Obama’s Letter to Congressional Leaders: We’re Almost There

Today, President Obama sent a letter to Congressional leaders, offering to incorporate more Republican ideas in health care legislation.

Don’t panic: Of the four ideas, two are excellent, one was almost certain to happen anyway, and one simply funds pilot projects in the states to explore alternatives to resolving medical malpractice disputes.   This provision does not call for capping malpractice awards—the president has made it clear that he opposes caps. 

Moreover, President Obama makes it very clear that he is not going to “strip down” his bill. He is insisting  on comprehensive reform.

More importantly, Nancy Pelosi appears very close to having the House votes to pass reform. The New America Foundation’s Joanne Kenen reports: 

“A bunch of enterprising AP reporters surveyed the 39 House Democrats who voted "no" on the original House health care bill -- and found nine willing to state on the record that they would consider a "yes" vote on a final package based on the Senate bill and a set of House-friendly changes backed by President Obama. (Of course, there are also "yes" votes that could turn to "no," either because of abortion or re-election thunder clouds back home).

“House Speaker Nancy Pelosi and the Democratic leadership need to sew up 216 votes (it's usually 218 but recent vacancies on both sides reduce the count). She has exactly 216 now – although that counts Bart Stupak as a yes,  which is unlikely given the Michigan Democrat's stance on the Senate bill abortion language. So 215 is more realistic -- before we count any changed votes in either direction.”

I believe that Pelosi will get the needed votes—and that health care reform will pass. Pelosi is a politician’s daughter, and when it comes to counting and assembling votes, she has done an outstanding job. If only more of our legislators were as competent.

Meanwhile, President Obama’s letter to the leadership (see excerpt below) should help her. I doubt the letter will lead any Republican to vote for the bill, but it may make it easier for moderate Democrats to unite behind the legislation.

Speaker of the Majority Leader
House of Representatives United States Senate
Washington, D.C. 20515 Washington, D.C. 20510
The Honorable John Boehner The Honorable Mitch McConnell
Republican Leader Republican Leader
House of Representatives United States Senate
Washington, D.C. 20515 Washington, D.C. 20510

Dear Speaker Pelosi, Senator Reid, Senator McConnell, and Representative Boehner:

 . . . No matter how we move forward, there are at least four policy priorities identified by Republican Members at the meeting that I am exploring. I said throughout this process that I’d continue to draw on the best ideas from both parties, and I’m open to these proposals in that spirit: 

1.   Although the proposal I released last week included a comprehensive set of initiatives to combat fraud, waste, and abuse, Senator Coburn had an interesting suggestion that we engage medical professionals to conduct random undercover investigations of health care providers that receive reimbursements from Medicare, Medicaid, and other Federal programs.

[This is a very good idea. Medicare does need to invest more in investigating fraud, and the idea of making it a “sting” operation run by medical professionals is appealing.--mm]

2.    My proposal also included a provision from the Senate health reform bill that authorizes funding to states for demonstrations of alternatives to resolving medical malpractice disputes, including health courts. Last Thursday, we discussed the provision in the bills cosponsored by Senators Coburn and Burr and Representatives Ryan and Nunes (S. 1099) that provides a similar program of grants to states for demonstration projects. Senator Enzi offered a similar proposal in a health insurance reform bill he sponsored in the last Congress. As we discussed, my Administration is already moving forward in funding demonstration projects through the Department of Health and Human Services, and Secretary Sebelius will be awarding $23 million for these grants in the near future. However, in order to advance our shared interest in incentivizing states to explore what works in this arena, I am open to including an appropriation of $50 million in my proposal for additional grants. Currently there is only an authorization, which does not guarantee that the grants will be funded.

[We do need to find alternatives to resolving malpractice disputes, and there are some good ideas out there. If pilot projects are funded, the states should be able to find alternatives that work. This will not satisfy Republicans who want tort reform, but it should reassure many physicians that President Obama recognizes the problem.--mm]

3.    At the meeting, Senator Grassley raised a concern, shared by many Democrats, that Medicaid reimbursements to doctors are inadequate in many states, and that if Medicaid is expanded to cover more people, we should consider increasing doctor reimbursement. I’m open to exploring ways to address this issue in a fiscally responsible manner.

[Bravo! As I have written in the past, there is no reason why providers who care for the poor should be paid less than doctors and hospitals who treat the elderly. The president is not guaranteeing that he will do this. Funding will be needed. And “in a fiscally responsible manner” makes it clear that he will not let this program add to the deficit. But that investigation of Medicare and Medicaid fraud should yield savings. Providers who submit fraudulent claims may become more cautious. In other words, just knowing that the government is launching a sting operation could serve as a deterrent. mm]

4.    Senator Barrasso raised a suggestion that we expand Health Savings Accounts (HSAs). I know many Republicans believe that HSAs, when used in conjunction with high-deductible health plans, are a good vehicle to encourage more cost-consciousness in consumers’ use of health care services. I believe that high-deductible health plans could be offered in the exchange under my proposal, and I’m open to including language to ensure that is clear. This could help to encourage more people to take advantage of HSAs.

[My reading of the legislation says that it already lets insurers sell high-deductible plans with HSAs in the Exchange. So I don’t think this represents a change in the legislation. I object to high-deductible plans because research shows that people who buy them are often low-income people who cannot afford to use them. (They buy them because the premiums are lower). And HSAs serve primarily as a tax shelter for the very wealthy. But I was already resigned to the fact that they would be part of reform.—mm]

The president continues: “There are provisions that were added to the legislation that shouldn’t have been. That’s why my proposal does not include the Medicare Advantage provision, mentioned by Senator McCain at the meeting, which provided transitional extra benefits for Florida and other states. My proposal eliminates those payments, gradually reducing Medicare Advantage payments across the country relative to fee-for service Medicare in an equitable fashion (page 8). My proposal rewards high-quality and high-performing plans.

In addition, my proposal eliminates the Nebraska FMAP provision, replacing it with additional federal financing to all states for the expansion of Medicaid. [This should reassure voters who have been unhappy about “special deals” in the legislation.mm]                                 

Obama Refuses to Back Down On Key Points

The letter continues:

Admittedly, there are areas on which Republicans and Democrats don’t agree. While we all believe that reform must be built around our existing private health insurance system, I believe that we must hold the insurance industry to clear rules, so they can’t arbitrarily raise rates or reduce or eliminate coverage. That must be a part of any serious reform to make it work for the many Americans who have insurance coverage today, as well as those who don’t.

I also believe that piecemeal reform is not the best way to effectively reduce premiums, end the exclusion of people with pre-existing conditions or offer Americans the security of knowing that they will never lose coverage, even if they lose or change jobs.

My ideas have been informed by discussions with Republicans and Democrats, doctors and nurses, health care experts, and everyday Americans – not just last Thursday, but over the course of a yearlong dialogue. Both parties agree that the health care status quo is unsustainable. And both should agree that it’s just not an option to walk away from the millions of American families and business owners counting on reform.
After decades of trying, we’re closer than we’ve ever been to making health insurance reform a reality. I look forward to working with you to complete what would be a truly historic achievement.

Sincerely,

President Barack Obama

Comments

[Brian Murphy]

Full disclosure: I am an attorney who represents plaintiffs in medical malpractice lawsuits. Why do you comment that we need to find alternatives to resolving medical malpractice lawsuits. The jury system works. As for frivolous medical malpractice lawsuits -- has anyone provided any type of empirical evidence to show the percentage of frivolous lawsuits filed and how it affects healthcare costs? For purposes of reform, does anyone bother to define what a "frivolous lawsuit" is? Noone abhors a meritless lawsuit more than a plaintiff's lawyer who files meritorious lawsuits. Further, the fastest way out of business for an attorney is to take a flyer on a dubious medical malpractice claim: Med Mal cases are the most expensive and time consuming, the most likely to go to trial; and the most likely to result in Not Guilty verdicts (and those are good cases). Tort reform serves it biggest function as an underwriting aid to Med Mal insurance carriers. The harder it is for a plaintiff to succeed, the fewer claims are paid and the higher the return for the insurance carrier. For those who think the carrier will return the savings to the doctors through lower premiums, I have a deed to the Brooklyn Bridge that I can sell to you cheap. In the end, the Med Mal crisis is a bogey man created by insurance carriers and business organizations (who seek other types of "tort reform")so as to increase their bottom lines and the bottom lines of their members. Even though conservatives assert they favor less government intrusion, out of the other side of their mouth they want the government to control how an individual can -- on his own -- seek redress for a wrong committed to him. U.S. trial courts provide the forum where each individual can bring their respective disputes and have them heard by an impartial judge and a jury of their peers. We trust our courts and juries to determine if persons should be put to death or not; the citizens in this country are committed enough and bright enough to determine whether medical negligence has occurred and, if so, what the reasonable compensation should be. I see it happen everytime I go to trial.

[Maggie Mahar]

Brian--

Thanks for your comment.

I agree that only a small percentage of malpractice suits that lawyers actually take to court are frivolous.

But the cost of taking a suit to court is high. This means that middle-class people who have a legitimate case may not be able to find a lawyer willing or able to take it on contingency if the harm done to the patient is not likely to bring a large judgment.

As an alternative to going through litigation, some hospitals have begun to try apologizing -- saying "we're sorry", and telling patients (or relatives) what actually happened--letting them talk to doctors and nurses) involved in the case, and then asking if the patient or relatives would be willing to go to arbitration to let an impartial referee help decide what the compensation should be.

This "I'm sorry" approach saves a fortune because the palintiffs don't need to go through "discovery" (trying to get information from the hospital about what happened.) Hospitals that have tried this approach have found that patients/ relatives are much less likely to want to go to court if they are not stonewalled.

Finally, a jury of laymen may well be able to make a shrewd and fair judgment in many cases. But medicine is a science that is shot through with ambiguities and uncertainties. (See Dr. Atul Gawande's book, "Complications.")

It is extremely difficult for a lay jury to fully appreciate those uncertainties. Most laymen would prefer to believe that medicne is an exact science. They also would like to believe that all doctors are extremely competent and always put their patients' intersts ahead of their own intersts.

They're wrong on both counts. This means that, too often, juries decide malpratice cases based on what they want to believe about medicine and doctors. An aribrator with medical experience--or a judge who specializes in malpratice-- is much more likely to be able to take an objective look at the facts.

Finally a jury of laymen may well be