Friday, May 05, 2006

Senate Live - May 5, 2006

The day is slated to be full of "Morning Business." There will be a brief opening charging the DEMs with being obstructionists for not agreeing to take up meaningful health care, and one might expect all the ancillary health care issues (as well as any other issue) to come out during speeches. Stem cells, energy, immigration, nominations (Kavanaugh in particular), Iraq (a persistent favorite) - potpourri.

Yesterday's action included comments by Senator Frist regarding "The Program," at least as the GOP plans to set the agenda (not that the DEMs will agree to go along) which amount to:

  • Senator speeches relating to discuss medical liability
  • Filing of cloture motions on Motions to Proceed - seems Frist could not get a unanimous consent agreement to take up S.22 and S.23.
  • Monday, at 5:15PM, there will be votes on those cloture motions to proceed to the underlying bills.
  • If those votes fail, the Senate will move to proceed to take up the Small Business Health Plans bill. I think that Bill is S.1955. But Monday is a weekend away.

So, in harmony with the Health Care Initiative by President Bush, announced on Monday, May 1, the Senate is picking up -- health care. I predicted a subtle (yuk yuk) shift of issue, away from immigration and energy prices. And to repeat the agenda on health care, using the President's words ...

The first goal of our health care strategy is to meet the obligation the federal government has made to take care of the elderly and the poor.

... the second part of our strategy is to make care and coverage more affordable and available for Americans. And here are five key policies to support this goal.

  1. Our first policy is to expand health savings accounts ... low-cost catastrophic insurance coverage, and tax-free savings accounts.
  2. The second policy for making health care more affordable and accessible is to increase transparency in our health care system. ... reliable information about prices and quality on the most common medical procedures.
  3. The third policy is to provide modern information technology to our medical system. So, in 2004, I set a goal that most Americans would have an electronic health record within 10 years. Imagine how valuable this access to information will become.
  4. The fourth policy is to make it easier for small businesses to obtain the same discounts that big companies get when obtaining health care insurance.
  5. Our fifth policy ... is to confront the glut of frivolous lawsuits that are driving good doctors out of practice and driving up the cost of health care. To avoid junk lawsuits, professionals in the health care field are forced to practice defensive medicine. They order tests and write prescriptions that are not necessary, so they can protect themselves from trial lawyer lawsuits.

I suspect that template, or parts of it, will be the order of the day. S.22 and S.23 go to the fifth policy. The buzz-phrase is "defensive medicine," get used to it.

Another Circuit Court nomination yesterday, Jerome A. Holmes to the 10th Circuit. This is interesting, as Judge Holmes' ABA rating includes a minority "Not Qualified" entry. See for a brief snip and additional links. And the summary here has been updated as well.

I just posted selections from yesterday's record, on yesterday's "Senate Live" post. Here are the orders for the day:


Mr. FRIST. Tomorrow, the Senate will continue to discuss medical liability and small business health plans. Tomorrow, it will be necessary to file cloture motions on the motions to proceed to these bills. Senators can expect two votes Monday afternoon at approximately 5:15. These votes will be cloture votes to proceed to the two medical liability bills. If cloture is not invoked on these bills, we will have a cloture vote on Tuesday morning on the motion to proceed to the small business health plans bill.

So on review, I take it that THREE cloture motions will be filed today. One for each S.22, S.23, and S.1955. The votes on Monday afternoon will be on motions to proceed with S.22 and S.23.

Frist is on deck - notes a vote Monday will be on medical malpractice liability. DeMint's S.2750 also does that, but in a more narrow sense (emergency room and Medicare payments) than S.22 and S.23 do. Ooooh - CRISIS CRISIS CRISIS in neurosurgery. And obviously, increases in court awards are eventually passed through to consumers. Hey, either via doctor bills, of via taxes, you betcha.

Hahahaha ... defensive medicine. Need the paper record to show you did the right thing. Huh? Is it the right thing? How do you know it's a total waste? Patients like to be tested. Follow the money, who is getting paid for conducting the test? The test folks rarely get sued. Not never, but rarely, compared with the doctors who "fail to avail" of testing. He's full of himself, using doctor terms - baffle 'em with bullshit. I wonder how many of the med mal cases are won on the factor of failure to test/detect.

Outlining the plan for the next several days ... the DEMs will object to proceeding to the bills (yes, we know that), so in order to force the matters to be considered, Frist sends S.22 cloture motion to the desk; S.23 cloture motion to the desk; he asks for votes on these to be held at 5:15 PM Monday. And finally, a cloture motion on S.1955. He also defines the times for debate between the parties, time evenly divided.

Two cloture votes starting at 5:15 PM Monday, S.22 and S.23; and -if- and -only if- those cloture votes fail, the Senate would conduct the cloture vote on S.1955 (Small Business Health Plans) on Tuesday morning. Frist is excited about attacking this head on. He yields the floor. Promises to be a slow day there, which is good because I plan to play outdoors today.

Senator Reid picks up at the absence of health insurance for 46 million Americans. People are opting out of "pay for" insurance, in part due to the cost of the insurance premiums. Average cost of $3,481 for insurance (where do I sign up?). I'm not sure where he's going with this. Maybe he wants to cap fees for health care, etc.

Says Reid, we need a new direction in health care. The Republicans continue to hold the insurance companies in their arms. Reid wonders why it has taken so long to even get to this debate - instead the GOP picks fights on radical judges, bankruptcy, giveaway to firms hampered by asbestos litigation, and now "health care week" is a PR gimmick, just like "Mission Accomplished" was. Reid then asks who the GOP wants to help - and he asserts it is special interests, and not the people. GOP has not a single prescription to deal with this medical care emergency. Reid says that tort reform has been defeated time and again, and will be again. Reid says that medical malpractice bills do nothing to help the consumer. BORING - same old arguments, and neither side is getting to the nub of it.

Reid's solution is to legislate/regulate the insurance industry. Wants to bring them into antitrust act - I didn't realize that insurance had an antitrust exemption - but it seems reasonable in that insurance is HIGHLY REGULATED at the state level.

Coburn's talk is a good one. He quantifies that 6% of the cost of health care is due to unnecessary testing. Also that 84% of malpractice cases are without merit, but are settled by the insurance companies. Settlement is a business decision, being cheaper to settle than litigate. Well, woo hoo, he gets it - market distortion due to wacky orders from the legal system.

He segues, not gracefully, into a "transparency of cost of procedures" line of argument. I'd love to see the analysis done in terms of QUANTIFYING where the money is going, because this rhetoric of anecdote is just not satisfying my curiosity on the issue.

A couple of links relating to Judicial confirmations. The gang of 14 is meeting on Tuesday to discuss whatever they discuss (hat tip to; and Byron York notes Republican discernment (I call them out as being chicken to fight a real battle, and choosing show battles) in bringing judicial nominations up for debate.

I like that the judicial confirmation issue is elevated in public consciousness, but I am deeply disappointed in the GOP for not arguing on principle - and I use Myers as PROOF that the argument is one of political expediency, not one of principle.

Frist closing shop in the Senate at about 1:10 PM, Eastern Daylight time. Senate to open again at 1 PM Monday. With furrowed brow, he exhorts the seriousness of the issue and expresses that he wishes the Senate will agree to proceed on S.22 and S.23. But if those two fail, then the Senate will wait until Tuesday to decide if it should proceed on S.1955. The Senate now stands in adjournment until Monday, May 8th. Wow. What a week! Good Job! Or should I say Good job, Fristie!

Selections from the Record


... If those cloture motions fail, on Tuesday morning we will have a cloture vote on proceeding to the Small Business Health Plans legislation.

Mr. President, the way this is configured is that we have a vote on the first medical liability bill, which is a comprehensive bill built pretty much on this Texas model that I referred to in my earlier remarks. If that is successful, we will continue the debate on that. If it is not, we would continue with another medical liability bill that has a slightly different focus to it, again based on the Texas model. It will focus on in particular where medical liability premiums are felt most acutely: in women's health care and babies' health care, pediatrics and maternal health care, and that is obstetricians and gynecologists. I hope we will be allowed to proceed and debate on those two. We will be voting on both of those, or at least one of those but up to two on Monday night, with no votes after those two votes on Monday night.

Depending on the outcome but following whatever that outcome is, we will turn to the small business health reform plans.

["Depending on the outcome," or "Regardless of the outcome"? I think the distinction is one of timing in that all three bills are intended to be brought up next week. The difference being only whether the cloture vote on the motion to proceed to S.1955 occurs on Tuesday morning, or later.]


Mr. REID. ... Not one of these bills we are going to take up next week has anything to do with helping people with their health care.

One bill they claim will help small business. The others they claim will help patients and doctors. These bills will do just the opposite.

In the Orwellian world in which we find ourselves in Washington, under Republican control, whatever they say it does just the opposite.

Far from helping, the measure dealing with small business health care, for example, that we will get to next week, threatens the coverage of those who have insurance now. It does nothing to extend coverage to those who need it. It gives control of our health care to the insurance companies even more. Insurers, not doctors, will decide if you get coverage and what you will be charged. That is what the legislation is about.

After these three bills, we are done with health care this year. That is enough. We have had health care week. Three bills that do nothing, and we are done with health care and on to something else. ...

Where, for example, is stem cell research? Where are Medicare improvements? Where is relief for the uninsured and small businesses in this country?

In one bill, sponsored by Senators BAUCUS, LINCOLN, and DURBIN, they have health care legislation in the Senate that would actually help small businesses. It would give them the ability to pool and choose from the same health care options that we as Senators have. If it is good enough for us, why don't we give everyone the same opportunity we have, and do it soon--such as next week?

Senator Leahy, ranking member of the Judiciary Committee, has insurance reform legislation that brings the insurance industry under the Federal antitrust laws. ...

What about stem cell research? ...

Where is Medicare on the Republican agenda? After May 15th, a few days from now, any people who have not signed up for this flawed plan have to wait until next year. And next year when they sign up, they have to pay a penalty. They cannot sign up in the meantime. They have to wait until next year.

Five months after this program has gone into effect, it is still mired in confusion and red tape.

A real health care week would fix Medicare's problems, extend the May 15 deadline, it might eliminate penalty from the President's drug program, and include a repeal of Medicare's prohibition from negotiating with drug companies for cheaper prescription drug prices.

Isn't it hard to comprehend that Medicare cannot bargain for lower prices for the drugs they purchase? CVS can. Rite-Aid can but not Medicare. Why? Because when that bill was written, they wanted to give an unfair advantage to the drug companies. And they gave it to them.

America's health care crisis is real. Unfortunately, the majority's commitment to solving it is not. Next week, as we did with gas prices, Republican actions will tell us they care about health care, as they cared about gasoline prices. The best they could come up with was a $100 rebate which has been panned in every newspaper and by every commentator in America the last 10 days.

[While I have to agree that the $100 gasoline rebate was a political stunt, and a stupid political stunt at that, Senator Reid's proposed "solutions" to improve the efficiency and reliability of health care fall flat on my mind. I'd like to see some serious debate on extending the option to buy into Senators' health care plan to all who are present in the country (wouldn't want to limit the right to citizens, eh?) - if nothing else, the public would learn whether or not the insurance company is giving a good deal. I wonder too, is the Senators' plan different from the plan for the House? Either way, the pool of insureds seems pretty small.]

Mr. ALLARD. ... Being a veterinarian and lifting heavy dogs on the exam table all the time and not expecting the dog owner to pick up the other half of a Great Dane, I ended up having back problems and had to have back surgery. I didn't have health insurance. I paid for it myself out of my own pocket. Fortunately, my wife and I had the foresight to set aside a savings plan so that if something such as this did happen, we could pay for it. But it set us back. We were able to survive that particular incident. It was kind of an interesting thing. They did not want us to go into the hospital. They would not let us in because we did not have health insurance. I said: I will pay for it. When we got in there, we had the surgery, and I did very well, and I am very active today. Consequently, they did a great job on the surgery, and when we checked out of the hospital, they said they would reduce our costs 20 percent because ``we do not have to deal with the paperwork of dealing with the costs of having to process your claim.''

So much of the paperwork is driven by trying to protect themselves from frivolous lawsuits. That has been my personal experience. ...

[My personal experience is similar. Better pricing when paying out of pocket than when paying via insurance. In my case (son's broken arm) the significant reduction was assigned the reason "we won't have all the follow-up visits that are normally scheduled. You just come in if (list of symptoms) presents." In other words, insurance drives a predicable cash flow - if insurance is willing to pay for it, doctors will call for it.]

Doctors are moving to States with a more favorable medical liability climate, leaving some areas underserved. In the State of Colorado, which I proudly represent, about a decade ago we did a lot to try and hold down the costs of medical insurance. We dealt with a lot of aspects of medical liability reform. Many of those we have in this bill, but we actually went further than what is in the bill.

The bottom line is, in Colorado, we were able to hold down the costs of medical insurance for medical doctors fairly significantly. One of the problems that happened in States such as Colorado, although we had done a lot of things to hold down the cost of health insurance, we found because health insurance companies pool their risks from States other than Colorado, we did not have the impact in some cases we expected to have because other States have not done that much in trying to hold down the cost of health insurance and liability problems that doctors incur when they are in their practices.

[Federalism takes another hit in the name of political expediency, and an opportunity for the Feds to assert control where perhaps it need not assert control. I know, in time I will be assimilated too.]

Mr. DORGAN. ... A bipartisan group of Senators and Members of the House believe that the way to break the back of increased drug prices or drug pricing that is unfair to the American consumer is to allow the reimportation of prescription drugs from Canada. The FDA will allow someone to come across for personal use with maybe 3 months' worth of drugs, but otherwise it is illegal. In Europe, it is not illegal. If you are in Germany and want to buy a drug from France, if you are in Spain and want to buy a prescription drug from Italy, they have a system by which you do that. It is called parallel trading.

It has been done for 20 years. There is no safety issue. And through it the consumers are able to get the best prices on approved prescription drugs. In this country, you can't.

The majority leader is going to bring a health care bill to the floor next week that deals with medical malpractice and will apparently ``fill the amendment tree'' or file cloture so that no amendments can be offered. But will the majority leader allow us to vote on a bipartisan proposal to put downward pressure on prescription drug prices? No, he would not do that. Why? Because the pharmaceutical industry doesn't want that legislation on the floor. So we will not have it, I guess.

[This is a grouse that impacts patent law, and the role patents play in facilitating investment in research. I suspect that reduction in price of ethical drugs in the US will result in reduced R&D - not necessarily a bad thing either, the research may relocate offshore, etc. While it's hard to predict details of the effect of reducing financial incentives - that is, the ability exclude others (patent) being used to recover speculative investment in research and development - the general trend will be to get less of it.]

[I also agree that GOP leadership has been pretty blatant at limiting the amendments that come up for consideration. This is an exercise of raw power, and indicates to me (in many cases) an inability to win an argument on its merits. Not that I think the DEM ideas are good - I don't. That comment is criticizing the GOP for an inability to WIN A FAIR ARGUMENT, and to cover the inability (to compose the argument and obtain agreement on a rational basis) by avoiding the argument altogether. Might be okay in the short term, but those DEM/Socialist types are going to come back to every one of these points, and at some point the argument has to be had.]


Mr. GRASSLEY. ... I would like to address the claim that there is a shortage of ethanol. ...

If there is no shortage, what good does it do to eliminate the import tariff on imported ethanol? None. Domestic supplies are sufficient.

Lifting the tariff won't have an impact on gas prices because the only other major producer of ethanol--Brazil--simply doesn't have enough ethanol to export at significant levels at this time. I know this issue well. I was in Brazil just six weeks ago, and one thing I heard over and over was that Brazil is experiencing an ethanol shortage.

Shortages of ethanol in Brazil are being driven by strong demand for ethanol in that country. Looking at the longer term, USDA analysts in Brazil are reporting that Brazil is anticipating even higher demand for ethanol later this year and in 2007.

Given low supplies in Brazil, there has even been talk of importing ethanol into Brazil.

I would like to point out something else. Brazil and other countries can already ship duty-free ethanol to the United States. They don't have to pay the U.S. tariff. Under the Caribbean Basin Initiative, Brazilian ethanol that is merely dehydrated in a Caribbean country can enter the U.S. market duty-free up to 7 percent of the U.S. ethanol market. That's generous access, but Brazil has never even come close to hitting the 7 percent cap.

[He's the other side of the "ethanol shortage" story. I like when two side make what appear to be irreconcilably conflicting claims, because it causes curiosity - "What is going on, in fact?" I can understand Grassley's protecting ag/methanol industries, and it may be that gasoline spot shortages aren't literally the result of US ethanol supplies.]


The following reports of committees were submitted:

By Ms. COLLINS, from the Committee on Homeland Security and Governmental Affairs, with an amendment in the nature of a substitute:

S. 2459. A bill to improve cargo security, and for other purposes.

[Also known as the "GreenLane Maritime Cargo Security Act"]


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