Don Nickles

Mr. NICKLES

Mr. NICKLES. Mr. President----

Mr. NICKLES. Mr. President, I regain the floor. I looked at the chart. The chart does not have all States. Maybe some States were not impacted as much. Maybe they highlighted the States that have the most additional cost. I mentioned my State. I know my State would be out of a lot of money. We offered a drug benefit that goes up to 74 percent of poverty, and we are going to put a new mandate between 74 and 150 percent of poverty. The State has to make that match. I know it is going to cost my State millions. HHS said it cost $68 million. They said the cost for the first year is over $5 billion. Maybe some States are pluses, maybe some are winners. Maybe they did not include all this. I will say a couple words about the legislative process. I happen to be a believer in the legislative process, and I think my colleague from Florida knows that. We did not abide by the legislative process. We did find his amendment greatly increases Medicaid costs for a lot of States. Yes, we exposed that. That happens to be factual. This was not just a Medicare expansion. It was a Medicaid expansion, and the States have to match Medicaid. Did we find it? Yes. Did we find in the original Graham proposal that the proposal limited the prescription drugs to one, up to two, drugs for therapeutic class? We did. I think it probably is one of the reasons that proposal did not pass--because it is such a limitation. Did we find it? Yes, it was in the language. Did we have a whole lot of time? No, we told people about it. I do not back off that a bit. I think we have a right to point out the weaknesses of arguments. As always, my colleague can point out this was not a complete chart. We did not have time to get a complete chart. I did not. Maybe there is a complete chart around, but the amendment was offered in the afternoon and we were voting on it in the morning. One of the things that is really wrong is to try to legislate in a manner such as this. I believe in the legislative process. I believe in hearings. I would love to have a hearing on the proposals we voted on this week. I would love to have experts testify on the pluses, the strengths, the weaknesses, the gaps, the minuses on the various proposals. We have had some good proposals. We have had some that are not so good. I heard my colleague from Florida say that CBO by e-mail said this is a net wash for the States. HHS shows me that some States, or these States that are listed, would have a net loss of $5 billion in 1 year. This is a 10-year program.

Mr. NICKLES. The point I am making: It would be nice to go through the process, have a bipartisan markup, have hearings, have experts, and not be relying on e-mails that came from somebody in CBO. Incidentally, I noticed in CBO's scoring of the proposal, it was scored and was estimated to be $394 billion, but there is an asterisk: Scoring done by estimates, not by the language of the bill. In other words, they did not have the language of the bill on which to do the scoring. This is the most important expensive expansion of an entitlement that we have dealt with in decades. It is the most expensive important expansion of any entitlement, and we are doing it with CBO not even having legislative language to look at. I find that to be a pretty crummy way to legislate. I am offended by this process. I am offended by being a member of the Finance Committee and not even being able to offer an amendment in the markup of the bill. I am offended by the fact--I looked at the history of the Finance Committee, which is one of the great committees of the Senate. I waited 16 years to get on that committee. It took a long time. It is a great committee. I thought it would be worth the wait because we would be marking up very substantive legislation, such as Social Security, Medicare, Medicaid, welfare reform, and taxes. Yet the committee is bypassed, so we have 20 members of the committee who did not get a chance to offer an amendment. We have an amendment that was created somewhere and scored overnight not by legislative language. No one gave us a chart and said here is the impact of your State. I would love to see the impact to my State. My State Medicaid director says this is going to be a real problem; we cannot do it. We exposed that a lot of States would have a problem doing that. There is no reason to apologize for doing that. I just want to make sure that Senate debate never improperly impugns the integrity--I believe my colleague who was quoted was Senator Grassley--I do not ever want anybody's integrity to be impugned on either side of the aisle. That is below the Senate, and there happen to be Senate rules against it. I wanted to make that point. I will just assume and take for granted no one meant to do that. But we have to be very careful not to do that. We have to be careful that we are factual. Sometimes maybe in the heat of the debate things get going. I want to move on to one other subject.

Mr. NICKLES. I yield just for a question.

Mr. NICKLES. The chart does not show any offsetting. It shows a total cost increase of the new Medicaid mandate. I think the Senator is trying to imply there may be some savings for some areas if a State had a lot of catastrophic and the Federal Government were going to pick up 100 percent of that cost, I guess. That may be correct, but it does not have a column that shows that. Maybe if we would have had a little more time--the answer is no. I ask my colleague, though, since CBO did some work for the Senator, did they do a State-by-State analysis on what the impact of the State of Oklahoma would be?

Mr. NICKLES. The Senator can answer the question. I have the floor and I will state again, some States lose under the Senator's proposal big time. I am not sure all States do; some States lose big time. The Senator stated that he did not have a State-by-State analysis, so every fact that is on this chart may well be accurate. The Senator also stated that CBO did not do a State-by-State analysis, and I will say if we are going to be changing Medicaid formulas, or if we are going to be changing Medicaid programs and States have to make a certain percentage match, it is only prudent that we would do an analysis of what the impact would be on a State-by-State basis. Unfortunately, CBO did not do that. Fortunately, the Department of HHS did. The States that are included on this list are the States that get hit the hardest, and we expose that. Now, there may be some offsets, but I tell my colleague from Florida, I can almost assure him, since 80 percent of seniors have prescription drug costs that are $2,000 or less, that catastrophic program savings would not come near to offset the increased costs of utilization. And the fact that they have to make matches up to 50 percent, almost to 100 percent, for the program, minus a small deductible for people under 200 percent of poverty, it would not come too close to make it. It would not come close in the State of Nebraska or the State of Oklahoma. I know that. There are not near that many people who would have the savings through the State. In our State program, the individual who gets three prescriptions per month is not going to come close to $3,000. That program is not that generous in my State so the savings on the catastrophic side would not come close to making the savings or the increased costs that is on the low-income side.

Mr. NICKLES. Yes.

Mr. NICKLES. Well, I will tell my colleague, all we had from CBO on the Senator's amendment was one page that said, one, it never went State by State and, two, it said $394 billion and it said it was not based on legislative language. We had nothing to score off of from what was provided for by CBO or by the Senator, except for the Senator's word that he had an e-mail that said the States net out about even. I did have work that was done by HHS, and it may not have included every extrapolation, but they did compute the cost of the low-income benefit and how much that would cost the States to make the match, and it is in the billions of dollars, to the tune of $5 billion for some States. Maybe some States would come out better. I am not sure. But that is my point. This is not the way to legislate. This is legislating as if we are going to legislate on the back of an envelope. It is almost as if Senator Daschle said, do not go to committee, do not have a markup, here is $400 billion, $500 billion, $600 billion, or $800 billion and can we not cobble together 60 votes? That is a crummy way to legislate. We could have passed a prescription drug bill if we had done two things. If we would have passed a budget, this Senate--the House passed a budget. Incidentally, the House passed a budget with a prescription drug amount of $350 billion. The Senate passed a budget a year ago, I might mention when Republicans were in control of the Senate, and it was a $300 billion total Medicare change. It could be prescription drugs or it could be for something else. That is what we are relying on in the Senate today. Why? That is a year old. Because the Senate Democrats, or the leadership of the Senate, did not pull up a budget. We do not have a budget. We did not pass a budget, first time since 1974, and because we did not, a budget point of order lay against anything that was over $300 billion. If we had passed a budget, gone to conference with the House and resolved whatever amount that would be--and let's presume the House would prevail--then the committees would have been instructed to pass a bill, if the House prevailed, up to $350 billion. It could be passed if it went through the Finance Committee. Any bill could be reported out that would be up to $350 billion, and it could pass with a majority vote. No budget point of order would lay against it. We could have passed a prescription drug benefit this week. Unfortunately, that did not happen. So the committee did not mark up any proposal that came out that was over $300 billion. Last year's level had a budget point of order, had to have 60 votes, had to have a supermajority. The real fault of that came because we did not pass a budget earlier. Again, I love the Finance Committee but I hate the way the Finance Committee has been trampled on. I hate the fact that the Finance Committee is being ignored, the fact they did not mark up the bill, the fact I did not have a chance to offer one amendment, the fact I did not get to have the chance to ask the Medicaid director: How does this impact you? Is this a good proposal? Do you mind if we put on this new requirement, oh, yes, below 150 percent of poverty? Here is this brand new benefit. It is going to cost you a ton of money. How much does it cost? Can you afford it? Could you pay for it? I am afraid the answer would be, no, no, no, no. We did not have a chance. Instead, we had to try to write the bill on the floor, and in this case we had to take up this amendment and we had less than 24 hours to deal with it. Again, my purpose in expanding this is not to redebate the amendment. My purpose is to defend my colleague, Senator Grassley, whose integrity I value more than anything. I would not--and I know he would not-- misstate a fact to win a debate for anything. I came to the Senate with Senator Grassley in 1980. That was 22 years ago. We have cast thousands of votes together. I know him very well. I agree with him most of the time--not all the time--but I would defend his integrity every day of the year. I am going to start making points of order, rule XIX, if people imply or impugn the integrity of another Member. I am going to do it, and those words will be stricken from the Record and the Senator will not be allowed to get access to the floor for the rest of the day; and maybe other penalties. We have not done that, but maybe we need to do it. So that is my purpose for coming to the floor. I want to make a couple of other comments.

Mr. NICKLES. I am not going to yield. I am going to make one other comment on a different subject.

Mr. NICKLES

Mr. NICKLES. Will the Senator yield?

Mr. NICKLES. Will the Senator yield?

Mr. NICKLES. Will the Senator yield for a question?

Mr. NICKLES. Will the Senator yield?

Mr. NICKLES. I am wondering about all these savings. I am looking at my State. You said if the State had a prescription drug program, the Federal Government might be picking up a lot of that State program so therefore it is saving. My State doesn't have that, other than the fact we provide Medicaid prescription drugs up to 74 percent, and that is limited to three prescriptions per month. So where is the savings for my State? HHS said this is going to cost my State something like $62 million. My director of Medicaid said it is going to cost our State, and we can't afford it. There, obviously, under your proposal are some States, maybe a lot of States, that would be losers; isn't that correct? It would increase their Medicaid costs dramatically?

Mr. NICKLES. Isn't it likely that some States would be losers?

Mr. NICKLES. I don't know. I will just state to my friend that these are additional new costs. There may be some offsets. I mentioned one possibility. You mentioned: Well, if they have the State drug program, that might be a savings. I didn't have that program. The only offsets I could see is if the Federal Government is taking over some of the catastrophic, and I don't see that hardly ever happening. So I think these are pretty accurate costs. I will be very interested maybe CBO will have a chance to do it. Maybe if we would legislate correctly and not just have a new proposal on the floor, we would have a chance for CBO to score it, not through e-mails saying that we think it is no new net cost but have them give a State-by-State. Then we could be more thorough in our analysis and in our description. And if someone highlights a couple of columns and leaves out a couple of columns, that can be brought out in the debate. Unfortunately, we did not have that time afforded to us the way this bill was brought to the floor and the way we were considering serious alternatives. I appreciate my colleague saying, wait a minute, maybe this is not complete. There should have been a column that shows some offsets. But I am absolutely certain that some States would lose millions upon millions of dollars, maybe in the hundreds of millions of dollars. And some States would be real net losers. There might be some that have some better reimbursement from the Federal Government. In fact, it may be for some of the States that are wealthier, that have more generous programs, we are going to pick up the cost of their doing the program which was a previous State program. Maybe that is an offset. But I hope, and I think my colleague would agree--or wouldn't you agree--that we should have a more thorough cost analysis by the relevant agencies, whether it is OMB, Labor-HHS, or CBO, when we discuss programs of this significance and the significant impact it would have on our States?

Mr. NICKLES. I thank my colleague.

Mr. NICKLES. I thank my colleague.

Mr. NICKLES

Mr. NICKLES. Mr. President, reserving the right to object--I shall object at this point--let me make a couple of comments. I believe this is for the purpose of appointing conferees on the so- called Patients' Bill of Rights. We have just received this notification tonight. We haven't consulted with everyone on our side. We have really no objection to appointing conferees. We just have to work it out. I will mention that the House passed this bill a year ago tomorrow on August 2. So we have been waiting to have conferees appointed for almost a year--364 days. We will be happy to do that. But since we just got this notification, and the majority wanted to do this, we have to consult with various interests and parties. We haven't had time to do that in the rush of business today. We will cooperate with the majority to get this done early when we return. But, at this point, I will have to object.

Mr. NICKLES

Mr. NICKLES. Mr. President, reserving the right to object, let me have a chance to read this.

Mr. NICKLES. Mr. President, I shall not object.

Mr. NICKLES

Mr. NICKLES. Mr. President, these are items that have support. Most of these are items that have been reported through the Energy Committee. They have bipartisan support. These are Democrat and Republican bills. I appreciate the cooperation of the assistant majority leader in finally passing these items.

Mr. NICKLES

Mr. NICKLES. Mr. President, if the Senator will yield, I say to my good friend that it is a unanimous vote in the Senate on this treaty.

Mr. NICKLES

Mr. NICKLES. Mr. President, first let me thank my friends and colleagues, Senator Reid and Senator Daschle, for finally moving some of these nominees. Some are long overdue. Some are still yet to be confirmed. I will make one mention: Kyle McSlarrow, to be Deputy Secretary of Energy. He worked for us in the Senate. He is more than qualified. I happen to know the Secretary of Energy because he used to be a Senator, Spence Abraham, and he has personally requested that he be confirmed. He needs a Deputy Secretary of Energy. So while I am pleased we were able to confirm a large number of nominees, we have some nominees who are now going to have to wait the entire month of August and well into September to be confirmed. I find that to be unfair. I wanted to express my pleasure with the one we were able to confirm and my displeasure with the fact that there are about 30 people who will still be left on the calendar, including individuals such as Kyle McSlarrow to be Deputy Secretary of Energy, and other outstanding nominees who will still be held in limbo in the confirmation process throughout August and maybe well into September. I find that regrettable. There is no reason in the world not to move more of these nominees. I am appreciative of the many we have confirmed. I have not totaled the number, but it is a significant number. Still, there will be several very well qualified individuals who, for no reason whatever, are not being confirmed to this date. I wanted to express my displeasure and mention that nominee. I could go through the list. I will not do that at this late time. I want my colleague to know I am not happy we were not able to confirm Mr. McSlarrow, who was reported out by the Energy and Natural Resources Committee unanimously on June 5. He has been waiting almost 2 months. The Secretary of Energy has been waiting to get a deputy. Unfortunately, he still will not have a deputy for the next couple of months, at a time when we will mark up an energy bill. It is probably the most significant piece of energy legislation in decades, and the Secretary does not have his deputy confirmed.

Mr. NICKLES. Mr. President, I thank my friend and colleague. I understand that maybe he is not the source of some of the remaining holds. We are confirming a large number of people, well qualified people, at long last. That is good. There still remain some outstanding nominees; I think about 30. I hope my colleague from Nevada will work with me and Senator Daschle and Senator Lott and see if we can clean the rest of the calendar. Historically, we try to clean the calendar before we break, both in August and October. I hope we will not wait until the end, early October, to clean the calendar this time. I hope we will try to confirm as many of these nominees as early as we can in September, both for the agencies that need the help and the expertise and also for them individually. They should not be held indefinitely. I will work with my colleague, and I would appreciate his assistance to see if we can get some of them through--there may be holds on both sides--and see if we can eliminate some of those and expedite the confirmation process.