[Congressional Record (Bound Edition), Volume 160 (2014), Part 13]
[Senate]
[Pages 17707-17713]
[From the U.S. Government Publishing Office, www.gpo.gov]




   PROTECTING VOLUNTEER FIREFIGHTERS AND EMERGENCY RESPONDERS ACT OF 
                            2014--Continued


                               Dodd-Frank

  Mr. SCHATZ. The House is now considering the funding bill for fiscal 
year 2015, and the risks of not passing it are extremely high. But 
tucked into this must-pass bill is yet another attempt by Republicans 
in the House of Representatives to gut Dodd-Frank. What is really scary 
about this is that this is just the beginning. We can expect much more 
of this in the 114th Congress.
  Dodd-Frank was designed to reduce the systemic risks that large banks 
posed to our financial system. It was meant to prevent another taxpayer 
bailout of these massive institutions that were and continue to be too 
big to fail. By chipping away at Dodd-Frank we are once again letting 
special interests prevail over the safety of the financial system and 
protection for consumers.

[[Page 17708]]

  There were many roots of the financial crisis, but economists agree 
that the unregulated and pervasive trading of derivatives was a major 
contributing factor. We permitted financial institutions to gamble and 
regulators looked the other way. When these financial institutions made 
bad bets and nearly took down the financial system, we had to bail them 
out on the taxpayers' dime. Working families who are struggling in a 
slow economic recovery are still paying the price.
  So one of the goals of Dodd-Frank was to get the banks to go back to 
doing the normal business of banks--to collect deposits and extend 
credit. That means no longer allowing banks to leverage FDIC-insured 
deposits and their access to the Federal Reserve for speculative trade. 
In part, Dodd-Frank accomplished this through the swap push-out rule. 
The swap push-out rule, which is section 716 of Dodd-Frank, makes 
federally insured institutions move their swap trades into a separate 
uninsured entity that does not have access to the Federal Reserve 
discount window or other fed assistance. These trades are incredibly 
complex and risky, and there is no public policy justification for the 
government to effectively subsidize them.
  Before we even passed section 716, the biggest financial institutions 
were able to water it down. They wanted exemptions for swaps for 
``hedging purposes'' which could be interpreted to mean a wide range of 
activity. But that was not enough. Now they want to do away with 
section 716 by making the exemptions so broad that the rule becomes 
meaningless.
  Let's be very clear. This change primarily benefits the five biggest 
financial firms in the country. They account for well over 90 percent 
of swap transactions. These activities net them over $4 billion in 
profits. Before the crisis, swaps brought in over $7 billion. One of 
these firms actually wrote the language in the House bill. These 
financial institutions and their lobbyists know what they are doing, 
and they are doing just fine. They know that when something as 
important as funding of the government is on the line, they can 
convince Republicans to slip their priorities into a must-pass bill at 
the last hour. But again, this is just the beginning. Make no mistake 
about it. This portends much worse things when it comes to the 
Republicans taking over the majority in the Senate and the 114th 
Congress.
  This is a big problem because we have been down this path before. We 
know where it leads. We let risk build in our financial system before, 
and the fallout was disastrous for our economy and the well-being of 
working families. It is on us to hold back against special interests. 
We have a responsibility to protect the public from this attempt to 
roll back Dodd-Frank. We cannot take our eye off the ball. We have to 
continue to guard against systemic risks in our financial system, and 
we have to put a stop to the practice of holding the government hostage 
over the pet issues of special interest groups.
  The House is in a recess subject to the call of the Chair, and they 
are trying to round up votes for the omnibus spending bill which 
contains this provision. But they have another option. They can strip 
this provision. If they find that they don't have sufficient votes, 
they don't have to pass a 3-month continuing resolution. They can 
simply remove this provision from the omnibus bill which was negotiated 
in good faith with both parties in both chambers. Remove this 
provision, and I have no doubt we will have a resounding bipartisan 
supermajority in both Chambers. We should remove section 716, and pass 
the omnibus properly.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. BOOKER. I really appreciate the words of Senator Schatz, which 
are spot-on. People are so frustrated right now with Congress, and it 
does not take a Ph.D. in political science to figure out why common 
Americans of all backgrounds are frustrated with Congress. It is 
because people are frustrated with business as usual here in the Senate 
and the House. In this case, as Senator Schatz points to, here we are 
at the end of the 113th Congress facing a $1 trillion spending bill--a 
bill with funding that is critical to our national defense. It is 
critical to the health and well-being of Americans. It is critical to 
the strength of our community.
  I know the sincerity and passion with which Senate and House 
negotiators have been working to get this done. They have been focusing 
on making sure the American public has those critical services that we 
need. I give tribute to many of the leadership in this body for working 
on it. Senate leaders should get credit, also--Barbara Mikulski for 
holding the line on so many critical priorities, for putting in this 
trillion dollar spending plan some very important items that should 
arouse the gratitude of many people. They also stood up against, 
fought, and prevented from getting into this some very extreme 
proposals. But to the many people watching this unfold in New Jersey, 
in Hawaii, and across this country, what they are also seeing, 
unfortunately, is a bill passed with policies pushed by very connected 
special interests--special interests with armies of high paid lobbyists 
looking out for their own protection. There are special interests with 
armies of high-paid lobbyists looking out for their own protections and 
looking to roll back commonsense protections for people who cannot hire 
those high-priced lobbyists or make donations to political candidates 
and elected officials.
  This omnibus--this CRromnibus, as it is called--is a jagged, bitter 
pill for anyone to swallow.
  I will start with the provision that Senator Schatz mentioned, the 
provision that is rolling back aspects of Dodd-Frank. Risky 
transactions involving asset-backed derivatives were at the heart of a 
2008 fiscal crisis. Economists at the Federal Reserve Bank of Dallas 
estimated that the financial crisis cost the United States between $6 
and $14 trillion. This amounts to $50,000 to $120,000 for every U.S. 
household or the equivalent of 40 to 90 percent of 1 year's economic 
output. It was cataclysmic.
  I don't need economists to describe the pain that Americans felt. I 
saw it myself. I felt it as a mayor of a big city in America--Newark, 
NJ--New Jersey's largest city. When the Nation goes through a 
recession, rural and urban areas, vulnerable populations, people living 
at the margins go through a cataclysmic depression. Many Americans, 
even today, remain unemployed or underemployed and are still struggling 
to make ends meet because of the risky behaviors we saw within the 
financial industry.
  Now, Dodd-Frank--this Wall Street protection act--was passed to 
enhance consumer protection and increase safeguards against risky 
activities so we, as a country, do not go through this again. Dodd-
Frank is not perfect. I am the first to admit there are ways to change 
it and improve it and implement its provisions, frankly, that still 
have yet to be fully implemented.
  Changes to financial regulations should be done through a much more 
transparent process and in the public eye. We should openly debate 
these issues on the floor of the House and the Senate. It should not be 
done like this was, behind closed doors and definitely through what 
they call a must-pass omnibus bill. This is wrong.
  Here we are in the last moments on an omnibus spending bill with a 
provision which goes to the heart of protecting American taxpayers from 
the risky, reckless schemes that helped to launch the crisis in the 
first place.
  This provision is literally called the Prohibition Against the 
Federal Government Bailouts of Swap Entities, which ensures taxpayer 
dollars will not be used for the more risky Wall Street speculation and 
gambling. It looks to make sure that Americans are on the hook for the 
risky gambling of a few people seeking to make extraordinary gains.
  I am outraged. I am frustrated that we are not on the floor debating 
this, and, instead, are having this put into a bill that everyone says 
must pass.
  There are arguments on both sides that we should be having. If the 
provisions of Dodd-Frank come up, we should discuss them. The public 
should see it and know about it.

[[Page 17709]]

  I will not condemn the entire financial services industry, and, 
indeed, we need in this country a robust network of financial 
institutions that support the vibrant economic activity in the United 
States. However, we must ensure that the necessary and important 
protections that shield taxpayers and our economy from the failures of 
2008 remain in place.
  I rebuke the slick and secretive ways that this has been done, and I 
will echo the concerns of people all over New Jersey that this kind of 
business as usual must end.
  But there are other concerns that should be out in the public eye. 
Take, for example, truck safety. There is this ``hours of service'' 
language which protects America's highways, but now the language that 
protects us has been changed and altered in this bill. It was inserted 
through the appropriations process. This language suspends the 
administration's rules designed to prevent driver fatigue.
  I will read from the rule that is now being suspended under the 
omnibus. It states:

       Only drivers who drive nights and work more than 60 or 70 
     hours in a week will be impacted. . . . Drivers who will be 
     impacted by this provision work heavy and irregular schedules 
     that include some nighttime driving. . . . The limitation 
     reduces maximum time during which a driver may drive up to an 
     average of 70 hours in 7 days, a decrease from the 82-hour 
     average allowed under the 2003 rule . . . Working long daily 
     and weekly hours on a continuing basis is associated with 
     chronic fatigue, a high risk of crashes, and a number of 
     serious chronic health conditions.

  These right here are commonsense rules put in place to protect 
Americans who are driving to and from work with their families or to 
church to protect them against these heavy, irregular vehicles 
barrelling down the highway that might now have an overfatigued driver.
  These regulations were put in place to try to limit those drivers 
from straining human endurance, but now they are being suspended within 
this omnibus bill.
  These rules are based on years of sound scientific study, and I am 
outraged that despite the efforts of my colleagues and the safety 
community, the provisions to suspend these safety rules were included 
in this omnibus bill.
  Each year nearly 4,000 Americans are killed in truck accidents, and 
over 100,000 Americans are injured on our highways in truck accidents. 
These drivers who drive trucks are hard-working men and women, and they 
have, unfortunately, been pushed to tread on the limits of human 
endurance.
  The number of fatalities caused by truck accidents has risen 16 
percent since 2009, and the number of people injured in these crashes 
has increased 40 percent. At a time when accidents are on such a savage 
rise, we are in no position to be crippling existing safety measures 
designed to keep our roads safe. For the sake of our Nation's security 
and the untold anguish and loss that comes from these highway 
accidents, this provision should be taken out of the bill.
  There is more in this omnibus, and I feel compelled to mention 
another objectionable thing. The very idea of taxation without 
representation and self-determination is at the core of our democratic 
ideals as a nation. Yet, despite this, Washington, DC, with a 
population larger than two of our States, sees the constant undermining 
of this very principle. I believe it is an offense to Americans of all 
States, to Americans in the District of Columbia, and to all those who 
believe in our cherished ideals that this is done so.
  When the District of Columbia votes, just as in Colorado, Washington, 
Oregon, and Alaska, to change marijuana laws--when Washington, DC, is 
grappling with the devastating impact of the drug war and sees the pain 
and the challenges and the struggles involved therein, when the people 
of the District come together and decide to try a different way 
forward--should we not honor their results? Should we not respect their 
self-determination as is going on in other States? This provision in 
this omnibus, undermining the democratic will of the District of 
Columbia--these great Americans--should be taken out.
  My list of concerns in this bill could go on. I could continue. We 
should be having a discussion and debate on issues of this magnitude.
  Take, for example, the rules on pensions that will slash benefits for 
thousands of retirees. Make no mistake. We need to address the state of 
multi-employer pension plans, and we need to discuss the tough choices 
that have to be made, but this is not the way to do it--not business as 
usual with no discussion and no debate.
  This bill also includes provisions that roll back protections for 
wildlife and endangered species. This is not how we should do this--
business as usual with no discussion and no debate.
  There are provisions that keep the USDA from addressing an array of 
fraudulent, deceptive, anticompetitive, and retaliatory practices which 
will now undermine important protections for farmers against unfair 
practices. This is not the way to do it--business as usual, no 
discussion, no debate.
  When people wonder how Washington does things in such a manner that 
is skewed in favor of the connected, skewed in favor of high-priced 
lobbyists, and skewed in favor special interests, when they see how the 
common good and common sense gets undermined, this is how it happens. 
This is how it happens.
  I have been in this body for a little over 12 months, and the way we 
are doing this is offensive. The American people deserve better. We 
should do better.
  I object to so much being put in this that deserves to be on this 
floor, discussed and debated in the light of the public. This is no way 
to run the globe's greatest democracy.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland.


                   Tribute to Kelly McKellogg Swaine

  Mr. CARDIN. Madam President, I ask that my colleagues join me in 
thanking my State Department foreign policy fellow, Kelly McKellogg 
Swain, for her exemplary service to the Senate and to wish her well as 
she returns to the State Department as her fellowship in my office 
comes to an end.
  I think the Presiding Officer would agree with me that, the fellows 
program we have here in the Senate is so valuable. We get people who 
are real experts in their areas from the State Department who serve in 
our office and can advise us and work with us and give us the expertise 
we need in order to make the right policy.
  I think it also helps the State Department because they will have an 
individual on their staff who will have a better working understanding 
as to how the Senate operates so that the Senate and the State 
Department can work closer together on the foreign policy 
considerations of our country. That has certainly been my experience 
during this past year with Kelly.
  Kelly has been an incredibly valuable member of my staff, advising us 
on so many important issues that we have to deal with, and she has 
really stepped in to be a valuable member of my staff.
  The uncertain working hours has placed a strain on her family, and I 
thank her very much for being willing to entertain these long hours.
  I wish to take this opportunity to thank her husband Brian and son 
Finley for sharing her with the Senate.
  Kelly has been a key member of my foreign policy and national 
security team over the last year. Before she joined my office, she was 
the Deputy Director in the Office of Public Affairs in the Bureau of 
East Asian and Pacific Affairs at the U.S. Department of State.
  She brought her expertise in matters pertaining to East Asia and the 
Pacific, and her expertise and counsel has been critical to me. Over 
the last 2 years, I have chaired the East Asian and Pacific Affairs 
Subcommittee of the Senate Foreign Relations Committee.
  This has been a particularly busy year, as President Obama has moved 
forward on his policy to rebalance Asia, recognizing that Asia is 
critically important to the United States for our security interests, 
our economic interests, and our environmental interests.

[[Page 17710]]

Kelly has been an extremely important part of our team, working on the 
East Asian and Pacific Affairs Subcommittee in carrying out that 
responsibility during this past year.
  Kelly's hard work enabled us to hold five subcommittee hearings 
ranging from ``Economic Engagement in the Asia Pacific'' to ``Combating 
Forced Labor and Modern Day Slavery in East Asia and the Pacific.'' In 
addition to developing and executing my subcommittee agenda, she 
ensured that I was up-to-date on the latest regional developments and 
more than adequately prepared for office visits with foreign officials 
on my trips to the region. So she gave me the expertise I needed.
  During this past year, we have had significant challenges in East 
Asia. We have had maritime security issues involving China and Vietnam. 
We have had the current crisis in Hong Kong. We have had North Korea 
and the problems it has created. We have had the relationship between 
two of our close allies that have been strained--Japan and the Republic 
of Korea. In each of these instances, Kelly gave me the type of help I 
needed so the Senate was properly exercising its functions on foreign 
policy.
  Kelly's outstanding work does not stop there. When my permanent 
foreign policy adviser went on maternity leave this summer, Kelly 
stepped into that role. Within the first few weeks of her expanded 
role, Malaysian Air flight 17 was shot down in Ukraine, Israel and 
Hamas went to war, and militants for the Islamic State in Iraq and ISIL 
terrorist groups were expanding their siege over Iraq and Syria. All 
that happened when my staff person went on maternity leave, and Kelly 
stepped right in and took on the responsibilities and helped our office 
meet our responsibilities. This summer was a particularly busy and 
challenging time around the world, and not surprisingly Kelly rose to 
the occasion.
  This fall I had a chance to get to know Kelly even better when I went 
to the United Nations General Assembly in my capacity as the United 
Nations delegate. I represented the Senate along with Senator Johnson 
at the 69th session of the United Nations General Assembly. Kelly not 
only accompanied me for the trip and prepared me for all of my high-
level meetings, but she also became a trusted adviser. As I told my 
colleagues just a little while ago, as I walked through the halls of 
the United Nations, my ego was a little bit affected because more 
people knew Kelly than knew me, but that was all right. She was 
incredibly important to me in carrying out my responsibilities in the 
U.S. delegation to the United Nations. While Kelly came to the Senate 
with a background in East Asia and Pacific matters, she has 
demonstrated to me and to the Senate, too, that her foreign policy 
extends far beyond that region.
  My staff and I will miss Kelly's calm demeanor, sense of humor, and 
extraordinary work ethic. She has been a tremendous asset not just to 
my office but to the Foreign Relations Committee and the entire Senate. 
I urge my colleagues to join me in thanking Kelly for her long service 
to our Nation. We are fortunate to have such people devote their life 
to public service. It has been incredibly helpful to us in the Senate 
and I know she is going to go back to the State Department and continue 
to serve her country. I thank her.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. HATCH. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                      Nomination of Carolyn Colvin

  Mr. HATCH. Madam President, I wish to take a few minutes to speak 
about the nomination of Carolyn Colvin to be the Commissioner of the 
Social Security Administration.
  In recent weeks a number of disturbing facts have come to light about 
Ms. Colvin and her tenure as the Acting Social Security Commissioner. 
These revelations, coupled with the fact that there is an ongoing 
investigation of the conduct of people in her immediate office, raise 
serious questions about whether she is qualified to serve in this 
position.
  Let me make one thing clear. My doubts about Ms. Colvin's nomination 
have nothing to do with partisanship. I, along with 20 of my colleagues 
on the Senate Finance Committee, voted to report her nomination out of 
the committee in September. At that time I believed she had the 
necessary qualifications for the job and saw no reason to oppose her 
nomination. I have to say I liked her personally, but as I said, since 
that time, new facts have come to light that are extremely 
disconcerting.
  Just days before Ms. Colvin appeared before the Finance Committee, we 
became aware of allegations concerning potential waste and 
mismanagement at the SSA, as well as allegations regarding the possible 
coverup of that waste and mismanagement. Several sources, including the 
House Ways and Means Subcommittee on Social Security and the House 
Oversight and Government Reform Committee, and individual 
whistleblowers reported that SSA had, over a 6-year period, burned 
through $300 million in a failed attempt to develop and implement the 
Disability Case Processing System or DCPS.
  These sources derived their information from a report issued in June 
by a private contractor commissioned by SSA. This report was 
subsequently provided to Congress by SSA whistleblowers.
  According to the report, mismanagement and poor planning at the SSA 
stalled the development of the DCPS. This, in turn, resulted in the 
substantial waste of taxpayer dollars.
  Once again, the amount was, I am informed, roughly $300 million. 
These allegations were just breaking when Ms. Colvin appeared before 
the Finance Committee, but I did mention them during the hearing.
  Needless to say, as we have learned more details about the failure 
surrounding the DCPS, the picture has only gotten even cloudier. At a 
minimum, these allegations call into question the quality of SSA's 
overall management and the leadership skills of those managing the 
agency. It certainly calls into question their commitment to preventing 
waste and preserving SSA's already scarce resources.
  Sadly, it gets worse. On July 23, 2014, the House Committee on 
Oversight and Government Reform sent a letter to Ms. Colvin that raised 
even more issues about the failures of SSA, partially under Ms. 
Colvin's leadership as Acting Commissioner, including possible actions 
by agency officials designed to intentionally mislead Congress and the 
IG's office about the deficiencies and the development of the DCPS. 
Indeed, the allegation is that Congress may have been intentionally 
misled so as to facilitate approval of Ms. Colvin's nomination to be 
the next Social Security Administration Commissioner.
  Subsequently, on November 18, 2014, a press release from the House 
Ways and Means Subcommittee on Social Security indicated that the 
``results of a criminal investigation regarding the implementation of 
DCPS is still pending.''
  In addition, whistleblowers have informed the Senate Finance 
Committee that the ongoing IG investigation has centered on high-level 
officials at the SSA, including members of Ms. Colvin's immediate 
office, and that alleged criminal conduct may extend to irregularities 
in the award of contracts for the DCPS project. This is a serious 
problem. I do not know how the Senate can with good conscience vote to 
confirm anyone with this type of ongoing investigation going on around 
their immediate office. It may very well turn out that Ms. Colvin did 
nothing wrong, but we need to know for sure.
  This is a very important position. That is why I, along with all of 
the Republican members of the Senate Finance Committee, sent a letter 
to Ms. Colvin last week asking for more details about the DCPS and her 
office's conduct. She has since responded claiming that she is not 
responsible for any mismanagement of the DCPS project and that she 
committed no criminal conduct. As I said, that may very well be the 
case. I hope it is. But

[[Page 17711]]

the specter of an ongoing investigation still hangs over her 
nomination; therefore, I do not believe the Senate should proceed 
toward confirming her until this matter is resolved. I want to be fair 
to her, but this is an important problem that needs to be resolved.
  I want to make one thing clear: This is about more than just 
mismanagement of funds or bureaucratic incompetence; this is about an 
ongoing investigation of people in Ms. Colvin's direct office for 
contract issues and allegations that they purposefully misled Congress 
in order to move her nomination through.
  Once again, this is not partisan. I supported Ms. Colvin's nomination 
in committee and continue to believe she has the right credentials and 
experience for this important job. Of course, if these allegations 
prove to be true, my assessment of her qualifications will most 
certainly change.
  Put simply, with this investigation--which may very well have a 
criminal element to it--still ongoing, I cannot support moving forward 
on Carolyn Colvin's nomination. I hope this matter can be resolved 
quickly and cleanly, but until such time, I plan to vote against 
confirming her as the next Social Security Commissioner unless we 
resolve these matters beforehand.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Warner). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. MORAN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Rural Health Care

  Mr. MORAN. Mr. President, I have visited hospitals many times in our 
State. In fact, there are 128 community hospitals in Kansas, and I have 
visited each and every one of them once and, in many instances, two or 
three times. In fact, last weekend while I was home in Kansas, I 
visited my hometown hospital, Mercy, in Manhattan, KS.
  It is a very useful exercise. I would encourage my colleagues to 
spend time with health care providers. In the case of hospitals, it 
gives you the opportunity to visit with hospital administrators, the 
CEOs, the opportunity to visit with the nurses, patients, with 
physicians, and get a feel for what is going on in the delivery of 
health care in your State. I certainly know how valuable that is to me.
  One of the interests I have in serving in Congress is a belief that 
the way we live our lives at home in Kansas is something very special, 
and it is something that is worth trying to make certain is around for 
many years to come--in fact, for generations to come.
  One of my early conclusions, in looking at public policy and looking 
at the future of the communities of Kansas and the people who live 
there, is the access to health care, to affordable health care, is 
critical. It is a component in which many communities will not continue 
to exist if there is not access to hospital care, a physician, a 
hometown pharmacy--all the things that make up the opportunity for 
someone to be cared for in every aspect of their lives related to their 
health. I know this from my own circumstance, my hometown of Plainville 
with a population of about 2,000.
  My parents called Plainville home into their nineties. My parents are 
no longer living, but I know well before the time in which they passed, 
my sister and I would have had a conversation with my parents talking 
about: Mom, Dad, I am sorry, but you need to move, and you need to move 
where you can have adequate health care. You need to move where there 
is a good hospital and a set of physicians who will care for you.
  But because that exists in my hometown and continues to exist in my 
hometown, those kinds of conversations are not necessary. Wherever the 
place that you are telling your parents they have to move to access 
health care--wherever that place is--and it may be a very desirable 
place, but it is not home. My parents would have lived someplace in 
which they had not lived all of their lives, would not have been 
surrounded by the people they know and who knew them--particularly as 
they lived, my dad, until the age of 98. They would not have had the 
people who checked in on them, made sure they were doing OK each and 
every day, gave them the opportunity to continue to live at home, the 
people who would have given them a hug and a pat, and the pharmacist 
who said to my dad: Ray, you probably need to have your blood pressure 
taken. Those are very special things about many places many of us come 
from.
  In the absence of those kinds of opportunities for health care, our 
communities--certainly across my State and across the country--
especially in rural America begin to disappear, the point being that in 
the absence of access to health care, the ability to keep a community 
together to encourage senior citizens to remain at home in their 
hometowns and for us to be able to recruit and encourage young families 
to move to our communities is not going to happen, is not going to be 
available, unless we have access to health care.
  In the discussions I have with those health care providers, the 
doctors, the nurses, the CEOs, the administrators of the hospital--
including the patients--they continued to remind me that what is going 
on in our Nation's Capitol, in Congress, and certainly in the 
administration, are barriers, are burdens to the chances of that 
hospital and those health care providers continuing to be in business.
  Every visit involves the raising of concerns to me. Often it is: What 
you are doing about this, Senator Moran? What are you doing to reduce 
the Federal regulatory burden that our hospital faces? Are you working 
to make certain we are able to provide the health care our local 
residents need?
  Last month I introduced legislation that was bipartisan, a resolution 
that unanimously passed the Senate. It recognized the importance of 
access to hospitals and other health care providers, particularly in 
rural areas of our country. It indicated how special they were and how 
important they were to the success and survival of the communities in 
our country.
  The point I would make about that resolution is it passed 
unanimously. While the importance of rural providers is overwhelmingly 
acknowledged, as evidenced by the unanimous passage of that resolution, 
the Affordable Care Act and unnecessarily burdensome Federal 
regulations fail to demonstrate that we follow through on that 
understanding of the importance of hometown health care.
  Among the regulatory concerns I hear about in those hospital visits, 
serious flaws with what is called RAC, the Medicare Recovery Audit 
Contractor Program, is it is causing many problems for hospitals and 
providers across Kansas.
  Our hospitals and health care providers have been required to divert 
significant resources away from caring for patients, their mission to 
appeal incorrect audit decisions that are almost always ultimately 
overturned through an appeals process. This broken RAC Program places a 
tremendous burden on the providers, and it has created a 2-year appeal 
in backlogs within the Department of Health and Human Services. This 
program diverts the resources hospitals are devoting to caring for 
patients, to going through the process of trying to get their money 
back. That is certainly a problem and increasing the expense of 
providing health care. But the other aspect of that is often the 
hospital's money is tied up for 2 years, held by CMS, the Centers for 
Medicare and Medicaid Services, while it is adjudicated. Again, the 
overwhelming number of cases is decided ultimately in favor of the 
hospital, but it is certainly diverting resources and increasing costs.
  I met with Secretary Burwell at Health and Human Services to discuss 
what is an urgent need to improve the Medicare RAC Program. I have 
requested from HHS a timeline and objectives, measurable objectives, to 
address the RAC problems and the appeals backlog that is in existence 
now.
  Another concern in addition to the RAC audits is the Federal 
Government's inflexible supervision rules.

[[Page 17712]]

CMS passed a rule that was delayed but now ultimately put in place. It 
requires that many pretty routine services that occur in a hospital--
that includes things such as a drug infusion or blood infusions, 
cardiac and pulmonary rehabilitation--that they require supervision. 
That is just not an option in many rural hospital health care settings. 
There is a lack of understanding and a lack of common sense as to what 
a small hospital in a small town faces when CMS puts this regulation in 
place. They make it difficult for those hospitals to continue to 
provide those necessary services.
  Fortunately, we have had some success in addressing this issue. 
Congress passed legislation that prevents the Federal Government from 
enforcing that regulation through the near future. I have introduced 
original legislation to make that change, that regulatory prohibition, 
permanent. I will reintroduce that legislation in January in the new 
Congress as we try to capitalize upon the temporary success we have had 
in fighting back this regulation from CMS to make it permanent so that 
when the temporary prohibition expires that we will have the 
opportunity to keep them from reintroducing that provision.
  I will say that hospital administrators and employees, when I have a 
conversation with them, the discussion typically involves serious and 
strong opposition to a number of proposals that come from the Obama 
administration each year.
  One of those is to change the number of miles that you must be apart 
from another hospital in order to qualify to be a critical access 
hospital. It is a program under Medicare and Medicaid Services that 
allows for a reimbursement that is more based upon cost than otherwise 
would be the case.
  Also the administration has continued to propose a 1-percent 
reduction in the funding for those critical access hospitals.
  Those are pretty much life-and-blood issues for community hospitals 
across Kansas and around the country. That critical access hospital 
designation in receiving that cost-based reimbursement means that a 
hospital with few patients, one that doesn't have hundreds of patients 
each day, can still be reimbursed at a rate in which they can almost 
make ends meet, that they can cover their costs but still rarely is 
there any profit or extra revenue generated from that so-called cost-
based reimbursement.
  Cutting reimbursements to the hospitals, removing them from the 
critical access program, I have little doubt but that it would 
eliminate many, if not most, of those hospitals currently in that 
critical access hospital program. There would be no place else for them 
to go, no other category within Medicare that would allow them to 
survive. I believe the number now is 88 of Kansas's 128 hospitals are 
those critical access hospitals.
  The other topics of conversation that arise in those conversations in 
visiting with health care providers at a hospital--the physician, the 
nurses, the physical therapists, the CEO of the hospital, the trustees, 
the board of directors of the hospital--is the Affordable Care Act.
  Again, we symbolically say we care a lot about rural health care 
providers, but the reality is the Affordable Care Act is creating 
significant problems, challenges, for the survival of hospitals, 
particularly the smallest hospitals in my State and across the country.
  The Kansas Hospital Association projects that the Affordable Care Act 
will cost Kansas health care providers approximately $1.3 billion in 
Medicare funding over the next 10 years. These Affordable Care Act cuts 
include reductions to hospitals' Medicare reimbursements and a payment 
called disproportionate share that the hospital receives in order to 
cover the high level of uninsured patients.
  These cuts are taking place on top of what Congress and the President 
agreed to under sequestration--a 2-percent across-the-board cut--that 
many, if not all, of our providers are now receiving. So what was 
supposed to be cost-based reimbursement, which nearly never covered the 
cost, is being reduced by another 2 percent as a result of 
sequestration. Again, this is something this Congress--and if not this 
Congress, the new Congress that begins in January--needs to deal with, 
the issue of sequestration.
  For this and for other reasons sequestration is a significant 
problem. While I certainly support the reduced spending aspects--what 
the goal was of sequestration--the idea that we would do across-the-
board cuts is irresponsible. We ought to be establishing the 
priorities--the things Congress, on behalf of the American people, 
thinks are the most important and beneficial to the American people, 
the things that are allowed for under our Constitution. Those are the 
things we ought to be funding, as compared to taking a step back and 
just having automatic cuts because we don't have the ability to decide 
in a responsible way what we can afford and what we cannot afford.
  Further, I would say the Affordable Care Act forced States to adopt--
the original act as passed by Congress--an expansion of Medicaid. The 
U.S. Supreme Court, in its 2012 ruling, indicated that Medicaid 
expansion was optional, not mandatory under the Constitution. So that 
portion of the Affordable Care Act was determined to be 
unconstitutional.
  States are now faced with the difficult decision that involves 
Medicaid and long-term costs associated with potential expansions, and 
hospitals face tremendous uncertainty about how they will care for an 
increased number of patients while they are already absorbing the 
Affordable Care Act's Medicare cuts. So States are struggling to figure 
out what to do about expansion of Medicaid.
  Hospitals are suffering from the consequence of not having additional 
Medicaid dollars. That is on top of the cuts that occur as a result of 
changes in Medicare. Really, in most hospitals across my State, two 
components are so important: Medicaid and Medicare cover a significant 
portion of the number of patients that are admitted to a hospital, and 
in many instances there are not many private pay patients who have 
their own health insurance to add additional revenue to the hospital's 
revenue stream.
  This scenario of Medicare and Medicaid both creating problems, being 
squeezed from both programs, presents significant problems for rural 
hospitals. Again, those reimbursements--Medicare and Medicaid--make up 
about 60 percent of those hospitals' revenues.
  The Affordable Care Act also put hospitals in the difficult position 
of having to balance increasing regulatory burden with reduced 
revenues. So in addition to the Medicare-Medicaid pressure, there is 
also the problem of increasing costs associated with more and more 
regulations emanating from the Department of Health and Human Services 
and other places across the Federal Government at the same time the 
reimbursement rates are declining. So increased cost, reduced revenue--
again, a significant problem.
  In 2011, the average Medicare margin for hospitals in Kansas was a 
negative--not enough to cover the cost--4.9 percent. These losses have 
to be offset somewhere, and that often results in a reduction in 
staffing. It sometimes means a reduction of services. The end result is 
a hospital that is not always able to meet the needs of their 
citizens--their patients.
  In many instances it is the hospital that may be among the largest 
employer in a county or community in our State. In addition to reduced 
staffing, an inability to buy equipment, and reducing certain specialty 
programs offered at the hospital, we are also seeing a significant 
depletion in their cash reserves and a freeze on capital expenditures. 
This circumstance is just not sustainable, and so we are seeing 
hospitals close.
  Since about 1990, the number of rural hospitals across the country 
has remained stable at around 2,000, but last year 15 rural hospitals 
closed. We have to be concerned there are more to follow. This is an 
alarming trend. These hospitals play a vital role in health care to 
those rural communities. It can determine whether a community has a

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future--whether individuals and families will decide to live there. The 
loss of a hospital has huge ripple effects and it harms patients. Their 
primary purpose is to save lives and improve health care, but it is 
also a tremendous loss to the community itself.
  I outlined problems that I believed would occur for hospitals with 
the passage of ObamaCare long before the law became law. I also would 
say it doesn't mean I don't believe there aren't significant 
improvements to be made to our health care delivery system, but I think 
the reality is that the Affordable Care Act causes more problems--
significantly more problems--than those it solves.
  Many Kansas hospitals struggle to meet the needs of the aging 
population in their States and the Affordable Care Act cuts are an 
exacerbation of their circumstance. Again, the Affordable Care Act had 
the promise of: If you like your plan, you can keep it. If you like 
your health insurance plan, you can keep it. If you like your 
physician, you can keep him or her. That didn't turn out to be true.
  In fact, if you liked your policy, you were probably not able to keep 
it, and that something else now--that replacement policy--often 
involves increased copayments and deductibles. That certainly is a 
problem for the policyholder and his or her family. It is a problem for 
the business and their employees. But we may have forgotten it is a 
huge problem for the health care provider.
  Almost every hospital I have visited, now that the Affordable Care 
Act is being implemented, will tell me about the increasing amount of 
unpaid hospital bills--the amount of money that is owed that is 
attempting to be recovered. The reason that occurs is because the 
copayments and deductibles are so significantly higher that patients 
don't have the ability to pay a $5,000 copayment or even a $1,000 
copayment. So the hospital's bad debt is increasing because patients 
don't have the necessary amount of money to pay for their portion of 
what their health care insurance policy now requires of them.
  Again, this comes from a law that was described to us as going to 
increase the affordability and the availability of health care. I guess 
what I would point out is, in the circumstance we are now in, the 
policies are so expensive, so much more costly both in premiums and 
copayments and deductibles, that the affordability is a problem again 
and not just for the patient, not for the policyholder but for the 
hospital that is now left holding the bag because so many of their 
patients can't pay the copayments or the deductibles.
  When the Affordable Care Act passed, the President's own Medicare 
Chief Actuary noted that the cuts would cause as many as 15 percent of 
hospitals, skilled nursing facilities, and home health agencies to be 
unprofitable by 2019. While that point in time may have seemed a long 
time away, 2019 is now just about 5 years away. If ObamaCare remains in 
place, the estimated percentage of unprofitable providers is projected 
to increase, reaching roughly 25 percent in 2030 and 40 percent in 
2050. So by 2030 25 percent of the hospitals, health care providers, 
will be unprofitable, and by 2050 40 percent--nearly half--of the 
health care providers will be unprofitable.
  Again, in particularly rural communities, if you can't make it on the 
revenues that come from patients, from providing health care to 
individuals, often the option is to increase taxes--property taxes, 
sales tax--or something to keep your hospital doors open. That ought 
not be the consequence of legislation passed by Congress--to require 
taxes to be raised for a Federal program called Medicare because it is 
failing to meet the needs of American citizens, our patients. These 
providers, our hospitals, just simply can't sustain in the circumstance 
they find themselves in. The Affordable Care Act has put us on a path 
that I think is dangerous for individuals, for businesses, and now for 
the health care providers themselves.
  In addition to the bad debt experience, many of the new health care 
plans have limited or restrictive provider networks, so that a local 
hospital may be eliminated from their network. This means that while 
under their previous insurance policy they could see a hometown 
physician or be admitted to their hometown hospital, because of these 
network restrictions they must go someplace out of town to access 
health care. This again is a terrible consequence for the individual, 
for the patient, but also something that drives revenues away from the 
hometown provider, much to the detriment of everybody who would want to 
make certain that provider, that doctor, remains in the community and 
that the hospital doors remain open.
  There is lots of evidence that the problems we are facing are real. 
They demand attention. Access to affordable health care is something 
that still deserves our attention. I look forward to trying to make 
certain we have that opportunity. Again, that is nothing that is going 
to happen in the next few days, but we have a responsibility to see 
that the things that are reducing the access to affordable health care 
are addressed. The efforts that resulted from the Affordable Care Act 
are exacerbating the problem, not solving the problem.
  I look at elections as like a new year. There is this optimism that 
maybe something good can come from a new Congress; that we can 
establish our New Year's resolutions and we can begin working, and I 
certainly make the offer to my colleagues throughout the Senate--all 99 
of my colleagues--to be someone who wants to be problem solving, 
oriented toward finding solutions, and working together to make sure 
those health care providers that are so important to our lives, our 
safety, to our health, are around for a long time to come and that the 
communities that depend upon those hospitals--those 128 hospitals in my 
home State--have a viable future.
  We have to get the regulatory environment under control, we have to 
resolve the problems created by the Affordable Care Act, and we need to 
make certain that health care is an opportunity for people who live in 
places across my State to still have the opportunity to see the 
hometown physician, to have a prescription filled by the hometown 
pharmacist, and to make certain those hometown hospital doors remain 
open for today and for future generations of communities across my 
State.
  I appreciate the opportunity to address the Senate this afternoon, 
and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. KING. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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