Preserving Access to Healthcare (PATH) Act of 2008

Mr. President, as the ranking Republican of the Finance

Committee acting on behalf of a number of Republicans on the Finance Committee, I am objecting to discharging S. 3656 from the committee. While there are several provisions in the bill I personally strongly support, there are many problems in this bill and questions that have been raised about this bill. In addition, this bill has not come before the committee and the issues it addresses have not had the benefit of hearings or any committee action. As a result, I cannot support this bill being discharged from the committee at this time.

One of the provisions in S. 3656 that I personally support would delay implementing provisions of a CMS proposed rule that would change conditions of participation for rural health clinics and decertify clinics that are no longer in nonurbanized areas. The provision would also delay the proposed changes to the existing payment methodology for rural health clinics and Federally qualified health centers.

The CMS proposed rule would impose new location requirements for RHCs and require that clinics be located in a nonurbanized area, as defined by the U.S. Census Bureau, as well as meet shortage area designation requirements. Only new RHCs applying for the program are currently required to meet these criteria, but the CMS proposal would extend these requirements to already certified RHCs. According to CMS, about 500 of the approximately 3,700 RHCs operating today may not meet these requirements. Rural clinics in Iowa and elsewhere could also be severely impacted by the CMS proposed payment changes since RHC costs in Iowa and other States are already higher than the existing Medicare reimbursement cap.

Iowa is currently in the throes of a growing shortage of physicians, especially in the more rural areas of the State, due to inequitable geographic adjustments in physician payment that result in Iowa physicians receiving some of the lowest Medicare payments in the country even though they provide some of the highest quality care. These geographic payment disparities, which discriminate against rural areas, have further exacerbated the problems of access to care for beneficiaries in rural areas.

The CMS proposed rule could have a severe adverse impact on a number of rural health clinics in Iowa, including many located in counties that have been declared disaster areas from the severe flooding Iowa suffered earlier this year. If the CMS rule is finalized as proposed, rural health clinics in Iowa and elsewhere may be forced to close their doors, even though they have served rural populations very well for many years, leaving Iowa with fewer physicians and some patients with little access to primary care and other critical medical services.

As you can see, these provisions for rural health centers are important, which makes it all the more disappointing that my friends on the other side of the aisle did not work together with us to develop a bipartisan bill and that the committee is not in a position at this time to consider these important issues properly. I am very pleased, however, that a key issue for rural health centers in the proposal has already been addressed through a provision that was included in the Health Care Safety Net Act. That provision changes the CMS certification period for shortage area designations from 3 to 4 years in order to align the CMS certification period for shortage area designations with the Health Resources and Services Administration's, HRSA's, designation review period. I want to thank Senators Orrin Hatch, Pat Roberts, Gordon Smith, Tom Harkin, Ron Wyden, Kent Conrad, and John Barasso for championing the resolution of this important issue and Senator Max Baucus for working together with me to facilitate its inclusion in the Health Care Safety Net Act. And, of course, I want to again thank Senators Kennedy and Enzi for working with us on this issue. Thanks to this bipartisan collaborative effort, that bill with the RHC provision in it has now passed both Chambers and is on its way to being signed into law.

Another provision in S. 3656 would prevent the application of a CMS policy to phase out a payment adjustment for indirect medical education, IME, under the Medicare capital Inpatient Prospective Payment System, IPPS. Currently, teaching hospitals receive this upward payment adjustment under the capital IPPS. CMS announced in the fiscal year 2008 Medicare Hospital IPPS final rule that they would begin to phase out the IME adjustment for capital IPPS in fiscal year 2009.

As the former chair and currently the ranking member of the Senate Finance Committee, it has long been one of my priorities to ensure Medicare payments are both accurate and equitable. I question whether this proposed change to IME payments would further this goal, which many of us share.

The appropriateness of the IME capital IPPS adjustment has been analyzed extensively not only by CMS, but also by the Medicare Payment Advisory Commission, MedPAC, which advises Congress on Medicare payment issues. CMS has documented relatively high and continued positive margins for teaching hospitals under the capital IPPS compared to nonteaching hospitals. In fact, from 1998 through 2006, teaching hospitals had an aggregate positive capital IPPS margin of 11.2 percent while nonteaching hospitals had an aggregate capital IPPS margin of -0.8 percent. Based on those figures, it leaves open the question of whether the proposed change to IME payments is not justified. Certainly this is something the Finance Committee should explore further.

S. 3656 also proposes to establish a moratorium on a CMS rule regarding Medicaid payments for hospital outpatient services. Earlier this year, Congress placed moratoriums on 6 other proposed Medicaid regulations. Just as I opposed those moratoriums, I strongly oppose this one as well. The Finance Committee has not held the first hearing as to why a delay in this regulation is justified. The Finance Committee has not considered whether payments currently being made by some states to hospitals for outpatient services are being made consistent with the statutory rules governing the upper payment limit. The CMS regulation in question was intended to clarify what payments from States to hospitals are allowable. We should not simply place a moratorium on this regulation without the committee properly investigating the issue first. Medicaid is a critical program for children, pregnant women, the disabled, and the elderly. We have a responsibility to the people who depend on the program to make sure that funds are being appropriately spent. Placing a moratorium on these regulations without fully exploring these issues in the committee first is not consistent with that responsibility.

This bill also would intervene in a dispute between CMS and the State of California. The State of California has been seeking approval of an extension of their family planning waiver for 6 years. For 6 years, CMS has been urging California to improve their collection of Social Security numbers and citizenship documentation for women enrolled in the program. Given the concerns that have been raised about noncitizens receiving benefits to which they are not entitled, this provision raises a number of serious concerns. This bill would essentially require CMS to approve of the extension of California's waiver without requiring California to fulfill their obligation to improve their process of ensuring that people who receive benefits are actually eligible for those benefits.

In addition, this bill does nothing to assist ``tweener hospitals,'' which are hospitals that are too large to be critical access hospitals but too small to be financially viable under Medicare's prospective payment systems. I consider this to be a high priority because so many seniors in Iowa rely on these tweener hospitals for vitally needed health care services in rural areas of our State. If the Senate is going to consider Medicare legislation that is along the size and scope of the provisions proposed in S. 3656, including provisions to address the problems tweener hospitals face is a must.

I understand that legislation is often the art of compromise. We can't always get everything we want in every bill and keep everything we dislike out. It is a balance. This bill is currently pending before the Finance Committee, and it raises significant issues of Medicare and Medicaid payment policies. The Finance Committee has not held hearings on these issues nor has it given these important issues proper consideration. Without allowing the

committee process to work, this bill has not been subject to the rigorous analysis and debate that the legislative process should require to avoid unintended consequences and poor decisionmaking. This process should be permitted to take place before legislation of this magnitude is sent to the full Senate. That is the committee's role and it is an important one.

If the full Senate were to routinely bypass the Finance Committee and consider major Medicare bills like this one that have not been processed by the members of the committee, then nothing would prevent the Senate from legislating on other Medicare and Medicaid issues without the benefit of hearings or committee action. Occasionally, the committee does process extensions of current law and smaller, generally technical bills through a more informal committee process, but it is a committee process nonetheless. If the committee is routinely bypassed entirely and not allowed to perform its vital role in the legislative process, it would be almost impossible to cope with the number and assortment of Medicare, Medicaid, and other issues that would come directly to the Senate floor in bills like S. 3656. To avoid that result is why the Senate has committees in the first place.

Just an initial review of this legislation today produces more questions than answers and many obvious and serious concerns. It is disappointing that some of the important provisions in this bill, like the rural health center provisions and IME policy, are packaged into a bill that has not been presented in a timely way or brought before the committee for appropriate consideration, debate, and amendment. Just a quick review of this bill today quickly reveals, in any case, that both in terms of process and policy, this bill does not sufficiently achieve a balance I think is necessary, and I must, on behalf of myself and other members of the committee, object to discharging S. 3656 from committee for consideration by the full Senate.

Madam President, I reserve the right to object.

Madam President, throughout the years, the Committee on Finance has worked to safeguard and improve the programs under its jurisdiction, including the Medicare and Medicaid Programs. The Finance Committee has a unique expertise on these programs and is the only committee in a position to assess the possible effects of individual changes on all Social Security programs as a whole. Accordingly, it is essential that any legislative proposals impacting these programs be considered by the full Senate only after the Finance Committee conducts a thorough analysis of the issues involved and the potential solutions.

I would like to bring up one example of how this bill needs scrutiny. There is a provision buried in here that would allow California to escape its responsibilities to ensure that illegal aliens are not getting Medicaid benefits to which they are not entitled. Do the American people support giving Medicaid to illegal aliens? I don't think so. Simply bypassing the committee process with legislation on complex issues runs contrary to how this body should function. In fact, as my friend from New York is aware, Congress already had extensive debate and enacted a Medicare bill already earlier this year. That bill was authored by the chairman of the Finance Committee. So the Senate and the full Congress have already had extensive Medicare debate this year. The Senator from New York, as a member of the Finance Committee, had ample opportunity to raise the issues earlier this year that he now raises in a bill he wants to bring up right now. So regardless of the merits of the Senator's proposal, I believe that ship has set sail.

I have a more extensive statement on the provisions themselves. Some of them, I want the Senator from New York to understand, I actually support, and I oppose some, obviously. Perhaps we can work together on some of these issues where we agree, if the Senator is interested. Today, however, I am forced to object to the Senator's consent request.

Notwithstanding the significant jurisdictional and process issues I just

raised, I would also like to note that there are several provisions in the bill I strongly support. However, there are several provisions in this bill that I oppose at this time and do not believe the Finance Committee has given proper consideration through hearings and investigations.

One of the provisions in S. 3656 that I support would delay implementing provisions of a proposed CMS rule that would change conditions of participation for rural health clinics and decertify rural health clinics that are no longer in nonurbanized areas. It would also delay proposed changes to the existing payment methodology for rural health clinics and federally qualified health centers. While I am very concerned about the proposed CMS rule and its impact on rural health centers, RHCs, unfortunately I cannot support this legislation which is within the jurisdiction of the Finance Committee but which has not been given any consideration by the committee.

The CMS proposed rule would impose new location requirements for RHCs and require that clinics be located in a nonurbanized area, as defined by the U.S. Census Bureau, as well as meet shortage area designation requirements. Only new RHCs applying for the program are currently required to meet these criteria but the CMS proposal would extend these requirements to already certified RHCs. According to CMS, about 500 of the approximately 3,700 RHCs operating today may not meet these requirements.

Iowa is currently in the throes of a growing shortage of physicians, especially in the more rural areas of the State, due to inequitable geographic adjustments in physician payment that result in Iowa physicians receiving some of the lowest Medicare reimbursement in the country even though they provide some of the highest quality care. These geographic payment disparities, which discriminate against rural areas, have further exacerbated the problems of rural access to care.

The CMS proposed rule could have a severe adverse impact on a number of rural health clinics in Iowa, including many located in counties that have been declared disaster areas from the severe flooding Iowa suffered earlier this year. Rural clinics in Iowa also could be severely impacted by the CMS proposed payment changes since RHC costs in Iowa and other States are already higher than the existing Medicare reimbursement cap. If the CMS rule is finalized as proposed, rural health clinics in Iowa and elsewhere may be forced to close their doors, even though they have served rural populations very well for many years, leaving Iowa with fewer physicians and some patients with little access to primary care and other critical medical services.

This bill would prevent the application of a CMS policy to phase-out a payment adjustment for indirect medical education, IME, under the Medicare capital Inpatient Prospective Payment System, IPPS. Currently, teaching hospitals receive this upward payment adjustment under the capital IPPS. CMS announced in the fiscal year 2008, Medicare Hospital IPPS Final Rule that they would begin to phase out the IME adjustment for capital IPPS in fiscal year 2009.

As the former chair and currently the ranking member of the Senate Finance Committee, it has long been one of my priorities to ensure Medicare payments are both accurate and equitable. I question whether this bill would further this goal, which many of us share.

The appropriateness of the IME capital IPPS adjustment has been analyzed not only by CMS, but also the Medicare Payment Advisory Commission, MedPAC, which advises Congress on Medicare payment issues. CMS has documented relatively high and continued positive margins for teaching hospitals under the capital IPPS compared to nonteaching hospitals. In fact, from 1998 through 2006, teaching hospitals had an aggregate capital IPPS margin of 11.2 percent while nonteaching hospitals had an aggregate capital IPPS margin of -0.8 percent.

Based on these figures, many, including myself, question the appropriateness of this payment adjustment. This is a case in point of why legislative proposals such as this must first go through the committee process.

S. 3656 puts a moratorium on a CMS rule regarding Medicaid payments for hospital outpatient services. Early this year, Congress placed moratoriums on six other CMS Medicaid regulations. Just as I opposed those moratoriums, I strongly oppose this one as well. The Finance Committee has not held the first hearing as to why this action is necessary. We have not considered whether payments currently being made are not consistent with the statute. Medicaid is a critical program for children, pregnant women, the disabled, and the elderly. We have a responsibility to the people who depend on the program to make sure that funds are being appropriately spent. This moratorium is not consistent with that responsibility.

This bill also intervenes in a dispute by CMS and the State of California. The State of California has been seeking approval of an extension of their family planning waiver for 6 years. For 6 years, CMS has been pushing California to improve their collection of Social Security numbers and citizenship documentation for women enrolled in the program. This bill essentially requires CMS to approve of the extension of California's waiver without requiring California to do anything further to improve their process of ensuring people who receive benefits are actually eligible for those benefits.

I would also like to point out that a comprehensive Medicare bill written by the Chairman of the Finance Committee was passed by the Senate this summer. One can presume that the proposals in this bill were considered and rejected for inclusion in that Medicare bill.

I understand that legislation is often the art of compromise. We can't always get everything we want in every bill and keep everything we dislike out. It is a balance. However, I think both in terms of process and policy, this bill does not sufficiently achieve a balance I think is necessary and I must, therefore, object to its consideration.

Madam President, I inform the Republican leader, I had arranged to do a unanimous-consent request when the Senator from Iowa could be on the floor.

I ask unanimous consent the Finance Committee be discharged from further consideration of S. 3656, the Senate proceed to its immediate consideration, the bill be read a third time and passed, and the motion to reconsider be laid upon the table, with no intervening action or debate.

Madam President, I introduced this bill in October in response to overwhelming concerns New York health care providers have about three devastating health regulations that the Bush administration is pushing.

My bill would put a 6-month delay on the Medicare Hospital Capital IME payment policy to teaching hospitals, a 6-month delay on the now- final Medicaid Outpatient Clinic regulation, and a 6-month delay on the Medicare Hospice rule--three regulations that affect the heart and soul of our health care system--the facilities and health providers that take care of all Americans, rich or poor, rural or urban.

Given the urgent challenges we face in our economic health, now is not the time to be cutting hospitals or clinics that serve our physical health. We should be making health care more effective and efficient-- not slashing reimbursement and running these providers out of business.

The new Medicare Hospital Capital Indirect Medical Education, IME, payment policy is a disaster for teaching hospitals. It went into effect on October 1 and will be fully implemented in 2010.

This new policy runs counter to what works in American medicine. The Medicare program has long served the public good by funding the training of new doctors in our academic medical centers and teaching hospitals, using IME payments.

Across the Nation in large and small communities there is a shortage of physicians--from primary care to surgeons. We rely on our Nation's academic medical centers, 13 of which are in my State, and teaching hospitals to train new physicians.

The new policy eliminates critical funding that supports teaching.

The total cost of this new policy to New York's teaching hospitals would be $62 million when it is fully implemented in 2010. The total for all U.S. hospitals is $380 million.

Let me illustrate what these cuts mean to New York hospitals: Albany Medical Center Hospital, $1.2 million; Kaleida Health in Buffalo, $1.3 million, Montefiore Medical Center, $3.7 million; Strong Memorial Hospital, $1.6 million; Stony Brook University Hospital, $1.6 million; Bassett Hospital in Cooperstown, $426,000; and Coney Island Hospital, $565,722.

These facilities are the same ones in my State who provide the lion's share of uncompensated care to the uninsured.

One of the hardest hit hospitals in my State is Mt. Sinai Medical Center in Manhattan. They stand to lose $4.1 million by 2010.

This lost funding means Mt. Sinai Medical Center will be forced to take cost cutting steps:

First, delay completion of their inpatient electronic medical record rollout; second, they won't be able to expand their already crowded emergency room that provides over 100,000 patient visits a year; and third, they will scale back many free medical screenings and other programs for patients.

These are not the actions we want hospitals to take.

Hospitals need our help. The Medicare Payment Advisory Commission, MedPAC--which is a nonpartisan group--has said that in 2006, hospitals' Medicare margins nationwide were in the red at negative 4.8 percent.

In New York in 2006, rural hospitals were hit the hardest by low Medicare reimbursements with even lower margins of negative 8.2 percent.

After 7 consecutive years of overall negative margins, the hospitals in my State did little better than break even in 2006. It doesn't make sense to me that we would gut a source of training for high-paying jobs in this country at a time when we are bleeding jobs.

This is not just a New York issue. In July, 51 Senators signed a bipartisan letter to the Centers for Medicare and Medicaid Services, CMS, that opposed implementation of the capital IME. We need to pass my bill so that these cuts don't hurt all U.S. hospitals.

Now I want to speak briefly about the Medicaid Outpatient Clinic Regulation that my bill places a 6-month moratorium on.

For months I fought with CMS about this regulation. Unfortunately, they finalized it last week.

But, I am pleased that in the final version free-standing health clinics were saved from massive cuts. There were many clinics in New York that were saved from either closing their doors or saying no to their patients.

I want to talk about Ed, a 62-year-old Buffalo resident, who can only move his head due to his cerebral palsy. With the help of a free- standing clinic in Buffalo, called Aspire, Ed learned to operate his power wheelchair with his chin.

Even more amazing he can operate a computer using his chin. Ed spent 5 years mastering desktop publishing and then formed his own successful business.

If free-standing clinics were included in the final regulation, Ed could not attend Aspire of WNY's wheelchair clinic, where physical, occupational and speech therapists customize all sorts of things for him. Without that service, Aspire tells me that he would be completely immobile and not as independent.

Let me discuss another New Yorker that the Buffalo-based Aspire Clinic helped. In 1998, Aspire wanted a woman named Alice to have a colonoscopy. When she did, it was revealed that she had colon cancer. But luckily they found it in time and she had surgery to remove the cancer and now, 10 years later, she is doing fine.

Alice is just one of hundreds of individuals who receive primary medical care through these essential primary care clinics.

Enable, a Syracuse agency that serves children and adults with disabilities, told my office that they would have to stop providing physical and occupational therapy to more than 300 clients on Medicaid if the Rule had included freestanding clinics.

I wish CMS hadn't made this regulation final, but at least it isn't as bad as it could be. We will know the extent of pain that other clinics and hospital outpatient services may face on December 8, when the rule must be implemented.

Therefore, I hope that the Senate will pass the PATH Act. As we have heard, there are just too many terrible cuts underway in health care, and we need to be doing all we can right now to stop the bleeding.

I understand my colleague has objected. That is unfortunate. To wait another 3 months or 6 months at a time when our economy is in such dire shape will do severe damage to health care throughout the country. In my State of New York, for instance, the new Medicare Hospital Capital Indirect Medical Education payment policy is a disaster for teaching hospitals. It runs counter to what works in American medicine. It affects large and small communities. We have a desperate shortage of physicians, from primary care to surgeons. The country relies on academic medical centers. This clobbers them at a time when it should not have happened. Many of us believe this regulation was not within the purview of CMS to enact. They went ahead and did it. I would hope that maybe my colleague will reconsider. We will return to this issue when we come back in January, but some damage, unfortunately, will be done.

I understand why my colleague has objected. I regret it. There was no time to move in the Finance Committee because this regulation didn't take effect until very recently, having many bad affects. I will work hard and not rest until we overturn the regulation.

I yield the floor and suggest the absence of a quorum.

I ask unanimous consent that the order for the quorum call be rescinded.