Executive Session

Floor Speech

EXECUTIVE SESSION -- (Senate - April 28, 2009)

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Mr. CORNYN. Mr. President, Governor Sebelius, who has been nominated to be Secretary of Health and Human Services, testified before the Senate Finance Committee that she would not refuse to use certain comparative effectiveness research as a tool to deny or delay American citizens' access to health care. Said another way, a concern about comparative effectiveness research, $1.1 billion of which was funded in the stimulus program, can be used both for benign purposes, purposes that are completely understandable, as well as those most Americans would find repugnant; that is, for rationing of access to health care.

Comparative effectiveness research is the comparison of various treatments or approaches to garner better data on what works best and/or what costs the least. Comparative effectiveness research can be helpful and beneficial if it is used to inform health care decisions and individual health care decisionmaking and as a guide to evidence-based medicine. Without appropriate safeguards--and these were the safeguards Governor Sebelius refused to embrace--the Government could actually use comparative effectiveness research to delay treatment and to deny care based on a one-size-fits-all approach to health care.

The economic stimulus package included $1.1 billion for comparative effectiveness research. This research should only be used to better inform individualized decisionmaking; that is, a patient talking to their doctor and deciding what is in that patient's best interests. It should not be used for the Government to say: Patient, we will not pay your doctor for that procedure unless it meets our cookbook medicine model that is generated by comparative effectiveness research. Despite assurances that the stimulus money would not be used to evaluate the relative cost effectiveness of various medical treatments, the National Institutes of Health is already undertaking steps to use the stimulus money to conduct that kind of cost-based research.

As I indicated, Governor Sebelius was asked before the Finance Committee how she plans to use comparative effectiveness research. As Secretary of HHS, she will be in the driver's seat in large part to determine how the policies of this administration and of this Congress will be implemented. My colleague Senator Kyl from Arizona expressed his concern before the Finance Committee vote in these words, with which I agree:

Unfortunately, Governor Sebelius' answers made it clear that the Administration is unwilling to support pro-patient safeguards. She left me with no assurance that HHS, federal health care programs, or any new entity--such as the Federal Coordinating Council--will not use comparative effectiveness research as a tool to deny care. And this should be of concern to all of us.

Instead of allowing the Federal Government to intrude further into personal decisionmaking and medical care, I believe that health care reform should enhance the individual relationships between doctors and their patients. I am concerned that using comparative effectiveness research to justify treatment denials based on cost will significantly limit patients' ability to choose health care services for individual needs. It will also reduce--and this is important--medical innovation and quality of care.

When asked, Governor Sebelius did not have any convincing answers to what is one of the most important questions in the health care debate,
and that is, how do we contain rising health care costs, something that is going to render the Medicare Program insolvent in the next decade? As any employer will tell us, it makes it increasingly more difficult for employers to provide health care to their employees.

According to the Congressional Budget Office, spending on health care will account for nearly 17 percent of the gross domestic product of the United States. In 2009, that will be as much as $2.6 trillion. America spends more than twice what other industrialized nations spend per capita on health care. Can we claim our health care product is twice as good as anywhere else in the world based on this increased spending? I doubt it, even though American health care is very good. But I don't think we could say we get our money's worth by spending twice as much as any other industrialized nation per capita on health care. Health care insurance premiums have risen much faster than workers' wages in recent years which means lower take-home pay for American workers. Health care reforms must ensure that this trend is reversed or we will have failed in one of the most important missions of health care reform.

In the Finance Committee, I asked Governor Sebelius her specific ideas, other than delaying treatment and denying care, on how to contain costs. In my office I asked her, what about health care liability reform which, in my State of Texas, has made health care much more accessible by moderating the growth of medical malpractice insurance premiums, providing a more level playing field when it comes to doctors and hospitals being sued. She basically did not have much of an answer for whether that should be included. I happen to believe it is one of the cost drivers in health care cost and has to be addressed. I submit, with no little modesty, that the State of Texas has experience in this regard that the Federal Government could learn from. While I don't doubt some of the cost containment proposals in her answers could be worthy of pursuing, Governor Sebelius failed to prove that they will provide substantial savings in a $2.4 trillion health care system. The Congressional Budget Office is also skeptical that the proposals she mentioned will result in any substantial savings.

Finally--and this should cause all of us to be concerned about whether there actually will be cost containment or cost savings in health care reform--I am puzzled by the fact that President Obama's budget actually asks for more money, $634 billion. That is not the total price; that is for a downpayment. In my State, as well as the State of the Presiding Officer, before people are accustomed to making a downpayment, they usually want to know what they are buying. But the budget proposal by the President called for $634 billion of additional spending as a downpayment in order to control costs in the long run, which is based on nothing more than hope, and that is hardly a strategy.

We know we are already facing an unprecedented level of national debt. Unfortunately, Congress, under the new administration, has contributed greatly to the fact that we have seen more spending in the last 90 days than we have seen in Iraq, Afghanistan, and in Hurricane Katrina recovery. We know we have $36 trillion more in unfunded liabilities in the Medicare Program alone. So at a time when we need to figure out how we deal with unfunded obligations of the Federal Government, how do we more efficiently spend the 17 percent of gross domestic product that makes us spend twice as much as any other country in the world per capita, we are ignoring some of the huge unfunded liabilities of the Federal Government, and we are asked to take as a matter of faith that these proposals will result in savings without any concrete plan which can be analyzed and evaluated in the light of day.

I firmly believe this country is spending enough money on health care today. What we need are innovative ideas about how to spend it more wisely. I have not heard any innovative ideas from Governor Sebelius or the current administration.

What causes me even more concern is Governor Sebelius has made it clear that she supports a new government-run ``public plan'' for health care that is unequivocally a gateway to a single payer system. A new government-run public plan option will devastate private insurance markets by acting as a competitor, regulator, and funder. How in the world can the private market compete when the Federal Government comes in and sets prices which will cause employers to give up their employer-provided health insurance coverage to allow their employees to get coverage under the public plan? Indeed, the public plan, much like Medicare today, can be relied upon to use denial or delay or treatment rationing of health care in order to contain costs.

The independent Lewin Group analysis found that a new public plan could mean that 118 million Americans will lose their current health care coverage, and 130 million Americans could end up on a government-run health care plan. That is what I mean as a ``gateway'' to a single payer system through this so-called innocuous sounding public plan which will run competition out, will undercut it, and make it impossible to have the benefits of a competitive market, as we have seen on Medicare Part D, the prescription drug coverage plan, which actually, in an amazing feat, has a high public satisfaction and came in under proposed cost, mainly through a market-based mechanism that creates a market for insurance companies to provide prescription drug coverage. That is the kind of model we should be looking at to learn from in order to contain cost, not by Government delaying or denying access to health care under the guise of a ``public plan.''

The Wall Street Journal recently wrote:

Because federal officials will run not only the new plan but also the ``market'' in which it ``competes'' with private programs--like playing both umpire and one of the teams on the field--they will crowd out private alternatives and gradually assume a health-care monopoly.

A public plan will also increase the cost of private health care. A report by the actuary Milliman estimated the ``hidden tax'' commercial payers pay to subsidize the costs of Medicare and Medicaid equals roughly $88.8 billion per year. This means that the average health care premium is $1,512, or 10.6 percent, more annually per family than it would be without the cost shift. A new so-called public plan option, which is a government-run program, would exacerbate the cost shift and drive up the cost of private health care at a time when we must seek to lower health care costs.

Then there is the Washington Post that wrote on April 27:

[President Obama's] nominee for secretary of health and human services, Kathleen Sebelius, said that she wants a public plan to ``challenge private insurers to compete on cost and quality'' but ``recognizes the importance of a level playing field between plans and ensuring that private insurance plans are not disadvantaged.''

The Washington Post said:

We disagree. It is difficult to imagine a truly level playing field that would simultaneously produce benefits from a government-run system.

I ask unanimous consent that this editorial from the Washington Post be printed in the Record at the close of my remarks.

The PRESIDING OFFICER. Without objection, it is so ordered.

(See exhibit 1.)

Mr. CORNYN. Throughout the campaign last year, the President promised Americans care such as Members of Congress receive. The irony is that Members of Congress do not have access to a public plan. As a matter of fact, we don't need one because there are private plans that provide the coverage we receive.

I am concerned that Governor Sebelius is not up to the challenge of finding--and this is my final point--more than $90 billion of waste, fraud, and abuse in the Medicare-Medicaid Program each year.

There are some who have said that what we need is Medicare for all. Well, right now Medicare, as I indicated, and Medicaid have roughly $90 billion in fraud, abuse, and waste. I hope that is not what they mean--that we need to carry over that kind of waste, fraud, and abuse into a Medicare or a single-payer system. According to an article in the Washington Post last year, more than $60 billion is lost each year to Medicare fraud alone. That is just Medicare--$60 billion of money that could go to provide services to Medicare recipients that is lost to people who cheat and steal the Federal taxpayer. Medicaid services last year were estimated to be about $32.7 billion similarly lost to fraud, waste, and abuse. Medicare and Medicaid fraud drive up the cost of health care and, I believe, represent an unacceptable mismanagement of taxpayer dollars.

When I asked Governor Sebelius about how she planned to fight fraud in our public programs, she only gave the vaguest of answers to my questions. Additionally, her record as Governor tells me that she is not yet ready to tackle that kind of fraud, waste, and abuse as Secretary of Health and Human Services.

The Kansas State Legislature is planning to have hearings on whether Governor Sebelius was involved in a decision to provide more than $700,000 in ``extraordinary'' Medicaid funds to an organization linked to a number of her supporters. An article by the Kansas Health Institute said that:

Regardless of the Medicaid question, which isn't likely to be answered any time soon, many believe [the Medicaid Director's] decision was based on the political connections of those most closely involved.

The article goes on to say:

Some Kansas officials are debating whether State oversight of [Kansas'] Medicaid program was strong enough. The debate focuses on the inspector general's office, created in 2007 within the Kansas Health Policy Authority to ferret out potential problems in Medicaid. The first inspector general left in October and has told legislators the authority hindered her work ..... The scrutiny came after a legislative audit described $13 million in ``suspicious claims'' paid by Medicaid in 2005 and 2006, before the authority took over the bulk of the program. In one case, auditors said the program paid a doctor $941 for a Cesarean section when the patient was an 8-year-old boy.

Republicans and, indeed, all of us, I believe, want a new HHS Secretary to be someone committed to work with them to reform the health care system in a bipartisan process that will reach the best result for the American public. Unfortunately, with a sense of foreboding, I read accounts that Democratic leadership wants to use the budget reconciliation process to jam a partisan health care reform bill through on an expedited basis without adequate debate or deliberation. I think that would be the worst of all possible outcomes. This is a serious enough issue that we need true bipartisan buy-in and contribution to workable health care reform.

Unfortunately, Governor Sebelius backed a highly partisan process for health care reform that excludes representatives of 50 percent of the American people: the use of budget reconciliation that I mentioned. Governor Sebelius refused to say that she would not support the use of reconciliation to pass health care reform. In her response to committee questions, she wrote:

There are many tools available and none of those tools, including reconciliation, should be taken off the table.

I am very concerned that using a partisan procedural trick to reform a system that comprises 17 percent of our gross domestic product is not in the best interests of the American people. The American people deserve open and full and honest debate about how to improve our health care system, not this kind of partisanship.

Then, finally--and this is my final point--Governor Sebelius failed to disclose relevant information to the Finance Committee during the consideration of her nomination. Not only was there the matter of her tax returns--something that, unfortunately, has become a trend, it seems, in this administration's nominees--she also failed to disclose contributions from a controversial abortion provider until pressed by the media.

The Associated Press wrote that:

When the discrepancy became public Sebelius acknowledged getting an additional $23,000 from Tiller and his abortion clinic beyond the $12,450 she initially reported.

While I appreciate her apology and her mention that it was only an inadvertent error, I am concerned that a Cabinet Secretary should be held to a much higher and more transparent standard.

So I am sad to say I will not be able to support Governor Sebelius's nomination for Secretary of Health and Human Services.

I yield the floor.

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