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Senate HELP Markup: It's an Unexpected Wrap, for Now

June 25, 2009 -- The Senate Health, Education, Labor and Pensions Committee’s markup of its much maligned health overhaul proposal came to an early end Thursday with Sen. Christopher J. Dodd saying the panel will reconvene the drafting session July 6 with the goal of completing it by July 10.

The Connecticut Democrat, who has been leading the markup as a stand-in for the panel's ailing chairman, Sen. Edward M. Kennedy, D-Mass., cited incomplete scoring of long-term care provisions as the reason for suspending the markup a day-and-a-half early. The session originally was set to run through June 26 before reconvening after the Fourth of July recess, the week-long congressional break leading up to the Fourth of July.

During its morning's work, the panel breezed through Title V of the draft bill dealing with fraud issues. It approved two amendments by the committee’s top Republican, Michael B. Enzi of Wyoming. One would ensure that the secretary of Health and Human Services (HHS) conducts workplace wellness evaluations of publicly-funded programs before evaluating privately-funded programs. The other would ensure that information under workplace wellness provisions are not used to establish federal requirements. The panel also swatted down an effort to add language allowing access to lower cost prescription drugs from abroad.

The abrupt suspension may bring a temporary cessation of hostilities toward the Democratic proposal, which have been considerable. Scored by the Congressional Budget Office (CBO) as reducing the uninsured population by just 16 million at a 10-year cost of a trillion dollars, the measure has been a big, slow-moving target for Republicans eager to stall progress on Democratic overhaul plans with accusations that haste is producing legislation that is poorly designed and far too costly.

But Dodd expressed pride in the panel's work in the face of criticism that missing language on controversial issues made a mockery of the markup session. "This has been eight or nine days, but it has been incredible progress," Dodd said. "We've dealt with close to 216 amendments, we accepted 87 Republican amendments, we rejected 22 of their amendments."

"This is a strong bill," he said. "My colleagues have done a very strong job in prevention, quality, workforce issues that I think go to the heart of what we're trying to achieve, and that is accessibility, quality, as well as reducing cost," Dodd said in remarks to reporters at the conclusion of the session.

Dodd told members he expected to get them the language dealing with major unaddressed provisions of the bill "by the first of the week," so that they would have a week to read over it during the recess. This is the language on creation of a public plan to create an alternative to private insurance, "pay or play" mandates requiring employers to offer coverage or pay a penalty, and "follow-on biologics," cheaper versions of costly biotech drugs.

Dodd labored under the scorn of Republicans in moving the incomplete legislation through the markup

process. Republican Sen. Judd Gregg of New Hampshire called it "fiscally irresponsible" to mark up an incomplete bill. The CBO "has rated this bill an abject failure," Gregg said. He added that the draft bill does not meet any of President Obama’s stated goals for health care: on expanding health insurance coverage; on containing costs; or on letting people who have coverage they like keep it. "Why are we marking up a bill that doesn't meet the president's test?" Gregg demanded.

"The easiest thing for me to do would be to throw up my hands and say, 'We can't do this,'" Dodd replied. But he said that would be wrong and called it a "daunting challenge" to work out the cost issues. "I don't believe in declaring failure when we've hardly started."

Thursday's session included a spirited debate over the issue of allowing Americans access to lower cost FDA-approved prescription drugs made in FDA-approved facilities overseas. It also suggested that backers of such access face an uphill fight getting such a "reimportation" provision written into law despite strong Democratic gains in the recent congressional elections.

An amendment by Sen. John McCain , R-Ariz., was rejected by a 10-to-12 vote, with Democrats Barbara A. Mikulski of Maryland, Patty Murray of Washington, Kay Hagan of North Carolina and Jeff Bingaman of New Mexico joining eight Republicans voting down the language.

Democratic Sen. Sherrod Brown of Ohio pressed the panel for a vote on the McCain language despite pressure from Mikulski, Murray and Enzi to postpone consideration until the panel marks up Title 1 coverage provisions of the bill. Both Mikulski and Murray warned that allowing access to the cheaper drugs from abroad was potentially dangerous in light of all the hazards Americans have faced in recent months from risky imported products.

"We are at tremendous risk of counterfeit drugs coming into the country. . . .this is real, this is certain," Mikulski said of the hazards. Both Murray and Mikulski said they would favor access if there was certification from the Food and Drug Administration or elsewhere in HHS that the drugs are safe and would lower costs. "I would have enormous anxiety voting for this amendment," Mikulski said.

Dodd too made a pitch for delaying action, but Brown insisted on a vote after huddling with aides to McCain, who had departed for another markup. Brown voiced frustration that the language on certifying safety is repeatedly urged on lawmakers by the pharmaceutical industry and effectively stops importation. (For example, then HHS secretary Donna Shalala declined late in the Clinton administration to issue such certification.)

Brown insisted that Americans would not be exposed to new hazards from abroad if the McCain language were adopted, suggesting that fears voiced by opponents of the amendment were exaggerated. "That's not what's going to happen on this," he said, dismissing notions that the United States would start allowing in drugs from countries with lax regulatory standards. "We have worked on this language for years," he said of the McCain approach. "It gives the [HHS] secretary the authority to figure out where the safe drugs come from." Brown added that he thought that the drug industry would have its way on the vote, but he wanted it anyway.

That drew an angry response from Brown's fellow Democrat Mikulski. "Sen. Brown, really. . .I really take offense here about what you're implying on safety," Mikulski said. "Don't imply that those of us who are going to vote for safety are shilling for the drug industry."

McCain is expected to offer his amendment again when the markup reconvenes and if need be on the Senate floor. Murray said on her way out of the markup that she would vote for the McCain language if it were modified to include the safety certification.

Dodd said that although the Congressional Budget Office has scored the long-term care provisions, estimates also are needed from the Joint Committee on Taxation and won't be ready for two days. Although language to allow care for the disabled outside nursing homes has drawn favorable CBO scoring, Gregg warned that the language would mean huge new costs for health care over 40 years.

Adjoa Adofo contributed to this story.

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