america that are small businesses 500 employees. it would give them -- and that's where most jobs are created. it would give them a 10% tax credit for hiring more people. it would also give them the ability this year to purchase equipment and write that off. it would be great for the economy. we're told by outside experts it would create about a million jobs. well, what we have before us is something that the republicans in the house have sent us their version of this. it's the help paris hilton legislation. it would give people like her a tax break for doing nothing, nothing. $46 billion of the american people's money to help paris hilton and others. it would give people a tax break for doing nothing, nothing.

for my friend, the republican leader public works to talk about small businesses being hurt with the proposal of the president's is not true. as i said in my opening statement, madam president, 98% of the american people would have the benefit of that tax benefit. 97.5% of small businesses would benefit. so, madam president, we're in a situation where my friend talks about the fact that we haven't had enough job creation and i acknowledge that and i certainly that's true and the president acknowledges that. but you see, we have quite a hole to pull ourselves out of. during the prior eight years, eight million jobs plus were lost. and we have filled that hole, more than halfway, 4.5 million new jobs have been created. we've had 28 months of

private-sector job growth, 28 months in a row. so we're doing -- making progress. we have a long ways to go. but, madam president, i object. the presiding officer: objection is heard. mr. mcconnell: madam president,? the presiding officer: the republican leader. mr. mcconnell: let me simplify this for everybody. the president on monday asked that we have the vote that i've just offered to the majority. we have a clear contrast here, 41 straight months of unemployment over 8%. if this is a recovery, the most tepid recovery in modern times. the president's solution to that is to raise taxes on about a million small business owners representing about 53% of small business income and up to 25% of the work force. we're on a different bill that my friend the majority leader is talking about that i understand would be blue slipped by the

house in any event, so clearly what we're doing this week is having a political discussion, not seriously legislating. and so my recommendation is we give the president what he asked for. he wants to have a vote on raising taxes, on individuals making over $250,000 a year which, of course, includes almost a million small businesses that pay taxes as individuals, not as corporations, either s corporations or llc's. the most successful small businesses in america, in fact. that's a vote we welcome. it's a vote the president's asking for. it's a vote i just asked for. and senator hatch, our leader on the fan committee here on the floor right behind me today has advocated that we extend the current tax rates for a year, the same thing the president, i would say to my friend from

utah, wanted to do two years ago. at that time arguing that it would be bad for the economy not to do that and the growth then was actually better than it is now. and we think we ought to vote on that. and it would give senator hatch and senator baucus and the people on the finance committee a year to work us through comprehensive tax reform again, it's been a quarter of a century since we've been that. why not have those votes today? and that's what my consent agreement was about. i'm a little surprised that we're not willing to give the president what he asked for. which is a vote on a clear distinction for the american people. so they can understand how the two sides look at this important issue. could not be more clear. madam president, i yield the floor. the presiding officer: the majority leader. mr. reid: madam president, the american people should see this.

again, again, and again and again, scores of times during the last 18 months, we're engaged in a filibuster, a way as i said earlier, to divert attention from what we're doing today, to obstruct as indicated in the oxford english dictionary, a filibuster is to obstruct progress on legislative assembly, to practice obstruction and that's what's going on today. madam president, why shouldn't we pass this bill that's before the body today? help a million businesses. i mean create a million jobs, i'm sorry, a million jobs. give small business, not paris hilton, but small businesses across america today a tax credit for hiring new people. and to allow them to write off things that they purchase which would create more jobs. so, madam president, we have here in big las vegas neon flashing on and off signs that

says grover norquist has won again to the people out there watching, who is grover norquist? remember, eez he's this guy that goes to the republicans and said would you be kind enough to sign a pledge for me? and that pledge says i want you to do what the american people don't want, and that is we will not tax the rich at all. not even a tiny bit. sign this pledge, will you? of course. and they all signed. the american people, madam president, democrats, independents, and republicans agree that the rich -- richest of the rich should pay a little bit more. but we're now involved in a filibuster to divert attention from an important piece of legislation. let's pass this legislation and we'll have this tax debate. fine, we'll be happy to do that but let's get this done piers.

-- first. and so, madam president, i as most people know i appreciate my friend, the republican leader, i know he has a job to do, but let's get away from this pledge. let's start legislating and not have to break filibusters on virtually everything we do. the presiding officer: the republican leader. mr. mcconnell: we just witnessed the new definition of a filibuster. my good friend, the majority leader, i gather is accusing me of filibustering when i'm trying to get a vote, not one but two, 0 a vote on what he says he's for, what the president says he's for, and a vote on what republicans are for. so we have here a brand-new definition of a filibuster. even when you're trying to get votes and they're objected to by the other side, somehow that's a filibuster. now, my good friend talks about what would help small businesses. i think we ought to ask them would they prefer the underlying

bill which the majority leader has called up and we have voted to proceed to, or would they prefer not to have their taxes go up at the end of the year? talk about a no-brainer. i don't think there's any question what small businesses what rather have. but we're certainly not filibustering. we enjoy discussing our differences of opinion on the tax issue. there couldn't be anything more important to the american people. if we're going to get this economy going again. and certainly trying to set up two votes number one on what the president is scwg asking for and number two on what republicans think is a better alternative could not in my view meet the definition of filibuster. so senator hatch is here, and obviously the majority leader can speak again if he wishes but senator hatch is going to address the matter as well. and i want to thank him again for his conspicuous qus

leadership on the finance committee and we're looking to him to work us through this comprehensive tax reform matter again next year, it's going to be an extremely important thing for the country and i thank him for his good work. mr. reid: when i came here this morning, i repeat for the third time, i asked what business was before this body. small business jobs bill. and of course there has been a direct attack on that legislation by saying let's do something else. let's not do this right now, we'll do something else. i understand the definition of filibuster. i understand it very clearly. from dutch, free booter, one of a class of pirate adventurers who pillaged the west indies in the 17th centuries, one who engages in unauthorized warfare against foreign states.

they go on to say in the united states to practice obstructionism. they are trying to -- as the free booters here to steal legislation and move to something else. they will do anything they can as my friend the republican leader has said at the beginning of this congress, to divert attention from the fact that president obama should be reelected and they are not concerned about someone -- madam president, i'll end this debate soon, there will be other times to do this. if governor romney came before this body to be a cabinet officer, he couldn't get approved. he wouldn't show anybody his income tax returns so he doesn't qualify to be a cabinet officer. how can he qualify to be president? let's debate the issues before us. we'll get to the tax issues. we'll be able to talk more in we'll be able to talk more in

>> would be unreasonable for us to subpoena individuals who would apparently be involved in discussions that were revealed in these articles? >> as i read, the books of two years ago, obama's war, the first cute chapters had a classified top codeword. how are we going to do an

investigation? i would say who benefits? whose position is enhanced by these leaks? that we begin. >> i know who has not benefited by it. that's the navy seals who were involved in the operations and their families. i know that those professionals who were working with us in the area cybersecurity are not benefited by this. i know that the national security interests of the united states are not benefited by this. and so we have to be looking at what is benefited by this. >> the gentleman's time has expired. the gentleman from virginia, mr. scott. >> thank you, mr. chairman. professor sales, in five minutes you can't detail things as you had in your state and. you went through the definition of the sins woefully -- any information relating to the national defense, any person not

entitled to receive it, if the official as reason to believe that information could be used to injure the united states or damaged any other country, a lot of words in their subject to interpretation. one is national defense. you talked about that. is that limited to military? >> it certainly includes military matters. >> you mentioned trade deals. our trade deals not covered by the quote national defense. >> i don't think it clearly is covered and what intelligence information would be covered or military information would be covered. >> in some of the legislation we have included trade deals. >> i think a trade deal arguably could be in some circumstances but it's not as clearly relevant as military information or intelligence information. >> are we talking about only classified information being covered or can sensitive information that has not been

classified be covered. >> under the current statute it's possible that unclassified information of a to national defense could record criminal liability. >> and all classified information covert? >> not necessary. there might be some forms of the classified information that are not properly classified. there might be some forms that do not relate to national defense. >> improperly classified a defense to a criminal action? >> as my friend and colleague, professor vladeck has pointed out, all courts rejected the notion that improper classification exonerates one underneath the espionage act. >> professor vladeck. we had leaks to the press, i think one of the first cases was the pentagon papers. is a reporter liable under this if he reports what he heard? >> congressman, we talked about this before. i think the text of the statute i think could be used to go after a reporter, not necessary for the act of publishing this

information but even for the act of holding onto it when he is not entitled to. i think the government has always been very, very reluctant to pursue those cases because it's a very, very serious first amendment case they raise. it was suggested that although the courts could not stop the new times from publishing the pentagon papers, the nixon administration could prosecute him after the fact. >> so the state of the law now is what? >> i think the best i can say is the law is unclear. i think there's only been one case in history of the espionage act with the government has prosecuted a third party, that is the recipient of information as opposed to the leader. that case fell apart. it was the impact he's in virginia in 2005. i think it would be serious first amendment concerns in such a case but those concerns have not yet produced an opinion saying that you cannot print. that's what i had that quote about the insurgent of the scope of the statute.

>> you talk about the press generally. we have no problems with who is a journalist and it was an. is a blogger a journalist? >> the supreme court for that reason has resisted giving special context of the press clause of the first amendment because they don't want to draw the distinction between "the new york times" and a blog but i think that's only part of the murkiness. >> then wikileaks, is he a blogger or journalist? >> well, i think, if the government were to ever go after julian assange under the espionage act country would try to raise the first amendment claim along the line that he is the press. >> let me just, can ask john what's the difference between somebody that leaks and a whistleblower? >> perspective. >> is that the intent to harm, part of the statute? >> i guess the problem is there are examples of individual been enabled who saw themselves as

whistleblowers. no, straight was a good example and that's why think it's a question of perspective. whistleblowing if we understand whistleblowing and calling attention to waste a misconduct on the part of the government i think sometimes that will include leaking information that is not properly in the public domain. >> colonel, do you want to? >> there are two things. attesting first of all, subject matter, is above the come is a germane to the national defense? the second thing, what is your motivation? been legal test also involves motivation and what is the motivation your? [inaudible] secrets or intended to do something else. very tough line to draw. >> thank you, mr. chairman. >> the gentleman's time has expired. the gentleman from south carolina, mr. doughty. >> thank you, mr. chairman. mr. wainstein, you said leaks have been around for time in memorial. it strikes me one would have

fewer leaks is to actually prosecute and put in prison the people who do the leaking. saw want to talk to you for a second. i couldn't find a federal statutory reporter privilege. am i missing at? >> you couldn't find a reporter privilege? no, you're right. >> it doesn't exist in the statute so then we would have to turn to the common law. and i'm not aware of any privileges that are unqualified and certainly the reporter's privilege would be limited and would be qualified. so that would move to this area where, because it's a first amendment, heaven knows we can have any limitations on the pixel i i thought maybe you and i together with help from my friends are law professors could come up with some examples on whether our limitations of peoples first amendment writes. i'll go first. obscenity. what's another one, professor?

>> well, the supreme court -- >> you have to cite the cases. >> information about ships and sealing dates spent how about deceptive advertising? how about students on high school campuses? they don't have a full and the 21st amendment rights. how about libel? how about government employees? of the notion that the first amendment has no limitations whatsoever is balderdash. legally and otherwise. so that in leaves me with this conclusion. we are asking a u.s. attorney, i think in the district of columbia, to investigate leaks, and if he follows doj policy he has to ask the attorney general for months shy of an election for permission to subpoena a reporter in a case that may wind up being embarrassing for this administration. so why do we not have a special

prosecutor in this case? >> i think, congressman, you're referring to the internal doj guidelines that require attorney general personally sign off on our request to subpoena a reporter. >> that's exactly right. doj policy. >> it's in place to protect the free press to make sure that prosecutions don't chill the exercise of the free press. >> it's certainly not the law. that's just policies. if you look at the espionage act, there's no privilege to keep in mind, however, you can make leak investigations and leak prosecution without subpoena the reporter. >> you can but you can also we murder cases without calling the eyewitnesses. you can when a murder case without calling the dna expert. why not send a subpoena to the border? put them in front of the grand jury. you either answer the question or you going to be held in contempt and go to jail, which is what i thought all reporters aspire to anyway. [laughter]

all of us aspire to the committee chairman. i thought that was a crown jewel in a reporter's resume. give them what they want. [laughter] >> it was reported that the crown jewel is that whatever was the 70 days in jail. >> you can sleep for 70 days. >> but you make a good point, which is that the easiest way to make these cases, just go to the reporter. it to get the reporter's phone records, e-mail records spent if you were the prosecutor, what would you do other than that? if you were the prosecutor and your job was to get to the bottom of it as quickly as you could, you would send a subpoena to the reporter, right? >> right. >> and put them in front of a grand jury. >> keep in mind, i'm going to defend existence of the regulation, not mrs. or the application of it -- >> i'm not saying that every line a u.s.a. and every district in the country should be able to subpoena a reporter. i'm not saying that.

i'm just saying that something as important and compelling if you want user constitutional analysis, you want to talk about the tears of scrutiny, something as compelling as national security, and have to ask the attorney general for permission to subpoena a reporter and what may be a very embarrassing fact pattern for months before a general election. how, you know, we have to have confidence the outcome and you have to have confidence in the process. so why not do what lots of members of the house and senate have asked and have a special prosecutor? why not do it? i've never heard law professors of this island before. >> i think it assumes facts not in evidence but it assumes that attorney generals face with request from two u.s. attorneys into highly regarded u.s. attorney specifically chosen for

this task -- >> well, has the reporter appeared before a grand jury yet? >> if they have we would know because grand jury's are sealed. >> the gentleman's time has expired. to jump in from michigan conyers. >> thank you very much. first of all, i want to compliment you on pulling together a stellar panel of witnesses, who from very, very experiences have made this a very important and interesting hearing. i wanted to begin with just two observations. one, i'd like any of you that would like to tell us about

anything new, and to your perspective of the subject of national security leaks in the law that have come to your attention as a result of the discussion that you heard of her fellow panelists, and the members of the committee. does anyone have something they would like to add to the record? colonel? >> mr. conyers, when i talk about the fact that shuts be careful and revising the espionage act, i say that not only because of being a federal agent myself, i've also been -- for federal investigation myself based on this article which came out in 2008. it took this committee, i'm sorry, it took the agency's three years $2.3 million to exonerate these people come that included myself. so guess what? when i talk about the protection

of the law, i know what i'm talking about. i had only been a special agent, so guess what? that's a chilling effect it can never forget that. fortunately, i'm here to tell you that they should probably kill me first because i managed to succeed. and leaving lately, when -- if you're not like they're coming after you. so, i would simply say when you try to enact legislation, the very careful because you're going right back to philadelphia. >> thank you. mr. wainstein, what would you offer to this discussion, sir? >> i guess you're asking if there's anything new today. the thing that struck me, we're talking about this at the beginning, this is our third hearing on this issue in the last year and a half. we testified in the senate 2010 about the espionage act. we testified here before you all in the aftermath of the

wikileaks disclosures, and then today. all about what you would do about the espionage act. i think of anything that reinforces in my mind there's a real imperative to take legislation and bring it into the modern age because it needs reform. >> professor sales? >> thank you, congressman. one quick follow-up to what mr. wainstein said congress did in 2000 or congress, both houses passed legislation that would create an entirely new statute. do away with the espionage act for dealing with leakers, the press is a total separate issue. watch we do with government employees who leak, congress solve the problem a decade ago. unfortunately, legislation was vetoed so we're still waiting for more precise instructions on exactly what the scope of a build is for officials who leak. >> professor vladeck, should we just rewrite the whole subject of security leaks, or should we

just improve on the 1917 version? >> i think i would actually go even further. i would say not only should there be a careful calibrate an amendment of the espionage act, but i think congress should see as part of that effort reform is a classification vehicle. is i think congress has historically not exercise the power in that area that i think it clearly had to not leave this all up to the executive branch. the atomic energy act of 1954, after provides detailed classifications for certain forms of information regarding a nuclear energy program. but it's alone. all the other classification is an by executive order. and so i think if the committee is serious about a workable system going forward, i think that system can't just include the backend sanctions. it has to include the front and

rationalization of how the classified national security secrets. >> i would ask any of you who would like to submit this for the record, because time will permit it today, but i'd like an evaluation that any of you about the following subjects. watergate, the pentagon papers and dan ellsberg, and the whole concept of prior drink. i would appreciate anything that you get a -- >> without objection, material will be put in the record. we would like to publish the record sometime within the next two years, however, since it is somewhat of a broad request. but do your best. the gentlewoman from florida. >> thank you, mr. chairman. mr. wainstein, does leaking diplomatic cables endanger innocent people and harm our national security? >> certainly can, and i think

the wikileaks? we saw that there was danger presented to people, and particularly those folks who are over in the war zones to help us out and who then got outed by those documents. who knows what's happened to some of them come but i'm in fear of their lives. >> colonel, if you go, how would you address to our allies, you know, i'm sure they're concerned with problems of our intelligence services, loss of confidence in our ability to keep secrets and such. how would you repair the damage and how would you address it, if you could? >> i'm not sure. i was a young intelligence officer in germany back in the '70s. i had sources look at me and said, you know what? i'm not going to do that for you because i don't want to see my name on the front page of the new york times and "washington post." i now know how they felt the when you had that, that reluctance of sources to believe in the confidence of the united

states, that's a huge blow. it takes you to overcome this. and i don't think it will be overcome until this congress passes legislation which makes sensible accommodation. but i actually agree with -- you have to address both the input as well as the output. we are over classified, and so you try to protect everything, you protect nothing. and by the way, the american people are tired of paying both of these things. we're not doing either thing very well. >> well, i have to tell you that here in your statement, activewear, kgb, unprecedented, consistent access to documents, information that should be classified, you would agree that you think it should've been classified? >> there's a question about the fact that once it was in the book, as was a front page of the new york times, is a valid

exercise of classification. if that's not classified then nothing is. >> so -- >> this affects american security. if olives and utilities stop operating, you have him to thank for it. >> so then you would agree that what you have read it and factor should be classified, therefore they should be a thorough and complete investigation? >> their absolute scheppach as i said in my statement i was here when congress investigate the what bothers me about this is it's become an agency for american secrets to wind up becoming reporters process. that just happened to. >> and i agree that should not be happening at the, i guess at the benefit of the reporters or whomever they are benefiting. but that the detriment of the american people. and as you said, we are vulnerable, too, and this puts our american people at risk. and with that i'm going to yield to my colleague, for, let's see,

attorney, prosecutor. >> also keep that a secret but i think the gentlelady from florida for outing me as a lawyer. mr. wainstein, i want you to assume that you and another highly decorated former prosecutor, former attorney general from the great state of california, were appointed special counsel but you would subpoena the reporter into a subpoena everyone in the situation room, right, before a grand jury? >> well, congress been glad to go back. it so depends on the circumstances. in terms of who would be in the zone of interest. it depends on where the source came from. where the leak came from the entrance of the reporter i think that special counsel i believe, don't go beyond this but i believe they might not be encumbered by the same regulations. so they might be able to go ahead and subpoena the reporter. however, they're going to be

sensitive to the first amendment concerns as well, and i wouldn't be surprised special counsel does try to exhaust other avenues in the investigation before immediately -- >> that leads to my final question, which is this. why would reportedly entitled to any more protection than those in the situation room or someone who worked on the white house staff who may have overheard a? why are we affording -- it's not statutory and common-law is weak as water. why we giving more protection to reporters than you anyway any situation if they were subpoenaed? >> it securely, and this has been on part of both administrations over time, it's a concern with not chilling the free press but it's a recognition that reporters are very important function in our society. and are subpoenaing them in with regularity, they are going to be less energetic and trying to root out information from the government. and reporters, agenda, reporters survey very important function

of disclosing wrongdoing within the government. not necessarily secrets the wrongdoing. it's a balancing act, and that's the reason why those regulations are there. that's the reason for the reluctance to just willy-nilly subpoena reporters in on a regular basis. that being said, i'm and firmly support when the time is right and the circumstances justify it to bring the reporter in, space with indicates whether serious damage to the national security. >> the gentleman's time has expired. gentleman from california, ms. chu. >> thank you, mr. chairman. i'd like to ask a question to professor sales and see what professor vladeck might think about this. and it's a follow-up on the issue of the press. it's to justify some critics it one way to have the flow of classified information is to discourage the press from publishing such information by filing criminal charges or seeking injunctions from courts. however, both of these approaches raise constitutional of concerns as pertains to a

referred king passionate restricting free speech but how do we balance that with the importance of upholding free speech and freedom of the press? >> thank you, congresswoman. if i had an adjective quick probably be a team instead of professor. that is the million dollar question. that are compelling -- on the one hand the first amendment is a guarantee not only of individual rights to speak and receive information, but also a profound civic value in favor of open government debate and democracy but you can't have that without transparency and openness. on the other hand, highly classified and properly classified national security information needs to be kept secret. if it leaks we can't wire top osama bin laden but if it leaks, sources get caught in agreement and cupid how to balance those two different sets of consideration equally vital values pulling in different directions, it's impossible i think to say in the abstract.

i think that question can only result in the context of a specific case. so in the new york times case, the famous pentagon papers case, what kind of information is at stake? it turns out information the classified was a really all that interesting anyway. it was embarrassing but it wasn't operational detail. here's the name of our source in hanoi. it was a history of u.s. involvement in southeast asia. when balanced against the compelling interest in free speech, it's easy to see why information that minimal sensitivity, not no sensitivity but minimal sensitivity, why the balance tilts in favor of the press. but on the that information about the name of the pakistani doctor who assisted us in tracking down osama bin laden and who now is in jail for three decades, as a much more profound harm to national security. so the first amendment equities in the case might look very different. >> professor vladeck? >> i just have to add, i think

mr. wainstein subjected -- suggested the god that is there to protect the press but i things also there to protect the government because i think the more the government goes after the press, the more the government is seen as not exercising care and diligence in pursuing the press in cases like this. them -- i think the government build its credibility for cases along the lines of professor sales describe what might actually really have a strong case by not running to the courthouse for a subpoena every single time there looks like there's national security league. i think that the reality is that balance is impossible to strike with the abstract. the closest the supreme court has come is the accommodation they made in the pentagon's case? the most disfavored, and after the fact prosecutions are a separate issue that will will worry about when we get there. i think it says a lot about the

national security think we have weathered over time, that there's never been a prosecution of a member of the press for violating the espionage act. that we have never had what i think is actually a stronger a testament. >> professor vladeck, i also want to ask about the question of whether we should distinguish between motivations for leaks. there are lots of different reasons why a league could occur. some are motivated by government, whistleblowing and in seeking to raise awareness about an issue or policy. athletes indeed might be motivated by lusciousness. might be doing it because of flattery, according a report. how much consideration should be given to understanding the motivation behind a leak? >> it's a great question. i think it really depends on we see as the harm. if the harm is the disclosure of

the protected information writ large, then i think motivations irrelevant. i think that's part of the problem with the espionage act the way it is currently crafted. that is the premise, that once the information is out there anyway that could harm national security it doesn't matter why it's out there. i think a more carefully tailored statute could very well take into account the kinds we suggest. if the goal was to reveal waste and fraud, or if the goal was to call the attention of americans to an illegal government program, perhaps that would be a way to narrow the focus of the statute. the problem is the way the law is right now there's no room for the. we could have it on the editorial pages but not in the court. >> gentlewoman's time is expired to the gentleman from texas, mr. gohmert. >> thank you, mr. chairman. and we appreciate the witnesses being here. we certainly do. but this department of justice policy, to get approval from the

ag himself, professor, you have said the ag policy protects not only the reporter but also the government, and i keep coming back here, so who is protecting the people? i mean, the people are the ones that are supposed to be protected. how about who's protecting the soldiers? okay, we have the doj policy that protects the ag. we have one, it also protects the report. who's protecting the navy seals? who's protecting the one that gave us the information that got bin laden? i mean, who is protecting those who are helping us? and i'm not getting the impression that we have anybody doing that right now. i know that at this very table we had the attorney general of the united states testified before the full committee, in

his words, though our political dimensions to justice. that goes against everything, every law professor i've ever heard told me and taught me. it goes against everything every democratic party member teacher i had taught me. they knew this country. they knew what founded this country i think they instilled in me, and somebody needs to be watching out for the people. and for the man that is going to do three decades in prison in less we get firm about stepping up and helping him. now, i would just like to know, if we don't have a special prosecutor, who is going to stand up and protect those who are out there protecting us? and that's your think about that, let me just tell you. a father of one of seal team six

members told me after, we'll have to wonder too far how seal team six can't disclose, when we saw the vice president on tv saying something like how about that seal team six? aren't they great? let's hear for them. and father of one of the seal team members told me his daughter-in-law, their family, got pretty instant military protection, because they knew that the vice president had just outed these guys. and then when the president picked that up and starts talking to seal team six, and then when you have the taliban target a helicopter, with nearly two dozen of seal team six members, who was out there protecting them when the vice president and the president out its team six? we know the president can declassify so there'll be no prosecution there. but how about these other cases, is there anybody else that you can propose that would actually

be looking not out for the government, not up for the reporter, but for the people, for those who are trying to protect us other than a special prosecutor? i would really like to hear what is spent i think those are excellent point and that explains why doj created this regulation in the first place. let's go back to first principles. doj recognized that sometimes there can be an conflict of interest with the attorney general and others in the presidential line of command are responsible for investigating -- >> you left this, that's why we had this regulation, are you talk about the that requires the attorney general he believes there are political dimensions to justice, that's what we have to get his permission, is that what you're saying? >> what i'm saying is that because the potential for conflict of interest there's a mechanism now for appointing special counsel outside the normal presidential chair of command, to give them a measure of independence so don't have to get approval from superiors in the justice department or

elsewhere before taking certain investigative steps such as issuing a subpoena to a reporter. i think example from 2003 is a very good example of how this regulation can work in practice. after it was alleged -- >> you're going beyond my question. time is an epic let me also make this point. at the same attorney general has appointed, or asked for an investigation by an inspector general at doj who got a tape of a conversation with a federal agent, and resident acting like a true inspector general or a potential prosecutor, for potential prosecution down the road, she turns it over to the federal agent, you better listen to this before i ask you questions. we've got a real problem in the department of justice, if that's the kind of special investigations we get. in my time is up. i yield back. >> okay, the chair will say that after he recognizes the gentleman from georgia, mr. johnson, he will recognize himself for the last series of

questions. the gentleman from georgia, mr. johnson. >> thank you, mr. chairman. and i'm just wondering where is the moral and dignity and outrage and the like that has been displayed before us this morning, where was that when valerie plame, a cia agent, a covert cia agent was outed by the previous administration? where? where was the indignant outrage? >> will the gentleman yield? i was outraged which it was not prosecuted he should've been and i still hope he will be for outing her. >> reclining my time. i'm glad to know that the was at least one of my colleagues on the other side of the aisle that voiced indignation, i think you

may have been by on that. and there was goes inside there was protective covering that was forced upon the actors in the drama by my colleagues on the other side. but now, you know, we want to be more indignant than i think is required. sometimes with good leaks and sometimes bad leaks, is that correct? imai, abu ghraib was a good leak, and our some leaks that are bad. would you gentlemen generally agree? iac heads shaking, going up and down, so i think that means yes in america, is that correct? >> no. no, sir. >> that's not correct? all right. [inaudible] the tell me there's no such

thing as a good leak spent i guess it depends on where you are sitting think i'm antiwar, free flow of information, free flow of sewage. because they can cost lives. they have done so i think -- >> an economy that could leaks and bad leaks but i don't think you can disagree with that. we really needed to learn about abu ghraib, and so that we could correct what was going on over there. and you know the problem is that, you know, our laws and go to far so as to chill free speech. and i think that's a conflict that we probably need to address your. -- address here. those torture memos written by

deputy assistant attorney general and assistant attorney general, advised the u.s. government that acts widely regarded as torture might be legally permissible under an expansive interpretation of presidential authority. at least one of these memos was leaked to the public while others were obtained through litigation. the memos were widely criticized and legally flawed and morally indefensible. president obama repudiated the opinions in early 2009, the source of the leak for those memos were never found. and we have leaks that have occurred throughout every administration that has served in america. is any particular reason why we shouldn't be so dramatically

concerned about the recent spate of leaks that have occurred in? >> if i could, congressman, you put your finger on issuing -- interesting point whether it could leaks or badly. some people say look, we have to allow some leaks because that's the only way information about wrongdoing within the government is going to get serviced. but that's not the case. i mean, now congress in its wisdom has passed a series of whistleblower protection laws, which say that if you're a whistleblower, in other words, ureters within the government and you see something that looks like waste, fraud, and abuse or criminal misconduct, you can take the information of an in the intelligence community can take it up to the intelligence community and congress but the point being that there is an avenue for servicing that information other than going to the press. so the argument that you need to press leaks in order to allow that is really not the case. >> do the whistleblower laws take precedence over the

espionage statute? >> well, they do, they do can affect, professor vladeck has spoken to this in today's testimony. the are some tension there but the notion is that if you fall as a government employee followed the whistleblower protection procedure and disclose things to the right of people with -- [talking over each other] >> there is a concern to those things have to be sufficiently user-friendly -- spent the gentleman's time has expired. the chair recognizes himself for five minutes for the final questions. first of all, let me point out that in the case of the valerie plame lake, the leak was by -- valerie plame bleak, there was a special counsel appointed, patrick fitzgerald it was the u.s. attorney for the northern district of illinois, and there were some very controversial

ross occasions involved which resulted in some convictions. i think we all know he was convicted. the other thing is, i agree with colonel allard, you know, that there's no such thing as a good leak. athlete is one that you agree with it gets damaged in a national security wrong, and the bad leak is usually disagree with no, we should get him at a national security realm by a leak. and the thing is, if someone is engaged in misconduct, the whistleblower protection act do provide for protection of the whistleblower who sends the information up the chain of command the people who have been cleared, including members of the senate and house permanent select committee on intelligence. now, having said all that, this is a very difficult area to legislate in, and i don't think that we have time left this

congress to be able to deal with the various issues. first, i agree with professor vladeck that the espionage act of 1917 is outdated. you know, the type of espionage that this country faces now is not the type of espionage that german spies and did in the march to world war i. i will point out there were a whole package of laws that woodrow wilson got passed, including a sedition act, which resulted in one of my predecessors as the representative of the fifth district of wisconsin getting excluded from congress twice, getting reelected by a constituency that mr. wilson decided, or the constituency that decided that mr. wilson chose the wrong side to fight for in the first world war, and he spent some time at the sitting member of congress in jail for sedition. so it seems to me that the

history of those kinds of acts mean that we have to update them. i am not for having an official secrets act like occurs in the united kingdom, and for revising standards for classification. and there ought to be some type of almost strict liability on someone who deliberately leaks something that he or she knows to be classified, to someone who does not have a security classification. and, finally, and this is the question i would like to ask, is, and will start with you, mr. wainstein, are there any circumstances where putting a report in jail for publishing a link our permissible under the first amendment? >> i believe so.

i believe actually you can look at the iconic case where the "chicago tribune" actually publish the fact that we've broken the japanese code in 1940 which could've been devastating to our war effort and could result in loss of thousands if not tens of thousands more american life. under certain circumstances you can see that if someone had done it with impunity and knowledge of the consequences and gone ahead and publish it, that's something that a think would be worthy of prosecution and punishment. >> you know, how about prosecution and punishment for those who disclose seal team six fox went out and took out bin laden? is that the sinking? >> it depends on facts and circumstances. i couldn't opine on it because i wouldn't have emerged that i can see what would've done in world war ii but it's hard for me to know whether the fact that seal team six operates in secret, whether it's going to suffer the same damage or not, and also the intent behind the leak. that's a serious leak comes something that should be served

looked at by a prosecutor. >> here we are talking 70 years after the fact of the leak on the japanese codes on midway. perhaps 70 years from now we will be talking in this committee about the leaks on seal team six, which i think emphasizes the fact we do need to update the laws. professor sales? >> if i could, turning to just keep in mind the distinction between punishing and prosecuting newspaper reporter, that's a very different issue from prosecuting and punishing a leak or. to your question as to whether you should put the reporter in jail, that's a bigger step. >> okay. or faster sales, and then my time is already up, but answer question. >> gladly. i think the answer to that question is yes, it depends. there are circumstances in which it certainly would be constitutionally permissible to hold reporters to the same

criminal law standards that every other citizen in the united states is expected to follow. in fact, the supreme court and the pentagon papers case recognize that there may be circumstances in which it would be consistent with the first amendment to apply the terms of the espionage act to reporters that publish classified information. >> thank you very much. i'd like to thank all the witnesses for appearing, you know, i think what is a very interesting hearing that has a lot of interrelated and difficult policy questions involved. i'm, frankly, think in the next congress this committee should take a whack at trying to put something together that updates the law and attempts to balance competing interests and how they interrelate with each other. recognizing the fact that a lease at the beginning of this process everybody will come in and testify against something that is in the law.

but i think it is unacceptable to keep relying on a 1917 act to deal with the issue of leaks, as was the issue of espionage. because espionage now is a lot different than it was in the first world war and. that having been said thank you all for coming and without objection, the hearing is adjourned. [inaudible conversations] >> hit her by then had no plan. when you realize his armies were not coming to his aid, or trying to escape to the west, that's

when he collapsed and when he felt he realized finally it would come to an end and it was a question of suicide. >> historic antony beevor with a new look at the second world war from adolf hitler's rise to power to start chaotic final days. >> his main objective was simply not to be captured alive by the russians. he was afraid of being paraded through moscow in a cage, being ridiculed and all the rest of the. said he was determined to die. >> more with antony beevor sunday at eight on c-span's q&a. >> now, five doctors testify before the senate finance committee to urge lawmakers to replace the sustainable growth rate formula that calculates continued reductions in medicare physician payments. they say replacing the sdr will not be easy and will take time. this is the committee's third round table hearing focused on

medicare physician payments. this is an hour 45 minutes. >> the hearing will come to order. albert einstein once said a great thought begins by seeing something differently, with a shift of the minds eye. today would hold a third round table on medicare physician payments. we have heard from former cms administrator's and from private payers. we are here now to see things through the eyes of those who receive the payments, and provide the care. physicians. every year the flaws of sustainable growth rate lead physicians to for dramatic reductions their medicare payments. next year physicians will face a 27% cut if we don't act.

while congress has intervened to prevent these kinds each year, it is time we develop a permanent solution. we need to repeal sdr and and the annual doc fix ritual. year in and year out uncertainty is not fair to physicians, or the medicare beneficiaries who need access to doctors. when think about new ways for medicare to pay physicians, we must clearly focus on controlled health care spending to physicians can help us find a solution. they are after on the frontlines of health care delivery. 97% of medicare beneficiaries at least once a year. and beneficiaries with chronic conditions see their physician at least monthly. by ordering tests, writing prescriptions and admitting patients to hospitals, physicians are involved up to 80% of total health care

spending. we need physicians to suggest changes to the medicare physician payment system that will spur high quality, high value care. i look to today's panels to offer solutions both in the short-term and long-term the i hope like einstein said, they can help us come up with a great thought as seeing something differently. we need solutions that work for both primary care and specialists. and they need to work for beneficiaries with chronic conditions. after all, these beneficiaries account for two-thirds of total medicare spending. look forward to candor and suggest -- how we can begin to better control our health care spending. mr. hassle be here be here in mo and. he discarded on the floor. and i'd like to introduce the panelists. detaining with my left, we'll hear from dr. hoven,

president-elect of the american medical association. next is dr. glen stream, president of the american academy of family physicians. third will be frank opa, vice chancellor of clinical affairs and professor of surgery with louisiana state university health and science center. fourth, doctor douglas weaver. dr. weaver's vice president and assistant medical director of heart and vascular services at the henry ford health system. and, finally, doctor barbara mcaneny, chief executive officer, new mexico oncology hematology consultants. your written statement will be included in the record. please limit your oral statements to three minutes is where senate's here today. i would like this to be more the

roundtable, that is, after each major statements, we'll have a few questions, and i'd like us to kind of interchange back and forth. if you want to say something, pipe up and say it. that goes for both our panelists as well as for senators. so you start, dr. hoven. were very happy to see you here, happy to have your. >> thank you, chairman and members of the committee for ending this important roundtable discussion. as you know i am artis uncompress a legitimate medical association and an internal medicine and infectious disease specialist in lexington, kentucky. we all know that the s/crs failed. it must be repealed and replaced with alternative payment and delivery models support high quality and high value care. as we move forward, two doctors are critical. first, physician practices widely very and the development and innovation of private and

delivery models are proceeding at different paces. a large multispecialty practice is better positioned to implement broadscale innovations than is a small rural practice. flexibility and in many of multiple solutions are needed on a rolling basis. and sadly, i will turn -- these models months out across medicare. should share in the savings. currently additional physician services that prevent costly medical care drives deeper cuts under the sgr. this incentive structure has to change. physicians have already begun transitioning into alternative payment and delivery models. this includes, for example, 164 medicare accountable care organizations, and the center for medicare and medicaid innovation is testing many new models.

many innovations are also been conducted in the private sector as the committee heard at its june round table. they may strong support these initiatives helping physician with the transition. for example, our ama convened physician consortium for performance improvement has developed measures relates to outcomes and overuse of care and is expanding its work in this area. first, congress should require cms and innovation center to offer opportunities for physicians to grow in new models on a rolling basis. actresses can then plan for needed changes and growing as they become ready. this will increase physician participation in new models, and significantly aid the transition for small solo and rural practices. second, congress should require cms to modernize its medicare data system due to see him as his antiquated system providing

physicians with actionable, real-time data to guide decision-making has been difficult. physician access to such time and relevant data was a key element behind the success of the private sector model discussed in the previous june round table. third, congress should provide medicare funding to cms a quality measure development, testing and maintenance and for measure review and endorsement. this is critical to ensure that meaningful and up-to-date measures are available for federal quality programs. the ama is either to continue our work with the committee to transition to a new stable system that strengthens medicare. thank you. >> thank you, dr. hoven. >> thank you for inviting the american academy of family physicians to state our views on physician payment policy. we believe health care in the united states is inefficient and delivers lower quality care, largely because it undervalues primary care. we are convinced that no single

alternative payment method will rebuild primary care. we need a combination of methods. afp promotes pc image supported by blended payment system that includes need for server, care management fee, and the quality improvement payment. we advocate for this reinvigoration of primary care because we know it works to improve health care and restraint cause in the long run. the evidence for this is a community rapidly and her statement provide several examples. finest a pc image programs across the nation are compelling, demonstrate successful improving quality investing in health care cost. earlier this year, we send recommendations to the acting administrator of cms. these were the of a sponsored task force on primary-care valuation. the key recommendation is that door to build a system of care that will be consistently more efficient and produce better health when you to pay primary care differently and better. we called your attention the medicare physician payment

innovation act, h.r. 5707, introduced by schwartz and others begin makes a noticeable step towards recognizing this critical need to pay primary care differently. the cms innovation center has several programs testing systems that support primary care. for example, the primary care, the conference of primary care initiative include several health plans injuries markets will offer a per patient per month. ordinations fee for primary care physicians whose practices are effectively patient-centered medical home's. the primary care extension service program administered by the agency for health care research and quality deserves your attention. currently without funding this program is designed to disseminate up-to-date information about evidence-based therapies and techniques to small practices. we strongly recommend congress on primary care extension of service program. asked for his continued support of the primary care instance of payment, pci, for tempers to

medicare bonus payment to primary care physicians and providers for certain primary care services. the commonwealth fund recently published a study that the pc ip if made permanent would yield more than six fold annual returns of lower medicare costs. the net result according to this study would be a drop in medicare costs of nearly 2%. we all want the same thing. better health care at less cost. there's a proven way to go along way toward toward achieving that outcome, invest in primary care. we have ample evidence that doing so will not increase the overall cost of care per individual per year. thank you for your commitment to health of this nation and families physicians are eager to assist you in making the differences we need. >> thank you. next, dr. opelka. spent chairman baucus and senator, thank you very much for this opportunity, good morning to you today. i come to you just become a behalf of improving the care for the surgical patients and inspiring quality amongst surgeons.

so on behalf of the american college of surgeons, there's a couple key points i would like to make and share with you and the brief. we have several programs and initiatives that we've been working on to inspire only to improve the quality of care we believe that that actually helps reduce the cost of health care today, by reducing things like surgical site infections, read nations and complications that patients suffer. there are tiki programs that are like to bring to your attention. one in the short term and one in the long-term the short-term approach is to look at the various clinical registries that we've developed over the years, and those go back 10, 15 years worth of work where we have accumulated millions of data points on patients that drive quality improvement. these registries are cancer registry when we have over 11 million lives that we actually track the outcome. the trial registry, and to perhaps focus more explicitly today on the national surgery quality improvement registry. that's a registry that began in

the g8, oh, some 15 years ago and now today is in over 500 hospitals. it's driving quality improvement, reducing patient complications and reducing cost related to those complications. we have work with cms and it's time to improve that work to bring it to the next level that cms is working on so we can strengthen surgical care and to prove the quality of care across the entire country. we like to spend the most 500 hospitals to every hospital that has surgical care. a long-term view, the long-term point of it like to make is actually how do we replace the sgr? we've been working on a proposal that ties together all these value initiatives that we have been working with cms on, all the value programs. into a value-based update using targets of improvement, targets of improvement in cancer care, targets of improve and trauma care, and targets in cardiology the targets of them from end chronic and prevention care. targets of improve in the world

care. focusing those as the targets for updates, bringing physicians and hospitals in the limit on a set of targets that actually replaces the sgr with something that we value, improving the quality of care and reducing the cost related to the bad care, to overuse of care, to unsafe care, to poor quality of care. so we think there's an opportunity to further explore this as a value-based update to replace the sgr within the context and the framework that we are currently using throughout all of our programs, both public and private. ..

>> in the system. it is badly needed right now. the current uncertainty around medicare physician payments, around the aca and its initiatives is seriously impeding progress by physicians and hospitals towards delivery and payment reforms. the college has had several decades of experience in developing and applying quality improvement tools including produceing clinical practice guidelines for treatment of common cardiac diseases which allows physicians to better apply the right tests, diagnostic test anything cardiac procedures. and then on clinical registries, they then get it back and are able to benchmark it against the whole nation as well as locally.

we believe that broader use of these tools will improve quality, will produce better patient outcomes and will lower costs. let me tell you some of the lessons we have learned in these years. number one, data is key. efforts to improve quality and efficiency must be grounded in the use of the best scientific evidence available. the collection of robust clinical data, measurement and feedback to doctors on performance. doctors are data driven. they have competed throughout their entire training to be the best, and they respond to credible data. and particularly, that that is produced by their specialty to societies that have identified particular problems that they feel need to be improved. number two, flexibility is necessary. new payment models must be crafted with collaboration of of clinicians and payers. one size does not fit all.

we applaud the beginning efforts to reward care coordination, but cms needs to seek out local solutions that increase value and reduce costs. third, incentives must be aligned throughout the entire delivery system to include the payer, the primary care physician, the specialist, the hospital and the skilled nursing facility. currently, we are too often competing with each other instead of being aligned. payers are trying to reduce costs, hospitals are trying to fill bedses, and -- beds, and the physician is insuring the patient gets the highest quality care at the lowest cost if the current system is revised to incent this approach. using an appropriate amount of resources is essential to solving the medicare spending crisis. the college urges congress to incentivize a greater expansion of and use of quality and

utelyization tools such as ours. i look forward to our dialogue. >> thank you, sir. >> thank you, chairman baucus, thank you for the opportunity to participate in this important round table discussion. my name is barbara mcaneny, and i practice in new mexico. i am here on behalf of the american society of oncology, asco to encourage high quality, high valued care for individuals with cancer. we hope that congress will replace the sgr and soon. the sgr has created great instability in our practices and is eroding a very effective network of care. asco's vision is that of a fair and responsible system that recognizes that many cognitive

services including end-of-life counseling are critical to treating patients with cancer. any new payment service must preserve quality, enhance access to care and, first, do no harm. quality for cancer patients in providing cart diagnoses, therapy delivered safely and a strong support system for the human needs of the patients and the families. asco has already developed a quality program in which thousands of oncologists already participate voluntarily. we call it the quality oncology practice initiative. i know from experience the beneficial effect it has had in my own practice. it is frustrating, however, that i also have to report through medicare's less practice-enhancing program. we belief leveraging would be an

immediate first step to promote quality and efficiency while decreasing the burden on oncologists. as you move toward transformation of cancer care payment and delivery. policies that have the effect of dishasn'ting community cancer care could exaggerate existing disparities. cancer care is generally delivered in the patient's home community, and cancer doctors have developed a sophisticated infrastructure that allows us to administer dangerous and toxic therapies safely while allowing patients to remain at home with the people they love. therefore, we would like to emphasize that new oncology models must be tested through pilot programs that reflect the diverse populations that we serve before they are generally implemented. any change in the payment system has the potential for unintended consequences for a very

vulnerable population. however, oncologists are already involved in many pilot projects that test new payment mechanisms which could help control costs. i'm a recipient of a grant to test the model based on the medical home concept and bundled patients. my project involves seven private practices of oncology from maine to new mexico. we can save money while providing better held and health care. -- health and health. asco stands ready to assist you as you move forward. i'm happy to answer any questions. >> thank you. just one question. i have several. one is since physicians are so involved with such a large percentage of payments, health care payments in our country, seems to me that maybe there's a little bit of -- i don't like

this word "disconnect," but between sgr which is physicians only and yet the physicians are so involved in the health care payments that are made elsewhere in the system, perhaps as we look at sgr there might be some way where it's, where physicians are involved, reimbursed in a way that helps involve them in choosing the care given to patients more holistically. currently, people say we're too stove piped. [laughter] and one stove pipe to some degree is sgr. >> uh-huh. >> right. >> but any thoughts you might have on how we sort of collapse some of these pipes, and especially the role of physicians because physicians are so heavily involved. i think the figure i have, about 80% of health care dollars are

related to decisions made by physicians. your thoughts on that. anyone who may want to pipe up. >> i'll start. thank you for that question because i think that's something we all chat about on a regular basis, and i think as we start looking for value within the system, it will be the physicians and those practices that are looking at the models of care that are being use with the, be they in primary care models, be they in bundled payments, wherever they are we're going to be looking constantly at the value of each of those delivery reform issues going forward. we have to be accountable z ago physicians -- as physicians for making sure we're getting the job done and for the outcomes and the quality of the work that is being done, and the new models that are being tested that are, you know, on the road right now being looked at are going to give us that information because up to now we've not had that information.

so it's are important going forward that we look at a variety of models, that we recognize the importance of the practice environment be it a small practice, a large integrated group or what have you. it's going to be very important that we look at all of those and -- >> and all this talk about models. what models are you talking about? >> well, we're talking about the primary care medical home model, for example. glenn could speak to that as well. bundled payments, again, another model, and frank could probably speak to that. so these are out there in play right now as we are talking. >> we know whether, which of these models might bear fruit? which ones work? >> i would speak to the cpci, currently recruiting practices currently through the innovation center, and its goal is to align the payment methodology to support the patient-centered medical home so that payment for support is continued fee for service, the care coordination fee that i mentioned that

provides payment not in the fee for service system that has to do with coordinating care. but the answer to your question, senator, is the shared savings component of that model breaks down those silos, and there's potential for shared savings from reducing hospitalizations, reducing er visits, reducing complications of chronic illness that result in expense like dialysis for diabetic patients. if you only look at the shared savings based on the physician services, there's too little skin in the game for the physician. but if the shared savings model looks across the silos, then there's a win/win for the physicians making the effort that the medical home -- >> so you think there's potentialsome. >> absolutely. it's a game changer. >> yeah. >> mr. chairman? >> mr. chairman, isn't accountable care organizations, isn't that to address this? that we put in the health care bill? >> partly, yeah. >> partly. but at a more global level.

that's at a system wide, integrated delivery system, a large specialty clinic, that type of model. i'm talking down at the level of supporting the primary care that's necessary for high functioning system whether it's in an aco or separate. >> mr. chairman? i think what both of the doctors were talking about is the independence at home model that we got in the affordable care act. i mean, you all and the onologist are making a point that most of the medical care bill today goes for the chronically ill. and through approaches like independence at home, and we've seen these demonstration sites begin, and i was very pleased it was in the ama's testimony, we could take a much bigger population, number one, leave the patients in a position to be happier as the oncologist noted and start tiering the payment system to reward those kind of efforts. and i really appreciate what the

ama has said, and why don't we hear from the oncologist as well. >> thank you, senators. i do have the opportunity to prove a model with this innovation center grant which allows physicians to control those things that we really can take control over. there are a lot of parts of health care, the cost of drugs that we have no ability to manage. but we can manage the site of service, and we all know that it is a lot less expensive to treat people in our offices than it is in emergency departments in hospitals. and in this grant that we wrote, we used data, and i agree that data is key from our own practice showing how much money we could save medicare in one small practice in new mexico by keeping people in the office, aggressively managing the disease and the side effects of treatment so that we keep people out of the hospital, we keep them healthier, and we keep them out of emergency departments, and we can use less imaging.

those are things doctors can control. so with six other practices across the country, we're going to demonstrate that if we create ourselves as an oncology medical home, that we're ready to accept a bundled payment. give us a payment that will allow us to take care of these patients. it will cost more in the outpatient arena, but the savings are far made up for when we keep people healthier. we think we can generate true savings in that manner and better care. >> mr. chairman? um, i wonder, dr. weaver, could you talk a little bit about -- i know michigan, henry ford is part of one of the eight multipayer, pri may care -- >> yeah. and i wanted to give a couple examples where we might have savings, and that is one of the things that cms is starting to do which i must applaud and dr. stream alludes to this is paying for some care management. that means supporting the

infrastructure which may be nurses, medical assistants, part-time pharmacists, really not doctor stuff. this is stuff that keeps people on the right, on their right care plan as well as keeps them out of the hospital. in michigan the blues along with cms and all other payers have rewarded the physicians in primary care an extra $7-$9 per member, per month to do care management. they must meet certain quality standards, they must meet certain utization saturdays to qualify. the state thinks the dual eligible expenses to the state will drop $38 million. so that up front investment to give more management has helped. i'll give another example. the blues in michigan fund cardiac data registries, and the only thing that they suggest,

say is that you must submit your data, and you must meet quarterly to discuss the data among all of your hospitals. it's led to huge reductions in complications and improvements. they did the same thing for bare yacht rick surgery, and they got together and made a database, they got the data back, and complications from that surgery have dropped 30%, and readmissions for patients who had bar -- bare yacht rick surgery have dropped. so tell you again, doctors are data driven. if you give them the infrastructure so that they have clinical data that they believe is credible, they will respond in ways to improve the quality of their patients. they all want to provide the best quality care. >> just as a follow up, though, dr. weaver, and maybe for anyone, we have this quality reporting initiative we've set

up under medicare, and we only have about a third of the physicians right now who are actually using it. and in 2015 it goes from an incentive to a penalty. how do we, you know, what are the barriers, why aren't more physicians doing it since we are talking about a day-driven system? -- data-driven system? >> well, let me respond to that, at least my feeling, and that is cms is currently promoting a lot more transparency with data, but readmission rates, smoking cessation and these things, they're very, very crude measures, and they don't really accurately tell you whether you have a good doctor, a great doctor or someone that's -- >> well, what should they report? >> i think they want, as others have suggested, they want to report the things they think are important and have developed within their own specialties that say these are the problems, here's how we measure them, give us the data back so they can benchmark, and they will

improve. >> if i might respond as well because in oncology for years before this came up developed a practice, what could we do, what could we measure so that we could improve what we do. this costs money for our practices to participate in, but over thousands of oncologists have already participated, willingly spending that money to do a better job. and because we can craft measures that really are pertinent to what we do every day and when we complete one measure we can say, okay, everybody's got that. let's move on to the next thing, let's do the next step. and each of the specialties can do that to create their own quality system instead of having a broad brush generic measure. >> as well as it'll be more flexible. i think about, and i'm sure all of you have heard about the time to treatment and people with heart attack. well, cardiology put together a program many years ago, and people moved from hitting at the 50% to get it in that right time

period to, essentially, everywhere. when you want to move on after that, you know? you've got that one done. and you can't regulate that. you've got to allow the specialty to see where are the voids right now and incent physicians to participate and make sure there's infrastructure in order to collect this kind of credible clinical data, and you will have a much more reactive and fast turn around in improving quality. >> one of the things we tried to put in that affordable care act was a focus on reporting about outcomes. >> uh-huh. >> because it seems to me that, you know, sort of underlying or overarching data set that should sort of span all of the various specialties would be, you know, how do we get accurate reporting on outcomes for patients?

is that realistic? i mean, is there a way for someone to, for cms, the government to say, okay, here's what we want reported on that relates to how well people are doing after they get this treatment? dr. opelka? >> if i could, thank you very much for that question. the registry programs are risk-adjusted outcomes reporting, and it's very effective. so, for example, in the field of general surgery and vascular surgery in over 500 hospitals, we collect roughly 100-130 data elements over 30 day on a patient's care. that data then churns out into a risk-adjusted, expected outcome, and we measure the actual outcome against the expected. that's very meaningful to the delivery system, and these are team-based care systems. it's not just the surgeon, it's

the nurses, it's primary care, it's linking to my colleague here. i don't have good surgical outcomes unless i've got a good patient to work with to begin with anyway. so i can measure what are the better drivers for better care. we've actually been working with cms who really i applaud their efforts. we had to start somewhere, and we started with measures that were less than perfect, but it's moved us all. and data's a drug, and we're addicted to it. we can't get enough data, and we want meaningful, actionable data. so we partnered with cms and started to show them how the current data sets they have don't get them the answer they want, and we're showing them more meaningful data seat seths. and -- sets. and where we need help is how do we expand this structure? how do we link this beyond surgery into surgery and primary

care across a patient continuum? so it isn't about how well i took someone's colon cancer out, but more about how well the 18 months of critical cancer care drove the best outcome for that quality. and we're closer today than we ever were, but there's a lot of things we need to do, some infrastructure components we need to build upon and build the business models into it so everyone is aligned and we all have shared incentives. we're very excited about going forward, and we actually are looking forward to taking that next step. >> dr. stream? >> just like i don't think there's a single payment solution across all specialties because there's unique differences in the question about quality, the issue for primary care is often about treatment of chronic illness, and the payback time to have good outcomes might be 5, 10, 15 years. my good diabetic management of my patient today is to avoid them being on dialysis ten years from now. instead, these quality measures

use proxy, short-term measures, have you had your feet checked, your eye examination. so we end up using these proxy measures that aren't truly outcome measures because the timeline is too long. and then you get into a debate about are the proxy measures the right measures. so that's what dr. hoven's point about good measures, we want to make sure they reflect reality, the things we should be working to improve to get those eventual outcomes. >> go ahead, john. >> i'm sorry, maria had her hand up. >> go ahead. senator cantwell -- >> follow up i, mr. chairman -- [inaudible] on quality and outcome -- [inaudible] >> i don't know that your microphone's on, maria. >> is that better? >> yep. >> okay, great. yeah, the light doesn't -- i

was, you were talking about, obviously, quality and outcomes, and one of the things in the affordable care act is moving to this value-based modifier system. and so, i mean, when you look at what, you know, some of the estimates are on medicare, $120 billion wasted a year due to unnecessary tests and procedures. so won't, um, i mean, haven't we proven that we can deliver better care at lore costs, and now it's just about figuring out how to implement that system so that people are, as you were saying, incentivized to do the right thing as oppose today the -- >> yeah, i can jump in on this if i might. this is a good first step. i think, clearly, um, you know, the concepts are in there. of what we've got to now do is look at the methodology, be sure that the methodology is appropriate for what we want to get accomplished and that it gets us to a good place. but i do think it is a good first step.

we're in the process of reviewing all that, it just came out in the new rule, so i think we will be getting back to you on that, but i do believe it is a good first step. >> let me make a couple of comments, senator cantwell, and that is about the value base. i personally am very worried about the way it is structured. it plans to use pqrs measures, prevention measures as well as look at cost that is regional. and i have to tell you that what people have said today is you need meaningful, credible data in order to do any adjustment for what the outcome or cost should be. ilyed in seattle. when i moved -- i lived in seattle. when i moved to detroit, i had never seen a population like this before. they would never get adjusted for it adequately with administrative data. you've got a population in which 25% of people graduated from high school. they're working just to stay alive.

you have people that have burned out their kidneys with long standing hypertension when they're age 30, 35 years old. i never saw that in seattle. they both have heart failure, but they are very different kinds of people. and so taking crude measures to try to adjust severity and adjust payments would be a huge mistake in my mind. and so the value, if you will, of some of these specialty things is that people literally spend many, many, many hours trying to figure out what is going to be legitimate here when you do risk adjustment, and what is not. and they are the experts, they understand the decide. and you have to be very -- they understand the disease. and you have to be very careful. the other thing the cardiologists have been using is appropriate use criteria. a panel gets together including a panel of payers and the

physicians and ore experts -- other educate perts, and they look at a lot of conditions for which we really don't have solid guidelines, the science isn't there. and they say this seems to be reasonable knowing what we know, this is not is so reasonable. a year ago we started providing feedback to the hospitals on the use of stenting. and there were a proportion of cases in which they were considered to be unnecessary or inappropriate. now, we never expect that number to be zero because there are individual differences and so on, but you ought to be pretty close to what the international benchmarks are for these numbers. so we have seen since we started producing this a decline in that number. and, in fact, if you look, there's been a decline in stenting procedures the the last year, two years in the u.s., and it's predicted to go further. so providing credible data,

giving it back to those docs will change the way in which they behave. >> i certainly believe in credible data, and i don't know, mr. stream, dr. stream, if you want to weigh in on this. i don't, i mean, i think of spokane, i think it's a great place, and i certainly think the population with a city title of near perfect is good symbolism, but i don't know if we're talking about healthier populations or healthier practices. and i certainly think we have healthier practices in the northwest, rewarding things that have driven down costs and produced better outcomes. and frankly, people in our region are very frustrated that we deliver care that way and get less reimbursement and less people want to go practice there. and people can practice somewhere elsewhere they can run up the bill to the american taxpayer. and my constituents, just to

assume that they're healthier and that someplace else is sicker and we should just pay more is not, not going to work. and so i'm glad we're moving down the track, and i guess we're just going to have to focus on what good data is. so if you have any comment on that, dr. stream, and also on what we need to do to encourage graduate medical education, if we're looking at the numbers that we're looking at to get medical homes and primary care, we have a big gap right now in encouraging primary care physicians, and what do we need to do for graduate medical education to really get that work force plugged in? >> so several questions in there. certainly, we need good data about all of these things, care practices, but populations do differ somewhat. inner city populations with more poverty, those social determinants have a huge impact on the health of our public, so we need good data about both so that if we're making risk

adjustments, they're true and accurate. you know, i can speak to value-based purchasing as not necessarily a program, but as a concept that applies to primary care, and we absolutely have to build a stronger primary care foundation if we're going to have any success improving the quality and cost effectiveness of our health care system. and that really is this blended payment model that supports the patient-centered medical home model, decreasing in time of importance of fee for service, having a meaningful care management fee that does this prevention and wellness and then the piece that gets to your question is that shared savings piece could include both quality measures and appropriate use efficiency sort of criteria. but that would be that third leg of the stool about payment to support primary care. but you're also right, and i appreciate you teeing it up about the work force issue. and i would emphasize decisions made that influence specialty

payment have a huge influence on specialty selection of our medical students and currently a strong disincentive to choose primary care. and we have to narrow that income gap between primary care physicians and median subspecialty income to have the impact we want. >> but for what everybody's been talking about, do we have the work force now to implement the strategy we're talking about? >> absolutely not. >> right. thank you. >> if i could follow up on that, senator. the whole issue of medical school education, graduate medical education we at the ama have been looking at this critically, and this is a problem which preceded current issues surrounding payment and delivery. this isn't new. looking at spots for graduate medical education, changing the curriculum in medical schools, making sure that primary care is being taught and rendered in places not necessarily traditional for primary care education, that we're open and

expanding the venues in which we can do the education. so all of these things are on the table as we talk about it. it takes 7-10 years to grow a doctor, and we've got to get those slots filled out. we've got to have more funding towards that as well. and it's one of the imperatives, it's part of this whole discussion. >> thank you. >> mr. chairman? >> senator kyl. >> thank you very much. when i first started law school, one of the things that was impressed upon me was the difference between a profession and a business. and it was all about the individual client. you had to give your absolute commitment to that client whether the client could pay or not and regardless of their idiosyncrasies and so on. and i began to practice insurance defense work and found it was true in spades of the medical profession. data is collected to provide information about averages, but every patient is an individual, and i know that all of you are committed to treating every one

of your patients as an individual. the rub comes when you're treating patients that are paid for by the united states government under a set formula of one kind or another. and my question to you is in devising -- and we recognize that the formulas, the pay scales, however they're going to become embedded in a replacement for sgr will need to be developed by the proo possessions themselves -- professions themselves, to take into account individualized circumstances including regional circumstances in the country as senator cantwell was just pointing out. but my question is, is sufficient attention being given to the requirement that the care really be patient centered? when the patient walks in the door, i have one obligation and

one obligation only, to take care of that patient to the best of my professional ability. at the end of the day, i've got to get paid. but not to have the payment drive the care. and then a second sort of related question is, when we deal with this because of our unique budget requirements here in the congress, we have to set a ten-year plan out. and it's very hard for us to know whether the eighth, ninth and tenth year are going to work with what you're recommending for us in year one, two and three and so on. and just for our own purpose, i wonder if you have any suggestions for us. and if you want to think about this and get the information to the chairman later, how we would devise something that we think is going to work over a shorter period of time. but we really don't know over a longer period of time. that was one of the problems with sgr to begin with. thank you.

>> anybody? >> mr. chairman, thank you. and, senator kyl, thank you for the question. two responses to this, and in my mind where we've begun with performance measurement and valuing services is still in the silos of care. it sits in the various, different performance programs, and it's not as patient centric as it could be. and as we start to spread performance measurement across bundles and acos and we look at population-based performance, how well we're taking care in a continuum and we start sharing the attribution, it becomes more patient centric. so where we are three or four years ago when we started really pushing hard on physician performance measurement was just at the beginning. how do we begin to measure individual physicians and reward them, a hospital and reward them? we've grown over the last couple of years to start to understand some of the points made by my colleagues at this table, and

from input from all stakeholders, from the purchaser groups, from the private payers, from patients who are helping us look at this and say, well, this is a better measure because it really is more meaningful to the patient. and as we move to that, it doesn't necessarily fit within the payment structures or silos of payment. so we have to look at alternative payments which is to my second point, and that's where we propose replacing the sgr with a value-based update which says let's pick a target. we want to improve cardiac care this way, and it's not just the cardiologist, it's the primary care, it's the cardiac surgeons, it's anesthesia, pulmonary, everyone who touches that patient will be involved in incentives that that's the target we want to get to, and let's drive to that target. so i think we're becoming more patient-centered. we're not quite there yet, but we think replacing the sgr with something that actually is

patient-driven targets, does it get to eight to ten years? i hope so, but it may take us eight to ten years to even get to that point. will it be something else 12 years from now? we're always evolving this, so i'm not going to say this is forever. >> that's a fascinating question. anybody want to respond to that? yes. >> well, i'd like to respond to the patient-centered part. i agree completely when a physician is in an examination room with a patient, their best interest should be the highest priority. making sure that that patient gets the treatment that they need that will improve their health, improve their quality of life. but what we're finding, and it goes to senator cantwell's comment is that we know our system currently provides care that people don't benefit from, and my responsibility as someone's physician is to make sure they get the care that they need, b but they don't get care that doesn't enhance their

health. and so, and that's where i think -- and it doesn't give an easy solution to the sgr problem, but it is a potential for cost savings, to eliminate care that does not contribute to people's health. and that's an area where dr. weaver was mentioning stenting data and that the power of that information is physicians want to get a +in their scores, so when they're comparing to one another, that's another aspect of professionalism, is excellence in your profession. >> doctor? >> thank you, senator. senator kyl, i think one of the answers to your question about why is the care not as patient-centric as it could be is in the silos of payment that we pay by area of the country so that areas such as the, our area in the west, new mexico and arizona, have lower payment rates for the same service. there's differentials in the

site of service, the same service in a different setting, a hospital, physician offices paid far differently. if we had the payment more follow the patient, that would do a lot to go patient centric in terms of how we focus on that care. and i think breaking down some of those silos so that the money can follow where the patient is best treated will allow us to move patients from more expensive sites of service to less expensive sites of service and make that a very valuable part for health care. i'm also very concerned about the whole work force issue. asco, american society of clinical on colings, did a study a number of years ago looking at the number of oncologists we are currently producing versus the number we're going to need in the next decade, and about a third of cancer patients may never be able to see an oncologist because there simply aren't enough of us.

so we are working hard on trying to create new teamwork methods of care so we can get the expertise we need out to those patients. i think the most expensive drug we give someone is one that doesn't work. we're hoping that with personalized medicine and with very good techniques of figuring out what will work on a given patient's cancer, that we'll be able to avoid a lot of those unnecessary processes that you're talking about. doctors are really interested in doing that. it doesn't benefit us at all to go to a patient and say, i'm sorry, this didn't help. >> senator hatch. >> in my earlier life i was a medical liability defense lawyer, defending doctors, hospitals, nurses, health care organizations. and we used to tell doctors you need to overdo everything. you need to make sure that that history of that patient shows that you went way beyond the standard of practice in the community. so that if you ever did get

sued, you would at least say we went way beyond what really the average doctor would have done. in the process i became convinced that we, that unnecessary defensive medicine -- we all want necessary defensive medicine, but unnecessary defensive medicine is extremely costly. and yet if i was a doctor today, i'd be doing exactly what my advice was 37 years ago. and really doing everything i possibly can. i don't expect you to opine on what it's costing the health care profession just from unnecessary defensive medicine, but it's a whopping amount of money, a lot more than the cbo says. i remember the cbo said 10 billion a year, but i think it's approaching 2-300 billion a year when you consider how important

health care is in our lives today. and a lot of that is because we just can't seem in the congress to resolve this issue so that doctors can handle it. now, i would like you to give some thought, i've really enjoyed your comments here today, but i'd like each of you to give some thought and maybe even send in writing to us what we might do. you got democrats who don't want to defend their personal injury lawyers, republicans who don't think there's ever been any reason to sue for medical liability. not many, but there's some. [laughter] and you've got the two extremes, in other words, and it'd be wonderful for us to get especially from the american medical association but from each of your groups just what you think is really unnecessarily costing our society because of medical liability concerns. now, i'd like to have that, have you take the time and send that to me, if you will, and

certainly to the committee. let me just ask one other question because interestingly, we hear about the death of the private practice today. indeed, many experts who track the health sector have raised concerns about the uptick in hospital acquisitions of private practices. and this is for any of you who care to answer it. do you believe acquisitions are occurring at a greater rate, and if so, what is causing the trend and is it hikely to continue, and -- likely to continue, and what are the implications for the cost of care in the medicare programs? yes, ma'am. >> senator, senator hatch, i think you've hit the nail right on the head. i know that in 2010 about a quarter of oncology practices sold to the hospitals, and i think the statistics were closer to 50% of cardiology practices. part of that, again, is the

economics under the physician fee schedule we're paid about two-thirds of what the same service is paid for under the hospital outpatient perspective payment system. so a hospital outpatient department can be paid significantly more for the same service. and i think that we will discover in our work force study we also looked at the volume of patient care given by a hospital-employed physician versus a small business private practice physician. there was about 60%. at a time when we have a shortage, i'm not sure we can afford that. i'm not sure we can afford to pay more for the same service in this time of escalating health care costs. i think we really need to look at very efficient mechanisms to rearrange how we deliver that care and go for the most cost effective site of service. >> be if i could jump in on that as well, i think we have to be careful, though, because

hospitals along with physicians, if they are collaborating together to do improved outcomes, cut the cost. if what thai got in place -- what they've got in place is working. we have got to look at that side of the coin as well, so i think this must be a balanced discussion going forward. we have great concerns about this, and i would agree with dr. mcaneny, but we must look at the balance of this because there are some systems out there working to make it better for physicians and hospitals and patients, most importantly, to get the job done. >> i just, um, add to what my colleague said here. there's been a major change in cardiology. it isn't everywhere, but in indiana 95% of the cardiologists work for some health system or hospital. and there's been a great move. and as best we can measure a lot of it is due to just the uncertainty right now in

finances, you know? it's like if you have a practice and these are small businesses, what are you going to do at the end of the year if there's a huge change in physician payments? i saw people in the detroit area, some physician practices, for instance, when we had a delay in kicking sgr down the road, and there was nothing coming from medicare, it was either -- it was, like, they were worried about paying their staff. they didn't want to lay their staff off whose husbands may already not have a job and that sort of thing. and they went bare for weeks. and that uncertainty says maybe i should do something with a little more security to it and be part of a larger health care systems. so if you want to integrate,

that's a good way to do it, just create a lot of uncertainty. on the other hand, as dr. hoven points out, when you have doctors and hospitals working closely together -- because now you've solved the the alignment problem, they will align and try to create better value. >> what do we do? we've got an sgr problem, basically. it's not very far off. and we've got to examine it. do we just extend it again another year? if we don't, what changes do you suggest? i mean, these are all great ideas, it's fascinating, it's very stimulating, this discussion, but we've got a practical question looming, and that is what do we do about all this in the short term as well as long term? to me, senator kyl asked an interesting question about individualized treatment.

personalized medicine, all this fancy stuff you read about in the papers, the genome sequencing, dna sequencing and especially oncology and a very interesting article a few days ago about a lady who got a very fancy treatment, it was a specialized cancer treatment, unique cancer and, gosh, and then she died two weeks later. but then there's stem cell research developments that can occur over time. things are just changing so quickly. so how in the world -- a, what should we do in the short term, and what should we do in the long term? what should congress do in the short term and long term as we deal with this practical problem of extending sgr? >> mr. chairman, we've, um, included in our testimony the first bit, the foundational

elements from our thoughts about replacing the sgr now. in terms of how to pay for it, i can't go there. >> unfortunately, we have to go there. [laughter] >> yes, sir. but that's a higher authority than i can. so when i look at this, though, what do we replace this within this entire context of this discussion we're having today, we're all moving from the volume world to the value world. and we think that's the replacement. and we think it's a patient-centered approach that should be taken. we think you set the updates by setting targets based on value. did we achieve this value? and it's a patient-centered target. what do we need to do in the 10, 15, 100 measures that we have in surgical care, what do we need to focus on for those patients as targets that then drive an update? and those have to have downside and upside. what do we do in chronic and prevention care that we want to drive improvement with my

colleagues in primary care? what are those targets? what do we do across all of cardiac care and set targets? we've got hundreds of measures today, and it's -- if you look at the national quality forum's measured library, there's over 800 measures in there. which ones are critical? which ones are going to be meaningful and actionable and are meaningful enough to you as targets that this is better quality care, safer care and more affordable care? and let's set those out at targets and then award the sgr target replacing it with a value-based target and make it a patient-centric target. that's our proposal, in short. and what do we need to do in the short run with that? some initial pilot modeling and how we actually begin it. we're building the alliances across the specialties of medicine to do this, and then how do we roll it out and phase it in. and we have a four to five-year

phase-in plan that we think can be implemented with some roll-your-sleeve-up work. >> are these for surgeons or other specialties as well? >> it's for the patients. >> all patients and all care? >> it includes rural programs, chronic care prevention programs, it includes -- instead of being surgery-related, it's patient centered. what is the digest ive disease -- digestive disease program that we need to improve? what are cancer programs which is not just oncology, it's surgeons and primary care. you can't get away from primary care, they're tied to every one of us. how do we set targets that actually we can go out to the community at large and say we as a country have this problem in this area, and we're going to set a target to improve it. >> dr. weaver? >> just a couple comments, and i think what you've heard from all of us this morning, as unfortunately these improvements

are going to be iterative, they're going to take time. they are not going to be there on january 1st. i'll give you an example, though, of something that did happen on january 1st of this year in southeast michigan, and that is the larger employers changed patient deductibles from very modest numbers to $3 or $4,000 per person. i can tell you that the amount of health care these people are getting dropped dramatically. people's co-pays went up, they don't come to see their doctors, they decide when their going to -- when they're going to see the doctor, and unfortunately, i mean, it reduces costs a lot, reduces utilization a lot, but patients don't have the ability to know what is valued and what's not valued in their care. so they put off prevention. they put off things that ultimately are going to cost us all a lot more. but increasing co-pays, increasing deductibles will

change the amount of health care dollars that are spent immediately. >> dr. stream? >> you mentioned permized medicine, and -- personalized medicine, and we have this fascination that one of the most features of people's health and wellness is having a usual source of care, they get their acute care needs taken care of, their chronic illness care. and the way that we're going to save money in the long run is investing in primary care in this patient-centered medical home, and we need to align our payment system to do that. as senator cantwell mentioned, we don't have enough primary care physicians, so we need to invest in our work force, reforming our graduate medical education system. we're seeing this play out in the private sector with private health plans. the patient-centered primary care collaborative is a national organization that's employers and payers and patient stakeholder group withs that are really already documenting tremendous success in this, in this direction.

>> mr. chairman, you asked the key question that we asked these people to come here and advise us on. are you ready to present to us as the ebb -- as the experts a process, a methodology for payment that we could institute on january 1st with some assurance that the costs would be within a certain range to the federal government and meet the objectives that i think we all agree on here? or if you're not going to be ready to do that then, what would you recommend we do? would you recommend we do an update, a positive update of 1% or 2%, um, with some reporting requirements and phased-in pilot programs and so on during that year so that january 1 a year later we could make decisions about specific payment methodologies that would go across the board? in other words, respond to the

chairman's question here. we're going to have to make a decision in six months. what do we do? >> dr. mcaneny? >> thank you. again, a very important question. i don't think any of us are prepared to answer that very quickly. this is a huge -- it's a seventh of the economy in health care, we're not going to be able to fix it by january 1, 2013. i think a 30% cut will put many practices and many hospitals out of business. and that will cut the amount of health care that's delivered. but i don't think that's the intention of any of us. so i think that, again, we're going to need another positive update, ama data has shown that for the physician fee schedule we're currently being paid at 2004 levels. the light bill is not at 2004 levels in my practice. i think we need some time and some stability where we can do some pilot projects.

because what works even in my practice in new mexico, the things that work in my gallup clinic in the heart of the navajo nation are not going to work in my albuquerque clinic or silver city-based clinic. the innovation center got thousands of people, thousands of doctors wanting to give ideas about how we knew we could save care, save money and giving care. so we would like very much to know that we had some degree of a period of stability where we know we could count on medicare to not pull the rug out from under our practices and from under our patients. so that we could then work with various pilot projects that can be area-specific, part of the country-specific, specialty-specific or integrated across multiple specialties to do that. i'm hoping my grant will prove to you that we can take a bundle of payments, take care of

patients through a continuum of care and be able to save money. but it's going to take us some time to be able to rearrange this system. >> dr. hoven? >> thank you. very, very important question. updates in stabilization, you've heard several now speak to that. i think the question of stabilization for practices is a huge and key issue going forward. there is a huge amount of work out there already underway, senator kyl, on these models, the way we deliver care and how care will be paid for. they are going to be multiple in type, not one size fitting all. these practices cannot endure that because they're different based on the practice, the location, the patient served, so we've got to be willing to say there's probably going to be more than one delivery system. there's maybe, you know, more than one payment system to follow that delivery system as well.

but we won't know until we do that. one of the things which you all could do now would be to allow physicians' practices to roll into a model of whatever they choose to do when they're ready to do it so that there's not a limited one doe of time. right now the window opens, and then it closes, and nobody can get in there and get ready for the infrastructure changes that happen. in rural and primary care practices in parts of this country, getting the funding out there to help them get the infrastructure is a key issue. of it's got to take place in order for them to be participants. but we can cannot -- cannot expect them to change overnight. but we can get them enrolled in these programs if we provide them the wherewithal to do it and the timing allotment. the other thing we've got to do fairly quickly is the medicare data system. and you've heard repeatedly today, you know, we've got to have the data we need in order to do the quality work. physicians want to participate in some of the quality programs,

and back to the earlier discussions, the relevance of the measures, etc., being used, the whole issue of the mechanics of the way these programs work. they don't work particularly well for physicians. and then, again, another opportunity here is what we refer to as the deeming opportunity which was in our written statement which allows physicians, um, who are already participating like dr. mcaneny's program in a very high quality program with improvement outcomes, let that count towards this entire issue of physician participation. so those are some fairly straightforward things that could be done on the short term as we get to the final payment and delivery models that we're going to end up needing to use in this country. >> what's the medicare data problem that many of you are referring to? what's the problem? dr. mcaneny? >> i'll -- [laughter] i can give an example that i can