activity. it provides the news that you can use. i appreciate the comments by the senator from kansas, but i think this is an unnecessary amendments. i think it ought to be deleted or withdrawn. >> mr. chairman? >> what i got out of the explanation is that the bill says of the council cannot use it that way, but can the cmf used that information? >> go to page 23. i invite you and your staff to look at that. if we have gaps in the language, i would welcome that. >> that is what i was trying to do, if i may respond. there is nothing here that prohibits cms from using it. mailing the remarks -- might

link the remarks said that they did not even realize what -- mighy lengthy remarks stated tht he did not even realize what it said. there are many doctors were not serving medicare because they do not feel the payment back to them even resembles anything close to cost, plus the paperwork, plus everything else. the more -- more and more you see that. i will tell you what happens to the competitive bidding thing. we deleted that for 18 months, thank goodness. the 24 providers in home health care who did it the competitive bid had to start all over again. i know several of them who said to heck with it. they are not serving medicare patients. i do not know about medicaid.

that is a whole different matter. the whole idea is that i know that you have in here on page 2323, recommendations on not be construed as mandates for payment coverage for treatment. there is been an asset at the cms cannot use it. -- there is nothing in here that says that the cms cannot use a. i love you. a levee to death. >> you are killing me. >> i love you to death. >> you are killing me. >> the where the ides of cms > -- the where we did beware the ides of cms. it is going to be a blueprint for rationing health care. maybe i'm wrong. maybe i've been there all of

these experiences and think that there are things there that are not there. i do not think so. i do not see any problem if it is duplicative. where has it been said that they cannot do this? i hope people would vote for the amendment. i appreciate the comments from my friend from maryland. >> all right. no further debate on the amendment. all those in favor -- >> i would like a roll call vote. >> know. >> no by proxy. >> know. >> no by proxy. >> no by proxy. >>no.

>> no by proxy. >> no. >> aye. >>aye by proxy. >> aye by proxy. >> aye by proxy. >> aye. >> aye by proxy. >> aye by proxy. . >> aye. >> no by proxy. >> thanks our colleagues. -- i thank our colleagues. >> could i inquire -- senator mikulski was very straightforward and honest about what was really intended in the cer stuff.

wintus asked about senator gregg -- when she was asked about senator gregg and the intentions -- i just have some questions like and understand. i think we -- i cannot remember the examples -- let's say cer comes out and says one is better than the other. what is going to be the requirement? what is going to be the requirement for somebody was practicing medicine and some allegra does not work for their patience but clear 10 -- by clariten does? >> the doctor decides for the patient. >> does get a document that he did not follow cer guidelines? >> i do not know what the rules would be. that would be part of what the

secretary puts together. >> that is my whole problem with this. what is the secretary putting together? i have an amendment that i would like to -- >> let's go to coburn #9. >> do you have copies of that? [inaudible] >> thank you.

>> mr. chairman, some of the conversations that we have had during the round table was the fact that the cer section was to provide research but not necessarily mandate the standards or deny care. if you go to section n13 of the modernization act, which ask artists -- congress for bipartisan support, and you look at that, this should not be any reason to oppose this amendment. what this is designed to do is to not allow somebody besides you and your position to decide what your care is going to be.

as senator mikulski has correctly noted, i can give you a minute -- a million examples wide cer is not going to work. if we think is not going to work for any of the reason than to ultimately practice medicine that the federal government will use, when the ways to secure that it is not going to do that is to adopt this amendment and embrace what happened in 2003 in the medicare modernization act. what this would require is that the director of the center for effective this research shawn not mandate any national standard of clinical practice our quality health mandate. they will not mandate it. the reason that is important is a question i raised when we have in the conversation. if you mandate it and then my patients, using the art of

medicine and clinical experience, should not be treated that way, you have created liability for me that will be impossible for me to defend in a court of law, because the government says this is the way you treat patients, not my clinical experience and the arts and medicine has said. the second thing it does is for its cms from making any coverage decisions based on this information. that is the current law. any research or communication activities performed must reflect the principle that the doctors and providers and their patients have and that they should have the best evidence available to make the best choices. items, treatments, etc. research must recognize the patience of population and preferences may vary.

-- the patient population and preferences may vary. if we are sure that this is meant to ensure care, our purpose is to find out what we think is best most of the time for the average patient and we want to put that out. fine. if we are going to tell the doctors what they are going to do and patience what they are going to do, it is not fine. it is not based on the best care, it is based on the best for the average, based on cost as well as outcome. without this amendment, i would like to know what section of the bill prohibits the government from using cer to decide which treatment can reach -- which it treatment the patient can cannot have. -- which treatments ththe

patient can and cannot have? i trust that your intent is good. where is the protection? i will go back and remind you that a medicare patient today cannot, even with their own money, have a virtual colonoscopy, per orders of the dictate of cms. cms has decided that is too expensive for the benefits that we give. now on a medicare patient can have it. we are already starting to see inside cms the utilization based on data but not outcome, because things cost too much. the data on cost compared to the effectiveness is very clear. all you have to do is look at

it. all you have to do is look of the cancer survival rate. all you have to do is look at lifetime survivability at three first coronary artery event. it is clear. i'm happy to have cer in the air if we have the protections that says we will not have the bureaucrats telling a patient with a cannon cannot have. -- can and cannot have. i think we should do everything we can. i think whatever that, there should be helpful. a mandate is a totally different thing. when we mandate, we say medicine is a check in a box. we deny the fact that madison is personal, that passed -- that medicine dispersis personal, the

positions experience -- physicians experience should have an overriding factor. we do not have these protections in here. i think we ought to have those protections. we are the have language that protect that. -- already have a language that protect that. i would suggest that we sick -- except this so we offer the insurance to the american people and providers that they can truly have what is best for them as decided by them and their providers. >> you have amendment no. 9. some of the aspects of this amendment i liked and others gave a concern. i'm going to do with the washington bureaucrats.

washington bureaucrats are not going to decide anything. they are going to published reports. let's talk about who we are talking about when we talk about who does research. those washington bureaucrats are called nih. they are called fda. those washington bureaucrats are called the institute's of medicine. i do not happen to think they are washington bureaucrats. i happen to think they are very capable research people who devote their life to try to come up with evidence that would support initiatives that could save lives and improve lives. could we get off of this washington bureaucrat stuff?

i am beginning to find it offensive. i have represented people who work at the national institutes of health. i represent people who work at at the. they are doing their best -- at fda. they are doing their best to save and extend the lives. he gave the example above virtual colonoscopy. where do you think that came from? that came out of government sponsored research so that the private sector could value from it. when we talk about how we are the latest and greatest, we are the top five of medical expenditures in the world, but we are in the bottom 37 in terms of health outcomes. the whole idea of what is coming out of the effectiveness is to

enable more evidence informed to occur. evidence informed, not practice mandate. the people who were going to be providing a lot of this research will be coming from the iconic institutions in our country. they are iconic. they are known around the world. they are incredible institutions. we find it convenient to turn to the institute of medicine to do its steady we want to delay something. when we talk about comparative effectiveness or outcomes, we call them "washington bureaucrats." this is like the people who havare incompetent. i would like is to get off of this. second thing, we continually

say that in this legislation -- and i've given chapter and verse -- that we do not mandate clinical practice. we do not mandate clinical practice. >> there is no clear language that says we prohibit the mandate of this interfering between the doctor and patient. please, name the section where you see a mandate for prohibition. >> go to page 323. tell me where that says where it is not construed whether it is sufficient? it says it would you want to not made a national standards. there is nothing in here that requires a mandate for clinical practice. quality health care standards could be any number of things. one could be the development that the effectiveness of the

various checklists. some have really improved outcomes in surgical arenas and actually saved lives. michigan told as if they stayed to wonder million dollars. it is not the clinical practice. -- told us they saved $200 million. it is not the clinical practice that i'm worried about. i would like to finish. we could ask enlist questions. >> we need to have endless questions. >> i am coming back. what is it about quality health care standards? let's go to the quality health standards. >> i want to read the text.

it shall not be construed as mandate. that is a big difference then say it will not be used as mandates. >> may i make a suggestion? >> let me make my point. let me make my point for a minute. where in medicare law do we have the right to tell an 85-year-old woman who has a complicated health history that she cannot have a virtual colonoscopy? that is exactly what we are doing. that is what is happening as cms today. as the pressure builds on them as we get to 2017, we will see more of that.

[inaudible] >> could we come back to quality health standards? >> sure. >> because i do not know where we stand on establishing quality healthcare. >> this is where i object. we decided we convene people in washington who are in very iconic institutions. we set a standard. then we are going to expect to put that out and now we are going to have a national standard for care that is going to be involved because the

liability situation if you go against the national standard of care, even though you may be justified, and you are going to expose every position in this country who does not do exactly that way, even though the patient should not have it done that way, to liability. that is why i object. we have said that there is now one right way to do this and it is the government's way based on iconic professors and doctors and medicine. it is still disregarding the patient's history, the clinical history, the experience of the physician, and all those combined, which is called the art of medicine. >> according to all of your sections, where we talk about national quality standards. we are talking about patient safety. we are talking of the reduction of medical errors. we are talking about negligence

and intent. i sincerely disagree with you. what you do have been here that is good is to conduct research on improving methods of disseminating information. i think that is very good, because we have to know how best we communicate this in a way where people could be broadly informed. evidence informed, not practice mandated. in the last 21-25, we are back to prohibiting cms may not use data obtained to withhold coverage of a particular service, a treatment, or prescription drug. >> can you offer me a way were we can give providers protection if the art of medicine says

this instance -- that in this instance i should not do what the government says i should do? >> you know more about the practice of medicine. i know more about the administration. >> i am talking about legislation. >> that is what i mean. i have turned to the national academy throughout this legislation regarding direction to be sure that we do not interfere. i have great respect for clinicians and the tremendous responsibility that they experience and their training and their dedication. if you are looking at how to do that, i would like to ask them how it is best done rather than the back and forth here. >> then you will agree there may be exposure -- >> i think based on what we did in the american recovery

package and a somewhat weaker doing here -- and based on what we are doing here, that we have met that need. whether their pediatricians are cardiologists, if they think they have a better way, i would be open to hear it. right now, i do not want to change what we have in the law based on back and forth. there were also some other legal things that were suggested. >> mr. chairman? i'm going to ask unanimous consent on page 323 of the bill, line 5, where's his recommendations and not be construed as -- where it says recommendation should not be construed as mandates --that it be stricken.

-- that it be stricken. i think that satisfy a lot of the concern. >> that exactly the suggestion by senator hawkinrkin. and what i said is that i will be sure that i knew the consequences because words have meaning. i would like to reserve the right to object. >> can we leave this open as possible suggestion? >> yes, that is exactly right. >> let me say that the active director of nih stated he cgr would be used to contain costs. that is what worries me. this also worries the senator from oklahoma. >> if we can leave this open.

>> that is great. >> i appreciate it. >> i withdraw my request under the circumstances. >> this is a very important section of this bill. it is very important. medicine is personal. medicine is individual. it does not fit in a box. >> no, but it does fit practicing guidelines. you yourself have said that. >> can i finish my point? >> please, go ahead. >> guidelines are important. they are just that. they are guidelines. if in fact you pass this bill, you are going to raise the cost of medicine, because now what we are going to do is saying is the guy like you need to follow and implement. the people who will implement

this will be bureaucrats. the first world bureaucrats is never do what is best when you can do what is safe for your own job. that'll be the local under which they operate and administer whatever comes out of cer. when we deny the fact that medicine is personal, that it is individual, and guidelines are just guidelines, and we create a situation where physicians are now going to have another step in the process -- so now i have to back up what i'm doing with all this other stuff, because i know from my clinical experience and what the patient is telling me that she does not fit the guideline -- so, i'm going to spend a whole bunch of money because i'm not about to expose myself again. if we are trying to save money, you are actually going to increase the cost.

this is for everybody does not fit the guidelines. what is wrong with us saying that we are not going to allow this to mandate the care and get in between a patient and a doctor? >> i've been listening to this. unless i missing something, i do not hear much of an argument here. there may be some language that we want to look at, but as senator roberts pointed out, if what senator mikulski has said on page 323 -- the word is used or construed -- i think the debate is over. we are checking that out. i do not think you are wrong at all. i think we all appreciate someone else's point did you. the question is, is the language going toward that goal? when it does, i think with

answered the question. senator mikulski agrees with your point. i was wondering if he news of the muck the word that i did not know. -- if he knows of something about the word that i did not know. >> that is different than this. >> of the important idea is that we are not going to fix the liability. we are still going to increase the cost. >> the issue guidelines exist. this exists in every court of law. guidelines would be suggesting that if you did not follow the guidelines --the issue you raised is, are you mandating so