[Congressional Record (Bound Edition), Volume 155 (2009), Part 11]
[Senate]
[Pages 15339-15341]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           HEALTH CARE REFORM

  Mr. McCAIN. Mr. President, as we all know, health care dominates the 
agenda and the thoughts and efforts of the Congress of the United 
States, and it has to be addressed. It is a historic opportunity to 
achieve the health reforms Americans need today more than ever. We need 
fundamental reforms--reforms that not only help people get affordable 
health care coverage but reforms that bring down the cost of health 
care.
  Given the enormous cost associated with the bill that has been 
proposed, I have called on the other side to scrap the bill and start 
from scratch. We have to get it right. It shouldn't be a partisan 
process that forces a bad bill through committee. In starting over, we 
must address the fundamental components of health care reform, 
including the major drivers of increasing health care costs.
  One of the main factors keeping health care cost trends too high is 
defensive medicine. Many medical practitioners order additional 
procedures for fear of litigation, which drives up the medical 
malpractice insurance costs faced by so many in the medical profession. 
Medical liability insurance is a direct result of out-of-control 
lawsuits that force physicians to practice defensive medicine to avoid 
these often costly and baseless liability lawsuits. Any legislation 
reforming our health care system is incomplete if it doesn't address 
this important issue.
  A 2003 HHS report estimated the cost of defensive medicine to be 
between $70 billion and $126 billion a year. Put that in the light of 
the report that is in the Washington Post this morning, which states 
that CBO says Obama's health plan needs spending controls. It goes on 
to say of President Obama's plan to expand health coverage to the 
uninsured:

       It is likely to dig the Nation deeper into debt unless 
     policymakers adopt politically painful controls on spending, 
     such as sharp reductions in payments to doctors, hospitals 
     and other providers.

  There is a way to save about $100 billion a year--$100 billion a 
year. Because if it were updated, the cost estimate would likely 
increase to $100 billion to $180 billion a year. Where is it in this 
bill? It is nowhere. It is nowhere. That is a testament to trial 
lawyers of America.
  On Monday, before a receptive crowd at the American Medical 
Association, the President stuck his toe in the medical liability 
reform waters by acknowledging that medical liability reform is real. 
But the President also took caps on noneconomic damages off the table 
by saying:

       Don't get too excited yet, just hold onto your horses here, 
     guys . . . I want to be honest with you, I'm not advocating 
     caps on malpractice awards.

  This all but ensures that meaningful reform won't happen. Today, the 
Wall Street Journal stated in an opinion piece:

       President Obama mentioned the medical liability problem and 
     . . . we suppose this is progress [but] Mr. Obama's [call] 
     might have had more credibility had he not specifically ruled 
     out the one policy to deter frivolous suits.

  Without caps on medical malpractice awards, ``the tort lottery will 
continue.''
  Interestingly, my neighboring State of California addressed this 
precise problem in 1975 by passing legislation that capped jury awards 
for ``noneconomic damages,'' such as pain and suffering, from medical 
malpractice lawsuits. Not only does this cap reduce the amount of 
damages, but it has had the effect of deterring lawsuits. Malpractice 
filings have fallen in almost every county in California. According to 
a 2004 RAND study, this has led to awards in medical malpractice 
lawsuits being 30 percent less than other States. Such a cap is sure to 
also lead to lower medical malpractice insurance rates.
  Not only do you have a reduction in the number of suits themselves, a 
reduction in awards, but you can imagine the costs that have been saved 
because doctors no longer feel compelled to practice defensive 
medicine, thereby prescribing unnecessary and unneeded tests and 
procedures simply to protect themselves in court from medical 
malpractice
  There are plenty of ideas that should be considered. Caps on 
noneconomic

[[Page 15340]]

damages, health courts, and national standards of care are just a few 
thoughtful concepts. In State malpractice reform over the years, we 
have demonstrable success stories that capping noneconomic damages 
brings down the cost of malpractice insurance. California and Texas 
both have reformed malpractice to stem the tide of doctors leaving 
their States.
  There is also intriguing ideas involving health courts--courts 
focused only on health disputes, with specially trained judges having 
expertise in health court adjudication to make injury compensation 
decisions.
  Some have also pushed for a concept establishing a national standard 
of care. The concept envisions establishing specific clinical practice 
guidelines that doctors would be required to follow and enforced by the 
Department of Health and Human Services. Supporters believe this 
approach might reduce liability concerns.
  These are but three examples that can be considered on both sides of 
the aisle. There are other ideas we would be well served to consider.
  When health care costs are said to be driven up by over $100 billion 
and up to 40 percent of medical liability lawsuits being entirely 
groundless, don't you think the other side would have some provision in 
their bill to address this fundamental problem; maybe even a modest 
provision? Well, I am here to tell you that the other side has yet to 
suggest any provision to address medical malpractice reforms. Shocking. 
It should be addressed, and it must be addressed as part of real health 
reform.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. ALEXANDER. Mr. President, I ask unanimous consent the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. ALEXANDER. Mr. President, today in the Health, Education, Labor 
and Pensions--HELP--Committee of the Senate, after several days of 
discussions, we are beginning to work on the health reform legislation 
that was proposed by our chairman, Senator Kennedy. As we begin our 
work today, I want to suggest that we put aside the legislation we were 
working on and that we start over because the Kennedy bill we are 
dealing with is so flawed and expensive that it cannot be fixed. There 
are better proposals available for us to work on, proposals advanced by 
Senator Burr, by Senator Coburn, there is a bipartisan proposal that 
Senator Wyden and Senator Bennett have offered, and Senator Hatch, a 
former chairman of the committee, is working with a number of Senators 
on a proposal that seems, to me, to be a much better base for a 
beginning.
  As we go to work on health care reform, these are the things we 
should keep in mind. We would want to be able to say to the American 
people that we are interested in all 300 million of you, not just the 
47 million uninsured; that our goal is to provide for each one of you a 
health care plan that you can afford, a plan in which you and your 
doctor--not Washington, DC--make the decisions, a plan that emphasizes 
prevention and wellness. We want to give low-income Americans the same 
kind of health plan that most Americans already have. We do not want to 
make it harder for American businesses to compete in the world 
marketplace by adding to their costs. And we do want a plan that your 
children and your grandchildren can afford so they are not saddled with 
a massive debt that devalues the dollars they earn and the quality of 
their lives.
  As the President has repeatedly said, the best way for us to realize 
all those objectives is to fashion this health care reform in a truly 
bipartisan way. The bill we are marking up today in the HELP committee 
is not ready to be considered. We do not have the details of the bill. 
We do not know the costs of the bill--even though the President, within 
the last few days, has said that pay-as-you-go rule is important. If we 
are going to spend a dollar, he said, we ought to save a dollar. Or he 
might have said raise taxes a dollar. That is what the President said. 
So surely we are not going to mark up a bill or finish marking it up 
until we know exactly whether we are going to have to save a dollar or 
tax a dollar or how many dollars we will need to save or tax in order 
to pass the bill.
  This we do know about the legislation our committee is considering. 
There are 47 million Americans uninsured today; it leaves 30 million of 
them still uninsured. We know that it expands one failing government 
program, Medicaid, and creates another, putting Washington in between 
you and your doctor. It reduces the ability of employers to give 
incentives for wellness and prevention--it doesn't increase it, it 
reduces it. It freezes 58 million low-income Americans into a Medicaid 
Program that offers sporadic, substandard care; is so expensive it will 
literally bankrupt States; and our Government Accountability Office has 
told us it wastes $1 for every $10 it spends--that is $32 billion a 
year, three-fourths as much as we spend on all the prescription drugs 
for senior Americans.
  According to unbiased government officials, its additions to the 
national debt are astronomical. The Congressional Budget Office told us 
yesterday that the Kennedy bill, so far as it is written, will add $1 
trillion to the debt over the next 10 years. That does not include the 
Medicaid expansion or the expansion of reimbursements for doctors 
seeing Medicaid patients. It does not include the government health 
insurance option. It doesn't include the employer mandate.
  The Baucus bill, we are told, according to press reports, in the 
Finance Committee, may cost $1.5 trillion over the next 10 years and an 
independent study released yesterday says the Kennedy bill may mean $4 
trillion. The National Governors Association says Medicaid itself will 
add a half trillion dollars to the State costs over the next 10 years 
if reimbursement rates are increased as they are proposed to be 
increased. This is on top of what the Washington Post said earlier this 
week is a set of proposals by the Obama administration that would add 
nearly three times as much to the national debt over the next 10 years 
as we spent in all of World War II.
  This bill, I am sorry to say, is absolutely not a bipartisan bill. We 
are having a bipartisan discussion. We are all very friendly and civil 
to one another. Chris Dodd is doing a tremendous job of sitting in for 
Senator Kennedy. We all like him, but we know what a bipartisan bill 
is, it is when 15 or 20 of us from different sides of the aisle sit 
around a table and start from scratch and take our best ideas and put 
it together and get 60 or 70 or 75 votes for something. We have done it 
many times on energy, on intelligence, but we are not doing it on this. 
We were presented with a bill last Thursday, or some of a bill, and 
told: This is it. This is the way we are going to do it. We are going 
to have a lot of discussion about it but this is the way we should do 
it.
  We should start over. If we start over based on the discussions we 
have already had, we should be able to agree that every American should 
be covered. We should be able to agree that it should be at a cost each 
American could afford. We should be able to agree that preexisting 
conditions do not disqualify you, and that prevention and wellness is 
encouraged. We should be able to agree that low-income individuals have 
the same choices, same opportunities for health insurance that the rest 
of us do. And we should be able to agree that Americans should have 
choices.
  On all of those things we ought to be able to agree, if we were 
starting from scratch. If we do all those things, why do we need to 
create a so-called government-run insurance plan? That is the big 
difference of opinion we have in the committee and I believe on the 
Senate floor. A government-run insurance plan inevitably leads to a 
Washington takeover, of which we are having far too many these days: 
Washington takeovers of banks, Washington takeovers of insurance 
companies, Washington takeovers of student loans, Washington takeover 
of car companies. Why do we need a Washington takeover of our health 
system? And why would a government-run insurance plan lead to a 
Washington takeover?

[[Page 15341]]

  Think of it this way. It is like putting an elephant in a room with 
some mice and saying: All right, fellows, compete. I think you know 
what would happen. After a little while only the elephant would be 
left. The elephant would be your only choice.
  We have a very good example of what that elephant would look like. We 
call it Medicare, a program that every State has, that the Federal 
Government pays 62 percent of and the State pays 38 percent, on the 
average, and it provides health care to low-income Americans, those who 
are not on Medicaid.
  I would like to find a way to require every Senator who votes for 
expanding Medicaid coverage to be required to go home and serve as 
Governor of his or her home State for 8 years and try to manage and pay 
for a Medicaid Program that is expanded to meet the needs of what we 
are trying to do. The only way you could like the Medicaid Program is 
if you have been in Washington a long time and you don't have to manage 
it, you don't have to pay for it, and you don't have to get your health 
care from it.
  Let me be very specific. The Medicaid Program--and I dealt with this 
for years as Governor myself--is filled with lawsuits. It is riddled 
with Federal court consent decrees from 25 years ago that restrict the 
ability of government and legislators to make improvements. It is 
filled with inefficiencies and delays that take a Governor a year to 
get permission from Washington to do something 38 other States are 
doing and, I mentioned, it has intolerable waste of taxpayer dollars. 
The General Accounting Office says $32 billion, every year, is wasted 
in the Medicaid Programs. That is 10 percent of all the money that is 
appropriated to it.
  The second thing wrong with Medicaid, what a Senator who goes home to 
serve as Governor would find out, it would require higher State taxes 
at a time when States are making massive cuts in services and are very 
nearly bankrupt. The State of Tennessee, by my own calculations--I 
believe it would require a 10-percent new State income tax by the year 
2015, if the Senate were to take the Kennedy bill and the Baucus draft 
and enact them today.
  Why would it do that? The State director of Medicaid in our State 
says if we increase Medicaid coverage to 150 percent of the Federal 
poverty level, that costs the State of Tennessee $572 million. If the 
Federal Government pays for that, the bill for the Federal Government 
for that increase is $1.6 billion, just for the Tennesseans covered.
  It would also increase the pay for Medicaid providers to 110 percent 
of what Medicare pays physicians. That would add another $600 million 
in Tennessee, because Tennessee's Medicaid pays physicians 70 percent 
of what Medicare pays physicians. And Medicare pays physicians 80 
percent of what private companies pay physicians.
  So the increased costs, just for Tennessee of the Medicaid expansion 
in the Kennedy bill, is $1.2 billion, according to our State Medicaid 
directors. If the Federal Government has to pay the whole thing, it is 
$3.5 billion.
  But then they are talking in the Finance Committee about shifting 
those costs back after 5 years to the States. So here comes a $1.2 
billion bill to whoever is Governor of Tennessee in 2015.
  Last thing, to put this into perspective, they tried to pass an 
income tax in Tennessee. Today, a 4-percent income tax would produce 
$400 million a year. We are talking about finding $1.2 billion a year.
  The National Governors Association said increasing the Federal 
poverty level to 150 percent would increase the cost to $360 billion 
over 10 years in all the States, and increases in Medicare 
reimbursement would bring that total to half a trillion in all of the 
States. That is on top of the trillion dollars that the Congressional 
Budget Office has said Senator Kennedy's bill already costs.
  One of the effects of this is it would absolutely destroy our public 
colleges and universities across the country. It is already damaging 
them, because Governors and legislators are finding they barely have 
enough money to keep up with increasing Medicaid costs. They have 
nothing left for colleges and universities. So the quality of the 
universities goes down and the tuition at the universities goes up.
  Finally, Senators serving as a Governor of their home State trying to 
manage an expanded Medicaid Program would find that most of the people, 
maybe a majority, would find a hard time getting service. Today, 40 
percent of doctors nationally do not provide full service to Medicaid 
patients because of the low reimbursement rates.
  So any version of the bill we are now considering in the Senate HELP 
Committee will explode into complexity and astronomical spending and 
will never succeed.
  There is a better way. There are several better ways. Instead of 
stuffing low-income Americans into one failing government health care 
program, Medicaid, that now provides substandard care and creating a 
new government-run program, why do we not give low-income Americans 
government grants or subsidies so they can purchase private insurance 
as is provided by the Wyden-Bennett bill, for example, which has a cost 
of zero to the taxpayers, according to the Congressional Budget Office; 
or the Coburn-Burr bill, or Senator Gregg's bill, or the bill that 
Senator Hatch is working on with Senator Cornyn and others.
  Those are the ways to meet our objectives. So here are our objectives 
once more: We want to provide health coverage to 300 million Americans, 
not just to the 47 million uninsured. We want for you a health care 
plan that you can afford. We want for you a plan in which you and your 
doctor make the decisions, not Washington, DC. We want a plan that 
emphasizes prevention and wellness. We want a plan that gives low-
income Americans more of the same opportunities and choices for health 
care that most Americans already have. And we want a plan that does not 
make it harder for American businesses to compete in the world 
marketplace by adding to their cost.
  We want, in the end, a program, a health care program your 
grandchildren and your children can afford and does not heap trillions 
of dollars of new debt up on them, that devalues the dollar they will 
eventually earn, and the quality of their lives.
  As the President has repeatedly said, the best way to do that is in a 
bipartisan way. But in order to do that, we need to put aside the bill 
we are working on today in the HELP Committee and start over again in a 
truly bipartisan way to meet those objectives.
  I yield the floor and I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SPECTER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

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