Tom Harkin

Mr. HARKIN

Mr. HARKIN. Absolutely. I made that very clear. The bill of rights that came into effect stays for everything. But what I am saying is that the Senator is right, and I responded that way concerning the bill of rights. But what doesn't apply to grandfathered plans are preventive services that are covered with no cost. That is not covered. The right to an appeal to a third party is not covered. Restrictions on annual limits is not applied. They can put annual limits on coverage under these grandfathered plans. Direct access to OB/GYNs without a referral is not part of the Patients' Bill of Rights. No higher cost sharing for out-of-network emergency services, no prior authorization requirement for emergency care--none of that is in the bill of rights. So all of that is wiped out by the resolution of the Senator from Wyoming. Again, for emphasis, you have a contract. You work for an employer. They have a plan. You are part of that plan. If you like that plan, you can stay with it. My friend from Wyoming said: Only in Washington, DC, could they say, if you like your plan, you can stay with it, and then they change it. No. Only in the health insurance industry, perhaps in the Republican philosophy, would you say that you can grandfather a plan, but you the consumer are stuck if the insurer wants to change it any way he wants to change it, with the exception of the bill of rights. They could raise your copayment, they could take away your right of access to an OB/GYN without referral, and all the other things I mentioned. If your insurer dramatically raises your copayment, that is not what you signed up for. That was not the plan you signed up for. If your insurer dramatically raises your deductible, that is not what you signed up for. If your insurer reduces the annual limit on claims they will pay, that is not what you signed up for. If your insurer eliminates covered benefits, such as cancer or diabetes, that is not what you signed up for. We are saying: You have a plan here. You signed up for it. You like it. You can keep it. But what if your insurer comes along and says: Guess what. We are not going to cover it if you get diabetes, and we are going to put an annual limit on claims we will pay, and we are going to raise your deductible by a huge amount. Is that the plan you signed up for? No. So why should you be stuck with that? Why should that be a grandfathered plan? A grandfathered plan means a plan that was in existence before April of this year that you like but which is not changed dramatically on you by your insurer. So if you have a grandfathered plan, you are fine. What the Department did is that they issued regulations to define what that is. Quite frankly, I thought they were very lenient. For crying out loud, they can raise your copayment by the greater of $5 or medical inflation plus 15 percent. Fifteen percent of medical inflation sounds like a lot to me. That is quite lenient. Again, my friend had a lot of letters he included for the Record. I would like to insert letters in opposition from the Small Business Majority, from the Center for Budget and Policy Priorities. Here is a letter signed by the American Cancer Society Cancer Action Network, the American Diabetes Association, the American Heart Association, Families USA, the National Partnership for Women and Families, National Women's Law Center, SCIU, and U.S. PIRG. I also have letters from Health Care for America Now, Service Employees International Union, the AARP, and Trust for America's Health. I ask unanimous consent to have these letters printed in the Record. All are in opposition to the Enzi resolution.

Mr. HARKIN. Mr. President, can I ask how much time is remaining?

Mr. HARKIN. Mr. President, I have 1 hour?

Mr. HARKIN. I know the Senator from Montana wants to speak. If he could just withhold for a few moments for my opening comment, and then I will yield to him.

Mr. HARKIN. Mr. President, I listened to the statement made by my good friend--and he is my good friend--Senator Enzi from Wyoming. We are in the seventh month since the Affordable Care Act became law. Ever since the day President Obama signed the bill into law, my friends on the Republican side have made it clear they intend to use every conceivable opportunity they have to repeal it. This resolution, regrettably, is another attempt to make good on that pledge by undoing some of the law's most critically important patient protections. The resolution offered by Senator Enzi claims to protect small businesses by repealing the grandfather regulation, which defines which insurance plans and businesses have to comply with certain consumer protection provisions of the Affordable Care Act. However, if passed, the businesses and Americans could be in the worst of all worlds, losing the clear rules that allow them to keep the plans they have while not gaining additional consumer protections that apply when their plan changes. I have a letter from the Main Street Alliance, which strongly opposes this resolution. This is an alliance of small businesses. Let me read an excerpt from that letter. They say: Opponents of the health law's insurance market reforms continue to hide behind business arguments and claims about increasing costs. But independent analyses show that all the new protections in the law should contribute a mere one to two percent increase to costs next year, a number easily offset by provisions like the small business tax credits-- That we have given small businesses-- in the short term and savings from increased bargaining power and investing in prevention in the longer term. Let's be clear: those who seek to block implementation of the new grandfather regulations are acting in the best interests of the insurance industry, not Main Street small businesses. Mr. President, I ask unanimous consent that letter be printed in the Record.

Mr. HARKIN. One of the things we put in the health care bill when we designed it was the protection for consumers to keep the plan they have if they like it; thus, the term ``grandfathered plans.'' If you have a plan you like--existing policies--you can keep them. Well, then we left it to the Department of Health and Human Services to craft regulations to define exactly what a grandfathered plan is. On the one hand, you want to give some flexibility to plans to be able to make reasonable changes. For example, if costs go up, they can increase their premiums somewhat. They can do certain things. But they cannot change the fundamental kind of nature of the plan and still call it a grandfathered plan. You want to protect consumers to make sure that what plan they signed up for is the grandfathered plan and not something else. For instance, if the regulations are overturned, which is what the Senator from Wyoming wants, insurance plans could change immensely. Yet that is not what you signed up for; for example, the grandfathering rule that says the insurer cannot significantly cut your benefits. Let's say your insurer decides to cut from your plan conditions such as cancer or diabetes or heart disease. Let's say they cut that out of your plan. Well, that plan would no longer be considered grandfathered because that is not what you signed up for. The second one says they cannot raise your coinsurance charges. For instance, if you are required to pay 20 percent of the cost for all hospital visits, your insurer cannot raise that to 50 percent because that is not what you signed up for. They cannot significantly raise copayments. If your plan is grandfathered, you are protected from drastic increases in copays. Copays would be allowed to rise nominally each year, but if they changed significantly, that is not what you signed up for. Grandfathered plans cannot significantly raise deductibles. Let's say your plan is grandfathered. You are protected from large increases to your deductible. That keeps your insurance company from shifting more cost to you because that is not what you signed up for. Grandfathered plans cannot significantly increase your premiums. Well, for example, if 20 percent of your insurance costs are currently deducted from your paycheck, and your employer pays the other 80 percent, under the rule that cannot be changed by more than 5 percentage points a year. Well, what if a company came in and said: You were paying 20 percent; now you have to pay 40 percent? If they did that, that is not what you signed up for, so that should not be a grandfathered plan. Also, grandfathered plans cannot add or tighten an annual limit on benefits. If your plan is grandfathered, your insurer cannot add a new cap on the amount they will pay for covered services each year. Why? Because that is not what you signed up for. Grandfathered plans cannot change insurance companies. If your plan is grandfathered, you get to keep your plan. This means you will keep your insurance company and with it your network of doctors. Because if that is changed on you, that is not what you signed up for. So basically the rule my friend from Wyoming is seeking to overturn protects you, the consumer. It protects you in keeping the plan you like; we said, if you like a plan, you get to keep it, and you can grandfather it in. What if they change the caps on certain annual limits? What if they raise your copays? What if they raise your deductibles? What if they sell out to another insurance company that has a different kind of a policy? Why should that be grandfathered? Because that is not what you signed up for. We want to make sure if you signed up for a plan and you like that plan, it can be grandfathered. What cannot be grandfathered is something drastically different, which puts you at a disadvantage. So it is clearcut on this issue before us: You either stand with consumers and you stand with Main Street businesses--which I just read a letter from, which recognizes that if they want grandfathered plans, they also want to be protected, they want some certainty out there to know what those plans are going to be; and that is what these rules provide. On the other hand, if you vote to overrule this rule, you are obviously standing with the insurance companies one more time, letting them continue what we closed the door on, some of these terrible abuses of cutting people off, putting caps on what you can get, changing your policies midstream. Well, the rule says: Yes, insurance company, you can do that, but you are no longer a grandfathered plan. That is exactly what this rule is about, to protect consumers and to provide certainty out in the marketplace for small businesses so they know what the grandfathered plans are and what they are not. Without this, if you do not have a rule, who knows what a grandfathered plan is. It is up in the air. So with that, I yield 15 minutes to my friend from Montana who did such a great job as chairman of the Finance Committee in shepherding the health care reform bill through. He is one of our great experts in this area, and I know he feels strongly about these grandfathered plans too. So I yield 15 minutes to my friend from Montana.

Mr. HARKIN. On whose time?

Mr. HARKIN. Mr. President, before I yield to the Senator from Connecticut, I listened to my friend from Wyoming before the minority leader spoke. He was reading from the Federal Register, if I am not mistaken, saying that any change--and he kept repeating ``any change,'' ``any change,'' any increase because we have been talking about there had to be significant increases and changes. My friend from Wyoming was reading from the Federal Register and said ``any increase.'' After reading through this, it reminds me of an example I have often used about not taking things out of context. It comes from Psalm 14 in the Bible. There is a sentence in the Bible that says, ``There is no God.'' I say to a lot of people, it cannot be true. Yes, there is a sentence in Psalm 14. It is right there. The problem is the sentence before that says: ``The fool in his heart says there is no God.'' You can take things out of context. I started reading this and saw how this was taken out of context. First of all, my friend from Wyoming said ``any increase in fixed amount cost sharing requirement.'' But, it says--he did not read on-- ``if the total percentage increase exceeds the maximum percentage increase,'' as defined in another paragraph over here, which is basically expressed as a percentage of inflation plus 15 points. So it is not any increase, it is any increase based on whether it is inflation plus 15 points. Then my friend said: ``Any increase in fixed amount copayment.'' But you have to read on because it says ``determined as of the effective date if the total increase in the copayment exceeds the greater of an amount equal to $5 or the maximum percentage increase,'' as I mentioned before, which is medical inflation plus 15 percentage points. I ask unanimous consent to have printed in the Record this chart to show that it is not any changes, as my friend was saying.

Mr. HARKIN. How much time remains?

Mr. HARKIN. Mr. President, you have to read the whole paragraph. There is one where there is any change at all would disqualify a grandfather plan, and that is any increase in the percentage cost sharing. You can understand that. If you have a percentage cost sharing, let's say it is 20 percent, if the cost of the plan goes up, medical inflation goes up, then your total cost will go up because 20 percent of $100 is $20; 20 percent of $120 is $24. Your out-of-pocket will go up. The only thing that would deny a plan from being grandfathered is if they changed the percentage of your copay. But if they have a fixed amount of copay, say $20, they can go above that by the maximum percentage increase of inflation plus 15 points. I wanted to try to clear that up, that there is only one case in which any change at all denies grandfathering, and that is if, in fact, the plan changes your percentage of what you have to pay in. I wanted to make that clear. Now I yield to my good friend, Senator Dodd, who was the leader on our committee in getting the Affordable Care Act through and who knows the importance of making sure we keep these protections, not only for consumers but for small businesses. I yield whatever time he wants.

Mr. HARKIN. Mr. President, I will be glad to yield time if he will yield me time if I have a question.

Mr. HARKIN. Mr. President, I yield myself such time as I may consume. I have to say to my friend from Wyoming: Where did that come from-- 100 pages of regulations for every page that is in the bill? That is going to be 200,000 pages of regulations. Where did that come from? It sounds like it came from the health insurance industry to me. Boy, I tell you, that is quite a figure. Well, obviously, it is a bogus number, and I do not know where that figure came from. I would like to ask my friend where that did come from. But I say to my friend from Wyoming, the Senator just said there is no help--I wrote it down here as fast as I could--no help for small businesses until 2014. Wait a minute. Wait a minute. In the Affordable Care Act, we attached--in the tax bill that Senator Baucus got through the Finance Committee, small businesses, beginning this year, 2010, will receive a tax credit--a tax credit, not deduction, a tax credit--of up to 35 percent of the cost of an employee's health insurance. So you have a small business, prior to this year, that did not get a tax credit, I say to my friend from Wyoming. I mean, the Republicans ran this place for 8 years under George Bush--8 years. They had a Republican President, Republican Senate, Republican House. They did not give small businesses any tax breaks for health insurance. We did. It is in the bill, a 35-percent tax credit this year for small businesses. That would cover 83.7 percent of all small businesses in the country. That is quite a bit of help for small business. I have heard from small businesses in my State that can get that tax credit this year that they have never had before. A lot of these small businesses are small businesses that employ just a few people--10, 12. They know their employees. They go to the same churches, schools. They are neighbors. I can't tell my colleagues how many small business owners in Iowa have told me: I feel so bad. Because of the increasing costs of health insurance, whether they are increased copays or deductibles, cutting out benefits, I have had to increase the cost of health insurance to my employees to the point that it is almost not worth it anymore because of high deductibles. They feel badly about it because these are their friends, neighbors. They are related a lot of times. I have had them come to me and say: Finally, this year I can get a tax credit, up to 35 percent. Quite frankly, in my State, 90.8 percent of small businesses will get the maximum 35 percent tax credit. Small businesses don't have to wait until 2014 to get help; they are getting that help right now.

Mr. HARKIN. I am delighted to yield to my friend from Illinois.

Mr. HARKIN. Mr. President, we have two things here. We have the Patients' Bill of Rights which just went into effect. That covers everybody. That covers all plans. That covers grandfathered plans. They can't escape that. However, if a plan wanted to be grandfathered, we left it up to the Department to write rules and regulations as to what grandfathered means. For example, let's say the Senator from Illinois and I have a contract. We both have agreed to it. We say we are going to let that contract go into the future. After a certain date, you are grandfathered in that contract. What the Senator from Wyoming would say is that if you are the insurance company and I am the individual covered, we will grandfather it, but you can change it any way you want. You can raise my copay. You can raise my deductible. You can reduce the annual limit on claims you will pay. You can eliminate benefits, such as the Senator just pointed out, for cancer or diabetes. And guess what. You would still be considered grandfathered. But I am stuck with that. That is what is so important here. That is what people have to understand about what the Senator from Wyoming is trying to do. He is saying that basically we will grandfather it in, but the insurance companies can change it however they want, and you are stuck with it.

Mr. HARKIN. That is right.

Mr. HARKIN. That is the way I see it. It just seems that we have rules and regulations. What the Department has said is that, OK, to be a grandfathered plan, you have to fall under these items: You can only raise your copayment a certain amount. By the way, it is quite a bit. You can raise your copayment either the greater of 5 bucks or medical inflation plus 15 percent. That is pretty good. It says you can change different things but within certain limits. They can't, for example, raise your coinsurance charges--that is, if you have a percentage. For example, if it is 20/80, they can't just raise that. It has to stay the same percentage. They could raise the copayment if it is a dollar amount. That is why the Senator from Illinois is so right. If this resolution passes, all of the protections for consumers are wiped out.

Mr. HARKIN

Mr. HARKIN. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on September 29, 2010, at 10 a.m., to conduct a hearing entitled ``The Al-Megrahi Release: One Year Later.''

Mr. HARKIN. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on September 29, 2010, at 2:15 p.m.

Mr. HARKIN. Mr. President, I ask unanimous consent that the Committee on Homeland Security and Governmental Affairs be authorized to meet during the session of the Senate on September 29, 2010, at 10 a.m.

Mr. HARKIN. Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet during the session of the Senate on September 29, 2010, at 2 p.m., in room SD-226 of the Dirksen Senate Office Building, to conduct a hearing entitled ``Judicial Nominations.''

Mr. HARKIN. Mr. President, I ask unanimous consent that the Committee on Rules and Administration be authorized to meet during the session of the Senate on September 29, 2010, at 10 a.m.

Mr. HARKIN. Mr. President, I ask unanimous consent that the Committee on the Judiciary, Subcommittee on Crime and Drugs, be authorized to meet during the session of the Senate on September 29, 2010, at 10 a.m., in room SD-226 of the Dirksen Senate Office Building, to conduct a hearing entitled ``Crimes Against America's Homeless: Is the Violence Growing?''

Mr. HARKIN. Mr. President, I ask unanimous consent that the Subcommittee on Energy be authorized to meet during the session of the Senate on September 29, 2010, at 10 a.m. in room SD-366 of the Dirksen Senate Office Building.

Mr. HARKIN. Mr. President, I ask unanimous consent that the Committee on the Homeland Security and Governmental Affairs' Subcommittee on Federal Financial Management, Government Information, Federal Services, and International Security be authorized to meet during the session of the Senate on September 29, 2010, at 2:30 p.m., to conduct a hearing entitled ``Improving Financial Accountability at the Department of Defense.''

Mr. HARKIN. Mr. President, I ask unanimous consent that the Subcommittee on National Parks, and the Subcommittee on Public Lands and Forest be authorized to meet during the session of the Senate to conduct a hearing on September 29, 2010, at 2:30 p.m., in room SD-366 of the Dirksen Senate Office Building.