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Public Statements

Health Care Appointment

Floor Speech

Location: Washington, DC


Mr. KYL. Thank you, Mr. President.

Now let me set the record straight. Republicans have never said no to Dr. Berwick. We have never blocked a vote on Dr. Berwick. There has never been a vote called on Dr. Berwick. In fact, there has never even been a hearing on Dr. Berwick. Republicans have not stopped his nomination.

It is true there hasn't been a permanent director of the agency that Dr. Berwick will now head since 2006. When Barack Obama became President on January 20, he could have corrected that problem. But I suspect the reason he didn't nominate anyone to head CMS during the debate on the health care bill is because if Dr. Berwick was his nominee, the last thing the President wanted was a discussion of Dr. Berwick's views on health care. His views are antithetical to the views of the majority of the American people, supporting rationing, as he does, and his love affair with the British single payer system, as he has described it. This is not something the American people would have countenanced. So Barack Obama, the President, rather than filling the position, decided to hold off on nominating a person to head CMS until after the health care debate was over.

Now, this is bait and switch. This is not the transparency that Barack Obama promised when he campaigned for the job of President. Instead, in my view, it is hiding the ball: Let's get health care passed, not tell anybody we are going to nominate Dr. Berwick to head CMS, and then, after the bill is passed--in fact, I think about 4 months after the bill is passed--nominate Dr. Berwick, and then have the gall to say Republicans stopped his nomination. We haven't stopped his nomination. There has been nothing for us to stop. There has been no vote.

I am on the Finance Committee. The chairman of the Finance Committee, a Democrat, Max Baucus from Montana, was very upset about the fact that the President appointed Dr. Berwick because he said: I haven't even had a chance to call a hearing yet.

Republicans stopped the nomination? No, we didn't stop it. Has there been a vote on the floor of the Senate? No. Has there been an attempt to have a vote? No. So how could we have filibustered a nominee who hasn't had a hearing, when his name hasn't even been brought up in committee, and who hasn't been sent to the Senate floor for action?

Well, they say: We anticipated you would have objected to him. Yes, that is true. Knowing all we know about him, you are right; a lot of us would have objected to him. So bring him up for a vote, and let's have the vote, up or down. If he has the votes to pass, he passes. If he doesn't, then perhaps the American people's will has been expressed.

I wish to remind my colleagues that the ranking Republican on the Senate Finance Committee, Chuck Grassley, requested a hearing for Dr. Berwick. He requested that it take place the week of June 21. Why? That was before the hearings for the Supreme Court nominee, Elena Kagan. The reason Senator
Grassley did that was because he wanted to make sure for the several of us--there are three Republicans and I know at least one Democrat who serve on both the Judiciary Committee and the Finance Committee. He wanted to make sure we would have an opportunity to attend both hearings because we knew the time the Elena Kagan hearings were going to be held in the Judiciary Committee. He specifically requested that Senator Baucus schedule the hearing for Dr. Berwick the week of June 21. He would have been happy to be there. I would have been happy to be there.

For anybody to suggest that Republicans are to blame for the fact that Dr. Berwick's nomination didn't come to a vote or wasn't brought to the Senate floor is sheer fantasy. We have not held up the nomination. We have not prevented a vote. We have not blocked the vote. Yes, we have been critical of Dr. Berwick. Since when is that a crime? Since when is that the party of no?

Let me mention a few of the reasons we are critical of Dr. Berwick and why the American people are going to rue the day that the President, while we were gone from Washington over the July 4 recess, recess-appointed Dr. Berwick. He didn't go through the regular Senate process. He made a recess appointment before Senators had an opportunity to have a hearing or to have a vote.

Well, I think I know some of the reasons. First of all, his radical views on health care policy. I am not going to quote all of the things he has said, but he did describe his love of the British single payer system in very poetic terms. He said he was in love with it. He has described it in the most glowing terms. He said his preference is for absolute caps on health care expenditures in the United States. He says competition is one of the biggest problems in American health care. He says he believes in one-size-fits-all care. That is a direct quotation. Everything I have said here are quotations from different things he has written, all the way from 1992 through 2008.

We wanted to hear more about some of these views, especially since the CMS, or Center for Medicare and Medicaid Services of the Department of Health Care that he will head up, is in charge of administering the health care law we passed, a law that does--let me just mention four specific things it does, with a budget, as I said, larger than the Pentagon budget. I think he has something like $803 billion in benefits this fiscal year that he has the opportunity to dole out. So there is a great deal of power.

First of all, we know the bill establishes a Medicare commission which is given the responsibility of finding sources of excess cost growth, meaning tests and treatments that are too expensive or whose coverage would mean too much government spending on seniors. There is an opportunity for rationing.

The law will redistribute Medicare payments to physicians based on how much they spend treating seniors.

That is a way they can adjust the payments and, therefore, determine care.

Third, it will rely on recommendations from the U.S. Preventive Services Task Force--that is the entity that last year recommended against mammograms for women under the age of 50--in order to set preventive health care benefits, which is another form of rationing.

Finally, it will authorize the Federal Government to use comparative effectiveness research, or CER, when making Medicare determinations. Republicans tried to get on a simple amendment to that to say: OK, you can compare effectiveness research but not to deny coverage based on cost. Our attempts to get that amendment passed were defeated. Why? Because they wanted to leave the flexibility in the law for the head of CMS, now Dr. Berwick, to ration care.

What is done in Great Britain is what he says is good policy. He said:

It's not a formula for comfort; it's a formula for constructive discomfort.

He described in several other ways the fact that this would be something people would not like but they would get used to it and have to abide by it. He said:

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

Indeed, at least his eyes will be open--the people who make the decisions on whether we can get health care for our families and what it is. He will know what is happening, but will we know until it is too late? We didn't even have a chance to ask Dr. Berwick questions about this because he never was given a hearing. We weren't given that opportunity. Instead, the President waits until we are out of town over the Fourth of July recess and recess-appoints the individual so that he doesn't have to have a hearing or a Senate vote.

Here is another comment from Dr. Berwick:

I would place a commitment to excellence--standardization to the best-known method--above clinician autonomy as a rule for care.

That means the doctor gets to decide what happens to the patient, along with the patient, as opposed to standardization of the best known method, with a bunch of bureaucrats figuring out in a cookie-cutter way what kind of treatment is less costly and therefore best for people who receive government-paid health care. True, this is the way it is done in some other countries that he thinks are great in terms of their health care system. That is not the way it ought to be in the United States. By this individual now receiving this nomination and this appointment, he now will be the person who helps to determine that standardization rather than the clinician autonomy we have today.

Again, Dr. Berwick will head the agency in charge of implementing much of the new health care law. He will have the responsibility to determine what your health care coverage entails. He is the person whom the President appointed to reduce the government's health care costs. I can guarantee you how that reduction will occur: it will occur when they decide that standardization requires that the government only approve the following kinds of treatment or drugs or services, and too bad if you expected something greater than that.

Given Dr. Berwick's philosophy, public comments, and writings about rationing, I think we have a pretty clear picture of where he will look to achieve those savings.

In 1996, he wrote a book entitled ``New Rules.'' He and his coauthor recommended ``protocols, guidelines, and algorithms for care,'' with the ``common underlying notion that someone knows or can discover the best way to carry out a task to reach a decision, and that improvement can come from standardizing processes and behaviors to conform to this ideal model.''

This is extraordinarily distressing when we are learning every day of innovative ways physicians and scientists have come up with to treat diseases and chronic conditions and illnesses--with new kinds of drugs, with other kinds of treatment, avoiding surgery in many cases, and now, importantly, using genomic research. The TGEN Institute in Phoenix, AZ, for example, is pioneering work involving the human genome so that ultimately we can determine what is best for each individual person in terms of a treatment. You may have breast cancer, for example, but physicians know all breast cancers are not the same and they are not all treated the same way. One woman can be treated with a particular form of radiation or chemotherapy or surgery, and yet for another person who seemingly has the same cancer, that treatment doesn't seem to work. Through human genome research, they basically map out each person's gene history, family history, and gene makeup in such a way as to know whether various kinds of treatment will be accepted or tolerated or successfully completed for each patient. They can tailor the treatments or the drugs for each particular patient.

If you have standardization of processes and behaviors to conform to this ``ideal model,'' to quote Dr. Berwick, you are going to get away from the kinds of treatments that could really be breathtakingly innovative for the future and could save many lives and improve our quality of life for as long as we live. This is the future. The future isn't cookie-cutter medicine where the doctor has to do exactly what some group of bureaucrats says because they performed a test someplace and that was the most efficient way to treat the particular patient.

Another couple of things.

Dr. Berwick expressed his disapproval for costly cutting-edge medical technologies and has said prevention services such as ``annual physicals, screening tests, and other measures'' are ``over-demanded.'' One of the things we did in the health care legislation was provide a lot of different incentives for preventive care, for screening, to try to help people avoid illnesses on the theory that it would be a lot cheaper if we didn't do a lot of treatment that was unnecessary. If you could identify in advance that an individual had a need for some treatment, maybe you could catch the disease, say, the cancer, early and not have the expensive treatment, the end-of-life kind of care that is frequently very expensive.

Let me close with a couple of things. The Wall Street Journal editorialized about Dr. Berwick's vision, saying this:

Such a command-and-control vision is widespread among America's technocratic medical left, but it is also increasingly anachronistic amid today's breakneck medical progress. There isn't a single ``ideal model'' in a world of treatments tailored to the genetic patterns of specific cancers, or for the artificial pancreas for individual diabetics, or other innovations that are increasingly common. This is nonetheless where Dr. Berwick ..... will look for his ``savings.''

As CMS Administrator, Dr. Berwick will not only oversee billions in Federal spending but will be responsible for programs that cover millions of lives. It is perplexing, to say the least, that such an important position would bypass Senate consideration, without even so much as holding a hearing.

Moreover, this appointment is just the latest self-contradiction of an administration that claimed it would be the most transparent in history. We now have another example of the lack of transparency--the President recess-appointing someone, I believe, in order to avoid having a hearing and to avoid having a debate that would inform the American people of the kind of person the President was putting into this enormously important position.

Mr. President, I express the same concern Leader McConnell expressed. We regret that the President has seen fit to do this. I understand he can appoint anybody he wants, but what I really resent is turning around and having a spokesman for the President say that somehow or other the fact that he didn't have a hearing or the fact that he never was voted on is somehow the Republicans' fault. We had nothing to do with the fact that he didn't have a hearing. We asked for a hearing. We had nothing to do with the fact that he never had a vote. We never objected to any vote. There has never been a question of having a vote. Nobody ever said, in the Finance Committee or on the Senate floor, let's vote on Dr. Berwick. We had nothing to object to. The President can make the appointment if he wants to. We can still debate his qualifications even though he will now serve in this position. But to blame Republicans for having to do it in this nontransparent way is wrong, and I think Republicans are going to continue to demonstrate to the American people why this is a nominee who should have been aired out in public rather than appointed during the July 4 recess.


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