[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

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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.

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  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.

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