based on cost data but not necessarily outcome data because things cost too f=zzú;z$=";zzzzz and can't have. and i'm not against good practice guidelines. i think we ought to do everything we can. i think whatever can come out of there can be helpful. but a mandate is a totally different thing. and when we mandate it, what we do is we say medicine is check

the box. and we deny the fact that medicine is personal, that past medical history is pertinent, that a physical exam at the time of considering past medical history as well as the clinician's experience in the past with that patient should have an overriding superior position as to what that patient and that physician decide. i don't think we have those protections in here. and i think that we ought to have those protections. and so in one sense we already have language that protects that. and we've -- on a bipartisan basis, we've agreed to it. i would suggest that we accept this so that, in fact, we offer the assurance to the american people and the providers that in fact, they can truly have what is best for them as decided by them and their provider. >> well, first, you've got amendment number nine, and i'm -- there's some of the

aspectss of amendment number nine that i like and others that give me great concern. but i want to deal with something here about these washington bureaucrats. like every time this discussion comes up, we hear about something called washington bureaucrats deciding. washington, first of all, washington bureaucrats aren't going to decide anything. they are going to publish reports. let's talk about who we are talking about when we talk in washington who does research. those washington bureaucrats are called nih. those washington bureaucrats are called fda. those washington bureaucrats are called the institute of medicine. i don't happen to think they are washington bureaucrats. i happen to believe that they are very capable research people who devote their life to trying

to come up with evidence that would support initiatives that could save lives and i'm prove lives. so could we get off of this washington bureaucrat stuff? really -- >> the question is -- >> i'm beginning to find it, in their behalf, offensive. i represent, you know, people who work at the national institutes of health. i represent people who work at fda. they are doing their best to come up with those ideas that either will save lives or extend lives. the -- given examples about cancer and virtual colonoscopies, versus all that. but where do you think that all came from? that came out of a lot of it government-sponsored research or government doing the research so the private sector could benefit from it. we talk, about aren't we the latest and greatest. we're in the top five of medical

expenditures in the world but we're in the bottom 37th in terms of health outcomes. so the whole idea of what is coming out of comparative effectiveness is to enable more evidence and form practice to occur. evidence informed, not evidence or practice mandated. so that's number one. number two, the people who are going to be providing the aye lot of this research well be coming from the iconic institutions in our country. they are iconic. they are known around the world as incredible institutions. and we find it convenient to turn to the institute of medicine to do a study when we want to delay something. but when we're talking about comparative effectiveness or health outcome, we call them washington bureaucrats. like they are people who have

these -- imaccompliceit in that in somehow or another is they are aloof and incompetent. i'd like us to get off of that. secondly is we continually say that in this legislation, and i've given chapter and verse, that we do not mandate clinical practice. >> there is no statement in this legislation -- >> we do not mandate medical practice. >> there's no clear language that says we prohibit the mandate of this interfering between a doctor and a patient's decision for their care. please name the section where you mandate that a prohib cision there that you will not have -- >> go to page 32 -- go to page -- go to page 323 and tell me where that says where it is not construed whether that is sufficient. and then it says what you want to do in your amendment is say not mandate national standards of clinical practice. there's nothing in here that

requires a mandate for clinical practice. or quality health care standards. quality health care standards could be any number of things, one of which could be the development that the effectiveness of various checklists like the famous now checklist that you know and i know has really improved outcomes in surgical arenas. and actually saved lives. i think michigan told us it saved $200 million. so it's not the clinical practice that i worry about in your amendment. it's the quality health care standards that i worry about. >> may i ask you a question? >> i'd like to just finish because we could have endless questions. >> we need to have endless questions -- >> but they are also -- so i'm coming back, though, what is it about quality health care standards? you've said over and over, using the same arguments and now i know them, you know them, we all

know them. on clinical practice. let's go to the quality health standards. what is it that you -- >> federal and private health plan reports a recommendation shall not be construed as mandates. that's a big difference than saying they will not be used as mandates. >> might i make a suggestion? >> rather than this whole thing -- >> i think it's doesn't -- >> let me make my point. >> i'm trying to be helpful. >> let me make my point for a minute. where in medicare law do we have the right, right now, to tell an 85-year-old woman who has a complicated health history that she can't have a virtual colonoscopy because it's too expensive and yet that's exactly what we're doing, and that's what's happening as cms today. and as the pressure builds on them, as we get to 2017, we're

going to see more of that. >> could we come back, though, to quality health standards? >> sure. >> because i don't know what you object there in establishing a standard on quality health care. >> here's where i object. we decide that we convene people in washington, very iconic institutions. and we set a standard and then we're going to expect to put

that out and now we're going to have a national standard for care that is going to be in violate. not because it's mandated. because the liability situation if you go against the national standard of care, even though you may be justified in doing it, you're going to expose every physician in this country who doesn't do it exactly that way, even though their patient shouldn't have it done that way to liability. that's why i object to it because all of a sudden, we've now said there is one right way to do this and it's the government's way based on iconic professors and doctors of medicine. and it still disregards the patient history, the clinical history, the experience of the physician and all those combined, which is called the art of medicine. >> well, according to earlier sections in this bill where we talk about national quality

standards, we're talking about patient safety. we're talking about the reduction of medical errors, those things that happen inadvertently, not because of negligence or to use senator casey and other legal terms, negligence or intent. so i very sincerely disagree with you. what you do have in here that's good, though, is to conduct research on approving methods of disseminating information. i think that is very good because we have to know how best we communicate this in a way that could be where people could be broadly informed. but again, evidence informed, not practice mandated. and then also on the last 21 through 25, we're back to -- prohibiting cms, may not use data obtained in accordance with this section to withhold coverage, particular service treatment or a prescription drug, and i believe we've

covered that and that may not be construed. then again -- >> can you offer me a way where we can give providers protection, if, in fact, the art of medicine says at this particular instance i shouldn't do what the government recommends? >> well, let's turn to the national academies to do that because you know more about the practice of medicine. i know more about the administration. >> i'm talking about in the legislation so that we can -- >> no, that's what i mean. throughout this legislation, i have turned to the national academies for advice and direction and so on to be sure that we do not interfere. i have great respect for clinicians and the tremendous responsibility that they assume and their training and their dedication. so if you are looking at how to do that, i'd like to ask them how they think it's best done,

rather than in a back and forth here. >> there may be exposure to physicians based on what you do in cer. >> i think based on what we did in the american recovery package and based on what we're doing here that we met that need. if, in fact, other of the national academies of clinicians, whether they are the pediatricians, whether they are the cardiologists, et cetera, say, oh, no. we think we've got a better way. i'd be open to hearing. but right now, i don't want to change what we have in the law just based on a back and forth hearing. >> mr. chairman? >> there's also some other legal wordings that are suggested, but i think we need to really look at that. >> mr. chairman? >> yes, sir. >> i am going to ask unanimous consent that -- on page 323 of the bill, line 5 where it says senator reports and recommendations shall not be

construed as mandates for payment, coverage of payment that the word on line 6 construed be stricken and that the bill would read recommendations shall not be used as mandates for payment coverage or treatment and i think that would satisfy a lot of the concern raised here. >> that is exactly the suggestion that was given -- >> by senator harken. >> i call it the harken rule. >> and what i said to harken, which i will say to you, is i am going to be sure i know the consequences because words have meaning. i do not want to -- so i'd like to reserve the right to object if we could then -- as this afternoon -- >> could we leave this open then as a possible suggestion? >> that's exactly right. >> the acting director of nih, not a washington bureaucrat, stated that cer would be used to contain cost, as did larry summers, as did peter orszag, as

did kathleen sebelius, my good friend and the governor of kansas. and that's what worries me and i think that's what worries the senator from oklahoma. if we can leave this open, that's great. >> sure we can. and i appreciate -- >> i withdraw my request under the circumstances. >> thanks. yes, senator coburn. >> it's a very important section of this bill. very important. medicine is personal. medicine is individual. it doesn't fit in a box. >> no, but it does fix practicing guidelines. you yourself have said that. that national academies of clinicians. >> senator, can i finish my point? >> please go ahead. >> guidelines are important, but they're just that. they're guidelines. and when -- if, in fact, you pass this bill out here with

this, you are going to raise the cost of@@@arragrr")rráb individual and guidelines are just guidelines, and we create a situation where physicians now have another step in the process, here's the government guideline so now i have to back up what i'm doing with all this other stuff because i know from my clinical experience and what the patient is telling me that she doesn't fit the guidelines. and so i'm going to spend a whole bunch of money because i'm

not about to expose myself again to a classy lawyer that's going to come in and say you didn't follow the government guidelines. so if, in fact, we're trying to save money, you're actually going to increase the cost. for everybody who doesn't fit the guidelines. what's wrong with us saying we're not going to allow this to mandate the care and get in between a patient and a doctor. >> i don't hear much, if i may say, as i've been listening to this and obviously, senator mikulski has done the bulk of our work on this section. but unless i'm missing something, i don't hear much of an argument. this is maybe some language we want to look at. but as senator roberts pointed out, if in fact, what's senator mikulski has said, page 323, lines 5 through 7, i don't have to look, and the word used or construed so we make it clear on that does not mandate, then debate over. your point is spaepd we're checking that out.

so i don't think you're wrong at all. the question is does the language conform to that goal. and once it does, and i think it ought to, i think we've answered the question. so i think your point is well taken. as i hear senator mikulski, she agrees with your point. the issue is whether or not this language has some word of arc to it that i'm trying to ask if he knew something about the word i didn't know. we didn't get the answer to that. if, in fact it is what i hope it to be, then, frankly, those words interchangeable will solve this issue, i hope. >> it solves all the issue except the liability. >> well, then that's different than this. >> but the important point is we're not going to fix the liability. so you're still going to increase the cost. >> that is -- even if you didn't write this section, the issue of guidelines exist. and i presume in every court of law where an action is being brought by a plaintiff, against a provider, that guidelines, even in the absence of the word mandate, would be suggesting you

dnts follow a guideline ipresume that's always a course of action followed by a plaintiff in any medical malpractice case. the issue you raise, which i think has legitimacy. that is are you mandating something? and i think we are all pretty clear we're not. we shouldn't be because of the point you've made. but i would presume some similar going to make a case that guidelines have not been followed and the jury would have to determine whether they thought that had credibility. i don't see us eliminating guidelines, nor are you suggesting. >> nor am i suggesting that. in the meantime, i will -- i ask unanimous consent to withdraw it to introduce at a later time. >> we'll see if we can't get something cleared up on this at a later time. >> while we're on that particular point, though, hopefully the staff would take a look at enzi amendment number seven and eight because it deals with the same thing. again, worry about whether it's not construed but not prohibited and one of my number seven is about the quality adjusted life

year, whether older people are going to be penalized by these guidelines. another one is using it to deny medicare benefits. and those -- >> they are all related. >> they are all exactly related to it. it shows the level of concern we have over that. i guess that one word. but that at least that section because we don't -- >> and i'm -- >> sorry. i apologize. i am more than willing. i am not a lawyer. words do have consequence both in life and in law. and i know because i was building on the american recovery package language, and also when we were talking to, again, the academies and others involved, everybody had at least some type of language that had already passed that we could discuss from. i just want to be clear that there's not some unintended here

because if that cracks part of this open and deals with your amendments, some of the concerns senator coburn has. because the liability issue is an issue that also overhangs this conversation. but i would really hope that we can focus on the quality issues and not use prohibiting quality initiatives because people are -- because it's getting entangled with the liability issue. we ought to just have a straight conversation about liability or do a joint conversation with us in the judiciary committee. >> mr. chairman, what's the state of lay on this? >> the state of play is senator coburn has asked to withdraw his amendment while we get clarification on that. >> it's being laid aside. >> i have what i think is a modest improvement. it has three words instead of one. i'd like to -- i don't know how you want to work this other than

senator coburn, myself, the senator from maryland, yourself, staff, senator harken who came up with the idea. what do you want to do? >> we're going to go back and check and see if there was something about that word construed that we may decide to not like. it seems an awkward expression. >> the one i want to put in there is prohibit because i think that really gets to it as opposed to shall not be used. >> i hear you. >> that would be the one i use. i would submit that to you and senator mikulski. thank you for your consideration. >> one brief comment, mr. chairman. i have appreciated dr. coburn's insights in the house and here and have enjoyed hearing his comments. i want to just take off on something senator mikulski said about using the word bureaucrat. i don't have a lot of federal

employees in my state relative to some other states, but we use the word bureau crass in discussing and dehumanizing and delegitimizing decisions we don't so often use the word bureaucrat talking about insurance company automotonss or lower level people or whatever denying care. from the view point of comparative effectiveness, they're denying care based on -- not denying care. they are basing questions based on legitimate scientific evidence when it's insurance companies, private experience companies, bureaucrats that might be denying care based on profit. so i just hope that we are a little more careful in words we use to describe human beings that work in these agencies or that work in insurance companies and look more at the end product. and that's all i would have to say. >> point well taken. >> no one is aloud to use the word bureaucrat anymore. >> mr. chairman -- >> except when talking about --

>> mr. chairman, before you eliminate that word, i'm willing to concede that there are bureaucrats in the private sector and there are bureaucrats in all levels of government. and we're not speaking of the mass of people. again, it's the exception out there. it's the exception of the person trying to protect themselves by overusing something that we've done. and there's no way to write rules against all of it. and it does happen. so it shouldn't be a reflection on everybody. >> and we know nothing in this institution about protecting ourselves and self-preservation. >> i appreciate the comments. >> we can have a whole new title. just to prohibit bureaucrats from doing anything. >> next amendment. who has another amendment here. a vote has just started, but if we can open up an amendment. >> i have a member of parliament from great britain. i'll exit and come back. >> you have a member of

parliament? >> i have a member of parliament from britain visiting my office. i've made him wait 15 minutes. >> you aren't getting close to that uk medical health care plan. >> i am trying to find out how they -- >> actually, you know what? senator coburn, i actually spoke to sir michael rolings who does run n.i.c.e. and about what worked, what didn't work, what they might rethink and what they are very proud of. i would be interested if you do raise that with your visiting guest. what they think of n.i.c.e. from his -- >> senator, may i just say one thing. i was a very close friend of a member of parliament. used to come visit all the time. and he went in and under their program of n.i.c.e., which is what i guess the acronym is. he had a broken wrist. he doesn't have a broken wrist. he had cancer throughout his body. and he died in two weeks. i don't know the exact details of that, but that's the classic

case of what i think we're talking about. >> i have no idea what you just said. i mean, anybody could go to see someone and be dead in two weeks and would have nothing to do with -- >> no, no. he had the diagnosis, but he was on a waiting list for treatment, suffered a broken wrist. went in for the treatment of broken wrist, got in, but the treatment that he was diagnoses for was, obviously, cancer. he died from cancer while being treated for a broken wrist. >> i think maybe senator enzi has an amendment. rather than start that, why don't we take a recess for 15 minutes. come back at 5:00. try to do another hour. i want to see some sense, too, if we could ask majority and minority staffs, give us a sense of how we're doing here. obviously if we can move through or people decide they don't have to offer certain amendments. i'd like if we had a chance to

complete title 2 would be very, very helpful. a few outstanding issues to come back to. if we can be wrapping up title 2 and then tomorrow -- we have that event this evening. yeah, that's true. report in the war

supplemental. they voted in favor of the legislation. now more from the senate health committee. >> mr. chairman, i just thought i would respond to a member of parliament. he said something which i hadn't thought about which is true, doctors can't serve two masters the state and the patient and if

they do they are unethical because unconflicts with the other. >> thank you, senator. there's no argument with that. we're all trying to achieve the same results. senator ramsey you had an amendment? >> i had an amendment. i think some consideration was given to those amendments and we may have something worked out on them so i won bring them up right now. >> to inform my colleagues, we're only going to go about another 15, 20 minutes because there are events this evening that people need to attend. i'll instruct our staff this evening with support of others that they work after we've adjourned on the remaining 20 or so amendments i'm told that remain in this title. a lot of them have to deal with the very discussion we just had, debate and if we can resolve that with language that pat roberts has submitted that would

deal with a good substantial number of those amendments. this evening if further work can occur, hopefully the remaining ones could either be resolved or have a finite number to deal with title ii with the hope that is tomorrow we'll convene at 10:30 for two hours to try to finish up title ii and then over the weekend i'll be instructing staff to begin to work as they have already, i know, i think there are 171 amendments that have been proposed to the prevention title, title iii of the bill and the work on those amendments over the weekend so that we convene on monday we can hopefully have whittled down that number in the prevention section and my intention would be to start on monday and i believe we come in -- monday we have time? we have an executive session at noon for members to sit