turn has a significant effect on the costs of insurance premiums for 
covered Americans and on the economy as a whole. A requirement that all 
Americans have health insurance--like requirements to be vaccinated or 
to have car insurance or to register for the draft or to pay taxes--is 
within congressional power if Congress determines it to be essential to 
controlling spiraling health care costs. Requiring that all Americans 
have health insurance coverage, and preventing some from depending on 
expensive emergency services in place of regular health care, can and 
will help reduce the cost of health insurance premiums for those who 
already have insurance.
  Whether Senators agree or not on the necessity to reform our health 
care system and health insurance, I trust that all Senators, 
Republican, Democratic and Independent, agree that it is our 
responsibility to act and within Congress's constitutional authority to 
legislate for the general welfare of all Americans.
  Mr. President, I ask unanimous consent to have printed in the Record 
the Los Angeles Times op-ed to which I referred.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Los Angeles Times, Oct. 6, 2009]

                  The Constitutionality of Healthcare

                         (By Erwin Chemerinsky)

       Are the healthcare bills pending in the House and Senate 
     unconstitutional?
       That's what some of the bills' critics have alleged. Their 
     argument focuses on the fact that most of the major proposals 
     would require all Americans to obtain healthcare coverage or 
     pay a tax if they don't. Those too poor to afford insurance 
     would have their health coverage provided by the state.
       Although the desirability of this approach can be debated, 
     it unquestionably would be constitutional.
       Those who claim otherwise make two arguments. First, they 
     say the requirement is beyond the scope of Congress' powers. 
     And second, they say that people have a right to be uninsured 
     and that requiring them to buy health insurance violates 
     individual liberty. Neither argument has the slightest merit 
     from a constitutional perspective.
       Congress has broad power to tax and spend for the general 
     welfare. In the last 70 years, no federal taxing or spending 
     program has been declared to exceed the scope of Congress' 
     power. The ability in particular of Congress to tax people to 
     spend money for health coverage has been long established 
     with programs such as Medicare and Medicaid.
       Congress has every right to create either a broad new tax 
     to pay for a national healthcare program or to impose a tax 
     only on those who have no health insurance.
       The reality is that virtually everyone will, at some point, 
     need medical care. And, if a person has certain kinds of 
     communicable diseases, the government will insist that he or 
     she be treated whether they are insured or not. A tax on the 
     uninsured is a way of paying for the costs of their likely 
     future medical care.
       Another basis for the power of Congress to impose a health 
     insurance mandate is that the legislature is charged with 
     regulating commerce among the states. The Supreme Court has 
     held that this means Congress has the ability to regulate 
     activities that have a substantial effect on interstate 
     commerce. A few years ago, for example, the court held that 
     Congress could prohibit individuals from cultivating and 
     possessing small amounts of marijuana for personal medicinal 
     use because marijuana is bought and sold in interstate 
     commerce.
       The relationship between healthcare coverage and the 
     national economy is even clearer. In 2007, healthcare 
     expenditures amounted to $2.2 trillion, or $7,421 a person, 
     and accounted for 16.2% of the gross domestic product.
       The claim that individuals have a constitutional ``right'' 
     to not have health insurance is no stronger than the 
     objection that this would exceed Congress' powers. It is hard 
     to even articulate the constitutional right that would be 
     violated by requiring individuals to have health insurance or 
     pay a tax.
       Since the 19th century, the Supreme Court has consistently 
     held that a tax cannot be challenged as an impermissible 
     taking of private property for public use without just 
     compensation. All taxes, of course, are a taking of private 
     property for public use, and a tax to pay for health 
     coverage--whether imposed on all Americans or just the 
     uninsured--is certainly something Congress could impose.
       The claim that an insurance mandate would violate the due 
     process clause is also

[[Page S13754]]

     specious. Most states have a requirement for mandatory car 
     insurance, and every challenge to such mandates has been 
     rejected. More important, since 1937, the Supreme Court has 
     constantly held that government regulations of property and 
     the economy will be upheld as long as they are reasonable. 
     Virtually every economic regulation and tax has been found to 
     meet this requirement. A mandate for health coverage would 
     meet this standard, which is so deferential to the 
     government.
       Finally, those who object to having health coverage on 
     freedom-of-religion grounds also have no case. The Supreme 
     Court has expressly rejected objections to paying Social 
     Security and other taxes on religious grounds. More 
     generally, the Supreme Court has ruled that individuals do 
     not have a right to an exemption from a general law on the 
     ground that it burdens their religion.
       There is much to debate over healthcare reform and how to 
     achieve it. But those who object on constitutional grounds 
     are making a faulty argument that should have no place in the 
     debate over this important public issue.

  Mrs. FEINSTEIN. Mr. President, I rise to discuss an amendment to 
create a medical insurance rate authority and rate review process that 
I filed to the Patient Care and Affordable Choice Act.
  Unfortunately, because of the objections of one of my colleagues, my 
amendment was not included in the final bill before us today.
  I am profoundly disappointed. I would like to take a few minutes to 
discuss why I believe this proposal is so important and why, without 
it, we can expect to see skyrocketing health insurance premiums.
  I am very concerned that health insurance companies will seek to 
exploit the time between passage of the bill, and 2014, when reforms 
are fully in place.
  Credit card companies provide a useful example. Earlier this year, 
Congress approved major credit card reform legislation. However, the 
consumer protections it contains will not be fully effective until 
February 2010.
  Credit card companies have taken full advantage of this interim 
period to raise rates, with many card interest rates increasing 20 
percent over the last year.
  I am very worried that health insurance companies will do the very 
same thing. And I believe the rate authority amendment is essential to 
stopping them.
  In some States, insurance commissioners have the authority to review 
rates and increases and block rates that are found to be unjustified. 
According to a 2008 Families USA report, 33 States have some form of a 
prior approval process for premium increases.
  The same report describes several notable successes among States that 
use this process, including . . . regulators in North Dakota were able 
to reduce 37 percent of the proposed rate increases filed by insurers. 
Maryland used their State laws to block a 46-percent premium increase 
after a company charged artificially low rates for 2 years. The 
decision was upheld in court. New Hampshire regulators were able to 
reduce a proposed 100 percent rate increase to 12.5 percent.
  But in other States, including California, insurance commissioners do 
not have this ability.
  And Some states have laws like this on the books, but do not have 
sufficient resources to review all the rate changes that insurance 
companies propose.
  Consumers deserve full protection from unfair rate increases, no 
matter where they live.
  The amendment I have proposed would ensure that all Americans have 
some level of basic protection. The amendment will strengthen a 
provision included in the underlying bill, which already requires 
insurance companies to submit justifications and explain increases in 
premiums. They must submit these justifications to the Secretary of 
Health and Human Services, and they must make these justifications 
available on their Web site.
  I believe we must do more.
  The amendment asks the National Association of Insurance 
Commissioners to produce a report detailing the rate review laws and 
capabilities in all 50 States. The Secretary of HHS will then use these 
findings to determine which States have the authority and capability to 
undertake sufficient rate reviews to protect consumers.
  In States where insurance commissioners have authority to review 
rates, they will continue to do so.
  In States without sufficient authority or resources, the Secretary of 
HHS will review rates and take any appropriate action to deny unfair 
requests.
  This could mean blocking unjustified rate increases, or requiring 
rebates, if an unfair increase is already in effect.
  This will provide all American consumers with another layer of 
protection from an unfair premium increase.
  The amendment would also require the Secretary of Health and Human 
Services to establish a medical insurance rate authority as part of the 
process in the bill that enables her to monitor premium costs.
  The rate authority would advise the Secretary on insurance rate 
review and would be composed of seven officials that represent the full 
scope of the health care system including: at least two consumers; at 
least one medical professional; and one representative of the medical 
insurance industry.
  The remaining members would be experts in health economics, actuarial 
science, or other sectors of the health care system.
  The rate authority will also issue an annual report, providing 
American consumers with basic information about how insurance companies 
are behaving in the market. It will examine premium increases, by plan 
and by State, as well as medical loss ratios, reserves and solvency of 
companies, and other relevant behaviors.
  This data will give consumers better information. But more 
importantly, it will give the newly created insurance exchanges better 
information.
  Under the amendment, the Secretary of Health and Human Services, and 
the relevant insurance commissioner, will recommend to exchanges 
whether a company should be permitted to participate in the exchanges.
  So companies should be put on notice: unfair premium increases and 
other unfair behaviors will come with a price. Millions of Americans 
will receive tax credits to purchase coverage in the exchange beginning 
in 2014. Insurance companies will need to demonstrate that they are 
worthy of participating in this new market, and receiving Federal money 
to cover uninsured Americans.
  This concern about premium increases stems from the fact that we are 
the only industrialized nation that relies heavily on a for-profit 
medical insurance industry to provide basic health care. I believe, 
fundamentally, that all medical insurance should be not for profit.
  The industry is focused on profits, not patients. And it is heavily 
concentrated, leaving consumers with few alternatives when their 
premiums do increase.
  As of 2007, just two carriers--WellPoint and UnitedHealth Group--had 
gained control of 36 percent of the national market for commercial 
health insurance.
  Since 1998, there have been more than 400 mergers of health insurance 
companies, as larger carriers have purchased, absorbed, and enveloped 
smaller competitors.
  In 2004 and 2005 alone, this industry had 28 mergers, valued at more 
than $53 billion. That is more merger activity in health insurance than 
in the 8 previous years combined.
  Today, according to a study by the American Medical Association, more 
than 94 percent of American health insurance markets are highly 
concentrated, as characterized by U.S. Department of Justice 
guidelines. This means these companies could raise premiums or reduce 
benefits with little fear that consumers will end their contracts and 
move to a more competitive carrier.
  In my State of California just two companies, WellPoint and Kaiser 
Permanente, control more than 58 percent of the market. In Los Angeles, 
the top two carriers controlled 51 percent of the market.
  Record levels of market concentration have helped generate a record 
level of profit increases.
  Between 2000 and 2007, profits at 10 of the largest publicly traded 
health insurance companies soared 428 percent from--$2.4 billion in 
2000 to $12.9 billion in 2007. This is Health Care for America Now, 
Premiums Soaring in Consolidated Health Insurance Market, May 2009, 
citing U.S. Securities and Exchange Commission filings.
  The CEOs at these companies took in record earnings. In 2007, these 
10 CEOs

[[Page S13755]]

made a combined $118.6 million. The CEO of CIGNA took home $25.8 
million; The CEO of Aetna took home $23 million; The CEO of 
UnitedHealth took home $13.2 million; and the CEO of WellPoint took 
home $9.1 million.
  I am very concerned that this profit seeking behavior will only 
worsen, now that insurance companies know that health reform will 
change their business model.
  Insurers know that come 2014, they will be playing by new rules: No 
discriminating based on preexisting conditions. No cherry picking and 
choosing to cover only the healthy. No charging women or older people 
astronomical rates. No dropping coverage once someone gets sick.
  Insurers know these changes are coming. Listen to a comment made by 
Michael A. Turpin, a former senior executive for UnitedHealth. He is 
now a top official at an insurance brokerage firm, and he said that 
insurers were ``under so much pressure to post earnings, they're going 
to make hay while the sun is shining.''
  ``Make hay while the sun is shining.'' That means these companies 
will try to make as much money as they possibly can, for as long as 
they can.
  That is why a rate review amendment is so important.
  Frankly, I wish the health reform bill before us would go further and 
eliminate the for-profit health insurance industry.
  But since this bill chooses to maintain a for-profit industry, we 
must do the next best thing and ensure that it is thoroughly regulated. 
Insurance companies should not be able to take advantage of the fact 
that affordable health care is a basic life need. In effect, they have 
the power to increase their prices at will, knowing that people will 
continue to pay as long as they can afford to do so.
  This amendment certainly will not fix all of the ills of a for-profit 
insurance industry, but I believe it makes a needed improvement in the 
underlying bill and will help protect consumers from unfair increases. 
Without it, I worry that consumers in far too many States will see 
major premium increases.
  I will continue to work to see that this amendment is included in the 
final version of health reform legislation. Without it, too many 
Americans will still lack protection from unfair rate increases.
  I ask unanimous consent that a copy of a support letter from 
California organizations be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                December 17, 2009.
     Hon. Harry Reid,
     Majority Leader of the U.S. Senate, Hart Office Building, 
         Washington, DC.
     Re Support of amendment to HR. 3590 to improve rate review of 
         increases in health insurance premiums.

       Dear Senator Reid: Thank you for your leadership in 
     advancing health reform this year. We, the undersigned 
     organizations, support a proposed amendment by Senators 
     Feinstein, Rockefeller and others that would provide greater 
     specificity in terms of rate review of increases in health 
     insurance premiums.
       The proposed amendment:
       Creates a rate review authority that could deny or modify 
     unjustified rate increases or order rebates to consumers,
       Defines potentially unjustified rate increases as increases 
     which exceed market averages,
       Gives priority to rate increases that impact large numbers 
     of consumers,
       Creates market conduct studies of health insurance rate 
     increases,
       Exclude from State Exchanges insurers that have a pattern 
     of excessive premium increase, low medical loss ratios or 
     other market conduct,
       Allows a State to conduct the rate reviews.
       We support the provisions of health reform which make 
     health insurance more affordable for individuals and 
     businesses. This amendment is consistent with the stated 
     intention of the ``Patient Protection and Affordable Care 
     Act'' and provides greater specificity to the provisions on 
     ``ensuring that consumers get value for their dollars.''
       The proposed amendment prevents anticipatory price 
     increases by health insurers in advance of full 
     implementation of health reform. Scrutiny of rate increases 
     will have a deterrent effect on increases in premiums that 
     are out of line.
       For these reasons, we support the proposed amendment.
           Sincerely,
     Angie Wei,
       Legislative Director, California Labor Federation.
     Marty Martinez,
       Policy Director, California Pan-Ethnic Health Network.
     Michael Russo,
       Health Care Advocate and Staff Attorney, California Public 
     Research Interest Group (CALPIRG).
     Sonya Vasquez,
       Policy Director, Community Health Councils, Inc.
     Gary Passmore,
       Director, Congress of California Seniors.
     Anthony Wright,
       Executive Director, Health Access California.
     Bill A. Lloyd,
       Executive Director, Service Employees International Union 
     California State Council.
     Rev. Lindi Ramsden,
       Executive Director, Unitarian Universalist Legislative 
     Ministry Action Network--California.

  The PRESIDING OFFICER. The Senator from Mississippi is recognized.
  Mr. WICKER. Mr. President, I ask unanimous consent that several 
Republican colleagues and I be allowed to engage in a colloquy for the 
next hour.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WICKER. Mr. President, I thank my friend from Washington for 
commending and complimenting the staff. That is a bipartisan sentiment 
for this Christmas season. I am sure every Senator on the floor feels 
the same way and expresses that appreciation to the hard-working staff.
  I want to start off by saying there is still an opportunity for this 
bill to be amended to change some of the very harmful ways that this 
will affect our people back home and, particularly, our State 
governments.
  I was on the Senate floor several days ago pointing out the 
objections that most of the State Governors have with regard to the 
Medicaid mandates. I want to read from a letter dated December 10, from 
my Governor, Haley Barbour of Mississippi, who reminds Senators that:

       This bill continues to place a huge unfunded mandate on 
     States, while harming our small businesses and seniors 
     through budget gimmicks and increased taxes.

  And he says this:

       If the current bill, which would expand Medicaid up to 133 
     percent of the Federal poverty level, were enacted into law, 
     the number of Mississippians on Medicaid would increase to 
     1,037,606, or 1 in 3 citizens, in Mississippi. Over 10 years, 
     this bill would cost Mississippi taxpayers $1.3 billion.

  I was on the Senate floor a few days ago also with this map, which 
shows in red the number of States that are facing this unfunded mandate 
because of the increased Federal mandate for Medicare coverage coming 
from this bill, should it be enacted into law. I was pointing out that 
only the two States--Vermont and Massachusetts--because of a formula 
that has been worked out, would be exempt. Every other State will have 
to come up with the extra money either through cutting education 
programs, cutting mental health programs or other vital services or by 
raising taxes. They will have to come up with the extra money under 
this legislation so that half of the people covered by this new act 
will be covered by Medicaid.
  I want to make an amendment to that chart today and add one other 
State. I think it has become quite a well-known fact that we need to 
put one other State up there in yellow, and that is the State of 
Nebraska.
  We know pursuant to an agreement that was made before Senator Nelson 
announced his support as the 60th vote for cloture on this very 
important legislation, a deal was cut--the minority leader said a cheap 
deal, and I agree--that the State of Nebraska would be exempt in 
perpetuity from its requirement to pay the State match. The Federal 
Government, according to this legislation that we will be asked to vote 
on in the next 2 days, will pick up all of the extra expenditures for 
the State of Nebraska.
  The poverty level in Nebraska is not quite as bad. I don't know how 
the powers that be felt they should or could justify this expenditure, 
but I will tell you the people in the State of Mississippi are going to 
have to come up

[[Page S13756]]

with another $1.3 billion over the next 10 years to pay for what we are 
going to be required to do by Congress--in its wisdom.
  How is it fair that one Senator from Nebraska goes behind closed 
doors with the majority leader and cuts this deal so that his citizens 
don't have to pay this extra tax, and they don't have to do without 
services in other State programs to come up with the money? No one in 
this building--nobody within the sound of my voice--can come in here 
and explain why that is fair.
  The fact is, the majority leader needed that vote, and that was part 
of the deal that was cut. Now citizens in Arizona, citizens in Wyoming, 
citizens in Mississippi, in Arkansas, and in Louisiana--we will have to 
come up with the extra Federal tax money on our part, but the Federal 
Government can cover all of the additional costs--State and Federal--in 
Nebraska.
  Mr. McCAIN. If the Senator will yield, on that map, I wonder should 
there not be a sticker for the State of Florida? According to a 
published report by one of my favorite columnists, Dana Milbank, of the 
Washington Post:

       Gator Aid: Senator Bill Nelson inserted a grandfather 
     clause that would allow Floridians to preserve their pricey 
     Medicare Advantage program.

  So maybe we should have one of those stickers for Florida there. By 
the way, that will cost my constituents more money because they will 
not have that same deal. Should there be a sticker for Montana?
  Again, according to Dana Milbank:

       Handout Montana: Senator Max Baucus secured Medicare 
     coverage for anybody exposed to asbestos--as long as they 
     worked in a mine in Libby, Montana.

  Should there be a sticker there?
  Continuing, Dana Milbank says:

       Iowa pork and Omaha Prime Cuts: Senator Tom Harkin won more 
     Medicare money for low-volume hospitals of the sort commonly 
     found in Iowa. . . .

  Maybe there should be a sticker for that. I don't know if you have 
North Dakota in there. Dana Milbank says:

       Meanwhile, Senators Byron Dorgan and Kent Conrad, both 
     North Dakota Democrats, would enjoy a provision that would 
     bring higher Medicaid payments to hospitals and doctors in 
     ``frontier counties'' of states such as--let's see here--
     North Dakota!

  Should there be one for Hawaii? Mr. Milbank goes on to say:

       Hawaii, with two Democratic senators, would get richer 
     payments to hospitals that treat many uninsured people.

  Should there be a sticker there for Michigan? Mr. Milbank says:

       Michigan, home of two other Democrats, would earn higher 
     Medicare payments for some reduced fees for Blue Cross/Blue 
     Shield. Vermont's Senator Bernie Sanders held out for larger 
     Medicaid payments for his state. (neighboring Massachusetts 
     would get one, too).

  I guess there are a number of States that maybe should have stickers 
on them so that the American people can see where these special deals 
were cut out, and the majority of the population of this country can 
see where they were not. They are going to pay while those States pay 
less because of not just their location but because they happen to have 
been behind closed doors and cut special deals.
  Mr. BAUCUS. I wonder if the Senator would yield briefly.
  Mr. McCAIN. Sure. I ask that Senator Baucus be recognized.
  Mr. BAUCUS. I am pointing out, as the Senators know, for example, 
under this legislation, the Federal Government pays all the costs of 
eligible enrollees through 2016. In this legislation, we are talking 
about the so-called expansion population. That is those between 100 
percent of poverty on Medicaid and 133 percent of poverty, and under 
the underlying statute----
  Mr. McCAIN. Does that mean all these States are being treated the 
same?
  Mr. BAUCUS. In 2016, all States are treated the same.
  Mr. McCAIN. This happens to be 2009. What happens between now and 
2016?
  Mr. BAUCUS. Beginning next year, when this goes into effect, 2010 
through 2016, all States will get 100 percent payments for that 
expansion coverage.
  Mr. WICKER. What would happen, then, after 2016 under current 
legislation?
  Mr. BAUCUS. Afterward, under current legislation--one sentence of 
background. Today, as the Senator well knows, different States receive 
different Federal contributions to Medicaid. It varies according to 
States. The average is about 57 percent Federal. The average for all 
States on average is 57 percent of the cost of Medicaid is paid for----
  Mr. McCAIN. If that is the case----
  Mr. BAUCUS. Let me finish.
  Mr. McCAIN. If that is the case, we will be glad to have the same 
provision inserted for the State of Arizona that was inserted for the 
State of Florida. You don't have a problem with that, do you?
  Mr. BAUCUS. Let me answer the question.
  Mr. McCAIN. Do you have a problem with that?
  Mr. BAUCUS. I can answer only one question at a time. The first 
question is from the Senator from Mississippi. Then, after 2017, all 
States get 90 percent--we are talking about expansion of population.
  Mr. WICKER. The Senator yielded to me the other day, and I appreciate 
that. We have a number of Republicans who want to speak during our 
hour.
  The fact is, after 2016, every State in red has to tax their own 
citizens and pay their State share, except Vermont, Massachusetts, and 
Nebraska. And I still challenge any colleague in this Senate to come 
before this body and say that is fair. I do not believe they will say 
that is fair.
  Mr. McCAIN. My question to the Senator from Montana is this: Would 
the Senator from Montana be willing to have the same provision that 
Senator Nelson, according to these reports, inserted, a grandfather 
clause that would allow Floridians to reserve their price in the 
Medicare Advantage Program? Would he accept a unanimous consent request 
right now that same provision apply to every State in America?
  I ask unanimous consent that the same provision that was put in for 
the State of Florida by Senator Nelson would apply to every State in 
America.
  The PRESIDING OFFICER. Is there objection?
  Mr. BAUCUS. Reserving the right to object, I think it would be highly 
imprudent for me not to object, so I will object to that request. I 
also point out that on average, Uncle Sam pays 90 percent of the 
Medicaid payments for this expansion of population after the year 2016.
  The PRESIDING OFFICER. Objection is heard.
  Mr. McCAIN. I think the fact that an objection was heard resolves the 
case. Those are comforting words on the part of the Senator from 
Montana, whom I appreciate, but the fact is, there are special deals 
for special people. It is well known. It is very well known.
  May I mention to my colleagues--sort of a personal privilege here--
the Senator from Louisiana came to the floor this morning and said:

       Recently, just yesterday, Senator John McCain, our 
     colleague from Arizona, has claimed that the American people 
     are opposed to reform and he speaks about the will of the 
     majority. I would like to remind, respectfully, my colleague 
     from Arizona that the will of the majority spoke last year 
     when they elected President Obama to be President and they 
     decided not to elect him, and the President is carrying out 
     the will of the majority of the people to try to provide them 
     hope and opportunity.

  I say in response to that, I really did not need to be reminded. I 
had not forgotten. Sometimes I would very much like to. But I 
appreciate the reminder.
  The fact is that the Senator from Louisiana and other Senators should 
know that poll after poll, public opinion, partially because of what 
the Senator from Mississippi is pointing out--the latest being ``U.S. 
Voters Oppose Health Care Plan by Wide Margin.'' A Quinnipiac poll 
finds 3 to 1 that the plan should not pay for abortion. And it says 
American voters mostly disapprove of the plan 53-36 and disapprove 56-
38 percent President Obama's handling of the health care issue.
  If I can remind my friend and colleague from Louisiana, I did carry 
her State.
  Mr. BAUCUS. The Senator carried my State too.
  Mr. McCAIN. And the State of the Senator from Montana.
  Mr. JOHANNS. If I may jump in here, probably like every Senator here, 
I read the newspapers back home every morning as I start my day. There 
was an editorial in the Lincoln Journal Star on December 21 that speaks 
to this issue of special deals. I thought it

[[Page S13757]]

was excellent. The Lincoln Journal Star has covered me for a long time. 
Sometimes I agree with them, sometimes I do not. Sometimes they agree 
with me, sometimes they do not. But I have always respected the work 
they do.
  Here is what they said in their editorial:

       Since when has Nebraska become synonymous for cynical 
     ``what's in it for me''-type politics?
       The term ``Cornhusker kickback'' is already a favorite of 
     television's talking heads.

  They go on to say:

       That's how the rest of the country sees [this] deal.

  The editorial continues:

       Under its provisions, the federal government would pay all 
     additional Medicaid costs for Nebraska ``in perpetuity.'' The 
     Congressional Budget Office has estimated the deal may be 
     worth $100 million over 10 years.

  They go on to say I think in very powerful language:

       The deal is the embodiment of what is wrong in Washington.
       Instead of thoughtful, careful work on real problems, 
     Washington lawmakers cobble together special deals, dubious 
     financial accounting and experimentation on a grandiose 
     scale.

  They devote a paragraph to the many special deals cut, and the 
Senator's chart illustrates one.
  Mr. McCAIN. If the Senator will----
  Mr. JOHANNS. If I may finish, I say to Senator McCain, and then you 
can ask me.
  They say this:

       It's time to push the reset button on health care reform.
       The effort has gone awry.

  Mr. McCAIN. But also, doesn't this bring up a larger issue--I ask all 
my colleagues to comment on this--whether our job here is to do 
whatever we can to just simply help our State, even if it is at the 
expense of other States, as the Senator from Mississippi pointed out, 
or is our title U.S. Senator, Arizona, Nebraska, Mississippi, et 
cetera? My title is not Arizona Senator, U.S.; it is U.S. Senator, 
Arizona. So of course I am here to represent the people of my State. 
But is a U.S. Senator's job to go out and do something which would then 
be at the expense of the citizens of another State simply by virtue of 
their clout and influence? Is that what we were sent here by our 
constituents to do?
  Is it true what the majority leader said yesterday:

       "I don't know if there is a Senator that doesn't have 
     something in this bill that was important to them,'' Senate 
     Majority Leader Harry Reid reasoned when asked at a news 
     conference Monday about the cash-for-cloture accusation. 
     ``And if they don't have something important in it to them, 
     then it doesn't speak well of them.''

  Does it speak well of us when we do something like the Senator from 
Mississippi pointed out, that favors Libby, MT, and not the rest of the 
country, that helps the seniors in Medicare Advantage in Florida and 
not in Arizona? Is that what we were sent here to do? That has never 
been my view of what our obligations to our citizens are, but also to 
the citizens of this country.
  I ask my colleagues to comment.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. RISCH. Mr. President, here is what this has come to. In the next 
48 hours, this 2,400-some page bill is going to pass the Senate. But 
how did we get there? Was it done the way things are usually done in 
this body? Not at all. One party has been able to gather 60 votes for 
this. Not one person from the other party is going to vote for it. How 
did they get those 60 votes? Did they get it by arguing this out? They 
did not do that. They have bluntly, boldly, and on the front of 
virtually every newspaper in this country bought the votes to pass this 
bill, to get to the 60. They bought the last handful of votes, and they 
did not even buy it with their money, they bought it with the American 
people's money. Now, that is wrong.

  The explanation I heard from the majority leader the other day is: 
Well, that is the way this is done. That may be the way this is done in 
banana republics, that may be the way this is done in Third World 
countries, but this is America. The American people are outraged over 
this. The other party ought to be outraged.
  I heard one Member quoted as saying: Well, I was too stupid to get 
any money for my State in there. I heard the majority leader say: You 
are not doing your job if you don't have something in there for you. 
Where is the outrage from the other side, not only about the process 
but how they are getting snookered by some other members of their 
party? Where is the outrage?
  I watched the debate on the other side and have seen Members come 
down and say: The American people want this. Are they living in a cave? 
Sure, there are a handful of American people who want this. Let me tell 
you who does not. The U.S. Conference of Bishops does not want it. The 
National Right to Life people do not want this. Not one Republican 
wants this. The Democrats do not want it.
  Listen to what Howard Dean, the former leader of the Democratic 
Party, said:

       At this point, the bill does more harm than good.

  Ask any Democratic Governor in America. This bill transfers $25 
billion in costs in unfunded mandates to the Governors and to their 
taxpayers. They have to come up with $25 billion. They don't want it.
  I have stood here and listened to the other side say: This is 
wonderful for small business. Small business is going to come out so 
well on this. Then why does the National Federation of Independent 
Business--small businesses--say:

       The Senate bill fails small businesses.

  The National Association of Wholesale Distributors. The Small 
Business Entrepreneurship Council says:

       Small business group say Reid health bill more of the 
     same--more taxes, mandates, big spending, and nothing to help 
     lower insurance costs.

  Associated Builders and Contractors is against it. The National 
Association of Manufacturers is against it, the Independent Electrical 
Contractors, the International Franchise Association. Even the labor 
unions have said: Don't tax our health care benefits. We agree with 
them. We are on the side of the labor unions. We should not be taxing 
health care benefits.
  But set all that stuff aside. These are all people who have an ax to 
grind. The American people do not want this bill. These people who are 
coming out here saying the American people want this bill, I don't know 
whether they are not reading the newspapers, whether they are not 
reading their own e-mails at their office. The Quinnipiac poll that was 
out this morning, Tuesday through Sunday, says: 36 percent of the 
American public support the health care spending bill; 53 percent 
oppose. That is an 18-percent difference. Gallup says 61 percent of the 
American people don't want this bill.
  Stop coming out here saying the American people want this bill. The 
American people do not want it. You want it, but the American people do 
not want it. Leaders in your own party do not want it. The labor unions 
do not want it. Nobody wants this thing, and most of all small business 
does not want this bill.
  I have listened to anecdote after anecdote from the other side. There 
are some very touching stories, and everybody over here is empathetic 
with them. But you don't legislate using anecdotes because you are only 
hearing one side of the story, you are not hearing all the facts 
dealing with the anecdotes, and to then pat this 2,400-page bill and 
say this will solve that, that is not the way you legislate, and it is 
certainly not the way you argue a point.
  I heard the other side come out here and pat the bill and say: When 
we pass this bill, 94 percent of American people will have insurance, 
will be covered by health insurance. In court, they say you have to 
tell the truth, the whole truth, and nothing but the truth, and that is 
exactly why. You cannot pat this bill and say now 94 percent of the 
American people are going to be covered.
  Somebody listening to that will say: Gosh, what a wonderful bill. 
What is it going to cost? It costs $2.5 trillion to cover 94 percent of 
the American people. But they don't say the bill only adds another 7 
percent. The fact is, they don't tell you that 87 percent of Americans 
are already covered by some kind of health insurance. So don't say this 
is a grand and glorious victory because we are now going to cover 94 
percent when 87 percent are already covered.
  This is gimmickry at its worst, to tax for 4 years without giving any 
major benefits. Giving some minor benefits but holding off the major 
benefits

[[Page S13758]]

until later is plain gimmickry. They say: Oh, look how wonderful this 
is. It is not going to add to the national deficits because we are 
going to collect taxes for 4 years, and only then are we going to start 
the benefits.
  What do we have here? When all is said and done and you strip it 
away, you have $2.5 trillion and 2,400 pages that most people do not 
understand, higher taxes, and higher insurance premiums.
  I can give you one fact that is the best reason to vote against this 
bill; that is, it cuts $\1/2\ trillion out of Medicare benefits. If you 
are a senior watching, $\1/2\ trillion of Medicare benefits is going to 
disappear. I heard the President say and I heard my friends on the 
other side say: Look, if you like your program, if you like your 
insurance plan, you are going to be able to keep it. Try to tell that 
to the people who are on Medicare Advantage. It is being stripped. It 
is being eliminated under this bill. Indeed, if you read the rules and 
regulations under this bill, the plan you have will not even exist when 
it is done.
  You know, I have heard the other side say: Oh, you Republicans are 
just playing on fears of the American people. Let me tell you 
something. The American people are frightened. They are afraid. It 
isn't just this health care bill, they have sat here for the last year, 
and they have watched stimulus packages costing $1 trillion. They have 
watched multibillion-dollar bailouts. They have seen buyouts. They have 
seen trillion-dollar deficits running up. They have seen the national 
debt now running into the trillions. And, yes, they are afraid.
  But it isn't us that is doing it to them, it is you that have done it 
to them. It is you that have committed the actions that have put the 
fear into the hearts of the American people. Don't do this. Stop this 
nonsense. You have the opportunity still to stop this. You can do it. 
The American people don't want this. Stop the insanity.
  I yield the floor.
  Mr. WICKER. I will say to my friend, I am afraid. I am afraid for my 
country. We are going to have a vote sometime between now and Christmas 
Eve on raising the debt limit. It will just be a short-term thing. I 
doubt if a single Republican will vote for that. Then we will have to 
come back again in February and do the same thing.
  The debt that is piling up on our country is something to be 
frightened about. It is something we need to fight against and be 
resolute about. We are not shedding crocodile tears, but I am 
frightened by this debt, and we should be, if we want our economy to 
stay strong. The fact we are adding $2.5 trillion in an entitlement 
program, which apparently the majority has the votes for, is simply 
going to add to this enormous debt.
  So it is no wonder, when you add the Medicare cuts, the taxes that 
most States are going to have to pay--unless they cut a special deal--
on top of the tremendous national debt that we are facing, the American 
people are frightened. They have a right to be frightened and worried.
  Mr. BARRASSO. I don't know how many of my colleagues have seen the 
editorial in today's Investors Business Daily.
  Mr. President, I ask unanimous consent to have printed in the Record 
the article to which I am going to refer.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                  Louisiana Purchase and Omaha Stakes

       Politics: Mary Landrieu's payoff was the new ``Louisiana 
     Purchase.'' Ben Nelson got Uncle Sam to pick up Nebraska's 
     future Medicaid tab. Maybe we should just put Senate votes up 
     on eBay.
       Nelson, the 60th vote in the middle-of-the-night Senate 
     party line vote on health care reform, will go down in 
     American political history as the inventor of the permanent 
     earmark. His seemingly principled stand against including 
     federal funding for abortion evaporated like the morning dew 
     as he decided to take what was behind door No. 1.
       The deal for Nelson includes special Medicaid funding for 
     Nebraska, along with Vermont and Massachusetts, which has a 
     special election to fill the seat of the late Sen. Ted 
     Kennedy coming up in January. Under the Senate bill every 
     state is equal, but some are more equal than others. The 
     other states and their taxpayers--that means you--will pick 
     up this tab.
       This came just three days after Sen. Bernie Sanders, I-Vt., 
     said on Neil Cavuto's Fox Business show that he was prepared 
     to vote against the bill after the recent decision to strip 
     the public option and the Medicare buy-in provision from the 
     legislation to get the vote of Sen. Joe Lieberman, I-Conn.
       Nelson won a permanent exemption from the state share of 
     Medicaid expansion for Nebraska. Uncle Sam will take the hit 
     for 100% of the Medicaid expansion for Nebraska--forever. The 
     world's greatest deliberative body has now become the most 
     corrupt.
       The Congressional Budget Office (CBO) informed lawmakers 
     Sunday night that this section of the manager's amendment to 
     the Senate's health bill would cost $1.2 billion over 10 
     years.
       Nebraska actually receives the least of the three, some 
     $100 million over the first 10 years. Vermont will receive 
     $600 million over 10 years, while Massachusetts will get $500 
     million.
       Nelson, like most other senators, doesn't know what's 
     really in this bill or what it costs, except for the scoring 
     that involves comparing a decade of taxes with six or seven 
     years of ``benefits.''
       This includes gutting Medicare by half a trillion dollars. 
     The abortion language he accepted may not survive conference 
     or the Stupak amendment supporters in the House. The Medicaid 
     bribe he accepted will.
       Senate Majority Leader Harry Reid, the Boss Tweed of our 
     time, defended how this sausage was made. ``You'll find a 
     number of states that are treated differently than other 
     states. That's what legislating is all about. It's about 
     compromise,'' he said.
       On the contrary, sir, it's about bribery--about what has 
     been dubbed the ``Cornhusker kickback,'' and about politics 
     done the ``Chicago Way.''
       A $100 million item for construction of a university 
     hospital was inserted in the Senate health care bill at the 
     request of Sen. Christopher Dodd, D-Conn., who faces a 
     difficult re-election campaign.
       Presumably there's a wing where taxpayers can go to get 
     their wallets removed.
       The Democrats insist that their Medicare cuts will not lead 
     to rationing. So why did, as HotAir.com reports, Sen. Bill 
     Nelson, D-Fla., insist on language that exempted three 
     heavily Democratic counties in his home state from the cuts? 
     If those massive cuts to the program won't hurt people on 
     Medicare Advantage, why did Nelson fight to get exemptions 
     for Palm Beach, Dade and Broward counties?
       After all this wheeling and dealing, we will still have a 
     cost-raising tax-increasing, Frankenstein monster of a bill 
     hurriedly stitched together behind closed doors that will 
     lead to doctor shortages and rationed care.

  Mr. BARRASSO. The article is headlined: ``Louisiana Purchase and 
Omaha Stakes.'' The editorial says:

       Politics: Mary Landrieu was the new ``Louisiana Purchase.'' 
     Ben Nelson got the federal government to pick up his state's 
     future Medicaid tab.

  And the article continues:

       Maybe we should just put Senate votes up on eBay. . . . 
     Nelson won a permanent exemption from the state share of 
     Medicaid expansion for Nebraska--forever. The world's 
     greatest deliberative body has now become the most corrupt.

  So Uncle Sam is taking the hit for 100 percent of the Medicaid 
expansion for Nebraska forever. That is what this says. It goes on to 
say this is not what legislating is about; that this is not compromise, 
rather, it is about bribery.
  Mr. President, this is horrible for us as a nation to have these 
things written about this institution, when we should be way above any 
of these sorts of claims.
  I look at that map that my colleague from Mississippi has up, with 
just Nebraska on there as the special deal, and I do not believe that 
is the way legislation should be written. We should be looking at ways 
to improve health care for all Americans, improve the quality, make it 
more affordable, make it more available to people, and give them the 
access they need.
  I brought four amendments the other day, after Senator Reid brought 
his massive amendment to the floor, and each was rejected. They were 
things that would actually improve this bill and make it better for 
Americans.
  So I stand here, looking at this, and reading headline after headline 
and editorial after editorial about just how very bad is the way this 
bill is being pushed forward. We certainly wouldn't want any young 
child to know how this is happening in their country, as we try to get 
them involved in this process and learn and study and feel that maybe 
they should become involved in this. This isn't what legislating in 
America is all about. We are better than this.
  If you have to do these sorts of things to get a 60th vote, then the 
bill isn't good enough to pass. If the ideas aren't good enough to get 
the votes, then it shouldn't pass. In this country, we look for 
bipartisan solutions to the big issues of the day. That is what we did

[[Page S13759]]

in the Wyoming Legislature. Major issues passed with overwhelming 
numbers. That is what has happened in this country throughout the 
course of history. The big bills have come forth with large numbers of 
supporters, and that is how you get the country to follow you, not by 
trying to force through a vote, buying a vote here and buying a vote 
there to just squeak by with the minimum amount of support. That is not 
the way to change policy that is going to affect everyone in the United 
States personally and affect one-sixth of our economy. That is not the 
way to do it.
  It has not been the way, it shouldn't be the way, and it should never 
be the way again. I am looking for some Democrat to stand up and say: 
This isn't the way, and I am going to not vote for this bill.
  Mr. McCAIN. A Senator from Colorado came to the floor and proudly 
stated that he had not asked for anything or gotten anything, and I 
will ask the Senator from Nebraska a question because his State seems 
to be at the center of a lot of attention. But, first of all, there is 
a little booklet that is put out by the Government Printing Office that 
talks about how our laws are made. We give it to our constituents and 
send it to schools all over America. I have never seen anything in that 
little booklet--it is a very interesting booklet--that says you get 
behind closed doors and you cut deals.
  I know we are all a little cynical about politics and campaign 
promises, but the negotiating behind closed doors is especially so, 
particularly after your President says during the campaign, time after 
time: I am going to have all the negotiations around a big table. We 
will have doctors and nurses, hospital administrators, insurance 
companies, drug companies, they will get a seat at the table. They just 
would not be able to buy every chair. But what we will do, we will have 
negotiations televised on C-SPAN so that people can see who is making 
arguments on behalf of their constituents and who is making arguments 
on behalf of the drug companies.
  Of all people he recognized, the drug companies--who got the best 
deal of all? PhRMA. Who has spent the most money lobbying? Who has 
spent the most money on advertising? PhRMA. Who is going to cost the 
American consumer $100 billion, that could have been saved by the 
consumer if we had been able to reimport prescription drugs?
  But I would ask my friend from Nebraska because along with the 
``Louisiana purchase'' and probably the Florida deal this Nebraska deal 
has probably gotten the most publicity and visibility. Maybe because it 
was the 60th vote. I don't know if it is the biggest or not, in terms 
of money, because we will be finding deals in this 2,700-page bill for 
months. For months, we will be finding provisions, even though our 
staffs have carefully read it. It is not 2,700 pages for nothing.
  So I would ask the Senator from Nebraska: How does this go over in 
the heartland of America? How do the people in Nebraska, who see that 
they have gotten some kind of special deal, a special provision--
certainly reported as so in the media--that would come at the expense 
of other taxpayers in America? I am curious about the reaction the 
Senator from Nebraska gets.
  Mr. JOHANNS. It doesn't go over. It just simply doesn't. In every way 
possible, over the last 4 or 5 days, I have been asked: Do you support 
this special deal for Nebraska? I don't. I think it is wrong.
  I could read through all the special deals because we have all got 
the list--it is Florida, Louisiana, and Montana, and on and on and on. 
But I came to the floor this morning and I asked unanimous consent that 
all the special deals be taken out, and I listed a long list of them. 
Of course, there was an objection to that request for unanimous 
consent. Why? Why would we want to try to pass legislation with all of 
this? It makes no sense to me.
  But let me take a step back. We all remember a few months ago there 
was a big story that Nevada was going to get a special Medicaid deal. 
It was right about that time that we took a few days off. I went back 
home, and I did townhall meetings, as I have done for years and years 
and years. But we really invested time and effort, and we identified 
six principles of health care which are on my Web site for people to 
look at. I literally had a PowerPoint presentation. I did four townhall 
meetings--Carnie, Grand Island, Lexington, and Lincoln. I put up these 
principles.
  One of the principles was no carve-out. No backroom deals. No special 
deals. I presented that to the people who were at those townhall 
meetings. I did tons of interviews. I explained why I felt the way I 
did. People were so irate at the possibility that Nevada was going to 
get this special deal.
  Since then, I think that has fallen by the wayside, but all these 
other things have come along. That is why I read the Lincoln Journal 
Star editorial. This is an editorial page that sometimes likes what I 
am doing and sometimes it does not. Over the years, they have not 
hesitated to take me to task. They looked at this and they said:

       Since when has Nebraska become synonymous for cynical 
     ``what's in it for me''-type politics?

  They said it is time to hit the reset button. We are not getting this 
right at all. We simply aren't getting it right. They talked about the 
issues of cost containment, they talked about the Actuary's report, 
which I had spent a little time talking to them about, and other folks 
around the State. After looking at all of that, they just said: Look, 
this isn't going the way it needs to go for the American people.
  Here is what I would say to all of my colleagues in the Senate. I 
love my State. I love the people there. They are such honest, decent 
people. In many parts of our State, people believe you seal a contract 
not by putting things in writing but by shaking hands and giving your 
word. They don't want this kind of attention. They don't want to be on 
the evening news every night with the talking heads talking about the 
``cornhusker kickback'' or whatever the latest terminology is. They 
just want to be treated fairly.
  They asked me to come here and represent them as fervently as I can, 
to try to do all I can to get fair treatment for them. But not a single 
person at any townhall I have ever had stood up and said: Mike, I 
disagree with that principle. I want you to go back there and give me a 
special deal or get our State a special deal.
  So I appreciate Senator McCain asking me the question. I feel very 
strongly about this. I wish the other side would consider my request 
for a unanimous consent agreement that just says: Time out, everybody. 
Let's pull out the special deals, whether it is Nebraska or Montana or 
whatever. It doesn't matter to me. Let's pull those out and let's take 
a step back and let's work for what Senator Risch talks about and the 
rest of us have talked about. We can get 80 votes on a health care 
reform bill. I guarantee you. But not on this bill.
  Mr. WICKER. I would echo what the Senator from Nebraska has just 
said. I know my friend from Arizona has been one of the most outspoken 
critics of special deals and special earmarks. This is not some 
catchall appropriations bill to get us through the end of the year. 
This is one of the most major pieces of legislation on which any Member 
of this Senate currently serving will ever vote. This is one-sixth of 
the American economy, and the American people are learning about these 
special carve-outs where the citizens of one State will be treated 
differently not because of a formula, not because of the poverty level, 
but because of political power.
  It would just seem to me that one Member of the majority party, in 
these next 2 days, might step forward and say: You are right, and I 
will not be a party to this.
  Mr. McCAIN. Let me make one additional comment. I have seen reform go 
through the Congress of the United States. The first one I saw was when 
we saved Social Security--a major reform of Social Security. There was 
no backroom dealing. It was a straightforward proposal as to how to fix 
Social Security. We fixed welfare, it was welfare reform--again, open, 
honest, bipartisan negotiations and bipartisan agreement. Welfare 
reform, Social Security reform, the efforts we made at tobacco reform, 
at campaign finance reform, at immigration reform and many others--the 
Patients' Bill of Rights. Every reform I have ever been involved in has 
had two major and sole components: No. 1, it is bipartisan; No. 2, 
there were no special favors or deals cut, provisions in thousands of 
pages of legislation.

[[Page S13760]]

  Again, we know where the train is headed. We know what is going to 
happen a short time from now, but they will make history. You will make 
history. You will have rammed through ``reform'' on a strictly partisan 
basis, without the participation of the other party, over the 
objections of a majority of the American people, done in closed 
negotiations, with results that are announced to the American people 
without debate or discussion and to this side without debate or 
discussion.
  The American people do not like it. They do not like for us to do 
business that way. I am sure this peaceful revolution that is going on 
out there already--because as the Senator from Idaho pointed out, 
because of the involvement of the car companies, the stimulus, the 
bonus, the generational theft we are committing, this, all on top of 
that, is going to give great fuel to the fire that is already burning 
out there, where they want real change, real change which they were 
promised in the last Presidential campaign and certainly did not get.
  Mr. RISCH. I say to Senator McCain, probably one of the great ironies 
of all this is going to be at 8 o'clock on December 24--when this bill 
passes with the 60 votes, all Democrats--immediately following that 
vote is going to be a vote, again all 60 Democrats and only Democrats, 
raising the national debt. What an irony, to put $2.5 trillion in 
spending of a new social entitlement program, adding it to the three 
already huge entitlement programs that are in the process of 
bankrupting America, adding this to it and then turning right around 
and increasing the debt ceiling. When they increase it, it is going to 
be--nobody knows exactly how much it is going to be, hundreds of 
billions. But that is only in the last 2 months. They are going to have 
to come back again in February and increase the national debt ceiling 
again. What irony.
  Mr. McCAIN. Of course, this legislation turns everything we know 
about budgeting on its head, although it has been done before and it 
has been done by Republicans, to our shame. Today, if you go out and 
buy an automobile, you can drive it for a year before you have to pay 
for it. Under this bill, it is the opposite. You pay the taxes, you 
have the reductions in benefits, and then 4 years later you start 
having whatever benefits would accrue from this legislation. So for 4 
years small businesspeople, people all over America, will see their 
health care costs increased before there is a single, tangible result 
from it--remarkable.
  Mr. WICKER. The Senator mentioned the Florida carve-out. Perhaps I 
should have it on my map. The reason I did not is it involves Medicare 
Advantage and not Medicaid. The map was about Medicaid, but he makes a 
good point about the Florida carve-out.
  I had a discussion with some of the leadership on the Democratic side 
on the floor of the Senate the other day about Medicare Advantage. The 
strong assertion over on that side is, Medicare Advantage is not 
Medicare. As a matter of fact, some of the leadership in this very body 
said the booklet the Government puts out that says Medicare Advantage 
is part of Medicare should be changed. Those words should be stricken 
from the handout because it is not part of Medicare. The Web site the 
Federal Government has saying Medicare Advantage is part of Medicare, 
that should be changed because it is just an insurance company 
masquerading as Medicare.
  Let me just take a second. This is Betty. Betty represents--she is 
from Louisiana. I don't know if she was one of the 60 percent of 
Louisianans who voted for Senator McCain in Louisiana, but she enjoys 
Medicare Advantage. She was told during the election that if you like 
your coverage, under any plan that the Obama administration would 
approve, you get to keep that coverage. She gets hearing aids, vision 
coverage, dental care, and she likes her Medicare Advantage.
  If Betty is 1 of the 150,000 seniors in the State of Louisiana who 
enjoy this benefit, she is at risk of losing it. But if she happens to 
be in the State of Florida, in any of these counties with the $100 
million carve-out, she is fortunate enough to be able to keep her 
Medicare Advantage.
  In other words, it may not be guaranteed, but she sure likes it. 
Obviously, one of the Senators from Florida believes his constituents 
like it--again, a carve-out so this nonguaranteed, non-Medicare benefit 
that is not very good, they can keep it in Florida. That is in the bill 
and no one can deny that special treatment is given to that one State 
under Medicare Advantage. Again, I challenge any American to come onto 
the floor of this Senate and tell me how that is fair.
  Mr. BARRASSO. It is not. There have been a number of references to 
our friend and colleague, the late Senator Ted Kennedy. Let's take a 
look at the book his brother, John Kennedy, wrote, ``Profiles in 
Courage.'' As we have seen all this, it is time for one courageous 
Democrat to stand and say: This is about our country. This is about our 
country, not about a kickback. This is about health care, not about a 
hand in the cookie jar.
  That is what we need. We need one courageous Democrat to stand and 
say: I don't want to be part of this editorial that talks about the 
Louisiana Purchase and Omaha Stakes. I don't want to be a part of this 
that says this, the world's greatest deliberative body, has now become 
corrupt. I don't want to be a part of this that says this is about 
bribery.
  It needs one courageous Democrat, 1 out of 60, to stand and say: I am 
going to vote no; we need to back up; we need to think about this. We 
have 100 Members of the Senate who want to reform health care in this 
country, who want to get the costs under control, who want to improve 
quality, who want to improve access--100 Senators want to do that. That 
is the goal of each and every one of us here.
  We need one courageous Senator to say it is time, time now, to take a 
step back, let us go home over Christmas, let us think about this, let 
us talk to our constituents at home, let us hear what they have to say 
about this looking out for No. 1--$100 million. Dana Milbank's column 
in the Washington Post today, that is what we need now in the Senate. 
We need the kind of courage John Kennedy wrote about in ``Profiles in 
Courage.''
  Mr. RISCH. I say to Senator Barrasso, you know there are already some 
courageous Democrats stepping up. I hope every Democrat on the other 
side calls their Governor and says: Governor, what do you think about 
this? Help me out here. I am in caucus, they bought enough votes to get 
to the 60. But I have to tell you I don't like the way they did it, No. 
1; and, No. 2, what about the rest of us? We didn't get the $300 
million. We didn't get the X number of million. Help me out, Governor. 
They say they are going to shift $25 billion to the States that you are 
going to have to come up with. What do you think? Do you think I ought 
to vote for this--or maybe if one of us steps forward and says I am 
going to vote no and I want to set the reset button and I want to put 
people back to the table and say let's do this right, we can do this 
right.
  We are Americans. We know how to do this. We are the most innovative 
people in the world. All we have to do is get together and do it. But 
to jam this down the throats of the American people--and make no doubt 
about it, this is being jammed down the throats of the American people 
on the eve of Christmas, in the middle of the night, in the face of 
poll after poll that says don't do this to us.
  That is what is happening. There are courageous Democrats out there. 
Not one of them is sitting here.
  Mr. WICKER. Let me tell my friend from Idaho about some courageous 
Democrats. When the House version of this was being considered at the 
other end of this building, a number of Democrats stepped forward and 
said: I can't vote for this. It was very close. They have a huge 
majority, 40 votes over there. As a matter of fact, one Member of the 
House today basically said: I can't take any more. He switched parties. 
A Member from Alabama is now joining the Republican conference. But 
there are a number of loyal Democrats who have no intention of 
switching parties and they have stepped forward and said: I can't vote 
for it. Don't count me in on this.
  Bart Stupak is a Representative, a courageous pro-life Representative 
from Michigan. He did vote for the bill. I do not impugn his motives. 
He did what he thought was right. But before he voted for it, he made 
sure legislation was included in the House version to make sure the 
Hyde language, which

[[Page S13761]]

has been the law of the land for almost two decades, was included.
  Here is what Representative Stupak said yesterday or the day before 
yesterday about this so-called pro-life compromise that was included in 
the version we will have to vote on in the Senate. He said it is ``not 
acceptable . . . a dramatic shift in Federal policy that would allow 
the Federal Government to subsidize insurance policies with abortion 
coverage.''
  That is a release actually on December 19.
  I appreciate the courage of someone from a Democratic State, from a 
district that has long been Democratic, who is a member--chairman of a 
committee and a member of the leadership over there--stepping forward 
and saying: I can't go this far. Unless this language is changed--and 
we are told by Members of the Senate there better not be much of a 
conference. What we vote on, on Christmas Eve, it better sort of stay 
like it is or it will not be passed by the Senate when it comes out of 
conference.
  Bart Stupak is stepping forward and saying, if that is the case, then 
I am switching from a yes to a no. I appreciate that kind of courageous 
Democrat.
  Mr. McCAIN. Can I say, I appreciate the Senator from Mississippi 
bringing this important aspect to this issue and continuing to do so.
  I would like to pick up on what Dr. Barrasso mentioned about the 
Kennedy family. It is well known I had a very close relationship, 
developed over the years, with Senator Ted Kennedy and that we worked 
together on a variety of issues. So there is a great irony in the 
constant, over there on the other side of the aisle, references to 
Senator Kennedy, who always began legislation by getting bipartisan, by 
getting Members of the other side of the aisle committed and working 
together--whether it be on immigration reform, whether it be on health 
care reform, whether it be on one of the great achievements of 
President Bush 2, No Child Left Behind.
  In other words, every dealing I ever had with Senator Kennedy was to 
reach out, establish a fundamental base for agreement, and then move 
forward with legislation in a bipartisan fashion, which I think was one 
of the major reasons why he had such an impressive legislative record.
  How did the other side do it? Without a bit of serious negotiation, 
without bringing anyone on board before moving forward--no one--which 
ends up, now, with a 60-to-40 vote, which is a pure partisan vote and 
outcome when there has never been, in history, a single reform that was 
not bipartisan. That is why the American people are rejecting this. 
That is why the American people are seeing through it. To hear the 
constant refrain that the American people want this: Read any poll. It 
is just a matter of difference because the American people have figured 
this out. It is going to be one of the great historic mistakes--not 
historic--but historic mistakes made by the Congress of the United 
States.
  Mr. McCONNELL. If I may say to my friend from Arizona, he is 
absolutely right. I have had an opportunity to observe Senator Kennedy 
over the years. That is exactly the way he operated.
  If I may, just to make a point with regard to the observation of the 
Senator from Mississippi about Congressman Stupak, as I understand it, 
Congressman Stupak was not asking for some special deal for Michigan in 
return for his vote. He was, rather, trying to establish a principle 
that would apply to all Americans. Is that not the case?
  Mr. WICKER. That is exactly correct. I commend my former House 
colleague for taking that principled stand.
  Mr. McCONNELL. Could not be same thing be said for our colleague, 
Senator Lieberman from Connecticut? I am sorry he ended up voting for 
this 2,700-page monstrosity, but you have to stay, as I understood his 
position--and Senator McCain certainly knows him very well--his 
position was, if the government goes into the insurance business, I 
can't support this bill, not: I am open for business and what you can 
you do for Connecticut.
  Mr. McCAIN. There may be on the floor a unanimous consent request to 
remove the Nebraska Medicaid deal. I would hope, if there is any 
unanimous consent agreement at any time, that the whole bill will be 
fixed, which means every special provision would be removed, whether it 
be from Nebraska or any other State. We still have the Louisiana 
Purchase of $300 million. We still have the Florida Medicare 
grandfather clause, $25 to $30 billion. The list goes on and on. The 
Connecticut hospital--I guess it is the Connecticut hospital. It is 
always in legislation, so you have to do research to see who qualifies. 
I would hope we could have, again, agreement that all these special 
provisions that affect certain specific States would be removed as 
well. That would go over rather well with the American people.
  I want to say to my colleagues, thank you for your passion. I know a 
lot of people don't watch our proceedings on the floor. It has played a 
role in educating the American people as to what we are facing. The 
media played a role, advocacy groups, grassroots organizations all over 
America. But I have had the great privilege of engaging in these 
colloquies with my colleagues. To me, it has been both helpful to my 
constituents, and, frankly, it has also been helpful to me to work with 
people who have been involved in these issues, former Governors and 
others. We have made some kind of contribution, which I think is what 
we are all sent here for.
  Mr. WICKER. How much time remains?
  The PRESIDING OFFICER (Mr. Rockefeller). The Senator has 2 minutes.
  Mr. WICKER. Unless my colleagues want to join in, I thank them for 
joining us and certainly thank Senator McCain, one of the most 
distinguished public servants, someone who sacrificed for his country 
and who has been on this floor hour after hour.
  The bill we will be asked to vote for on Christmas Eve by the 
administration's own Chief Actuary increases health care costs, 
threatens access to care for seniors, forces people off their current 
coverage, and actually increases the amount of the gross domestic 
product that will be spent on health care rather than decreasing it. 
These are not statements I have made; these are assessments made by the 
Chief Actuary for the Obama administration.
  There is still time. Even if this bill passes, we will go home for 
Christmas, for the holidays. We will hear from our constituents. I hope 
we listen to that over 60 percent of Americans who say: We advise you 
not to vote for this legislation.
  Mr. BARRASSO. It is time for a new chapter to be written in 
``Profiles in Courage.'' One of the Members of this body can be that 
profile. All they have to do is stand up and say: No, I will not be 
part of what has been called corruption in the Senate. I will not be 
part of what has been called, in the editorials, bribery in the Senate. 
I will be that courageous person and vote no. It is time for a new 
chapter in ``Profiles in Courage.''
  I yield the floor.
  The PRESIDING OFFICER. It is the understanding of the Chair that the 
Senator from Mississippi had the floor.
  Mr. WICKER. I yield the floor.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. BAUCUS. Mr. President, I have several points to make. First, as a 
matter of personal privilege, on behalf of the people of Libby, MT, the 
Senator from Arizona made it sound as if the folks in Libby were 
getting some kind of a sweetheart deal. I wish the Senator would not 
leave so he can hear what is actually going on. I think the Senator 
from Arizona would agree with me that he would not want his 
constituents to suffer an environmental calamity. He would not want his 
constituents to not get some redress because of a declaration of public 
emergency due to contamination of asbestos. I assume the Senator from 
Arizona would very much stand up for his constituents.
  Let me explain. Congress passed a law in 1980 called CERCLA. That 
legislation said that whenever there was a declaration of a public 
emergency because of contamination at a Superfund site, the government 
has an opportunity to declare a public emergency and help those people 
get medical care because of contamination of asbestos; in this case 
especially, something called tremolite, which causes even greater 
damage than ordinary asbestos. I would assume the Senator from Arizona 
would want his constituents to

[[Page S13762]]

get some help from contamination from asbestos.
  Mr. McCAIN. May I respond?
  Mr. BAUCUS. Absolutely.
  Mr. McCAIN. All the Senator had to do was have it authorized, bring 
it up on the floor as an appropriation, and I am sure the Senator's 
arguments would have been far more cogent than jamming it into a bill 
which has to do with health care reform, the policy of health care 
reform.
  This legislation and this cause of the Senator from Montana has been 
turned back several times on other grounds.
  Mr. BAUCUS. This is health care. Reclaiming my right to the floor.
  Mr. McCAIN. I am responding.
  Mr. BAUCUS. I reclaim my right to the floor because he doesn't want 
to deal in good faith with this issue.
  My second point. It is disrespectful, it is unseemly for Senators in 
this body to invoke the names of Ted Kennedy and Jack Kennedy in 
opposition to this bill. It is disrespectful and unseemly. I, frankly, 
am very much surprised that Senators would go to that level and invoke 
the names of Ted Kennedy and Jack Kennedy in opposition to this 
legislation. Talk about profiles in courage. I hear Senators on the 
other side say: Where is the courage of one Senator to stand up and 
vote against health care reform? That is what I keep hearing. Where is 
the courage? Where is the courage of one Senator on the Democratic side 
to stand up and vote against health care reform?
  Mr. President, I want to turn that around. ``Profiles in Courage''--
Jack Kennedy and Ted Kennedy were Senators who worked to try to find 
resolutions to agreements. They wanted to compromise. They wanted to 
work together to get just results.
  I ask, where is the Senator on that side of the aisle who has the 
courage to break from their leadership, break from the partisanship 
they are exercising on their side of the aisle to work together to pass 
health care reform? I ask, where is the courage? Where are the Senators 
who have the courage on that side of the aisle to stand up and work 
together on a bipartisan basis to get health care reform passed? Where?
  We on this side reached out our hands for bipartisan agreement on 
health care reform, probably to a fault. I say ``to a fault'' because 
for months and months this Senator, anyway, extended the hand to work 
with other Senators on a bipartisan basis. I know the current occupant 
of the chair knows that. He watched this. He saw it happen in the 
Finance Committee.

  Senator Grassley and I worked very hard to get Senators on both sides 
of the aisle to work to pass health care reform, very hard. Then after 
a while we had to work toward another approach. The Group of 6--3 
Republicans, 3 Democrats--worked for months on a bipartisan basis to 
get health care reform passed. Do you know what happened? I watched it 
happen. Those Senators in the room were acting in good faith. They were 
in good faith. They wanted to mutually work together to pass health 
care reform. They asked good questions. Senator Enzi from Wyoming, for 
example, asked very good questions. Senator Snowe asked very good 
questions. Senator Grassley asked very good questions. We worked to get 
health care reform.
  But do you know what happened? I could feel it happening. One by one 
by one, they started to drift away. They wanted to pass health care 
reform. They wanted to act in a bipartisan basis. But they were 
pressured--pressured from their political party not to do it, not to do 
it, not to do it. Why were they pressured not to do it? Unfortunately, 
they gave in to the pressure because their leadership wanted to make a 
political statement. One of the Senators on the floor here said: Let's 
make health care Obama's Waterloo. They did not want to work with us, 
that side of the aisle. They did not want to work with us because they 
thought it was better to make a political statement: Attack the bill, 
attack the bill, attack the bill, attack the bill in order to make 
political points for the 2010 election. That is what they were trying 
to do.
  I ask, where is the courage? Where is the courage? Where is the 
Republican Senator who will stand up and say: Boy, let's work together 
to pass health care reform. Where is the Senator who will stand up and 
say: We want to work together to pass health care reform.
  This Senator tried mightily to get bipartisan support. Ask Senator 
Grassley from Iowa, with whom I have been working for a long, long 
time. They were pulled away. Senator Grassley--I don't want to speak 
for him, but I know he wanted to get health care reform passed on a 
bipartisan basis. I know that is the case. Frankly, he got pressured, 
pressured, and he just couldn't do it. I have the highest respect and 
regard for him, but he just couldn't do it.
  Mr. WICKER. Will the Senator yield briefly?
  Mr. BAUCUS. Absolutely.
  Mr. WICKER. I think the Senator has really answered his own question. 
As a matter of fact, Senator Grassley and Senator Enzi met for hours 
and hours, weeks upon weeks with my friend from Montana in good faith, 
hoping to come up with a program that could get that 80-vote support we 
usually get on matters of----
  Mr. BAUCUS. That is how they started out, that is true.
  Mr. WICKER. And then eventually, it dawned on them that my friends on 
the other side of the aisle wanted to Europeanize the health care 
system of the United States of America.
  Mr. BAUCUS. Reclaiming my time.
  The PRESIDING OFFICER. The Senator from Montana has the floor.
  Mr. WICKER. I thank the Senator for yielding.
  Mr. BAUCUS. That is not what happened. I was in the room constantly. 
I talked to those Senators many times. That is not what happened. I 
will tell you what did happen. Your leadership pressured them, 
pressured them, pressured them not to work together. There was no 
European-style effort in that room. That is a totally untruthful 
statement--a totally untruthful statement. None whatsoever. We are 
passing a bill here that is a uniquely American solution. It provides 
competition. It helps the doctor-patient relationship. That assertion 
of working toward a European solution is entirely untrue. It is 
entirely false.
  The fact is, those Senators did not want to work with us. It is 
regrettable. It is highly regrettable. One of the biggest travesties 
here is there was not a good-faith effort on that side of the aisle to 
come up with a constructive, comprehensive alternative to the 
Democratic version of health care reform. If there had been a 
constructive, honest, alternative health care reform, we could have had 
a really good debate. What is the better approach to solving the health 
care problem? That did not ever happen. It did not ever happen at all. 
Rather, they didn't have anything. They didn't have a health care bill. 
None whatsoever.
  The only one that came up a little bit was over in the House. Because 
of all the criticism about Republicans not having an alternative, 
finally the Republicans in the House came up with an alternative. It 
was very small. There wasn't much to it. To be honest, the CBO said it 
would hardly increase any coverage whatsoever. It was not really a 
comprehensive health care reform bill. And there has been none in the 
U.S. Senate on the Republican side, no alternative for a comprehensive 
health care reform bill.
  I want the public to know we worked very hard to get a bipartisan 
bill. That side of the aisle started without working with us, but 
gradually they began to believe that politically they would have a 
better chance in the 2010 elections by just not working with us but 
just attack, attack, attack, attack, trying to score political points 
to defeat any honest effort to get health care reform.
  I now yield such time as he would like to the Senator from Nebraska.
  The PRESIDING OFFICER. The Senator from Nebraska is recognized.
  Mr. NELSON of Nebraska. Thank you, Mr. President.
  Well, this has been quite an enlightening experience on the floor 
this past 30 or 40 minutes. It shows how emotionally charged this body 
has become over this issue and perhaps other issues as well. But the 
challenge is, we are all entitled to our own opinions. We are just not 
entitled to our own set of facts.
  I would like to take a moment to explain the so-called Medicaid fix 
for the State of Nebraska. Now, it has been described as the ``Omaha 
Stakes fix.'' I take issue--and I only wish my colleague from Nebraska 
had stayed on

[[Page S13763]]

the floor to hear this. I take issue with one of the premier businesses 
in the State of Nebraska used in a manner of derision to outline 
something that is factually incorrect on the basis of how they are 
presenting it.
  You can twist and you can turn and you can try to distort what 
happens, but it does not change the underlying facts. The underlying 
facts are, this was pursued initially as an opt-in or opt-out for all 
States. It was impossible to do that at the present time, and so as a 
matter of fix, there was, in fact, the extension of the Federal dollars 
from the year 2017 on, well into the future, as a marker to lay down so 
that every State could object to this manner of unfunded mandates.
  As a Governor--and my colleague is a former Governor--we fought 
against Federal unfunded mandates. As a Senator back here, I have also 
fought against unfunded and underfunded Federal mandates. This was, in 
fact, exactly that. While we were not able to get in this legislation 
an actual opt-out or opt-in for a State-based decision, what we did get 
is at least a line, if you will, so that in the future other States are 
going to be able to come forward and say: Hey, either the Federal 
Government pays for that into the future or the State will have the 
opportunity to decide not to continue that so that we do not have an 
unfunded Federal mandate.
  So I am surprised. I am shocked. Well, actually, I am not shocked. I 
am disappointed this would be used and misused in this fashion, not 
only derisively against a great company in Nebraska--the Nebraska 
Steaks--I am also surprised my colleague would participate in a 
colloquy that would use the name of that company in such a manner.
  I am surprised this colloquy went on without understanding the facts 
of what this so-called carve-out--which is not a carve-out--truly 
consisted of. There is no carve-out. Each State between now and 2017--
two-thirds-plus of a decade--will have an opportunity to come back in 
and get this bill changed.
  Governors asked for relief. As Governors, we asked for relief against 
these continuing unfunded mandates. Time and time again, we fought 
against them. This was one more opportunity to fight. As a matter of 
fact, the Governor of Nebraska spotted this and wrote me a letter on 
December 16 and said, among other things:

       The State of Nebraska cannot afford an unfunded mandate and 
     uncontrolled spending of this magnitude.

  He goes on to say a number of other things about the bill. But he 
makes the point that this is an unfunded Federal mandate and wanted me 
to do something about it.
  So I sent him back a letter on the same date, saying:

       Thank you. . . .
       Please be advised that I have proposed that the Senate bill 
     be modified to include an ``opt-in'' mechanism to allow 
     states to avoid the issues you have raised. Under my 
     proposal, if Nebraska prefers not to opt in to a reformed 
     health care system, it would have that right.

  My colleague and others know this is the case. They know this is the 
case, but they choose to ignore it. They choose to ignore the facts.
  On December 20, I again wrote to the Governor and shared with him my 
concern about this unfunded mandate, and I pointed out that:

       Within hours after the amendment was filed, [my colleague 
     from Nebraska] objected to the inclusion of these funds. As a 
     result, I am prepared to ask that this provision be removed 
     from the amendment in conference if it is [the Governor's] 
     desire.

  I got a letter back on the day after, on December 21, talking about 
this as a special deal. It is not a special deal for Nebraska. It is, 
in fact, an opportunity to get rid of an unfunded Federal mandate for 
all the States. Let me repeat that: for all the States. There is 
nothing special about it, and it is fair.
  What we have done is we have drawn a line in the sand and said: This 
is unacceptable, and it is unacceptable for all States as well. I 
cannot believe that this sort of a situation would continue. There is 
no misunderstanding here. I think it is just an opportunity to mislead, 
distort, and, unfortunately, confuse the American public all the more, 
and to use the State of Nebraska and the name of a good company for 
partisan political purposes on the other side of the aisle.
  My colleagues know I am not a deeply partisan person and that I 
rarely come to the floor to speak, and that when I come to the floor, 
it is for something like this, to take exception with the misuse of 
information for partisan purposes. That is exactly what has been done 
with this situation.
  I am prepared to fight for the State of Nebraska, and I hope my 
colleague is as well. Obviously, the Governor was prepared to fight for 
the State of Nebraska by bringing it to my attention. But I am not 
prepared to fight to get a special deal for the State of Nebraska. I 
did not, and I refuse to accept that kind of responsibility or that 
kind of a suggestion from anyone on that side of the aisle or anyone 
else.
  Then, as it relates to abortion, I think my colleagues know that we 
introduced legislation that is comparable to the Stupak legislation in 
the House dealing with barring the use of Federal funds for elective 
abortions. We introduced it over here, and it was bipartisan. It was 
Nelson-Hatch-Casey, and it did not pass. So I began the process of 
trying to find other solutions that I thought equally walled off the 
use of Federal funds and made it clear that no Federal funds would be 
used.
  Now, apparently I did not say ``mother may I'' in the process of 
writing that language because others took issue with it, even though 
they cannot constructively point out how it does not prohibit the use 
of Federal funds or wall off those funds or keep them totally 
segregated. They just did not like the language.
  Well, if in the conference the Stupak-Nelson-Hatch-Casey language 
passes, I will be happy, and so will Congressman Stupak, and so would, 
I would imagine, those who signed on to that legislation. It is 
unfortunate, though, to continue to distort and misrepresent what 
happens in the body of the Senate. It is difficult enough to have 
comity. It is difficult enough to have cooperation. It is difficult 
enough to have collegiality. When politics are put above policy and 
productivity, this is what we get.
  Mr. President, I am very disappointed, somewhat disillusioned, by the 
use of this method and this approach that would undermine the good name 
of a company in Nebraska, as well as the name of the State of Nebraska, 
by associating it with something that has not been done, was not 
intended, and did not result.
  Mr. President, with that, I yield the floor.
  The PRESIDING OFFICER. Who seeks recognition?
  Mr. BAUCUS. Mr. President, I yield 15 minutes to the Senator from 
Delaware.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. CARPER. Mr. President, let me just express my thanks for those 17 
minutes.
  I would ask the Chair to please advise me when I have used 15 of 
those minutes.
  The PRESIDING OFFICER. The Chair will do so.
  Mr. CARPER. Mr. President, listening to the debate today reminds me 
of, among others, a famous quotation from Winston Churchill, who, I 
believe, said: ``The worst system devised by wit of man''--he was 
talking about democracy. He said it was the worst form of government 
devised by wit of man, and then he added ``except for all the rest.''
  We like to sort of lecture the Iraqis and Afghanis on how to run a 
democracy, and we still struggle with it after more than 200 years. In 
the 8 or 9 years I have been here, I have never seen us struggle as 
much as we have on the issue of health care. Part of the reason is 
because it is just enormously complex, and it is just confusing.
  As to the people who are following the debate, if you listen to folks 
on the political left, mostly in our party, what you hear is: No public 
option, no Medicare buy-in, we are not doing enough to make health care 
affordable. What you hear from the right, mostly on the other side of 
the aisle, is, this is government run, this is government funded, this 
is a government takeover.
  So you have the two extremes out here trying to take shots at one 
another. Those of us in the middle are sort of collateral damage or 
road kill. But at the end of the day, a lot of times when you find 
neither the left nor the right are entirely pleased with the outcome, 
sometimes that suggests that the outcome is not all that bad.

[[Page S13764]]

  I am not saying this is a perfect balance, but it is not a bad 
balance. For those, especially in our party, who feel as though we 
should have done more, I am sure in 1965, when Lyndon Johnson signed 
into law the Medicare legislation, there were probably some who did not 
vote for it--and I am told it was mostly Democrats who voted for it, 
not so much our Republican friends--but I am not sure how many 
Democrats who voted for Medicare at the time said: It does not do 
enough for our senior citizens. It does not provide for hospice care. 
It does not provide for home health care. It does not provide for 
disability benefits for those who are under the age of 65. There is no 
prescription drug program. There is nothing for outpatient surgery. 
None of those things were in the original Medicare legislation. Over 
time, they have been added, and I think the Medicare legislation, the 
Medicare law, has been improved to make it a better program.
  Now we face a day when the Medicare Program is literally running out 
of money. One of the less-told secrets in the legislation that is 
before us is that the life of the Medicare trust fund--life that has 
been down to about 7 or 8 years--I understand, thanks to the reforms 
that are in this legislation, should be pretty much doubled. That is 
not good enough, but we are going to stretch by about 100 percent the 
useful remaining life of the Medicare Program.
  Another fact that is sort of lost in all the debate, all the tumult, 
is what this does with respect to our budget deficits. I am told by--
not us, not Democrats or Republicans--the neutral Congressional Budget 
Office, which is neither Democratic nor Republican--nonpartisan--that 
the legislation, if we adopt it in its current form, will reduce the 
deficit over the next 10 years by about $130 billion, and by as much as 
maybe $1 trillion, $1.3 trillion in the second 10 years beyond that.
  In terms of what is going to happen as to the cost of premiums, we 
are told, again, by the nonpartisan Congressional Budget Office that 
rather than spiking premiums, we are actually going to see people get 
somewhat better coverage for, frankly, not more money in terms of their 
premiums.
  In terms of those of us who just love the health insurance we have--
we are delighted with the coverage and the amount we pay for it--I 
would just remind all of us of a couple things: One, we have spent more 
money by far than any nation on Earth for health care--about 1\1/2\ 
times more than the next closest country. We do not get better results. 
In many cases, we get worse results.
  We have about 14,000 people who woke up with health care coverage who 
will wake up tomorrow morning and they will not have it; they will have 
lost it. Over 40 million people in our country have no health care 
coverage at all.
  Finally, we have big companies such as GM and Chrysler that have gone 
bankrupt because they cannot compete with foreign competitors because 
of the price of our health care; and that is true with a lot of smaller 
companies as well.
  The idea of doing nothing is, to my mind, not a very smart thing to 
do. We have to do a number of things to accomplish three goals: No. 1, 
rein in the growth of health care costs. This idea of two, three times 
the rate of inflation in the growth of health care costs is not 
sustainable. Frankly, if we do not rein in the growth of health care 
costs, neither will be sustainable the coverage we extend to people who 
do not have it today.
  The third thing we try to work on in this legislation, to the extent 
we can--a lot of interesting things are going on in the private sector, 
very interesting things going on in the private sector, regarding how 
to instill personal responsibility in employees, and how to get better 
transparency and better costs through the health care delivery system. 
That is going to be a part of this as well. But we have to figure out a 
way to get better outcomes, and there are a lot of good examples for 
doing that.
  I want to take the remaining time I have today to just mention some 
things that are in the legislation that I think make sense because they 
are based and founded on what works. And as an old Governor--and 
Senator Nelson has already spoken from Nebraska--we are used to 
focusing on what works and trying to replicate what works, steal ideas 
from other States and try to work them in our own State. I want to 
mention a couple things we have taken that work. We are trying to grow 
them and, in some cases, on a national level.
  One of things Senator Baucus and his staff in the Finance Committee 
focused on, I think, is maybe the best idea in the health care 
legislation, something called an exchange.
  When I was a naval flight officer, we used to go to the exchange on 
the base which was a place to buy stuff. It was like a little 
department store. The exchange in health care delivery, which will open 
in January 2014--I hope we can actually stand up the exchanges and open 
the exchanges sooner--but that is going to be a place for people to go 
and buy health care coverage. When people do that, they will become 
part of a purchasing pool in their State or maybe in a couple of States 
to sort of band together and form a regional purchasing pool.

  Why is a purchasing pool important? Well, because we are part of one, 
and we know that with 8 million people in our purchasing pool--Federal 
employees, Federal retirees, all of our dependents--we get a lot of 
competition. A lot of private sector companies want to offer us 
products to choose from. We don't get cheap insurance, but we get 
pretty good prices. With 8 million people in a purchasing pool, we 
really drive down administrative costs to about 3 percent for every 
premium dollar. That is a lot lower than folks who try to go out and 
buy it on their own in the open market. They may pay 33 percent of 
their premium dollar for their administrative costs. They are not 
paying 3 percent. We are going to try to replicate that. We do it in 
the exchange.
  There may be 50 exchanges throughout the country, some regional 
exchanges as well. So we do exchanges as well. When States create 
interstate compacts across State lines, such as Delaware with New 
Jersey or maybe Delaware and Maryland or Delaware and Pennsylvania, 
maybe all four of us, insurance sold in any of those four States can be 
sold across State lines and introduce new competition, additional 
competition for business and for the folks looking for coverage for 
those two or three or four States.
  Another thing that works is the delivery system, delivery of health 
care in outfits such as the Cleveland Clinic and the Mayo Clinic, 
Geisinger in Pennsylvania, not far from where we are in Delaware, 
Intermountain Health out in Utah, and Kaiser Permanente in California.
  I actually went with Rachuel Russell, a member of my staff, to the 
Cleveland Clinic about 3 months ago. What we found was the Cleveland 
Clinic and the Mayo Clinic and Geisinger and all these others pretty 
much all have the same template. They focus on primary care. They focus 
on prevention and wellness. They coordinate the care of folks who are 
receiving treatment. All of their patients have electronic health 
records.
  Medical malpractice coverage is provided by the entity itself, the 
Mayo Clinic, Cleveland Clinic, and all the docs are on salary. They 
have gone after what we call not just defensive medicine but fee-for-
service, and they have done a very good job reducing the problems that 
flow out of fee-for-service which lead to more utilization and 
unnecessary utilization of time, tests, technology. They get better 
outcomes and they spend less money.
  What we are trying to do with this legislation is to take those 
health care delivery ideas from those nonprofits and instill them into 
the delivery of health care, particularly through Medicare but also in 
other ways too.
  I like to shop for groceries. We have a bunch of good grocery stores 
in Delaware. One of the places I shop for groceries occasionally when I 
am in my State is a place called Safeway, in Dover. A guy named Steve 
Burd is the CEO of the company, and they have really helped inform our 
decisionmaking in this debate in ways that are pretty remarkable by 
virtue of the way they provide coverage to their employees. It is not 
just Safeway. It is not just Pitney Bowes. There are a number of 
companies that are figuring out how to get better results for less 
money, and we are borrowing some of their ideas.

[[Page S13765]]

  One of the ways we are borrowing is to say, how does Safeway 
provide--literally flattening out for the last 4 or 5 years--health 
care coverage for their employees? They haven't reduced their benefits. 
One of the things they have done is to incentivize their employees, use 
financial incentives to get employees to--if they are overweight, to 
control their weight, get their weight down, and if they do that, their 
payments are reduced. If they are smokers, they get rewarded for 
stopping smoking. If they have high cholesterol or high blood pressure, 
they get rewarded by reduced premiums for reducing their cholesterol 
and blood pressure.
  What we have done with our legislation--and I thank the chairman and 
my colleagues for their support, Democratic and Republican, for 
supporting an amendment by Senator Ensign and myself where employers 
would be able to provide a 30-percent discount to employees who do the 
right thing for their own health. By doing that, they will reduce 
health care costs for not just their employer but for others in the 
group in which they are covered.
  There is another piece in the legislation that really borrows from an 
idea that is popping up in a couple of cities and maybe a State or two 
around the country, and that is, Why don't we better inform people? We 
are interested in personal responsibility, people taking charge of 
their own health and reducing their health care liability. Why don't we 
do a better job of ensuring that--when I go into a restaurant or 
anybody goes into a restaurant, we look at the menu board of a chain 
restaurant and we know right then and there what the calories are in 
what we are drinking or eating, for an entree, for a salad or dessert. 
I know it right there by looking at the menu board if it is a chain 
restaurant. If it is a menu, not a board, they have to have that 
information on the menu. They have to have on site additional 
information on 10 other items, including fats, trans fats, cholesterol, 
sodium, and on and on.
  The idea is to make us better informed consumers. As we try to fight 
obesity in this country--about a third of our country is obese or 
overweight, and adults are worse than kids. Kids are catching up with 
their parents, unfortunately. That is one of the things that is in the 
legislation. We call it the Lean Act. The idea is to try to provide 
personal information so people can assume personal responsibility.
  Speaking of what we should eat or not eat, I wish to mention 
doughnuts, and I will do it in the context of something called the 
doughnut hole. Folks who are Medicare eligible have probably heard this 
term before because under the Medicare prescription drug program, when 
people's out-of-pocket costs reach about--when their cost for 
medicines, their prescription medicines, reach about $2,500, the first 
$2,500, Medicare pays 75 percent of the cost and the individual pays 25 
percent of the cost. But once a person's prescription costs reach 
$2,500 up to about $5,500, for most people Medicare doesn't pay 
anything and the individual pays it all. That $2,500 to $5,500 gap is 
called the doughnut hole. It has nothing to do with doughnuts, but that 
is the name we have given to it.
  In the legislation that is before us--again, I give a lot of credit 
to our chairman and others who have negotiated this--we are going to 
fill the doughnut hole. We are going to basically cover people who are 
in that gap of the $2,500 to $5,500 so that people will be able to 
continue to take the medicine they need to take. They won't stop. They 
will have the availability to medicine.
  They will also have access to something called primary care. I am at 
the tender age of 62, and I think my Presiding Officer, also from 
Delaware, is just about the same age as I. When people in this country 
end up being old enough for Medicare, they get a one-time-only Medicare 
physical. That is it--one time. If they live to be 105, they never get 
another one, at least not paid for by Medicare.
  In terms of borrowing good ideas from the nonprofits, the Cleveland 
Clinics and the Mayo Clinics, we are going to say you get more than 
just one physical. You get it when you are 65 and 66 and 67 and 68, and 
if you live to be 105, God bless you, you will get it every year up 
until then; finding out what is right with people, what is wrong with 
people, and what they need to do more of or less of. That is a smart 
idea, and it is part of the reforms in the legislation.
  In terms of going back to medicine, we want to make sure people have 
good access to primary care, annual physicals if they are on Medicare, 
so their doctor can find out what is wrong with them, if they need to 
exercise, stop smoking, control their weight, whatever that might be, 
but also to learn if there are some medicines they ought to be taking, 
and second, to make sure they can afford them. Third, our legislation 
actually improves their lives in terms of if medicines are prescribed, 
they will actually be taken and used the way they are prescribed.
  There is a little piece in this legislation that Senator Ron Wyden 
deserves a lot of credit for called personalized medicine. The idea is 
that if there are certain people who, because of their genetic makeup, 
the way God made them, they have a particular condition and the 
medicine is not going to help them--if the same group of people have 
the same problem--or if a different group of people have a different 
genetic makeup and the medicine will help one group and not the other, 
we want to make sure we spend the money on the folks who will be helped 
and not waste money on the folks who will never be helped because of 
their genetic makeup--literally, the way the Good Lord made them. That 
is called personalized medicine, and it is in this legislation. I think 
in the future it will be a very important addition.
  Lastly, I want to build on a proposal offered again by Senator Baucus 
with Senator Enzi, and the issue is defensive medicine.
  The ACTING PRESIDENT pro tempore. The Senator has used 15 minutes.
  Mr. CARPER. Thank you.
  The issue is defensive medicine. The issue is medical malpractice. 
There have been a couple of amendments offered by friends across the 
aisle for us to try to deal with the incidence of medical malpractice 
lawsuits, the defensive medicine that sort of flows from there where 
doctors prescribe really too many tests and too many procedures and 
maybe too many of the wrong kinds of medicine just in an effort to 
reduce the likelihood they are going to be sued. What we have done here 
is to take an idea from the States.
  The States have done some very interesting stuff with respect to 
trying to make sure we reduce the incidence of medical malpractice 
lawsuits, that we reduce the incidence of defensive medicine, and we 
actually improve health care outcomes. We are going to take those 
ideas, one called Sorry Works that they were using up in Michigan where 
people have an opportunity--doctors have an opportunity to apologize 
and offer a financial settlement to people and patients who have been 
harmed by that doctor; an idea called panels of certification like we 
have in Delaware where before I can sue my doctor I have to go before a 
panel to find out if my suit has any basis in fact. We are going to 
take ideas like safe harbor. If a doctor does all the things by the 
book, everything by the book, should that doctor receive some kind of 
expectation that maybe they are safe from lawsuits or reduced exposures 
to lawsuits? We think there should be some of that. There is the idea 
of health courts, where there are folks on the court, like the 
bankruptcy courts, folks who are the experts, and before a suit can 
actually go into a court, that health court would actually sit in 
determination of whether a doctor or a hospital or a nurse has really 
messed up. Those are all ideas that are being talked about, 
experimented with.
  We are going to make sure they are robustly tested. States are going 
to apply for grants to test those ideas and maybe others to accomplish 
three things: one, reducing medical malpractice lawsuits; two, reducing 
the incidence of defensive medicine; and three, and most importantly, 
improving health care outcomes.
  Those ideas build on what works. They are not Democratic ideas. They 
are not Republican ideas. I think they are just smart ideas for the 
most part. They are ideas that, as time goes by, people will find out 
if they really do the trick in helping to rein in health care costs so 
the coverage we extend can be sustained.
  I will just close with this, if I could. For the folks in this 
country who are

[[Page S13766]]

totally confused by all this, for the people who are scared that we are 
doing something really foolish and it is going to be a disaster for our 
country, let me just say that when all the negative ads sort of stop 
being funded, when folks have actually had a chance to understand some 
of the things I have talked about here today and a lot of the aspects 
of the bill that really will improve outcomes, that really will rein in 
the growth of cost, that really will extend coverage, I think they 
really will be pleasantly surprised.
  In closing, I am the guy who came here always believing that 
Democrats and Republicans should work together. I know our chairman 
tried mightily in the Finance Committee to do that, and I commend him 
and others for their effort. When we come back, we can't have another 
12 months of this or 12 years of this. Our country is in trouble if 
this is the way we are going to be doing business in the future. Our 
country is in trouble.
  My hope is that we will get this done, we will get it behind us, we 
will improve the bill in conference, and the President will provide a 
signature for us, and we will go back to work on implementing this. 
Just like Medicare. Just like Medicare. The key isn't just to stop; the 
key is to make it better and to build on this as a foundation. I am 
committed to doing that. I know my colleagues on this side of the aisle 
are committed to doing that. My hope and prayer is that our friends on 
the other side will want to join us in that effort.
  Again, I commend our chairman of the Finance Committee, our 
leadership, Senator Reid, and others. I commend my friend Olympia 
Snowe, who showed a lot of courage during the course of this debate in 
committee and here on the floor. She was under enormous pressure, as 
were some of our Republican colleagues on the Finance Committee whom I 
am convinced would like to have been with us, and I believe we would 
have had an even better bill if the pressure from within their own 
party had allowed them to be more fully participative. But that wasn't 
the case this time. It has to be the next.
  On that happy note, I say to my colleagues, we will gather again 
after the holidays and get this job done and look forward to working on 
a host of other issues. None will be more important than this one. None 
will be more important than this one.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Montana.
  Mr. BAUCUS. Mr. President, I want to begin by saying I agree with my 
colleague from Delaware. This partisanship has to stop. It is just too 
much. It is ironic, it is bittersweet that we are reaching a high point 
because we are going to pass health care reform legislation, but we are 
reaching a low point, too, in terms of partisanship. It is very 
unfortunate. Many of us over the last several days have been scratching 
our heads just trying to figure out what we can do to avoid this next 
year. Hope springs eternal.
  I know this Senator and I know the occupant of the chair want to try 
to find ways for this body to be much more civil. We are not just 
blowing smoke here. We really mean it. I thank very much the Senator 
from Delaware for raising that point. It is needed, and I do think this 
country is in trouble if we don't find some solution to handle this 
excessive partisanship which is certainly hurting our country.
  On another matter, some of my colleagues on the other side of the 
aisle have asserted that the penalty that is proposed under the bill 
before us for failing to maintain health coverage is unconstitutional. 
One Senator has raised a point of order--Senator Ensign--on that 
subject, and that is now pending.
  Those of us who voted to proceed to the health reform bill and who 
voted for cloture on the substitute amendment take seriously our oath 
to defend the Constitution. Every Senator here takes that oath of 
office very seriously.
  We have seriously looked at this question as well and have concluded 
that the penalty in the bill is constitutional.
  Those who study constitutional law as a line of work have drawn that 
same conclusion. Most legal scholars who have considered the question 
of a requirement for individuals to purchase health care coverage argue 
forcefully that the requirement is within Congress's power to regulate 
interstate commerce.
  Take Professor Erin Chemerinsky, a renowned constitutional law 
scholar, author of four popular treatises and casebooks on 
constitutional law and the dean of the University of California Irvine 
School of Law. Professor Chemerinsky has gone so far as to say that 
those arguing on the other side of the issue do not have ``the 
slightest merit from a constitutional perspective.''
  In arguing that a requirement to have health care coverage falls 
within Congress's power to regulate interstate commerce, Professor 
Chemerinsky compares health care reform to the case of Gonzales v. 
Raich--often cited by the other side. In that case, the Supreme Court 
held that the Federal Government's commerce clause powers extend to the 
cultivation and possession of small amounts of marijuana for personal 
use. Professor Chemerinsky notes that the relationship between health 
care coverage and the national economy is even clearer than the 
cultivation and possession involved in Gonzalez v. Raich.
  Mr. President, I ask unanimous consent that Professor Chemerinsky's 
Los Angeles Times article be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Los Angeles Times, Oct. 6, 2009]

                  The Constitutionality of Healthcare

                         (By Erwin Chemerinsky)

       Are the healthcare bills pending in the House and Senate 
     unconstitutional?
       That's what some of the bills' critics have alleged. Their 
     argument focuses on the fact that most of the major proposals 
     would require all Americans to obtain healthcare coverage or 
     pay a tax if they don't. Those too poor to afford insurance 
     would have their health coverage provided by the state.
       Although the desirability of this approach can be debated, 
     it unquestionably would be constitutional.
       Those who claim otherwise make two arguments. First, they 
     say the requirement is beyond the scope of Congress' powers. 
     And second, they say that people have a right to be uninsured 
     and that requiring them to buy health insurance violates 
     individual liberty. Neither argument has the slightest merit 
     from a constitutional perspective.
       Congress has broad power to tax and spend for the general 
     welfare. In the last 70 years, no federal taxing or spending 
     program has been declared to exceed the scope of Congress' 
     power. The ability in particular of Congress to tax people to 
     spend money for health coverage has been long established 
     with programs such as Medicare and Medicaid.
       Congress has every right to create either a broad new tax 
     to pay for a national healthcare program or to impose a tax 
     only on those who have no health insurance.
       The reality is that virtually everyone will, at some point, 
     need medical care. And, if a person has certain kinds of 
     communicable diseases, the government will insist that he or 
     she be treated whether they are insured or not. A tax on the 
     uninsured is a way of paying for the costs of their likely 
     future medical care.
       Another basis for the power of Congress to impose a health 
     insurance mandate is that the legislature is charged with 
     regulating commerce among the states. The Supreme Court has 
     held that this means Congress has the ability to regulate 
     activities that have a substantial effect on interstate 
     commerce. A few years ago, for example, the court held that 
     Congress could prohibit individuals from cultivating and 
     possessing small amounts of marijuana for personal medicinal 
     use because marijuana is bought and sold in interstate 
     commerce.
       The relationship between healthcare coverage and the 
     national economy is even clearer. In 2007, healthcare 
     expenditures amounted to $2.2 trillion, or $7,421 a person, 
     and accounted for 16.2% of the gross domestic product.
       The claim that individuals have a constitutional ``right'' 
     to not have health insurance is no stronger than the 
     objection that this would exceed Congress' powers. It is hard 
     to even articulate the constitutional right that would be 
     violated by requiring individuals to have health insurance or 
     pay a tax.
       Since the 19th century, the Supreme Court has consistently 
     held that a tax cannot be challenged as an impermissible 
     taking of private property for public use without just 
     compensation. All taxes, of course, are a taking of private 
     property for public use, and a tax to pay for health 
     coverage--whether imposed on all Americans or just the 
     uninsured--is certainly something Congress could impose.
       The claim that an insurance mandate would violate the due 
     process clause is also specious. Most states have a 
     requirement for mandatory car insurance, and every challenge 
     to such mandates has been rejected. More important, since 
     1937, the Supreme Court has constantly held that government

[[Page S13767]]

     regulations of property and the economy will be upheld as 
     long as they are reasonable. Virtually every economic 
     regulation and tax has been found to meet this requirement. A 
     mandate for health coverage would meet this standard, which 
     is so deferential to the government.
       Finally, those who object to having health coverage on 
     freedom-of-religion grounds also have no case. The Supreme 
     Court has expressly rejected objections to paying Social 
     Security and other taxes on religious grounds. More 
     generally, the Supreme Court has ruled that individuals do 
     not have a right to an exemption from a general law on the 
     ground that it burdens their religion.
       There is much to debate over healthcare reform and how to 
     achieve it. But those who object on constitutional grounds 
     are making a faulty argument that should have no place in the 
     debate over this important public issue.

  Mr. BAUCUS. Mr. President, as a second example, I refer my colleagues 
to an article by Mark Hall, a law professor at Wake Forest University. 
His article is a comprehensive peer-reviewed analysis of the 
constitutionality of a Federal individual responsibility requirement.
  In this article, Professor Hall concludes that there are no plausible 
10th amendment or States' rights issues arising from the imposition by 
Congress of an individual responsibility to maintain health coverage.
  Professor Hall notes further that health care and health insurance 
both affect and are distributed through interstate commerce, and that 
gives Congress the power to legislate a coverage requirement using its 
commerce clause powers.
  Professor Hall notes that the Supreme Court indicated in its decision 
in U.S. v. Morrison and U.S. v. Lopez--two other cases relied on by the 
other side--that the noneconomic, criminal nature of the conduct in 
those cases were central to the Court's decisions in those cases that 
the government had not appropriately exercised power under the commerce 
clause.
  Health insurance, on the other hand, does not deal with criminal 
conduct. Health insurance is commercial and economic in nature and, to 
reiterate, substantially affects interstate commerce.
  Health insurance and health care services are a significant part of 
the national economy. National health spending is 17.6 percent of the 
economy, and it is projected to increase from $2.5 trillion in 2009 to 
$4.7 trillion in 2019.
  Private health insurance spending is projected to be $854 billion in 
2009. It covers things such as medical supplies, drugs, and equipment 
that are shipped in interstate commerce.
  Health insurance is sold by national or regional health insurance 
carriers. Thus, health insurance is sold in interstate commerce. As 
well, claims payments flow through interstate commerce.
  The individual responsibility requirements, together with other 
provisions in the act, will add millions of new consumers to the health 
insurance market, increasing the supply and demand for health care 
services.
  Under existing health and labor laws, the Federal Government has a 
significant role in regulating health insurance.
  Other prominent legal scholars have also said that Congress has the 
constitutional authority to impose a requirement on individuals to 
maintain health coverage.
  Jonathan Adler, a professor of law at Case Western Reserve University 
School of Law, stated:

       In this case, the overall scheme would involve the 
     regulation of ``commerce'' as the Supreme Court has defined 
     it for several decades, as it would involve the regulation of 
     health care markets. And the success of such a regulatory 
     scheme would depend upon requiring all to participate.

  Doug Kendall of the Constitutional Accountability Center similarly 
concluded:

       The fundamental point behind pushing people into the 
     private insurance market is to make sure that uninsured 
     individuals who can pay for health insurance don't impose 
     costs on other taxpayers.

  Professor Michael Dorf of the Cornell University Law School also 
noted:

       [T]he individual mandate is ``plainly adapted'' to the 
     undoubtedly legitimate end of regulating the enormous and 
     enormously important health care sector of the national 
     economy. It is therefore constitutional.

  Robert Shapiro, a professor of law at Emory University School of Law, 
stated:

       When everyone thinks of the wisdom of an individual 
     mandate, or of health care reform generally, it would be 
     surprising if the Constitution prohibited a democratic 
     resolution of the issue. Happily, it does not.

  Thus, Mr. President, the weight of authority is that health care and 
insurance represent interstate commerce. The individual responsibility 
requirement to maintain coverage would be within Congress's power to 
regulate interstate commerce.
  Mr. President, in the last hour, several Senators on the other side 
listed many organizations they claim oppose the bill before us. I will 
indicate many organizations that favor the health care reform bill.
  I will begin with the American Medical Association. That is the major 
doctors association that supports this legislation. In fact, the 
incoming president, the president-elect of AMA, at a press conference 
yesterday, made that statement very clear.
  In addition, the American Heart Association supports the legislation. 
They believe the many patient-centered provisions are a significant 
step toward meaningful health care.
  The American Hospital Association supports passage of the 
legislation.
  The American Cancer Society Action Network supports it.
  The Federation of American Hospitals also supports it.
  The National Puerto Rican Coalition supports this legislation.
  Mr. President, it would be unfair to say that these are all totally 
100 percent endorsements. Rather, these are statements of support from 
these organizations. Some totally support it, and some say there are 
very good features in it. As far as I know, none of these groups 
totally oppose this legislation. Some would like to see some changes, 
but they favor the legislation.
  The American Association of Retired People supports this legislation. 
That is the largest seniors group. They think this is good--I am sure 
for a lot of reasons, but it extends the solvency to the Medicare trust 
fund for another 5 years.
  The Business Roundtable supports this legislation. They say:

       On behalf of the members of Business Roundtable, I want to 
     commend you for your efforts to improve the health care 
     reform legislation currently being considered by the United 
     States Senate. The proposed legislation is a step toward our 
     shared goal of providing high quality, affordable health care 
     for all Americans. . . . As we understand it, the proposed 
     legislation now will include provisions to accelerate and 
     enhance the process for delivery reform for the Medicare 
     system. . . . It strengthens the match between the insurance 
     reforms and the individual obligation. . . . We will continue 
     to work with you, the Congress and the Administration to 
     ensure we achieve the goals we all set when this process 
     began.

  The American Diabetes Association also supports this bill. They say 
it is ``long overdue improvements to our broken health care system.''

  The Small Business Majority also believes the managers' amendment 
``includes new provisions essential for small business protection and 
survival.''
  Doctors for America supports passage of this bill.
  The National Hospice and Palliative Care Organization strongly 
supports this legislation. There has been confusion as to whether they 
did. But they strongly support it, saying:

       On behalf of hospice and palliative care providers and the 
     more than 1.5 million patients, and their families . . . 
     would like to express our strong support for the national 
     effort to enact health care reform. We acknowledge the 
     enormity and complexity . . . and we applaud your recognition 
     of the importance of various provisions. . . .

  Families USA supports this legislation. I already mentioned AARP, 
which also supports it. Community Catalyst is another organization that 
supports it. U.S. PIRG supports it. The Center for American Progress 
supports it. Medco Health, Microsoft, a big company in the United 
States, makes a strong statement approving the measure we are 
considering here.
  Many organizations support this legislation. I am sure there are 
more, but this is an example of a few.
  How much time remains on our side?
  The ACTING PRESIDENT pro tempore. There is 10 minutes remaining.
  Mr. BAUCUS. Mr. President, I yield 10 minutes to the Senator from 
Pennsylvania.
  The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania is 
recognized.

[[Page S13768]]

  Mr. CASEY. Mr. President, I commend the work of our Finance Committee 
chairman, Max Baucus, for so many things in this debate. First, for 
helping us get health care legislation moving in 2009 and now at the 
point of getting close to passing the bill. I am grateful for his 
leadership. There are some highlights of the bill I want to note in the 
remaining moments of our time.
  First, there has been a lot of debate over the last couple of days 
and weeks--but even over months--about cost and care. Fortunately, we 
are able to report that with this bill coming out of the Senate, we 
will have more care and less costs. The deficit will be cut by $132 
billion over 10 years as a result of this bill; $1.3 trillion will be 
cut in the deficit in the second decade.
  It will provide coverage for 94 percent of the American people. This 
has not been talked about much, but the bill is a net tax cut for the 
American people. We are going to crack down on insurers' practices that 
have gone on too long, were allowed to go on for too many years: ending 
preexisting condition discrimination, and discrimination based upon 
gender, providing protection from exorbitant out-of-pocket costs, 
something we hear about all the time.
  Just with regard to older citizens across our country, one, the bill 
will extend the solvency of Medicare; two, it makes prescription drugs 
more affordable by filling the so-called doughnut hole and helping 
people with those costs; cutting waste, fraud, and abuse in Medicare; 
ensuring Medicare funding to improving care for seniors not to 
insurance companies.
  Small businesses--if there was one sector of our economy we have 
heard from over and over about the crushing burden of health care 
costs, it is small businesses. I know that tens of thousands of small 
businesses in Pennsylvania, for example, will benefit from this 
legislation.
  There are two points with regard to the bill and small business. 
First, the bill provides tax credits to small businesses to make 
employee coverage more affordable.
  Second, tax credits of up to 50 percent of premiums will be available 
to eligible firms that choose to offer coverage--a tremendous 
breakthrough for people out there who are creating most of the jobs in 
Pennsylvania and most of the jobs nationally.
  One of the more unreported or underreported aspects of the bill is 
what happens immediately. A lot of folks say: We like your bill. We 
like what is going to happen. But a lot of it won't take effect for at 
least several years, until 2014.
  A good part of the bill takes effect in 2010. A quick summary of 
those provisions: First, it provides affordable coverage to the 
uninsured with preexisting conditions. If there is an insurance company 
that excludes you because of a preexisting condition, you can go into a 
high-risk pool to get help right away.
  It improves care to older citizens, as I mentioned, and lowers 
prescription drug costs.
  It reduces costs for small businesses through tax credits.
  Fourth, it extends coverage for young adults--young adults 25, 26 
years old, who may be living under difficult circumstances and don't 
have insurance coverage. Preventive care--we preached and talked about 
that for years, and we point to studies and good practices, but we have 
never made it part of our overall health care bill. This bill does it.
  We eliminate lifetime limits on the amount of coverage a person may 
receive--a terrible problem for families. The message from our system 
has been that we can cure you, but we have to limit the kind of care we 
are going to provide for you.
  Three more points in this area: What are the immediate benefits in 
2010? It prohibits discrimination based upon salary, gender, or 
illness. We make insurance plans more transparent and competitive.
  Finally--and this is a rather new change--it prohibits insurance 
companies from denying children coverage due to a preexisting 
condition.
  That has moved up in the bill, so to speak, to an immediate benefit 
for children. So at least in the short term for children, there will be 
no more denying them coverage due to a preexisting condition--a 
tremendous breakthrough for a child, for his or her family, and for our 
economy and for our health care system, to protect children in a very 
substantial way. Whether it is cutting the deficit, providing better 
quality of care, providing opportunities for great prevention which 
will lead to a healthier outcome, protecting people so they do not have 
to go bankrupt to get the care they need, and especially for protecting 
older citizens and children, this bill moves forward in a way we have 
never had an opportunity to move our system forward in a very positive 
way.

  I again commend Chairman Baucus on his work and our majority leader, 
Harry Reid, and all those who made it possible to move this bill 
forward and to have it passed through the Senate and move it to 
enactment.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Montana.
  Mr. BAUCUS. Mr. President, I see no Senator seeking recognition. I 
ask unanimous consent that the next block of time begin immediately.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The Senator from Florida.
  Mr. LeMIEUX. Mr. President, I thank the chairman of the Senate 
Finance Committee for his courtesy. I appreciate the opportunity to be 
here.
  I understand, Mr. President, I have a certain allotment of time. If I 
can be notified when I have 2 minutes remaining, I would appreciate 
that.
  The ACTING PRESIDENT pro tempore. The Chair is unaware of any 
restrictions. There is 1 hour for the Senator's side.
  Mr. LeMIEUX. OK. If I can be notified when I have spoken for 20 
minutes.
  The ACTING PRESIDENT pro tempore. The Chair will so notify the 
Senator.
  Mr. LeMIEUX. Mr. President, I rise today to talk about this health 
care bill. I have spoken about it before. I feel obligated on behalf of 
my State of Florida to explain why I, unfortunately, will not be able 
to support this bill on final passage. I think, in doing so, it is 
important to talk about why we are here and how we got here.
  I am sure the American people think that in this process of debating 
health care over the past weeks and months, this has been a process 
where both sides, Republicans and Democrats, have worked together, sat 
in an open room and gave ideas back and forth; that there has been 
give-and-take and compromise so that we could come to the plan that is 
before us today. I am sure the American people believe that amendments 
were offered, that each Senator could come to the floor and offer 
amendments and that his and her colleagues were allowed to hear about 
those amendments and vote them up or down. I also believe the American 
people think we do not just come to this Chamber and give monologs. 
They probably think this room is not empty and that there are just two 
of my distinguished colleagues here but that we all sit here and listen 
to each others' arguments and decide what is best for the American 
people.
  Unfortunately, that is not the case with this bill. This bill was 
designed and crafted by the Democratic leadership, without the input of 
the colleagues from this side of the aisle. There was no give-and-take. 
There was no back-and-forth in a conference room with C-SPAN in the 
room, as the President told us he would ensure when he ran for the 
Office of the Presidency. And we did not have the opportunity to offer 
amendments to make this bill better.
  I know that seems hard to believe, that we would not have the ability 
to offer amendments to make this bill better, but I can prove it to 
you.
  I have an amendment at the desk. It is amendment No. 3225. What this 
amendment does is it takes a piece of legislation I filed shortly after 
coming to the Senate in September of this year--the legislation is 
called the Prevent Health Care Fraud Act of 2009. This legislation has 
11 cosponsors. It has bipartisan support.
  What the bill does is basically three things:
  First, it creates the chief health care fraud prevention officer of 
the United States. It would be the No. 2 person at Health and Human 
Services. Their only job would be to ferret out health care fraud.

[[Page S13769]]

  Second, it would use and take a page from the private sector to go 
after fraud. There is an industry out there right now that does an 
excellent job of stopping fraud. That industry is about the same size 
as the health care industry. It is the credit card business. It is 
about a $2 trillion business. Health care is about a $2 trillion 
business. In health care and in Medicare alone, estimates are that $1 
out of every $7 in Medicare is fraud. In the credit card business, it 
is pennies on the hundreds of dollars.
  How does the credit card business do it? We have all had this 
experience. You go to purchase something in a store, and when you 
leave, you get an e-mail or a phone call and your credit card company 
says to you: Did you really mean to purchase that good or service? 
Guess what. If you say no, they don't pay. The way we do things in 
Medicare and Medicaid is we do pay-and-chase. We pay, and then when we 
think there is fraud, we try to go after it.
  This model stops the fraud before it starts. A group here in 
Washington, DC, has evaluated this legislation and says that it might 
save as much as $20 billion a year in Medicare alone. We think there is 
$60 billion in fraud in Medicare--$1 out of every $7.
  This proposal that we put forward also would require background 
checks for every health care provider in America to make sure they are 
not a criminal. Florida, my State, unfortunately is ground zero for 
health care fraud. We have the worst health care fraud in America. Just 
this past weekend, and I sent this letter around to my colleagues--a 
$61 million Medicare fraud scheme out of Florida and some other States.
  My bill, this proposal which has bipartisan support, could save $20 
billion a year. We have fashioned this bill into an amendment to this 
health care bill.
  Mr. President, I ask unanimous consent that the pending amendment be 
set aside to call up my amendment. It is amendment No. 3225.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Mr. BAUCUS. Reserving the right to object, and I hope my colleague 
will let me say a word or two in my reservation, the underlying bill, 
while certainly objective, was crafted with the guidance of CMS, the 
Office of the Inspector General, HHS, and the Justice Department for 
stronger antifraud. It would give CMS new screening authority to 
provide resources to CMS for new screening authority. It also limits 
providers in other ways but more oversight when fraud is suspected, 
such as limiting durable medical equipment providers because we know it 
is fraught with fraud. We also require providers to have compliance 
programs, make sure providers know the rules. There are increased 
penalties for fraudulent activity in the bill as well. Most 
importantly, we will give CMS, HHS, OIJ, and DOJ more tools at their 
disposal to preserve and protect the program's integrity. The bill does 
a lot to protect fraud.
  I might say, I know this is on his time, but this procedure has been 
unusual. I appreciate the indulgence of the Chair, as well as the 
indulgence of the Senator from Florida.
  You will not believe the number of amendments that were offered on a 
bipartisan basis in the Finance Committee, as well as in the HELP 
Committee. They were adopted in both committees. It was very 
transparent, open, bipartisan. Unfortunately, by the time the bill got 
to the floor, it became apparent we were facing less than the nature of 
legitimate amendments, more message amendments. So the majority leader 
resorted to a procedure to move this bill expeditiously.
  I am taking advantage of the Senator's time to explain all this. That 
is not the proper procedure. There are strong antifraud provisions in 
this legislation, and very respectfully I must object.
  The ACTING PRESIDENT pro tempore. Objection is heard.
  Mr. LeMIEUX. Mr. President, I thank the distinguished chairman of the 
Finance Committee. Sure, there are things in this bill that he pointed 
out to go after fraud. But I would like to inform the Senate of a 
report that came out evaluating this new bill, the managers' amendment.
  I have a table which evaluates how much will be saved from the waste, 
fraud, and abuse provisions which are in this bill. It is $.9 billion. 
The proposal that I have, one group--and, again, it is not the CBO--one 
group has said it might save $20 billion a year.
  Putting aside our differences, I sure wish we could talk about my 
amendment today, I say to my colleague. I hope we can revisit it after 
this is over because we should be able to agree, and it does have 
bipartisan support. I wish we could amend the bill today. I hear the 
objection, and I will move on. I hope we can talk about this.
  Mr. BAUCUS. I ask the Senator if he might yield using time on our 
side. I fully agree with the Senator. It is unfortunate we cannot 
proceed at this moment. But I pledge my support next year to work 
aggressively with very strong oversight to boost our antifraud measures 
even more than they are in this bill.

  There will be an awful lot of oversight necessary when the bill is 
passed to make sure all the provisions that are intended come true. In 
fact, we think we are working hard to get it passed; frankly, I think 
we have to work harder next year to make sure the provisions work. I 
pledge my support to work aggressively in that area.
  Mr. LeMIEUX. I thank the chairman. I wish we could do it before we 
had to rush to judgment on this bill. I wish we had more time. I wish 
we did not have to be backed up against a wall before Christmas. I 
understand colleagues on the other side have a desire to get this bill 
done. But it is my concern with this measure and with the other 
measures in the bill that we could have worked together.
  Mr. President, I say to the chairman, I am new to the Chamber. But 
this is not the way businesses work. It is not the way American 
families work. It is not the way even State legislators work, which I 
have experience with in Florida.
  I wish we could have talked about that amendment and offered it. I 
wish my colleagues were here to debate it up or down. Let's talk about 
where we are instead. Let's talk about what this bill does and why I 
cannot, unfortunately, support it as a Senator from Florida.
  We know this bill cuts Medicare by nearly $\1/2\ trillion. We know 
this bill raises taxes by nearly $\1/2\ trillion. And we know it does 
not accomplish the fundamental goal the President put forward when we 
embarked on this debate about health care reform.
  The American people are beginning to realize and if they have not 
realized yet will be shocked to hear that this bill is not going to cut 
the cost of health care for people who have insurance already. That is 
the very reason this debate was embarked upon, not just access for 
people who do not have health care insurance but to bring the costs 
down. Health care has gone up 130 percent in the past 10 years. This 
bill will not address that. In fact, estimates show that for some 
folks, the cost of health care will go up.
  There are basically five reasons why I cannot support this measure as 
a Senator from Florida.
  I am concerned, first of all, about access and quality of care for 
our seniors. When you take $\1/2\ trillion out of Medicare, my fear is 
that it is going to diminish the quality of care for seniors in 
Florida.
  It is said on the other side that we are not going to take away 
benefits, that we are just going to take money away from providers. It 
was said on the other side that the new insurance will take care of 
uncompensated care, so that the cuts to hospitals and to other 
providers will not really hurt seniors in the end. I think that is a 
tremendously risky experiment.
  I cannot believe, at the end of the day, when we pay providers less, 
it is not going to affect benefits. Right now, studies show that 24 
percent of seniors on Medicare trying to find primary care physicians 
cannot find one. I get letters from seniors in Florida who say they 
cannot find a doctor who will take their Medicare. We know in Medicaid 
it is worse. We know in Medicaid that if you are just going into the 
program and trying to find a physician, almost 40 percent of the 
physicians will not take you. In metropolitan areas for specialists, it 
is up to 50 percent who will not take Medicaid.
  I fear that if we take nearly $\1/2\ trillion out of a program that 
is already in financial trouble, a program that in the next 7 years is 
going to be in serious financial trouble and not be able to

[[Page S13770]]

meet its obligations, that it is going to hurt seniors.
  I have heard this discussion about how we are prolonging the life of 
Medicare. The distinguished chairman just spoke about it. But when you 
look at what the Actuary at HHS has said about that assumption, the 
assumption is that we are not going to restore the 21-percent decrease 
in physician payments which, of course, as soon as we get back in the 
new year, we are going to have before us.
  You cannot take money out of Medicare and pay for a new program and 
shore up Medicare. You do not need an actuary or an evaluation or an 
analyst to tell you that. It is common sense. You cannot get blood from 
a stone. If the doctor is not in, it is not health care reform.
  I have received a letter, as many of my colleagues have, from an 
organization called 60 Plus which represents 5.5 million seniors. James 
Martin, the president of 60 Plus, writes:

       Cutting half a trillion dollars from Medicare while adding 
     31 million more to the health care rolls is an outrage.
       60 Plus strongly supports health care reform but first we 
     should do no harm to a system serving so many so well. . . . 
     Make incremental changes that do not bankrupt a system 
     already teetering on insolvency.

  I want to talk a minute about Medicare Advantage. There are more 
Floridians in Medicare Advantage than any other State. A lot has been 
said about this program. We have had amendments to try to stop the 
cuts. Mr. President, 950,000 Floridians--Medicare Advantage is a great 
program, and people in Florida enjoy it. Seniors enjoy it because they 
get more than regular care; they get eye care, hearing care, wellness, 
diabetic supplies, and other things that add to the quality of life of 
seniors and help their entire health care. These Medicare Advantage 
providers are actually working hard to make sure their senior customers 
are happy, not a concept you hear a lot about when the government is in 
charge.

  There is a fix for Florida, as has been talked about, but I wish to 
talk about what that fix is, as I understand it. It is an off-ramp. For 
the rest of the country, it is going to be somewhat of an exit. For 
Florida, it is an off-ramp.
  First of all, we don't know what will happen in conference. The 
Senate cuts $120 billion; the House cuts $170 billion. I don't know if 
the Florida fix will still be there. But in talking to experts and 
reading the bill myself--specifically around page 895 through about 901 
of the original Reid bill--there is this grandfathering in for folks in 
Florida, and other areas, but part of Florida is covered. Of the 
950,000 people, the experts think 150,000 to maybe as many as 250,000 
will not get this grandfathering in. They are going to get the cuts to 
Medicare Advantage. So this is not good for them. Then, for the others, 
say, 700,000 people or so, every year, starting in 2013, their 
benefits--or the payments to the providers for benefits--are going to 
decline 5 percent a year. That is on pages 895 through 897. So it is an 
off-ramp. Every year, less payments. Every year, less benefits.
  I talked to one provider down in Miami that many Senators in this 
Chamber have visited. He runs a very successful Medicare Advantage 
Program. He said these cuts would be devastating. So while it might not 
be an exit for Florida right away, it is certainly going to be an off-
ramp that one day ends up being an exit.
  Let's remember that many of the folks on the other side of the aisle 
who are proposing these cuts to Medicare Advantage didn't vote for 
Medicare Advantage to start with. They don't like it. They don't like 
the private sector being involved. They don't like these extra benefits 
being provided. It goes against what they philosophically believe. But 
I know Floridians like it. Because this bill cuts it, I can't be for 
it. No one can guarantee to me that in the next 10 years Medicare 
Advantage in Florida will be as robust as it is today.
  I am concerned also about the home health care payments. I am 
concerned about what it is going to do to the small business home 
health care providers in Florida. I talked to the largest provider of 
home health care services in Florida, and he said: We will be fine, but 
the small businesses--the mom and pops who do this--will go out of 
business. That is disconcerting in a State with 11\1/2\ percent 
unemployment.
  The second reason I can't support this bill is this is going to have 
a devastating effect on our State budget in Florida. We talked today to 
the head of the Florida health care system, the Agency for Health Care 
Administration, and these increases in Medicaid, raising Medicaid from 
100 percent of poverty to 133 percent, are going to cost Florida an 
estimated $3\1/2\ billion over the next 10 years. That is $3\1/2\ 
billion Florida can't afford to pay.
  Our budget has gone from $73 billion to $66 billion in a short period 
of time with the economic decline. Unlike this Chamber, which spends 
money it doesn't have, Florida has to balance its budget. So what 
happens when you have less money? You have to cut programs. But when 
you have a Federal mandate, you can't cut that. So what do you cut? You 
cut education and teachers. You cut law enforcement--not good for 
Florida. This is a burden Florida can't afford to pay. That is why all 
the Governors in the country--virtually Republican and Democratic 
alike--including our Governor, Charlie Crist, are against this unfunded 
mandate.
  The third reason I can't support this bill is because it raises 
taxes--$518 billion. What happens when the drug company that makes your 
medicine or the medical device company that makes the lifesaving 
implement for you gets taxed? They are going to pass it along to you. 
They are going to put it right in the bill. That is the way it is going 
to work. That is why health care costs aren't going down for the 170 
million Americans who have health insurance. In fact, for some, they 
are going to go up. That is not health care reform.
  Fourth, this is a budget-busting bill. It is not deficit neutral. Let 
me explain why. You will hear reports this is going to cut more than 
$100 billion from the deficit over the next 10 years. Only in 
Washington, DC, could you come to this calculation. It is funny math. 
We have this Congressional Budget Office, which is sort of the arbiter 
of all things financial here in Washington. You send them a proposal 
and they give you an answer. But it is not a thinking answer; it is an 
analytical answer, and it gets gamed. What you send them determines 
what you get back. They only look at a 10-year period--what it is going 
to cost in the next 10 years. If you bring in more money than you spend 
in the next 10 years, then it will cut the budget. It will cut the 
deficit. That is what they say back to you.
  So what was done in this bill in order to get something that would 
fulfill the President's promise to be a budget cut or at least deficit 
neutral? We have 10 years of taxes and 6 years of benefits. Most of the 
benefits don't start until 2014, yet the taxes start in 2 weeks--in 
January. That is akin to you going to buy a home and saying: I am going 
to live here for 10 years, and they say: That is great, start paying 
today and you can move in in 2014.
  It is funny math. This is a $2.5 trillion new entitlement program we 
can't afford. We can't afford the programs we have, let alone the 
programs the majority in this Chamber want. We have a $12 trillion 
deficit. We have $30-some trillion in unfunded entitlement deficit. We 
have hundreds of thousands of dollars of debt for every family in 
America, and no plan to pay for it. We spend more than we take in. We 
spent $1.4 trillion--we have a $1.4 trillion deficit this year--just 
the debt this year. That is more than the past 4 years combined.
  The American people are on to this and they are angry about it and 
they should be.
  The ACTING PRESIDENT pro tempore. The Senator has used 20 minutes.
  Mr. LeMIEUX. Fifth and finally, the reason I can't support this bill 
is it doesn't lower the cost of health insurance for Americans.
  The Congressional Budget Office has said the majority of Americans 
would see the same increases as they currently get under the current 
system. For some people, individual policies, for example, they will 
receive a 10- to 13-percent increase.
  I am going to conclude by saying this, and this will probably be the 
final time I will speak before we have final passage on this bill. I 
long for what could have been. We could have worked together. We could 
have had an 80-vote bill. We could have had a bill that would say 
insurance companies can't drop you if you are sick, insurance

[[Page S13771]]

companies can't deny you if you have a preexisting condition, insurance 
companies can compete across State lines, set up an exchange, give a 
tax credit to the American people, put money in their pocket, let them 
be consumers who go out and buy health insurance and drive the cost 
down because the market economy would, once again, work in health care.
  This bill doesn't solve the problem. It perpetuates it and makes it 
worse. At the same time, it cuts health care for seniors and doesn't 
lower the cost of health insurance for most Americans. For more and 
more seniors, the doctor will not be in. That is not reform. For those 
reasons, respectfully, for that lost opportunity, I will not be able to 
support this bill.
  I yield the remainder of my time to my friend and colleague from 
Alaska.
  The ACTING PRESIDENT pro tempore. The Senator from Alaska is 
recognized.
  Ms. MURKOWSKI. Mr. President, I wish to acknowledge the very eloquent 
and articulate comments of my friend from Florida. We recognize that 
his time in the Senate has been relatively short, but in terms of an 
individual jumping in with both feet and embracing the challenges we 
clearly have in front of us and representing the constituents of the 
State of Florida in the manner he has, I think that deserves public 
recognition, and I thank the Senator for his leadership.
  We have had occasion to talk about the similarities between Alaska 
and Florida. You might not think there would be much in relationship 
there--my being from the North and the cold versus the sunny South in 
Florida. But when it comes to our senior populations, this is where we 
truly have a shared interest. Florida has probably the largest number 
of seniors per capita, and in my State of Alaska, we are the State that 
has the fastest growing population of seniors per capita.

  One might not think of Alaska as being a retirement haven, but more 
and more we are becoming so, and we share the same problems when it 
comes to access. When you can't get in to see a provider, when that 
insurance card is all we have given you, then we haven't done anything 
to provide for a level of care to improve the situation for the 
residents of Florida or the residents of Alaska. So what we are doing 
today--as we move toward final passage on legislation that I would 
concur with the Senator from Florida does not fix the problem--we are 
not dealing with how we appropriately and adequately provide for access 
to quality health care. We have much work remaining before us.
  We have had some time these past couple days--actually these past 
couple weeks--as we have spent a considerable amount of time in our 
offices waiting for votes at 1 in the morning or votes at 7 o'clock in 
the morning, and I have had a chance to go through some things on my 
desk, but I have also had an opportunity to spend a lot of time 
checking to see what people are saying when they are contacting our 
office. The volume of correspondence, whether in e-mails or faxes or 
phone calls, coming in from Alaskans during this time has been 
absolutely unprecedented.
  I think, typically, in the legislative calendar about this time--
several days before Christmas--you don't see constituents contacting 
their Senators and pounding the drum. Well, let me tell you, the people 
in Alaska are pounding the drum. In just the past 24 hours, we have 
gotten probably close to about 500 health care e-mails that have come 
in. Overwhelmingly these are e-mails from constituents saying: No, this 
is not good. You must do what you can to prevent this reform package, 
as you call it, from moving forward.
  It seems the longer the people from Alaska, the longer the people 
from around this country have to look at what is contained in this 
2,000-plus page bill, the more they realize the negative impacts, the 
consequences to them and their families and their businesses and they 
are no longer silent. I have had so many calls and letters coming from 
people saying: I have never weighed in with you before, never weighed 
in with my delegation, but this is something I can't keep silent on.
  When you look at some of the ones that have come in, these are just 
today's. This is one from a woman in Anchorage who says: Yesterday on 
the TV news I heard about the sweetheart deal Senator Nelson made 
regarding the rest of us paying Nebraska's Medicare bill forever. To 
say I am angry is putting it mildly.
  There is a gentleman in Fairbanks who writes in: I am very skeptical 
about this mandatory health insurance that apparently everyone will 
have to buy in.
  Here is one from a fellow in Anchorage also. He says: You are moving 
a health care bill that can't be understood unless a person has a law 
degree.
  Another individual, and this is an interesting one. He and his family 
apparently own four indoor tanning businesses in Alaska. We need to get 
a little sunshine, even if it is not what God has provided us. But 
these are good businesses, and he says: When did this go from a 5-
percent tax increase for cosmetic surgery to 10 percent for indoor 
tanning anyway? And he adds: Adding another 10-percent tax hike on 
small businesses, like indoor tanning, will likely drive many families, 
just like mine, into bankruptcy.
  I could go on and on in terms of the stacks of correspondence and 
phone calls we have gotten, but suffice it to say, the more people 
understand what is in this legislation, the greater their concerns are 
and the greater their outrage as they learn what is contained in it.
  One of the things I learned just yesterday, which I don't think we 
have gotten the focus or the attention on--and this is a concern that 
was raised by the Anchorage homebuilders and the Alaska State Home 
Building Association. They have pointed out that as an industry, the 
homebuilders industry, they are being unfairly singled out in this 
bill.
  We have talked about the employer mandate that is contained in this 
legislation, and that mandate applies to those businesses with 50 or 
more employees. But there is a zing in this legislation to homebuilders 
who are now responsible for providing federally approved health 
benefits if they have five or more employees.

  Look at what is going on throughout this country in terms of 
industries that have taken a real hit with this economic downturn and 
this recession. The homebuilding industry has suffered incredibly 
during this downturn. On top of depressed house prices and increases in 
home foreclosures, now we are now going to punish them with an employer 
mandate that treats them worse than any other employer. In other words, 
if you have five or more employees as a homebuilder, you need to know 
that your industry is the one, the only one that will be subject to the 
employer mandate of $750 per employee.
  In Alaska, we checked to see how many individuals are homebuilders 
within the State. We have about 250 homebuilders in Alaska. But when 
you look to see how many individuals they employ, that is about 3,078 
employees, it is about 12 employees to every builder. So the total 
homebuilding industry that would be impacted is about 800 employers in 
my State.
  Yesterday, there was a letter sent to Members of the Senate. This is 
from the homebuilding industry as well as many other associated 
industries--the air-conditioning contractors, the builders and 
contractors, the electrical contractors. I wish to mention some of the 
statements that are contained in this letter. Again, it is written 
yesterday. They say:

       We are writing to express our strong opposition to language 
     contained in the managers' amendment which excludes the 
     construction industry from the small business exemption 
     contained in the bill. The fact that the managers' amendment 
     was made public less than 2 days before the first vote on the 
     matter has increased the difficulty of playing a constructive 
     role in the legislative process.

  I will take a little detour from the letter. This is part of the 
problem. You have these organizations and groups, and there is a list 
of about a dozen of them here, that have signed on to this letter. They 
had literally hours before we were forced to vote on the managers' 
amendment. They did not know what was in the bill and how it impacted 
them. They go on to say:

       The managers' amendment singles out the construction 
     industry by altering the exemption so it applies only to 
     firms with fewer than 5 employees. This is an unprecedented 
     assault on our industry. It is unreasonable to presume that 
     small business owners can bear

[[Page S13772]]

     the increased costs of these new benefits simply because 
     Congress mandates that they do so.

  They go on to conclude in the letter:

       We are unaware of any data or evidence that suggests that 
     the needs and struggles of a construction contractor with 
     fewer than 50 employees are so different from those of small 
     business owners in other industries, and absent such 
     convincing evidence, we are left to assume that this specific 
     provision is merely a political payoff to satisfy the desires 
     of a small constituency.

  Those are some pretty strong words there toward the end. But it does 
cause you to wonder why, in this legislation, we are going to require 
that businesses--only businesses in excess of 50 employees are going to 
be subject to this mandate. Why this unprecedented assault on the 
homebuilders? I don't get it. But what it does cause me to get is that 
there is a heck of a lot more out there that, the more we read it, the 
more we sit down and we connect the dots, the more we realize this fish 
we have set out on the front porch is going to continue to stink.
  It stuns me. We have the homebuilders up in Alaska who are beside 
themselves, saying: Can you take a look at this and let me know how the 
Senators feel. What are you going to do about this, Lisa, is the 
question I have received.
  This is something we all have to reckon with.
  Madam President, at the conclusion of my remarks, I ask unanimous 
consent that a copy of the letter be printed in the Record.
  The PRESIDING OFFICER (Mrs. Shaheen). Without objection, it is so 
ordered.
  (See Exhibit 1.)
  Ms. MURKOWSKI. I am going to speak a little bit about how aspects of 
this legislation have impact specifically on my State. As a rural 
State, sometimes the impacts we see are different than you have in more 
urban States. Our geography is different, our lack of providers, our 
high senior population, our extremely expensive costs, there are a lot 
of dynamics at play that cause real issues and real concerns.
  There have been many words that have been exchanged on this floor 
about what this bill doesn't do or what it does do. I find it helpful 
to go to the experts, the think tank in my State, and ask them flat 
out. We have an institution at the University of Alaska called the 
Institute of Social Economic Research. I take what they have to say 
very seriously.
  I also take very seriously what our Congressional Budget Office has 
to say, what the CMS Actuary has to say, because, as my colleague from 
Florida pointed out, these are the independent arbiters. These are the 
guys whose job it is to work the numbers. I would like to discuss some 
of the findings from the University of Alaska and also try to inject a 
little bit of common sense into the debate as to what it means for 
Alaska, how it increases their premiums, how it raises that cost curve 
on the Federal health care expenses, the taxes on small businesses for 
the individuals, the families, the health benefits of the police, the 
firefighters, other public protective service people who put their 
lives on the line for so many. These are the things about which, 
unfortunately, we might not be getting the full picture.
  Our colleagues on the other side have claimed that health care 
coverage will be expanded. Again, let's go to our nonpartisan 
entities--the CBO and the Joint Committee on Taxation. The average 
premium per person, if you purchase in the individual market, is going 
to be 10 to 13 percent higher in 2016 than the average premium under 
current law. That tells you if these Federal scorekeepers are correct, 
your premiums are going to go up under this health bill if you buy 
insurance yourself.
  In Alaska, according to ISER--again, the Institute for Social and 
Economic Research--you have about 28,000 Alaskans who would pay 12 
percent more for their premiums. It is going to cost an individual in 
my State an extra $1,100 per year and a family in my State nearly 
$3,000 more per year for the coverage by 2016.
  Again, you have to ask the question: Is health care expanding? This 
bill forces you to purchase federally approved health care; otherwise, 
you have to pay the penalty of $750 or 2 percent of your income if you 
earn more than $37,500.
  If you look at Alaska's population, this is going to bring in more 
than 50 percent of Alaska's population who are going to be penalized if 
they fail to have health insurance. Again, you ask the question: Is 
health care coverage going to be expanded?
  Since the law we are advancing is going to require that you buy 
federally approved health insurance, and then we are going to penalize 
you if you do not buy it, then what you have is the heavy hand of the 
Federal Government that forces you to buy health insurance, which is 
going to cost about 12 percent more once this bill is enacted--12 
percent more than it would today.
  The Democrats will also talk about the hidden tax on families and how 
that will go away because once this bill passes, under this bill, 
everyone is going to have coverage. Alaskans and all Americans who do 
not get federally approved health insurance that the Federal Government 
is going to require that you have, they are going to be fined $750, 2 
percent of your taxable income, and what the Democrats will not tell 
you when they say health care coverage is going to be expanded or the 
hidden tax is going to go away is, those with income greater than 
$37,500--again, affecting over 50 percent of the people in my State--
are going to be taxed a full 2 percent of their household income, once 
the bill is fully phased in, if they do not get health insurance. It is 
this penalty that is going to raise $15 billion to help pay for this 
bill. This is how we are paying for the bill.
  CBO and CMS told us the taxes on medical devices--whether they are 
tongue depressors or x-rays or blood sugar meters--these are going to 
be passed on to the individuals so you are going to be taxed for vital 
medications and other health products. The question you then have to 
ask yourself: OK, so do these hidden costs actually go away?
  I suppose they do because they are no longer hidden. What we will 
have done is we will have raised your premiums, we will have increased 
the penalties on those earning more than $37,500 who did not buy into 
health insurance, and we will have taxed your tongue depressors and x-
rays to pay for the bill.
  In addition, the smallest of the small businesses are going to be 
taxed if they do not provide insurance for their employees, and 
individuals and couples earning over $200,000, they are going to be 
penalized because they are the higher income earners.
  The Democrats are also telling you that as Medicare patients, they 
are going to get some good, positive things. They will get free 
preventive services. This is good. This is absolutely great. We should 
be encouraging preventive services.
  But as my colleague from Florida was explaining, as I mentioned, 
after this bill passes, are any of the 13--I think we are down to only 
12 now--primary care doctors in Alaska, in the Anchorage area anyway, 
accepting new Medicare patients? We are saying we are going to provide 
this service to you at no cost. But, again, if you can't get anybody 
who will take you as a patient, how are we helping you? We have heard 
from a doctor in Anchorage. In fact, I have an opinion piece that was 
published just this week in the Anchorage Daily News. She indicates she 
is dropping out of Medicare and she is doing it because of this 
legislation.
  I ask unanimous consent that be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             [From the Anchorage Daily News, Dec. 18, 2009]

           OPINION: Doctors and Patients, Not Feds, Know Best

                         (By Ilona Farr, M.D.)

       I have made the heart-wrenching decision as a physician to 
     opt out of Medicare. I do so after working with Sen. Stevens, 
     Sen. Murkowski and Rep. Young for a decade in hopes we could 
     ensure seniors would be able to continue to receive medical 
     services in Alaska.
       On a visit costing $115, Medicare pays $40, secondary 
     insurance pays $7, and the rest--$68--is a loss, not a tax 
     write-off. It takes six insurance paying patient visits to 
     offset losses from one Medicare or Medicaid patient.
       The House health care bills, HR3590/HR3962, increase the 
     number of people not paying their share of the costs and will 
     lead doctors to opt out of Medicare or retire early.
       Anchorage has 75 family physicians, down from 180. 
     Physician shortages like these are

[[Page S13773]]

     caused by government interference in the free market. 
     Government artificially keeps reimbursement rates low, 
     forcing other patients, and insurance companies, to pick up 
     the additional costs. Family practice residencies are filled 
     with foreign medical graduates because of high costs (more 
     than $200,000) associated with medical school. Low physician 
     reimbursement rates make it difficult to repay loans.
       Medicare and Medicaid auditors are paid on commission, can 
     fine us $2,000 to $50,000 for one charting mistake or billing 
     error, and then extrapolate this over the practice and drive 
     us out of business . . . all for one minor mistake. There is 
     fraud, but this system that penalizes us severely for simple 
     errors is untenable.
       In these bills malpractice reform is restricted, health 
     savings accounts (which help reduce costs and fraud) are 
     essentially eliminated, and taxes and fees on insurance and 
     medical services are increased. There are no Medicare/
     Medicaid rate, rule, or audit reforms, or tax write-offs for 
     business losses.
       One section in Sen. Harry Reid's bill says Medicare will no 
     longer pay for home health services, durable medical goods, 
     and possibly labs, X-rays, prescriptions or other services 
     written by providers who have opted out of Medicare. Many 
     talented physicians have had to opt out of Medicare (and by 
     this law must opt out of Medicaid and the military's Tricare 
     also) to stay in business. People will no longer be able to 
     see these physicians because of government financial 
     restrictions or will be forced to pay all medical bills 
     associated with these visits themselves.
       Bills under consideration cut Medicare spending by $460 
     billion, raise fees on medical services, increase physicians' 
     administrative burdens, promote electronic medical records 
     with mandated reporting of outcomes data, and increase 
     business costs so it will be impossible for small practices 
     to survive.
       My decision to withdraw from Medicare was also precipitated 
     by U.S. Preventive Services Task Force's recommendation that 
     breast cancer screening mammograms should only be done on 
     women between age 50 and 74. Approximately 48 percent of my 
     patients with breast cancer developed it before age 50. Up to 
     1.2 percent of my practice, mostly young mothers, could have 
     died if this were a national guideline.
       The Senate bill has this task force and other committees 
     determining what tests will be covered for patients. I am 
     concerned that penalties may be imposed on insurance 
     companies, and maybe providers, for going against these 
     guidelines. The Hippocratic Oath compels us to protect the 
     health of all humans throughout life, and many provisions in 
     these health care bills would cause us to violate that oath.
       Physicians and patients (not government) should decide the 
     best, most cost-effective medical treatment for patients. 
     Government should not dictate to insurance companies or 
     providers which tests can or cannot be covered. Medicine is 
     changing too rapidly for guidelines to be made at a national 
     level.
       I have worked in government medical facilities and in 
     private practice for the last 26 years. Physicians provide 
     timelier, less costly and more patient-oriented care if not 
     overseen by hordes of non-producing government 
     administrators.
       I am in favor of reform, but current bills before Congress 
     will collapse our health care system and work against the 
     freedoms we are guaranteed under the Constitution. Government 
     should not be allowed to force people to purchase health 
     insurance, mandate what health care services you are allowed, 
     or increase our taxes astronomically to support a huge 
     government health care bureaucracy that will bankrupt us as 
     individuals and as a nation.

  Ms. MURKOWSKI. It is no secret, in my State of Alaska and in far too 
many States around this country, we do not have enough providers that 
will take these individuals. ISER has said seniors in low payment 
Medicare States will be forced to wait in line. Alaska is one of two 
States--we are, I think, second to last in terms of Medicare payments 
and where we stack up in relation to the reimbursement. ISER goes on to 
state:

       Independent of the doc fix, in Alaska the remainder of 
     seniors are at risk of long lines to see a primary care 
     doctor and overflowing to community health center and 
     hospital emergency rooms where existing capacity is highly 
     likely to be quickly overwhelmed and long wait times become 
     increasingly common.

  ISER has also said that additional new insured patients are going to 
hurt Medicare beneficiaries, and they state:

       Federal healthcare reform applied to Alaska likely will 
     exacerbate an already very challenging situation for Alaska's 
     seniors as baby boomers age into Medicare and finding 
     themselves waiting in line behind a rapidly expanding line of 
     better paying private plans.

  We are told 5 years from now our Medicare population is going to 
increase by 50 percent. We cannot accommodate those who are Medicare-
eligible now. Our boom is not sustainable.
  The CMS Actuary has said:

       The Reid bill reduces payments to health care providers, 
     which is unlikely to be sustainable on a permanent basis. As 
     a result, providers could find it difficult to remain 
     profitable and absent legislative intervention, might end 
     their participation in the Medicare program.

  It is happening. Doctors, providers, physicians are making those 
decisions as we speak. They are opting out. So this is not some 
theoretical approach to the problem. This is happening.
  Madam President, how much time do we have on our side?
  The PRESIDING OFFICER. The Senator has 17 minutes.
  Ms. MURKOWSKI. If I may ask my colleague from Kansas, do I understand 
the Senator is seeking about 10 minutes?
  Mr. BROWNBACK. Yes.
  Ms. MURKOWSKI. Madam President, I want to speak about small 
businesses because we have all been talking about the impact to small 
businesses. Under this bill, as we know, small businesses are going to 
be penalized $750 per employee if even one of their employees seeks 
governmental health care through Medicaid or through Federal subsidies. 
So if you have 50 or more employees, you can be expected to pay fines 
in an amount of $750 per employee, which amounts to over $37,000 or 
$3,000 for that individual employee.
  I think we need to put it into perspective in terms of who these 
businesses are. These are the solo-practitioners, like the one-lawyer 
office or the small doctor's office. If these individuals purchase 
health care in the individual market, they are going to see their 
premiums go up an extra $1,160 per year for a family--nearly $3,000 
more in 2016.
  Alaska is defined as a high-cost State. If you are a small business 
that can afford to pay good health and dental benefits for your 
employees and those benefits amount to $8,500 per individual or $23,000 
per family, in a high-cost State such as Alaska, you look to be hit 
with a 40-percent excise tax because you basically want to provide your 
employees with good benefits.
  Again, according to ISER:

       Alaska is a high cost state and thus, roughly 50 percent of 
     health plans in Alaska will be subject to the tax by 2016, 
     compared to only 19 percent average in the Lower 48.

  Again, by 2016, 50 percent of the plans in my State will be subject 
to this 40-percent excise tax.
  I ask unanimous consent to have printed in the Record a letter we 
received from the municipality of Anchorage, Police and Fire Retiree 
Medical Trust.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         Municipality of Anchorage, Police & Fire Retiree Medical 
           Trust,
                                                December 15, 2009.


                       Plan Administrator Report

       At the November 24, 2009 PFRMT board meeting I brought to 
     your attention a health care bill, HR 3590as--Patient 
     Protection and Affordable Care Act, being considered in the 
     US Senate that contains provisions that if implement into law 
     would require that the Municipality of Anchorage (MOA) and 
     the Trust to make changes to their current business 
     practices. S 1796--America's Healthy Future Act of 2009 also 
     contains these changes and could become effective January 1, 
     2010.
       Three provisions in the bill that are of particular concern 
     are:
       1. Inclusion of health care benefits as taxable income to 
     employees. Not only will this increase the employee's taxable 
     income but the MOA's payroll taxes will also increase.
       SEC. 9002. INCLUSION OF COST OF EMPLOYER-SPONSORED HEALTH 
     COVERAGE ON W-2. (p. 1996)
       (b) EFFECTIVE DATE--The amendments made by this section 
     shall apply to taxable years beginning after December 31, 
     2010.
       2. Taxation of MOA health care plans. This tax will be 
     imposed on the employer. The current MOA health plan design 
     is apt to be considered to have an ``excess benefit''. This 
     would make it subject to a 40% excise tax. There is also an 
     aggregation rule for the value of employee coverage with 
     multiple employers or retiree medical (example, veterans and 
     rehired police officers and fire fighters). If a retiree 
     would purchase MOA Health Insurance that is considered 
     excessive, the 40% excise tax would be incurred by the 
     general fund of the Medical Trust. One may argue that the tax 
     is a tax to the employer. The argument can also be made that 
     the Trust is an integral part of the Municipality. This was a 
     conclusion determined in IRS PLR-06164-96. Thus the tax would 
     be payable from the Trust general fund assets.
       SEC. 9001. EXCISE TAX ON HIGH COST EMPLOYER-SPONSORED 
     HEALTH COVERAGE. (P. 1979)
       ``any excess benefit with respect to coverage, there is 
     hereby imposed a tax equal to 40% of the excess benefit.''

[[Page S13774]]

       (d) (1) (E) GOVERNMENTAL PLANS INCLUDED
       IRS PLR-06164-96 Because the Trust is an integral part of 
     the Municipality, it is not required to file an annual 
     federal income tax return. (p.5)
       3. Current Municipal employees are able to be reimbursed 
     tax free from money that they have placed in their flexible 
     spending account for over the counter (OTC) medicine. Retired 
     police officers and fire fighters also currently are allowed 
     this reimbursement as part of their medical benefit. Under 
     the rules of this bill, these reimbursements would no longer 
     be allowed. This is a reduction in employee benefits. It is 
     also likely to encourage an increase the utilization of more 
     expensive non-OTC prescriptions, as they are a covered 
     expense.
       SEC. 9003. DISTRIBUTIONS FOR MEDICINE QUALIFIED ONLY IF FOR 
     PRESCRIBED DRUG OR INSULIN. (p. 1997)
       This bill contains expenses that should be considered and 
     planned for accordingly. A December 2009 press release from 
     Mercer, an HR consultancy stated,
       Nearly two-thirds (63 percent) of employers in a recent 
     survey by Mercer say they would cut health benefits to avoid 
     paying an excise tax included in the Senate's Patient 
     Protection and Affordable Care Act, unveiled November 18. 
     Mercer estimates that one in five employers offer health 
     coverage that would be deemed ``too generous'' and thus be 
     subject to the Act's 40 percent non-deductible tax on the 
     excess value.
       Two letters have been sent to the MOA informing them of 
     these matters. The dates of these letters were November 25 
     and December 5, 2009. Since then, Larry Baker, Senior Policy 
     Advisor, in the Mayor's Office informed me that the MOA's 
     benefit consultant, The Wilson Agency, affirmed that the 
     current MOA health plans are going to be subject to the 40% 
     excise tax. They are contacting Senator Begich but beyond 
     that he did not specify what the course of action was going 
     to be.
       I recommend two points of action. Bring the PFRMT 
     membership up to date of this situation. And contact Senator 
     Begich to inform him of the negative impact that these bills 
     will have on our retired police officers' and fire fighters' 
     medical benefit.
           Sincerely,
                                                      Lorne Bretz,
                                               Plan Administrator.

  Ms. MURKOWSKI. The city of Anchorage is the largest city in Alaska. 
We received this letter last week. In the letter, they cite 
specifically three provisions in the bill that are of particular 
concern--No. 1, inclusion of health care benefits as taxable income to 
employees.
  It states:

       Not only will this increase the employee's taxable income 
     but the [Municipality of Anchorage's] payroll tax will also 
     increase.

  The second point is the taxation of the municipality's health care 
plans.

       This tax will be imposed on the employer. The current 
     [municipality] health plan design is apt to be considered to 
     have ``an excess benefit.'' This would make it subject to a 
     40% excise tax.

  They go on to say:

       There is also an aggregation rule for the value of employee 
     coverage with multiple employers or retiree medical. If a 
     retiree would purchase [the municipality's] Health Insurance 
     that is considered excessive, the 40% excise tax would be 
     incurred.
       One may argue that the tax is a tax to the employer. The 
     argument can also be made that the Trust is an integral part 
     of the Municipality. Thus the tax would be payable from the 
     Trust general fund assets.

  Their third point is:

       Current municipal employees are able to be reimbursed tax 
     free from money they have placed in their flexible spending 
     account for over the counter medicine. Retired police 
     officers and firefighters also currently are allowed this 
     reimbursement as part of their medical benefit. Under the 
     rules of this bill, these reimbursements would no longer be 
     allowed. This is a reduction in employee benefits. It is also 
     likely to encourage an increase [in] the utilization of more 
     expensive non-OTC prescriptions, as they are a covered 
     expense.

  There are about 400 members that are part of the Police and Fire 
Retiree Medical Trust. When they find out, as I am sure they will, that 
essentially they are going to be taxed on their plan--I think most of 
these firefighters and police officers don't view themselves as having 
access to a Cadillac plan. They are just firefighters and police 
officers. But this is coming from their trust fund, expressing great 
concern over what we have in front of us.
  I have mentioned that we have received a copy of an opinion piece 
from a primary care provider in Anchorage who has outlined why she is 
opting out of the Medicare system in Alaska.
  I ask unanimous consent to have her letter printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             [From the Anchorage Daily News, Dec. 18, 2009]

           Opinion: Doctors and Patients, Not Feds, Know Best

                         (By Ilona Farr, M.D.)

       I have made the heart-wrenching decision as a physician to 
     opt out of Medicare. I do so after working with Sen. Stevens, 
     Sen. Murkowski and Rep. Young for a decade in hopes we could 
     ensure seniors would be able to continue to receive medical 
     services in Alaska.
       On a visit costing $115, Medicare pays $40, secondary 
     insurance pays $7, and the rest--$68--is a loss, not a tax 
     write-off. It takes six insurance paying patient visits to 
     offset losses from one Medicare or Medicaid patient.
       The House health care bills, HR3590/HR3962, increase the 
     number of people not paying their share of the costs and will 
     lead doctors to opt out of Medicare or retire early.
       Anchorage has 75 family physicians, down from 180. 
     Physician shortages like these are caused by government 
     interference in the free market. Government artificially 
     keeps reimbursement rates low, forcing other patients, and 
     insurance companies, to pick up the additional costs. Family 
     practice residencies are filled with foreign medical 
     graduates because of high costs (more than $200,000) 
     associated with medical school. Low physician reimbursement 
     rates make it difficult to repay loans.
       Medicare and Medicaid auditors are paid on commission, can 
     fine us $2,000 to $50,000 for one charting mistake or billing 
     error, and then extrapolate this over the practice and drive 
     us out of business . . . all for one minor mistake. There is 
     fraud, but this system that penalizes us severely for simple 
     errors is untenable.
       In these bills malpractice reform is restricted, health 
     savings accounts (which help reduce costs and fraud) are 
     essentially eliminated, and taxes and fees on insurance and 
     medical services are increased. There are no Medicare/
     Medicaid rate, rule, or audit reforms, or tax write-offs for 
     business losses.
       One section in Sen. Harry Reid's bill says Medicare will no 
     longer pay for home health services, durable medical goods, 
     and possibly labs, X-rays, prescriptions or other services 
     written by providers who have opted out of Medicare. Many 
     talented physicians have had to opt out of Medicare (and by 
     this law must opt out of Medicaid and the military's Tricare 
     also) to stay in business. People will no longer be able to 
     see these physicians because of government financial 
     restrictions or will be forced to pay all medical bills 
     associated with these visits themselves.
       Bills under consideration cut Medicare spending by $460 
     billion, raise fees on medical services, increase physicians' 
     administrative burdens, promote electronic medical records 
     with mandated reporting of outcomes data, and increase 
     business costs so it will be impossible for small practices 
     to survive.
       My decision to withdraw from Medicare was also precipitated 
     by U.S. Preventive Services Task Force's recommendation that 
     breast cancer screening mammograms should only be done on 
     women between age 50 and 74. Approximately 48 percent of my 
     patients with breast cancer developed it before age 50. Up to 
     1.2 percent of my practice, mostly young mothers, could have 
     died if this were a national guideline.
       The Senate bill has this task force and other committees 
     determining what tests will be covered for patients. I am 
     concerned that penalties may be imposed on insurance 
     companies, and maybe providers, for going against these 
     guidelines. The Hippocratic Oath compels us to protect the 
     health of all humans throughout life, and many provisions in 
     these health care bills would cause us to violate that oath.
       Physicians and patients (not government) should decide the 
     best, most cost-effective medical treatment for patients. 
     Government should not dictate to insurance companies or 
     providers which tests can or cannot be covered. Medicine is 
     changing too rapidly for guidelines to be made at a national 
     level.
       I have worked in government medical facilities and in 
     private practice for the last 26 years. Physicians provide 
     timelier, less costly and more patient-oriented care if not 
     overseen by hordes of non-producing government 
     administrators.
       I am in favor of reform, but current bills before Congress 
     will collapse our health care system and work against the 
     freedoms we are guaranteed under the Constitution. Government 
     should not be allowed to force people to purchase health 
     insurance, mandate what health care services you are allowed, 
     or increase our taxes astronomically to support a huge 
     government health care bureaucracy that will bankrupt us as 
     individuals and as a nation.

  Ms. MURKOWSKI. One of the things we don't have in this legislation is 
a provision that relates to medical malpractice. It has been stated 
that, in Alaska, you tried medical malpractice reform and we haven't 
seen the positive impacts.
  I ask unanimous consent to have printed in the Record a statement 
from the Alaska State Medical Association, along with an article that 
was published in Alaska Medicine in September of 2009 entitled 
``Malpractice Relief, Lower Premiums, Tort Reform Add to Alaska's 
Appeal.''
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

[[Page S13775]]

         Alaska Physicians' Group: Senator Erred on Tort Reform

       Anchorage, Alaska (Dec. 21, 2009)--The Alaska State Medical 
     Association (ASMA), which represents physicians throughout 
     Alaska and is primarily concerned with the health of all 
     Alaskans, is taking issue with Sen. Mark Begich's stance on 
     medical liability reform.
       In an interview with Fox News on Dec. 7, 2009, Alaska's 
     junior senator opined that tort reform in his home state has 
     not worked. ASMA asserts that Begich did not accurately 
     portray the facts in that nationally broadcast interview and 
     that medical liability reform in Alaska serves as a shining 
     example for the other 49 states.
       ``Alaska's physicians have worked hard for at least the 
     last 35 years to achieve meaningful and equitable liability 
     reform measures,'' ASMA President Brion J. Beerle, MD, wrote 
     today in a letter to Sen. Begich. ``Those efforts have 
     resulted in a stable marketplace for insurers that provide 
     medical professional liability coverage to Alaska's 
     physicians at rates that are competitive.''
       More than 90% of medical liability coverage in Alaska is 
     provided by two, not-for-profit insurers--MIEC and NORCAL--
     that are owned by their policyholders (mutual insurers) and 
     overseen by boards of governors, all of whom are physicians, 
     with representation on those boards by Alaska physicians.
       ``The cumulative result of the Alaska physicians'' advocacy 
     has been a success for physicians and their patients,'' 
     Beerle wrote. ``For example, according to the Medical 
     Liability Monitor Survey, 2008 premiums paid by Alaska's 
     internists average just 24% of those paid by the interests in 
     the five most expensive states; general surgeons pay about 
     25%; and obstetricians/gynecologists pay about 31%. According 
     to that same 2008 survey, the premiums for those same 
     specialties are in the lowest quartile of all states plus the 
     District of Columbia.
       ``MIEC also has returned excess earnings to its 
     policyholders in 16 of the last 19 years; and NORCAL 
     policyholders received dividends in 12 of the last 18 years. 
     MIEC has, in addition, reduced its rates by 5% in 2009 and 
     also for 2010,'' the ASMA president added.
       Writing on behalf of the association he leads, Beerle noted 
     that because of tort reform, premiums Alaska's physicians pay 
     for liability coverage is generally not significant in the 
     cost of operating a medical practice.
       ``The factor that does have a material effect is the cost 
     of practicing defensive medicine,'' he wrote.
       The American Medical Association has estimated that the 
     annual cost of the practice of defensive medicine in the 
     United States ranges from $99 billion to $179 billion.
       ``Until medical liability reforms similar to those enacted 
     in Alaska are adopted nationwide, the additional costs of the 
     practice of defensive medicine will continue to be a driver 
     in the cost of health care in Alaska and throughout the 
     country,'' Beerle concluded.
                                  ____


                   [From Alaska Medicine, Sept. 2009]

                           Malpractice Relief

                   (By Andrew Firth and Roger Holmes)

       It is seemingly a universal truth that wherever one 
     practices in the United States, malpractice insurance costs 
     too much. But in Alaska, the average medical malpractice 
     premiums are lower than at least 35 other states, a national 
     survey shows.
       Physicians in Alaska pay much less than their colleagues in 
     the nation's five most costly states, according to the 
     Medical Liability Monitor Survey, 2008. Premiums paid by 
     Alaska's internists average 24 percent of those paid by 
     internists in the five highest states; surgeons here pay 
     roughly 25 percent, and obstetrician/gynecologists pay about 
     31 percent. (The top five states vary by specialty.) Some of 
     the difference in cost may be societal, but part of it has to 
     do with the tort reforms that have passed, or not passed, in 
     each state.
       In Alaska, our history is similar to many states where the 
     costs are lower. It's a state with an active medical society 
     (the Alaska State Medical Association), an engaged 
     membership, a broad coalition of providers and an enlightened 
     legislative body that recognizes the connection between 
     malpractice costs and access to care.
       In 1975, Alaskan physicians suddenly were confronted with a 
     disappearing market for medical malpractice insurance. The 
     Legislature stepped in and created the Medical Indemnity 
     Corporation of Alaska (MICA), a quasi-state agency funded 
     with state money but run by a private board of directors 
     appointed by the governor. At the same time, the Legislature 
     modified the law governing medical malpractice claims. Among 
     the key changes:
       The burden of proof was codified, making it clear that a 
     practitioner could only be judged against those in the same 
     field or specialty.
       Res ipso loquitur, a legal doctrine that switched the 
     burden of proof to the health-care provider in certain 
     instances, was abolished.
       The law required that juries be told that injury alone does 
     not raise a presumption of negligence or misconduct.
       Plaintiffs were prohibited from filing inflammatory 
     pleadings asking for millions of dollars.
       The law of informed consent was codified.
       The law prohibited claims that a health-care provider had 
     orally agreed to achieve a specific medical result.
       Plaintiffs were prohibited from obtaining a recovery for 
     sums that had been paid by collateral sources, except for a 
     select few federal programs that must, by law, seek 
     reimbursement.
       During the 1970s and '80s physicians encountered rising and 
     falling malpractice costs as the insurance cycle reacted to 
     changing claim experience in Alaska and elsewhere, 
     culminating in the departure of several medical professional 
     liability (MPL) insurers in the late 1990s.
       In the mid-1990s, the Alaska State Medical Association and 
     several MPL insurers joined with the Alaska State Hospital 
     and Nursing Home Association, Providence Hospital and the 
     business community to press for additional tort reforms. The 
     result was the 1997 Tort Reform Act.
       Among its achievements was a cap on non-economic damages of 
     $400,000 except in cases of severe disfigurement or severe 
     permanent impairment, in which the cap rises to $1 million.
       Punitive damages were limited, and the standards for 
     awarding them were tightened. Prejudgment interest was tied 
     to the federal discount rate--Alaska's current rate is 3.25 
     percent. Joint and several liability was abolished in favor 
     of comparative fault, in which each party is responsible only 
     for its percentage share of the total fault. And parties were 
     prohibited from using experts in medical malpractice cases 
     unless the expert is licensed, trained and experienced in the 
     same discipline or school of practice as the physician and 
     certified by a recognized board.
       A coalition called Alaskans for Access to Health Care--
     comprising ASMA, Alaska Physicians & Surgeons, the hospital 
     association and Providence--went back to the Legislature in 
     2005 and argued for an even lower non-economic damage cap for 
     health-care providers. The result was a limit of $250,000 in 
     all cases except when damages are awarded for wrongful death 
     or a severe permanent physical impairment that is more that 
     70 percent disabling. For those, the limit is $400,000.
       Since then, Alaska has enjoyed a stable malpractice 
     climate, with both of its major insurance carriers reducing 
     rates and/or returning profits through dividend 
     distributions.
       The caps make a big difference. For example, NORCAL Mutual, 
     which writes policies in Alaska and California, also does 
     business in Rhode Island, which does not limit non-economic 
     damages in malpractice cases.
       ``Most rates for physicians with at least three years' 
     practice experience (mature rates) in Rhode Island are at 
     least double the mature rates for physicians in Alaska,'' 
     NORCAL Marketing and Communications Manager Brent Samodurov 
     wrote in an e-mail to Alaska Medicine. ``For several medical 
     specialties NORCAL Mutual's rates for Rhode Island are nearly 
     triple those for Alaska.''


                              MPL carriers

       There are two major MPL insurers in Alaska: MIEC and 
     NORCAL. Both companies are owned by their policyholders 
     (mutual insurers) and are overseen by a board of governors 
     consisting of physicians.
       MIEC came to Alaska in 1978 and is sponsored by ASMA. 
     NORCAL became active in 1991 after it purchased MICA.
       According to data published by the National Association of 
     Insurance Commissioners, MIEC wrote 69.7 percent of all 
     medical malpractice premiums for physicians in the state 
     during 2008 and NORCAL wrote 23.4 percent. Ten other carriers 
     shared the remaining 6.9 percent of the market.
       Typical of these types of policyholder-owned companies, 
     both MIEC and NORCAL have a long history of returning profits 
     to policyholders through dividend distributions:
       NORCAL's Alaska clients have received dividends in 12 of 
     the past 18 years, the most recent amounting to 12 percent of 
     each eligible policyholder's premium as of Sept. 30, 2008, 
     according to Samodurov. He noted: ``Dividends declared are 
     directly related to the company's loss experience in each 
     state.''
       MIEC has a similar record of returning profits to its 
     Alaska members. MIEC policyholders have received dividends in 
     16 of the past 19 years in amounts that average 28.8 percent 
     of basic premiums (for $1 million/$3 million limits) in each 
     one of the past 19 years.

  Ms. MURKOWSKI. The bottom line is from the Alaska State Medical 
Association:

       The cumulative result of Alaska physicians' advocacy has 
     been a success for physicians and their patients.

  Again, we have seen the positive impact in Alaska because of the laws 
we have passed. It is unfortunate that we didn't take that opportunity 
as we dealt with health care reform these past many months.
  I yield the floor.

                               Exhibit 1

                                                December 21, 2009.
     U.S. Senate,
     Washington, DC.
       Dear Senator: We are writing to express our strong 
     opposition to language contained in the Manager's Amendment 
     to H.R. 3590, which excludes the construction industry from 
     the small business exemption contained in the bill. We regret 
     that this is our first opportunity to address this issue, 
     though the

[[Page S13776]]

     fact that the Manager's Amendment was made public less than 
     two days before the first vote on the matter has increased 
     the difficulty of playing a constructive role in the 
     legislative process.
       In recognition of the negative impact that a mandate to 
     provide health insurance will have on employers, H.R. 3590 
     exempts employers with fewer than 50 employees from the fines 
     levied on those who cannot afford to provide their employees 
     with the federal minimum standard of health insurance. 
     However, the Manager's Amendment singles out the construction 
     industry by altering the exemption so that it applies to only 
     those firms with fewer than 5 employees.
       This narrowly focused provision is an unprecedented assault 
     on our industry, and the men and women who every day make the 
     bold decision to strike out on their own by starting a 
     business. Our members' benefit packages reflect the reality 
     of their business models, and they proudly offer the best 
     health insurance coverage that they can afford. It is 
     unreasonable to presume that small business owners can bear 
     the increased cost of these new benefits simply because 
     Congress mandates that they do so.
       In the real world, where the rhetoric surrounding this 
     legislation will meet the stark reality of the employer 
     struggling to make payroll, this special interest carve out 
     is simply another bill to pay in an industry that, with an 
     unemployment rate exceeding 18% and more than $200 billion in 
     economic activity lost in the past year, already is 
     struggling to survive.
       And, we would be remiss if we failed to question the 
     justification for singling out the construction industry to 
     bear such a burden. We are unaware of any data or evidence 
     that suggests that the needs and struggles of a construction 
     contractor with fewer than 50 employees are so different from 
     those of small business owners in other industries, and 
     absent such convincing evidence, we are left to assume that 
     this specific provision is merely a political payoff to 
     satisfy the desires of a small constituency.
       As Congress moves forward in the legislative process for 
     H.R. 3590, we strongly encourage you to address this onerous 
     provision that needlessly singles out small construction 
     industry employers.
           Sincerely,
       Air Conditioning Contractors of America, American Institute 
     of Architects, Associated Builders and Contractors, 
     Associated Equipment Distributors, Associated General 
     Contractors, Association of Equipment Manufacturers, 
     Independent Electrical Contractors, National Association of 
     Home Builders. National Federation of Independent Business, 
     National Lumber and Building Material Dealers Association, 
     National Ready-Mixed Concrete Association, National Roofing 
     Contractors Association, National Utility Contractors 
     Association, Plumbing-Heating-Cooling Contractors-National 
     Association, Small Business & Entrepreneurship Council, U.S. 
     Chamber of Commerce.

  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. BROWNBACK. Madam President, I am glad to join my colleagues in 
talking about the health care bill. If you looked in the New York Times 
today, there was a full-page ad describing the bill. I am putting it up 
here, the same thing that was in the New York Times today. It starts 
with the question, I want to receive care from my doctor. This, on one 
page, puts the 2,600 pages in kind of what you are going to see with 
this bill. It is convoluted. It is difficult. It is expensive. This is 
what you are going to get. This was in the New York Times today. This 
is where I sit or this is what is going to happen to me in this overall 
system. It is no wonder the American public doesn't want this. They are 
not excited about this. They are not excited about what it is going to 
do to the budget--$2.5 trillion. That is about $700 million a day, if 
you are counting in millions a day as one way to look at it.
  There are some interesting things hidden within the bill. One of the 
things I want to point out is the transfer of wealth from young people 
to old. One of the things that has really bugged me about what we have 
done in so many of the government systems here--it has been a wealth 
transfer from younger people to older.
  Several of my children are students and working part-time jobs, and 
they are paying payroll taxes. They say: What is this payroll tax going 
to? I say: Well, talk to your grandparents and tell them to say thank 
you to you. These are funds collected that are going to pay for their 
retirement funds. They do, and the grandparents say thank you. But it 
doesn't seem to be satisfying to them because they are saying: Why 
aren't I putting this in something I am saving money for me so that I 
can have something later on instead of this sort of, OK, I am paying 
and they are getting. What is going to be there when I get there?
  That sort of wealth transfer from young people to old people 
continues in this bill. Look at this wealth transfer. Younger workers 
will pay more for health insurance premiums so that older workers can 
pay less. Their cost at age 25 will go up 25 percent for health 
insurance premiums. If you are 64, it will go down 20 percent for 
health care. This is another one of the wealth transfers that take 
place. It isn't right. It is taking from the kids. It is taking from 
the grandkids. It should not be continued. It is continued in this 
bill.
  You can look at it another way: Subsidies in this bill go 
disproportionately to older Americans. Average subsidies for the 55-
year-olds are nearly 10 times that of a 25-year-old. A 25-year-old gets 
a subsidy of $458, a 55-year-old gets a subsidy of $4,427--another 
wealth transfer from younger to older.
  Then you can look at the claims in this bill that there are going to 
be tax cuts for the middle class. That is if you are in the lucky 
group. For every low-to-middle-income family with a tax cut, three low-
to-middle-income families have a tax increase in this bill by the 
structure of this bill, by this structure, this convoluted, difficult-
to-navigate, hard-to-understand, expensive, $2.5 trillion structure.
  That is where we stand. Likely to pass this body and then go to the 
House of Representatives where there is a major issue that is still 
brewing, difficult, and must be dealt with, and that is the issue of 
public funding of abortion that is in this bill.
  If you want to cut some of the cost out of this thing, why don't you 
take some of those expenses out of this. That would be one way to cut 
back some of the expenses. But in the House bill, they included Stupak 
language which continued the Hyde tradition and law of the land that 
the government will not pay for abortions other than cases of rape, 
incest, and life of the mother. Except now buried in the Senate bill, 
in the Reid amendment, is the public funding of abortion, which we 
haven't done for years.
  Yesterday I talked to both Congressman Stupak and Senator Nelson. 
They both agree that the Stupak language is far superior. It doesn't 
publicly fund abortions, whereas what is in this bill now does. You 
don't need to take my word. Here is what others have said. The U.S. 
Conference of Catholic Bishops, who want a health care bill but are 
opposed to the public funding of abortion and opposed to abortion, say:

       The bill is morally unacceptable unless and until it 
     complies with longstanding current laws on abortion funding 
     such as the Hyde amendment.

  We voted on this floor for the Nelson-Hatch amendment which is now 
not in the bill.
  You don't have to take that. You can take Bart Stupak, Democrat from 
Michigan, who voted for the bill in the House. He says:

       It is now not acceptable. A dramatic shift in Federal 
     policy that would allow the Federal Government to subsidize 
     insurance policies with abortion coverage.

  The American public doesn't want that either. The latest poll of 
December 22 shows that 72 percent of Americans oppose using any public 
money in the health care overhaul to pay for abortion, including 54 
percent of Democrats and 74 percent of Independents. That is where they 
are. That is where the public is.
  National Right to Life, which is the gold standard on standing up for 
life, says:

       The Reid managers amendment requires that all enrollees in 
     an abortion covering plan make a separate payment into an 
     account that will pay for abortions. The bill also contains 
     language that is intended to prevent or discourage any 
     insurer from explaining what this surcharge is to be used 
     for. Moreover, there is nothing in the language to suggest 
     that payment of the abortion charge is optional for any 
     enrollee.

  This base bill has another thing in it: It takes the individual opt-
out and moves to it a State opt-out. So while let's say Kansas may opt 
out of the abortion funding in the bill, they still have to pay their 
taxes that go to another State to pay for abortions there which are 
equally offensive to my people or other States that don't want to see 
this funding take place.
  It doesn't address the issue of having preventive services include 
abortion. There was discussion that we are not going to include 
preventive services in it, but that is not in the language. There was 
discussion. We tried an amendment. That is not there. It can still be 
defined. Now it may ultimately

[[Page S13777]]

unwind the entire bill based upon the funding of abortion that is in 
the Senate bill. It will be up to House Members, a number of whom are 
very concerned and quite fired up about this particular piece, to take 
this out. I know Congressman Stupak is working to do that, wants to see 
that done, agrees with Senator Nelson that his language is far 
superior, actually does that. It is supported by the Catholic Bishops, 
the National Right to Life, and other pro-life groups that say the way 
to go is the Stupak language.
  It is not what is in the Senate bill. The Senate bill will actually 
fund abortions. Then we go through the specifics, as I have in here, of 
the various places that it has. I met with Senator Nelson about those 
specifics. I have addressed a number of those concerns. I know he 
continues to work on it, but at the end of the day this is one of those 
babies you cannot split. You need to have the Stupak language in this 
bill. I am afraid at the end of the day that is not going to be in 
there. I know Congressman Stupak is pushing very hard for its 
inclusion, and I wish him all the best.
  If this legislation passes this body, it is going to be up to the 
House of Representatives to put in that Stupak language. And they can 
do it. It is my hope they will do it. I do not think the overall bill 
should be passed, but certainly you should not have this piece of 
funding in this bill, in breaking the longstanding work we have had in 
the Hyde agreement, in the Hyde language.
  Thank you very much, Madam President. How much time do we have 
remaining on our side?
  The PRESIDING OFFICER. One minute.
  Mr. BROWNBACK. Madam President, in that concluding minute, what I 
would like to briefly speak about is the overall process.
  I think there are people in this body who did not want to include 
things such as abortion funding in the bill. But when you operate in a 
closed process like this, these sorts of things end up happening 
because the people who work on these issues are excluded. I certainly 
was not consulted. I am not saying anyone said: Well, look, we are not 
going to get your vote anyway, so we do not need to have it. But if you 
do not want to have abortion funding in it, one should look past that 
and say: Let's get the people who understand and work on this issue--
and we agree, we should not have it in there; that is what President 
Obama said; it should not be in there--and let's see what language 
passes by their muster.
  That was not done. Unfortunately, that is part of what has happened 
in this process. I think it is tragic that it has happened that way in 
this process. I think it is wrong. I think it builds a bill that then 
people are not satisfied with, and certainly a process they do not 
agree with that takes place in this overall bill.
  It is still not too late. There is still time to address these 
issues, now that we have the bill to be able to look at. If people of 
good faith on the other side want to get these addressed, there are 
ways, and we have the language on how to address it. It is called the 
Stupak language. It has already passed the House of Representatives. It 
is called the Nelson-Hatch amendment that was debated here, although it 
was not passed. We can do that. It is important that it get done.
  This bill is not supported by the American public, and particularly 
this funding piece that is so offensive to so many Americans. We can 
debate about abortion, but the government should not be funding it, and 
that is agreed to by over 70 percent of the American public.
  I just ask my colleagues on the other side, as you move on forward 
with this--if this bill passes here--take this piece out. We know what 
language is agreed to and works. This piece can be taken out. It can be 
taken out yet. And I think the whole bill may unwind if it is not taken 
out--unwind because of a number of Democrats who voted for the bill on 
the House side who want the Stupak language, and they do not want the 
inferior language that was put in on the Senate side that will actually 
allow and start the funding of abortion, that we have not done for 30 
years.
  Madam President, I thank my colleagues and yield the floor.
  Mr. GRASSLEY. Madam President, My Friend, Senator Casey, just a few 
moments ago repeated the frequent claim made by members on the other 
side of the aisle that the health care bill provides a $40 billion net 
tax cut.
  As I demonstrated in a speech earlier today, this claim is inaccurate 
and does nothing to address the fact that millions of middle-class 
Americans will see a tax increase.
  I have consistently given my Democratic friends credit for providing 
a significant benefit to help people buy insurance.
  This beneficiary class, however, is small.
  At the same time there are 78 million individuals, families, and 
single parents who will see a tax increase.
  Seventy-three million of them are below $200,000.
  It is only because the subsidy for this small group is so large--and 
refundable--that there is a net tax benefit.
  For example, the average subsidy is close to $8,000. Around 13.2 
million individuals and families receive this subsidy.
  But the data also shows that there is a group of 73 million middle-
class Americans who will pay on average $710 more in taxes.
  My Democratic colleagues want to say that since the cost of providing 
an average tax benefit of $8,000 to 13.2 million individuals and 
families is greater than the revenue raised by raising the taxes on 73 
million individuals and families by $710 there is a net tax decrease.
  The truth is individuals who are seeing a tax increase are not 
actually benefiting from the very large subsidy. This is because, in 
general, this group isn't even eligible for the subsidy.
  It comes back to this: a small group of Americans benefit under this 
bill. Another group of Americans pay higher taxes. These Americans 
include middle-income individuals and families.
  Mr. HATCH. Madam President, I rise to speak on my amendment to the 
Reid health care bill that would add an expedited judicial review 
provision to the legislation. It would provide a mechanism for the 
courts expeditiously to handle any future constitutional challenges to 
this legislation.
  Make no mistake. I strongly oppose this Federal takeover of our 
health care system. I do so for a host of important and serious policy 
reasons. I believe it is bad for our country, but I also oppose it 
because I believe some of its core provisions are unconstitutional, 
undermining the Constitution and the liberty that it makes possible.
  I have argued for months that the constitutional problems with this 
legislation include the requirement that individuals obtain a certain 
level of health insurance and the differential State-by-State taxation 
of high cost insurance plans. Other scholars and commentators have 
argued that restrictions on the ability of insurance providers to make 
risk-adjusted decisions about coverage and premiums amount to a taking 
of private property in violation of the fifth amendment. Others have 
said that requiring States to pass legislation creating health benefit 
exchanges exceeds Congress's power in our Federal-State system.
  I do not necessarily believe that each of these constitutional 
arguments is as substantive or as persuasive as the next. Some may 
agree with this one or that one, all of them, or none at all. These and 
other arguments, however, are real, substantive, and many of them are 
as yet untested by the courts because this legislation goes so far 
beyond anything the Federal Government has ever attempted. These and 
other issues very well may be the basis for litigation against this 
legislation. Therefore, I think it is in everyone's interest to provide 
a mechanism for future constitutional challenges to be handled 
expeditiously by the courts.
  The supporters of this legislation, those who are so confident that 
no conceivable constitutional argument has any merit whatsoever, should 
be the strongest supporters of this amendment. More than anyone, they 
would want to eliminate as quickly as possible anything that could 
delay or prevent full implementation of this legislation. Frankly, I am 
surprised that they are not the ones offering this amendment and I hope 
they will support it.
  Madam President, I now wish to speak about my amendment No. 3294. My 
amendment would ensure that all Americans would be able to keep the 
health care coverage they already have.

[[Page S13778]]

  My amendment is simple. If adopted, it would ensure that the 
implementation of the Democrat's health care bill shall be conditioned 
on the Secretary of Health and Human Services certifying to Congress 
that this legislation would not cause more than 1,000,000 Americans to 
see higher premiums as compared to projections under current law.
  This amendment would ensure that this $2.5 trillion tax-and-spend 
bill would not go into effect if the Secretary of Health and Human 
Services finds that it would actually raise health insurance premiums 
for more than 1 million Americans compared to projections under current 
law contrary to the promise made by President Obama that health care 
reform would result in average savings of $2,500 per family.
  One of the major reasons for enacting health care reform is to ensure 
that we control rising health care costs that continue to put 
increasing pressure on American families and small businesses. However, 
according to the nonpartisan Congressional Budget Office, the premiums 
under this bill would actually rise for Americans purchasing insurance 
on their own by as much as 13 percent and will continue to rise at 
double the rate of inflation for both the small group and large group 
markets.
  Spending $2.5 trillion of hard-earned taxpayer dollars on a system 
that already spends almost $2.2 trillion a year without any impact on 
controlling health care premiums should be unacceptable to every 
American.
  Madam President, I also wish to speak to my amendment No. 3296 to 
H.R. 3590, the health care reform legislation. This amendment isn't 
complicated. It would prevent the provisions of the bill from taking 
effect in the event that it imposes unfunded mandates on the States. As 
we all know, this legislation imposes significant new burdens on the 
States and the proposed funding for this program is, in some cases, 
likely to fall short. Simply put, the Congress should not impose upon 
the States new Federal policy requirements without ensuring they are 
adequately reimbursed. In the event that Congress does not provide full 
funding for these programs, my amendment would ensure that none of the 
new mandates will be binding on the States.


                    medicaid pharmacy reimbursement

  Mrs. LINCOLN. I would like to engage my colleague, the distinguished 
Senate Finance Committee chairman, in a short colloquy regarding the 
Medicaid pharmacy reimbursement provisions in the Senate health care 
reform bill.
  Mr. BAUCUS. I would be happy to engage Senator Lincoln in a colloquy. 
I commend her for all her leadership over the years on this issue, 
because she recognizes that it is important to reimburse pharmacies 
adequately for the generic medications they dispense to Medicaid 
patients. In rural States like ours, Medicaid patients need access to 
their community pharmacies to obtain their medications. Sometimes 
community pharmacies are the only health care providers for many miles. 
So, it is important that we permanently fix in this health care reform 
bill the problems for pharmacies caused by the severe reimbursement 
cuts from the Deficit Reduction Act of 2005.
  Mrs. LINCOLN. I thank my colleague and agree with him. That is why I 
ask him the purpose behind the language in the bill that would 
establish the Federal upper limit for generics at no less than 175 
percent of the weighted-average average manufacturer price. I know this 
amount is less than the chairman originally proposed in the Medicaid 
Fair Drug Payment Act from last Congress, which I cosponsored. However, 
in what cases would it be the intent of the intent of the chairman that 
the Federal upper limit would be set at more than 175 percent? I am 
particularly concerned about my small independent pharmacies in 
Arkansas that fill a significant number of Medicaid prescriptions. 
Would it be the intent to set a higher rate for these pharmacies? Would 
it be the intent to set a higher rate for generics that might be in 
short supply or for which there are availability problems to encourage 
more manufacturers to make them?
  Mr. BAUCUS. I would say to my colleague that the language indicating 
that the Secretary could set the Federal upper limit at no less than 
175 percent the weighted average average manufacturer price could be 
used in those types of circumstances. It would give the Secretary 
flexibility to set the Federal upper limits in cases where there is a 
need to provide states with a higher match in order to assure that 
appropriate payment is made to pharmacies to encourage the use of 
generic drugs.
  Mrs. LINCOLN. I thank the chairman for his insights into this 
provision and his work on behalf of our Nation's community pharmacies.


                      WISCONSIN'S MEDICAID PROGRAM

  Mr. KOHL. Madam President, I rise to discuss language in the Reid 
substitute amendment to H.R. 3590 that would have a dramatic effect on 
Wisconsin's Medicaid Program. I would like to converse about this with 
two of my distinguished colleagues--the other Senator from my home 
State of Wisconsin, Senator Feingold, and Senator Baucus, chairman of 
the Senate Finance Committee.
  I commend Senator Baucus's long and hard work in crafting this 
historical piece of legislation, and today, I seek clarification of one 
piece of this bill.
  Mr. FEINGOLD. I also seek clarification of this piece of the Patient 
Protection and Affordable Care Act, specifically in section 2001, 
regarding the definition of individuals that would be considered newly 
eligible under Medicaid.
  Mr. BAUCUS. I thank the Senator. I would be pleased to enter into a 
colloquy with the Senators from Wisconsin on this subject.
  Mr. KOHL. I thank the Senator. Section 2001 of the legislation 
describes which individuals in each State will be deemed ``newly 
eligible'' for Medicaid. It is my understanding that the Federal 
Government will provide 100 percent of the funds to cover this group of 
newly eligibles from 2014 to 2016 and that States will be provided with 
their current law FMAP rates, which are below 100 percent, for 
individuals already covered. Is this correct?
  Mr. BAUCUS. I thank the Senator for the question. Yes, that is 
correct, and it is my understanding of the legislation as well.
  Mr. FEINGOLD. I thank the Senator. As the Senator knows, to be 
considered ``newly eligible'' under this bill, individuals must not be 
eligible under the State plan or under a waiver of the plan for full 
benefits or for benchmark coverage as described in section 1937 of the 
Social Security Act. Two of the benefits that must be incorporated into 
benchmark coverage under section 1937 of the Social Security Act are 
mental health and substance use disorder services, and prescription 
drug coverage. If these two benefits are not offered at all, then the 
coverage will not count as benchmark coverage.
  Mr. KOHL. As my two colleagues are aware, Wisconsin currently 
provides coverage for a number of individuals under a Medicaid waiver, 
but this coverage does not meet the requirements for benchmark or 
benchmark-equivalent coverage under the Social Security Act. The 
Centers for Medicare & Medicaid Services, the Federal agency that 
oversees Medicaid, has confirmed this for us. Senator Feingold and I 
understand that, because of this, the individuals in Wisconsin who do 
not receive benchmark or benchmark-equivalent coverage will be 
considered newly eligible, and therefore Wisconsin will receive 100 
percent Federal funds for those individuals in 2014, 2015, and 2016. Is 
this the Senator's understanding of the legislation as well?
  Mr. BAUCUS. Yes. I thank the Senator.

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