The House Energy and Commerce Committee resumed consideration of the massive healthcare reform bill Thursday, 10 days after proceedings were postponed for countless hours of negotiations with conservative Democrats to keep the bill's chances of passing the committee alive.

The committee recessed just before Midnight and planned to resume consideration of the bill at 10 a.m. with Energy and Commerce Chairman Henry Waxman, D-Calif., pledging the markup would continue for "as long as it takes" on Friday, before the House breaks for August recess. Republicans planned a pre-meeting for 9:30 a.m.

Signs of how tenuous the support is for the bill (H.R. 3200) were evident early on, when Democrats only narrowly defeated an amendment from Rep. Nathan Deal, R-Ga., that would prohibit people that cannot prove U.S. citizenship from receiving healthcare with government subsidies.

Deal said the health care bill will force states to enroll millions of new Medicaid beneficiaries, many of which could be illegal immigrants. His amendment would require a proof of legal residency or citizenship.

Waxman said the only people the amendment would hurt would be U.S. citizens that do not have a passport or access to a birth certificate.

"I would imagine [you] could bleed to death before you get the documentation," Waxman said of people seeking emergency room care but first having to provide proof of citizenship.

Republicans argued nothing in the amendment would preclude current law that hospitals to provide emergency room service to anyone. The amendment failed 29-28 [Vote 2] after Democrats won the vote of two Blue Dog Democrats, Reps. Bart Gordon, D-Tenn., and Zack Space, D-Ohio.

The other Blue Dogs on the committee, Reps. Mike Ross, D-Ark., Jim Matheson, D-Utah, Charlie Melancon, D-La., John Barrow, D-Ga., and Baron Hill, D-Ind., voted with Republicans.

Since the markup was postponed due to push back from Blue Dogs about the bill's escalating costs, Waxman and Democratic House leaders had to cut deals that are expected to be offered as amendments either Thursday or Friday. At the start of Thursday's session, Waxman warned that "it will be extremely difficult to retain" amendments already accepted that increase the overall cost of the bill, when it is added to bills from the House Education and Labor and the House Ways and Means committees.

Blue Dogs amendments will trim about $100 billion from the cost of the bill to bring the estimated cost of the bill to under $1 trillion over 10 years. Amendments will include exempting more small businesses from the employer coverage mandate and requiring the Secretary of Health and Human Services to negotiate public plan rates with providers instead of using Medicare formulas and requiring states to pay more for the expansion of Medicaid. The Blue Dogs also won a delay of a floor vote until after the August recess.

Waxman will now have to deal with the concerns of the Congressional Progressive Caucus, whose leaders told CongressDaily they would oppose the bill coming out of the committee if it includes the Blue Dog changes.

Blue Dogs also oppose the surtax on wealthy Americans to help pay for a portion of the bill, but the committee rejected an amendment from Energy and Commerce ranking member Joe Barton, R-Texas, that would have limited tax increases in 2013 to people only making more than $1 million.

Waxman called the amendment "very destructive" to the bill because it would erase hundreds of billions in revenue to help pay for it. A remark from Rep. Anthony Weiner, D-N.Y., that said the bill would actually lower taxes because states would not have to spend as much on health care drew laughs and catcalls from the GOP. The amendment failed 33-25 [Vote 3].

The committee also rejected an amendment from Rep. Michael Burgess, R-Texas, that would decouple Medicare reimbursement rates from the Gross Domestic Product. Barton called it "a put your money where your mouth is amendment."

Burgess said with a declining Gross Domestic Product due to the recession, providers could see a 20 percent cut in Medicare reimbursements this year. The amendment was rejected 32-20 [Vote 1] on a party-line vote after Democrats argued it would inflate the cost of the bill and they already made reforms to Medicare's sustainable growth rate, although it is still tied to GDP.

The committee accepted an amendment from Rep. Mike Rogers, R-Mich., by voice vote that would prevent comparative effectiveness research from being used by the government to deny or ration care.

Waxman and Rep. John Dingell, D-Mich., tried to get Rogers to remove the word "deny," saying it would prevent the government from denying dangerous medicines and treatments. Rogers, a cancer survivor, refused, saying it could allow the government to deny life-saving treatments based on costs.

Democrats also rejected an amendment from Barton and Deal that would provide premium payment assistance for Medicaid and S-CHIP eligible adults, one of the highlights in the GOP's health care reform platform.

Barton said the amendment "would prevent the creation of a two-tiered system," where low-income Medicaid recipients receive lower-quality care. If working low-income adults did not have employer-based coverage, they would receive a voucher to choose a health plan instead of automatically being enrolled in Medicaid or S-CHIP.

The amendment failed 33-21 [Vote 4] after Democrats argued there was premium assistance in S-CHIP and they did not want people to get trapped in health plans they did not want.

Burgess failed for the second time on attempting to pass a cap on medical malpractice damages. The committee rejected by a 32-23 vote [Vote 5] Burgess' amendment that would have capped non-economic damages, such as pain and suffering, at $250,000 per doctor and $250,000 per healthcare entity. It also capped wrongful death total damages at $1.4 million. It also exempted Good Samaritan emergency healthcare that leads to death from being held liable unless gross negligence is proven.

Waxman ruled the amendment out of order on the second day of the markup, but Burgess' amendment today only applied to health care providers seeking Medicare reimbursement. Democrats argued again that fears of doctors practicing "defensive medicine" were overblown because of high malpractice insurance costs were overblown, and called for transparency of doctors that have been repeatedly sued for malpractice.

An amendment offered by Deal to extend federal tort protection to emergency room doctors who transfer patients with non-emergency conditions failed on a roll call vote 35-23 [Vote 8] with Matheson and Gordon supporting the measure and Republican Lee Terry, R-Neb., voting against it. The Deal amendment would have allowed emergency room doctors to transfer non-emergency patients to other facilities after an examination, while extending the same federal tort protection available to community health centers.

Deal said it would significantly reduce costs in the health care delivery system. Rep. John Shadegg, R-Ariz., said the amendment would deal with the fact that the Emergency Medical Treatment and Active Labor Act basically forces doctors to treat provide care for free. "The least we should do is cover their liability," Shadegg said.

But Waxman, said the amendment would encourage "patient dumping" and Rep. Bruce Brayley, D-Iowa, raised concerns that it would shift the burden of responsibility and "tax payers will end up footing the cost of medical malpractice." Brayley also pointed out that the purpose of the overall bill is to provide access to primary care, which will relieve the burden on emergency rooms. He also said limiting the malpractice liability of ER doctors would violate the 7th amendment and said members "threaten violating their oath of office by supporting this amendment."

In a bit of political theater, Rep. Anthony Weiner, D-N.Y., offered an amendment, which failed on a roll call 57-0 [Vote 7], to eliminate Medicare. Weiner said it should be the Republican's "dream amendment" to "stamp out the scourge of government-run health care," but said he would vote against his own amendment as he believes Medicare works well. "This is put up or shut up time. I dare you, I double dare you," Weiner said to Republicans.

But Republicans said repeatedly that there is a distinction between a government mandate and a government run plan. Rep. Steve Buyer, R-Ind., called the amendment a "political farce" while Weiner argued that Medicare is "socialized medicine and you know what, it works."

An amendment to eliminate the government plan, offered by Burgess failed 35-24 [Vote 11], with Rep. Rick Boucher, D-Va., voting with the Republicans. The amendment would also have prohibited federal funding to establish any federally-funded health benefits plan. Republicans argued that the government plan will create unfair competition and will be "a slow but inevitable takeover" of the health care system. Democrats argued that the public plan offers choice and is essential to to the bill's reform efforts.

Rep. Lois Capps, D-Calif., offered what she called a compromise on the debate in an amendment that would neither prohibit nor require health care providers from performing abortions. The amendment passed 30-28 [Vote 9] with Blue Dogs Ross, Matheson, Melancon, Barrow, Hill and Rep. Bart Stupak, D-Mich., voting with the Republicans. Capps said the amendment was "crafted carefully to preserve existing laws that ban federal funds being used to pay for abortion." It also includes a measure to ensure no physician or hospital is required to provide abortion services, and states that private funds from policyholders' premiums must be used to fund abortions. The amendment ensures that in the health insurance exchange there will be at least one plan that provides abortion services and one that does not.

Rep. Joseph Pitts, R-Pa., said the "so-called compromise is an effort to try to get prolife votes" but said the amendment departs from longstanding federal policy and creates "an accounting scheme." Pitts said the amendment will result in funding of abortion if, and some said when, the Hyde Amendment is repealed.

Pitts offered his own amendment that would explicitly state that the bill will not impose any requirements to provide abortions. The Pitt amendment initially passed 31-27 [Vote 10], with Waxman, Stupak, Gordon, Ross, Matheson, Melancon, Barrow, and Hill voting yes with the Republicans. But Waxman later moved to reconsider the amendment. Republicans forced a roll call and the motion to reconsider was approved 35-24 [Vote 14]. Upon reconsideration, the Pitts amendment failed 30-29 [Vote 15] with Waxman and Gordon changing their votes.

Pitts said it was important to specifically state that abortion requirements cannot be imposed. He argued that the Capps amendment adopted has a loop-hole where, if the Hyde Amendment is not renewed, then abortion coverage can be mandated.

But Rep. Diana DeGette, D-Colo., said the amendment would "create board restrictions" that go far beyond current law. Rep. Jay Inslee, D-Wash., compared a woman's right to choose with the right to bear arms and said the committee should "recognize the supremacy of law."

An amendment offered by Stupak and passed on voice vote would reiterate the so-called conscience clause that prevents discrimination against health care professionals and organizations that choose not to offer abortions. A section of the amendment that would have expanded that right to include any item or service was struck after Waxman raised concerns.

An amendment to strike a section of the bill and replace it with the simple provision that nothing would prevent people from keeping their current plans failed 32-26 [Vote12] with Melancon, Barrow and Hill voting with Republicans. Rep. Cliff Stearns, R-Fla., said his amendment was a simple substitution but Rep. Kathy Castor, D-Fla., said it would cut important reforms including preventing insurance companies from dropping coverage for people with pre-existing conditions or serious illnesses, stopping gender-based discrimination, and capping out of pocket costs. Castor said the amendment would "continue to allow today's broken insurance market to thrive."

But Republicans stressed repeatedly that the current bill will push people out of their current plans because the regulations will make it impossible for private group and individual plans to stay afloat with the new regulations.

An amendment brought up by Republicans in nearly every committee marking up the bill cause some consternation and forced a roll call on a motion to appeal Waxman's ruling that the amendment was out of the committee's jurisdiction. The amendment, offered by Rep. Roy Blunt, R-Mo., would require the president, vice president and members of Congress to participate in the government run health plan.

After brief debate, during which Republicans argued that it would assuage public fears about the plan to see their leaders enrolled, Waxman ruled that the issue was out of the committee's jurisdiction, which he said belongs to House Administration Committee. But as he ruled, he said he would have supported the amendment, eliciting groans from the Republicans on the committee. The motion to table the appeal of the ruling passed 36-22-1 [Vote 13] with Barton passing.

A Burgess amendment to set payment rates for the public option outside of Medicare rates failed 29-29 [Vote 16], with Boucher, Gordon, Matheson, Melancon, Barrow, and Space voting with the Republicans. Shadegg said that without the amendment, the public option will result in cost-shifting from the public option to the private sector and argued that doctors cannot afford to practice when being reimbursed at Medicare rates.

An amendment from Rogers that he said would have protected seniors in Medicare Advantage programs was defeated 34-20 [Vote 6] along party lines. The Rogers amendment would have required the Secretary of HHS to certify that the provisions of the bill would not result in seniors losing their coverage, otherwise it would prohibit enacting the provisions in the bill.

Rogers said the health care reform bill will cut more than $150 billion from Medicare Advantage and more than $400 billion overall from Medicare. Rogers said the bill would "gut an innovative program" and "force millions of seniors off their plans." Despite Rep. Phil Gingrey, R-Ga., expecting "every Blue Dog on the other side of the aisle to vote on this" the amendment failed.

Democrats argued that the cuts are slated to save $162 billion over 10 years and Weiner challenged Republicans to include a provision in the amendment to explain how they would fund the measure.

The committee approved on a voice vote Rep. Edward Markey's, D-Mass., amendment to create the Independence at Home pilot program. Markey called the program, which will be active in 26 states, an "innovative delivery system reform." The program uses home-based primary care teams to improve the health outcomes of Medicare participants.

The committee also passed on a voice vote an amendment from Rep. Doris Matsui, D-Calif., that will help preserve adult day care health services for low-income Medicare participants.

An amendment from Castor that gives states the power to regulate Medicare Advantage plans passed on a voice vote. Castor said the amendment gives states the power to address abusive marketing practices of Medicare Advantage plans. It will also allow the Secretary of HHS to, in collaboration with the National Association of Insurance Commissioners, create standardized marketing requirements for such plans. That provision raised some concerns from Republicans.

Stupak said it is a good amendment that would let the states do their jobs. Shadegg jumped on that, saying the amendment gives power back to the states while the rest of the bill federalizes health measures.

Rep. Bobby Rush, D-Ill., offered two amendments that focused on offering better protection and more early screening for children, but withdrew them when Waxman pledged to work with him on the measures.


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