usually on any of them, connecting with those audiences individually with a message that is intellectually consistent is tough. it is tough stuff. is really hard to -- it is like not just threading one neil but five or six ernie els. you can't make up a story for this audience and twist and turn and go down low on the other audience. trying to find a way that is internally consistent and intellectually honest but yet breaks through. that is the thing too. that breaks through the connection with all these people at the same time creating that message is not easy. we were targeting with one of our audiences and washed the population and we thought we had a clear lead on that audience

but we missed the value disconnect or just a presentation. never totally assess what went wrong. ..we never totally assess what s wrong. we just knew we were in the wrong path. so it is a challenging exercise to get the right -- the right message, the right messenger to the right audience using the right medium, even when you got one of the time, but you're trying to create a construct that potentially holds multiple movements. it is a big task. generally a big task. okay, any questions? have i convinced you that this is hard? it is >> and interesting as you go back, somebody who's trying to build a campaign and work with

their client, work with their ceo or their president, who kind gets the idea i want to do this, you know, we need to resolve ask, which is very compelling to him or her from their point ofpg view, and you have to say wait a and you have minute, wait a t minute, wait a minute. a we can't go running to the hill' we can't go running to theg to e press. we can't go doing x or y until we have talked about how we're going to talk about. that in itself is not easy. quoting back as ceo who is convinced and usually as ceo was always convinced that what they're thinking is absolutely right. and for those of them were watching, they all are. they are all right all the time. but helping them be as successful as they can be a time and to hold on, we need to think about the best way to talk about this as it relates to our overall gambling is a challenge and it sells.

it's like riding bareback unable. these guys and gals have one thing on their mind. but it is such an important stage of the launching of any campaign. so how do we do it? we talked about what it is, why we need it, why we need it again. it's to be able to break through to the people you want to talk to, hopefully to get them to do what you think is important to do. breaking through is really what the challenges. so how do we do it? what do you think is critical, going back to my dead horse that ip to your? what you think is critical first step in starting?

somebody in this corner here. [inaudible] >> finding out -- we are now sitting down as a team and we're going to start taking this to and begin to flesh out what our strategic messaging game plan is an messengers. so what do we really need to be sure how we're starting? >> figure out what your object it is that you're trying to accomplish. >> i will overstate it many times. but it hasn't been overstated yet. none of these tactics matter unless they are tied to your strategic, your overall strategic gameplay and and your object is. it's a lot of fun to go off and developed these tactical or two beauties, whether it's on the hill or coalitions or whatever, but it has to be grounded in the

course of your exercise, your overall exercise. so really getting a good grip on what your goals are is the first exercise and then being able to ask every time, at every step of the way, is this helping us move the school a long? is it incidental to it or does it have some undermining effects that were not thinking about. and in messaging, unlike other mistakes he could make him he could have a bad meeting with a congressman or senator or community group or an individual or trade association. ..

>> very carefully. okay. so one of the first exercises that we going back to some of the things you guys threw out there is really, the first exercise is before you come up with the message, you've got to come up with who are we talking to. who are we talking to. what are, what is, what is the universe of our audiences, who all fits in that spot, and then you need to parse out and

segment the audiences within that and maybe make some kind of prioritization of those audiences. prioritization in terms of importance, prioritization in terms of timing, when they need to be -- when they might be on the other side of your message, the sequencing. you might want to have a conversation in the team about where are all the places that we might want to have these conversations. where will we be talking to these audiences. you're creating kind of universal listening. so where are the venues? well, we're going to probably be using the internet, we'll probably be talking to editorial boards, we'll be working with the working press which might be a little different -- well, will

be different than the editorial boards. maybe radio, maybe cable, maybe full tilt tv. we're going to be walking on capitol hill, we're going to be talking to trade associations, we're going to be talking to other organizations, interested parties. we might have mailings to our, to constituents. one interesting little technique i don't know if anybody has ever had this happen to them before, when a company is starting a communications campaign -- particularly a company that has a fixed or a pretty fixed set of constituents -- one of the things -- like a utility -- they'll talking to their, they'll have a multitiered game plan just like we're talking about, but they'll have the luxury of talking to each customer with a little insert

into your mail, into your bills that if i'm not on that mailing list, i may never, ever know that you got that little letter x they have a clear shot of framing their issue without the opposition to that issue being able to respond in realtime or maybe taking a long time to even figure out that it happened. so there are a lot of different venues that you will be thinking about. the more public your venue is, what do you think you need to think about? as i'm going out with a media ad, or i'm going to take out a couple of pages in the new york times or the local daily mail in charleston, west virginia, what do i need to know, what do i need to be thinking about -- assuming i've got the best idea going -- what do i need to be thinking about -- >> [inaudible] >> what else? who's going to let me -- no.

say i'm taking out an ad in the charleston daily mail. >> it would be if it were some sort of letter or something like that. >> good point. >> signature's going to be on the letter. >> good point. and then, okay. >> who's going to be reading it? >> who's going to be reading it. but what is inherently dangerous about taking out an ad in the, taking out -- using a public communications mechanism? >> you need to know right away, you need to anticipate what the opposition's going to say, and you need to have that ready to go because, obviously, they're going to respond as soon as they get their -- >> exactly. the difference between putting an insert in a letter may take weeks or days before the opposition finds that out, but this is the today after or that day, there may be a working story that gets generated off of that ad that i've asked senator liz to put this bill in, and i have an ad applauding her.

the working press might go immediately to senator liz and say, are you supporting x, y and z, and do you realize, blah, blah, blah. and the opposition may have already fed that. the story can roll. so an ad, any public display of what you're doing, you have to be ready for the repercussions. >> you've been trying to anticipate what the opposition's going to say and maybe try to work that into the ad that you're taking out to make it even harder on the opposition to, you know, try to take down your message, trying to anticipate what they'll be saying and incorporating that. >> right. and you might want to prepare people who might get called up by the working press, you want to tell senator liz, you know, we're doing this ad in your district today, and we're going to be thanking you for your work, but, you know, you're likely to get the other side that's going to call you, or the press will call, or they will call, and you might want to say, you know, we're anticipating some of the arguments here. and if you need any background

information, we're glad to provide it. now, i've worked on campaigns where the culture of the organization both at a local level and at a very sophisticated corporate level they just are afraid of what might happen. they, they might be totally convinced that they have the right message and the right idea and have the resources to do a campaign, but they don't want the reaction. they don't want to deal with the unknown. and that is not an easy thing to overcome. saul lin sky, anyone ever heard of saul? famous community organizer, really the guy who engineered or developed, pioneered community organizing at it current. its current. one of the famous comments at least attributed to him, the one i find really valuable, is all the action is in the reaction. right? all the action is in the reaction. well, you can take a shot, but

the game -- that's just, that's just now the beginning of the process. it's what happens in response to you that you need to be ready for. his principle in many community organizing is let's go kind of mess this little porno shop up here by throwing pennies and, you know, that's the kind of thing he would do to get people all excited. he knew he could control that, but he couldn't control what the reaction was to that. so he would say all the action's in the reaction. president obama, the same thing. he can devise a strategy of x going into the next congress, but part of what he does is going to be not anticipating only, but realizing what the reaction is, and then that's where the battle gets drawn. >> if you have a high profile -- maybe not even a high profile issue, there could be numerous advocates that are on your side, sort of, but their reasons are different, and their messages

are different. and somehow you could get linked together. it's happened in my experience where you'll have different groups advocating for the same thing for totally different reasons. how do you control that message or counter that message? the opposition, they want the same thing, but your reasons are -- [inaudible] and, and, you're not working in coordination with them. >> well, that can happen. so i think the more grounded you are in what you're really trying to accomplish is really, you've got to be anchored. you can't get drawn into -- and that will happen, you'll get drawn into other debates that somebody's glomming on, is that what you're -- >> no. they're working independently and not taking advantage of you, but i can't come up with a concrete example right now, but i'm sure there's one in health care.

>> well, you can look at the working media -- >> the working media just starts to paint the entire community of proponents with this one brush, or like the tea party, you know? >> yeah. >> the tea party, if they were against health care, and that's not necessarily true. >> well, but if you look -- good example, i think. but be you look at how the republican leadership characterized the tea party after the election, i thought it was extremely effective and smart. where there was all of that anger -- health care, deficit, they kind of reduced it down to this is about the deficit. and they kept repeating that and repeating that and there really wasn't a countermessage. the democrats were trying to figure it out and saying, well, they're not all against us and stuff. but they were saying we're going

to define this event as an anti-deficit, or big-government and big-spending. and i think they were very effective in characterizing that debate. and, and were successful in dealing with that 30 days post election. i'm not sure where that went when the republican leadership walked away from the balance budget proposals, and they made all these deals with the president on tax cuts all over the place without paying for them. so whether or not they're still holding the upper ground on that. but they were not going to let the democrats define on their terms what the tea party was which i think would have been more fragmented, more extreme. they just said it's about, it's against in anticipating that, i think. that speak to your -- more or less? let me just move on. the, getting at this, this

process here is that what an organization has to do as they begin this exercise is, really, they have to be grounded in what they're trying to accomplish, but they really have to do a self-evaluation. they have to do a deep dive on everything that's going on about this issue ha they know of. that they know of. they might be looking at those four ps, the policy, the history, the players, the process. they need to be exhaustive in doing a scan before they're moving through that message. so they might want to look at, you know, the history of this, as bill sweeney said yesterday, there's very little that's new here. usually something has a history. what's the context of this particular issue at this time, you know, how does that effect what is going on outside of us in terms of the political environment. so there's kind of a real analytic scrub, one that you do for your overall campaign, but one that you do as it relates to

how do we get down to the nitty-gritty in putting together our message? what's the history here? what's the jug for what we're trying to do? how is the opposition talking about it? where is their sympathy for this? what is the political landscape due to the fact that we might want to still be doing things on climate change? how has the election affected that? all of that goes into -- that same kind of analytic scrub goes into how you begin to frame your message, okay? you need to be doing that kind of internal dive. how, and often things are already emerging. people are already talking about it. so, i mean, really it's a very labor-intenseive scrub of everything that's going on around your issue, how people are talking about it, reading

press clips. people that are your champions, are they talking about this as all postelection or whenever you're picking it up? what is the opposition saying? what are the policy e elites saying about your issue? you really do as broad and deep a scan as you can to get the language that's being used as it relates to your issue as you begin your exercise. okay? so you're then making a decision that there may be enough in the history already that this, we can kind of just touch up the way this has been talked about and now begin to recast this in light of the new, the new audiences that we're trying to speak to. or we might say, whoo, we can't talk about this same way ever again. and i think climate change is a perfect example of that. perfect example of that. there are going to be attempts to do a lot in that space.

some of it substantively not at all like what went on, what was being considered last year, the last two years. but a lot that might be. but it will not be using that message frame of climate change ever, ever again. that's like as dead -- climate change never happened, the siberian winters are really, you know, now summers. i mean, it's going to be like it never happened. and whatever framing, again, there's going to be a lot of history that's repeating it. it often does. content wise it's moving forward. but this is not just a touch-up on the climate change debate. there's going to have to be a whole reframing of the messaging that's how you talk about passing climate change, i mean, passing rockefeller or opposing rockefeller. now, i take that back one step. the opponents to climate change may find that some of their

messaging frame does still work. in fact, they might be just tweaking it depending on what the other side does. so the action's in the reaction. they might be tweaking it in if a -- in a way saying this still works. it's anti-coal, anti-jobs, whatever the lines are. but the pro-energy people, the people that are protecting what the epa is doing and want to go further, they're going to probably have to do more than tweaking. so you have to kind of say are we in this -- which is our starting point? that's an important exercise. then what are we asking people to do? so you've defined your audiences , you've segmented them out in terms of priorities and then -- venues. what are you asking them to do giving your -- given your campaign and your campaign objectives? if we were in a campaign that

has a two-month time frame which sometimes you get asked to get drawn into, obviously o, you're asking people, probably, to act real quickly. that's going to influence your messaging strategy, obviously. but if you have a time frame of your campaign, again, going back to your goal, that's a year long or six months long or ten months long or two years long -- which some of the campaigns i've worked on over the years as i mentioned earlier two, four, six years -- you might want to take a different trajectory in terms of what your messaging campaign is. you might first want to build awareness. you might want to build awareness in terms of agenda setting and getting it on the, on the press' agenda, on the congressional agenda, on the president's agenda. or you might just want -- it might not be an issue that people in people's key districts have really thought about. if we've been coming out of a

real economic slump, people will not -- i'm not paying attention to a lot of these issues that were on the original obama agenda. they've kind of fell to the back. and it may take a while to kind of bring them around again in one way or another. or in the any campaign. so depending on your campaign, it time frame, you may have a strategy -- at least a fist phase -- of awareness. the second stage of that, assuming you have, let's assume it's more than a two month kind of fire drill, crisis kind of thing. your messaging strategy might want to be laying a groundwork for persuasion as well. again, and then we're parsing out the audiences. now, there may be members of congress that you can go right in and talk about persuasion, but chances are in a new congress with all the new members we have, the new circumstances, there's an awareness piece to a messaging

strategy. there's a persuasion piece kind of building the case. you don't go in and say, hi, sam, i want you to vote for x. and then almost forget telling them what you're in for. so, i mean, you're -- it's an extreme, but what you're trying to do is build the case, right? so awareness, again, it depends on what your program is, but awareness, persuasion is a different part of a message strategy. and then what's the last one? so i'm teaching folks, i'm educating folks about a concern they may not have known about or paid attention to in their districts or their states, or here's a news reporter who's been following x, but did you know what is the last point of this? >> action. >> action. action.

so your message strategy needs some kind of sequencing, and sometimes it's laid out over months, sometimes it's laid out over weeks, and sometimes you don't have the luxury of anything. but it's about education, persuasion and a call to action. and sometimes you don't have, it doesn't follow that logic as neatly as you'd like. sometimes you're educating about did you know that in africa the x, y and z treatment of aids could save these many lives? and then you might have -- there may be something happening, and you might move from an education strategy to a, i mean, a action strategy right away. but usually you need to kind of build the case, and your strategy need to, messaging strategy needs to do that. any questions on that?

now, as you develop your plans, you don't necessarily -- you would, you would want to demonstrate that you recognize that sequencing and that if your plan is showing a yearlong activity or ten months' activity, you're not saying we're going to run ads in congressman so and so ice district, and tell these guys to call their congressman today about x when they may not even know about the issue. so you, again, i don't have the silver bullet for your plan, but what a good advocate can do for whoever they're working for is to be able to reason through. this is kind of how this works. we know we have barriers to break through, but we need to do a little education, a little persuasion, and then we want to make sure we have a call to action. we're not just talking to them because we're nice people. we want them to do something. okay. how do, how, then, do you figure

out the way to get through that barrier? how do you break through? how do you take this from an academic exercise to one that somebody's glad they're paying you to help them do? how do i get to move you? what time -- we are on a 4:15? we end at 4:30? oh, we're going to go a little longer than that. [laughter] >> [inaudible] the issue is something that matters to whoever -- [inaudible] whether that be something to do with the economy or -- >> it mattered, matter is a loose word. we need to define it. i'll give you a simple little diaphragm -- diagram, excuse me. [laughter]

the key to making this work is touching someone's values. that depending on the audience that you're talking to, if you can find some way on a value basis to connect to them, right? not the best scientific argument. you've got to have the facts, there's no -- this is not about circumventing the facts. this is about breaking through. it's about breaking through. and breaking through requires reaching them on what they believe is important in a way that they, where they are. not where you are. where they are. go back to my ad where we thought everybody's going to see this is really, you know, the cat's me you singing -- meow six or seven senators, vietnam vets

talking about banning land mines. it just missed the point for some reason. the connection here, and this is where it becomes very hard, is finding out how do we communicate this given the audiences we have to communicate and the time frame, how do we package the right message, the right messenger and the right venue to those people in a way that they can hear it? that is difficult. that, and that is, that's why in part of the exercise here is not wasting history here. spending time understanding what has worked before, what messages have resonated. is the, are the circumstances that we're dealing with now that much different than they were before that they wouldn't resonate, or is there something that is working with this as doing your own research or looking at other research that has been done on this. survey research, focus group research, doing your own focus groups, doing your own survey research and trying to find a

way how do i talk about this issue that connects with folks where they're at? now, not everybody has the luxury of doing that, but that is one of the key, key pieces of making that connection in developing your strategic messaging. you may want to think about a theme that comes out of that value. i'll give you an example that i worked on was the innocent protection act. it was the first time that thise was any legislation successfully adopted that affected the death penalty since the death penalty was made constitutional, i think, in '74. not sure. our value that we spoke to in that was there are innocent people dying, potentially, in this. we built off what was going on in chicago where the governor was in a little bit of -- we're

going to take a few extra minutes here. was in a little bit of trouble, and he put a moratorium on death penalty, the death penalty in illinois. there was a lot of evidence that dna was finding people that were innocent in other kinds of cases, mainly rape, but rape and murder. and they were on death row. and being exonerated. so we came up with a value. instead of saying, you know, this is bad, this is wrong, we said we have a value that i think everybody shares given the audiences we twine which was not the -- define, which was not the universe, just the audiences we cared about. it said innocent people shouldn't die. that value gave us the ability to work with both democrats and republicans. eliminate, or liberals who wanted to eliminate the death penalty, and mainly republicans and conservatives who said we think the death penalty is still needed many this society, but we certainly want it to be working

properly and fairly and do not want to put to death anybody who's innocent. that value allowed us to break through and capture people's attention in a very compelling way. we then came up with a theme which is you want fairness in the system. so we're kind of getting a little more technical here. okay. we're finding the value about, you know, what resonates in people's heart was about, no, we're not about killing innocent people. and then having a system that's fair and functional was a kind of, taking it to an intellectual level that also resonated. and there were, at the time, a lot of examples of these people being exonerated and dna laboratories being a disaster and what have you, whatever. but up up -- one of the things e imagined in this conversation and, again, it was through research -- but people were

going to say, you know, i don't know. i mean, if you don't, if you don't have something here, you're going to have people getting off that, you know, shouldn't be getting off. i mean, we need a deterrent. so you would imagine even people who have some sympathy to the underlying value or the overarching value still would have some resistance. and so you came up with an argument that kind of anticipated that and spoke to it. and we said at that time there were 216 -- and that's usually a factual argument. 216 people that were given their freedom from death row because of once dna -- dna was just, it was about five or six years old. had demonstrated there were at least 260 people who were freed from death row, or off of death row. so you had a value argument, a

rational kind of direction, a vision that we all want fairness and a functional judicial system, and then you knew there was still going to be something that was going to pull them back a little bit, so you had to have your best factual argument, and that was our best one. and then we had the ask which was, in our case was to call your congressman and senator to get them to provide more monies for defense attorneys, access to dna access. and that was the -- the innocence protection act which was passed, i think, in 2004 -- took us four and a half years -- bipartisan, conservatives and republicans, very conservative republicans, very liberal democrats coming together on an issue. now, not all of them fall that neatly, but that's kind of what you need to do. you need to figure out what your issue is, where's the value next us. that allows you to speak to,

given your audiences, that can speak to them. what is the aspiration here? we want clean air. we want saved jobs. we want just a fair -- functioning justice system. you want to factually be compelling on any case. in clean air whether the job impact, it's not considerable in certain segments of our country. but be on the other hand you have compelling kind of clean air-associated arguments that you could make as well. in both cases you've got to have a kind of of ask that ties that altogether. that's the exercise. that's your value. that's what's at the core of your message. that's what you need to be asking and answering if -- for yourself. how you take that message and use it to your audiences and in your venues is the next stage of

that exercise. eventually, you want to be able to fill out a box that says me on me, me on the opposition. i get this mixed up i. excuse me. yeah. opposition on the opposition, and the opposition on you. okay? so you want to know what am i saying about my issue, what am i saying about the opposition, what is the opposition saying about itself, what is the op cig saying about you. -- opposition saying about you. you need to answer those questions. this here goes right in here. so you do this exercise first making sure you've found a

rational way to talk about your values, your aspirational change, a tactical -- i mean, a substantive explanation of why it's valid and what you want to ask. that is, fits in that place. but that's only step one because then you want to be able to say -- i'm sorry, that's -- i'm finish that goes over here. sorry. that fill bees in that box. and then the next stage of the strategy is what are we saying about the opposition? what are we anticipating the op o decision to be about us, and then what is the op o decision saying about you. that is the townation -- foundation of the strategy. francis cox will talk to you more specifically about some of the specific things that you could do as it relates to a campaign, but we needed to give you some sense of the foundation of this exercise. it's a serious one, t one of the most important as i've said at least nine times to do in

building an issue campaign. any questions? yes, sir. >> i have a question how, if you're working for a big company or you've had -- [inaudible] their own pr staff and stuff? does that make it difficult to convince them? i mean, they would probably do some of the work for you, but you have to convince them to do it this way, is there a lot of fighting over that? >> it's one of the biggest things in working with any organization who has decided to take on a campaign. the campaign is usually something that's a little bit outside of what the organization does every day. sometimes it's one and the same, but most hi it's not. usually, they have a book of business that they're trying to do or they're trying to provide a service, but there's some reason why somebody in the leadership has said, we need to do this. this is a big deal. and that leadership could decide to use the people inside to create this and all the other tools, or they bring in somebody

else to help them. and integrating that is challenging. some -- i've worked for companies over the years that cannot get the culture of their company to get into that campaign mindset i talked about on monday. so they say, here, let's do the company outside the corporation. the vp for whatever is involved with you or your team in doing that. you can have access to our smart people be, our communication people, but you run the campaign. so it's anywhere from a constant fight, total in-house to total outsourcing. it's not a new challenge. people have done it before, find kind of building a little outside coalition is a quick and easy way to get off the ground, and then when it's over, you can kind of disassemble and move on.

any other questions? well, thank you very much. see you tomorrow. [applause] [inaudible conversations] [inaudible conversations] >> the senate is often called

the most exclusive club in the world, but i wonder but if it's so exclusive. if someone from a town of 300 people, and a high school senior class of nine students, can travel from a desk in that small school to a desk on the floor of the united states senate. >> search for farewell speeches and hear from retiring senators on the c-span video library with every c-span program since 1987, more than 160,000 hours, all in line, all free. it's washington, your way. >> ahead of the centers for medicare and medicaid services recently testified about implementation of the new health care law at a hearing of the senate finance committee. he discussed the government study on hospitalized medicare beneficiaries. this is an hour 20 minutes. >> a hearing will come to order.

montesquieu said -- [laughter] >> all people are born equal. but they cannot continue in this equality. they recovered only by the protection of the law. when it comes to health care, the affordable care act affordable care act give seniors, patients and health care consumers historic protections under the law. the new law protects seniors by helping to ensure that they get the right care when they need it. the old system before health care reform was failing to many seniors. take christine brown. christine's father had a blister on his toe. that blister became infected and would not heal. christine and her father tried everything. every doctor they went to prescribe a different antibiotic.

no one coordinated his care. there was no electronic record of his medications. after several months without anyone managing his care, it was too late. the infection had spread. the only way to save his life was to indicate the leg. christine's father is now confined to wheelchair for the rest of his life all because of a blister. all because no one could coordinate his care. the new law protects patients like christine's dad. a new law helps doctors coordinate and tee mccabe with each other. the old system before health care reform was failing too many seniors who get hospitalized. yesterday the hhs inspector general released a report and found nearly a quarter of seniors hospitalized suffer some form of adverse event from the hospital. and almost half of those are preventable. the new law helps protect

patients from preventable adverse events. under the new law medicare, medicaid will crack down on hospitals. before reform know that a fifth of seniors who were hospitalized went back to the hospital and were readmitted. when patients leave the hospital they clearly don't want to come back. they should receive a follow-up care they need to stay well and stay out of the hospital. the new law protects patients from needless readmissions. medicare will protect seniors by penalizing hospitals who don't treat patients right the first time. the old system for health care reform has been failing health insurance consumers. far too frequently, insurance companies would drop coverage when patients get sick. the new law protects the patients from this and other insurance company abuses. far too frequently, insurance company executives reduced

premium dollars for lavish ceo bonuses instead of patient care. a new law requires health insurance companies to spend at least 80% of the premiums they collect on providing health care. the new law puts a limit on funds for administrative costs, salaries and ceo bonuses. the old system before health care reform was failing the medicare trust fund. before health care reform, medicaid would have been bankrupt by the year 2017. medicare would have gone broke in six years. the new law protects medicare from going broke. the new law extends the life of medicare by an additional 12 years. in the old system before health care reform, health care costs were out of control. in the last eight years, the average wages have increased

just 20%. but the average cost of employer-sponsored health coverage has doubled. family health insurance premiums have tripled. the new law will protect the american family against these increasing costs. the new law transfers medicare payments for paying from quantity for paying for the high quality care that seniors deserve. why does paying for quality mean? paying for quality means protecting seniors from duplicative test. it means protecting seniors from unnecessary procedures that wasted time and money. it means empowering doctors with electronic medical records to put patients information at their fingertips. paying for quality means providing doctors with the latest evidence. that way doctors and patients can make the best informed decisions. paying for quality means

investing in primary care so that seniors have an advocate to help them advocate the health care system. what does paying for quality not mean? paying for quality does not mean cutting benefits that seniors are guaranteed. paying for quality does not mean a one size fits all washington solution. medicare and medicaid must seize upon the innovations that work at the local level. and paying for quality does not mean interfering with the doctor-patient relationship. the doctor-patient relationship is sacred. the old system before health care reform was failing to crack down on fraud and abuse. the new law protects the taxpayer by giving law enforcement officials new tools to combat fraud. the new law puts an end to wasteful over payments to private insurance companies that participate in medicare.

these overpayments to medicare advantage plans used to cost the program tens of billions of dollars every year. under the new law, seniors in medicare are protected. seniors can feel confident that medicare dollars will benefit patients, not line the pockets of insurance companies. the new law flashes wasteful payments, and it does so without taking away a single guaranteed benefit under medicare i want to say that again. this is important. health reform protects the medicare program. without taking away a single guaranteed. in fact, the new law adds benefits. like like time -- lifetime free annual checkups, and closing the donut hole. the old system before health

care reform was failing seniors and patients and health care consumers. the new law gives them historic protections. repeating the new law would return us to the failure of the old system. repeating the new law would cause medicare to go broke in just six years. repealing the new law would increase the deficit by hundreds of billions of dollars. repealing the new law would put insurance company. rats back in charge of health care. and repealing the new law would threaten seniors help with duplicative care and poor coordination. today, we hear from the point man on the new law. we hear from administrative the centers of medicare and medicaid services, doctor donald berwick. under the new law, cms is

charged with strengthening medicare and medicaid. and he's in charge of making medicare and medicaid more efficient and modernizing them for the 21st century. dr. berwick, the afford a will to act provides the protection of the law. look forward to hearing you carrying it out. senator grassley. >> thank you, mr. chairman. i in the members of this committee take the importance of this committee and our constitutional role as the united states senate very seriously. you, dr. berwick, were nominated by president obama to serve as cms administrator on april the 19th. you and i personally met in my office to discuss, and we did this in june, to discuss your nomination. and despite repeated requests from me and my colleagues, we were never able to get a nomination hearing. instead, your appointed under recess powers july 7.

dr. berwick, i believe that that was incredibly unfortunate for you and for the position that you now hold. i think you should have the opportunity to come before this committee and explain and defend yourself and make the case in person that you're the right person to be the cms administrator. you were nominated 13 days ago and appointed 130 days ago, yet this is our first chance to get you before this committee to testify and answer questions. the phrase better now that never comes to mind. today the centers for medicare and medicaid services has over 4400 employees, not including thousands of outside contractors and an annual budget '04 $700 billion. that's a bigger budget and even the pentagon. through the medicare, medicaid and chip programs, the center for medicare, medicaid services

provides health care coverage to about one in every three americans, almost 100 million people. that's a lot of people, but that number is set to grow even more. the partisan health care overhaul will add about 16 million to medicaid, with a price tag for the federal government of about 434 billion. this expansion will begin under your watch. in addition to this massive coverage expansion, you have been given unprecedented authority to implement new payment and delivery models. your decisions in this area will influence a significant amount of economic activity, and determine how the new health care law affects health care coverage that millions of americans rely on. we need to discuss your thoughts on the pending $500 billion of medicare cuts, and a massive medicaid expansion that you are

charged with implementing. the office of the actuary and providers across the country have expressed serious concerns that the deep medicare cuts will hurt access to care and may hinder quality improvements. and both republican and democratic governors i worried that medicaid expansion will bankrupt state budgets. while some supporters of health care law may label these claims as partisan scare tactics or misinformation, we take these claims very seriously. with all that, with all that is changing in the health care system and the sheer number of people that rely upon your agency for care, you have one of the most important jobs in government today. that is what it is so disappointing that you are recess appointed without a hearing. it contradicts promises made by candidate obama about having the most open and transparent

administration in history. as i'm sure you know, i take oversight government transparency very seriously. i hope you share my enthusiasm. i hope you will show that, and even greater commitment to transparency and collaboration than any of your predecessors. but based upon the number of letters that have still been outstanding, i'm concerned about the depth of that commitment. the american people deserve nothing less. i think you and i look forward to hearing your testimony. >> thank you, senator. i will introduce our witness. dr. donald berwick, administered for social medicaid and medicaid services. dr. berwick, thank you very much for coming. it's good that you are here because senators have many questions. and i know you'll answer them very forthrightly. as is her usual practice, your written statement will be automatically included in the record. i encourage you to speak, often

we give witnesses about five minutes but if you want to take more than five minutes, you go right ahead. dr. berwick. >> thank you very much, mr. chairman, mr. leader, members of the committee. thanks a lot for the chance to meet with you this morning. i feel very privileged to be here. my full testimony as the chairman said is submitted for the record. i'm a physician. i am the son of a general practitioner who practice for over 40 years in rural connecticut, and from my father i learned the image of health care i still cherish. responsive, embedded in a community and connected to it, and focused on the needs of patients and families. my father made house calls. he knew everybody's name in town. he did it all. he delivered babies. he took care of people through their whole lives. he round at the local hospital every single day before his

afternoon and sometimes evening office hours. he took his own x-rays and he read them. in my own professional career, which is 40 years long so far, i also practiced as a doctor. i'm a pediatrician, but i practice in a very different kind of health care world than my father started in. more in the dependent, full of new and wonderful technologies, and much, much more complicated. when everything goes well, that modern health care world can work miracles. compared to what my father could do. my father watched children died of leukemia that was always fatal. most children of leukemia today are cured and they live. he had little to offer people who had heart attacks, except oxygen or bedrest, and hoping. today, new treatments have cut

heart attack death rates to less than half of what they were 30 years ago. but with the miracles of modern health care have also come to major new challenges, complex drugs and powerful treatments bring hazards with them, like medical errors and complications of treatment. from science we know often the best way to treat diseases like diabetes or congestive heart failure, but then that poses us with a question, how can we make sure that that treatment, the best treatment, is within the reach of every single american. we also need to address rising cost of health care, costs that is stretching didn't nations public and private capacities is a barrier to getting the right care to people and providing it. these aren't abstract problems. they affect real people. on my very first day in this new

job, i was passing through a medical -- passing through a metal detector and i saw a rather intimidating looking security guard on the other side of the metal detector staring at me. and he beckoned me to come over to him when i went to the detector. and he said can i talk to your? i said, sure, you can talk to me. you have a gun. [laughter] he said you are donald berwick, aren't you? and i was total. i said why do you want to know what he said my name is john mccormick. my daughter was tailor mccormick. and she died when she was 17 months old because of a medical error. i am devoting myself to making sure that doesn't happen to other children, he said, and i want to do anything i can possibly do to help you in your new job. i don't know the particular air that caused little taylor

mccormick her life. i do know she was not alone. as the chairman said yesterday the department of health and human services inspector general released a report showing again that for too many medicare patients suffer or even as a result of medical errors. for me eliminating that harm is a top priority. what i also know is that all over this nation, there are hospitals and clinics and offices that are making thrilling progress toward better, safer care. i've worked with these places for 20 years. there are hospitals that have reduced their inspection -- infection rates to zero, that have reduced ways, that have become truly excitingly patient-centered. this has to do with cost also. what's true in every other modern industry is true in health care, too. poor quality costs more than good quality does. doing things right cost less than doing things wrong. hospitals and clinics all of the

country are discovering that and proving that. denver health, for example, has reduce their costs by nearly $50 million simply by finding and removing waste, waste like, asking nurses to fill out forms for, useless forms for hours instead of using their time for what they want to do, which is take care of patients. care leads to lower cost, improvement of care. what i meant to say also is that improvement of care isn't just possible. it is actual. it happens everyday in this country. but that raises the question again. how can it happen everywhere? how can we as a nation take full advantage of everything we already know? the biggest waste of all comes when we failed to meet the needs of patients and families who needed the most most, the chronically ill. u..

>> through improvement, through better care delivery. and i know that all of that is within our reach. in the pursuit of that, the affordable care act is a landmark. it's the best opportunity, i think, we've had. we've already started. in the nine months since the affordable care act went into effect, millions of people have already seen benefit from it. close to two million medicare beneficiaries who have fallen into the doughnut hole have received checks to help them with their prescription drug costs. next year the beneficiaries in the doughnut hole are going to see a 50% discount on brand name

drugs. it makes it easier to get mammograms and colon not cobies, and that won't just reduce cost, that'll keep them healthy. we've turned up efforts to target criminals who are stealing from medicare and violating the public trust. we're putting more boots on the ground, we're using better technology to detect them. we're empowering seniors to help us and report fraud when they see it. through enforcement we're getting millions and millions of dollars back into the trust fund. we have much better ways, new ways to measure and report on health care's performing so that beneficiaries can be better informed, so that care providers can learn from each other and so we can reward the system for improving. we have a marvelous new center for medicare and medicaid innovation which we established yesterday to help accelerate that learning and that invention. the new law strengthens our ability to measure quality and to use good market forces on

behalf of beneficiaries to find them the best possible deals on health plans and supplies and medicines. and as a result of that, for example, i'm happy to report the medicare advantage premiums on average went down next year. and when we raise the quality of care for medicare beneficiaries, we raise the quality of care for all americans. every single day that i come into the cms office now i'm thinking about the people we serve, those 900 million people -- 900 million -- 100 million people. my brother, bob, gave me a sign for my desk when i left for washington, and the sign says, how will i help the patient? that's the first thing you see when you visit me, and it's the first thing on my mind. this is crucially important, though. we, cms, hhs, government, we cannot possibly do this ea loan. we can help and we will help, but the best roads to better

care, lower costs through improvement, the best roads are locally built state by state, community by community. this also has to be done in very strong public/private partnership. going it alone is not a good plan for cms. i've been meeting with stakeholder groups of all sorts. they know that change is needed, and can they all asked me the same question. they all say, it's remarkable, how can we help? i think that's really good news because it's the only way we can get this done, together. ever since i became a doctor, i've been trying to help make health care better, safer, more reliable, more patient-centered, more equitable. what i know is all of that is possible, that improvement is possible, vast improvement is possible. and i believe there's no better position in our nation from which to help pursue those goals than the one i am now privileged to occupy, and there isn't any better time than now when the affordable care act has laid an unprecedented foundation for better patient care. america needs three things from its health care now; better

care, no more stories like taylor mccormick's, better health so people can lead full and happy lives even with chronic illness, and lower costs through improvement of everything we do for patients and families. that's the root of quality without harming a hair on anyone's head. i know that's possible, i've seen it, and i'm grateful for the privilege of working as your administrator to make cms a trustworthy partner and a constructive force for the improvement of health care for all americans. thank you very much for the privilege of being here, and i'll be happy to answer any questions. >> thank you, dr. berwick. what are your priorities? you can't do it all at once. cut costs in hospitals where there's delivery system reform? extending the life of medicare trust fund? there are lots of different areas within which you can work. do you have a first, second, third or fourth list? >> well, my overall top priorities are to insure the longevity and viability of this system, but it's to protect the

beneficiary. 100 million people who depend on us to do as well as we possibly can for them. articulated four priorities at this stage, being a much more effective agency, working better with other agencies and government and the private sector, reducing waste within our own work, improving care of individuals especially around patient safety centers such as you outlined in your opening remarks. moving swiftly toward better integrated, coordinated care, helping settings all over this country reach out for better ways to take care especially of chronically ill people, and then getting really serious about prevention upstream. a lot of the illnesses that erode our well being and erode the treasury are avoidable, and if we get very serious about working on prevention, problems like obesity and bad perry natal outcomes and avoidable heart disease, we can make a lot of progress. i'm pushing hard in cms for forward progress in this all of those lawyers. -- areas.

>> there's a lot of talk about the cost of chronic care. could you give us a sense of how chronic care could be better addressed? >> if you could imagine a medicare beneficiary, mrs. jones, who has -- i heard from one. i was visiting regional offices, and i visited a senior center in atlanta, and there was a woman there who i said what do you worry about? she said, well, what i worry about is i have five medicines, i see six doctors, i go to four different facilities. i'm not sure these people are talking to each other. i need them to get together. she's saying what seamless, coordinated care. if we drop the ball, things get worse. if one doctor prescribes a medicine for mrs. wilson that conflicts with a medicine that another doctor prescribed, she could end up bleeding, she could end up in the hospital and not at home where she wants to be. better care for chronically ill people means coordinated care.

>> right. we've all heard that. so how do we get there? how do we get better coordinated care? >> you need to envision it and reward it. right now we pay for health care in fragments. the new affordable care act offers us a tremendous rake of possibilities -- range of possibilities for making it possible for clinicians to give the kind of care they want. medical health homes in medicaid and bundled payment. these are ways to support the system to come together to do the kind of work that the chronically ill need them to do. >> could you tell us more about those organizations and how far along they are and what you envision them doing in what parts of the country. >> it's an exciting part of the new law, the chance to encourage that kind of coordinated care. an accountable care organization would be able to take responsibility for the care of a group of patients with a primary care base and then to coordinate services and to get rewarded for that so that there are bonus payments when things go well in the accountable care world.

and that operates on the fee-for-service side of medicare. we're not talking about managed care, this is in the natural state. we're going to be, we're writing the notice of proposed rulemaking now that'll be out at the end of the year or so. very important in that concept, though, is the one size doesn't fit all theory. what accountable care is going to look like in a rural part of montana or in inner city manhattan, they're going to be different. and we immediate to energize exploration toward that. that's one of the reasons the new center for medicare/medicaid innovation is so important. that'll allow us additional possibilities to encourage local settings to devise the kind of accountable care that really will work for them. >> i think my time's up. i think my clock was started too late. senator grassley. >> dr. berwick, it's not your fault or anybody's fault on what the schedule of the senate is, but there's at least 70 minutes of questioning here, and we have votes starting at 13, so i --

11, so i was wondering if you'd commit to appearing again before the committee after the thanksgiving break so we'd all have a chance to ask questions we want to ask. >> i think, senator, that's really a prerogative of the chair to call hearings or not. it's interesting for you to get a commitment, but i can't guarantee when we'll have another hearing. although it is my intention to have a good number of hearings because it's very important for this committee to hear from this administrator about his plans. >> okay. i'll o -- go on on to the next point. you led a group called ihi, has numerous health care companies as both clients and donors which give rise to potential conflicts of interest in your new position. to help shed some light on these potential conflicts during your initial confirmation process, my staff asked you to provide ihi

three most recent forms 990 including schedule b which details donors and donation amounts. you agreed to comply with this request. indeed, you even agreed to have my staff meet with your ihi chief financial officer to insure the financial information provided was accurate and complete. it's now november, and the information still hasn't been provided. no chief financial officer's come to meet with my staff. though your installment subverted the senate's constitutional prerogative of advise and consent, it did not subvert its observation of oversight. so i restated my request in the an effort to insure that there's transparency for your potential conflicts of interest and accountability at cms. so the question is, dr. berwick, you stated in an earlier letter that you planned die vesting any

interests in companies you may oversee and have interaction with cms. is this divestiture complete, and if so, will you provide the committee with records documenting the divestiture? >> thank you, senator. i recall that conversation, and when you asked for that information, i intended to try to provide it. as it happened, it was not in this my sole authority to provide that information. and now, of course, i'm recused from contact with ihi, so i cannot provide it on my own, on my own initiative. what i can assure you is that all of my past activities, my finances were thoroughly reviewed by the appropriate ethics officers under congressional rules before i took office. i was given a ethics agreement to review and sign, i signed and agreed to every single condition of this agreement, i've complied with every single one. i'm fully in compliance now with the conditions of that agreement which were supplied to the

committee. >> are were the, the waivers were not supplied to committee. could we have copies of the waivers? >> i have requested no waivers, senator. i'm recused from contact, but because there are a couple of organizations from which i'm recused that i think have important potential information for cms, i requested and received the right to request a waiver when and if needed. i've not done so yet. >> okay. then let me be specific. you also stated in an earlier letter that you were seeking ethics waivers due to your connection with kaiser per menty and the commonwealth fund. did you obtain these or any other waivers? and then that's what i'd like to have provided for the committee. >> i understand senator, yes. those two organizations i asked permission to seek a waiver when necessary for the conduct of my particular duties as cms administrator. i have not yet requested those waivers because that issue has not arisen. >> dr. berwick, health reform

was supposed to improve medicare program, but these findings that -- i'm not going to take time to give them now, but i've made reference to them, particularly what the actuary said -- indicate that some medicaid cuts in the new health care law will move the program in an opposite direction by jeopardizing access for beneficiaries. dr. berwick, would you agree with rick foster when he made those comments about the health care bill potentially jeopardizing health care for beneficiaries? whether these cuts will jeopardize access to medicare part a providers? >> are you saying medicare, not medicaid? >> i'm sorry, if i said mid caid, this is all medicare. >> yes. the actuary's estimates are just that, they're estimates. they're based on his best judgment. what we can look, now, as facts as they're developing, our intense is to increase -- intention is to increase access.

we're strengthening part a, part b and c and d, and i think those will be more and more attractive to beneficiaries. i think they'll find themselves in better shape after implementation is fully engaged. >> thanks, senator. i'd like, for your information, senators, to indicate the order. next is senator rockefeller, then senator hatch, senator bingaman, senator bunning. those are the next four. >> thank you, mr. chairman. dr. berwick, i'd like to ask three quick questions in a row. >> well, just punch him, and then i can make this request real quick. >> senator roberts just wants to be recognized. he's not going to make a statement. >> i revise my comments. i certainly don't want you to punch senator rockefeller, i did enough of that in the intelligence committee. i'm suffering from cms-induced paranoia, so i'm going to have to leave. i hope you can treat that as we go further. did the chairman indicate to the ranking member that we will have

an opportunity, we'll try to have an opportunity to talk to dr. berwick after -- >> i didn't. we should sometime, i did not say when. >> sometime. >> and in good faith, that'd be reasonable -- >> well, i think the obvious statement by the senator from iowa and ranking member is that five minutes, obviously, i can't do this because i have other obligations, i have to leave, and i apologize for that. but i would hope we would have an opportunity to do that. i'd like, then, to ask unanimous consent to submit questions for the record. >> senator rockefeller. >> can the time be put back concern. >> absolutely. >> dr. berwick, the federal government is paying for the vast majority of health care reform. it averages about 95 percent on a nationwide basis, actually up

to 100% in four or five states between 2014 and 2019. so first question, if states reject this funding and do not expand their medicaid programs, where else could these vulnerable citizens get coverage? that's question number one. question number two, is an interesting one, i think. i want to ask you about the practical impact of medicare. when people are uninsured for 10-15 years before they sign up for the medicare program, as a physician can you tell us what would happen to your efforts to improve quality and lower the cost of care if we do not move forward with covering 32 million uninsured americans under health reform, and you see the link there. the third question is, could you explain how this law gives states flexibility? everybody says it's government-run. in fact, it's state-run.

it's exchanges, etc. could you explain how this law gives states flexibility in reforming health care delivery? you referred to that in your statement. could you talk about how it gives health care providers the ability to innovate and improve health care for patients? those are the three questions. >> thank you for them, senator. with respect to the first, the choices states make about their participation in medicaid, my job is to make the medicaid program ever stronger and more attractive and viable for states. i understand that states are dealing with a lot of very serious financial issues right now, and they're very much on my mind. as you pointed out, the new law gives us the chance to help states with this transition to broader coverage for people who really need it. the same things that are making the states suffer under the recession are hurting people of marginal income, and they will find themselves with no insurance and nowhere to go without the benefit of this new law in place. we're doing 100% federal match for the newly-eligible medicaid

beneficiaries, and as you say over a multiyear period of that it goes down to only 90% and stays there. we're reaching out to states with a 90/10 match, that's 90 cents out of every dollar the states are going to spend to smooth their enrollment procedures. we're reaching out to states with that. we're helping them with waiver authority, and we're strengthening medicaid every day. it's a much stronger program than it's ever been before. with respect to the practical impact on medicare, failing to insure people in the pre-medicare era, you're absolutely right. i mean, someone doesn't get chronic congestive heart failure on the day they become a beneficiary. their diabetes doesn't suddenly occur at age 65 or 66. it's been there all along. and when people with these underlying risks or chronic illness can't get access to health care, their kidneys get damaged, their hearts get damaged, they lose their way. and then medicare ends up as, you're right, holding the bag for that. but, you know, the states are

paying for that anyway with the uninsured prior to that. that person who has undetected hypertension or diabetes that's hurting their kidney will get worse, and eventually that care will be given, and in most states it means the state will pick up the tab a different way. the best way to provide care is anticipate the needs of patients at all stages of life, not just the medicare group. you're absolutely right about that. it always is reflected in the care of the chronically ill. 9% of americans, nine million americans in the dual-eligible population, nine million people, they account for 40% of the costs in medicaid, and that's one of the reasons the states are having these terrible problems. the best thing to do for them is to help them heal, get them better care, and that will reduce the burdens on states. flexibility is essential to the future. we don't have a one size fits all solution here. state by state there'll be innovations that'll surface. we can support that through waivers, through the

commonnation projects and in pre-existing legislation. now we have these new, wonderful assets in the law, the center for medicare and be medicaid innovation and the center for dual-eligibles which will soon be established, and that will be able to support states with inventive, locally-designed ways to get better care to people who really need it. just yesterday when we set up the center for dual eligibles, we announced a possibility for up to 15 states to get grants now of up to $1 million just to plan better care for dual eligibles in those states. >> physicians, others would have initiative -- >> [inaudible] around this country is extraordinary. in my work prior to coming here, i had the chance to work with thousands of clinicians around the country, and i can see the inventive energies out there. i've met with physician groups since i've arrived, and they are raring to go to help physicians discover new ways to better

coordinate care, get involved in patient safety. we can support them also through the new center for medicare and medicaid innovation, and we can now make them more and more aware of what's possible. the new law has in it capacities for more transparency so that we can see where high performance lies in this country among hospitals, among physicians. for hospitals, we can tie that to payment as well. that kind of transparency builds knowledge, and that will help physicians as well. >> senator hatch. >> thank you, dr. berwick. happy to have you here. let me just make a brief observation before i ask a question or go two. today is simply the first of many opportunities for us to have an open and honest dialogue on the impact of the new health care law. now, the centers for medicare and medicaid services, cms, that's in charge of the largest federal health care programs, medicare, medicaid and, of course, the children's health insurance program. this agency has a larger budget than the pentagon, and its

actions directly impact the lives of almost, well, little more, perhaps, than 100 million americans. we've seen that the realities fail to match the rhetoric on everything from the promised cost reductions to americans, keeping the coverage of their choice, etc. i fear that this is only the beginning of these impacts and that it's essential that we fully understand the consequences of this new law. on november 2nd the american people issued a clarion call for more transparency and response iness out of -- responsiveness out of washington. it is our responsibility to listen and respond to their concerns. obviously, asking us to cover all of our concerns in this hourlong hearing with only five minutes per side, per person is like asking us to drain the pacific ocean with a thimble. now, this cannot simply be a check the box exercise. and although this hearing has been a long time coming, almost eight months since the passage of the health law, i'm glad you're finally here.

i plan to make sure that my constituents and the american people are fully informed of all the important actions being undertaken at cms, and i sincerely hope that you and your staff will be willing and responsive partners in this exercise. keep in mind, usually the president makes a nomination, the nominee comes up and talks to members of this committee, we have a hearing, then we have a mark-up. for this $800 billion agency, the president just recessed appointed you without any of that. now, i think many constituents are outraged. and i have a high respect for you as a doctor. now, dr. berwick, as i was reading through your testimony, i came across a claim on page 3 that the new health care will actually increase medicare part a trust fund solvency by 12 years to 2029. i've also found this claim to be very puzzling. as you may already know, i sent a letter to the medicare trustees on june 24th of this

year along with senator gregg on the issue of double counting medicare savings in the new law. the health care law contains more than $500 billion in cuts to the medicare program which were claimed by the administration not only to improve medicare solvency, but also to fund new entitlement spending, new entitlement spending at the same time. this is like claiming that the american families can use the same magical dollars to pay their mortgage and their grocery bills at the same time. and it's really nonsensical. now, don't just take my word for it. here's what the nonpartisan congressional budget office said on december 23,2009. the key point is that savings to the hospital insurance trust fund under the health law would be received by the government only once, so they cannot be set aside to pay for future medicare spending. and at the same time pay for current spending on other parts of the legislation or on other programs. in fact, your own actuary at cms

also agreed with this view point and on april 22, 2010, when he said the following: in practice the improved hi financing cannot be simultaneously used to enhance other federal outlays such as coverage expansions under ppaca and to extend the trust fund despite the appearance of this result from the respective accounting conventions. so my question is a pretty simple one. do you agree with your own actuary who i strongly believe is rightly telling us that you cannot use the same magical dollar to extend the solvency of the medicare part a trust fund while also using it to pay for new federal spending. isn't this budgetary gimmickry? >> no, senator. in estimating the effects on the trust fund, we're following, the actuary was following standard accounting principles. it's been done correctly. it's not double counting, as i understand it. the congressional budget --

>> well, to them it is. >> my understanding is we're following standard accounting principles, and that money will go into helping extend the life of the trust fund. the congressional budget office has also estimated, i think, $140 billion of savings over the first ten years of this new law below business as usual and a trillion dollars for the decade following that. and can we're seeing the results now in a lot of the implementation of the new law. we can see some of the savings now beginning to accrue. prior to the law, you know, we engaged a trial, a competitive bidding for durable medical equipment. we saw costs of dme fall 33% just in that trial, returning something like $150 million, i think, back to beneficiaries in those nine trial areas. we are strengthening medicare advantage resulting in lower costs there by working very hard with those plans -- >> by cutting a lot of people

out of medicare advantage. you're not strengthening medicare advantage, you've cut a lot of people out of medicare advantage. >> there's normal turnover -- >> especially 234 rural america. >> there's normal turnover, senator -- >> that's not normal. >> the 99, more than 99% of medicare beneficiaries have access to medicare advantage plans under the new arrangements. >> a lot more expense. let me just, let me just -- my time is up. let me just say this. i've got a lot of questions for you that this hearing isn't going to allow us time to -- normally, you can count on me supporting all administration officials if i can. i think the president ought to have the people he wants around him. now, i hope when we send you questions in writing that this administration will permit you to answer our questions. because this is a doggone important committee. we have overview 60% of the spending in this country. and i want to know what's going on, and i want to know what -- i

want answers to my questions. so i just hope that you'll answer our questions when we write them, send them in writing to you and take the courtesy to show them to you. because we clearly don't have time in this hearing, and can we certainly haven't had time since you were recess appointmented -- appointed. and i have no doubt you'll be able to answer some of them. thank you, mr. chairman. >> i just reinforce what you said, senator, and i do expect cms and those at the white house, what not, to allow full response to questions because it's far better -- one of your first words, you'll do it right the first time. so do it right the first time and answer fully the first time. >> mr. chairman? >> other senators will have to speak, i appreciate it. i'm trying to help you out. >> i agree with that, but let me just say that this is pathetic. i'm not meaning to be critical because we are in a recess period, and --

>> we'll have -- >> by gosh, we ought to have time to ask the most important man in america on health care -- >> we'll have some time. >> -- questions that are relevant and important. >> we'll have sufficient hearings. next on the list, senator bingaman. >> thank you, mr. chairman. dr. berwick, thanks for being here and thanks for your willingness to serve in this very important position. i'd like to go back to this office of inspector general report that you referred to on medical errors. i think the euphemism that the report uses is adverse events in hospitals. and i guess what i'm interested in hearing from you if you could tell me is your reaction to some of the recommendations. one of the recommendations in the report is that cms should provide further incentives to hospitals to reduce the incidents of adverse events through its payment and oversight functions.

and then another, further down it says cms should look for opportunities to hold hospitals accountable for adoption of evidence-based practice guidelines. this is something you've spent the last several decades working on. i'd be interested in your views as to what opportunities you think you have under this new law to make progress on this. >> thank you, senator bingaman. yes, you're correct, patient safety has been an object of my ongoing professional concern and work for well over two decades. unfortunately, inspector general's report was not a surprise. we know that patients are injured in american health care far too often. the good news is we know those injuries are preventable. we can find hospitals and clinics all over this country that are reducing injury rates to extremely low levels, and they're all types of places. little tiny hospitals, there's, i got a communication from a hospital in upstate new york in ogdensberg, i think.

it had almost eliminated infections that i thought were inevitable. a hospital near here was gone almost five years, i believe, without a central line infection. so we can make substantial progress, but we have to make it more possible for hospitals to do that, including making it more in their interests. there's a lot of focus in the act on health care-acquired conditions and hospital-acquired infections, that's other names for adverse events. we now can make them more transparent, more public, measure them better, post those measurements on hospital comparisons so beneficiaries know about that, and tie payment to hospitals to their ability to reduce those, those avoidable forms of harm and injury. i'll tell you, i've reached out to the hospital community and talked with the hospital leadership, the hospital associations a number of times since i've arrived. they're enthusiastic about this. there isn't resistance. everyone knows we need to promise every single american the safest possible health care that anyone can find anywhere.

>> let me, also, ask about a related issue, and that is the measurement of outcomes. we made provision in this law for trying to accelerate the adoption of outcome measures for the health care industry, and i believe the way we've got it, the way the law reads the first set of acute and chronic measures are required to be released by cms within 24 months of enactment. the first set of primary care and preventive care measures are due within 36 months. i'd be interested in any views you have about the importance of these outcome measures and what you anticipate being able to do in that regard. >> i'm aair what of your -- aware of your leadership on this issue and excited about the act. in any exchange what needs to be

measured and defined and paid for is what you really want. in health care we don't really want fragments. we don't want pieces of care, we want what the health care achievement ands which is good health, long life, comfort, relief of anxiety. those are outcomes. that's about what happens to the patient. maturing our measurement systems and linking that to payments when we move purchasing what we really want will be better for beneficiaries and all of america. that involves investment in the development and use of those outcome measures. we're well underway. a lot of the work on pressuring, the -- purchasing, the medicare advantage star rating system is having more and more outcome, one of which, by the way, is what the patient reports about their own experience. this involves public/private partnership because the more we can align those measures with what's happening on the private side in private plans and private delivery systems, it

will rationalize and make more sensible to physicians and hospitals what we really expect of them. it involves work with the national quality forum and other consensus-based entities, and i've been meeting with all of these stakeholders since i've araved. -- i arrived. >> thank you, mr. chairman. >> thank you, senator. senator bunning. >> yes. i'd like to point out that the opening statements took almost 30 minutes. although senator baucus won't make a commitment to bring you back before the end of the year, i can assure you that you will not get special treatment next year. i suspect that the you will be spending a lot of time testifying before the house of representatives partly pause we in the senate -- because we in the senate have been shut out. why did you decide to accept a recess appointment by president obama in july? you certainly had a choice to say no and that you wanted the

nomination process to work. i have heard that people argue that the nomination had stalled. however, that is clearly untrue. you weren't nominated until april, a mere four months before your recess appointment, and the finance committee which is run by a democratic chairman didn't even hold a hearing on your nomination as of this today. as of this day. and senator hatch brought out some things about some early statements about 12 years in 29 and how the bill has helped the medicare, but it also failed to mention that the biggest problem medicare faces, the dramatic cuts to the physician payment rate wasn't addressed in the health care bill and still isn't fixed. on december 1st doctors start getting a 23% cut when they see medicare patients, the cost of

fixing this formula is probably somewhere around $300 billion which will require more cuts to medicare are adding to the deficit for future generations. according to the ama press lease, about one in five physicians overall or nearly one-third of primary care physicians are restricting the number of medicare patients in their practice because of low reimbursement rates and the threat of future cuts. so as i see it, democrats were able to extend the solvency of medicare by 18 years but didn't bother to fix one of the most expensive problems medicare faces each year which will require more cuts in the future and make it harder for seniors, seniors to find doctors to treat them. to me, this is not success. >> thank you, senator bunning.

you asked a number of questions. let me begin with sgr, with the physician payment. the president has stood firmly behind a call for receiving a permanent fix. i completely degree with that. i believe the ama has requested a 3-month -- 13-month extension to give us time to work that out. >> we have not had a bill before us. >> it is not acceptable for physicians and beneficiaries to be facing a 23% cut on this. it just isn't a good idea. with respect to the recess appointment, the reason i accepted it, sir, is that the president asked me, and i want to serve this country. it's an immense privilege to be able to do this work. it was not my choice to be recess appointed or not. when asked, i came because it's my duty to do that. >> but didn't you know your recess appointment was very, very controversial? >> what i know is that the president of the united states asked me to serve, to help my country get the better health care system we all want and

field. that's what my career's been devoted to, and as long as congress chooses to have me do this service, i feel just very privileged to do it. that's all i can say about that. with respect to communication as you and senator hatch said, i want to have dialogue with you and all the members of congress. i tried before my appointment to visit with each of you and any that wished to see me i saw and spoke with. since then any requests at an individual level to meet with any member of congress that's come my way i've said yes to and done it, and i look forward to ongoing exchange with this committee and all members of congress. it's my job to do that. >> waited to ask -- i wanted to ask one more question before my time runs out. i was struck by the conclusion where you promised that you and others at cms will continue to be as open and as transparent as possible. you have to realize that many people may be a little skeptical of this comment. particularly considering the administration that you work for. for starters, your recess

appointment was an end run around congress which, clearly, wasn't an open and transparent process. the health care reform debate was far from open and transparent. republicans got locked out of any negotiations, and democrats ended up having to jam a reconciliation bill through congress to get the final bill passed. in fact, i couldn't even get the all members of this committee to support an amendment i proposed that said we needed to have final and complete cbo scores, just the scores, along with the legislation, legislative language before the committee passed the health care reform pill. bill. so open and transparent we haven't been. >> i look forward to any forms of dialogue that i can engage in

with you, senator -- >> i will guarantee you this, you will get open and transparent, and it'll be on the other side of the house. they will see to it that you are open and transparent because they are going to oversee cms very closely. thank you very much. >> thank you, senator. i might just, also, say that we're working with your side of the aisle to make sure that doctors do not get suspended cuts in medicare. we're working on that right now and hope to get that enacted this year so doctors don't face that. we'll find a way. >> [inaudible] >> i know, i know, i know. senator white. >> thank you, mr. chairman. dr. berwick, you cannot find a more important issue in health care than end-of-life care. and the approach that i've supported is the opposite of rationing. for example, right now

traditionally patients had to give up the prospect of curative care in order to get the hospice benefit. i don't think that's right, i think they ought to have all the choices. and i wrote a provision that's in the bill that begins the program that for the first time would give patients the right to get both the hospice program and curative care. so we start two principles; empowering patients to make choices and making sure they have all the options -- hospice care, curative care -- all of the options. are those the kinds of principles that you believe would really enhance quality of life in this area of end-of-life health care? >> first, thanks for your leadership on that, senator

widen and some of the other important issues, i'm very grateful for it. my principle is that every person in america, certainly every beneficiary in medicare, medicaid should be able to get all the care they want and need when and how they want and need it. if someone in hospice care also needs and wants curative care at the same time, i'm completely in agreement with you. as a physician i am. when i saw patients, my question always was what does that patient want and need, and how will i get it for them? and in this particular case of being able to offer curative therapy to patients who are also in hospice care, that sounds totally consistent with that idea. >> the second question i want to ask you about is on page 13 you make some very commendable statements about how states ought to have a key role in making sure that there are a wide array of options in health care. this is something i feel very strongly about, was involved in

writing the provision empowering the states to innovate. and my new governor, dr. john kansas city hopper -- and there are going to be others -- very much wants to speed up the opportunity for the states to be innovative, to have a chance to champion approaches that insure we don't have one size fits all health care. that they have an opportunity for flexibility, more choice and more competition. would you be open within the department, because it has to be a departmental effort, to start reaching out now with the governors to start looking for ways to be encouraging of this approach that would give not just my state, but every state as much flexibility as possible as soon as possible to be innovative? >> yes, senator. i would. the cliche about states as laboratories of democracy is not just a cliche, it's true.

and the diversity of approach that we're seeing emerge state by state, it's been there a long time. i think we should do everything in consistent with protecting the trust fund and protecting the well being of beneficiaries. releasing this kind of state energy is an extraordinarily important thing to do. we are doing it. there's demonstration authorities, just yesterday we announced the, an opportunity -- the multipayor demonstration project which wassal originally intended for six states, i authorized it for eight states. it's not just states, it's communities and localities that need the same latitude and flexibility, and we've seen tremendous examples -- >> let me see if i can get one other one in, but i appreciate your answer because we do want to speed up the opportunity for oregon and every other state to have a chance to be innovative. on medicare advantage it was pretty clear to us that not all

medicare advantage was created equal. >> yeah. >> that there were some programs of very exceptional quality, and there were some others that, frankly, some of the ceos ought to be put in jail, some of the hearings that chairman baucus had. so we created in the legislation an opportunity for bonus payments for high quality plans based on these star ratings in the department. the whole point of this is to drive quality. how do you see bonus payments making medicare advantage more choice-oriented and more competitive by focusing on quality? >> well, it's -- >> if i might, we don't -- vote's started, i want to give as many senators as possible to ask questions, so if you could just answer that question in about 15 seconds because time has expired. [laughter] >> it's the opportunity to measure and rate the quality of these plans and attach p payment to the star rating system is a

strong step in which we reward plans as they improve their quality. it's only logical, and it will help plans and men beneficiaries both. >> thank you, senator. thank you, dr. berrick. senator roberts is next, he's not here. up next, senator stabenow and senator ensign. >> thank you, mr. chairman, and welcome, dr. berwick. very much appreciate your leadership and your experience. i think you're in the right place at the right time. we're fortunate to have you. i did want to, first, just comment. as you know, the keystone initiative for michigan hospitals has been a real driver in terms of quality initiatives dealing with hospital-born infections, reducing costs by saving lives and focusing on quality, and i know that's a part of as you move forward the way you are looking at this. also just for my colleagues, there was a comment made that we had not tried to fix for doctors the sgr. in fact, my legislation, senate bill 1776, we did put forward. thank you for the

administration's support. we could not get past the filibuster, unfortunately. but we are going to keep working on that. i have just a few quick items i'd like to talk to you specifically about what repealing the new law and services would mean to seniors, to families, to moms and children. we have, now i, a new prescription drug benefit that, first of all, this year provides a $250 rebate or help to seniors. i know many are very grateful for having that help if they fall in the doughnut hole. next year half the costs of folks who fall in the gap in prescription drug coverage for their prescription drugs will be reduced. so 50% reduction. could you speak, dr. berwick, about what would happen in your judgment to seniors in terms of higher prescription drug prices if this were repealed?

>> i can't think of a worse plan than repealing this law, senator, on that and so many other counts. it means seniors would not be getting the 50% discount on prescription drugs in the doughnut hole. we would ask them to return $1.8 million, $250 rebate checks that they're getting this year? we tell them they look forward to the doughnut hole not closing so they will not be able to afford life saving medicines. that we won't work on the safer care that i've been asked about, that we're not going to study and improve health care-acquired conditions or work on unnecessary readmissions, that we're not going to improve chronic illness care the way the new accountable care organizations and medical homes would allow us to do, that we're not going to be more transparent about performance. there's all sorts of things that let beneficiaries know the performance of the health care that they're getting, that we're not going to work on criminal behavior in respect to stealing from the public trust fund or

not extend the trust fund's life by 12 years. it would be a terrible plan. >> so prescription drug costs for seniors will go up next year if this provision is repealed, is that -- >> if it's repealed, their 50% discount on their -- >> as well when we have, we've combined mental health and public health. one of the things that's very important in this new law which was something very important to me was to look at total health. and i know that early warning signs of alzheimer's and dementia's often missed, so having the ability to get the screenings at no cost, to be able to look broadly at mental health and physical health, if that's taken away, if that is repealed and seniors are more at risk for these conditions, do you think that we're going to see more cases of undiagnosed alzheimer's and dementia for seniors and their families? >> sure, senator. i was delighted to see the attention to behavioral health and mental health issues in the

law. the annual well and physical which this law now provides and won't be provided without it includes important steps towards really responsible screening towards these positions, and detected early, we can save a lot of damage. >> and then one final area because there's so many ways in which, unfortunately, taking away as much ass is really not not -- really not in the interests of seniors and families. but we know that about 60% of the policies in the individual market offered up to this point have not included maternity care. and one of the things i'm proudest about and i know some folks have called you a baby doctor, one of the things i'm proudest about is if the fact that going forward moms and babies will be covered. and i wondered if you might just speak to what happens to women and their unborn children if, in fact, health care reform is repealed. >> well, thanks for your leadership on that. i thank you as a pediatrician and as the --

>> again, doctor, very quickly. >> yes. the new law allows extension of more services in perinatal care and coverage of children. something like 2.6 million children are now already covered with getting kids you should coverage. the secretary's declared her intention to lead national efforts to get the five million remaining kids who eligible butt in that program. >> thanks. senator ensign. >> thank you, mr. chairman. a provision that senator carper and i worked on dealing with healthy behaviors in the health care reform bill were having difficulty, it's not your role, but we're having difficulty getting answers from hhs. but dealing with the whole healthy bayers issue -- behaviors issue, do you see -- because the healthy behaviors issue doesn't apply to the medicaid or medicare populations. but do you see ways that we could implement this idea of encouraging healthier behaviors to medicare or medicaid

patients? >> oh, definitely, senator. and, by the way, if you're having trouble with a response, please, let's deal with that afterward, i'd be happy to work with you on that. >> i appreciate that. >> prevention is such a crucial area. so much of the morbidity we deal with comes out of the behaviors we choose or the conditions in the environment that we can alter. and, yes, it does affect elders substantially. so working with the medicare/medicaid beneficiaries both on choices that they make, helping them discover better patterns of nutrition and choices they make about substances that they use, that's very important. the extension in the affordable care act of wellness visits for seniors will allow physicians and seniors to be together, now, to talk about how to stay healthy for as long as possible. and the extense of coverage for children under medicaid through c.h.i.p. and getting some of the single adults into that

system -- although that's not accomplished through cms -- is an important step forward to what you want. >> but the incentive, there were financial incentives. >> uh-huh. >> for healthy behaviors. and that's, you know, it's no just not preventive services. we've tried them, and they don't save nearly the money. as a matter of fact, when you look at cbo, they say preventive services actually cost money, but rewarding healthier behaviors we know saves money. safeway has a pretty good model on this, and that's the reason we were able to get that in the bill. do you see ways for financial incentives within the medicare or medicaid program to be applied so that we change people's behaviors? because if we don't change people's behaviors, the cost of health care in this country is going to continue to skyrocket. >> you know, i think helping people understand their self-interests when it comes to healthy behaviors is crucial. it's an interesting area that you're exploring, and i'd be happy to talk with you more about it, senator. >> okay.

lastly, the other thing, one of the other things that safeway did is they provided and because medicare and medicaid have these, this information that can be applied to the private sector, safeway was a large enough organization to be able to put together enough data for transparency to allow, to have their employees help them shop, basically, to become shoppers in the marketplace for health care. an example around the san francisco area because they're self-insured for the first 25,000, they pay for things like colonoscopies. well, they just paid, and they looked at a one-year data, and they as little as $800 and as much as $8400 for a coal not coby. in the same year. and that kind of information if you could provide cost and quality, transparency in the marketplace, you could get more

market forces. is that something that you could foresee that medicare and medicaid could provide just as an information without, obviously, we're protecting privacy, but i'm talking about just with outcomes, with costs so that more people could actually shop and market "forbes"s could -- forces could play more of a role in the health care field? >> senator, i remember you mentioning that to me in your office, and it's a very interesting area. i think in general the whole idea of empowering beneficiaries with more information about what's available to them, about their options and where they can find the care they need, to use that power of the beneficiaries' decision making to help drive quality up across the board is a very important principle, and i agree with you on the importance of exploring that everywhere we can. >> i guess, can i get a commitment from you that you will within your agency work to try to figure out ways that you can make this kind of information public?

>> making more and more information available from the medicare -- >> no, but i'm talking about cost and quality. i'm talking about cost and quality across the board, like, what people charge for various, you know, what hospitals charge for a total hip replacement. what -- i think all of those things. not just what medicare pays, but, you know, what doctors charge and things like that. if we had more of that information available, i just think we could have a lot better shoppers in america on health care. >> yes, senator. i share with you an interest in that information. i will explore it further. >> you're next. and you're in charge, so when you're finished, just wrap -- you can adjourn the hearing. >> well, thank you, mr. chairman. i think i could go on forever because i think this is an important hearing, and i think, mr. chairman, you stated at the beginning with your opening comments that this is about legislation that is estimated to save, you know, you said hundreds of billions of dollars in the reform of our medicare system. some people are saying, oh, let's do vouchers instead or

privatize it or do something else, but the truth is that this legislation has very powerful tools for reducing the cost of medicare moving forward. and if we get rid of them somehow, we are going to be in a world of hurt. so i just wanted to get your commitment on some of those provisions. one, the rebalancing of, away from nursing home care to community-based care. our state has saved about $243 million in about a ten-year time period by shifting away from nursing home care. and so i want to see, i think the estimates are it could save $10 billion federally over five years. now integral you think that shift is. obviously, there is, also, a provision in this legislation that allows people in community-based care to hold on to their assets so it really is going to have more people staying at home and having the benefit of getting home-based service. the value index, moving away from fee-for-service to a cost

efficiency model. we think that could save anywhere up to $100 billion for our health care system of moving 30% of waste, fraud and abuse in the system to a model that's based on quality care. so i'm curious as to how potential you think -- essential you think that is to the success of medicare moving forward. the basic health plan, another tool to give states the ability to negotiate on rates for lower insurance rates for their consumers, and is cms going to give technical assistance to states on how to implement that and, obviously, not penalize states who have already gone down that road? the pbm transparency provision, we think, is probably another provision that is, could save as much as 10% on brand name drugs by giving the aggregate types of rebates and price concessions to

cms so that we really understand that. so all of those are tools that we put in this legislation. how critical do you think they are, how will you work to implement them, and how can we get your guarantee that these are the critical frameworks for cost controls? >> i agree with you. these are all important levers for doing what i said in my opening statement we can do, making care better and more affordable at the same time. take the rebalancing work and the work we're progressing, now, on home and community-based services. people don't want to be in institutions, they don't want to be in hospitals. the way to get them in communities with the proper supports, it's better for them, it's better for their families and loved ones and it will, in general, lower costs substantially. it's a very important example of the work. yes, there's new authority in this law and in older legislation to help states try out their forms of home and community-based services, and i'm totally in favor of that. integrating care through accountable care organizations and medical homes will save

money, and using the value index idea. the idea there is that we should pay for what we want. we want quality, we want better outcomes, we want satisfaction on the part of beneficiaries. why would we pay for fragments, little piece by little piece, instead of understanding where value really lies? in order to do that, we have to have tools like -- >> and how big a component do you think that is for the success of medicare in reducing medicare costs moving forward? ..

>> thank you, senator cantwell. [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations]

[inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations]

[inaudible conversations] >> all this week we had been live from american university here in washington with classes on campaign management and a

lobbying. up next more live coverage from the full advocacy institute with a discussion on how lobbyists here in washington can influence government regulation. speaker is american university president cornelius kerwin. this is live coverage on c-spa c-span2. >> ladies and gentlemen, welcome to the public affairs advocacy institute at american university. our next speaker is neil kerwin who is the president of american university. is going to be talking about lobbying and the regular -- the regulatory process which is relevant to our case study. as you well know, he has been head of american university since 1975, and he was the dean school of public affairs dean for eight years, provost for eight years. even president of american university and permanent president of american university since 2005.

and it is i believe he is the first, the 14th president, the first president that is a graduate of american university. we are very pleased about that. he is the author of the book called rulemaking, how government agencies right law and make policy. how many of you have read it? it's on -- all of it or part of it. part of it. okay. [laughter] >> thinking about making it into a movie. i understand. he also founded the center for the study of rulemaking. and you all know that we have four or 5000 bills introduced every two years in the congress, and maybe 300 past your but each year there are probably 25,000 very narrow rules of some very important roles. import rules made eight, 900

import roles of the regulatory agencies and department. and they put specificity on the page bills. bills are outlined, and they are framework, and certainly a lot of regulations promulgated as a result of health care reform, financial reform, the other bills that have passed. neil is going to talk about very specific thing. he is going to talk about the regulatory process and advocacy within it which is directly applicable. neil, thanks for coming again. [applause] >> i think you should applaud liz for buying and reading part of my book. the choice between buying and reading, i go with -- that's all right. i'm going to defer for the rest of you the opportunity to read

the book because i'm not going to get into a lot of technical details this morning about the mechanics of the rulemaking process. those of you -- those of you have taken any kind of administration course or specifically let's say an administrative law course, then you will have learned at least something about rulemaking. one of the point i want to leave you with today is i don't know of any activity in our public life that has greater impact and less attention that what we are going to talk about this morning. i want to thank jim. is kind of a charity move on jim's case to bring me in to talk about a topic that nobody appears to care about, based on my book sales. although i will say this, interestingly enough, the last time i checked, the book was used more often in business schools than it was in schools of public affairs. this is after me being the dean

of ours. the president of the university. now, you would think people in the math department would have the sense to a scientist, but they don't. let me start with kind of a startling point -- well, i can say without real fear of contradiction because the year is now in its fourth edition. i have a co-author no who is a doctoral student of mine here at au, teaching in the school of public affairs. so this statement appears in the book, and read by a number of people in the field. the fact is rulemaking produces the most important law in america. i know the case that jim has given you to work with, what is potentially an enormous important piece of legislation. and i'm not here to tell you that what congress does is by any means irrelevant. i'm here today what congress

does is simply not enough. and if you are in the business of public advocacy. i'm surprised jim hughes the term lobbying. -- jim use of the term lobbying. for reasons of good taste, if not accuracy. but if you're in the business of public advocacy in this town and you are ill-equipped to deal with rulemaking, you're not as professional as you need to be. in fact, ultimately you will not be very successful. the point being is that congress begins a process, i'll get to that in a minute about how important that process is, but the fact is a law that i live with day in and day out here as chief executive officer of american university, the law that affects the way we handle animals in our psychology lab, the law that affects the way the men and women who work in our

boiler plant are protected from hazardous substance, hazardous practices, the carpet that your feet are on, the air you breathe, those requirements are not written by congress. they are enabled by congress. they are authorized by congress. they are written by agencies of government. when we did, when i did the original research for the book back in the early '90s, because there was really no clue -- political science of rulemaking, of the sort that i was undertaken, i did a survey of organized political interest groups here in washington without having any clue where they would ranked rulemaking as an activity. they ranked 20 years ago as important or more important the lobby as the economy. they ranked it also ahead of making political contributions and doing grassroots route.

we have updated that survey. that is not eight or nine years old. the findings are more intense on the rulemaking site. what it means is the professionals who make a living influencing public policy have found rulemaking, they fell rulemaking a long time ago, the american people and american academic hasn't. so you are joining this morning a very select group of people who will at least leave after the hour having been warned that if you don't do this, the people you represent will suffer. i don't care what your political issue is, everybody in this country has a right to representation. if you are representing interests on the right or interest on the left or interest in the center, and you walk off capitol hill with a piece of legislation, the rockefeller bill or something else, and you to a cocktail party to congratulate yourself, you go back to work on something else, you going to get exactly what

you deserve. what you deserve in a situation like that is to have the people that are aware of how continuous this process is, eat your lunch, and the launch of the interest that you represent. statutes are necessary, they are insufficient. the rulemaking is criticized and you'll hear these criticisms a lot. and many of them are correct, but many of them, like congress, are insufficient to understand how the process works. what does the constitution say about writing law, who writes the law in the united states? article one, section one. listen, you're going to have to learn this because from now on you will be reading it -- did you read the post this morning? all right.

[inaudible] you doby books, you don't read papers. what do you read? article one, section one says legislative process will be vested in a congress of the united states. it doesn't say and the pension benefit guarantee corporation. and the faa, and the environmental protection. it just as congress. and assess congress because the founders were terrified of authoritarian rule. they want to put a law making, which they took as the preeminent power in our constitutional system in the hands of an institution that was closest to you and me. we have direct electoral control over the people who write the law. and if we need in reminded of that, think about what happened to much ago. think about who's coming to town as we speak. think about how different this congress is going to look than the last one. the problem is that we can't

function in a 300000000% political and economic system with only the law of contracts. we need more useful law than that. we need the kind of law that tells me what size the cage needs to be to house the rats in the psychology department. the real rats, the animal type rats, right? okay. i need to know exactly what those guys and women in the boiler room can and can't be exposed to, or else this universe suffers. those standards aren't written by congress. or if they are, they are written very rarely by congress. they are written -- the proper proper is either written by people who were not elected by anybody. and as a consequence we've got to find a way, and we have over the years, to develop a rationalization for allowing unelected people to write the most important law you and i consume on a daily basis.

and al qaeda and how that works in a second. they worry that rulemaking is poorly informed, that the people in the agencies don't know what people and the private sector know. or people in the nonprofit committee know. as a consequence, they write rules that are terrible, or the right rules that on monday delayed by powerful people like you and me who do have information. that the agencies don't have. so we have developed a process over time to deal with that, and i might say the regulatory process by and large is the best informed of our public policy. it is a wash and information in most cases. one of its most difficult tasks, i think, for contemporary america is sorting which information is accurate, which is complete, which is subjective. very slow and obsolete by the time it's enforced. and i've got to take in some cases you've got to plead guilty on this one.

when we first did some research on the relationship between passage of time and rulemaking, again back in, the late '90s, we found the average time it took for epa to write a major regulation was, how long? what would your gasb? you've read a portion of my book. wrong section. right. two years, good guess. double it. back then it took four years and four months to issue a major regulation out of environmental protection agency. i'll also tell you this. when the faa discovers there's a flaw in an airline, in a piece of an engine in an airline, they can issue a rule in 24 hours. but the passage of time in the rule depends almost entirely on how political salient, how politically salient it is that how people like yourselves get involved in the process.

and then finally it's inequitable. rule-making favors the rich. it favors the well organized, a sophisticated, and impact when it's done falls disproportionately on smaller entities. you could say this about any element of our political system, and rulemaking process is no better organize for a ranged today to handle that than any other part of our political system. if you are poorly informed, if you are poorly organized. if you do not have the capacity to present this system what it needs, you are going to either failed or you will simply be irrelevant. fair or not fair, that's simply the way it works. now, why does rulemaking survives? why doesn't congress write specific language in legislation?

why doesn't it tell the american people exactly how much nitrous oxide to be emitted from a rubber plant in northern connecticut? >> they are not experts. like parts per million. >> whatever, right. exactly. they lack the necessary expertise. what is the expertise reside in the american public, usually? in agencies like the environment protection agency. that's one good reason. congress at that level is incompetent. i don't mean that negatively. it's hard to say that they are incompetent. i mean that in the sense that they don't have the full array of talent on the hil for a whole lt of different reasons. to answer these questions. there's another reason. [inaudible] >> that's right. it's called political will.

as a matter of fact, there's a fascinating theory that jim and i have been exposed over the years by both, who argues that if this process didn't exist, congress would have to create it because it enables them to avoid and shift responsibility to another part of our political system, for the most controversial, the most politically dangerous decisions that reside in public, in the public arena. now, there's a third reason and this one is probably the simplest and easiest to understand. it's the lack of time. jim said, how many, 6000 pieces of legislation. how many get serious attention? obviously less that because only three or 400 get past. >> at this time we will have more. >> this next congress. this last caucus will have more because it's been an extraordinary productive lame-duck session among other things.

but average year, since they've been keeping statistics, 6500, 8500 new and proposed rules each time out. jim says some are major, some are minor. he is right about that. but the fact is every rule that is written the fact in a profound way, somebody in the united states. somebody cares a great deal about it. how many people in your who have read the federal registry but i don't mean cover to cover. i meant occasionally seen it. good. everybody exist exposed to that. every day in the federa reading the product of what we're talking about. and it goes over most of our ki. is not the kind of ting that you recommend to someone for light reading. but in every one of the rules proposal filed by the federal registry contains, somebody's life is going to change. a mechanic working for american airlines is doing something different this morning that he was doing yesterday morning.

and that then radiates throughout the system. congress can't possibly spend the amount of time it takes to fashion rules that have three characteristics. one, absolutely specific. in other words, liz had no option once she reads this document, this piece of legislation, what's she supposed to do? no lack of clarity. rules give you the most specific statement of your rights and obligations you're going to get short of having an enforcement officers show up to tell you what you did wrong. and we all want to avoid that. i mean, this is an aside. every week i meet with our general counsel. and mary's role here primarily, keep this institution in compliance with the law. when i want to know what this institutions options are with

regard to, you name it, how we manage the pension program, mary can give you two things to read. she can give me the united states code, which is a compilation of all legislation written on that topic, or she can give me the code of the federal regulations. and i'm telling you, 100 times out of 100 she's going to give me the code of federal regulations. that gives me the specificity i need, and the extent the specificity exist. so rulemaking is truly been the natural continuation of the legislative process that begins with our electoral, our elected representatives, and ends at the point that they are no longer able to do more with the work. either because of political reasons, tactical reasons, or time reasons. that means the vast amount of detail that we live with is written by the unelected folks.

now, the obama administration, you've all lit up through the last several years -- you've all lived through the last several years and, you know, what's occurred already. it really is from a regulatory point of view a remarkable story. job notice from time to time that people will use the term regulation and rulemaking interchangeable. you can use the term regulation and rule interchangeably. you can't use regulation and rulemaking interchangeable. regulation is a broader process. it includes more things than just rulemaking. but rulemaking is in effect a triggering mechanism for all operating regulatory programs. obama has always done health care, food safety. that's just through congress. and then through his own initiatives, through the management direction he gives

his agencies, and you heard jeff talking about this, the fact is the president has a tremendous amount of power today take domestic policy agenda through his ability to direct agencies to do what he thinks is important, under a law that is already existing. remember what the rockefeller bill really, think about its origin. i'm sure jim and you have been through this already. the fact is epa under existing clean air act authority had begun, has begun to regulate global warming. this morning in the post, if you can find the "washington post," you should read. you should call it up, don't call it up while i'm talking because that would be rude. but today's front-line headline in the "washington post," as a

result republicans acknowledgment, the tea party movement, they are going to require every member of congress who introduces a new piece of legislation to read the constitutional authority that he has come or she has, to do it. snorts thurber gets up and says i'm introducing a bill to reduce global warming. and i'm doing it under the following clause of the united states government. now, that may sound like enormous constraints on the ability of congress to introduce new legislation. the simple fact is, and as a matter that i read a blog about early this morning from a guy who teaches at yale law school. the constitution is a fairly elastic docket. you can find in a general authority do a lot. just like the constitution is for the congress, existing

legislation is massive in reach, and scope. so a willful president wanting to do what congress will allow him to do otherwise, can very much uses direct management authority to accomplish much of his agenda until he is stopped by other means. the president made a lot of promises. obviously and he's working his way through those. either on the hill or in the agency. but remember there are also severe constraints on budget. it means that the rulemaking process is going to be under tremendous stress over the foreseeable future. under these pieces of legislation, and those that will follow, rockefeller, if it passes come is a good example, will be operating under enormous pressure to produce new rules but under enormous scrutiny while we do it.

that puts people like you, public advocates, who have resources to bring to bear to the rulemaking process in an exceptionally advantageous position. because as i will point out any minute the one finger community holds that agencies desperately need is a resource that is always in short supply here in d.c. i will come back to this. now, you know, i've done all a bit of writing over the years are just the management of rulemaking, how agencies are organized and resource to write makes the the the the rulemaking is obscure, you ought to try that as a topic that even fewer people have read that. but in any event the fact that it is a system that is now poised to be enormously important, but also enormously difficult. here are the six players, two of which i will focus on specifically, that really determine how rulemaking operates. first and foremost is congress.

think of a legislation, piece of legislation, as the boundaries within which agencies operate when they write rules. sometimes the boundaries can be very narrow and tight, depending on whether it's political and technical circumstances on the hill were such that congress could be very specific in guiding and agency, or they can be very broad. that best example of a very broad that a user is the clean water act of 1972. 1972 congress said that in two years, this sounds like a civil war to these guys i suppose, but there was a big piece of legislation in the '70s. they said, in two years the environment protection agency will produce regulations that will make every american waterway swim of all, fishable and drinkable.

so that is 38 years ago. they did this after a year before -- how many here are from cleveland? the cuyahoga river. you're too young to remember this, but your mother or father do. 1971, the cuyahoga river ignited. in other words, it caught fire. all right? any chemists in your? anybody had a chemistry course in here? what do they tell you about water? [laughter] in a chemistry course. i mean, among other things. >> water is highly reactive will. >> and what do you do with water -- for example, what are one of the uses of water. what are the uses? there are many uses. we drink it obviously.

>> drinking, baking, swimming specular going where i want you to go with this. [laughter] >> one thing to do with what is you put out the fire. okay. so being a political scientist my first thought was when the cuyahoga river in ignited, that you might've had an underlying issue with pollution in the water. so they thohtcngres in its wisomreg ct wa then a serieof environntal d ng o ohskthe oil sill,atar g i e. two yes a.s te poomacdel implme drkt. th in ecise, a cple oent atemt.to te poitic statemenab itth oih

amtiits,tandard, nothingy gets written in less you can see net benefit, and nothing will come out of an agency with that characteristic. if on the other hand he decides we're going to produce an enormous body of rules that make up for a decade of laxative rules in protecting the about, protecting workers, protecting the financial security of the american people, then you're going to be seeing signals throughout the government that byh way lok a tle itast happ intoaa ministraon qte t h obama adinistration quite yet. the third player is the court system but i'm not going to spend anytime with you on that today because once you're in court, again changes. junot the major player. you could be a participant, but you're not really calling the shots. the attorneys are.

the core players are agencies and interest groups. by interest groups i mean anybody you represent. any role you are assuming in this course, anybody you work for after you leave your and go to work, and many of you already are on public advocacy. that nexus of agencies and interest groups are what defines rules to a very great extent. they are not by any means the only players, but they are the core participants. much of what else happens in it is a reaction to their activity. and then finally the press and the media. i will say this. there is a tactical press out there, used to be a newsletter community, now a blog community that does some very good stuff. date invest time and the effort, learn how the process works, to follow in great detail a given rule or regulation. the general media is pathetic.

what you see are passing references of stories here and there that say something like, of course nothing is going to happen into the rules get there. and then they don't tell you how the rules get there. they don't even tell you necessary who is writing the rules. they don't tell you that everybody on the hill with any brains who are actively involved in health care rerm lked downhe seetohe department of health and human services, the moment that piece of leislation passed, and begin working as hard there as they're working on -- in fact, working harder. and in many cases working smarter. because of the currency the rulemaking process is different in much of the current ec on the hill. but by and large, immediate attention in general sense, general newspapers, the general electronic media is not good.

now a little bit of nuts and bolts. let's say the rockefeller legislation passes. who's going to have responsible -- where does most of the attention then shipped after the rockefeller bill passes? based on what you have done so far. [inaudible] >> but what agency will be under -- will be doing most of the work at that point? >> epa? >> and then secondarily energy, maybe a few others. all right, what will happen at the point at which the legislation is signed, i will tell you this. it's already happening. is that someone in the environmental protection agency is doing an inventory of how many rules have to be written by what time, by whom, and what's

the consequence. they then have to sit down and decide okay, how do i get him pass legislation to issued rule. and that roadmap, believe it or not, is almost 70 years old. the roadmap was written in the administrative procedure back in 1946. i won't go into all -- i mean, i've got, when i'm still teaching here i taught a course in policy, depending on how much the class irritated me at that point, i could either do a 30 minute lecture on administrative procedure act, or a four session lecture on the administrative procedure act. trust me, that's painful. after the administrative procedure act was passed in 1946, it became gradually appear to congress that they were giving up immense power every

time they passed a piece of legislation. they were turning it from themselves to agencies like epa, or the energy department or the faa. so after running the perceived -- the administrative procedure act, they wrote a whole other slew of legislation designed to constrain agencies when they write rules but and everyone of these pieces of legislation and many that aren't listed here are opportunities for public advocates to insert influence. so you need to see everyone of these pieces of legislation, starting with the administrative procedure act, in effect as your roadmap also. where do you go to try to influence what a rule or regulation will say? this is a massive body of law today. not only to have legislation that affects the rulemaking process, we have hundreds and hundreds of court decisions over the years that have been handed

down when people challenge rules in court. we have executive orders written by the president of the united states that dictate a whole lot of other things about the management of the rulemaking process. we have specific authorizing legislation. let's take the rockefelrockefeller commitment that puts restraints on had epa can write rules in the case of global warming. every bit of it, this massive body of law boils down to three principles. if you can master these three principles than you will master the advocacy process. principle number one is information. agencies are required to inform the public in advance when they intend to write a rule or regulation. i won't go back through the history of all those. back in the '40s it was really lacks. today it is not. means informed you that they are riding a rule or regulation,

something called a notice our proposal of rulemaking. npr and for sure. and it appears in the federal registry. how many people have seen one of these? some of you may have written one. okay. apropos our friends on the hill that are going to have you read the constitution every time you introduce a new piece of legislation, in a notice of proposed rulemaking, the first thing you're going to read of substance is the statute that the agency is using to write the rule. in other words, the statutory authority congress has given to write the rules. sometimes it's a mandate. you will write the rules. sometimes it's made, you can write the rules. that's number one. so that is to the american people, for most of his death, the first thing we know about a roofing under development, if it's the first thing you know as a public advocate for a set of

interests, the first you have read about a rule under development is a notice of proposed rulemaking. the bus has left the station, and you and all the people you represent are under the bus. the fact is as a public advocate you should know before the legiation was never enacted where that rule is going to be writn, who's writing it, why the timeframe is, and what they ed to do it. but go back, bu again, information is one of the key principles. one a is informing the public. one b. is what type of information is the agency required to assemble in order to write its rules. if you are doing rulemaking on obal warming, if you're doing a piece lislation on global warming, what would you tell, what would you advise as a member of congress, or as

congress, how would you direct the environment protection agency, what kind of information should epa collect when you try to rule on global warming? remember, you're the congress, your writing the law. [inaudible] >> co2 emissions with the -- would be a good plae to start. costs and benefits. >> climate patterns and how they are changing. >> right. costs and benefits, i think abby just give us the broadest possible definition that should cover all those things. but the fact is everything congress tells an agency to use a particular kind of information, it's empowering a particular kind of interest. inadvertently or admirably. because information is not universally owned and it's not universally shared.

as you will see him n a becomes absolutely crucial. so principle number one is information. principle number ois your invitation. principle number two is an outgrowth of the paradox that i mentioned at the outset of the lecture. you've got people running the most important law in america unelected. what are we going to do about that? well, for love our history coress and the president and the courts just attended it wa't happeng. they said that rulemaking was a really lawmaking. it was sething else. well, back in the '30s they finally acknowledged that, rulemaking is lawmaking and by the late it's not constitutional. we are two pieces, two supreme court cases that declared pieces of the new deal unconstitutional because they overly delegated vast power and authority to agencies to do what?

right reg. what you are for my with from your political science and history books is the court packing plan. the court packing plan was a direct linear relationship to these two decisions that the court made mocking down the new deal having to do with its rulemaking. since that time the court has found a way to justify rulemaking as a constitutional adjustment. and the way they have done it is by accepting the fact that no, the members, the people writing the rules are not elected, but the american people have, certainly the administrative procedure act, the opportunity to participate directly in the writing. so every time an agency writes a rule, and in its notice of proposed rulemaking it contains information on how you can participate in the development of a reg. i'm not going to say that that is an empty invitation because it's real. but kind of like information, at

first you are thinking about participating in rulemaking is when you read it in the federal register. you are way behind the rule -- curve. because people like you as public with advocates have been with the agency, likely for months if not years, on the content of that rule before it hits the street in the federal registry. now, i have to tell you that there was an attorney here who specializes in administrative law. he or she would tell you instantly you've got to tell them about export a content. but if i tell you about ex parte contact last entry, -- you alas into a coma. it limits the amount of interaction between agency and outside interests while google is under development. but a point of fact, it happens all the time and just simply has to be properly documented.

but one thing you have to assume as a public advocate is that everything you supplied to an agency of writing the regulation is going to go public. it's going to be put in a public docket. it will be a viable to both your friends and your enemies to read. the final concept after participation is accountability. after the agency is finish writing the rule, it can be held accountable in three ways. wind, you can sue them if you don't like the results. i will talk a little bit about those laws after the fact. that is a desperation move in most cases because agencies don't lose lawsuits all that often. not at least in the way we are talking about. but it happens. the second is through the white house. if jeff weinberger talked about

the office of information and regulatory affairs a little bit, okay, i will come back to that in a second, the office of information of military affairs, if it's a rule that paying attention to, isn't have been of enormous potential for you and your interest. because it is the white house that ultimately gives the greenlight to a new rule both at the proposal and at the final stage. and then finally the congress, you can always look back to congress and viable talk about how you do that in a bit, but if you master these three principles, is doing everything you can about how these three pedals are going to play out in a rule or regulation that you are paying particular attention to, and you'll be as effective an advocate as you can do is a light vigil. there's no guarantee you will be successful, but it's actually certain you will fail if you don't understand how the fundamental processes work. because your ctitors do

understand. they are devotg a lot of time and energy. >> a quick question. it's my understanding that ex parte contact lobbying is not on the record, you don't know who's doing it. >> that's incorrect. >> that's on a doctor? >> all the way back to the reagan administration, the director of, has decided those contacts will be made public. but even published the list of meetings they have. let's talk about tactics. let's say we are looking at the rockefeller bill in some detail. i know i had to move along here. >> we will stay here until 4:00 last night. >> than i should have done that to our piece on the administrative procedure act. rulemaking advocacy really starts on the hill.

and if you're sophisticated enough to understand rulemaking support you should be reading every piece of legislation you're interested in from the plans of a rulemaking is going to occur after the legislation is passed. as a matter of fact, which ought to do is look at the piece of legislation if you really want to be effective a as a precursor to rulemaking. as the enabler of rulemaking, as the limiting agent of rulemaking. i know that doesn't sound right, doesn't feel right, because we've all grown up thinking about congress and the legislative process. and that's the way we should think about it. but in effect what congress is doing is setting the stage for dozens if not hundreds, months if not years, if not decades of rulemaking that is going to follow. the other thing, i probably

didn't spend enough time on, remember, congress in addition to not being technically knowledgeable, they are not pressure. they are no better than we are anticipating how the world will change a couple years after its statute is in this enacted. to react to these changes, the unanticipated changes in ways that you couldn't do if you had to rewrite the legislation every time an actual condition changed. so what are your opportunities when you are sitting in front of a statute that you think you have the opportunity to alter in a way that positions you well and your interest well? one is make this an incomplete language can be your friend or every time a critical statute, statutory term is not well

defined, or every time the element of a public program is not described in detail, that's an opportunity for you to do it in the next stage of the process. vegas and incomplete language is a common characteristic of most contemporary legislation, for all the reasons we talked about. as you read that language you should be thinking how can the agency defined as in a way that is beneficial to the people i represent. and how do i position myself and provide them what they need to define it in that term. you might come to the point where you say to yourself, man, there's no way in the world vague language in this will help me. that's when you go to plan b. that's when you see if you can

insert in the statute language that limits the ability of the agency to define it any differently than the way you want. now, let me say one other thing about preemptive language. you can also preempt parts of the process. you can also suggest that the agency that has been given responsibility to write the rule uses a certain kind of procedure to do it. i can't go into all the detail, but if it's not the classic what we call notice and comment rulemaking, there are other things that you can record the agency to do. you can require the agency and statute to conduct public hearings. and people do that all the time. you can require the agency to engage in something we call policy dialogue, which is a higher level of public hearing

that requires the agency to sit down with interested groups and discuss what's possible and what might work. perhaps the most extreme thing you can do, although, oddly enough it happens in the department of education of all places more often than anywhere else, is required the agency to engage in something called negotiated rulemaking. which is a process in which the agency sits down and almost a collective bargaining mode with the affected interests, one of them being you. and to write a regulation the way you would negotiate a labor agreement, with a union. so, process and substance can be subject to preemptive language. the third is information requirement. let's say you're an environmental group and you have

the best available data on co2 emissions as they affect wildlife habitat in north dakota. you would be astonished to read how precise the congress can be when it comes to telling an agency what kind of information it needs to collect in order to write a rule. in fact, a kind of information that the agency will have to consider definitive whether it rights rules. so if you are in possession of high quality information, you believe it's in the public interest to ensure the agency employs that information to the maximum extent possible, you can employ statutory language to require the agency to draw on your and your expertise. it's often very important, as a matter that sometimes crucial,

which agency is responsible for implementing the law. sometimes it's obvious. you not going to give global warming legislation to the pension benefit guaranty corporation. but congress has been known to dip deep into agency structure and not just a, epa. epa and the office there. or its epa and, let's see, the office of oceans. the congress has the capacity to identify any bureaucratic agent. i mean, the old days back in this 90s, by the way, congress have been delegating authority for agencies to write rules since the first congress. this happened in the first congress. it will happen until there is no longer a congress. congress used to say the president will. then it moved to the president and the secretary will.

now it's the present and the assistant secretary. if you feel you have got a friendly home within an agency, realizing of course these homes change, a lot, that's an opportunity as well. a very common, and this is one that finreg is operating under and health care reform, imposing deadlines on the agency in writing the rule. just like they did back in the clean water act, he was a for example, okay, the first wave of co2 for limiting emissions, regulations, will be the environmental protection agency 90 days after enactment of statutes. or 180 days, or a year or two years. now, deadlines are very much political statements. they position certain interests to exercise extraordinary authority. if you're imposing a deadline on

an agency and that deadline is a severe, and, you know, the agency doesn't have the information it needs to produce the responsible regulation in 90 days, and you have that information, guess what? you become immensely influenti influential. and you might be an aggregate for the deadline. but remember this also. almost always unrealistic deadline leads to lousy rules, or rules that improperly dominated by the holders in one case of information. there's all kinds of procedural games you can play to impose a deadline, and then keep the door open for changing the rule or regulation after the fact. we will talk about some of those technical aspects later. deadlines cut both ways. if you're an interest that doesn't have information, but you have the capacity to develop, and, you know, your

opponents do, and, you know, the agency can with regard to what it currently is able to manage by way of decision-making, and you're not going to advocate for a deadline. you going to let this thing run its course. it's really fascinating, i mean, and transport in particular the allegation of it is moving too fast. when you go to the agency and ask gains or someone like gensler, white helped you put this stuff up so quickly? he said every the statute if i don't put out in 90 days i'm in content. what happens if you miss a deadline? what it all the terrible things that can happen to you if it you miss a deadline? you get called up to go for a ritual beating, but you'll probably be called up to the hill for that anyway. ..