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It's Hurry Up and Wait at the Finance Committee Markup

By John Reichard, CQ HealthBeat Editor

September 25, 2009 -- Senate Finance Committee Democrats were successful Friday in defeating a health overhaul amendment their chairman said would have created "an unworkable set of delays in the markup process."

The way the markup was going by the end of the day, however, Republicans could have been forgiven for thinking they had won.

The "end of the day" actually occurred at noon—despite talk earlier in the week by Chairman Max Baucus, D-Mont., that the markup would include weekend hours and wind up in time for possible Senate floor action on a health overhaul next week.

It was not a day for dealing with the nitty-gritty of overhauling health care.

Friday found Republicans adding new facets to their increasingly elaborate argument that big government is ominously on the march in America. To that end, they evoked the image of White House Health Reform Director Nancy-Ann DeParle as a czarina trying to usurp the powers of the legislative branch, and of a disgusted public rebelling against "rating bands" as the last straw confirming their suspicions that the Baucus bill is at its heart a planned government takeover of the health care system.

On the Democratic side of the dais, meanwhile, John Kerry of Massachusetts consumed a fair chunk of the morning leading the committee through a debate about his amendment compressing those rating bands—only to withdraw his amendment in the end.

And after a breathless announcement to the press Thursday evening that they would offer amendments the next morning to establish "a strong public option" in the Finance plan and insist on a roll call vote, Democrats Charles E, Schumer of New York and John D. Rockefeller IV of West Virginia did no such thing.

In other words, with hundreds of amendments awaiting action, the nuts and bolts of overhauling health care went largely untightened Friday. The one exception was an amendment, passed by voice vote, to give government regulators a peek at how much of the prescription drug discounts negotiated for purchasers are actually pocketed by the pharmacy benefits managers (PBMs) who promise big savings. The amendment was sponsored by Democratic Sen. Maria Cantwell of Washington.

But even that action may not stick. The Pharmaceutical Care Management Association (PCMA), which represents PBMs, issued a statement after the amendment was adopted saying that disclosure of the discounts would lead drug makers to shy away from giving price breaks because other purchasers would demand them too.

"Many steps remain in this debate," said PCMA President Mark Merritt. "PCMA will continue to work with policymakers in both the House and Senate and any conference committee to make them aware of the unintended consequences associated with PBM disclosure."

The amendment would limit disclosure of discounts to commissioners of insurance exchanges and any plans that the PBMs contract with. Cantwell said the information will be considered confidential and must be protected by the commissioners and the plans.

Republican Sen. John Ensign of Nevada kicked off the morning warning of the "tremendous power" possessed by DeParle, power that he said is not subject to the Senate confirmation process.

Ensign said President Obama thus far has created 18 czars of various kinds but Ensign denied that partisan considerations were involved in raising the issue. "This is not a question of going after a Democrat president," he said. "We probably should have done this before."

Baucus observed that "the job title 'czar' does not exist," saying it is essentially it's an informal term given to those who coordinate policy. He added that given delays in the confirmation process, as soon as "czars" had to be confirmed by the Senate, the president would designate someone else the next level down in the pecking order to coordinate policy.

Baucus said there are plenty of executive posts that already must be confirmed by the Finance Committee, suggesting that the panel needs not add to that burden.

Ensign differed, but his friendly way of referring to DeParle may not have conjured up a sufficiently frightening image of the czarist threat.

"We cannot call Nancy-Ann up here. . .she has broad powers," Ensign objected. "This is a question of balance of power.

"The cabinet-level people are having their power usurped. There's no question," he said. It's a question of "fighting for that balance of power that is rightfully ours."

But his amendment requiring Senate confirmation of czars failed by a party-line vote of 10–13.

Kerry offered an amendment that would allow insurers to vary premiums based on age by a factor of no more than two-to-one. The ensuing debate illuminated the trade-offs involved in shrinking those variations, which now are largely unregulated by the states. Kerry noted that millions of older Americans can't pay for coverage and that a two-to-one variation would help make premiums affordable.

But insurers say young people would be priced out of the market, with the elderly paying lower premiums, and Democratic Sen. Kent Conrad of North Dakota made the point that policy makers must find a balance between the age groups.

Kyl said the issue illustrates how deeply Democrats want to delve into the details of health care in America. Americans will rightfully conclude when they look at the details of the bill that it is a government takeover of the health care system, he said.

Senators raised other points, including the use of larger pools of people to spread out risk and make insurance more affordable for older Americans in that way. Baucus, who already has lowered the age variations in his mark from a factor of five-to-one to a factor of four-to-one, said the issue could perhaps be discussed further in the committee and Kerry withdrew his amendment.

Another meaty issue, whether to add a public plan to the Baucus mark, was also put off until later—Rockefeller said it will be brought up when the markup reconvenes Sept. 29. "I would suggest that this means that they don't have the votes for this," Republican Sen. Michael B. Enzi of Wyoming opined, concerning the failure to bring it up Friday.

Republican Sen. John Cornyn offered an amendment that would require that all amendments accepted or ruled out of order during the markup would have to be re-scored by the Congressional Budget Office (CBO) and the Joint Committee on Taxation (JCT) for accuracy before the committee can vote to report the health overhaul measure.

The amendment also provides that if an initial score is found to be inaccurate or an amendment is found to have been incorrectly ruled out of order, the committee would have to debate and reconsider the amendment. Cornyn said the amendment was a matter of fairness since one of his amendments had been ruled out of order because it hadn't been scored by CBO.

But Baucus promised to get Cornyn a score for the language ruled out of order and said his amendment on scoring would create "an unworkable set of delays in the markup process."

Cornyn's amendment was then rejected.

But those who think the committee is moving much too fast on a health overhaul could take consolation in the fact that there was no clear end to the markup in sight as the Friday markup session concluded.

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