4 they said we cannot afford to do that. it is a cost factor. it will happen and somehow, we have to have a mechanism, and that hoping we can rely on the states to come up with the mechanism and then it will expand to all of the state's. this was the most liberal way that i could figure out to have something that would deal with medical costs and have the possibility of working as an experiment state-by-state. as. an experiment state by state. no state has to participate. all tats could participate.

so i'm not going to be able to come up with a more reasonable way, but i hope somebody comes up with areasonable way of dealing with medical liability. ipdz where the donation come from and that sort of thing. i expected this kind of a difficulty on it. but not when i went this liberal. so. >> with all due respect, mr. chairman, i don't think alexis detoqueville was affected by this. and i don't appreciate the suggestion mine was. >> don't have the wrerequisite numbers to vote on this. so we can continue the debate. >> i'd like to continue the debate because i think senator enzi says i don't -- he doesn't stifle trial by jury. i think we need to talk about that and i think we need to talk about what a health court is. it sounds great like a drug court. like a mental health court,

et cetera. but really, what a health court would be, it would be a new entity emerging within our legal system and health courts don't have juries. okay? they don't have juries, they're like workman's compensation courts, if you will. so you don't have a trial by jury. and then there's this whole section of voluntary which is where do you -- at what point do you choose when they're going to trial or when you're being admitted to a hospital. so we can continue that this afternoon. but i want to respect where senator enzi is going and also the extensive work he's done this with senator bachus. i'm just apprehensive about what a health court does. so let's continue that this afternoon. >> i may suggest 12:30, my intention is to take a break and come back at 2:30.

let me just inform our colleagues. of this is the eighth amendment we've considered over the last couple of hours, some of them were agreed to obviously early on. >> why would they agreed to? >> well, it's -- i never suggested this was going to be at warp speed. obviously, this going to take time. and there's some 20 amendments i point out earlier that are in consideration. of the 59 that have been offered to this title so taking those numbers together, we could arguably get almost to half of the amendments on this title of the bill. and that's not bad progress, it's not great, but it's not bad at all, i appreciate my colleague's attendance, by the way. we can't move on this unless people are here to have the necessary votes to consider and dispose of these ideas and suggestions and i certainly encourage member whose have amendments to meet with staff on both sides to see if we can reach some understanding and adopt as many as possible by consent.

an then those that will require votes to have a good healthy debate about them and vote up or down and move along as our responsibility obviously in the [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2009]

>> the committee will come back to order. i have looked around the room and we count eight members here.

you may see something less than eight but we saw eight. for the purposes of going forward, i am going to turn and defer to my colleague from wyoming. earlier this week, the president spoke to the medical american association and to acknowledge the issue of reform needs to be addressed. we know that spiraling medical costs are driving up costs for medicare and the payments reflect medical library -- liability insurance premiums. when states adopt liability reforms, malpractice premiums drop. premiums have fallen for six straight years to buy directly translating into lower costs for patients and taxpayers. the only thing my bill would do

would be providing bills -- grants to states to solve this beat around medical care and the decision to use this dispute method would lie with the plaintiff and the defendant. no one could be compelled to forgo a jury trial. forego a jury trial. now, while i understand some may object to the idea in principle, what would you do instead to address the issue the president identified as a significant driver of health care costs? and i might add that senator bacchus recognized it as a driver. we have other people interested in it, too. so it's an idea that's out there but i don't think that doing nothing is an answer. but that seems to be the approach we have embodied in the bill so far and a couple of suggestions on ways to solve that. there has to be other ways and

so i'm hoping somebody can come up with a provision that would reduce the increasing medical liability costs driving up the health premiums and i'll withdraw my amendment for now. i may bring it up later. >> senator whitehouse? >> thank you, mr. chairman. i appreciate the ranking member withdrawing his amendment. i would offer a comment and an answer to his question. the comment is that i think the case that this allows the injured individual a meaningful choice to stay within the american jury system would be better advanced if it didn't require the patient to opt out of the alternative to the jury system way early on, way before he or she is injured and in a

way that, frankly, would allow the opt out to be buried in the fine print of medical and jury information. that would be suggestion of going forward with this idea. i don't think it's a legitimate opt out in the way that it's framed. just my view. in terms of how you get after this, well, the easy way to stop killing 100,000 americans every year with avoidable medical errors and underneath the tip of the iceberg of the 100,000 lethal medical errors is a larger portion of the iceberg of the sub lethal medical errors where somebody lost both legs instead of one or an extra month in the hospital or two because of acquired infection or -- the litany of horrors is endless. >> i thank you very much. >> i think stopping that is very important. >> thank you, senator whitehouse. i love your quoting but we have to vote in a few minutes. >> looked up quotes in lunch. decided not to use them.

>> thank you. we'll make him an honorary member of the committee for markup purposes. >> i would like to thank senator enzi for withdrawing the amendment. it was very gracious on his part rather than putting this through a lock step vote. i do understand the senator's direction to look at fresh and creative ways as we're also looking at the tort system. president obama in his speech to the ama even though there were a couple of lines like damages that got booed he said he wanted to work with the ama on this matter and ought to participate in that conversation and obviously this is not going to go as fast as we thought and new ideas will emerge but i want to thank you for that. senator dodd, people did work during the break. i've got to thank both sides of the aisle for working on that. and i could go actually quite to

some amendments that senator enzi proposed on comparative effectiveness that i'm willing to accept. >> that's good. >> so senator enzi, i would like to say, number one, i want to thank you for even more precise definitions and also, even sharpening their focus and it's this, you know, it's this kind of approach that brings intellectual rigor to the process which you have helped even more finely tuning about the parameters and number three, preserving the integrity of improving markups so i'm prepared to accept enzi amendment number 10 for personalized medicine for specific scientific criteria. i'm also happy to accept enzi amendment number 11 which creates an expert advisory panel

in the case of research studies for rare diseases. and that as we all know can often be falling by the wayside. that's excellent. also, i'm happy to accept enzi number 12 which inserts the practice of medicine as a criteria for participation in advisory counsels. i think that we can accept that. enzi 15 which relates to specialized advisory panels and last but not at all least, as someone who's interested in epidemiology, enzi number 6 which says that the center may allow reports to assess whether treatments benefits sub populations. and as we have got feedback from our public health experts as

well as the aarp they thought enzi number 96 was an excellent and outstanding amendment and so do i and i'm happy to accept it. we can accept all of those and it shows how we can find a center on the outcomes research. let me go to some others. senator murkowski has two -- five amendments that she had just in sin effois inserting th where they were. that's murkowski 3, 4, 5, 60 and 61. we are ready to accept one affected trauma programs, this was agreed to also by senator murray. thank you, senator murray. senator roberts, you have an amendment, hhs, you consider unique characteristics of rural

hospitals and low volume hospitals when establishing reporting progress on hospital readmissions. again, i think that adds a great insight and dimension that my original framework was backing. i thank you for that. i'm happy to accept that. >> what number was that? >> that's roberts number two. we accept murkowski three, four and five related to indian health, 60 and 61 also on indian health, roberts number two on unique characteristics. they're telling me how i should talk. i'm 72 years old. i did pretty good so far. roberts number two as modified. we're going to take the rural and low volume hospitals. so we've got those done. so that's two, four, six, eight,

ten, we have cleared 1@@@@@@rra& >> i counted three, four, five, 60, and 61, roberts no. 2 -- did i miss one? >> 10, 11, 12, 15, and 96. >> and 96. was i right on the other ones? >> yes. >> 11? >> yes. >> it is a good one but we will talk about that some more. >> #6? >> he thought it was no. 6. i-25? just so we get to bingo, i'm fine, okay? but again, i want to thank our

staffs for working through the lunch break and i think this was a great set of accomplishments and we thank you for them. it actually improves the bill. >> senator, we thank you. senator enzi, senator murkowski, senator roberts, who were involved in that and their staffs, respectively. what i'm going to do is a couple of these were as modified but i will ask consent that the amendments as identified by senator mikulski be considered. without objection, so ordered. the amendments are adopted. that includes the seven we did this morning, so that's about 20 amendments. there were 59 introduced originally but we're moving on this. granted, it's not luke skywalker speed, senator roberts, as you mentioned earlier today, but we're moving here. pretty good pace. we have a vote that's just started and i will be -- in

fact, i entertain another amendment to at least be offered and we can start for a few minutes the conversation, then come back after the vote. >> isakson number one. >> johnny? >> thank you, mr. chairman. i think there's a copy, everybody has a copy. >> good job. thank you. >> this amendment simply requires that upon signing up and becoming eligible for medicare, that every recipient will show proof of having exercised an advance directive legal in the state either by statute or by previous court cases. an advance directive is basically a durable power of attorney that directs physicians, hospitals, care providers, what an individual would want to take place in the last days of life if they are incapacitated and cannot make a decision. >> i don't think we have this. i don't think it as an amendment. i don't have it as a description

of the amendment. i don't mean to interrupt the senator -- >> that's okay. the lady's welcome to interrupt. >> you are so very courteous but i want us to have what you're going to have. >> i thought it was already up there. >> he's passing them out. i'm sorry they weren't already there. basically, i have had an interest in this for 30 years because as many of you -- >> would you repeat what it does? >> what it basically does, on page two, lines eight, nine and ten of the heart of the amendment which basically says that every enrollee will provide proof to the secretary that the individual has in effect an advanced directive recognized under state law whether statutory or as recognized by the courts of the state an advance directive as the end of life directives that you would direct what care you would want to receive were you to be incapacitated or in a state where you could not make that decision. beginning in the '70s, this

movement began around the country. i was in the legislature then, became very familiar with it and had personal experiences in my own family with people who had not executed an advance directive which can cause for some awful will painful situations to happen but most importantly on the cost side, an astronomical amount of costs spent that really would not have been spent had the beneficiary or had the patient actually had an advance directive. the department of medicare and medicaid services has determined that as the last year of life of each beneficiary, the average expense to medicare is $24,856, which is 27.9% of everything medicare spends on the average patient in their lifetime. so if we are talking about savings, and we're talking about quality, and we talk about a system where 90 days prior to your 65th birthday you come in to sign up and begin the process of registration for medicare, i

think if we require the advanced -- proof of the advanced directive to be part of the qualification, we would ensure that everybody's wishes were respected in those difficult times of life and that physicians, care providers, et cetera, would have legal direction as to what the patient would have had done. >> well, if i could just comment, first of all, i understand the objective that the senator from georgia seeks but this is legislation that would affect the eligibility for medicare and i believe it is truly outside the scope of our committee. is there -- i don't want to sound like a parliamentary fussbudget here, but -- >> i think the senator, i think she's right, it's a finance committee matter. i must say, i like the direction

you're going with this, because i think there's some validity in pursuing these ideas with people but i'm concerned about us -- we raise all the time with the finance committee when we begin to encroach on the jurisdiction of the committee, so i want to be careful about imposing ourselves on their jurisdiction which is the first concern i'd have, trying to deal -- i'm not sure what title this is even in. we're trying to do title two and it may be appropriately in this title but it doesn't seem to be a section 1899. i don't know where that is. >> mr. chairman, if i could say, perhaps we could look at this during the vote. to see whether it is within the appropriate scope. if it is, we'll discuss it but i also have to connect with senator shelby on the floor. i really need to go participate in this vote. >> why don't we go and make the vote. >> let's come back and make sure

we're within our appropriate parliamentary parameters. if we could have a read on that when we come back, then have further discussion. >> for your consideration, this is a copy of the underlying bill and each of these tabs represents the finance committee jurisdictional issue which is in the underlying body. so -- >> don't show that to them. >> it's not like we're plowing new ground. >> mr. chairman, could i also add for the people that are going to look at this, the base bill, the underlying bill, on page 203, 204 and 602, there are references to the social security act. on pages 35, 101, 103, 107, 209 and possibly 210, the internal revenue code. clearly, these are areas that on the face would be the jurisdiction of the finance committee so if we're going to selectively choose which members

get to participate in it, i think it's a little unfair to senator isakson. >> the last let's take a braque -- let's take a break and we will come back to it. >> there has to be made somewhere near here. -- there has to be somewhere near here. let me turn to my colleague from georgia for any comments on this latest proposal. >> mr. chairman, as i understand

it, there has been a proposal to move this consideration to the long term care section in the legislation, which i was in the walk-through when we were going through that provision the other day, and that is an opt out position. i have some interesting numbers for you. medicare estimates that 44% of americans do not have an advance directive and 37% have never considered it. if you take those numbers, those are pretty large numbers. i get to go into medicare this year and sign up, and during the process of that, you have options on a and b and d.

it seems like to me that this is a way of ensuring that every senior in america is informed of an opportunity that both improves the quality of their life as well as reduces the burdens on their family in the latter years of life as well as reducing the cost of the system. i don't know why personally we would not want everyone to know that. it is their directive. i am reluctant to just agree to put it in the long term care portion when we have an opportunity to insure that we do its at a point when every american will be exposed to that opportunity. it is excellent for the quality of life for the individual but more importantly for all of us as we talk about cost, we know

unequivocably that it will reduce the cost of medicare. >> if i could just ask for some clarification, i know what the gentlemen is trying to achieve. first of all, are you saying that when you sign up at age 65 for your medicare, you must file an advanced directive in order to be enrolled in medicare? >> that is correct. legal in the state in which you reside. >> that takes me to my next question. i have medical directive myself. i am single. i wanted to make sure that for my sisters, i wanted to empower them with those decisions for me, i set the parameters to not only make that decision but able to communicate my wishes to

them. it was the most expensive undertaking. i met with lawyers. it was harder than buying my condo. it was harder than fighting for the senate. it was really a complicated and expensive situation. my concern is, because i leave and advanced medical directives for the very reasons you articulated, but my concern is, who is going to do that for every single person applying for medicare? they are old, live in rural areas, people of very modest incomes and so on. it would medicare have a standard form where you would check the box? there was this wonderful program called a five wishes where you could actually check boxes about what your last five wishes are that would give those parameters. are you saying that the person

cannot the 65-year-old, would have to go to a lawyer, get a medical directive, get a form -- how would it work? >> do you have the amendment in front of you? >> yes, i do. >> if you look on the second page, it authorizes that the package, the 90-day advanced package, contain information with respect to the requirement under the session and, number two, encourages individuals to discuss directives with their family physician. it gives the secretary the opportunity to put out those rules and regulations to help facilitate that. >> do you understand what i am trying to get at? it is not to discourage your amendment, but to make sure we

do not create a rule -- >> i thought a lot about that. i can't address the state of maryland but i can address my own personal experience. it is neither expensive nor cumbersome. the state i am familiar with, the language of the attorney is in the lot. this is not a lawyer-creating language. you get a three option check. in many places, it has been established through a court precedent which is why the language refers to whether statutory or recognized by the courts of the state. i am trying to save a cost burden on medicare and improve the quality of life for the individual and not put a cost burden on the individual. because of the 90 days, -- i think i am right. you are supposed to go in 90 days before your 65th birthday to reg