[Congressional Record (Bound Edition), Volume 160 (2014), Part 7]
[Senate]
[Pages 9402-9405]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

  NOMINATION OF KEITH M. HARPER FOR THE RANK OF AMBASSADOR DURING HIS 
  TENURE OF SERVICE AS UNITED STATES REPRESENTATIVE TO THE U.N. HUMAN 
                             RIGHTS COUNCIL

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the following nomination, 
which the clerk will report.
  The legislative clerk read the nomination of Keith M. Harper, of 
Maryland, for the rank of Ambassador during his tenure of service as 
United States Representative to the U.N. Human Rights Council.
  The PRESIDING OFFICER. Under the previous order, the time until 12 
noon will be equally divided and controlled in the usual form.
  Who yields time?
  If no one yields time, the time will be charged equally to both 
sides.
  The Senator from Maine.
  Mr. KING. Mr. President, I ask unanimous consent to address the 
Senate for approximately 10 minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                          Markets Transparency

  Mr. KING. Mr. President, I believe in markets and I believe in 
transparency, and that is what I wish to speak about today. I think 
markets generally are the best allocators of goods and services, but in 
order for markets to work, people who purchase--consumers--need 
information. I wish to address one small piece of a very important 
market today.
  I serve on the Budget Committee of this body and as such I have had 
an opportunity to look at not only the current budget but projections 
of future budgets. I think it is important to emphasize that virtually 
all the growth--all the growth--in future Federal budgets is 
attributable to health care--all the growth. It is not Pell grants, it 
is not national parks, it is not national defense, it is not the 
National Security Agency; it is all in health care.
  There are several ways we can control those costs. One way which has 
been suggested is to simply shift those costs off to other people--to 
the States, to the elderly, to other citizens--and say it is not the 
Federal Government's problem; it is someone else's problem. I would 
suggest that is not the answer. We need to be focused on the issue of 
health care costs generally, for everyone--for the Federal Government 
as a consumer, as it is in Medicare and Medicaid, but also for all of 
us as health care consumers across the country.
  The standard response around here to growing health care costs is to 
cut programs, cut recipients, reduce payments to States, or reduce 
payments to providers. That does nothing about the fundamental issue. I 
can tell my colleagues that none of these steps has anything to do with 
reducing the demand for services or the costs of those services. We 
have to spend the money we have more responsibly.
  There have been discussions recently about repealing the medical 
device tax which was passed as part of the Affordable Care Act. The 
theory, by the way,

[[Page 9403]]

was that the Affordable Care Act would produce, as it has, millions of 
new customers for the private insurance industry as well as for all of 
those who participate in the health care system, including those who 
manufacture medical devices. The Affordable Care Act has produced new 
customers. And the theory, as I understand it, because I wasn't here 
when the bill was originally passed, was the industry--the businesses 
that will profit by the production of new customers through new people 
gaining insurance who never had it before--was that part of that would 
be paid back to support the overall system. That was the idea of the 
tax on medical devices. I realize the medical device tax is a 
controversial tax and that strong arguments can be made that it should 
be modified or reduced. But the repeal of the medical device tax would 
cost the government $29 billion over the next 10 years. That is money, 
as we all know, that has to be replaced somewhere else. So I think that 
is a consideration that has to be taken into account as we discuss this 
matter which is under consideration as part of the tax extenders 
package.
  As I looked into this issue and thought about the medical device 
industry, I was surprised to find it is very difficult to find out the 
price of an implantable medical device. One of the reasons is that the 
hospitals, which are the purchasers of these devices, are often 
prevented by agreements with the medical device company from revealing 
the price they pay. In other words, there is no transparency about the 
prices of these devices which find their way into the cost of 
everybody's health care.
  Imagine for a moment going to buy a new car and there is no 
advertising about the prices of the cars. We couldn't go on the 
Internet and determine the prices of the cars. We couldn't compare the 
prices of the cars from one dealer to the other. But we go in and 
somebody behind a closed door says, OK, the price is $20,200, and we 
are not allowed to tell anybody the price we are paying for this car, 
and we have to sign an agreement that we are keeping that price secret. 
Imagine that system, and imagine for a moment what would happen to the 
price of cars. I don't think it is gross speculation to assume that the 
price would go up, because there is no transparency.
  I have filed amendment No. 3802 to H.R. 3474, which is the tax 
extenders bill that is pending. It simply says that when a medical 
device is being sold, the manufacturer cannot impose a secrecy 
provision on the hospitals that purchase these devices, and they also 
have to report median prices to the Secretary of Health and Human 
Services on a regular basis.
  In 2012, the GAO did a report on Medicare and one of the pieces of 
the report was titled ``Lack of Price Transparency May Hamper 
Hospitals' Ability to Be Prudent Purchasers of Implantable Medical 
Devices''--a long title, but the conclusion is contained in the title: 
``may hamper hospitals' ability to be prudent purchasers.'' Well, if 
hospitals can't be prudent purchasers, we who are paying the bills, 
quite often through Medicare and Medicaid, are not able to get the best 
prices. Who pays? All of us pay.
  This amendment would prohibit medical device manufacturers from 
requiring hospitals and buyers to sign purchasing agreements that 
contain confidentiality clauses that would restrict them from revealing 
the prices paid for medical devices to third parties. In addition, as I 
mentioned, the amendment would require these manufacturers to submit 
the average and median sales prices of covered devices to the Secretary 
of Health and Human Services on a quarterly basis.
  In 2007, my good friend Senator Grassley from Iowa sponsored a 
bipartisan bill to create a process of reporting this kind of price 
data to HHS, and I believe it is time to do just that.
  To the extent that prices of implantable medical devices, which are 
very expensive generally, are not disclosed, the ability of hospitals 
to bring price information to bear in negotiations and decisions is 
clearly limited. I believe if we are going to talk about repealing a 
medical device tax, we should also talk about calling upon the industry 
to provide to consumers and policymakers greater transparency in order 
to better control costs.
  In a world of limited resources, we have to spend the money we have 
most wisely. It is very difficult to spend money wisely if prices and 
comparative prices and prices of the various components of the health 
care system are essentially kept secret.
  This is a simple amendment. It is simply based upon the fundamental 
idea that markets work, but they only work when consumers--in this 
case, hospitals--have the information necessary to make good purchasing 
decisions. I think markets, as I said at the beginning, are the best 
way to allocate goods and services, but that information is necessary 
for markets to work, and that is the purpose of this amendment.
  Mr. President, I ask unanimous consent that all time between now and 
12 noon during quorum calls be equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KING. 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. CASEY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                              Speak Up Act

  Mr. CASEY. Mr. President, I rise this morning just before the noon 
hour to talk about our children, a topic which does not get nearly 
enough attention in Washington. I will try to focus on just one issue. 
Both parties in this body and in the other body indicate, on a pretty 
frequent basis, that they are in favor of supporting strategies to 
protect and to help our children, but not enough attention is paid to 
what that strategy should be and what the elements of it should be.
  I believe it should at least have four major components. One is to 
make sure children have every opportunity for more early learning. In 
addition, we need to make sure more children are covered by health 
insurance and get quality health care. We made a lot of strides in that 
in the last couple of decades, but we still have a ways to go.
  We need to make sure children are protected, an issue I will speak 
about today in particular. Obviously, we want to put in place better 
strategies to make sure children have enough to eat and are eating food 
that is nutritious. So today I will focus on the question of 
protection.
  We know that as we head into the last couple of days of the school 
year, children are starting to look forward to summer activities such 
as camp and summer sports and other activities. That is the good news. 
The bad news is that can create opportunities for people who would do 
them harm. It is important to reiterate the responsibility adults have 
generally but in particular at this time of the year.
  Adults have an abiding responsibility to protect children from harm 
and to speak up, literally to speak up when they suspect a child is a 
victim of abuse or neglect. We know many cases of abuse and neglect go 
unreported, sometimes for years, sometimes even until a child has died 
or suffered other terrible consequences as a result of years of neglect 
or abuse.
  For example, in 2012, in Pennsylvania there were 3,565 substantiated 
reports of child abuse and neglect. Across the Nation, 678,047 children 
were victims of abuse and neglect in the country as a whole, although I 
think it is important to point out the number I read from Pennsylvania: 
3,565 substantiated reports of child abuse and neglect.
  That means two things: It was reported, and we know the overwhelming 
number do not get reported. So even among the category of those that 
were reported, they had to be substantiated reports of abuse and 
neglect. I believe if we had just a broad category of children in our 
State--and it is true of a lot of other States as well--who are the 
victims of abuse and neglect, it would far exceed 3,565 cases, but that 
number alone is horrific and should cause us to

[[Page 9404]]

do a lot more than we are doing, not just in Pennsylvania but around 
the country. We saw in Pennsylvania a horrific example. Many people 
read the news about Penn State over the last couple of years. In that 
case, children were being abused by an individual they were supposed to 
be able to trust, an authority figure and other authority figures who 
did little about reporting it.
  We know there is a significant variation across the country in the 
types or categories of adults who are required by law to report 
suspected or known child abuse and neglect. Not all States require, for 
example, camp counselors to be so-called mandated reporters under the 
law, meaning an adult who has a legal duty by statute to report on 
child abuse or suspected child abuse. Some States have a long list of 
categories, some States have shorter lists. We know not all States 
require camp counselors or even coaches to report instances. So we need 
to do something about that. That is why I have introduced legislation 
to directly address it.
  The Speak Up to Protect Every Abused Kid Act, which is more simply 
known as the Speak Up Act, would require all States to pass and enforce 
a law requiring adults with a professional responsibility to children 
to report instances of known or suspected child abuse in order for 
States to receive funding through the Child Abuse Prevention and 
Treatment Act, the so-called CAPTA legislation, the Federal statute 
that focuses on child abuse and neglect prevention and response.
  So if they are going to have the benefit of those Federal dollars, 
they have to do more to protect children. That is what we are saying to 
States. The legislation will close a loophole that allows abusers to 
get away with heinous crimes and emphasize the responsibility of all 
adults to protect children from abuse and neglect.
  States have a wide variety of standards, as I mentioned, for whom 
they designate as so-called mandated reporters. Some States require all 
medical professionals to be mandated reporters. Others only specify 
certain types of health care providers. Under the Speak Up Act, States 
would have to require all of these adults to be mandated reporters or 
forfeit their Federal funding under the so-called CAPTA Act, the Child 
Abuse and Prevention Treatment Act.
  The Speak Up Act also requires that these mandated reporters give 
their reports directly to State authorities responsible for 
investigating child abuse and neglect. In some States, and in 
Pennsylvania I am pleased to report, there is a unified system of 
reporting, which is called the ChildLine, that accepts all reports. In 
this case, in Pennsylvania, one could call an 800 number and report 
child abuse and neglect.
  I have asked myself--and I am not sure we will ever get the answer to 
this--what if--not only in a random set of cases but in the case of 
Penn State--one adult or more than one adult had called an 800 number 
early in the case history, even with a suspicion, reason, or grounded 
in fact, but a suspicion or direct evidence of child abuse? What if 
they had called that number. Could children have been protected; could 
child abuse have been prevented?
  I don't know the answer, but I think if more people use that kind of 
method, they might be able to prevent a lot more cases of abuse.
  Other States may require reporting to law enforcement or so-called 
child protective agencies.
  Finally, the act itself, the Speak Up Act, closes a loophole in an 
existing law that can leave children in danger because their abuser is 
from another State or because a child was visiting another State when 
he or she was abused.
  In the summer this becomes especially relevant when children may be 
attending camps where they are not just going back and forth to camp--a 
camp where they stay overnight, night after night, or other programs 
where they might have access to or be enrolled in, I should say, 
another State. Under the Speak Up Act, we make it clear that the State 
where the incident occurred has the obligation to investigate the 
incident, and other States must help if necessary. So that gives a 
further protection to children that is not in the law today.
  The legislation in the Speak Up Act will provide as well standard 
reporting requirements across all States while still allowing States to 
go beyond what is required if they seek to do that.
  I don't know why we don't have this in law already. Why should we 
have a variety of measures in place to protect children? We should 
standardize that. Every State should meet a certain minimum standard 
when it comes to protecting children. If States want to add people to 
their mandated reporter list, require more adults or more categories of 
adults to be listed, then they could do that, but there should be a 
standard reporting requirement across the country.
  So as we begin the summer, I urge adults who work with children to 
remember their responsibility to speak up and to act to protect 
children, to make sure they know how to report abuse and neglect, if 
necessary.
  If you are in that category of mandated reporters already, you 
obviously not only have a legal duty to report, but I think you have a 
responsibility to find out today how you report, what method will you 
employ, what resource will you access to report instances of child 
abuse or suspected child abuse. But even if you are not sure you are in 
that category of mandated reporter, if you are an adult and you have an 
obligation to or your job entails working with children, I believe you 
have an obligation to find out not only when you are a mandated 
reporter but how you can report suspected cases of abuse and neglect.
  Of course, if you are an adult, it may not be legally required. It 
doesn't, of course, foreclose the possibility that you could and should 
report instances of abuse and neglect, even if you don't have a legal 
duty.
  I believe every adult has some kind of duty--maybe not in law but 
certainly a duty as a citizen and as an adult--to be vigilant, to keep 
your eyes open, and to focus your attention on protecting children. We 
all have an abiding obligation.
  This is a time of the year when children have a lot of time away from 
school, and they have a lot of enjoyment in the summer. We should make 
sure we are being very vigilant, though, at this time of the year to 
speak up and to protect our children.
  I yield the floor, and I suggest the absence of a quorum.
  Ms. STABENOW. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                            Bowen Nomination

  Ms. STABENOW. I will take just a moment. Our colleague from Louisiana 
was on the floor a while ago referring to one of the nominees we will 
have coming up for a cloture vote in a moment to the Commodities 
Futures Trading Commission, which is so significant.
  I want to correct a few things in the record for my colleagues and 
first remind everyone that Ms. Bowen, who will be the nominee in front 
of us, was unanimously confirmed by the Senate to be a director of the 
Securities Investor Protection Corporation, where she has honorably 
served, after 25 years of representing clients in complex financial 
transactions as a partner of a major international firm.
  The issue that has been raised on the floor relates to a decision 
that was made unanimously by the board she chairs that relates to a 
particular case where there is no question that there were citizens who 
were ripped off in a Ponzi scheme, the Stanford Ponzi scheme, in fact.
  The question that came before this board that covers certain kinds of 
losses is whether what happened is something that could be covered 
under this particular entity, the Securities Investor Protection 
Corporation.
  Based on legal advice, outside counsel, and review, the board 
unanimously looked at this and said, unfortunately, due to law--which 
was written by Congress--this particular board could not cover the 
fraud victims in this particular case.

[[Page 9405]]

  This subsequently went to the Federal District Court for the District 
of Columbia, which concluded the current law does not authorize SIPC to 
cover these particular fraud victims. This has now gone on to the Court 
of Appeals.
  SIPC and Ms. Bowen have indicated that if the Court of Appeals rules 
in favor of the victims, they are more than happy to include them and 
to reimburse them for the terrible situation they all found themselves 
in. This is a legal question of whether this particular fund is allowed 
to reimburse these particular victims of fraud. There have been over 
9,000 victims who have been reimbursed through this fund in a lot of 
different situations, but it is a legal question.
  The way this has been interpreted by our colleague from Louisiana--
that somehow this is something personal that Ms. Bowen is involved in 
to try to stop these people, these victims, from being able to be 
reimbursed and made whole--is absolutely false. Again, this is an issue 
in the court. If the court rules in favor of those who were victims of 
this Ponzi scheme, then the group, the agency, the Securities Investor 
Protection Corporation, has indicated they will move forward and 
include them under the scope of their responsibility for reimbursement.
  Certainly what happened to people in this situation is terrible. I 
understand their concerns and wanting to find a way to be able to be 
made whole. But this is a legal question that was unanimously decided 
by a board of directors, of which Ms. Bowen is now the chair, it was 
recommended by outside counsel, and it was also something that was 
upheld by the Federal district court. It is now in the Court of 
Appeals. If the Court of Appeals changes and reverses the lower court, 
then they will act accordingly.
  We should not have the situation where a very qualified member and 
nominee for this very important oversight agency, the futures industry, 
would be held responsible or somehow be caught up in the politics. I 
appreciate the legitimate concerns, but to lay those at the feet of 
this woman, at this point, simply is not fair.
  Again, she was, on her qualifications, unanimously confirmed by the 
Senate once already, and I would urge colleagues to join together to 
support moving forward on this nomination with the cloture vote and 
ultimately to support her.
  She has strong support throughout the country, is known for standing 
up for victims, and will play a very important role and be a very 
important voice going forward with the Commodities Futures Trading 
Commission.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Heitkamp). The Senator from Vermont.
  Mr. LEAHY. Madam President, what is the regular order?
  The PRESIDING OFFICER. The time until noon is equally divided on the 
Harper nomination.
  Mr. LEAHY. Has that time expired?
  The PRESIDING OFFICER. The hour of 12 noon having arrived, all 
postcloture time is expired.
  The question is, Will the Senate advise and consent to the nomination 
of Keith M. Harper, of Maryland, for the rank of Ambassador during his 
tenure of service as United States Representative to the U.N. Human 
Rights Council.
  Mr. INHOFE. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from New Jersey (Mr. Booker), 
the Senator from Colorado (Mr. Udall), and the Senator from West 
Virginia (Mr. Rockefeller) are necessarily absent.
  Mr. CORNYN. The following Senators are necessarily absent: the 
Senator from Arkansas (Mr. Boozman), the Senator from Mississippi (Mr. 
Cochran), and the Senator from Utah (Mr. Lee).
  Further, if present and voting, the Senator from Arkansas (Mr. 
Boozman) would have voted ``nay.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 52, nays 42, as follows:

                      [Rollcall Vote No. 165 Ex.]

                                YEAS--52

     Baldwin
     Begich
     Bennet
     Blumenthal
     Boxer
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Coons
     Donnelly
     Durbin
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Heinrich
     Heitkamp
     Hirono
     Johnson (SD)
     Kaine
     King
     Klobuchar
     Landrieu
     Leahy
     Levin
     Manchin
     Markey
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murphy
     Murray
     Nelson
     Pryor
     Reed
     Reid
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall (NM)
     Walsh
     Warner
     Warren
     Whitehouse
     Wyden

                                NAYS--42

     Alexander
     Ayotte
     Barrasso
     Blunt
     Burr
     Chambliss
     Coats
     Coburn
     Collins
     Corker
     Cornyn
     Crapo
     Cruz
     Enzi
     Fischer
     Flake
     Graham
     Grassley
     Hatch
     Heller
     Hoeven
     Inhofe
     Isakson
     Johanns
     Johnson (WI)
     Kirk
     McCain
     McConnell
     Moran
     Murkowski
     Paul
     Portman
     Risch
     Roberts
     Rubio
     Scott
     Sessions
     Shelby
     Thune
     Toomey
     Vitter
     Wicker

                             NOT VOTING--6

     Booker
     Boozman
     Cochran
     Lee
     Rockefeller
     Udall (CO)
  The nomination was confirmed.

                          ____________________