[Congressional Record (Bound Edition), Volume 156 (2010), Part 12]
[House]
[Pages 17636-17643]
[From the U.S. 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

[[Page 17637]]

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 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

[[Page 17638]]

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 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

[[Page 17639]]

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, 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

[[Page 17640]]

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 
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?

[[Page 17641]]

  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 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

[[Page 17642]]

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 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

[[Page 17643]]

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.

                          ____________________