The Filibuster, Supermajority and the Constitution

Ezra Klein has published an engaging  series of  interviews regarding the filibuster, and the prospects and shape of reform for the Senate’s  much maligned rule of procedure. The prospects for reform don’t look particularly bright. And as we come to reckon with one of the final products of the filibuster floor, the Senate’s health reform bill, we may want to take a moment to consider the filibuster itself– this need for 60 votes.

Klein writes

According to UCLA political scientist Barbara Sinclair, about 8 percent of major bills faced a filibuster in the 1960s. This decade, that jumped to 70 percent. The problem with the minority party continually making the majority party fail, of course, is that it means neither party can ever successfully govern the country.

It should also be noted that unlike today, a filibuster in the early 60’s required the arduous (and, it would seem, daunting) physical task of continued speech and an inability to consider other legislation during the pendency of the filibuster. A set of circumstances which at times brought sleeping cots onto the Senate floor and may have served to limit the filibuster’s use.

The Health Reform bill has served to highlight the dysfunction of the filibuster in modernity. The filibuster is not enshrined in the Constitution, it is merely a rule of the Senate.

The United States Senate requires a supermajority of three-fifths to move to a vote through a cloture motion, which closes debate on a bill or nomination, thus ending a filibuster by a minority of members. In current practice, the mere threat of a filibuster prevents passing almost any measure that has less than three-fifths agreement in the Senate. Since there are 100 members, three-fifths is sixty Senators.

The need for a supermajority is not unknown to the Constitution, but to say it is used sparingly and for matters of great import is not to engage in hyperbole. A quick glance at the Great Document bears this out. The original Constitution contains only five instances which require a supermajority; the Amendments two. A supermajority of two-thirds of both houses of Congress is required for Congress to propose a constitutional amendment and to pass a bill over a presidential veto; two-thirds concurrence of all members of the Senate present is necessary to convict under Impeachment; two-thirds concurrence of all members of the Senate present is requisite to consent to a treaty. The Constitution also requires the concurrence of two-thirds of the Senate to “expel a member.” The Fourteenth Amendment forbids those who formerly held office, either civil or military, and had engaged in “insurrection or rebellion” from holding any office–either civil or military– unless two-thirds of both the House and Senate  acted to “remove such disability.”  The Twenty-Fifth Amendment requires a two-thirds majority of each house to determine that an Acting President “is unable to discharge the powers and duties of his office.”

Constitutional amendment, over-ride a presidential veto, convict under impeachment, expel a member, ratify a treaty, remove a punishment for rebellion, and judge a president incompetent. These are fairly characterized as “exceptional situations,” not the everyday stuff of a legislature doing business. But because of the Senate’s filibuster rules, the need for a supermajority of 60 has become a part of the everyday stuff of a legislature attempting to do business.

Under Article 1, Section 5 [2] “Each House may determine the Rules of its Proceedings….” And the filibuster is very much a rule of the Senate’s proceedings. But at a certain point, the procedural rule can be said to have overtaken the substantive– I would suggest we begin considering whether or not we are at that point.

In U S v. BALLIN, 144 U.S. 1 (1892) the Supreme Court looked at the rule making power of Congress and had this to say

The constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and, within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.

There are at least a few things to consider in this regard. Perhaps foremost is the ability of the Senate to change the filibuster rule (”The power to make rules is not one which once exercised is exhausted.”). Also, it may well be a stretch, but I find it interesting nonetheless: does the present form and practice of the filibuster (a defacto supermajority requirement for the passage of legislation in the Senate) “ignore constitutional restraints or violate fundamental rights?” (i.e., does it, as described in INS v. Chadha, offend the “framers’ decision that the legislative power of the Federal government be exercised in accord with a single, finely wrought and exhaustively considered, procedure.” (See also Powell v. McCormack, where the Supreme Court ruled unconstitutional  a House resolution to not permit the duly elected Adam Clayton Powell, Jr. to take his seat in the House of Representatives (”Moreover, it would effectively nullify the [Constitutional] Convention’s decision to require a two-thirds vote for expulsion.”).

Which is to say, in this matter, does the filibuster, as practiced currently, effectively nullify the simple majoritarian requirement for the passage of legislation in the Senate? Of course, the Constitution lacks an explicit textual commitment to majority rule. But the argument in favor of majority rule is a powerful one, hinged upon that venerable canon of statutory construction, expressio unius est exclusio alterius, ‘the expression of the one is the exclusion of the other.’ Which is to say, that by listing these five supermajority exceptions in the original constitution that I have listed above, the drafters made simple majority in all other cases the default position. To appreciate the power of this argument (and this canon of construction) on need not look any further than the Bill of Rights. Madison balked mightily at the proposal for a Bill of Rights as being “dangerous” because the act of listing certain rights  would, under black letter principle, ‘the expression of the one is the exclusion of the other,’ negate the existence of others. The solution to Madison’s fear– the anti-expressio unius est exclusio alterius– is contained in the Ninth Amendment:

“The enumeration in the Constitution, in certain rights, shall not be construed to deny or disparage others retained by the people.”

The textual analysis regarding majority and supermajority goes something like this: Article II, Section 2 [2] regarding the powers of the President reads

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law…. (emphasis added)

The presence of the requirement that two-thirds of the Senators concur in the ratification of a treaty, shows that when the drafters wanted to provide for a supermajority requirement they knew how; that they failed to include the clause requiring a two thirds majority appointment for “Ambassadors… and judges of the supreme Court” is strong evidence that they did not want to as it regards “Ambassadors… and judges of the supreme Court.” Furthermore, had they not provided for a two-thirds supermajority for treaties, one might argue that a supermajority applied to Treaties and Ambassadors and supreme Court judges– as the question may have remained open. But by expressing the requirement in the one instance (”Treaties”), they excluded, or closed the door on, the others (”Ambassadors… and supreme Court judges”).

Similarly, the various (but few) provisions scattered throughout the Constitution  show that the drafters knew how to create a supermajority requirement when they wanted to, and by virtue of simply being, these supermajority requirements show themselves to be exceptions to the unstated rule. In this case, the unstated rule being that a simple majority is necessary for the passage of legislation.

In addition, it should be noted that the Constitution gives a vote to the Vice-President only in instances where the Senate is “equally divided.” The presumption of course is that in doing so it will allow the Vice-President to break the tie and, by a one vote majority, allow for the legislation to either pass or fail. Importantly,  an “equally divided” Senate is rendered meaningless in the light of  a supermajority requirement.

The argument in favor of the 60 vote requirement to invoke cloture and end a flilibuster largely rests upon the premise that the Constitution grants to the Senate plenary power under Article 1, Section 5 [2] “Each House may determine the Rules of its Proceedings….” That within that clause lay the ability to proscribe the numerical meaning of the requirements for Senate procedure. But what happens when the rule of procedure swallows the law?

One might also ask if there is a constitutional argument that can be made if one can point to the concrete harm in a particular bill effectuated? Not effectuated? (But See Raines v. Byrd (1997) for the standing difficulties for Federal Senators bringing a claim against diminishment of Congressional power wrought by the Presidential line item veto, dismissed on standing grounds by the Supreme Court and characterized as “a type of institutional injury which damages all Members of Congress equally.” But, importantly, especially considering the disparate financial impact on states regarding Medicaid funding in the Senate bill, See Clinton v. New York (1998), where the state of New York did have standing and successfully challenged the same presidential line item veto after the use of the same resulted in the loss of $955 million to New York for the payment of expenses related to the medical care for the indigent).

The balance of power in Congress between large and small states was hotly contested at the Constitutional Convention. The compromise, in which members of the House of Representatives would be apportioned through population and members of the Senate would be limited to a flat two members per state, could certainly be characterized, like the process of legislation itself, as being a “single, finely wrought and exhaustively considered, procedure.” So much so in fact that the compromise which gave birth to the form of the Senate and its particularized distribution of power is, in a sense, a distinct creature within the Constitution. An anomaly, if you will. When Alabama attempted to implement such a plan in 1964, patterned closely after the Federal Legislature, for the configuration of its State Legislature, it was deemed unconstitutional as repugnant to the Equal Protection clause. The Court in Reynolds v. Sims, 379 U.S. 870 (1964) stated:

“We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.”

The Court distinguished the federal construct of the Senate as “ingrained in our Constitution as part of the law of the land” and “conceived out of compromise and concession indispensable to the establishment of our federal republic. Arising from unique historical circumstances….”

In the Free Exercise religion case,  Employment Division v.  Smith, 497 U.S. 872 (1990), Justice Scalia speaks of the increased weight and power of “hybrid” rights–rights in which the Free Exercise clause is coupled with other constitutional protections “such as freedom of speech or  the press.” What then is the result of a Constitutional scheme that outside of the Constitution is actually repugnant to a fundamental right?   Considering the offensiveness of the scheme to the Equal Protection Clause, at least when applied to putative state action to effectuate such a scheme, one wonders if a tighter leash isn’t appropriate? Perhaps somewhat akin to the strict adherence we require of “granfathered” zoning usages? This may be a bit afield, but so also may be a Senate rule which de facto requires a supermajority to pass legislation.

It is also worth noting that the Constitution jealously protects a state’s stake in the power of a Federal Senate seat. It protects the legislative power of states in the federal government by forbidding the creation of new states “formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.” (Article IV, Section 3, Clause 1).

The fear addressed being that a state such as New York could create within it’s borders– or with the help of a bordering state– “New York. West,” thereby increasing its number of Senators by 2 (and if the population of the newly created state was less than 30,000, a House member as well). In doing so, a state such as New York could thereby increase its own senatorial power and diminish the senatorial power of the other states. The Senate, particularly, is a zero sum game. But the clause in Article IV, importantly, essentially prohibits the diminishment of a state’s Congressional power–especially senatorial power–by forbidding an action which would do so– unless Congress, both the Senate and House, agree. One could argue that the filibuster as practiced accomplishes a similar diminishment of  senatorial power–but does so without the consent of the House (or, for that matter, the State Legislators).

And the point is this:

“According to UCLA political scientist Barbara Sinclair, about 8 percent of major bills faced a filibuster in the 1960s. This decade, that jumped to 70 percent.”

I loved “Mr. Smith Goes to Washington” as much as the next fellow; but this isn’t that. And although I’m not saying that the filibuster, as presently configured, is unconstitutional, I am saying that we may seriously wish to begin looking to the Constitution to formulate answers regarding the modern problem of the filibuster. The Constitution is not a suicide pact, but the Senate rules may be.

Senate Passes Health Reform Bill, Republicans Challenge Constitutionality

The Senate has passed its version of a Health Reform bill, 60-39. The votes were cast, with Vice President Joseph Biden presiding, at 7:00 am on Thursday, December 24th. The Washington Post reports that

Sen. Robert C. Byrd (D-W.Va.), who is 92 and ailing, bellowed when his name was called: “Mr. President, this is for my friend Ted Kennedy. Aye.”

Aye indeed.

Washington Monthly notes that a number of Republican Senators, many of whom in recent months had formerly brushed aside the issue of constitutionality for the provision for insurance mandates, have experienced a change of direction– if not heart– and have openly challenged that which they formerly embraced.

For an explanation of the mandate’s constitutionality, Washington Monthly cites this article, “Is it Unconstitutional to Mandate Health Insurance?” by Professor of Law and Public Health, Wake Forest University, Mark Hall–which originally appeared here on Health Reform Watch, and was later cited by the Washington Post’s Ezra Klein among numerous others.

The Price of Sausage in Nebraska (and elsewhere)

“Laws, like sausages, cease to inspire respect in proportion as we know how they are made.” The quote, and a number of variants thereof, is most often attributed to Otto von Bismarck. The Boston Globe/A.P. does a nice job taking us through the cost– the spoils, if you will– of the votes requisite thus far to have taken the Senate’s Health Reform bill to its present status. The picture is not particularly pretty– with sizable benefits inuring to the holdout Senators and their constituents. The cost of 60 votes– filibuster-proof critical mass– is, one might say, the cost of doing business. But it is a risky business. By virtue of being so, the 60th vote,  Senator Ben Nelson of Nebraska, brought home the following pieces of bacon home for his constituents:

the federal government will pay the full cost of a proposed expansion of Medicaid, at an estimated cost of $100 million over 10 years; Blue Cross Blue Shield of Nebraska will be exempted from an annual fee on insurers; supplemental Medigap policies such as those sold by Mutual of Omaha are exempted from the annual fee on insurers; and a physician-owned hospital being built in Bellevue, Neb., could avoid a new ban on referrals from doctors who own such hospitals.

And what does the 23rd vote tell his constituents who will have to shoulder the costs of their state’s expansion of Medicaid?

The Boston Globe/A.P.  list is partial but telling. You can see it here.

For a more thorough look at the cost control and program implications of the bill, Professor Timothy Jost’s latest article in Health Affairs is a must read. In addition to a wealth of other information, Jost provides the following:

…the bill provides a cures acceleration program” to fund research for “high need cures” for which incentives in the commercial market are unlikely to result in timely development.  The Food and Drug Administration, the National Institutes of Health, and a new Cure Acceleration Network Board are supposed to work together to facilitate the discovery of such cures and to translate them from bench to bedside.  Grants can be made under the project of up to $15 million a year to eligible entities such as academic medical schools, biotech companies, and drug companies, who need only meet a $1 to $3 matching requirement.  $500 million is appropriated for this program for 2010.

This is all well and good and a great idea.  But nothing that I can see in the legislation gives the taxpayer any stake in this investment.  A drug or biotech company that in fact discovers a blockbuster drug or biologic through the federal government’s investment (perhaps for an off-label use) owes nothing in return.  Shouldn’t we the taxpayers get some return on  our investment, or at least the promise of reasonable prices?

Bismarck also is said to have said,  “Politics is the art of the possible.” To see that, you’ll want to read the rest of Professor Jost’s article.

The Tragic Sense of Health Insurance Reform

It looks like there are now 60 votes behind the “The Patient Protection and Affordable Care Act”, and the set of amendments to it released today. For the sake of this post, I will assume that this Senate bill will basically be the template for health insurance reform.

Given all the twists and turns of this debate, I’m sure there still will be some important changes (even though holdout Sen. Ben Nelson has been promised a “limited conference” in exchange for supporting it). But today’s announcement does strike me as a turning point in the debate. It’s time to reflect on a growing divide between “realists” in the Democratic party and more idealistic progressives.

Democratic Divisions

Ed Kilgore of The New Republic describes the divide over the Senate bill as follows:

[O]n a variety of fronts (most notably financial restructuring and health care reform, but arguably on climate change as well), the Obama administration has chosen the strategy of deploying regulated and subsidized private sector entities to achieve progressive policy results. . . . [T]his is not the same as the conservative “privatization” strategy, which simply devolves public responsibilities to private entities without much in the way of regulation.

[I]n the health care reform debate, the Obama administration pursued legislation that utilized regulated and subsidized private for-profit health insurers to achieve universal health coverage. This approach was inherently flawed to “single-payer” advocates on the left, who strongly believe that private for-profit health insurers are the main problem in the U.S. health care system. The difference was for a long time papered over by the cleverly devised “public option,” which was acceptable to many New Democrat types as a way of ensuring robust competition among private insurers, and which became crucial to single-payer advocates who viewed it as a way to gradually introduce a superior, publicly-operated form of health insurance to those not covered by existing public programs like Medicare and Medicaid.

Now that the public option compromise is apparently no longer on the table, and there’s no Medicare buy-in to offer single-payer advocates an alternative path to the kind of system they favor, it’s hardly surprising that some progressives have gone into open opposition . . . . To put it more bluntly, on a widening range of issues, Obama’s critics to the right say he’s engineering a government takeover of the private sector, while his critics to the left accuse him of promoting a corporate takeover of the public sector.

Glenn Greenwald is one of the most forceful progressive voices on the issue, offering a multifaceted indictment of dominant Democrats’ coziness with a series of corporate interests:

The health care bill is one of the most flagrant advancements of . . . corporatism yet, as it bizarrely forces millions of people to buy extremely inadequate products from the private health insurance industry — regardless of whether they want it or, worse, whether they can afford it (even with some subsidies). In other words, it uses the power of government, the force of law, to give the greatest gift imaginable to this industry — tens of millions of coerced customers, many of whom will be truly burdened by having to turn their money over to these corporations — and is thus a truly extreme advancement of this corporatist model.

One finds this in far more than just economic policy, and it’s about more than just letting corporations do what they want. It’s about affirmatively harnessing government power in order to benefit and strengthen those corporate interests and even merging government and the private sector. In the intelligence and surveillance realms, for instance, the line between government agencies and private corporations barely exists. Military policy is carried out almost as much by private contractors as by our state’s armed forces. Corporate executives and lobbyists can shuffle between the public and private sectors so seamlessly because the divisions have been so eroded. [links omitted]

If one judges the bill purely from the narrow perspective of coverage, a rational and reasonable (though by no means conclusive) case can be made in its favor. But if one finds this creeping corporatism to be a truly disturbing and nefarious trend, then the bill will seem far less benign.

Chris Hedges concurs (in his book Empire of Illusion), dismissing “proposals to require insurance companies to use more income from premiums for patient care or link payment with reported quality” as “unworkable.” He favorably cites physicians John Geyman and Steffie Woolhandler, who think health reform as it now stands is a doomed effort to keep a failing system on life support. Yet many on the left are standing behind the Senate bill, embracing it as what Sen. Harkin called a “starter home” with a good foundation for future additions.

Realism and Idealism in an Increasingly Ungovernable Nation

There has been a lot of talk about a Niebuhrian “Christian realism” in Obama’s foreign policy–a willingness to deploy force and otherwise questionable means to accomplish worthwhile ends. The health reform bill strikes me as another iteration of these endlessly complex, ethically ambiguous moments. The political opposition to the public option has been so intense that those pursuing universal coverage have been forced to bargain with (and even become identified and intertwined with) the very entities they are trying to force to act responsibly. In this topsy-turvy world, where an anti-system opposition refuses to responsibly deal with problems that most developed nations addressed decades ago, Democrats and the Obama administration must cut deals with moneyed interests (whose influence over politics grows apace as a “conservative” judiciary continues to gut campaign finance regulation).

But abstractions can only go so far in describing this bill. I just want to give a counterintuitive spin to two bits of journalism on health reform, to prefigure what I’m sure will be months and years of unintended consequences (some good, some bad) flowing from this bill.

1. Pilot programs: Atul Gawande has pointed to a hodgepodge of pilot programs in the Senate bill as one of the best reasons to support reform efforts. Like many physicians, Gawande is attracted to the organic development of “best practices” in cost control, instead of top-down imposition of a general theory:

Where we crave sweeping transformation . . . all the current bill offers is those pilot programs, a battery of small-scale experiments. . . . The bill tests, for instance, a number of ways that federal insurers could pay for care. Medicare and Medicaid currently pay clinicians the same amount regardless of results. But there is a pilot program to increase payments for doctors who deliver high-quality care at lower cost, while reducing payments for those who deliver low-quality care at higher cost. There’s a program that would pay bonuses to hospitals that improve patient results after heart failure, pneumonia, and surgery. There’s a program that would impose financial penalties on institutions with high rates of infections transmitted by health-care workers. Still another would test a system of penalties and rewards scaled to the quality of home health and rehabilitation care.

Other experiments try moving medicine away from fee-for-service payment altogether. A bundled-payment provision would pay medical teams just one thirty-day fee for all the outpatient and inpatient services related to, say, an operation. This would give clinicians an incentive to work together to smooth care and reduce complications. One pilot would go even further, encouraging clinicians to band together into “Accountable Care Organizations” that take responsibility for all their patients’ needs, including prevention—so that fewer patients need operations in the first place. These groups would be permitted to keep part of the savings they generate, as long as they meet quality and service thresholds.

The bill has ideas for changes in other parts of the system, too. Some provisions attempt to improve efficiency through administrative reforms, by, for example, requiring insurance companies to create a single standardized form for insurance reimbursement, to alleviate the clerical burden on clinicians. There are tests of various kinds of community wellness programs. The legislation also continues a stimulus-package program that funds comparative-effectiveness research—testing existing treatments for a condition against one another—because fewer treatment failures should mean lower costs.

There are hundreds of pages of these programs, almost all of which appear in the House bill as well. But the Senate reform package goes a few . . . steps further. It creates a center to generate innovations in paying for and organizing care. It creates an independent Medicare advisory commission, which would sort through all the pilot results and make recommendations that would automatically take effect unless Congress blocks them.

None of this is as satisfying as a master plan. But there can’t be a master plan. That’s a crucial lesson of our agricultural experience. And there’s another: with problems that don’t have technical solutions, the struggle never ends.

I agree with all of this, but I want to add one more dimension to the “neverending struggle”–the very interest groups that are supposed to be reined in by pilot programs are likely to do their best to alter, influence, or limit those programs over the coming years. One need only look at the sad and convoluted history of gainsharing pilot programs (merely adumbrated here) in order to get a sense of how, as the “rubber hits the road,” various lobbies will be storming veto points in order to undermine experimentalists’ efforts. This is not to say that pilot programs are a sham–I am about to publish a book chapter with the subtitle “A Plea for Pilot Programs as Information-Forcing Regulatory Design.” I just want to temper the technocratic optimism at the heart of Gawande’s worldview with a touch of the skepticism driving progressives like Greenwald and Markos Moulitsas.

2. Cuts in Medicare Home Health Care: Now here is an aspect of the bill that I at first felt offended by. Doctors, insurers, hospitals, and pharmaceutical companies all appeared to be making at most modest concessions in the final bill. But home health care, staffed by some of the most vulnerable workers, was to be slashed. If anything appeared to fit the Greenwald storyline of rapacious private interests shifting public burdens onto the unfortunate, it seemed to me, these cuts would fit the bill.

Yet once one digs in a bit to this story, more complexity emerges. According to one of the speakers on this podcast of the Diane Rehm show, over half of the “extraordinary patient” payments in the program are made in Miami-Dade County alone. It’s hard to get upset with a long overdue crackdown in the Ponzi State. Many other apparent abuses were mentioned in the podcast, as well as in this discussion on the NYT website. After sorting through all the commenters’ underlying empirical data, I may still come back to my original diagnosis of brutal, bareknuckle pluralism as the driving force behind home health care cuts. But I can’t justify that level of cynicism currently.

Concluding Thoughts on the Tragic Dimensions of Moving Forward

The personal is always political, and rarely is this more the case than in health policy. As with abortion and the draft, the law of health care financing directly impinges on the body of the citizen, determining fundamental opportunities for individuals. Despite all of my reservations and disappointments, in the end I am for this bill for a very personal reason: I cannot imagine how my family would have afforded treating my mother’s ailments over the past decade without the private and public insurance she has continually been covered by.

Earlier this year, I had hoped to be a larger part of the academic legal debate on health reform. But my mother broke her back in early September after falling off a scale in her bathroom, and I am her primary caregiver. Attending to her has taken up much of my free time since then. It’s hard to explain how much pain this incident has caused her, and how it has disrupted her life. All I can say is that I cannot imagine how stressful this incident would have been if she were one of the 46 million uninsured. Without question, her 3 weeks in the hospital, four weeks in rehabilitation, and related care, would have bankrupted her (and nearly bankrupted me). Millions of people may end up in such a situation–without coverage, battered by fate, and broke–if progressives in Congress stand on principle (or dubious constitutional arguments) and torpedo the bill.

Nevertheless, I also realize that this immediate victory, like 2009’s stabilization of the financial system, may be a Pyrrhic one for the Democratic Party. It entrenches the power of one more sector of America’s overweening FIRE industries (finance, insurance, and real estate). I’ve recognized the potential of private insurers to rationalize health care, but that potential is rarely realized. I am very worried that just as “GM hired a thousand lawyers, and Toyota hired a thousand engineers” in response to the Clean Air Act, private insurers will plow new revenues attributable to an individual mandate into endless lobbying to hollow out the terms of “minimum creditable coverage.” They will certainly devise clever tricks designed to drive away the 5% or so of the population that accounts for 49% of medical expenses. If pervasive regulatory capture occurs, the “reform” will be an albatross around the necks of Democrats for years.

“In their determination to avoid Harry and Louise, they’ve become Thelma & Louise.” That’s the verdict on the Obama Administration from a Democratic strategist tweeted by horserace reporter extraordinaire, Chris Cillizza. Although it’s a characteristically snide and smug observation from The Village, I think this bon mot has some chance of coming true. Like most of the conventional wisdom excrudescing from Beltway pundits, it’s less a reflection of reality than a narrative our entrenched political class enacts. The “politics of reform” will be endlessly refracted in DC media celebrities’ halls of mirrors, where a 24-hour news cycle is always hungry for “backlash.” The lazy conventional wisdom has already coalesced around a narrative of Obama-as-Icarus, perpetually mistaking his cautious incrementalism as a seamless web of socialism.

The real tragedy here lies in a struggle for the soul of the Democratic party–between idealists like Greenwald, Hedges, Woolhandler, and Kos, and the DLC/Brookings “realists” who’ve dominated the official Democratic response to the financial and health care crises. The sclerotic Senate’s supermajority rules have put the realists in the driver’s seat, and idealistic progressives have been left with little more than the power to refuse the bill that Reid & Co. craft. Idealists want an FDR-style rejection of what TR called the “malefactors of great wealth,” and they also want to see the millions of Americans without health care coverage given some semblance of a safety net beyond the bankruptcy courts. But we cannot have both. As Martha Nussbaum writes in The Fragility of Goodness (speaking generally about such quandaries),

We are considering [a] situation[], then, in which a person must choose to do (have) either one thing or another. Because of the way the world has arranged things, he or she cannot do (have) both. . . . He senses that no matter how he chooses he will be left with some regret that he did not do the other thing. . . .

Aristotle speaks of a captain who throws his cargo overboard in a storm in order to save his own and other lives. The man sees all too well what he must do, once he grasps the alternatives. . . .And yet he was also attached to that cargo. He will go on regretting that he threw it into the ocean–that things turned out so that he had to choose what no sane person would ordinarily choose, throw away what a sane person would ordinarily cherish.

By passing this reform bill, Democrats will jettison whatever “populist” credentials they once had, opting instead for an early-twentieth-century “progressive” vision of technocratic alliance between corporate and government experts. However many disastrous missteps the FIRE industries make, this is the only arrangement that the media will credit as responsible governance. We’ll commence an endless argument (read: notice and comment rulemaking and subsequent administrative adjudications) over what constitutes an adequate baseline of coverage, what is the fair share of revenue for middlemen like insurers, and what regulatory infrastructure can best vindicate the entitlements (and impose the burdens) specified by the bill. But the fundamental victory of reform–the national commitment that no one should have to choose between death or bankruptcy when confronted with a serious illness–will also endure. The tragic paradox is that the Democrats can only achieve this great cultural and ideological victory by becoming identified with the very interests that only they are willing to confront.

Supporting Family Caregivers

Many of our hardest-working caregivers are not professionals, but parents, spouses, and children of people with serious chronic conditions, limited in their ability to engage in activities of daily living (ADLs) or instrumental activities of daily living (IADLs).  A new report from the National Alliance for Caregiving and the AARP opens up this informal, but absolutely essential, world of unpaid caregiving (h/t: Howard Gleckman ).

Some basic facts on the caregivers:

• They’re usually (66%) women;
• On average, they provide over 20 hours of care each week;
• They’re of all income levels, with an average income of about $60,000
• About one-third care for more than one person.

Some basic facts about those receiving the care:

• They’re mostly over 50 years of age, and 44% are over the age of 75;
• Most (51%) live in their own homes;
• Most (69%) require care due to long-term physical condition;
• 34% receive informal caregiving for 5 years or more.

In many cases, informal caregivers enable people with significant care needs to avoid nursing home or other institutional care.  Patients are better off, and so is the health budget: the avoided costs of expensive hospitalizations and nursing home care are enormous.   I have previously described the reform bills’ provisions that would support in-place care for people with chronic illness and disabilities.  Medicaid amendments would expand home care services, including such Cash & Counseling programs that give consumers substantial control over the mix of home services, and permit support for kinship caregiving.  And the Senate bill incorporates the Community Living Assistance Services and Supports Act (the “CLASS Act”), which provides for a new source of funding for personal assistance services for those not Medicaid-eligible.  A move supported by the insurance industry to strip it from the reform bill was narrowly defeated on December 4^th.

The insurance industry, of course, is vigorously trying to protect its own nascent long term care insurance business.  The long term care insurance industry has faced its share of horror stories about bureaucratic double-talk, denied claims, high prices, and limited benefits. The CLASS Act would provide an optional source of coverage, creating a voluntary program of member-supported public insurance for home care costs.  Like Medicaid’s Cash & Counseling system, it provides consumers with flexibility to choose the mix of supportive care when his or her health status triggers eligibility for coverage.

Why do we need such a program?  After all, there are many willing attorneys ready to help people spend down their assets — achieving “Medicaid impoverishment” — in order to qualify for Medicaid’s richer coverage.  Georgetown scholar Judy Feder was asked just that question for a recent Time Magazine article on the CLASS Act.  Her response was dead-on:

“Medicaid is invaluable,” says Judy Feder, a health policy expert at Georgetown University and a senior fellow at the Center for American Progress. “But it’s not insurance. It doesn’t protect you from catastrophe. It takes care of you after catastrophe.”

The long-term care financing mix in the Senate bill is far from perfect.  As a panel of experts surveyed by the Commonwealth Fund overwhelmingly agreed last year, the best solution would be to add a premium-financed long-term care component to Medicare, allowing the cost to be shared by government and consumers, without the trouble or expense of creating a new programmatic structure.  In the alternative, Congress could cobble together a better integrated “system” of long term/home care financing.  Such a system could virtually integrate a long-term care financing continuum, including Medicaid, Medicare, and voluntary insurance (such as that created by the CLASS Act) that could support consumers with chronic illness in the most appropriate setting for supportive care, reducing the discontinuities in coverage, perverse incentives for institutionalization, and counterproductive limits on services.  Either actual integration of all long term care services in Medicare, or the virtual integration (through smooth eligibility and service interfaces) in Medicare, Medicaid, and CLASS Act coverage could improve care and reduce costs.  But that won’t happen this year.

Instead, the best hope for expansion of access to personal assistance services will be the strengthening of Medicaid’s home care provisions and the creation of the CLASS Act program.  The overwhelming reform focus has been on very traditional “medical” insurance run through private, risk bearing insurance companies.  Only at the margins will the reform address the growing need for financing  appropriate health care for chronic illness.  Keeping the CLASS Act is a small step, but it at least acknowledges the obligation to support the personal assistance needs of those with serious chronic illnesses or disabilities, who are not (yet) impoverished, and who prefer to remain in their communities.  The CLASS Act will provide a new funding source for patient-directed personal assistance services.   Family caregivers will continue to devote themselves to their loved ones, but they need help.

Senator Joseph Lieberman “Regrets Any Misunderstanding”

Senator Joseph Lieberman says that he “regrets any misunderstanding.” Lieberman, who according to NPR’s All Things Considered “has angered a lot of people,”  also said  “I thought I made myself clear all along.”

All Things Considered characterized Lieberman’s rejection of the Senate’s Gang of Ten Compromise as follows: Lieberman “rejected both an expansion of Medicare to cover uninsured people down to age 55, as well as its revamping of a Public Option so that users would be covered by private rather than government insurance.”

Joe Lieberman “regrets any misunderstanding.” All Thing Considered noted “But as critics were quick to point out, this was the same Joe Lieberman who told the Connecticut Post just three months ago that he’d been a supporter of expanding Medicare to age 55.”

Lieberman said, regarding the video we posted yesterday,

“I finally got to see that on TV last night and it looked to me like I was referring back to things I had supported in the past to make the point that though I was against the Public Option, I was not against health reform.”

And there you have it– just a big, “regrettable,” misunderstanding.

In addition, Senator Lieberman said: “I haven’t received any pressure from Insurance Companies. I mean it!”

And I believe him. One rarely pressures a man who does everything one wants.

Maybe Instead of a Dollar We Should Send Joe Lieberman Instructions on How to Use YouTube

A little while back Senator Joseph Lieberman stated that, seemingly contrary to his prior positions, he would not–and could not– support a bill which contained a public option–nor would he join in a vote to end a filibuster against the same. Relying heavily on the underlying analysis of Tim Noah, I opined at the time that perhaps we all needed to send Joe Lieberman a dollar so that he could vote his conscience as opposed to the will of Private Insurers: that the financial constraints involved in being an Independent (i.e., little or no infrastructural help from either the Democratic or Republican Parties) meant that Senator Lieberman, if he wished to continue being Senator Lieberman, would have to curry favor among donors to finance a bid for re-election.

I also noted that Chris Dodd, by virtue of his support for a public option and health reform in general, had alienated said Private Insurers and seemingly vacated his seat as “the Senator from Aetna.” I also noted that, as one might imagine, considering the sudden advent of available Aetna money, that a man (or Senator) from Aetna’s home town seeking money (such as Mr. Lieberman) might, somewhat understandably, look to align himself with the will and desires of that money. As much as it pains me to say, my antidote–sending Joe Lieberman a dollar with the words “Public Option” written on it– did not work. Sadly, the efforts of Yale students, who took a concilliatory approach in beseeching Senator Lieberman to back health reform, have seemingly not worked either.

Since then, Mr. Lieberman has come out in opposition to the plan to allow  people from 55-64 years old to buy into Medicare. Unfortunately for Mr. Lieberman, he seems to be unaware of YouTube as a means of chronicling statements made on video. Back when he was attempting to explain his desertion of the Public Option he said (thank you Merril Goozner) this:

Consumer Protection Under the Health Reform “Deal”

News of the Senate “deal” on the public option is trickling out.  It appears to comprise a swap, in which the public option will be dropped in favor of the creation of a nationwide program mimicking the Federal Employees Health Benefits Plan (FEHBP) (along with a Medicare buy-in for people 55 years of age or older).  Will the FEHBP model (for those under 55) accomplish what the public option would have done?  Tim Greaney’s post here yesterday raises well-founded concerns that it will be less likely to increase competition in concentrated markets.   But we had additional hopes for the public option.  I’ve previously argued that the public option could help assure adequate coverage of people with chronic conditions.  They’re the most vulnerable and increasingly the most costly; sound coordination of their care is necessary to serve their complex needs and to contain costs.   Whether this nascent deal will do that work depends on how the FEHBP model translates to an open exchange model, and in particular on benefits design and process rights components.  The new enrollees are likely to be more vulnerable than the FEHBP’s membership, and sound consumer protections are necessary to assure that their needs are met.  Two components of the program will be critical here: benefits design and process rights.

The FEHBP is mostly a mechanism for contracting with and managing private health insurers.  This deal would, therefore, likely create a form of private health insurance exchange, piggy-backing on private plans’ benefits design.  Congress should be aware of private insurers’ history with coverage of chronic care services.  It is widely documented, for example, that children with special health care needs have more sharply restricted access to necessary therapies through private than public coverage.  Ruth Benedict, of the University of Wisconsin, described access problems for children with functional limitations in 2006:

Public health insurance predicted greater use of supportive services and therapeutic services outside the school setting, a finding that may be attributable to the commitment of public programs to serve vulnerable populations such as children with special needs.  * * *   In contrast to public insurance, private insurance provided children no advantage in accessing therapeutic and supportive services relative to their uninsured counterparts.

The Office of Personnel Management (OPM) has historically addressed benefits design with a broad brush, negotiating and contracting directly with insurers, and balancing premium level against benefits richness.  Unless the bill directs OPM to incorporate the needs of people with chronic illness — physical and speech therapy, home care services, and case management, for example — the sickest of the newly covered will find only coverage that poorly matches their needs.  And state law that would otherwise benefit the private insurers’ benefits design is specifically preempted in the FEHBP statute:

The terms of any contract under this chapter which relate to the nature, provision, or extent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any State or local law, or any regulation issued thereunder, which relates to health insurance or plans.

Unless the bill mandates that the OPM protect vulnerable populations in its benefits design contracting, people with chronic illness will likely be left without coverage for vital services that they might have obtained through a public option.

What of process rights under the FEHBP?  Suppose a plan participating in the new national exchange were to deny coverage for a service with the benefits design on, say, medical necessity grounds.   As Nan Hunter described in her 2006 article, Managed Process, Due Care: Structures of Accountability in Health Care, the process by which covered persons may vindicate their rights of access to covered health care is fractured and often frustrating to participants.  Two features of the FEHBP bear note in this regard.  First, it allows participants “an independent system of external review,” which Nan Hunter argues can assist individuals and society by improving plans’ accountability and enhancing the deliberative process by which coverage decisions are made.  She also identifies, however, the pervasive lack of effective member notice of review options.  Second, judicial appeal from the administrative and independent review process is quite limited.  It is available only after exhaustion of internal plan review, external review independent review, and OPM review, and the scope of the judicial review itself is quite limited:

A covered individual may seek judicial review of OPM’s final action on the denial of a health benefits claim. A legal action to review final action by OPM involving such denial of health benefits must be brought against OPM and not against the Carrier or the Carrier’s subcontractors. The recovery in such a suit shall be limited to a court order directing OPM to require the Carrier to pay the amount of benefits in dispute.

The adequacy and accuracy of the administrative process, then, must be protected by thoughtful and specific statutory and regulatory language.

Insurance coverage does not equate to access to care.  Necessary benefits must be contractually covered, and the insurer must follow through where required.  The benefits design and due process provisions in the FEHBP in many ways mirror those of large, self-funded employers.   The population newly covered by this bill will, however, not be employees of large firms and federal agencies, and instead will be a more economically and medically marginal population with a higher percentage of people with disabilities and chronic illness.  The bill should, then, anticipate the issue directing OPM to set benefits design and review standards serving all, including those with chronic conditions.   If Congress hopes to contract out the responsibility of serving a vulnerable population, it needs to ensure that its contracting partners are charged clearly on the nature of their responsibilities.

Convergence on Health Reform (Death of the Public Option)

Thomas (Tim) Greaney

Saint Louis University School of Law

So maybe the two parties are coming together on health reform after all.   Last night we learned that after days of “secret talks” among the “gang of ten” the Democrats have reached agreement to restructure their health care proposal.  The changes are significant:

• ditch the already-watered-down public option plan;
• create a new insurance exchange “option” for individuals and small groups consisting of a nonprofit plan as negotiated by the Office of Personnel Management;
• expand Medicare eligibility to cover uninsured individuals aged 55-64.

What does the Democrats’ “public option ultralight” compromise have  in common with Republicans’ alternative universe?  Well, consider the latter’s proposal to open interstate competition for all health insurers–a move they promise will immediately lower health care costs.   Besides being shameless attempts to offer simple solutions to complex problems, the two proposals are guilty of the same fundamental misunderstanding of health insurance. Simply put, they both ignore a critical economic truth of health insurance today: insurers require a provider network of hospitals and doctors or must have market leverage in order to negotiate for lower provider prices and for controls on excessive volume.

How, then, would a nonprofit insurer not presently competing in one of the concentrated markets succeed in putting competitive pressure on the incumbents?  As one insurance industry observer put it ,

So, Kaiser Permanente, which operates with highly organized and capital intensive networks in its markets, would now come into a state where it has no networks and offer a plan? Blue Cross of Nebraska might offer an individual and small group plan in Rhode Island? Tufts Health Plan out of Boston might offer a plan in Oregon?

Based upon what network of providers in those places where they do not now do business?

Likewise, in expanding Medicare, the Dems are taking a page out of the Republican playbook. For the last several weeks,  Senate Republicans have been loudly touting the benefits of Medicare.  By their lights, not only does the program produce unmatched (and untouchable) health care services in terms of quality of care and beneficiary satisfaction, but any cost-cutting constitutes a betrayal of our commitment to seniors.  As far as one can tell, the expansion proposal will do just that: offer the now-sacrosanct program to a few million almost-seniors.  As to the other 20 million citizens, forced to shop for insurance through an exchange flawed by inadequate competition and inadequate subsidies? Well, maybe the Democrats will borrow the rhetoric of Republican National Chairman Michael Steele: this is no time for a “government-run health-care experiment.”

Micro-Chipping (and then pulling the plug on) Grandma as part of HIT and the Public Option

I had the opportunity to speak with one of our Health Law professors from private practice the other day (some professors teach full time, others teach only part time in addition to working full time as attorneys or judges), and he had been practicing (and teaching) health law for decades. He was both amazed and incensed: at our inability as a country to have a reasonable discussion about health care; that a provision to remunerate consultations regarding end of life issues somehow turned into “pulling the plug on grandma” and “death panel” sound bites–from people who should (or do) know better; and that people somehow believe that “rationing” doesn’t exist right now in the for profit health insurance system. “They speak as though their insurance policies are unlimited. They are not. There are insurers denying coverage all the time.”

This article in the New York Times’ Prescriptions won’t make him feel any better. It regards a recent chain email which tells of the impending forced implantation of microchips into patients as part of a government sponsored health plan.

Prescriptions reports:

…fears of death-panel bureaucrats voting to euthanize elderly Americans may pale in comparison to the latest fright point: according to a widely forwarded chain e-mail, the Democrats’ health care bill would require anybody who enrolls in a new government-run health insurance plan “to have a data-receiving microchip implanted in their bodies.”

The assertion would seem to tie together policy points from both the House-passed health care measure, which would create a government insurance plan, or public option, and the economic stimulus measure earlier this year, which approved billions of dollars for health information technology.

The widely distributed email is said to have prompted House Speaker Nancy Pelosi to issue a Myth Buster fact sheet:

Myth: People who enroll in the public health insurance option will be forced under the law to have a microchip implant.

Fact: The Affordable Health Care for America Act does not have any provision requiring any person to have a microchip — or anything else –implanted on their bodies for any reason.

The Times also notes that “Ms. Pelsoi’s office also noted that “PolitiFact — the Pulitzer-prize winning Web site — labeled this claim a ‘Pants on Fire’ lie, its highest degree of untruth.”

‘Taking Aim’ at Insurance Co. Executive Compensation

Over the weekend, the Associated Press published a story that told us: “Senate Takes Aim at Insurance Company Executive Pay.”

We’ve taken aim at Insurance Company executive compensation before here on Health Reform Watch, and you can find our article linked here in this interesting article by Morton Mintz at the Nieman Foundation for Journalism at Harvard University’s Nieman Watchdog (or even at the bottom of the Huffington Post posting of the A.P. story, after WSJ).

What Mintz points out is worth noting: he says of Ronald A. Williams, CEO of Aetna:

If Williams would care to justify his compensation — $64,857.46 a day, every day of the year; $2,702.39 an hour every hour of every day — I’d gladly extend him the opportunity to do so.

“Justify his compensation.” The truth is, I have honestly tried to imagine what an Insurance Co. executive could possibly do during the course of any given day to warrant that kind of compensation. Williams’ official bio tells us that:

Under his leadership, Aetna has sought to make a positive impact on health care in America by serving as a catalyst for change, focusing the industry, public policy leaders, physicians and employers on issues aimed at increasing access and affordability.

As a job description, I’m not entirely sure what qualifies as seeking “positive impact” or “serving as a catalyst,” but I’m pretty sure the following, as described by Mr. Mintz, will not qualify as aiming at “increasing access and affordability.”

Now, as I just read in Huffington Post, “Aetna is planning to force up to 650,000 clients to drop their coverage next year as it seeks to raise additional revenue to meet profit expectations.” Maybe he [R.Williams] can justify that, too.

Mintz goes on to list the numbers, but then makes an additional point worth noting regarding the totals:

Others in similar positions are also raking it in. I’ve learned from Seton Hall University School of Law’s Health Reform Watch that Williams’s 2007 compensation of $23,045,834 was nearly $2.8 million less than Cigna CEO H. Edward Hanway’s $25,839,777. Also in 2007, Coventry’s Dale B. Wolf received $14,869,823, United Health group’s Stephen J. Hemsley $13,164,529, Humana’s Michael McCallister $10,312,557, WellPoint’s Angela Braly $9,094,271. and Health Net’s Jay M. Gellert $3,686,230. Total 2007 pay for seven health-insurance CEOs: $100,130,021.

In 2008, Williams led the pack, with $24,300,112, followed by Hanway, $12,236,740; Braly, $9,844,212; Wolf, $9,047,469; McCallister, $4,764,309; Gellert, $4,425,355, and Hemsley, $3,241,043. Total 2008 pay for the seven: $67,859,240.

Suppose the seven had been paid, say, only $1 million each. That compensation would have enabled significant premium reductions — in 2007, of roughly $93 million; in 2008, of about $61 million — that would have enabled purchase of coverage by many of the 45,000 Americans whose deaths each year are linked to lack of health insurance.

Seven execs, two years’ compensation, $154 million in excess of $1 million per year.

Having said that Articles Editor of the Yale Law Journal, Aaron Zelinski, makes some very interesting and worthwhile points over at the Huffington Post regarding some of the shortcomings in the proposed Senate measure to curb Insurance Co. exec compensation. The subject readily lends itself to political grandstanding, and the Senate bill looks only to change the corporate tax deduction of health insurance executive compensation. Zelinski’s article, “Political Grandstanding: Excessive Compensation and the Health Care Bill,”  is well worth reading and well worth quoting at length. He writes:

Currently, publicly held corporations can effectively deduct unlimited amounts of executive compensation from their federal corporate income tax returns. Although Section 162(m) of the Internal Revenue Code purports to limit such deductions to $1,000,000 annually per executive, Section 162(m)(4) contains a loophole large enough to sail a mega-yacht through: Deductions are still allowed for any “performance based” pay, no matter how high.

The Internal Revenue Service has interpreted 162(m)(4) to allow almost any compensation plan to pass muster, even when executive compensation is tied to comically low performance metrics. Thus, Section 162(m) has become largely a dead letter; unlimited amounts of executive compensation can be structured as performance-based and therefore deducted for federal income tax purposes.

The current Senate health care bill seeks to revive Section162(m) by removing the “performance based” exceptions. However, the bill applies only to corporate salaries paid to health insurance executives, not to compensation for employees in any other industry.

Under the bill, health insurance companies would only be able to deduct compensation below $500,000 (or, under a pending amendment by Senator Blanche Lincoln of Arkansas, $400,000). More importantly, health insurance companies would be denied the Section 162(m)(4) loophole for performance-based pay. These insurance companies could still pay their executives large amounts, but taxpayer money would no longer subsidize such salaries via corporate income tax deductions.

Zelinski further states:

“Unfortunately, the Senate Democrats’ decision to target only the compensation paid to insurance executives belies an unwillingness to address the broader issue at hand: the taxpayer’s subsidy of excessive executive compensation via tax deductions.”

He also points out that “the proposed changes will do nothing substantial to address health care costs, since executive compensation is a minuscule fraction of such costs.”

I think Mr. Zelinski has a point; the net taxpayer result of this provision will certainly not cure what ails us as a country healthcare wise –but, grandstanding aside, it may be a step in the right direction. Some things seem more a matter of principle than money– and if they could speak, I wonder what those 45,000 Americans whose deaths each year are linked to lack of health insurance would say when looking at Ronald Williams’ pay.

New Jersey Medical Marijuana Legislation Update: Poised to Pass?

Supporters are hopeful that before Governor-Elect Chris Christie takes office next month, the New Jersey legislature will pass — and current Governor Jon Corzine will sign — medical marijuana legislation.  In February 2009, the “New Jersey Compassionate Use Medical Marijuana Act,” which would allow patients suffering from “debilitating medical conditions” to treat their symptoms with marijuana without fear of state criminal reprisals, passed the state Senate.

In June 2009, Seton Hall Law’s Center for Health & Pharmaceutical Law & Policy issued a position paper calling on the full legislature to pass the Act, arguing that it would “allow New Jersey residents with debilitating medical conditions access to marijuana to ease their suffering without creating an undue risk of abuse or diversion.”  Soon thereafter, the Act cleared the Assembly Health, Human Services and Senior Citizens Committee, albeit with a number of amendments, including several bolstering the Act’s already strict safeguards against abuse and diversion.  (For a detailed summary of the differences between the Senate and Assembly versions of the Act, see below.)

According to an article in the New Jersey Law Journal, a legislative aide “says they are trying to get the [Act] posted for a floor vote on Dec. 7, Jan. 7 or Jan. 11, the remaining voting sessions in the current term.  The Assembly is expected to pass it.”  Due to the amendments added by the Assembly Committee, the Senate would need to pass the Act again before it would reach the Governor’s desk.  Even if the Act is not passed during the current lame-duck session, however, there is hope for its passage in sessions to come. Governor-Elect Christie has indicated that, with sufficient restrictions in place, “he would be supportive of such legislation.”

Summary of Differences between Assembly and Senate Versions

Change to definition of “bona fide physician-patient relationship.”

The Senate’s version of the Act (S119) requires that patients who wish to use medical marijuana obtain a “written certification” from a physician with whom they have a “bona fide physician-patient relationship.”  Such a relationship is said to exist whenever a physician has completed a full assessment, including a physical examination, of a patient.  The Assembly’s version (A804) includes a significantly narrower definition, providing that only the physician with “ongoing primary responsibility” for treating a patient’s “debilitating medical condition” can approve that patient to use marijuana.  Such a physician must be “board-certified, if available” in the specialty appropriate for caring for the condition which qualifies the patient to use marijuana.

Changes to list of eligible “debilitating medical conditions.”

• Whereas S119 would have granted eligibility for marijuana to patients suffering from “severe and persistent muscle spasms, including, but not limited to, those characteristic of multiple sclerosis or Crohn’s disease,” A804 limits eligibility to those with “intractable skeletal muscular spasticity,” which would, it would seem, include some patients with multiple sclerosis, but exclude those with Crohn’s disease.
• Whereas S119 made all patients with cachexia or wasting syndrome, severe nausea, or severe or chronic pain eligible, under A804 patients with those conditions are only eligible if their symptoms are the result of AIDS or cancer. Concomitantly, neither AIDS nor non-terminal cancer render a patient eligible unless they cause cachexia or wasting syndrome, severe nausea, or severe or chronic pain.
• A804 adds to the list of those eligible for marijuana, patients suffering from amyotrophic lateral sclerosis and multiple sclerosis. Patients with cancer that is “terminal” and glaucoma that is “resistant to conventional therapy” are also eligible; under S119 all cancer and glaucoma patients were eligible.
• Notably, both versions include a provision allowing for additional medical conditions to be added by regulation.

Changes to rules governing “medical marijuana alternative treatment centers.”

Under A804, eligible patients will no longer be permitted to grow marijuana.  The statute’s protection will only apply to patients who obtain marijuana from New Jersey Department of Health and Senior Services-approved “medical marijuana alternative treatment centers.”  A804 adds as a requirement of approval that such centers be operated on a nonprofit basis.  They do not have to be recognized as such by the IRS but they do need to comply with all state nonprofit laws.  Perhaps in an effort to mitigate hardship that might arise as a result of these, more restrictive, provisions, A804 exhorts DHSS to “seek to ensure the availability of alternative treatment centers throughout the State, including, to the maximum extent practicable, at least two each in the northern, central, and southern regions of the State.”

Other potentially-significant changes.

• Unlike S119, A804 does not protect patients and others from arrest or prosecution; its protection is limited to waiver of applicable “civil or administrative penalties.”
• A804 also eliminates protection for caregivers who assist patients with medical marijuana use. Instead, it provides that “[t]he commissioner shall adopt regulations to: (1) provide for the use by a registered qualifying patient of a designated individual in an emergency situation to transport marijuana to the patient who is otherwise unable to obtain marijuana from an alternative treatment center[.]“

Holiday Shopping for Health Care

With Black Friday done and out of the way, one cannot help but wonder if any Americans were bargain hunting for health coverage.  After all, barring exigent circumstances, in the current health care market, shopping around to compare prices seems like an economically sensible thing to do.  Individual health care plans have been charging higher and higher premiums; the rate of uninsured Americans is increasing, and those who are insured increasingly face greater deductibles and out-of-pocket expenses. Price can make a real difference.

One uninsured women in Seattle used PriceDoc.com to comparison shop to see which health care providers in her area provided the cheapest gynecological exam.  She said that the only real comparisons she made while searching for health care was price.  In the end, the Seattle woman was able to access what she considered to be quality care at a price she could afford.  But there is that old joke about the perils of looking for bargains in parachutes and brain surgeons to consider. A sheer price comparison implies fungible service.

Congress members are currently in the process of doing their own bargain hunting for health care that won’t break the country’s bank.  While Republicans are said to fear that insurance premiums will increase under the proposed health reform models– partly due to increased taxes on insurers, Democrats counter that the strict regulations to be imposed on insurance companies will drive costs down.  Democrats further talk about the benefits of the health care exchange model, in which the individual market will not be able to deny coverage or charge higher premiums based on preexisting conditions, age rating, or gender rating.  The Center for Studying Health System Change says that these rules, if set in place, will directly lower the premiums that people with medical problems and women will pay.

The Obama Administration has commended the House and Senate bills for incorporating cost-cutting tools.  As a guideline for measuring the cost-effectiveness of the health reform proposals, the Obama Administration has identified four pillars– as found in Ronald Brownstein’s “A Milestone In the Health Care Journey.” Those pillars are:

1.      Taxes on high-end health insurance plans;

2.      Payment reforms that focus on incentivizing doctors to provide quality, coordinated care;

3.      An independent Medicare commission to contain costs; and

4.      A bill that is at least deficit-neutral over the next ten years.

The House and Senate bills incorporate each of the pillars to varying degrees, with the Senate bill thus far the most inclusive.  Congress members say that such principles–and specifics– will be heavily discussed in the coming weeks of debate.

While Americans wait for reform to ring in easier times, they may, however, be left to fend for themselves.  In case you were hoping to give the gift of better health care to a loved one, check here to compare plans, and use these helpful tips to save money on health care.  And don’t forget to schedule necessary appointments to  use what’s left of your current health care allowances before benefits get taken away by the start of a new year!

Senator Michael Bennet; He Said “Yes”

More than enough ink on these pages (and others) has been devoted to the influence that money and political aspirations has had on the health reform debate. In a recent post, “Why We All Need to Send Joe Lieberman a Dollar,” I beseeched Senator Joseph Lieberman to vote his conscience (as opposed to the will of Private Insurers) and, acknowledging the dominant role of money in both politics in general and the Senate in particular, I wrote

Senator Joe Lieberman is an Independent. As romantically autonomous as that may sound, it also means he can count on support from neither the Democratic nor Republican Parties. It takes money to maintain a Senate seat. Why is this germane to health reform? Because a) money always is; and b) Mr. Lieberman by virtue of his Independent status presumably does not have enough– and has recently announced that he will not vote for cloture (to end a filibuster) on Harry Reid’s opt-out Public Option plan.

And

Tim Noah over at Slate covers the question very well in an article well worth reading. Noah posits that because Lieberman can no longer count on Party Politics, he’s attempting to curry favor among the Insurers. Noah writes:

Why would Lieberman want to sink health reform? Klein points out that in the pretty recent past, Lieberman has supported the general goal, if not the specifics, of Obamacare. But consider Lieberman’s political situation. He is no longer a Democrat. That means he no longer has a political base. In the future, he will have to rely more on constituencies and on cash. The White House suggests that Lieberman wouldn’t dare alienate voters by opposing health reform. But what’s the most cash-rich constituency in the Nutmeg State? The insurance industry, which is headquartered in Connecticut and employs 64,000 people.

At the moment, insurers probably aren’t too pleased with Connecticut’s other senator, Democrat Chris Dodd, because Dodd is a prominent advocate for the public option. As I’ve noted previously, Dodd, during the past 20 years, received $2.3 million in contributions from insurers-more than any member of the House or Senate except John McCain, R-Ariz. During that same period, Dodd collected $774,000 from health insurers, ranking second only to House Minority Leader John Boehner, R-Ohio. Lieberman, even though he’s from Connecticut, has during that same period had to settle for 14^th place in both insurance-industry contributions and health-insurance-industry contributions. Blocking the public option might allow Lieberman to displace Dodd as “the senator from Aetna.”

Bismarck’s law and sausage quote comes to mind; it is after all politics. In that post on Lieberman and the political process I also wrote:

So it seems we’ve come to this: “Independence” means “in search of the highest bidder.”

But every once in awhile the process, or more directly, people, can surprise.

Senator Michael Bennet, (D-Colo) has done just that. Colorado’s Grand Junction Sentinel reports

Bennet answered “Yes” when asked Sunday on CNN, “If you get to the final point and you are a critical vote for health care reform, and every piece of evidence tells you, if you support that bill, you will lose your job, would you cast the vote and lose your job?”

He said “Yes.”

Senator Bennet is said to face challenges this next year for his Senate seat from “within the Democratic Party from former Colorado House Speaker Andrew Romanoff. [Jane] Norton, a Grand Junction native, faces two other Republicans on her side of the aisle: Weld County District Attorney Ken Buck and former state Sen. Tom Wiens of Douglas County.

The Sentinel reports that “Bennet’s response drew fire from Jane Norton, one of three Republicans jockeying to run for Bennet’s Senate seat next year.

Bennet’s response “shows he’s very out of touch with Colorado,” Norton said.

On the contrary, I would suggest to Ms. Norton that what Senator Bennet’s stand has shown is an understanding of the duties inherent for a representative in a republican form of government: to vote his best judgment and his conscience– despite personal consequences.

This country is informed by a grand tradition of such. And it may be worth noting that not so unlike the health reform debate,  the road to our Constitution was filled with bitter debate and disagreement. The Declaration of Independence was likewise hotly debated. For Pennsylvania five delegates cast their votes regarding independence. At the final vote on July 2, 1776 Pennsylvania delegates were deadlocked: two for, two against. John Morton, a farmer and a surveyor, despite what he knew would be the disapproval of his district, voted “Yea,” and the rest as they say is history. Pennsylvania approved the Declaration, 3-2. Independence.

In the book, “Signing their Lives Away,” the authors note:

Back home in his district, Morton was unpopular because of what he’d done. A sensitive man, he was said to have been deeply affected by his neighbors’ ostracism.

About nine months after signing he became sick and died.

On his deathbed he dictated a message intended for those friends and neighbors angered that he had ignored their wishes by voting for independence. “Tell them,” he said, “that they will live to see the hour when they shall acknowledge it to have been the most glorious service I ever rendered my country.”

The words are engraved on the obelisk over his grave.

Good job Senator Bennet. I feel privileged to be eating some of my words.

Mammography, Cervical Cytology Screens, and Rationing

The recent recommendations on mammography and cervical cytology screens by the US Preventive Services Task force and ACOG (American College of Obstetricians and Gynecologists), respectively, have added a new dimension to reform discussions.  Some are inclined to say “gotcha,” suggesting that the recommendations are evidence of a creeping denial of needed care that would follow governmental insinuation into health finance and benefits design.  Others see the reports as serendipitous irrelevancies, unconnected to reform discussions.  The truth is, not surprisingly, more complex.  The irony is that consumers will be more represented in health technology assessment in a public plan than they have been in private insurance.

It seems inevitable that any future health finance system will rely on evidence-based assessments of new (and old) technologies for both quality and cost purposes.  Our experience with the widespread use of affirmatively harmful (e.g., hormone-replacement therapy) and apparently useless treatments (e.g., knee arthroscopy for osteoarthritis) points to the possible risks of rapid  or uncritical adoption of new technologies.  As Sara Rosenbaum and others have pointed out,  (subscription required) we don’t want to confuse population data with individually-applied diagnostic and treatment judgment.   Both reports, to their credit, got this part right, and advised individual patients and physicians to assess each case in context, notwithstanding the general population-level guidance.  But evidence-based population data on the efficacy and comparative benefit of new and expensive interventions will be of enormous assistance in future treatment and funding decisions.

How should such health technology assessment be done, if not by expert panels?  As Bill Sage has observed, private health plans were opaque and inconsistent when they were in the technology assessment business.  (They have pretty much gotten out of that field, leaving cost control to others.)   One criticism of the mammography and cervical cytology reports has been that they should have included a more public process before issuing recommendations.  As the reports are merely advisory, it is not clear that post-publication comment doesn’t get the job done.  Where, as may be the case in the future, such expert analysis has instrumental effect, pre-implementation public process is essential.   Two guides for public health technology assessment advise as much.  The Institute of Medicine, in guidance issued earlier this year for comparative effectiveness analysis funded by the stimulus bill, observed that,

Clinicians and patients do not always consider the same factors when weighing the tradeoffs posed by important health care alternatives.  To ensure that the fruits of CER support consumers’ health care decision making, the CER Program should focus on the questions of patients as well as their health care providers.

Similarly, a health technology assessment guide created by the European Observatory on Health Systems in 2008 describes well-functioning technical assessment as consultative and transparent:

Social accountability permeates the whole knowledge production and is reflected not only in the interpretation and diffusion of results but also in the definition of the problem and the setting of research priorities.

We don’t want a health system — public or private — that is blind to either sound evidence-based technology assessment or the particular health needs of individual patients.  One advantage to a public system is that the assessment of technologies can and should include a robust public process.  We didn’t get that with private managed care.  The mammography and cervical cytology reports should call our attention to the opportunity for public process in decision making in publicly-funded coverage, and the need for close attention to the implementing regulatory processes if and when a bill is signed.

« Previous Page — Next Page »