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Public Statements

Providing for Consideration of H.R. 5, Protecting Access to Healthcare Act

Floor Speech

By:
Date:
Location: Washington, DC

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Mr. NUGENT. Madam Speaker, I rise today in support of this rule, House Resolution 591.

H. Res. 591 provides a structured rule so that the House may consider H.R. 5, the Help Efficient, Accessible, Low-cost, Timely Healthcare Act of 2012. The rule provides for 6 hours of debate on this vital issue.

In my opinion, the HEALTH Act is one of the most imperative pieces of legislation to come to the floor of the House in the 112th Congress thus far. The bill repeals a particularly egregious part of the government takeover of health care: the Independent Payment Advisory Board, or IPAB.

In case you're not aware, IPAB is the 15-member panel created by ObamaCare to rein in Medicare costs. IPAB is made up of 15 unelected bureaucrats. The majority are not doctors, and their decisions will have the force of law and will go into effect automatically without the consent of Congress. We'll get back to IPAB in a moment.

H.R. 5 also implements long-needed medical malpractice tort reform. I hear all the time that we need to bring down the cost of health care. My colleagues on the other side of the aisle claim that the government takeover of health care would do just that, reduce the cost of health care.

In fact, President Obama claimed it would lower premiums by $2,500 per family per year. We know that's just not the case. Since inauguration day in 2009, premiums have risen by $2,213, almost the same amount the President promised he was going to save us. The annual Kaiser Foundation survey of employer-provided insurance found that average family premiums totaled $12,860 in 2008 and are now $15,073 in 2011. Moreover, the CBO, the Congressional Budget Office, projects the law's new benefit mandates will force premiums to rise on top of that $15,000 by $2,100 per year per family.

Malpractice reform, on the other hand, will most definitely reduce the cost of health care. We've seen what defensive medicine is: CAT scans ordered, antibiotics prescribed, blood tests conducted--not because the doctor thought they were necessary, but because he or she was scared that if they didn't order them they would be sued for not prescribing them.

A Department of Health and Human Services study said that defensive medicine costs between $70 billion to $126 billion a year. That's billions. The CBO estimate takes a little more moderate stance, putting that number around $54 billion. Let me tell you, $54 billion, $70 billion, $126 billion, that's a lot of money in anybody's terms.

I've heard from a lot of folks they are opposing the legislation because it defies States' rights. I have to say I'm particularly surprised to hear so many of my colleagues on the other side making this argument. I'm happy to see they've come to recognize the importance of States' rights and of State sovereignty. I hope that means that we can count on them for their support and efforts in moving forward to take Federal power away from Washington, D.C., and return that power back to the States, where it belongs and where our Founding Fathers envisioned it to be.

I want to take a moment to make it clear to my colleagues on both sides of the aisle why this bill, H.R. 5, does not trample on the rights of our States.

In the modern era, Congress has enacted many Federal tort reform statutes to supersede contrary State laws, including recent Federal tort reform protecting the vital domestic firearms industry, and judicial precedents leave little doubt as to their constitutionality. Even President Reagan, who was an unabashed champion for the States, established a special task force to study the need for tort reform, which concluded that the Federal Government should address tort reform across the board.

I fear that the folks who are claiming the 10th Amendment and States' rights aren't looking at the entirety of H.R. 5. They aren't looking at all of the provisions that make it clear that the caps created in this bill only apply to States that don't already have their own caps.

These provisions--``flexi-cap'' they are called--recognize that any State amount on caps takes precedence to this piece of legislation. That means if a State has a billion-dollar cap, good for them, let them keep it. It also means that if a State has a $100,000 cap, they can keep it, too. If a State decides to pass a law and establish a cap on their own to change their existing cap, they should go ahead and do it because H.R. 5 isn't going to do anything to stop them from doing that.

H.R. 5 clearly ensures that it is a State's right to set its caps where it wants them. I understand that trial lawyers won't like the Federal limit. Luckily, I really worry about the American people as a whole, not just what trial lawyers have to say.

I know this may be speculation, but I think that special interest groups and, perhaps, some of the new converts to the 10th Amendment are hiding behind the States' rights argument because, in fact, they just don't want to see their own profits go down. But I fear that the States' rights discussion is a red herring that only gets us off the most important issue, the issue that I started off with, the Independent Payment Advisory Board. Plain and simple, IPAB is going to cut the health care that our Nation's seniors can receive.

This Medicare-rationing board, which is what this is, will decide the value of medical services and impose price controls that will slash senior access to doctors and other health care providers. We see this happening already.

The Centers for Medicare & Medicaid Services actuary has confirmed that large reductions in Medicare payment rates to physicians would likely have serious implications for beneficiary access to care, utilization, intensity, and the quality of that care. As Donald Berwick, President Obama's appointee as the Medicare administrator, said:

The decision is not whether or not we will ration care. The decision is whether we will ration with our eyes open.

H.R. 5 takes that choice away from Administrator Berwick, from IPAB, and from President Obama. H.R. 5 sets forth a new way forward, a way that says we don't need Washington bureaucrats, who haven't even practiced medicine, telling us what's best for us.

We need to sit down with our doctors and come up with individual treatment
plans, a way that actually does something about health care costs by removing frivolous lawsuits from the equation, a way forward that means States' rights are still protected while also protecting seniors' rights to the best health care options available.

Madam Speaker, I support this rule, and I support the underlying legislation, and I encourage all of my colleagues to do the same.

With that, I reserve the balance of my time.

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Mr. NUGENT. Madam Speaker, I love the hyperbole. I love my friend from Florida's passionate discourse earlier in this conversation. But he was right. You can't have it both ways.

Here's the problem. In their idea of having it both ways, they talk about medical malpractice as if, if we do nothing, things get better. If we ignore tort reform, things get better. If we ignore tort reform, costs of health care will stay the same. Well, in fact, it hasn't. It continues to rise.

We talk about higher health care costs, but when we talk about that and we talk about IPAB in particular, 15--15--unelected bureaucrats. The maximum number that can be on that panel is seven physicians--seven--so they're outvoted already. They're outvoted 8 7. No matter what they think is the proper care for a patient, they're going to be overridden by eight other bureaucrats that have nothing to do with providing health care to our seniors--not a thing.

It's all going to be about costs. And they're right: that's how you're going to contain costs, by removing the options for seniors to get the medical care that they deserve and that they need.

This independent panel is a rationing board. It's going to ration health care out because that's the only way that panel can save money for the Affordable Care Act. It was designed that way. It was designed to keep us--the American people that are going to use that service, that medical care--from getting it because physicians, when they get their payments cut, will no longer offer service. So where are we supposed to go? That is rationing. That's taking away service from people that need it the most, from those seniors that have paid into this system for their lifetimes and who are now depending on it to be there when they medically need it the most.

This is about the seniors that are in my district. I have 250,000 seniors, a quarter of a million, that rely upon Medicare. And if we're going to start rationing care to them, I think it's immoral, it's unethical, and it's not the way we should be doing it. We should be doing it by the free market. We should be talking about tort reform. Everybody agrees we need tort reform. Even the gentleman from Florida talked about the high cost of medical malpractice insurance. Well, where does that come from? It doesn't just spring up out of the Earth. It comes up because of a reason: because of the increased cost to provide medical malpractice. And, particularly for doctors, where it drives up the cost of medical care is that defensive medical care. That's what's driving up the cost along with the premiums that they have to pay because of the lack of tort reform.

Madam Speaker, I reserve the balance of my time.

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Mr. NUGENT. Madam Speaker, I have to agree with my good friend from Florida on one issue, and that's in regard to rationing. You're right, it's not in the act. But if it walks like a duck, quacks like a duck, then it's a duck, because this board, this unelected board, is going to make decisions that Congress can't even touch. This board is going to say, this is the amount of money we will pay for this procedure. It doesn't matter if that's what the procedure costs. It doesn't matter that this doesn't cover the cost of the physician. It doesn't matter that what's going to happen is our physicians are going to refuse to see those patients.

Madam Speaker, that is rationing. Call it what you want. That is rationing when you have an independent board that can make decisions in regard to the cost of services that you're going to make or decisions for you to have services by a particular doctor. We see it already today. In my physician's office it already says, ``We do not take new Medicare patients.''

It's going to get worse. And this board, while it may not call it ``rationing''--I give them great credit for not putting that in the terminology of the Affordable Care Act--it is rationing no matter what you call it.

I reserve the balance of my time.

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Mr. NUGENT. If you look at what the Ryan plan said, it also talks about what we currently have today and that, if you want to keep what you have today in the way of Medicare, you keep it. But if you want to go out and buy your own insurance through a select group, you can do it, just as you can today, in regards to Medicare Advantage, but that's a choice that I can make.

I thank you for giving me the time.

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Mr. NUGENT. Madam Speaker, in closing, I appreciate my good friend's confession about being a trial lawyer. I'm not. I'm not an attorney. So what I'm worried about is not how attorneys enrich themselves; I'm worried about the people that I represent, the 250,000-plus that are on Medicare. I'm concerned about them.

You hear from the other side, well, don't worry about it. It could be 5, 10 years from now. Well, you know what? I'm concerned now because why would you have something put in place that's going to ration care to our seniors when they need it the most? That's when they need it the most. We should be advocating for them, not for trial lawyers. We should be here talking about tort reform to lower the cost. If you look at what California did, they're a model. They set up a model program. Their liability insurance for doctors is lower than the average across the board in the United States. This act, the HEALTH Act, is modeled after that.

In regards to the noneconomic damages, limits on contingency fees for lawyers, big one there; about fair share, about proportional, whoever's at fault. It's a proportion of that reference to how the claim gets paid out. And I heard this talked about before: But will the health care act work to reduce health care costs and lower the deficit? According to the CBO, it will. It will be an average of 25 to 30 percent below what it would be under current law, which is IPAB today, 25 to 30 percent less than what the current law, IPAB, calls for.

Is this important? I think the relationship between a patient and a doctor should be between a patient and a doctor and not have a middleman, called the United States Government, stepping in between you to say, ``You know what? We don't think that that service deserves a certain level of payment,'' and by reducing that payment we know that that service is not going to be provided. I truly don't believe that that's where we should be as a government, and I certainly don't believe that we should be in between the patients and their physicians.

I also worry about--and I hear this from docs all the time back in my district--Rich, you know what's going to happen? We're just going to close our doors. Those that are entering the profession, there's less and less because they're concerned about how they're going to make a living, how they're going to pay back those student loans that they have, because they really want to pay it back. They want to do the right thing. But how are they going to do that if they can't open a practice and if they can't take Medicare patients because this board makes a decision to lower the cost of reimbursement?

We've seen it already. Every time we do a doc fix, we have more and more doctors that are in trouble because of the fact they don't know what tomorrow's going to bring, and I don't want our seniors to worry about what tomorrow is going to bring. I don't want to balance the budget on the back of our seniors. That's not where we need to be.

As we move along here, the reason I stand here today is that I support and I will defend our seniors, which is why I support H.R. 5, because it's common sense.

Like I said, I'm not an attorney. I'm not a lawyer, so I have but one constituency that I worry about at this point on this particular issue, and it is this issue. You put all kinds of other stuff out there about transportation and all these things, but this is the pressing issue today in front of us. The issue is about tort reform. The issue is about IPAB and repealing IPAB so our seniors can have a direct relationship with a physician of their choice, and that's the important part.

The material previously referred to by Mr. Hastings of Florida is as follows:

An Amendment to H. Res. 591 Offered by Mr. Hastings of Florida

At the end of the resolution, add the following new sections:

SEC. 2. Immediately upon adoption of this resolution the Speaker shall, pursuant to clause 2(b) of rule XVIII, declare the House resolved into the Committee of the Whole House on the state of the Union for consideration of a bill consisting of the text of the bill (H.R. 14) to reauthorize Federal-aid highway and highway safety construction programs, and for other purposes. The first reading of the bill shall be dispensed with. All points of order against consideration of the bill are waived. General debate shall be confined to the bill and shall not exceed one hour equally divided and controlled by the chair and ranking minority member of , the Committee on Transportation and Infrastructure. After general debate the bill shall be considered for amendment under the five-minute rule. All points of order against provisions in the bill are waived. At the conclusion of consideration of the bill for amendment the Committee shall rise and report the bill to the House with such amendments as may have been adopted. The previous question shall be considered as ordered on the bill and amendments thereto to final passage without intervening motion except one motion to recommit with or without instructions. If the Committee of the Whole rises and reports that it has come to no resolution on the bill, then on the next legislative day the House shall, immediately after the third daily order of business under clause 1 of rule XIV, resolve into the Committee of the Whole for further consideration of the bill.
SEC. 3. Clause 1(c) of rule XIX shall not apply to the consideration of the bill specified in section 2 of this resolution.

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(The information contained herein was provided by the Republican Minority on multiple occasions throughout the 110th and 111th Congresses.)

The Vote on the Previous Question: What It Really Means

This vote, the vote on whether to order the previous question on a special rule, is not merely a procedural vote. A vote against ordering the previous question is a vote against the Republican majority agenda and a vote to allow the opposition, at least for the moment, to offer an alternative plan. It is a vote about what the House should be debating.

Mr. Clarence Cannon's Precedents of the House of Representatives (VI, 308 311), describes the vote on the previous question on the rule as ``a motion to direct or control the consideration of the subject before the House being made by the Member in charge.'' To defeat the previous question is to give the opposition a chance to decide the subject before the House. Cannon cites the Speaker's ruling of January 13, 1920, to the effect that ``the refusal of the House to sustain the demand for the previous question passes the control of the resolution to the opposition'' in order to offer an amendment. On March 15, 1909, a member of the majority party offered a rule resolution. The House defeated the previous question and a member of the opposition rose to a parliamentary inquiry, asking who was entitled to recognition. Speaker Joseph G. Cannon (R-Illinois) said: ``The previous question having been refused, the gentleman from New York, Mr. Fitzgerald, who had asked the gentleman to yield to him for an amendment, is entitled to the first recognition.''

Because the vote today may look bad for the Republican majority they will say ``the vote on the previous question is simply a vote on whether to proceed to an immediate vote on adopting the resolution ..... [and] has no substantive legislative or policy implications whatsoever.'' But that is not what they have always said. Listen to the Republican Leadership Manual on the Legislative Process in the United States House of Representatives, (6th edition, page 135). Here's how the Republicans describe the previous question vote in their own manual: ``Although it is generally not possible to amend the rule because the majority Member controlling the time will not yield for the purpose of offering an amendment, the same result may be achieved by voting down the previous question on the rule ..... When the motion for the previous question is defeated, control of the time passes to the Member who led the opposition to ordering the previous question. That Member, because he then controls the time, may offer an amendment to the rule, or yield for the purpose of amendment.''

In Deschler's Procedure in the U.S. House of Representatives, the subchapter titled ``Amending Special Rules'' states: ``a refusal to order the previous question on such a rule [a special rule reported from the Committee on Rules] opens the resolution to amendment and further debate.'' (Chapter 21, section 21.2) Section 21.3 continues: ``Upon rejection of the motion for the previous question on a resolution reported from the Committee on Rules, control shifts to the Member leading the opposition to the previous question, who may offer a proper amendment or motion and who controls the time for debate thereon.''

Clearly, the vote on the previous question on a rule does have substantive policy implications. It is one of the only available tools for those who oppose the Republican majority's agenda and allows those with alternative views the opportunity to offer an alternative plan.

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