President Barack Obama is scheduled to announce his final health care reform package tomorrow (Wednesday). This is the version of reform the President hopes Democrats in Congress will embrace and enact through a process that would side-step the inevitable Republican filibuster of health care legislation. Passage is far from assured. There are still several parliamentary maneuvers available to the GOP to slow the legislative process down. And it’s unclear whether Democrats can muster a majority behind any single bill to pass health care reform even if no super majorities are required.

Yet there are indications Democrats could be successful. For example, the House passed its health care reform bill by the slimmest of margins – 220-215 – last November. Only one Republican voted for the bill and he has indicated he won’t bolt his party again. Given that 218 votes are need to pass legislation in the House, this doesn’t give Speaker Nancy Pelosi much room for error. However, according to the Associated Press, “at least nine of the 39 Democrats” who voted against the health care reform bill in November are now “undecided or withholding judgment until they see Mr. Obama’s final product.”

That same Associated Press story also reports that the President is thinking of incorporating four Republican proposals raised during the bipartisan health care reform summit last week. These are: 1) using investigators disguised as patients to uncover fraud and waste; 2) increasing payments to Medicaid providers; 3) strengthening and expanding Health Savings Accounts; and 4) expanding the medical malpractice reform pilot programs already in his bill.

It’s not that the President thinks including these provisions increases the likelihood of any Republicans supporting his health care reform legislation. But it would provide Democrats with a useful talking point during the firestorm that would follow passage of reform legislation by a simple majority vote in the Senate. Democrats will be able to say something along the line of “We met with Republicans and had an open mind, even incorporating some of their cost saving ideas into the final package. And our package already included several provisions Republicans had supported now or in the past. Their unanimous opposition, consequently, obviously reflects politics more than policy so we had to find away around the filibuster. What we did was fair, legal and within the rules.” Or something along those lines.

What all this means is that there’s still several chapters to go in the never-ending story that is health care reform.

• Will Democrats find a way to bring health care reform votes to the floor of the Senate?
• Will the House vote first or wait until after the Senate takes action (if it ever does)?
• If a vote is taken, will there be sufficient votes to actually pass a bill?
• If Congress does enact health care reform legislation, how soon after the President signs it into law will it take before the first law suit is filed?
• Which party will suffer at the polls this November for the the procedural games both have played?

And on and on. Stay tuned.

Filed under: Barack Obama, Health Care Reform, Healthcare Reform, Politics Tagged: filibuster, health care reform summit, Nancy Pelosi, reconciliation
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That health insurance carriers were ascending to the throne of political piñata in the health care reform debate has been apparent for some time now. Last July President Barack Obama began referring to health care reform as health insurance reform. A couple of weeks later Speaker Nancy Pelosi described insurance companies as “almost immoral” for opposing the creation of a government-run health plan. That insurance companies were to be cast as the villains was pretty much inevitable. People like and trust hospitals and doctors much more than health insurance carriers. And pharmaceutical companies, while profiting far more from health care than medical carriers are a bit removed from people’s daily experience. The reality is the only group Americans trust less when it comes to health care reform than insurance companies are Republicans in Congress.

Compounding the situation the health insurance industry has had atrocious timing. America’s Health Insurance Plans (AHIP), the industry’s trade organization, released a report warning that health care reform plans being considered by Congress would dramatically increase medical insurance premiums for many Americans. The message was hardly welcomed by Congressional Democrats, but what infuriated them was the timing. The Senate Finance Committee was about to vote upon the closest lawmakers had come to a bipartisan agreement (meaning at least one Republican voted for it. The vitriol the report inspired went far beyond its substance.

Then there’s the timing of recent rate increases in the individual health insurance market. While Anthem Blue Cross’ individual market increase first captured the public – and lawmakers’ attention – it’s now clear several carriers have levied double-digit premium increases in multiple states in both the individual and small business market segments. Many political observers believe that these rating actions breathed new life into flagging reform efforts.

But the 24-hour news channels and other media along with their innumerable pundits need fresh meat. Their job is to keep people watching (or reading) so the commercials don’t run together. There’s only so many ways you can use “insurance company” and “venal” in the same story before it gets old. Insurance company bashing will continue, but there are signs that serious attention may be given to aspects of America’s health care system reform beyond insurance markets.

Consider: Daniel Weintraub is one of California’s most respected journalists. In addition to reporting for and providing opinion pieces to the Sacramento Bee he maintains an excellent blog on health care issues, HealthyCal.org. In the past, Mr. Weintraub has been hard on insurance carriers. Nor is he a fan of the health care status quo in this country. So it must have been a surprise to even him when he wrote a post that makes clear that bashing health insurance companies is not the same as enacting meaningful health care reform.

Mr. Weintraub begins his post citing the political travails California insurance companies face in the state today, ranging from separate investigations by Attorney General Jerry Brown and Insurance Commissioner Steve Poizner to a host of legislative hearings led by lawmakers who, like the Attorney General and Insurance Commissioner, are seeking higher office in this election year.

While noting the entertainment value of this spectacle and recognizing that “it might actually produce information relevant to the health care debate,” Mr. Weintraub makes clear that “health insurance company profits and administrative costs remain a relatively small factor in driving the cost of coverage skyward. The biggest reason that health insurance is getting more expensive,” he continues, ”is that health care is getting more expensive.”

The post includes a useful pie chart describing national health expenditures as broken down by the US Centers for Medicare and Medicaid Services. Of the $2.3 trillion on health care Americans spent in 2008, $159 billion (approximately seven percent) “went to private insurers after deducting all the costs they pass through to the doctors, hospitals and other health care providers.” Put another way: “health care costs nearly doubled between 1998 and 2008, increasing by 96 percent. If we had eliminated private insurance companies in 1998, and assuming they provide no benefit in managing costs, health spending still would have increased by 83 percent during that decade.”

None of this means that health insurance companies and their behavior should be ignored nor their misdeeds forgiven. But as Mr. Weintraub notes, “when this election year is over and the current political bash-fest comes to an end, the core costs of health care will still be there, and chances are they will still be rising.”

That a respected journalist is noting that attacks on health insurance companies are diverting attention from other serious issues with America’s health care system is significant. But he’s not alone. According to Politico.com, Warren Buffett is advising President Obama “to scrap the health care bill and start over” because the legislation “does not focus on controlling costs.” (He went on to say that he’d vote for the Senate bill as opposed to maintaining the status quo).

President Obama and his allies will argue that their legislation does attack rising costs – and they have some evidence to back their claim. But few could honestly say it goes far enough. And while good starts are important, the question is whether the Administration and Congress have the political will to follow-up with meaningful cost containment measures.

Attacks on the health insurance industry will continue. Every drama needs a villain and in this particular theater, carriers are the bad guys. But that folks like Mr. Weintraub and Mr. Buffet are calling out politicians for failing to more fully address the most critical issue undermining America’s health care system – runaway medical costs – is an encouraging sign.

Filed under: Barack Obama, Health Care Reform, Healthcare Reform, Politics Tagged: Daniel Weintraub, government health plan, HealthCal.org, Jerry Brown, medical cost containment, Nancy Pelosi, Steve Poizner, Warren Buffet
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A warm welcome to fellow AHLA member and health law blogger, Kathie McDonald-McClure.

I just ran across her blog, HITECH Law Blog. She focuses the blog on health information technology, privacy and security and the blog was named after the HITECH Act. Looks like a great addition to the health law blogosphere.

Ms. McDonald-McClure is a member of the Health Care Services Team at Wyatt Tarrant & Combs, LLP in Louisville, KY.

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With the bipartisan health care reform summit history, President Barack Obama is turning to the future of his push to revamp America’s health care system. Here’s a simple way for President Barack Obama to demonstrate a commitment to cost containment and bi-partisanship. As he said in his weekly address this morning, “I am eager and willing to move forward with members of both parties on health care if the other side is serious about coming together to resolve our differences and get this done.”

He also made clear, however that he would move forward without Republican support if that was necessary. “I also believe that we cannot lose the opportunity to meet this challenge,” he said, concluding, “It is time for us to come together.  It is time for us to act.  It is time for those of us in Washington to live up to our responsibilities to the American people and to future generations.  So let’s get this done.”

The other day I wrote about the three step process Democrats are likely to use to attempt to pass comprehensive health care reform. To summarize: House Democrats would pass the health care reform previously passed by the Senate. The Senate would pass a clean-up bill (which I’ve also heard referred to as “sidecar legislation”) that makes fixes the House and President Obama want that impacts costs and taxes. The House passes the clean up bill. The President signs both bills and health care reform, Democratic-style, is the law of the land.

Turns out this gambit, while legal and within Congressional rules, doesn’t play out as cleanly as I’d first surmised. John Nelson, a regular reader, brought to my attention that there are various ways Republicans can slow this process down to a crawl. The GOP could not filibuster the sidecar legislation because it is being considered under what’s called the reconciliation process. However, they may not need to. Under the rules governing the reconciliation process Republicans can introduce an almost unlimited number of amendments. While in theory the reconciliation process limits debate to 20 hours, the amendments could stretch out the debate for weeks.

As President Obama accurately noted during the health care reform summit, most Americans care more about the substance of health care reform than the process. However, it’s equally true that the legislative procedures used to push the issue this far have created a cloud over the substance of reform. Republicans have artfully used the messy give-and-take typical when drafting major legislation and cast it as a reason to oppose what was drafted. Some of these criticisms, such as the deals cut to favor specific states, are valid; others, such as condemning the legislation because the bills themselves are large, are spurious. But what’s undeniable is the drumbeat of criticism concerning process has undermined the substance of the bill (of course the serious problems with the substance of the bill hasn’t bolstered it’s popularity either).

If the Democrats could accomplish their legislative maneuvers quickly attention would shift to he substance of the legislation long before the November elections. In other words, like yanking off a bandage, the political pain generated by the process would be over quickly. If Republicans force Democrats to spend weeks mired in process, however, the political pain becomes increasingly greater – and perhaps unbearable.

What all this means is that the odds of comprehensive health care reform passing have improved considerably since the election of Scott Brown to the Senate from Massachusetts and the subsequent loss of the Democratic caucus’ 60 vote, filibuster-busting majority. But those odds haven’t increased as much as a I thought when I wrote about the three-step process Democrats would likely use to enact the reform legislation.

There are smart people on both sides of the issue. There are passionate people on both sides. The effort to pass – and to defeat – health care reform will continue. How it ends is anyone’s guess at this point.

Filed under: Barack Obama, Health Care Reform, Healthcare Reform, Politics Tagged: bipartisanship, filibuster, health care reform summit, reconciliation
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Today Jody Joiner and I presented at the AHLA Hospitals and Health Systems Institute on the use of social media by hospitals and health care providers. We provided an overview of social media use by hospitals and health care providers, discussed the pros/cons of using social media in the health care environment, presented case studies of the risks and legal implications and did a short role play involving tweets in the context of a medical negligence case. We also provided those attending with recommendations on developing social media guidelines and policies.

To show the speed and ease of using social media tools to spread information, news and photos we we did some live shots during the presentations using an iPhone that were then loaded up to my blog, Twitter and Facebook. We then pulled up the posts and tweets at the end of our hour presentation.

Great audience with great follow up questions. Thanks go out to Mark Browne (@ConsultDoc) and Peter Leibold (@HealthLawyers) for live tweeting during the session.

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President Barack Obama repeatedly tried to get the bipartisan summit on health care reform to focus on policy rather than process. Now that the summit is over, however, process is rightfully back on the table.

As I noted in my previous post, many of the major health care reforms of the past few decades have been accomplished through use of the reconciliation process. But how exactly would it be used this time for this reform?

Let’s review where reconciliation fits into the wonderful whacky world of the U.S. Senate. As you’ll recall, 41 Senators can invoke a filibuster and consequently prevent a bill from coming to the floor.  Only if 60 of their colleagues vote to close debate (by invoking cloture) can a bill be voted upon by the full Senate. (For an interesting history of the filibuster and cloture, check out the Senate’s web site). There is an exception, however. Since 1974, budget and tax related items can be brought to the floor of the Senate through a process known as “reconciliation” and no filibuster can stop it. So a key issue is, what matters are eligible for the reconciliation process?

Enter Senator Robert Byrd the widely acknowledged master parliamentarian of the U.S. Senate. He created what is known as the Byrd rule to help determine what is outside the reconciliation process. Put simply, the Byrd rule defines as “extraneous matter” items that do not impact government outlays or revenue in a substantive way. (It’s more complicated than that, but that’s the gist of it).

New taxes, and the health care reform process has plenty of them, are clearly within the purview of the reconciliation process. Preventing carriers from excluding pre-existing medical conditions from coverage is not.

What this means is that the Senate can not pass comprehensive health care reform through the reconciliation process. But hang with me here, because the fact is they don’t need to pass comprehensive health care reform through the reconciliation process because they already have. Remember? It was only a few weeks ago, on December 24th, 2009 to be precise. The Senate passed a comprehensive health care reform bill on a party-line 60-to-39 vote. yes, I know. It seems like ages ago, but it has only been a couple of months. And that affirmative act still stands.

So here’s the legislative three-step Democrats are likely to use to pass comprehensive health care reform.

Step One: The House votes on and passes the Senate version of health care reform.
Step Two: The Senate, using the reconciliation process, passes legislation to “fix” certain aspects of the health care reform it passed in the Senate.
Step Three: The House passes the Senate’s ‘clean-up” bill.

Both the Senate health insurance legislation and the clean-up bill arrive on the president’s desk. He signs them both into law.

What you may (and should) ask, would be in the clean-up bill? As previously predicted here, the follow-up bill is expected to remove state-specific funding elements such as the special treatment currently in the Senate bill favoring Nebraska, Louisiana and a few other states. The clean-up is also likely to change the criteria of a “Cadillac health plan” subjecting fewer policies from being subject to the proposed excise tax. Other fees and taxes would also likely be a part of the second bill. In other words, the clean-up bill would only relate to the budget and/or taxes, meeting the test of the Byrd rule.

I haven’t come up with this on my own. This legislative dance to enact health care reform was discussed at length on “Hardball with Chris Matthews” on MSNBC (the relevant discussion starts at about 3 minutes, 10 seconds in this clip, although he refers to it as a two-step process). What’s significant, however, is that it’s a strategy that makes sense (if your goal is to pass health care reform). Republicans will object that it’s ramming health care through Congress, but the GOP can’t claim the three-step violates Senate rules.

Many thought President Obama’s health care reform bill died with the election of Scott Brown to the Senate from Massachusetts on January 19, 2010. The odds are: they were wrong.

Filed under: Barack Obama, Health Care Reform, Healthcare Reform, Politics Tagged: cloture, filibuster, reconciliation, Robert Byrd
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Well, so much for a breakthrough. The health care reform summit was fascinating political science. But it certainly does not seem to have generated a clear direction for anything close to bipartisan health care reform. Which means President Barack Obama and Democratic leaders will put forward a bill for an up-or-down vote, most Democrats will vote for it and no Republicans will. The only questions remaining are: 1) will Democrats invoke a rule that will allow them to move forward with a simple majority or will they permit the GOP to prevent the legislation from coming to a vote; and 2) will Democrats make any changes to the legislative proposal put forward by the President to reflect issues raised by Republicans during today’s health care reform summit. This post addresses the first question; the next one the second.

Reconciliation: My guess is that Democrats will use reconciliation as a means of bringing health care reform legislation to the floor of the Senate for a vote. As NPR has reported, it would not be the first time reconciliation led to substantial changes to America’s health care system. As Sara Rosenbaum, chair of the Department of Health Policy at George Washington University, notes in the NPR story, “In fact, the way in which virtually all of health reform, with very, very limited exceptions, has happened over the past 30 years has been the reconciliation process.”

She’s not just talking about arcane legislation, either. COBRA, the provision that allows workers to continue their coverage after leaving an employer, was passed through reconciliation. In fact, COBRA stands for the bill in which this health insurance extension was included, the Consolidated Omnibus Budget Reconciliation Act of 1985. Reconciliation is the “R” in “COBRA.” In 1997 the Children’s Health Insurance Program, which along with Medicaid now covers one in every three children in the United States, was passed as part of a budget reconciliation bill. As the NPR story reveals, the list literally goes on-and-on. It seems health care reform simply can’t wend its way through the Senate with a super majority. is this because, as the Center for Public Integrity reports, there are eight health care lobbyists for each member of Congress? Whatever the reason, reconciliation is commonly used to pass health care reform.

It’s likely Democrats will keep this streak going. Yes, Republicans will cry foul, but at the end of the day, it’s a perfectly legal process. And while not every provision of the President’s reform package is likely to be eligible for reconciliation, enough will be to enable Democrats to declare victory.

Assuming, of course, they can muster majorities for comprehensive health care reform legislation. The earlier House bill passed with two votes to spare – including one from a Republican who is now saying he’d vote against the bill. And while the Democratic caucus numbers 59 members, there are 18 members of a the Moderate Dems Working Group. Whatever bill comes before the Senate will need to hold onto nine of those moderates – and that’s assuming all other Democrats are willing to go this route. Some liberals, including Senator Jay Rockefeller, have expressed reluctance to to invoke reconciliation. In the end, the President is likely to muster enough support for a bill – he only needs 50 votes in the Senate as Vice President Joe Biden could cast the decisive vote there. The vote will be close in the House, but Speaker Nancy Pelosi has repeatedly demonstrated her ability to muster a majority when needed.

President Obama needs a vote on health care reform. Politically he needs to demonstrate to his base and moderate independents that his commitment to hang tough on the issue – even if it means he’s the captain going down with his ship. If Republicans (and some Democrats) defeat the legislation, he’ll have shown he’ tried. America doesn’t like quitters (former-Governor Sarah Palin being the most prominent exception). They do like fighters. Politically, moving forward on health care reform is a necessity.

It also makes public policy sense. The health care status quo is untenable. Change is needed. Even if his ambitious reforms fail, the effort will set the stage for more modest reforms – modest reforms that could be introduced and voted upon before the November elections.

In an upcoming post I’ll discuss whether the bipartisan health care reform summit makes it more likely the President will moderate his health care reform proposal.

Filed under: Barack Obama, Health Care Reform, Healthcare Reform, Politics Tagged: health care reform summit, Jay Rockefeller, Joe Biden, medical malpractice, Moderate Dems Working Group, Nancy Pelosi, public option
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