exclude information. it seems to me something we want to avoid. i am certain there will be, at the appropriate place and time, a full throated debate on the question of liability questions that will come. it seems to me there is a better place for that to occur than in this committee on a matter like this. i would urge my colleagues, respectfully, and because of my appreciation for his knowledge of this area and his years of involvement, but i respectfully urge to reject the amendment. . amendment. >> we have 12, chairman. >> yes, senator, may i be heard for four and a half minutes? >> certainly. >> you're looking very sprite, very strong today as opposed to yesterday afternoon where you should have received the golden medal for perseverance. i'm worried about who does this.

i'm worried about who does this. i'm worried about think the senat senator, senator mikulski said well established principles and i'm talking about cer, obviously. and nobody could be opposed to that. and the senator, she and i have worked on nurse legislation and ever since i've had the privilege of being on this committee. and on other committees, i have nothing but the highest regard for her and who could be opposed to well established principles? who sets these principles? who does the research to basically come up with best practices? that defines what's in that pasture of accepted practices and what is not? as senator henrik stensonsenato

why i said pasture because he's from wyoming. if the cer well established principles are within this framework. that provider knows if he or she strays into the next pasture in which he or she thinks that the patient and because of that person's experience and medical profession, should be done, they're not going to do it for fear of several things. i don't know what cms is going to do to them that if fact, well, number one, you don't get paid, but number two, i hadn't thought opening up the floodgate of lawsuits until senator hatch had brought this up. and i guess my question is i don't know of anybody yet who has been able to tell me who is

going to do the research and i will tell you that i do not think that cms has the body of researchers that can do this like fda, for instance, who has wide experience in this. and let's not forget that cms used to be something called hicva and everybody knows the representation of hicva and prior to that it wwas somethinge and prior to that something else. what their job is and it's a terrible job. it's a much needed job. their job is to turn the red beans into black bean, they're bean counters and cost containment gets to be the primary factor. so regardless of what anybody said and i've got an amendment coming um later, cer means cost containment. if that's case and you're def e defining it and putting it in this category and you have people just waiting and

salivating at the gate if you open up the gate in regards to lawsuits using cer which will be the golden tab will the that cms will use to come down from mount h 2 s to say this is what you can do and can't do with regard to practicing of medicine, you know there's going to be some lawsuits. i hadn't really thought about the depth or the -- i guess the extent of the problem. i was more worried about cost containment in regards to denying care. i have an amendment to deal with that but i think senator hatch has brought up a whole different thing. can you tell me, sir, or can anybody tell me on the staff, how many people does cms have over there during the research to establish these well-established principles? >> senator roberts, could i respond. >> yes. i would ask you to respond. >> we've worked on this, on so many issues and you and i share a real passion for not creating bloated bureaucracies. so we've talk and it, remember

when we know there's extensive hearings really on terrorism when you asked the fundamental question, who's in charge? i supported you and nobody could answer. >> you were princess leah and i was luke skywalker. >> you're right, but we don't weren't to be harry and louise. >> and we know who darth vader is already. >> cms -- >> darth vader is the head of cms, that's the whole problem. >> senator roberts, cms is not in charge of the center for health outcomes research and evaluation. >> who is? >> the ahqr, the agency under the secretary charged with quality. that is where it is. and in the bill, it creates an agency within an agency there to see this. this is not at cms. >> has this outfit been -- i mean has posse been formed up,

is it riding? >> the posse that's been formed up. let's say this, no, where the framework that is in existence was created during because of the stimulus package in which we vo voted for $1 billion to begin to do -- >> well, i didn't. but go ahead. >> for outcomes research and replaced it with -- we create and interagency task force and put this in ahqr. $400 million of that research is already designated to go to nih. so it's not cms and bean counts. >> but yes, wouldn't nih -- i interrupt you. >> i'm just asking you to read the bill. >> say you have this -- kounds like an acronym for water or gold, maybe. but this doing this. and we establish money to do

this and part of it is going to be farmed out to or contracteded out to nih which gives me a lot more confidence than cms, but the person who does the implementing will be cms. >> no, if you again go to the bill, which and what we affirm in the health reform bill is what we did in the stimulus package. and what we say in the stimulus package very clearly is that nothing shall be construed in this legislation to impact on eith either practice or payments. so if you go to the language of the bill, you will see -- let me go to my notes here. in the stimulus package that we passed, we said nothing in this section shall be construed to permit the counsel, that's the

interagency council to mandate coverage, reimbursement or other policies for any public or private payer. none of the reports submitted under this section shall be construed as mandates when clinical guidelines for payment, coverage or treatment. so we've already said this is simply consumer reports, almost a version of consumer reports on comparative effectiveness or health outcomes and for clinicians or others, it's news that they can use. it is one source of the news. there's the institute of medicine, there's the national academies of pediatrics or cardiology, et cetera. so and it is -- in the agency for health care research and quality which has been around for more than 20 or 30 years. >> let me just say this. nothing in the bill prohibits cms from using cer to contain

costs and it's peter orszag who is the omb director, obviously, said cer's principal purpose to is to retain cost,s a direct quote. the acting nih dector said costs will be a key factor in cer it just seems to me that we need this amendment to ensure that cer is not used to ration health care. >> peter orszag is not a member of congress. no matter what they might think. >> i'm going to do a hatch thing but i'm much louder than hatch so people don't listen to him. he's been doing this for a lot of years. now, i used to be a bucket toter, i was a bucket toter here in the senate for two year, went to the house, i was a bucket toter over there as a staff member. my box kathleen sebelius says you're in charge of health care. well i was in charge of everything, window, rug,

administrative assistant, whatever else. agriculture, too. but every time that we would get into problems with our hospitals, our doctors, our home health care people, clinical la, everybody in the health care delivery system it was because of some goofy thing out of the hqs on a cost containment principle based on something like cer and cer, i'm all for this, in terms of what you said, well established principles. i mean i'm not opposed to to that and to protect the public. jon kyl had and agenda on the senate floor, you get into the weeds on this and you bunch of acronym acronyms and whatever else so nobody pays any traengs. i can tell you that every time that has popped out of the woodwork it has been manage that came out of the hew, you remember joe califano and all of that, we had a wonderful seg

suggestion from hew, no medicare bill would be paid unless was reviewed every 24 hours by three doctors. under cost containment. sounds pretty good. now my boss said, my lord, we can't do that i said be for it, maybe they'll give us the doctors. now that's kind of thing that has happened down through theiers. now when my amendment comes up, i'm going to give some specifics and some of my conversation with kerry weems who used to be, i don't know if he's still around, the head of cms. what worries me is that okay, i am delighted to learn from my distinguished colleague and my very good friend that we have set up a new agency, if you will, to do this kind of research. i'm not sure that we have the people or the expertise to do it, but yet they contract out to nih, fine. but nothing will protect us from the fact that basically cms can

use this language from cer and the thing that worries me is that this is going to become as i've sai a tab will the coming down from mount h 2 s that will envelop all of health care, these are going to be the principles. if you're senator enzi's doctor and you get outside that pasture, that decision again is rationing. i have personal experience with this in that regard. so that's my concern and i'm going to quit and i appreciate the time. >> very, very very quickly. >> i'll be brief because i'm prepared to vote. but look, there's no use kidding. we know that ahrq is there now. we all all know it's that going to cms and that cms is under tremendous pressure to cut costs and that's what's wrong with this language and bill.

it's going to lead to rationing and and people getting less health and care than they get now. if i could ask one other thing, mr. chairman, i have to leave after the vote but i know our staffs have been talking about a few of my amendments, hatch 27, hatch 9 and hatch 21 as modified. my majority will consider those --. i'm ready to vote. >> i am considering those. just as i said over and over again, i don't know of anyone on this committee who's for health ration i rationing, it's used all the time and it's not offensive. we're not for health rationing, we're for driving down the costs and deliver affordable health care and by frightening people by talking about rationing does not contribute to the debate. all in favor say aye. >> ask tour a roll call. >> clerk will call the vote. >> no. >> no by proxy. >> no. >> no by proxy.

>> no. >> no. senator brown. >> no. >> senator casey. >> no. >> senator occasikagen. >> no, by proxy. >> senator murphy. >> no. >> senator whitehouse? >> no. >> senator enzi. >> aye. >> senator staalexander. >> aye by proxy. >> senator bird. >> aye by proxy. >> senator mccain? >> aye by proxy. >> senator mikulski? >> aye by proxy. >> senator kennedy? >> no, by proxy. >> i thank the clerk. further amendments, senator robert, you had an amendment you wanted to raise or senator enzi. >> i have one i would like to discuss based on what we discussed over the weekend. that would be enzi amendment

number 2. >> clerk will distribute that amendment list. >> this is something i've been working on with ç9> there is reasonable ability for people to get paid quickly but there needs to be protection for the doctors to make sure they stay in the field. we have come up with an award of grants for states for the of the plot -- for the development of alternatives to the current litigation. this is an experimental area where they can do some different things. it would promote a reduction in health care errors by allowing patients safety data related to disputes be collected by patient safety organizations to improve the quality of health care.

errors by providing data to be collect and analyzed by patient safety organizations to improve the quality of health care so if fits in what we're doing right now. and we to do know that the curr litigation system doesn't work for the patients and the doctors. for the patients it takes too long, the doctors never know where they stand. we spend billions of years on unnecessary medicine that can even be harmful. one of the things possible under this amendment would be medical courts where there would be a series of courts where the judges were familiar with medical litigation and would keep track of relative awards that are made right now under our current system, one person is hurt and they get the right jury, they get the right lawyer, whatever the combination is and they get a huge award. another person has exactly the same thing happen to them. they don't get that jury or that lawyer or that combination, whatever it takes. and they get nothing and that's not fair.

so we tried to come up some kind of a fairness way and this would allow a variety of fairnesses to be tested over a long period of time and help us arrive at something. this doesn't put any cap on jury awards. it just gives some alternatives that could be tested out there that might reduce some of these medical costs by getting faster awards to the patients and giving the doctors some protection. >> senator mikulski? >> well, first of all, this amendment would provide federal grants for states for private programs to elimb gninate the r it a jury trial. yes. this amendment provides grants to states to implement alternatives to tort litigation,

well that might be interesting. but it would provide for federal grants to states for a pilot program to reeliminate the right it a jury trial for victims of malpractice. i'm taken aback by that. i understand all the discussion around malpractice, it's a worthwhile topic. i believe malpractice, medical malpractice should be the subject of the judiciary committee that has extensive experience in this area and with the courts, et cetera. beyond, it is beyond the scope of medical malpractice, i believe, should not be a part of this debate, though of this committee, but anyway, by promo promoting health courts and other alternatives to the judicial system, the amendment could seriously have a negative impact on injured victims in its quest for efficiency, which i could understand. the amendment would deny these victims basic rights.

jury trials are not an inefficiency to be circumvented. they're the heart of the american system. of the focus of health care reform should be improving on quality, we should not be taking this up. fair treatment for seriously injureded victims is the yardstick by which we should evaluate proposals that would dramatically change the current system for adjudicating medical malpractice claims, i'm concerned are that by that standard the enzi amendment would fail. it would potentially deny the victims of malpractice the right to trial by jury and full and fair compensation for their injury, that's too far of a price to pay for administrative efficiency or looking at creative ways for all parties involved to look to alternatives to trial. >> on the face, it would seem

that way, but there's a little bit more detail to it than that. and in order for them to use this kind of an approach, they would need both the agreement of the patient a the doc. and i suspect that any state that does anything in this area would also have some alternatives so that this could give a preliminary ruling and then they could take it to another court if they wanted to it isn't that specific that it limits or eliminates any right it a jury trial. again, it allows the states to propose some alternative methods of swifter, fairer justice. that's what we always want. i'm sure the courts would play a big part in this and any proposal from any other state.

but we've got to look at ways other ways of doing things. i thought about something specific but that runs into trouble, so i thai thought having the experimental situation of the states being able to develop possibility, put it into grant form, they've got to meet the requirements of their constituents in their states and i'm sure some of these objection raised would be taken care of in their proposals, they would have to be or they wouldn't be able to do them. this has been an ongoing discussion but it is something that senator bachus and i have work and 0 for a long time and gotten to a point where we could agree on the principles and this is mechanism to see if we couldn't save some someone in area and get patients awarded quicker. >> mr. chairman, this will be an ongoing discussion about how to control health care costs but also to make sure that we're not injuring in the process the

right it a jury trial, the right to fair compensation in instance where you have negligent or intentional conduct. if the objective here is to control health care costs and to reduce the incidence of lawsuits being filed that should not be filed, there are lots of ways to get there, i believe, without changing -- without going to alternative ways to resolve disputes necessarily and also, of course, in my judgment by not going the direction of capping damages. for example, in pennsylvania, we had over the course of two governors, a republican governor and a democratic governor and several years within the general assembly, between the general assembly and what the governor can do and what the court system has done, they've adopted a series of changes as long as your arm, a certificate of

merit, for example, so that before a lawyer can file a medical malpractice case, they have goat an expert opinion before they can file it. that's in place now and it's helped. change of venue requirements that you can only file the case after an action arose. that cut down on some suits. then court rule changes and other legislative or regulatory changes. the point is there are ways to get to reform that don't deny people their day in court, don't arbitrarily cap damages and actually reduce the number of suits. i don't think the number of suits are as high as some would assert. but that's a point of dispute. but there are lots of ways to get there and not in ways that arbitrarily cap damage, not in ways that injure the right to a

jury trial and not in a way that unfairly disadvantages those who have legitimate claims. i know we'll talk more about it but pennsylvania is a good model, not perfect by any means, but a good model of actions that a state government can take to deal with this problem. >> senator whitehouse? >> madam chair, i appreciate the concern over costs and complexity that motivates this amendment, but i think we take enormous risks as a country if we interfere with the institution of trial by jury. trial by you're is provided for in the continues constitution, article iii, section 2, if i

remember correctly. it's reinforced in the fifth amendment and seventh amendment. the best observers of our system of government have described it as one of the essential elements of the american democracy. alex alexis toqueville rode on what tempers the tyranny of the majority. in that there was a section of the juror in which she observes the jury is a mode of the sovereignty of the people. says the institution of the jury places the real direction of society in the hands of the governed or in a portion of them. not in those who govern. he describes the system of the jury along with universal suffrage as the two equally powerful means of making the majority reign. he describes the jury as the most energetic means, the most energetic means of making the

people reign. he observed that all sovereign whose have wanted to draw the source of their power from themselves and and to direct society instead of allowing it to be directed by itself have destroyed the institution of the jury or have innervated it. i know that it is an article of faith within the republican party that the institution of the jury is a problem for america. i think they are deeply, deeply wrong. i think it is as much a political institution that allows the little guy a chance as it is a judicial institution and i think any efforts to interfere with it, trespass into very, very dangerous and problematic territory for our country. and i'd like to make just one more point if i may because it touches on another article of faith that has been raised here today and that is that there are

an avalanche of frivolous suits that the insurance industry pays for because it's cheaper to pay the case than it is to defend it. that implies that an entire industry, a profit motivated and rational industry is making the calculated decision to pay for the continuation of cases that they could end and get out of more cheaply if they simply stopped paying for so-called frivolousplies that the entire insurance industry is acting irrationally and against its interests in continuing to fund frivolous lawsuits by paying for them. i don't think that passes the test of economic self-interest.

and so i know that there's a consistent effort from the other side to try to interfere with people's rights, interfere with the jury, i really think that it's an important place for america and for our history and put in historic context. i think it's -- we trespass in dangerous territory when we do this. i firmly believe. >> i appreciate the lecture on jury trials. this does not interfere with jury trials. so that issue is not on the table. senator bachus wouldn't have signed on to this if it was going to eliminate jury trials. so the jury trial issue is not there. in order for any person to even participate in this, both the patient and doctor have to agree to going through this process and on page 4 they can opt out and voluntarily withdraw from participating in the alternative, that's a requirement of it. so that's a false stocking horse

there. trial by jury can happen under this bill. we're not going to eliminate trial by you're if they want a trial by jury. now, what i tried to do when i worked with the senator bachus on this bill and what i'm trying to to do now is point out that there is a problem of medical liability driving up costs, otherwise i don't think the president would have made that comment to the american medical association this week. you know, he doesn't just make a lot of extra statements. and that's something they were definitely interested in and it was something he said we would provide. i'm just trying to come up with, i hate it use the word, a very liberal way of doing it. you know, it's wide open to a lot of possibilities out there and none that i think violate what we're