12.21.09

Statement On The Managers' Amendment to H.R. 3590, The The “Patient Protection And Affordable Care Act”

Senate Floor

After months of arduous work, the Senate will finally take the first significant step toward bringing needed reforms to health care in this Nation.  Opponents of reform have wasted much of the public’s time by provoking arguments over their distortions about what health reform means.  Opponents have tried to demonize the plan, and have claimed it will never work.  We have overcome weeks of delay tactics employed by the Minority — inexplicably, the most recent delay due to a filibuster against a bill to provide funding for our troops.  These are the tactics of obstruction, and further demonstrate Republicans’ efforts to maintain the status quo.   

Is this the exact bill that any one of us would have written?  Probably not.  I remain disappointed that the managers’ amendment before us today strips the bill of a public insurance option to compete with private plans and does not include a provision I have sponsored to repeal the antitrust exemption for health insurers and medical malpractice insurers.  I believe both of these provisions would go far in providing fair competition into the health insurance market.   

But in looking at this bill as a whole, I believe it stands by the core principles I sought at the beginning of this debate.  It gives Americans affordable access to health care coverage, it reduces costs for families, businesses and government, and it protects consumers’ ability to choose doctors, hospitals and insurance plans.  

The managers’ amendment introduced by the Majority Leader incorporates many important changes to the underlying legislation that will improve the bill.  It includes several provisions that I have long supported and promoted.    

Medicaid

Vermont has always been a national leader in expanding access to health insurance.  In coordinating care, offering comprehensive coverage to children, and developing a system of electronic health records, Vermont has been at the forefront of reform.  It is no surprise that for the third year in a row Vermont, has been ranked the healthiest state in the Nation.   

Unfortunately, a provision included in the underlying bill to expand Medicaid coverage nationwide threatened to penalize Vermont by excluding the State from increased Federal funding, solely because Vermont acted early to do the right thing.  We can all share the goal of increasing access to essential medical services by expanding Medicaid coverage nationwide, but we should not penalize states like Vermont, which demonstrated the initiative to expand its Medicaid program early.   

Senator Reid’s amendment, however, remedies the anomaly in the underlying bill, and will allow Vermont to access additional Federal funding when the Medicaid expansion goes into effect.  I thank Senators Reid and Baucus for working with me to ensure that Vermont’s efforts to expand coverage to low income individuals is not set back by inequities in the underlying legislation.  

Health Care Fraud

The managers’ amendment also incorporates a vital anti-fraud amendment Senator Kaufman and I, as well as Senators Specter, Kohl, Schumer, and Klobuchar, introduced, derived from the Health Care Fraud Enforcement Act which we introduced earlier this fall.

This anti-fraud initiative builds on the impressive steps the administration has already taken to step up health care fraud prevention and enforcement, and on the real progress represented by the anti-fraud provisions adopted by the Finance and HELP Committees and incorporated into the leader’s health care reform bill.  I was glad to contribute to those efforts, and I am glad we are now going even further.  

The Kaufman-Leahy provision will provide prosecutors with needed tools for the effective investigation, prosecution, and punishment of health care fraud.  By making modest but important changes to the law, it ensures that those who drain our health care system of billions of dollars each year, driving up costs and risking patient lives, will go to jail, and that their fraudulent gains will be returned to American taxpayers and health care beneficiaries.  

For more than three decades, I have fought in Congress to combat fraud and protect taxpayer dollars.  This spring, I introduced with Senator Grassley and Senator Kaufman the Fraud Enforcement and Recovery Act, the most significant anti-fraud legislation in more than a decade.  When that legislation was enacted, it provided law enforcement with new tools to detect and prosecute financial and mortgage fraud.  Now, as health care reform moves through the Senate, I am glad we are taking steps to do all we can to tackle the fraud that has contributed greatly to the skyrocketing cost of health care.

The scale of health care fraud in America today is staggering.  According to even the most conservative estimates, at least three percent of the funds spent on health care are lost to fraud – more than $60 billion dollars a year.  In the Medicare program alone, the General Accountability Office estimates that more than $10 billon dollars was lost to fraud just last year. While Medicare and Medicaid fraud is significant, it is important to remember that health care fraud does not occur solely in the public sector.  Private health insurers also see billions of dollars lost to fraud.  That fraud is often harder for the Government to track.  Private companies have less incentive to report it, and in some cases, are responsible for the fraudulent practices themselves. Reining in private sector fraud must be a part of any comprehensive health care reform.   

The Kaufman-Leahy provision makes a number of straightforward, important improvements to existing statutes to strengthen prosecutors’ ability to combat health care fraud.  The bill would increase the Federal sentencing guidelines for health care fraud offenses.  Despite the enormous losses in many health care fraud cases, offenders often receive shorter sentences than other white collar criminals.  This lower risk is one reason criminals are drawn to health care fraud.  By increasing the Federal sentencing guidelines for health care fraud offenses, we send a clear message that those who steal from the nation’s health care system will face swift prosecution and substantial punishment.   

The provision provides for a number of statutory changes to strengthen fraud enforcement.  For example, it would expand the definition of a “Federal health care fraud offense” to include violations of the anti-kickback statute and several other key health care-related criminal statutes, which will allow for more vigorous enforcement of those offenses, including making their proceeds subject to criminal forfeiture.  It also clarifies the intent requirement of another key health care fraud statute in order to facilitate effective, fair, and vigorous enforcement.

The managers’ amendment also includes our provision amending the anti-kickback statute to ensure that all claims resulting from illegal kickbacks are considered false claims for the purpose of civil action under the False Claims Act, even when the claims are not submitted directly by the wrongdoers themselves.  All too often, health care providers secure business by paying illegal kickbacks, which needlessly increases health care risks and costs.  This change will help ensure that the government is able to recoup from wrongdoers the losses resulting from these kickbacks.   

The Kaufman-Leahy measure gives the Department of Justice limited subpoena authority for civil rights investigations conducted pursuant to the Civil Rights for Institutionalized Persons Act.  This provision allows the government to more effectively investigate conditions in publicly operated institutions, such as nursing homes, mental health institutions, and residential schools for children with disabilities, where there have been allegations of civil rights violations.  

These changes will strengthen our ability to crack down on fraud and will ultimately result in significant savings that will make health care more efficient and more affordable.

I am also pleased Senator Reid’s amendment includes a key reform to the False Claims Act that Senator Sanders, Senator Grassley, and I have proposed.  By fixing the False Claims Act’s public disclosure provision, we can ensure that we fairly and appropriately empower whistleblowers to come forward to expose fraud, which is a crucial way to save the government money and ensure the health and well-being of Americans.   

We all agree that reducing the cost of health care for American citizens is a critical goal of health care reform.  We in Congress must do our part by ensuring that, when we pass a health care reform bill, it includes all the tools and resources needed to crack down on the scourge of health care fraud.  This provision is an important part of that effort.  

Free Health Clinics

I am also very encouraged that the amendment before us includes a measure I proposed with Senator Brown to expand Federal Tort Claims Act medical malpractice coverage for free medical clinics. This expanded coverage will help free clinics across the Nation continue to provide and improve a critical safety net for many Americans.   

In 1996, Congress enacted legislation to cover volunteer medical professionals in free clinics with medical malpractice liability insurance through the Federal Tort Claims Act.  This coverage protects volunteer medical staff against liability by substituting the Federal Government for an individual defendant.  But without any explanation in the legislative history, the coverage enacted in 1996 failed to provide coverage for others who are essential to the operation of free clinics, such as non-medical staff, contractors, board members, and the clinic itself.  As a result, free clinics must use scarce funding to purchase insurance on the private market to fill this gap.  This lack of comprehensive coverage for free clinics is inconsistent with the coverage provided to Community Health Centers, which benefit from coverage for all employees.  This provision will remedy this discrepancy.   

This measure will have no impact on the legal rights of a patient injured by a medical error; any victim of medical malpractice will still be able to pursue a remedy for an injury under the Federal Tort Claims Act.  Instead, this amendment will free up scarce resources that are currently being used to purchase liability insurance on the private market.  Informal estimates indicate that this amendment could save free clinics across the country $15 to $20 million a year.  These are funds that will be redirected to providing essential medical services to low-income and other Americans in need.  For example, as a result of this amendment, the Viola Startzman Free Clinic in Wooster, Ohio, will save $17,000 a year.  The Americares Clinic in Stamford, Connecticut, will save $31,000 each year.  Our hard working free clinics in Vermont will save $12,000 each year and will be able to put those savings toward helping Vermonters in need of health care services.  For free clinics operating through volunteerism and private donations and in a difficult economy, these are substantial sums that if devoted to the care of Americans in need will have a significant positive impact.   

And the savings realized through this amendment will cost the taxpayers little if anything.  Free clinics do not perform high-risk procedures such as obstetrics or surgeries, and thus are subject to a lesser risk of liability.  Since 2004, when funds were first appropriated and set aside to cover any claims against free clinic doctors, no claims have been filed.   The bottom line is that this amendment represents significant value to Americans in need of health care services at little cost to the Government and the taxpayer.    

I thank Senator Brown for his support as a cosponsor, and I thank the Majority Leader, Senator Harkin, and Senator Baucus for working with me to make this amendment part of the historic legislation before the Senate.

Medical Liability Reform

Over the course of the past month, I have listened to many of my friends on the other side of the aisle.  It is not surprising that frequently they have argued for one of their pet proposals – medical malpractice reform.  For as long as I have served in this chamber, I have fought against court-stripping measures that limit American’s access to their justice system.  I have also fought to protect the sovereignty of States to make rules for their own justice systems.  Medical malpractice claims are based on state law and for the most part take place in state courts.  I find it curious that some of the same Senators who pledge loyalty to Federalism and the sovereignty of the States under the Tenth Amendment are some of the same Senators who are so aggressively pushing for a Federal “one--fits-all solution” for the justice systems in our 50 States.  

The managers’ amendment includes a provision addressing malpractice liability that has been introduced on a bipartisan basis several times over the past few years.  I support this provision because it respects the States’ primary role in adjudicating the claims of patients injured or killed by medical errors.  I also support this provision because it resists the notion that “one--fits-all” when it comes to litigation issues and it includes the necessary safeguards for patients.

I note for the record that several States’ efforts to reform medical malpractice liability have been struck down as unconstitutional.  For example, Alabama, Florida, Georgia, Illinois, Kansas, New Hampshire, Ohio, Oregon, South Dakota, Washington, and Wisconsin have all enacted caps on damages associated with medical malpractice claims.  And all of those state laws were struck down as unconstitutional for good reason.  I am heartened that no such amendment was seriously considered in this chamber because such arcane measures hurt our children, our senior citizens, and stay at home moms.  The Wall Street Journal has reported on this clear fact when it pointed out that these caps deprive these groups of access to justice.  If we create Federal caps on their ability to recover from serious injuries we are telling them that they are worth less because they are retired, or they choose to stay home and raise a family, or are young children. This is not fair.  I know that no doctor wants to harm a patient, but the solution is not to take away the rights of patients who are seriously injured.

The provision in the managers’ amendment does not encourage draconian damages caps and does not dictate what reforms States must consider.  Importantly, however, it does include specific patient protections that must be in place before a State can receive a grant for liability reform measures.  To the extent that States can pass measures that improve patient safety as well as expedite damages recovery for victims, those reforms will truly improve our health care system.

Antitrust

I am disappointed, however, that the Health Insurance Antitrust Enforcement Act, which I introduced in September, was not part of the managers’ amendment, and will not be part of the Senate’s health reform legislation.  That legislation would repeal the antitrust exemption for health insurers and medical malpractice insurers, and is an integral part of injecting competition into the health insurance market.   

While there are differing views on the best way to inject competition into the health insurance market, we can all agree that health and medical malpractice insurers should not be allowed to engage in blatantly anticompetitive practices, such as colluding to set prices and allocating markets.  My repeal would ensure that basic rules of fair competition will apply to insurers, and is non-partisan.   

My amendment was cosponsored by 23 Senators, and has support from a cross-section of consumer rights organization.  I look forward to working to include this repeal when the Senate and House conference to reconcile their versions of the legislation.   

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The managers’ amendment will improve the underlying bill, and I hope my fellow Senators will support its passage so that we can move toward final passage of the bill.  Each day that passes without reform, 30 more Vermonters lose their health insurance.  We know our current health system is unsustainable.  That threatens not only our health security, but also our economic security.  Doing nothing has been seen as an option before, but it simply is not an option now.  

I hope now, we can work together to pass a bill that will give millions more Americans access to quality, affordable health care.  We should reject the tactics of delay and the efforts to obstruct, and remember that the Senate should be the conscience of the Nation.  With the Christmas season upon us, our constituents are looking to us to do the right thing.  We should adopt this amendment, advance this legislation, and work to send it to the President without undue delay.

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