[Congressional Record Volume 156, Number 6 (Wednesday, January 20, 2010)]
[Senate]
[Pages S36-S40]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           PATIENT PROTECTION AND AFFORDABLE CARE ACT OF 2009

  Mr. COBURN. Mr. President, I ask unanimous consent that these letters 
commenting on the Patient Protection and Affordable Care Act of 2009--
the majority's ``health reform bill''--be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

  Physician Organizations That Oppose Senate's Patient Protection and 
                          Affordable Care Act

       To date 43 state, county and national medical societies, 
     representing nearly one-half million physicians, have stated 
     their public opposition to the Senate healthcare overhaul 
     bill, the Patient Protection and Affordable Care Act (H.R. 
     3590).


                     National Medical Associations

       American Academy of Cosmetic Surgery, American Academy of 
     Dermatology Association, American Academy of Facial Plastic 
     and Reconstructive Surgery, American Academy of 
     Otolaryngology Head and Neck Surgery, American Association of 
     Neurological Surgeons, American Association of Orthopaedic 
     Surgeons, American College of Obstetricians and 
     Gynecologists, American College of Osteopathic Surgeons, 
     American College of Surgeons, and American Osteopathic 
     Academy of Orthopaedics.
       American Society for Metabolic & Bariatric Surgery, 
     American Society of Anesthesiologists, American Society of 
     Breast Surgeons, American Society of Cataract and Refractive 
     Surgery, American Society of Colon and Rectal Surgeons, 
     American Society of General Surgeons, American Society of 
     Plastic Surgeons, and American Urological Association.
       Association of American Physicians and Surgeons, Coalition 
     of State Rheumatology Organizations, Congress of Neurological 
     Surgeons, Heart Rhythm Society, National Association of Spine 
     Specialists, Society for Vascular Surgeons, Society of 
     American Gastrointestinal and Endoscopic Surgeons, Society 
     for Cardiovascular Angiography and Interventions, and Society 
     of Gynecologic Oncologists.


                 State and County Medical Associations

       Medical Association of the State of Alabama, Arizona 
     Osteopathic Medical Association, California Medical 
     Association, Medical Society of Delaware, Medical Society of 
     the District of Columbia, Florida Medical Association, 
     Medical Association of Georgia, and Kansas Medical 
     Association.
       Louisiana State Medical Society, Missouri State Medical 
     Association, Nebraska Medical Association, Medical Society of 
     New Jersey, Ohio State Medical Association, South Carolina 
     Medical Association, Texas Medical Association, and 
     Westchester (NY) County Medical Society.
                                  ____

                                                 December 7, 2009.
     Hon. Harry Reid,
     Majority Leader, U.S. Senate,
     Washington, DC.
       Dear Senator Reid: The undersigned state and national 
     specialty medical societies are writing you on behalf of more 
     than 92,000 physicians in opposition to passage of the 
     ``Patient Protection and Affordable Care Act'' (H.R. 3590) 
     and to urge you to draft a more targeted bill that will 
     reform the country's flawed system for financing healthcare, 
     while preserving the best healthcare in the world. While 
     continuance of the status quo is not acceptable, the shifting 
     to the federal government of so much control over medical 
     decisions is not justified. We are therefore united in our 
     resolve to achieve health system reform that empowers 
     patients and preserves the practice of medicine--without 
     creating a huge government bureaucracy.
       H.R. 3590 creates a number of problematic provisions, 
     including:
       The bill undermines the patient-physician relationship and 
     empowers the federal government with even greater authority. 
     Under the bill, 1) employers would be required to provide 
     health insurance or face financial penalties; 2) health 
     insurance packages with government prescribed benefits will 
     be mandatory; 3) doctors would be forced to participate in 
     the flawed Physician Quality Reporting Initiative (PQRI) or 
     face penalties for nonparticipation; and 4) physicians would 
     have to comply with extensive new reporting requirements 
     related to quality improvement, case management, care 
     coordination, chronic disease management, and use of health 
     information technology.
       The bill is unsustainable from a financial standpoint. It 
     significantly expands Medicaid eligibility, shifting 
     healthcare costs to physicians who are paid below the cost of 
     delivering care and to the states that are already operating 
     under severe budget constraints. It also postpones the start 
     of subsidies for the uninsured long after the government 
     levies new user fees and new taxes to cover expanded coverage 
     and benefits. This ``back-loading'' of new spending makes the 
     long-term costs appear deceptively low.
       The government run community health insurance option 
     eventually will lead to a single-payer, government run 
     healthcare system. Despite the state opt-out provision, the 
     community health insurance option contains the same 
     liabilities (i.e. government-run healthcare) as the public 
     option that was passed by the House of Representatives. Such 
     a system will ultimately limit patient choice and put the 
     government between the doctor and the patient, interfering 
     with patient care decisions.
       Largely unchecked by Congress or the courts, the federal 
     government would have unprecedented authority to change the 
     Medicare program through the new Independent Medicare 
     Advisory Board and the new Center for Medicare & Medicaid 
     Innovation. Specifically, these entities could arbitrarily 
     reduce payments to physicians for valuable, life-saving care 
     for elderly patients, reducing treatment options in a 
     dramatic way.
       The bill is devoid of real medical liability reform 
     measures that reduce costs in proven demonstrable ways. 
     Instead, it contains a ``Sense of the Senate'' encouraging 
     states to develop and test alternatives to the current civil 
     litigation system as a way of addressing the medical 
     liability problem. Given the fact that costs remain a 
     significant concern, Congress should enact reasonable 
     measures to reduce costs. The Congressional Budget Office 
     (CBO) recently confirmed that enacting a comprehensive set of 
     tort reforms will save the federal government $54 billion 
     over 10 years. These savings could help offset increased 
     health insurance premiums (which, according to the CBO, are 
     expected to increase under the bill) or other costs of the 
     bill.
       The temporary one-year SGR ``patch'' to replace the 21.2 
     percent payment cut in 2010 with a 0.5 percent payment 
     increase fails to address the serious underlying problems 
     with the current Medicare physician payment system and 
     compounds the accumulated SGR debt, causing payment cuts of 
     nearly 25 percent in 2011. The CBO has confirmed that a 
     significant reduction in physicians' Medicare payments will 
     reduce beneficiaries' access to services.
       The excise tax on elective cosmetic medical procedures in 
     the bill will not produce the revenue projected. Experience 
     at the state level has demonstrated that this is a failed 
     policy. In addition, this provision is arbitrary, difficult 
     to administer, unfairly puts the physician in the role of tax 
     collector, and raises serious patient confidentiality issues. 
     Physicians strongly oppose the use of provider taxes or fees 
     of any kind to fund healthcare programs or to finance health 
     system reform.
       Our concerns about this legislation also extend to what is 
     not in the bill. The right to privately contract is a 
     touchstone of American freedom and liberty. Patients should 
     have the right to choose their doctor and enter into 
     agreements for the fees for those services without penalty. 
     Current Medicare patients are denied that right. By 
     guaranteeing all patients the right to privately contract 
     with their physicians, without penalty, patients will have 
     greater access to physicians and the government will have 
     budget certainty. Nothing in the Patient Protection and 
     Affordable Care Act addresses these fundamental tenets, which 
     we believe are essential components of real health system 
     reform.
       Senator Reid, we are at a critical moment in history. 
     America's physicians deliver the best medical care in the 
     world, yet the systems that have been developed to finance 
     the delivery of that care to patients have failed. With 
     congressional action upon us, we are at a crossroads. One 
     path accepts as ``necessary'' a substantial increase in 
     federal government control over how medical care is delivered 
     and financed. We believe the better path is one that allows 
     patients and physicians to take a more direct role in their 
     healthcare decisions. By encouraging patients to own their 
     health insurance policies and by allowing them to freely 
     exercise their right to privately contract with the physician 
     of their choice, healthcare decisions will be made by 
     patients and physicians and not by the government or other 
     third party payers.
       We urge you to slow down, take a step back, and change the 
     direction of current reform efforts so we get it right for 
     our patients and our profession. We have a prescription for 
     reform that will work for all Americans, and we are happy to 
     share these solutions with you to improve our nation's 
     healthcare system.
       Thank you for considering our views.
           Sincerely,
         Medical Association of the State of Alabama,
         Medical Society of Delaware,
         Medical Society of the District of Columbia,
         Florida Medical Association,
         Medical Association of Georgia,
         Kansas Medical Society,
         Louisiana State Medical Society,
         Missouri State Medical Association,
         Nebraska Medical Association,
         Medical Society of New Jersey,
         South Carolina Medical Association,
         American Academy of Cosmetic Surgery,
         American Academy of Facial Plastic and Reconstructive 
           Surgery,

[[Page S37]]

         American Association of Neurological Surgeons,
         American Society of Breast Surgeons,
         American Society of General Surgeons, and
         Congress of Neurological Surgeons.
       Past Presidents of the American Medical Association: Daniel 
     H. Johnson, Jr., MD, AMA President 1996-1997. Donald J. 
     Palmisano, MD, JD, FACS, AMA President 2003-2004. William G. 
     Plested, III, MD, FACS, AMA President 2006-2007.
                                  ____

                                                 December 1, 2009.
     Hon. Harry Reid,
     Majority Leader, U.S. Senate,
     Washington, DC.
       Dear Leader Reid: On behalf of the over 240,000 surgeons 
     and anesthesiologists we represent and the millions of 
     surgical patients we treat each year, the undersigned 19 
     organizations strongly support the need for national health 
     care reform and share the Senate's commitment to make 
     affordable quality health care more accessible to all 
     Americans. As you know, we have been working diligently and 
     in good faith with the Senate during the past year and have 
     provided input at various stages in the process of drafting 
     the Senate's health care reform bill. To this end, we have 
     reviewed the Patient Protection and Affordable Care Act of 
     2009.
       As you may recall, on November 4 our coalition sent you a 
     letter outlining a number of serious concerns that needed to 
     be addressed to ensure that any final health care reform 
     package would be built on a solid foundation in the best 
     interest of our patients. Since those concerns have not been 
     adequately addressed, as detailed below, we must oppose the 
     legislation as currently written.
       We oppose:
       Establishment and proposed implementation of an Independent 
     Medicare Advisory Board whose recommendations could become 
     law without congressional action;
       Mandatory participation in a seriously flawed Physician 
     Quality Reporting Initiative (PQRI) program with penalties 
     for non-participation;
       Budget-neutral bonus payments to primary care physicians 
     and rural general surgeons;
       Creation of a budget-neutral value-based payment modifier 
     which CMS does not have the capability to implement and 
     places the provision on an unrealistic and unachievable 
     timeline;
       Requirement that physicians pay an application fee to cover 
     a background check for participation in Medicare despite 
     already being obligated to meet considerable requirements of 
     training, licensure, and board certification;
       Relying solely on the limited recommendations of the United 
     States Preventive Services Task Force (USPSTF) in determining 
     a minimum coverage standard for preventive services and 
     associated cost-sharing protections;
       The so-called ``non-discrimination in health care'' 
     provision that would create patient confusion over greatly 
     differing levels of education, skills and training among 
     health care professionals while inappropriately interjecting 
     civil rights concepts into state scope of practice laws;
       The absence of a permanent fix to Medicare's broken 
     physician payment system and any meaningful proven medical 
     liability reforms; and
       The last-minute addition of the excise tax on elective 
     cosmetic medical procedures. This tax discriminates against 
     women and the middle class. Experience at the state level has 
     demonstrated that it is a failed policy which will not result 
     in the projected revenue. Furthermore, this provision is 
     arbitrary, difficult to administer, unfairly puts the 
     physician in the role of tax collector, and raises serious 
     patient confidentiality issues.
       This bill goes a long way towards realizing the goal of 
     expanding health insurance coverage and takes important steps 
     to improve quality and explore innovative systems for health 
     care delivery. Despite serious concerns, there are several 
     provisions in the Patient Protection and Affordable Care Act 
     of 2009 that the surgical community supports, strongly 
     believes are in the best interest of the surgical patients, 
     and should be maintained in any final package. Specifically 
     these include: health insurance market reforms, including the 
     elimination of coverage denials based on preexisting medical 
     conditions and guaranteed availability and renewability of 
     health insurance coverage; strengthening patient access to 
     emergency and trauma care by ensuring the survival of trauma 
     centers, developing regionalized systems of care to optimize 
     patient outcomes, and improving emergency care for children; 
     well-designed clinical comparative effectiveness research, 
     conducted through an independent institute and not used for 
     determining medical necessity or making coverage and payment 
     decisions or recommendations; and the exclusion of ultrasound 
     from the increase in the utilization rate for calculating the 
     payment for imaging services.
       Further, while redistribution of unused residency positions 
     to general surgery is a positive step in addressing the 
     predicted shortage in the surgical workforce, we believe that 
     the Senate should look more broadly at the issue of limits on 
     residency positions for all specialties that work in the 
     surgical setting that are also facing severe workforce 
     problems.
       Finally, we are pleased that you have accepted our 
     suggestion and removed language which would reduce payments 
     to physicians who are found to have the highest utilization 
     of resources--without regard to the acuity of the patient's 
     physical condition or the complexity of the care being 
     provided. We thank you for making this important change.
       While we must oppose the Patient Protection and Affordable 
     Care Act as currently written, the surgical coalition is 
     committed to the passage of meaningful and comprehensive 
     health care reform that is in the best interest of our 
     patients. We are committed to working with you to make 
     critical changes that are vital to ensuring that this 
     legislation is based on sound policy, and that it will have a 
     long-term positive impact on patient access to safe and 
     effective high-quality surgical care.
           Sincerely,
       American Academy of Facial Plastic and Reconstructive 
     Surgery, American Academy of Otolaryngology-Head and Neck 
     Surgery, American Association of Neurological Surgeons, 
     American Association of Orthopaedic Surgeons, American 
     College of Obstetricians and Gynecologists, American College 
     of Osteopathic Surgeons, American College of Surgeons, 
     American Osteopathic Academy of Orthopedics, American Society 
     of Anesthesiologists, American Society of Breast Surgeons, 
     American Society of Cataract and Refractive Surgery, American 
     Society of Colon and Rectal Surgeons, American Society for 
     Metabolic & Bariatric Surgery, American Society of Plastic 
     Surgeons, American Urological Association, Congress of 
     Neurological Surgeons, Society for Vascular Surgery, Society 
     of American Gastrointestinal and Endoscopic Surgeons, Society 
     of Gynecologic Oncologists.
                                  ____



                               Alliance of Specialty Medicine,

                                                 December 2, 2009.
     Hon. Harry Reid,
     Majority Leader, U.S. Senate, Washington, DC.
       Dear Majority Leader Reid: As the Alliance of Specialty 
     Medicine (Alliance), our mission is to advocate for sound 
     federal health care policy that fosters patient access to the 
     highest quality specialty care and improves timely access to 
     high quality medical care for all Americans. As patient and 
     physician advocates, the Alliance believes that true health 
     reform should be enacted through a responsible and 
     transparent process. Over the past year, the Alliance has 
     provided substantive comments on those health reform 
     provisions that concern specialty physicians and patients in 
     their care. We are extremely concerned that your substitute 
     amendment, the ``Patient Protection and Affordable Care 
     Act,'' to H.R. 3590, fails to address our previously 
     mentioned concerns. Therefore, we oppose the substitute 
     amendment in its current form. We stand ready to work with 
     you to address the issues, outlined below, that continue to 
     concern us.


                Physician Payment Update (Section 3101)

       Medicare's sustainable growth rate (SGR) formula needs to 
     be replaced with a permanent, stable mechanism for updating 
     Medicare fees to continue to assure Medicare beneficiary 
     access to high quality care. Rather than come back year after 
     year, providing a short-term fix to this large problem, we 
     must stop utilizing band-aid solutions and establish a new 
     baseline for physician reimbursement. President Obama agreed 
     with that proposal when he sent this year's budget to the 
     Congress. The cost of interim updates to the physician fee 
     schedule should not be shifted to out years, making permanent 
     SGR reform even more difficult, and costly, to achieve. 
     Already, as a result of previous interim updates, physicians 
     currently face a 21% fee reduction beginning in January 2010. 
     Medicare physician payment rates already are below market 
     rates. Therefore, any long-term solution should, at the very 
     least, recognize reasonable inflationary cost increases.


         Value-Based Physician Payment Modifier (Section 3007)

       Rather than create a stable physician payment schedule, 
     Section 3007 would dramatically alter the current payment 
     system by adding a new, untested payment modifier that would 
     redistribute Medicare payments based on quality and 
     geographic cost variation, without a more systematic review 
     of the potential consequences. While the Center for Medicare 
     and Medicaid Services (CMS) has been testing various models 
     in this area, CMS does not have the current capability to 
     implement such a proposal and no valid methodology that 
     incorporates appropriate risk adjustment factors and outcome 
     measures even exists. Furthermore, there are many reasons for 
     geographic cost variation, including differences in 
     population demographics that merit significantly more study 
     before such a measure could be implemented. Therefore, rather 
     than add stability to the physician payment mechanism, the 
     proposal would create yet more instability with an 
     unrealistic and unachievable timeline.
       CMS should be allowed to fully test models for value-based 
     payment and determine which system would achieve maximum 
     benefit before further modification of a flawed Medicare 
     physician payment formula. There is widespread agreement that 
     the current SGR process results in arbitrary and damaging 
     cuts to Medicare physician payment. We cannot achieve a 
     reliable or stable incentive for quality care by modifying 
     arbitrarily--and arbitrarily changing--reimbursement rates. 
     And because this new modifier in Section 3007 would be budget 
     neutral,

[[Page S38]]

     some providers would face the dual blow of arbitrary SGR cuts 
     and neutrality-imposed value-based purchasing cuts.


             Payment Cuts for Specialty Care (Section 5101)

       While we understand the potential need to increase the 
     payment rates of primary care physicians, many surgical and 
     specialty medicine disciplines have faced significant cuts 
     over the years while primary care fees have increased. As 
     Medicare payments have continued their steady decline over 
     the past few years, reimbursement for primary care services 
     has actually increased. For example, CMS recently approved a 
     more than $4 billion increase in the fee schedule for primary 
     care services, as well as a 37 percent increase in one key 
     code used by primary care physicians. In its March 2009 
     report, MedPAC noted that Medicare payments for primary care 
     have increased 10.6 percent between 2006 and 2009. And these 
     changes will continue in the future. Indeed, under the 2010 
     Medicare Physician Fee Schedule, reimbursement for primary 
     care physicians will increase between 2-4 percent.
       While primary care payments have been increasing, specialty 
     care payments have been decreasing. Since 1992, specialists 
     have seen significant reductions in the fees they receive for 
     procedural services. Although modest increases may have been 
     provided for physician services in recent years, they have 
     not kept up with the rate of inflation nor have all 
     physicians seen increases. In fact, many surgical services 
     were cut again in 2008 and a number of specialties are facing 
     additional cuts in 2010 as a result of changes CMS has made 
     in the fee schedule. Specialists continue to lose more ground 
     in the fees they receive for serving Medicare beneficiaries 
     while their practice costs continue to steadily rise. This is 
     particularly troubling because much of the funding for this 
     health care reform proposal already relies on cuts to 
     Medicare and to the physicians that provide those key 
     services. Additional cuts will likely result in decreased 
     patient access to critical health care services. With a 
     shortfall of 49,000 surgeons and other specialists predicted 
     by the year 2025, we can ill-afford to further exacerbate the 
     access to care problem.


           Independent Medicare Advisory Board (Section 3403)

       Congress should retain proper oversight of the process that 
     determines how services are provided under Medicare and not 
     relegate it to another entity. If the goal of a new Advisory 
     Board is to find new ways to eliminate spending in the 
     Medicare program, the end result may well be detrimental to 
     patient care for our nation's elderly. Already, Medicare 
     reimbursement rates are well below market rates for similar 
     services. And yet, the solution seems to be to further 
     ratchet down the costs, without oversight, without care to 
     ensure that our seniors receive the care that they deserve. 
     Further, the construct of the Board seems to selectively 
     exempt certain providers from its purview--placing more 
     pressure to cut Medicare in those areas under its 
     jurisdiction. There is no question we need to improve the 
     Medicare program to make it sustainable well into the future. 
     However, Medicare cannot be ``fixed'' when we do not look at 
     the whole program, but rather, chop it up and force program 
     savings into specific areas, such as provider reimbursement. 
     We certainly understand and appreciate concerns with the 
     rising costs of health care. But this is not the way to 
     approach this problem. Rather than develop a coherent 
     proposal to appropriately address the issue, the proposal 
     contained in the substitute amendment abdicates Congress' 
     fundamental responsibility and instead hopes that others can 
     develop additional solutions and then allows them to be 
     implemented. If we go forward with this process, there will 
     be myriad unintended consequences, including restricting 
     access to important interventions and services for Medicare 
     patients. You should not allow important health care 
     decisions to be made with little clinical expertise, 
     resources or oversight required to ensure that seniors are 
     not placed in jeopardy.


                Medical Liability Reform (Section 6801)

       We remain concerned that the current health care proposal 
     before us does not address our broken medical liability 
     system. Medical liability reform will help achieve health 
     system savings by reducing the incentives for defensive 
     medicine and it will also protect physicians from 
     unaffordable liability premiums. Last fall, President Obama 
     stated in the New England Journal of Medicine that he would 
     be ``open to additional measures to curb malpractice suits 
     and reduce the cost of malpractice insurance.'' Earlier 
     this year, at the American Medical Association's Annual 
     Meeting, the President also noted that we will not be able 
     to implement changes in our health care delivery system 
     that reflect best practices, incentivize excellence and 
     close cost disparities ``if doctors feel like they are 
     constantly looking over their shoulder for fear of 
     lawsuits.'' With a President that understands the need for 
     medical liability reform, we do not understand why your 
     proposal only includes a Sense of the Senate on the topic.
       We would prefer a more comprehensive approach to this dire 
     problem, such as federal medical liability reform based on 
     the California or Texas models, which include, among other 
     things, reasonable limits on non-economic damages. As you are 
     aware the Congressional Budget Office recently scored 
     comprehensive and proven medical liability reforms, similar 
     to those above, as saving the federal government $54 billion 
     over the next decade. In addition to this savings, these 
     reforms will also improve patient access to specialty care, 
     particularly in rural and underserved areas. However, at the 
     very least, we should do something in this area, and there 
     are several bipartisan proposals which we should debate, 
     consider, and then include within a comprehensive health care 
     reform package.


    Excise Tax on Certain Elective Medical Procedures (Section 9017)

       Physicians strongly oppose taxes on distinctive physician 
     services to fund health care programs or to pay for health 
     care reform and we therefore are extremely concerned by the 
     last minute addition of the tax on elective cosmetic surgery 
     and medical procedures. This is a dangerous precedent to set 
     as it places physicians in the role of tax collector, 
     compromises patient safety by encouraging individuals to 
     circumvent the tax by seeking procedures from non-medical 
     personnel or providers in other countries, and jeopardizes 
     patient privacy by opening physician practices up to IRS 
     audits. Furthermore, once in place, we fear that this tax 
     could easily be expanded to other health care services. As 
     demonstrated by New Jersey's experience with a similar tax, 
     the application of such a tax is arbitrary and confusing to 
     administer.


       Provisions Important to Maintain in Any Health Care Reform

       We applaud many of the provisions in your substitute 
     amendment that improve access to health insurance and believe 
     a number of provisions must be included in any meaningful 
     health reform package to improve access to affordable health 
     insurance and assure access to specialty medicine. Those 
     provisions included in your substitute amendment that we 
     believe should be maintained include eliminating pre-existing 
     condition exclusions, providing adequate access to specialty 
     care through the benefit package, addressing rescission of 
     health coverage, ensuring continuity in Medicaid coverage for 
     children who go in and out of the system, and prohibiting 
     annual and lifetime coverage limits.
       In addition, the Alliance is pleased that your legislation 
     includes a provision to expand comparative effectiveness 
     research (CER). Like you, the Alliance believes appropriately 
     designed CER conducted by an independent entity with full 
     participation of all relevant stakeholders should enhance 
     information about treatment options and outcomes for patients 
     and physicians, helping them to choose the care that best 
     meets the individual needs of the patient. CER needs to 
     recognize the diversity, including racial and ethnic 
     diversity, of patient populations and subpopulations and 
     communicate results in ways that reflect the differences in 
     individual patient needs. It should not be a vehicle for 
     making centralized coverage and payment decisions or 
     recommendations.
       The Alliance also appreciates the elimination of a 
     provision which would automatically reduce payment rates by 
     5% for physician services if they are deemed ``outliers'', 
     regardless of patient acuity or other key factors.
       Finally, we appreciate that you addressed our concerns 
     related to imaging services and clarified that the definition 
     of advanced imaging does not include ultrasound as it relates 
     to the increase in the utilization rate for imaging services.
       Thank you for commitment and leadership on this issue. 
     Physicians are an integral part of the health care system and 
     are on the front lines of patient care. The Alliance hopes 
     you will work with us to improve the Senate health reform 
     package.
           Sincerely,
         American Association of Neurological Surgeons; American 
           Association of Orthopaedic Surgeons; American Society 
           of Cataract and Refractive Surgery; American Urological 
           Association; Coalition of State Rheumatology 
           Organizations; Congress of Neurological Surgeons; Heart 
           Rhythm Society; National Association of Spine 
           Specialists; Society for Cardiovascular Angiography and 
           Interventions.
                                  ____

         American Academy of Dermatology and AAD Association,
                                    Washington, DC, Nov. 20, 2009.
     Hon. Harry Reid,
     Majority Leader, U.S. Senate,
     Washington, DC.
     Hon. Max Baucus,
     Chairman, Senate Finance Committee,
     U.S. Senate, Washington, DC.
     Hon. Tom Harkin,
     Chairman, Senate HELP Committee,
     U.S. Senate, Washington, DC.
       Dear Leader Reid, Chairman Baucus, and Chairman Harkin: On 
     behalf of the American Academy of Dermatology Association 
     (AADA), which represents nearly 12,000 dermatologists and our 
     patients across the country, I am writing to state that we 
     are opposed to S. 3590, the Patient Protection and Affordable 
     Care Act (PPACA), in its current form. This legislation 
     simply contains too many flawed provisions and policies that 
     will harm vulnerable patient populations, undermine ongoing 
     quality improvement efforts, leave in place an unstable 
     physician payment system, and exacerbate physician workforce 
     shortages--jeopardizing access to quality health care.
       We are extremely disappointed to have reached this 
     decision, because AADA fully supports meaningful and 
     comprehensive

[[Page S39]]

     health system reform that achieves our shared goals of 
     improving the health care delivery system and providing 
     coverage for more Americans. We are serious about achieving 
     reform--after working closely with leadership on the House 
     side and finding that H.R. 3961 and H.R. 3962 comport with 
     most of our principles for reform, we indeed issued letters 
     supporting the key provisions of those bills. Early this 
     year, AADA readily embraced the Senate's offer to work as 
     constructive partners in finding the common ground that would 
     serve as the foundation of meaningful health system reform. 
     On several occasions, AADA submitted thoughtful, constructive 
     comments on numerous proposed reform components, and 
     subsequent legislative provisions, in an effort to work in a 
     collaborative fashion. However, PPACA has made it clear that 
     the majority of our input has been dismissed.
       AADA is on record with the Senate in opposition to the 
     following key provisions:
       The Independent Medicare Commission--This commission 
     removes public accountability and Congressional oversight of 
     Medicare payment policy. Even more troubling is the exemption 
     of hospitals from the Commission's jurisdiction, forcing 
     physicians to bear the costs of Medicare Part A 
     inefficiencies. It is unreasonable to expect that the cost 
     curve can be bent solely within the Medicare part B silo.
       Misvalued Relative Value Units--This provision creates an 
     unnecessary, duplicative bureaucratic layer. CMS and the RUC 
     are already engaged in extensive efforts to review and 
     correct RVUs that no longer reflect practice realities, and 
     this existing process continues to bring about substantial 
     changes without the need for a duplicative and new panel.
       Failure to Address Physician Payment--This legislation 
     seeks to ``transform the health care delivery system,'' which 
     would require physicians to make substantial changes in their 
     practices. However, the bill offers yet another short term 
     solution to a fundamentally flawed physician payment system. 
     Without a stable payment system, physicians will be unable to 
     make the long-term investments required to implement health 
     system reform and continue to modernize their practices. The 
     abject failure to recognize the need for real long- term 
     reform demonstrates a misunderstanding of physician practice 
     costs, including the employment of millions of Americans in 
     these small businesses, and will inhibit transformation in 
     the health care delivery system. We hope that the Senate will 
     follow the House's lead and pass a complete repeal of the 
     Sustainable Growth Rate formula.
       While we are appreciative of changes made to the resource 
     use and PQRI provisions, that positive movement was negated 
     by the inclusion of new provisions in PPACA that have the 
     potential to harm patients and conflict with several of our 
     principles for reform.
       Tax on Cosmetic Surgical and Medical Procedures--In an 
     effort to offset the cost of this legislation, PPACA would 
     impose a cosmetic procedure tax that disproportionately 
     affects women and the middle class. Furthermore, this tax 
     inserts the federal government into the physician-patient 
     relationship in a new way--specifically, the Internal Revenue 
     Service will become an arbiter of what is cosmetic and what 
     is medically necessary. Under the proposed language, an HIV-
     infected patient with severe and stigmatizing lipoatrophy 
     (loss of facial fat) resulting from their antiviral 
     medications might be taxed for seeking to reduce their social 
     stigmatization and return their face to a normal shape.
       Public Reporting--We have extensively participated in 
     quality measure development and supported incentives for 
     physician participation. However, several unresolved problems 
     still make public reporting of performance results premature. 
     Our ability to assess comparative quality from claims data 
     and to risk-adjust any measures to reflect different patient 
     populations is still in its infancy. Releasing performance 
     measures to the public before physicians have had the 
     opportunity to advance this science and build trust in a 
     system to properly account for variations in patient 
     populations has substantial risk. In particular, the 
     physician profiling that will result from such a premature 
     data release will discourage physicians from taking on the 
     sickest, most vulnerable patients and those with complex 
     medical and social conditions. This can only serve to 
     exacerbate health care disparities and create new barriers 
     to care for those patients who are most in need.
       AADA has previously submitted comments related to 
     additional policies, including the value-based physician 
     payment modifier, the lack of any meaningful provision 
     related to the reform of our nation's unbalanced medical 
     liability system, and others in its prior communications.
       Our nation's doctors and patients are in need of health 
     care system reform--reform that can happen if we work 
     together to create a system that embraces the principles of 
     quality care, efficient use of resources, and a patient-
     centered approach to practicing medicine. We are deeply 
     disappointed to find ourselves with a Senate bill which fails 
     to address several of the concerns we have raised, and it is 
     regrettable that our efforts at collaborative dialogue have 
     not resulted in a bill that we can support.
       We urge you to work with us to arrive at a legislative 
     proposal that is consistent with our specialty's principles 
     for health system reform--principles which are widely shared 
     by the physician community. AADA believes it is incumbent 
     upon every health care provider to commit to being 
     responsible stewards of the nation's health care resources. 
     The challenge is finding the balance between fiscal prudence, 
     delivering high quality care, and preserving the trusted 
     physician-patient relationship. Please feel free to contact 
     John Hedstrom ([email protected]) in the Academy's 
     Washington office at (202) 842-3555.
           Sincerely,
                                       David M. Pariser, MD, FAAD,
                                                        President.

  Mr. COBURN. Mr. President. I ask unanimous consent to have printed in 
the Record the following letter I sent to Mr. Alan Frumin, 
Parliamentarian of the U.S. Senate, on January 8, 2010, regarding the 
ruling that occurred in the Senate on December 16, 2009, during 
consideration of the health care reform bill that permitted Senator 
Sanders to unilaterally withdraw his amendment during its reading.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate,

                                  Washington, DC, January 8, 2010.
     Alan Frumin,
     Parliamentarian of the Senate, U.S. Senate, Washington, DC.
       Dear Mr. Frumin: I write to express my dismay with the 
     situation that occurred in the Senate on Wednesday, December, 
     16th, 2009, regarding Sanders Amendment No. 2837. 
     Specifically, I refer to the ruling that permitted Senator 
     Sanders to unilaterally withdraw his amendment during its 
     reading. This ruling had immediate, untoward, and severe 
     ramifications for consideration of highly consequential 
     legislation.
       After thorough research into the matter, I firmly believe 
     the Chair incorrectly applied Senate rules and precedents to 
     permit Senator Sanders to withdraw the amendment. In doing 
     so, the Chair cited a 1992 circumstance in which Senator 
     Adams was allowed to withdraw an amendment during its 
     reading, without unanimous consent. While this particular 
     precedent has generated a significant amount of controversy 
     in its own right, in this case it has only served to distract 
     from the central issue at hand: even if the 1992 procedure 
     were a proper precedent, it cannot be used to justify the 
     withdrawal of the Sanders amendment.
       Unlike the situation in 1992, consideration of Senator 
     Sanders' amendment was governed by a unanimous consent order. 
     The order not only sequenced the amendment but provided that 
     no further amendments could be proposed to the Sanders 
     amendment. In calling up his amendment, Senator Sanders 
     expressly stated that he was doing so pursuant to the order. 
     A 1971 precedent reflects well-established Senate practice: 
     ``when the Senate is operating under a unanimous consent 
     agreement or setting time for debate of a specific amendment 
     that is action by the Senate on said amendment and 
     subsequently it would take unanimous consent to withdraw the 
     same.'' If this practice had been followed, Senator Sanders 
     would not have been able to withdraw the amendment as a 
     matter of right. Instead, he needed to propound a unanimous 
     consent request, which he did not. Be assured, consent would 
     not have been granted.
       Following the ruling on December 16, your office justified 
     Senator Sanders' unilateral withdrawal of his amendment, even 
     in the face of the order, by claiming that the restrictions 
     under a UC agreement for withdrawing an amendment are not 
     imposed until after an amendment is pending. And you assert 
     that the Sanders amendment could not be considered pending 
     until the reading had been completed. I cannot find a basis 
     for this explanation in Senate rules or precedents.
       The assertion that the Sanders amendment was somehow not 
     pending is illogical. A well-established practice, as 
     expressed in a 1943 precedent, states ``the amendment must be 
     before the Senate to be withdrawn.'' Thus, for the Sanders 
     amendment to be withdrawn, it had to have been pending. If 
     the amendment were not pending, and thus not subject to the 
     order, it should not have been in order to withdraw it.
       A 1979 precedent definitively demonstrates when an 
     amendment must be considered pending. On December 10, 1979, 
     Senator Roth of Delaware offered a second degree amendment to 
     an amendment from Senator Stevens of Alaska. Objection was 
     entered to dispensing with the reading of the Roth amendment. 
     Upon a parliamentary inquiry during the reading, the Chair 
     twice affirmatively stated that the amendment being read was 
     the ``pending amendment'' and the ``pending order of 
     business.''
       Specifically, the Chair expressed the following: ``The 
     Chair would advise that the amendment offered by the Senator 
     from Delaware is the pending order of business. A unanimous 
     consent request that the reading of the amendment be 
     dispensed with was objected to. Therefore, the amendment is 
     in the process of being read and now will be read.''
       One can clearly draw two inferences from this ruling that 
     demonstrate once an amendment is offered, it is pending:
       1. If the amendment were not pending, the Chair would have 
     stated that the order of business would be the reading of the 
     amendment, not the amendment itself. Instead, the Chair 
     stated that the pending order of business was the amendment, 
     which was being read.

[[Page S40]]

       2. Furthermore, if the Roth amendment were not yet pending, 
     the Chair would have stated the pending amendment was the 
     underlying Stevens amendment. However, the Chair announced 
     that the pending amendment was the Roth amendment.
       Based on this precedent, which is directly on point and 
     controlling, I believe it is conclusive that the Sanders 
     amendment was, in fact, pending, thereby triggering the 
     limitations imposed by a consent order. Because an order 
     applied, ``action'' had been taken on the amendment. 
     Therefore, Senator Sanders should have needed unanimous 
     consent to withdraw his amendment.
       If the amendment had been fully read, its disposition would 
     have carried over until the next calendar day. That is what 
     should have happened if Senate procedures were properly 
     applied. Senators from both parties vividly understand that 
     the Parliamentarian's advice in this matter may have been 
     greatly consequential for the consideration of health care 
     legislation.
       Finally, it is disturbing to know that the only entities 
     privy to the operative considerations underlying the ruling 
     were your office and the majority party. Senator Cardin, who 
     presided at the time of the ruling, submitted into the Record 
     on December 21, 2009 a statement that mentioned the 1992 and 
     1950 precedents, supplied by your office, to attempt to 
     justify his ruling.
       Unfortunately, at the time of the ruling, I had no way of 
     knowing about the 1992 Adams precedent since it occurred 
     after the latest edition of Riddick's Senate Procedure was 
     published. Furthermore, the 1950 precedent was inaccurately 
     depicted in Riddick's, with the text of Riddick's 
     contradicting the actual precedent cited. Had all the 
     precedents been commonly available in a reliable and updated 
     form, Senators could have had a basis to challenge the 
     Sanders ruling in real time. By the time the dust had settled 
     after the ruling, as Senators struggled to parse what had 
     happened, such a challenge was long moot. In any event, 
     neither of these precedents arose in the context of a consent 
     order. I therefore believe the precedents were off-point and 
     inapplicable.
       You are a man of integrity, are a dedicated public servant, 
     and hold the rules and precedents of the Senate in high 
     regard. However, I believe this ruling was incorrect, and 
     that it had a major adverse impact on a monumental piece of 
     legislation.
           Sincerely,
                                              Tom A. Coburn, M.D.,
     U.S. Senator.

                          ____________________