Congressional Record, Volume 156 Issue 149 (Tuesday, November 16, 2010)

[Congressional Record Volume 156, Number 149 (Tuesday, November 16, 2010)]
[House]
[Pages H7486-H7492]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

HEALTH CARE AND THE NEW CONGRESS

The SPEAKER pro tempore. Under the Speaker's announced policy of
January 6, 2009, the gentleman from Texas (Mr. Burgess) is recognized
for 60 minutes as the designee of the minority leader.
Mr. BURGESS. Mr. Speaker, I want to do what I do often, which is come
to the floor of the House and talk to my colleagues on both sides about
the issues that remain in health care. This Congress, as it winds down
in its last days, has certainly seen and done some dramatic work and
has seen some dramatic pushback by the American people on some of the
work that's been done.
So I thought it might be useful as we wind up this last part of the
111th Congress, the Congress that will forever go down in history as
that which has fundamentally changed the way every man, woman, and
child in this country receives and will receive health care for the
next several generations, I thought it appropriate to talk a little bit
about how we got to where we are, and quite frankly what I see over the
horizon, what is likely to occur in the next Congress that convenes in
the early part of January.
Certainly, when you look at the history that was written by this
Congress, starting off with all the bright prospects in early 2009, in
January 2009, and even going back a few months before that, I honestly
thought that the health care bill that would see the light of day in
the House was something that would actually be written by the Senate
Finance Committee before this Congress was ever sworn in. I was,
frankly, surprised when the Congress was sworn in and in fact
inauguration day came and went and there was no introduction of a
health care bill.
Then, of course, we all remember that there was a former Senate
majority leader who was asked to be the Secretary of Health and Human
Services, but that nomination got derailed by some tax difficulties and
that post remained vacant for several months. During that hiatus, no
health care bill came to the floor of the House. And it really wasn't
until Senators Kennedy and Baucus in early June of 2009 wrote a letter
to the President and said, We will in fact introduce our health care
bill through our committees, that the country got a glimpse as to what
was in store for this fundamental restructuring of health care that had
been promised by the new administration.
The health care bill that came through the Senate Health, Education,
Labor and Pensions Committee in June of 2009 was originally scored by
the Congressional Budget Office as costing over a trillion dollars and
providing insurance for an additional 13 million people. Well, wait a
minute. We were told there were 37 million uninsured. Thirteen million
is only about a third of that. Is that all we get for our trillion
dollars?
And then, after that Congressional Budget Office report, really all
of the discussion for almost the rest of that year became all about
cost and coverage numbers and no bill was introduced without a CBO,
Congressional Budget Office, score to say what the cost and coverage
numbers were going to be. So in fact the Senate Finance Committee did
not introduce a bill until much later in the year 2009.
Now in the summer of 2009, three House committees--my committee, the
Committee on Energy and Commerce, the Committee on Education and Labor,
the Committee on Ways and Means, all three simultaneously introduced a
health care bill that was large, voluminous, and contained a lot of
government control over the lives of every ordinary American. People
were concerned when they saw that bill come to the floor of the House
in the middle of July of 2009. But every committee reported it out with
some amendments by the end of July of 2009, which took us to the August
recess.
The August recess of 2009 is something that I suspect no Member who
was serving in this body, again, on either side of the aisle, will ever
forget, those summer town halls in August of 2009, when people showed
up in numbers that were absolutely unprecedented for town halls, at
least in my experience, and were concerned about the direction the
Congress was taking with this restructuring of the Nation's health
care; and in fact of what they had seen, they quite frankly didn't like
it and wanted to tell us so.
I had an advantage in my summer town halls in August of 2009 in that
having voted against the bill as it left committee, my committee of
Energy and Commerce, late in the evening of July 31 before coming home
for the August recess, I could honestly say I voted against the bill in
committee and would oppose it when it came to the floor because in my
opinion it was a terribly flawed product. But during the course of the
month of August we heard over and over again from people who were,
again, concerned about the direction Congress was taking. And they
didn't tell us that some reform was not necessary. What they told us
was, You are making us uncomfortable with this approach that changes
everything fundamentally about how health care is delivered in the
country.

Arguably 60, 65 percent of the country was okay with the way health
care was being administered and did not want to see that change. Yes,
there were people who had problems. There were problems with
preexisting conditions. There were problems with people who lacked the
ability to get insurance. But what the country told us during those
summer town halls is we'd like you to work on that and not restructure
the whole health care system which the rest of us are depending upon to
get our health care. But we did precisely the opposite of what we were
told.
The other thing we were told is, Could you do something about cost?
Is there a way to rein in cost. Is there a way to help us with the cost
of health care in the future, because we are legitimately concerned
about the rapidly escalating cost of health care and whether that will
price us out of the market at some point as well. So those two things:
don't disrupt the system as it exists today and help us with cost for
the future. Those two things seemed to be absolutely ignored by this
United States Congress as it went through the process.
Now, I thought after those very contentious summer town halls that
Congress would come back to town in September of 2009 and maybe hit the
pause button or the rewind button or at least the stop button for a
short period of time and recalibrate this. Clearly, a big, long,
thousand-page bill dealing with health care upset a lot of people. Is
there a way to come back and do this in a more reasonable fashion.
Perhaps just tackling some of those things that the people told us they
wanted to see fixed, things like the equal treatment of the Tax Code;
things like help for people with preexisting conditions; things like
the ability to buy insurance across State lines; things like reform of
the medical justice system. Maybe those were the places where we could
actually do some good and show some value for the American people.
But, again, it was not to be. In fact, the President of the United
States came here to the well of the House and gave us a long discussion
about the health care process in the bill and how it was going to go
forward. At no time did I hear that maybe we ought to stop for a short
period of time and listen to what the August town halls were telling
us.
So it was full speed ahead. And later on that fall--actually a year
ago, early November of 2009--this House passed the bill that had come
through the three committees. Oddly enough, it was a thousand-page bill
when it left the committees. It was a 2,000-page bill when it came back
to the floor after it emerged from the Speaker's office, presumably
with a fair amount of input by the White House and the administration
as to the writing of this bill.

{time} 1820

It came to the floor of the House. It passed the floor of the House
by the

[[Page H7487]]

slimmest of margins, and then it was off to the Senate.
Now, a funny thing happened in November and December of last year
over in the Senate. The other body did not just take up our health care
bill and begin to work on that and then bring it back to a conference
committee. The other body started with an entirely new bill. It was a
House bill. It had a House bill number, 3590, which had previously
passed the House as a housing bill. Yet the Senate did not take up our
health care bill. They took up a housing bill, and then amended it to
strip out the housing language and insert the health care language so
that what passed on Christmas Eve, just ahead of a big snowstorm that
was headed to town, was H.R. 3590, which started life as a housing bill
and then ended life as a health care bill; but in the process of
getting there, it really did upset people, and people were genuinely
disquieted by the process that they saw.
What will it take to get to 60 votes? What will it take to get your
vote, Senator? We saw various things: the Cornhusker kickback, the
Louisiana purchase, Gator-aid, the Yukon up in Connecticut, and all of
these special deals that were required to get the 60 votes over in the
Senate. The American people looked at that and asked, If this bill is
so great, why are they really having to encourage Senators to vote in
favor of it?
The bill passed on Christmas Eve. The normal process would have been
to convene some type of House-Senate conference to work out the
differences between the two. Yet then, in early January of 2010, a
special election was held up in the State of Massachusetts to fill the
Senate seat that had previously been occupied by Senator Kennedy. A
Republican won the seat for the first time since who knows when, and it
was such a disruption to the process that many people in the other body
said, There's no way we can get to 60 votes on a conference report.
We're just going to have to take the bill as it passed here.
It was possible to do that because, remember, the Senate passed a
bill that had previously passed the House. It had passed the House as a
housing bill. It had gone over to the Senate and had become a health
care bill. It could come back to the House. Will the House now concur
with the Senate amendment to H.R. 3590? If the House concurs with a
simple 218 majority, with a simple majority, then that bill gets on a
fast track down to the East Room of the White House for a signing
ceremony.
When that subject was first approached, the Speaker of the House at
the time said that there weren't 100 votes in the House for the Senate-
passed bill, and I think she was right about that, but somehow during
the months of January, February and 3 weeks into March enough
individuals in this House were convinced to vote for the health care
bill so that it, indeed, was passed in the third week of March of this
year.
Now, it was a deeply unpopular bill when it passed. It never gained
in popularity. In fact, 2 weeks ago, we saw the result of that with the
midterm election when so many incumbent Democrats who had voted in
favor of the bill--in fact, some who hadn't voted for the bill but had
allowed the process to continue which allowed the bill to come to the
floor--saw that they were not successful in their reelection efforts.
That happens. Wave elections happen. Certainly, Republicans were on the
receiving end of a wave election in 2006, but this one did seem to be
tied to the health care bill. So you have to ask yourself, Why was this
so deeply unpopular?
People around the country said the health care system at times is not
functioning as we would like. You would think that they would welcome
the appearance of a House and Senate bill, but here is the problem:
There were many things in the bill that really were seen as a vast
overreach of the Federal Government. Certainly, the individual mandate
requiring every man, woman, and child in this country to purchase
insurance, whether they want it or not, and to use the Commerce Clause
as a justification for doing that really struck a lot of people as
going too far. It was really the first time that the United States
Government said that we can require you to purchase a product, in this
case health insurance, and the reason we can do that is that then we're
going to regulate said insurance under the Commerce Clause.
Well, apply it to some other product other than health insurance and
you'll really begin to see the danger of that argument. What if it's an
automobile? What if it's a certain type of kitchen appliance? How can
the Federal Government insert itself into the lives of Americans to
that degree?
Remember, we heard previous speakers talk about how great this
country is and about how great the United States Congress is. Remember,
American exceptionalism comes from the fact that, over 200 years ago,
our Founders got together and said there really ought to be a way that
the people can see the necessary functions of government occur but only
with their consent--government by the consent of the governed. It was
kind of a novel approach. The Founders, when they wrote the Declaration
of Independence, said our rights come from the Creator, not from our
government. They come from the Creator to the individual. They are
unalienable. They cannot be taken away from the individual. Then the
individual loans the ability to be governed to the government.
Yet now we have the government which is dictating to the individual:
You have to buy a certain type of health insurance policy that we are
going to designate. We're going to tell you what it has to cover and
what it can't cover, and we're going to tell you what the price is
going to be. We can do that under the Commerce Clause of the
Constitution. Many people said, That's just more than I ever believed
my government could do.
Again, government with the consent of the governed--a novel concept
in the field of human endeavor. That notion really seemed to be turned
on its head with the passage of this health care law, and I really
believe that that is one of the fundamental reasons that there has been
such an intense, ubiquitous rejection across the country of the concept
of the bill that was signed into law by President Obama last March.

Now, almost a year ago, President Obama told Charles Gibson on
television, If we don't pass health reform, here is the guarantee: Your
premiums will go up. Your employers are going to load up more costs on
you, the individual buying health insurance. Potentially, they're going
to drop your coverage because they just can't afford these increases.
That was one of the rationales the President used to push health care
reform. Well, what is happening now?
I was home in my district during the month of October, which was
prior to the election. People were coming to my office, saying, Look,
you've got to do something. Since you passed this bill, the cost of
insurance has gone up so rapidly--10 percent, 20 percent, in some cases
30 percent or more--that I just simply cannot keep up with the cost,
and I'm looking at having to drop coverage for my employees. Then, of
course, with the fines that will result in a few years when those kick
in, employers are justifiably concerned about where this is all going.
Now, you do hear the discussion that perhaps the cost of insurance is
going up just because the insurers are trying to take advantage of the
situation before more of these regulations and controls come on line.
Maybe that's true. Maybe it's because the insurers are having to meet
more of the mandates that were put out under the health care law. Maybe
that's true. How would we know the difference?
Well, we could do a hearing. My committee might have been a good
place to have had a hearing and to have asked those questions, but we
didn't do that. My committee has had no hearings on the implementation
of this health care law since it was passed in March of this year. My
committee, the Committee on Energy and Commerce, has a rich tradition
of providing oversight for the Federal agencies under its jurisdiction.
Health and Human Services is one of those agencies. The Centers for
Medicare & Medicaid Services is one of those agencies.
Why have we not had a hearing on the implementation of the health
care law? I can only speculate that it has certainly not been good for
constituents and certainly not even for insurance companies. No one at
this point

[[Page H7488]]

knows exactly what is expected of them, but what people do know is that
they were promised, if this health care bill passed, we would not see
our premiums go up and, if we didn't pass the health care law, that
premiums would go up. We passed the health care law, and premiums are
on the way up, and they're on the way up in a big way.
I've mentioned the process of how we got here and of how, indeed,
disjointed and poisonous it was. Remember, during the Presidential
campaign--and the President talked about this as a campaign issue--all
of these negotiations were going to be open; they were going to be
covered on C-SPAN, and he was going to have everyone around a big
table. He said we'd get bored watching it but that all of it would be
out in the open. Then the process went behind closed doors for months,
and the reality is there was no transparency to this process. Again, it
was a violation of one of those fundamental things. People thought that
they could trust the incoming administration to be transparent in this
regard, and they got anything but transparency.

{time} 1830

In my committee of Energy and Commerce, I filed a resolution of
inquiry--resolution of inquiry to get information from six groups that
met down at the White House in May of 2009. Who were these six groups?
Well, the doctors were one, hospitals, insurance companies to be sure.
Medical device manufacturers also were included. The pharmaceutical
companies were included, and the Service Employees International Union
was included.
That meeting occurred in May of 2009. Everyone came out of the
meeting and said we've saved $2 trillion, we've got $2 trillion in
savings in the health care system that will now help pay for this
health care reform. So we've done a good job.
I began to ask the White House for some of the information about
where this $2 trillion in savings, where it was going to occur, who
gave up what, who promised what, who was promised what, and never could
get anything more than copies of a press release here or copies of a
Web page there, stuff that was generally available through the open
source, but never any of the details on these meetings, never any of
the e-mails between the participants.
So, in December of last year, I filed a resolution of inquiry, which
is one of the few tools you have in the minority to get information
when the administration is not forthcoming. This resolution of inquiry
must come up for a vote in committee within a certain period of time, a
certain number of legislative days, or it comes to the floor of the
House as a privileged resolution.
Well, obviously the majority does not want that to happen. So,
indeed, in fact, ironically the same day that the State of the Union
Address was delivered in January of this year, we had a meeting in the
Committee on Energy and Commerce to consider my resolution of inquiry.
And, in fact, to his credit Chairman Waxman agreed with many of the
things for which I was asking and said we should have copies of those
documents. He would not agree to report out favorably the resolution of
inquiry, but did agree to write a letter with Ranking Member Barton to
ask the White House to provide this information. Well, that was 11
months ago, and I am still waiting for that information. It has yet to
be forthcoming.
It's important stuff. I realize that much time has passed since then,
but look at one of the things we're going to talk about in just a
moment is the problems that America's seniors and America's doctors
have because of the pay formula under Medicare, under what's called the
sustainable growth rate formula. There is apparently a very large cost
associated with fixing that problem. If money was given up in the
health care bill, why not have some of it be given up as a down payment
on fixing that problem with the sustainable growth rate formula?
And in fact, as the bill progressed and we saw the scoring by the
Congressional Budget Office, indeed, at some point, over $400 billion
over the 10-year budgetary cycle is removed from Medicare to pay for
the new entitlement of subsidies, helping people purchase insurance in
the exchanges that are going to be set up in 2014. But the problem is
you took all that money out of Medicare and didn't even get a down
payment, not even have a down payment on resolving the problem with the
sustainable growth rate formula.
So I really would like to see what occurred in those meetings and
what the discussion was. Surely the sustainable growth rate formula
came up because any time you get two doctors together, that's almost
all they can talk about. So around this table, was this not part of the
discussion?
The Service Employees International Union, what did they give up, or
what did they get? Did they get more than they gave up? Again, we don't
know these facts, so we are left to only suppose or wonder what
occurred and what transpired in that meeting.
It should never have been necessary to file the resolution of inquiry
in the first place because this administration came into office saying
that they were going to be the most transparent administration in
history, and that all of these health care negotiations would be open
and on C-SPAN for all to see, and yet, at the same time, I had to file
a resolution.
As would be expected, the committee and Democrats hold a vast
majority on the committee right now. That's going to change after the
first of the year, but the resolution would never be reported out
favorably. The chairman did sign a letter for me to get some
information, but unfortunately, that information has not been
forthcoming, and then at this point, it's very, very difficult to force
the administration to do anything they're not inclined to do when
you're still in the minority. But again, that will change within a
period of weeks. So I'm very glad about that, and certainly this is an
issue that I intend to continue to pursue.
You know, one of the things that's come up in the past couple of
days--and we'll talk about it a little bit more--but the issue of
waivers, starting about maybe the last week or so in October, where
very famously the McDonald's Corporation got a waiver from the health
care law for a period of a year, and then in rapid succession many more
companies were given waivers, and now I think that number stands at
over 100, the last time I checked on healthcare.gov.

Where do these waivers come from? Why are they necessary? Who's
giving them? Who's getting them? Who's not getting them? What are the
rules? What are the parameters by which these waivers are established?
If the health care law was so wisely crafted and carefully put together
as we heard over and over again on the floor of this House, why is it
now necessary to give companies waivers?
When I have companies call my office back home, they say, you know, I
saw where a company got a waiver for that health care law; I sure would
like one of those, too. How can I go about getting one? And right now,
again, the process is anything but transparent, and no one really knows
how to advise companies to do that. I suspect we will see a great many
more waivers given as the months go by, as companies have greater
awareness about this.
Again, remember, one of the things that the President said that if we
don't do what he said we had to do in this health care law, the premium
prices were going to go up so much that employers were going to drop
coverage, and yet, shortly after the bill was signed, documents
received from several large companies who said, you know, we're going
to have to restate our earnings now because of the passage of the
health care law. The chairman of my committee, Henry Waxman, sent out
requests for information to all of these companies and said how dare
you try to embarrass the President on the day the bill is signed. We
want to see what you're referring to when you say you're going to have
to restate earnings. Turns out that's to comply with the Securities and
Exchange Commission regulation that if the company's profits are going
to substantially change, they are required to let people know about
that.
But part of the information that was delivered to the committee
showed that large companies across the country were at least
considering what the future holds for them; a company, say, that has a
couple of hundred thousand employees where they're paying 8- to $10,000
per employee for health insurance, but on the other side if they don't
provide that health insurance,

[[Page H7489]]

which they must under law, or they're going to get fined $2,000. Well,
the insurance policy costs 8- to $10,000, the fine is $2,000. Doing
some quick math on that, companies with large numbers of employees were
suddenly looking at significant savings that could be available to that
company, and now were they obligated to do the correct thing from a
fiduciary standpoint and just opt out of providing employer-sponsored
insurance and let their employees buy insurance in the State exchanges,
which have yet to be set up, and as a consequence only pay that fine,
rather than the 8- to $10,000 premium.
Clearly, clearly, some companies had thought about the implications
of this. Now, to the best of my knowledge, no company has said yet this
is what we are going to do, or this is what's going to happen, but if
one company makes that decision, companies with a similar business
model are likely going to have to consider the same trajectory because
they have to compete in the same marketplace as the first company who
has now allowed their employees to go into the exchange.
So it is a big deal, and it is affecting the ability for employers to
provide health insurance, and the cost has done anything but go down.
Big concern about what's going to happen in both Medicare and
Medicaid, but let's take on Medicare for just a moment because here we
are in the very waning hours of the 111th Congress. We're in the so-
called lame duck period after the election before the new Congress is
sworn in. So as this Congress limps through the remainder of its
congressional term, one of the things that we have to do, one of the
things that Congress has to take up and deal with is what has
perennially been known as the doc fix.
The doc fix is an adjustment to the sustainable growth rate formula
that allows doctors to be appropriately reimbursed for seeing Medicare
patients and providing medical care to Medicare patients. Why is that
important? Because if they're not appropriately reimbursed, they can't
afford to keep their doors open, they drop out of the Medicare program,
patients can't find doctors and they complain to their Congressman.
So this is something that historically has happened, but as a
consequence of multiple times doing this fix, the cost has now gotten
so high that it becomes very difficult for Congress to pass that
legislation, and maybe I could just take you through a few of the
simple steps that occur in this process.

{time} 1840

Here is the formula that's printed on the Web site for the Centers
for Medicare & Medicaid Services. It's a calculation for the payment
formula under the physician fee schedule. Here is the payment formula:
(RVUw GPCIw) + RVUPC GPCI.
Okay, that is starting to look pretty complicated. But if you look
down here at the key for the acronyms, you begin to get an idea of what
this is trying to do. RVUw, the relative value unit for work. The
payment is going to be based on the relative value unit as determined
by a Federal agency--not by the doctor's office, but the relative value
unit for work. It is going to be modified by a geographic practice cost
index for that value unit of work and then every value unit of work is
further going to be modified by another constant for practice expenses
as well as some geographic consideration, another based on the
subscript for buying liability insurance. And then at the end, it's all
times a conversion factor.
So this looks pretty complicated, but I guess you could muddle
through that. But unfortunately what we don't really get is, What is
the conversion factor? Well, let's take us through that just a little
bit as well. So on another page of the Centers for Medicare & Medicaid
Services Web site is the calculation of the conversion factor, and you
have the conversion factor for the current year. It's equal to the
conversion factor for a prior year, plus an update. Well, how do you
get the update? Come down here, and this is how you calculate the
update. One plus the Medicare economic index increase, over 100, times
one, plus--wait a minute, what's UAF? Where did that come from? Wait a
minute. Update adjustment factor. Well, how do you calculate the update
adjustment factor?
Going to another page on the CMS Web site is how you calculate the
update adjustment factor, and a lot of calculations are here. But what
becomes significant is that you actually have to go back in time over
10 years and recapture the savings that should have occurred had the
formula been allowed to take effect. And that is the problem with
repealing what's called the sustainable growth rate formula.
Well, Congress in June passed a temporary patch that took us to
November 30 of this year, and we have to do something by November 30 to
postpone this update, which is actually a reduction--now almost a 30
percent reduction in physician reimbursement. Patients are clamoring
for us to do this. They say it's an access issue to get in to see our
doctors, and it has to be fixed.
This has been the worst year for the sustainable growth rate formula
that I have ever seen in my brief tenure in Congress. We let it expire
in April. We allowed it to expire in June, and now we're 2 weeks away
from another expiration date. Now what do I mean when I say ``We let it
expire''? Well, Congress was coming up against a congressional recess,
the Easter recess, a 2-week recess, and for whatever reason could not
get the so-called doc fix or the postponement of the SGR formula,
Congress could not get that passed. The Democrats were unable to get
that to the floor of the House and get it done. And as a consequence,
we went home. Congress adjourned for Easter recess with the doctors
having no resolution but the deadline of March 31 passing.
Well, okay, no problem. We'll just ask the Centers for Medicare &
Medicaid Services to hold those reimbursement checks until Congress
gets back to town in 2 weeks and fixes that problem so that when the
checks go out, there will not be a reduction on those checks. Well,
I've just got to tell you, if you're in a small physician office--and I
would characterize ``small'' as being two, three, four, five, or six
doctors--if you are in a small physician office, and even if only 15
percent of your business is Medicare business, you cut 15 percent off
the operating capital of a four-, five-, or six-physician office, and
that's a big deal. That's going to make it difficult for that office to
cash flow for that month. And in a doctor's office, if you don't cash
flow, you still have to pay the light bill, you still have to pay the
cost of your supplies, you still have to pay your help, you still have
to pay your taxes; so you are probably not paying yourself that month.
And that, in fact, happened in small- and medium-sized physician
offices all over this country.
Well, if that wasn't bad enough, when Congress finally came back and
passed the fix, it was only for a couple of months' time. So June 1,
the same darn thing happens. And as a consequence, we're up against
another adjournment date, another recess, and the same thing repeats
itself. The Centers for Medicare & Medicaid Services holds checks for a
couple of weeks and, once again, practices all over the country say,
Oh, my gosh. Here we go again. We've just barely recovered from this
last one, and now we've got another one where they're holding a portion
of our cash flow up every month, the people who write the checks for
Medicare, for the work we have already done.

Well, in June, there was a 6-month extension passed again that
carried us to November 30. So that is where we are today. Well, bear in
mind that Congress is very close to adjourning for the end of the year.
So are we going to get this problem taken care of this week? It's
pretty hard to see how we do. There are leadership elections going on.
We've got to elect a new Speaker of the House. Committee chairs have to
be selected. So this week is taken up with just a lot of institutional
stuff. We're doing some suspension bills on the floor, to be sure; but
I haven't seen or heard any language for doing something to at least
forestall this cut.
If it doesn't happen by November 30, December, as you can imagine, is
a tough month to get things done. What if those checks are held? Well,
yeah, it's a bad deal because of the holidays that are coming up, and
that's a bad deal. But in addition to the physician offices that are
now in a cash crunch, they are also trying to do their tax planning for
the end of the year. They're trying to do their purchases for the end
of the year. They're trying to do planning into next year. And we're
not allowing them the ability to do that because they've been burned

[[Page H7490]]

twice already by the United States Congress, burned. Burned twice this
year. That's unprecedented. And now they're fixing to be burned yet a
third time by the United States Congress.
So physicians' offices all over the country are having to take a
really hard look at, Do I even want to continue to participate in the
Medicare system if I'm constantly under this kind of threat? And what
happens if we don't do this? If we don't do this, the across-the-board
cut for physician reimbursement for Medicare patients across the
country is some 30 percent. Now, what in the doctor's office has gone
down? What purchase does the doctor make to keep his practice going?
Has the cost of electricity gone down by 30 percent? Has the cost of
rent gone down by 30 percent? Has the cost of paying for labor to help
in the doctor's office, has that gone down by 30 percent? I don't think
so.
Now if you are in a practice that is fortunate enough to be thinking
about expanding and you go down to your friendly banker and say, You
know, I would like to perhaps borrow some money for an expansion of my
practice. I would like to add some exam rooms. I would like to add some
doctors. I would like to add some jobs in my community, in my medical
practice. And the banker looks at this and says, You're going to be
earning 30 percent less for this book of business after the first of
the year? Are you crazy? There's no way in the world in this climate,
in this banking environment that I'm going to loan money to a doctor's
office for this. So we really put our practicing physicians in a tight,
tight place by our inability to deal with this problem.
Now, should a doc fix occur, what will it look like? Earlier this
week the administration said they wanted one for 13 months. Okay. I
could be for that. Thirteen months, that allows us some time to get
into the next Congress and perhaps really come up with a way to replace
this formula with something that makes sense, and I would be very much
in favor of that.

{time} 1850

Realistically, it costs a little over $1 billion for every month in
that fix, so that's a $13 billion price tag. It's going to be a little
tough to come up with that. Maybe it's doable, I don't know. Perhaps we
could take some unspent stimulus funds and reprogram that to this.
Perhaps there's other savings where we could do away with parts of the
new health care bill that are terribly expensive and offset the cost
for this. I don't know. I'd be interested in looking at those
proposals.
What's more likely to happen is that we'll bump it right up against
the deadline and then some, and then do a 1- or 2-month fix and just
dump it into the beginning of the next Congress. And again, that's
okay. I expect that to happen.
Ultimately, this formula is unworkable and this formula needs to be
replaced. And this formula, with all of its conversion factors and
update adjustment factors, really needs to be removed, and a simpler
and more straightforward way of reimbursing the Nation's physicians who
agree to take care of our Medicare patients, arguably some of our
sickest patients, with multiple medical problems, who take the most
amount of time in an office practice, we have to find a way to do this
better.
I think in the next Congress we will see some serious activity
towards getting that done. I've heard the incoming leadership talk
about how this is an important part of what the next Congress does, and
they want to see it taken care of. A lot of discussion about what it
should look like.
In my opinion, a fee-based system makes the most sense, but I
understand there are people who are talking about other models that
include perhaps a bundle payment model or a pay-for-performance model
or an accountable care organization model or a medical home model.
Fine, let's have that debate. Let's have that discussion. That's what
Congress is here to do, debate and discuss these things, hold hearings,
get information and come up with a rational, sustainable policy that
will replace this formula.
I, frankly, do not understand why this was not tackled. As bad as the
health care bill, the health care law, is--was--it would have been
immeasurably better had this problem been fixed in the process. But,
again, you take $500 billion out of Medicare, you don't even make a
down payment on fixing this problem, and you fund a new entitlement
with subsidies in the exchanges for people earning up to 400 percent of
the Federal poverty level, in excess of $44,000 for a family of four.
It would have been far better to at least sequester some of that
money, and say we're going to fix this fundamental problem that exists
today because we know it's interfering with our Medicare patients
having access to their doctors in order to get Medicare. But it's a
problem that must be tackled. It's a problem that must be resolved.
Now, what about the over-the-horizon stuff? What's likely to occur?
This Congress is going to come to a merciful end in a few weeks'
time, and then the next Congress will be sworn in. The 112th Congress
will take over with a great deal of promise, many new Members, many
more new Members than have been seen in Congress in decades; a Congress
that is going to have a vast amount of experience in the outside world,
in the real world.
Because of all the activity with the health care law, more doctors
ran for Congress, at least on my side, on the Republican side, than I
think anyone has ever seen before. Six of them were elected. There are
nine physicians on the Republican side who are coming back, six more
who are coming in. That's 15 doctors in Congress. I think that number
is likely unprecedented in congressional history. I don't know the
precise high water mark for physicians in the past, but certainly that
represents a significant increase over anything that I've seen in my
short tenure here.
What do we do about this health care law? Deeply flawed, vastly
unpopular across the country. What is this Congress going to do with
this health care law?
Now, if I could rip it out root and branch tomorrow, that's exactly
what I'd do. And I think it's very important that this Congress do have
a vote on repeal of this law and have that vote fairly early into the
next Congress.
There are so many aspects of this new law that are so pernicious on
so many levels that I believe it threatens the very fabric of our
Republic. And, again, it violates that central covenant between
governing by the consent of the governed. That basic premise was
discarded during this health care debate and this health care vote.
Remember how the Speaker of the House said, We've got to pass this
bill so you'll understand what's in it; and once you understand what's
in it, you'll be all for it. That's not the way it's supposed to work.
I think that repeal vote needs to happen. I hope it happens in the
first month of the new Congress.
I understand what the arithmetic here is. I understand that the other
body is unlikely to go along with that repeal, but I think it would be
the embodiment of what people voted for in this last election 2 weeks
ago, and they need to see the physical embodiment of that vote carried
out here on the floor of this House. Of course it needs to be a
rollcall vote. I would even submit that it needs to be a called roll of
the House of Representatives and every person have their name called
and answer affirmatively or negatively as to whether or not they stand
for repeal of this very flawed law.
Now, the Senate's not likely to do the same thing. If the Senate does
do the same thing, the other end of Pennsylvania Avenue is likely to
feel differently and provide a veto. But we don't know the answer to
those questions until it's tried, and I think for that reason the
repeal vote is very important. It doesn't mean that the repeal vote is
all that happens. And certainly there are ways to look at the funding
for the implementation of this law.
Remember that this law requires the creation of well over 150 new
Federal agencies to administer various parts of this law. That's all
significantly expensive. And there certainly are ways to get at the
implementation structure through the funding of the implementation.
Well, I mentioned early on in the hour that my committee, the
Committee of Energy and Commerce, has not held a single oversight
hearing over the implementation of this new

[[Page H7491]]

law since it was signed down at the White House in the third week of
March. And why is that important?
Well, I already mentioned a lot of consternation right now. Insurance
costs are going up. The President said they'd go down, but they've gone
up. Are they going up because the insurance companies are just
historically bad actors and they're going to raise their prices every
time they think they can get away with it? Or are insurance prices
going up because they have to be able to keep up with the new mandates
that have been layered upon them with this new health care law?
Wouldn't it be great to have a hearing in the Subcommittee of
Oversight and Investigations, have people--we always swear in our
witnesses so they'd have to raise their hand and swear to tell the
whole truth and nothing but the truth--come to our committee, give
truthful testimony on why this is occurring. Bring the Federal agencies
in; ask them to delineate the increased number of mandates that the
insurance companies are having to deal with, and have the insurance
companies come in and tell us why the costs are going up.
Remember, in the course of this law there's also another provision
called the medical loss ratio which is set at 85 percent for large
insurance companies, 80 percent for small insurance companies. This
medical loss ratio means that there is only a 15 percent or 20 percent
portion that can be spent on administrative activities, and the rest
must be spent on clinical activities. So if the insurance companies
have raised their rates just simply to cover future losses, when those
calculations are done on the medical loss ratio, when those rules are
finally written and those calculations are applied, if there is an
overcharge on the part of the insurance companies, they will be
required to rebate that money back to the ratepayers. So it really
would be only a very short-term gain by the insurance companies to do
that.
But still, let's have the hearings. Let's ask the questions. Let's
get the information and not just point fingers at either the Federal
agency or insurance companies as to who's to blame for these vast
premium increases because, quite honestly, our constituents, the
American people, don't care. They're just concerned about the amount of
premium increase that has occurred during this enrollment period this
fall and what is going to happen to them going forward.

{time} 1900

So certainly it has had a devastating effect on how people purchase
their insurance.
Another thing that I would just like to point out. Remember, every
time in that 2,700-page bill where it said in there, ``and the
Secretary shall,'' that creates a whole episode of new rulemaking by
the Secretary of Health and Human Services.
Now, we have had some experiences with that in the past. Once those
rules are written and the final comment periods are closed and the
final rule is submitted, it becomes very, very difficult to walk back
from that process. Wouldn't it be at least an improvement on that
rulemaking process if we were to invite the relevant agencies in and
the relevant participants in that rulemaking process to talk to us as
these rules were being developed, to talk about whether or not there
were any questions about congressional intent, to ask questions about
how the implementation is going to occur? What will be the cost? Are
there going to be any effects? Are there going to be any effects on
employers or employees? Are there going to be any employment effects?
Remember, one of the things that this last election 2 weeks ago was
all about was jobs and the lack of job creation. So maybe Congress
ought to be focused on that, and maybe that ought to be some of the
questions that we would ask during those oversight hearings.
Now, we did have some experience with that in the stimulus bill that
was passed in February of 2009, because there was a provision in the
bill that provided for funds to help pay for electronic medical
records.
Now, a lot of people will say electronic medical records are a good
thing and they are going to help cut down on waste, fraud, and abuse,
and it is going to make it easier for the doctors to give good care and
quality care. Okay. That is something we can all be for.
The law passed in February of 2009, and the Office of the National
Coordinator for Health Information Technology got busy about crafting
those rules. Sure enough, 11 months later, in January of 2010, they
come forward with the rules that govern things like meaningful use, and
these are all going to be the parameters on which the possibility of
payment or subsidizing the purchase of electronic medical records, that
is upon which it is going to be based. The problem was, the rule for
meaningful use, when it came out, doctors and hospitals were quick to
call our offices and say: This doesn't work in the world in which we
live. This is not something that is applicable to the real-world
situation. Can you do something about that? And, indeed we tried.
Another Member on the Democratic side, Zack Space from Ohio, and I
circulated a letter, got well over 250, 260 signatures on it within a
very short period of time; sent it back to the Center for Medicare and
Medicaid Services: Can you help us with this rule? Can you help us
perhaps make this something that is more manageable in a real-world
situation?
And the answer was: Yeah, we can do some things; but, basically, the
rule is set at this point, and that is what it is going to be going
forward.
So it becomes very difficult to modify the process after the fact. We
saw that with the stimulus bill.
Okay. We are into this health care bill, now 7 months into it. We
know there is a lot of rulemaking that is going to occur, because every
line in there that says ``and the Secretary shall'' invokes that period
of rulemaking and period of public comment and a rule proposed and then
a final rule coming down. All of that is going to affect the delivery
of health care, again, for every man, woman, and child in this country
for the next three generations.
Aren't we obligated to try to get it right? Aren't we obligated to at
least, from time to time, ask the Secretary into our committee and ask
how this process is going, and, again, if they have any question as to
congressional intent?
One of the things that disturbs me as we go through this and watch
the implementation strategy on this bill is the creation of entirely
new Federal agencies that are basically being created not by the United
States Congress but by the Federal agency itself.
The United States Congress pushed a lot of the power that we would
normally have in the legislative process over to the executive branch
in the rulemaking process. We did it in the health care bill. It also
occurred in the financial regulatory bill. It is not a good way to
govern, and you don't get your best legislative product by doing that,
in my opinion.
We would have been far better served to retain this activity within
our committees; and, in fact, that is the way the Founders envisioned.
Because we are reelected every 2 years, we are immediately accountable
to the people. The folks that draw paychecks from the Federal agencies,
you may be accountable when you elect a President but maybe not,
because you have career people in all of the Federal agencies that are
in fact very much insulated from whether or not the people are in
agreement with what they are doing or not. So, in my opinion, it was
wrong to push so much power over to the executive branch and to the
Federal agencies. That power should have been retained within the
United States Congress.

But here is an example of one of the new Federal agencies that has
been created: The Office of Consumer Information and Insurance
Oversight. A fairly benign-sounding name, and probably some functions
that would make some sense, but, in fact, the language for the creation
of this Office of Consumer Information and Insurance Oversight occurs
nowhere in the bill. Nowhere in the legislative language does it call
for the creation of this Office of Consumer Information and Insurance
Oversight. It is a function that the Secretary deemed was an additional
agency that she would need in order to do her work, as she saw it, that
was outlined in the bill.
But now we have a brand-new Federal agency, space being rented
somewhere in a building for them to occupy, new positions being
advertised for and hired. Obviously, this costs some

[[Page H7492]]

money. Where has it come from? I don't know.
Remember, the United States Congress has not passed a single
appropriations bill this year. We are running on the appropriations
bills from last year under a continuing resolution that was passed on
September 30, before we went home at the end of September. But the
Office of Consumer Information and Insurance Oversight did not exist
until June of this year, so where is the money appropriated that is
responsible for running this agency?
Well, I am told it is reprogrammed from other places within HHS, and
HHS has the money for this implementation. But I beg to differ. Those
monies are supposed to be appropriated by the United States Congress.
We are, by law, under the Constitution, responsible for the purse
strings. We are supposed to be the ones that write the checks to the
Federal agencies to allow them to do their work; and it is by that
activity that the United States House of Representatives is able to
keep a little bit tighter leash, as far as oversight is concerned, on
Federal agencies.
But here we have a brand-new Federal agency that, as best as I can
determine, was not called for in the law that was signed by the
President. You have various offices, all of which will be employing
multiple people. So every one of these places on the flowchart are
going to have a number of people working there and answering to the
director of that part of the Office of Consumer Information and
Insurance Oversight.
Wouldn't it be great to have at least one hearing in the Committee on
Energy and Commerce and the Subcommittee on Oversight and
Investigations, or the Health Subcommittee, to ask the folks who are in
charge of this to come in to the committee and tell us what they are
doing?
Who has been in charge? Just for an example, who has been in charge
of looking at this to see if there was duplication? Surely all of these
functions, some of them were probably already being performed by the
Department of Health and Human Services. Have we got anybody looking at
the duplication of effort that may now be occurring?
Everyone bemoans the growth of Federal Government. Everyone bemoans
the rapid rise in Federal debt. But do we have anyone who is looking at
where duplication may be occurring, where there may be cost savings?
If there is an Office of Insurance Programs and the Office of
Consumer Information and Insurance Oversight, maybe there is another
office that can be closed in the Department of Health and Human
Services. If there is a Division of Rules Compliance, maybe there is
another office at either Health and Human Services or the Office of
Personnel Management that is no longer necessary. Why have we not had
the oversight hearing to understand where the duplication is occurring
and where the additional costs may be being expended that are actually
unnecessary?
What is the total employment for this entire flowchart? What is the
total employment? What is the total salary information? Is there anyone
who is being paid in excess of what would be the normal Federal pay
level? We don't know the answer to any of these questions.
What is the background of the individuals who have come here? Are
they basically people who have contributed to political campaigns in
the past, or are these people who have brought with them particular
expertise? And again I would argue, if there is particular expertise
that they are providing, is that expertise then not necessary in
another office that is currently in existence in the Department of
Health and Human Services?
Look, let's be honest. This health care bill that was signed into law
last March was not a bipartisan product.

{time} 1910

The only thing that was bipartisan about this bill was the
opposition. Democrats crossed the aisle and voted with Republicans
against this bill. No Republican voted in favor of this bill last
March.
What have we seen as a result of this election? A profound, profound
change in what the American people saw and did in regard to the United
States Congress. There are six new doctors in the freshman class.
Absolutely unprecedented, again, in my time in Congress, and I think it
says something about the people who actually deliver the health care in
this country, what their opinion is of Congress at this point. ``My
golly, if this is what they are going to do, maybe I better get up
there and take care of it myself.'' After all, that is the way doctors
are wired.
This is a flawed process that led to a flawed product. It must be
repealed. I look forward to that day in January when that repeal vote
is held. In the meantime, and after that, until we can actually get
things under control, the oversight process and the funding for the
implementation must be under strict scrutiny.

____________________