on behalf of an awful lot of of doctors and a lot of people who do not want that choice of taking away from the patient and the doctor, and i'd@@@@@ @ @ rj others here might make comments

and then perhaps we can move to a vote recognizing that everybody really is here today, present today. >> mr. chairman? >> yes? >> senator coburn? >> the thing everybody doesn't want to talk about is whether or not we want the government practicing medicine and we say we don't, but then we hear the administration say yeah, we do. we're going to use this information with which to make coverage decisions and treatment decisions. so either we are or we aren't, and there isn't a plan or word that prohibit that does not deny the dissemination of this information. it doesn't deny the actual gaining of knowledge from the spread of good research that might cause us to save money, but there's a big difference between wanting to save money and rationing care. that's what we're talking about. rationing care because cms will

use the information to limit the availability of new and advanced techniques to save people's lives, to extend their lives and to increase the quality of their lives because it saves money, and that's what this deinterest rate all about. it's about whether cms gets to practice medicine and the intent of the administration as state side that they want cms to practice medicine and what that does is that puts the government in between the patient and the doctor. it denies the art of medicine. i readily admit we don't do as good as we should be doing in terms of practice protocols, best practices, things that we can learn, but there's a whole lot of difference between incentivizing good behavior and allowing us to control costs by having the government step between a patient and their doctor, and i think we have to have a clear prohibition.

if we're not going to have it, what it says is by default you want cms to control the cost. so it's either we do or we don't. we're dancing around words here, but the fact of the matter is we'll allow cms to ration care or we're not and that's the whole antenna. so either we put a prohibition that's strong or say no, we don't want cms to stand between the patient and the doctor or yes, we're going to allow it, and i think senator roberts' first offer, a clear prohibition that cms will not practice medicine, and i might just relate, i won't repeat the stories, but the medicare law in 1965, here's what they said. exact language you had originally. nothing in this title should be con strued or allow any employee to have supervision or control over the practice of medicine. guess what? we're not paying attention to

that right now. that's why we need a clear prohibition is because cms is practicing medicine today and we gave the example of the virtual colonoscopy or the use of epijen. let's have a vote on it. let's have an up or down vote. we either want them to ration care or we don't. it's about rationing care and the government stepping between a patient and their physician. >> let me point out and they a fundamental disagreement. i think what we offered as a counteroffer allows exactly the middle ground you're looking for here. i think senator coburn, tom, you made a very good point yesterday that physicians and providers ought to have acces to as much information about making those very personalized decisions and providing the best quality of health care for their patients. what we're looking at here is, of course, information that's coming out of institutes of medicine from various disciplines within the medical field to provide information in order to inform that provider in

order to make those best, personalized decisions. you made the point yesterday you shouldn't be mandated to follow those guideline, and i agree with you. i think that would be interfering stepping between the provider and the patient and you also simultaneously don't want to deny that provider the opportunity to have the access to that information without mandating they use it, but in order to have access to the information they need. i think what the compromise language has offered does in a sense, it doesn't mandate you use it, but it doesn't prohibit in a sense from you having access to it, and my fear would be that by adopting the language is modified would end up doing that. >> i have a great compromise for you. take the roberts' language and the next sentence say this would not prohibit the dissemination of any information by the practice of medicine by the studies coming out of this. >> one compromise at a time. >> that solves it. that solves your concern that we

may not get to disseminate the information, but it puts a clear prohibition on the fact that cms isn't going to ration care. >> i hear your point on this. we were watching the insurance industry rationing care for a long time without a bureaucrat or insurance company steps in and tells your doctor you can't provide that benefit or procedure because we're not going to pay for it. an irony is in a sense to the extent that that will exist. you have the private bureaucrat stepping between the doctor and the patient, which i hope all of us, i hope, can disagree with and we're not in uncharted waters in that sense. >> on that point i can just say i want to agree with you. one of the things i want to make clear, when i said government entity as opposed to cms i'm also talking about the va or the department of defense or any government entity from using cer to ration health care. so the entity thing is a broader concept than just cms. i'm more worried about cms

because i think that's where -- that's where all of this is going to happen, but -- and i said before that there's nothing in our counter counter language, if that's the way to put it that says anything about denying doctors or the health care delivery system and everybody involved in it from being informed and -- or from any government entity to disseminate this information which is very valuable information. we need this information. >> what about treatment? >> that language that says recommendations are prohibited from being used by any government entity for payment, coverage or treatment decisions. it seems to me a treatment decision involves being informed provider. if you're prohibiting that information and treatment decision you're doing exactly what you say you're not doing. >> and the sentence right after that says this does not mean we'll disseminate the

information of this april. >> mr. chairman, by my observation we've now had the same debate under different forms or whatever for several hours now, and i wonder if we could -- >> senator enzi, would like to be heard. >> oh, absolutely. if we could, could i make a recommendation for a process? that senator enzi be heard, they respond to the roberts' counteroffer and then we have a regular order of proceeding. >> if i could be heard as well after senator enzi. i'll be short. >> go ahead. >> mr. chairman, one of the reasons we're having difficulty here is we're trying to do this in too few word, and it is a big issue. i had -- i had -- well, there were a number of amendments in on this that deal with a piece and it's a small -- each of them were just a small concern, but this -- one of the reasons that

mandate bothers us is mandate, in my opinion means everybody, but what if you just lob off a little piece and it's not the mandate, it's the exception and my amendment number 7 deals with quality adjusted life year measures that the government could use and that's -- that's exactly what we're worried about with the european situation where they block breast cancer patients from receiving breakthrough drugs and they force patients to wait extra years before they can get treatments and they kept alzheimer's patients from receiving early treatment and they've had life for longing kidney cancer patients and all of these things. that's quality-adjusted life year, qlay. i'm interested in making those kind of decisions in america. my amendment number 8 is prohibiting the use of denying

medicare patients to the elderly and the vulnerable patients against their wishes. that would just be a little piece again. it wouldn't be a mandate or a broad thing of prohibiting everybody, but it might be able to be used and it's the misuse that we're worried about and we don't bend the cost -- i guess we would bend the cost by denying those thing, but i don't think that's any of ouren tent to do that. so i think we're trying to do that in too few words and prohibit is too broad because as you mentioned, maybe it keeps the dissemination of the information from happening which is why senator coburn suggested that extra sentence. i do think we need to take some care with this and that's the reason that there's so much discussion on it. it is critical to what we're trying to do. >> in chairman, senator hatch. >> i agree with the value of doing comparative effectiveness studies, however, in terms of

looking at clinical effectiveness outcomes, but not for making treatment and coverage decisions, i believe patients and providers should better understand their care and be confident of its efficacy, but i don't think we should lose sight of the fact that the basic understanding that medicine is simply not an exact science and there is variability from patient to patient that directly affects their treatment outcomes. and it is only within the confines of the physician/patient relationship, but these treatment decisions ought to be made. i think most of us agree with that and the question is how can we make this language better. clinical comparative effectiveness, if done right, can provide us with valuable information while preserving and protecting patient choice and medical innovation, but it

should not encroach or hinder advances in personalized medicine which is something that's very important i think certainly to me, but to all of us. comparative effectiveness needs to focus on what works best clinically for an individual patient and not simply what is the cheapest option. that's what we're worried about here and, you know, the information must not be used to ration or deny care and that's something that's a legitimate point here. i've been working with some members to try to come up with a bipartisan way of solving this. done right, though, you know, comparative effectiveness has a lot of merit. no question about it and the rules have to be placed in any legislation that we move forward that prohibits the use of cost-based information or treatment to make coverage decisions. i think we should do everything in our power to prevent the rationing of health care and sometimes bureaucrats as much as

some people don't believe it, i know it's true that bureaucrats do tend to get between the doctor and the patient. right here in washington and we even have differences among the various scientifkiencientific os and like we say, if we use comparative effectiveness studies to look at clinical effectiveness outcomes then we're really doing what we ought to do with this, but i think there is merit in what the distinguished senator from kansas has brought up here, and i hope we'll consider it. >> you know, this is one of those interesting debates where i don't hear disagreement on what we agree on so there's a legislative record that doesn't mean anything at all. no one's arguing for rationing and no one's suggesting that there ought to be mandates that you have to follow either guidelines and recommendations from any entity o agency here. and i think there's a danger in starting to -- if you get out

and expect this on any imaginable fact situation you leave yourself vulnerable to the fact situation you haven't thought of and therefore because you haven't included it it must be excluded. there is a danger in that because there is down the road proshgs seed you ares and things where people say it wasn't listed in the bill and therefore go ahead. it's a broader language to encompass everything you're trying to capture makes somewhat more sense to me. i think we've exhausted this conversation. >> mr. chairman -- >> i recommend we go to the vote. this vote will take some -- we'll be back at it again, i presume. i think we try to throw words in here as we're going along and it makes it harder. >> in chairman, at my urging, it's been kind of a one-sided debate, and i think those on my side of the aisle for restraining whereas this debate continues, i think i won't ask you to restrain, but for purposes of today, because i was cognizant of time and senator

burris had flight schedules, et cetera. first of all, in terms of the roberts' counteroffer, i am strongly opposed to that because to term any government agency is too broad. >> he rightfully says -- sdum, any government entity. he rightfully says that this could impact on the va or tricare and, quite frankly, i want them to be able to make up their own minds about what they want to do. i think government entity is too broad and it could have a negative impact. i want to go to this term, rationing, it is a highly-charged, focus-driven word. we know why that word is being used because it's meant to scare people. it's meant to scare people about this health plan. it's meant to scare people about going to value efficacy informed patient-centered medicine, and

quite frankly, rationing occurs every single day. the minute you have a pharmaceutical formulary, you are being told by your health insurance company what drug you can take and what drug you can't take, but often it is based on financial arrangements rather than on clinical evidence. what we are focusing on here is to be able to provide information for value-driven efficacy, for recommendations that would be based on value, efficacy and evidence to be able to inform. now i'm going to ask unanimous consent that the counteroffer that i propose which would say they're prohibited as being used as mandates for payment coverage or treatment and be considered

for adoption. >> reserving the right to object and i do so and i will not object. i just want to respond if i can, and i'm sorry, i'm not keeping time on this debate and i want it to be equal and dire. i respect this senator greatly and i know we'll work together on this vote and i know you're going to win and we'll be coming back and trying to make some accommodation here. the difference between private insurance, i would tell the chairman and he knows this and medicare is that under medicare's balanced billing requirement, a patient can't even use their own money to get treatment that is prohibited by medicare. so even though you would want to do it and pay for it as a sort of a co-pay, with your patients you can't do it. so that's one of the problems. the other thing is this business of assuming that i am using the word rationing as a scare tactic. that is pretty scary to me because of all of the experience that i've had talking with hospital administrators and

hospital boards and pharmacists and home health care people and clinical ad people and ambulance drivers, nurses, doctors, whatever. i have 350 hospitals out there and i have 83 critical access hospitals in kansas, and i know a great many other people in other states here that have the same situation where the rural health care delivery system, and i can tell you that they are very frightened and they are very frightened of cms because they've gone through this before, and i went through the whole case with home health care yesterday. this is a very real problem that's happening every day. i'll give you a personal example of this, and i'm not trying to use this to frighten anybody or a scare tactic. it's real. i know a person who is a little mature in his years who just went -- who just went through knee surgery, and it was not a knee replacement, that there

were three mris and he needs another one within three months. i know that's not going to be permitted by cms because it's triple imaging and i know there are people in this committee that know that there's a lot of fraud accused that if a doctor doesn't feel he's confirmed enough this he'll add all sorts of tests and things of this napeur and we have to get to the bottom of it, but i do know that those particular three mris on this particular individual were cessary, and another one was coming up. and i also know that that would not be prohibited or that would not be allowed and it's my need. it's a personal thing with me, and i think that it's reflected all throughout many, many patients and many, many doctors all across the country. if you don't think rationing is out there right now and we're not rationing care and doctors are making decisions to not

serve patients, you know, go out there in the real world ask take a look. and that's why we have a specialty hospital. i can't afford it. and you will save a lot of money by medicare and the president said he would cut medicare and simply because, you know, the doctors won't offer it. and if that ain't rationing, i'm not country. >> the counteroffer. mr. chairman, what is the pending order? >> the pending order of business would be -- i believe -- >> the roberts amendment. the roberts amendment. let me just say, senator, we've had a good debate about this and

discussion going back and forth and unfortunately, we haven't resolved this despite the fact that this is some common points of interest in all of this, but this is -- to move the process along and we'll have to come back to it and i realize there are a whole host of amendments that i hope you can clean up by this and over the evening we weren't able to come to the understanding that would allow me to agree on language with this which is unfortunate and in that case we'll have the pending businesses and the roberts amendment and we'll have a vote on that and i'll encourage the participants in this discussion debate to spend time over the weekend to come back and see if we can't do something to correct this and in order to get to other matters in the quality area, this whole section we'll deal with now and i'll encourage further consideration and discussion. leave it that way. >> if there's the possibility for more discussion we can probably do that with the voice vote.

>> all those in favor of the roberts amendment say aye. nos, no. nos have it. >> i'd like a roll call. >> if the discussion was still going to be open that maybe we could just do it by a voice vote, but i would defer to your wishes on that. >> dr. coburn had just give tonight chairman the extra paragraph that would protect a dissemination on all of that to doctors and then if we could combine that language to the language that we had worked on for the senator from maryland and myself, we were that close in this debate about reaching a conclusion. i don't know if the ranking member could tell me what the difference is between a voice

vote and i guess if you have it recorded, you lock it up and you put it on a bookshelf and you never take the book back. >> i just got the language and i appreciate tomkoburn submitting it, like any language, words are important, and i think a good suggestion, but rather than just accepting this today and at this very moment, we could take a little consideration. >> can we accept the vote. >> shut the thing down. >> well, the difference is the authority would be then locked in with their vote and i prefer not to lock them in until they get to see the alternate language. they see the light. >> mr. chairman, first of all, one, a voice vote or recorded vote, whatever is the pleasure of the other side is fine with me, but to -- we'll have endless papers passed back and forth on the same topic. we are now at the point where there is a fundamental

difference within the committee. we can have 50 amendments all versions of the same thing. ultimately, we are going to have to come to closure on this. so what i'd like to do, i'll be happy to read senator coburn's language, et cetera, and what i'd like to come to closure now in the roberts amendment for a voice or recorded vote. >> you've had the voice vote and you've had that. the only question is if i can get a recorded vote. if i can get a commitment from the distinguished senator from maryland on the amendment that we can continue to work on this even though there seems to be great distaste for doing that, for me, this is probably the biggest issue in this whole health care business. >> it's not distaste for what we're trying to achieve. we haven't been able to reach an understanding of the language and it's my intention in matters

like this to continue to work where we can reach some accommodati accommodation. you have my commitment on that. >> i think we have been working together. i accepted 17 amendments yesterday. i mean, what was that? 17 amend ams. we go up to every sing will one. we've tried to do it and of that -- >> i'm not questioning that. >> i'm not questioning all of that. there's been a voice on it. it's a voice vote. i'm going to leave it there and we'll continue to try to seek some accommodation. >> mr. chairman, we do appreciate the acceptance of the 17 amendments. we do note that we were left out of the drafting of the bill. so if we have any ideas at all they'll be put in there somehow, but we do think that we have some points that need to be made and we're willing to make the effort to make them. we're willing to make the effort to sit down and some of these have to be member-to-member decisions rather than staff decisions. >> there's another -- i promised

people we'd complete our work between 12:00 and 12:30. there are some additional amendments that people would like to raise outside of this section. >> mr. chairman, i want you to note that there are 15 amendments on comparative effectiveness. >> we've spent two days on one of them, so i would hope as part of ongoing discussion on content, that we would also an agreement on process where -- because all 15 as senator coburn and others have said are a variation on the same thing and each the same words in some ways, so i wonder if we look at these and if we work within the standard that you're setting could we also talk about the process because given this schedule, we will spend 30 on 1 amendments all on the same thing. >> if you're intention is to reject all 15 of those comparative effectiveness

agreements, it will save us time here in committee and it will take additional time on the floor. because we will need to talk about this section a lot more unless there is, you know, some belief that it's not going to be rationing. and if -- as long as we believe that, we're going to need to debate it. and the american people need to know it. hopefully we can come up with wording that gets rid of that very contentious thing. if we do we will make great progress on the bill. >> that was the intention. >> if we debate all 15 amendments, would the gentleman from wyoming then be for time agreements on the floor? see, i think we're going to -- because i go with what senator roberts has said. the two big points of contention will be some version of a public plan and whether we have comparative effectiveness. i think those are the two most

points in the bill. wouldn't you agree? >> that would complete the list of things, that yes. >> probably will be a point of contention. >> let me just say -- let me suggest, let me suggest, this is going to be a process that i'm going to put in a time on this. i've tried to be extremely patient in terms of everyone having an ability to be heard on various matters but i need to move this as acting chair in senator kennedy's replacement, i've got to move along in order to get a job done. obviously it can't go on endlessly. i want the staffs over the weekend to work on these matters, there's 171 amendments pending in the prevention section, and i would urge the members to work on those.

we'll try and have a product ready the first part of the week. senator enzi in terms of adequate time to respond with certainty. we need to get the job done. every single day 14,000 people in this country lose health care. over this weekend, that will be 28,000 and by mond, 42,000 people in our country will lose health care. er day, those are the numbers. while i understand to be patient in the work on this and get it done right and i'm determined to do that, but there's a crowd out there. every one of us around the table have health care. none of us will worry if something happens to a member of our family or children or grandchildren, they'll be properly taken care of. but for 28,000 people over saturday and sunday to lose the health care, that sense of confidence won't be there. they are looking on us and un