This is the part of the national roller coaster ride more commonly referred to as reforming America’s health care system where the twists and turns come fast and the responses are increasingly furious.

Yesterday’s post described attempts to deal with the lack of trust between Senate and House Democrats. To summarize: House Democrats don’t want to approve the Senate’s version of health care reform without guarantees that the Senate will and can pass clean-up legislation changing that legislation. House Democrats fear a failure by the Senate to pass the clean-up bill will leave them forced to defend a vote for a clearly flawed bill.

Well, the challenge of reassuring House Democrats the clean-up legislation will pass just got tougher. According to David Drucker of RollCall.com, the Senate Parliamentarian has ruled that the Senate’s health care reform legislation must become law before the Senate can consider clean-up legislation. And the only way the Senate bill can become law is if the House passes it – as is. One might think this means President Barack Obama’s health care reform legislation is dead.

One might be wrong. Senate Majority Leader sent a letter today to Senate Minority Leader Mitch McConnell that formally informs Senate Republicans that the Senate will consider the health care reform clean-up bill under the rules of reconciliation (meaning it takes a simple majority to pass the bill). This can be taken as a show of confidence that Senator Reid believes the House will be passing the Senate’s health care reform bill.

House Speaker Nancy Pelosi is also expressing confidence that Democrats in her chamber will pass health care reform. And based on the optimistic statements made by several participants and reported by the Associated press after a meeting between the Administration and House Democrats today, progress toward passage of health care reform is, indeed, more likely today than yesterday. No one is saying it’s a done deal yet, but clearly the effort is intense and continues.

A critical development will be the Congressional Budget Office’s analysis of changes proposed to the Senate Bill (what will become the content of the clean-up legislation). The CBO report will have a substantial impact on those Democrats on the fence about the comprehensive health care reform package put forward by the Administration.

But more twists and turns await.

• Can the House Leadership find a procedural path that would allow the House to pass the Senate’s version of health care reform but make it’s enactment subject to passage of the clean-up bill?
• How many Democrats who voted for health care reform when it passed the House will now vote no because the Senate’s abortion language will prevail in the final product?
• Will liberals insist on a public option as a price for their vote?
• Will moderate Democrats who voted against the House bill vote in favor of the more moderate Senate version of reform?
• What will be the impact of the inevitable demonstrations House Democrats will face during the upcoming Easter recess?

And the list goes on. The only thing for certain is that no one knows for sure, after all the twists and turns, where we all wind up.

Filed under: Barack Obama, Health Care Reform, Healthcare Reform, Politics
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In the end, health care reform may come down to a question of trust: does the House of Representatives trust the United States Senate enough? Yes, majorities in both chambers are  comprised of Democrats, but that is far from sufficient. We’re talking about political careers here. We’re talking about overcoming the animosity said to exist between House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid. We’re talking about politics, fear, egos and legislation that will impact every American along with one-sixth of the nation’s economy. During a recession. In an election year.

This is epic stuff going on here.

Let’s review. In order to enact President Barack Obama’s health care reform package Congress must execute a three step legislative dance:

Step One: the House passes the Senate’s version of reform – a bill most oppose, but could accept with some changes. Once passed by the House, the legislation would go to the President’s desk for his signature and become law.

Step Two: The Senate passes legislation to make the changes House members (along with Senators and the President) want. These changes would all relate to government spending or taxation, enabling this so-called “side-car” legislation would be passed by through the reconciliation process. In other words, the clean-up bill could be passed by the Senate with 51 votes instead of the super-majority of 60 votes requires for most legislation now days.

Step Three: The House passes the Senate’s side-car bill, sending it on to President Obama for his signature. Taken together, the Senate bill and the clean-up legislation becomes the Democrat’s health care reform package.

The problem is that before they can amend an existing law, that existing law has to exist. Meaning the House has to pass the Senate’s health care reform bill before they know whether the Senate can and will pass the clean-up bill. No one in Washington actually likes the Senate bill as it is chock full of provisions House Democrats neither support nor wish to defend in this election year.

Without complete confidence that Senate Majority Leader Harry Reid can and will push through the side-car legislation, asking House Democrats to pass the unloved Senate bill (without any support from Republicans) is a huge risk. What if Senate Democrats refuse to enact the remedies House Democrats expect and demand? What if Senate Republicans succeed in blocking passage of the clean-up legislation? A lot can go wrong. Given the only three laws that seem to  apply within the beltway (those being the laws of Gravity, Unintended Consequences and the one named after Murphy) something is all but guaranteed to go wrong.

Not surprisingly then, as I’ve talked to legislative staff and others here in Washington a lot of creative thought is being devoted to bridging the trust gap. One rumor was that Speaker Pelosi was demanding that Senator Reid deliver two letters. The first would put in writing his commitment to pass clean-up legislation satisfactory to House Democrats. This letter would also guarantee that the Senate Parliamentarian (who ultimately will decide what provisions can be passed through reconciliation and which can’t) will permit these remedies to be approved with a 51-vote majority under reconciliation rules.

The second letter requested by Speaker Pelosi was rumored to be one signed by 51 Senators pledging their support of the side-car legislation. 

If true, the Speaker’s demand for written assurances is highly unusual, to say the least. And not all of the guarantees are within Senator Reid’s power to offer. For example, he has no ability to commit the Senate Parliamentarian to any specific decisions. The Senate Parliamentarian is an independent, non-partisan referee. The current Parliamentarian was appointed by Republicans when they controlled the Senate. No one has questioned his fairness during his service since (although some Republicans are now setting the stage to attack him if any of his decisions work to the advantage of Democrats). Senator Reid cannot control what the Parliamentarian will decide.

Another rumored solution to the Democrat’s dilemma would be one in which the Senate’s health care reform bill would be deemed passed by the House only if the side-car legislation was also passed. In the House, votes are subject to “rules” which specify everything from how much time a measure can be debated to how many amendments may be considered. The theory is that a rule could be passed that would, in essence, make enactment of health care reform clean-up legislation a pre-condition for the vote approving the Senate health care reform bill being considered binding. Or official. Or something. OK, I’m not sure how the rule would be worded, but the goal would be to prevent health care reform from passing without the provisions of the side-car bill also passing.

What to make of all this? First, that Democratic Leaders feel a great sense of urgency to enact health care reform. The longer voters sees Congress  struggling through procedural mazes, the less they support the legislation. Some have reported that President Obama has asked to have a bill ready for his signature by Congress’ Easter recess (if he’s going to use holidays as markers I would suggest April Fools Day just to demonstrate the White House still has a sense of humor, but that may just be me. The Associated Press story cited above says the Administration is hoping to see health care reform legislation passed by the end of next week when President Obama is scheduled to start foreign travel.

The second takeaway from all this pretzel-making is that Democrats are anxious to make the legislation more acceptable to the American people. The side-car legislation will contain several provisions put forward by Republicans. It is likely to eliminate the sweetheart deals favoring specific states. Democrats know they’ll be attacked this November if they pass health care reform legislation or if they fail to do so. Given this reality their best strategy is to pass a defensible bill.

What all these rumors also imply is that whether health care reform passes all comes down to whether Speaker Pelosi and Senator Reid can trust one another. If they can, health care reform is likely to move forward. If they cannot, health care reform in its current form is most likely doomed.

Filed under: Barack Obama, Health Care Reform, Healthcare Reform, Politics Tagged: Harry Reid, Nancy Pelosi, reconciliation, side-car legislation
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The current issue of the American Health Lawyers Association’s Connections magazine features an article I co-authored with fellow AHLA health lawyer, Jody Joiner, on the impact of social media use in health care.

The article, Risky Business: Treating Tweeting the Symptoms of Social Media (PDF version), is featured in the March 2010 issue of AHLA Connections (Vol.14, No. 3, March 2010), a health lawyer magazine for the health and life sciences law community.

We provide background context on the use of social media tools by health care providers, address why we think health lawyers need to understand social media, and explore some of the legal implications as social media and the law intersect. The article ends with practical guidance to health care providers and organizations on implementing policies emphasizing the appropriate use of social media.

You can peruse the complete digital edition of the March 2010 AHLA Connections (Vol. 14, No. 3, March 2010). AHLA members should also check out the article in this issue on the recently launch Health Law Wiki. Great to see AHLA adding a wiki resource for members to share their expertise and experience in the complex and ever changing health care legal and regulatory world.

Special thanks to the AHLA Connections staff for allowing Jody and I the opportunity to write the article and for their great editorial assistance.

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Someone should do a poll. The question: should politicians base their votes based on polls or on their own judgment and belief? There was a time when I think the general consensus might have been in favor of politicians standing for something in spite of the prevailing wind. Now it’s clear that the answer is whatever the politician wants it to be at the time.

Exhibit One: I’m at the National Association of Health Underwriters Capitol Conference in Washington, DC. This morning the general session featured lawmakers (from both parties) including Representative Mike Pence, part of the Republican Leadership in the House. Representative Pence, a former radio talk show host, is articulate and bright.

One of his arguments for why President Barack Obama’s health care reform package should be defeated, however, was that polls show Americans oppose the health care reform the legislation. This point has been made frequently and consistently by many Republicans and opponents of the President’s reforms.

Interestingly, this line of reasoning was not brought up when, late last year, during the debate over reforming how banks and other financial institutions are regulated. The financial reform bill passed without a single Republican vote. I assume Democrats made the argument during the debate that Republicans should support the legislation because polls show the public supports such reforms. (Interestingly, when individual components of the health care reform package are surveyed, voters tend to favor them).

So apparently many politicians believe lawmakers should cast their vote in accordance to the polls when the polls coincide with the pre-existing position of the politicians, but should vote their conscience when the polls disagree with their pre-existing position. (Note: a pre-existing position is different than a pre-existing condition. Just so we’re clear).

Legislating by responding to polls is a dangerous path. It subjects legislating to the passion of the moments. The Founding Fathers were aware of the dangers of this approach, consciously creating layers of checks and balances to prevent this outcome (a fact Representative Pence noted in arguing for subjecting health care reform to a 60-vote super-majority in the Senate). If our representatives in Washington are simply supposed to cast their vote in accordance with the latest polls we could save a lot of money by simply replacing all 535 members of Congress with the folks at the Gallup Organization.

But that’s not what most Americans want most of the time. Instead, Americans expect their representatives to debate, deliberate and use their best judgment. After all, we generally consider those who stand by their principles statesmen; those who base their votes on the latest survey results we consider mere politicians.

There’s a lot wrong with President Obama’s health care reform plan. Opposing it because of the latest survey results is a lousy reason. Instead, lawmakers who determine the package will do more harm than the status quo, should vote against it. Representatives who conclude the reforms are an improvement over the status quo should vote for it.

It’s really as simple as that. No polling required.

Filed under: Barack Obama, Health Care Reform, Healthcare Reform, Politics Tagged: Mike Pence
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Martin Memorial too mum: Hospital staff violated privacy of shark victim, an article from the Palm Beach Post. The article highlights the impact ubiquitous mobile devices with cameras are having on our society and the potential liability risks associated with the use/misuse of these devices by health care employees.

The article indicates that various hospital employees took photos of a shark bite victim when he arrived in the emergency room. The article discusses the action taken by the hospital in response to the incident. Another article indicates that the photos were emailed to others.

This type of situation is a nightmare for hospital administration, the privacy officer and legal counsel. The effort and investigation that likely went into figuring out who took photos, where those photos went and the procedure for recapturing/removing the photos from the various sources was time consuming and expensive (both in $$ and reputation) for the hospital.

As such, this incident provides a good example for training and reeducating health care employees on patient privacy issues. Health care employees and professionals must always remember to start from a framework of protecting the health and privacy of their patients. As the use of mobile devices with cameras and social media tools becomes more ingrained in our every day lives — the ability for private information to be captured, transferred and spread in a viral fashion has become much easier. Caution must be used and this case highlights the importance of retraining staff and highlighting the importance of protecting your patient’s privacy.

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Just some random thoughts while we see if the Democrats can muster enough votes to enact health care reform. None of them are worth a separate post (and may not be worth being in any post), but I thought I’d clear the decks before the real fun starts over the next few weeks.

It’s Franken’s Fault: If health care reform fails I blame Senator Al Franken. Elected by a mere 206 votes, Senator Franken became the 60th Democratic vote, the super-majority the caucus needed to overcome, in theory, any Republican filibuster. This enabled President Barack Obama and Democratic leaders in Congress to treat health care reform as a Democrats-only endeavor. Yes, Senator Max Baucus tried to work out a compromise with a few Republicans (and actually got one of them to vote for the Senate Finance bill). But liberals in the party and in the land of pundits were constantly and consistently pushing reforms to the left.  For example, Democrats insisted health care reform include a government-run health insurance plan far longer than would have been the case if they lacked a super-majority. Want proof? The public option fell to the wayside within 58 hours of the loss of their super-majority.

Of course, liberal Democrats had already made the mistake of believing that all Democrats think alike. Proud to be the party of inclusion, they forgot that they had included moderates and conservatives into their ranks. They somehow thought they could get Senators Ben Nelson, Joe Lieberman, Blanche Lincoln and other centrists to go along with the liberal wish list for health care reform. Having a super-majority masked this illusion. So if 104 Minnesotans had voted the other way, who knows, health care reform might have passed months ago.

Republicans Will Vote to Keep the Sweeteners.  Republicans hate being called the Party of No, but they’ve earned the epitaph. They seem to have adopted a political strategy that Democrats can achieve no victories. Whether that’s to embrace the Tea Party advocates who want the federal government to go away, acquiescence to Rush Limbaugh who is on record saying he wants President Obama to fail, or, who knows, a sincere expression of their public policy beliefs, the outcome is they act in near lockstep to defeat any proposal with the Administration’s finger prints on it. Which may create an interesting spectacle: Republicans voting to preserve the Cornhusker Kickback and the Louisiana Purchase.

These are among the legislative sweeteners added to the Senate health care reform bill to gain the support of Senators Ben Nelson and Mary Landrieu. And to deprive President Obama of a victory on health care reform Republican may need to defeat legislation to repeal them. Here’s why:

Under the legislative dance Democrats are likely to use to pass health care reform, the House will pass the Senate’s version health care reform bill. Since the Senate bill already passed that legislation – with a super-majority no less, House passage sends it directly to the President’s desk for his signature. At the same time Democrats will introduce legislation aimed at modifying the Senate legislation to, among other provisions, repeal the sweeteners, bribes, backroom deals, whatever you want to call them. Among those “other provisions,” by the way, are a number of items on Republican’s health care reform wish list. To deny Democrats the a victory on health care reform, Republicans may have to defeat the clean-up legislation – a vote to keep the sweeteners and to defeat their own reform proposals. The word “ironic” comes to mind – along with many others.

Politicians Need an Asterisk Projector. President Obama likes to say that “If you like your current health insurance you can keep it.” Well, in theory maybe. For awhile perhaps. But even in the short-term there’s a huge caveat: there’s no guarantee you can keep your health insurance in the current health insurance system and the reform bills do nothing to change that. When employers changes coverage, their employees change coverage. Whether they want to make that change or not. If a carrier drops a particular health plan in the individual market, insureds have to choose another plan. So when President Obama makes this pronouncement, he should project an asterisk over his head to cover these contingencies.

When Republicans condemn Democrats for even thinking about using the reconciliation process to pass the health care reform clean-up legislation discussed above they should project an asterisk. That’s because they were very happy to pass tax cuts a few years ago using the reconciliation process. So what Republicans mean when they oppose reconciliation is that they’re for it when it’s helpful to them and they think it’s un-American when it’s not.

For a Rookie He’s Gotten Pretty Far. Regardless of what you think of President Obama’s ideas or his tactics, you have to give him credit for getting further with health care reform than any of his predecessors. Pretty impressive for someone who was a State Senator just five years ago.

Whether It’ll Make Things Better or Worse is A Guess. Of course, it would be nice if the health care reform package he may get through was better than what will emerge from Congress, but let’s face it: no reform proposal would be popular. This is one of those issues in which there are no popular options. Everyone recognizes the status quo can’t endure. Everyone knows every proposal to fix the system is gravely flawed.

My first political mentor, Cathy O’Neill, used to say, however, “The test of whether to vote for something is not whether it’s perfect, but whether it’s better than what we’ve got.” When it comes to health care reform, however, there’s no way to know if a particular bill will make things “better” or not. The system is too complex. The opportunity for unintended consequences is too great. It’s likely only comprehensive reform can fix the system, but there’s no way to truly understand what comprehensive reform will accomplish until well after it’s implemented. Not a reassuring prospect, but it’s reality.

We’ve Only Just Begun.  Let’s say health care reform passes. That’s just the start. States and regulators will need to interpret and implement the reforms. Future Congress’ may seek to change or repeal the bills. Yogi Berra is supposed to have said, “It’s not over until it’s over.” When it comes to health care reform, “It’s not over even when it’s over.”

Filed under: Barack Obama, Health Care Reform, Healthcare Reform, Politics Tagged: Ben Nelson, Blanche Lincoln, Mary Landrieu, Max Baucus, Senate Finance Committee
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File this under “Better Late Than Never” but the drum beat aimed at focusing attention on the need to constrain medical costs in America continues.

Earlier this week I wrote about Sacramento Bee columnist Daniel Weintraub’s posting a reality check for California lawmakers that all the insurance carrier bashing they’re enjoying will do little to address the rising cost of health care. That post also reported on Warren Buffet’s advice to the president to do much more to rein in costs.

Then, yesterday, President Obama indicated he’ll be incorporating into the legislation he’ll be proposing later today some of the medical cost cutting ideas put forward by Republicans during last week’s bipartisan health care reform summit.

And the beat goes on. CNN has been reporting this week on extraordinary and wasteful costs in America’s health care system. $140 for a single Tylenol pill? $1,000 for a toothbrush anyone?

Some of the unnecessary expenses are mistakes made by the hospital that slip past health insurers’ claim examiners (a Georgia patient billed for 41 bags of IV solutions for an emergency room visit that lasted two hours in which just one bag was used). But some of the outrageous expenses are intentionally designed “to make up for lower payments the government pays through Medicare and Medicaid.”

The CNN report goes on to cite, however, a Pricewaterhouse Cooper’s Health Research Institute finding that $1.2 trillion of health care spending in the United States – roughly half – represents waste. This analysis includes in the definition of waste defensive medicine, preventable hospital readmissions, medical errors, and unnecessary emergency room visits. (The Congressional Budget Office has estimated that 30 percent of America’s health care spending is wasted or spent on low-value services using a less broad definition of waste.

There hasn’t been this much talk focused on the need to reduce medical costs since Dr. Atul Gawande wrote about the difference in Medicare spending experienced in two Texas cities, McAllen and El Paso. That was right before attention shifted to the misbehavior of demonstrators during Congressional Town Hall meetings and the debate in Washington pivoted to health insurance reform rather than health care reform. And I am not suggesting that the need to focus on medical cost containment undermine efforts to reform health insurance company behavior where that’s necessary.

Nor am I saying that the health care reform bill the President will put forward today does enough to attack skyrocketing medical care costs. But it will be a start. And it will do more than the proposal he unveiled last week or those previously passed by the Senate and House of Representatives. And that’s a good thing. Let’s just hope it’s the beginning of the effort to reduce health care costs and not the end of it.

Filed under: Barack Obama, Health Care Reform, Healthcare Reform, Politics Tagged: Atul Gawande, Daniel Weintraub, medical cost containment, Peter Orszag, Warren Buffet
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