[Congressional Record Volume 158, Number 48 (Thursday, March 22, 2012)]
[Senate]
[Pages S1960-S1963]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
HEALTH CARE
Mr. ENZI. Mr. President, we are going to talk about Medicare today
and the way the Patient Protection and Affordable Care Act cuts into
Medicare, destroys Medicare.
Two years ago the President wanted a health care bill in the worst
way, and that is exactly what he got, and that is exactly what America
got.
Anybody out there on Medicare or about to be on Medicare or young
enough that someday they will be on Medicare should be very concerned
about what happened under this act. All of you, I am sure, are aware of
somebody who is on Medicare who has already been denied a doctor; they
are being denied because they are not being paid what they ought to be
paid.
To call it the ``patient protection'' and ``affordable'' care act is
a major mistake. It neither protects Medicare patients nor makes it
more affordable. In fact, one of the things we will bring out today is
that there has been a theft of $500 billion from Medicare to fund other
parts of the program. There is some fraud in it because it was spent,
but it still shows up in the account. That is how they show that this
really doesn't add to the debt. To solve the whole thing, they have a
whole new board of unelected bureaucrats to make additional cuts to
Medicare to make it look as though it is OK. And then there is the
accounting sleight of hand. I am one of the two accountants in the
Senate now, and you have to pay attention to see it. It goes back to
the fraud because if this same sort of thing were being done in the
private sector, people would go to jail.
There are a number of ways that we will bring out how that is not
just budget gimmicks and sleight of hand but is actually taking
advantage of seniors.
The Chief Medicare Actuary said that Medicare will go broke in 2024.
That is 5 years earlier than last year's report by the Chief Medicare
Actuary. He is the guy who works for Medicare; he doesn't work for us.
He has to figure out each year how much in the hole it is and what
needs to be done to fix it.
My contention, of course, is that you can't steal $500 billion out of
a program that is already going broke and expect it to be fine. We
warned about that as we were going through the passage of this Patient
Protection and Affordable Care Act, which, as already mentioned, was
passed 2 years ago tomorrow. It could have been fixed. There were three
plans on the Republican side that would have done what is claimed to be
done by this act. Those ideas were largely rejected.
Today we are going to talk about some thefts, fraud, unelected
bureaucrats, and accounting sleight of hand. I have some people here
who want to respond to some of the things that have been said.
Senator Coburn has listened to some comments made on the other side
celebrating this great day.
Mr. COBURN. Mr. President, I listened very intently to the first two
speakers this morning. As somebody who has now been a physician for
almost 30 years--I practiced full time for over 25 years--I heard the
Senator from Iowa and what his desire would be on the chart he showed.
He said that 100 percent screening is occurring now in three areas.
That isn't true. We are not screening. We hope to screen, and we hope
to screen 100 percent, but the facts on screening that are available
are that it is only used 5 percent by Medicare patients on the
screening that was already available with no cost to Medicare patients.
So we have to distinguish between what we desire and what is actually
going to happen.
Let's take the example of colon screening. I am a colon cancer
survivor. I was diagnosed, through colonoscopy, with colon cancer.
Let's take that example, and then let's take the example of the other
aspect of the affordable care act, called the Independent Payment
Advisory Board. What is the purpose of that Independent Payment
Advisory Board? Its purpose is to cut the cost of Medicare through the
decreasing of reimbursements--first, for the first 8 years, physicians
and outside providers, and then, starting in 2019, hospitals. What do
you think the first thing to be cut will be? It is the reimbursement
rate for a colonoscopy. So when the reimbursement rate for a
colonoscopy goes below the cost--and it is very close right now, by the
way, the cost to perform a colonoscopy versus what Medicare
reimburses--when that is cut, what do you think will happen on
screening?
The goal of changing health care is an admirable goal. We know that
$1 in $3 doesn't help anybody get well or prevent them from getting
sick today. But what the American people need to understand is that
what is coming about is a group of 15 unelected bureaucrats, who cannot
be challenged in court, who cannot be challenged on the floor of the
Senate or the House, mandating price reductions to control the cost of
Medicare. What does that ultimately mean? They will do their job. We
won't be able to do anything about it. But what it means is that they
will reimburse at levels less than the cost to do services, and so,
consequently, what will happen is the services won't be there.
They also are going to do what is called comparative effectiveness
research. We know about comparative effectiveness research. If you are
a practicing physician today, you have to do continuing medical
education. Part of that medical education is knowing the latest
comparative effectiveness research. It is as if they are reinventing
[[Page S1961]]
something that already exists. But the point is that they are going to
use that to deny or change payments for procedures that patients need.
What is wrong with all of this? It is that we are inserting a
government board and government bureaucrat between the patient and the
doctor.
Think about that for a minute. When I go to my doctor, I don't want
him concentrating about anything except me. If he is looking over his
shoulder about whether he met the IPAB's comparative effectiveness
study on what he is doing for me, when, in fact, the art of medicine as
well as the science may say they are wrong, and he is going to do what
the government says rather than what he thinks is best for me, what am
I getting for that?
I will be on Medicare next year, much to my regret, because my
choices will now be limited in terms of who I can see. The greatest
threat to the quality of care--it wasn't intended to be this way, it
was intended to be helpful, and I don't doubt the motives of anybody
who set this board up--but the greatest threat to quality of care for
seniors in this country is the Independent Payment Advisory Board and
their noncaring position. Because they are going to be looking at
numbers and words. They are never going to lay their hands on the
patient, they are never going to impact a patient directly, they are
never going to listen to a patient, but they are going to make the
ultimate decisions based on what that patient is going to get.
With that, I yield back to my colleague.
Mr. ENZI. But that board was made essential by decisions that were
made in the health care bill. In the health care bill, we took $500
billion--$\1/2\ trillion--that should have stayed with Medicare to
solve Medicare problems.
The doc fix is one of the big problems we need to solve. It is up to
about, I think, $230 billion that we need to do that. That would be a
pretty good chunk out of this. And unless that is done, people won't be
able to see a doctor.
I keep saying, if you can't see a doctor, you really don't have
health insurance, and that is what we are going to be doing to our
seniors. We cut $135 billion from hospitals, we cut $120 billion from
the 11 million seniors who are on Medicare Advantage, we took $15
billion from nursing homes, and we took $7 billion from hospices to
spend on programs that have nothing to do with Medicare or those
things. That is fraud, and it shouldn't have happened.
The CBO Actuary and the Chief Medicare Actuary have acknowledged this
reality. Incidentally, the Chief Medicare Actuary says the program is
going to go broke in 2024, and CBO says it will happen in 2016. Now
2016 is pretty short term to be fixed. I think 2024 is short term. So
whichever estimate you want to take, Medicare is in trouble and $500
billion should not have been taken out of it. That $500 billion should
have been dedicated to fixing Medicare.
We still have to fix Medicare, and the only solution we have come up
with is the one Senator Coburn mentioned, which is to form this new
board, with surprising powers, that is going to be able to cut some
more in Medicare so it doesn't look as though we stole $500 billion
from Medicare.
Senator Burr is on the committee. He has had to sit through a lot of
the hearings and a lot of the amendments that were never passed from
our side that would have fixed this, and I am sure he has some
comments.
Mr. BURR. I thank the Senator from Wyoming and my colleague from
Oklahoma. We have worked on this, spent tireless hours trying to save
not just Medicare but health care as we know it in America today. I
think what my colleague has already mentioned is that we have put in
place mechanisms in law that will dismantle a health care system the
American people feel comfortable with and that has served them well but
that we agree is way too expensive. Look at the examples Dr. Coburn has
talked about--IPAB, the independent board that will make coverage
decisions and reimbursement decisions. When you cut reimbursements, you
are going to chase doctors out of the system. As you cut
reimbursements, you are going to defund the hospital's ability to keep
the doors open in rural America.
But let's look at the things that are not obvious. What does that
effort by IPAB do to innovation in health care? What companies are
going to go out and put $1 billion on the line for development of a new
drug or a device given they do not think they can recover enough
through the reimbursement system to cover their research and
development, much less the approval process of the products? It would
be a vastly different America if in fact all these drugs that are
breakthroughs and the devices that are so effective at keeping us
living longer are sold in Europe and South America and Asia but not in
the United States because we have now developed a health care system
that doesn't allow them the ability to recover that money. Now match
that with the lack of choice today.
In this country, we have choice. As a matter of fact, as a Federal
employee, I can pick from probably 30 different health care plans--the
same ones every Federal employee can choose from. But all of a sudden,
in this health care bill, we have said to seniors: You know that
Medicare Advantage which allowed you choice, where you could choose a
provider other than the Federal Government? Well, we are going to take
that away from you. Now, we didn't take it away, we just said we are
not going to reimburse them to the degree that allows them to offer the
plans.
Let's look at what Medicare Advantage provided for seniors. It
provided a wider array of benefits than does traditional Medicare. It
is good for some. They have chosen it. It won't be good for them in the
future, if this health care bill is not reversed, because through the
actions of IPAB and through the explicit language of the bill, Medicare
Advantage will not be an advantage anymore, and everybody will have to
default to the government plan that probably won't be as expansive with
preventive care.
I know the Senator from Wyoming knows that in North Carolina we sort
of lead the country as the model of medical homes. We are on the verge
there of trying to put seniors into medical homes. We have already done
it with a Medicaid population. We have saved money. But my State of
North Carolina this year has a gap of about $500 million in Medicaid--
the people we are responsible for and the money we have allocated for
it, even though the last 3 years we have saved almost $1 billion by
being creative at how we designed our Medicaid. This health care
initiative, with no input from any State, will double the population of
Medicaid beneficiaries in North Carolina. So what have we done? We have
shifted the responsibility down to the State at the State taxpayer
level.
We didn't magically change anything in health care. We are
reallocating where we are collecting the money from, and every State is
the same. They underpay for reimbursements under Medicaid, doctors
limit the number of patients they see that are Medicaid patients.
Imagine what happens when we double the size of the Medicaid population
in America. Hospitals don't have the ability to limit. They are under
Federal law that says when someone shows up, they have to see them.
What we are going to do is probably attempt to bankrupt the
infrastructure that we have for health care for the simple reason that
rather than fix health care, we came up with creative ways to pay for
it. Or in the case of IPAB--the Independent Payment Advisory Board--we
figured out an external way from Congress to cut the reimbursements to
doctors and to hospitals and to limit the coverage of all plans where
it doesn't have to go through a legislative process in Washington. We
are not always the finest example of legislation becoming law, but this
is the mechanism our Founding Fathers set up to make sure bad things
didn't happen.
I have to say this is one that slipped through, and now we have the
responsibility to go back and fix the pieces of it that would be
devastating to the future of health care in this country.
I thank the Senator from Wyoming for letting me share some time.
Mr. ENZI. I think the Senator too would be interested in the
accounting and some of the sleight of hand involved in the prescription
Part D. We put a prescription Part D in so people would have a little
better chance of paying for their prescriptions--a very difficult
program. It was very expensive.
I know in my State we were looking at only two people who were
selling
[[Page S1962]]
pharmaceuticals to seniors. I thought, boy, when this program goes in,
there probably won't be any. But when it was opened to a wide choice, I
found out there were 46 companies that wanted the business in Wyoming,
and it turned out to be a very successful program at helping people.
In this affordable care act, of course, they do some things with the
doughnut hole which are a little sleight of hand, because some of the
companies that sell brandname prescription drugs agreed they would
reimburse people for a part or up to all of their medications while
they went through that doughnut hole, knowing when they got out of the
doughnut hole they would stay with that brandname and it would cost the
whole program a lot more.
So in an area where we were saving money and could have fixed it so
seniors had a better chance at it but not giving an advantage to the
brandname drug users would have actually saved some money in the
program, but that didn't happen. I know since my colleague is involved
a lot in the pharmaceutical area, and has done a tremendous job at
making sure we are safe from terrorist attacks and pandemic flus and
worked with vaccinations, and is probably the foremost person at both
ends of the building at knowing how to do that, he may have some
comments on this prescription Part D.
Mr. BURR. Well, I thank my colleague for that acknowledgment, and
that is why the thought that innovation would leave the American health
care system terrifies me. Innovation is the answer to the threats, both
natural and intentional, that could come to this country and everywhere
in the world. We never know what is around the corner. But our ability
to innovate in this country has always kept us one step ahead, and I
believe we are on the cusp of a new era of innovation that can only be
thwarted if in fact this health care bill is fully implemented. Because
the incentive will now be gone for entrepreneurs to take risks. There
is no longer going to be an incentive that says take a risk and there
is an opportunity at a reward.
As the Senator from Wyoming pointed out very well, we created
Medicare Part D. What a novel approach, to take a health care benefit
that didn't exist in the 1960s, when we created Medicare and matched it
up with the coverage of the rest of the delivery system. What was the
result of creating market-based coverage? Today, Medicare Part D costs
50 percent less than the estimate we made years ago when we created it
in terms of what the annual premium cost was going to be. Why? It is
because we created private sector competition. We didn't create
government plans. It probably would have been much easier to say, okay,
we are going to supply a benefit for every senior in the country. I can
assure you, had we done that, we would have been well over what we
projected the annual cost to be. But we are 50 percent under because we
have private sector entrepreneurial companies out there competing for
the business, and they are smart enough to look at the types of
coverage needed and they are custom designing that to meet the needs of
seniors in this country.
I daresay the current health care plan that is going to be
implemented and fully executed by 2014 was not personalized for anybody
in this country. It looks at a 17-year-old the same way as it does a
77-year-old. Yet the health challenges and the incomes are different
for both ends of the spectrum, and that is because government can't
look at us as individuals. They can't group us and design something
that addresses not just the coverage needs but the costs long term and
the solvency.
So we only have one choice, and that is to fix what is broken. It is
amazing how there is great agreement on those things that would be
damaged long term and those things that are actually positive and move
the ball in the right direction.
Mr. ENZI. So that prescription Part D actually drove down the cost of
medication, and now we are ending up in a situation where part of that
will be in trouble because of what has happened to Medicare, with $500
billion being stolen.
I see we are joined by Senator Lee of Utah, and I know that Utah has
had a health care system that has been a model for other States and now
is possibly in jeopardy. I don't know if the Senator would care to
comment on Medicare or on that, but we appreciate his coming.
Mr. LEE. I thank my colleague. And he is correct, Utah does indeed
have a health care system that functions well, and functions well
notwithstanding the fact it is not managed, it is not governed by the
Federal Government.
This is one of the great wonders of our Federal system. When we
became a country about 200-plus years ago, we did so against a backdrop
that is informative for us still today. We became a country, in part,
because we discovered through trial and error, through our experience
as British colonies, that local self-rule works best. People govern
themselves much better than a large distant government can govern them.
That is exactly why we became a country, because we learned that local
self-rule works.
We learned also that there is great danger to our individual liberty
with any government, because whenever any government acts, whenever it
does anything to regulate our lives, it does so at the expense of our
individual liberty. We become less free by degrees whenever government
does just about anything.
But the risk to our liberty is especially great--it is at its
highest--when the acting government is a large one, when it is a
national government. National governments, as we learned in our
experience with our national government before we became a country--our
national government that was then based in London--national governments
tend to tax us too much, they tend to regulate us too heavily, they
tend to be inefficient, they tend to be slow to respond to our needs in
part because they are operating so distantly from where many of the
people reside.
So when we became a country, we left most of the powers at the State
and the local level. We eventually came up with this document, this
almost 225-year-old document that has fostered the development of the
greatest civilization the world has ever known. And in that document we
came up with a list of powers that a national government must have in
order to survive, and we kept that list fairly limited. We said the
national government needs to have the power to provide for our national
defense, to regulate commerce or trade between the States and with
foreign nations and with the Indian tribes, to protect trademarks,
copyrights, and patents, to establish a uniform system of weights and
measures, to come up with a system of bankruptcy laws, laws governing
immigration and naturalization, and a few other powers. But that is
basically it.
There is no power in this document that gives our national
government, that gives us--Congress, as a national legislature--the
power to regulate anything and everything. There is nothing in this
document that gives Congress what jurists and political scientists
refer to as general police powers; that is, the power to come up with
any law that Congress might deem just and good and appropriate and
advisable at any moment. That, again, was because of the calculated
assessment made by the founding generation that we needed a government
possessing only limited enumerated powers: to protect individual
liberty, and to assure that we in America would continue to live as
free individuals.
Over time we have drifted somewhat in our understanding of what those
powers mean. Over the last 75 years, the Supreme Court has been
applying a deferential standard toward Congress in reviewing laws
enacted under the commerce clause, clause 3 of article 1, section 8.
The Supreme Court has, since about 1937--at least since 1942--said that
Congress may regulate without interference from the courts under the
commerce clause activities that, when measured in the aggregate, when
replicated across every State, can be said substantially to affect
interstate commerce. That is more or less the guideline the Court has
given us. They are not necessarily saying that everything and anything
that fits within that is necessarily within the letter and the spirit
of the Constitution, but that, at least so far as the courts are
concerned, so far as the courts have been willing to step in and
validate or invalidate, that will be what guides the courts in making
that assessment. Beyond that, the debate has to be hammered out within
the Halls of Congress.
[[Page S1963]]
The affordable care act--also known as Obamacare--contains an
individual health insurance mandate that takes Congress's powers to a
whole new level. For the first time in American history, our national
legislature has required every American in every part of this country
to purchase a particular product; not just any product but health
insurance; not just any health insurance but that specific kind of
health insurance that Congress, in its wisdom, deemed appropriate and
necessary for every American to buy. This is absolutely without
precedent. It is also, I believe, not defensible even under the broad
deferential standard that has been applied by the U.S. Supreme Court
since the late 1930s and early 1940s.
Among other things, the limits that have been maintained by the
Supreme Court, notwithstanding its deference to Congress under the
commerce clause, have been limited by a few principles.
First, the Supreme Court has continued to insist that although some
intrastate activities will be regulated by Congress under the commerce
clause, some activities occurring entirely within one State--activities
that historically would have been regarded as the exclusive domain of
States, activities such as labor, manufacturing, agriculture and
mining--although some activities might be covered by Congress, those
activities at a minimum have to be activities that impose a substantial
burden or obstruction on interstate commerce or on Congress's
regulation of interstate commerce.
The Supreme Court has also continued to insist that the activity in
question that is being regulated needs to be activity, first of all,
and not inactivity. But it also needs to involve economic activity in
most circumstances, unless, of course, it is the kind of activity that,
while ostensibly noneconomic, by its very nature undercuts a larger
comprehensive regulation of activity that is itself economic.
Finally, the Supreme Court has continued to insist time and time
again that Congress cannot, in the name of regulating interstate
commerce, effectively obliterate the distinction between what is
national and what is local.
The affordable care act through its individual mandate effectively
blows past each and every one of these restrictions, restrictions that
even under the broad deferential approach the Supreme Court has taken
toward the regulation of commerce by Congress over the last 75 years or
so--even the Supreme Court, even under these broad standards, isn't
willing to go this far. There are very good reasons for that, and those
reasons have to do with our individual liberty. They have to do with
the fact that Americans were always intended to live free, and they
understood that they are more likely to be free when decisions of great
importance need to be hammered out at the State and local level; that
is, unless those decisions have been specifically delegated to
Congress, specifically designated as national responsibilities. This
one is not.
Decisions about where you go to the doctor and how you are going to
pay for it are not decisions that are national in nature, according to
the text and spirit and letter and history and understanding of the
Constitution. They are not, and they cannot be.
If in this instance we say, well, this is important so we need to
allow Congress to act--if we do that, we do so at our own peril. We
stand to lose a great deal if all of a sudden we allow Congress to
regulate something that is not economic activity; in fact, it is not
activity at all. It is inaction. It is a decision by an individual
person whether to purchase anything, whether to purchase health
insurance or, if so, what kind of health insurance to purchase. Our
very liberties are at stake, and that is why I find this concerning.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. ENZI. I ask unanimous consent for an additional 2 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ENZI. Mr. President, I thought I had 2 more minutes. I appreciate
the comments.
This is the 2-year anniversary of passing what is the so-called
affordable patient care act. The Supreme Court has chosen next week to
begin the deliberations on it, and they are going to take three times
as long as they do on any case so that they can divide this into
pieces, and that mandate piece will be the second one.
One that they probably won't be going into is this Medicare problem.
We are going to have seniors who are going to be without care because
we have taken $500 billion out of Medicare when it needed a doc fix and
it needed a whole bunch of other things, and particularly in rural
areas where there are critical access hospitals, rural health clinics.
Can any reasonable person believe that you can cut $\1/2\ trillion from
a program and not affect its impact on patient care?
I wish to have more time to show that there is a theft of this $500
billion, there is fraud involved, that there are bureaucrats and
accounting sleight of hand.
____________________