initiatives and i trust although i must say the point senator mikulski has made on the issue is compelling and obviously sitting here dealing with kickbacks sharing the information with those physicians practicing in the hospital. what i prefer to do is take this tomorrow morning to consult with senator kohl dealing with the matter and if there is some -- he says in his letter he didn't want this considered without being i think the word is out to be considered -- >> consulted. >> consulted which is a different answer than he would oppose it and to me when a colleague has to be consulted on the chair as a committee that's where they take a pause and breath and inquiry and so i would like to recommend at the moment like this i clearly want to finish up this title that we withhold on this one until we have a chance to consult or talk

herb kohl. >> i make the point that the start antitrust commission lies on the finance committee of the judiciary. it was written by the finance committee and promulgated by the finance committee. i am not sure, i am not sure it went through the judiciary committee. well, two members here as well. >> mr. chairman, i just wanted to express my support for this amendment. if it were to come to a vote, i'd be strongly inclined to vote for it. i do think it's important that we accommodate our colleague senator kohl who has asked to be consulted before this whould go forward. i hope we could accomplish that in relatively short order. if it comes to the point where they can't get their arms around this in time for us.

we may have to come back and vote on it. >> on an issue we would agree with. >> interoperablity and -- >> let's make that kwer. let me instruct staff to get ah i think we would all like to vote. >> mr. chairman? >> this doesn't really solve the issue of germaneness, and i do think it is important that the record show that germaneness does not apply in committee, and when i chaired this committee, we marked up the number of bills on which this issue was raised. this bill itself has the least eight to ten sections which are not germane to our committee. >> i am trying to make that point. >> that matter is in wait. and, you can do healthcare in silence. it is just too big an issue. i hope we won't into a debate over those amendments. >> i think the effort was to act

more conforming of the new policy initiatives. that was what we were trying to avoid the clearly the bill touches on jurisdictions. i did not realize until this afternoon, some mullahs tell me that the finance committee, there's no legislative language. what you do is adopt concepts. >> by the way the finance committee has virtually no sensitivity to germaneness. left's beach jurisdiction are even writing legislation. i love the idea of adopting concepts here. we could have a wonderful afternoon adopting concepts. legislative language is hard to deal with. >> i am the soul of sensitivity. >> i appreciate your indulgence. >> so, we are going to just-- >> we will pause on this one in seepage and find out in answer to this one and if not we will vote on it. for their amendments to this section, title ii? going once.

>> kennel fairness i would like to come back to isakson. >> he is not here. >> and if i could speak to senator isakson, and i would like senator enzi and their colleagues on the other side to hear this. in consultation both with the people we have to administer what isakson would like as well as the aarp, there was a very serious concern about the unintended and adverse consequences for medicare beneficiaries and their families mandating that he must have an advance directive before you would be eligible for medicare. there are several bills pending, with both the administration and aarp, a very good way to accomplish this objective. rather than vote on isakson, where i would have to oppose the

mandate around eligibility for medicare, i would like to be able to promise, and as the subcommittee chairman on aging, with my colleague, senator burr, the ranking member, that we review the legislation that is spending, that helps deal with this issue of encouraging the development of advanced medical directives. in other words most people getting the directives. and look at the existing legislation. with various legislative proposals that are being recommended, it seems this bill moves forward, we could not come back to the committee with an idea-- there he is, good. >> john, we are talking about yeah, thank you sir. your timing is perfect.

barbara, do you want to finish? >> the thought is simply this. in a nutshell, that while this amendment is well intentioned and wanting individuals to plan for their future needs and to have an advanced directives, aarp and also the administration is concerned that it would have adverse consequences for patients and providers. instead, they encouraged that the members of the health committee look at the legislation. their three different legislative bills that are pending, that could facilitate more people creating for themselves advance directives. but, that we do not freeden mandate for eligibility for medicare. and, i would like everyone, if they would just take a minute, caribe aarp letter. i say to my good friend from georgia while the is reading the

letter and i will be happy to wait until he does. this is very important and i really want to work with you on this senator isakson. >> mr. chairman walz senator isakson is having a chance to get up, caught up, having just walked in, let me say i'm more than willing to work with my chairman on the subcommittee. i think that, i understand senator isakson's passion about doing it now. this is the healthcare bill. this is a vehicle that is going and i think there's a concern on his part, even if we came to the same conclusion, would you have the consensus across congress to do this? and i remind all of my colleagues that it could be as simple as the senior going in and their direct it is, do everything to keep me alive you possibly can. this is not parsing this in some term, unless they have thought about it and i think that is what senator isakson is trying to do, is to get individuals on

the record so that there is some instruction for family members. >> see, that is what i would like to talk about. what is the mandate in order to be eligible. second what is an informational packet? quite frankly senator isakson i would like to get my hands on that and look it over, both from the standpoint of what it takes them the number three, given the legislation, there are three pieces of legislation pending, that would facilitate advance planning directives being created, but also been looking at that, even we might come up with their own idea different from those. but that the time not passed or we don't seriously address that. >> this is a major issue and i want, i was just telling mike enzi, i have the district is. i know a lot of this around this table have tried to do this and i would ask tom about this as well and our resident physician.

my understanding is that, we did not have any form to work off of. belvoir i used to help us to this represents a local hospital so he is not only familiar with the hospital procedures by been told hospitals, even with well-prepared documents and there's still a lot of reluctance about following these directives. if they are not here to fight. if there's any guesswork, any family member has questions, the general reaction is be fearful of litigation, that you stepped into early and didn't listen to other people so there is a reluctance. but i think what you are touching on is critically important. to the extent people can be advised about this, it being courage to do this is something i think we ought to promote. i get uneasy about a mandate here that requires it and particularly a simple sentence. i think the simple sun sounds good but you will find people will say wait a minute, and

katie was not asked about that and i don't like that being done and all of a sudden you've got yourself a legal morass. i love the concept. i believe we ought to do something in the bill on it but i would be uneasy about the mandate requiring everybody to do this. that makes me uneasy. >> mr. chairman, i appreciate what you are saying and i understand the legitimate concerns about the mandate. i also understand that this is both in the interest of the individual patient as well as in the interest of cost savings, both of which i think all of us are interested in. i know a couple of members from your side, mr. merkley mr. whitehouse talk to me last week about working on something like what we are trying to do here, so what we leave it on the table. let's talk over the next few days and see if there is a way-- >> some language? >> that will make it work that will satisfy the concern. i don't want to comment on this letter until i can really

digested. >> i agree with you. what we do that together and you have my public pledge that i want to work with you on this, once we move forward, but to go ahead. >> i appreciate it. >> good work. >> mr. chairman? >> yes. >> i think we have got to talk about it. advanced directives are important. , do you know what i see? to waffen they are ignored. were they ignored? it is the one issue we won't address in this bill. the liability question in this country. you brought it up. two episodes have been told to me in the last week the people who had advanced directives that were placed in i see you, in debated, and lived 14 days even though they did not want that. because the judgment of the time was were free to follow this

because something had been said by a family member. so, either we need to fix advanced directives to where they mean something or we need to fix the malpac-- practice climate for not doing something. if you don't do that, john's bill is thought going to help. it is not going to accomplish a thing and if we are really interested, i certainly don't want to be resuscitated when my time comes. i will come back and haunt whoever does that. [laughter] i promise you. also, i don't want my family to pay for medical costs that were of absolutely no value. and come so the bigger issue, if we really want to address this issue is you have to look at the liability and their loss of ways to do with that will come of that the legal profession of this country can accept that will be better than what we are doing now and will get better justice for those people who are being denied claims that should be getting them now and we can

actually honor an advance directive, because that individual mated of sound mind when they did it. >> i appreciate that. further amendments to title to? >> mr. chairman. >> senator enzi. >> i think my amendment number for his modified was accepted. >> i believe there are couple of amendments. >> ansi amendment number four has been accepted. >> we are still working on ansi amendment number six. >> correct. and murkowski, number 38 as modified. >> agree to as well? >> was also agreed to. >> on both ends in number four, mickle skeet-- >> no, murkowski. >> lisa murkowski. user first name. >> lisa. >> your irish, you ought to know how to save these names.

senator lisa murkowski the amendment, number 38 and amendment number 34 as modified. without objection, they are adopted. further amendments at this time? >> i have to return to one area that we have talked about and that is with enzi amendment number seven. >> enzi amendment number seven. >> it is a very small piece but i think a very important piece on the again, compared the effectiveness research. this amendment would prevent the government from developing quality adjusted life year, called crowley in the united kingdom, which there measures or other government for millis to assess whether patients deserve treatment, and the united kingdom uses it to determine if the patient should receive

treatment and the formula often leads to the elderly and disabled being denied care. so, this would prohibit again the word prohibit to develop certain types of formal methods like the united kingdom uses to deny expensive care to elderly or disabled patients, and some of the uses that it has been used for is repeatedly blocked breast cancer patients from receiving breakthrough drugs, for patients with multiple sclerosis to wait two and a half years to receive innovative new treatments. it is prevented patients in the early stages of alzheimer's to get the medication which lets them get worse than penekamp the help. it is denied life prolonging treatments to kidney cancer patients and allowed a small percentage of patients with osteoporosis to receive the medicine and then only as a last resort, it is also been denied,

used to deny drugs available to treat aggressive brain tumors. i just don't want that to happen in the united states, so i would hope we would not allow the quality adjusted life year process measure to be used. >> mike. >> that is that. a very small part of an important. >> first of all, what the senator from wyoming's the amendment would do is prevent the agency on health research quality from developing measures or methodologies for the denial of medicare benefits to patients on the basis of age or expected life. i think that the amendment is unnecessary. section 219 in the bill would generate more-- when actually generate more personalized, more reliable research that is more relevant to individual patients and doctors than any other

research program. section 219 would give doctors more tools, not less, to help their patients, so this research is going to help doctors and patients with their therapies. ansi number seven blocks the development of measures the methods that address age or expected life which are necessary to ensure that our most vulnerable patients get the personalized care that is needed and right for them. placing blinders on aids research about these patients will force doctors, patients and their families to make medical decisions without the good information and what may be helpful. we need to help doctors and patients choose the best treatment and we believe that this would do this. i come back again, in our legislation, the center shall not be construed as mandates for payment coverage or treatment.

and, therefore, the center reports simply could not deny medicare payment coverage for treatment as the amendment suggested. therefore, i urge the defeated the amendment for asking the senator to withdraw his amendment. >> mr. chairman? a quick question of senator murkowski. >> i am listening. >> i am curious if she believes that the national institute of comparative effectiveness in the u.k., if they in fact in their therapies getting to the marketplace and limit access of patients in the u.k.? >> no, i do not. because, i believe that the british people and the british parliament, which are the same value system as the american people and the american

congress, and they wouldn't-- i think it would pound the table about that. >> my only point to clarify was there is example after example after example where products have been either restricted from going to the marketplace on disease specific drugs and nice has been the institution that is made those restrictions have been. it is example after example since 2001, and i wonder whether the difference here was that you disagreed with whether they did it come out or you suggested that what we are setting up in compared effect dumus what actually operate differently with them what the u.k. had? >> we are different here. the national institute of comparative effectiveness in the u.k. can affect payments. we are not doing the u.k. way. we are doing it the usa way, and the usa way says it shall not be

construed for payment coverage for treatment. so, we are different than the u.k.. we are the u.s. the way. >> once again, just to clarify, if finders did you correctly on the original question, you do not believe that nice limits medications in the u.k.? >> you know, i think we would have to have the british ambassador, and answer some of these points in the u.k.. >> mr. chairman? >> senator coburn. >> i want to make the point again, shall not be construed as not cut it. because we are saying it, but cms is limiting payments today. limiting payments today, so if the defense against what senator and the wants to do is that we have the language to protect it, the proof is in the pudding. we don't. they have a wide range, and they

are in fact rationing care at cms today as well as practicing medicine. and creating and h adjusted life value and then measuring that against what it costs, forgets one important aspect of healthcare. that individual's human life that you are applying it to. so, when you have failed three courses of treatment on recurrent leukemia and there's a drug that will give you a 30% chance of living freer for years, and they are saying you can't have it because you are not worth it, and shall not be construed does not protect american seniors, american adults and american kids from that kind of bureaucratic malfeasance. >> mr. chairman? >> mr. chairman i do think it is important to understand what this quality of life is all

about. the most crass terms, what they do in england is, they say that a life is worth 20 to 40,000 pounds a year. and vinnette procedure exceeds that price, you don't get the procedure. i don't think we want to go that way, down that road in this country so i think we have to have an absolute ban on that concept of russian. otherwise, we are not going to be able to control the bureaucracy which looks of england and says, that is a good way to do it. even if it is implied they should not use it, that is not going to be good enough. uft s- tory len whitson says he cannot put a value on a life and have a procedure that exceeds that not being available to that person. it is not the individual approach to that our society depends on. our society is a society which

values the individual. >> would the gentleman yield? i just want to comment, this is interesting. one thing we are not doing, we are not adopting a carbon copy of the british system. >> were not. >> that is uniformly rejected. i noticed with curiosity, for the last x number of years the private insurance industry has basically rationed healthcare. we evette extensive debates and that to try to pass legislation to do away with preexisting conditions and other matters that they would make the decision all the time. they complained about the private sector bureaucrat getting between the doctor and a patient and say no we are not going to make those payments. that it's been happening year in and year out. i have not heard the same outcry against that interference with the delivery of healthcare to people as a result of the private system stepping in. in this case here, we are going back to this language again, and i certainly, i ask the question

today. i said to someone, where did this were construed come from? is there some legal term of art associated with that word in people and the administrations said no, mandate is the operative word, the mandate, you cannot mandate this. that is really the word and that is a term of art in terms of mandating something. that is mandating for instance a procedure or a proposal to a provider that doesn't work at all. it works both in terms of what works and doesn't work. and i think we are exaggerating and realize people of had some bad experiences with cms but we are exaggerating the world to such a degree it seems to me. i appreciate what my colleague is suggesting here but i don't know anyone who believes for a single second that we ought to be rationing care to the point where we divide benefits to someone. >> mr. chairman, before we go a long ways down abroad on that discussion i would appreciate the people to take a look at the bill. the word prohibit is not in here

anywhere, and what we are trying to do is see that the center does not develop measures are methodologies for that the niall. they can get their informational they want. but they can't put it in a form for measures are methodologies for the denial of medicare benefits to patients against their wishes or the patient is incompetent against the wishes of the patient's surrogate. on the basis of age are expected length of life for patients predictability of dependency or quality of life. this does not keep them from gathering information on virtually anything. it does keep them from using it to deny medicare benefits. >> broddick also going the other direction. if you have met that, you might also be doing comparative effectiveness on what would help people with these particularly vulnerable population

conditions. i mean, the whole idea of developing a method and the methodology is to determine what is effective. it is about the efficacy, and sometimes it is about what are the good stuff, not about to smile, but by approval. >> this amendment would not eliminate that. i would remind my colleagues there is one fact with medicare, if medicare denies the benefit, you cannot legally buy it with your own money. how many are aware of that? if there's a procedure to save my life and medicare says we don't cover the procedure, i am prohibited by law from spending my own money to buy that procedure. that is medicare law. so, not only do we have that preclusion, we are talking about now we are going to judge it in terms of age adjusted quality of life. quality and we are going to have

somebody decide what the quality of life is. so, i would strongly ask you to it please consider something along the line of senator enzi's the amendment and i will make the point again. rediker it is denying a drug today in the procedure today that has great indications for certain people, but they decided it cost too much so we can't, you cannot have it. so, for five people are going to die this week because of medicare's limitation on virtual colonoscopy. i will guarantee you that, because they can't have a virtual colonoscopy so they have to have one that has much higher risk to them. >> mr. chairman. >> is there debate on the amendment? if not, we will call the roll, mike. the clerk will call the roll.

mikulsk sni. >> no. >> senator bingerman? >> no, by proxy. >> senator reid? >> no, by proxy. >> senator sanders. >> no, by proximaty. >> senator brown. >> no. >> senator casey. >> senator higgins? >> no, by [roll call] [roll call] >> the amendment is defeated. >> mr. chairman that includes the coley section. their three outstanding, one we

want to get clarification on coburn 12, with the sentiment of the committee to take coburn 12. senator enzi and ire are working out in the number six, and i believe we are very close to coming to an accommodation with the senator and senator isakson and i have a chunk of homework to do together coming to see how we can promote the advanced directives among seniors. >> i thank my colleagues for that and again i would urge is to try and reach some agreement on these. i spoke to tom brief the moment ago and got answers for senator coburn on that. >> could i inquire of the chair that this is a complex topic. if we close here, are we going to be precluded come if we see something new and the steady this that we can come back? >> absolutely. >> i thank the chair. >> we know each other pretty well around here and i'm aat