Medicine Hat

Senate health reformers work toward consensus bill during break

August 23, 2009 on 1:00 am | In Uncategorized | Comments Off Washington -- As Congress broke for its August recess, a bipartisan group of six key Senate Finance Committee members were unable to hammer out a consensus health system reform proposal, despite some intense last-minute discussions and face time with President Obama.

That leaves the Senate with just half of a comprehensive bill and breaks the Democratic leadership's original deadline for holding a floor vote on a measure. The Health, Education, Labor and Pensions Committee approved its version of a reform measure July 15 by a party-line vote, and leaders initially hoped to marry that bill with a bipartisan Finance product before the recess.

But that doesn't mean the work stops until lawmakers return.

"Senators have arranged to continue talking, and staff will continue their hard work," said Jennifer Donohue, a Finance Committee majority aide. "They will spend valuable time in their home states, listening to and learning from their constituents."

Health policy experts said the core group of Finance members negotiating a potential consensus bill have their work cut out for them during the break and when they return. Some observers predicted that an agreement by the committee might not come until the end of the year.

"Senate Democrats will have a difficult time this August as they return to their districts and work to convince their constituents to buy into the president's ambitious health reform agenda," said Erica Suares, Senate relations deputy director at the Heritage Foundation, a conservative think tank based in Washington, D.C.

A lack of agreement on key reform issues keeps forcing Democratic leaders to push back their deadlines. When it became clear that the Senate would recess without the committee producing a bill, Finance Chair Max Baucus (D, Mont.) suggested a new deadline of Sept. 15 for agreeing on a proposal for committee consideration.

But the mention of a new deadline received a cool reception from Republicans, who insisted that Congress cannot rush such a major undertaking. "I have not and will not agree to an artificial deadline, because I am committed to getting health care reform right, not finishing a bill by some arbitrary date," said Sen. Mike Enzi (R, Wyo.).

Baucus and Enzi are two of the "gang of six" committee members who are working toward a bipartisan agreement. The other members of the group are the panel's ranking Republican, Charles Grassley (Iowa), and Sens. Olympia Snowe (R, Maine), Jeff Bingaman (D, N.M.) and Kent Conrad (D, N.D.).

Members from both sides of the aisle report progress in their talks, but they acknowledge several major sticking points remain. Most Republicans, for example, are strongly opposed to a public insurance plan option. As a result, centrist Democrats have proposed replacing that option with private, consumer-owned insurance cooperatives. Both a public plan and co-ops are part of the HELP committee's bill.

Other key issues Finance is debating include how to structure a Medicaid expansion, what level of savings to squeeze from Medicare and how to use tax provisions to raise revenue.

The six senators had an opportunity to update President Obama on all of the outstanding issues during an Aug. 6 meeting at the White House just before the recess. While no agreements were reached at the meeting, congressional aides described it as a helpful listening session with the president in which he encouraged them to continue their efforts.

A long haul

Some observers said it was not a surprise that the gang of six was unable to cobble together an agreement before the August recess given the complexity of the unresolved issues. The Heritage Foundation's Suares said not having a bill introduced before the break will be a mixed bag for Democrats.

"It is politically smart to not have a bill hanging out over the August recess for people to rip apart," she said. "In other ways, the public will think it weak that there is no product for them to see."

Lawmakers may have more to discuss once they hear from the people they represent back home. Some town-hall meetings and other lawmaker events held early in the recess were disrupted by protesters opposing congressional reform plans.

"I think you can say this is not a typical August," said Craig Orfield, minority communications director for the HELP committee, of which Enzi is the ranking member. Enzi is "always busy when he goes home, but he expects health care to be a top item on the agenda this time. There are a lot of concerns and comments coming from constituents."

A quick turnaround by the Finance panel in the fall is looking unlikely, said Joseph Antos, a health care scholar at the conservative American Enterprise Institute in Washington, D.C. "Unless there is a real breakthrough in August, I can't see Finance coming back and washing away all of the problems right away. My guess is Sept. 15 will come and go."

Antos said November is a more realistic target for Finance to unveil a consensus proposal, though it is "more likely to slide into December."

The partisan way

If Senate leaders decide that the gang of six cannot come to a bipartisan agreement fast enough, they may choose to pursue a Democratic bill and seek the 60 votes necessary to end debate on the legislation. If that is not possible, Senate Majority Leader Harry Reid (D, Nev.) might opt to use a controversial parliamentary tactic known as budget reconciliation to force a measure through with only 51 votes.

Such a tactic is likely if Democrats decide to take the partisan route, Suares said. "Generally, people do not think Reid would have 60 votes for a more radical health reform bill to pass in the Senate."

Republicans have been adamant in saying that the use of reconciliation would be the nuclear option for health reform, blasting a huge rift between the parties and exposing the Democrats to potentially disastrous political consequences.

"It'll be a lost opportunity if Democratic leaders in Congress and the administration force action on health care legislation that's not ready because of the complexity of the issues and the high stakes in getting it right," Grassley said. "The public doesn't want a government takeover of the health care system, and we're working to stop it."

Enzi insisted he "won't be moved by partisan threats to misuse the budget reconciliation process."

At least for the time being, Baucus has dismissed talk of the Democrats going it alone and says he is committed to working closely with Grassley to ensure a bipartisan result.

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Physicians stop states from raiding liability funds

August 23, 2009 on 1:00 am | In Uncategorized | Comments Off New Hampshire and Pennsylvania physicians won separate court rulings against state authorities looking to tap into state-created medical liability funds to solve budget shortfalls. Doctors said the early rulings could have a significant deterrent effect on other state legislatures that are considering plundering such funds to the detriment of access to care.

In New Hampshire, a Belknap Superior Court judge found unconstitutional a bill authorizing the transfer of $110 million from the state-created Medical Malpractice Joint Underwriting Assn. to expand state health programs for underserved populations. Gov. John Lynch as part of his 2010-11 budget had approved the transfer of what lawmakers consider to be excess monies in the fund.

Although the state created the JUA in 1975 as an alternative source of affordable medical liability insurance, the court noted that the insurer is funded through the annual premiums physicians and other health care entities pay to purchase coverage.

"The state did not financially contribute to the creation of the JUA and has not contributed any funds since that time," Judge Kathleen A. McGuire wrote in a July 29 opinion. She found the insurer was not a part of state government, and doctors and others have a vested right in the JUA funds. As a result, the state's seizure of that money violated policyholders' contractual and property rights.

The court also said the state's rationale that the transfer served an important public interest in promoting access to care did not justify the government's action. McGuire noted it was up to the JUA to determine if a surplus existed, which it had not done.

N.H. created its Medical Malpractice Joint Underwriting Assn. in 1975 as an alternative source of medical liability insurance.

The decision is a victory for physicians, because if the JUA reserves were to fall short, it would have far-reaching negative consequences, said Georgia A. Tuttle, MD, a Lebanon, N.H., dermatologist and lead plaintiff in the case.

"That would directly penalize patients, because those higher fees would translate to an increase in the cost of providing care to the public," Dr. Tuttle said. The JUA "was created to provide malpractice insurance to providers in the state. It's not about subsidizing anything else."

The ruling also has significant legal and policy implications, said Kevin Fitzgerald, a plaintiff attorney in the case. "What we have going on here and around the country is governments looking around at funds accumulated based on other promises and trying to figure out how to change the rules of the game," he said. "This ruling stands for the notion doctors and other private parties need to be prepared to bring these claims and defend against the overreaching of government into private property."

Lynch has appealed the decision to the state Supreme Court, where the New Hampshire Medical Society and the Litigation Center of the American Medical Association and State Medical Societies plan to file a friend-of-the-court brief in support of the physicians.

"We continue to believe the state's intended use of these surplus funds is in the best interests of the people of New Hampshire and is consistent with the legislative intent in establishing the JUA," Lynch said in a statement. The JUA was established "to provide a service, not a windfall, to doctors ... to ensure doctors could get access to malpractice insurance, and that service has been provided."

Similar story, different state

Meanwhile, a Pennsylvania trial court on July 24 gave the green light to a lawsuit filed by the Pennsylvania Medical Society and the hospital industry to preserve an estimated $600 million set aside to help abate doctors' liability premium payments.

The pool, financed by cigarette taxes, was created to keep doctors practicing in the state by subsidizing the fees they must pay into a state compensation fund, known as Mcare. The program covers half of doctors' required $1 million liability coverage.

Pennsylvania has about $600 million set aside to help abate doctors' liability premium payments.

But the state in 2008 failed to release the money accumulated in the abatement fund after lawmakers reached a stalemate with Gov. Edward G. Rendell over his proposal to cover the uninsured. At the time, the governor said he would use the money to cover health care expansions, while other lawmakers proposed to tap the funds to cover other budget shortfalls.

Because the money was set aside to help retain doctors by reducing their liability insurance burdens, however, the Commonwealth Court found the physicians were entitled to relief and allowed the suit to proceed to trial. As of this article's deadline, no hearing date was scheduled. The court also rejected the state's argument that because the abatement program expired in December 2008, it no longer had the authority to transfer the abatement funds to the Mcare program.

J. Scot Chadwick, the state medical society's director of government affairs, said with the abatements gone, the money must cover Mcare's outstanding liability claims still making their way through the legal system, which stand at an estimated $1.7 billion. Diverting those funds would not only drive up doctors' fees to cover any potential deficit, but also drive away physicians.

"This all boils down to access to care for patients," Chadwick said. When it comes to recruiting new doctors, in particular, "we don't want to have physicians paying [a surcharge] for coverage they never received."

The governor's deputy general counsel, Barbara Holland, said the physician and hospital organizations are misreading the legislation, which allows the state to spend the money on other projects, not strictly Mcare.

"At this point, the Legislature has the sole authority to appropriate that money, and if they decide there's a better use of that money, that's their discretion."

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