[Congressional Record (Bound Edition), Volume 156 (2010), Part 13]
[Senate]
[Pages 17909-17911]
[From the U.S. Government Publishing Office, www.gpo.gov]




                   EMPOWERING STATES TO INNOVATE ACT

  Mr. BROWN of Massachusetts. Madam President, I rise today and join my 
colleague, Senator Wyden, to speak about legislation we have introduced 
that will protect not only his State but my State of Massachusetts and 
other States by allowing them to waive out of specific requirements of 
the Patient Protection and Affordable Care Act.
  As my colleagues know, my single priority is and always has been to 
ensure that what we do in Washington does not harm my State of 
Massachusetts or the rest of the country, and that we are responsible 
stewards with every tax dollar that flows from the States into the 
Federal Government.
  This has been true when it comes to voting against raising taxes on 
families and businesses. It has been true when it comes to fighting for 
commonsense, progrowth policies that will create jobs in Massachusetts. 
It has been true in my efforts to be sure that the Federal health care 
reform bill does not diminish or harm the health care innovations that 
have occurred in Massachusetts.
  It is my belief that Congress needs to be held responsible for its 
actions, for the policies it advocates, and the legislation that 
ultimately passes through these Halls to become law. When Congress 
passes legislation that is harmful--in this case the Federal health 
care reform legislation, which I did not support--or there is an 
unintended consequence--which I think is the case when it deals with 
Massachusetts and the innovations we have had for years, where we have 
98 percent of our people already insured--Members need to be bold 
enough to stand up and fix it regardless of party affiliation and 
regardless of whether it is popular.
  I commend the Senator who is about to speak after me for his 
leadership on this matter. Senator Wyden has been working very 
diligently on addressing the concerns for his State. Today I get a 
chance to do the same. Today we get an opportunity to make a correction 
to the Federal health care reform bill to be sure we are doing the 
right thing, not just for Massachusetts but for other States that seek 
to waive out of certain requirements of the Federal health care reform 
law.
  In many ways, Massachusetts has been on the forefront of implementing 
health care reform: expanding access--as I mentioned, 98 percent of our 
people are already insured--designing systems to increase market 
participation--from the Cadillac plan, all the way to the fully 
subsidized Commonwealth Care Program--and increasing transparency for 
consumers and providers. We continue to learn, however, lessons every 
day in Massachusetts about what works and what does not work, and we 
are continuing to work on those very issues to make sure we can do it 
better.
  This is an important point because it speaks directly to the purpose 
of this piece of legislation that I have introduced in a bipartisan 
manner with Senator Wyden from Oregon.
  As you know, the health care reform efforts of Massachusetts are our 
own. We were one of the first States in the country to take this upon 
ourselves to address the very serious problem we had in providing funds 
to hospitals that were providing care for people who were making a good 
wage but who were not paying the bills. As a result, the citizens had 
to subsidize the hospitals to the tune of over $1 billion. So we 
believed it was imperative for us to get something done.
  As difficult as it is to admit this, not every State wants to be like 
Massachusetts. I understand that. They may not want to be like Oregon 
either. Massachusetts is a great State, with, I believe, the best 
hospitals, physicians, doctors, nurses, treatment facilities, research 
facilities in the country and around the world. There is a reason why 
people come to Massachusetts for the care and coverage they need so 
badly.
  But I recognize that my colleague from Oregon is interested in 
protecting reform efforts in Oregon as well. He does not want to be 
like Massachusetts because Oregon is different from Massachusetts. 
Oregon's insurance market is different. Its provider network is 
different. Its beneficiaries and population are different than in 
Massachusetts.
  Oregon might want to implement reforms or create a coverage mechanism 
that I do not like or that I would not want to work in the State of 
Massachusetts, but that is OK. That is what this bill is about. It 
allows the individual States to have the right to do what they believe 
is imperative and important for their particular State, which is why 
the legislation we have introduced--the Empowering States to Innovate 
Act--is so important.
  Right now, as provided under section 1332--the Waivers for State 
Innovation--of the Patient Protection and Affordable Care Act, States 
can waive out of provisions of the Federal reform law. That is the good 
news. We are allowing States to participate in the process and allowing 
them not to have duplicate processes or maybe potentially have lesser 
care and coverage if the Federal health care bill is implemented. So it 
allows us to continue to provide the care and services we want to 
provide to our citizens in Massachusetts. The bad news is, this waiver 
authority is not scheduled to take effect until 2017. So what are we 
doing until then--a full 3 years after the PPACA is scheduled to be 
fully implemented?
  For me and my dear friend from Oregon it does not make any sense. 
When I see something that does not make any sense in Washington, I do 
my best, regardless of party affiliation, to fix it.
  The first thing our bill does is to allow States to waive out of 
specific parts of the PPACA in 2014 rather than 2017. This makes sense 
not only from an operational standpoint, because the PPACA takes effect 
in 2014, but also from an economic and fiscal standpoint. Why should 
Massachusetts be delayed in obtaining a waiver from the Federal reform 
bill when it may already have met or exceeded, in many cases, the 
provisions of the act? So holding Massachusetts back by limiting my 
State's ability to continue to innovate and remain flexible and 
responsive to the health care market costs money, and it costs the 
taxpayers money at a point right now where we don't have a whole heck 
of a lot of money to go around.
  The second piece our bill does is to provide States with certainty 
with the waiver process. Not every State will be eligible. Let me 
repeat that: Not every State will be eligible for a waiver and not 
every waiver will be granted. But our bill provides some certainty for 
States that apply for a waiver by requiring the Secretary of Health and 
Human Services to begin reviewing applications within 6 months of the 
enactment of this bill. I hope this bill is enacted quickly. The 
earlier a State knows whether it has received a waiver, the earlier it 
can begin implementing its specific plans and proposals. It makes 
fiscal sense.
  Taken together, these two changes are not only good for Massachusetts 
but potentially for other States. They are good for the other States 
that are

[[Page 17910]]

trying to innovate and advance in the areas of health care reform, cost 
containment, and coverage. That is what it should be. It should be a 
symbiotic relationship between the Federal Government and the States. 
The States should have the right to determine what they want to do for 
their citizenry. Do we think maybe some States could do it better than 
the Federal Government? I believe when we deal with health care, 
Massachusetts is second to none, with all due respect to the other 
Senators in this Chamber.
  During Wednesday's Finance Committee hearing, Dr. Berwick, who is 
from the State of Massachusetts, I might add, said this about State 
innovation and flexibility:

       The cliche about states as laboratories of democracy is not 
     just a cliche, it's true. The diversity of approaches that 
     we're seeing emerge state by state has been there for long 
     time. I think we should be doing everything we can to 
     encourage it.

  I couldn't agree more. I am a strong supporter of States rights, 
especially when it makes sense, and for allowing States to solve 
problems without the Federal Government's interference.
  Madam President, I ask unanimous consent to have printed in the 
Record a letter from the Massachusetts Hospital Association in support 
of my efforts today.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                            Massachusetts Hospital


                                                  Association,

                                Burlington, MA, November 16, 2010.
     Hon. Scott Brown,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator Brown: As you know, the Commonwealth of 
     Massachusetts has succeeded in expanding healthcare coverage 
     to more than 400,000 uninsured residents. We can be proud of 
     the fact that the state has the lowest rate of uninsured in 
     the country, which has improved the lives of so many 
     Massachusetts residents and allowed the healthcare system to 
     operate more efficiently. Our state was able to achieve 
     expanded coverage of this magnitude through innovative 
     programs like Commonwealth Care and Commonwealth Choice, 
     along with other provisions that were part of the 
     Commonwealth's 2006 healthcare reform law.
       For these reasons, the Massachusetts Hospital Association 
     (MHA) supports the bill that you intend to introduce that 
     will advance the timeframe for waivers that were included in 
     the Patient Protection and Affordable Care Act (PPACA). As we 
     understand Section 1332 of PPACA, states may apply for a 
     waiver to certain requirements of the federal law so long as 
     the changes achieve healthcare coverage that is at least as 
     comprehensive as the federal law would have provided. The 
     changes are also required not to increase the federal 
     deficit. The law currently allows states to apply for such a 
     waiver beginning in January 1, 2017. Your proposed 
     legislation does not change the terms or process for 
     approving a waiver that currently exist in the PPACA but does 
     move up the date by which the waiver process may begin.
       While the Commonwealth is still years away from decisions 
     that will be made in 2014 and beyond, we believe allowing 
     Massachusetts the opportunity to apply for such waiver 
     earlier than 2017 may allow the Commonwealth flexibility it 
     may desire to continue the success it has achieved thus far. 
     We note that Massachusetts is often referred to as a model 
     for national healthcare reform and we believe any waiver that 
     the Commonwealth would apply for, if it so chose, would seek 
     to achieve a similar goal of affordable, comprehensive health 
     insurance coverage as required by Section 1332.
       Massachusetts hospitals have been and continue to be 
     supportive of the federal effort to expand coverage to the 
     uninsured and provide affordable health insurance for all 
     Americans. At the same time, we have stressed throughout the 
     national healthcare debate that national reform should 
     support the Commonwealth's own health reform achievements.
       On behalf of Massachusetts member hospitals and the 
     patients they serve, we look forward to working with you to 
     preserve Massachusetts healthcare reform as the nation begins 
     to implement the national healthcare reform law.
           Sincerely,
                                                    Lynn Nicholas,
                                                  President & CEO,
                               Massachusetts Hospital Association.

  Mr. BROWN of Massachusetts. Thank you, Madam President.
  We should be encouraging State innovation and not hampering it, and 
that is what the Empowering States to Innovate Act does. It helps 
ensure that States are not held back from innovating and seeking 
solutions that work for their citizens, their taxpayers, and their 
communities.
  Finally, I wish to associate myself with the comments of the Senator 
from Oregon when he makes them about how our bill fits into the Federal 
health care reform debate. Enacting this legislation is the right thing 
to do because it is good for States such as Massachusetts and Oregon 
and Utah that have begun to make changes and reform at the State level 
that make sense for their citizens.
  The legislation provides flexibility and says one size fits all is 
not appropriate and it does not always meet the needs of that 
individual State. I know the Federal standard is not in the best 
interests of the people of Massachusetts, which is why passing this 
bill is the right thing to do.
  Let me say I deeply appreciate the Senator from Oregon and his effort 
to weed through the quagmire of rules and regulations and come up with 
a commonsense solution. I am hopeful others in this Chamber will learn 
from our example, that we can work together in a bipartisan manner to 
tackle problems and try to solve them without the rhetoric and without 
the bomb throwing and just solve problems. Because right now, we need 
more people like the Senator from Oregon to do just that.
  The ACTING PRESIDENT pro tempore. The Senator's time has expired.
  Mr. BROWN of Massachusetts. Thank you, Madam President.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Oregon.
  Mr. WYDEN. Madam President, let me commend the Senator from 
Massachusetts on a very fine statement, which I think highlights 
exactly what we are seeking to do.
  The Senator from Massachusetts has been a real pleasure to work with 
on this matter. As he says, the whole point of this, as shown by the 
recent election, is that people want to find some common ground. They 
are not interested anymore in food fights and bickering back and forth 
between the political parties. What Senator Brown and I are seeking to 
do is to show it is possible on a significant issue--I think we all 
understand health care is about as important as it gets--that we can 
come together, and the two of us have said we are going to come 
together to put the focus on innovation. It is pretty clear that what 
works in Springfield, OR, may not be exactly ideal for Springfield, MA. 
But what we can do is come up with a way to provide more flexibility 
and particularly more choice and more competition for our States and 
other States around the country.
  So I am very grateful to the Senator from Massachusetts for his 
effort. It is early in the lameduck session, and it is my hope this 
will be a signal in the Chamber that even on these difficult issues--
issues that were so contentious in the political campaign--it is going 
to be possible to come together and find some common ground.
  As the Senator suggests, if we can just move away from a Federal 
cookie-cutter approach and encourage the kind of creative thinking we 
have seen in Oregon and in Massachusetts and other parts of the 
country, I think we will be well served and will be in a position to 
better contain health care costs. I think we all understand that how to 
rein in these medical costs that are gobbling up everything in sight is 
first and foremost on the minds of our constituents. Literally, for the 
amount of money we are spending today in this country, one can go out 
and hire a doctor for every seven families in the United States and pay 
the doctor more than $225,000 a year just for taking care of seven 
families. I always bring up this as almost a metaphor for health care, 
but usually after I am done, the physician who was listening in the 
audience comes up and says: Where can I go to get my seven families? It 
sounds like a pretty good deal. It just shows that we are spending this 
enormous sum of money.
  What Senator Brown and I are seeking to do is to encourage additional 
innovative approaches in States, approaches that are tailored to the 
needs of States' own residents, that will help us, in my view, to 
promote choice and competition in the American health

[[Page 17911]]

care system. The States are free to do whatever they choose. I just 
offer up my own judgment that right now, at a time when most Americans 
still don't get much choice in their health care coverage, this is an 
ideal opportunity that both Democrats and Republicans can support. As 
States seek to go forward with this approach, they can make their own 
choices.
  I hope, in particular, States will take a look at what you, Madam 
President, the Senator from New York, and I have in our own health care 
plan. The Federal Employee Health Benefit Plan provides a lot of 
choice, a lot of competition. You can go out and fire your insurance 
company if you don't think they are doing a good job. That is the kind 
of idea a State could pursue and do so, we hope, more quickly if we act 
legislatively to speed up the waiver process. But as Senator Brown has 
correctly noted, this is about giving States the freedom to chart their 
own course, and I am very hopeful we will be able to get this 
legislation passed.
  In particular, what I have been concerned about, after talking to 
health policymakers over the last few months, is if, in the State of 
New York, for example, you go out and set up a process to comply with 
the legislation for purposes of 2014 and you see that the waiver, as 
now constituted under 1332, starts in 2017, you say: How am I going to 
reconcile those two? Am I going to set up one approach for 2014 and 
then do another approach in 2017? It is going to put us through a lot 
of bureaucratic water torture to try to figure out how to synchronize 
those two dates. So it only makes sense to speed it all up and make it 
possible for everybody to get started in 2014.
  One other point because my intentions have been much discussed. When 
I originally started talking about the State waiver, people questioned 
whether this was something that was going to be a special opportunity 
for Oregon and not for other States. For over a decade, I have been 
promoting the idea that all States--all States--be given the freedom to 
innovate under health care reform legislation. In fact, to give a sense 
of how I got into this, going back and looking at the history of the 
Clinton health care plan, in the early 1990s it was pretty evident that 
had President Clinton and Republicans thought then about giving States 
the kind of freedom Senator Brown and I envision, it might well have 
been possible back in the early 1990s to enact health care reform that 
would have gotten all Americans quality, affordable coverage. That 
opportunity was missed. So I decided by the mid 1990s--if I had the 
opportunity, the honor, of representing Oregon in the Congress, I was 
going to use every single opportunity to let all States--and I want to 
underline all States--have the opportunity to innovate in health care.
  So in mid 2005 I started putting together a piece of legislation 
called the Healthy Americans Act. It was a bipartisan bill, that had 14 
or 15 Senators as cosponsors, depending on when you look back at the 
legislative history, that were almost evenly divided between the 
political parties. In the Healthy Americans Act, there was a specific 
section called ``Empowering States to Innovate.'' There was a provision 
in that bill that was first introduced in 2006, and a similar provision 
was included as section 1332 in the law the President signed.
  So I have long been interested in letting all States have the 
opportunity to innovate. One of the reasons I have been interested--and 
my good friend, Senator Merkley, is here--is that our State has been 
one of the leaders in the whole effort to reform American health care. 
From time to time, folks have said I am the Senator from the State of 
Waiver rather than the State of Oregon because we have tried so often 
to pursue innovative approaches in health care waivers. We were, as 
Senator Merkley knows, one of the first States to say Medicaid dollars 
that have been authorized for seniors to pay for services in 
institutions such as nursing homes should be used instead for home 
health care; thereby giving seniors more of what they want, which is to 
stay in their homes, at a cheaper price to taxpayers. We began those 
efforts, as Senator Merkley knows, with waivers from traditional 
Federal law. So we have a long history of doing this, and I have spent 
well over a decade trying to establish the principle that all States 
ought to have the opportunity to bring their creative juices to this 
issue of health care reform.
  We have outlined the two key changes in the legislation that is law 
today. The first change is to make the waivers effective in 2014 rather 
than in 2017 so States only have to change their systems once. The 
second thing the Empowering States to Innovate Act does is it requires 
the Department of Health and Human Services to begin to review State 
waiver applications within 6 months of enactment of the legislation. 
This would allow States early notification of whether their State 
waivers have been approved and would give them adequate time to roll 
out their State-specific plans. I think this, too, will help us create 
more competition, more choice, and more affordability in American 
health care because it will give the States adequate time to gear up. 
That is the philosophy behind the Empowering States to Innovate Act, 
whether one likes one particular approach or another. Clearly, there 
will be great diversity of approaches tried at the State level.
  At a time when we are looking for ways to bring this country together 
to deal with the most contentious issues of our time, we ought to be 
supporting innovation. We ought to be supporting unleashing creative 
kinds of approaches to deal with domestic issues. That is what Senator 
Brown and I propose in this legislation. I look forward to working with 
colleagues on both sides of the aisle.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The junior Senator from Oregon is 
recognized.
  Mr. MERKLEY. Madam President, I applaud the work my senior Senator 
from Oregon, Ron Wyden, has been doing in seeking affordable, effective 
health care for all Americans and, in particular, his work to utilize 
our State laboratories in developing smart health care strategies that 
then, if successful, can become a model for the Nation.
  This process of utilizing waivers isn't about a State wanting an 
exception so that it can be different; it is about recognizing that 
States have powerful opportunities to form policies that work well 
under particular circumstances but also may provide insights into our 
whole national strategy for affordable, quality health care.
  So for the work Senator Wyden and Senator Scott Brown are doing, I 
applaud them and support them, and I thank Senator Wyden for his 
decades of advocacy for affordable health care.

                          ____________________